NGL-C NGL Energy Partners LP

 

  

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

  

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): February 2, 2024

 

NGL ENERGY PARTNERS LP

(Exact name of registrant as specified in its charter)

 

Delaware		001-35172		27-3427920
(State or other jurisdiction of incorporation or organization)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

6120 South Yale Avenue

Suite 1300

Tulsa, Oklahoma 74136
(Address of principal executive offices)(Zip Code)

 

(918) 481-1119
(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240-14a-12)

 

¨

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b))

 

¨

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240-13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of Each Class		Trading Symbol(s)		Name of Each Exchange on Which Registered
Common units representing Limited Partner Interests		NGL		New York Stock Exchange
Fixed-to-floating rate cumulative redeemable perpetual preferred units		NGL-PB		New York Stock Exchange
Fixed-to-floating rate cumulative redeemable perpetual preferred units		NGL-PC		New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

  

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Indenture and the Notes

 

On February 2, 2024, NGL Energy Operating LLC (“Operating LLC”) and NGL Energy Finance Corp. (“Finance Corp.” and, together with Operating LLC, the “Issuers”), each a wholly-owned subsidiary of NGL Energy Partners LP (the “Partnership”), closed the previously announced Rule 144A/Regulation S offering (the “Notes Offering”) of $900 million in aggregate principal amount of 8.125% senior secured notes due 2029 (the “2029 Notes”) and $1.3 billion in aggregate principal amount of 8.375% senior secured notes due 2032 (the “2032 Notes” and, together with the 2029 Notes, the “Notes”). The Notes were issued pursuant to an indenture, dated as of February 2, 2024 (the “Indenture”), among the Issuers, the guarantors party thereto (the “Guarantors”) and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent. Net proceeds from the issuance of the Notes, together with the borrowings under a new seven-year $700.0 million senior secured term loan facility (the “Term Loan”) entered into concurrently with the Notes Offering and discussed further below, are being used (i) to fund the redemption and related discharge of the indentures governing the Partnership’s existing 6.125% senior notes due 2025, 7.5% senior notes due 2026, and 7.500% senior secured notes due 2026, including any applicable premiums and accrued and unpaid interest, (ii) to pay fees and expenses in connection therewith, (iii) to repay all borrowings under the Partnership’s senior secured asset-based revolving credit facility (the “ABL Facility”) and (iv) to the extent of any remaining net proceeds, for general corporate purposes. Interest is payable on the Notes on February 15, May 15, August 15 and November 15 of each year, beginning on May 15, 2024. The 2029 Notes mature on February 15, 2029, and the 2032 Notes mature on February 15, 2032.

 

The Notes are the Issuers’ senior secured obligations. The Notes are guaranteed on a senior secured basis by the Guarantors and will also be guaranteed by certain future subsidiaries of the Partnership (other than the Issuers) that guarantee certain of the Issuers’ indebtedness or certain indebtedness of the Guarantors, including under the ABL Facility and the Term Loan. The Notes and the guarantees, together with the obligations of the Issuers and the Guarantors under the Term Loan, are secured on a first-priority basis by liens on the Notes-TLB Priority Collateral (as defined in the Indenture) (which includes most of the Issuers’ and the Guarantors’ assets other than the ABL Priority Collateral (as defined in the Indenture)) and on a second-priority basis by liens on the ABL Priority Collateral (which includes most of the Issuers’ and the Guarantors’ accounts receivable, inventory, pledged deposit accounts, cash and cash equivalents, renewable energy tax credits and related assets), in each case, subject to certain exceptions and permitted liens as described in the Indenture.

 

The Indenture contains covenants that, among other things, limit the Partnership’s and the Issuers’ ability and the ability of the Issuers’ restricted subsidiaries to (i) pay distributions or make other restricted payments or repurchase stock, (ii) incur or guarantee additional indebtedness or issue disqualified stock or certain preferred stock, (iii) make certain investments, (iv) create or incur liens, (v) sell assets, (vi) enter into restrictions affecting the ability of restricted subsidiaries to make distributions, make loans or advances or transfer assets to the Guarantors (including the Partnership), (vii) enter into certain transactions with the Issuers’ affiliates, (viii) designate restricted subsidiaries as unrestricted subsidiaries, and (ix) consolidate, merge or transfer or sell all or substantially all of the Partnership’s or the Issuers’ properties or assets. These covenants are subject to a number of important exceptions and qualifications.

 

The Issuers may, at their option, redeem all or part of the 2029 Notes, at any time on or after February 15, 2026 at the redemption prices specified in the Indenture. Prior to such time, the Issuers may, at their option, redeem up to 40% of the principal amount of the 2029 Notes with an amount of cash not greater than the amount equal to the net cash proceeds from certain equity offerings at the redemption price specified in the Indenture. In addition, before February 15, 2026, the Issuers may, at their option, redeem all or part of the 2029 Notes at a redemption price equal to 100% of the aggregate principal amount of the 2029 Notes redeemed, plus an applicable “make-whole” premium as specified in the Indenture and accrued and unpaid interest, if any, to, but excluding, the redemption date. If the Partnership sells certain of its assets, or experiences specific kinds of changes of control followed by a rating decline, holders of the 2029 Notes will have the right to require the Partnership to offer to repurchase the 2029 Notes at 101% of the aggregate principal amount of the 2029 Notes to be repurchased plus accrued and unpaid interest on the 2029 Notes to be repurchased to, but excluding, the date of purchase.

 

 

The Issuers may, at their option, redeem all or part of the 2032 Notes, at any time on or after February 15, 2027 at the redemption prices specified in the Indenture. Prior to such time, the Issuers may, at their option, redeem up to 40% of the principal amount of the 2032 Notes with an amount of cash not greater than the amount equal to the net cash proceeds from certain equity offerings at the redemption price specified in the Indenture. In addition, before February 15, 2027, the Issuers may, at their option, redeem all or part of the 2032 Notes at a redemption price equal to 100% of the aggregate principal amount of the 2032 Notes redeemed, plus an applicable “make-whole” premium as specified in the Indenture and accrued and unpaid interest, if any, to, but excluding, the redemption date. If the Partnership sells certain of its assets, or experiences specific kinds of changes of control followed by a rating decline, holders of the 2032 Notes will have the right to require the Partnership to offer to repurchase the 2032 Notes at 101% of the aggregate principal amount of the 2032 Notes to be repurchased plus accrued and unpaid interest on the 2032 Notes to be repurchased to, but excluding, the date of purchase.

 

The Indenture contains other customary terms, events of default and covenants.

 

The Notes were offered and sold in a transaction exempt from registration under the Securities Act of 1933 (the “Securities Act”) only to persons reasonably believed to be qualified institutional buyers in accordance with Rule 144A under the Securities Act, and outside the United States to persons other than U.S. persons, in reliance on Regulation S under the Securities Act, and the Notes may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws.

 

The above description of the Indenture and the Notes is a summary only and is subject to, and qualified entirely by, the Indenture, the 2029 Notes and the 2032 Notes, which are filed as Exhibits 4.1, 4.2 and 4.3, respectively, to this Current Report on Form 8-K (this “Form 8-K”) and incorporated herein by reference.

 

New Term Loan

 

On February 2, 2024, the Partnership entered into a new term loan credit agreement, dated February 2, 2024 (the “Term Loan Credit Agreement”), by and among the Partnership, Operating LLC, as borrower, Toronto Dominion (Texas) LLC, as administrative agent and collateral agent, and the lenders party thereto, which provides for a $700.0 million Term Loan. Operating LLC is the borrower under the Term Loan, and the Partnership and certain of the Partnership’s direct and indirect wholly-owned subsidiaries are the guarantors under the Term Loan.

 

The Term Loan is scheduled to mature on February 2, 2031 and will amortize in equal quarterly installments in aggregate amounts equal to 1.0% of the original principal amount of the Term Loan beginning with the fiscal quarter ending June 30, 2024, with the balance payable on maturity. Amounts borrowed and repaid under the Term Loan will bear interest at a secured overnight financing rate (“SOFR”) based rate (with such customary provisions under the Term Loan providing for the replacement of SOFR with any successor rate) or an alternate base rate, in each case plus an applicable margin. The applicable margin for alternate base rate loans varies from 3.25% to 3.50% and the applicable margin for SOFR-based loans varies from 4.25% to 4.50%, in each case, depending on the Partnership’s consolidated first lien net leverage ratio.

 

The Term Loan Credit Agreement allows Operating LLC to voluntarily prepay the Term Loan at any time without premium or penalty other than (a) customary “breakage” costs and (b) a premium of 1% of the principal amount so prepaid, if such prepayment occurs prior to the six-month anniversary of the Term Loan closing date in connection with certain repricing transactions. The Term Loan Credit Agreement contains customary mandatory prepayment requirements, including mandatory prepayments as a result of (a) excess cash flow (subject to certain customary exceptions and thresholds), (b) asset sales (subject to reinvestment rights and certain customary exceptions and thresholds) and (c) the incurrence of non-permitted indebtedness.

 

The Term Loan Credit Agreement permits Operating LLC to request, from time to time, (a) increases in the Term Loan, and/or (b) the establishment of new tranches of incremental term loans, in an aggregate principal amount of up to the greater of $150 million and 20% of consolidated EBITDA plus such additional amounts depending upon satisfaction of certain ratio tests and other conditions, in each case subject to commitments from lenders and customary conditions.

 

 

The Term Loan Credit Agreement requires that certain of the Partnership’s subsidiaries that the Partnership may form or acquire in the future provide a guarantee of, and also grant a lien on their assets to secure, the obligations owing in respect of the Term Loan.

 

The Term Loan Credit Agreement contains various affirmative and negative covenants, including financial reporting requirements and limitations on indebtedness, liens, mergers, consolidations, liquidations and dissolutions, sales of assets, distributions and other restricted payments, investments (including acquisitions) and transactions with affiliates. The Term Loan Credit Agreement requires that the Partnership maintain, on a quarterly basis and beginning with the fiscal quarter ending June 30, 2024, a debt service coverage ratio of no less than 1.10:1.00. Events of default under the Term Loan Credit Agreement are customary for facilities of this type including, among other things, the failure to pay principal, interest or fees, the failure to observe or perform any material covenant contained in the Term Loan Credit Agreement, material misrepresentation under or in connection with the Term Loan Credit Agreement, cross-default to certain material indebtedness, entry of judgments in a material amount, a change of control and the institution of any bankruptcy or insolvency proceedings.

 

All of the obligations under the Term Loan Credit Agreement are secured by first-priority basis by liens on the Notes-TLB Priority Collateral and by a second-priority basis by liens on the ABL Priority Collateral, in each case, subject to certain exceptions and permitted liens as described in the Term Loan Credit Agreement.

 

The above description of the Term Loan Credit Agreement is a summary only and is subject to, and qualified entirely by, the Term Loan Credit Agreement, which is filed as Exhibit 10.1 to this Form 8-K and incorporated herein by reference.

 

ABL Amendment

 

On February 2, 2024, the Partnership entered into an amendment (the “ABL Amendment”) to its existing ABL credit agreement by and among Operating LLC and the Partnership, as borrowers, JPMorgan Chase Bank, N.A., as administrative agent, collateral agent and an issuing lender, and certain other financial institutions party thereto as lenders and issuing lenders.

 

The ABL Amendment amends the ABL Facility to (i) extend the maturity thereunder to the earliest of (a) February 2, 2029 and (b) 91 days prior to the earliest maturity date in respect of any indebtedness of the Partnership, Operating LLC or any of its restricted subsidiaries in an aggregate principal amount of $50.0 million or greater, subject to certain exceptions, (ii) provide for a sub-limit of $200.0 million for letters of credit and a $200.0 million incremental facility, subject to the receipt of commitments from lenders and customary borrowing conditions, (iii) modify the applicable margin applicable to loans under the ABL Facility based on SOFR or the alternate base rate to provide for a 0.25% decrease based on the Partnership’s consolidated net leverage ratio, (iv) provide for a mandatory prepayment under the ABL Facility while any loans are outstanding under the ABL Facility if aggregate “excess cash” (as defined in the ABL Facility) exceeds $50.0 million, subject to certain exceptions, and (v) certain other changes to the ABL Facility.

 

The above description of the ABL Facility and the ABL Amendment is a summary only and is subject to, and qualified entirely by, the ABL Amendment, which is filed as Exhibit 10.2 to this Form 8-K and incorporated herein by reference.

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth in Item 1.01 hereto under the captions “Indenture and the Notes,” “New Term Loan” and “ABL Amendment” is incorporated by reference into this Item 2.03.

 

 

Item 7.01. Regulation FD Disclosure.

 

On February 2, 2024, the Partnership issued a press release announcing the closing of the Notes Offering and the Term Loan. A copy of the press release is attached as Exhibit 99.1 to this Form 8-K and incorporated herein by reference.

 

The information in Item 7.01 of this Form 8-K, including Exhibit 99.1 attached hereto, is being “furnished” pursuant to Item 7.01 and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section, and is not incorporated by reference into any Partnership filing, whether made before or after the date hereof, regardless of any general incorporated language in such filing.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.		Description
4.1		Indenture, dated as of February 2, 2024, by and among NGL Energy Operating LLC, NGL Energy Finance Corp., the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent.
4.2		Form of 8.125% Senior Secured Notes due 2029 (included as Exhibit A to Exhibit 4.1 of this Form 8-K).
4.3		Form of 8.375% Senior Secured Notes due 2032 (included as Exhibit B to Exhibit 4.1 of this Form 8-K).
10.1		Term Loan Credit Agreement, dated as of February 2, 2024, by and among NGL Energy Operating LLC, NGL Energy Partners LP, Toronto Dominion (Texas) LLC, as administrative agent, collateral agent and a lender, and certain financial institutions party thereto.
10.2		Fifth Amendment to Credit Agreement, dated as of February 2, 2024, by and among NGL Energy Operating LLC, NGL Energy Partners LP, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and certain other financial institutions party thereto.
99.1		Press Release, dated February 2, 2024.
101		Cover Page formatted as Inline XBRL.
104		Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	NGL Energy Partners LP
	By: NGL Energy Holdings LLC,
		its general partner
Date: February 2, 2024		By:	/s/ Bradley P. Cooper
			Bradley P. Cooper
			Chief Financial Officer

 

 

Exhibit 4.1

 

Execution Version

 

NGL ENERGY OPERATING LLC,

 

NGL ENERGY FINANCE CORP.

 

AND EACH OF THE GUARANTORS PARTY HERETO

 

8.125% SENIOR SECURED NOTES DUE 2029

 

8.375% SENIOR SECURED NOTES DUE 2032

 

 

INDENTURE

 

Dated as of February 2, 2024

 

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

 

as Trustee and Collateral Agent

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01	Definitions	1
Section 1.02	Other Definitions	37
Section 1.03	Rules of Construction	38
ARTICLE II THE NOTES
Section 2.01	Form and Dating	38
Section 2.02	Execution and Authentication	39
Section 2.03	Registrar and Paying Agent	39
Section 2.04	Paying Agent to Hold Money in Trust	40
Section 2.05	Holder Lists	40
Section 2.06	Transfer and Exchange	40
Section 2.07	Replacement Notes	49
Section 2.08	Outstanding Notes	50
Section 2.09	Treasury Notes	50
Section 2.10	Temporary Notes	50
Section 2.11	Cancellation	50
Section 2.12	Defaulted Interest	51
Section 2.13	CUSIP and ISIN Numbers	51
ARTICLE III REDEMPTION
Section 3.01	Notices to Trustee	51
Section 3.02	Selection of Notes to Be Redeemed	51
Section 3.03	Notice of Redemption	52
Section 3.04	Effect of Notice of Redemption	53
Section 3.05	Deposit of Redemption Price	53
Section 3.06	Notes Redeemed in Part	53
Section 3.07	Optional Redemption of 2029 Notes	53
Section 3.08	Optional Redemption of 2032 Notes	54
ARTICLE IV COVENANTS
Section 4.01	Payment of Notes	55
Section 4.02	Maintenance of Office or Agency	55
Section 4.03	Reports	56
Section 4.04	Compliance Certificate	57
Section 4.05	Taxes	57
Section 4.06	Stay, Extension and Usury Laws	58
Section 4.07	Restricted Payments	58
Section 4.08	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	61
Section 4.09	Incurrence of Indebtedness and Issuance of Preferred Stock	63
Section 4.10	Asset Sales	66
Section 4.11	Transactions with Affiliates	72
Section 4.12	Liens	74

 

 

Section 4.13	Business Activities of Finance Corp.	74
Section 4.14	Offer to Repurchase Upon Change of Control	74
Section 4.15	Additional Note Guarantees	76
Section 4.16	Designation of Restricted and Unrestricted Subsidiaries	77
Section 4.17	Covenant Suspension	77
Section 4.18	Layering	78
Section 4.19	Limitation on activities of the Company	79
Section 4.20	Limited Condition Transactions	79
ARTICLE V SUCCESSORS
Section 5.01	Merger, Consolidation, or Sale of Assets	80
Section 5.02	Successor Entity Substituted	83
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.01	Events of Default	83
Section 6.02	Acceleration	85
Section 6.03	Other Remedies	86
Section 6.04	Waiver of Past Defaults	86
Section 6.05	Control by Majority	86
Section 6.06	Limitation on Suits	86
Section 6.07	Rights of Holders of Notes to Receive Payment	87
Section 6.08	Collection Suit by Trustee	87
Section 6.09	Trustee May File Proofs of Claim	87
Section 6.10	Priorities	87
Section 6.11	Undertaking for Costs	88
ARTICLE VII TRUSTEE
Section 7.01	Duties of Trustee	88
Section 7.02	Rights of Trustee	89
Section 7.03	Individual Rights of Trustee	90
Section 7.04	Trustee’s Disclaimer	90
Section 7.05	Notice of Defaults	90
Section 7.06	[Reserved]	90
Section 7.07	Compensation and Indemnity	90
Section 7.08	Replacement of Trustee	91
Section 7.09	Successor Trustee by Merger, etc.	92
Section 7.10	Eligibility; Disqualification	92
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance	92
Section 8.02	Legal Defeasance and Discharge	92
Section 8.03	Covenant Defeasance	93
Section 8.04	Conditions to Legal or Covenant Defeasance	93
Section 8.05	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	94
Section 8.06	Repayment to Company	95
Section 8.07	Reinstatement	95

 

 

ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01	Without Consent of Holders of Notes	95
Section 9.02	With Consent of Holders of Notes	97
Section 9.03	[Reserved]	99
Section 9.04	Revocation and Effect of Consents	99
Section 9.05	Notation on or Exchange of Notes	99
Section 9.06	Trustee to Sign Amendments, etc.	99
ARTICLE X NOTE GUARANTEES
Section 10.01	Guarantee	99
Section 10.02	Limitation on Guarantor Liability	100
Section 10.03	Execution and Delivery of Note Guarantee	101
Section 10.04	Guarantors May Consolidate, etc., on Certain Terms	101
Section 10.05	Releases	102
ARTICLE XI SATISFACTION AND DISCHARGE
Section 11.01	Satisfaction and Discharge	102
Section 11.02	Application of Trust Money	103
ARTICLE XII MISCELLANEOUS
Section 12.01	Concerning the Trust Indenture Act	104
Section 12.02	Notices	104
Section 12.03	[Reserved]	105
Section 12.04	Certificate and Opinion as to Conditions Precedent	105
Section 12.05	Statements Required in Certificate or Opinion	105
Section 12.06	Rules by Trustee and Agents	106
Section 12.07	No Personal Liability of Directors, Officers, Employees and Unitholders	106
Section 12.08	Governing Law	106
Section 12.09	No Adverse Interpretation of Other Agreements	106
Section 12.10	Successors	106
Section 12.11	Severability	106
Section 12.12	Counterpart Originals	106
Section 12.13	Table of Contents, Headings, etc.	107
ARTICLE XIII COLLATERAL
Section 13.01	The Collateral	107
Section 13.02	Maintenance of Collateral; Further Assurances	108
Section 13.03	After-Acquired Property	108
Section 13.04	Amendment of Security Interest	109
Section 13.05	Real Estate Mortgages and Filings	109
Section 13.06	Release of Liens on the Collateral	112
Section 13.07	Authorization of Actions to be Taken by the Trustee or the Collateral Agent Under the Security Documents	113
Section 13.08	Information Regarding Collateral	114
Section 13.09	Negative Pledge	114
Section 13.10	Regarding the Collateral Agent	115
Section 13.11	Conflicts	117

 

 

EXHIBITS
Exhibit A-1	FORM OF 2029 NOTE
Exhibit A-2	FORM OF 2032 NOTE
Exhibit B	FORM OF CERTIFICATE OF TRANSFER
Exhibit C	FORM OF CERTIFICATE OF EXCHANGE
Exhibit D	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E	FORM OF SUPPLEMENTAL INDENTURE

 

 

INDENTURE dated as of February 2, 2024 among NGL Energy Operating LLC, a Delaware limited liability company (the “Operating LLC”), NGL Energy Finance Corp., a Delaware corporation (“Finance Corp.” and, together with Operating LLC, the “Issuers”), each a wholly owned subsidiary of NGL Energy Partners LP, a Delaware limited partnership (the “Company”), the Guarantors (as defined herein) and U.S. Bank Trust Company, National Association, as trustee with respect to the 2029 Notes and with respect to the 2032 Notes (in such capacity, the “Trustee”) and as collateral agent with respect to the 2029 Notes and with respect to the 2032 Notes (in such capacity, the “Collateral Agent”).

 

The Issuers, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of each series of Notes (as defined herein), respectively:

 

ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01             Definitions.

 

“144A Global Note” means a Global Note substantially in the form of Exhibit A-1, in the case of 2029 Notes, or Exhibit A-2, in the case of 2032 Notes, hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the 2029 Notes or 2032 Notes, as applicable, sold in reliance on Rule 144A.

 

“2029 Additional Notes” means additional 2029 Notes (other than the 2029 Initial Notes) issued under this Indenture in accordance with Section 2.02 and Section 4.09 hereof, as part of the same series as the 2029 Initial Notes.

 

“2032 Additional Notes” means additional 2032 Notes (other than the 2032 Initial Notes) issued under this Indenture in accordance with Section 2.02 and Section 4.09 hereof, as part of the same series as the 2032 Initial Notes.

 

“2029 Initial Notes” means the 2029 Notes issued under this Indenture on the Issue Date.

 

“2032 Initial Notes” means the 2032 Notes issued under this Indenture on the Issue Date.

 

“2026 Senior Secured Notes” means the Issuers’ 7.500 senior secured notes due 2026.

 

“2029 Notes” means the Issuers’ 8.125% Senior Secured Notes due 2029 and includes 2029 Additional Notes, together as a single class.

 

“2029 Notes Make-Whole Price” with respect to any 2029 Notes to be redeemed, means an amount equal to the greater of:

 

(1)              100% of the principal amount of such 2029 Notes; and

 

(2)               (a) the redemption price of such Notes at the 2029 Notes Step-Down Date (as defined herein) plus (b) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2029 Notes matured on the 2029 Notes Step-Down Date) on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at the 2029 Notes Treasury Rate plus 50 basis points less (c) interest accrued to, but excluding, the date of redemption;

 

plus, in the case of both (1) and (2), accrued and unpaid interest on such 2029 Notes to be redeemed, if any, to, but excluding, the redemption date.

 

“2029 Notes Obligations” means all Obligations under this indenture, the notes and the Note Guarantees with respect to the 2029 Notes.

 

 

“2029 Notes Treasury Rate” means, with respect to any redemption date, the yield determined by the Issuers in accordance with the following two paragraphs:

 

The 2029 Notes Treasury Rate shall be determined by the Issuers after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the 2029 Notes Treasury Rate, the Issuers shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the 2029 Notes Step-Down Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the 2029 Notes Step-Down Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third business day preceding the redemption date H.15 TCM is no longer published, the Issuers shall calculate the 2029 Notes Treasury Rate based on the rate per annum equal to the quarterly equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the 2029 Notes Step-Down Date, as applicable. If there is no United States Treasury security maturing on the 2029 Notes Step-Down Date but there are two or more United States Treasury securities with a maturity date equally distant from the 2029 Notes Step-Down Date, one with a maturity date preceding the 2029 Notes Step-Down Date and one with a maturity date following the 2029 Notes Step-Down Date, the Issuers shall select the United States Treasury security with a maturity date preceding the 2029 Notes Step-Down Date. If there are two or more United States Treasury securities maturing on the 2029 Notes Step-Down Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuers shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the 2029 Notes Treasury Rate in accordance with the terms of this paragraph, the quarterly yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.

 

“2032 Notes” means the Issuers’ 8.375% Senior Secured Notes due 2032 and includes 2032 Additional Notes, together as a single class.

 

“2032 Notes Make-Whole Price” with respect to any 2032 Notes to be redeemed, means an amount equal to the greater of:

 

(1)              100% of the principal amount of such 2032 Notes; and

 

(2)               (a) the redemption price of such Notes at the 2032 Notes Step-Down Date (as defined herein) plus (b) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2032 Notes matured on the 2032 Notes Step-Down Date) on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at the 2032 Notes Treasury Rate plus 50 basis points less (c) interest accrued to, but excluding, the date of redemption;

 

plus, in the case of both (1) and (2), accrued and unpaid interest on such 2032 Notes to be redeemed, if any, to, but excluding, the redemption date.

 

 

“2032 Notes Obligations” means all Obligations under this indenture, the notes and the Note Guarantees with respect to the 2032 Notes.

 

“2032 Notes Treasury Rate” means, with respect to any redemption date, the yield determined by the Issuers in accordance with the following two paragraphs:

 

The 2032 Notes Treasury Rate shall be determined by the Issuers after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the 2032 Notes Treasury Rate, the Issuers shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the 2032 Notes Step-Down Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the 2032 Notes Step-Down Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third business day preceding the redemption date H.15 TCM is no longer published, the Issuers shall calculate the 2032 Notes Treasury Rate based on the rate per annum equal to the quarterly equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the 2032 Notes Step-Down Date, as applicable. If there is no United States Treasury security maturing on the 2032 Notes Step-Down Date but there are two or more United States Treasury securities with a maturity date equally distant from the 2032 Notes Step-Down Date, one with a maturity date preceding the 2032 Notes Step-Down Date and one with a maturity date following the 2032 Notes Step-Down Date, the Issuers shall select the United States Treasury security with a maturity date preceding the 2032 Notes Step-Down Date. If there are two or more United States Treasury securities maturing on the 2032 Notes Step-Down Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuers shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the 2032 Notes Treasury Rate in accordance with the terms of this paragraph, the quarterly yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.

 

“ABL Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as the administrative agent under the ABL Credit Agreement, or any successor representative acting in such capacity.

 

“ABL Collateral Agent” means JPMorgan Chase Bank, N.A. in its capacity as the collateral agent under the ABL Credit Agreement, or any successor representative acting in such capacity.

 

 

“ABL Credit Agreement” means that certain Credit Agreement, dated as of February 4, 2021, by and among Operating LLC, as borrower, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and the several lenders and other agents party thereto, including any notes, guarantees, collateral and security documents, instruments and agreements executed in connection therewith, as amended by that certain First Amendment to Credit Agreement, dated as of November 8, 2021, that certain Second Amendment to Credit Agreement, dated as of April 13, 2022, that certain Third Amendment to Credit Agreement, dated as of February 16, 2023, that certain Fourth Amendment to Credit Agreement, dated as of July 13, 2023, that certain Fifth Amendment to Credit Agreement, dated as of the Issue Date, and as may have been further amended, restated, amended and restated, supplemented or otherwise modified to date, including any agreement exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring (including increasing the amount of available borrowings thereunder, changing the maturity or adding or removing Subsidiaries as borrowers or guarantors thereunder and whether or not with the same agents, lenders, investors or holders) all or any portion of the Indebtedness under such agreement or facility or any successor or replacement agreement or facility; provided that, after giving effect to any such amendment, supplement or modification, the so amended, supplemented or modified ABL Credit Agreement shall constitute an asset based revolving facility in which the majority of the commitments thereunder are held by commercial banks and other financial institutions that are regulated by, or under the supervision of, the Office of the Comptroller of the Currency.

 

“ABL Documents” means the ABL Credit Agreement, any additional credit agreement, note purchase agreement, indenture or other agreement related thereto and all other loan, letter of credit or note documents, collateral or security documents, notes, guarantees, mortgages, deeds of trust, pledge agreements, instruments and agreements governing or evidencing, or executed or delivered in connection with, the ABL Credit Agreement or any Pari Passu ABL Obligations, as such agreements or instruments may be amended, supplemented, modified, restated, replaced, renewed, refunded, restructured, increased or refinanced from time to time.

 

“ABL Facility” means the asset-based revolving credit facility established under the ABL Credit Agreement.

 

“ABL Indebtedness” means all Indebtedness, liabilities and obligations (of every kind or nature) incurred or arising under or relating to the ABL Documents that is secured by a Permitted Lien described under clause (1) of the definition thereof (including any Hedging Obligations and Obligations in respect of Treasury Management Arrangements secured pursuant to the ABL Documents), and all other obligations of the Issuers or any Guarantor in respect thereof.

 

“ABL Intercreditor Agreement” means the intercreditor agreement dated as of the Issue Date among the Issuers, the Guarantors, the Collateral Agent, the Term Loan Collateral Agent, the Real Property Collateral Agent and the ABL Collateral Agent, as amended or supplemented from time to time.

 

“ABL Obligations” means ABL Indebtedness and all other Obligations in respect thereof.

 

“ABL Priority Collateral” has the meaning given to it in the ABL Intercreditor Agreement.

 

“Acquired Debt” means, with respect to any specified Person:

 

(1)             Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, regardless of whether such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person, but excluding Indebtedness which is extinguished, retired or repaid in connection with such Person merging with or into or becoming a Restricted Subsidiary of such specified Person; and

 

(2)             Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

“Additional Assets” means:

 

(1)             any property or assets (other than Indebtedness and Capital Stock) to be used by the Company or a Restricted Subsidiary in a Permitted Business;

 

(2)             the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or

 

 

(3)             outstanding Capital Stock of any Restricted Subsidiary held by Persons other than Affiliates; provided that all the Capital Stock of such Restricted Subsidiary held by the Company or any other Restricted Subsidiaries shall entitle the Company or such other Restricted Subsidiary to not less than a pro rata portion of all dividends or other distributions made by such Restricted Subsidiary upon any of such Capital Stock;

 

provided, however, that, in the case of clauses (2) and (3), such Restricted Subsidiary is primarily engaged in a Permitted Business.

 

“Additional Notes” means 2029 Additional Notes and 2032 Additional Notes.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.  For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.

 

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

 

“Asset Sale” means:

 

(1)             the sale, lease, conveyance or other disposition of any assets or rights by the Company or any of the Company’s Restricted Subsidiaries; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole or of all of the Equity Interests of the Issuers will be governed by Section 4.14 and/or Section 5.01 hereof and not by Section 4.10 hereof; and

 

(2)             the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the sale by the Company or any of the Company’s Restricted Subsidiaries of Equity Interests in any of the Company’s Restricted Subsidiaries (other than, in each case, directors’ qualifying shares or Equity Interests required by applicable law to be held by a Person other than the Company or any of the Company’s Restricted Subsidiaries).

 

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

 

(1)             any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $50.0 million;

 

(2)             a transfer of assets between or among the Company and its Restricted Subsidiaries;

 

(3)             an issuance or sale of Equity Interests by a Restricted Subsidiary to the Company or to a Restricted Subsidiary;

 

(4)             the sale, lease or other disposition of equipment, inventory, products, services, accounts receivable, working capital assets or other assets in the ordinary course of business (including in connection with any compromise, settlement or collection of accounts receivable), and any sale or other disposition of damaged, worn-out or obsolete assets or assets that are no longer useful in the conduct of the business of the Company and its Restricted Subsidiaries (including the abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and its Restricted Subsidiaries taken as whole);

 

 

(5)             licenses and sublicenses by the Company or any of its Restricted Subsidiaries of software or Intellectual Property in the ordinary course of business;

 

(6)             any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims of any kind;

 

(7)             the creation or perfection of a Lien not prohibited by Section 4.12 hereof, including a Permitted Lien and the exercise by any Person in whose favor a Permitted Lien is granted of any of its rights in respect of that Permitted Lien;

 

(8)             the sale or other disposition of cash or Cash Equivalents;

 

(9)             the sale or other disposition of Hedging Obligations or other financial instruments in the ordinary course of business;

 

(10)   (a) a Restricted Payment that does not violate Section 4.07 hereof, including, without limitation, the issuance or sale of Equity Interests or the sale, lease or other disposition of products, services, equipment, inventory, accounts receivable or other assets pursuant to any such Restricted Payment, or (b) the consummation of a Permitted Investment, including, without limitation, unwinding any Hedging Obligations, and including the issuance or sale of Equity Interests or the sale, lease or other disposition of products, services, equipment, inventory, accounts receivable or other assets pursuant to any such Permitted Investment;

 

(11)           the issuance, sale or other disposition of Equity Interests of an Unrestricted Subsidiary; and

 

(12)           any trade or exchange by the Company or any of its Restricted Subsidiaries of assets for properties or assets owned or held by another Person used or useful in a Permitted Business (including Capital Stock of a Person engaged primarily in a Permitted Business that is or becomes a Restricted Subsidiary); provided that (a) the assets or properties exchanged or received by the Company or any of its Restricted Subsidiaries may not include cash or Cash Equivalents except for relatively minor amounts necessary in order to achieve an exchange of equivalent value and (b) the Fair Market Value of the assets traded or exchanged by the Company or such Restricted Subsidiary (together with any cash or Cash Equivalents to be delivered by the Company or such Restricted Subsidiary) is reasonably equivalent to the Fair Market Value of the assets (together with any cash or Cash Equivalents) to be received by the Company or such Restricted Subsidiary; and provided, further, that any cash received must be applied in accordance with the provisions of Section 4.10 hereof. “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other Canadian federal or provincial law (including the debtor relief provisions of corporate statutes) or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, arrangement, reorganization or relief of debtors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.  The terms “Beneficially Owns” and “Beneficially Owned” have corresponding meanings.  For purposes of this definition, a Person shall be deemed not to Beneficially Own securities that are the subject of a stock purchase agreement, merger agreement, amalgamation agreement, arrangement agreement or similar agreement until consummation of the transactions or, as applicable, series of related transactions contemplated thereby.

 

 

“Board of Directors” means:

 

(1)             with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

(2)             with respect to a partnership, the board of directors of the general partner of the partnership;

 

(3)             with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

 

(4)             with respect to any other Person, the board or committee of such Person serving a similar function.

 

So long as the Company is organized as a limited partnership, references to its Board of Directors are to the Board of Directors of the General Partner.

 

“Borrowing Base” means the “borrowing base” under (i) the ABL Facility as in effect from time to time or (ii) any replacement thereof in the form of an asset based revolving facility; provided that a majority of the commitments thereunder shall be held by commercial banks and other financial institutions that are regulated by, or under the supervision of, the Office of the Comptroller of the Currency, and such term shall be defined in accordance with customary practices and standards for U.S. asset based revolving facilities.

 

“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or another place of payment are authorized or required by law to remain closed.

 

“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease or finance lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty. Notwithstanding the foregoing, all obligations of the Company and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP prior to January 1, 2019 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capital Lease Obligation) for purposes of this Indenture regardless of any change in GAAP on or after January 1, 2019 (or any change in the implementation in GAAP for future periods that are contemplated as of such date) that would otherwise require such obligation to be recharacterized as a Capital Lease Obligation.

 

“Capital Stock” means:

 

(1)             in the case of a corporation, corporate stock;

 

(2)             in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(3)             in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

(4)             any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, regardless of whether such debt securities include any right of participation with Capital Stock.

 

References herein to “stock,” in the case of a non-corporation, shall be deemed to include the equivalent “Capital Stock” instrument for such non-corporation.

 

 

“Cash Equivalents” means:

 

(1)             United States dollars;

 

(2)             Government Securities having maturities of not more than one year from the date of acquisition;

 

(3)             certificates of deposit, demand deposit accounts and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any lender party to the ABL Credit Agreement or with any commercial bank with commercial paper rated, on the day of such purchase, at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s;

 

(4)             marketable general obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating of “A” or better from either S&P or Moody’s;

 

(5)             repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (2), (3) or (4) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

 

(6)             commercial paper issued by any lender party to the ABL Credit Agreement, the parent corporation of any lender party to the ABL Credit Agreement or any Subsidiary of such lender’s parent corporation, and commercial paper rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s and in each case maturing within one year after the date of acquisition thereof;

 

(7)             money market funds that (A) comply with the criteria set forth in Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, (B) are rated AA by S&P and Aa by Moody’s and (C) have portfolio assets of at least $5,000,000,000; and

 

(8)             deposits in any currency available for withdrawal on demand with any commercial bank that is organized under the laws of any country in which the Company or any Restricted Subsidiary maintains its chief executive office or is engaged in a Permitted Business; provided that all such deposits are made in such accounts in the ordinary course of business.

 

“Change of Control” means the occurrence of any of the following:

 

(1)             the sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole to any “person” (as such term is used in Sections 13(d) of the Exchange Act), other than a Permitted Holder, which occurrence is followed within 60 days thereafter by a Rating Decline;

 

(2)             the adoption of a plan for the liquidation or dissolution of the Company;

 

(3)             the consummation of any transaction (including, without limitation, any merger, amalgamation or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the General Partner (or, following a conversion of the Company from a limited partnership to a corporation (and so long as the Company is not subsequently converted to a limited partnership), the Company), measured by voting power rather than number of shares, units or the like, which occurrence is followed within 60 days thereafter by a Rating Decline;

 

 

(4)             the removal of the General Partner by the limited partners of the Company in accordance with the terms of the Partnership Agreement; or

 

(5)             the Company ceases to own, directly or indirectly, all of the Equity Interests of each of the Issuers.

 

Notwithstanding the preceding, a conversion of the Company or any of its Restricted Subsidiaries from a limited partnership, corporation, limited liability company or other form of entity to a limited liability company, corporation, limited partnership or other form of entity or an exchange of all of the outstanding Equity Interests in one form of entity for Equity Interests in another form of entity or the addition of one or more holding companies or entities shall not constitute a Change of Control, so long as following such conversion or exchange the “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) who Beneficially Owned the Capital Stock of the Company immediately prior to such transactions continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity, or continue to Beneficially Own sufficient Equity Interests in such entity or its general partner, as applicable, to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity for such entity or its general partner, as applicable, and, in either case, no “person,” other than a Permitted Holder, Beneficially Owns more than 50% of the Voting Stock of such entity or its general partner, as applicable.

 

“Class B Preferred Unit,” “Class C Preferred Unit” and “Class D Preferred Unit” each have the respective meanings assigned to such term in the Partnership Agreement, as in effect on the Issue Date.

 

“Clearstream” means Clearstream Banking, S.A.

 

“Collateral” means the ABL Priority Collateral and the Notes-TLB Priority Collateral.

 

“Collateral Agent” has the meaning assigned to such term in the preamble of this Indenture.

 

“Company” has the meaning assigned to such term in the preamble of this Indenture.

 

“Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

 

(1)             an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale (together with any related provision for taxes and any related non-recurring charges relating to any premium or penalty paid, write-off of deferred financing costs or other financial recapitalization charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity), to the extent that such losses were deducted in computing such Consolidated Net Income; plus

 

(2)             provision for taxes based on income or profits (including state franchise taxes accounted for as income taxes in accordance with GAAP) of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

 

(3)             the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

 

(4)             depreciation, depletion, amortization, (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), abandonment, impairment and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, depletion, amortization, impairment and other non-cash charges or expenses were deducted in computing such Consolidated Net Income; plus

 

 

(5)             all extraordinary, unusual or non-recurring expenses, including expenses related to the Fair Market Value of contingent consideration, to the extent that such extraordinary, unusual or non-recurring expenses were deducted in computing such Consolidated Net Income; plus

 

(6)             forecasted income that is derived from MVC Contracts, less appropriate direct and indirect costs to realize such income, projected by the Company to be realized within 12 months from the date of determination (which income shall be subject to certification by management of the Company and shall be calculated on a pro forma basis as though such income had been realized on the first day of such period), net of the amount of actual benefits realized during such period; provided that such income is reasonably identifiable and factually supportable and projected by the Company in good faith; minus

 

(7)             non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

 

in each case, on a consolidated basis and determined in accordance with GAAP.

 

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP and without any reduction in respect of preferred stock dividends or distributions; provided that:

 

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

 

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

 

(3)             the net income (but not loss) of any Restricted Subsidiary of such specified Person that is not a Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, partners or members; provided, however, that the operation of this clause (3) shall be suspended with respect to any Restricted Subsidiary that is acquired by the Company or any of its Restricted Subsidiaries (regardless of whether such acquisition is effected pursuant to a merger or otherwise), but such suspension shall cease immediately after the first six months following such acquisition;

 

(4)             the cumulative effect of a change in accounting principles will be excluded;

 

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

 

 

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

 

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

 

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

 

“continuing” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.

 

“Controlling Collateral Agent” has the meaning set forth in the Notes-TLB Intercreditor Agreement.

 

“Corporate Trust Office of the Trustee” means the office of the Trustee at its address specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.

 

“Credit Facilities” means one or more debt facilities (including, without limitation, the ABL Facility and the Term Loan Facility), commercial paper facilities or secured or unsecured capital markets financings, in each case, with banks or other institutional lenders or institutional investors providing for revolving credit loans, term loans, capital market financings, private placements, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case (subject to the proviso in the definition of ABL Credit Agreement), as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including refinancing with any capital markets transaction or otherwise by means of sales of debt securities to institutional investors) in whole or in part from time to time.

 

“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

 

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

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as applicable, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

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

 

 

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

 

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

 

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

 

“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature.  Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof.  The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends or distributions.

 

“Domestic Subsidiary” means any Restricted Subsidiary that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the Company or any Restricted Subsidiary (other than a Foreign Subsidiary).

 

“Equity Interests” of any Person means Capital Stock and all warrants, options or other rights to acquire Capital Stock of such Person (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“Equity Offering” means a sale of Equity Interests of the Company (other than Disqualified Stock and other than to a Subsidiary of the Company) made for cash on a primary basis by the Company after the Issue Date.

 

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Excluded Deposit Account” means accounts that are (a) solely used for the purposes of making payments in respect of payroll, taxes and employees’ wages and benefits, (b) disbursement accounts where solely proceeds of indebtedness, including the proceeds of the loans under the ABL Credit Agreement, are deposited, (c) zero balance accounts from which balances are swept daily to a Controlled Account (as defined in the ABL Credit Agreement), (d) third-party trust accounts and (e) other accounts with funds on deposit with a daily average balance of less than $2.0 million individually and $10.0 million in the aggregate.

 

“Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Term Loan Credit Agreement, ABL Credit Agreement, the Notes or the Note Guarantees) in existence on the Issue Date, until such amounts are repaid.

 

“Existing Preferred Units” means the Class B Preferred Units, the Class C Preferred Units, and the Class D Preferred Units existing on the Issue Date.

 

 

“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company in the case of amounts of $40.0 million or more and otherwise by an officer of the General Partner (unless otherwise provided herein); provided, that, for purposes of Section 4.10(a)(2)(C) and clause (12) of the second paragraph of the definition of “Asset Sale” if the value of such Additional Assets or assets contemplated to be traded or exchanged exceeds $150.0 million, the Company shall deliver to the Trustee a copy of a written opinion as to the fairness from a financial point of view of such trade or exchange issued by a nationally recognized investment bank, appraisal firm or firm of independent public accountants.

 

“FASB ASC 815” means Financial Accounting Standards Board Accounting Standards Codification 815.

 

“FERC Subsidiary” means a Restricted Subsidiary that is subject to the regulatory jurisdiction of the Federal Energy Regulatory Commission (or any successor thereof).

 

“Finance Corp.” has the meaning assigned to such term in the preamble of this Indenture.

 

“First Lien Leverage Ratio” means, at any time of determination, the ratio of (i) the outstanding principal amount of Secured Indebtedness (other than Junior Lien Obligations) with respect to the Collateral (net of up to (i) for so long as Class D Preferred Units remain outstanding, $25.0 million cash and/or Cash Equivalents of the Company and the Restricted Subsidiaries and (ii) thereafter, $100.0 million cash and/or Cash Equivalents of the Company and the Restricted Subsidiaries) as of the end of the Trailing Four Quarters, to (ii) the Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such Trailing Four Quarters; provided that such First Lien Leverage Ratio shall be determined on a pro forma basis in a manner consistent with the definition of Fixed Charge Coverage Ratio.

 

“Fitch” means Fitch Ratings, Inc. or any successor to the ratings business thereof.

 

“Fixed Charge Coverage Ratio” means with respect to any specified Person for any Trailing Four Quarter Period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period.  In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the Trailing Four Quarter Period. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the average rate in effect from the beginning of such period to the Calculation Date had been the applicable rate for the entire period (taking into account any interest Hedging Obligation applicable to such Indebtedness, but if the remaining term of such interest Hedging Obligation is less than twelve months, then such interest Hedging Obligation shall only be taken into account for that portion of the period equal to the remaining term thereof).  If any Indebtedness that is being given pro forma effect bears an interest rate at the option of such Person, the interest rate shall be calculated by applying such option rate chosen by such Person.  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as such Person may designate.

 

Notwithstanding anything to the contrary herein with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Indenture under a restrictive covenant that does not require compliance with a financial ratio or test (including, without limitation, any First Lien Leverage Ratio test, Secured Leverage Ratio test, any Fixed Charge Coverage Ratio test and any Total Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Indenture that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence Based Amounts in connection with such substantially concurrent incurrence. Each amount incurred or transaction entered into (or consummated) will be deemed to have been incurred or entered into (or consummated) first, to the extent available, as an Incurrence Based Amount pursuant to the applicable financial ratio or test.

 

 

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

 

(1)                acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers, amalgamations, consolidations or otherwise (including acquisitions of assets used or useful in a Permitted Business), or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries, during the Trailing Four Quarter Period or subsequent to such reference period and on or prior to the Calculation Date, will be given pro forma effect as if they had occurred on the first day of the Trailing Four Quarter Period;

 

(2)                the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;

 

(3)                the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

 

(4)                any Person that is a Restricted Subsidiary of the specified Person on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such Trailing Four Quarter Period;

 

(5)                any Person that is not a Restricted Subsidiary of the specified Person on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such Trailing Four Quarter Period; and

 

(6)                interest income reasonably anticipated by such Person to be received during the Trailing Four Quarter Period from cash or Cash Equivalents held by such Person or any Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on the Calculation Date or will exist as a result of the transaction giving rise to the need to calculate the Fixed Charge Coverage Ratio, will be included.

 

For purposes of this definition, whenever pro forma effect is to be given to any calculation under this definition, the pro forma calculations will be determined in good faith by a responsible financial or accounting officer of such Person, which determination shall be conclusive for all purposes under this Indenture; provided that such officer may in such officer’s discretion include any reasonably identifiable and factually supportable pro forma changes to Consolidated Cash Flow or Fixed Charges, including any pro forma expense and cost reductions or synergies that have occurred or are reasonably expected to occur within the 12 months immediately following the Calculation Date and are either (i) prepared and calculated in accordance with Regulation S-X under the Securities Act or (ii) set forth in an Officers’ Certificate signed by the chief financial officer of such Person that states (a) the amount of each such adjustment and (b) that such adjustments are based on the reasonable good faith belief of the chief financial officer executing such Officers’ Certificate at the time of such execution and the factual basis on which such good faith belief is based.

 

 

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

 

(1)                the consolidated interest expense (less interest income) of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (excluding write-off of deferred financing costs and accretion of interest charges on future retirement benefits and other obligations that do not constitute Indebtedness, but including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings), and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus

 

(2)                the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

 

(3)                any interest on Indebtedness of another Person that is guaranteed by the specified Person or one or more of its Restricted Subsidiaries or secured by a Lien on assets of such specified Person or one or more of its Restricted Subsidiaries, regardless of whether such Guarantee or Lien is called upon; plus

 

(4)                all dividends (in the case of a partnership or limited liability company, quarterly or other periodic distributions equivalent to a dividend) paid in cash in the applicable Trailing Four Quarter Period on any series of preferred stock of such Person or any of its Restricted Subsidiaries which dividends or distributions had accrued during such Trailing Four Quarter Period, other than dividends or distributions on Equity Interests paid or payable or determined by the Board to be paid in Equity Interests of such Person (other than Disqualified Stock) or to such Person or a Restricted Subsidiary of such Person, in each case, determined on a consolidated basis in accordance with GAAP.

 

“Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.

 

“GAAP” means generally accepted accounting principles in the United States, that are in effect from time to time.  All ratios and computations based on GAAP contained in this Indenture will be computed in conformity with GAAP.  At any time after the Issue Date, the Company may elect to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP.  The Company shall give notice of any such election made in accordance with this definition to the Trustee and the Holders of Notes.

 

“General Partner” means NGL Energy Holdings LLC, a Delaware limited liability company, and its successors and permitted assigns as the general partner of the Company; provided that, following a conversion of the Company from a limited partnership to a corporation (and so long as the Company is not subsequently converted to a limited partnership), all references to “General Partner” herein shall be to the Company.

 

“Global Note Legend” means the legend set forth in Section 2.06(f)(2) hereof, which is required to be placed on all Global Notes issued under this Indenture.

 

“Global Notes” means, individually and collectively, each of the Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A-1 or Exhibit A-2, as applicable, hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, Section 2.06(b)(3), Section 2.06(b)(4), Section 2.06(d)(2), Section 2.06(d)(3) or Section 2.06(f) hereof.

 

“Government Securities” means direct obligations of, or obligations Guaranteed by, the United States of America, or any agency or instrumentality thereof, in each case for which the full faith and credit of the United States is pledged or the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States.

 

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

 

 

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

 

“Grantors” means, collectively, the Issuers and the Guarantors.

 

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise). When used as a verb, “Guarantee” has a correlative meaning.

 

“Guarantors” means any of: (1) the Company, (2) the Restricted Subsidiaries of the Company executing this Indenture as initial Subsidiary Guarantors; and (3) the Restricted Subsidiaries of the Company that become Subsidiary Guarantors in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person (other than the Company) has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

 

(1)                interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements, interest rate collar agreements or other agreements or arrangements designed to manage interest rates or interest rate risk;

 

(2)                any commodity futures contract, commodity option or other similar agreement or arrangement designed to protect such Person against fluctuations in the price of Hydrocarbons used, produced, processed or sold; and

 

(3)                foreign exchange contracts, currency protection agreements or other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates.

 

“Holder” means a Person in whose name a Note is registered and shall, if the Holder is DTC or its nominee, mean and include the beneficial owner of the Notes where appropriate in context.

 

“Hydrocarbons” means oil, natural gas, casing head gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or compounds thereof and products refined or processed therefrom.

 

“IAI Global Note” means a Global Note substantially in the form of Exhibit A-1 or Exhibit A-2, as applicable, hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.

 

“Indebtedness” means, with respect to any specified Person, without duplication, any indebtedness of such Person, regardless of whether contingent:

 

(1)                in respect of borrowed money;

 

(2)                evidenced by or issued in exchange for bonds, notes, credit agreements, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) (but excluding obligations with respect to letters of credit securing obligations (other than obligations with respect to borrowed money) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than 30 days following receipt by such Person of a demand for reimbursement following payment on the letter of credit);

 

 

(3)                in respect of bankers’ acceptances;

 

(4)                representing Capital Lease Obligations;

 

(5)                representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed; or

 

(6)                representing any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.  In addition, the term “Indebtedness” includes (a) all Indebtedness of others secured by a Lien on any asset of the specified Person (regardless of whether such Indebtedness is assumed by the specified Person); provided, that the amount of such Indebtedness will be the lesser of (i) the Fair Market Value of such asset at such date of determination and (ii) the amount of such Indebtedness of such other Person, and (b) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving effect to the effects of FASB ASC 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

 

The amount of any Indebtedness outstanding as of any date will be:

 

(1)                the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

 

(2)                in the case of any Hedging Obligation, the termination value of the agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such date;

 

(3)                in the case of any letter of credit, the face amount thereof;

 

(4)                the principal amount of the Indebtedness, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness; and

 

(5)                in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

 

    (A)               the Fair Market Value of such assets at the date of determination; and

 

    (B)               the amount of the Indebtedness of the other Person.

 

Notwithstanding the foregoing, the following shall not constitute “Indebtedness:”

 

         (i)                  accrued expenses and trade accounts payable arising in the ordinary course of business;

 

         (ii)                any indebtedness that has been defeased in accordance with GAAP or defeased or discharged pursuant to the deposit of cash or Government Securities (in an amount sufficient to satisfy all such indebtedness obligations at maturity or redemption, as applicable, and all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such indebtedness, and subject to no other Liens, and the other applicable terms of the instrument governing such indebtedness;

 

         (iii)              Hydrocarbon balancing liabilities incurred in the ordinary course of business;

 

 

         (iv)               any unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of the FASB ASC 815);

 

         (v)               any obligations in respect of (a) bid, performance, completion, surety, appeal and similar bonds, (b) bankers’ acceptances, (c) workers’ compensation claims, health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation and statutory obligations and (d) any Guarantees or standby letters of credit functioning as or supporting any of the foregoing bonds or obligations, to the extent not drawn; provided, however, that such bonds or obligations mentioned in subclause (a), (b), (c) or (d) of this clause (v) are incurred in the ordinary course of the business of the Company and its Restricted Subsidiaries and do not relate to obligations for borrowed money;

 

        (vi)               any obligation arising from any agreement providing for indemnities, guarantees, purchase price adjustments, holdbacks, earnouts, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than Guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of any business, assets or Capital Stock;

 

        (vii)               any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such obligation is extinguished within five Business Days of its incurrence;

 

        (viii)             any Treasury Management Arrangement;

 

        (ix)               any obligation arising out of advances on trade receivables, factoring of receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice; and

 

        (x)                all contracts and other obligations, agreements, instruments or arrangements described in clauses (16), (26), and (27) of the definition of “Permitted Liens.”

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

“Initial Notes” means the 2029 Initial Notes and the 2032 Initial Notes.

 

“Insolvency or Liquidation Proceeding” means:

 

(1)                any voluntary or involuntary case or proceeding under any Bankruptcy Law with respect to any Issuer or any Guarantor;

 

(2)                any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Issuer or any Guarantor or with respect to a material portion of their respective assets;

 

(3)                any liquidation, dissolution, reorganization or winding up of any Issuer or any Guarantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or

 

(4)                any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Issuer or any Guarantor.

 

 

“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.

 

“Intellectual Property” means all U.S. and foreign (a) patents, patent applications, patent disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof (“Patents”), (b) trademarks, service marks, trade names, domain names, logos, slogans, trade dress, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (“Trademarks”), (c) copyrights and copyrightable subject matter (“Copyrights”), (d) rights of publicity, (e) moral rights and rights of attribution and integrity, (f) computer programs (whether in source code, object code, or other form), databases, compilations and data, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing,(g) trade secrets and all confidential information, know-how, inventions, proprietary processes, formulae, models, and methodologies, (h) all rights in the foregoing and in other similar intangible assets, (i) all applications and registrations for the foregoing, and (j) all rights and remedies against infringement, misappropriation, or other violation thereof.

 

“Intercreditor Agreements” means, collectively, the ABL Intercreditor Agreement and the Notes-TLB Intercreditor Agreement.

 

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.

 

“Investment Grade Rating” means a rating equal to or higher than:

 

(1)                Baa3 (or the equivalent) by Moody’s;

 

(2)                BBB- (or the equivalent) by S&P; or

 

(3)                BBB- (or the equivalent) by Fitch,

 

or, if any such Rating Agency ceases to rate the Notes of the applicable series for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other Rating Agency.

 

“Investment Grade Rating Event” means, with respect to a series of Notes, the first day on which (a) the Notes of such series have an Investment Grade Rating from at least two Rating Agencies, (b) no Default or Event of Default with respect to the Notes of such series has occurred and is then continuing under this Indenture and (c) the Company has delivered to the Trustee an Officers’ Certificate certifying as to the satisfaction of the conditions set forth in clauses (a) and (b) of this definition.

 

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding (1) endorsements of negotiable instruments and documents in the ordinary course of business, and commission, travel and similar advances to officers, employees and consultants made in the ordinary course of business and (2) advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the Person making the advance), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities (excluding any interest in an oil or natural gas leasehold to the extent constituting a security under applicable law), together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.  If the Company or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition in an amount equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.07(c) hereof.  The acquisition by the Company or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in Section 4.07(c) hereof. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value or write-ups, write-downs or write-offs with respect to such Investment.

 

 

“Issue Date” means February 2, 2024.

 

“Issuers” has the meaning assigned to such term in the preamble of this Indenture, together with their successors and assigns.

 

“Joint Venture” means any Person that is not a direct or indirect Subsidiary of the Company in which the Company or any of its Restricted Subsidiaries makes any Investment.

 

“Junior Lien” means a Lien, junior to the Liens on the Collateral securing both any ABL Obligations and Notes-TLB Obligations pursuant to the Junior Lien Intercreditor Agreement, granted by the Issuer or any Guarantor to secure Junior Lien Obligations.

 

“Junior Lien Documents” means, collectively, any indenture, note, security document and each of the other agreements, documents and instruments providing for or evidencing any Junior Lien Obligations, and any other document or instrument executed or delivered at any time in connection with any Junior Lien Obligations, to the extent such are effective at the relevant time, in each case as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Junior Lien Obligations.

 

“Junior Lien Indebtedness” means any Indebtedness (other than intercompany Indebtedness owing to an Issuer or its Affiliates) of any Issuer or any Guarantor (including any Permitted Refinancing Indebtedness in respect thereof) that is secured by a Junior Lien pursuant to a Permitted Lien described under clause (1) of the definition thereof; provided that, in the case of any Indebtedness referred to in this definition:

 

(1)                such Indebtedness does not mature and does not have any mandatory or scheduled payments or sinking fund obligations prior to the maturity date of the Notes (except as a result of a customary change of control or asset sale repurchase offer provisions);

 

(2)                on or before the date on which the first such Indebtedness is incurred by any Issuer or any Guarantor, the Company shall deliver to each Secured Representative complete copies of each applicable Junior Lien Document (which shall provide that each secured party with respect to such Indebtedness shall be subject to and bound by the Junior Lien Intercreditor Agreement), along with an Officers’ Certificate certifying as to such Junior Lien Documents and identifying the obligations constituting Junior Lien Obligations;

 

(3)                on or before the date on which any such Indebtedness is incurred by any Issuer or any Guarantor, such Indebtedness is designated by the Company, in an Officers’ Certificate delivered to the Junior Lien Representative and each Secured Representative, as “Junior Lien Obligations” hereunder;

 

(4)                a Junior Lien Representative is designated with respect to such Indebtedness and executes and delivers the Junior Lien Intercreditor Agreement (including, as applicable, a joinder thereto) on behalf of itself and all holders of such Indebtedness; and

 

(5)                all other requirements set forth in the Junior Lien Intercreditor Agreement as to the confirmation, grant or perfection of the Liens of the holders of Junior Lien Obligations to secure such Indebtedness or Obligations in respect thereof are satisfied.

 

 

“Junior Lien Intercreditor Agreement” means an intercreditor agreement which subordinates the Lien on the Collateral of the holders of the Junior Lien Obligations to the Lien on the Collateral of each of the holders of ABL Obligations and Pari Passu ABL Obligations and the holders of the Notes-TLB Obligations and the terms of which are consistent with market terms (in the view of the ABL Collateral Agent or, if the ABL Collateral Agent has been replaced, any other agent for the holders of ABL Obligations) governing security arrangements for the subordination and sharing of Liens or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.

 

“Junior Lien Obligations” means Junior Lien Indebtedness and all other Obligations in respect thereof.

 

“Junior Lien Representative” means in the case of any series of Junior Lien Obligations, the trustee, agent or representative of the holders of such series of Junior Lien Obligations who is appointed as a representative of the Junior Lien Obligations (for purposes related to the administration of security interests) pursuant to the applicable Junior Lien Document governing such series of Junior Lien Obligations, together with its successors and assigns in such capacity.

 

“Leasehold Property” means any leasehold interest of any Issuer or any Guarantor as lessee under any lease of a Real Property Asset.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest or encumbrance of any kind in respect of such asset, regardless of whether filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the UCC or PPSA (or equivalent statutes) of any jurisdiction other than a precautionary financing statement respecting a lease not intended as a security agreement.

 

“Limited Condition Transaction” means any (i) Investment, acquisition (whether by merger, consolidation, amalgamation or otherwise), sale or disposition whose consummation is not conditioned on the availability or, or on obtaining, third-party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or preferred stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.

 

“Material Real Property Asset” means (a) any (x) Grand Mesa Asset and (y) Delaware Asset, in each case, with a Designated Value in excess of $1.0 million and (b) any other Real Property Asset of any Issuer or any Guarantor that is located in the United States and has a Designated Value equal to or greater than $10.0 million as of the Issue Date or as of the date of acquisition thereof, excluding in the case of this subsection (b):

 

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

 

(2)                any other Real Property Asset or Real Property Assets identified by Issuer or Guarantor, if the aggregate Designated Value of such Real Property Asset(s), together with the Designated Value of any Real Property Asset(s) the subject of subsection (1) above, does not exceed the greater of $250.0 million and 2.5% of the Total Assets of the Company.

 

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

 

“MVC Contract” means any minimum volume contract or other revenue contract of Operating LLC or any of its Subsidiaries, the duration of which is at least 12 months, that features a fixed fee that automatically steps up on a date certain notwithstanding any change in volumes or other conditions.

 

 

“Net Proceeds” means the aggregate amount of cash proceeds and Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale, but excluding any non-cash consideration deemed to be cash for purposes of Section 4.10 hereof), net of:

 

(1)                the direct costs relating to such Asset Sale, including, without limitation, all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expense incurred, and all federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP (after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Sale;

 

(2)                all payments made on any Indebtedness that is secured by any assets subject to such Asset Sale, in accordance with the terms of such Indebtedness, or that must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law be repaid out of the proceeds from such Asset Sale;

 

(3)                all distributions and other payments required to be made to holders of minority interests in Subsidiaries or Joint Ventures as a result of such Asset Sale; and

 

(4)                the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, or held in escrow, in either case for as long as required to be held as reserve or in escrow for adjustment in respect of the sale price or for indemnification or any liabilities associated with the assets disposed of in such Asset Sale and retained by the Company or any Restricted Subsidiary after such Asset Sale.

 

“Non-Recourse Debt” means Indebtedness:

 

(1)                as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise, in each case of clause (a) and (b) above, except for Customary Recourse Exceptions; and

 

(2)                as to which the lenders have been notified in writing that they will not have any recourse to the Capital Stock or assets of the Company or any of its Restricted Subsidiaries (other than the Equity Interests of any Unrestricted Subsidiary or Joint Venture), except for Customary Recourse Exceptions.

 

“Non-U.S. Person” means a Person who is not a U.S. Person.

 

“Note Guarantees” means, with respect to a series of Notes, any Guarantee of the Issuers’ obligations under this Indenture and the Notes of such series by any Guarantor in accordance with the provisions of this Indenture.

 

“Notes Obligations” means the 2029 Notes Obligations and the 2032 Notes Obligations.

 

“Notes” means the 2029 Notes and the 2032 Notes.

 

“Notes Documents” means this Indenture, the Notes, the Note Guarantees, the Security Documents and any other document related to the issuance of the Notes, as may be amended or supplemented from time to time.

 

“Notes-TLB Intercreditor Agreement” means the intercreditor agreement dated as of the Issue Date among the Term Loan Collateral Agent, the Collateral Agent, the Real Property Collateral Agent, the Issuers and the Guarantors in respect of the Notes-TLB Obligations and any future Pari Passu Notes-TLB Obligations, as amended or supplemented from time to time.

 

“Notes-TLB Priority Collateral” has the meaning given to it in the ABL Intercreditor Agreement.

 

 

“Notes-TLB Obligations” means, subject to the terms and conditions in the Intercreditor Agreements, (i) all Notes Obligations, (ii) all Term Loan Obligations and (iii) all Pari Passu Notes-TLB Obligations.

 

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

“Offering Memorandum” means the offering memorandum dated January 25, 2024, related to the Notes.

 

“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person (or, with respect to the Company, so long as it remains a partnership, the General Partner).

 

“Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company or two Officers of the General Partner, one of whom must be the principal executive officer, the principal financial officer or the principal accounting officer of such Person, that meets the requirements of this Indenture pertaining to such certificates.

 

“Operating Surplus” has the meaning assigned to such term in the Partnership Agreement, as in effect on the Issue Date; provided that, for the avoidance of doubt, for purposes of any calculation pursuant to this Indenture, Operating Surplus shall be zero as of the day immediately prior to the first day of the first quarter in which the Issue Date occurs and exclude any amounts attributable to Operating Surplus prior to the first day of the first quarter in which the Issue Date occurs. For the avoidance of doubt, when used with reference to a fiscal quarter or other period, such reference shall mean the Operating Surplus calculated through and including the last day of such period.

 

“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.  The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.

 

“Pari Passu ABL Lien Indebtedness” means any Indebtedness that is permitted to have Pari Passu Lien Priority relative to the ABL Obligations with respect to the Collateral and is not secured by any other assets; provided that, in each case, an authorized representative of the holders of such Indebtedness shall have executed a joinder to the ABL Intercreditor Agreement in the form provided therein.

 

“Pari Passu ABL Obligations” means Pari Passu ABL Lien Indebtedness and all other Obligations in respect thereof.

 

“Pari Passu Indebtedness” means any Indebtedness of the Issuer or any Guarantor that is not Subordinated Debt.

 

“Pari Passu Lien Priority” means relative to specified Indebtedness and other obligations having equal Lien priority to (i) the Notes-TLB Obligations on the Collateral or (ii) the ABL Obligations on the Collateral.

 

“Pari Passu Notes-TLB Indebtedness” means any Additional Notes, additional Term Loan Obligations and any other Indebtedness that has a Stated Maturity date that is equal to or longer than the Stated Maturity date of any Notes-TLB Obligations that is permitted to have Pari Passu Lien Priority relative to the Notes-TLB Obligations with respect to the Collateral and is not secured by any other assets; provided that, in each case, an authorized representative of the holders of such Indebtedness (other than any Additional Notes) shall have executed a joinder to the Intercreditor Agreements in the form provided therein.

 

“Pari Passu Notes-TLB Obligations” means Pari Passu Notes-TLB Indebtedness and all other Obligations in respect thereof.

 

 

“Pari Passu Second Lien” means a Lien having equal priority to (i) the Lien securing the Notes-TLB Obligations on the ABL Priority Collateral and (ii) the Lien securing the ABL Obligations on the Notes-TLB Priority Collateral pursuant to the Pari Passu Second Lien Intercreditor Agreement, granted by the Issuers or any Guarantor to secure Pari Passu Second Lien Obligations.

 

“Pari Passu Second Lien Documents” means, collectively, any indenture, note, security document and each of the other agreements, documents and instruments providing for or evidencing any Pari Passu Second Lien Obligations, and any other document or instrument executed or delivered at any time in connection with any Pari Passu Second Lien Obligations, to the extent such are effective at the relevant time, in each case as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Pari Passu Second Lien Obligations.

 

“Pari Passu Second Lien Indebtedness” means any Indebtedness (other than intercompany Indebtedness owing to an Issuer or its affiliates) of any Issuer or any Guarantor (including any Permitted Refinancing Indebtedness in respect thereof) that is secured by a Pari Passu Second Lien pursuant to a Permitted Lien described under clause (1) of the definition thereof; provided that, in the case of any Indebtedness referred to in this definition:

 

(1)                such Indebtedness does not mature and does not have any mandatory or scheduled payments or sinking fund obligations prior to the maturity date of the Notes (except as a result of a customary change of control or asset sale repurchase offer provisions);

 

(2)                on or before the date on which the first such Indebtedness is incurred by any Issuer or any Guarantor, the Company shall deliver to each Secured Representative complete copies of each applicable Pari Passu Second Lien Document (which shall provide that each secured party with respect to such Indebtedness shall be subject to and bound by the Pari Passu Second Lien Intercreditor Agreement), along with an Officers’ Certificate certifying as to such Pari Passu Second Lien Documents and identifying the obligations constituting Pari Passu Second Lien Obligations;

 

(3)                on or before the date on which any such Indebtedness is incurred by any Issuer or any Guarantor, such Indebtedness is designated by the Company, in an Officers’ Certificate delivered to the Pari Passu Second Lien Representative and each Secured Representative, as “Pari Passu Second Lien” hereunder;

 

(4)                a Pari Passu Second Lien Representative is designated with respect to such Indebtedness and executes and delivers the Pari Passu Second Lien Intercreditor Agreement (including, as applicable, a joinder thereto) on behalf of itself and all holders of such Indebtedness; and

 

(5)                all other requirements set forth in the Pari Passu Second Lien Intercreditor Agreement as to the confirmation, grant or perfection of the Liens of the holders of Pari Passu Second Lien Obligations to secure such Indebtedness or Obligations in respect thereof are satisfied.

 

“Pari Passu Second Lien Intercreditor Agreement” means an intercreditor agreement which subordinates the Lien on the Collateral of the holders of the Pari Passu Second Lien Obligations to (i) the Lien on the ABL Priority Collateral of each of the holders of ABL Obligations and Pari Passu ABL Obligations and (ii) the Lien on the Notes-TLB Priority Collateral of the holders of the Notes-TLB Obligations and the terms of which are consistent with market terms (in the view of the ABL Collateral Agent or, if the ABL Collateral Agent has been replaced, any other agent for the holders of ABL Obligations) governing security arrangements for the subordination and sharing of Liens or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.

 

“Pari Passu Second Lien Obligations” means Pari Passu Second Lien Indebtedness and all other Obligations in respect thereof.

 

 

“Pari Passu Second Lien Representative” means in the case of any series of Pari Passu Second Lien Obligations, the trustee, agent or representative of the holders of such series of Pari Passu Second Lien Obligations who is appointed as a representative of the Pari Passu Second Lien Obligations (for purposes related to the administration of security interests) pursuant to the applicable Pari Passu Second Lien Document governing such series of Pari Passu Second Lien Obligations, together with its successors and assigns in such capacity.

 

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

 

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

 

“Permitted Acquisition Indebtedness” means Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries to the extent such Indebtedness or Disqualified Stock was Indebtedness or Disqualified Stock of:

 

(1)                a Subsidiary prior to the date on which such Subsidiary became a Restricted Subsidiary; or

 

(2)                a Person that was merged, amalgamated or consolidated into the Company or a Restricted Subsidiary;

 

provided that on the date such Subsidiary became a Restricted Subsidiary or the date such Person was merged, amalgamated and consolidated into the Company or a Restricted Subsidiary, as applicable, after giving pro forma effect thereto and to any related financing transaction as if the same had occurred at the beginning of the Trailing Four Quarter Period:

 

   (A)               the Restricted Subsidiary or the Company, as applicable, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09 hereof; or

 

   (B)               the Fixed Charge Coverage Ratio for the Restricted Subsidiary or the Company, as applicable, would be equal to or greater than the Fixed Charge Coverage Ratio for such Restricted Subsidiary or the Company immediately prior to such transaction.

 

“Permitted Business” means either (a) gathering, transporting, compressing, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, including water treatment, disposal and transportation, and entering into Hedging Obligations relating to any of the foregoing activities, or (b) any other business that generates gross income at least 90% of which constitutes “qualifying income” under Section 7704(d) of the Internal Revenue Code.

 

“Permitted Business Investments” means Investments by the Company or any of its Restricted Subsidiaries in any Unrestricted Subsidiary or in any Joint Venture; provided that:

 

(1)                if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b) any such Indebtedness of such Unrestricted Subsidiary or Joint Venture that is recourse to the Company or any of its Restricted Subsidiaries (which shall include, without limitation, all Indebtedness of such Unrestricted Subsidiary or Joint Venture for which the Company or any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise, obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to any guarantee, including, without limitation, any “claw-back,” “make-well” or “keep-well” arrangement) could, at the time such Investment is made, be incurred at that time by the Company and its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and

 

 

(2)                such Unrestricted Subsidiary’s or Joint Venture’s activities are not outside the scope of the Permitted Business.

 

“Permitted Holder” means: (i) any of Coady Enterprises, LLC, Shawn W. Coady, Thorndike, LLC, Todd M. Coady, KrimGP2010, LLC, H. Michael Krimbill, NGL Energy GP LLC and EMG II NGL GP Holdings, LLC; (ii) any spouse, lineal descendant, legal guardian or other legal representative or estate of any of the Persons described in the preceding clause (i); (iii) any trust of which at least one of the trustees is any of the Persons described in the preceding clauses (i) or (ii); and (iv) any other Person that is controlled directly or indirectly by any one or more of the Persons described in the preceding clauses (i) through (iii).

 

“Permitted Investments” means:

 

(1)                any Investment in the Company or in a Restricted Subsidiary;

 

(2)                any Investment in Cash Equivalents;

 

(3)                any Investment by the Company or any Restricted Subsidiary in a Person, if as a result of such Investment:

 

     (A)               such Person becomes a Restricted Subsidiary; or

 

     (B)               such Person is merged, consolidated or amalgamated with or into, or is otherwise acquired by, or transfers or conveys substantially all of its assets to, or is liquidated or wound-up into, the Company or a Restricted Subsidiary;

 

(4)                any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;

 

(5)                any Investment in a Person to the extent in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

 

(6)                any Investment received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or as a result of a foreclosure by, or other transfer of title to, the Company or any of its Restricted Subsidiaries with respect to any secured investment in default; or (b) litigation, arbitration or other disputes;

 

(7)                Investments represented by Hedging Obligations;

 

(8)                Investments in any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other deposits made in the ordinary course of business by the Company or any of its Restricted Subsidiaries;

 

(9)                advances to or reimbursements of employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;

 

(10)             loans or advances to officers, directors or employees made in the ordinary course of business of the General Partner, the Company or any Restricted Subsidiary in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;

 

 

(11)             repurchases of the Notes of any series and the Note Guarantees;

 

(12)             advances and prepayments for asset purchases in the ordinary course of business in a Permitted Business of the Company or any of its Restricted Subsidiaries;

 

(13)             receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances;

 

(14)             any Guarantee of Indebtedness permitted to be incurred by Section 4.09 hereof other than a guarantee of Indebtedness of an Affiliate of the Company that is not a Restricted Subsidiary;

 

(15)             any Investment existing on, or made pursuant to binding commitments existing on, the Issue Date and any Investment consisting of an extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the Issue Date; provided that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted under this Indenture;

 

(16)             surety and performance bonds and workers’ compensation, utility, lease, tax, performance and similar deposits and prepaid expenses in the ordinary course of business;

 

(17)             guarantees by the Company or any of its Restricted Subsidiaries of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any such Restricted Subsidiary in the ordinary course of business;

 

(18)             Permitted Business Investments having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (18) that are at the time outstanding, that do not exceed the greater of (a) $200.0 million and (b) 3.75% of the Total Assets of the Company;

 

(19)             Investments received as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment in default;

 

(20)             Investments acquired after the Issue Date as a result of the acquisition by the Company or any Restricted Subsidiary of another Person, including by way of a merger, amalgamation or consolidation with or into the Company or any of its Restricted Subsidiaries, or all or substantially all of the assets of another Person, in each case, in a transaction that is not prohibited by Section 5.01(a) hereof after the Issue Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; and

 

(21)             other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (21) that are at the time outstanding, that do not exceed the greater of (a) $200.0 million and (b) 3.75% of the Total Assets of the Company; provided, however, that if any Investment pursuant to this clause (21) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21) for so long as such Person continues to be a Restricted Subsidiary.

 

 

“Permitted Liens” means, with respect to any Person:

 

(1)                Liens securing Indebtedness incurred under Credit Facilities (including the ABL Facility, the Term Loan Facility and the Notes (other than any Additional Notes), the Note Guarantees (other than in respect of any Additional Notes) and other obligations under this Indenture (other than in respect of any Additional Notes)) that is permitted to be incurred pursuant to clause (1) of the definition of Permitted Debt in Section 4.09; provided that such Indebtedness secured by Liens pursuant to clause (1)(II) of such definition may be Pari Passu Notes-TLB Obligations (including Additional Notes), Pari Passu Second Lien Obligations or Junior Lien Obligations;

 

(2)                Liens securing Indebtedness of Foreign Subsidiaries that is permitted to be incurred pursuant to clause (13) of the definition of Permitted Debt in Section 4.09(b) hereof;

 

(3)                Liens to secure Hedging Obligations and/or Obligations with respect to Treasury Management Arrangements incurred in the ordinary course of business;

 

(4)                Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or amalgamated with or consolidated with the Company or any Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such Person becoming a Restricted Subsidiary or such merger, amalgamation or consolidation and do not extend to any assets (other than improvements thereon, accessions thereto and proceeds thereof) other than those of the Person that becomes a Restricted Subsidiary or is merged with or into or amalgamated with or consolidated with the Company or any Restricted Subsidiary;

 

(5)                Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or a Restricted Subsidiary; provided that such Liens were in existence prior to such acquisition and not incurred in contemplation of, such acquisition;

 

(6)                Liens, pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits or cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business;

 

(7)                carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations which do not, individually or in the aggregate, materially impair the use of any of the assets or properties of the Company or any Restricted Subsidiary or which are not overdue by more than 30 days or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or such Restricted Subsidiary, as the case may be, in accordance with GAAP;

 

(8)                Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (3) of the definition of Permitted Debt in Section 4.09(b) hereof covering only the assets acquired with or financed by such Indebtedness;

 

(9)                Liens to secure Indebtedness of Restricted Subsidiaries that are not Guarantors permitted under Section 4.09 hereof; provided that such Liens may not extend to any property or assets of the Company or any Guarantor other than the Capital Stock of any non-Guarantor Restricted Subsidiaries;

 

(10)             (i) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by the Company or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint Venture and (ii) any restriction or encumbrance (including customary rights of first refusal and tag, drag and similar rights) with respect to the pledge or transfer of Equity Interests of (x) any Unrestricted Subsidiary, (y) any Subsidiary that is not a wholly owned Subsidiary or (z) the Equity Interests in any Person that is not a Subsidiary;

 

 

(11)             Liens on any asset or property acquired, constructed or improved by the Company or any of its Restricted Subsidiaries; provided that (a) such Liens are in favor of the seller of such asset or property, in favor of the Person or Persons developing, constructing, repairing or improving such asset or property, or in favor of the Person or Persons that provided the funding for the acquisition, development, construction, repair or improvement cost, as the case may be, of such asset or property, (b) such Liens are created within 360 days after the acquisition, development, construction, repair or improvement, (c) the aggregate principal amount of the Indebtedness secured by such Liens is otherwise permitted to be incurred under this Indenture and does not exceed the greater of (i) the cost of the asset or property so acquired, constructed or improved plus related financing costs and (ii) the Fair Market Value of the asset or property so acquired, constructed or improved, measured at the date of such acquisition, or the date of completion of such construction or improvement, and (d) such Liens are limited to the asset or property so acquired, constructed or improved (including the proceeds thereof, accessions thereto, upgrades thereof and improvements thereto);

 

(12)             Liens existing on the Issue Date (for the avoidance of doubt, excluding Liens securing Indebtedness incurred under the ABL Facility, the Notes and the Note Guarantees and the Term Loan Facility on the Issue Date);

 

(13)             Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

 

(14)             Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’ Liens, in each case, incurred in the ordinary course of business;

 

(15)             survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, leases and subleases of real property, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of the Company and its Restricted Subsidiaries, considered as a single enterprise;

 

(16)             Liens on pipelines or pipeline facilities that arise by operation of law;

 

(17)             Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture and which Refinances Secured Indebtedness; provided, however, that the new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof);

 

(18)             Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;

 

(19)             filing of UCC or PPSA financing statements as a precautionary measure in connection with operating leases;

 

(20)             bankers’ Liens, rights of setoff, Liens arising out of judgments, attachments or awards not constituting an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;

 

 

(21)             Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;

 

(22)             Liens on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(23)             grants of software and other technology licenses in the ordinary course of business;

 

(24)             Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

 

(25)             Liens in favor of the Issuers or any of the Guarantors;

 

(26)             Liens arising under operating agreements, joint venture agreements, partnership agreements, construction agreements, oil and gas leases, farmout agreements, division orders, agreements for the purchase, gathering, processing, treatment, sale, transportation or exchange of Hydrocarbons, unitization and pooling designations, declarations, orders and agreements, development agreements, participating agreements, area of mutual interest agreements, gas balancing agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, and other agreements arising in the ordinary course of the Company’s or any of its Restricted Subsidiaries’ business that are customary in the Permitted Business;

 

(27)             Liens on, or related to, properties or assets to secure all or part of the costs incurred in the ordinary course of a Permitted Business for gathering, transporting, compressing, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, including entering into Hedging Obligations to support these businesses and the development, manufacture or sale of equipment or technology related to these activities;

 

(28)             Liens arising solely by virtue of any statutory or common law provisions relating to bankers’ Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained or deposited with a depositary institution; provided that:

 

   (A)               such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board; and

 

   (B)               such deposit account is not intended by the Company or any Restricted Subsidiary to provide collateral to the depository institution;

 

(29)             Liens arising from UCC or PPSA financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

 

(30)             Liens arising under this Indenture in favor of the Trustee under this Indenture for its own benefit and similar Liens in favor of other trustees, agents and representatives arising under instruments governing Indebtedness permitted to be incurred under this Indenture; provided that such Liens are solely for the benefit of the trustees, agents or representatives in their capacities as such and not for the benefit of the holders of the Indebtedness;

 

(31)             any leases or non-exclusive licenses of any Intellectual Property or intangible assets or entering into any franchise agreement, in each case, in the ordinary course of business;

 

(32)             ground leases in respect of real property on which facilities owned or leased by the Company or any of its Restricted Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Company or any Restricted Subsidiary;

 

 

(33)             other Liens with respect to obligations at any one time outstanding not to exceed the greater of (a) $150.0 million and (b) 3.00% of the Total Assets of the Company; and

 

(34)             Liens securing Junior Lien Obligations in an amount equal to the maximum principal amount that could be incurred such that after giving pro forma effect thereto, the Secured Leverage Ratio for the Trailing Four Quarters would be no greater than 4.50 to 1.00.

 

“Permitted Preferred Payments” means any and all payments to holders of, or otherwise on, Existing Preferred Units, including in respect of distribution amounts (including any penalty or default amounts), liquidation preference, stated value, redemption amounts and accretion amounts (excluding any payments on Class B Preferred Units and Class C Preferred Units that are not required in order to permit the redemption, repurchase or other acquisition or retirement of, or any other payments in respect of, in whole or in part, the Class D Preferred Units).

 

“Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries, any Disqualified Stock of the Company or any preferred stock of any Restricted Subsidiary (a) issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, retire, redeem, repay, defease, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of (clauses (a) and (b), collectively, a “Refinancing,” and the term “Refinanced” has a correlative meaning) any other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), any Disqualified Stock of the Company or any preferred stock of a Restricted Subsidiary in a principal amount or, in the case of Disqualified Stock of the Company or preferred stock of a Restricted Subsidiary, liquidation preference, not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Refinancing) the lesser of:

 

(1)                the principal amount or, in the case of Disqualified Stock or preferred stock, liquidation preference, of the Indebtedness, Disqualified Stock or preferred stock so Refinanced (plus, in the case of Indebtedness, the amount of premium, if any paid in connection therewith); and

 

(2)                if the Indebtedness being Refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Refinancing.

 

Notwithstanding the preceding, no Indebtedness, Disqualified Stock or preferred stock will be deemed to be Permitted Refinancing Indebtedness, unless:

 

    (A)               such Indebtedness, Disqualified Stock or preferred stock has a final maturity date or redemption date, as applicable, no earlier than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or preferred stock being Refinanced;

 

    (B)               if the Indebtedness, Disqualified Stock or preferred stock being Refinanced is contractually subordinated or otherwise junior in right of payment to the Notes, such Indebtedness (and any related Guarantee), Disqualified Stock or preferred stock is contractually subordinated or otherwise junior in right of payment to, the Notes, on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness, Disqualified Stock or preferred stock being Refinanced at the time of the Refinancing; and

 

    (C)               such Indebtedness or Disqualified Stock is incurred or issued by the Company or such Indebtedness, Disqualified Stock or preferred stock is incurred or issued by the Restricted Subsidiary who is the obligor on the Indebtedness being Refinanced or the issuer of the Disqualified Stock or preferred stock being Refinanced; provided that a Restricted Subsidiary that is also a Guarantor may guarantee Permitted Refinancing Indebtedness incurred by the Company, regardless of whether such Restricted Subsidiary was an obligor or guarantor of the Indebtedness being Refinanced.

 

 

Notwithstanding the foregoing, any Indebtedness incurred under Credit Facilities shall be subject to the refinancing provision of the definition of Credit Facilities and not pursuant to the requirements set forth in this definition of Permitted Refinancing Indebtedness.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, unlimited liability company or government or other entity.

 

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

 

“Private Placement Legend” means the legend set forth in Section 2.06(f)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

 

“QIB” means a “qualified institutional buyer” as defined in Rule 144A.

 

“Rating Agency” means each of S&P, Moody’s and Fitch, or if (and only if) any of S&P, Moody’s or Fitch shall not make a rating on the Notes of the applicable series publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company, which shall be substituted for S&P, Moody’s or Fitch, as the case may be.

 

“Rating Decline” means a decrease in the rating of the Notes of any series by at least two Rating Agencies by one or more gradations (including gradations within rating categories as well as between rating categories) within 60 days after the earliest of (x) a Change of Control, (y) the date of public notice of the occurrence of a Change of Control and (z) public notice of the intention of the Company to effect a Change of Control (which 60-day period shall be extended so long as the rating of the Notes of such series is under publicly announced consideration for possible downgrade by a Rating Agency), which Rating Decline was the result of such Change of Control; provided, however, that a Rating Decline otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred as a result of a particular Change of Control unless each such Rating Agency making the reduction in rating to which this definition would otherwise apply announces or publicly confirms or informs the trustee in writing at the request of the Issuers or the Trustee that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Decline). In determining whether the rating of any series of Notes has decreased by one or more gradations, gradations within rating categories, such as + or - for S&P, and 1, 2, and 3 for Moody’s, will be taken into account; for example, in the case of S&P, a rating decline either from BB+ to BB or BB- to B+ will constitute a decrease of one gradation. For purposes of this definition, “Change of Control” shall also include any transaction described in clauses (1) and (3) of the definition of “Change of Control” that would constitute a Change of Control pursuant to such definition if followed by a Rating Decline within the time period specified therein.

 

“Real Property Asset” means, at any time of determination, any fee ownership or leasehold interest of any Issuer or any Guarantor in or to any real property, together with any easements or rights-of-way of any Issuer or any Guarantor.

 

 

“Real Property Collateral Agent” means the agent under the Notes-TLB Intercreditor Agreement appointed on behalf of each Holder of Notes-TLB Obligations to act as real property collateral agent under any mortgages, leasehold mortgages, deeds of trust, assignments of leases and rents and other security documents with respect to Material Real Property Assets.

 

“Regulation S” means Regulation S promulgated under the Securities Act.

 

“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A-1 or Exhibit A-2, as applicable, hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Regulation S.

 

“Reporting Default” means a Default described in Section 6.01(5)(b).

 

“Responsible Officer” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.

 

“Restricted Global Note” means a Global Note bearing the Private Placement Legend.

 

“Restricted Investment” means an Investment other than a Permitted Investment.

 

“Restricted Note” means a Restricted Definitive Note or a Restricted Global Note.

 

“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.

 

“Restricted Subsidiary” means any Subsidiary of the Company, other than an Unrestricted Subsidiary.

 

“Rule 144” means Rule 144 promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A promulgated under the Securities Act.

 

“Rule 903” means Rule 903 promulgated under the Securities Act.

 

“Rule 904” means Rule 904 promulgated under the Securities Act.

 

“S&P” means S&P Global Inc., or any successor to the rating business thereof.

 

“SEC” means the United States Securities and Exchange Commission.

 

“Secured Indebtedness” means all Indebtedness (other than obligations in respect of Hedging Obligations) that is secured by a Lien.

 

“Secured Leverage Ratio” means, at any time of determination, the ratio of the outstanding principal amount of Secured Indebtedness (net of up to (i) for so long as Class D Preferred Units remain outstanding, $25.0 million cash and/or Cash Equivalents of the Company and the Restricted Subsidiaries and (ii) thereafter, $100.0 million cash and/or Cash Equivalents of the Company and the Restricted Subsidiaries) as of the end of the Trailing Four Quarters, to (ii) the Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such Trailing Four Quarters; provided that such Secured Leverage Ratio shall be determined on a pro forma basis in a manner consistent with the definition of Fixed Charge Coverage Ratio.

 

 

“Secured Representative” means:

 

(1)                in the case of this Indenture and the Notes, the Trustee; or

 

(2)                in the case of any series of Pari Passu Notes-TLB Obligations, any trustee, agent or representative thereof designated as such in the respective agreement or instrument governing such series of Pari Passu Notes-TLB Obligations.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Security Documents” means the security agreements, pledge agreements, agency agreements, mortgages, deeds of hypothec, deeds of trust, deeds to secured debt, collateral assignments, collateral agency agreements, debentures and other instruments and documents executed and delivered by either Issuer or any Guarantor pursuant to this Indenture or any of the foregoing (including, without limitation, the financing statements under the UCC or the PPSA of the relevant state, province or territory), as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is pledged, assigned or granted to or on behalf of the Collateral Agent for the ratable benefit of the Holders with respect to each series of Notes, the Collateral Agent and the Trustee, perfected and notice of such pledge, assignment or grant is given.

 

“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article I, Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.

 

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the first date it was incurred in compliance with the terms of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof; provided that, in the case of debt securities that are by their terms convertible into Capital Stock (or cash or a combination of cash and Capital Stock based on the value of the Capital Stock) of the Company, any obligation to offer to repurchase such debt securities on a date(s) specified in the original terms of such securities, which obligation is not subject to any condition or contingency, will be treated as a Stated Maturity date of such convertible debt securities.

 

“Subordinated Debt” means Indebtedness of the Company or a Guarantor that is contractually subordinated in right of payment (by its terms or the terms of any document or instrument relating thereto) to the Notes or the Note Guarantee of such Guarantor, as applicable. References to “subordinate” or “subordinate in right of payment” and similar terms shall have a correlative meaning.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)                any corporation, association or other business entity (other than a partnership or a limited liability company) of which more than 50% of the total voting power of its Voting Stock is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

(2)                any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

 

“Subsidiary Guarantor” means any Domestic Subsidiary of the Company that is a Guarantor.

 

 

“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended, as in effect on the date hereof.

 

“Term Loan Administrative Agent” means Toronto Dominion (Texas) LLC, in its capacity as the collateral agent under the Term Loan Credit Agreement, or any successor representative acting in such capacity.

 

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

 

“Term Loan Credit Agreement” means that certain senior secured term loan credit agreement, dated on or about the Issue Date, by and among Operating LLC, as borrower, Toronto Dominion (Texas) LLC, as administrative agent and collateral agent, and the several lenders and other agents party thereto, including any notes, guarantees, collateral and security documents, instruments and agreements executed in connection therewith, and in each case as such agreement or facility may be amended (including any amendment or restatement thereof), supplemented or otherwise modified from time to time, including any agreement exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring all or any portion of the Indebtedness under such agreement or facility or any successor or replacement agreement or facility.

 

“Term Loan Documents” means the Term Loan Credit Agreement, any additional credit agreement, note purchase agreement, indenture or other agreement related thereto and all other loan or note documents, collateral or security documents, notes, guarantees, mortgages, deeds of trust, pledge agreements, instruments and agreements governing or evidencing, or executed or delivered in connection with, the Term Loan Credit Agreement, as such agreements or instruments may be amended, supplemented, modified, restated, replaced, renewed, refunded, restructured, increased or refinanced from time to time.

 

“Term Loan Facility” means the senior secured term loan credit facility established under the Term Loan Credit Agreement.

 

“Term Loan Indebtedness” means all Indebtedness, liabilities and obligations (of every kind or nature) incurred or arising under or relating to the Term Loan Documents that has a Pari Passu Lien Priority relative to notes and the Note Guarantees, and all other obligations of the Issuers or any Guarantor in respect thereof.

 

“Term Loan Obligations” means Term Loan Indebtedness and all other Obligations in respect thereof.

 

“Total Assets” of any Person means, as of any date, the amount that, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries, as of the end of the most recently ended fiscal quarter for which internal financial statements are available; provided, however, that such amount shall be adjusted to give pro forma effect to any subsequent Investment, acquisition or disposition of any assets or Person (regardless of whether effected as a merger, purchase or sale of Equity Interests, asset acquisition or disposition or other form of acquisition or disposition) by such Person or any of its Restricted Subsidiaries, including any such Investment, acquisition or disposition that is pending and giving rise to the need to determine the amount of Total Assets, as if such transaction had occurred immediately prior to the end of such most recently ended fiscal quarter.

 

“Total Leverage Ratio” means, at any time of determination, the ratio of (i) the outstanding principal amount of Indebtedness (other than obligations in respect of Hedging Obligations) of the Company and its Restricted Subsidiaries (net of up to (i) for so long as Class D Preferred Units remain outstanding, $25.0 million cash and/or Cash Equivalents of the Company and the Restricted Subsidiaries and (ii) thereafter, $100.0 million cash and/or Cash Equivalents of the Company and the Restricted Subsidiaries) as of the end of the Trailing Four Quarters, to (ii) the Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such Trailing Four Quarters; provided that such Total Leverage Ratio shall be determined on a pro forma basis in a manner consistent with the definition of Fixed Charge Coverage Ratio.

 

“Trailing Four Quarters” or “Trailing Four Quarter Period” means the four full fiscal quarters most recently ended prior to such time of determination for which internal financial statements are available.

 

 

“Transactions” means all the transactions (and any transactions related thereto) described in the definition of “Transactions” in the Offering Memorandum, which, for the avoidance of doubt, need not occur on the Issue Date.

 

“Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

 

“Trustee” means the party named as such in the preamble of this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

 

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

 

“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

 

“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

 

“Unrestricted Note” means an Unrestricted Definitive Note or an Unrestricted Global Note.

 

“Unrestricted Subsidiary” means (i) each of the following Persons so long as it constitutes a Subsidiary of the Company, unless and until designated by the Board of Directors of the Company as a Restricted Subsidiary in compliance with Section 4.16 hereof: NGL Supply Terminal Solution Mining, LLC and (ii) any Subsidiary of the Company (excluding any Issuer) that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

 

(1)                except to the extent permitted by subclause (1)(b) of the definition of “Permitted Business Investments,” has no Indebtedness other than Non-Recourse Debt owing to any Person other than the Company or any of its Restricted Subsidiaries;

 

(2)                is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

 

(3)                has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation.

 

All Subsidiaries of an Unrestricted Subsidiary shall also be Unrestricted Subsidiaries.

 

“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

 

“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of Capital Stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person; provided that, with respect to a limited partnership or other entity which does not have a Board of Directors, Voting Stock means the Capital Stock of the general partner of such limited partnership or other business entity with the ultimate authority to manage the business and operations of such Person.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

 

(1)                the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

(2)                the then outstanding principal amount of such Indebtedness.

 

Section 1.02               Other Definitions.

 

Term	Defined in Section
“2029 Notes Step Down”	3.07
“2032 Notes Step Down”	3.08
“Affiliate Transaction”	4.11
“Alternate Offer”	4.14
“Authentication Order”	2.02
“CERCLA”	13.10
“Change of Control Offer”	4.14
“Change of Control Payment”	4.14
“Change of Control Purchase Date”	4.14
“Collateral Disposition Offer”	4.10
“Covenant Defeasance”	8.03
“DTC”	2.03
“Equity Distributions”	4.07
“Event of Default”	6.01
“Excess Collateral Proceeds”	4.10
“Excess Proceeds”	4.10
“Incremental Funds”	4.07
“incur”	4.09
“LCT Election”	4.20
“LCT Test Date”	4.20
“Legal Defeasance”	8.02
“Note Amount”	4.10
“Net Proceeds Offer”	4.10
“Net Proceeds Purchase Date”	4.10
“Offer Amount”	4.10
“Offer Period”	4.10
“Paying Agent”	2.03
“Other Specified Collateral Deliverables”	13.05
“Other Specified Collateral Requirements”	13.05
“Other Specified Property”	13.05
“Pari Passu Offer”	4.10
“Paying Agent”	2.03
“Payment Default”	6.01
“Permitted Debt”	4.09
“Registrar”	2.03
“Reinstatement Date”	4.17
“Restricted Payments”	4.07
“Suspended Covenants”	4.17
“Suspension Date”	4.17
“Suspension Period”	4.17

 

 

Section 1.03               Rules of Construction.

 

(a)       Unless the context otherwise requires:

 

(1)                a term has the meaning assigned to it;

 

(2)                an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

(3)                “or” is not exclusive;

 

(4)                “including” is not limiting;

 

(5)                words in the singular include the plural, and in the plural include the singular;

 

(6)                “will” shall be interpreted to express a command;

 

(7)                provisions apply to successive events and transactions; and

 

(8)                references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.

 

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

 

ARTICLE II
THE NOTES

 

Section 2.01               Form and Dating.

 

(a)                General.  The Notes of each series and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as applicable.  The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.  Each Note will be dated the date of its authentication.  The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

The terms and provisions contained in each series of Notes will constitute, and are hereby expressly made, a part of this Indenture and the Issuers, the Guarantors, the Trustee and the Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

(b)                Global Notes.  Notes issued in global form will be substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as applicable (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto).  Notes issued in definitive form will be substantially in the form of Exhibit A-1 or Exhibit A-2 hereto, as applicable (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto).  Each Global Note will represent such of the outstanding Notes of such series as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes of such series from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes of such series represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes of such series represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

 

(c)                 Additional Notes.  Subject to compliance with the provisions of this Indenture, the Issuers may issue Additional Notes of either series under this Indenture after the Issue Date in an unlimited aggregate principal amount.

 

Section 2.02               Execution and Authentication.

 

At least one Officer must sign the Notes for each Issuer by manual or facsimile signature.

 

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.

 

A Note will not be valid until authenticated by the manual signature of the Trustee.  The signature will be conclusive evidence that the Note has been authenticated under this Indenture.

 

The Trustee will authenticate: (i) for original issue on the Issue Date, 2029 Initial Notes in the aggregate principal amount of $900,000,000 and 2032 Initial Notes in the aggregate principal amount of $1,300,000,000, and (ii) any amount of Additional Notes of such series specified by the Issuers, in each case, upon receipt of a written order of the Issuers signed by two Officers (an “Authentication Order”).  Such order shall specify (a) the amount of the Notes of each series to be authenticated and the date of original issue thereof and (b) whether the Notes are Restricted Notes or Unrestricted Notes.  The aggregate principal amount of Notes of each series outstanding at any time may not exceed the aggregate principal amount of such Notes authorized for issuance by the Issuers pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.

 

The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate Notes.  An authenticating agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.

 

Each series of Initial Notes and any Additional Notes of such series shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes of a series shall include the Initial Notes of such series and any Additional Notes of such series. Although the 2029 Notes and the 2032 Notes are referred to as the “Notes,” each are a separate series and will not together have any class voting rights other than as set forth in this Indenture. Accordingly, for purposes of this Indenture, unless the context otherwise requires, references to the “Notes” shall be deemed to refer to each series of Notes separately (including any Additional Notes of such series), and not to the 2029 Notes and the 2032 Notes on a combined basis.  Nothing in this paragraph shall be deemed to modify, replace or otherwise affect the restrictions on transfer applicable to Restricted Notes with respect to a series of Notes set forth in Section 2.06 hereof.

 

Section 2.03               Registrar and Paying Agent.

 

The Issuers will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency in the Borough of Manhattan, The City of New York, where Notes may be presented for payment (“Paying Agent”).  Unless otherwise designated by the Issuers by written notice to the Trustee, each such office or agency shall be the Trustee’s office in the Borough of Manhattan, The City of New York.

 

 

The Registrar will keep a register of each series of Notes and of their transfer and exchange.  The Issuers may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The Issuers may change any Paying Agent or Registrar without notice to any Holder.  The Issuers will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  Either Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.

 

The Issuers initially appoint The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.

 

The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

 

Section 2.04               Paying Agent to Hold Money in Trust.

 

The Issuers will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, or premium, if any, or interest, if any, on, the Notes of a series, and will notify the Trustee of any default by the Issuers in making any such payment.  While any such default continues with respect to a series of Notes, the Trustee may require a Paying Agent to pay all money held by it with respect to such series of Notes to the Trustee.  The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than an Issuer or one of its Subsidiaries) will have no further liability for the money.  If an Issuer or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Issuers, the Trustee will serve as Paying Agent for the Notes.

 

Section 2.05               Holder Lists.

 

The Trustee, for so long as it is acting as Registrar, shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least two Business Days before each interest payment date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders. Every Holder, by receiving and holding the same, agrees with the Issuers, the Guarantors, the Trustee and the Collateral Agent that none of the Issuer, the Guarantors, the Trustee or the Collateral Agent or any agent of any of them shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders, regardless of the source from which such information was derived.

 

Section 2.06               Transfer and Exchange.

 

(a)                 Transfer and Exchange of Global Notes.  A Global Note of a series may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.  All Global Notes of a series will be exchanged by the Issuers for Definitive Notes of such series if:

 

     (1)                the Issuers deliver to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuers within 120 days after the date of such notice from the Depositary;

 

    (2)                the Issuers in their sole discretion determine that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and deliver a written notice to such effect to the Trustee; or

 

    (3)                there has occurred and is continuing an Event of Default with respect to the Notes and the Depositary notifies the Trustee of its decision to exchange the Global Notes for Definitive Notes.

 

 

Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee.  Global Notes of a series also may be exchanged or replaced, in whole or in part, as provided in Section 2.07 and Section 2.10 hereof.  Every Note of a series authenticated and delivered in exchange for, or in lieu of, a Global Note of such series or any portion thereof, pursuant to this Section 2.06, Section 2.07 or Section 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note of such series.  A Global Note of a series may not be exchanged for another Note of such series other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note of a series may be transferred and exchanged as provided in Section 2.06(b), (c) or (e) hereof.

 

(b)                Transfer and Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.  Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

 

    (1)                Transfer of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note of a series may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series.  No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).

 

(2)                All Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) hereof, the transferor of such beneficial interest must deliver to the Registrar either:

 

    (A)               both:

 

(i)                  a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note of such series in an amount equal to the beneficial interest to be transferred or exchanged; and

 

(ii)                instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

 

   (B)               both:

 

      (i)                  a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note of such series in an amount equal to the beneficial interest to be transferred or exchanged; and

 

      (ii)                instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (i) above.  Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.

 

 

(3)                Transfer of Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted Global Note of a series may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note of such series if the transfer complies with the requirements of Section 2.06(b)(2) hereof and the Registrar receives the following:

 

    (A)               if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

    (B)               if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

 

    (C)               if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

 

(4)                Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note.  A beneficial interest in any Restricted Global Note of a series may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note of such series or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series if the exchange or transfer complies with the requirements of Section 2.06(b)(2) hereof and the Registrar receives the following:

 

       (i)                  if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

 

       (ii)                if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (4), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

If any such transfer is effected pursuant to this subparagraph (4) at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes of such series in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this subparagraph (4).

 

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

(c)                 Transfer or Exchange of Beneficial Interests for Definitive Notes.

 

     (1)                Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial interest in a Restricted Global Note of a series proposes to exchange such beneficial interest for a Restricted Definitive Note of such series or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note of such series, then, upon receipt by the Registrar of the following documentation:

 

 

(A)               if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

 

(B)               if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

(C)               if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

(D)               if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(E)                if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

 

(F)                if such beneficial interest is being transferred to one or both Issuers or any of their Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

(G)               if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant.  The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

(2)                Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest in a Restricted Global Note of a series may exchange such beneficial interest for an Unrestricted Definitive Note of such series or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note of such series only if the Registrar receives the following:

 

     (i)                  if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

 

 

(ii)                if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (2), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(3)                Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an Unrestricted Global Note of a series proposes to exchange such beneficial interest for a Definitive Note of such series or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note of such series, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant.  The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear the Private Placement Legend.

 

(d)                Transfer and Exchange of Definitive Notes for Beneficial Interests.

 

    (1)                Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note of a series proposes to exchange such Note for a beneficial interest in a Restricted Global Note of such series or to transfer such Restricted Definitive Notes of such series to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note of such series, then, upon receipt by the Registrar of the following documentation:

 

       (A)               if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

       (B)               if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

       (C)               if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

       (D)               if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

       (E)                if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

 

 

(F)                if such Restricted Definitive Note is being transferred to one or both Issuers or any of their Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

(G)               if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI Global Note.

 

(2)                Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note of a series may exchange such Note for a beneficial interest in an Unrestricted Global Note of such series or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series only if the Registrar receives the following:

 

   (i)                  if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

 

   (ii)                if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (2), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

 

(3)                Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note of a series may exchange such Note for a beneficial interest in an Unrestricted Global Note of such series or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of such series at any time.  Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

 

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

 

(e)                 Transfer and Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of such Definitive Notes.  Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing.  In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

(1)                Restricted Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note of a series may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note of such series if the Registrar receives the following:

 

    (A)               if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

    (B)               if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

 

    (C)               if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

 

(2)                Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note of a series may be exchanged by the Holder thereof for an Unrestricted Definitive Note of such series or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note of such series if the Registrar receives the following:

 

      (i)                  if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

 

      (ii)                if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case set forth in this subparagraph (2), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(3)                Unrestricted Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes of a series may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note of such series.  Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

 

(f)             Legends.  The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

 

(1)                Private Placement Legend.

 

    (A)               Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

 

 

“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO THE PARTNERSHIP OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE PARTNERSHIP’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]

 

BY ITS ACQUISITION OF THIS SECURITY (INCLUDING ANY INTEREST HEREIN) THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”

 

 

(B)               Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.

 

(2)          Global Note Legend.  Each Global Note will bear a legend in substantially the following form:

 

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF NGL ENERGY OPERATING LLC OR NGL ENERGY FINANCE CORP. (COLLECTIVELY, THE ‘‘ISSUER’’).

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(g)                Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes of such series, the principal amount of Notes of such series represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note of such series, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

(h)                General Provisions Relating to Transfers and Exchanges.

 

 

(1)                To permit registrations of transfers and exchanges, the Issuers will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.

 

(2)                No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 2.10, Section 3.06, Section 4.10, Section 4.14 and Section 9.05 hereof).

 

(3)                The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

(4)                All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes of such series will be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

 

(5)                Neither the Registrar nor the Issuers will be required:

 

     (A)               to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 10 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;

 

     (B)               to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or

 

    (C)               to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

 

(6)                Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary.

 

(7)                The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.

 

(8)                All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by electronic transmission.

 

Section 2.07          Replacement Notes.

 

If any mutilated Note is surrendered to the Trustee or the Issuers and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note of such series if the Trustee’s requirements are met.  If required by the Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.  The Issuers may charge for their expenses in replacing a Note.

 

 

Every replacement Note is an additional obligation of the Issuers and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

Section 2.08               Outstanding Notes.

 

The Notes of a series outstanding at any time are all the Notes of such series authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding.  Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuers or an Affiliate of either Issuer holds the Note; provided, however that Notes held by either of the Issuers or a Subsidiary of either Issuer shall be deemed to be not outstanding for purposes of Section 3.07(a) and Section 3.08(a) hereof.

 

If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

 

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

 

If the Paying Agent (other than an Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes of such series payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.

 

Section 2.09               Treasury Notes.

 

In determining whether the Holders of the required principal amount of Notes of each series have concurred in any direction, waiver or consent, Notes owned by any Issuer or Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with any Issuer or Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.

 

Section 2.10               Temporary Notes.

 

Until certificates representing Notes are ready for delivery, the Issuers may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes.  Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Issuers consider appropriate for temporary Notes and as may be reasonably acceptable to the Trustee.  Without unreasonable delay, the Issuers will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes. Holders of temporary Notes will be entitled to all of the benefits of this Indenture.

 

Section 2.11               Cancellation.

 

The Issuers at any time may deliver Notes to the Trustee for cancellation.  The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirements of the Exchange Act).  Certification of the destruction of all canceled Notes will be delivered to the Issuers upon written request.  The Issuers may not issue new Notes to replace Notes that they have paid or that have been delivered to the Trustee for cancellation.

 

 

Section 2.12               Defaulted Interest.

 

If the Issuers default in a payment of interest on the Notes of a series, they will pay the defaulted interest with respect to such series in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes of such series and in Section 4.01 hereof.  The Issuers will notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment.  The Issuers will fix or cause to be fixed each such special record date and payment date, provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest.  At least 10 days before the special record date, the Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the expense of the Issuers) will send or cause to be sent to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

 

Section 2.13               CUSIP and ISIN Numbers.

 

The Issuers in issuing the Notes may use “CUSIP” and “ISIN” numbers, and, if they do so, the Trustee shall use the CUSIP and/or ISIN number in notices of redemption, repurchase or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of such numbers printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange shall not be affected by any defect in or omission of such numbers. The Issuers shall promptly notify the Trustee in writing of any change in the CUSIP number and ISIN number.

 

ARTICLE III
REDEMPTION

 

Section 3.01               Notices to Trustee.

 

If Operating LLC elects to redeem Notes of any series pursuant to the optional redemption provisions of Section 3.07 or Section 3.08 hereof, it must furnish to the Trustee, at least 10 days (unless a shorter notice period shall be satisfactory to the Trustee) but not more than 60 days before a redemption date, an Officers’ Certificate setting forth:

 

      (1)                the clause of this Indenture pursuant to which the redemption shall occur;

 

      (2)                the redemption date;

 

      (3)                the principal amount of Notes of such series to be redeemed; and

 

      (4)                the redemption price or the method by which it is to be determined.

 

Section 3.02               Selection of Notes to Be Redeemed.

 

If less than all of the Notes of any series are to be redeemed at any time, the Trustee will select Notes of such series for redemption on a pro rata basis (or, in the case of Notes issued in global form pursuant to Article II hereof, based on the method of the Depositary that most nearly approximates a pro rata selection), unless otherwise required by law or applicable stock exchange or depository requirements.

 

In the event of partial redemption, the particular series of Notes to be redeemed will be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes of such series not previously called for redemption.

 

The Trustee will promptly notify the Issuers in writing of the Notes of such series selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed.  Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

 

Section 3.03           Notice of Redemption.  

  

At least 10 days but not more than 60 days before a redemption date, Operating LLC will mail or cause to be mailed, by first class mail (or, in the case of Notes in global form, pursuant to the Applicable Procedures of the Depositary), a notice of redemption to each Holder whose Notes of a series are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII or Article XI hereof.

 

The notice will identify the series of Notes to be redeemed and will state with respect to such series of Notes:

 

(1)                the redemption date;

 

(2)                the redemption price;

 

(3)                if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;

 

(4)                the name and address of the Paying Agent;

 

(5)                that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(6)                that, unless the Company defaults in making such redemption payment, or a condition precedent with respect to such redemption has not be satisfied, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

(7)                the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;

 

(8)                that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes and

 

(9)                if such redemption or notice is subject to satisfaction of one or more conditions precedent, (i) a description of such condition or conditions precedent and (ii) that, in the Issuers’ discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed.

 

At the Issuers’ request, the Trustee will give the notice of redemption in the Issuers’ names and at their expense; provided, however, that the Issuers have delivered to the Trustee, at least 45 days prior to the redemption date (unless a shorter time is acceptable to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

 

Notwithstanding any provision hereof to the contrary, the notice of redemption with respect to a redemption pursuant to Section 3.07(b) or Section 3.08(b) need not set forth the 2029 Notes Make-Whole Price or 2032 Notes Make-Whole Price, as applicable, but only the manner of calculation thereof. The Company will notify the Trustee of the 2029 Notes Make-Whole Price or 2032 Notes Make-Whole Price, as applicable, with respect to any redemption promptly after the calculation together with a calculation thereof and the 2029 Notes Treasury Rate or 2032 Notes Treasury Rate, as applicable, in reasonable detail, and the Trustee shall not be responsible for such calculation. The actions and determinations of the Company in determining the 2029 Notes Make-Whole Price or 2032 Notes Make-Whole Price, as applicable, shall be conclusive and binding for all purposes, absent manifest error.

 

  

Section 3.04           Effect of Notice of Redemption.  

 

Once notice of redemption is sent in accordance with Section 3.03 hereof, Notes called for redemption become due and payable on the date fixed for redemption, unless the redemption is subject to a condition precedent that is not satisfied or waived.  Any redemption or notice of redemption may, at the Issuers’ discretion, be subject to one or more conditions precedent and, in the case of a redemption pursuant to Section 3.07(a) or Section 3.08(a) hereof, be given prior to and conditioned on the completion of the related Equity Offering.

 

Section 3.05           Deposit of Redemption Price.

 

At least one Business Day prior to the redemption date, the Issuers will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of all Notes to be redeemed on that date.  The Trustee or the Paying Agent will promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption price of all Notes to be redeemed.

  

If the Issuers comply with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption.  If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date.  If any Note called for redemption is not so paid upon surrender for redemption because of the failure of the Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

 

Section 3.06           Notes Redeemed in Part.

 

Upon surrender of a Note that is redeemed in part, the Issuers will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to the unredeemed portion of the Note surrendered.

 

Section 3.07           Optional Redemption of 2029 Notes.

 

(a)            Prior to February 15, 2026, Operating LLC may, on any one or more occasions, redeem up to 40% of the aggregate principal amount of the 2029 Notes outstanding under this Indenture (which may include Additional Notes) with an amount of cash not greater than the amount equal to the net cash proceeds from one or more Equity Offerings at a redemption price equal to 108.125% of the principal amount thereof, plus accrued and unpaid interest, if any, on the 2029 Notes redeemed to, but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related interest payment date that is on or prior to the redemption date); provided that

 

(1)             at least 50% of the aggregate principal amount of the 2029 Notes issued on the Issue Date (excluding 2029 Notes held by the Company and its Subsidiaries), remains outstanding after each such redemption; and

 

(2)             the redemption occurs within 180 days after the closing of such Equity Offering.

 

(b)            At any time or from time to time prior to February 15, 2026 (the “2029 Notes Step-Down Date”), Operating LLC may redeem all or a part of the 2029 Notes, at a redemption price equal to the 2029 Notes Make-Whole Price, subject to the rights of Holders of 2029 Notes on the relevant record date to receive interest, if any, due on the related payment date that is on or prior to the redemption date.

 

(c)            In the event that Holders of not less than 90% in aggregate principal amount of the outstanding 2029 Notes accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described in Section 4.14(c) hereof) purchases all of the 2029 Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to any Change of Control Offer or Alternate Offer described in Section 4.14 hereof, to redeem all of the 2029 Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the 2029 Notes that remain outstanding, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related interest payment date that is on or prior to the redemption date).

 

 

(d)            Except as provided in the preceding paragraphs (a), (b) and (c), the Notes will not be redeemable at Operating LLC’s or the Company’s option prior to February 15, 2026.

 

(e)            On and after February 15, 2026, Operating LLC may redeem, on one or more occasions, all or a part of the 2029 Notes, from time to time, at the following redemption prices (expressed as a percentage of principal amount to be redeemed) plus accrued and unpaid interest, if any, on the 2029 Notes to be redeemed to, but excluding, the applicable redemption date (subject to the right of Holders of 2029 Notes on the relevant record date to receive interest, if any, due on the related interest payment date that is on or prior to the redemption date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:

 

Year		Percentage
2026			104.063	%
2027			102.031	%
2028 and thereafter			100.000	%

 

(f)             Unless Operating LLC defaults in the payment of the redemption price, interest, if any, will cease to accrue on the 2029 Notes or portions thereof called for redemption on the applicable redemption date.

 

(g)            Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Section 3.01 through Section 3.06 hereof.

 

Section 3.08           Optional Redemption of 2032 Notes.

 

(a)            Prior to February 15, 2027, Operating LLC may, on any one or more occasions, redeem up to 40% of the aggregate principal amount of the 2032 Notes outstanding under this Indenture (which may include Additional Notes) with an amount of cash not greater than the amount equal to the net cash proceeds from one or more Equity Offerings at a redemption price equal to 108.375% of the principal amount thereof, plus accrued and unpaid interest, if any, on the 2032 Notes to be redeemed to, but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related interest payment date that is on or prior to the redemption date); provided that

 

(1)             at least 50% of the aggregate principal amount of the 2032 Notes issued on the Issue Date (excluding 2032 Notes held by the Company and its Subsidiaries), remains outstanding after each such redemption; and

 

(2)             the redemption occurs within 180 days after the closing of such Equity Offering.

 

(b)             At any time or from time to time prior to February 15, 2027 (the “2032 Notes Step-Down Date”), Operating LLC may redeem all or a part of the 2032 Notes, at a redemption price equal to the 2032 Notes Make-Whole Price, subject to the rights of Holders of 2032 Notes on the relevant record date to receive interest, if any, due on the related payment date that is on or prior to the redemption date.

 

(c)              In the event that Holders of not less than 90% in aggregate principal amount of the outstanding 2032 Notes accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described in Section 4.14(c) hereof) purchases all of the 2032 Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to any Change of Control Offer or Alternate Offer described in Section 4.14 hereof, to redeem all of the 2032 Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the 2032 Notes that remain outstanding, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related interest payment date that is on or prior to the redemption date).

 

 

(d)            Except as provided in the preceding paragraphs (a), (b) and (c), the Notes will not be redeemable at Operating LLC’s or the Company’s option prior to February 15, 2027.

 

(e)            On and after February 15, 2027, Operating LLC may redeem, on one or more occasions, all or a part of the 2032 Notes, from time to time, at the following redemption prices (expressed as a percentage of principal amount to be redeemed) plus accrued and unpaid interest, if any, on the 2032 Notes to be redeemed to, but excluding, the applicable redemption date (subject to the right of Holders of 2032 Notes on the relevant record date to receive interest, if any, due on the related interest payment date that is on or prior to the redemption date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:

 

Year		Percentage
2027			104.188	%
2028			102.094	%
2029 and thereafter			100.000	%

 

(f)             Unless Operating LLC defaults in the payment of the redemption price, interest, if any, will cease to accrue on the 2032 Notes or portions thereof called for redemption on the applicable redemption date.

 

(g)            Any redemption pursuant to this Section 3.08 shall be made pursuant to the provisions of Section 3.01 through Section 3.06 hereof.

 

ARTICLE IV
COVENANTS

 

Section 4.01            Payment of Notes.

 

The Issuers will pay or cause to be paid the principal of, premium, if any, on, or interest, if any, on, the Notes of a series on the dates and in the manner provided in the Notes of such series.  Principal, premium, if any, interest, if any, will be considered paid on the date due if the Paying Agent, if other than the Issuers or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest, if any, then due.

 

The Issuers will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful. The Issuers will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period) at the same rate to the extent lawful.

 

Section 4.02           Maintenance of Office or Agency.

 

The Issuers will maintain in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.  The Issuers will give prompt written notice to the Trustee of any change in the location of such office or agency.  If at any time the Issuers fail to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

 

The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the Issuers of their obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes.  The Issuers will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

 

The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or agency of the Issuers in accordance with Section 2.03 hereof.

 

Section 4.03            Reports.

 

(a)              Regardless of whether required by the rules and regulations of the SEC, so long as the Notes of any series are outstanding (unless defeased or discharged), the Company will file with the SEC (unless the SEC will not accept such a filing) within ten days after the time periods specified in the SEC’s rules and regulations, and upon request, the Company will furnish (without exhibits) to the Trustee for delivery to the Holders of Notes:

 

(1)             all quarterly and annual reports that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report thereon by the Company’s certified independent accountants; and

 

(2)             all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.

 

(b)            The Company will be deemed to have furnished such reports and information described above in Section 4.03(a) to the Holders of Notes (and the Trustee shall be deemed to have delivered such reports and information to the Holders of Notes) if the Company has filed such reports or information, respectively, with the SEC using the EDGAR filing system (or any successor filing system of the SEC) or, if the SEC will not accept such reports or information, if the Company has posted such reports or information, respectively, on its website, and such reports or information, respectively, are available to Holders of Notes through internet access.

 

(c)            For the avoidance of doubt, (i) such information will not be required to contain the separate financial information for Guarantors as contemplated by Rule 3-10, Rule 3-16, Rule 13-01 or Rule 13-02 of Regulation S-X or any financial statements of unconsolidated subsidiaries or 50% or less owned Persons as contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or in each case any successor provisions, and (ii) such information shall not be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any non-GAAP financial measures contained therein.

 

(d)            Except as provided above, all such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports.

 

(e)            If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then, to the extent material, the quarterly and annual financial information required by Section 4.03(a) above will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of its Unrestricted Subsidiaries.

 

(f)             Any and all Defaults or Events of Default arising from a failure to furnish in a timely manner any financial information required by this Section 4.03 shall be deemed cured (and the Company shall be deemed to be in compliance with this Section 4.03) upon furnishing such financial information as contemplated by this Section 4.03 (but without regard to the date on which such financial statement or report is so furnished); provided that such cure shall not otherwise affect the rights of the Holders under the provisions of Article VI hereof if the principal of, premium, if any, on, and interest, if any, on, the Notes of any series have been accelerated in accordance with the terms of this Indenture and such acceleration has not been rescinded or cancelled prior to such cure.

 

 

(g)            In addition, the Company will hold and participate in annual conference calls with the Holders of Notes, Beneficial Owners of Notes, bona fide prospective investors, securities analysts and market makers to discuss the financial information required to be furnished pursuant to clause (1) of Section 4.03(a) hereof no later than ten Business Days after distribution of such financial information. The Company shall be permitted to combine this conference call with any other conference call for other debt or equity holders or lenders.

 

(h)            The Company and the Guarantors agree that, for so long as the Notes of any series remain outstanding, if at any time they are not required to file with the SEC the reports required by Section 4.03(a), the Company and the Guarantors will furnish to the Holders of Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

(i)             Delivery of reports, information and documents to the Trustee pursuant to this Section 4.03 is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).

 

It is understood that the Trustee shall have no obligation to determine whether or not the reports and information described above have been filed with the SEC or are available on the Company’s website and are available to Holders through internet access. The delivery of such reports and information to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

Section 4.04           Compliance Certificate.

 

(a)            The Issuers and each Guarantor shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of each Issuer and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuers have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Issuers have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and are not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuers are taking or propose to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, or premium, if any, or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Issuers are taking or propose to take with respect thereto.

 

(b)            So long as any of the Notes of either series are outstanding, the Issuers will deliver to the Trustee and the Collateral Agent, within five Business Days of any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Issuers are taking or propose to take with respect thereto.

 

Section 4.05           Taxes.

 

The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of Notes.

 

  

Section 4.06           Stay, Extension and Usury Laws.  

  

Each of the Issuers and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force that may affect the covenants or the performance of this Indenture; and each of the Issuers and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

Section 4.07           Restricted Payments.

 

(a)            The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

 

(1)             declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger, amalgamation or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends, distributions or payments payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends, distributions or payments payable to the Company or a Restricted Subsidiary);

 

(2)             purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger, amalgamation or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;

 

(3)             make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Debt (other than intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal within one year of the Stated Maturity thereof; or

 

(4)             make any Restricted Investment (all such payments and other actions set forth in clauses (1) through (4) of this Section 4.07(a) being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to the proposed Restricted Payment:

 

(1)             at the time of and after giving effect to such Restricted Payment, no Default (except a Reporting Default) or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

 

(2)             the Total Leverage Ratio for the Company’s Trailing Four Quarters at the time of such Restricted Payment is not greater than 4.75 to 1.00, and

 

(3)             such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries during the fiscal quarter in which such Restricted Payment is made (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (13) and (14) of Section 4.07(b)), is less than the sum, without duplication, of:

 

(A)            Operating Surplus with respect to the Company attributable to the period beginning on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the Trailing Four Quarter Period (minus the amount of any Equity Distributions made during such period pursuant to item (b) below; provided that the amount of Operating Surplus pursuant to this item (A) shall not be less than $0 for any fiscal quarter as a result of any such deduction) plus $400.0 million; plus

 

 

(B)            $200.0 million, less the amount of all prior Equity Distributions made by the Company and its Restricted Subsidiaries pursuant to this item (b) since the Issue Date; provided that the only Restricted Payments permitted to be made pursuant to this item (b) are distributions and payments on the Company’s units, including Permitted Preferred Payments, plus the related distributions on the General Partner’s general partner interest and any distributions with respect to incentive distribution rights (such distributions and payments being referred to as “Equity Distributions”); plus

 

(C)            100% of the aggregate net cash proceeds, and the Fair Market Value of any Capital Stock of Persons engaged primarily in a Permitted Business or other long-term assets that are used or useful in a Permitted Business, in each case received by the Company since the Issue Date from (x) a contribution to the common equity capital of the Company from any Person (other than a Restricted Subsidiary) or (y) the issuance and sale (other than to a Restricted Subsidiary) of Equity Interests (other than Disqualified Stock) of the Company or from the issuance or sale (other than to a Restricted Subsidiary) of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Disqualified Stock); plus

 

(D)            to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); plus

 

(E)             the amount equal to the net reduction in Restricted Investments since the Issue Date resulting from (i) dividends, distributions, repayments of loans or advances, or other transfers of assets, in each case, to the Company or any of its Restricted Subsidiaries from any Person (including, without limitation, any Unrestricted Subsidiary) or (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, in each case, to the extent such amounts have not been included in Operating Surplus for any period commencing on or after the Issue Date (items (C), (D) above and this item (E) being referred to as “Incremental Funds”); minus

 

(F)             the aggregate amount of Incremental Funds previously expended pursuant to this clause (3).

 

(b)           The provisions of Section 4.07(a) hereof will not prohibit:

 

(1)             the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this Indenture;

 

(2)             the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent (a) contribution (other than from a Restricted Subsidiary) to the equity capital of the Company or (b) sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Disqualified Stock), with a sale being deemed substantially concurrent if such purchase, redemption, defeasance or other acquisition or retirement for value occurs not more than 120 days after such sale; provided, however, that the amount of any such net cash proceeds that are utilized for any such purchase, redemption, defeasance or other acquisition or retirement for value will be excluded (or deducted, if included) from the calculation of Operating Surplus and Incremental Funds;

 

 

(3)             the purchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;

 

(4)             the payment of any dividend or distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis;

 

(5)             as long as no Default has occurred and is continuing or would be caused thereby, the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary held by any of current or former directors or employees of the General Partner, the Company or of any Restricted Subsidiary; provided, however, that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests may not exceed $20.0 million in any fiscal year (with any portion of such $20.0 million amount that is unused in any fiscal year to be carried forward to successive fiscal years and added to such amount) plus, to the extent not previously applied or included, (a) the cash proceeds received by the Company or any of its Restricted Subsidiaries from sales of Equity Interests of the Company to employees or directors of the General Partner, the Company or its Affiliates that occur after the Issue Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of Section 4.07(a) hereof) and (b) the cash proceeds of key man life insurance policies received by the Company or any of its Restricted Subsidiaries after the Issue Date;

 

(6)             the purchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options, warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion of the exercise or exchange price thereof, and any purchase, redemption  or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights to acquire Equity Interests;

 

(7)             payments of cash, dividends, distributions, advances or other Restricted Payments, in each case, made in lieu of the issuance of fractional shares or units in connection with the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests or in connection with the payment of a dividend or distribution to the holders of Equity Interests of the Company in the form of Equity Interests (other than Disqualified Stock) of the Company;

 

(8)             the purchase, redemption or other acquisition or retirement for value of Equity Interests of the Company or any Restricted Subsidiary representing fractional units of such Equity Interests in connection with a merger, amalgamation or consolidation involving the Company or such Restricted Subsidiary or any other transaction permitted by this Indenture;

 

(9)             payments to the General Partner constituting reimbursements for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended or replaced thereafter, provided that any such amendment or replacement is not materially less favorable to the Company in any material respect than the agreement prior to such amendment or replacement;

 

(10)             in connection with an acquisition by the Company or any of its Restricted Subsidiaries, the return to the Company or any of its Restricted Subsidiaries of Equity Interests of the Company or its Restricted Subsidiaries constituting a portion of the purchase consideration in settlement of indemnification claims or purchase price adjustments;

 

(11)             the purchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Debt (a) at a purchase price not greater than 101% of the principal amount of such Subordinated Debt plus accrued interest in accordance with provisions similar to Section 4.14 hereof or (b) at a purchase price not greater than 100% of the principal amount thereof plus accrued interest in accordance with provisions similar to Section 4.10 hereof; provided that, prior to or simultaneously with such purchase, redemption, defeasance or other acquisition or retirement for value, the Company shall have complied with the provisions of Section 4.14 or Section 4.10 hereof, as the case may be, and repurchased all Notes of any series validly tendered for payment in connection with any Change of Control Offer, Collateral Disposition Offer, Net Proceeds Offer or Alternate Offer, as the case may be;

 

 

(12)             the purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Indebtedness made by exchange for Equity Interests of the Parent (other than Disqualified Stock);

 

(13)             so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, any Permitted Preferred Payments pursuant to Section 4.10(b) hereof.

 

(14)             Restricted Payments made as part of or to consummate the Transactions.

 

(c)              The amount of all Restricted Payments (other than cash) will be the Fair Market Value, determined as of the date of the Restricted Payment, of the Restricted Investment proposed to be made or the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment, except that the Fair Market Value of any non-cash dividend or distribution paid within 60 days after the date of its declaration shall be determined as of such date of declaration.  The Fair Market Value of any Restricted Investment, assets or securities that are required to be valued by this Section 4.07 will be determined in accordance with the definition of the term “Fair Market Value.”  For purposes of determining compliance with this Section 4.07, (x) in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (14) of Section 4.07(b) hereof, or is permitted pursuant to Section 4.07(a) hereof, the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such Restricted Payment (or portion thereof) on the date made or later reclassify such Restricted Payment (or portion thereof) in any manner that complies with this Section 4.07; provided that any Restricted Payments made pursuant to the preceding clauses (13) and (14) in whole or in part shall not be reclassified; and (y) in the event a Restricted Payment is made pursuant to Section 4.07(a) hereof, the Company will be permitted to classify whether all or any portion thereof is being (and in the absence of such classification shall be deemed to have classified the minimum amount possible as having been) made with Incremental Funds.

 

Section 4.08            Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

 

(a)              The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

 

(1)             pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; provided that the priority that any series of preferred stock of a Restricted Subsidiary has in receiving dividends or liquidating or other distributions before dividends or liquidating or other distributions are paid in respect of common stock of such Restricted Subsidiary shall not constitute a restriction on the ability to make dividends or distributions on Capital Stock for purposes of this Section 4.08(a);

 

(2)             make loans or advances to the Company or any of its Restricted Subsidiaries (it being understood that the subordination of loans or advances made to the Company or any such Restricted Subsidiary to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or

 

(3)             sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

 

 

(b)             The restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

  

(1)             agreements governing any Credit Facility (including the ABL Credit Agreement and the Term Loan Credit Agreement), any Existing Indebtedness or any other agreements or instruments, in each case as in effect on the Issue Date and any amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings of those agreements or the Indebtedness to which they relate; provided that the encumbrances or restrictions contained in the amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the reasonable good faith judgment of the Chief Financial Officer of the General Partner, not materially more restrictive, taken as a whole, with respect to such dividend, distribution and other payment restrictions than those contained in those agreements on the Issue Date;

 

(2)             this Indenture, the Notes and the Note Guarantees;

 

(3)             agreements governing other Indebtedness permitted to be incurred under Section 4.09 hereof and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the encumbrances or restrictions therein are, in the reasonable good faith judgment of the Chief Financial Officer of the General Partner, not materially more restrictive, taken as a whole, than the provisions contained in the ABL Credit Agreement, the Term Loan Credit Agreement and in this Indenture as in effect on the Issue Date;

 

(4)             the issuance of preferred stock by a Restricted Subsidiary or the payment of dividends and distributions thereon in accordance with the terms thereof; provided that issuance of such preferred stock is permitted pursuant to Section 4.09 hereof and the terms of such preferred stock do not expressly restrict the ability of a Restricted Subsidiary to pay dividends and distributions or make any other distributions on its Capital Stock (other than requirements to pay dividends and distributions or liquidation preferences on such preferred stock prior to paying any dividends or making any other distributions on such other Capital Stock);

 

(5)             applicable law, rule, regulation, order, approval, license, permit or similar restriction;

 

(6)             any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired and any amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings thereof; provided that, the encumbrances or restrictions contained in any such amendments, restatements, modifications, renewals, extensions, increases, supplements, refundings, replacements or refinancings are, in the reasonable good faith judgment of the Chief Financial Officer of the General Partner, not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; provided, further, that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

 

(7)             customary non-assignment provisions in contracts or licenses, easements or leases, in each case, entered into in the ordinary course of business;

 

(8)             purchase money obligations, security agreements or mortgage financings for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;

 

(9)             any agreement for the sale or other disposition of the Equity Interests in, or all or substantially all of the properties or assets of, a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;

 

 

(10)             Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

 

(11)             Liens permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;

 

(12)             provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements entered into in connection with a Restricted Investment) entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;

 

(13)             any instrument governing Indebtedness of a FERC Subsidiary; provided that such Indebtedness was otherwise permitted by the terms of this Indenture to be incurred;

 

(14)             encumbrances or restrictions on cash, Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

 

(15)             any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisition;

 

(16)             Hedging Obligations permitted from time to time under this Indenture; and

 

(17)             Indebtedness incurred or Capital Stock issued by any Restricted Subsidiary; provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Capital Stock (a) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (b) will not materially affect the Company’s ability to make principal, interest and premium, if any, on the Notes of any series, as determined in the reasonable good faith judgment of the Chief Executive Officer and the Chief Financial Officer of the General Partner.

 

Section 4.09            Incurrence of Indebtedness and Issuance of Preferred Stock.

 

(a)              The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”; with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, (x) for so long as any Class D Preferred Units are outstanding, if the Total Leverage Ratio is no more than 4.75 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) and (y) thereafter, if the Fixed Charge Coverage Ratio for the Company’s Trailing Four Quarters immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such Trailing Four Quarter Period; provided, further, that the aggregate principal amount of Indebtedness of non-Guarantor Subsidiaries outstanding pursuant to this Section 4.09(a) shall not exceed $50.0 million.

 

 

(b)             The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (collectively, “Permitted Debt”):

 

(1)             the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness and letters of credit under Credit Facilities (including the ABL Facility, the Term Loan Facility and the Notes and the related Note Guarantees issued on the Issue Date) in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the sum of (I) ABL Obligations and Pari Passu ABL Obligations in an aggregate principal amount not to exceed the greater of (x) $600.0 million and (y) the amount of the Borrowing Base determined at the time of incurrence, plus (II) other Indebtedness not to exceed the sum of (A) an aggregate principal amount not to exceed the greater of (x) $2.95 billion and (y) 40% of the Total Assets of the Company, plus (B) at the time of such incurrence, an amount equal to the maximum principal amount that could be incurred such that after giving pro forma effect thereto, the First Lien Leverage Ratio would be no greater than 4.50 to 1.00; provided that for purposes of determining the amount that may be incurred under clause (1)(II)(B), all unsecured Indebtedness and Junior Lien Indebtedness incurred under this clause (1) shall be deemed to be included in clause (i) of the definition of “First Lien Leverage Ratio”.

 

(2)             the incurrence by the Company or its Restricted Subsidiaries of Existing Indebtedness and Class D Preferred Units;

 

(3)             the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extend, retire, redeem, repay, renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (3) at any time; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (3) and then outstanding does not exceed the greater of (a) $200.0 million and (b) 3.75% of the Total Assets of the Company;

 

(4)             the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, redeem, repay, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, any Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of any Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clause (2), (3) or (11) of this Section 4.09(b) or this clause (4);

 

(5)             the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:

 

(A)            if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and

 

(B)            (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary,

 

will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);

 

 

(6)             the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:

 

(A)            any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; and

 

(B)            any sale or other transfer of any such preferred stock to a Person that is neither the Company nor a Restricted Subsidiary,

 

will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (6);

 

(7)             the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;

 

(8)             the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes or the applicable Note Guarantee, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed;

 

(9)             the incurrence by the Company or any Restricted Subsidiary of Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and its Restricted Subsidiaries;

 

(10)             the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;

 

(11)             the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (11) and then outstanding does not exceed $50.0 million;

 

(12)             the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness; and

 

(13)             the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness and the issuance by the Company of any Disqualified Stock, provided that, immediately after giving effect to any such incurrence or issuance, the amount of all such Indebtedness and Disqualified Stock incurred or issued pursuant to this clause (13) and then outstanding (including all Indebtedness and Disqualified Stock incurred or issued to Refinance any Indebtedness or Disqualified Stock incurred or issued pursuant to this clause (13)) does not exceed the greater of (a) $150.0 million and (b) 3.00% of the Total Assets of the Company determined on the date of such incurrence.

 

(c)              Subject to Section 4.09(d) below, the Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or the applicable Note Guarantee on substantially identical terms. No Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.

 

 

(d)             For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (13) of Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted in its sole discretion to divide, redivide, classify or reclassify such item of Indebtedness on the date of its incurrence, and later divide, redivide, classify or reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09.  Indebtedness under Credit Facilities (including the ABL Facility and the Term Loan Facility) outstanding on the Issue Date and the Notes and the related Note Guarantees issued on the Issue Date will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest or preferred stock distributions, dividends or other amounts, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of any obligation of the Company or any Restricted Subsidiary as Indebtedness due to a change in accounting principles, and the payment of distributions, dividends or other amounts on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.09; provided that, in each such case, the amount thereof is included in Fixed Charges of the Company as accrued to the extent required by the definition of such term.

 

(e)              For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced.  Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.  The principal amount of any Permitted Refinancing Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

 

Section 4.10            Asset Sales.

 

(a)              The Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Sale of Collateral unless:

 

(1)             The Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by way of any other Person assuming responsibility for, any liabilities, contingent or otherwise) at or prior to the time of the Asset Sale at least equal to the Fair Market Value (measured as of date of the definitive agreement with respect to such Asset Sale) of the Collateral subject to such Asset Sale;

 

(2)             at least 75% of the consideration from such Asset Sale received by the Company or such Restricted Subsidiary, as the case may be, is in the form of (A) cash, (B) Cash Equivalents, (C) Additional Assets of a type which would constitute (x) Notes-TLB Priority Collateral, in the case of an Asset Sale of Notes-TLB Priority Collateral, or (y) ABL Priority Collateral, in the case of an Asset Sale of ABL Priority Collateral (which in both cases are thereupon with their acquisition added to the Collateral securing the Notes-TLB Obligations), or (D) any combination of the foregoing; and

 

(3)             to the extent that any consideration from such Asset Sales received by the Company or such Restricted Subsidiary, as the case may be, constitutes securities or other assets that are of a type or class that constitute Collateral, such securities or other assets, including the assets of any Person that becomes a Guarantor as a result of such transaction, are concurrently with their acquisition added to the Collateral securing the Notes-TLB Obligations (as Notes-TLB Priority Collateral or ABL Priority Collateral, as applicable) in the manner provided for herein or in any of the Security Documents. 

 

 

In the case of any Asset Sale of Collateral pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clause (1) or (2) above.

 

If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale of Collateral is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this covenant.

 

Subject to the terms of the Intercreditor Agreements, within 365 days following the receipt of any Net Proceeds from such Asset Sale of Collateral, the Company or any Restricted Subsidiary, as the case may be, may (1) use any Net Proceeds received from Asset Sales of ABL Priority Collateral to repay, redeem, retire, defease, replace, refinance, discharge or repurchase any ABL Obligations, provided any excess Net Proceeds may be used to repay, redeem, retire, defease, replace, refinance, discharge or repurchase any Notes-TLB Obligations, (2) use any Net Proceeds received from Asset Sales of Notes-TLB Priority Collateral to repay, redeem, retire, defease, replace, refinance, discharge or repurchase Notes-TLB Obligations (including Additional Notes); provided that if the Company or a Restricted Subsidiary repays, redeems or repurchases any Notes-TLB Obligations other than the Notes of each series on a pro rata basis, the Company or such Restricted Subsidiary must equally and ratably redeem, discharge, defease or repurchase (or offer to repurchase) the Notes of each series, at the Company’s option, as provided for under Section 3.07 and Section 3.08, as applicable, through open market purchases, tender offer, negotiated transactions or otherwise (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the redemption or repurchase date) or by making an offer to all Holders of each series to purchase their Notes at 100% of the principal amount thereof, plus accrued and unpaid interest, if any, on the amount of Notes repurchased to (but excluding) the purchase date(and such offer shall be deemed for purposes of this covenant to be a use of proceeds from an Asset Sale equal to the aggregate amount of Net Proceeds offered to the Holders of such Notes, whether or not the offer is accepted by any or all Holders of such Notes), or (3) invest any Net Proceeds received from Asset Sales of Collateral in Additional Assets that would constitute (x) Notes-TLB Priority Collateral, in the case of an Asset Sale of Notes-TLB Priority Collateral, and (y) ABL Priority Collateral or Notes-TLB Priority Collateral, in the case of an Asset Sale of ABL Priority Collateral, which Additional Assets are thereupon with their acquisition added to the Collateral securing the Notes-TLB Obligations; provided that the Additional Assets shall not include the Equity Interests of Foreign Subsidiaries for purposes of the requirement unless the relevant Asset Sale consisted of the sale of Equity Interests of a Foreign Subsidiary.

 

Any Net Proceeds from Asset Sales of Collateral that are not applied or invested as provided in this subsection (A) will be deemed to constitute “Excess Collateral Proceeds.” Within 10 Business Days after the aggregate amount of Excess Collateral Proceeds exceeds $50.0 million, the Issuers will be required to make an offer (a “Collateral Disposition Offer”) to all Holders of Notes of each series to purchase the maximum principal amount of the Notes of each series (on a pro rata basis) and, if required by the terms of any other Pari Passu Notes-TLB Obligations, to the holders of such Pari Passu Notes-TLB Obligations (on a pro rata basis), to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the applicable series of Notes and such other Pari Passu Notes-TLB Obligations, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in accordance with the procedures set forth in this Indenture in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof with respect to the applicable series of Notes. To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer (together with, if required by the terms of any other Pari Passu Notes-TLB Obligations, the amount of Pari Passu Notes-TLB Obligations tendered pursuant to any similar requirement), is less than the Excess Collateral Proceeds, the Issuers may use any remaining Excess Collateral Proceeds for any purpose not otherwise prohibited by this Indenture . If the aggregate principal amount of Notes surrendered by Holders and, if required by the holders of Pari Passu Notes-TLB Obligations, holders of any Pari Passu Notes-TLB Obligations exceeds the amount of Excess Collateral Proceeds, the Notes of each series and Pari Passu Notes-TLB Obligations to be purchased shall be selected by the Trustee on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes-TLB Obligations. Upon completion of such Collateral Disposition Offer, the amount of Excess Collateral Proceeds shall be reset at zero. The Issuers may make a Collateral Disposition Offer if Excess Collateral Proceeds are less than $50.0 million and prior to 365 days after an Asset Sale of Collateral. Notwithstanding the foregoing, to the extent that any Net Proceeds or Excess Collateral Proceeds are required to be applied to prepay Indebtedness under the ABL Credit Agreement, the Term Loan Credit Agreement or other Pari Passu ABL Obligations, the Issuers may make a prepayment with respect to such Indebtedness out of such Net Proceeds or Excess Collateral Proceeds, at a price in cash in an amount equal to 100% of the principal amount of such Indebtedness, plus accrued and unpaid interest, if any, to, but excluding, the date of prepayment.

 

 

Pending the final application of any such Net Proceeds in accordance with the fourth and fifth paragraphs of this Section 4.10(a), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.

 

(b)             The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Sale (other than Asset Sales of Collateral, which shall be treated in the manner set forth in Section 4.10(a) above) unless:

 

(1)             The Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by way of any other Person assuming responsibility for, any liabilities, contingent or otherwise) at or prior to the time of the Asset Sale at least equal to the Fair Market Value (measured as of date of the definitive agreement with respect to such Asset Sale) of the assets subject to such Asset Sale;

 

(2)             at least 75% of the consideration from such Asset Sale received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents or a combination thereof;

 

(A)            in the case of any Asset Sale pursuant to a condemnation, seizure, appropriation or similar taking, including by deed in lieu of condemnation, or any actual or constructive total loss or an agreed or compromised total loss, such Asset Sale shall not be required to satisfy the requirements of clause (b)(1) or (b)(2) above;

 

(B)            if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this covenant; and

 

(3)             within 365 days following the receipt of any Net Proceeds from such Asset Sale, an amount equal to 100% of the Net Proceeds from such Asset Sale is applied by the Company or such Restricted Subsidiary, as the case may be, as follows (it being understood that actions under clause (B), (C) or (D) may occur prior to actions under clause (A) during such 365-day period):

 

(A)            to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Indebtedness), to prepay, repay, redeem, retire, defease, replace, refinance, discharge, purchase or repurchase Indebtedness (other than Disqualified Stock, Pari Passu Second Lien Obligations, Junior Lien Obligations or Subordinated Debt) (in each case other than Indebtedness owed to the Company or an Affiliate of the Company, unless such Affiliate only sells its pro rata portion of any Notes acquired by the Issuers in any open market purchases or pursuant to any offer to purchase Notes) within 365 days after the date of such Asset Sale;

 

(B)            to the extent the Company or such Restricted Subsidiary elects, to acquire Additional Assets within 365 days from the date of such Asset Sale (provided that any assets (other than Excluded Assets (as defined in the Security Documents)) so acquired will become part of the Collateral to the extent required by this Indenture, the Security Documents and the Intercreditor Agreements as (x) Notes-TLB Priority Collateral to the extent such assets are of the type that would constitute Notes-TLB Priority Collateral or (y) ABL Priority Collateral to the extent such assets are of the type that would constitute ABL Priority Collateral securing the Notes-TLB Obligations);

 

 

(C)            to the extent the Company or such Restricted Subsidiary elects to make an investment in a capital expenditure used or useful in a Permitted Business within 365 days after the date of such Asset Sale; provided that to the extent such investment is an asset (other than an Excluded Asset) which would constitute Collateral, such investment is thereupon added to the Collateral to the extent required by this Indenture, the Security Documents and the Intercreditor Agreements as (x) Notes-TLB Priority Collateral to the extent such investments is of the type that would constitute Notes-TLB Priority Collateral or (y) ABL Priority Collateral to the extent such investment is of the type that would constitute ABL Priority Collateral securing the Notes-TLB Obligations;

 

(D)            to make an offer to purchase the Notes and any Pari Passu Indebtedness with similar asset sale provisions, pro rata at 100% of the tendered principal amount thereof (or 100% of the accreted value of such other Pari Passu Indebtedness so tendered, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, the purchase date; and

 

(E)             to the extent of the balance of such Net Proceeds after application in accordance with clauses (A), (B), (C) and (D) above to the extent consistent with any other applicable provision of this Indenture, to fund any corporate purpose; provided, however, that in connection with any prepayment, repayment, redemption, retirement, defeasance, replacement, refinancing, discharge, purchase or repurchase of Indebtedness pursuant to clause (A) or (D) above, the Company or such Restricted Subsidiary will retire such Indebtedness; provided, further, that pending the final application of any such Net Proceeds in accordance with this clause (3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.

 

(c)            Notwithstanding the provisions of the fourth paragraph of the preceding subsection (a) and clause (3) of the preceding subsection (b), within 365 days following the receipt of any Net Proceeds from any Asset Sale, so long as (1) no Default or Event of Default has occurred and is continuing and (2) the First Lien Leverage Ratio shall be no greater than 4.50 to 1.00, determined on a pro forma basis for such Asset Sale (including a pro forma application of the net proceeds therefrom), as if such Asset Sale and the use of proceeds therefrom had occurred at the beginning of the applicable Trailing Four Quarter Period, the Company or any Restricted Subsidiary, as the case may be, may instead of applying such proceeds pursuant to the fourth paragraph of the preceding subsection (A) and/or clause (3) of the preceding subsection (B), use such proceeds to make Permitted Preferred Payments in an amount not to exceed:

 

(I) $200.0 million; provided that the assets and/or businesses comprising such Asset Sales with respect to this clause (C)(I) do not account for or produce more than 5.0% of Consolidated Cash Flow for such Trailing Four Quarter Period; plus

 

(II) $75.0 million; provided that, with respect to this clause (C)(II), such assets (1) are real estate assets (or the Equity Interests of any Subsidiary whose assets are comprised of real estate assets) sold no later than March 31, 2024 having an aggregate sales price up to $75.0 million and (2) such assets do not account for or produce more than 2.5% of Consolidated Cash Flow for such Trailing Four Quarter Period.

 

In the case of the fourth paragraph of Section 4.10(a) or clause (3)(B) of the preceding Section 4.10(b), if, during the 365-day period following the date of the Asset Sale, the Company or such Restricted Subsidiary enters into a written agreement committing it to apply such Net Proceeds in accordance with the requirements of the fourth paragraph of Section 4.10(a) or clause (3)(B) of the preceding Section 4.10(b) after such 365-day period, then such 365-day period will be extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180 days, until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement) or has been applied, as the case may be.

 

 

In the event of an Asset Sale that requires the purchase of Notes or in which the Issuers elect to purchase Notes pursuant to clause (3)(D) of this Section 4.10(b), the Issuers will be required to apply such Excess Proceeds (as defined below) to the repayment of the Notes and any other Pari Passu Indebtedness outstanding with similar provisions requiring the Issuers to make an offer to purchase such Indebtedness with the proceeds from any Asset Sale as follows:

 

(1)             the Issuers will make an offer to purchase (a “Net Proceeds Offer”) within ten Business Days of such time from all Holders of Notes of each series in accordance with the procedures set forth herein in the maximum principal amount of Notes of each series (on a pro rata basis) that may be purchased out of an amount (the “Note Amount”) equal to the product of such Excess Proceeds multiplied by a fraction, the numerator of which is the outstanding principal amount of the applicable series of Notes and the denominator of which is the sum of the outstanding principal amount of the applicable series of Notes and such Pari Passu Indebtedness; and

 

(2)             to the extent required by such Pari Passu Indebtedness to permanently reduce the principal amount of such Pari Passu Indebtedness, the Issuers will make an offer to purchase or otherwise repurchase or redeem such Pari Passu Indebtedness (a “Pari Passu Offer”) in an amount equal to the excess of the Excess Proceeds over the Note Amount at a purchase price of 100% of their principal amount (or 100% of the accreted value of such Pari Passu Indebtedness, if such Pari Passu Indebtedness was offered at a discount) plus accrued and unpaid interest, if any, to, but excluding, to the purchase date in accordance with the procedures (including prorating in the event of oversubscription) set forth herein with respect to the Net Proceeds Offer and in the documentation governing such Pari Passu Indebtedness with respect to the Pari Passu Offer. If the aggregate purchase price of the Notes and Pari Passu Indebtedness tendered pursuant to the Net Proceeds Offer and Pari Passu Offer is less than the Excess Proceeds, the remaining Excess Proceeds will be available to the Issuers for use in accordance with clause (3)(E) of this Section 4.10(b). The Issuers shall only be required to make an Net Proceeds Offer for Notes pursuant to this covenant if the Net Proceeds available therefor (after application of the proceeds as provided in clauses (3)(A), (3)(B) and (3)(C) of this Section 4.10(b)) (the “Excess Proceeds”) exceeds $50.0 million (and any lesser amounts shall be carried forward for purposes of determining whether a Net Proceeds Offer is required with respect to the Net Proceeds from any subsequent Asset Sale). Upon completion of any such Net Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. The Issuers may make a Net Proceeds Offer if Excess Proceeds are less than $50.0 million and prior to 365 days after an Asset Sale.

 

The Collateral Disposition Offer or Net Proceeds Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Net Proceeds Offer Period”). No later than five Business Days after the termination of the Net Proceeds Offer Period (the “Net Proceeds Purchase Date”), the Issuers will purchase the principal amount of Notes, Pari Passu Notes-TLB Obligations and Pari Passu Indebtedness, as applicable, required to be purchased pursuant to this covenant (the “Net Proceeds Offer Amount”) or, if less than the Net Proceeds Offer Amount has been so validly tendered and not properly withdrawn, all Notes, Pari Passu Notes-TLB Obligations and Pari Passu Indebtedness, if applicable, validly tendered and not properly withdrawn in response to the Collateral Disposition Offer or Net Proceeds Offer, as applicable.

 

If the Net Proceeds Purchase Date is on or after an interest record date and on or before the related interest payment date, then with respect to Holders who have tendered their Notes for purchase pursuant to a Collateral Disposition Offer or Net Proceeds Offer, any accrued and unpaid interest will be paid on such Net Proceeds Purchase Date to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Collateral Disposition Offer or Net Proceeds Offer.

 

 

On or before the Net Proceeds Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Net Proceeds Offer Amount of Notes, Pari Passu Notes-TLB Obligations and Pari Passu Indebtedness, as applicable, or portions of Notes, Pari Passu Notes-TLB Obligations and Pari Passu Indebtedness, as applicable, so validly tendered and not properly withdrawn pursuant to the Collateral Disposition Offer or Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been validly tendered and not properly withdrawn, all Notes, Pari Passu Notes-TLB Obligations and Pari Passu Indebtedness, as applicable, so validly tendered and not properly withdrawn, in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof in the case of the Notes. The Issuers or the applicable tender agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Net Proceeds Offer Period) mail or deliver to each tendering Holder of Notes or holder or lender of Pari Passu Notes-TLB Obligations or Pari Passu Indebtedness, as the case may be, an amount equal to the purchase price of the Notes, Pari Passu Notes-TLB Obligations or Pari Passu Indebtedness so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuers for purchase, and, in the case of Notes in non-global form, the Issuers will promptly issue a new Note, and the Trustee, upon delivery of an authentication order from the Issuers, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuers will publicly announce the results of the Collateral Disposition Offer or Net Proceeds Offer, as the case may be, on the Net Proceeds Purchase Date.

 

(d)             For purposes of Sections 4.10(a)(2) and 4.10(b)(2) above and for no other purpose, each of the following shall be deemed to be cash:

 

(1)             the amount (without duplication) of any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, or in the footnotes thereto) (other than Subordinated Debt, intercompany Indebtedness or Indebtedness for borrowed money (other than Indebtedness secured primarily by the assets subject to such Asset Sale)) of the Company or such Restricted Subsidiary that is expressly assumed by the transferee of any such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability therefor;

 

(2)             the amount of any securities, notes or other obligations received from such transferee that are within 90 days after such Asset Sale converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash actually so received); and

 

(3)             any assets or Equity Interests of the kind referred to in Sections 4.10(b)(3)(B) and 4.10(b)(3)(C).

 

Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by Section 4.14 and/or Section 5.01 and not by this Section 4.10.

 

The Issuers shall reasonably determine in their sole discretion in good faith whether, and to what extent, the Net Proceeds of an Asset Sale is attributable to Notes-TLB Priority Collateral or ABL Priority Collateral or is invested in Notes-TLB Priority Collateral or ABL Priority Collateral, taking into account all relevant factors. In the event that ABL Priority Collateral and Notes-TLB Priority Collateral (and/or other assets not constituting Collateral) is disposed of in a single transaction or series of related transactions in which the aggregate sales price or purchase price is not allocated between the ABL Priority Collateral and Notes-TLB Priority Collateral (and/or other assets not constituting Collateral), including in connection with the sale of a Guarantor which owns assets constituting both ABL Priority Collateral and Notes-TLB Priority Collateral (and/or other assets not constituting Collateral), then, solely for purposes of this Indenture, the portion of the aggregate sales price deemed to be Net Proceeds from the ABL Priority Collateral, on the one hand, and Notes-TLB Priority Collateral, on the other hand (and/or proceeds of other assets not constituting Collateral), or the portion of the purchase price deemed to be invested in ABL Priority Collateral or Notes-TLB Priority Collateral, as the case may be (and/or other assets not constituting Collateral), shall be reasonably allocated by the Issuers in their sole discretion in good faith, taking into account all relevant factors.

 

The Issuers will comply with, the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the purchase of Notes pursuant to a Collateral Disposition Offer or a Net Proceeds Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.10, the Issuers shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such compliance.

 

 

Section 4.11            Transactions with Affiliates.  

  

(a)              The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”) involving aggregate payments or consideration to or from the Company or a Restricted Subsidiary in excess of $15.0 million with respect to any single transaction or series of related transactions, unless:

 

(1)             the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and

 

(2)             the Company delivers to the Trustee:

 

(A)            with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $45.0 million but less than or equal to $75.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11; and

 

(B)            with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $75.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by either the Conflicts Committee of the Board of Directors of the Company (so long as the members of the Conflicts Committee approving the Affiliate Transaction or series of related Affiliate Transactions are disinterested) or a majority of the disinterested members of the Board of Directors of the Company, if any.

 

(b)             The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:

 

(1)             any employment, consulting or similar agreement or arrangement, employee benefit plan, equity award, equity option, equity appreciation, officer or director indemnification agreement, restricted unit agreement, severance agreement or other compensation plan or arrangement entered into by the General Partner, the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities made pursuant thereto;

 

(2)             transactions between or among the Company and/or its Restricted Subsidiaries;

 

(3)             transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;

 

(4)             payment of reasonable fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of, and compensation paid to, and indemnity or insurance provided on behalf of, officers, directors, employees or consultants of the General Partner, the Company or any of its Restricted Subsidiaries, including, but not limited to, reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;

 

 

(5)             any issuance of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;

 

(6)             Restricted Payments that do not violate the provisions of Section 4.07 hereof or any Permitted Investments;

 

(7)             payments to the General Partner with respect to reimbursement for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and as it may be amended, provided that any such amendment is not less favorable to the Company in any material respect than the agreement prior to such amendment;

 

(8)             transactions between the Company or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Company on any transaction with such other Person;

 

(9)             (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries;

 

(10)             payments to an Affiliate in respect of the Notes or the Note Guarantees or any other Indebtedness of the Company or any Restricted Subsidiary on the same basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;

 

(11)             payment of loans or advances to employees not to exceed $5.0 million in the aggregate at any one time outstanding;

 

(12)             any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;

 

(13)             transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to the Company and its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated person, in the good faith determination of the Company’s Board of Directors or any Officer of the Company involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;

 

(14)             any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an accounting, appraisal, advisory or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of Section 4.11(a) hereof; and

 

(15)             in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts that are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any of its Restricted Subsidiaries and third parties, or if neither the Company nor any of its Restricted Subsidiaries has entered into a similar contract with a third party, then the terms of which are no less favorable than those available from third parties on an arm’s-length basis.

 

 

Section 4.12            Liens.

 

(a)              The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or permit to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter acquired.

 

(b)             If any Issuer or any Guarantor, directly or indirectly, shall create, incur, assume or permit or permit to exist any Lien of any kind upon any of their property or assets (including Equity Interests of any Subsidiary), whether owned at the Issue Date or thereafter acquired, (x) in the case of Liens securing any of the ABL Obligations, Notes-TLB Obligations, Pari Passu ABL Obligations, or Pari Passu Notes-TLB Obligations, such Issuer or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant at least a first- or second-priority Lien consistent with the relative Lien priority set forth in the ABL Intercreditor Agreement, subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the ABL Intercreditor Agreement and any other applicable intercreditor agreement, (y) in the case of Liens securing Pari Passu Second Lien Obligations, such Issuer or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant at least a first- or second-priority Lien consistent with the relative Lien priority set forth in the Pari Passu Second Lien Intercreditor Agreement, subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the Pari Passu Second Lien Intercreditor Agreement and any other applicable intercreditor agreement and (z) in the case of Liens securing Junior Lien Obligations, such Issuer or such Guarantor, as the case may be, shall, contemporaneously with the incurrence of such Lien, grant a priority Lien relative to such Junior Lien Obligations, subject to Permitted Liens, upon such property or asset as security for the Notes and the Guarantees pursuant to the Junior Lien Intercreditor Agreement or other applicable intercreditor agreement.

 

(c)              Any such Lien granted to secure the Notes pursuant to clause (b) above on property or assets (which property or assets would not otherwise constitute Collateral other than as required by clause (b) above) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged in all respects upon (i) the release and discharge of the other Lien to which it relates (except a release and discharge upon payment of the obligation secured by such Lien during the pendency of any Default or Event of Default, in which case such Liens shall only be discharged and released upon payment of the Notes or cessation of such Default or Event of Default) or (ii) in the case of any such Lien in favor of any Guarantee, upon the termination and discharge of such Guarantee in accordance with this Indenture.

 

Section 4.13            Business Activities of Finance Corp.

 

Finance Corp. will not hold any material assets, become liable for any material obligations, engage in any trade or business, or conduct any business activity, other than the issuance of capital stock to the Company, the incurrence of Indebtedness as a co-issuer, co-obligor or guarantor of Indebtedness incurred by the Company (including, without limitation, the Notes) that is permitted to be incurred by the Company under Section 4.09 hereof, and activities incidental thereto.

 

Section 4.14           Offer to Repurchase Upon Change of Control.

 

(a)              Except as set forth in Section 4.14(c) below, if a Change of Control occurs, each Holder of a series of Notes will have the right, except as provided below, to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes of such series pursuant to an offer in respect of such series of Notes (“Change of Control Offer”) on the terms set forth in this Indenture.  In any Change of Control Offer, the Company will offer to make a cash payment (a “Change of Control Payment”) equal to 101% of the aggregate principal amount of Notes of such series to be repurchased plus accrued and unpaid interest, if any, on the Notes of such series repurchased to, but excluding, the date of purchase (the “Change of Control Purchase Date”), subject to the rights of Holders of such series of Notes on the relevant record date to receive interest due on the related interest payment date. Within 30 days following any Change of Control for which a Change of Control Offer is required to be made for a series of Notes, the Company will send a notice to each Holder of such series of Notes describing the transaction or transactions that constitute the Change of Control and stating:

 

 

(1)             that the Change of Control Offer is being made pursuant to this Section 4.14 and that all Notes of such series tendered, and not withdrawn, will be accepted for payment;

 

(2)             the purchase price and the Change of Control Purchase Date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is sent;

 

(3)             that any Note of a series not tendered will continue to accrue interest;

 

(4)             that, unless the Issuers default in the payment of the Change of Control Payment, all Notes of such series accepted for payment pursuant to such Change of Control Offer will cease to accrue interest after the Change of Control Purchase Date;

 

(5)             that Holders electing to have any Notes of such series purchased pursuant to a Change of Control Offer will be required to surrender the Notes of such series, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Purchase Date;

 

(6)             that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Purchase Date, a letter or electronic transmission setting forth the name of the Holder, the principal amount of Notes of such series delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes of such series purchased; and

 

(7)             that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes of such series surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

 

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes of such series as a result of a Change of Control.  To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14, or compliance with the provisions of this Section 4.14 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.14 by virtue of such compliance.

 

(b)             Promptly following the expiration of any Change of Control Offer for a series of Notes, the Company will, to the extent lawful, accept for payment all Notes or portions of Notes of such series properly tendered, and not withdrawn, pursuant to such Change of Control Offer, subject to the consummation of such Change of Control if such Change of Control Offer was made in advance of such Change of Control. Promptly after such acceptance, the Company will, on the Change of Control Purchase Date:

 

(1)             deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes of such series properly tendered and not withdrawn and accepted for payment; and

 

(2)             deliver or cause to be delivered to the Trustee the Notes of such series properly accepted for payment together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes of such series being purchased by the Company.

 

 

The Paying Agent will promptly mail or wire transfer to each Holder of Notes of such series so accepted for payment, the Change of Control Payment for such Notes (or, if all the Notes of such series are then in global form, make such payment through the facilities of the Depositary), and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes of such series surrendered, if any; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess of $2,000.  Any Note so accepted for payment will cease to accrue interest on and after the Change of Control Purchase Date, unless the Company defaults in making the Change of Control Payment.  The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date.

 

(c)              Notwithstanding any provision to the contrary, the Company will not be required to make a Change of Control Offer upon a Change of Control, if (1) a third party makes a Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in Section 4.14(a) hereof applicable to a Change of Control Offer made by the Company and purchases all Notes of such series properly tendered and not withdrawn under such Change of Control Offer, (2) notice of redemption of all outstanding Notes of such series has been given pursuant to Section 3.07 and Section 3.08 hereof, as applicable, unless and until there is a default in payment of the applicable redemption price or (3) in connection with or in contemplation of any Change of Control, the Company has made an offer to purchase (an “Alternate Offer”) any and all of such series of Notes validly tendered and not withdrawn at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes of such series properly tendered, and not withdrawn, in accordance with the terms of the Alternate Offer.  Notwithstanding anything to the contrary contained herein, a Change of Control Offer or Alternate Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time such Change of Control Offer or Alternate Offer is made.

 

(d)             In the event that Holders of not less than 90% in aggregate principal amount of the outstanding Notes of any series accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described in Section 4.14(c) hereof) purchases all of the Notes of such series held by such Holders, the Company will have the right set forth in Section 3.07(c) or Section 3.08(c), as applicable, to redeem all of the Notes of such series that remain outstanding.

 

Section 4.15            Additional Note Guarantees.

 

If, on any date after the Issue Date, (i) any Restricted Subsidiary that is not already a Subsidiary Guarantor, Guarantees (or otherwise becomes liable for) any Obligations under any Credit Facility (including the ABL Facility and Term Loan Facility), or (ii) any Domestic Subsidiary that is not already a Subsidiary Guarantor, Guarantees (or otherwise becomes liable for) any other Indebtedness for borrowed money in a principal amount in excess of $50.0 million, then, within 20 Business Days after such date, such Subsidiary will provide a Note Guarantee and concurrently become a Subsidiary Guarantor by executing a supplemental indenture in substantially the form specified in Exhibit E hereto.  Each Note Guarantee and the Liens on the Collateral securing a Note Guarantee of a Subsidiary Guarantor will be released automatically at such time as such Subsidiary Guarantor is discharged or otherwise released from all its Obligations in respect of its Guarantee of (or other liability for) any Obligations under any Credit Facility (including the ABL Facility and the Term Loan Facility) or any other Indebtedness for borrowed money in a principal amount in excess of $50.0 million; provided that such discharge or other release did not result directly from payment by such Subsidiary Guarantor in satisfaction of (a) its liability as a guarantor pursuant to such Guarantee, or (b) its primary liability for such Obligations (after demand or default under such Credit Facility).  Furthermore, each Note Guarantee of a Subsidiary Guarantor shall be subject to release as provided in Section 10.05 hereof.

 

Each Domestic Subsidiary that becomes a Subsidiary Guarantor on or after the Issue Date shall, at the time it becomes a Subsidiary Guarantor in accordance with the provisions of the immediately preceding paragraph, become a party to the applicable Security Documents, the Intercreditor Agreements and, to the extent required by this Indenture and the Security Documents, shall as promptly as practicable (or within the time periods set forth in Article XIII hereof, as applicable), execute and deliver such security instruments, financing statements, certificates, Officers’ Certificates and Opinions of Counsel (to the extent, and substantially in the form, delivered on the Issue Date) as may be necessary to vest in the Collateral Agent a perfected first- or second-priority security interest, as the case may be (subject to Permitted Liens), in properties and assets that constitute Collateral as security for the Notes or the Note Guarantees and as may be necessary to have such property or asset added to the applicable Collateral as required under the Security Documents and this Indenture, subject to the terms of the Intercreditor Agreements, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.

 

 

Section 4.16            Designation of Restricted and Unrestricted Subsidiaries.

 

The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default.  If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company.  That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.  The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. References herein to a Person becoming a Restricted Subsidiary or comparable language shall include such Person becoming a Restricted Subsidiary by redesignation of such Person from an Unrestricted Subsidiary to a Restricted Subsidiary.

 

Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof.  If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default of Section 4.09 hereof.

 

The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if: (1) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

 

Section 4.17            Covenant Suspension.

 

With respect to a series of Notes, following the first day (such date, a “Suspension Date”) on which:

 

(a)              an Investment Grade Rating Event with respect to such series of Notes occurs; and

 

(b)             no Default or Event of Default with respect to such series of Notes has occurred and is continuing, the Company and its Restricted Subsidiaries will not be subject to the following provisions of this Indenture with respect to such series of Notes (collectively with respect to such series of Notes, the “Suspended Covenants”):

 

(i)               Section 5.01(a)(4);

 

(ii)             Section 4.10(b);

 

(iii)           Section 4.07;

 

(iv)            Section 4.08;

 

 

(v)             Section 4.09;

 

(vi)            Section 4.11;

 

(vii)             Section 4.15 (but only with respect to any Domestic Subsidiary that is required to become a Subsidiary Guarantor after the date of the commencement of the applicable Suspension Date); and

 

(viii)           Section 4.16.

 

If at any time after a Suspension Date, a credit rating assigned to such series of Notes is downgraded from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default with respect to such series of Notes occurs and is continuing, then the Suspended Covenants with respect to such series of Notes will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and be applicable under this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes of such series subsequently attain an Investment Grade Rating from both Rating Agencies and no Default or Event of Default with respect to such series of Notes is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes of such series maintain an Investment Grade Rating from both Rating Agencies and no Default or Event of Default with respect to such series of Notes is in existence); provided, however, that no Default, Event of Default or breach of any kind with respect to such series of notes shall be deemed to exist under this Indenture, the Notes or the Note Guarantees of such series of notes with respect to such Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below) with respect to such series of Notes, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the Suspension Date and the Reinstatement Date with respect to a series of Notes is referred to as the “Suspension Period.”

 

On the Reinstatement Date for an applicable series of Notes, and solely with respect to such series of Notes, (i) all Indebtedness incurred during the applicable Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified under clause (2) of the definition of Permitted Debt and (ii) any Investment made after the applicable Suspension Date will be deemed to have been made on the Issue Date, so that it is classified under clause (15) of the definition of Permitted Investments. Calculations made after the applicable Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.07 will be made as though Section 4.07 had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.07(a).

 

During any period when the Suspended Covenants with respect to a series of Notes are suspended, the Board of Directors of the Company may not designate any of the Company’s Subsidiaries as Unrestricted Subsidiaries.

 

Promptly following the occurrence of any Suspension Date or Reinstatement Date with respect to a series of Notes, the Company will provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to monitor or independently determine or verify if a Suspension Date or Reinstatement Date has occurred or notify the Holders of the Notes of the applicable series of any Suspension Date or Reinstatement Date. The Trustee may provide a copy of such Officers’ Certificate to any Holder of the Notes of the applicable series upon request.

 

Section 4.18            Layering.

 

None of the Company, the Issuers or the Subsidiary Guarantors will, directly or indirectly, incur:

 

(1)             any Secured Indebtedness (other than Capital Lease Obligations) if such Secured Indebtedness is or purports to be by its terms (or by the terms of any agreement governing such Secured Indebtedness) (i) secured by Liens that, with respect to any ABL Priority Collateral, are junior in priority to any Liens securing ABL Obligations and/or any Pari Passu ABL Obligations and senior in priority to the Notes-TLB Obligations and/or any Pari Passu Notes-TLB Obligations or (ii) secured by Liens that, with respect to any Notes-TLB Priority Collateral, are junior in priority to any Liens securing the Notes-TLB Obligations and/or any Pari Passu Notes-TLB Obligations and senior in priority to ABL Obligations and/or any Pari Passu ABL Obligations; or

 

 

(2)             any Indebtedness in an aggregate principal amount in excess of $25.0 million that is subordinate in right of payment (including via any “first-out” collateral proceeds waterfall or similar structure) to (i) the ABL Obligations and/or any Pari Passu ABL Obligations unless such Indebtedness is also subordinated in right of payment to the obligations under the Notes-TLB Obligations and/or any Pari Passu Notes-TLB Obligations or (ii) the Notes-TLB Obligations and/or any Pari Passu Notes-TLB Obligations unless such Indebtedness is also subordinated in right of payment to the ABL Obligations and/or any Pari Passu ABL Obligations.

 

Section 4.19            Limitation on activities of the Company.

 

The Company will not conduct, transfer or otherwise engage in any business or operations other than (1) its direct or indirect ownership of all of the Equity Interests in, and its management of, the Issuers and its other Restricted Subsidiaries, (2) action required to maintain its existence and the performance of obligations under and compliance with its organizational documents and any requirements of any law, regulation, rule, order, judgment, decree or permit (including rules and regulations applicable to companies with equity or debt securities held by the public), (3) performance of its obligations under the ABL Credit Agreement, the Term Loan Credit Agreement and this Indenture and other agreements contemplated hereby, (4) any public offering of its Equity Interests, including the payment of any costs, fees and expenses related thereto, (5) activities incidental to guaranteeing payment and performance obligations of its Subsidiaries in the ordinary course of business, (6) incurring fees, costs and expenses relating to overhead and general operating including professional fees and paying taxes, (7) providing indemnification for its and the General Partner’s current and former officers, directors, members of management, managers, employees and advisors and consultants, (8) other activities to the extent not prohibited by, and in compliance with, the ABL Credit Agreement, the Term Loan Credit Agreement and this Indenture and (9) activities incidental to its maintenance and continuance and to any of the foregoing activities.

 

Section 4.20            Limited Condition Transactions.

 

In connection with determining whether any Limited Condition Transaction and any actions or transactions related thereto (including the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens and the making of Restricted Payments and Investments) is permitted hereunder, for which determination requires the calculation of any financial ratio, test or basket, each calculated on a pro forma basis, at the option of Operating LLC (Operating LLC’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction, such Limited Condition Transaction would have been permitted on the relevant LCT Test Date in compliance with such provision. For the avoidance of doubt, if Operating LLC has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated Cash Flow of the Company, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied with as a result of such fluctuations (and no Default or Event of Default shall be deemed to have occurred due to such failure to comply), and (2) in calculating the availability under any ratio, test or basket in connection with any action or transaction unrelated to such Limited Conditional Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated and the date that the definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction.

 

  

ARTICLE V

 SUCCESSORS

 

Section 5.01            Merger, Consolidation, or Sale of Assets.

 

(a)              The Company shall not (x) consolidate, amalgamate or merge with or into another Person (regardless of whether the Company is the surviving entity), or (y) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless:

 

(1)             either:

 

(A)            the Company is the surviving entity; or

 

(B)            the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia;

 

(2)             the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under its Note Guarantee, this Indenture, the Intercreditor Agreements and the Security Documents pursuant to a supplemental indenture;

 

(3)             immediately after such transaction, no Default or Event of Default exists;

 

(4)             immediately after giving effect to such transaction and any related financing transaction on a pro forma basis as if the same had occurred at the beginning of the Trailing Four Quarter Period, either (a) the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof or (b) the Fixed Charge Coverage Ratio of the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made, is equal to or greater than the Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; and

 

(5)             the Company delivers, or causes to be delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or disposition and, such supplemental indenture, comply with the requirements of this Indenture; and

 

(6)             to the extent any assets of the Person which is merged, amalgamated or consolidated with or into the Company are assets of the type which would constitute Collateral under the Security Documents, the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required pursuant to Section 4.15, the Intercreditor Agreements and the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Indenture, the Intercreditor Agreements and the applicable Security Documents.

 

(b)             Notwithstanding the restrictions set forth in clause (4) of Section 5.01(a) hereof, any Restricted Subsidiary (other than the Issuers) may consolidate with, amalgamate with or merge into or dispose of all or part of its properties or assets to the Company without complying with such clause (4) in connection with any such consolidation, amalgamation, merger or disposition.

 

 

(c)              Notwithstanding Section 5.01(a) hereof, the Company is permitted to reorganize as any other form of entity, provided that:

 

(1)             the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Company into a form of entity other than a limited partnership formed under Delaware law;

 

(2)             the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia;

 

(3)             the entity so formed by or resulting from such reorganization assumes all the obligations of the Company under the Notes, this Indenture, the Intercreditor Agreements and the Security Documents;

 

(4)             immediately after such reorganization no Default or Event of Default exists;

 

(5)             to the extent any assets of the Person which is merged, amalgamated or consolidated with or into the Company are assets of the type which would constitute Collateral under the Security Documents, the Company or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required in this Indenture, the Intercreditor Agreements and the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Indenture, the Intercreditor Agreements and the applicable Security Documents;

 

(6)             such reorganization is not materially adverse to the Holders or Beneficial Owners of the Notes (for purposes of this clause (6), a reorganization will not be considered materially adverse to the Holders or Beneficial Owners of the Notes solely because the successor or survivor of such reorganization (a) is subject to federal or state income taxation as an entity or (b) is considered to be an “includible corporation” of an affiliated group of corporations within the meaning of Section 1504(b) of the Internal Revenue Code or any similar state or local law); and

 

(7)             the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such reorganization, and, if a supplemental indenture or other agreement is required, such supplemental indenture or other agreement, comply with this Indenture.

 

(d)             For purposes of this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries, which properties or assets, if held by the Company instead of such Restricted Subsidiaries, would constitute all or substantially all of the properties or assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties or assets of the Company.

 

(e)              Neither of the Issuers will (1) consolidate, amalgamate or merge with or into another Person (regardless of whether such Issuer is the surviving entity), or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, unless:

 

(1)             either: (a) such Issuer is the surviving entity; or (b) the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that Finance Corp. may not consolidate, amalgamate or merge with or into any Person other than a corporation satisfying such requirement so long as Operating LLC is not a corporation;

 

 

(2)             the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of such Issuer under the Notes, this Indenture, the Intercreditor Agreements and the Security Documents pursuant to a supplemental indenture;

 

(3)             immediately after such transaction, no Default or Event of Default exists;

 

(4)             the Company delivers, or causes to be delivered, to the Trustee, an Officers’ Certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger or disposition and such supplemental indenture comply with the requirements of this Indenture; and

 

(5)             to the extent any assets of the Person which is merged, amalgamated or consolidated with or into such Issuer are assets of the type which would constitute Collateral under the Security Documents, such Issuer or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required by Section 4.15, the Intercreditor Agreements and the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Indenture, the Intercreditor Agreements and the applicable Security Documents.

 

(f)               Notwithstanding anything herein to the contrary, in the event that Operating LLC becomes corporation or Operating LLC or the Person formed by or surviving any consolidation, amalgamation or merger permitted hereunder is a corporation, Finance Corp. may be merged into Operating LLC or it may be dissolved and cease to be an Issuer.

 

(g)             A Subsidiary Guarantor will not sell or otherwise dispose of, in one or more related transactions, all or substantially all of its properties or assets to, or consolidate with or amalgamate with or merge with or into (regardless of whether such Subsidiary Guarantor is the surviving Person), another Person, other than the Company, an Issuer or another Subsidiary Guarantor, unless either:

 

(1)             (a) immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default exists and (b) either (i) such Subsidiary Guarantor is the surviving Person of such consolidation, amalgamation or merger or (ii) the Person acquiring the properties or assets in any such sale or other disposition or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) unconditionally assumes all the obligations of such Subsidiary Guarantor under its Note Guarantee, this Indenture, the Intercreditor Agreements and the Security Documents pursuant to a supplemental indenture and, to the extent any assets of the Person which is merged, amalgamated or consolidated with or into such Subsidiary Guarantor are assets of the type which would constitute Collateral under the Security Documents, such Subsidiary Guarantor or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Subsidiary Guarantor) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made, as applicable, will take such action, if any, as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Security Documents in the manner and to the extent required by this Indenture, the Intercreditor Agreements and the applicable Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by this Indenture, the Intercreditor Agreements and the applicable Security Documents; or

 

(2)             such transaction or series of transactions does not violate Section 4.10 hereof.

 

 

Section 5.02            Successor Entity Substituted.  

 

Upon any consolidation, amalgamation or merger or any sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the properties or assets of an Issuer in accordance with Section 5.01 hereof in which such Issuer is not the surviving entity, the surviving Person formed by such consolidation, amalgamation or merger into or with which such Issuer is merged or to which such sale, assignment, transfer, conveyance, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer under this Indenture with the same effect as if such surviving Person had been named as such Issuer in this Indenture, and thereafter (except in the case of a lease of all or substantially all of such Issuer’s properties or assets), such Issuer will be relieved of all obligations and covenants under this Indenture and the Notes.

 

ARTICLE VI
DEFAULTS AND REMEDIES

 

Section 6.01            Events of Default.

 

Each of the following is an “Event of Default” with respect to a series of Notes:

 

(1)            default for 30 days in the payment when due of interest on the Notes of such series;

 

(2)            default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes of such series;

 

(3)            failure by the Company to comply with its obligations under Section 5.01 hereof or to consummate a purchase of Notes of such series when required pursuant to Section 4.10 or Section 4.14 hereof;

 

(4)             failure by the Company or any of its Restricted Subsidiaries for 30 days after written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes of such series to comply with the provisions of Section 4.07 or Section 4.09 hereof or to comply with the provisions of Section 4.10 or Section 4.14 hereof to the extent not described in clause (3) of this Section 6.01;

 

(5)             (a) except as addressed in subclause (b) of this clause (5), failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes of the applicable series to comply with any of the other agreements in this Indenture or the Notes of such series (other than the Other Specified Collateral Requirements) or (b) failure by the Company for 180 days after notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes of the applicable series to comply with Section 4.03 hereof;

 

(6)             default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default:

 

(A)            is caused by a failure to pay principal of, premium, if any, on, or interest, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or

 

(B)            results in the acceleration of such Indebtedness prior to its Stated Maturity,

 

 

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness for which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $100.0 million or more; provided that if, prior to any acceleration of the Notes of such series, (i) any such default is cured or waived, (ii) any such acceleration of such Indebtedness is rescinded, or (iii) such Indebtedness is repaid, within a period of 10 Business Days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, any Default or Event of Default (but not any acceleration of the Notes of such series) shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree;

 

(7)             failure by the Company or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final, non-appealable judgments (entered by a court or courts of competent jurisdiction) aggregating in excess of $100.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days;

 

(8)             except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee, except, in each case, by reason of the release of such Note Guarantee in accordance with this Indenture;

 

(9)             an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:

 

(A)            commences a voluntary case or proceeding;

 

(B)            consents to the entry of an order for relief against it in an involuntary case or proceeding;

 

(C)            consents to the appointment of a custodian, receiver or monitor of it or for all or substantially all of its property;

 

(D)            makes a general assignment for the benefit of its creditors; or

 

(E)             generally is not paying its debts as they become due; or

 

(10)             a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(A)            is for relief against any Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding;

 

(B)            appoints a custodian, receiver or monitor of any Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or

 

(C)            orders the liquidation of an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary;

 

and the order or decree remains unstayed and in effect for 60 consecutive days.

 

 

(11)             (i) the Liens created by any Security Document shall at any time not constitute a valid and perfected Lien on any Collateral intended to be covered thereby with a Fair Market Value, individually or in the aggregate, in excess of $50.0 million other than (A) in accordance with the terms of the relevant Security Documents and this Indenture, (B) the satisfaction in full of all Obligations under this Indenture or (C) any loss of perfection that results from the failure of the Collateral Agent to maintain possession of certificates delivered to it representing securities pledged under the Security Documents, and which default continues for 30 days; (ii) the repudiation by any Issuer or any Guarantor in any pleading in any court of competent jurisdiction of any of its material obligations under the Security Documents or to file UCC continuation statements or PPSA financing change statements; or

 

(12)             any Issuer or any Guarantor shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document is invalid or unenforceable other than by reason of the termination of this Indenture or the release of any such Collateral in accordance with this Indenture.

 

Notwithstanding the foregoing, the failure of the Company or its Restricted Subsidiaries to satisfy the Other Specified Collateral Requirements shall not be an “Event of Default” under this Indenture; provided, that, upon the failure of the Company and its Restricted Subsidiaries to deliver all Other Specified Collateral Deliverables for all Other Specified Properties within the time periods and to the extent required by this Indenture (whether or not the Company and its Restricted Subsidiaries shall have used their commercially reasonable efforts (to the extent required in the Other Specified Collateral Requirements) to deliver such Other Specified Collateral Deliverables for such Other Specified Properties within such time periods, provided further that if the aggregate Designated Value of all Other Specified Properties with respect to which the applicable Other Specified Collateral Deliverables have not been satisfied exceeds the threshold set forth in 2(b) of the definition of “Material Real Property Asset” by less than 10%, such applicable time period shall be extended by 90 days) interest on the Notes shall accrue at a rate equal to 2.00% plus the interest rate otherwise applicable to the Notes until such time as such Other Specified Collateral Deliverables are satisfied. For the avoidance of doubt, for purposes of the proviso in the foregoing sentence, compliance with this paragraph shall be determined with respect to those Material Real Property Assets calculated without giving any effect to the penultimate paragraph under Section 13.05. In the event the 90 day time extension described in the second proviso of the second preceding sentence applies, and such collateral deficiency is not cured by the end of such 90 day period, the additional interest shall accrue as if such 90 day extension period had not applied.

 

Section 6.02            Acceleration.

 

In the case of an Event of Default specified in clause (9) or (10) of Section 6.01 hereof, with respect to either Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, all principal of, and accrued but unpaid interest on, all outstanding Notes of such series will become due and payable immediately without further action or notice (subject to applicable law).  If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes of such series may declare all principal of, and accrued but unpaid interest, if any, on, all the outstanding Notes of such series to be due and payable immediately, by notice in writing to the Company and, in the case of a notice by such Holders, also to the Trustee specifying the respective Event of Default and that it is a notice of acceleration.

 

Upon any such declaration, the Notes of such series shall become due and payable immediately.

 

The Holders of a majority in aggregate principal amount of the then outstanding Notes of a series by written notice to the Trustee may, on behalf of the Holders of all of the Notes of such series, rescind an acceleration and its consequences if the rescission would not violate any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium, if any, that has become due solely because of the acceleration) have been cured or waived.

 

 

Section 6.03            Other Remedies.  

  

If an Event of Default occurs and is continuing, subject to the terms of the Intercreditor Agreements, the Trustee may pursue any available remedy to collect the payment of principal of, premium, if any, on, or interest, if any, on, the Notes of a series or to enforce the performance of any provision of the Notes of such series or this Indenture.

 

The Trustee may maintain a proceeding even if it does not possess any of the Notes of such series or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative to the extent permitted by law.

 

Section 6.04            Waiver of Past Defaults.

 

Holders of a majority in aggregate principal amount of the then outstanding Notes of a series by written notice to the Trustee and the Collateral Agent may, on behalf of the Holders of all of the Notes of such series, waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium, if any, on, or interest, if any, on, the Notes of such series; provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes of such series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.  Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 6.05            Control by Majority.

 

Holders of a majority in aggregate principal amount of the then outstanding Notes of a series may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Agent or exercising any trust or power conferred on it, in each case with respect to such series of Notes.  However, the Trustee or the Collateral Agent may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee or the Collateral Agent in personal liability.

 

Section 6.06            Limitation on Suits.

 

Subject to the provisions of Section 7.01 hereof, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any Holders of Notes of the applicable series of Notes unless such Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense. Except to enforce the right with respect to a series of Notes to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note of either series of Notes may pursue any remedy with respect to this Indenture or the Notes of such series unless:

 

(1)             such Holder has previously given the Trustee written notice that an Event of Default is continuing;

 

(2)             Holders of at least 30% in aggregate principal amount of the then outstanding Notes of such series make a written request to the Trustee to pursue the remedy;

 

(3)             such Holder or Holders offer and provide to the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;

 

(4)             the Trustee does not comply with such request within 60 days after receipt of the request and the offer of security or indemnity; and

 

 

(5)             during such 60-day period, Holders of a majority in aggregate principal amount of the then outstanding Notes of such series do not give the Trustee a direction inconsistent with such request.

 

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.

 

Section 6.07            Rights of Holders of Notes to Receive Payment.

 

Notwithstanding any other provision of this Indenture, but subject to the terms of the Intercreditor Agreements, the right of any Holder of a Note to receive payment of principal of, and premium, if any, and interest, if any, on, the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be amended without the consent of such Holder.

 

Section 6.08            Collection Suit by Trustee.

 

If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuers for the whole amount of the principal, premium, if any, or interest, if any, remaining unpaid on the Notes and interest on overdue principal and premium, if any, and to the extent lawful, interest, if any, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, its agents and counsel.

 

Section 6.09            Trustee May File Proofs of Claim.

 

The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, its agents and counsel) and the Holders of Notes allowed in any judicial proceedings relative to the Issuers (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, its agents and counsel, and any other amounts due the Trustee or the Collateral Agent under Section 7.07 hereof.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, its agents and counsel, and any other amounts due the Trustee or the Collateral Agent under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 6.10            Priorities.

 

If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in the following order:

 

First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

 

Second: to Holders of Notes of a series for amounts due and unpaid on the Notes on such series for principal, premium, if any, and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, if any, respectively; and

 

Third: to the Issuers or to such party as a court of competent jurisdiction shall direct.

 

The Trustee may fix a record date and payment date for any payment to Holders of Notes of such series pursuant to this Section 6.10.

 

Section 6.11            Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes of a series.

 

ARTICLE VII
TRUSTEE

 

Section 7.01            Duties of Trustee.

 

(a)              If an Event of Default has occurred and is continuing with respect to a series of Notes, the Trustee will be required, in the exercise of its power vested in it by this Indenture, to use the degree of care of a prudent man in the conduct of his own affairs.

 

(b)             Except during the continuance of an Event of Default:

 

(1)             the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth (or incorporated by reference) in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)             in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.  However, the Trustee will examine the certificates and opinions to determine whether they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein.

 

(c)              The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1)             this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

 

(2)             the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(3)             the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

(d)             Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.

 

 

(e)              The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

(f)               The Trustee shall have no obligation to (i) independently determine or verify whether the conditions for the termination of covenants as provided in Section 4.17 have been satisfied or (ii) notify the Holders of the occurrence of such termination of covenants.

 

Section 7.02            Rights of Trustee.

 

(a)              The Trustee may conclusively rely upon any document believed by it in good faith to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in the document.

 

(b)             Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both.  The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c)              The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with due care.

 

(d)             The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

(e)              Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuers will be sufficient if signed by an Officer of each of the Company and Finance Corp.

 

(f)               No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.  The Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in connection with its compliance with such request.

 

(g)             The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions, or agreements on the part of the Company, except as otherwise set forth herein.

 

(h)             The permissive right of Trustee to do things enumerated in this Indenture shall not be construed as a duty.

 

(i)               In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(j)               The Trustee shall not be responsible or liable for any action taken or omitted by it in good faith at the direction of the Holders of a series of Notes of not less than a majority in principal amount of the Notes of such series outstanding as to the time, method and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred by this Indenture.

 

(k)             The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

 

(l)               Any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request or authority or consent of any Person who, at the time of making such request or giving such authority or consent, is a Holder of the Notes shall be conclusive and binding upon all future Holders of such Notes and upon Notes executed and delivered in exchange therefor or in place thereof.

 

 

Section 7.03            Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee.  However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the TIA) or resign.  Any Agent may do the same with like rights and duties.  The Trustee is also subject to Section 7.10 hereof.

 

Section 7.04            Trustee’s Disclaimer.

 

The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers’ use of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers’ direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

Section 7.05            Notice of Defaults.

 

If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee will send to the Holders of Notes of such series a notice of the Default or Event of Default within 90 days after it occurs.  Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest, if any, on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of Notes of such series.

 

The Trustee will not be deemed to have notice of any Default or Event of Default, except Events of Default under clause (1) or (2) of Section 6.01 hereof, unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event that is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes of such series affected and this Indenture.

 

Section 7.06            [Reserved].

 

Section 7.07            Compensation and Indemnity.

 

(a)              The Issuers will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services provided hereunder.  The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust.  The Issuers will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

(b)             The Issuers and the Guarantors will indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuers and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuers, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense is found by a court of competent jurisdiction to have been caused by its own negligence, bad faith or willful misconduct.  The Trustee will notify the Issuers and the Guarantors promptly of any claim for which it may seek indemnity.  Failure by the Trustee to so notify the Issuers and the Guarantors will not relieve the Issuers or any of the Guarantors of their obligations hereunder unless the failure to notify the Issuers or the Guarantors impairs any Issuer’s or Guarantor’s respective ability to defend such claim.  Such Issuer or such Guarantor will defend the claim and the Trustee will cooperate in the defense.  The Trustee may have separate counsel and the Issuers will pay the reasonable fees and expenses of such counsel.  Neither Issuer nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.

 

 

(c)              The obligations of the Issuers and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture, and the resignation or removal of the Trustee.

 

(d)             To secure the Issuers’ and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest, if any, on, particular Notes.  Such Lien will survive the satisfaction and discharge of this Indenture.

 

(e)              When the Trustee incurs expenses or renders services after an Event of Default specified in clause (9) or (10) of Section 6.01 hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

Section 7.08            Replacement of Trustee.

 

(a)              A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

 

(b)             The Trustee may resign in writing at any time and be discharged from the trust hereby created only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.  The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing.  The Issuers may remove the Trustee if:

 

(1)             the Trustee fails to comply with Section 7.10 hereof;

 

(2)             the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(3)             a custodian or public officer takes charge of the Trustee or its property; or

 

(4)             the Trustee becomes incapable of acting.

 

(c)              If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuers will promptly appoint a successor Trustee.  Within one year after such successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuers.

 

(d)             If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the expense of the Issuers), the Issuers, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes of such series may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(e)              If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(f)               A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers.  Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee will send a notice of its succession to Holders.  The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof.  Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuers’ obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.

 

 

Section 7.09            Successor Trustee by Merger, etc.

 

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another Person, the successor Person without any further act will be the successor Trustee.

 

Section 7.10            Eligibility; Disqualification.

 

There will at all times be a Trustee hereunder that is a corporation or banking association organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.

 

This Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), (2) and (5). If this Indenture becomes qualified under the TIA, the Trustee shall be subject to TIA § 310(b) including the provision in Section § 310(b)(1); provided that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Issuer or the Guarantors are outstanding if the requirements for exclusion set forth in TIA § 310(b)(1) are met.

 

ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 8.01            Option to Effect Legal Defeasance or Covenant Defeasance.

 

The Issuers may at any time, at the option of their respective Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or Section 8.03 hereof be applied to all outstanding Notes of a series upon compliance with the conditions set forth below in this Article VIII.

 

Section 8.02            Legal Defeasance and Discharge.

 

Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section 8.02, each Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes of a series (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that the Issuers and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes of such series (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

 

(1)             the rights of Holders of outstanding Notes of such series to receive payments in respect of the principal of, or interest or premium, if any, on the Notes of such series when such payments are due from the trust referred to in Section 8.04 hereof;

 

(2)             the Issuers’ obligations with respect to the Notes of such series under Section 2.04, Section 2.06, Section 2.07, Section 2.10 and Section 4.02 hereof;

 

(3)             the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuers’ and the Guarantors’ obligations in connection therewith; and

 

 

 

(4)           the Legal Defeasance provisions of this Article VIII.

 

Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

 

Section 8.03          Covenant Defeasance.

 

Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuers and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under Section 4.03, Section 4.07, Section 4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.12, Section 4.13, Section 4.14, Section 4.15, Section 4.16, Section 4.18 and Section 4.19 and Section 5.01(a)(4) hereof with respect to the outstanding Notes of such series on and after the date the conditions set forth in Section 8.04 hereof are satisfied (such release and termination hereinafter referred to as “Covenant Defeasance”), and such Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees with respect to such series, the Issuers and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby.  In addition, upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, clauses (3) through (8) and clauses (11) and (12) of Section 6.01 hereof and, only with respect to Subsidiaries of the Company (other than any Issuer), clauses (9) and (10) of Section 6.01 hereof will not constitute Events of Default.

 

Section 8.04          Conditions to Legal or Covenant Defeasance.

 

In order to exercise either Legal Defeasance under Section 8.02 hereof or Covenant Defeasance under Section 8.03 hereof:

 

(1)           the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of Notes of such series, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in amounts as will be sufficient, based on the written report or certificate or opinion of a nationally recognized investment bank, or an appraisal firm, valuation firm or firm of independent public accountants, to pay the principal of, or interest and premium, if any, on the outstanding Notes of such series on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Issuers must specify whether the Notes of such series are being defeased to such stated date for payment or to a particular redemption date;

 

(2)           in the case of an election under Section 8.02 hereof, the Issuers must deliver to the Trustee an Opinion of Counsel confirming that

 

(A)               the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling; or

 

(B)               since the Issue Date, there has been a change in the applicable federal income tax law,

 

in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders and beneficial owners of the outstanding Notes of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

 

(3)           in the case of an election under Section 8.03 hereof, the Issuers must deliver to the Trustee an Opinion of Counsel confirming that the Holders and beneficial owners of the outstanding Notes of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(4)           no Default or Event of Default with respect to such series of Notes has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), and the granting of Liens to secure such borrowings);

 

(5)           such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Issuers or any of the Guarantors is a party or by which the Issuers or any of the Guarantors is bound;

 

(6)           the Issuers must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Issuers with the intent of preferring the Holders of Notes of such series over the other creditors of the Issuers with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuers or others;

 

(7)           the Company must deliver to the Trustee an Officers’ Certificate, stating that all conditions precedent set forth in clauses (1) through (6) of this Section 8.04 have been complied with; and

 

(8)           the Company must deliver to the Trustee an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions, qualifications and exclusions), stating that all conditions precedent set forth in clauses (2), (3) and (5) of this Section 8.04 have been complied with; provided that the Opinion of Counsel with respect to clause (5) of this Section 8.04 may be to the knowledge of such counsel.

 

Section 8.05          Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.

 

Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including an Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

The Issuers will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

 

Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Issuers from time to time, upon the request of the Issuers any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under clause (1) of Section 8.04 hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

 

Section 8.06           Repayment to Company.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in trust for the payment of the principal of, premium, if any, or interest, if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest, if any, has become due and payable shall be paid to the Company on its request or (if then held by the Issuers) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of each such Issuer as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall, at the written request and at the expense of the Issuers, cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 8.07          Reinstatement.

 

If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or Section 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers’ and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees with respect to such series will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or Section 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or Section 8.03 hereof, as the case may be; provided, however, that, if the Issuers make any payment of principal of, premium, if any, or interest, if any, on, any Note following the reinstatement of its obligations, the Issuers will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

 

ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER

 

Section 9.01          Without Consent of Holders of Notes.

 

Notwithstanding Section 9.02 hereof, without the consent of any Holder of Notes, the Issuers, the Guarantors and the Trustee and Collateral Agent (if applicable) may amend or supplement this Indenture, the Notes of any series and the related Note Guarantees, the Intercreditor Agreements or the Security Documents (subject to compliance with the Intercreditor Agreements):

 

(1)           to cure any ambiguity, defect, mistake or inconsistency;

 

(2)           to provide for uncertificated Notes of such series in addition to or in place of certificated Notes;

 

(3)           to provide for the assumption of an Issuer’s or a Guarantor’s obligations to Holders of Notes of such series and Note Guarantees and under the Security Documents in the case of a merger, amalgamation or consolidation or sale of all or substantially all of such Issuer’s or Guarantor’s properties or assets, as applicable;

 

(4)           to make any change that would provide any additional rights or benefits to the Holders of Notes of such series or that does not adversely affect the legal rights under this Indenture of any such Holder of such series;

 

(5)           at the Issuers’ election, to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA, if such qualification is required;

 

 

(6)           to conform the text of this Indenture, the Note Guarantees, the Notes of any series, the Security Documents or the Intercreditor Agreements (as evidenced by an Officers’ Certificate) to any provision of the “Description of the notes” section of the Offering Memorandum to the extent that such provision in that “Description of the notes” was intended to be a verbatim recitation of a provision of this Indenture, the Notes of such series, the Security Documents, the Intercreditor Agreements or the Note Guarantees;

 

(7)           to provide for the issuance of Additional Notes of any series in accordance with the limitations set forth in this Indenture as of the Issue Date;

 

(8)           to make, complete or confirm any grant of Collateral permitted or required by this Indenture or the Security Documents or any release, termination or discharge of Collateral that becomes effective as set forth in this Indenture or any of the Security Documents;

 

(9)           to add any additional Guarantor or to evidence the release of any Guarantor from its Note Guarantee and the termination of such Note Guarantee, all in accordance with the provisions of this Indenture governing such release and termination;

 

(10)         to evidence or provide for the acceptance of appointment under this Indenture of a successor Trustee or a successor Collateral Agent;

 

(11)         grant any Lien for the benefit of the holders of any future Pari Passu Notes-TLB Obligations, Pari Passu ABL Obligations, Pari Passu Second Lien Obligations or Junior Lien Obligations in accordance with and as permitted by the terms of this Indenture, and the Intercreditor Agreements (and, with respect to Pari Passu Second Lien Obligations or Junior Lien Obligations, any Pari Passu Second Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable);

 

(12)         add additional secured parties to the Intercreditor Agreements to the extent Liens securing obligations held by such parties are permitted under this Indenture;

 

(13)         mortgage, pledge, hypothecate or grant a security interest in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes as additional security for the payment and performance of the Issuers’ and any Guarantor’s obligations under this Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee or the Collateral Agent in accordance with the terms of this Indenture or otherwise; or

 

(14)         provide for the succession of any parties to the Security Documents (and other amendments that are administrative or ministerial in nature) and the Intercreditor Agreements in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any agreement in accordance with the terms of this Indenture, the Intercreditor Agreements and the relevant Security Documents.

 

In addition, the Holders of the Notes will be deemed to have consented for purposes of the Security Documents and the Intercreditor Agreements to any of the following amendments, waivers and other modifications to the Security Documents and the Intercreditor Agreements:

 

(1)           (A) to add other parties (or any authorized agent thereof or trustee therefor) holding Pari Passu Notes-TLB Obligations that are incurred in compliance with the ABL Credit Agreement, the Term Loan Credit Agreement and the Notes Documents and (B) to establish that the Liens on any Collateral securing such Pari Passu Notes-TLB Obligations shall be equal in right of payment with the Liens on such Collateral securing the Notes-TLB Obligations;

 

(2)           (A) to add other parties (or any authorized agent thereof or trustee therefor) holding Pari Passu ABL Obligations that is incurred in compliance with the ABL Credit Agreement, the Term Loan Credit Agreement and the Notes Documents, (B) to establish that the Liens on any Collateral securing such Pari Passu ABL Obligations shall be equal in right of payment with the Liens on such Collateral securing the ABL Obligations and senior to the Liens on such ABL Priority Collateral securing any Notes-TLB Obligations, all on the terms provided for in the Intercreditor Agreements in effect immediately prior to such amendment, (C) to establish that the Liens on any Notes-TLB Priority Collateral securing such Pari Passu ABL Obligations shall be junior and subordinated to the Liens on such Notes-TLB Priority Collateral securing any Notes-TLB Obligations, all on the terms provided for in the Intercreditor Agreements in effect immediately prior to such amendment;

 

 

(3)           to establish that the Liens on any ABL Priority Collateral securing any Indebtedness replacing the ABL Credit Agreement permitted to be incurred under clause (1) of the definition of Permitted Debt shall be senior to the Liens on such ABL Priority Collateral securing any obligations under any Notes-TLB Obligations, and that any Notes-TLB Obligations shall continue to be secured on a first-priority basis by the Notes-TLB Priority Collateral and on a second-priority basis on the ABL Priority Collateral; and

 

(4)           upon any cancellation or termination of the ABL Credit Agreement without a replacement thereof, to establish that the ABL Priority Collateral shall become Notes-TLB Priority Collateral.

 

Any such additional party, the ABL Collateral Agent, the Term Loan Collateral Agent, the Trustee and the Collateral Agent shall be entitled to rely upon an Officers’ Certificate certifying that such Pari Passu Notes-TLB Obligations or Pari Passu ABL Obligations, as the case may be, was issued or borrowed in compliance with the ABL Credit Agreement, the Term Loan Credit Agreement and the Notes Documents, and no Opinion of Counsel shall be required in connection therewith.

 

The Holders also will be deemed to have consented for purposes of this Indenture, the Security Documents and the Intercreditor Agreements to the execution and delivery by the Trustee and Collateral Agent of a Pari Passu Second Lien Intercreditor Agreement or a Junior Lien Intercreditor Agreement to the extent it is approved by the ABL Collateral Agent or, if the ABL Credit Agreement has been replaced, any other agent for the holders of ABL Obligations.

 

Upon the request of the Issuers accompanied by resolutions of their respective Boards of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Issuers and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

 

Section 9.02          With Consent of Holders of Notes.

 

Except as provided below in this Section 9.02, the Issuers, the Guarantors and the Trustee may amend or supplement this Indenture (including, without limitation, Section 4.10 and Section 4.14 hereof), the Notes of each series, the Note Guarantees or the Security Documents (subject to compliance with the Intercreditor Agreements) with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes of each series affected by such amendment or supplement (including, without limitation, Additional Notes of each such series, if any) voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes of such series), and, subject to Section 6.04 and Section 6.07 hereof, any existing Default or Event of Default as it relates to such Notes or compliance with any provision of this Indenture, the Notes of each series or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes of each series affected by such waiver (including, without limitation, Additional Notes of each such series, if any), voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes of such series).

 

 

Upon the request of the Issuers accompanied by resolutions of their respective Boards of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Issuers and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture.

 

It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient if such consent approves the substance of the proposed amendment, supplement or waiver.

 

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will send to the Holders of Notes of each series affected thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to send such notice, or any defect therein, will not, however, in any way amend the validity of any such amendment, supplement or waiver.  Subject to Section 6.04 and Section 6.07 hereof, the Holders of a majority in aggregate principal amount of the then outstanding Notes of such series, voting as a single class, may waive compliance in a particular instance by the Company with any provision of this Indenture, the Notes or the Note Guarantees.  However, without the consent of each Holder affected, an amendment or waiver under this Section 9.02 may not (with respect to any Notes of such series held by a non-consenting Holder):

 

(1)           reduce the principal amount of such series of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)           reduce the principal of or change the fixed maturity of any Note of such series or alter or waive any of the provisions with respect to the redemption of such Notes; provided, however, that any provision with respect to any purchase or repurchase of such Notes, including pursuant to Section 4.10 and Section 4.14 hereof, shall not be deemed a provision with respect to any redemption of such Notes; and provided, further, that any amendment to the minimum notice requirement may be made with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding;

 

(3)           reduce the rate of or change the time for payment of interest, including default interest, on any Note of such series;

 

(4)           waive a Default or Event of Default in the payment of principal of, premium, if any, or interest, if any, on, the Notes of such series (except a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the then outstanding Notes of such series and a waiver of the payment default that resulted from such acceleration);

 

(5)           make any Note of such series payable in money other than that stated in such Notes;

 

(6)           make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of the applicable series of Notes to receive payments of principal of, premium, if any, or interest, if any, on, the Notes of such series;

 

(7)           waive a redemption payment with respect to any Note of such series; provided, however, that any purchase or repurchase of Notes of such series, including pursuant to Section 4.10 and Section 4.14 hereof, shall not be deemed a redemption of the Notes of such series;

 

(8)           release any Guarantor from any of its obligations under its Note Guarantee with respect to such series of Notes or this Indenture, except in accordance with the terms of this Indenture; or

 

(9)           make any change in the preceding amendment, supplement and waiver provisions.

 

 

In addition, with respect to a series of Notes, without the consent of the Holders of at least 66^2/3 of the principal amount of such Notes then outstanding (including, without limitation, consents obtained in connected with a purchase of, or tender offer or exchanged offer for, such Notes), no amendment, supplement or waiver may amend any of the Security Documents or this Indenture with respect to such Series of Notes if such amendment, supplement or waiver has the effect of releasing all or substantially all of the Collateral from the Liens under this Indenture or any Security Documents with respect to such series of Notes.

 

Section 9.03          [Reserved].

 

Section 9.04          Revocation and Effect of Consents.

 

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

 

The Issuers may fix a record date for determining which Holders must consent to such amendment, supplement or waiver.  If the Issuers fix a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 2.05 hereof, or (ii) such other date as the Issuers shall designate.

 

Section 9.05          Notation on or Exchange of Notes.

 

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated.  The Issuers in exchange for all Notes of a series may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

 

Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.

 

Section 9.06           Trustee to Sign Amendments, etc.

 

The Trustee will sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee.  No Issuer may sign an amended or supplemental indenture until its Board of Directors approves it.  In executing any amended or supplemental indenture, the Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

 

ARTICLE X
NOTE GUARANTEES

 

Section 10.01       Guarantee.

 

(a)           Subject to this Article X, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuers hereunder or thereunder, that:

 

(1)           the principal of, premium, if any, and interest on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on, the Notes, if lawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

 

 

(2)           in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

 

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

(b)           The Guarantors hereby agree that, to the maximum extent permitted under applicable law, their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against any Issuer, any action to enforce the same or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Guarantor.  To the extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against an Issuer, protest, notice and all demands whatsoever and covenant that the Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

 

(c)            If any Holder or the Trustee is required by any court or otherwise to return to the Issuers, the Guarantors or any custodian, trustee, liquidator, monitor or other similar official acting in relation to either the Issuers or the Guarantors, any amount paid by either to the Trustee or such Holder, the Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

 

(d)           Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.  Each Guarantor further agrees that, to the extent permitted by applicable law, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes of the Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article VI hereof, such obligations (regardless of whether due and payable) will forthwith become due and payable by the Guarantors for the purpose of the Note Guarantee.  The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not amend the rights of the Holders under the Note Guarantee.

 

Section 10.02       Limitation on Guarantor Liability.

 

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state, provincial or territorial law to the extent applicable to any Note Guarantee.  To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article X, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

 

 

Section 10.03         Execution and Delivery of Note Guarantee.

 

To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that this Indenture or a supplemental indenture in substantially the form attached hereto as Exhibit E hereto will be executed by an Officer of such Guarantor on behalf of such Guarantor by manual or facsimile signature.

 

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and effect notwithstanding the absence of an endorsement on each Note a notation of such Note Guarantee.

 

If an Officer whose signature is on this Indenture or supplemental indenture, as applicable, no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee will be valid nevertheless.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

 

In the event that either Issuer or any of its Restricted Subsidiaries creates or acquires any Domestic Restricted Subsidiary after the Issue Date, if required by Section 4.15 hereof, the Company will cause such Domestic Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this Article X, to the extent applicable.

 

Section 10.04       Guarantors May Consolidate, etc., on Certain Terms.

 

Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise dispose of, in one or more related transactions, all or substantially all of its properties or assets to, or consolidate with or amalgamate with or merge with or into (regardless of whether such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless:

 

(1)           immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default exists; and

 

(2)           either:

 

(A)               (i) such Guarantor is the surviving Person of such consolidation, amalgamation or merger or (ii) the Person acquiring the properties or assets in any such sale or other disposition or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) unconditionally assumes all the obligations of such Guarantor under this Indenture (including its Note Guarantee) pursuant to a supplemental indenture satisfactory to the Trustee; or

 

(B)               such transaction or series of transactions does not violate the provisions of Section 4.10 hereof.

 

In case of any such consolidation, amalgamation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor.

 

Except as set forth in Article IV and Article V hereof, and notwithstanding clauses (A) and (B) immediately above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation, amalgamation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

 

 

Section 10.05         Releases.

 

The Note Guarantee of a Guarantor with respect to a series of Notes will be released and discharged automatically and unconditionally:

 

(1)           in connection with any sale or other disposition of all or substantially all of the properties or assets of such Guarantor, by way of merger, consolidation, amalgamation or otherwise, to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary; provided that the sale or other disposition does not violate Section 4.10 hereof;

 

(2)           in connection with any sale or other disposition of the Capital Stock of such Guarantor (by way of merger, consolidation, amalgamation or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary; provided that the sale or other disposition does not violate Section 4.10 hereof and the Guarantor ceases to be a Restricted Subsidiary as a result of the sale or other disposition;

 

(3)           if the Company designates such Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture;

 

(4)           upon Legal Defeasance or Covenant Defeasance in accordance with Article VIII hereof or satisfaction and discharge of this Indenture with respect to such series of Notes in accordance with Article XI hereof;

 

(5)           upon the liquidation or dissolution of such Guarantor, provided that no Default or Event of Default occurs as a result thereof or has occurred or is continuing;

 

(6)           upon such Guarantor consolidating with, amalgamating with, merging into or transferring all of its properties or assets to the Company or another Guarantor, and as a result of, or in connection with, such transaction such Guarantor dissolves or otherwise ceases to exist;

 

(7)           at such time as such Guarantor is no longer required to be a Guarantor pursuant to the provisions of Section 4.15 hereof; or

 

(8)           the release of such Subsidiary Guarantor from its guarantee of the ABL Obligations and the Term Loan Obligations, so long as such Subsidiary Guarantor would not then otherwise be required to guarantee the Notes pursuant to Section 4.15.

 

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain liable for the full amount of principal of, premium, if any, and interest on, the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article X.

 

ARTICLE XI
SATISFACTION AND DISCHARGE

 

Section 11.01       Satisfaction and Discharge.

 

This Indenture will be satisfied and discharged and will cease to be of further effect as to all Notes of a series issued hereunder, including, without limitation, having all of the Issuers’ Obligations discharged with respect to the Notes of such series, all Obligations of the Guarantors discharged with respect to the Note Guarantees of such series and all Liens on the Collateral securing the Notes and the Note Guarantees of such series released (except as to surviving rights of registration of transfer or exchange of the Notes of such series and as otherwise specified in this Indenture), when:

 

 

(1)           either:

  

(A)             all Notes of such series that have been authenticated, except lost, stolen or destroyed Notes of such series that have been replaced or paid and Notes of such series for whose payment money has been deposited in trust and thereafter repaid to the Issuers, have been delivered to the Trustee for cancellation; or

 

(B)               all Notes of such series that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and either an Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes of such series not delivered to the Trustee for cancellation for principal of, or interest and premium, if any, on the Notes of such series to the date of maturity or redemption;

 

(2)           in respect of clause (B) of Section 11.01(1), no Default or Event of Default with respect to such series of Notes has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which either Issuer or any Guarantor is a party or by which either Issuer or any Guarantor is bound (other than with respect to the borrowing of funds to be applied concurrently to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other Indebtedness, and, in each case, the granting of Liens to secure such borrowings);

 

(3)           the Issuers have, or any Guarantor has, paid or caused to be paid all sums payable by them under this Indenture with respect to such series of Notes; and

 

(4)           the Issuers have delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes of such series at maturity or the redemption date, as the case may be.

 

In addition, the Issuers must deliver to the Trustee (a) an Officers’ Certificate, stating that all conditions precedent set forth in clauses (1) through (4) of this Section 11.01 have been satisfied and (b) an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and qualifications), stating that the condition precedent set forth in clause (4) of this Section 11.01 has been satisfied.

 

Upon discharge in accordance with the provisions above with respect to such series of Notes, the Trustee and the Collateral Agent, at the request and expense of the Issuers, shall execute such instruments reasonably requested by the Issuers acknowledging discharge of this Indenture with respect to such series of Notes.

 

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to clause (B) of Section 11.01(1) hereof, the provisions of Section 11.02 and Section 8.06 hereof will survive.  In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof that, by their terms, survive the satisfaction and discharge of this Indenture.

 

Section 11.02       Application of Trust Money.

 

Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes of each series and this Indenture, to the payment, either directly or through any Paying Agent (including an Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

 

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers’ and any Guarantor’s obligations under this Indenture and the Notes of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuers have made any payment of principal of, premium, if any, or interest, if any, on, any Notes of such series because of the reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of such series of Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

 

ARTICLE XII
MISCELLANEOUS

 

Section 12.01       Concerning the Trust Indenture Act.

 

The TIA shall not be applicable to, and shall not govern, this Indenture, the Notes or the Note Guarantees.

 

Section 12.02       Notices.

 

Any notice or communication by the Issuers, any Guarantor, the Trustee or the Collateral Agent to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), facsimile or electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:

 

If to the Issuers and/or any Guarantor

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 805
Tulsa, Oklahoma 74136
Facsimile No.:  (918) 481-5896

Email: Brad.Cooper@nglep.com
Attention: Chief Financial Officer

 

With a copy, which shall not constitute notice, to:

 

Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue

Suite 3400

Los Angeles, California 90071

Email: Michelle.Gasaway@skadden.com
Attention: P. Michelle Gasaway

 

If to the Trustee or the Collateral Agent:

 

U.S. Bank Trust Company, National Association
13737 Noel Road, Suite 800
Dallas, TX 75240
Facsimile No.: (972) 581-1660

Email: michael.herberger@usbank.com
Attention:  Global Corporate Trust Services

 

The Issuers, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back , if electronically transmitted; when receipt acknowledged, if transmitted by facsimile; or the next Business Day after timely delivery to a courier, if sent by overnight air courier guaranteeing next day delivery.

 

 

Any notice or communication to a Holder, when the Notes are in the form of Definitive Notes, will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar.  Any notice or communication to a Holder, when the Notes are in the form of Global Notes, will be sent pursuant to Applicable Procedures. Failure to send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.

 

If a notice or communication is mailed or otherwise sent in the manner provided above within the time prescribed, it is duly given, regardless of whether the addressee receives it (other than with respect to notices or communications by facsimile or electronic transmission, which will be deemed to be duly given when receipt is acknowledged or when answered back, respectively).

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver will be the equivalent of such notice. Waivers of notice by Holders will be filed with the Trustee, but such filing will not be a condition precedent to the validity of any action taken in reliance on such waiver.

 

If the Issuers send a notice or communication to Holders, they will send a copy to the Trustee and each Agent at the same time.

 

Section 12.03       [Reserved].

 

Section 12.04       Certificate and Opinion as to Conditions Precedent.

 

Upon any request or application by the Issuers to the Trustee to take any action under this Indenture, the Issuers shall furnish to the Trustee:

 

(1)           an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or waived; provided that no such Officers’ Certificate shall be delivered on the Issue Date in connection with the original issuance of the initial Global Notes; and

 

(2)           an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel (who may rely upon an Officers’ Certificate as to matters of fact), all such conditions precedent and covenants have been satisfied or waived; provided that no such Opinion of Counsel shall be delivered on the Issue Date in connection with the original issuance of the initial Global Notes.

 

Section 12.05       Statements Required in Certificate or Opinion.

 

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:

 

(1)           a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

 

(3)           a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether such covenant or condition has been satisfied; and

 

(4)           a statement as to whether, in the opinion of such Person, such condition or covenant has been satisfied.

 

Section 12.06       Rules by Trustee and Agents.

 

The Trustee may make reasonable rules for action taken by, or meetings or consent of, Holders.  The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 12.07       No Personal Liability of Directors, Officers, Employees and Unitholders.

 

None of the General Partner or any director, officer, partner, employee, incorporator, manager, unitholder or other owner of Capital Stock of the General Partner, the Issuers or any Guarantor, as such, will have any liability for any obligations of the Issuers or the Guarantors under the Notes, this Indenture, the Note Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of Notes by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes of the applicable series and the Note Guarantees. The waiver may not be effective to waive liabilities under the federal securities laws.

 

Section 12.08       Governing Law.

 

THE LAWS OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Section 12.09       No Adverse Interpretation of Other Agreements.

 

This Indenture may not be used to interpret any other indenture, loan or debt agreement of either Issuer or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

Section 12.10       Successors.

 

All agreements of each Issuer in this Indenture and the Notes will bind its successors.  All agreements of the Trustee in this Indenture will bind its successors.  All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05 hereof.

 

Section 12.11       Severability.

 

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be amended thereby.

 

Section 12.12       Counterpart Originals; Electronic Signatures.

 

The parties may sign any number of copies of this Indenture.  Each signed copy will be an original, but all of them together represent the same agreement.  The exchange of signed copies of this Indenture by facsimile transmission or emailed portable document format (pdf) shall constitute effective execution and delivery of this Indenture as to the parties hereto and such copies may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or portable document format (pdf) shall be deemed to be their original signatures for all purposes other than authentication of Notes by the Trustee. Except with respect to authentication of the Notes by the Trustee or an authenticating agent, the words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries 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, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

 

 

Section 12.13         Table of Contents, Headings, etc.

 

The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.

 

Section 12.14         Judgment Currency

 

If for the purpose of obtaining judgment in any court it is necessary to convert an amount due hereunder in the currency in which it is due (the “Original Currency”) into another currency (the “Second Currency”), the rate of exchange applied shall be that at which, in accordance with normal banking procedures, the Collateral Agent or the Trustee could purchase in the New York foreign exchange market, the Original Currency with the Second Currency on the date two (2) Business Days preceding that on which judgment is given. Each Issuer and Guarantor agrees that its obligation in respect of any Original Currency due from it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date the Collateral Agent or Trustee receives payment of any sum so adjudged to be due hereunder in the Second Currency, the Collateral Agent may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid; and if the amount of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency, the Issuer and the Guarantors as a separate obligation and notwithstanding any such payment or judgment to indemnify the Collateral Agent or Trustee against such loss.

 

ARTICLE XIII
COLLATERAL

 

Section 13.01       The Collateral.

 

(a)            Each Holder, by its acceptance of any Notes and the Guarantees thereof, irrevocably consents and agrees to the appointment of U.S. Bank Trust Company, National Association to act as Collateral Agent and the Real Property Collateral Agent. The Collateral Agent and the Real Property Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Security Documents, the duties of the Collateral Agent and the Real Property Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent and the Real Property Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent and the Real Property Collateral Agent are parties, nor shall the Collateral Agent or the Real Property Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuers or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the Security Documents or otherwise exist against the Collateral Agent or the Real Property Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent or the Real Property Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees thereof when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees thereof and performance of all other obligations under this Indenture shall be secured by Liens and security interests on the Collateral to the extent provided by the Security Documents and subject to the Intercreditor Agreements, any Pari Passu Second Lien Intercreditor Agreement and any Junior Lien Intercreditor Agreement. The Issuers and the Guarantors hereby agree that the Collateral Agent and the Real Property Collateral Agent shall hold the applicable Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Collateral Agent and Real Property Collateral Agent, in each case pursuant to the terms of the Security Documents, and the Collateral Agent, Real Property Collateral Agent and the Trustee are hereby directed and authorized by the Holders to execute and deliver the Security Documents.

 

 

(b)           Each Holder, by its acceptance of any Notes and the Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and the Real Property Collateral Agent and authorizes and directs the Collateral Agent and the Real Property Collateral Agent (i) to enter into the Security Documents (including, without limitation, the Intercreditor Agreements), and perform its obligations and exercise its rights, powers and discretions under the Security Documents in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents (including, without limitation, the Intercreditor Agreements), and (iii) bind the Holders on the terms as set forth in the Security Documents (including, without limitation, the Intercreditor Agreements).

 

(c)            The Trustee, the Collateral Agent and each Holder, by accepting the Notes and the Guarantees thereof acknowledges that, as more fully set forth in the Security Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent, the Real Property Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent, the Real Property Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and actions that may be taken thereunder.

 

Section 13.02       Maintenance of Collateral; Further Assurances.

 

(a)           The Issuers and the Guarantors shall maintain the Collateral that is material to the conduct of their respective businesses in good, safe and insurable operating order, condition and repair. The Issuers and the Guarantors shall pay all real estate and other taxes (except such as are contested in good faith and by appropriate negotiations or proceedings) owed by them, and maintain in full force and effect all their material permits and insurance in amounts that insures against such losses and risks as are reasonable for the type and size of the business of the Issuers and the Guarantors, except, in each case, where the failure to effect such payment or maintain such permits or insurance coverages is not adverse in any material respect to the Holders.

 

(b)           To the extent required under this Indenture or any of the Security Documents, the Issuers and the Guarantors shall, at their sole expense, execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions which may be necessary, including those the Collateral Agent may from time to time reasonably request, to create, better assure, preserve, protect, defend and perfect the security interest and the rights and remedies created under the Security Documents for the benefit of the Trustee, the Collateral Agent and the Holders (subject to Permitted Liens). The Issuers agree to provide evidence to the Trustee as to the perfection (to the extent required by this Indenture and the Security Documents) and priority status of each such security interest and Lien.

 

Section 13.03       After-Acquired Property.

 

From and after the Issue Date, if either Issuer or any Guarantor acquires any property or asset constituting Collateral (other than Material Real Property Assets), it must within 60 days after the acquisition thereof or such later date as may be agreed to by the Term Loan Collateral Agent or the ABL Collateral Agent, as applicable, execute and deliver such mortgages, deeds of trust, deeds to secured debt, deed of hypothec, surveys, opinions, title insurance policies, certificates, security instruments, financing statements and other documents as are required under this Indenture, the Intercreditor Agreements and the Security Documents to vest in the Collateral Agent a perfected security interest with the priority set forth in the Intercreditor Agreements and this Indenture upon such property or asset as security for the Notes and the Guarantees and as may be necessary to have such property or asset added to the Collateral and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such after-acquired Collateral to the same extent and with the same force and effect.

 

 

Section 13.04       Amendment of Security Interest.

 

The Issuers shall not, and the Issuers shall not permit any Restricted Subsidiaries to, (i) take or omit to take any action which would materially adversely amend the Liens in favor of the Collateral Agent and the Holders of the Notes of each series with respect to the Collateral or (ii) grant any Person, or permit any Person to retain (other than the ABL Collateral Agent and the representatives of each series of Notes-TLB Obligations), any Liens on the Collateral (other than Liens not prohibited by this Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreements). The Issuers and each Guarantor will, at its sole cost and expense, execute and deliver all such agreements and instruments as are necessary, or as the Trustee or the Collateral Agent reasonably requests, to more fully or accurately describe the assets and property intended to be Collateral or the obligations intended to be secured by the Security Documents.

 

Section 13.05       Real Estate Mortgages and Filings.

 

(a)            With respect to (i) any fee owned Material Real Property Assets and (ii) any part of the Grand Mesa Pipeline or the Delaware Pipeline that is a Material Real Property Asset of the type described in the preceding clause (i) in each case,(a) owned by any Issuer or a Guarantor on the Issue Date, such Issuer or Guarantor, as the case may be, with respect thereto shall, within 270 days of the date of the Issue Date or such later date as may be agreed to by the Term Loan Collateral Agent or ABL Collateral Agent, as applicable,(and in any event within 365 days of the Issue Date or (b) acquired by any Issuer or a Guarantor after the Issue Date, such Issuer or such Guarantor, as the case may be, shall, within 120 days of the acquisition thereof or such later date as may be agreed to by the Term Loan Collateral Agent or ABL Collateral Agent, as applicable (and in any event within 365 days of the acquisition thereof), deliver to the Real Property Collateral Agent for the ratable benefit of the Real Property Collateral Agent, the Holders of Notes-TLB Obligations and the Trustee the following:

 

(1)           a fully executed counterpart of a first-priority mortgage, deed of hypothec, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in favor of the Real Property Collateral Agent covering such Material Real Property Asset, in accordance with the requirements of this Indenture, duly executed by such Issuer or such Guarantor, together with satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such mortgage, leasehold mortgage, deed of hypothec, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt (and payment of any taxes or fees in connection therewith), together with any necessary fixture filings, as may be necessary to create a valid, perfected first-priority lien, subject to Permitted Liens, against the properties purported to be covered thereby;

 

(2)           if such Material Real Property Asset has a Designated Value of $20.0 million or more, a policy or policies or marked-up unconditional binder of title insurance (or binding commitments thereof), as applicable, in favor of the Real Property Collateral Agent and its successors and/or assigns, in an amount not less than the Designated Value of such Material Real Property Asset and in the form necessary, paid for by the such Issuer or such Guarantor, issued by a nationally recognized title insurance company insuring fee simple title to each such Material Real Property Asset and insuring the Lien of such mortgage, deed of trust, deed of hypothec or deed to secure debt as a valid first priority Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, title policy modifications, coinsurance and reinsurance as shall be reasonably required;

 

(3)           if such Material Real Property Asset has a Designated Value of $20.0 million or more, such surveys (or any updates, affidavits or such other information or documents that the title insurance company may reasonably require in connection with the issuance of the title insurance policies), which are sufficient for the title insurance company to remove the standard survey exception and issue customary survey-related endorsements or title policy modifications;

 

 

(4)           if such Material Real Property Asset has a Designated Value of $20.0 million or more, local counsel opinions (i) as to the due authorization, execution and delivery by such Issuer or such Guarantor of such mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed of hypothec, deed to secure debt or leasehold deed to secure debt and such other customary matters that are incidental thereto and (ii) in jurisdictions where such Material Real Property Asset is located covering the enforceability of each mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed of hypothec, deed to secure debt or leasehold deed to secure debt and such other customary matters as are incidental thereto;

 

(5)           if such Material Real Property Asset has a Designated Value of $20.0 million or more, with respect to such Material Real Property Asset, evidence from within the past five (5) years that such Material Real Property Asset, and the uses of such Material Real Property Asset, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such Material Real Property Asset, the permitted uses of each such Material Real Property Asset under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

(6)           such affidavits, certificates, instruments of indemnification and other items as shall be reasonably required to comply with the required deliverables set forth in paragraphs (2) - (5) above, and evidence of payment by the Issuer or Guarantor, as applicable, of all search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the mortgages, leasehold mortgages, deeds of trust, leasehold deeds of trust, and deeds to secure debt, leasehold deeds to secure debt and the issuance of the title insurance policies, in each case to the extent required pursuant to the foregoing.

 

provided that, notwithstanding the foregoing the requirements of paragraphs (2), (3), (5) and (6) of this paragraph will not be required with respect to any such Material Real Property Asset, to the extent the cost of providing such items would exceed 1% of the then Designated Value of such Material Real Property Asset.

 

The Issuers and each Guarantor will not, and each Issuer will not permit any of its Restricted Subsidiaries to, grant any Lien on any Material Real Property Assets to which the foregoing paragraph is applicable with respect to which such Issuer or such Restricted Subsidiary has not satisfied the applicable requirements of paragraph (1) of the preceding paragraph, as security or otherwise, subject to Permitted Liens and customary exceptions for statutory or other similar Liens. Within 270 days of the Issue Date (or such later date as may be agreed by the Term Loan Collateral Agent or the ABL Collateral Agent, as applicable), the Issuers and the Guarantors shall provide the Controlling Collateral Agent reasonably satisfactory evidence of the release or termination of any mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt, leasehold deed or any other real property security instrument in respect of the 2026 Senior Secured Notes.

 

(b)           With respect to any Material Real Property Asset consisting of Leasehold Property, easements or rights of-way, including Material Real Property Assets that are Leasehold Property, easements or rights-of-way constituting part of the Grand Mesa Pipeline or the Delaware Pipeline (in each case other than any fee owned Material Real Property Asset) (such Material Real Property Assets, “Other Specified Property”), (a) held by any Issuer or a Guarantor on the Issue Date or (b) acquired by any Issuer or a Guarantor after the Issue Date, such Issuer or such Guarantor, as the case may be, shall use commercially reasonable efforts (which, for the avoidance of doubt shall not require cash payments or other consideration aside from the payment or reimbursement of reasonable fees and expenses in connection with the preparation and recording of the documentation related to such Other Specified Collateral Deliverables) to deliver, within 270 days of the Issue Date or 120 days of the date of acquisition thereof or such later date as may be agreed to by the Term Loan Collateral Agent or ABL Collateral Agent, as applicable (provided that such deadline may not be extended to a date later than 365 days after the Issue Date or the acquisition date, as applicable), to the Real Property Collateral Agent for the ratable benefit of the Real Property Collateral Agent, the Holders of Notes-TLB Obligations and the Trustee, the following:

 

(1)           a fully executed counterpart of a first-priority leasehold mortgage, leasehold deed of trust or leasehold deed to secure debt, duly executed by the Issuer or Guarantor that is the lessee, owner or holder of such Other Specified Property, satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and necessary filings of such leasehold mortgage, leasehold deed of trust or leasehold deed to secure debt (and payment of any taxes or fees in connection therewith), together with any necessary consents, memoranda of lease and fixture filings, as may be necessary to create a valid, perfected first-priority lien, subject to Permitted Liens, against the properties purported to be covered thereby;

 

 

(2)           if such Other Specified Property has a Designated Value of $20.0 million or more and is not an easement or right-of-way, policy or policies or marked-up unconditional binder of title insurance (or binding commitments thereof), as applicable, in favor of the Real Property Collateral Agent and its successors and/or assigns, in an amount not less than the Designated Value of such Other Specified Property and in the form necessary, paid for by the such Issuer or such Guarantor, issued by a nationally recognized title insurance company insuring leasehold title to such Other Specified Property and insuring the Lien of such leasehold mortgage, leasehold deed of trust or leasehold deed to secure debt as a valid first priority Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, title policy modification, coinsurance and reinsurance as shall be reasonably required;

 

(3)           if such Other Specified Property has a Designated Value of $20.0 million or more and is not an easement or right-of-way, such surveys (or any updates, affidavits or such other information or documents that the title insurance company may reasonably require in connection with the issuance of the title insurance policies), which are sufficient for the title insurance company to remove or modify the standard survey exception and issue customary survey-related endorsements or title policy modifications;

 

(4)           if such Material Real Property Asset has a Designated Value of $20.0 million and is not an easement or right-of-way, local counsel opinions (i) as to the due authorization, execution and delivery by such Issuer or such Guarantor of such mortgage, deed of trust or deed to secure debt and such other customary matters that are incidental thereto and (ii) in jurisdictions where such Other Specified Property is located covering the enforceability of each mortgage, deed of trust or deed to secure debt and such other customary matters as are incidental thereto;

 

(5)           if such Other Specified Property has a Designated Value of $20.0 million or more and is not an easement or right-of-way, with respect to such Other Specified Property, evidence from within the past five (5) years that such Other Specified Property, and the uses of such Other Specified Property, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such Other Specified Property, the permitted uses of each such Other Specified Property under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

(6)           such affidavits, certificates, instruments of indemnification and other items as shall be reasonably required to comply with the required deliverables set forth in paragraphs (2) - (5) above and evidence of payment by the Issuer or Guarantor, as applicable, of all search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the mortgages, leasehold mortgages, deeds of trust, leasehold deeds of trust, and deeds to secure debt, leasehold deeds to secure debt and the issuance of the title insurance policies, in each case to the extent required pursuant to the foregoing;

 

provided that, notwithstanding the foregoing, the requirements of paragraphs (2), (3), (5) and (6) of this paragraph will not be required with respect to (i) any such Other Specified Property, to the extent the cost of providing such items would exceed 1% of the Designated Value of such Other Specified Property or (ii) any such Other Specified Property that is comprised solely of easements or rights-of way. Notwithstanding anything herein to the contrary, for purposes of the determination of Designated Value pursuant to the preceding proviso, the penultimate paragraph of this covenant shall not apply.

 

The requirements of the foregoing paragraph with respect to the Other Specified Property shall be referred to as the “Other Specified Collateral Requirements”, and the items described in items (1) through (6) of the foregoing paragraph shall be referred to as the “Other Specified Collateral Deliverables”.

 

 

Solely for purposes of determining the Designated Value of any Real Property Assets with respect to which an Issuer or Guarantor must use commercially reasonable efforts to provide the Other Specified Collateral Requirements, if any Real Property Asset constitutes, with one or more Real Property Assets, any pipeline, facility, terminal, injection well or disposal well of the Issuers and their Restricted Subsidiaries, the Designated Value of such Real Property Asset shall be deemed to be the sum of the Designated Values of all such Real Property Assets forming such pipeline, facility, terminal, injection well or disposal well. For the avoidance of doubt, the foregoing sentence shall have no effect with respect to the assessment of additional interest pursuant to Section 6.01.

 

The Issuers and each Guarantor will not, and each Issuer will not permit any of its Restricted Subsidiaries to, grant any Lien on any Other Specified Property with respect to which such Issuer or such Restricted Subsidiary has not satisfied the applicable requirements of paragraph (1) of this Section 13.05(b), as security or otherwise, subject to Permitted Liens and customary exceptions for statutory or other similar Liens.

 

Section 13.06       Release of Liens on the Collateral.

 

(a)            The Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person be released:

 

(1)           in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes of such series;

 

(2)           in whole upon:

 

(A)              a Legal Defeasance or Covenant Defeasance of such series of Notes as set forth in Article VIII hereof; or

 

(B)               the satisfaction and discharge of this Indenture with respect to such series of Notes as set forth in Section 11.01; or

 

(C)               upon the occurrence of a Suspension Date with respect to such series of Notes (provided that the applicable Investment Grade Ratings give effect to the proposed release of the Collateral).

 

(3)           in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by any Issuer or any Guarantor (other than to any Issuer or another Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary);

 

(4)           in whole or in part, as applicable, in accordance with the provisions in Article IX;

 

(5)           in part, in accordance with the applicable provisions of the Security Documents and the Intercreditor Agreements (including, without limitation, any property or asset of an Issuer or a Guarantor that becomes and Excluded Asset); or

 

(6)           in whole or in part, as applicable, as to all or any part of the Collateral that has been taken by eminent domain, condemnation or other similar circumstances,

 

provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Agent under this Indenture, the Notes, the Guarantees, the Security Documents and the Intercreditor Agreements with respect to such series of Notes have been paid in full.

 

Notwithstanding clause (2)(C) above, upon the occurrence of a Reinstatement Date with respect to such series of Notes, the Issuers and the Guarantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Holders of such series and the Trustee valid, perfected, security interests (subject to Permitted Liens) in the Collateral (which in accordance with the Intercreditor Agreements shall be first-priority Liens, in the case of any Notes-TLB Priority Collateral, and second-priority Liens, in the case of any ABL Priority Collateral) within 60 days after such Reinstatement Date or, with respect to any Material Real Property Asset, with 270 days after such Reinstatement Date, in each case or such later date as may be agreed to by the Term Loan Collateral Agent or the ABL Collateral Agent, as applicable.

 

 

(b)           To the extent a proposed release of Collateral is not automatic and requires action by the Trustee or the Collateral Agent, the Issuers and each Guarantor will furnish to the Trustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Security Documents and this Indenture, an Officer’s Certificate and an Opinion of Counsel that all conditions precedent provided for in this Indenture and the Security Documents relating to such release have been complied with.

 

(c)            Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Agent shall promptly cause to be released and reconveyed (at the expense of the Issuers or the Guarantors) to the Issuers or the Guarantors, as the case may be, the released Collateral.

 

Section 13.07       Authorization of Actions to be Taken by the Trustee or the Collateral Agent Under the Security Documents.

 

(a)            Subject to the provisions of the Security Documents, each of the Trustee, the Collateral Agent or the Real Property Collateral Agent may (but shall not be obligated to), in its sole discretion and without the consent of the Holders, on behalf of the Holders, take all actions it deems necessary or appropriate in order to (1) enforce any of its rights or any of the rights of the Holders under the Security Documents and (2) collect and receive any and all amounts payable in respect of the Collateral in respect of the obligations of the Issuers and the Guarantors hereunder and thereunder. Subject to the provisions of the Security Documents, the Trustee, the Collateral Agent or the Real Property Collateral Agent shall have the power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Trustee, the Collateral Agent or the Real Property Collateral Agent may deem expedient to preserve or protect its interest and the interests of the Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or the Trustee).

 

(b)           Except as otherwise expressly set forth in Section 3 of the Security Agreement, none of the Trustee, the Collateral Agent or the Real Property Collateral Agent shall be responsible for, nor do they make any representation regarding, the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuers to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. None of the Trustee, the Collateral Agent or the Real Property Collateral Agent shall have any responsibility for recording, filing, re-recording or re-filing any financing statement, continuation statement, financing change statement, document, instrument or other notice in any public office at any time or times or to otherwise take any action to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise.

 

(c)            Where any provision of this Indenture requires that additional property or assets be added to the Collateral and a security interest with respect to such property or assets would not be created or perfected without preparation and execution of additional documentation, the Issuers and each Guarantor shall deliver to the Trustee, the Collateral Agent or the Real Property Collateral Agent the following:

 

(1)           a request from the Issuers that such Collateral be added;

 

(2)           the form of instrument adding such Collateral, which, based on the type and location of the property subject thereto, shall be in substantially the form of the applicable Security Documents previously entered into, with such changes thereto as the Issuers shall consider appropriate, or in such other form as the Issuers shall deem proper; provided that any such changes or such form are administratively satisfactory to the Trustee, the Collateral Agent and the Real Property Collateral Agent; and

 

 

(3)           such financing statements, if any, as the Issuers shall deem necessary to perfect the Collateral Agent’s security interest in such Collateral.

 

(d)           The Trustee, the Collateral Agent and the Real Property Collateral Agent, in giving any consent or approval under the Security Documents or in executing any Security Documents, shall be entitled to receive, as a condition to such consent or approval or to executing such document in the case of a request to execute a Security Document, a request of the Issuers and, in all cases, an Officer’s Certificate and an Opinion of Counsel to the effect that all conditions precedent specified in this Indenture with respect to the action or omission for which consent or approval is to be given have been satisfied or that such action or omission for which consent or approval is not being given does not violate this Indenture, and the Trustee, the Collateral Agent and the Real Property Collateral Agent shall be fully protected in giving such consent or approval on the basis of such Officer’s Certificate and Opinion of Counsel.

 

(e)            Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture or any Security Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or the Real Property Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent or the Real Property Collateral Agent, it is understood that in all cases the Collateral Agent or the Real Property Collateral Agent shall be fully justified in failing or refusing to take any such action under this Indenture if it shall not have received such written instruction, advice or concurrence of the Trustee (acting at the direction of the Holders and otherwise in accordance with this Indenture, Intercreditor Agreements and other Security Documents), and such indemnity from the Holders as it deems appropriate. This provision is intended solely for the benefit of the Collateral Agent and the Real Property Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.

 

Section 13.08       Information Regarding Collateral.

 

(a)            The Issuers shall furnish to the Collateral Agent, with respect to either Issuer, or any Guarantor, promptly (and in any event within 60 days of such change) written notice of any change in such Person’s (i) corporate or organization name, (ii) jurisdiction of organization or formation, (iii) identity or corporate structure or (iv) organizational identification number. The Issuers and the Guarantors agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made, or will have been made within any applicable statutory period, under UCC, the PPSA and any other applicable laws that are required in the Security Documents in order for the Collateral to be made subject to the Lien of the Collateral Agent under such Security Documents in the manner and to the extent required by this Indenture or any of the Security Documents and will take all necessary action so that the Lien in favor of the Collateral Agent pursuant to this Indenture and/or the Security Documents is perfected with the same priority as immediately prior to such change to the extent required by this Indenture and/or the Security Documents. The Issuers shall also promptly notify the Collateral Agent if any material portion of the Collateral is damaged, destroyed or condemned. If at any time after the Issue Date, the Issuers deliver to an agent or representative of the holders of other Pari Passu Notes-TLB Obligations an update to the perfection certificate previously delivered to any such agent or representative, then the Issuers shall promptly deliver such update to the Trustee and the Collateral Agent.

 

Section 13.09       Negative Pledge.

 

The Issuers and each Guarantor shall not, and the Issuers shall not permit any of its Restricted Subsidiaries to, further pledge the Collateral as security or otherwise, subject to Permitted Liens.

 

 

Section 13.10         Regarding the Collateral Agent.

 

(a)            The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate (it being understood that the Real Property Collateral Agent is executing its duties as a subagent for the Collateral Agent).

 

(b)           Except as otherwise expressly set forth in Section 3 of the Security Agreement, none of the Trustee, the Collateral Agent or the Real Property Collateral Agent shall have any obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuers’ or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent and the Real Property Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes of a series with respect to such series of Notes or as otherwise provided in the Security Documents and/or the Intercreditor Agreements.

 

(c)            Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent or the Real Property Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent or the Real Property Collateral Agent, as the case may be, shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Collateral Agent or the Real Property Collateral Agent has determined that the Collateral Agent or the Real Property Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Agent and the Real Property Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuers or the Holders to be sufficient.

 

(d)           The Collateral Agent and the Real Property Collateral Agent shall not be liable for (i) any action taken or omitted to be taken by it in connection with this Indenture and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, and (ii) interest on any money received by it except as the Collateral Agent or the Real Property Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent or the Real Property Collateral Agent shall be segregated from other funds except to the extent required by law).

 

(e)           The Collateral Agent and the Real Property Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent and the Real Property Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent or the Real Property Collateral Agent in good faith.

 

 

(f)            The parties hereto and the Holders hereby agree and acknowledge that none of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent, the Trustee or the Real Property Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent, the Trustee or the Real Property Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent, the Trustee or the Real Property Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent, the Trustee or the Real Property Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in the Collateral Agent’s, Real Property Collateral Agent’s or the Trustee’s sole discretion may cause the Collateral Agent, Real Property Collateral Agent or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Collateral Agent, the Trustee or the Real Property Collateral Agent to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent, the Trustee and the Real Property Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent, the Trustee or the Real Property Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver or monitor. None of the Collateral Agent, the Trustee or the Real Property Collateral Agent shall be liable to the Issuers, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s, the Real Property Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Collateral Agent, the Real Property Collateral Agent or the Trustee) other than the Issuers or the Guarantors, subject to the terms of the Security Documents and the Intercreditor Agreements, a majority in interest of Holders of Notes of a series shall direct the Collateral Agent, the Real Property Collateral Agent or the Trustee with respect to such series of Notes to appoint an appropriately qualified Person (excluding the Collateral Agent, the Real Property Collateral Agent or the Trustee) whom it shall designate to possess, own, operate or manage, as the case may be, such property.

 

(g)           For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent and the Real Property Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or earlier termination, resignation or removal of the Trustee, in such capacity, with respect to the holders of the ABL Priority Collateral or the Other Pari Passu Lien Obligations, as applicable, to the extent the Security Documents remain in force thereafter.

 

(h)           For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Notes Obligations by any Issuers or Guarantors, each of Holder hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Issuer and the Guarantors. Any person who becomes a Holder shall be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XIII shall also result in the substitution of the Attorney.

 

 

Section 13.11        Conflicts.

 

The Issuers, the Guarantors, the Trustee, the Collateral Agent and the Real Property Collateral Agent acknowledge and agree to be bound by the provisions of the Security Documents and the Intercreditor Agreements, as applicable.

 

(Signatures on following pages)

 

 

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Indenture as of the date first written above.

 

	ISSUERS:
	NGL ENERGY OPERATING LLC
	By:	/s/ Brad Cooper
	Name: Brad Cooper
	Title: Executive Vice President and Chief Financial Officer
	NGL ENERGY FINANCE CORP.
	By:	/s/ Brad Cooper
	Name: Brad Cooper
	Title: Executive Vice President and Chief Financial Officer

 

	GUARANTORS:
	Anticline Disposal, LLC AWR Disposal, LLC Centennial Energy, LLC Centennial Gas Liquids ULC Choya Operating, LLC Disposals Operating, LLC GGCOF HEP Blocker, LLC GGCOF HEP Blocker II, LLC Grand Mesa Pipeline, LLC GSR Northeast Terminals LLC Hillstone Environmental Partners, LLC NGL Crude Cushing, LLC NGL Crude Logistics, LLC NGL Crude Terminals, LLC NGL Crude Transportation, LLC NGL Delaware Basin Holdings, LLC NGL Energy GP LLC NGL Liquids, LLC NGL Marine, LLC NGL North Ranch, LLC NGL Recycling Services, LLC NGL Shared Services, LLC NGL Supply Terminal Company, LLC NGL Supply Wholesale, LLC NGL Water Pipelines, LLC NGL Water Solutions, LLC NGL Water Solutions DJ, LLC NGL Water Solutions Eagle Ford, LLC NGL Water Solutions - ORLA SWD, LLC NGL Water Solutions Permian, LLC NGL Water Solutions Product Services, LLC

 

	By:	/s/ Brad Cooper
	Name: Brad Cooper
	Title: Executive Vice President and Chief Financial Officer

 

  

	GUARANTORS (CONTINUED)
	NGL SHARED SERVICES HOLDINGS, INC.
	By:	/s/ Brad Cooper
	Name: Brad Cooper
	Title: Chief Financial Officer

 

	NGL SOUTH RANCH, INC.
	By:	/s/ Brad Cooper
	Name: Brad Cooper
	Title: Chief Financial Officer

 

 

	TRUSTEE AND COLLATERAL AGENT:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Agent
	By:	/s/ Michael K. Herberger
		Name:	Michael K. Herberger
		Title:	Vice President

 

 

EXHIBIT A-1

 

[Face of Note]

 

CUSIP/ISIN                          ¹

 

8.125% Senior Secured Note due 2029

 

No.___________

$_____________

 

NGL ENERGY OPERATING LLC
NGL ENERGY FINANCE CORP.

 

jointly and severally promise to pay to                                                        [if a Global Note, insert — CEDE & CO., as nominee for The Depository Trust Company] or its registered assigns, the principal sum of                                                                                          DOLLARS [if a Global Note, insert — , or such other principal amount as shall be set forth on the “Schedule of Exchanges of Interests in the Global Note” attached hereto,] on February 15, 2029.

 

Interest Payment Dates:  February 15, May 15, August 15 and November 15

 

Record Dates:  February 1, May 1, August 1 and November 1

 

Dated:                       , 20

 

¹ For ease of reference: 62922LAC2 (144A); U6536LAB6 (Reg S)

 

  

NGL ENERGY OPERATING LLC

 

	By:
		Name:
		Title:

 

NGL ENERGY FINANCE CORP.

 

	By:
		Name:
		Title:

 

This is one of the Notes referred to in the within-mentioned Indenture:

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee  

 

By:
	Authorized Signatory

 

 

[Back of Note]
8.125% Senior Secured Note due 2029

 

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

 

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. As used in this Note, references to “Notes” shall only refer to the 2029 Notes, unless otherwise indicated or the context otherwise requires.

 

(1)

INTEREST.  NGL Energy Operating LLC, a Delaware limited liability company (the “Operating LLC”), and NGL Energy Finance Corp., a Delaware corporation (together with Operating LLC, the “Issuers”), each a wholly owned subsidiary of NGL Energy Partners LP, a Delaware limited partnership (the “Company”), jointly and severally promise to pay interest on the principal amount of this Note at 8.125% per annum until maturity.  The Issuers will pay interest, if any, quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”); provided that the first Interest Payment Date shall be [ ].  Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date.  The Issuers will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate equal to the then applicable interest rate on the Notes; they will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace periods), from time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.

 

(2)

METHOD OF PAYMENT.  The Issuers will pay interest on the Notes (except defaulted interest), if any, to the Persons who are registered Holders of Notes at the close of business on the February 1, May 1, August 1 and November 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  The Notes will be payable as to principal, premium, if any, and interest, if any, at the office or agency of the Issuers maintained for such purpose within or without the City and State of New York, or, at the option of the Issuers, payment of interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium, if any, and interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided to the Issuers or the Paying Agent wire transfer instructions to an account in the United States of America.  Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

(3)

PAYING AGENT AND REGISTRAR.  Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar.  The Issuers may change any Paying Agent or Registrar without notice to any Holder; provided, however, that the Issuers shall at all times maintain a Paying Agent in the Borough of Manhattan, The City of New York.  Either Issuer or any Subsidiary may act in any such capacity.

 

 

(4)

INDENTURE.  The Issuers issued the Notes under an Indenture dated as of February 2, 2024 (the “Indenture”) among the Issuers, the Guarantors and the Trustee. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.  The Notes are secured obligations of the Issuers. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

 

(5)

OPTIONAL REDEMPTION.

 

(a)

At any time prior to February 15, 2026, Operating LLC may on any one or more occasions redeem up to 40% of the aggregate principal amount of the Notes outstanding under the Indenture (which may include Additional Notes) with an amount of cash not greater than the amount equal to the net cash proceeds from one or more Equity Offerings at a redemption price equal to 108.125% of the principal amount thereof, plus accrued and unpaid interest, if any, on the Notes to be redeemed to, but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date); provided that (i) at least 50% of the aggregate principal amount of the Notes issued on the Issue Date (excluding Notes held by the Company and its Subsidiaries) remains outstanding after each such redemption and (ii) the redemption occurs within 180 days after the closing of such Equity Offering.

 

(b)

At any time or from time to time prior to February 15, 2026, (the “2029 Notes Step-Down Date”) Operating LLC may redeem, on one or more occasions, all or a part of the Notes, at a redemption price equal to the 2029 Notes Make-Whole Price, subject to the rights of Holders of Notes on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date.

 

(c)

In the event that Holders of not less than 90% in aggregate principal amount of the outstanding Notes accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described in Section 4.14(c) of the Indenture) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to any Change of Control Offer or Alternate Offer described in Section 4.14 of the Indenture, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date).

 

(d)

Except as provided in the immediately preceding paragraphs (a), (b) and (c), the Notes will not be redeemable at Operating LLC’s or the Company’s option prior to February 15, 2026.

 

(e)

On and after February 15, 2026, Operating LLC may redeem, on one or more occasions, all or a part of the Notes, from time to time at the following redemption prices (expressed as a percentage of principal amount to be redeemed) plus accrued and unpaid interest, if any, on the Notes to be redeemed to, but excluding, the applicable redemption date (subject to the rights of Holders on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:

 

Year		Percentage
2026			104.063	%
2027			102.031	%
2028 and thereafter			100.000	%

 

 

(f)

Unless the Issuers default in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

 

(6)

REPURCHASE AT THE OPTION OF HOLDER.

 

(a)

If there is a Change of Control, each Holder will have the right, except as provided below and in the Indenture, to require the Company to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest, if any, due on the relevant Interest Payment Date (the “Change of Control Payment”).  Within 30 days following any Change of Control, the Company will send a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.  The Company will not be required to make a Change of Control Offer upon a Change of Control, if (i) a third party makes a Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in Section 4.14(a) of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer, (ii) notice of redemption of all outstanding Notes has been given pursuant to the Indenture unless and until there is a default in payment of the applicable redemption price, or (iii) in connection with or in contemplation of any Change of Control, the Company has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered and not withdrawn at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered and not withdrawn in accordance with the terms of the Alternate Offer.

 

(b)

If the Company or a Restricted Subsidiary consummates any Asset Sales of Collateral, within 10 Business Days after the aggregate amount of Excess Collateral Proceeds exceeds $50.0 million, the Issuers will be required to make an offer (a “Collateral Disposition Offer”) to all Holders of Notes to purchase the maximum principal amount of the Notes (on a pro rata basis) and, if required by the terms of any other Pari Passu Notes-TLB Obligations, to the holders of such Pari Passu Notes-TLB Obligations (on a pro rata basis), to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the of the Notes and such other Pari Passu Obligations, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in accordance with the procedures set forth in the Indenture in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof with respect to the Notes. To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer (together with, if required by the terms of any other Pari Passu Notes-TLB Obligations, the amount of Pari Passu Notes-TLB Obligations tendered pursuant to any similar requirement), is less than the Excess Collateral Proceeds, the Issuers may use any remaining Excess Collateral Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes surrendered by Holders and, if required by the holders of Pari Passu Notes-TLB Obligations, holders of any Pari Passu Notes-TLB Obligations exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Notes-TLB Obligations to be purchased shall be selected by the Trustee on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes-TLB Obligations. Holders of Notes that are the subject of an offer to purchase will receive notice of a Collateral Disposition Offer from the Company prior to any related purchase, prepayment or redemption date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

 

(7)

NOTICE OF OPTIONAL REDEMPTION.  Notices of optional redemption will be mailed by first-class mail (or in the case of Notes in the form of Global Notes, pursuant to the applicable procedures of DTC) at least 10 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture with respect to the Notes. The notice of redemption with respect to a redemption pursuant to Section 3.07(b) of the Indenture and paragraph 5(b) herein need not set forth the 2029 Notes Make-Whole Price but only the manner of calculation thereof. Operating LLC will notify the Trustee of the 2029 Notes Make-Whole Price with respect to any redemption promptly after the calculation, and the Trustee shall not be responsible for such calculation. The actions taken by Operating LLC in calculating the 2029 Make-Whole price shall be conclusive absent manifest error. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed.

 

(8)

DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without coupons in denominations of $2,000 or an integral multiple of $1,000 in excess thereof.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture.  The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.  Also, the Issuers need not exchange or register the transfer of any Notes for a period of 10 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

 

(9)

PERSONS DEEMED OWNERS.  The registered Holder of a Note may be treated as its owner for all purposes.

 

 

(10)

AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to certain exceptions, the Indenture, the Notes, the Note Guarantees or the Security Documents (subject to compliance with the Intercreditor Agreements) may be amended or supplemented with the consent of the Holders of a majority in principal amount of the then outstanding Notes and Additional Notes of each series affected by such amendment or supplement, if any, voting as a single class, and any existing Default or Event of Default or compliance with any provision of the Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes and Additional Notes of each series affected by such waiver, if any, voting as a single class.  Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented to: (i) cure any ambiguity, defect, mistake or inconsistency; (ii) provide for uncertificated Notes in addition to or in place of certificated Notes; (iii) provide for the assumption of an Issuer’s or a Guarantor’s obligations to Holders of Notes of and Note Guarantees and under the Security Documents in the case of a merger, amalgamation or consolidation or sale of all or substantially all of such Issuer’s or Guarantor’s properties or assets, as applicable; (iv) make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any Holder; (v) at the Issuers’ election, comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, if such qualification is required; (vi) conform the text of the Indenture, the Note Guarantees, the Notes or the Security Documents or the Intercreditor Agreements (as evidenced by an Officers’ Certificate) to any provision of the “Description of the notes” section of the Issuers’ Offering Memorandum dated January 25, 2024, to the extent that such provision in that “Description of the notes” was intended to be a verbatim recitation of a provision of the Indenture, the Notes, the Security Documents, the Intercreditor Agreements or the Note Guarantees; (vii) provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the Issue Date; (viii) make, complete or confirm any grant of Collateral permitted or required by the Indenture or the Security Documents or any release, termination or discharge of Collateral that becomes effective as set forth in the Indenture or any of the Security Documents; (ix) add any additional Guarantor or to evidence the release of any Guarantor from its Note Guarantee, in each case as provided in the Indenture; (x) evidence or provide for the acceptance of appointment under the Indenture of a successor Trustee or a successor Collateral Agent; (xi) grant any Lien for the benefit of the holders of any future Pari Passu Notes-TLB Obligations, Pari Passu ABL Obligations, Pari Passu Second Lien Obligations or Junior Lien Obligations in accordance with and as permitted by the terms of the Indenture and the ABL Intercreditor Agreement (and, with respect to Pari Passu Second Lien Indebtedness or Junior Lien Indebtedness, any Pari Passu Second Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable); (xii) add additional secured parties to the Intercreditor Agreements to the extent Liens securing obligations held by such parties are permitted under the Indenture; (xiii) mortgage, pledge, hypothecate or grant a security interest in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes as additional security for the payment and performance of the Issuers’ and any Guarantor’s obligations under the Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee or the Collateral Agent in accordance with the terms of the Indenture or otherwise; or (xiv) provide for the succession of any parties to the Security Documents (and other amendments that are administrative or ministerial in nature) and the Intercreditor Agreements in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any agreement in accordance with the terms of the Indenture, the ABL Intercreditor Agreement and the relevant Security Documents.

 

 

(11)

DEFAULTS AND REMEDIES.  Events of Default include: (i) default for 30 days in the payment when due of interest, if any, on the Notes; (ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes; (iii) failure by the Company to comply with its obligations under Section 5.01 of the Indenture or to consummate a purchase of Notes when required pursuant to Sections 4.10 or 4.14 of the Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days after written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes to comply with the provisions of Section 4.07 or Section 4.09 of the Indenture or to comply with the provisions of Section 4.10 or Section 4.14 of the Indenture to the extent not described in the immediately preceding clause (iii); (v) (a) except as addressed in subclause (b) of this clause (v), failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes to comply with any of the other agreements in the Indenture or this Note or (b) failure by the Company for 180 days after notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes of the applicable series to comply with Section 4.03 of the Indenture; (vi) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default: (a) is caused by a failure to pay principal of, premium, if any, on, or interest, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or (b) results in the acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $100.0 million or more; provided that if, prior to any acceleration of the Notes, (1) any such default is cured or waived, (2) any such acceleration of such Indebtedness is rescinded, or (3) such Indebtedness is repaid, within a period of 10 Business Days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, any Default or Event of Default (but not any acceleration of the Notes ) shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree; (vii) failure by the Company or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final, non-appealable judgments (entered by a court or courts of competent jurisdiction) aggregating in excess of $100.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days; (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee, except, in each case, by reason of the release of such Note Guarantee in accordance with the Indenture;  (ix) an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law (a) commences a voluntary case, (b) consents to the entry of an order for relief against it in an involuntary case, (c) consents to the appointment of a custodian of it or for all or substantially all of its property, (d) makes a general assignment for the benefit of its creditors, or (e) generally is not paying its debts as they become due; (x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (a) is for relief against any Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case, (b) appoints a custodian of any Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or (c) orders the liquidation of an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, and the order or decree remains unstayed and in effect for 60 consecutive days. In the case of an Event of Default specified in the immediately preceding clause (ix) or clause (x), with respect to either Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, all then outstanding Notes will become due and payable immediately without further action or notice (subject to applicable law); (xi)(i) the Liens created by any Security Document shall at any time not constitute a valid and perfected Lien on any Collateral intended to be covered thereby with a Fair Market Value, individually or in the aggregate, in excess of $50.0 million other than (A) in accordance with the terms of the relevant Security Documents and the Indenture, (B) the satisfaction in full of all Obligations under the Indenture or (C) any loss of perfection that results from the failure of the Collateral Agent to maintain possession of certificates delivered to it representing securities pledged under the Security Documents, and which default continues for 30 days; (ii) the repudiation by any Issuer or any Guarantor in any pleading in any court of competent jurisdiction of any of its material obligations under the Security Documents or to file UCC continuation statements or PPSA financing change statements; or (xii) any Issuer or any Guarantor shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document is invalid or unenforceable other than by reason of the termination of the Indenture or the release of any such Collateral in accordance with the Indenture. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately by notice in writing to the Company and, in the case of a notice by Holders, also to the Trustee specifying the respective Event of Default and that it is a notice of acceleration.  Holders may not enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal of, premium, if any, or interest, if any, on, any Note) if it in good faith determines that withholding notice is in their interest.  The Holders of a majority in aggregate principal amount of the then outstanding of Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes , rescind an acceleration and its consequences if the rescission would not violate any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium, if any, that has become due solely because of the acceleration) have been cured or waived.  The Issuers are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuers are required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

 

 

(12)

TRUSTEE DEALINGS WITH THE ISSUERS.  The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for any Issuer or its Affiliates, and may otherwise deal with any Issuer or its Affiliates, as if it were not the Trustee.

 

(13)

NO RECOURSE AGAINST OTHERS.  None of the General Partner or any director, officer, partner, employee, incorporator, manager, unitholder or other owner of Capital Stock of the General Partner, the Issuers or any Guarantor, as such, will have any liability for any obligations of the Issuers or such Guarantor under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for the issuance of the Notes.

 

(14)

AUTHENTICATION.  This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

 

(15)

ABBREVIATIONS.  Customary abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

(16)

CUSIP AND ISIN NUMBERS.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP and ISIN numbers to be printed on the Notes and the Trustee may use CUSIP and ISIN numbers in notices of redemption or repurchase as a convenience to Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or repurchase and reliance may be placed only on the other identification numbers placed thereon.

 

(17)

GOVERNING LAW.  THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.

 

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 1300
Tulsa, Oklahoma 74136
Telecopier No.:  (918) 481-5896
Attention: Chief Financial Officer

 

 

ASSIGNMENT FORM

 

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:
	(Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint _________________________________________________________________________ to transfer this Note on the books of the Issuers.  The agent may substitute another to act for him.

 

Date:
			Your Signature:
			(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, check the appropriate box below:

 

¨ Section 4.10            ¨ Section 4.14

 

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:

 

$

 

Date:
			Your Signature:
			(Sign exactly as your name appears on the face of this Note)

 

			Tax Identification No.:

 

Signature Guarantee*:

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

 

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange	Amount of decrease in Principal Amount of this Global Note	Amount of increase in Principal Amount of this Global Note	Principal Amount of this Global Note following such decrease (or increase)	Signature of authorized officer of Trustee or Custodian

 

*

This schedule should be included only if the Note is issued in global form.

 

 

[Face of Note]

 

CUSIP/ISIN                          ²

 

8.375% Senior Secured Note due 2032

 

No. ___________

$_____________

 

NGL ENERGY OPERATING LLC
NGL ENERGY FINANCE CORP.

 

jointly and severally promise to pay to                                                        [if a Global Note, insert — CEDE & CO., as nominee for The Depository Trust Company] or its registered assigns, the principal sum of                                                                                          DOLLARS [if a Global Note, insert — , or such other principal amount as shall be set forth on the “Schedule of Exchanges of Interests in the Global Note” attached hereto,] on February 15, 2032.

 

Interest Payment Dates:  February 15, May 15, August 15 and November 15

 

Record Dates:  February 1, May 1, August 1 and November 1

 

Dated:                       , 20

 

² For ease of reference: 62922LAD0 (144A); U6536LAC4 (Reg S)

 

 

	NGL ENERGY OPERATING LLC
	By:
		Name:
		Title:
	NGL ENERGY FINANCE CORP.
	By:
		Name:
		Title:

 

This is one of the Notes referred to in the within-mentioned Indenture: 

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
	Authorized Signatory

 

 

[Back of Note]
8.375% Senior Secured Note due 2032

 

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

 

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. As used in this Note, references to “Notes” shall only refer to the 2032 Notes, unless otherwise indicated or the context otherwise requires.

 

(1)

INTEREST.  NGL Energy Operating LLC, a Delaware limited liability company (the “Operating LLC”), and NGL Energy Finance Corp., a Delaware corporation (together with Operating LLC, the “Issuers”), each a wholly owned subsidiary of NGL Energy Partners LP, a Delaware limited partnership (the “Company”), jointly and severally promise to pay interest on the principal amount of this Note at 8.375% per annum until maturity.  The Issuers will pay interest, if any, quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”); provided that the first Interest Payment Date shall be [                     ].  Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date.  The Issuers will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate equal to the then applicable interest rate on the Notes; they will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace periods), from time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.

 

(2)

METHOD OF PAYMENT.  The Issuers will pay interest on the Notes (except defaulted interest), if any, to the Persons who are registered Holders of Notes at the close of business on the February 1, May 1, August 1 and November 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.  The Notes will be payable as to principal, premium, if any, and interest, if any, at the office or agency of the Issuers maintained for such purpose within or without the City and State of New York, or, at the option of the Issuers, payment of interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium, if any, and interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided to the Issuers or the Paying Agent wire transfer instructions to an account in the United States of America.  Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

(3)

PAYING AGENT AND REGISTRAR.  Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar.  The Issuers may change any Paying Agent or Registrar without notice to any Holder; provided, however, that the Issuers shall at all times maintain a Paying Agent in the Borough of Manhattan, The City of New York.  Either Issuer or any Subsidiary may act in any such capacity.

 

 

(4)

INDENTURE.  The Issuers issued the Notes under an Indenture dated as of February 2, 2024 (the “Indenture”) among the Issuers, the Guarantors and the Trustee. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.  The Notes are secured obligations of the Issuers. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

 

(5)

OPTIONAL REDEMPTION.

 

(a)

At any time prior to February 15, 2027, Operating LLC may on any one or more occasions redeem up to 40% of the aggregate principal amount of the Notes outstanding under the Indenture (which may include Additional Notes) with an amount of cash not greater than the amount equal to the net cash proceeds from one or more Equity Offerings at a redemption price equal to 108.375% of the principal amount thereof, plus accrued and unpaid interest, if any, on the Notes to be redeemed to, but excluding, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date); provided that (i) at least 50% of the aggregate principal amount of the Notes issued on the Issue Date (excluding Notes held by the Company and its Subsidiaries) remains outstanding after each such redemption and (ii) the redemption occurs within 180 days after the closing of such Equity Offering.

 

(b)

At any time or from time to time prior to February 15, 2027 (the “2032 Notes Step-Down Date”) Operating LLC may redeem, on one or more occasions, all or a part of the Notes, at a redemption price equal to the 2032 Notes Make-Whole Price, subject to the rights of Holders of Notes on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date.

 

(c)

In the event that Holders of not less than 90% in aggregate principal amount of the outstanding Notes accept a Change of Control Offer or Alternate Offer and the Company (or any third party making such Change of Control Offer in lieu of the Company as described in Section 4.14(c) of the Indenture) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to any Change of Control Offer or Alternate Offer described in Section 4.14 of the Indenture, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to, but excluding, the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date).

 

(d)

Except as provided in the immediately preceding paragraphs (a), (b) and (c), the Notes will not be redeemable at Operating LLC’s or the Company’s option prior to February 15, 2027.

 

 

(e)

On and after February 15, 2027 Operating LLC may redeem, on one or more occasions, all or a part of the Notes, from time to time at the following redemption prices (expressed as a percentage of principal amount to be redeemed) plus accrued and unpaid interest, if any, on the Notes to be redeemed to, but excluding, the applicable redemption date (subject to the rights of Holders on the relevant record date to receive interest, if any, due on the related Interest Payment Date that is on or prior to the redemption date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:

 

Year		Percentage
2027			104.188	%
2028			102.094	%
2029 and thereafter			100.000	%

 

(f)

Unless the Issuers default in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.

 

(6)

REPURCHASE AT THE OPTION OF HOLDER.

 

(a)

If there is a Change of Control, each Holder will have the right, except as provided below and in the Indenture, to require the Company to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest, if any, due on the relevant Interest Payment Date (the “Change of Control Payment”).  Within 30 days following any Change of Control, the Company will send a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.  The Company will not be required to make a Change of Control Offer upon a Change of Control, if (i) a third party makes a Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in Section 4.14(a) of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer, (ii) notice of redemption of all outstanding Notes has been given pursuant to the Indenture unless and until there is a default in payment of the applicable redemption price, or (iii) in connection with or in contemplation of any Change of Control, the Company has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered and not withdrawn at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered and not withdrawn in accordance with the terms of the Alternate Offer.

 

 

(b)

If the Company or a Restricted Subsidiary consummates any Asset Sales of Collateral, within 10 Business Days after the aggregate amount of Excess Collateral Proceeds exceeds $50.0 million, the Issuers will be required to make an offer (a “Collateral Disposition Offer”) to all Holders of Notes to purchase the maximum principal amount of the Notes (on a pro rata basis) and, if required by the terms of any other Pari Passu Notes-TLB Obligations, to the holders of such Pari Passu Notes-TLB Obligations (on a pro rata basis), to which the Collateral Disposition Offer applies that may be purchased out of the Excess Collateral Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such other Pari Passu Obligations, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in accordance with the procedures set forth in the Indenture in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof with respect to the Notes. To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to a Collateral Disposition Offer (together with, if required by the terms of any other Pari Passu Notes-TLB Obligations, the amount of Pari Passu Notes-TLB Obligations tendered pursuant to any similar requirement), is less than the Excess Collateral Proceeds, the Issuers may use any remaining Excess Collateral Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes surrendered by Holders and, if required by the holders of Pari Passu Notes-TLB Obligations, holders of any Pari Passu Notes-TLB Obligations exceeds the amount of Excess Collateral Proceeds, the Notes and Pari Passu Notes-TLB Obligations to be purchased shall be selected by the Trustee on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes-TLB Obligations. Holders of Notes that are the subject of an offer to purchase will receive notice of a Collateral Disposition Offer from the Company prior to any related purchase, prepayment or redemption date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

(7)

NOTICE OF OPTIONAL REDEMPTION.  Notices of optional redemption will be mailed by first-class mail (or in the case of Notes in the form of Global Notes, pursuant to the applicable procedures of DTC) at least 10 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture with respect to the Notes. The notice of redemption with respect to a redemption pursuant to Section 3.08(b) of the Indenture and paragraph 5(b) herein need not set forth the 2032 Notes Make-Whole Price but only the manner of calculation thereof. Operating LLC will notify the Trustee of the 2032 Notes Make-Whole Price with respect to any redemption promptly after the calculation, and the Trustee shall not be responsible for such calculation. The actions taken by Operating LLC in calculating the 2032 Make-Whole price shall be conclusive absent manifest error. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed.

 

(8)

DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without coupons in denominations of $2,000 or an integral multiple of $1,000 in excess thereof.  The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture.  The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.  Also, the Issuers need not exchange or register the transfer of any Notes for a period of 10 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

 

(9)

PERSONS DEEMED OWNERS.  The registered Holder of a Note may be treated as its owner for all purposes.

 

 

(10)

AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to certain exceptions, the Indenture, the Notes, the Note Guarantees or the Security Documents (subject to compliance with the Intercreditor Agreements) may be amended or supplemented with the consent of the Holders of a majority in principal amount of the then outstanding Notes and Additional Notes of each series affected by such amendment or supplement, if any, voting as a single class, and any existing Default or Event of Default or compliance with any provision of the Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes and Additional Notes of each series affected by such waiver, if any, voting as a single class.  Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may be amended or supplemented to: (i) cure any ambiguity, defect, mistake or inconsistency; (ii) provide for uncertificated Notes in addition to or in place of certificated Notes; (iii) provide for the assumption of an Issuer’s or a Guarantor’s obligations to Holders of Notes and Note Guarantees and under the Security Documents in the case of a merger, amalgamation or consolidation or sale of all or substantially all of such Issuer’s or Guarantor’s properties or assets, as applicable; (iv) make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any Holder; (v) at the Issuers’ election, comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, if such qualification is required; (vi) conform the text of the Indenture, the Note Guarantees, the Notes or the Security Documents or the Intercreditor Agreements (as evidenced by an Officers’ Certificate) to any provision of the “Description of the notes” section of the Issuers’ Offering Memorandum dated January 25, 2024, to the extent that such provision in that “Description of the notes” was intended to be a verbatim recitation of a provision of the Indenture, the Notes, the Security Documents, the Intercreditor Agreements or the Note Guarantees; (vii) provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the Issue Date; (viii) make, complete or confirm any grant of Collateral permitted or required by the Indenture or the Security Documents or any release, termination or discharge of Collateral that becomes effective as set forth in the Indenture or any of the Security Documents; (ix) add any additional Guarantor or to evidence the release of any Guarantor from its Note Guarantee, in each case as provided in the Indenture; (x) evidence or provide for the acceptance of appointment under the Indenture of a successor Trustee or a successor Collateral Agent; (xi) grant any Lien for the benefit of the holders of any future Pari Passu Notes-TLB Obligations, Pari Passu ABL Obligations, Pari Passu Second Lien Obligations or Junior Lien Obligations in accordance with and as permitted by the terms of the Indenture and the ABL Intercreditor Agreement (and, with respect to Pari Passu Second Lien Indebtedness or Junior Lien Indebtedness, any Pari Passu Second Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable); (xii) add additional secured parties to the Intercreditor Agreements to the extent Liens securing obligations held by such parties are permitted under the Indenture; (xiii) mortgage, pledge, hypothecate or grant a security interest in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes as additional security for the payment and performance of the Issuers’ and any Guarantor’s obligations under the Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee or the Collateral Agent in accordance with the terms of the Indenture or otherwise; or (xiv) provide for the succession of any parties to the Security Documents (and other amendments that are administrative or ministerial in nature) and the Intercreditor Agreements in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of any agreement in accordance with the terms of the Indenture, the ABL Intercreditor Agreement and the relevant Security Documents.

 

 

(11)

DEFAULTS AND REMEDIES.  Events of Default include: (i) default for 30 days in the payment when due of interest, if any, on the Notes; (ii) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes; (iii) failure by the Company to comply with its obligations under Section 5.01 of the Indenture or to consummate a purchase of Notes when required pursuant to Sections 4.10 or 4.14 of the Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days after written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes to comply with the provisions of Section 4.07 or Section 4.09 of the Indenture or to comply with the provisions of Section 4.10 or Section 4.14 of the Indenture to the extent not described in the immediately preceding clause (iii); (v) (a) except as addressed in subclause (b) of this clause (v), failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes to comply with any of the other agreements in the Indenture or this Note or (b) failure by the Company for 180 days after notice from the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes of the applicable series to comply with Section 4.03 of the Indenture; (vi) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default: (a) is caused by a failure to pay principal of, premium, if any, on, or interest, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or (b) results in the acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $100.0 million or more; provided that if, prior to any acceleration of the Notes, (1) any such default is cured or waived, (2) any such acceleration of such Indebtedness is rescinded, or (3) such Indebtedness is repaid, within a period of 10 Business Days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, any Default or Event of Default (but not any acceleration of the Notes) shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree; (vii) failure by the Company or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final, non-appealable judgments (entered by a court or courts of competent jurisdiction) aggregating in excess of $100.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days; (viii) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee, except, in each case, by reason of the release of such Note Guarantee in accordance with the Indenture;  (ix) an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law (a) commences a voluntary case, (b) consents to the entry of an order for relief against it in an involuntary case, (c) consents to the appointment of a custodian of it or for all or substantially all of its property, (d) makes a general assignment for the benefit of its creditors, or (e) generally is not paying its debts as they become due; (x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (a) is for relief against any Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case, (b) appoints a custodian of any Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or (c) orders the liquidation of an Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, and the order or decree remains unstayed and in effect for 60 consecutive days. In the case of an Event of Default specified in the immediately preceding clause (ix) or clause (x), with respect to either Issuer or any of the Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, all then outstanding Notes will become due and payable immediately without further action or notice (subject to applicable law); (xi)(i) the Liens created by any Security Document shall at any time not constitute a valid and perfected Lien on any Collateral intended to be covered thereby with a Fair Market Value, individually or in the aggregate, in excess of $50.0 million other than (A) in accordance with the terms of the relevant Security Documents and the Indenture, (B) the satisfaction in full of all Obligations under the Indenture or (C) any loss of perfection that results from the failure of the Collateral Agent to maintain possession of certificates delivered to it representing securities pledged under the Security Documents, and which default continues for 30 days; (ii) the repudiation by any Issuer or any Guarantor in any pleading in any court of competent jurisdiction of any of its material obligations under the Security Documents or to file UCC continuation statements or PPSA financing change statements; or (xii) any Issuer or any Guarantor shall assert, in any pleading in any court of competent jurisdiction, that any security interest in any Security Document is invalid or unenforceable other than by reason of the termination of the Indenture or the release of any such Collateral in accordance with the Indenture. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 30% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately by notice in writing to the Company and, in the case of a notice by Holders, also to the Trustee specifying the respective Event of Default and that it is a notice of acceleration.  Holders may not enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal of, premium, if any, or interest, if any, on, any Note) if it in good faith determines that withholding notice is in their interest.  The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes , rescind an acceleration and its consequences if the rescission would not violate any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium, if any, that has become due solely because of the acceleration) have been cured or waived.  The Issuers are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuers are required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

 

 

(12)

TRUSTEE DEALINGS WITH THE ISSUERS.  The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for any Issuer or its Affiliates, and may otherwise deal with any Issuer or its Affiliates, as if it were not the Trustee.

 

(13)

NO RECOURSE AGAINST OTHERS.  None of the General Partner or any director, officer, partner, employee, incorporator, manager, unitholder or other owner of Capital Stock of the General Partner, the Issuers or any Guarantor, as such, will have any liability for any obligations of the Issuers or such Guarantor under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for the issuance of the Notes.

 

 

(14)

AUTHENTICATION.  This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

(15)

ABBREVIATIONS.  Customary abbreviations may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

(16)

CUSIP AND ISIN NUMBERS.  Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP and ISIN numbers to be printed on the Notes and the Trustee may use CUSIP and ISIN numbers in notices of redemption or repurchase as a convenience to Holders.  No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or repurchase and reliance may be placed only on the other identification numbers placed thereon.

 

(17)

GOVERNING LAW.  THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.

 

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 1300
Tulsa, Oklahoma 74136
Telecopier No.:  (918) 481-5896
Attention: Chief Financial Officer

 

 

ASSIGNMENT FORM

 

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to:
	(Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint _________________________________________________________________________ to transfer this Note on the books of the Issuers.  The agent may substitute another to act for him.

 

Date:
			Your Signature:
			(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*:

 

*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, check the appropriate box below:

 

¨ Section 4.10            ¨ Section 4.14

 

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:

 

$

 

Date:
			Your Signature:
			(Sign exactly as your name appears on the face of this Note)

 

			Tax Identification No.:

 

Signature Guarantee*:

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*

 

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange	Amount of decrease in Principal Amount of this Global Note	Amount of increase in Principal Amount of this Global Note	Principal Amount of this Global Note following such decrease (or increase)	Signature of authorized officer of Trustee or Custodian

 

*

This schedule should be included only if the Note is issued in global form.

 

 

EXHIBIT B

 

FORM OF CERTIFICATE OF TRANSFER

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 1300
Tulsa, Oklahoma 74136

 

U.S. Bank Trust Company, National Association
13737 Noel Road, Suite 800
Dallas, TX 75240
Attention:  Global Corporate Trust Services

 

Re:  [8.125% Senior Secured Notes due 2029][8.375% Senior Secured Notes due 2032]

 

Reference is hereby made to the Indenture, dated as of February 2, 2024 (the “Indenture”), among NGL Energy Operating LLC and NGL Energy Finance Corp., as issuers (the “Issuers”), the Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $            in such Note[s] or interests (the “Transfer”), to                              (the “Transferee”), as further specified in Annex A hereto.  In connection with the Transfer, the Transferor hereby certifies that:

 

[CHECK ALL THAT APPLY]

 

1.            ¨  Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A.  The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

 

2.            ¨  Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, (x) the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person and (y) the interest transferred will be held immediately thereafter through Euroclear or Clearstream.  Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

 

 

3.            ¨  Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

 

(a)            ¨   such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

 

or

 

(b)            ¨   such Transfer is being effected to an Issuer or a subsidiary thereof;

 

or

 

(c)            ¨   such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

 

or

 

(d)            ¨   such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.

 

4.            ¨ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.

 

(a)            ¨   Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(b)            ¨   Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

 

(c)            ¨   Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.

 

 

		[Insert Name of Transferor]
		By:
			Name:
			Title:
Dated:

 

 

ANNEX A TO CERTIFICATE OF TRANSFER

 

1.            The Transferor owns and proposes to transfer the following:

 

[CHECK ONE OF (a) OR (b)]

 

(a)            ¨   a beneficial interest in the:

 

(i)

¨   144A Global Note (CUSIP [●]), or

 

(ii)

¨   Regulation S Global Note (CUSIP [●]), or

 

(b)            ¨    a Restricted Definitive Note.

 

2.            After the Transfer the Transferee will hold:

 

[CHECK ONE]

 

(a)            ¨   a beneficial interest in the:

 

(i)

¨   144A Global Note (CUSIP [●]), or

 

(ii)

¨   Regulation S Global Note (CUSIP [●]), or

 

(iii)

¨   IAI Global Note (CUSIP [●]), or

 

(iv)

¨   Unrestricted Global Note (CUSIP [●]), or

 

(b)            ¨   a Restricted Definitive Note; or

 

(c)            ¨   a Restricted Definitive Note,

 

in accordance with the terms of the Indenture.

 

 

EXHIBIT C

 

FORM OF CERTIFICATE OF EXCHANGE

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 1300
Tulsa, Oklahoma 74136

 

U.S. Bank Trust Company, National Association
13737 Noel Road, Suite 800
Dallas, TX 75240
Attention:  Global Corporate Trust Services

 

Re:  [8.125% Senior Secured Notes due 2029 CUSIP: ][8.375% Senior Secured Notes due 2032 CUSIP:             ]

 

Reference is hereby made to the Indenture, dated as of February 2, 2024 (the “Indenture”), among NGL Energy Operating LLC and NGL Energy Finance Corp., as issuers (the “Issuers”), the Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

, (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $             in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner hereby certifies that:

 

1.            Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

 

(a)            ¨          Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(b)            ¨         Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(c)            ¨         Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

 

(d)            ¨          Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

2.            Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

 

(a)            ¨          Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

 

(b)            ¨         Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note, ¨ IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers.

 

		[Insert Name of Transferor]
		By:
			Name:
			Title:
Dated:

 

 

EXHIBIT D

 

FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

 

NGL Energy Partners LP
6120 South Yale Avenue, Suite 1300
Tulsa, Oklahoma 74136

 

U.S. Bank Trust Company, National Association
13737 Noel Road, Suite 800
Dallas, TX  75240
Attention:  Global Corporate Trust Services

 

Re:  [8.125% Senior Secured Notes due 2029][8.375% Senior Secured Notes due 2032]

 

Reference is hereby made to the Indenture, dated as of February 2, 2024 (the “Indenture”), among NGL Energy Operating LLC and NGL Energy Finance Corp., as issuers (the “Issuers”), the Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent.  Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

In connection with our proposed purchase of $             aggregate principal amount of:

 

(a)            ¨           a beneficial interest in a Global Note, or

 

(b)            ¨           a Definitive Note,

 

we confirm that:

 

1.            We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).

 

2.            We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to an Issuer or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Issuers a signed letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form reasonably acceptable to the Issuers to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, or (E) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (D) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.

 

3.            We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Issuers such certifications, legal opinions and other information as you and the Issuers may reasonably require to confirm that the proposed sale complies with the foregoing restrictions.  We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

 

 

4.            We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

 

5.            We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.

 

You and the Issuers are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

		[Insert Name of Accredited Investor]
		By:
			Name:
			Title:
Dated:

 

 

EXHIBIT E

 

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                 , 20  , among                    (the “Guaranteeing Subsidiary”), a subsidiary (or a permitted successor thereof) of NGL Energy Operating LLC (“NGL LP”), a Delaware limited liability company, or NGL Energy Finance Corp. (“Finance Corp.,” and, together with NGL LP, the “Issuers”), a Delaware corporation, the Issuers, the other Guarantors (as defined in the Indenture referred to herein) and U.S. Bank Trust Company, National Association, as trustee and collateral agent under the Indenture referred to below (the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of February 2, 2024 providing for the issuance of 8.125% Senior Secured Notes due 2029 (the “2029 Notes”) and 8.375% Senior Secured Notes due 2032 (the “2032 Notes,” together with the 2029 Notes, the “Notes”);

 

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers’ Obligations under the Notes of each series and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of Notes of each series as follows:

 

1.            CAPITALIZED TERMS.  Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.            AGREEMENT TO GUARANTEE.  The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article X thereof.

 

3.            EXECUTION AND DELIVERY.  Each Guaranteeing Subsidiary agrees that the Note Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

 

4.            NO RECOURSE AGAINST OTHERS.  No past, present or future director, officer, partner, employee, incorporator, organizer, manager, unitholder or other owner of Capital Stock (as defined in the Indenture) of the Guaranteeing Subsidiary or agent thereof, as such, shall have any liability for any obligations of the Issuers, the Guarantors, the Guaranteeing Subsidiary or any other Subsidiary of an Issuer providing a Note Guarantee under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder of the Notes of each series by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Notes.  Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

 

5.            NEW YORK LAW TO GOVERN.  THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.

 

 

6.            COUNTERPARTS.  The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.            EFFECT OF HEADINGS.  The Section headings herein are for convenience only and shall not affect the construction hereof.

 

8.            THE TRUSTEE.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Issuers.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

Dated:                , 20
	[GUARANTEEING SUBSIDIARY]
	By:
		Name:
		Title:
	NGL ENERGY OPERATING LLC
	By:
		Name:
		Title:
	NGL ENERGY FINANCE CORP.
	By:
		Name:
		Title:
	[EXISTING GUARANTORS]
	By:
		Name:
		Title:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Collateral Agent
	By:
		Authorized Signatory

 

 

 

Exhibit 10.1

 

Execution Version

 

 

TERM LOAN CREDIT AGREEMENT

 

Dated as of February 2, 2024

 

among

 

NGL ENERGY OPERATING LLC,
as the Borrower,

 

NGL ENERGY PARTNERS LP,
as the Parent,

 

TORONTO DOMINION (TEXAS) LLC,
as Administrative Agent and Collateral Agent

 

and

 

The Lenders Party Hereto From Time to Time

 

 

TD SECURITIES (USA) LLC,
JPMORGAN CHASE BANK, N.A.,

BARCLAYS BANK PLC,

ROYAL BANK OF CANADA,
WELLS FARGO SECURITIES, LLC,

BOFA SECURITIES, INC.,

MUFG BANK, LTD.,

 

and

 

TCBI SECURITIES, INC.,

 

as Joint Lead Arrangers and Joint Bookrunners

 

and

 

STONEX FINANCIAL INC.,
as Co-Manager

 

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS		1
Section 1.01	Defined Terms	1
Section 1.02	Other Interpretive Provisions	80
Section 1.03	Accounting Terms	83
Section 1.04	Rounding	83
Section 1.05	References to Agreements, Laws, Etc.	83
Section 1.06	Times of Day	83
Section 1.07	Timing of Payment or Performance	84
Section 1.08	Negative Covenant Compliance	84
ARTICLE II THE COMMITMENTS AND BORROWINGS		84
Section 2.01	The Initial Term Loans	84
Section 2.02	Borrowings, Conversions and Continuations of Loans	84
Section 2.03	[Reserved]	86
Section 2.04	Prepayments	86
Section 2.05	Termination or Reduction of Commitments	100
Section 2.06	Repayment of Loans	100
Section 2.07	Interest	101
Section 2.08	Fees	101
Section 2.09	Computation of Interest and Fees	102
Section 2.10	Evidence of Indebtedness	102
Section 2.11	Payments Generally	103
Section 2.12	Sharing of Payments	105
Section 2.13	Incremental Loans	105
Section 2.14	Refinancing Amendments	111
Section 2.15	Extension of Term Loans	112
Section 2.16	Defaulting Lenders	114
ARTICLE III TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY		115
Section 3.01	Taxes	115
Section 3.02	Illegality	120
Section 3.03	Inability to Determine Rates	121
Section 3.04	Increased Cost and Reduced Return; Capital Adequacy	121
Section 3.05	Funding Losses	123
Section 3.06	Matters Applicable to All Requests for Compensation	123
Section 3.07	Replacement of Lenders under Certain Circumstances	124
Section 3.08	Benchmark Replacement Setting	125
Section 3.09	Survival	127
ARTICLE IV CONDITIONS PRECEDENT TO Borrowings		127
Section 4.01	Conditions to Effectiveness and Initial Term Borrowings	127

 

 

ARTICLE V REPRESENTATIONS AND WARRANTIES		131
Section 5.01	Existence, Qualification and Power; Compliance with Laws	131
Section 5.02	Authorization; No Contravention	131
Section 5.03	Governmental Authorization	131
Section 5.04	Binding Effect	132
Section 5.05	Financial Statements; No Material Adverse Effect	132
Section 5.06	Litigation	133
Section 5.07	Ownership of Property; Liens	133
Section 5.08	Environmental Matters	133
Section 5.09	Taxes	134
Section 5.10	ERISA Compliance	134
Section 5.11	Subsidiaries; Equity Interests	135
Section 5.12	Margin Regulations; Investment Company Act	135
Section 5.13	Disclosure	135
Section 5.14	Labor Matters	136
Section 5.15	Intellectual Property; Licenses, Etc.	136
Section 5.16	Solvency	136
Section 5.17	OFAC; USA PATRIOT Act; FCPA; Anti-Terrorism Laws	136
Section 5.18	Security Documents	137
Section 5.19	[Reserved]	138
Section 5.20	No Default	138
Section 5.21	Insurance	138
Section 5.22	Burdensome Agreements	139
Section 5.23	Affected Financial Institutions	139
ARTICLE VI AFFIRMATIVE COVENANTS		139
Section 6.01	Financial Statements	139
Section 6.02	Certificates; Other Information	139
Section 6.03	Notices	142
Section 6.04	Payment of Tax Obligations	143
Section 6.05	Preservation of Existence, Etc.	143
Section 6.06	Maintenance of Properties	144
Section 6.07	Maintenance of Insurance	144
Section 6.08	Compliance with Laws	145
Section 6.09	Books and Records	145
Section 6.10	Inspection Rights	145
Section 6.11	Additional Subsidiaries; Additional Collateral	146
Section 6.12	Compliance with Environmental Laws	146
Section 6.13	Further Assurances	147
Section 6.14	Designation of Subsidiaries	147
Section 6.15	Maintenance of Ratings	147
Section 6.16	Change in Nature of Business	148
Section 6.17	Accounting Changes	148
Section 6.18	Use of Proceeds	148
Section 6.19	Status Calls	148
Section 6.20	Post-Closing Deliveries	148
Section 6.21	ERISA; Canadian Pension Plans	148
Section 6.22	Accuracy of Information	149

 

 

Section 6.23	Anti-Corruption; Sanctions	149
Section 6.24	Swap Contracts	149
ARTICLE VII NEGATIVE COVENANTS		150
Section 7.01	Liens	150
Section 7.02	Investments	156
Section 7.03	Indebtedness	159
Section 7.04	Fundamental Changes	163
Section 7.05	Dispositions	165
Section 7.06	Restricted Payments	168
Section 7.07	Transactions with Affiliates	171
Section 7.08	Burdensome Agreements	172
Section 7.09	Financial Covenant	172
Section 7.10	Prepayments, Etc. of Indebtedness	173
Section 7.11	[Reserved]	174
Section 7.12	Layering	174
Section 7.13	Canadian Pension Plans	174
Section 7.14	Limitation on Activities of the Parent	174
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES		175
Section 8.01	Events of Default	175
Section 8.02	Remedies Upon Event of Default	178
Section 8.03	Exclusion of Immaterial Subsidiaries	178
Section 8.04	Application of Funds	178
Section 8.05	Borrower’s Right to Cure	179
ARTICLE IX ADMINISTRATIVE AGENT AND OTHER AGENTS		180
Section 9.01	Appointment and Authorization of Agents	180
Section 9.02	Delegation of Duties	182
Section 9.03	Liability of Agents	183
Section 9.04	Reliance by Agents	183
Section 9.05	Notice of Default	184
Section 9.06	Credit Decision; Disclosure of Information by Agents	184
Section 9.07	Indemnification of Agents	185
Section 9.08	Agents in Their Individual Capacities	185
Section 9.09	Successor Agents	186
Section 9.10	Administrative Agent May File Proofs of Claim	187
Section 9.11	Collateral and Guaranty Matters	187
Section 9.12	Other Agents; Lead Arrangers and Managers	189
Section 9.13	Appointment of Supplemental Agents	189
Section 9.14	Withholding Tax Indemnity	190
Section 9.15	Certain ERISA Matters	191
Section 9.16	Erroneous Payments	192
ARTICLE X MISCELLANEOUS		193
Section 10.01	Amendments, Etc.	193
Section 10.02	Notices and Other Communications; Facsimile Copies	198
Section 10.03	No Waiver; Cumulative Remedies	200

 

 

Section 10.04	Attorney Costs and Expenses	200
Section 10.05	Indemnification by the Borrower	201
Section 10.06	Payments Set Aside	202
Section 10.07	Successors and Assigns	202
Section 10.08	Confidentiality	209
Section 10.09	Setoff	210
Section 10.10	Interest Rate Limitation	210
Section 10.11	Tax Treatment	210
Section 10.12	Counterparts	210
Section 10.13	Integration; Termination	211
Section 10.14	Survival of Representations and Warranties	211
Section 10.15	Severability	211
Section 10.16	GOVERNING LAW	212
Section 10.17	WAIVER OF RIGHT TO TRIAL BY JURY	212
Section 10.18	Binding Effect	213
Section 10.19	USA PATRIOT Act and Beneficial Ownership	213
Section 10.20	No Advisory or Fiduciary Responsibility	213
Section 10.21	Electronic Execution of Assignments	214
Section 10.22	Judgment Currency	215
Section 10.23	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	215
Section 10.24	Cashless Rollovers	215
Section 10.25	Acknowledgement Regarding any Supported QFCs	216
Section 10.26	Canadian Anti-Money Laundering Legislation	217

 

SCHEDULES

 

1.01A	Commitments
1.01B	Collateral Documents
1.01C	Risk Management Policy
5.05	Certain Liabilities
5.07	Real Property
5.11	Subsidiaries and Other Equity Investments
5.21	Insurance
6.20	Post-Closing Deliveries
7.01(b)	Existing Liens
7.02(f)	Existing Investments
7.03(b)	Existing Indebtedness
7.05(f)	Closing Date Dispositions
7.07	Transactions with Affiliates
7.08	Certain Contractual Obligations
10.02(a)	Administrative Agent’s Office, Certain Addresses for Notices

 

 

EXHIBITS

 

Form of

 

A	Committed Loan Notice
B	Term Note
C-1	Compliance Certificate
C-2	Solvency Certificate
D	Assignment and Assumption
E-1	Security Agreement
E-2	Canadian Pledge and Security Agreement
F	[Reserved]
G	Intercompany Note
H-1	Crossing Liens Intercreditor Agreement
H-2	Pari Passu Intercreditor Agreement
I-1	US Tax Compliance Certificate (Foreign Non-Partnership Lenders)
I-2	US Tax Compliance Certificate (Foreign Non-Partnership Participants)
I-3	US Tax Compliance Certificate (Foreign Partnership Participants)
I-4	US Tax Compliance Certificate (Foreign Partnership Lenders)
J-1	[Reserved]
J-2	[Reserved]
J-3	Acceptance and Prepayment Notice
J-4	Discount Range Prepayment Notice
J-5	Discount Range Prepayment Offer
J-6	Solicited Discounted Prepayment Notice
J-7	Solicited Discounted Prepayment Offer
J-8	Specified Discount Prepayment Notice
J-9	Specified Discount Prepayment Response
K	Guaranty

 

 

TERM LOAN CREDIT AGREEMENT

 

This TERM LOAN CREDIT AGREEMENT (as the same may be amended, restated, amended and restated, refinanced, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of February 2, 2024, among NGL ENERGY PARTNERS LP, a Delaware limited partnership (the “Parent”), NGL ENERGY OPERATING LLC, a Delaware limited liability company, as borrower (the “Borrower”), TORONTO DOMINION (TEXAS) LLC, as Administrative Agent and Collateral Agent, and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).

 

PRELIMINARY STATEMENTS

 

The Borrower has requested that the Lenders extend credit to the Borrower in the form of the Initial Term Loans on the Closing Date in an initial aggregate principal amount of $700,000,000.

 

The proceeds of the Initial Term Loans will be used by the Borrower (a) for the refinancing, defeasance and/or redemption of certain of the Parent’s or its Subsidiaries’ existing Indebtedness in an aggregate principal amount of (i) $2,050,000,000 outstanding under the Indenture, dated as of February 4, 2021, among the Parent, NGL Energy Finance Corp., the Guarantors (as defined therein) and U.S. Bank National Association, as trustee, (ii) $319,902,000 outstanding under the Indenture, dated as of April 9, 2019, among the Parent, NGL Energy Finance Corp., the Guarantors (as defined therein) and U.S. Bank National Association, as trustee, and (iii) $280,745,000 outstanding under the Indenture, dated as of February 22, 2017, among the Parent, NGL Energy Finance Corp., the Guarantors (as defined therein) and U.S. Bank National Association, as trustee (collectively, the “Refinancing”), (b) to pay Transaction Expenses and (c) for working capital and general corporate purposes.

 

The applicable Lenders have indicated their willingness to lend and make other extensions of credit, in each case, on the terms and subject to the conditions set forth herein.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01      Defined Terms. As used in this Agreement (including in the preliminary statements hereto), the following terms shall have the meanings set forth below:

 

“ABL Credit Agreement” means (a) that certain Credit Agreement, dated as of February 4, 2021, among the Parent, the Borrower, the financial institutions party thereto from time to time as lenders and JPMorgan Chase Bank, N.A. (or any successor thereto), as administrative agent, as amended by that certain First Amendment to Credit Agreement, dated November 8, 2021, as further amended by that certain Second Amendment to Credit Agreement, dated April 13, 2022, as further amended by that certain Third Amendment to Credit Agreement, dated February 16, 2023, as further amended by that certain Fourth Amendment to Credit Agreement, dated July 13, 2023, and as further amended by that certain Fifth Amendment to Credit Agreement, dated as of the date hereof, and (b) the credit agreement governing any other ABL Facility (including any replacement for any existing ABL Facility that is an asset based revolving credit facility) permitted to be incurred under Section 7.03(a)(ii).

 

 

“ABL Facility” means the asset-based revolving credit facility governed by the ABL Credit Agreement.

 

“ABL Facility Documents” means the “Credit Documents” (or any analogous term or functional equivalent) under and as defined in the ABL Credit Agreement.

 

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

 

“Acceptable Discount” has the meaning set forth in Section 2.04(a)(iv)(D)(2).

 

“Acceptable Owner” means any Person, when considered collectively with its Affiliates, that (a) has, or is a direct or indirect Subsidiary of a Person that has, a tangible net worth, assets under management or, to the extent its securities are publicly traded, equity value of at least $1,000,000,000 and (b)(i) is a Qualified Operator or (ii) has an Affiliate that is a Qualified Operator.

 

“Acceptable Prepayment Amount” has the meaning set forth in Section 2.04(a)(iv)(D)(3).

 

“Acceptance and Prepayment Notice” means a notice of the Borrower’s acceptance of the Acceptable Discount in substantially the form of Exhibit J-3.

 

“Acceptance Date” has the meaning set forth in Section 2.04(a)(iv)(D)(2).

 

“Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary (determined as if references to the Parent and the Restricted Subsidiaries in the definition of Consolidated EBITDA were references to such Acquired Entity or Business and its Subsidiaries or to such Converted Restricted Subsidiary and its Subsidiaries), as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable.

 

“Acquired Entity or Business” means any Person, property, business or asset acquired by the Parent or any Restricted Subsidiary during any Test Period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired during such period), to the extent not subsequently sold, transferred or otherwise disposed of by the Parent or such Restricted Subsidiary during such period.

 

“Acquirer” has the meaning set forth in the definition of the term “Change of Control”.

 

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

 

 

“Additional Lender” has the meaning set forth in Section 2.13(c).

 

“Additional Refinancing Lender” has the meaning set forth in Section 2.14(a).

 

“Administrative Agent” means Toronto Dominion (Texas) LLC, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent appointed in accordance with Section 9.09. Unless the context requires otherwise, the term “Administrative Agent” shall include any Affiliate of Toronto Dominion (Texas) LLC through which it shall perform any of its obligations in such capacity under the Loan Documents.

 

“Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

 

“Administrative Questionnaire” means an Administrative Questionnaire in such form as may be supplied from time to time by the Administrative Agent.

 

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

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

 

“Agent-Related Persons” means the Agents, together with their respective Affiliates and the officers, directors, employees, partners, agents, advisors, attorneys-in-fact and other representatives of such Persons and Affiliates.

 

“Agents” means, collectively, the Administrative Agent, the Collateral Agent, Real Property Collateral Agent and the Supplemental Agents (if any).

 

“Aggregate Commitments” means the Commitments of all the Lenders.

 

“Agreement” has the meaning set forth in the introductory paragraph to this Agreement.

 

 

“All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, a Term SOFR or Base Rate floor, or otherwise, in each case, incurred or payable by the Loan Parties generally to all lenders of such Indebtedness; provided that OID and upfront fees shall be equated to an interest rate assuming a four (4)-year life to maturity (e.g., one hundred (100) basis points of OID equals twenty-five (25) basis points of interest margin for a four (4) year average life to maturity) or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness; provided, further, that “All-In Yield” shall not include amendment fees, consent fees, arrangement fees, structuring fees, commitment fees, underwriting fees, placement fees, advisory fees, success fees, ticking fees, undrawn commitment fees and similar fees (regardless of whether any of the foregoing fees are paid to, or shared with, in whole or in part any or all lenders), any fees not paid or payable in the primary syndication of such Indebtedness or other fees not paid or payable generally to all lenders ratably.

 

“Ancillary Documents” has the meaning set forth in Section 10.12.

 

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

 

“Applicable Cash Percentage” means, for any fiscal quarter: (a) 75.00% if the Consolidated First Lien Net Leverage Ratio for the Test Period ended on the last day of such fiscal quarter is greater than 5.00:1.00; (b) 50.00% if the Consolidated First Lien Net Leverage Ratio for the Test Period ended on the last day of such fiscal quarter is less than or equal to 5.00:1.00 but greater than 4.50:1.00; and (c) 0.00% if the Consolidated First Lien Net Leverage Ratio for the Test Period ended on the last day of such fiscal quarter is equal to or less than 4.50:1.00.

 

“Applicable Discount” has the meaning set forth in Section 2.04(a)(iv)(C)(2).

 

“Applicable Rate” means, with respect to the Initial Term Loans, for any day, with respect to any Term SOFR Loans or Base Rate Loans, a percentage per annum set forth in the pricing grid below based upon the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period:

 

Pricing Level	Consolidated First Lien Net Leverage Ratio	Term SOFR Loans	Base Rate Loans
I	> 4.00:1.00	4.50%	3.50%
II	< 4.00:1.00	4.25%	3.25%

 

provided, that for the period beginning on the Closing Date through the date the Compliance Certificate is required to be delivered for the fiscal quarter ending March 31, 2024, the Applicable Rate shall be the rate per annum for Pricing Level I. Any change in the Applicable Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio shall be effective on the date that the applicable Compliance Certificate is delivered and shall apply during the period commencing on the date of delivery of such Compliance Certificate and ending on the date immediately preceding the effective date of the next such change; provided, however,

 

 

(a)            that if at any time the Borrower fails to deliver a Compliance Certificate pursuant to Section 6.02(a), then the Applicable Rate shall be the rate per annum for Pricing Level I until such Compliance Certificate is delivered; and

 

(b)            in the event the financial statements or Compliance Certificate referred to in Section 6.02(a) are proven to have been incorrect and the Pricing Level would have been higher than the Pricing Level actually applied, then the Pricing Level for the relevant period shall be adjusted retroactively to reflect the level which would have applied for such period based on the corrected financial statements or Compliance Certificate, and any additional interest owing as a result of such readjustment shall be payable within one (1) Business Day after the Company receives notice that such additional interest is due.

 

“Appropriate Lender” means, at any time, with respect to Loans of any Class, the Lenders of such Class.

 

“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

 

“Asset Sale RP Amount” means an amount of Net Proceeds not to exceed $200,000,000 in the aggregate to the extent used within 365 days of the date of the applicable Disposition, by the Parent and/or its Restricted Subsidiaries to make payments on the Existing Preferred Units (which payments may include all preferred-related payments, including liquidation preference, stated value, redemption amounts, accretion amounts and distribution amounts (including any penalty or default amounts), but shall not include any payments on Class B Preferred Units and Class C Preferred Units that are not required in order to permit the redemption, repurchase or other acquisition or retirement of, or any other payments in respect of, in whole or in part, the Class D Preferred Units) so long as (A) no Default or Event of Default shall have occurred and then be continuing at the time of signing the definitive documentation relating to such Disposition, (B) at the time a Restricted Payment is made pursuant to Section 7.06(j), the Consolidated First Lien Net Leverage Ratio shall not exceed 4.50:1.00, determined on a Pro Forma Basis for such Disposition (including a pro forma application of the Net Proceeds therefrom), as if such Disposition and the use of proceeds therefrom had occurred at the beginning of the applicable Test Period and (C) the assets and/or businesses comprising such Disposition do not account for, or represent, more than 5.00% of LTM Consolidated EBITDA on an aggregate basis.

 

“Assignees” has the meaning set forth in Section 10.07(b)(i).

 

“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D.

 

“Assignment Taxes” has the meaning set forth in Section 3.01(b).

 

“Attorney” has the meaning set forth in Section 9.17.

 

 

“Attorney Costs” means all reasonable and documented out-of-pocket fees, expenses and disbursements of any law firm or other external legal counsel.

 

“Attributable Indebtedness” means, on any date of determination, in respect of any Financing Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

 

“Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor engaged by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.04(a)(iv); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.

 

“Audited Financial Statements” means the audited consolidated balance sheets and related statements of income and cash flow for the Parent and its consolidated Restricted Subsidiaries for the fiscal year ended as of March 31, 2023.

 

“Available Equity Amount” means, as of any time of determination, without duplication of any amounts added to the Cumulative Credit, an aggregate amount not greater than (a) 100.00% of the net cash proceeds and Cash Equivalent proceeds and the fair market value, as determined in good faith by the Borrower, of marketable securities or other property received by the Borrower since the Closing Date and on or before such date of determination from (i) the issuance or sale of its Qualified Equity Interests and/or (ii) contributions to its common equity with the net cash proceeds and Cash Equivalent proceeds from the issuance and sale by the Parent (or any direct or indirect parent of the Parent) of its Qualified Equity Interests or a contribution to its common equity (in each case of (i) and (ii), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries and other than the proceeds of any Designated Equity Contribution) less (b) the amount of Investments, Restricted Payments or prepayments, redemptions, purchases, defeasances, and other payments of Junior Financings made, or Indebtedness incurred, in reliance on the Available Equity Amount pursuant to Sections 7.02(t), 7.03(m)(i)(B), 7.06(d) or 7.10(a)(vii), respectively.

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.08(d).

 

 

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

 

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

 

“Banking Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and deposit accounts.

 

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

 

“Base Incremental Amount” has the meaning set forth in Section 2.13(d)(iii)(D).

 

“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Federal Funds Rate in effect on such day plus 0.50%, (b) the Prime Rate in effect for such day and (c) Term SOFR on such day (or if such day is not a Business Day, the immediately preceding Business Day) for deposits in Dollars for a one (1)-month Interest Period (taking into account any “floor” under the definition of “Term SOFR”) plus 1.00%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Base Rate shall be determined without regard to clause (a) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Further, with respect to each Borrowing, the Base Rate will be deemed to be the Floor if the Base Rate calculated pursuant to the foregoing provisions would otherwise be less than the Floor. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or Term SOFR, respectively.

 

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.

 

“Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

 

 

“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.08.

 

“Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

 

(a)            with respect to Term SOFR Loans, Daily Simple SOFR; or

 

(b)            the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated, syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment;

 

provided, that if the Benchmark Replacement would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then- current Benchmark with an unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable unadjusted Benchmark Replacement for Dollar-denominated, syndicated credit facilities.

 

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

 

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

 

(b)            in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date;

 

 

provided that the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

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

 

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

 

(b)            a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c)            a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative;

 

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

 

“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08.

 

 

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

 

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

 

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“Bona Fide Debt Fund” means any fund or investment vehicle that is primarily engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and other similar extensions of credit in the ordinary course.

 

“Borrower” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Borrower Materials” has the meaning set forth in Section 6.02(e).

 

“Borrower Offer of Specified Discount Prepayment” means the offer by any Company Party to make a voluntary prepayment of Term Loans at a Specified Discount to par pursuant to Section 2.04(a)(iv).

 

“Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by any Company Party of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to Section 2.04(a).

 

“Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by any Company Party of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.04(a)(iv).

 

“Borrowing” means a Term Borrowing of a particular Class.

 

“Borrowing Base” means the “borrowing base” under the ABL Facility as in effect from time to time (including, for the avoidance of doubt, any replacement thereof in the form of an asset based revolving credit facility); provided that a majority of the commitments thereunder shall be held by commercial banks and other financial institutions that are regulated by, or under the supervision of, the Office of the Comptroller of the Currency, and such term shall be defined in accordance with customary practices and standards for U.S. asset based revolving credit facilities.

 

“Burdensome Agreements” has the meaning assigned to such term in Section 7.08.

 

 

“Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions in New York, New York or another place of payment are authorized or required by law to remain closed.

 

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

 

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

 

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

 

“Canadian Multi-Employer Plan” means a “multi-employer plan” as defined in subsection 147.1(1) of the Income Tax Act (Canada) to which any Loan Party contributes, whether pursuant to a collective agreement, trust agreement, participation agreement, or otherwise, and which is not sponsored or administered by a Loan Party or any Subsidiary of a Loan Party.

 

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

 

“Canadian Pension Plan” means a pension plan that is covered by the applicable pension standards laws of any jurisdiction in Canada including the Employment Pension Plans Act (Alberta), the Pension Benefits Act (Ontario) and the Income Tax Act (Canada) and that is maintained or sponsored by a Loan Party for employees, but does not include a Canadian Multi-Employer Plan.

 

 

“Canadian Pledge and Security Agreement” means, individually and collectively, the Pledge and Security Agreement dated as of the date hereof (a copy of which is attached as Exhibit E-2 hereto) and the Deed of Hypothec dated on or about the date hereof, in each case, among the Canadian Loan Parties from time to time party thereto and the Collateral Agent for the ratable benefit of the Secured Parties.

 

“Capital Expenditures” means, for any period, the aggregate amount of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Financing Leases) by the Parent, the Borrower and the other Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on the consolidated statement of cash flow of the Parent, the Borrower and the other Restricted Subsidiaries.

 

“Capitalized Software Expenditures” means, for any period, the aggregate amount of all expenditures (whether paid in cash or accrued as liabilities) by the Parent, the Borrower and the other Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Parent and its Restricted Subsidiaries.

  

“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Parent, the Borrower or any Restricted Subsidiary:

 

(a)            Dollars, Euros or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;

 

(b)            securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of twenty-four (24) months or less from the date of acquisition;

 

(c)            certificates of deposit, time deposits and eurodollar time deposits with maturities of twenty-four (24) months or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one (1) year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $1,000,000,000 in the case of non-U.S. banks;

 

(d)            repurchase obligations for underlying securities of the types described in clauses (b), (e), (f), (g) and (h) entered into with any financial institution or recognized securities dealer meeting the qualifications applicable to banks specified in clause (c) above;

 

(e)            commercial paper and variable or fixed rate notes rated at least P-2 by Moody’s or at least A-2 by S&P or at least F2 by Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and in each case maturing within twenty-four (24) months after the date of creation thereof;

 

 

(f)            marketable short-term money market and similar funds having a rating of at least P-2 by Moody’s, A-2 from S&P or F2 by Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);

 

(g)            readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an investment grade rating from Moody’s, S&P or Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of twenty-four (24) months or less from the date of acquisition;

 

(h)            readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an investment grade rating from Moody’s, S&P or Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of twenty-four (24) months or less from the date of acquisition;

 

(i)            Investments with average maturities of twelve (12) months or less from the date of acquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P, Aaa3 (or the equivalent thereof) or better by Moody’s, or AAA (or the equivalent thereof) or better from Fitch (or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);

 

(j)            investments in “money market funds” within the meaning of Rule 2a7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments issued by a financial institution having total assets in excess of $5,000,000,000;

 

(k)            securities with maturities of twelve (12) months or less from the date of acquisition backed by standby letters of credit issued by any financial institution or recognized securities dealer meeting the qualifications specified in clause (l) below;

 

(l)            Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P, “A2” or higher from Moody’s, or “A” or higher from Fitch with maturities of twenty-four (24) months or less from the date of acquisition; and

 

(m)            investment funds investing at least 90.00% of their assets in securities of the types described in clauses (a) through (l) above.

 

In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States, Cash Equivalents shall also include (A) investments of the type and maturity described in clauses (a) through (h) and clauses (j), (k), (l) and (m) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (B) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing investments in clauses (a) through (m) above and in this paragraph.

 

 

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (a) above; provided that such amounts are converted into any currency listed in clause (a) as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.

 

For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes regardless of the treatment of such items under GAAP.

 

“Casualty Event” means any event that gives rise to the receipt by the Parent, the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

 

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

 

“Change of Control” means (a) any person or “group” (as those terms are used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), other than a Permitted Holder, becomes the beneficial owner, directly or indirectly, of 50% or more of the voting stock of NGL Energy Holdings LLC, (b) NGL Energy Holdings LLC shall fail to own and control beneficially and of record 100% of the general partner interests of the Parent, (c) the Parent shall fail to own and control beneficially and of record 100% of the Equity Interests of the Borrower or (d) a “change of control” (or similar event) shall occur under any Indebtedness for borrowed money with an aggregate outstanding principal amount in excess of $100,000,000 or any Permitted Refinancing thereof in respect of any of the foregoing with an aggregate outstanding principal amount in excess of $100,000,000.

 

Notwithstanding the foregoing, no Change of Control shall occur pursuant to the foregoing clause (a) if, in connection with any transaction that would otherwise constitute a Change of Control pursuant to the foregoing clause (a), (i) at least two of Moody’s, S&P and Fitch shall have provided a ratings reaffirmation of each of the then-prevailing public corporate family ratings for the Borrower and public ratings of the Facility after giving effect to the proposed transaction, in each case, with no negative outlook and (ii) the party (the “Acquirer”) that is acquiring the direct or indirect Equity Interests of NGL Energy Holdings LLC that would otherwise result in a Change of Control is an Acceptable Owner to the extent the Acquirer will, as a result of such transaction, become the owner or operator of the Borrower after such transaction.

 

“Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Initial Term Commitments, Incremental Commitments, Extended Term Loans of a given Extension Series, or Refinancing Term Commitments of a given Refinancing Series and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Initial Term Loans, Incremental Term Loans, Refinancing Term Loans of a given Refinancing Series or Extended Term Loans of a given Extension Series. Initial Term Commitments, Incremental Commitments and Refinancing Term Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class. There shall be no more than an aggregate of eight (8) Classes of term loan facilities under this Agreement.

 

 

“Class B Preferred Units” means the equity interests designated as “Class B Preferred Units” pursuant to the Parent LPA.

 

“Class C Preferred Units” means the equity interests designated as “Class C Preferred Units” pursuant to the Parent LPA.

 

“Class D Preferred Units” means the equity interests designated as “Class D Preferred Units” pursuant to the Parent LPA.

 

“Closing Date” means February 2, 2024, the first date on which all conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

 

“Closing Fee” means those fees required to be paid on the Closing Date pursuant to the Fee Letters.

 

“Code” means the U.S. Internal Revenue Code of 1986, and the United States Treasury Department Regulations promulgated thereunder (the “Treasury Regulations”) as amended from time to time.

 

“Collateral” means the “Collateral” referred to in the Collateral Documents and all of the other property and other assets of any Loan Party now existing or hereafter acquired, that is or becomes at any time, under the terms hereof or of any of the Collateral Documents, subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties; provided that, in no event shall “Collateral” include any Excluded Asset.

 

“Collateral Agent” means Toronto Dominion (Texas) LLC, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent appointed in accordance with Section 9.09. Unless the context requires otherwise, the term “Collateral Agent” shall include any Affiliate of Toronto Dominion (Texas) LLC through which it shall perform any of its obligations in such capacity under the Loan Documents.

 

“Collateral and Guarantee Requirement” means, at any time, the requirement that:

 

(a)            the Administrative Agent and the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01(a)(iii) or from time to time pursuant to Section 6.11, Section 6.13, Section 6.20 or the Collateral Documents, subject to the limitations and exceptions of this Agreement or in such Collateral Documents, duly executed by each Loan Party party thereto;

 

(b)            the Obligations shall have been guaranteed by the Parent and each Restricted Subsidiary of the Borrower (other than Excluded Subsidiaries) pursuant to the Guaranty; provided that, notwithstanding anything to the contrary contained herein, if (i) any Restricted Subsidiary of the Borrower that is not already a Subsidiary Guarantor Guarantees the obligations under the ABL Facility or the Secured Notes (or any Permitted Refinancing of any of the foregoing), then such Restricted Subsidiary shall be required to become a Guarantor and signatory to the Guaranty within twenty (20) Business Days of such date and for so long as it Guarantees such Indebtedness and (ii) any Domestic Subsidiary of the Borrower that is not already a Subsidiary Guarantor Guarantees any Indebtedness of the Borrower or any of its Restricted Subsidiaries in a principal amount in excess of $50,000,000, then such Domestic Subsidiary shall be required to become a Guarantor and signatory to the Guaranty within twenty (20) Business Days thereof and for so long as it Guarantees such Indebtedness;

 

 

(c)            the Obligations and the Guaranty shall have been secured pursuant to the Security Agreement and the Canadian Pledge and Security Agreement by a first-priority security interest, subject to the Pari Passu Intercreditor Agreement and Crossing Liens Intercreditor Agreement and non-consensual Liens permitted by Section 7.01, in (i) all Equity Interests of the Borrower and (ii) all Equity Interests of each Restricted Subsidiary that is not an Excluded Subsidiary (other than any Subsidiary that is an Excluded Subsidiary solely pursuant to clause (b) of the definition thereof) directly owned by any Loan Party, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction) (and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank);

 

(d)            all Pledged Debt owing to any Loan Party that is evidenced by a promissory note and other evidence of Indebtedness with a principal amount in excess of $10,000,000 shall have been delivered to the Collateral Agent pursuant to the Security Agreement and/or the Canadian Pledge and Security Agreement, as applicable, and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;

 

(e)            the Obligations and the Guaranty shall have been secured by a perfected security interest in, and Mortgages on, substantially all now owned or at any time hereafter acquired tangible and intangible assets of each Loan Party (including Equity Interests, intercompany debt, accounts, inventory, equipment, investment property, contract rights, intellectual property, other general intangibles, Material Real Property Assets and proceeds of the foregoing), in each case, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction);

 

(f)            subject to limitations and exceptions of this Agreement and the Collateral Documents, to the extent a security interest in and Mortgages on any Material Real Property Asset are required pursuant to clause (e) above or under Section 6.11, 6.13 or 6.20, as applicable, the Collateral Agent shall have received, in each case, in accordance with or under Section 6.11, 6.13 or 6.20, as applicable, the following documents and instruments:

 

(i)            with respect to (x) any fee owned Material Real Property Assets and (y) any part of the Grand Mesa Pipeline or the Delaware Pipeline that is a Material Real Property Asset of the type described in the preceding clauses (x) in each case, (1) owned by any Loan Party on the Closing Date, such Loan Party, as the case may be, with respect thereto shall, within 270 days of the date of the Closing Date or such later date as may be agreed to by the Collateral Agent (and in any event within 365 days of the Closing Date) or (2) acquired by any Loan Party after the Closing Date, such Loan Party, as the case may be, shall, within 120 days of the acquisition thereof or such later date as may be agreed to by the Collateral Agent (and in any event within 365 days of the acquisition thereof), deliver to the Real Property Collateral Agent for the ratable benefit of the Secured Parties the following:

 

 

(A)            a fully executed counterpart of a Mortgage or Leasehold Mortgage in favor of the Real Property Collateral Agent covering such Material Real Property Asset, duly executed by such Loan Party, together with satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage or Leasehold Mortgage (and payment of any taxes or fees in connection therewith), together with any necessary fixture filings, as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties purported to be covered thereby;

 

(B)            if such Material Real Property Asset has a Designated Value of $20,000,000 or more, a policy or policies or marked-up unconditional binder of title insurance (or binding commitments thereof), as applicable, in favor of the Real Property Collateral Agent and its successors and/or assigns, in an amount not less than the Designated Value of such Material Real Property Asset and in the form necessary, paid for by the such Loan Party, issued by a nationally recognized title insurance company insuring fee simple title to each such Material Real Property Asset and insuring the Lien of such Mortgage or Leasehold Mortgage as a valid Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, title policy modifications, coinsurance and reinsurance as shall be reasonably required (such policies, the “Mortgage Policies”);

 

(C)            if such Material Real Property Asset has a Designated Value of $20,000,000 or more, such surveys (or any updates, affidavits or such other information or documents that the title insurance company may reasonably require in connection with the issuance of the title insurance policies), which are sufficient for the title insurance company to remove the standard survey exception and issue customary survey-related endorsements or title policy modifications;

 

(D)            if such Material Real Property Asset has a Designated Value of $20,000,000 or more, local counsel opinions (1) as to the due authorization, execution and delivery by such Loan Party of such Mortgage or Leasehold Mortgage and such other customary matters that are incidental thereto and (2) in jurisdictions where such Material Real Property Asset is located covering the enforceability of such Mortgage or Leasehold Mortgage and such other customary matters as are incidental thereto;

 

 

(E)            if such Material Real Property Asset has a Designated Value of $20,000,000 or more, with respect to such Material Real Property Asset, evidence from within the past five (5) years that such Material Real Property Asset, and the uses of such Material Real Property Asset, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such Material Real Property Asset, the permitted uses of each such Material Real Property Asset under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

(F)            such affidavits, certificates, instruments of indemnification and other items as shall be reasonably required to comply with the required deliverables set forth in paragraphs (B) through (E) above, and evidence of payment by any Loan Party, as applicable, of all search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and Leasehold Mortgages and the issuance of the title insurance policies, in each case to the extent required pursuant to the foregoing;

 

provided that, notwithstanding the foregoing, the requirements of paragraphs (B), (C), (E) and (F) of this paragraph will not be required with respect to any such Material Real Property Asset, to the extent the cost of providing such items would exceed 1.00% of the then Designated Value of such Material Real Property Asset;

 

(ii)            with respect to any Material Real Property Asset consisting of Leaseholds, easements or rights of-way, including Material Real Property Assets that are Leaseholds, easements or rights-of-way constituting part of the Grand Mesa Pipeline or the Delaware Pipeline (in each case other than any fee owned Material Real Property Asset) (such Material Real Property Assets, “Other Specified Property”), (a) held by any Loan Party on the Closing Date or (b) acquired by any Loan Party after the Closing Date, such Loan Party, as the case may be, shall use commercially reasonable efforts (which, for the avoidance of doubt shall not require cash payments or other consideration aside from the payment or reimbursement of reasonable fees and expenses in connection with the preparation and recording of the documentation related to such Other Specified Collateral Deliverables) to deliver, within 270 days of the Loan Date or 120 days after the date of acquisition thereof or such later date as may be agreed to by the Collateral Agent (provided that such deadline may not be extended to a date later than 365 days after the Closing Date or acquisition date, as applicable), to the Real Property Collateral Agent for the ratable benefit of the Secured Parties, the following:

 

(A)            a fully executed counterpart of a Leasehold Mortgage, duly executed by a Loan Party that is the lessee, owner or holder of such Other Specified Property, satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and necessary filings of such Leasehold Mortgage (and payment of any taxes or fees in connection therewith), together with any necessary consents, memoranda of lease and fixture filings, as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties purported to be covered thereby;

 

 

(B)            if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way policy or policies or marked-up unconditional binder of title insurance (or binding commitments thereof), as applicable, in favor of the Real Property Collateral Agent and its successors and/or assigns, in an amount not less than the Designated Value of such Other Specified Property and in the form necessary, paid for by the such Loan Party, issued by a nationally recognized title insurance company insuring leasehold title to such Material Real Property Asset and insuring the Lien of such Leasehold Mortgage as a valid first priority Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, title policy modification, coinsurance and reinsurance as shall be reasonably required;

 

(C)            if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way, such surveys (or any updates, affidavits or such other information or documents that the title insurance company may reasonably require in connection with the issuance of the title insurance policies), which are sufficient for the title insurance company to remove or modify the standard survey exception and issue customary survey-related endorsements or title policy modifications;

 

(D)            if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way, local counsel opinions (1) as to the due authorization, execution and delivery by such Loan Party of such Leasehold Mortgage and such other customary matters that are incidental thereto and (2) in jurisdictions where such Other Specified Property is located covering the enforceability of such Leasehold Mortgage and such other customary matters as are incidental thereto;

 

(E)            if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way, with respect to such Other Specified Property, evidence from within the past five (5) years that such Other Specified Property, and the uses of such Other Specified Property, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such Other Specified Property, the permitted uses of each such Other Specified Property under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

 

(F)            such affidavits, certificates, instruments of indemnification and other items as shall be reasonably required to comply with the required deliverables set forth in paragraphs (B) through (E) above and evidence of payment by any Loan Party, as applicable, of all search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Leasehold Mortgage and the issuance of the title insurance policies, in each case to the extent required pursuant to the foregoing;

 

provided that, notwithstanding the foregoing, the requirements of paragraphs (B), (C), (E) and (F) of this clause (f)(ii) will not be required with respect to (i) any such Other Specified Property to the extent the cost of providing such items would exceed 1% of the Designated Value of such Other Specified Property or (ii) any such Other Specified Property that is comprised solely of easements or rights-of-way. Notwithstanding anything herein to the contrary, for purposes of the determination of Designated Value pursuant to the preceding proviso, the final paragraph of this clause (f)(ii) shall not apply.

 

The requirements of this clause (f)(ii) with respect to the Other Specified Property shall be referred to as the “Other Specified Collateral Requirements”, and the items described in items (A) through (F) of the foregoing clause (f)(ii) shall be referred to as the “Other Specified Collateral Deliverables”.

 

Solely for purposes of determining the Designated Value of any Real Property Assets with respect to which a Loan Party must use commercially reasonable efforts to provide the Other Specified Collateral Requirements, if any Real Property Asset constitutes, with one or more Real Property Assets, any pipeline, facility, terminal, injection well or disposal well of the Parent and its Restricted Subsidiaries, the Designated Value of such Real Property Asset shall be deemed to be the sum of the Designated Values of all such Real Property Assets forming such pipeline, facility, terminal, injection well or disposal well;

 

(iii)            Notwithstanding the other provisions of this clause (f), the Collateral Agent may, in its sole discretion, determine that the burdens, costs or consequences of obtaining a Mortgage or Leasehold Mortgage on any Material Real Property Asset, all or any part of which contains a Building (as defined in the applicable Flood Insurance Laws) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Law), are excessive in view of the benefits to be obtained by the Secured Parties. In the event that the Collateral Agent makes such a determination, the Mortgage or Leasehold Mortgage relating to such Material Real Property Asset may contain customary exclusionary provisions with respect to such Building or Manufactured (Mobile) Home satisfactory to the Collateral Agent in its sole discretion;

 

(g)            the Collateral Agent shall have received, in connection with any deposit account, securities account or commodity account of a Loan Party (other than any Excluded Account for so long as such account is an Excluded Account), a Control Agreement in form and substance acceptable to the Collateral Agent: (i) with respect to deposit accounts, securities accounts and commodities accounts in existence on the Closing Date, within ninety (90) days of the Closing Date, and (ii) with respect to all other deposit accounts, securities accounts and commodities accounts established after the Closing Date, promptly but in any event within thirty (30) days of the date such account is established (or, in each case of clauses (i) and (ii), such later date as the Collateral Agent may agree in its sole discretion); and

 

(h)            except as otherwise contemplated by this Agreement or any Collateral Document, all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, PPSA financing statements and filings with the United States Patent and Trademark Office, United States Copyright Office, the Canadian Intellectual Property Office or the equivalent, required by the Collateral Documents, applicable Law or reasonably requested by the Administrative Agent or the Collateral Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents, any applicable Intercreditor Agreement or the other provisions of the term “Collateral and Guarantee Requirement”, shall have been filed, registered or recorded or delivered to the Administrative Agent or the Collateral Agent for filing, registration or recording.

 

 

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:

 

(a)            the foregoing definition shall not require, unless otherwise stated in this clause (a), the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of Mortgage Policies or other title insurance or taking other actions with respect to the following (collectively, the “Excluded Assets”):

 

(i)            any Equity Interest of any Subsidiary that is a CFC or FSHCO representing more than 65% of the total outstanding voting capital stock or other Equity Interest of such CFC or FSHCO to the extent a pledge of a greater percentage could reasonably be expected to result in material adverse tax consequences,

 

(ii)            any asset if, to the extent and for so long as the grant of a security interest in such asset is prohibited by any applicable Law (other than to the extent that any such prohibition would be rendered ineffective pursuant to the Uniform Commercial Code, the PPSA or any other applicable Law),

 

(iii)            any lease, license, contract or agreement covering a Loan Party’s asset or property and to which such Loan party is a party if, to the extent and for so long as the grant of a security interest shall constitute or result in a breach of or a default under, or result in an enforceable right of termination in favor of any party (other than the Parent or any of its Restricted Subsidiaries) under, or be otherwise prohibited by (to the extent so prohibited, including by any requirement to obtain the consent of any Governmental Authority or other third party (other than the Parent or any of its Restricted Subsidiaries) with jurisdiction over such asset or property), such lease, license, contract or agreement (other than to the extent (A) that any such term would be rendered ineffective, or is otherwise unenforceable, pursuant to Sections 9-406, 9 407, 9-408 or 9-409 of the Uniform Commercial Code or (B) the consent of such Governmental Authority or other party has been obtained, as the case may be),

 

(iv)            any asset owned by a Loan Party that is subject to a Lien of the type permitted by Section 7.01(w), if, to the extent and for so long as the grant of a Lien thereon to secure the Obligations constitutes a breach of or a default under, or to the extent otherwise prohibited or restricted thereby (including any requirement to obtain the consent of any Governmental Authority or third party (other than the Parent or any of its Restricted Subsidiaries)), or creates an enforceable right of termination in favor of any party (other than the Parent or any of its Restricted Subsidiaries) to, any agreement pursuant to which such Lien has been created (other than to the extent (A) that any such agreement would be rendered ineffective, or is otherwise unenforceable, pursuant to Sections 9-406, 9 407, 9-408 or 9-409 of the Uniform Commercial Code or (B) the consent of such Governmental Authority or other party has been obtained, as the case may be),

 

 

(v)            any intent-to-use trademark applications prior to the filing of a “statement of use” or “amendment to allege use” filed in the United States Patent and Trademark Office to the extent that, and solely during the period in which the grant of a security interest therein would impair the validity or enforceability of, or void, such intent-to-use trademark applications, or any registration that may issue therefrom, under applicable Law,

 

(vi)            the Excluded Accounts,

 

(vii)            all Real Property other than the Material Real Property Assets, and

 

(viii)            any assets as to which the Collateral Agent determines in its sole discretion that the costs of obtaining security interests in such assets or the perfection thereof are excessive in relation to the benefit to the Lenders of the security to be afforded thereby;

 

provided that (1) Excluded Assets shall not include and the Liens granted by the Loan Parties in favor of the Collateral Agent, or in the case of Mortgaged Property, the Real Property Collateral Agent, to secure the Obligations (the “Security Interest”) shall attach at all times to all proceeds of any such assets or property described in clauses (iii) and (iv) above, (2) the Security Interest shall attach to such assets or property immediately and automatically (without need for any further grant or act) at such time as none of the conditions described in clauses (iii) and (iv) above shall exist and (3) to the extent severable, the Security Interest shall in any event attach to all rights in respect of such assets and property that are not subject to any of the conditions described in clauses (iii) and (iv) above. It is understood and agreed that RINs do not constitute Excluded Assets.

 

(b)            notwithstanding the foregoing, or anything to the contrary in the Loan Documents, and for the avoidance of doubt, actions required to perfect the Security Interest in Collateral shall be limited to, subject to the Intercreditor Agreements, (i) filing in the appropriate filing offices of Uniform Commercial Code financing statements, PPSA financing statements or other appropriate filings, recordings or registrations containing a description of the Collateral, (ii) filings in the applicable real estate records with respect to any Material Real Property Assets and fixtures, (iii) delivery of Collateral consisting of certificated securities and any other possessory collateral (including, but not limited to, promissory notes or any other instruments), (iv) providing “control” (or, in the case of deposit accounts domiciled in Canada, establishing administrative control) over any Collateral consisting of uncertificated securities or deposit accounts, securities accounts, futures accounts and commodities accounts (and such “control” and any requirement for the execution and delivery of a Control Agreement hereunder or in any other Loan Document (including, without limitation, in clause (g) above) may be satisfied by providing “control” to a representative for other permitted Indebtedness on behalf of the Collateral Agent under any “gratuitous bailee” provisions contained in the Intercreditor Agreements), (v) the filing of agreements or documents to be filed in the United States Patent and Trademark Office, United States Copyright Office, the Canadian Intellectual Property Office or other applicable filing office with respect to any intellectual property, (vi) [reserved] and (vii) pursuant to the Intercreditor Agreements, in each case to the extent expressly required by the Collateral Documents;

 

 

(c)            Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents; and

 

(d)            the Collateral Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or obtaining of Mortgage Policies or other title insurance or taking other actions with respect to, particular assets or any other compliance with the requirements of this definition where it reasonably determines, in consultation with the Borrower, that the creation or perfection of security interests and Mortgages on, or obtaining of Mortgage Policies or other title insurance or taking other actions, or any other compliance with the requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents; provided that the Collateral Agent shall have received on or prior to the Closing Date (i) Uniform Commercial Code financing statements in appropriate form for filing under the Uniform Commercial Code in the jurisdiction of incorporation or organization of each Loan Party as of the Closing Date, (ii) PPSA financing statements filed in the jurisdiction of incorporation or organization of each Canadian Loan Party, the jurisdiction of the chief executive office of each Canadian Loan Party (to the extent relevant under the applicable PPSA) and each jurisdiction where a Canadian Loan Party maintains tangible Collateral (to the extent relevant under the applicable PPSA) and (iii) subject to the Pari Passu Intercreditor Agreement, any certificates or instruments representing or evidencing Equity Interests of the Borrower and its Restricted Subsidiaries (other than Equity Interests constituting Excluded Assets) accompanied by instruments of transfer and stock powers undated and endorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel).

 

“Collateral Documents” means, collectively, the Security Agreement, the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement, any Junior Lien Intercreditor Agreement, the Canadian Pledge and Security Agreement, each Control Agreement, any Intellectual Property Security Agreement (if in effect), each of the Mortgages, each of the Leasehold Mortgages, collateral assignments, security agreements, pledge agreements, any other intellectual property security agreements or other similar agreements delivered to the Administrative Agent or the Collateral Agent pursuant to Section 4.01, Section 6.11, Section 6.13, Section 6.20, or the Collateral Documents and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

 

“Commitment” means, with respect to each Lender, such Lender’s Initial Term Commitment, Incremental Commitment or Refinancing Term Commitment of a given Refinancing Series, as the context may require.

 

 

“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Term SOFR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“Commodity Hedge Agreement” means any agreement (including each confirmation entered into pursuant to any master agreement) providing for any swap, cap, collar, put, call, floor, future, option, spot, forward, power purchase and sale agreement (including option and heat rate options), tolling agreement, fuel purchase and sale agreement, emissions credit purchase or sale agreement, power transmission agreement, fuel transportation agreement, fuel storage agreement, capacity purchase agreement, fuel supply agreement, energy management agreement, reliability must run agreement, netting agreement or similar agreement entered into in respect of any commodity, whether physical or financial, and any agreement (including any guarantee, credit sleeve or similar arrangement) providing for credit support for the foregoing.

 

“Company Parties” means the collective reference to the Parent, the Borrower and the other Restricted Subsidiaries, and “Company Party” means any one of them.

 

“Compensation Period” has the meaning set forth in Section 2.11(c)(ii).

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit C-1.

 

“Conforming Changes” means, with respect the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate” (if applicable), the definition of “Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.05 and other technical, administrative or operational matters) that the Administrative Agent decides, with the consent of the Borrower, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent, with the consent of the Borrower, decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

 

“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus:

 

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

 

(A)            Consolidated Interest Expense;

 

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

 

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

 

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

 

(E)            any net loss realized by the Loan Parties in connection with an asset sale (together with any related provision for taxes);

 

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

 

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

 

 

(H)            the amount of pro forma “run rate” cost savings, operating expense reductions and synergies related to mergers and other business combinations, acquisitions, investments, dispositions, divestitures, restructurings, operating improvements, cost savings initiatives and other similar initiatives (including the modification and renegotiation of contracts and other arrangements) and other “specified transactions” (in each case, other than any transaction that is the basis of a Material Business Expansion Project Adjustment) that are reasonably identifiable and factually supportable and projected by the Borrower in good faith to result from actions that have been taken, are committed to be taken or with respect to which substantial steps have been taken (including prior to the Closing Date) or are expected to be taken (in the good faith determination of the Borrower), within eighteen (18) months after such transaction, initiative or event is consummated, net of the amount of actual benefits realized during such period from such actions, in each case, calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period for which Consolidated EBITDA is being determined and as if such cost savings, operating expense reductions and synergies were realized on the first day of the applicable period for the entirety of such period; provided that no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (i) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period; provided further that, for any Test Period the aggregate amount of (x) cost savings, operating expense reductions and synergies added back pursuant to this clause (i) and (y) together with Material Business Expansion Project Adjustments during such Test Period, shall not exceed twenty-five percent (25%) of the total Consolidated EBITDA of the Parent and its Subsidiaries for such Test Period (without giving effect to any such addbacks, adjustments or actual increases in such Consolidated EBITDA arising from such Material Business Expansion Projects or cost savings for such pro forma period); minus

 

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

 

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

 

Consolidated EBITDA for any Test Period, shall be calculated on a pro-forma basis after giving effect to, without duplication, any Material Business Expansion Project or Permitted Acquisition with respect to which any Loan Party provided more than $50,000,000 of consideration, as the case may be, and as if, such Material Business Expansion Project or Permitted Acquisition occurred or was completed on the first day of the Test Period; provided that with regard to each Material Business Expansion Project or Permitted Acquisition such pro forma adjustment (x) shall be based upon forecasted income that is derived from Material Contracts, less appropriate direct and indirect costs to realize such income and (y) when aggregated with (A) all pro-forma adjustments attributable to Material Business Expansion Projects and Permitted Acquisitions, as the case may be, and (B) cost savings, operating expense reductions and synergies added back pursuant to clause (viii) above, shall not exceed 25.00% of the Consolidated EBITDA for any Test Period (without giving effect to any such addbacks, adjustments or actual increases in such Consolidated EBITDA arising from such Material Business Expansion Projects or cost savings for such pro forma period); provided further that any such pro-forma adjustment shall be specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent and shall be reasonably identifiable and factually supportable and projected by the Borrower in good faith and approved by the Administrative Agent in its reasonable discretion (any such adjustments pursuant to this section, the “Material Business Expansion Project Adjustments”).

 

 

“Consolidated First Lien Net Debt” means Consolidated Total Net Debt of the Parent and its Restricted Subsidiaries, in each case, solely to the extent secured, in whole or in part, by first priority Liens on the Collateral on a pari passu basis with the Liens securing the Initial Facility.

 

“Consolidated First Lien Net Leverage Ratio” means the ratio of (a) Consolidated First Lien Net Debt as of the last day of the most recently ended Test Period to (b) Consolidated EBITDA for such Test Period. Solely for purposes of determining the Consolidated First Lien Net Leverage Ratio in connection with any calculation of the Applicable Cash Percentage, the Consolidated First Lien Net Leverage Ratio shall give Pro Forma Effect to (i) any voluntary prepayments or repurchases of Indebtedness made after the end of the applicable Test Period and prior to the applicable ECF Date, notwithstanding the fact that such voluntary prepayments or repurchases occurred after the applicable Test Period and (ii) any Investment or Restricted Payment made with expenditures deducted pursuant to the proviso in clause (b) of the definition of “Excess Cash Flow,” notwithstanding the fact that such expenditures occurred after the applicable Test Period.

 

“Consolidated Interest Expense” means, for any period, the sum, without duplication, of (1) consolidated interest expense of the Parent and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of OID resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Swap Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Financing Lease Obligations, and (e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Swap Obligations with respect to Indebtedness, and excluding (r) costs associated with obtaining Swap Obligations, (s) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, (t) penalties and interest relating to taxes, (u) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (v) amortization or expensing of deferred financing fees, amendment and consent fees, agency fees, debt issuance costs, commissions, fees and expenses and discounted liabilities, (w) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Closing Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment premium, cost or penalty, including any make whole or breakage cost, (y) any interest expense attributable to a parent entity resulting from push down accounting and (z) any lease, rental or other expense in connection with a Non-Financing Lease Obligation); plus (2) consolidated capitalized interest of the Parent and its Restricted Subsidiaries for such period, whether paid or accrued; less (3) interest income of the Parent and its Restricted Subsidiaries for such period.

 

 

For purposes of this definition, interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Parent to be the rate of interest implicit in such Financing Lease Obligation in accordance with GAAP.

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

“Consolidated Secured Net Debt” means Consolidated Total Net Debt of the Parent and its Restricted Subsidiaries, in each case, solely to the extent secured, in whole or in part, by Liens on the assets of the Borrower and its Restricted Subsidiaries.

 

“Consolidated Secured Net Leverage Ratio” means the ratio of (a) Consolidated Secured Net Debt as of the last day of the most recently ended Test Period to (b) Consolidated EBITDA for such Test Period.

 

“Consolidated Total Net Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Parent and its Restricted Subsidiaries outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition), consisting of Indebtedness for borrowed money, Attributable Indebtedness or purchase money debt, debt obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments minus the aggregate amount of cash and Cash Equivalents (other than Restricted Cash) on the balance sheet of the Parent and its Restricted Subsidiaries as of such date; provided that Consolidated Total Net Debt shall not include Indebtedness (i) in respect of letters of credit, except to the extent of unreimbursed amounts thereunder (provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Net Debt until three (3) Business Days after such amount is drawn), (ii) for the avoidance of doubt, Non-Financing Lease Obligations and (iii) of Unrestricted Subsidiaries; it being understood that unused commitments and obligations under Swap Contracts and agreements relating to Banking Services do not constitute Consolidated Total Net Debt.

 

“Consolidated Total Net Leverage Ratio” means the ratio of (a) Consolidated Total Net Debt as of the last day of the most recently ended Test Period to (b) Consolidated EBITDA for such Test Period.

 

“Consolidated Working Capital” means, with respect to the Parent and its Restricted Subsidiaries on a consolidated basis, on any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the effects of purchase accounting.

 

 

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

 

“Control” has the meaning set forth in the definition of “Affiliate”.

 

“Control Agreement” means, subject to the Crossing Liens Intercreditor Agreement, one or more control agreements entered into by the applicable Loan Party, the Collateral Agent and the applicable securities intermediary, commodity intermediary, futures intermediary or the applicable depositary bank (as applicable), which (a) provides that such securities intermediary, commodity intermediary, futures intermediary or depositary bank (as applicable) shall comply with any entitlement order, directions or other instruction originated by the Collateral Agent after the receipt of the notice from the Collateral Agent of its exercise of “control” thereunder and (b) is otherwise sufficient to establish the Collateral Agent’s control per Section 9-104 or 9-106 (as applicable) of the UCC or the Securities Transfer Act (Alberta), as applicable.

 

“Converted Restricted Subsidiary” means any Unrestricted Subsidiary that is converted into a Restricted Subsidiary.

 

“Converted Unrestricted Subsidiary” means any Restricted Subsidiary that is converted into an Unrestricted Subsidiary.

 

“Credit Agreement Refinancing Indebtedness” means (a) Permitted First Priority Refinancing Debt, (b) Permitted Second Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, existing Term Loans, or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness has a maturity no earlier, and, in the case of Refinancing Term Loans, a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus unused commitments in respect of the Refinanced Debt, accrued interest, fees, premiums (including tender premiums, if any) and penalties thereon, underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant extension, renewal, replacement, repurchase, retirement or refinancing, (iii) the other terms and conditions of such Indebtedness shall either, at the option of the Borrower (I) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower) or (II) if not consistent with the terms of the Refinanced Debt being refinanced or replaced, not materially more restrictive (taken as a whole) to the Borrower and its Restricted Subsidiaries (as determined by the Borrower) than those applicable to the Refinanced Debt being refinanced or replaced (except for (x) pricing, premiums, fees, rate floors and prepayment and redemption terms and (y) covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness (it being understood that to the extent any financial maintenance covenant or other provision is added for the benefit of such Credit Agreement Refinancing Indebtedness in the form of Refinancing Term Loans or refinancing notes or other debt securities (whether issued in a public offering, Rule 144A, private placement or otherwise)), no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant or other provision is also added for the benefit of each Facility remaining outstanding after the incurrence or issuance of such Credit Agreement Refinancing Indebtedness, and (iv) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, and all commitments thereunder terminated, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.

 

 

“Crossing Liens Intercreditor Agreement” means the ABL/Fixed Debt Intercreditor Agreement, substantially in the form of Exhibit H-1 hereto, dated as of the Closing Date, among the Loan Parties from time to time party thereto, the Collateral Agent, as term loan representative, U.S. Bank Trust Company, National Association, as notes representative, JPMorgan Chase Bank, N.A., as ABL representative, and any Other Debt Representative party thereto from time to time.

 

“Cumulative Credit” means, at any date of determination, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:

 

(a)            the Cumulative Retained Excess Cash Flow Amount at such time; plus

 

(b)            the greater of (i) $270,000,000 and 40% of LTM Consolidated EBITDA; plus

 

(c)            the cumulative amount of cash and Cash Equivalent proceeds and/or the fair market value of assets received (i) from the sale or transfer of Equity Interests (other than any Disqualified Equity Interests and other than any Designated Equity Contribution or Available Equity Amount) of the Parent, the Borrower or any direct or indirect parent of the Parent after the Closing Date and on or prior to such time (including upon exercise of warrants or options) which proceeds or assets have been contributed as common equity to the capital of the Borrower, or (ii) from the common Equity Interests of the Borrower (or the Parent or any direct or indirect parent of the Parent) (other than Disqualified Equity Interests of the Borrower and other than any Designated Equity Contribution or Available Equity Amount) issued upon conversion of Indebtedness (other than Indebtedness that is contractually subordinated to the Obligations) of the Parent, the Borrower or any Restricted Subsidiary of the Borrower owed to a Person other than a Loan Party or a Restricted Subsidiary of a Loan Party, in each case, Not Otherwise Applied other than use in the Cumulative Credit; plus

 

(d)            100% of the aggregate amount of contributions to the common capital (other than from a Restricted Subsidiary and other than any Designated Equity Contribution or Available Equity Amount) or net proceeds of the issuance of Qualified Equity Interests of the Borrower (or any direct or indirect parent of the Borrower) received after the Closing Date to the extent Not Otherwise Applied other than use in the Cumulative Credit; plus

 

(e)            100% of the aggregate amount received by Parent, the Borrower or any Restricted Subsidiary from:

 

 

(A)            the sale or transfer (other than to the Parent, the Borrower or any Restricted Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, joint venture or any minority investments, or

 

(B)            any dividend or other distribution by an Unrestricted Subsidiary or received in respect of any minority investment (except to the extent increasing Consolidated Net Income), or

 

(C)            any interest, returns of principal payments and similar payments by an Unrestricted Subsidiary or joint venture or received in respect of any minority investments (except to the extent increasing Consolidated Net Income); plus

 

(f)            in the event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, the fair market value (as determined by the Borrower in good faith) of the Investments of the Parent, the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) so long as such Investments were originally made pursuant to Section 7.02(n)(y); plus

 

(g)            to the extent not already included in Consolidated Net Income, an amount equal to any returns in cash and Cash Equivalents and/or fair market value of assets (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Parent, the Borrower or any Restricted Subsidiary in respect of any Investments made pursuant to Section 7.02(n)(y); plus

 

(h)            100% of the aggregate amount of any Declined Proceeds; minus

 

(i)            any amount of the Cumulative Credit used to make Investments pursuant to Section 7.02(n)(y) after the Closing Date and prior to such time; minus

 

(j)            any amount of the Cumulative Credit used to pay dividends or make distributions pursuant to Section 7.06(h)(y) after the Closing Date and prior to such time; minus

 

(k)            any amount of the Cumulative Credit used to make payments or distributions in respect of Junior Financings pursuant to Section 7.10(a)(iv)(y) after the Closing Date and prior to such time.

 

“Cumulative Credit Conditions” means, at the time of making any Investment pursuant to Sections 7.02(n)(y) or any Restricted Payment pursuant to Sections 7.06(h)(y) or any prepayment, redemption, purchase, defeasance or other payment of, or with respect to, Junior Financing pursuant to Sections 7.10(a)(iv)(y), as applicable, that (a) no Event of Default shall have occurred and be continuing and (b) except with respect to usage of any portion of the Cumulative Credit set forth in clause (d) of the definition thereof, the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis, shall be no greater than 4.75:1.00.

 

“Cumulative Retained Excess Cash Flow Amount” means, at any date, the cumulative portion (since the Closing Date), not less than zero for any quarter, of Excess Cash Flow not required to be applied to prepay the Loans pursuant to Section 2.04(b)(i); provided that, for the avoidance of doubt Cumulative Retained Excess Cash Flow Amount (a) shall include, for the period beginning on the Closing Date and ending on March 31, 2024 (such period, the “Stub Period”), an amount equal to the Excess Cash Flow during the Stub Period and (b) shall not include any portion of the Asset Sale RP Amount or the Specified Asset Sale RP Amount.

 

 

“Cure Expiration Date” has the meaning set forth in Section 8.05(a).

 

“Current Assets” means, with respect to the Parent, the Borrower and the other Restricted Subsidiaries on a consolidated basis on any date of determination, all assets (other than cash and Cash Equivalents) of the Parent, the Borrower and the other Restricted Subsidiaries that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Parent and its Restricted Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits (but excluding assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments).

 

“Current Liabilities” means, with respect to the Parent, the Borrower and the other Restricted Subsidiaries on a consolidated basis on any date of determination, all liabilities of the Parent, the Borrower and the other Restricted Subsidiaries that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Parent and its Restricted Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is past due and unpaid), (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves and (e) accruals related to structured bonus payments.

 

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

 

“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day “i”) that is five U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website plus (b) the Floor. If by 5:00 pm (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any day “i”, the SOFR in respect of such day “i” has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then the SOFR for such day “i” will be the SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.

 

 

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

 

“Debt Service” means, for any period, the sum of all (a) scheduled cash interest and scheduled principal payable during such period in respect of the loans pursuant to this Agreement, the ABL Facility, the Secured Notes, Credit Agreement Refinancing Indebtedness, Other Applicable Indebtedness, Indebtedness pursuant to Section 7.03(a), Junior Financing and Permitted Ratio Debt and scheduled principal amortization payments (if any) in respect of the Secured Notes, Credit Agreement Refinancing Indebtedness, Other Applicable Indebtedness, Indebtedness pursuant to Section 7.03(a), Junior Financing and Permitted Ratio Debt, in each case, for the most recently ended Test Period, less any net payments received by the Parent, the Borrower or any other Restricted Subsidiary during such period pursuant to Interest Rate Hedge Agreements entered into in connection with the foregoing and (b) any net payments paid by the Parent, the Borrower or any other Restricted Subsidiary during such period pursuant to Interest Rate Hedge Agreements entered into in connection with the foregoing. For the avoidance of doubt, Debt Service shall not include mandatory prepayments (other than such provisions structured as scheduled principal amortization payment provisions) pursuant to the Loan Documents or the definitive documents relating to any of the ABL Facility, the Secured Notes, Credit Agreement Refinancing Indebtedness, Other Applicable Indebtedness, Indebtedness pursuant to Section 7.03(a), Junior Financing or Permitted Ratio Debt, as applicable; provided, that for the first three (3) full fiscal quarters ending after the Closing Date, Debt Service shall mean: (i) for the fiscal quarter ending June 30, 2024, Debt Service for such Test Period multiplied by four (4); (ii) for the fiscal quarter ending September 30, 2024, Debt Service for such Test Period multiplied by two (2); and (iii) for the fiscal quarter ending December 31, 2024, Debt Service for such Test Period multiplied by four-thirds (4/3).

 

“Debt Service Coverage Ratio” means, for any Test Period, the ratio of (a) Consolidated EBITDA minus Maintenance Capital Expenditures (excluding, for the avoidance of doubt, any extraordinary or non-recurring environmental Capital Expenditures) for such Test Period to (b) Debt Service for such Test Period.

 

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

 

“Declined Proceeds” has the meaning set forth in Section 2.04(b)(ix).

 

 

“Default” means any event or condition specified in Section 8.01 that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Term Loans that are Base Rate Loans plus (c) 2.00% per annum; provided that with respect to the overdue principal or interest in respect of a Term SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan, plus 2.00% per annum, in each case to the fullest extent permitted by applicable Laws.

 

“Defaulting Lender” means any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default.”

 

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

 

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

 

“Designated Contribution Period” has the meaning set forth in Section 8.05(a).

 

“Designated Equity Contribution” has the meaning set forth in Section 8.05(a).

 

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

 

“Discount Prepayment Accepting Lender” has the meaning set forth in Section 2.04(a)(iv)(B)(2).

 

“Discount Range” has the meaning set forth in Section 2.04(a)(iv)(C)(1).

 

“Discount Range Prepayment Amount” has the meaning set forth in Section 2.04(a)(iv)(C)(1) .

 

“Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.04(a)(iv)(C) substantially in the form of Exhibit J-4.

 

“Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit J-5, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.

 

“Discount Range Prepayment Response Date” has the meaning set forth in Section 2.04(a)(iv)(C)(1).

 

 

“Discount Range Proration” has the meaning set forth in Section 2.04(a)(iv)(C)(3).

 

“Discounted Prepayment Determination Date” has the meaning set forth in Section 2.04(a)(iv)(D)(3).

 

“Discounted Prepayment Effective Date” means in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.04(a)(iv)(B)(3), Section 2.04(a)(iv)(C)(3) or Section 2.04(a)(iv)(D)(3), respectively, unless a shorter period is agreed to between the Borrower and the Auction Agent.

 

“Discounted Term Loan Prepayment” has the meaning set forth in Section 2.04(a)(iv)(A).

 

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale leaseback transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not include any issuance by the Parent of any of its Equity Interests to another Person or the granting of any Lien permitted hereunder.

 

“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event (a) matures (excluding any maturity as the result of an option redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, event of loss, or asset sale or event of default so long as any rights of the holders thereof upon the occurrence of a change of control, event of loss, asset sale or event of default shall be subject to prior Payment in Full), or (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and other than as a result of a change of control, event of loss, asset sale or event of default so long as any rights of the holders thereof upon the occurrence of a change of control, event of loss, asset sale or event of default shall be subject to prior Payment in Full), in whole or in part, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of issuance of such Equity Interests; provided that if such Equity Interests are issued pursuant to a plan for the benefit of future, current or former employees, directors, officers, managers or consultants of the Parent, the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Parent, the Borrower or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

“Distressed Person” has the meaning set forth in the definition of “Lender-Related Distress Event”.

 

 

“Division/Series Transaction” means, with respect to the Loan Parties and their respective Restricted Subsidiaries, that any such Person (a) divides into two or more Persons (whether or not the original dividing Loan Party or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the applicable Laws of any jurisdiction.

 

“Dollar”, “dollars” and “$” mean lawful money of the United States.

 

“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia.

 

“ECF Date” has the meaning set forth in Section 2.04(b)(i).

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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

 

“Eligible Assignee” has the meaning set forth in Section 10.07(a).

 

“EMU” means the Economic and Monetary Union as contemplated in the Treaty on European Union.

 

“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources, such as wetlands, flora and fauna.

 

“Environmental Laws” means any applicable Law relating to the prevention of pollution or the protection of the Environment, or the protection of human health and safety as it relates to exposure to Hazardous Materials, including any Laws relating to the generation, use, handling, transportation, storage, treatment, disposal, Release, or threatened Release of, or exposure to, any Hazardous Materials.

 

“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, or penalties), of any of the Loan Parties or any Subsidiary directly or indirectly resulting from or based upon (a) violation of, or otherwise arising under, any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials in violation of Environmental Laws or as would otherwise reasonably be expected to result in liability under Environmental Laws, (c) exposure to any Hazardous Materials, or (d) the Release or threatened Release of any Hazardous Materials into the Environment that requires remedial action under Environmental Law.

 

 

“Environmental Permit” means any Permit required under any applicable Environmental Law.

 

“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities); provided that any instrument evidencing Indebtedness convertible or exchangeable for Equity Interests shall not be deemed to be Equity Interests unless and until such instrument is so converted or exchanged.

 

“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 a Loan Party or any Restricted Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ERISA Event” means (a) a Reportable Event; (b) a withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan; (d) the filing by the PBGC of a notice of intent to terminate any Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or Section 4041A of ERISA, respectively, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of or the appointment of a trustee to administer any Pension Plan or Multiemployer Plan; (f) with respect to a Pension Plan, the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (g) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to a Loan Party or any Restricted Subsidiary; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party, any Restricted Subsidiary or any ERISA Affiliate.

 

 

“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.

 

“Euro” and “€” mean the single currency of participating member states of the EMU.

 

“Event of Default” has the meaning set forth in Section 8.01.

 

“Excess Cash Flow” means, for any Excess Cash Flow Period, an amount equal to:

 

(a)            the sum, without duplication, of:

 

(i)            Consolidated EBITDA for such period, and

 

(ii)            decreases in Consolidated Working Capital and long-term accounts receivable of the Parent and its Restricted Subsidiaries for such period (other than any such decreases arising from acquisitions or dispositions by the Parent and its Restricted Subsidiaries completed during such period or the application of purchase accounting, the effect of reclassification during such period between current assets and long-term assets and current liabilities and long-term liabilities (with a corresponding restatement to the prior period to give effect to such reclassification), or the effect of any fluctuations in the amount of accrued and contingent obligations under any Swap Contract), minus

 

(b)            the sum, without duplication, of the following for such period:

 

(i)            Consolidated Interest Expense,

 

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

 

(iii)            the aggregate amount of all principal payments, repayments, redemptions and repurchases of Indebtedness of the Parent and its Restricted Subsidiaries made during such period (including (A) the principal component of payments in respect of Financing Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.06, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.04(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but (X) excluding all other voluntary and mandatory prepayments of Term Loans) and (Y) all prepayments in respect of any revolving credit facility (except to the extent accompanied by a permanent commitment reduction),

 

(iv)            the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made in cash during such period, and to the extent financed with internally generated cash,

 

(v)            any amounts added back to Consolidated EBITDA under clause (a)(H) of the definition thereof,

 

 

(vi)            increases in Consolidated Working Capital and long-term accounts receivable of the Parent and its Restricted Subsidiaries for such period (other than any such increases arising from acquisitions or dispositions by the Parent and its Restricted Subsidiaries during such period or the application of purchase accounting, the effect of reclassification during such period between current assets and long-term assets and current liabilities and long-term liabilities, or the effect of any fluctuations in the amount of accrued and contingent obligations under any Swap Contract),

 

(vii)            cash payments by the Parent and its Restricted Subsidiaries made during such period in respect of long-term liabilities of the Parent and its Restricted Subsidiaries other than Indebtedness to the extent financed with internally generated cash,

 

(viii)            the amount of Investments and acquisitions made by the Parent and its Restricted Subsidiaries during such period and paid in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) (except to the extent made in a Restricted Subsidiary that is not a Loan Party) or (u)) to the extent financed with internally generated cash,

 

(ix)            the amount of Restricted Payments paid in cash during such period pursuant to Section 7.06(g) or Section 7.06(i), in each case to the extent financed with internally generated cash,

 

(x)            the aggregate amount of expenditures made by the Parent and its Restricted Subsidiaries in cash during such period (including (A) expenditures for the payment of financing fees and (B) expenditures for contract acquisition costs and structured bonus payments in connection with contract acquisitions, synthetic joint ventures or otherwise) to the extent that such expenditures are not expensed during such period, to the extent financed with internally generated cash,

 

(xi)            the aggregate amount of any premium, make-whole or penalty payments paid in cash by the Parent and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, to the extent financed with internally generated cash,

 

(xii)            any restructuring cash expenses, pension payments or tax contingency payments required to be made, in each case during the period of four (4) consecutive fiscal quarters of the Parent following the end of such period,

 

(xiii)            expenses, charges and fees (including expenses, charges and fees paid to the Administrative Agent and Lenders) incurred and paid in cash during such period and after the Closing Date in connection with the administration (including in connection with any waiver, amendment, supplementation or other modification thereto of this Agreement and the other Loan Documents) of this Agreement,

 

(xiv)            reasonable and customary transaction expenses incurred and paid in cash during such period in connection with any proposed Investment or acquisition which is not consummated to the extent such expenses are not funded with proceeds of the issuance of Equity Interests or the incurrence of Indebtedness in an aggregate amount not to exceed $5,000,000 during any twelve month period and $20,000,000 in the aggregate during the term of the Agreement,

 

 

(xv)            cash interest income, cash gains and other cash income received during such period to the extent deducted from Consolidated EBITDA for such period,

 

(xvi)            cash expenditures in respect of Swap Contracts during such period, and

 

(xvii)            any payment of cash to be amortized or expensed over a future period and recorded as a long-term asset,

 

provided that, with respect to clauses (b)(iii), (iv), (vi), (vii), (viii), (ix) and (x), at the option of the Borrower, (1) the amount shall also include any amount committed to be paid pursuant to a binding contract (or with respect to clause (viii), if declared by the Borrower) in any subsequent fiscal quarter so long as to the extent such amount is not actually paid as committed in such subsequent fiscal quarter, such amount shall be added back in calculating Excess Cash Flow for such subsequent fiscal quarter and (2) the amount shall also include any payment made after such fiscal quarter and prior to the date on which the Excess Cash Flow calculation is due so long as such amount will not be deducted in subsequent Excess Cash Flow Periods.

 

Notwithstanding anything in the definition of any term used in the definition of Excess Cash Flow to the contrary, all components of Excess Cash Flow shall be computed for the Parent and its Restricted Subsidiaries on a consolidated basis.

 

Notwithstanding anything herein to the contrary, Excess Cash Flow shall not be calculated to give effect to any Material Business Expansion Project Adjustments.

 

“Excess Cash Flow Period” means each fiscal quarter of the Parent commencing with the first full fiscal quarter ending after the Closing Date.

 

“Excluded Accounts” means accounts that are (a) solely used for the purposes of making payments in respect of payroll, taxes and employees’ wages and benefits, (b) disbursement accounts where solely proceeds of indebtedness, including the proceeds of the loans under the ABL Credit Agreement are deposited, (c) zero balance accounts from which balances are swept daily to a Controlled Account (as defined in the ABL Credit Agreement), (d) third party trust accounts and third-party cash collateral accounts securing a Permitted Lien and (e) other accounts with funds on deposit with a daily average balance of less than $2,000,000 individually and $10,000,000 in the aggregate.

 

“Excluded Assets” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Excluded Subsidiary” means (a) any Subsidiary that is not a direct or indirect wholly owned Subsidiary of the Parent or a Guarantor, provided, however, that a subsidiary that is a Guarantor that ceases to be a wholly owned Subsidiary shall be considered a wholly owned Subsidiary for purposes of this clause (a) unless the conditions to release described in Section 9.11(c) have been satisfied, (b) any Immaterial Subsidiary, (c) any direct or indirect Foreign Subsidiary, other than those Canadian Loan Parties that are designated as Guarantors by the Borrower, (d) any direct or indirect Domestic Subsidiary of the Parent (x) that is a Subsidiary of a Foreign Subsidiary that is a CFC or (y) substantially all of whose assets consist of capital stock (or capital stock and/or indebtedness) of (i) one or more Foreign Subsidiaries that are CFCs or (ii) other Subsidiaries described in clause (d)(x) (any Subsidiary described in this clause (d)(y), a “FSHCO”), (e) any Unrestricted Subsidiaries, (f) any joint ventures and (g) any other Subsidiary mutually agreed between the Administrative Agent and the Borrower on the Closing Date.

 

 

“Existing Preferred Units” means the Class B Preferred Units, the Class C Preferred Units, and the Class D Preferred Units existing on the Closing Date.

 

“Existing Term Loan Tranche” has the meaning set forth in Section 2.15(a).

 

“Extended Term Loans” has the meaning set forth in Section 2.15(a).

 

“Extending Term Lender” has the meaning set forth in Section 2.15(c).

 

“Extension” means the establishment of an Extension Series by amending a Loan pursuant to Section 2.15 and the applicable Extension Amendment.

 

“Extension Amendment” has the meaning set forth in Section 2.15(d).

 

“Extension Election” has the meaning set forth in Section 2.15(c).

 

“Extension Request” means any Term Loan Extension Request.

 

“Extension Series” means any Term Loan Extension Series.

 

“Facility” means the Initial Term Loans, a given Class of Incremental Term Loans, a given Refinancing Series of Refinancing Term Loans, a given Extension Series of Extended Term Loans, as the context may require.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (and any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with), any current or future Treasury Regulations promulgated thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

“Federal Funds Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if the applicable rate described above shall be less than the Floor, it shall be deemed to be the Floor for purposes of this Agreement.

 

 

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

“Fee Letter” means each of (a) that certain Term Loan Administrative Agent Fee Letter, dated as of January 4, 2024, among the Administrative Agent and the Parent, and (b) that certain Amended and Restated Term Loan Arranger Fee Letter, dated as of January 28, 2024, among certain of the Lead Arrangers, the Parent and the other parties party thereto.

 

“Financial Performance Covenant” means the covenant of the Borrower set forth in Section 7.09.

 

“Financing Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Financing Lease; provided that any obligations of the Parent, the Borrower or its Restricted Subsidiaries either existing on the Closing Date or created prior to any recharacterization described below (i) that were not included on the consolidated balance sheet of the Parent as financing or capital lease obligations and (ii) that are subsequently recharacterized as financing or capital lease obligations or indebtedness due to a change in accounting treatment or otherwise, shall for all purposes under this Agreement (including, without limitation, the calculation of Consolidated Net Income and Consolidated EBITDA) not be treated as financing or capital lease obligations, Financing Lease Obligations or Indebtedness.

 

“Financing Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as a financing or capital leases (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP as in effect on January 1, 2015; provided that for all purposes hereunder the amount of obligations under any Financing Lease shall be the amount thereof accounted for as a liability on a balance sheet in accordance with GAAP as in effect on January 1, 2015.

 

“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

 

“Fitch” means Fitch Ratings, Inc. and its subsidiaries, or any successor to the rating agency business thereof.

 

“Fixed Charge Coverage Ratio” means, with respect to the Parent and its Restricted Subsidiaries for any Test Period, the ratio of (a) Consolidated EBITDA for such Test Period to (b) the Fixed Charges for such Test Period.

 

In the event that the Parent or any Restricted Subsidiary incurs, assumes, guarantees, redeems, repays, retires or extinguishes any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Equity Interests or preferred stock subsequent to the commencement of the Test Period for which the Fixed Charge Coverage Ratio is being calculated, but prior to, or simultaneously with, the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving Pro Forma Effect to such incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Equity Interests or preferred stock, as if the same had occurred at the beginning of the applicable four (4)-fiscal quarter period; provided, however, that in the event that any Indebtedness (or portion thereof) can be incurred on such date pursuant to any Dollar-denominated “basket” or “grower” set forth in Section 7.03 (including in reliance on the Free and Clear Incremental Amount, but excluding, for the avoidance of doubt, Indebtedness incurred pursuant to a ratio-based “basket”), such Indebtedness (or portion thereof) shall not be included for purposes of the pro forma calculation of Fixed Charges.

 

 

For purposes of computing the Fixed Charge Coverage Ratio, Investments, acquisitions, Dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP) that have been made by the Parent or any of its Restricted Subsidiaries during the Test Period or subsequent to such Test Period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a Pro Forma Basis assuming that all such Investments, acquisitions, Dispositions, mergers, amalgamations, consolidations and discontinued operations (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the four (4)-fiscal quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Parent or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, Disposition, merger, amalgamation, consolidation or discontinued operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving Pro Forma Effect thereto for such period as if such Investment, acquisition, Disposition, merger, amalgamation, consolidation or discontinued operation had occurred at the beginning of the applicable Test Period.

 

“Fixed Charge Coverage Ratio Calculation Date” has the meaning set forth in the definition of “Fixed Charge Coverage Ratio”.

 

“Fixed Charges” means, with respect to the Parent and its Restricted Subsidiaries for any period, the sum of, without duplication:

 

(A)            Consolidated Interest Expense paid in cash with respect to Indebtedness for borrowed money for such period; and

 

(B)            all cash dividends (in the case of a partnership or limited liability company, quarterly or other periodic distributions equivalent to a dividend) or other cash distributions paid (excluding items eliminated in consolidation) on any series of preferred stock or Disqualified Equity Interests during such period (but solely to the extent such dividends, distributions or other amounts had accrued during such period);

 

provided, that for the first three (3) full fiscal quarters ending after the Closing Date, Fixed Charges shall mean: (i) for the fiscal quarter ending June 30, 2024, Fixed Charges for such Test Period multiplied by four (4); (ii) for the fiscal quarter ending September 30, 2024, Fixed Charges for such Test Period multiplied by two (2); and (iii) for the fiscal quarter ending December 31, 2024, Fixed Charges for such Test Period multiplied by four-thirds (4/3).

 

 

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

 

“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

 

“Floor” means 0.00%.

 

“Foreign Disposition” has the meaning set forth in Section 2.04(b)(xi).

 

“Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of the Parent which is not a Domestic Subsidiary.

 

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

 

“Free and Clear Incremental Amount” has the meaning set forth in Section 2.13(d)(iii).

 

“FSHCO” has the meaning set forth in the definition of “Excluded Subsidiary”.

 

“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

“GAAP” means generally accepted accounting principles in the United States, that are in effect from time to time; provided, however, that (i) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change in accounting principles or change as a result of the adoption or modification of accounting policies (including, but not limited to, the impact of Accounting Standards Update 2016-12, Revenue from Contracts with Customers (Topic 606) or similar revenue recognition policies or any change in the methodology of calculating reserves for returns, rebates and other chargebacks) occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), then the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith, each acting reasonably (and without requirement of any fee), to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP or application thereof, and regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted 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 accordance herewith, (ii) GAAP shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC Topic 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Parent or any of its Subsidiaries at “fair value”, as defined therein, and Indebtedness shall be measured at the aggregate principal amount thereof, and (iii) the accounting for operating leases and financing or capital leases under GAAP as in effect on January 1, 2015 (including, without limitation, FASB Accounting Standards Codification 840) shall apply for the purposes of determining compliance with the provisions of this Agreement, including the definition of Financing Leases and obligations in respect thereof.

 

 

“General Partner” means NGL Energy Holdings LLC, a Delaware limited liability company, and its successors and permitted assigns as the general partner of NGL Energy; provided that, following a conversion of the Parent from a limited partnership to a corporation (and so long as the Parent is not subsequently converted to a limited partnership), all references to “General Partner” in this Agreement shall be to the Parent.

 

“Governmental Authority” means any nation or government, any state, province, territory, municipality or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity, exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

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

 

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

 

“Granting Lender” has the meaning set forth in Section 10.07(i).

 

“Guarantees” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or is then in effect or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

 

 

“Guarantors” means, collectively, (a) the Parent, (b) the wholly owned Restricted Subsidiaries of the Parent that execute the Guaranty on the Closing Date and (c) those wholly owned Restricted Subsidiaries that execute the Guaranty after the Closing Date either (i) pursuant to Section 6.11 or as otherwise required by the Collateral and Guarantee Requirements or (ii) at the option of the Borrower (without any obligation to do so).

 

“Guaranty” means, individually and collectively, (a) that certain Term Loan Guaranty substantially in the form of Exhibit K, dated as of the Closing Date, among the Loan Parties (other than the Canadian Loan Parties) and the Administrative Agent and (b) that certain Guaranty, dated as of the Closing Date, governed by Canadian law and signed by each Canadian Loan Party and the Administrative Agent.

 

“Hazardous Materials” means all materials, pollutants, contaminants, chemicals, constituents, substances or wastes, in any form, including petroleum or petroleum products, fractions or distillates, explosives, radioactive materials, asbestos-containing materials, polychlorinated biphenyls, per- or polyfluoroalkyl substances, brine, toxic mold or radon gas that are regulated, or as to which liability may be imposed, under Environmental Law.

 

“Historical Financial Statements” means, collectively, the Audited Financial Statements and the Unaudited Financial Statements.

 

“Hydrocarbons” means oil, natural gas, casing head gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or compounds thereof and products refined or processed therefrom.

 

“Identified Participating Lenders” has the meaning set forth in Section 2.04(a)(iv)(C)(3).

 

“Identified Qualifying Lenders” has the meaning set forth in Section 2.04(a)(iv)(D)(3).

 

“Immaterial Subsidiary” means, as of any date, any Subsidiary of the Parent that does not have individually, or in the aggregate (together with all other such Subsidiaries satisfying the conditions set forth in this definition), (i) total assets with a fair market value in excess of 5.00% of Total Assets, as of the last day of the most recently ended Test Period or (ii) total revenues in excess of 5.00% of Consolidated EBITDA during the most recently ended Test Period.

 

“Incremental Amendment” has the meaning set forth in Section 2.13(f).

 

 

“Incremental Availability Amount” has the meaning set forth in Section 2.13(d)(iii)(D).

 

“Incremental Commitments” has the meaning set forth in Section 2.13(a).

 

“Incremental Equivalent Debt” has the meaning set forth in Section 7.03(q).

 

“Incremental Equivalent First Lien Debt” has the meaning set forth in Section 7.03(q).

 

“Incremental Equivalent Junior Debt” has the meaning set forth in Section 7.03(q).

 

“Incremental Equivalent Unsecured Debt” has the meaning set forth in Section 7.03(q).

 

“Incremental Facility Closing Date” has the meaning set forth in Section 2.13(d).

 

“Incremental Lenders” has the meaning set forth in Section 2.13(c).

 

“Incremental Request” has the meaning set forth in Section 2.13(a).

 

“Incremental Term Facility” has the meaning set forth in Section 2.13(a).

 

“Incremental Term Loan” has the meaning set forth in Section 2.13(b).

 

“Incurrence-Based Incremental Amount” has the meaning set forth in Section 2.13(d)(iii)(D).

 

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following:

 

(a)            all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)            the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

 

(c)            net obligations of such Person under any Swap Contract;

 

(d)            all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts and accrued expenses payable in the ordinary course of business and (ii) any earn-out obligation, holdback payment or similar obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and (iii) accruals for payroll and other liabilities accrued in the ordinary course);

 

(e)            indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

 

(f)            all Attributable Indebtedness;

 

(g)            all obligations of such Person in respect of Disqualified Equity Interests;

 

if and to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP; provided that Indebtedness of any direct or indirect parent of the Parent appearing on the balance sheet of the Parent solely by reason of push-down accounting under GAAP shall be excluded; and

 

(h)            to the extent not otherwise included above, all Guarantees of such Person in respect of any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise expressly limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Net Debt, (B) in the case of the Parent and its Restricted Subsidiaries, exclude all intercompany Indebtedness having a term not exceeding three hundred sixty-four (364) days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business, (C) exclude obligations under or in respect of Non-Financing Lease Obligations (to the extent they are treated as operating leases in the most recent financial statements in existence on the Closing Date), straight-line leases, operating leases or sale lease-back transactions (except any resulting Financing Lease Obligations), (D) exclude obligations in respect of contract acquisition costs and structured bonus payments in connection with contract acquisitions, synthetic joint ventures or otherwise and (E) exclude Hydrocarbon balancing liabilities incurred in the ordinary course of business. The amount of any net obligation under any Swap Contract on any date of determination shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) above shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness (not to exceed the maximum amount of such Indebtedness for which such Person could be liable) and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith. Notwithstanding anything in this definition to the contrary, Indebtedness shall be calculated without giving effect to the effects of FASB Accounting Standards Codification 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

 

“Indemnified Liabilities” has the meaning set forth in Section 10.05.

 

“Indemnified Taxes” means, with respect to any Agent or any Lender, all Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document other than (i) Taxes imposed on or measured by such Agent’s or Lender’s net income (however denominated) and franchise (and similar) Taxes (a)  imposed by a jurisdiction (or any political subdivision thereof) as a result of such Lender or Agent being organized in or having its principal office (or, in the case of any Lender, its applicable Lending Office) in such jurisdiction (or any political subdivision thereof), or (b) as a result of any other connection between such Lender or Agent and such jurisdiction (or any political subdivision thereof) other than any connections arising from executing, delivering, being a party to, engaging in any transactions pursuant to, performing its obligations under, receiving payments under, receiving or perfecting a security interest under, and/or enforcing, any Loan Document, or having sold or assigned an interest in any Loan or Loan Documents, (ii) Taxes attributable to such Lender’s or Administrative Agent’s failure to comply with Section 3.01(e) or Section 3.01(g), (iii) any branch profits Taxes imposed under Section 884(a) of the Code, or any similar Tax, imposed by any jurisdiction described in clause (i) above, (iv) in the case of any Lender, any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (x) such Lender acquires such interest in the applicable Commitment or, if such Lender did not fund an applicable Loan pursuant to a prior Commitment, on the date such Lender acquires the applicable interest in such Loan (other than pursuant to an assignment request by the Borrower under Section 3.07) or (y) such Lender changes its applicable Lending Office, except in each case to the extent such Lender (or its assignor, if any) was entitled immediately prior to the time of designation of a new Lending Office (or assignment) to receive additional amounts with respect to such withholding Tax pursuant to Section 3.01, (v) any withholding Taxes imposed under FATCA, and (vi) any U.S. federal backup withholding Taxes under Section 3406 of the Code.

 

 

“Indemnitees” has the meaning set forth in Section 10.05.

 

“Information” has the meaning set forth in Section 10.08.

 

“Initial Facility” means the Initial Term Commitment and Initial Term Loans as in effect on the Closing Date.

 

“Initial Term Borrowing” means the Borrowing of Initial Term Loans on the Closing Date.

 

“Initial Term Commitment” means, as to each Lender, its obligation to make an Initial Term Loan to the Borrower pursuant to Section 2.01 in an aggregate amount not to exceed the amount set forth opposite such Lender’s name in Schedule 1.01A under the caption “Initial Term Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Sections 2.14 and Section 2.15). The initial aggregate amount of the Initial Term Commitments is $700,000,000.

 

“Initial Term Loans” means the term loans made by the Lenders on the Closing Date to the Borrower pursuant to Section 2.01.

 

“Intellectual Property Security Agreement” means, an Intellectual Property Security Agreement among the Loan Parties party thereto, and the Collateral Agent in such form that is reasonably acceptable to the Administrative Agent and the Collateral Agent.

 

“Intercompany Note” means a promissory note substantially in the form of Exhibit G.

 

 

“Intercreditor Agreements” means the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any supplement to any of the foregoing, collectively, in each case to the extent in effect.

 

“Interest Payment Date” means, (a) as to any Term SOFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Term SOFR Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates, (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made and (c) as to any Loan bearing interest at Daily Simple SOFR, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.

 

“Interest Period” means, as to each Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:

 

(a)            any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

 

(b)            any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)            no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

 

“Interest Rate Hedge Agreements” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with the Parent’s and its Subsidiaries’ operations and not for speculative purposes.

 

“IRS” means the Internal Revenue Service.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person excluding, in the case of the Parent and its Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding three hundred sixty-four (364) days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment less all returns and distributions received on such Investment.

 

 

“IP Rights” has the meaning set forth in Section 5.15.

 

“Junior Financing” has the meaning set forth in Section 7.10(a).

 

“Junior Financing Documentation” means any documentation governing any Junior Financing.

 

“Junior Lien Intercreditor Agreement” means an intercreditor agreement, in form and substance reasonably acceptable to the Administrative Agent and the Borrower, among the Collateral Agent and one or more collateral agents or representatives for the holders of Incremental Term Loans, Permitted Second Priority Refinancing Debt, Incremental Equivalent Debt or other applicable Indebtedness permitted under the Agreement, as applicable, that are intended to be secured on a basis junior in right of Lien priority to the Liens securing the Initial Facility. Wherever in this Agreement, an Other Debt Representative is required to become party to the Junior Lien Intercreditor Agreement, if the related Indebtedness is the initial Indebtedness incurred by the Borrower or any Restricted Subsidiary to be secured by a Lien junior in right of priority to the Liens securing the Initial Facility, then the Loan Parties, the Collateral Agent and the Other Debt Representative for such Indebtedness shall execute and deliver the Junior Lien Intercreditor Agreement.

 

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

 

“Latest Maturity Date” means, on any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Refinancing Term Loan, any Refinancing Term Commitment, any Extended Term Loan, or any Incremental Term Loans, in each case as extended in accordance with this Agreement from time to time.

 

“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, regulations (including, without limitation, energy regulations), ordinances, codes and administrative or judicial precedents, orders, decrees, injunctions, guidelines or authorities that are legally enforceable, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

 

“LCT Election” has the meaning set forth in Section 1.02(l).

 

 

“LCT Test Date” has the meaning set forth in Section 1.02(l).

 

“Lead Arrangers” means TD Securities (USA) LLC, JPMorgan Chase Bank, N.A., Barclays Bank PLC, Royal Bank of Canada, Wells Fargo Securities, LLC, BofA Securities, Inc., MUFG Bank, Ltd. and TCBI Securities, Inc., and and/or one or more of their respective affiliated designees in their capacities as joint lead arrangers and joint bookrunners.

 

“Leasehold” means any leasehold interest of any Loan Party as lessee under any lease of Material Real Property Assets.

 

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

 

“Leasehold Property” means any leasehold interest of any Loan Party as lessee under any lease of Material Real Property Assets.

 

“Lender” has the meaning set forth in the introductory paragraph to this Agreement and includes their respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”

 

“Lender Default” means (a) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender to make available its portion of any incurrence of revolving loans or reimbursement obligations required to be made by it, which refusal or failure is not cured within one (1) Business Day after the date of such refusal or failure; (b) the failure of any Lender to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless subject to a good faith dispute; (c) a Lender has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations, or has made a public statement to that effect with respect to its funding obligations, under any Facility or under other agreements generally in which it commits to extend credit; (d) a Lender has failed, within three (3) Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations under any Facility or (e) a Lender has admitted in writing that it is insolvent or such Lender becomes subject to a Lender-Related Distress Event or a Bail-In Action. Any determination by the Administrative Agent that a Lender Default has occurred under any one or more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and the applicable Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b) upon delivery of written notice of such determination to the Borrower and each Lender).

 

“Lender-Related Distress Event” means, with respect to any Lender or any person that directly or indirectly controls such Lender (each, a “Distressed Person”), as the case may be, a voluntary or involuntary case with respect to such Distressed Person under any Debtor Relief Law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person or any person that directly or indirectly controls such Distressed Person is subject to a forced liquidation, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in any Lender or any person that directly or indirectly controls such Lender by a Governmental Authority or an instrumentality thereof.

 

 

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Financing Lease having substantially the same economic effect as any of the foregoing); provided that in no event shall a Non-Financing Lease Obligation be deemed to constitute a Lien.

 

“Limited Condition Transaction” means any Permitted Acquisition, Investments, Restricted Payments, and repayments, repurchases and redemptions of Indebtedness, in each case, permitted hereunder by the Parent or one or more of its Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third-party financing (or, if such condition does exist, the Parent or any Restricted Subsidiary, as applicable, would be required to pay any fee, liquidated damages or other amount or be subject to any indemnity, claim or other liability as a result of such third party financing not having been available or obtained).

 

“Loan” or “Term Loan” means, individually or collectively, the Initial Term Loans, the Incremental Term Loans, any Refinancing Term Loans or any Extended Term Loans, as the context may require.

 

“Loan Documents” means, collectively, (a) this Agreement, (b) the Guaranty, (c) the Notes, (d) the Collateral Documents, (e) each Intercreditor Agreement to the extent then in effect, and (f) any Refinancing Amendment, Incremental Amendment or Extension Amendment.

 

“Loan Parties” means, collectively, the Parent, the Borrower and each Subsidiary Guarantor.

 

“LTM Consolidated EBITDA” means Consolidated EBITDA for the Test Period most recently ended prior to the date of determination.

 

 

“Maintenance Capital Expenditures” means cash expenditures (including expenditures for the construction or the replacement, improvement or expansion of existing capital assets) by a Loan Party made to maintain, over the long term, the operating capacity or operating income of the Loan Parties excluding (a) expenditures made in connection with the replacement, substitution or restoration of property pursuant to Section 2.04(b) and the definition of “Net Proceeds”, and (b) expenditures to the extent such expenditures are financed with the proceeds of any cash contribution to the common equity of the Parent or any of its Subsidiaries after the Closing Date and/or any purchase or investment in an Equity Interest (other than Disqualified Equity Interests) of Parent or any of its Restricted Subsidiaries. For purposes of this definition, “long term” generally refers to a period of not less than twelve (12) months. Where capital expenditures are made in part for Maintenance Capital Expenditures and in part for non-Maintenance Capital Expenditures, the Borrower shall determine the allocation of the amounts paid for each in a commercially reasonable manner. For the avoidance of doubt, Maintenance Capital Expenditures does not include expenditures for the construction of new gathering lines, compression systems or processing plants or other growth projects, provided further that Maintenance Capital Expenditure shall not include, without duplication, (i) any additions to property and equipment and other capital expenditures made with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary (other than any Designated Equity Contribution, any Specified Equity Contribution or Disqualified Equity Interests), (ii) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (iii) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iv) any consideration payable with respect to any Permitted Acquisitions or other Investment, (v) the purchase of property, plant or equipment to the extent financed with the proceeds of any dispositions of assets or property not prohibited hereunder, (vi) expenditures that are accounted for as capital expenditures by the Parent or any Restricted Subsidiary and that actually are paid for by a Person other than the Parent or any Restricted Subsidiary, to the extent neither the Parent nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after the applicable Test Period), (vii) any expenditures which are contractually required to be, and are, advanced or reimbursed to the Loan Parties in cash by a third party (including landlords) during the applicable Test Period, (viii) the book value of any asset owned by the Parent or any Restricted Subsidiary prior to or during the applicable Test Period to the extent that such book value is included as a capital expenditure during such Test Period as a result of such Person reusing or beginning to reuse such asset during such Test Period without a corresponding expenditure actually having been made in such Test Period, provided that (A) any expenditure necessary in order to permit such asset to be reused shall be included as a Maintenance Capital Expenditure during the Test Period in which such expenditure actually is made and (B) such book value shall have been included in Maintenance Capital Expenditures when such asset was originally acquired, (ix) the purchase price of equipment purchased during the applicable Test Period to the extent the consideration consists of any combination of (A) used or surplus equipment traded in at the time of such purchase and (B) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business and (x) any other capital expenditures that are financed with the Net Proceeds of any disposition of assets, any Casualty Event, any incurrence or issuance of Indebtedness or any issuance of Equity Interests (other than Disqualified Equity Interests, any Specified Equity Contribution or Designated Equity Contribution).

 

 

“Margin Stock” has the meaning set forth in Regulation U issued by the FRB.

 

“Master Agreement” has the meaning set forth in the definition of “Swap Contract”.

 

“Material Adverse Effect” means a material adverse effect on (a) the business, operations, assets, liabilities (actual or contingent) or financial condition of the Parent and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the Loan Documents, or (c) the material rights and remedies available to the Lenders and Agents, taken as a whole, under the Loan Documents.

 

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

 

“Material Business Expansion Project Adjustments” the meaning set forth in the definition of “Consolidated EBITDA”.

 

“Material Contract” means any minimum volume contract or other revenue contract of the Parent or any of its Restricted Subsidiaries that features a fixed fee that automatically steps up on a date certain notwithstanding any change in volumes or other conditions.

 

“Material Intellectual Property” means any intellectual property owned by the Borrower or any of its Restricted Subsidiaries that is material to the business of the Borrower and its Restricted Subsidiaries, taken as a whole (as reasonably determined by the Borrower).

 

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

 

(i)

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

 

(ii)

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

 

 

“Maturity Date” means (a) with respect to the Initial Term Loans, February 2, 2031, (b) with respect to any Refinancing Term Loans, the final maturity date applicable thereto as specified in the applicable Refinancing Amendment and (c) with respect to any Incremental Term Loans, the final maturity date applicable thereto as specified in the applicable Incremental Amendment; provided, in each case, that if such date is not a Business Day, then the applicable Maturity Date shall be the next succeeding Business Day.

 

“Maximum Rate” has the meaning set forth in Section 10.10.

 

“MFN Excluded Debt” means Indebtedness (a) in an aggregate amount less than or equal to the greater of (i) $100,000,000 and (ii) 15.0% of LTM Consolidated EBITDA at the time of determination, (b) incurred (or for which commitments are established) after the date that is the 12-month anniversary of the Closing Date, (c) that is not in the form of broadly syndicated floating rate term loans denominated in Dollars, (d) incurred under the Permitted Earlier Maturity Indebtedness Exception or (e) that is unsecured or secured on a junior lien basis to the Initial Term Loans.

 

“MFN Protection” has the meaning set forth in Section 2.13(e)(iii).

 

“Midstream Activities” means, with respect to any Person, collectively, the treatment, processing, pumping, storing, recycling, terminaling, transloading, gathering, dehydration, compression, blending, transportation (including acquiring of rights of way for transportation), fractionating, storage, transmission, stabilization, disposal, delivery, marketing, buying or selling or other disposition, whether for such Person’s own account or for the account of others, of fresh water, produced water, crude oil, natural gas, natural gas liquids or other liquid or gaseous hydrocarbons, including that used for fuel or consumed in the foregoing activities; provided that “Midstream Activities” shall in no event include, except as set forth above, exploration and production or oilfield services activities.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“Mortgage Policies” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”

 

“Mortgaged Property” means any Material Real Property Asset that becomes subject to a Mortgage or Leasehold Mortgage pursuant to this Agreement, in each case as to which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages or Leasehold Mortgages).

 

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

 

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower, any Restricted Subsidiary or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

“Net Proceeds” means:

 

(a)            100.00% of the cash proceeds actually received by the Parent or any of the Restricted Subsidiaries (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any Disposition permitted pursuant to Section 7.05(j) or any Casualty Event, net of (i) the direct costs relating to such Disposition or Casualty Event, including, without limitation, all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expense incurred, and all federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP (after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Disposition or Casualty Event; (ii) all payments made on any Indebtedness that is secured by any assets subject to such Disposition and Casualty Event, in accordance with the terms of such Indebtedness, or that must by its terms, or in order to obtain a necessary consent to such Disposition, or by applicable law be repaid out of the proceeds from such Disposition and Casualty Event; (iii) all distributions and other payments required to be made to holders of minority interests in Subsidiaries or joint ventures as a result of such Disposition or Casualty Event; and (iv) the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, or held in escrow, in either case for as long as required to be held as reserve or in escrow for adjustment in respect of the sale price or for indemnification or any liabilities associated with the assets disposed of in such Disposition and retained by the Parent or any Restricted Subsidiary after such Disposition and Casualty Event; provided that the Parent or the applicable Restricted Subsidiary may reinvest any portion of such proceeds in (x) Additional Assets or (y) Capital Expenditures and other Investments in used or useful in a Permitted Business (which shall include any Investment permitted by this Agreement), in each case within the 365-day period following such receipt and such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within the 365-day period following such receipt, so reinvested or contractually committed to be so reinvested (it being understood that if any portion of such proceeds are not so used within such 365-day period but within such 365-day period are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used within 545 days of initial receipt, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); and

 

(b)            100.00% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any of the Restricted Subsidiaries of any Indebtedness, net of all Taxes paid or reasonably estimated to be payable as a result thereof (including any Permitted Tax Distributions) and fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such incurrence, issuance or sale.

 

 

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Borrower or any Restricted Subsidiary shall be disregarded.

 

“Non-Consenting Lender” has the meaning set forth in Section 3.07(d).

 

“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.

 

“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.

 

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

 

“Not Otherwise Applied” means, with reference to any amount of net proceeds of any transaction or event, that such amount (a) was not required to be applied to prepay the Loans pursuant to Section 2.04(b), and (b) was not previously (and is not concurrently being) applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was or is (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose.

 

“Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit B hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Term Loans made by such Lender, as applicable.

 

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

 

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Restricted Subsidiaries arising under any Loan Document or otherwise with respect to any Loan, 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, premiums (including prepayment premiums) and fees that accrue after the commencement by or against any Loan Party or Restricted Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, premium (including prepayment premiums) and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Restricted Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document, in each such case, to the extent that any of the foregoing are required to be paid under the Loan Documents.

 

 

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

“Offered Amount” has the meaning set forth in Section 2.04(a)(iv)(D).

 

“Offered Discount” has the meaning set forth in Section 2.04(a)(iv)(D).

 

“OID” means original issue discount.

 

“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

“Other Applicable Indebtedness” has the meaning set forth in Section 2.04(b)(i).

 

“Other Debt Representative” means, with respect to any series of Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Incremental Equivalent Debt or other applicable Indebtedness permitted under the Agreement that is intended to be secured by Liens that are pari passu with or junior to the Liens securing the Initial Facility, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be each of their successors and assigns in such capacities.

 

“Other Taxes” has the meaning set forth in Section 3.01(b).

 

“Outstanding Amount” means (a) with respect to Initial Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Initial Term Loans occurring on such date and (b) otherwise, the aggregate outstanding principal amount of Loans after giving effect to any borrowing and prepayments or repayments of Loans occurring on such date.

 

“Overnight Bank Funding Rate” means, for any day, the rate comprised of overnight federal funds borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

 

 

“Parent” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Parent LPA” means Seventh Amended and Restated Agreement of Limited Partnership of the Parent, dated as of October 31, 2019, as amended by the First Amendment to Seventh Amended and Restated Agreement of Limited Partnership of NGL Energy Partners LP dated as of February 4, 2021.

 

“Pari Passu Intercreditor Agreement” means the Pari Passu Intercreditor Agreement, substantially in the form of Exhibit H-2 hereto, dated as of the Closing Date, among the Loan Parties from time to time party thereto, the Collateral Agent, as credit agreement agent, U.S. Bank Trust Company, National Association, as notes collateral agent, the Real Property Collateral Agent, as real property collateral agent, and any Other Debt Representative from time to time party thereto.

 

“Participant” has the meaning set forth in Section 10.07(f).

 

“Participant Register” has the meaning set forth in Section 10.07(f).

 

“Participating Lender” has the meaning set forth in Section 2.04(a)(iv)(C)(2).

 

“Payment” has the meaning assigned to it in Section 9.16(a).

 

“Payment in Full” means the payment in full of the outstanding principal of and interest on the Loans and all other Obligations (other than (x) contingent indemnification or reimbursement obligations not yet accrued and payable) that are accrued and payable and the termination or expiration of the Aggregate Commitments.

 

“Payment Notice” has the meaning assigned to it in Section 9.16(b)

 

“Payment or Bankruptcy Default” means an Event of Default under Section 8.01(a) or, with respect to the Borrower, (f) or (g).

 

“Payment Recipient” has the meaning assigned to it in Section 9.16(a).

 

“PBGC” means the Pension Benefit Guaranty Corporation.

 

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.

 

“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

 

“Permit” means any permit, approval, consent, filing, notice, waiver, exemption, certification, registration, license or other authorization required under any Law.

 

 

“Permitted Acquisition” has the meaning set forth in Section 7.02(i)(i).

 

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

 

“Permitted Earlier Maturity Indebtedness Exception” means, with respect to the incurrence of any Incremental Term Loans, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, any Indebtedness incurred under Section 7.03(g) or (q), or any Permitted Refinancing of any Indebtedness permitted to be incurred under this Agreement, such Indebtedness (collectively, “Specified Debt”) consisting of a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies the applicable maturity or Weighted Average Life to Maturity requirements, as applicable, and such conversion or exchange is subject only to conditions customary for similar conversions (as determined by the Borrower in good faith), may, in each case, have a maturity date that is earlier than and a Weighted Average Life to Maturity that is shorter than, the Indebtedness with respect to which the Specified Debt is otherwise required to have a later maturity date or a longer Weighted Average Life to Maturity.

 

“Permitted First Priority Refinancing Debt” means any Permitted First Priority Refinancing Notes and any Permitted First Priority Refinancing Loans.

 

“Permitted First Priority Refinancing Loans” means any Credit Agreement Refinancing Indebtedness in the form of secured loans incurred by the Borrower and/or any Guarantor in the form of one or more tranches of loans not under this Agreement; provided that (a) such Indebtedness is secured by the Collateral on a pari passu basis but without regard to the control of remedies with the Liens securing the Initial Facility and is not secured by any property or assets of the Parent, the Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors and (c) an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to each applicable Intercreditor Agreement then in effect.

 

“Permitted First Priority Refinancing Notes” means any Credit Agreement Refinancing Indebtedness in the form of secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower and/or any Guarantor in the form of one or more series of senior secured notes (whether issued in a public offering, Rule 144A, private placement or otherwise); provided that (a) such Indebtedness is secured by the Collateral on a pari passu basis but without regard to the control of remedies) with the Liens securing the Initial Facility and is not secured by any property or assets of the Parent, the Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, and (c) an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to each applicable Intercreditor Agreement then in effect. Permitted First Priority Refinancing Notes will include any Registered Equivalent Notes issued in exchange therefor.

 

 

“Permitted Holders” means H. Michael Krimbill and each Krimbill Party, so long as such Krimbill Party is controlled, directly or indirectly, by H. Michael Krimbill.

 

“Permitted Intercompany Activities” means any transactions (A) between or among the Parent and its Restricted Subsidiaries that are entered into in the ordinary course of business of the Parent and its Restricted Subsidiaries and, in the good faith judgment of the Parent are necessary or advisable in connection with the ownership or operation of the business of the Parent and its Restricted Subsidiaries, including, but not limited to, (i) payroll, cash management, purchasing, insurance and hedging arrangements, (ii) management, technology and licensing arrangements and (iii) customer loyalty and rewards programs and (B) between or among the Parent, its Restricted Subsidiaries and any captive insurance subsidiary.

 

“Permitted Liens” means Liens permitted pursuant to Section 7.01.

 

“Permitted Other Debt Conditions” means, with respect to Permitted Second Priority Refinancing Debt and Permitted Unsecured Refinancing Debt, that such Indebtedness (a) subject to the Permitted Earlier Maturity Indebtedness Exception, does not mature or have scheduled amortization payments of principal or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (except customary asset sale, event of loss, change of control or event of default provisions that provide for prior Payment in Full), in each case on or prior to the Latest Maturity Date at the time such Indebtedness is incurred, (b) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (c) to the extent secured, the security agreements relating to such Indebtedness are substantially the same as or more favorable to the Loan Parties than the Collateral Documents (or with such other differences as are reasonably satisfactory to the Administrative Agent) and (d) is incurred as a separate Facility and pursuant to separate documentation.

 

“Permitted Ratio Debt” means unsecured Indebtedness of the Parent or any Restricted Subsidiary so long as immediately after giving Pro Forma Effect thereto and to the use of the proceeds thereof (but without netting the proceeds thereof), (i) until such time as the Class D Preferred Units are redeemed in full and no Class D Preferred Units remain outstanding, the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis, shall be no greater than a Consolidated Total Net Leverage Ratio of 4.75:1.00 and (ii) thereafter, the Fixed Charge Coverage Ratio is no less than 2.00:1.00 determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available.

 

“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest, premium and penalties thereon plus other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension and by an amount equal to any existing commitments unutilized thereunder, unless otherwise permitted under any basket or exception under Section 7.03 (with such amounts being deemed utilization of the applicable basket or exception under Section 7.03), (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e) and, subject to the Permitted Earlier Maturity Indebtedness Exception, such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is Junior Financing, (i) to the extent such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms at least as favorable (as determined by the Borrower) to the Lenders taken as a whole, as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (ii) such modification, refinancing, refunding, renewal, replacement or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended or another Loan Party and (iii) if the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended was subject to an Intercreditor Agreement, the holders of such modified, refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or their representative on their behalf shall become party to such Intercreditor Agreement.

 

 

“Permitted Second Priority Refinancing Debt” means secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower and/or any Guarantor in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (a) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Initial Facility and the obligations in respect of any Permitted First Priority Refinancing Debt and is not secured by any property or assets of the Parent, the Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness may be secured by a Lien on the Collateral that is junior to the Liens securing the Initial Facility and the obligations in respect of any Permitted First Priority Refinancing Debt, notwithstanding any provision to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness,” (c) an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to the provisions of the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement) thereunder, and (d) such Indebtedness meets the Permitted Other Debt Conditions. Permitted Second Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

 

“Permitted Tax Distribution” has the meaning set forth in Section 7.06(i).

 

“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower and/or any Guarantor in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness meets the Permitted Other Debt Conditions.

 

 

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

 

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) sponsored, maintained or contributed to by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

 

“Plan Asset Regulations” means 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA, each as amended.

 

“Platform” has the meaning set forth in Section 6.02(e).

 

“Pledged Notes” has the meaning set forth in the Security Agreement.

 

“Pledged Stock” has the meaning set forth in the Security Agreement.

 

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

 

“Post-Acquisition Period” means, with respect to any acquisition permitted under Section 7.02 or Section 7.06 hereof or the conversion of any Unrestricted Subsidiary into a Restricted Subsidiary, the period beginning on the date such acquisition or conversion is consummated and ending on the first anniversary of the date on which such acquisition or conversion is consummated.

 

“Prime Rate” the means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the FRB in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the FRB (as reasonably determined by the Administrative Agent). Any change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“Pro Forma Adjustment” means, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of the Parent, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a result of (a) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period, in each case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the Parent and the Restricted Subsidiaries; provided that so long as such actions are taken during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Test Period, or such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period.

 

 

“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to compliance with any test hereunder, that (a) to the extent applicable, the Pro Forma Adjustment shall have been made and (b) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (A) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of the Parent or any division, product line, or facility used for operations of the Parent or any of its Subsidiaries, shall be excluded and (B) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included, (ii) any retirement of Indebtedness, and (iii) any Indebtedness incurred or assumed by the Parent or any of the Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that (I) without limiting the application of the Pro Forma Adjustment pursuant to (a) above, the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by the Borrower in good faith) (1) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Parent and the Restricted Subsidiaries and (z) factually supportable or (2) otherwise consistent with the definition of Pro Forma Adjustment; (II) when calculating the Consolidated First Lien Net Leverage Ratio for purposes of the Applicable Cash Percentage, the events that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect except to the extent set forth in the definition of Consolidated First Lien Net Leverage Ratio; and (III) in determining Pro Forma Compliance with the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, the Fixed Charge Coverage Ratio or any other incurrence test (other than in respect of Section 7.09), in connection with the incurrence (including by assumption or guarantee) of any Indebtedness, (x) the incurrence or repayment of any Indebtedness in respect of any revolving credit facility included in the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, the Fixed Charge Coverage Ratio or such other incurrence test calculation immediately prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded, (y) the cash proceeds of any Indebtedness shall be excluded from “net” Indebtedness in determining whether such Indebtedness can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (z) with respect to any delayed draw term commitments, the Borrower may elect to test the relevant incurrence test either at the time such commitments are established (assuming such commitments are fully drawn) or at the time loans incurred under such commitments are incurred; provided, further, that with respect to any incurrence of Indebtedness permitted by the provisions of this Agreement in reliance on the pro forma calculation of the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio, the Fixed Charge Coverage Ratio or such other incurrence test calculation, any Indebtedness being incurred (or expected to be incurred) substantially simultaneously or contemporaneously with the incurrence of any such Indebtedness in reliance on any “basket” set forth in this Agreement (including any “baskets” measured as a percentage of Total Assets or LTM Consolidated EBITDA) including any revolving credit facility shall be disregarded. In the event any fixed “baskets” are intended to be utilized together with any incurrence-based “baskets” in a single transaction or series of related transactions (including utilization of the Base Incremental Amount and the Incurrence-Based Incremental Amount), (x) compliance with or satisfaction of any applicable financial ratios or tests for the portion of Indebtedness or any other applicable transaction or action to be incurred under any incurrence-based “baskets” shall first be calculated without giving effect to amounts being utilized pursuant to any fixed “baskets”, but giving full pro forma effect to all applicable and related transactions (including, subject to the foregoing with respect to fixed “baskets”, any incurrence and repayments of Indebtedness) and all other permitted Pro Forma Adjustments (except that the incurrence of any Indebtedness under any revolving credit facility prior to or in connection therewith shall be disregarded), and (y) thereafter, incurrence of the portion of such Indebtedness or other applicable transaction or action to be incurred under any fixed “baskets” shall be calculated.

 

 

“Pro Forma Financial Statements” means a pro forma unaudited consolidated balance sheet and related pro forma unaudited consolidated statement of income of the Parent as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended prior to the Closing Date for which financial statements are included in the Historical Financial Statements, prepared in good faith after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

 

“Pro Rata Share” means, with respect to each Lender, at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments and, if applicable and without duplication, Loans of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities and, if applicable and without duplication, Loans under the applicable Facility or Facilities at such time.

 

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

 

 

“Projections” has the meaning set forth in Section 6.22.

 

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“Public Lender” has the meaning set forth in Section 6.02(e).

 

“QFC” has the meaning specified in Section 10.25(b).

 

“QFC Credit Support” has the meaning specified in Section 10.25.

 

“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

“Qualified IPO” means the issuance by the Borrower or any direct or indirect parent of the Borrower of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act (whether alone or in connection with a secondary public offering).

 

“Qualified Operator” means any Person that has substantial experience as an operator of a business primarily conducting Midstream Activities.

 

“Qualifying Lender” has the meaning set forth in Section 2.04(a)(iv)(D)(3).

 

“Quarterly Payment Date” means the last Business Day of each March, June, September and December, commencing with the first full fiscal quarter after the Closing Date.

 

“Real Property” means, at any time of determination, any fee ownership or leasehold interest of any Loan party in or to any real property, together with any easements or rights-of-way of any Loan Party.

 

“Real Property Collateral Agent” means U.S. Bank Trust Company, National Association, in its capacity as real property collateral agent under the Pari Passu Intercreditor Agreement or any other Collateral Documents, or any successor real property collateral agent appointed by the Collateral Agent in accordance with Section 9.01.

 

“Refinanced Debt” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness”.

 

“Refinancing” has the meaning set forth in the introductory paragraph to this Agreement.

 

“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrower, (b) the Administrative Agent, (c) each Additional Refinancing Lender and (d) each Lender that agrees to provide any portion of Refinancing Term Loans incurred pursuant thereto, in accordance with Section 2.14.

 

 

“Refinancing Series” means all Refinancing Term Loans, Refinancing Term Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans or Refinancing Term Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same All-In Yield and, in the case of Refinancing Term Loans or Refinancing Term Commitments, amortization schedule.

 

“Refinancing Term Commitments” means one or more Classes of Commitments hereunder that are established to fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.

 

“Refinancing Term Loans” means one or more Classes of Term Loans hereunder that result from a Refinancing Amendment.

 

“Register” has the meaning set forth in Section 10.07(d).

 

“Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same guarantees) issued in a dollar-for- dollar exchange therefor pursuant to an exchange offer registered with the SEC.

 

“Release” means any spilling, leaking, leaching, pumping, pouring, emitting, escaping, emptying, seeping, discharging, injecting, dumping, depositing, migrating or disposing into or through the Environment.

 

“Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Pension Plan, other than events for which the thirty (30) day notice period has been waived.

 

“Repricing Transaction” means the prepayment, refinancing, substitution or replacement of all or a portion of the Initial Term Loans with the incurrence by the Borrower or any Restricted Subsidiary of any secured term loan financing having an All-In Yield that is less than the All-In Yield (as determined by the Administrative Agent on the same basis) of such Initial Term Loans so repaid, refinanced, substituted or replaced, including without limitation, as may be effected through any amendment, amendment or restatement or other modifications to this Agreement relating to the interest rate for, or weighted average yield of, such Initial Term Loans, in each case the primary purpose of which was to reduce such All-In Yield and other than in connection with (x) a Change of Control, (y) a Qualified IPO or (z) a Transformative Acquisition.

 

“Required Class Lenders” means, with respect to any Class on any date of determination, Lenders holding more than 50.00% of the sum of (i) the outstanding Loans under such Class and (ii) the aggregate unused Commitments under such Facility; provided that the unused Commitments of, and the portion of the outstanding Loans under such Class held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Class Lenders.

 

 

“Required Lenders” means, as of any date of determination, Lenders holding more than 50.00% of the sum of the (a) Total Outstandings and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

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

 

“Responsible Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person (or, with respect to the Parent, so long as it remains a partnership, the General Partner). Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

“Restricted Cash” means cash and Cash Equivalents that are contractually restricted from being distributed to the Borrower or that is subject to any Lien, other than the Liens created by the Loan Documents, nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), 7.01(k)(i), 7.01(k)(iii), 7.01(m), 7.01(p), 7.01(q), clauses (i) and (ii) of Section 7.01(r), Section 7.01(y), Section 7.01(cc) (only to the extent the Obligations are secured by such cash and Cash Equivalents), Section 7.01(dd) (only to the extent the Obligations are secured by such cash and Cash Equivalents) and Section 7.01(ee) (only to the extent the Obligations are secured by such cash and Cash Equivalents).

 

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Parent or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Parent’s or a Restricted Subsidiary’s stockholders, partners or members (or the equivalent Persons thereof).

 

“Restricted Payment Conditions” means, with respect to transactions pursuant to Section 7.02(x), 7.06(c), or 7.10(a)(v), the requirements that (a) no Event of Default shall have occurred and be continuing and (b) after giving effect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with a Consolidated Total Net Leverage Ratio of (i) with respect to transactions pursuant to Section 7.06(c) or 7.10(a)(v), equal to or less than 4.00:1.00 and (ii) with respect to transactions pursuant to Section 7.02(x), equal to or less than 4.00:1.00.

 

 

“Restricted Subsidiary” means any Subsidiary of the Parent other than an Unrestricted Subsidiary.

 

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

 

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

 

“Risk Management Policy” means policies, operating procedures and limits of the Parent and its Subsidiaries designed to minimize the firm’s financial exposure to various risks as noted in the policies attached as Schedule 1.01C as approved by the board of directors (or other equivalent governing body) of the Parent, and as set forth on Schedule 1.01C as modified from time to time.

 

“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.

 

“Same Day Funds” means immediately available funds.

 

“Sanctioned Country” means at any time, a country or territory (or government of a country or territory or an agency thereof), an organization controlled by any of the foregoing or person resident of a country, region or territory which, in each case, is itself the subject or target of any Sanctions (as of the Closing Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea, Zaporizhzia and Kherson Regions of Ukraine, Cuba (only with respect to a Loan Party organized under the laws of the United States or any state thereof), Iran, North Korea, and Syria).

 

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

 

“Sanction(s)” means any international economic sanction administered or enforced by the United States government (including without limitation, OFAC), the United Nations Security Council, the federal government of Canada, the European Union or His Majesty’s Treasury.

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

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

 

 

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

 

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

 

“Secured Notes Documents” means, collectively, the Secured Notes Indenture and the Secured Notes issued pursuant thereto, the Crossing Liens Intercreditor Agreement, the Pari Passu Intercreditor Agreement and the “Security Documents” (as defined in the Secured Notes Indenture).

 

“Secured Notes Indenture” means the Indenture, dated as of February 2, 2024, among U.S. Bank Trust Company, National Association as trustee, the Borrower, NGL Energy Finance Corp. and each of the guarantors party thereto, pursuant to which the Borrower and NGL Energy Finance Corp. issued the Secured 2029 Notes and the Secured 2032 Notes, as amended, restated, amended and restated, supplemented or otherwise modified from time to time to the extent such amendment, restatement, amendment and restatement, supplement or modification is permitted hereunder.

 

“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Real Property Collateral Agent, the Lenders, the Supplemental Agents and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 9.02.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Security Agreement” means the Term Loan Pledge and Security Agreement substantially in the form of Exhibit E-1, dated as of the Closing Date, among the Parent, the Borrower, certain Subsidiaries of the Borrower and the Collateral Agent.

 

“SOFR” means, with respect to any U.S. Government Securities Business Day, a rate per annum equal to the secured overnight financing rate for such U.S. Government Securities Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding U.S. Government Securities Business Day.

 

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

 

“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.

 

“SOFR Loan” means a Loan that bears interest at a rate based on Daily Simple SOFR or Term SOFR, other than, in each case, pursuant to clause (c) of the definition of “Base Rate”.

 

 

“SOFR Rate Day” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.

 

“Solicited Discount Proration” has the meaning set forth in Section 2.04(a)(iv)(D).

 

“Solicited Discounted Prepayment Amount” has the meaning set forth in Section 2.04(a)(iv)(D) .

 

“Solicited Discounted Prepayment Notice” means a written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to Section 2.04(a)(iv)(D) substantially in the form of Exhibit J-6.

 

“Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Lender, substantially in the form of Exhibit J-7, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.

 

“Solicited Discounted Prepayment Response Date” has the meaning set forth in Section 2.04(a)(iv)(D).

 

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets of such Person and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of such Person and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such Person and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured, and (d) such Person and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.

 

“SPC” has the meaning set forth in Section 10.07(i).

 

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

 

“Specified Asset Sale RP Amount” means the Net Proceeds received by the Parent, the Borrower or any other Restricted Subsidiary from any Specified Asset Sale to the extent used within 365 days of the date of the applicable Specified Asset Sale, by the Parent and/or its Restricted Subsidiaries to make payments on the Existing Preferred Units (which payments may include all preferred-related payments, including liquidation preference, stated value, redemption amounts, accretion amounts and distribution amounts (including any penalty or default amounts), but shall not include any payments on Class B Preferred Units and Class C Preferred Units that are not required in order to permit the redemption, repurchase or other acquisition or retirement of, or any other payments in respect of, in whole or in part, the Class D Preferred Units) so long as (A) no Default or Event of Default shall have occurred and then be continuing at the time of signing the definitive documentation relating to such Disposition, (B) at the time a Restricted Payment is made pursuant to Section 7.06(j), the Consolidated First Lien Net Leverage Ratio shall not exceed 4.50:1.00, determined on a Pro Forma Basis for such Disposition (including a pro forma application of the Net Proceeds therefrom), as if such Disposition and the use of proceeds therefrom had occurred at the beginning of the applicable Test Period and (C) the assets and/or businesses comprising each Specified Asset Sale do not account for, or represent, more than 2.50% of LTM Consolidated EBITDA on an aggregate basis.

 

 

“Specified Discount” has the meaning set forth in Section 2.04(a)(iv)(B)(1).

 

“Specified Discount Prepayment Amount” has the meaning set forth in Section 2.04(a)(iv)(B)(1).

 

“Specified Discount Prepayment Notice” means a written notice of the Borrower of a Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.04(a)(iv)(B) substantially in the form of Exhibit J-8.

 

“Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit J-9, to a Specified Discount Prepayment Notice.

 

“Specified Discount Prepayment Response Date” has the meaning set forth in Section 2.04(a)(iv)(B)(1).

 

“Specified Discount Proration” has the meaning set forth in Section 2.04(a)(iv)(B)(3).

 

“Specified Equity Contribution” means any cash and Cash Equivalent proceeds received by the Borrower since the Closing Date from (a) the issuance or sale of its Qualified Equity Interests (other than to a Subsidiary of the Borrower or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower) and/or (b) contributions to its common equity with the cash and Cash Equivalent proceeds from the issuance and sale by Parent of its Qualified Equity Interests (other than to a Subsidiary of Parent or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Parent) or a contribution to its common equity.

 

“Specified Representations” means those representations and warranties of the Borrower and the Guarantors in Sections 5.01(a) (solely as to the Borrower and the Guarantors), 5.01(b)(ii), 5.02(a), 5.02(b)(i), 5.04 (solely with respect to the first sentence thereof), 5.12, 5.16, 5.17 (except for clauses (a)(i) and (b), and solely with respect to the use of the proceeds) and 5.18 (with respect to the creation, validity and perfection of the security interest in the Collateral).

 

“Specified Transaction” means any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, Subsidiary designation or Incremental Term Loan in respect of which the terms of this Agreement require any test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”.

 

 

“Submitted Amount” has the meaning set forth in Section 2.04(a)(iv)(C).

 

“Submitted Discount” has the meaning set forth in Section 2.04(a)(iv)(C).

 

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company, unlimited liability company or other business entity of which (a) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned by such Person, or (b) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

 

“Subsidiary Guarantor” means each Guarantor other than the Parent.

 

“Successor Company” has the meaning set forth in Section 7.04(d).

 

“Supplemental Agent” has the meaning set forth in Section 9.13(a) and “Supplemental Agents” shall have the corresponding meaning.

 

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

 

“Swap Obligation” means, with respect to any Person, any obligation of such Person to pay or perform under any Swap Contract.

 

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

 

“Taxes” has the meaning set forth in Section 3.01(a).

 

“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01.

 

“Term Lender” means a Lender with an Initial Term Commitment or an outstanding Term Loan.

 

“Term Loan Extension Request” has the meaning set forth in Section 2.15(a).

 

“Term Loan Extension Series” has the meaning provided in Section 2.15(a).

 

“Term Loan Increase” has the meaning provided in Section 2.13(a).

 

“Term SOFR” means,

 

(a)            for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

 

(b)            for any calculation with respect to an Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;

 

provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.

 

 

“Term SOFR Administrator” means the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

 

“Term SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR other than pursuant to clause (c) of the definition of “Base Rate”.

 

“Term SOFR Reference Rate” means the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.

 

“Test Period” means, for any date of determination under this Agreement, (x) with respect to Section 7.09 and the definition of “Applicable Cash Percentage”, the latest four (4) consecutive fiscal quarters of the Parent (taken as one accounting period) for which financial statements are required to have been delivered pursuant to Section 4.01(e)(i) or Section 6.01(a) or (b), as applicable, and (y) with respect to any other determination, the latest four (4) consecutive fiscal quarters of the Parent (taken as one accounting period) on or prior to such date for which financial statements are internally available; provided that, notwithstanding the foregoing, with respect to any calculation of Debt Service or Fixed Charges for the first three (3) full fiscal quarters ending after the Closing Date, “Test Period” shall mean: (a) for the fiscal quarter June 30, 2024, the period of one (1) fiscal quarter ending on such date; (b) for the fiscal quarter ending September 30, 2024, the period of two (2) fiscal quarters ending on such date; and (c) for the fiscal quarter ending December 31, 2024, the period of three (3) fiscal quarters ending on such date.

 

“Threshold Amount” means $100,000,000.

 

“Total Assets” of any Person means, as of any date, the amount that, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries, as of the end of the most recently ended fiscal quarter for which internal financial statements are available; provided, however, that such amount shall be adjusted to give pro forma effect to any subsequent Investment, acquisition or disposition of any assets or Person (regardless of whether effected as a merger, purchase or sale of Equity Interests, asset acquisition or disposition or other form of acquisition or disposition) by such Person or any of its Restricted Subsidiaries, including any such Investment, acquisition or disposition that is pending and giving rise to the need to determine the amount of Total Assets, as if such transaction had occurred immediately prior to the end of such most recently ended fiscal quarter.

 

“Total Outstandings” means the aggregate Outstanding Amount of all Loans.

 

“Transaction Expenses” means any fees, expenses or other transaction costs incurred, paid or otherwise payable or borne by the Parent or any of its (or their) Subsidiaries in connection with the Transactions (including expenses in connection with hedging transactions related to the Transactions and any OID or upfront fees and Attorney Costs), this Agreement, the other Loan Documents, the Secured Notes Documents, the ABL Facility Documents and the transactions contemplated hereby and thereby.

 

 

“Transactions” means, collectively, (a) the Borrowing of Loans on the Closing Date and the execution and delivery of this Agreement and the other Loan Documents contemplated hereby, (b) the execution and delivery of the ABL Facility Documents contemplated hereby, (c) the execution and delivery of the Secured Notes Documents contemplated hereby and the issuance of the Secured Notes, (d) the Refinancing, and (e) the payment of Transaction Expenses.

 

“Transformative Acquisition” means any acquisition or investment by the Parent or any Restricted Subsidiary that either (a) is not permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or Investment, would not provide the Parent and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by the Borrower acting in good faith.

 

“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Term SOFR Loan.

 

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

 

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

 

“Unaudited Financial Statements” means the unaudited consolidated balance sheets and related statements of income and cash flow for the Parent and its consolidated Restricted Subsidiaries for each fiscal quarter ended after March 31, 2023 and at least 60 days prior to the Closing Date.

 

“Uniform Commercial Code” or “UCC” means (a) the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or (b) the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral. References in this Agreement and the other Loan Documents to specific sections of the Uniform Commercial Code are based on the Uniform Commercial Code as in effect in the State of New York on the date hereof. In the event such Uniform Commercial Code is amended or another Uniform Commercial Code described in clause (b) is applicable, such section reference shall be deemed to be references to the comparable section in such amended or other Uniform Commercial Code.

 

“United States” or “U.S.” means the United States of America.

 

“Unrestricted Subsidiary” means (a) any Subsidiary of the Parent designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the Closing Date and (b) any Subsidiary of an Unrestricted Subsidiary.

 

 

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

 

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

 

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(C).

 

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 10756, as amended or modified from time to time.

 

“Voting Interest” of any specified Person as of any date means the Equity Interests of such Person entitling the holders thereof (whether at all times or only so long as no senior class of Equity Interest has voting power by reason of any contingency) to vote in the election of members of the board of directors of such Person; provided that with respect to a limited partnership or other entity which does not have a board of directors, Voting Interest means the Equity Interest of the general partner of such limited partnership or other business entity with the ultimate authority to manage the business and operations of such Person.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness on any date of determination, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining scheduled installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness; provided that, for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being extended, replaced, refunded, refinanced, renewed or defeased, the effect of any amortization or prepayment prior to the date of the applicable extension, replacement, refunding, refinancing, renewal or defeasance shall be disregarded.

 

“wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.

 

“Withholding Agent” means the Borrower, any Guarantor under any Loan Document and the Administrative Agent.

 

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

 

 

“Yield Differential” has the meaning set forth in Section 2.13(e)(iii).

 

Section 1.02      Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)            The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)            The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(c)            Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

(d)            The words “include”, “includes” and “including” are, in each case by way of example and not limitation.

 

(e)            The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(f)            In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

 

(g)            Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(h)            Each of the representations and warranties of the Loan Parties contained in this Agreement (and all corresponding definitions) to be made on the Closing Date are made on the Closing Date immediately after giving effect to the Transactions, unless the context otherwise requires.

 

(i)            All references to “knowledge” of any Loan Party or a Restricted Subsidiary of the Parent means the actual knowledge of a Responsible Officer.

 

(j)            The words “asset” and “property” shall be construed as having 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.

 

 

(k)            All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.

 

(l)            Notwithstanding anything in this Agreement or any Loan Document to the contrary, when (i) calculating any applicable ratio or LTM Consolidated EBITDA in connection with the incurrence of Indebtedness, the issuance of Disqualified Equity Interests, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or the repayment of Indebtedness or Disqualified Equity Interests, (ii) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, (iii) determining compliance with any provision of this Agreement which requires compliance with any representations and warranties set forth herein or (iv) determining the satisfaction of all other conditions precedent to the incurrence of Indebtedness, the issuance of Disqualified Equity Interests, the creation of Liens, the making of any Disposition, the making of an Investment, the making of a Restricted Payment, the designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or the repayment of Indebtedness or Disqualified Equity Interests, in each case in connection with a Limited Condition Transaction, the date of determination of such ratio or other provisions, determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the satisfaction of any other conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election,” which LCT Election may be in respect of one or more of clauses (i), (ii), (iii) and (iv) above), be deemed to be the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Transaction are entered into (the “LCT Test Date”). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence or issuance of Indebtedness or Disqualified Equity Interests and the use of proceeds thereof), with such ratios and other provisions calculated as if such Limited Condition Transaction or other transactions had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless a Payment or Bankruptcy Default shall be continuing on the date such Limited Condition Transaction is consummated; provided that any ratio-based Restricted Payments basket will be tested both with and without giving Pro Forma Effect to the Limited Condition Transaction and other transactions in connection therewith. For the avoidance of doubt, (1) if, following the LCT Test Date, any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in LTM Consolidated EBITDA or other components of such ratio) or other provisions at or prior to the consummation of the relevant Limited Condition Transactions, such ratios and other provisions will not be deemed to have been exceeded or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (2) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction or related transactions, unless, other than if a Payment or Bankruptcy Default shall be continuing on such date, the Borrower elects, in its sole discretion, to test such ratios and compliance with such conditions on the date such Limited Condition Transaction or related transactions is consummated. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision hereunder (other than actual compliance with the Financial Performance Covenant) on or following the relevant LCT Test Date and prior to the earliest of the date on which such Limited Condition Transaction is consummated, the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction or the date the Borrower makes an election pursuant to clause (2) of the immediately preceding sentence, any such ratio, basket or compliance with any other provision hereunder shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence or issuance of Indebtedness or Disqualified Equity Interests, and the use of proceeds thereof) had been consummated on the LCT Test Date. Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Parent or its Restricted Subsidiaries (x) incurs Indebtedness or issues Disqualified Equity Interests, creates Liens, makes Dispositions, makes Investments, makes Restricted Payments, designate any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness or Disqualified Equity Interests in connection with any Limited Condition Transaction under a ratio-based basket and (y) incurs Indebtedness, issues Disqualified Equity Interests, creates Liens, makes Dispositions, Investments or Restricted Payments, designates any as a Restricted Subsidiary or an Unrestricted Subsidiary or repays any Indebtedness or Disqualified Equity Interests in connection with such Limited Condition Transaction under a non-ratio- based basket, then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction.

 

 

(m)            For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that NGL Energy or any Restricted Subsidiary may incur hereunder shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The principal amount of any Permitted Refinancing incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing is denominated that is in effect on the date of such refinancing.

 

 

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

 

Section 1.03      Accounting Terms.

 

(a)            All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

 

(b)            Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Debt Service Coverage Ratio, Consolidated First Lien Net Leverage Ratio, Consolidated Secured Net Leverage Ratio, Consolidated Total Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.

 

Section 1.04      Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

 

Section 1.05      References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted, or not otherwise prohibited, by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

Section 1.06      Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

 

Section 1.07      Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

 

Section 1.08      Negative Covenant Compliance. For purposes of determining whether the Parent, the Borrower and the other Restricted Subsidiaries comply with any exception to Article VII (other than the Financial Performance Covenant) where compliance with any such exception is based on a financial ratio or metric being satisfied as of a particular point in time, it is understood that (a) compliance shall be measured at the time when the relevant event is undertaken, as such financial ratios and metrics are intended to be “incurrence” tests and not “maintenance” tests and (b) correspondingly, any such ratio and metric shall only prohibit the Parent, the Borrower and the other Restricted Subsidiaries from creating, incurring, assuming, suffering to exist or making, as the case may be, any new, for example, Liens, Indebtedness or Investments, but shall not result in any previously permitted, for example, Liens, Indebtedness or Investments ceasing to be permitted hereunder.

 

ARTICLE II
THE COMMITMENTS AND BORROWINGS

 

Section 2.01      The Initial Term Loans. Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make to the Borrower on the Closing Date term loans denominated in Dollars in an aggregate amount not to exceed the amount of such Lender’s Initial Term Commitment. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Initial Term Loans may be Base Rate Loans or Term SOFR Loans, as further provided herein.

 

Section 2.02      Borrowings, Conversions and Continuations of Loans.

 

(a)            Each Term Borrowing, each conversion of Term Loans from one Type to the other, and each continuation of Term SOFR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which shall be given by a written Committed Loan Notice. Each such notice must be received by the Administrative Agent not later than (i) 1:00 p.m. New York City time three (3) Business Days prior to the requested date of any Borrowing or continuation of Term SOFR Loans or any conversion of Base Rate Loans to Term SOFR Loans, and (ii) 2:00 p.m. New York City time one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans; provided that the notice referred to in subclause (i) above may be delivered no later than one (1) Business Day prior to the Closing Date in the case of the Initial Term Borrowing. Each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a minimum principal amount of $500,000, or a whole multiple of $100,000, in excess thereof. Except as provided in the last sentence of this paragraph, each Borrowing of or conversion to Base Rate Loans shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Term Borrowing (and, if applicable, the Class of such Borrowing), a conversion of Term Loans from one Type to the other, or a continuation of Term SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans shall be made as, converted to, or continued as, Term SOFR Loans with an Interest Period of one (1) month. Any such automatic conversion to, or continuation as, Term SOFR Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.

 

 

(b)            Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share or other applicable share provided for under this Agreement of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Term SOFR Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 3:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Except as otherwise provided in the following sentence, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

 

Except as otherwise provided herein, a Term SOFR Loan may be continued or converted only on the last day of an Interest Period for such Term SOFR Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the existence of a Payment or Bankruptcy Default, the Administrative Agent shall, at the direction of the Required Lenders, require that no Loans may be converted to or continued as Term SOFR Loans.

 

(c)            The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Term SOFR Loans upon determination of such interest rate. The determination of Term SOFR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the announcement of such change.

 

(d)            After giving effect to all Term Borrowings, all conversions of Term Loans, from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect.

 

(e)            The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing or make any other payment obligation under the Loan Documents.

 

 

Section 2.03      [Reserved].

 

Section 2.04      Prepayments.

 

(a)            Optional.

 

(i)            The Borrower may, upon, subject to clause (ii) below, irrevocable written notice to the Administrative Agent by the Borrower, at any time or from time to time voluntarily prepay Loans of any Class in whole or in part without premium or penalty (subject to Section 2.04(a)(ii)); provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m. New York City time (A) three (3) Business Days prior to any date of prepayment of Term SOFR Loans and (B) one (1) Business Day prior to any on the date of prepayment of Base Rate Loans; (2) any prepayment of Term SOFR Loans shall be in a minimum principal amount of $500,000, or a whole multiple of $500,000 in excess thereof; and (3) any prepayment of Base Rate Loans shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans and the order of Borrowing(s) to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share or other applicable share provided for under this Agreement of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Term SOFR Loan shall be accompanied by all accrued interest thereon to such date, together with any additional amounts required pursuant to Section 3.05. In the case of each prepayment of the Loans pursuant to this Section 2.04(a), the Borrower may in its sole discretion select the Borrowing or Borrowings (and the order of maturity of principal payments) to be repaid, and such payment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares or other applicable share as provided for under this Agreement.

 

(ii)            Subject to the payment of any amounts owing pursuant to Section 3.05, the Borrower may rescind any notice of prepayment under Section 2.04(a)(i) if such prepayment would have resulted from a refinancing of all or a portion of the applicable Facility, which refinancing shall not be consummated or shall otherwise be delayed. Each prepayment of any Class of Term Loans pursuant to this Section 2.04(a) shall be applied in an order of priority to repayments thereof required pursuant to Section 2.06(a) as directed by the Borrower (which may be applied to any specific Class, tranche or facility of Indebtedness) and, absent such direction, shall be applied in direct order of maturity to repayments thereof required pursuant to Section 2.06(a).

 

(iii)            In the event that, on or prior to the date that is six (6) months following the Closing Date, the Borrower (x) prepays, refinances, substitutes or replaces any Initial Term Loans pursuant to a Repricing Transaction, or (y) effects any amendment, amendment and restatement or other modification of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (1) in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Initial Term Loans so prepaid, refinanced, substituted or replaced and (2) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the applicable Initial Term Loans amended or otherwise modified pursuant to such amendment. If, on or prior to the six (6)-month anniversary of the Closing Date, any Lender that is a Non-Consenting Lender and is replaced pursuant to Section 3.07(a) in connection with any amendment, amendment and restatement or other modification of this Agreement resulting in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to Section 3.07(a)) shall receive its Pro Rata Share (as determined immediately prior to it being so replaced) of the prepayment premium or fee described in the preceding sentence. Such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.

 

 

(iv)            Notwithstanding anything in any Loan Document to the contrary, so long as no Default or Event of Default has occurred and is continuing, any Company Party may prepay the outstanding Term Loans (which shall be automatically and permanently canceled immediately upon such prepayment) (or the Parent, the Borrower or any of its Subsidiaries may purchase such outstanding Term Loans and immediately cancel them) on the following basis:

 

(A)            Any Company Party shall have the right to make a voluntary prepayment of Term Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “Discounted Term Loan Prepayment”), in each case made in accordance with this Section 2.04(a)(iv); provided that no Company Party shall initiate any action under this Section 2.04(a)(iv) in order to make a Discounted Term Loan Prepayment unless (I) at least ten (10) Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by a Company Party on the applicable Discounted Prepayment Effective Date; or (II) at least three (3) Business Days shall have passed since the date the Company Party was notified that no Term Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of any Company Party’s election not to accept any Solicited Discounted Prepayment Offers.

 

(B)            (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time offer to make a Discounted Term Loan Prepayment by providing the Auction Agent with five (5) Business Days’ notice in the form of a Specified Discount Prepayment Notice (or such shorter period as agreed to by the Auction Agent); provided that (I) any such offer shall be made available, at the sole discretion of the Company Party, to (x) each Term Lender and/or (y) each Term Lender with respect to any Class of Term Loans on an individual Class basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable Class, the Class or Classes of Term Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Term Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different Classes of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.04(a)(iv)(B)), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than, in the case of Term SOFR Loans, $1,000,000 and whole increments of $1,000,000 in excess thereof and, in the case of Base Rate Loans, $1,000,000 and whole increments of $250,000 in excess thereof, and (IV) unless rescinded, each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. (New York City time), on the third Business Day after the date of delivery of such notice to such Lenders (or such later date as specified therein) (the “Specified Discount Prepayment Response Date”).

 

 

(2)            Each Term Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Term Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount and the Classes of such Lender’s Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Term Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount Prepayment.

 

(3)            If there is at least one Discount Prepayment Accepting Lender, the relevant Company Party will make a prepayment of outstanding Term Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender on the Discounted Prepayment Effective Date in accordance with the respective outstanding amount and Classes of Term Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to subsection (2) above; provided that, if the aggregate principal amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent with the consent of such Company Party (and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (I) the relevant Company Party of the respective Term Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Term Loan Prepayment and the Classes to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the Classes of Term Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, Class and Type of Term Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Company Party and such Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).

 

 

(C)            (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Discount Range Prepayment Notice (or such shorter period as agreed by the Auction Agent); provided that (I) any such solicitation shall be extended, at the sole discretion of such Company Party, to (x) each Term Lender and/or (y) each Term Lender with respect to any Class of Term Loans on an individual Class basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Term Loans (the “Discount Range Prepayment Amount”), the Class or Classes of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Term Loans with respect to each relevant Class of Term Loans willing to be prepaid by such Company Party (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different Classes of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.04(a)(iv)(C)), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than, in the case of Term SOFR Loans, $1,000,000 and whole increments of $1,000,000 in excess thereof and, in the case of Base Rate Loans, $1,000,000 and whole increments of $250,000 in excess thereof, and (IV) unless rescinded, each such solicitation by a Company Party shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., on the third Business Day after the date of delivery of such notice to such Lenders (or such later date as specified therein) (the “Discount Range Prepayment Response Date”). Each Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Term Loans of the applicable Class or Classes and the maximum aggregate principal amount and Classes of such Lender’s Term Loans (the “Submitted Amount”) such Term Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.

 

 

(2)            The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine with the consent of such Company Party (and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The relevant Company Party agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by the Auction Agent within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Term Lender, a “Participating Lender”).

 

(3)            If there is at least one Participating Lender, the relevant Company Party will prepay the respective outstanding Term Loans of each Participating Lender on the Discounted Prepayment Effective Date in the aggregate principal amount and of the Classes specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent with the consent of such Company Party (and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) the relevant Company Party of the respective Term Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Term Loan Prepayment and the Classes to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and Classes of Term Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and Classes of such Term Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Company Party and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).

 

 

(D)            (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Solicited Discounted Prepayment Notice (or such shorter period as agreed by the Auction Agent); provided that (I) any such solicitation shall be extended, at the sole discretion of such Company Party, to (x) each Term Lender and/or (y) each Lender with respect to any Class of Term Loans on an individual Class basis, (II) any such notice shall specify the maximum aggregate amount of the Term Loans (the “Solicited Discounted Prepayment Amount”) and the Class or Classes of Term Loans the applicable Company Party is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different Classes of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.04(a)(iv)(D)), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than, in the case of Term SOFR Loans, $1,000,000 and whole increments of $1,000,000 in excess thereof and, in the case of Base Rate Loans, $1,000,000 and whole increments of $250,000 in excess thereof, and (IV) unless rescinded, each such solicitation by a Company Party shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. (New York City time), on the third Business Day after the date of delivery of such notice to such Term Lenders (or such later as specified therein) (the “Solicited Discounted Prepayment Response Date”). Each Term Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date and (z) specify both a discount to par (the “Offered Discount”) at which such Term Lender is willing to allow prepayment of its then outstanding Term Loan and the maximum aggregate principal amount and Classes of such Term Loans (the “Offered Amount”) such Term Lender is willing to have prepaid at the Offered Discount. Any Term Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount.

 

 

(2)            The Auction Agent shall promptly provide the relevant Company Party with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. Such Company Party shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Company Party (the “Acceptable Discount”), if any. If the Company Party elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by such Company Party from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance Date”), the Company Party shall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Company Party by the Acceptance Date, such Company Party shall be deemed to have rejected all Solicited Discounted Prepayment Offers.

 

 

(3)            Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Auction Agent will determine with the consent of such Company Party (and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the Classes of Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the relevant Company Party at the Acceptable Discount in accordance with this Section 2.04(a)(iv)(D). If the Company Party elects to accept any Acceptable Discount, then the Company Party agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Term Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The Company Party will prepay outstanding Term Loans pursuant to this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the Classes specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent with the consent of such Company Party (and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the relevant Company Party of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Term Loans and the Classes to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the Classes of such Term Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to such Company Party and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to such Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).

 

 

(E)            In connection with any Discounted Term Loan Prepayment, the Company Parties and the Term Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Term Loan Prepayment, the payment of customary and documented fees and out-of-pocket expenses from a Company Party in connection therewith.

 

(F)            If any Term Loan is prepaid in accordance with paragraphs (B) through (D) above, a Company Party shall prepay such Term Loans on the Discounted Prepayment Effective Date. The relevant Company Party shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available funds not later than 11:00 a.m. (New York City time), on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining scheduled installments of principal of the relevant Class of Term Loans pursuant to Section 2.06(a) on a pro-rata basis across such installments. The Term Loans so prepaid shall be, as set forth in Section 2.04(a)(i), accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Section 2.04(a)(iv) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall be applied to the relevant Term Loans of such Lenders in accordance with their respective Pro Rata Share. The aggregate principal amount of the Classes and installments of the relevant Term Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the Classes of Term Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Term Loan Prepayment. In connection with each prepayment pursuant to this Section 2.04(a)(iv), the relevant Company Party shall waive any right to bring any action against the Administrative Agent, in its capacity as such, in connection with any such Discounted Term Loan Prepayment. Each Lender participating in any prepayment described in this Section 2.04(a)(iv) acknowledges and agrees that in connection therewith, (1) the Borrower or any Company Party then may have, and later may come into possession of, information regarding the Parent, the Borrower and their respective affiliates not known to such Lender and that may be material to a decision by such Lender to participate in such prepayment (including material non-public information) (“Excluded Information”), (2) such Lender has independently and, without reliance on the Parent, the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, made its own analysis and determination to participate in such prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information, (3) none of the Company Parties or any of their respective Affiliates shall be required to make any representation that it is not in possession of Excluded Information and all parties to the relevant transaction shall render customary “big boy” disclaimer letters, and (4) none of the Parent, the Borrower, its Subsidiaries, the Administrative Agent or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Parent, the Borrower, its Subsidiaries, the Administrative Agent and their respective Affiliates, under applicable Laws or otherwise, with respect to the nondisclosure of the Excluded Information.

 

 

 

(G)           To the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Section 2.04(a)(iv), established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.

 

(H)           Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.04(a)(iv), each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.

 

(I)            Each of the Company Parties and the Term Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this Section 2.04(a)(iv) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in this Section 2.04(a)(iv) as well as activities of the Auction Agent.

 

(J)            Each Company Party shall have the right, by written notice to the Auction Agent, to revoke or modify its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date, Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date, as applicable (and if such offer is revoked pursuant to the preceding clauses, any failure by such Company Party to make any prepayment to a Lender, as applicable, pursuant to this Section 2.04(a)(iv) shall not constitute a Default or Event of Default under Section 8.01 or otherwise).

 

 

(b)           Mandatory.

 

(i)            Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) or (b) (commencing with the first full fiscal quarter completed after the Closing Date) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), (the “ECF Date”), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) and (viii) below, an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable Cash Percentage of Excess Cash Flow, if any, for the fiscal quarter covered by such financial statements minus (B) the sum of (1) all voluntary prepayments, repurchases or redemptions of Term Loans made during such fiscal quarter or after quarter-end and prior to when such Excess Cash Flow prepayment is due (including, in the case of Term Loans prepaid pursuant to Section 2.04(a)(iv), the actual purchase price paid in cash pursuant thereto) (excluding prepayments, repurchases or redemptions to the extent funded with the proceeds of long-term funded indebtedness (other than revolving loans)), (2) all voluntary prepayments, repurchases or redemptions of loans under the ABL Facility during such fiscal quarter or after quarter-end and prior to when such Excess Cash Flow prepayment is due to the extent accompanied by a permanent reduction of the corresponding commitment, and (3) all voluntary prepayments, repurchases or redemptions of any Secured Notes, Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness or other Indebtedness (including other revolving credit facilities), in each case, secured on a pari passu basis with the Initial Term Loans, and, in the case of any of the foregoing, prepaid during such fiscal quarter or after quarter-end and prior to when such Excess Cash Flow prepayment is due (but, in the case of any voluntary prepayments, repurchases or redemptions in respect of any revolving credit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment) (excluding prepayments, repurchases or redemptions to the extent funded with the proceeds of long-term funded Indebtedness (other than revolving credit loans)), in the case of each of the immediately preceding clauses (1) through (3), without duplication of any deduction from Excess Cash Flow in any prior period; provided that prepayments pursuant to this Section 2.04(b)(i) shall only be required if the positive difference between clauses (A) and (B) above for such fiscal quarter exceeds $5,000,000 (and then such prepayment shall only be required in respect of such excess amount); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans pursuant to the terms of the documentation governing such Indebtedness (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Term Loans) with such Excess Cash Flow (such Indebtedness required to be offered to be so repurchased or required to be paid, “Other Applicable Indebtedness”), then the Borrower may apply such Excess Cash Flow on a pro rata basis (to the Term Loans and Other Applicable Indebtedness determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (a) the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(i) shall be reduced accordingly and (b) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.

 

 

(ii)            If the Parent, the Borrower or any Restricted Subsidiary receives Net Proceeds from any Disposition or any Casualty Event occurs which results in the realization or receipt by the Parent, the Borrower or any Restricted Subsidiary of Net Proceeds in excess of an aggregate amount of $50,000,000 in any fiscal year, subject to the reinvestment rights specified in the definition of “Net Proceeds”, the Borrower shall offer to prepay (or cause to be offered to be prepaid) in accordance with clause (b)(vi) and (viii) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Parent, the Borrower or any Restricted Subsidiary of such Net Proceeds, subject to clause (b)(ix) below, an aggregate principal amount of Term Loans in an amount equal to 100.00% of such Net Proceeds received; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to the ABL Facility or any Other Applicable Indebtedness, then the Borrower may (x) first apply such Net Proceeds to make any required prepayments under the ABL Facility and (y) then apply the remainder of such Net Proceeds on a pro rata basis to the Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the ABL Facility and any Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the ABL Facility and any Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this clause (b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided further that no such prepayment shall be required with respect to the Asset Sale RP Amount or the Specified Asset Sale RP Amount.

 

(iii)           If the Parent, the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03 (excluding Indebtedness incurred pursuant to Section 7.03(t))), the Borrower shall cause to be offered to be prepaid in accordance with clause (b)(vi) below an aggregate principal amount of Term Loans in an amount equal to 100.00% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Parent, the Borrower or such Restricted Subsidiary of such Net Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or prepay the ABL Facility or any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may (x) first apply such Net Proceeds to make any required prepayments under the ABL Facility and (y) then apply the remainder of such Net Proceeds on a pro rata basis to the Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the ABL Facility and any Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the ABL Facility and any Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.04(b)(iii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.

 

 

(iv)           [Reserved].

 

(v)           [Reserved]

 

(vi)          Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.04(b) shall be applied as between series, Classes or tranches of Term Loans on a pro rata basis, unless otherwise required by this Agreement or as directed by the Borrower to the extent not otherwise prohibited by this Agreement (provided that (1) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, (2) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans and (3) no prepayment of Term Loans may be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any related earlier maturing Classes); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iii) of this Section 2.04(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.06(a) in direct order of maturity (without premium or penalty except as expressly contemplated by Section 2.04(a)(iii)); and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.

 

(vii)         The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (ii) and (iii) of this Section 2.04(b) at least four (4) Business Days prior to the date of such prepayment (or such shorter time as the Administrative Agent may agree). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.

 

 

(viii)        Funding Losses, Etc. All prepayments under this Section 2.04 shall be made together with, in the case of any such prepayment of a Term SOFR Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Term SOFR Loan pursuant to Section 3.05.

 

(ix)           Term Opt-out of Prepayment. With respect to each prepayment of Term Loans required pursuant to Section 2.04(b)(i) or (ii), (A) the Borrower will, not later than the date specified in Sections 2.04(b)(i) or (ii) for offering to make such prepayment, give the Administrative Agent written notice requesting that the Administrative Agent provide notice of such offer of prepayment to each Lender of Term Loans, (B) the Administrative Agent shall provide notice of such offer of prepayment to each Lender of Term Loans, (C) each Lender of Term Loans will have the right to refuse such offer of prepayment by giving written notice of such refusal to the Administrative Agent within one (1) Business Day after such Lender’s receipt of notice from the Administrative Agent of such offer of prepayment (such refused amounts, the “Declined Proceeds”), (D) the Borrower shall make all such prepayments (other than Declined Proceeds) promptly thereafter, and (E) after making any prepayments pursuant to clause (D) above, the Borrower may retain such Declined Proceeds and apply them in a manner not prohibited by this Agreement.

 

(x)            In connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to this Section 2.04(b), such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans of the applicable Class or Classes being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Term SOFR Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.04(b)(viii), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment within any tranche of Term Loans shall be applied first to Term Loans of such tranche that are Base Rate Loans to the full extent thereof before application to Term Loans of such tranche that are Term SOFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05.

 

(xi)           Foreign Dispositions, Casualty Events, Excess Cash Flow. Notwithstanding any other provisions of this Section 2.04, (i) to the extent that any or all of the Net Proceeds of any Disposition or Casualty Event of any assets or property of a Foreign Subsidiary (“Foreign Disposition”) or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law from being repatriated to the United States, an amount equal to the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.04 but only so long as the applicable local law will not permit repatriation by such Foreign Subsidiary to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds or Excess Cash Flow that, in each case, would otherwise be required to be used to make an offer of prepayment pursuant to Sections 2.04(b)(i) or 2.04(b)(ii), is permitted under the applicable local law, the Borrower shall be required to promptly prepay the Term Loans (net of additional taxes that would be payable or reserved against as a result of such repatriation, to the extent not already taken into account under the definitions of “Net Proceeds” or “Excess Cash Flow”) pursuant to this Section 2.04 and (ii) to the extent that the Borrower has reasonably determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Subsidiary’s Excess Cash Flow would have material adverse tax consequences to the Parent, the Borrower, any direct or indirect parent entity of the Borrower or any of the Borrower’s direct or indirect Subsidiaries with respect to such Net Proceeds or Excess Cash Flow, the Borrower shall be required to promptly prepay the Term Loans (net of additional taxes that would be payable or reserved against as a result of a repatriation of such proceeds, to the extent not already taken into account under the definitions of “Net Proceeds” or “Excess Cash Flow”) pursuant to this Section 2.04.

 

 

Section 2.05           Termination or Reduction of Commitments.

 

(a)           Optional. The Borrower may, upon irrevocable written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction and (ii) any such partial reduction shall be in a minimum aggregate amount of $500,000, as applicable, or any whole multiple of $100,000, in excess thereof. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of all of the applicable Facility, which refinancing shall not be consummated or otherwise shall be delayed.

 

(b)           Mandatory. The Initial Term Commitment of each Lender shall be automatically and permanently terminated upon the funding of Initial Term Loans to be made by it on the Closing Date.

 

(c)           Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of the unused Commitments of any Class under this Section 2.05. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.07). All commitment fees, if any, accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.

 

Section 2.06           Repayment of Loans.

 

(a)            Initial Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (i) on each Quarterly Payment Date, an aggregate principal amount equal to 0.25% of the aggregate principal amount of the Initial Term Loans outstanding on the Closing Date and (ii) on the Maturity Date for the Initial Term Loans, the aggregate principal amount of all Initial Term Loans outstanding on such date; provided that payments required by Section 2.06(a)(i) above shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.04. In the event any Incremental Term Loans, Refinancing Term Loans or Extended Term Loans are made, such Incremental Term Loans, Refinancing Term Loans or Extended Term Loans, as applicable, shall be repaid by the Borrower in the amounts and on the dates set forth in the Incremental Amendment, Refinancing Amendment or Extension Amendment with respect thereto and on the applicable Maturity Date thereof.

 

 

(b)           In the event that, prior to the incurrence of any Incremental Term Loans, the Initial Term Loans or any existing Incremental Term Loans have scheduled amortization payments under Section 2.06(a)(i) (or other equivalent section) that are less than 0.25% of the aggregate principal amount of such existing Term Loans when initially incurred, then at the Borrower’s option, (x) the scheduled amortization payments of such existing Initial Term Loans on the effective date of such Incremental Term Loans shall be increased to be equal quarterly installments of principal equal to 0.25% of the aggregate principal amount of such existing Initial Term Loans originally incurred or (y) the scheduled amortization payment of the Incremental Term Loans shall equal such smaller percentage applicable to the existing Initial Term Loans on such scheduled amortization payment date(s) (reflected as a percentage of the aggregate principal amount of such Incremental Term Loans), so long as, in the event this clause (y) is applicable, and for the avoidance of doubt, such percentage is expressly set forth in the Incremental Amendment with respect to such Incremental Term Loans.

 

Section 2.07           Interest.

 

(a)           Subject to the provisions of Section 2.07(b), (i) each Term SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

 

(b)           During the continuance of an Event of Default under Section 8.01(a), the Borrower shall pay interest on past due principal or interest owing by it hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws; provided that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c)           Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

Section 2.08           Fees. The Borrower shall pay to the Agents (for the account of the parties entitled thereto) such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified (including all fees under the Fee Letters that are payable pursuant to the terms thereof). Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).

 

 

Section 2.09           Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of three hundred sixty-five (365) days, or three hundred sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

Section 2.10           Evidence of Indebtedness.

 

(a)           The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register and the corresponding accounts and records of the Administrative Agent in respect of such matters, the Register and the corresponding accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender or its registered assigns, which shall evidence such Lender’s or such registered assigns’ Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and record thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. Upon the payment in full of the Obligations evidenced by any Note, (i) such Note shall be deemed automatically cancelled and of no further force and effect and (ii) the Lender holding such Note shall, upon the Borrower’s request, promptly surrender such Note to the Borrower.

 

(b)           Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.10, and by each Lender in its account or accounts pursuant to Section 2.10, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.

 

 

Section 2.11           Payments Generally.

 

(a)           All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. New York City time on the date specified herein. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after 2:00 p.m. New York City time shall in each case be deemed received on the next succeeding Business Day, in the Administrative Agent’s sole discretion, and any applicable interest or fee shall continue to accrue.

 

(b)           Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Term SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

 

(c)           Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:

 

(i)            if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing; and

 

(ii)            if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Bank Funding Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.11(c) shall be conclusive, absent manifest error.

 

(d)           If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV or in the applicable Incremental Amendment, Extension Amendment or Refinancing Amendment are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(e)            The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan.

 

(f)            Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(g)           Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the Outstanding Amount of all Loans outstanding at such time in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.

 

 

Section 2.12           Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or any security therefor, any payment or distribution (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) (a) in excess of its ratable share (or other share contemplated hereunder) thereof or (b) or otherwise in excess of the amount that it would be entitled to receive had such payment or distribution been applied in accordance with Section 8.04, such Lender shall immediately (i) notify the Administrative Agent of such fact, and (ii)(A) in the case of clause (a) above, purchase from the other Lenders such participations in the Loans made by them, as shall be necessary to cause such purchasing Lender to share the excess payment or distribution in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment or distribution is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (1) the amount of such paying Lender’s required repayment to (2) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon; and (B) in the case of clause (b) above, hold such payment in trust for the applicable Secured Parties entitled thereto pursuant to Section 8.04 and forthwith deliver the same to the Administrative Agent in accordance with the provisions of Section 8.04. For avoidance of doubt, the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement as in effect from time to time (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant permitted hereunder. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.12 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.12 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. For purposes of clause (iv)(x) of the definition of “Indemnified Taxes,” a participation acquired pursuant to this Section 2.12 shall be treated as having been acquired on the earlier date(s) on which the applicable Lender acquired the applicable interest in the Commitment(s) or Loan(s) to which such participation relates.

 

Section 2.13           Incremental Loans.

 

(a)           Incremental Commitments. The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (an “Incremental Request”), request one or more new commitments (each, an “Incremental Term Facility”) which may be in the same Facility as any outstanding Term Loans of an existing Class of Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Commitments”), whereupon the Administrative Agent shall promptly deliver a copy of such Incremental Request to each of the Lenders.

 

 

(b)           Incremental Facilities and Commitments. Any Incremental Commitments or new Term Loans made on an Incremental Facility Closing Date shall be designated a separate Class of Incremental Commitments for all purposes of this Agreement, except, unless otherwise required pursuant to the terms of this Agreement, in the case of a Term Loan Increase. On any Incremental Facility Closing Date on which any Incremental Commitments of any Class are effected (including through any Term Loan Increase), subject to the satisfaction of the terms and conditions in this Section 2.13, (i) each Incremental Lender of such Class shall make a Loan to the Borrower (or any Loan Party organized under the laws of the United States, any state thereof, the District of Columbia or any territory thereof may be designated as a borrower in respect thereof so long as all obligors under such Incremental Term Facility are the same as with respect to the Loans hereunder) (an “Incremental Term Loan”) in an amount equal to its Incremental Commitment of such Class, and (ii) each Incremental Lender of such Class shall become a Lender hereunder with respect to the Incremental Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated as the same Class as any of such Term Loans.

 

(c)           Incremental Request. Each Incremental Request from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make any Incremental Commitment, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Commitment) or by any other bank or other financial institution or other institutional lender (any such other bank or other financial institution or other institutional lender being called an “Additional Lender”) (each such existing Lender or Additional Lender providing such, an “Incremental Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans to the extent such consent, if any, would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender.

 

(d)           Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:

 

(i)            after giving effect to such Incremental Commitments, the following conditions shall be satisfied (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, Investment or irrevocable repayment, repurchase or redemption, there shall be no requirement to satisfy any or all such conditions except that (A) the requirement that no Payment or Bankruptcy Default with respect to the Parent or the Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments shall not be omitted or waived without the consent of the Required Lenders and (B) in the case of a Permitted Acquisition or Investment, (x) the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Permitted Acquisition or Investment and the acquired business or assets), (y) any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition or Investment and (z) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders:

 

 

(A)           the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and

 

(B)            no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom.

 

(ii)            each Incremental Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in subsection (iii) below);

 

(iii)           the aggregate amount of the Incremental Term Loans, together with the aggregate principal amount of Incremental Equivalent Debt, determined at the time of incurrence thereof, shall not exceed the sum of:

 

(A)          the greater of (1) $150,000,000 and (2) 20.00% of LTM Consolidated EBITDA, plus

 

(B)           [reserved], plus

 

(C)           the amount actually paid in cash of all voluntary prepayments, repurchases, redemptions and other retirements of Initial Term Loans, Incremental Term Loans, Secured Notes, Permitted Refinancing of any Indebtedness permitted to be incurred under this Agreement, and Incremental Equivalent First Lien Debt and any other Indebtedness (other than revolving credit loans unless accompanied by a corresponding permanent commitment reduction), in each case, secured on a pari passu basis with the Liens securing the Initial Facility prior to or simultaneous with the Incremental Facility Closing Date (including through “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.04(a)(iv), which, in the case of any such prepayment, repurchase, redemption or retirement, shall be credited to the extent of the principal (or face) amount of Indebtedness so prepaid, repaid, retired or repurchased) (except to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)), plus

 

 

(D)          additional amounts (including at any time prior to the utilization of amounts under the Base Incremental Amount (as defined below)) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis, does not exceed 4.50 to 1.00, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis, does not exceed 4.50 to 1.00 and (3) if such Indebtedness is unsecured, such Indebtedness complies with the requirements of “Permitted Ratio Debt”;

 

(the amounts under the foregoing clause (A) are herein referred to as the “Base Incremental Amount”, and the Base Incremental Amount, together with the amounts under the foregoing clause (C), are referred to herein as the “Free and Clear Incremental Amount” and the amounts under the foregoing clause (D) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, are herein referred to as the “Incremental Availability Amount”)); and

 

(iv)          such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.

 

The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any component or combination thereof, and any portion of any Incremental Term Facility or Incremental Equivalent Debt, as applicable, incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis in any subsequent fiscal quarter after the initial incurrence of such Incremental Term Facility or such Incremental Equivalent Debt, as applicable, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower. If any Indebtedness is intended to be incurred under the Incurrence-Based Incremental Amount and any other component of the Incremental Availability Amount substantially simultaneously or contemporaneously, (A) the incurrence of the portion of such Indebtedness to be incurred or implemented under the Incurrence-Based Incremental Amount shall be calculated first without giving effect to any Indebtedness to be incurred under any other component of the Incremental Availability Amount, but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Indebtedness and the related transactions, and (B) the incurrence of the portion of such Indebtedness to be incurred or implemented under any other component of the Incremental Availability Amount shall be calculated thereafter.

 

 

For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, the cash proceeds of any Incremental Term Facility or Incremental Equivalent Debt, as applicable, shall be excluded from “net” Indebtedness in determining whether such Incremental Term Facility or such Incremental Equivalent Debt, as applicable, can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included).

 

(e)            Required Terms. The terms, provisions and documentation of the Incremental Term Loans and Incremental Commitments of any Class, as the case may be, shall be as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental Commitments, and except as otherwise set forth herein, (I) consistent with the terms applicable to the Initial Term Loans existing on the Incremental Facility Closing Date, (II) not materially more restrictive to the Borrower and its Subsidiaries (as determined by the Borrower in consultation with the Administrative Agent), when taken as whole, than the terms applicable to the Initial Term Loans existing on the Incremental Facility Closing Date (except for covenants and terms that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of such Incremental Amendment) (it being understood that to the extent any financial maintenance covenant or other provisions are added for the benefit of any Incremental Term Loans or any Incremental Commitments, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant or other provisions are also added for the benefit of each applicable Facility remaining outstanding after the effectiveness of such Incremental Amendment that has a final scheduled maturity date prior to the final scheduled maturity date of the Incremental Term Loans (determined on the Incremental Facility Closing Date)); provided that a certificate of a Responsible Officer delivered to the Administrative Agent prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (II) shall be conclusive evidence that such terms and conditions satisfy such requirements or (III) reasonably satisfactory to the Administrative Agent. In any event:

 

(i)            the Incremental Term Loans:

 

(A)          shall be unsecured or shall rank pari passu or junior in right of payment and of security with the Term Loans (and to the extent subordinated in right of payment or security, shall be subject to a Junior Lien Intercreditor Agreement or an alternate intercreditor and subordination arrangement reasonably satisfactory to the Administrative Agent),

 

(B)           subject to the Permitted Earlier Maturity Indebtedness Exception, shall not mature earlier than the Maturity Date of the Initial Term Loans,

 

(C)           subject to the Permitted Earlier Maturity Indebtedness Exception, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments of the Initial Term Loans prior to the time of incurrence of such Incremental Term Loans that would otherwise modify the Weighted Average Life to Maturity of the Initial Term Loans),

 

 

(D)           the Incremental Term Loans may not be incurred (or guaranteed) by a non-Loan Party or secured by assets that do not constitute Collateral, and

 

(E)            shall provide that mandatory prepayments of the Incremental Term Loans shall be on a pro rata or less than pro rata basis, except that the Borrower shall be permitted to prepay any Class of Term Loans on a better than pro rata basis as compared to any other class of Term Loans with a later maturity date than such Class, provided that, any Incremental Term Facility may provide for the ability to participate on a non-pro rata basis in any voluntary prepayments of the Incremental Term Loans.

 

(ii)           [Reserved].

 

(iii)          Subject to clauses (e)(i)(B) and (e)(i)(C) above, the Applicable Rate and amortization schedule applicable to any Incremental Term Loans and the All-In Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that with respect to any Loans under any Incremental Commitments secured on a pari passu basis with the Initial Term Loans other than any MFN Excluded Debt, if the All-In Yield applicable to such Incremental Term Loans shall be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans by more than fifty (50) basis points per annum (the amount of such excess of the All-In Yield applicable to such Incremental Term Loans over the sum of the All-In Yield applicable to the Initial Term Loans plus fifty (50) basis points per annum, the “Yield Differential”) then the interest rate (together with, as provided in the proviso below, the Term SOFR or Base Rate floor) with respect to the Initial Term Loans shall be increased by the applicable Yield Differential (this proviso, the “MFN Protection”); provided, further, that, if any Incremental Term Loans include a Term SOFR or Base Rate floor that is greater than the Term SOFR or Base Rate floor applicable to any existing Class of Term Loans, such differential between Term SOFR or Base Rate floors, as applicable, shall be included in the calculation of All-In Yield for purposes of this clause (ii) but only to the extent an increase in the Term SOFR or Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR and Base Rate floors (but not the Applicable Rate) applicable to the existing Term Loans shall be increased to the extent of such differential between Term SOFR or Base Rate floors as the case may be.

 

(f)            Incremental Amendment. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, any Loan Party organized under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, that may be designated as a borrower in respect thereof (if any), each Incremental Lender providing such Commitments and the Administrative Agent. The Incremental Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.13. The Borrower may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.

 

 

(g)           This Section 2.13 shall supersede any provisions in Section 2.12 or 10.01 to the contrary.

 

Section 2.14           Refinancing Amendments.

 

(a)           On one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor that agrees to provide any portion of any Refinancing Term Loans pursuant to a Refinancing Amendment in accordance with this Section 2.14 (each, an “Additional Refinancing Lender”), Credit Agreement Refinancing Indebtedness in respect of all or any portion of any Class, as selected by the Borrower in its sole discretion, of Term Loans then outstanding under this Agreement, in the form of Refinancing Term Loans or Refinancing Term Commitments, in each case, pursuant to a Refinancing Amendment.

 

(b)           The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.13(d)(i) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officer’s certificates consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the benefit of the applicable Loan Documents.

 

(c)           Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.14(a) shall be in an aggregate principal amount that is (x) not less than $10,000,000 and (y) an integral multiple of $1,000,000 in excess thereof.

 

(d)           Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to a Refinancing Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the fifth paragraph to Section 10.01 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.

 

 

(e)           This Section 2.14 shall supersede any provision in Section 2.12 or 10.01 to the contrary.

 

Section 2.15           Extension of Term Loans.

 

(a)            Extension of Term Loans. The Borrower may at any time and from time to time, in its sole discretion, request that all or a portion of the Term Loans of a given Class (or series or tranche thereof) (each, an “Existing Term Loan Tranche”) be amended to extend the scheduled maturity date(s) with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so amended, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.15. In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the applicable Existing Term Loan Tranche) (each, a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall (x) be identical as offered to each Lender under such Existing Term Loan Tranche (including as to the proposed interest rates and fees payable) and offered pro rata to each Lender under such Existing Term Loan Tranche and (y) be identical to the Term Loans under the Existing Term Loan Tranche from which such Extended Term Loans are to be amended, except that: (i) all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans of such Existing Term Loan Tranche, to the extent provided in the applicable Extension Amendment; (ii) the All-In Yield with respect to the Extended Term Loans (whether in the form of interest rate margin, upfront fees, OID or otherwise) may be different than the All-In Yield for the Term Loans of such Existing Term Loan Tranche, in each case, to the extent provided in the applicable Extension Amendment; (iii) the Extension Amendment may provide for other covenants and terms that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Term Loans); and (iv) Extended Term Loans may have call protection as may be agreed by the Borrower and the Lenders thereof; provided that no Extended Term Loans may be optionally prepaid prior to the date on which all Term Loans with an earlier final stated maturity (including Term Loans under the Existing Term Loan Tranche from which they were amended) are repaid in full, unless such optional prepayment is accompanied by at least a pro rata optional prepayment of such other Term Loans; provided, however, that (A) in no event shall the final maturity date of any Extended Term Loans of a given Term Loan Extension Series at the time of establishment thereof be earlier than the then Latest Maturity Date of any then existing Term Loans hereunder, (B) the Weighted Average Life to Maturity of any Extended Term Loans of a given Term Loan Extension Series at the time of establishment thereof shall be no shorter (other than by virtue of amortization or prepayment of such Indebtedness prior to the time of incurrence of such Extended Term Loans) than the remaining Weighted Average Life to Maturity of any Existing Term Loan Tranche, (C) any such Extended Term Loans (and the Liens securing the same) shall be permitted by the terms of the Intercreditor Agreements (to the extent any Intercreditor Agreement is then in effect), (D) all documentation in respect of such Extension Amendment shall be consistent with the foregoing and (E) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than pro rata basis) in any mandatory repayments or prepayments hereunder, in each case as specified in the respective Term Loan Extension Request. Any Extended Term Loans amended pursuant to any Term Loan Extension Request shall be designated a series (each, a “Term Loan Extension Series”) of Extended Term Loans for all purposes of this Agreement; provided that any Extended Term Loans amended from an Existing Term Loan Tranche may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any previously established Term Loan Extension Series with respect to such Existing Term Loan Tranche. Each Term Loan Extension Series of Extended Term Loans incurred under this Section 2.15 shall be in an aggregate principal amount that is not less than $10,000,000.

 

 

(b)           [Reserved].

 

(c)           Extension Request. The Borrower shall provide the applicable Extension Request at least three (3) Business Days prior to the date on which Lenders under the Existing Term Loan Tranche are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.15. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Tranche amended into Extended Term Loans pursuant to any Extension Request. Any Lender holding a Loan under an Existing Term Loan Tranche (each, an “Extending Term Lender”) wishing to have all or a portion of its Term Loans under the Existing Term Loan Tranche subject to such Extension Request amended into Extended Term Loans shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans under the Existing Term Loan Tranche, which it has elected to request be amended into Extended Term Loans (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate principal amount of Term Loans under the Existing Term Loan Tranche in respect of which applicable Term Lenders shall have accepted the relevant Extension Request exceeds the amount of Extended Term Loans requested to be extended pursuant to the Extension Request, Term Loans subject to Extension Elections shall be amended to Extended Term Loans on a pro rata basis (subject to rounding by the Administrative Agent, which shall be conclusive) based on the aggregate principal amount of Term Loans included in each such Extension Election.

 

(d)           Extension Amendment. Extended Term Loans shall be established pursuant to an amendment (each, an “Extension Amendment”) to this Agreement among the Borrower, the Administrative Agent, and each Extending Term Lender providing an Extended Term Loan thereunder, which shall be consistent with the provisions set forth in Section 2.15(a) or (c) above, respectively (but which shall not require the consent of any other Lender). The effectiveness of any Extension Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 2.13(d)(i) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) legal opinions, board resolutions, and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Extended Term Loans are provided with the benefit of the applicable Loan Documents. The Borrower may, at its election, specify as a condition to consummating any Extension Amendment that a minimum amount (to be determined and specified in the relevant Extension Request in the Borrower’s sole discretion and as may be waived by the Borrower) of Term Loans of any or all applicable Classes be tendered. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension Amendment. Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to an Extension Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Extended Term Loans incurred pursuant thereto, (ii) modify the scheduled repayments set forth in Section 2.06 with respect to any Existing Term Loan Tranche subject to an Extension Election to reflect a reduction in the principal amount of the Term Loans thereunder in an amount equal to the aggregate principal amount of the Extended Term Loans amended pursuant to the applicable Extension (with such amount to be applied ratably to reduce scheduled repayments of such Term Loans required pursuant to Section 2.06), (iii) modify the prepayments set forth in Section 2.04 to reflect the existence of the Extended Term Loans and the application of prepayments with respect thereto, (iv) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the fifth paragraph of Section 10.01 (without the consent of the Required Lenders called for therein), and (v) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Extension Amendment.

 

 

(e)            No conversion of Loans pursuant to any Extension in accordance with this Section 2.15 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.

 

(f)            This Section 2.15 shall supersede any provisions in Section 2.12 or 10.01 to the contrary.

 

Section 2.16           Defaulting Lenders.

 

(a)            Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

(i)            Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of “Required Lenders” and “Required Class Lenders” and in Section 10.01.

 

(ii)            Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

 

(b)            Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Share, whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

ARTICLE III
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

 

Section 3.01           Taxes.

 

(a)            All payments made by or on account of the Borrower or any Guarantor under any Loan Document shall be made free and clear of and without deduction for any present or future taxes, duties, deductions, levies, imposts, fees, assessments or withholdings (including backup withholding) or similar charges imposed by any Governmental Authority, including any interest, penalties and additions to tax thereto (collectively “Taxes”), except as required by applicable Law. If the applicable Withholding Agent shall be required by applicable Law (as determined in the good faith discretion of the applicable Withholding Agent) to deduct any Taxes from or in respect of any sum payable under any Loan Document, (A) to the extent the Tax in question is an Indemnified Tax, the sum payable by the Borrower or Guarantor shall be increased as necessary so that after all required deductions (including deductions of an Indemnified Tax applicable to additional sums payable under this Section 3.01) have been made by any applicable Withholding Agent, the applicable Lender (or, in the case of payments made to an Agent for its own account, the Agent), receives an amount equal to the sum it would have received had no such deductions been made, (B) the applicable Withholding Agent shall make such deductions, (C) the applicable Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Laws, and (D) within thirty (30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as reasonably practicable thereafter), if the Borrower or any Guarantor is the applicable Withholding Agent, the Borrower or such Guarantor shall furnish to the Administrative Agent the original or a copy of a receipt evidencing payment thereof or other evidence reasonably acceptable to the Administrative Agent.

 

 

(b)           The Borrower shall timely pay all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document excluding, in each case, such amounts that result from an Agent or Lender’s Assignment and Assumption, grant of a participation, transfer or assignment to or designation of a new applicable Lending Office or other office for receiving payments under any Loan Document (collectively, “Assignment Taxes”) to the extent such Assignment Taxes result from a connection that such Agent or Lender has with the taxing jurisdiction other than connections arising from executing, delivering, being a party to, engaging in any transactions pursuant to, performing its obligations under, receiving payments under, receiving or perfecting a security interest under, and/or enforcing, any Loan Document, or having sold or assigned an interest in any Loan or Loan Documents, except for such Assignment Taxes resulting from an assignment or participation that is requested or required by the Borrower under Section 3.07 (all such non-excluded Taxes described in this Section 3.01(b) being hereinafter referred to as “Other Taxes”).

 

(c)            The Borrower and each Guarantor shall, within ten (10) days after written demand therefor, indemnify each Agent and each Lender for (i) the full amount of any Indemnified Taxes and, without duplication, Other Taxes payable by such Agent or such Lender (including Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 3.01) and (ii) any reasonable expenses arising therefrom or with respect thereto, in each case whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith by such Agent or Lender (or by an Agent on behalf of such Lender), accompanied by a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts shall be conclusive absent manifest error. Notwithstanding anything to the contrary in this Section 3.01, the Borrower and any Guarantor shall not be required to indemnify any Agent or any Lender pursuant to this Section 3.01(c) for any incremental Taxes resulting from the failure of such Agent or Lender to notify the Borrower or any Guarantor of such claim within one hundred and eighty (180) days after the date on which such Agent or such Lender receives written notice from the applicable Governmental Authority of the specific Tax assessment giving rise to such claim.

 

 

(d)           Each Lender shall within ten (10) days after written demand therefor, indemnify the Administrative Agent for (i) any Indemnified Taxes and, without duplication, Other Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and Other Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.07(f) relating to the maintenance of a Participant Register and (iii) any Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).

 

(e)            Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation prescribed by applicable Law certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding Tax with respect to any payments to be made to such Lender under the Loan Documents. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding any other provision of this Section 3.01(e), a Lender shall not be required to deliver any documentation pursuant to this Section 3.01(e) that such Lender is not legally eligible to deliver. Without limiting the foregoing:

 

(i)            Each Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) two (2) properly completed and duly signed copies of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding.

 

(ii)            Each Lender that is not a U.S. Person shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) whichever of the following is applicable:

 

(A)            two (2) properly completed and duly signed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party,

 

 

(B)            two (2) properly completed and duly signed copies of IRS Form W-8ECI (or any successor forms),

 

(C)            in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (a) a certificate substantially in the form of Exhibit I-1 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 the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to any Loan Party described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (b) two (2) properly completed and duly signed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor form),

 

(D)            to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a Lender that sells a participation), IRS Form W-8IMY (or any successor forms) of the Lender, accompanied by an IRS Form W- 8ECI, W-8BEN, W-8BEN-E, W-8IMY, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9 and/or any other required information from each beneficial owner, as applicable (provided that, if the 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 substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner),

 

(E)            two (2) properly completed and duly signed copies of any other form prescribed by applicable U.S. federal income tax Laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Loan Documents, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.

 

(iii)            If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable Law and at such time or times reasonably requested by the Borrower and the Administrative Agent, such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 3.01(e)(iii), “FATCA” shall include any amendments made to FATCA after the Closing Date.

 

 

Each such Lender shall, whenever a lapse in time or change in circumstances renders any such documentation described in this Section 3.01(e) obsolete or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.

 

Each Lender authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this Section 3.01(e).

 

(f)            If the Borrower or any Guarantor is required to pay any Indemnified Taxes or additional amounts payable pursuant to this Section 3.01 or Section 3.04 to any Lender, or to any Governmental Authority for the account of any Lender, any such Lender shall, if requested by the Borrower, use its reasonable efforts to change the jurisdiction of its Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or affiliates (or take any other measures reasonably requested by the Borrower) if such a change or other measures would reduce any such additional amounts (including any such additional amounts that may thereafter accrue) and would not, in the sole determination of such Lender, result in any unreimbursed cost or expense or be otherwise materially disadvantageous to such Lender.

 

(g)            If the Administrative Agent is not a U.S. Person, the Administrative Agent shall deliver to the Borrower on or before the date on which it becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower) (i) an accurate and complete signed copy of IRS Form W-8ECI with respect to any amounts payable to the Administrative Agent for its own account and (ii) an accurate and complete signed copy of IRS Form W-8IMY with respect to any amounts payable to the Administrative Agent for the account of others, certifying that it is a “U.S. branch,” and that it is using such form as evidence of its agreement with the Borrower to be treated as a U.S. Person with respect to such payments (and the Borrower and the Administrative Agent agree to so treat the Administrative Agent as a U.S. Person with respect to such payments as contemplated by, and in accordance with, Sections 1.1441-1(b)(2)(iv) of the United States Treasury Regulations). If the Administrative Agent is a U.S. Person, it shall deliver to the Borrower on or before the date on which it becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower) an accurate and complete IRS Form W-9 setting forth an exemption from U.S. federal backup withholding. The Administrative Agent shall, whenever a lapse in time or change in circumstances renders any such documentation described in this Section 3.01(g) obsolete or inaccurate in any material respect, deliver promptly to the Borrower updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower) or promptly notify the Borrower in writing of its legal ineligibility to do so. Notwithstanding anything to the contrary in this Section 3.01(g), no Administrative Agent shall be required to deliver any documentation pursuant to this Section 3.01(g) that such Administrative Agent is not legally eligible to deliver as a result of a change in Law after the date on which the Administrative Agent becomes the Administrative Agent under this Agreement.

 

 

(h)            If any party, determines, in its sole discretion, exercised in good faith, that it has received a refund in respect of any Indemnified Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by the indemnifying party pursuant to this Section 3.01, it shall promptly remit such refund to the indemnified party (but only to the extent of indemnification or additional amounts paid by the Borrower or such Guarantor under this Section 3.01 with respect to Indemnified Taxes or Other Taxes giving rise to such refund), net of reasonable and documented out-of-pocket expenses (including any Taxes) of the indemnified party, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund, net of any Taxes payable by the indemnified party on such interest); provided that the indemnifying party, upon the request of the indemnified party, as the case may be, shall promptly return such refund (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such party in the event such party is required to repay such refund to the relevant Governmental Authority. This Section 3.01(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to Taxes that it deems confidential) to the Borrower or any other person.

 

(i)            For the avoidance of doubt, the term “Laws” for purposes of this Section 3.01 includes FATCA.

 

(j)            Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent and the Collateral Agent or any assignment of rights by, or the replacement of, a Lender and Payment in Full.

 

Section 3.02      Illegality. If any Lender reasonably determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Term SOFR Loans, or to determine or charge interest rates based upon Term SOFR, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, to be determined by the Administrative Agent without reference to the Term SOFR component of Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist (it being understood that such Lender agrees to so advise the Administrative Agent once the relevant circumstances giving rise to such determination no longer exists). Upon receipt of such notice, (i) the Borrower shall, upon written demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all applicable Term SOFR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such Term SOFR and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon Term SOFR, the Administrative Agent shall during the period of such suspension compute Base Rate applicable to such Lender without reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon Term SOFR (it being understood that such Lender agrees to so advise the Administrative Agent once such illegality no longer exists). Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

 

 

Section 3.03           Inability to Determine Rates. Subject to Section 3.08 below, if the Administrative Agent reasonably determines that for any reason adequate and reasonable means do not exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan, or that Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender in writing. Thereafter, the obligation of the Lenders to make or maintain Term SOFR Loans shall be suspended until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of such Term SOFR Loans or, failing that, will be deemed to have converted such request, if applicable, into a request for a Borrowing of Base Rate Loans (without giving effect to clause (c) in the definition of “Base Rate”) in the amount specified therein.

 

Section 3.04           Increased Cost and Reduced Return; Capital Adequacy.

 

(a)            If any Lender reasonably determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the Closing Date, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any Term SOFR Loans (or, in the case of a change in Law with respect to Taxes, any Loan) or (as the case may be) issuing, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Indemnified Taxes or Other Taxes, or any Taxes excluded from the definition of Indemnified Taxes under exceptions (i) through (vi) thereof or (ii) reserve requirements contemplated by Section 3.04(c)) and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining such Term SOFR Loan (or of making or maintaining its obligations to make any Loan), or to reduce the amount of any sum received or receivable by such Lender, in each case, by an amount which such Lender deems to be material, then from time to time within fifteen (15) days after written demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction. Notwithstanding anything herein to the contrary, for all purposes under this Agreement, (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 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; provided, that to the extent any increased costs or reductions are incurred by any Lender as a result of any requests, rules, guidelines or directives promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act or pursuant to Basel III after the Closing Date, then such Lender shall be compensated pursuant to this Section 3.04 only if such Lender imposes such charges under other syndicated credit facilities involving similarly situated borrowers that such Lender is a lender under.

 

 

(b)           If any Lender reasonably determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, in each case after the Closing Date, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender’s desired return on capital), in each case, by an amount which such Lender deems to be material, then from time to time upon written demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such demand.

 

(c)            The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including funds or deposits, additional interest on the unpaid principal amount of each applicable Loan of the Borrower equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of any Loans of the Borrower, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five (5) decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least fifteen (15) days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable fifteen (15) days from receipt of such notice.

 

(d)           Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation.

 

(e)            If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.04(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), (b), (c) or (d).

 

 

Section 3.05           Funding Losses. Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:

 

(a)           any continuation, conversion, payment or prepayment of any Term SOFR Loan of the Borrower on a day other than the last day of the Interest Period for such Loan; or

 

(b)            any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Term SOFR Loan of the Borrower on the date or in the amount notified by the Borrower; including any loss or expense (excluding loss of anticipated profits) arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.

 

Section 3.06           Matters Applicable to All Requests for Compensation.

 

(a)           Any Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.

 

(b)            With respect to any Lender’s claim for compensation under Section 3.02, 3.03 or 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such one hundred eighty (180)-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another applicable Term SOFR Loan, or, if applicable, to convert Base Rate Loans into Term SOFR Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.

 

(c)           If the obligation of any Lender to make or continue any Term SOFR Loan, or to convert Base Rate Loans into Term SOFR Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s applicable Term SOFR Loans shall be automatically converted into Base Rate Loans (or, if such conversion is not possible, repaid) on the last day(s) of the then current Interest Period(s) for such Term SOFR Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:

 

 

(i)             to the extent that such Lender’s Term SOFR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s applicable Term SOFR Loans shall be applied instead to its Base Rate Loans; and

 

(ii)            all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as Term SOFR Loans shall be made or continued instead as Base Rate Loans (if possible), and all Base Rate Loans of such Lender that would otherwise be converted into Term SOFR Loans shall remain as Base Rate Loans.

 

(d)           If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of any of such Lender’s Term SOFR Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Term SOFR Loans made by other Lenders under the applicable Facility are outstanding, if applicable, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Term SOFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Term SOFR Loans under such Facility and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments for the applicable Facility.

 

Section 3.07           Replacement of Lenders under Certain Circumstances.

 

(a)            If at any time (i) the Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01 or 3.04 as a result of any condition described in such Sections or any Lender ceases to make any Term SOFR Loans as a result of any condition described in Section 3.02 or Section 3.04, (ii) any Lender becomes a Defaulting Lender or (iii) any Lender becomes a Non-Consenting Lender, then the Borrower may so long as no Event of Default has occurred and is continuing, at its sole cost and expense, on five (5) Business Days’ prior written notice (or such shorter time as the Administrative Agent may agree) to the Administrative Agent and such Lender, (x) replace such Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement (in respect of any applicable Facility only in the case of clause (i) or, with respect to a Class vote, clause (iii)) to one or more Eligible Assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person; and provided further that (A) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments and (B) in the case of any such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible Assignees shall have agreed to, and shall be sufficient (together with all other consenting Lenders) to cause the adoption of, the applicable departure, waiver or amendment of the Loan Documents; or (y) terminate the Commitment of such Lender (in respect of any applicable Facility only in the case of clause (i) or clause (iii)), as the case may be, and in the case of a Lender, repay all Obligations of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date; provided that in the case of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders) to cause the adoption of the applicable departure, waiver or amendment of the Loan Documents and such termination shall be in respect of any applicable Facility only in the case of clause (i) or, with respect to a Class vote, clause (iii).

 

 

(b)            Any Lender being replaced pursuant to Section 3.07(a)(x) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s applicable Commitment and outstanding Loans and (ii) deliver any Notes evidencing such Loans to the Borrower or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Loans, (B) all obligations of the Borrower owing to the assigning Lender relating to the Loans, Commitments and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such Assignment and Assumption and (C) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. In connection with any such replacement, if any such Non-Consenting Lender or Defaulting Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such replacement on the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Non-Consenting Lender or Defaulting Lender, then such Non-Consenting Lender or Defaulting Lender shall be deemed to have executed and delivered such Assignment and Assumption without any action on the part of the Non-Consenting Lender or Defaulting Lender.

 

(c)            [Reserved].

 

(d)            In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of each Lender, each affected Lender or each affected Lender of a certain Class or Classes in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of the Loans and (iii) the Required Lenders (or, in the case of a consent, waiver or amendment involving all affected Lenders of a certain Facility, the Required Class Lenders as applicable) have agreed (but solely to the extent required by Section 10.01) to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender”.

 

Section 3.08           Benchmark Replacement Setting.

 

(a)            Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event with respect to a then-current Benchmark, then (A) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.

 

 

(b)           Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

(c)            Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.08(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.08.

 

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

 

 

(e)            Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that any tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

 

Section 3.09           Survival. Each of the obligations of the parties hereto under this Article III shall survive Payment in Full.

 

ARTICLE IV
CONDITIONS PRECEDENT TO Borrowings

 

Section 4.01           Conditions to Effectiveness and Initial Term Borrowings. The effectiveness of this Agreement and the obligation of each Lender to fund a Borrowing hereunder on the Closing Date is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:

 

(a)            The Administrative Agent’s (or its counsel) receipt of the following, each of which shall be delivered by electronic transmission, including as “pdf” files transmitted by electronic mail, unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or written evidence reasonably satisfactory to the Administrative Agent that such party has signed a counterpart):

 

(i)            a Committed Loan Notice in accordance with the requirements hereof;

 

(ii)           executed counterparts of this Agreement;

 

(iii)          each Collateral Document set forth on Schedule 1.01B required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (subject to the last paragraph of this Section 4.01):

 

(A)            subject to the Intercreditor Agreements, certificates, if any, representing the Pledged Stock referred to therein accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Notes indorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel);

 

 

(B)            copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code or PPSA, as applicable, in all United States and Canadian jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement and the Canadian Pledge and Security Agreement on the assets of the Parent, the Borrower and each other Guarantor that is party thereto, covering the Collateral described therein; and

 

(C)            evidence that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (subject to Schedule 6.20 attached hereto) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower providing authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent shall be reasonably satisfactory to the Administrative Agent);

 

(iv)          certificates of good standing (to the extent such concept exists) from the applicable secretary of state (or other relevant Governmental Authority) of the jurisdiction of organization of each Loan Party,

 

(v)            a certificate of the secretary, assistant secretary or similar Responsible Officer, or the general partner, managing member or sole member, of each Loan Party, in each case dated the Closing Date and certifying:

 

(A)            that attached thereto is a true and complete copy of the by-laws, limited liability company agreement, partnership agreement or other equivalent governing document of each such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below,

 

(B)            that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of each Loan Party (or its managing general partner or managing member, as the case may be) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,

 

(C)            that attached thereto is a copy of the certificate or articles of incorporation or formation or other relevant constitutional documents under applicable law of each Loan Party, in each case, certified as of a recent date by the applicable secretary of state of the state of organization (or other relevant Governmental Authority) of each Loan Party and that such certificate or articles of incorporation or formation or other relevant constitutional documents have not been amended since the date of the last amendment thereto identified thereon, and

 

 

(D)          as to the incumbency and specimen signature of each Responsible Officer of each Loan Party authorized to act as a Responsible Officer in connection with this Agreement and/or the other Loan Documents, as applicable, to which such Person is a party or is to be a party on the Closing Date;

 

(vi)          customary written opinions of (A) Skadden, Arps, Slate, Meagher & Flom LLP, special New York counsel to the Loan Parties, (B) Stikeman Elliott LLP, Alberta, Ontario and Quebec counsel to the Loan Parties, (C) Brownstein Hyatt Farber Schreck, LLP, Colorado and New Mexico counsel to the Loan Parties, (D) Oram & Houghton PLLC, Wyoming counsel to the Loan Parties, and (E) McAfee & Taft, a Professional Corporation, Oklahoma counsel to the Loan Parties, in each case, dated as of the Closing Date and addressed to the Agents and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;

 

(vii)         a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Parent (or the General Partner) (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit C-2; and

 

(viii)        a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Sections 4.01(c), (g), (h) and (i)).

 

(b)            Prior to or substantially concurrently with the initial Borrowing on the Closing Date, the Administrative Agent shall have received the Closing Fee and all fees and expenses due to the Administrative Agent, the Collateral Agent, the Lead Arrangers and their respective Affiliates required to be paid hereunder on the Closing Date and (in the case of expenses) invoiced at least three (3) Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower) which amounts, in the Borrower’s sole discretion, may be offset against the proceeds of the Loans or may be paid from the proceeds of the Initial Term Loans.

 

(c)            (i) The Refinancing shall have been consummated or, substantially concurrently with the initial borrowing under the Facilities, shall be consummated, (ii) the Administrative Agent shall have received satisfactory results of a recent search of all effective UCC financing statements, PPSA financing statements (or equivalent filings) made with respect to any personal property of each Loan Party in the appropriate jurisdictions and (iii) no other Indebtedness of the Borrower or its Subsidiaries other than Indebtedness permitted under Section 7.03 shall be outstanding as of the Closing Date, after giving effect to the Refinancing.

 

(d)            The Borrower and the Initial Term Loans shall have received ratings from at least two of Moody’s, S&P and Fitch.

 

(e)            The Administrative Agent shall have received (i) the Historical Financial Statements and the Pro Forma Financial Statements and (ii) Projections prepared by management of the Parent of consolidated balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries for the period from the Closing Date through March 31, 2028 (and the Administrative Agent acknowledges receipt of the deliverables described in clauses (i) and (ii) above).

 

 

(f)            Prior to or substantially concurrently with the initial Borrowing on the Closing Date, all Governmental Authority and third party approvals and all equity holder and board of directors (or comparable entity management body) authorizations necessary for consummation of the Transactions occurring on the Closing Date shall have been obtained and be in full force and effect.

 

(g)           The representations and warranties of each Loan Party set forth in Article V and of each Loan Party in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.

 

(h)           No Default or Event of Default shall exist and be continuing or would immediately result from the Borrowing of the Initial Term Loans, or from the application of the proceeds therefrom, on the Closing Date.

 

(i)            Since March 31, 2023, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect.

 

(j)            (i) The Administrative Agent shall have received, at least five (5) Business Days prior to the Closing Date, all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT and the Proceeds of Crime Act that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) Business Days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (it being understood and agreed that (x) execution and delivery of a Beneficial Ownership Certification in the form published by The Loan Syndication and Trading Association is acceptable to all Lenders for purposes of satisfying the condition set forth in this clause (j)(ii) and (y) upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (j) shall be deemed to be satisfied).

 

Without limiting the generality of the provisions of Section 9.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

 

ARTICLE V
REPRESENTATIONS AND WARRANTIES

 

The Borrower and the Parent (solely to the extent applicable to it) represent and warrant to the Agents and the Lenders at the time of each Borrowing that:

 

Section 5.01           Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each Restricted Subsidiary (a) is a Person duly organized or formed, validly existing and in good standing (where relevant) under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business as currently conducted and (ii) in the case of the Loan Parties, execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing (where relevant) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs and injunctions and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case, referred to in clause (a) (other than with respect to the Borrower), (b)(i), (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.02           Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions, are within such Loan Party’s corporate, limited liability company or other organizational powers, (a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any material Law binding on such Person, in each case, except to the extent that such violation, conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.03           Governmental Authorization. No material approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions on the Closing Date, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents (including the priority thereof), (c) the perfection or maintenance of the Liens created under the Collateral Documents or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings, recordings and registrations with Governmental Authorities necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect (except to the extent not required to be obtained, taken, given or made or to be in full force and effect pursuant to the Collateral and Guarantee Requirement) and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.

 

 

Section 5.04          Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is a party thereto. This Agreement and each other Loan Document constitutes, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is a party thereto in accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity, (ii) the need for filings, recordations and registrations necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate to the granting of security interests in assets or pledges, if any, of Equity Interests in or Indebtedness owed by Foreign Subsidiaries (other than Canadian Loan Parties).

 

Section 5.05           Financial Statements; No Material Adverse Effect.

 

(a)            The Historical Financial Statements fairly present in all material respects the financial condition of the Parent and its consolidated Restricted Subsidiaries as of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein, and in the case of the Unaudited Financial Statements, to changes resulting from normal year-end adjustments and the absence of footnotes.

 

(b)           The Pro Forma Financial Statements have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such forecasts, it being understood that such forecasts are as to future events and not to be viewed as facts, such forecasts are subject to significant uncertainties and contingencies, many of which are beyond the Parent’s control, that no assurance can be given that any particular Projections will be realized and actual results may vary from such forecasts and that such variations may be material.

 

(c)           Since the March 31, 2023, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

 

(d)            As of the Closing Date, none of the Parent and its Subsidiaries has any Indebtedness or other obligations or liabilities, direct or contingent (other than (i) the liabilities reflected on Schedule 5.05, (ii) obligations arising under the Loan Documents, (iii) liabilities incurred in the ordinary course of business and (iv) liabilities disclosed in the Pro Forma Financial Statements) that, either individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.

 

 

Section 5.06           Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of its Restricted Subsidiaries or against any of their properties or revenues that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.07           Ownership of Property; Liens.

 

(a)            The Borrower and each of its Restricted Subsidiaries has good record title to, or valid leasehold interests in, or easements or other limited property interests in, all Real Property material to its business taken as a whole, including all Material Real Property Assets, free and clear of all Liens except for minor defects in title that do not in the aggregate materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(b)            As of the Closing Date, Schedule 5.07 contains a true and complete list of the Loan Parties’ owned and leased Material Real Property Assets.

 

Section 5.08           Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:

 

(a)            each of the Loan Parties, the Subsidiaries, and their respective assets and operations are and, other than any matters which have been finally resolved without further liability or obligation, within the time period specified by the applicable statute of limitations have been, in compliance with all applicable Environmental Laws, which includes obtaining, maintaining in full force and effect, and complying with the terms and conditions of all Environmental Permits required under such Environmental Laws to carry on the business of the Loan Parties and Subsidiaries as currently conducted;

 

(b)            none of the Loan Parties nor any of the Restricted Subsidiaries has received any written notice of any violation of or potential liability under any Environmental Laws, including any Environmental Liability and, to the knowledge of the Borrower, there are no facts, occurrences or conditions that would reasonably be expected to give rise to the receipt of such notice;

 

(c)            none of the Loan Parties, Subsidiaries nor any of the Real Property is the subject of any claims, investigations, liens, or judicial or administrative proceedings pending or, to the knowledge of the Borrower, threatened, under any Environmental Law, including with respect to any of the foregoing that could result in the revocation, suspension or adverse modification of any Environmental Permit held by any of the Loan Parties or Restricted Subsidiaries; and

 

(d)           there are no facts, conditions or occurrences arising out of or relating to the operations of any of the Loan Parties or Subsidiaries or arising out of or relating to the Real Property currently owned, leased or operated by any of the Loan Parties or Subsidiaries, or to the knowledge of the Borrower, Real Property or facilities formerly owned, leased or operated by any of the Loan Parties or Subsidiaries, including contamination by or the Release or threatened Release of Hazardous Materials, that would reasonably be expected to result in Environmental Liability, including any investigatory, remedial or corrective action.

 

 

Section 5.09           Taxes. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties and their Subsidiaries have filed all tax returns required to have been filed, and have paid all Taxes levied or imposed upon them or their properties that have become due and payable (including in their capacity as a withholding agent), except those which are being contested in good faith by appropriate proceedings for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax deficiency or assessment known to any Loan Parties against any Loan Parties that would, if made, individually or in the aggregate, have a Material Adverse Effect.

 

Section 5.10           ERISA Compliance.

 

(a)            Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan maintained by a Loan Party or ERISA Affiliate is in compliance with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder and other federal or state Laws.

 

(b)            (i) No ERISA Event has occurred during the five (5) year period prior to the date on which this representation is made or deemed made or is reasonably expected to occur; (ii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA with respect to a Multiemployer Plan; and (iv) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(b), as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

(c)            (i) The Plans of any Loan Party and any ERISA Affiliate are funded to the extent required by the terms of each Plan, if any, and by Law or otherwise to comply with the requirements of any Law applicable in the jurisdiction in which the relevant pension scheme is maintained, and (ii) neither any Loan Party nor any ERISA Affiliate maintains or contributes to a Pension Plan that is, or is expected to be, in at-risk status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code) or contributes to a Multiemployer Plan that is in “endangered” or “critical” status (within the meaning of Section 305 of ERISA or Section 432 of the Code), except, with respect to each of the foregoing clauses of this Section 5.10(c), as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

(d)            No Loan Party holds “plan assets,” within the meaning of the Plan Asset Regulations, and the execution, delivery and performance of this Agreement and the other Loan Documents by each such Loan Party, and the borrowing and repayment of amounts under this Agreement, as the case may be, will not constitute a non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975(c)(1)(A)–(C) of the Code.

 

 

(e)            Each Canadian Loan Party is in compliance with the requirements of the Employment Pension Plans Act (Alberta), the Pension Benefits Act (Ontario) and other federal or provincial laws with respect to each (i) Canadian Pension Plan and (ii) each Canadian Multi-Employer Plan, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, and (iii) Canadian Defined Benefit Plan. No fact or situation that may reasonably be expected to result in a Material Adverse Effect exists in connection with any Canadian Pension Plan. No Canadian Pension Event has occurred. No Canadian Loan Party has a Canadian Defined Benefit Plan. No lien has arisen, choate or inchoate, in respect of any Canadian Loan Party or their property in connection with (a) any Canadian Pension Plan, or (b) any Canadian Multi-Employer Plan (in each case, other than a Permitted Lien).

 

Section 5.11           Subsidiaries; Equity Interests. The Subsidiaries listed on Schedule 5.11 constitute all of the Subsidiaries of the Parent and the Borrower as of the Closing Date.

 

Section 5.12           Margin Regulations; Investment Company Act.

 

(a)            The Borrower is not engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, in either case in violation of Regulation U, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U.

 

(b)            No Loan Party is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 

Section 5.13           Disclosure.

 

(a)            As of the Closing Date, no written report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party (other than projections (including the Pro Forma Financial Statements), budgets, estimates and other forecasts and forward-looking information and other information of a general economic or industry specific nature (collectively, the “Projections”)) to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished), when taken as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein (when taken as a whole), in the light of the circumstances under which they were made, not materially misleading. With respect to the Projections, the Borrower represents, as of the Closing Date, that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that such Projections are not be viewed as facts, that actual results during the period or period covered by such Projections may differ from projected results, and that such differences may be material.

 

(b)           As of the Closing Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership Certification, if any, provided on or prior to the Closing Date to any Lender in connection with this Agreement is true and correct in all respects.

 

 

Section 5.14           Labor Matters. Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against the Borrower or any of its Restricted Subsidiaries pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of the Borrower or any of its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with such matters; and (c) all payments due from the Borrower or any of its Restricted Subsidiaries on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant party.

 

Section 5.15           Intellectual Property; Licenses, Etc. The Borrower and its Restricted Subsidiaries own, license or possess the right to use all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, licenses, technology, software, know-how, database rights, design rights and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses as currently conducted, and, to the knowledge of the Borrower, such IP Rights do not conflict with the rights of any Person, except to the extent such failure to own, license or possess or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. The business of any Loan Party or any of its Subsidiaries as currently conducted does not infringe upon, misappropriate or otherwise violate any IP Rights held by any Person except for such infringements, misappropriations and violations, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the IP Rights, is filed and presently pending or, to the knowledge of the Borrower, presently threatened in writing against any Loan Party or any of its Subsidiaries, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.16           Solvency. On the Closing Date, after giving effect to the Transactions, the Parent and its Restricted Subsidiaries, on a consolidated basis, are Solvent.

 

Section 5.17           OFAC; USA PATRIOT Act; FCPA; Anti-Terrorism Laws.

 

(a)            To the extent applicable, each of the Parent, the Borrower and the other Subsidiaries is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, the International Emergency Economic Powers Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act and (iii) the Proceeds of Crime Act.

 

(b)            Neither the Borrower nor any of its Subsidiaries nor, to the knowledge of the Borrower and the other Loan Parties, any director, officer, employee, agent or controlled affiliate of the Borrower or any of its Subsidiaries is currently the subject of any Sanctions, nor is the Borrower or any of its Subsidiaries located, organized or resident in any country or territory that is the subject of Sanctions.

 

(c)            No part of the proceeds of the Loans will be used, directly or indirectly, by the Borrower (i) in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or (ii) for the purpose of financing any activities or business of or with any Person, or in any country or territory, that, at the time of such financing, is the subject of any Sanctions, to the extent in violation of any applicable Sanctions.

 

 

(d)            Notwithstanding the foregoing, the representations given in this Section 5.17 shall not be made by nor apply to any Person that qualifies as a corporation that is registered or incorporated under the laws of Canada or any province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) insofar as such representations would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.

 

Section 5.18           Security Documents.

 

(a)           Valid Liens. Subject to the provisions, limitations or exceptions set forth in this Agreement or the other relevant Loan Documents, the Collateral Document delivered pursuant to Sections 4.01, 6.11, 6.13 and/or 6.20 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral described therein to the extent intended to be created thereby and (i) when financing statements and other filings in appropriate form are filed in the offices specified in the Security Agreement or the Canadian Pledge and Security Agreement, as applicable, and (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the Security Agreement), the Liens created by the Collateral Documents shall constitute fully perfected Liens on, and security interests in (to the extent intended to be created thereby), all right, title and interest of the respective Loan Parties in such Collateral to the extent perfection can be obtained by filing financing statements, possession or control, in each case subject to no Liens other than Liens permitted under this Agreement.

 

(b)            PTO Filing; Copyright Office Filing. If any Intellectual Property Security Agreement or a short form thereof is properly filed in the United States Patent and Trademark Office, the United States Copyright Office and the Canadian Intellectual Property Office, the Liens created by such Intellectual Property Security Agreement shall, to the extent such filings may perfect such interests, constitute fully perfected Liens on, and security interests in, all right, title and interest of the respective Loan Parties thereunder in Patents (as defined in the Intellectual Property Security Agreement) or Trademarks (as defined in the Intellectual Property Security Agreement) registered or applied for with the United States Patent and Trademark Office or the Canadian Intellectual Property Office, or Copyrights (as defined in such Intellectual Property Security Agreement) registered or applied for with the United States Copyright Office or the Canadian Intellectual Property Office as the case may be, in each case subject to no Liens other than Liens permitted under this Agreement (it being understood that subsequent recordings in the United States Patent and Trademark Office, the United States Copyright Office, and the Canadian Intellectual Property Office may be necessary to establish a Lien on certain registrations and applications for Patents, Trademarks and Copyrights acquired by the Loan Parties thereof after the Closing Date).

 

 

(c)            Mortgages. Upon recording thereof in the appropriate recording office, each Mortgage and Leasehold Mortgage is effective to create, in favor of the Real Property Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable perfected Liens on, and security interest in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Properties thereunder, subject only to Liens permitted under this Agreement, and when the Mortgages are filed in the office of the county clerk for the county in which the Mortgaged Property is located, such Mortgage shall constitute fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties, in each case prior and superior in right to any other person, other than Liens permitted under this Agreement.

 

Notwithstanding anything herein (including this Section 5.18) or in any other Loan Document to the contrary, neither the Borrower nor any other Loan Party makes any representation or warranty as to (A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Equity Interests of any Foreign Subsidiary (other than a Canadian Loan Party), or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign Law or (B) the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest to the extent such pledge, security interest, perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or (C) on the Closing Date and until required pursuant to Section 6.20, the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent not required to be delivered on the Closing Date, but required to be delivered pursuant to Section 6.20.

 

Section 5.19          [Reserved].

 

Section 5.20           No Default. No Loan Party nor any of their Restricted Subsidiaries is in default in the payment or performance of any of its or their Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any of its Restricted Subsidiaries is in default under any order, award or decree of any Governmental Authority or arbitrator binding upon or affecting it or them or by which any of its or their properties or assets may be bound or affected in any respect which could reasonably be expected to have a Material Adverse Effect, and no such order, award or decree could reasonably be expected to materially adversely affect the ability of the Borrower and its Restricted Subsidiaries taken as a whole to carry on their businesses as presently conducted or the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party.

 

Section 5.21           Insurance. Schedule 5.21 sets forth a description of all insurance maintained by or on behalf of the Loan Parties and their Restricted Subsidiaries as of the Closing Date. As of the Closing Date, all premiums in respect of such insurance that are due and owing have been paid. The Borrower maintains, and has caused each Restricted Subsidiary to maintain, with financially sound and reputable insurance companies, insurance on all their real and personal property in such amounts, subject to such deductibles and self-insurance retentions and covering such properties and risks as are adequate and customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.

 

 

Section 5.22           Burdensome Agreements. No Loan Party is subject to any Burdensome Agreements except Burdensome Agreements permitted under Section 7.08.

 

Section 5.23           Affected Financial Institutions. No Loan Party is an Affected Financial Institution.

 

ARTICLE VI
AFFIRMATIVE COVENANTS

 

Until Payment in Full, from and after the Closing Date, the Parent and the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each of its Restricted Subsidiaries, as applicable, to:

 

Section 6.01           Financial Statements.

 

(a)            Deliver to the Administrative Agent, for prompt further distribution to each Lender, as soon as available, but in any event not later than the earlier to occur of (i) the fifteenth day after the Form 10-K Annual Report is filed with the Securities and Exchange Commission with respect to the end of each fiscal year of the Parent, and (ii) the 100th day after the end of each fiscal year of the Parent, annual audited financial statements of the Parent and its Subsidiaries, including all notes thereto, which statements shall include, on a consolidated basis, a balance sheet as of the end of such fiscal year and a statement of operations, a statement of changes in equity and a statement of cash flows for such fiscal year, all setting forth in comparative form the corresponding figures from the previous fiscal year and accompanied by a report and opinion of Grant Thornton LLP (or an accounting firm of national standing reasonably acceptable to the Administrative Agent (it being understood that any of the “big four” accounting firms is acceptable to the Administrative Agent)) which report shall not contain any qualification (and be without comment as to the accountants’ opinion whether such Person is a “going concern” or can continue to be a “going concern”) (other than resulting from (x) impending debt maturities occurring within 12 months of such audit, (y) any actual or prospective breach of any financial covenant contained in any documentation governing Indebtedness or (z) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary), and shall state that such financial statements, in the opinion of such accountants, present fairly, in all material respects, the financial position of the Parent and its Subsidiaries as of the date thereof and the results of its operations and cash flows for the period covered thereby in conformity with GAAP consistently applied;

 

(b)           Deliver to the Administrative Agent, for prompt further distribution to each Lender, as soon as available, but in any event not later than forty-five (45) days after the end of each of the first three quarterly periods of each fiscal year of the Parent, the quarterly unaudited financial statements of the Parent and its Subsidiaries, which statements shall include (i) a balance sheet as of the end of the respective fiscal quarter, (ii) a statement of operations for such respective fiscal quarter and for the fiscal year to date setting forth in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and (iii) a statement of cash flows for the fiscal year to date setting forth in comparative form the corresponding figures in the corresponding period of the preceding fiscal year, all prepared in reasonable detail and in accordance with GAAP and certified by a financial officer of the Borrower as fairly and accurately presenting in all material respects the financial condition and results of operations of the Parent and its Subsidiaries, on a consolidated basis, at the dates and for the periods indicated therein, subject to normal year-end adjustments; and

 

 

(c)            As soon as available, but in any event within 60 days of each fiscal year of the Parent, a management-prepared budget of the Parent and its Restricted Subsidiaries for such fiscal year (which budget shall be limited to a Capital Expenditure line, an income statement presenting profitability to the EBITDA line and a summary of cash flows in the form provided to the Administrative Agent prior to the Closing Date or otherwise in a form reasonably acceptable to the Administrative Agent).

 

Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 may be satisfied with respect to financial information of the Parent and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of the Parent (or any direct or indirect parent of the Parent) or (B) the Parent’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B), (i) to the extent such information relates to a parent of the Parent, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to the Parent (or such parent), on the one hand, and the information relating to the Parent and the Subsidiaries on a stand-alone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and, except as permitted in Section 6.01(a), shall not contain any qualifications or exceptions as to the scope of such audit or any “going concern” explanatory paragraph or like qualification (other than resulting from (x) the impending maturity of any Indebtedness, (y) any actual or prospective breach of any financial covenant contained in any Indebtedness or (z) or the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary).

 

Documents required to be delivered pursuant to this Section 6.01 and Sections 6.02(b) and (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower (or any direct or indirect parent of the Borrower) posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website (or the website of any direct or indirect parent of the Borrower); or (ii) on which such documents are posted on the Borrower’s behalf on any Platform, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon reasonable written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which notification may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; provided, further, that a failure to deliver such notice required by this paragraph shall not constitute a Default hereunder. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

 

 

Section 6.02           Certificates; Other Information. Deliver to the Administrative Agent for prompt further distribution to each Lender:

 

(a)           concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;

 

(b)            promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which the Parent, the Borrower or any Restricted Subsidiary files with the SEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto; provided that notwithstanding the foregoing, the obligations in this Section 6.02(b) may be satisfied so long as such information is publicly available on the SEC’s EDGAR website;

 

(c)            promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary course of business) or material statements or material reports furnished to any holder of debt securities (other than in connection with any board observer rights) of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of any Junior Financing Documentation, if any, and any Permitted Refinancing thereof, in each case in a principal amount in excess of the Threshold Amount, and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;

 

(d)            together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates only, a report setting forth the information required by sections describing the legal name and the jurisdiction of formation of each Loan Party and the location of the chief executive office of each Loan Party or confirming that there has been no change in such information since the later of the Closing Date or the date of the last such report, and (ii) a list of each Subsidiary of the Parent that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or an Excluded Subsidiary as of the date of delivery of such Compliance Certificate or confirmation that there has been no change in such information since the later of the Closing Date or the date of the last such list; and

 

(e)            promptly, such additional information regarding the business, legal, financial or corporate affairs of the Loan Parties or any of their respective Restricted Subsidiaries, as the Administrative Agent may from time to time reasonably request, provided, however, that none of the Parent nor any Restricted Subsidiary shall be required to disclose or provide any information (i) that constitutes non-financial trade secrets or non-financial proprietary information of the Parent or any of its Subsidiaries or any of their respective customers and/or suppliers, (ii) in respect of which, disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by any applicable requirement of Law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which, the Parent or any Restricted Subsidiary owes confidentiality obligations to any third party.

 

 

The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debtdomain, Roadshow Access (if applicable) or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees to make all Borrower Materials that the Borrower intends to be made available to Public Lenders clearly and conspicuously designated as “PUBLIC.” By designating Borrower Materials as “PUBLIC,” the Borrower authorizes such Borrower Materials to be made available to a portion of the Platform designated “Public Investor,” which is intended to contain only information that is publicly available or not material information (though it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities laws or is of a type that would be publicly available if the Borrower were a public reporting company (as reasonably determined by the Borrower). Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC.” The Borrower agrees that (i) any Loan Documents, (ii) any financial statements delivered pursuant to Section 6.01 (excluding, for the avoidance of doubt, Section 6.01(c)) and (iii) any Compliance Certificates delivered pursuant to Section 6.02(a) and (iv) notices delivered pursuant to Section 6.03(a) will be deemed to be “public-side” Borrower Materials and may be made available to Public Lenders.

 

Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.

 

Section 6.03           Notices. Promptly after a Responsible Officer of the Borrower or any Guarantor has obtained knowledge thereof, notify the Administrative Agent:

 

(a)            of the occurrence of any Default or Event of Default;

 

(b)           of any matter that has resulted or would reasonably be expected to result in a Material Adverse Effect;

 

(c)            of the filing or commencement of any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority, (i) against the Parent, the Borrower or any of its Restricted Subsidiaries thereof that would reasonably be expected to result in a Material Adverse Effect or (ii) with respect to any Loan Document;

 

 

(d)           of any judicial or administrative action arising under any Environmental Law against or of any non-compliance by any Loan Party or Subsidiary with any Environmental Law or Environmental Permit that would reasonably be expected to result in a Material Adverse Effect; and

 

(e)            as soon as practicable after, and in any event within thirty (30) days after the Borrower knows thereof, of (A) any ERISA Event shall have occurred that, either alone or together with any other ERISA Event, results in liability of the Parent, the Borrower or any Subsidiary in an aggregate amount which would reasonably be expected to have a Material Adverse Effect and (B) any Canadian Pension Event shall have occurred and in each case, in addition to such notice, deliver to the Administrative Agent and each Lender whichever of the following may be applicable: (x) a certificate of a Responsible Officer on behalf of the Borrower setting forth details as to such Reportable Event and the action that the Borrower or such ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice of such Reportable Event that may be required to be filed with PBGC or any other applicable Governmental Authority, or (y) any notice delivered by PBGC or any other applicable Governmental Authority evidencing its intent to institute such proceedings or any notice to PBGC or any other applicable Governmental Authority that such Plan is to be terminated, as the case may be.

 

Each notice pursuant to this Section 6.03 shall be accompanied by a written statement of a Responsible Officer of the Borrower (x) that such notice is being delivered pursuant to Section 6.03(a), (b), (c), (d) or (e) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.

 

Section 6.04           Payment of Tax Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable, all its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property (including in its capacity as a withholding agent), except, in each case, (i) to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP or (ii) if such failure to pay or discharge such obligations and liabilities would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 6.05           Preservation of Existence, Etc.

 

(a)            Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except (x) in a transaction permitted by Section 7.04 or 7.05 and (y) any Restricted Subsidiary (other than the Borrower) may merge, amalgamate or consolidate with any other Restricted Subsidiary; and

 

(b)           take all reasonable action to maintain all rights, privileges (including its good standing where applicable in the relevant jurisdiction), permits, licenses and franchises necessary or desirable in the normal conduct of its business,

 

 

except, in the case of clause (a) (other than with respect to the Borrower) or (b), (i) to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) pursuant to a transaction permitted by Article VII or subclause (y) of clause (a) of this Section 6.05.

 

Section 6.06           Maintenance of Properties. Except if the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and fire, casualty or condemnation excepted.

 

Section 6.07           Maintenance of Insurance.

 

(a)           Generally. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons.

 

(b)            Requirements of Insurance. All such insurance shall (i) to the extent the applicable insurer will agree based on the commercially reasonable efforts of the Borrower, provide that no cancellation thereof shall be effective until at least ten (10) days (or, to the extent reasonably available, thirty (30) days) after receipt by the Collateral Agent of written notice thereof (the Borrower shall deliver a copy of the policy (and to the extent any such policy is cancelled or renewed, a renewal or replacement policy), insurance certificate with respect thereto or other evidence thereof to the Administrative Agent and Collateral Agent) and (ii) name the Collateral Agent as lender loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance (excluding any business interruption insurance policy, any workers’ compensation policy, any employee liability policy or any representation and warranty insurance policy)) (it being understood that, absent an Event of Default, any proceeds of any such property insurance shall be delivered by the insurer(s) to the Parent, the Borrower or one of its Restricted Subsidiaries and applied in accordance with this Agreement), as applicable; provided that the Borrower shall have 90 days after the Closing Date (or such later date as agreed by the Collateral Agent) to comply with the requirements of this clause (b) with respect to policies in effect on the Closing Date.

 

(c)            Flood Insurance. If any portion of any Mortgaged Property in the United States is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws, to the extent required by the Administrative Agent or any Lender, (a) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (b) deliver to the Collateral Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, including a copy of the flood insurance policy and declaration page relating thereto.

 

 

 

Section 6.08     Compliance with Laws. Comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 6.09     Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied and which reflect all material financial transactions and matters involving the material assets and business of the Parent, the Borrower or a Restricted Subsidiary, as the case may be (it being understood and agreed that certain Foreign Subsidiaries may maintain individual books and records in conformity with generally accepted accounting principles in their respective countries of organization and that such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).

 

Section 6.10     Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 6.10 and the Administrative Agent shall not exercise such rights more often than one (1) time during any fiscal year and only one (1) such time shall be at the Borrower’s expense; provided further that when an Event of Default exists and is continuing, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Parent’s independent public accountants. Notwithstanding anything to the contrary in this Section 6.10, none of the Parent, the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to attorney-client or similar privilege or constitutes attorney work-product.

 

 

Section 6.11     Additional Subsidiaries; Additional Collateral.

 

(a)           Additional Subsidiaries. If any additional Subsidiary (other than Excluded Subsidiaries) is formed or acquired (or otherwise becomes a Subsidiary) after the Closing Date, then the Borrower will, as promptly as practicable and, in any event, within thirty (30) days (or such longer period as the Administrative Agent in its reasonable discretion may agree to in writing (including electronic mail)) after such Subsidiary is formed or acquired, notify the Administrative Agent (i) whether the Borrower intends to designate such Subsidiary as an Unrestricted Subsidiary in accordance with Section 6.14 or (ii) if the Subsidiary is a wholly-owned Domestic Subsidiary of the Parent that is a Restricted Subsidiary (other than an Excluded Subsidiary) or the Borrower elects by written notice to the Administrative Agent to designate such wholly-owned Subsidiary as a Canadian Loan Party, in the case of this clause (ii), the Parent or the Borrower will cause the Collateral and Guarantee Requirement to be satisfied with respect to such additional Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.

 

(b)           Additional Collateral. With respect to the following specified property and assets acquired after the Closing Date, the Borrower shall cause the Collateral and Guarantee Requirement to be satisfied with respect to such property and assets (no later than the dates specified in the Collateral and Guarantee Requirement):

 

(A)    with respect (i) to any fee owned Material Real Property Assets and (ii) any part of the Grand Mesa Pipeline or the Delaware Pipeline that is a Material Real Property Asset of the type described in the preceding clause (i) in each case, (1) owned by any Loan Party after the Closing Date; and

 

(B)     with respect to Other Specified Property acquired by any Loan Party after the Closing Date.

 

Notwithstanding the foregoing, if so required by the Administrative Agent or any Lender, the Collateral Agent (or its designee or sub-agents) shall not enter into any Mortgage in respect of any Real Property, until the date that is the later of (1) (a) if such Mortgaged Property relates to a property not located in a “special flood hazard area”, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a “special flood hazard area”, thirty (30) days, after the Borrower has delivered to the Administrative Agent and such Lender(s) the following documents in respect of such real property, in each case, solely to the extent required by the Administrative Agent or such Lender: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Insurance Laws, evidence of required flood insurance and (2) the Collateral and Guarantee Requirement specified timing.

 

Section 6.12     Compliance with Environmental Laws. Except, in each case, to the extent that the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) comply, and take all commercially reasonable actions to cause all lessees and other Persons operating or occupying its properties to comply with all applicable Environmental Laws and the terms and conditions of all Environmental Permits; (ii) obtain, renew and maintain in full force and effect, as applicable, all Environmental Permits as necessary for its operations and properties; and, (iii) in each case to the extent the Loan Parties are required by Environmental Laws, conduct any investigatory, remedial or corrective action necessary to address Hazardous Materials at any property or facility in accordance with Environmental Laws.

 

 

Section 6.13     Further Assurances. To the extent required under herein or any of the Collateral Documents (and subject to the limitations set forth herein or therein), the Loan Parties shall, at their sole expense, execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions which may be necessary, including those the Collateral Agent may from time to time reasonably request, to create, better assure, preserve, protect, defend and perfect the security interest and the rights and remedies created under the Collateral Documents for the benefit of the Collateral Agent, the Real Property Collateral Agent, and the Secured Parties. Such security interests and Liens will be created under the Collateral Documents and, to the extent necessary, other security agreements and other instruments and documents in form reasonably satisfactory to the Collateral Agent or the Real Property Collateral Agent, as the case may be.

 

Section 6.14     Designation of Subsidiaries. The Borrower or the Parent may at any time designate any Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary (it being understood and agreed that as of the Closing Date, NGL Water Solutions Holdco, LLC is an Unrestricted Subsidiary); provided that (i) immediately before and after such designation, no Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, the Borrower shall be in compliance, on a Pro Forma Basis, with the Financial Performance Covenant (it being understood that if no Test Period cited in Section 7.09 has passed, the Financial Performance Covenant for the first Test Period cited in such Section shall be tested in a manner reasonably satisfactory to the Administrative Agent) if then in effect, and, as a condition precedent to the effectiveness of any such designation, the Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance, and (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a ”Restricted Subsidiary” for the purpose of any Junior Financing. The designation of any Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s or its Subsidiary’s (as applicable) Investment therein and (iv) (x) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if, on the date of and after giving effect to such designation, such Unrestricted Subsidiary (or any Subsidiary thereof) would own (or hold an exclusive license with respect to) any Material Intellectual Property (and no Material Intellectual Property may be transferred (including by way of an exclusive license) to an existing Unrestricted Subsidiary) and (y) no Unrestricted Subsidiary may, at any time, own (or hold an exclusive license with respect to) Material Intellectual Property. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of the Borrower’s or its Subsidiary’s (as applicable) Investment in such Subsidiary.

 

Section 6.15     Maintenance of Ratings. Use commercially reasonable efforts to (i) cause the Initial Term Loans in existence on the Closing Date to be continuously rated (but not any specific rating) by at least two of Moody’s, S&P and Fitch and (ii) maintain a public corporate rating (but not any specific rating) from at least two of Moody’s, S&P and Fitch.

 

 

Section 6.16     Change in Nature of Business. Continue to, engage in any material lines of business which are not substantially different from those lines of business conducted (or proposed to be conducted) by the Parent and its Restricted Subsidiaries on the Closing Date, any Permitted Business or any business reasonably related, similar, complementary, corollary, synergistic or ancillary thereto or reasonable extensions, developments or expansions thereof (including any geographic expansion of the business).

 

Section 6.17     Accounting Changes. Continue to use the same fiscal year; provided, however, that the Parent may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the Parent, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.

 

Section 6.18     Use of Proceeds.

 

(a)            The proceeds of the Initial Term Loans received on the Closing Date will be used to finance the Transactions, to pay Transaction Expenses and for working capital needs and general corporate purposes of the Borrower and its Subsidiaries.

 

(b)            The Borrower will not request any Loans, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

 

Section 6.19     Status Calls. Following delivery of the information required pursuant to clause (a) or (b) of Section 6.01 (but not more frequently than quarterly), the Borrower will participate in a conference call at a time selected by the Borrower for Lenders that choose to participate, to discuss the financial condition and results of operations of the Loan Parties for the most recently-ended period for which financial statements have been delivered; provided that the requirement to participate in any such conference call for the applicable quarter shall be deemed satisfied if the Borrower (or any direct or indirect parent thereof) conducts a customary public earnings call for such fiscal quarter.

 

Section 6.20     Post-Closing Deliveries. The Borrower hereby agrees to deliver, or cause to be delivered, to Administrative Agent, the items described on Schedule 6.20 on or before the dates specified with respect to such items, or such later dates as may be agreed to by the Administrative Agent in its sole discretion.

 

Section 6.21     ERISA; Canadian Pension Plans. No ERISA Event or Canadian Pension Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events and Canadian Pension Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect. The present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Accounting Standards Codification 715-30) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans, in each case by an amount that, if required to be paid by the Borrower and its Subsidiaries, would reasonably be expected to have a Material Adverse Effect.

 

 

Section 6.22     Accuracy of Information. The Loan Parties will ensure that (a) all information (other than Projections) and information of a general economic or industry specific nature) that has been or will be made available by or on behalf of the Parent, the Borrower or any of its Restricted Subsidiaries to the Administrative Agent or any Lender in connection with this Agreement or any other Loan Document or any amendment or other modification hereof or thereof (as modified or supplemented by other information so furnished), when taken as a whole, is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made and (b) the financial projections, budgets, estimates and other forward-looking information that have been or will be made available by or on behalf of the Parent, the Borrower or any of its Restricted Subsidiaries to the Administrative Agent or any Lender in connection with this Agreement or any other Loan Document or any amendment or other modification hereof or thereof have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time furnished to us (it being recognized that such Projections are not to be viewed as facts and 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).

 

Section 6.23     Anti-Corruption; Sanctions. Each Loan Party shall comply with and cause its Subsidiaries to comply with, and maintain in effect and enforce, policies and procedures designed to ensure compliance by each Loan Party, their Subsidiaries, and their respective directors, officers, employees and agents with Anti-Corruption Laws and Sanctions. Each Loan Party will not use the proceeds of any Loan, and will not allow such proceeds to be used (to such Loan Party’s knowledge after due care and inquiry) in any way that will violate any Anti-Corruption Laws or Sanctions. Notwithstanding the foregoing, the covenant in this Section 6.23 shall not apply to any Person that qualifies as a corporation that is registered or incorporated under the laws of Canada or any province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act(Canada) insofar as such covenant would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.

 

Section 6.24     Swap Contracts.

 

(a)            No Loan Party will, nor will it permit any Restricted Subsidiary to, enter into any Swap Contract, except (i) Swap Contracts entered into to hedge or mitigate risks to which the Parent, the Borrower or any Subsidiary has actual exposure and (ii) Swap Contracts entered into in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Parent, the Borrower or any Restricted Subsidiary.

 

 

(b)           No Loan Party will, nor will it permit any Restricted Subsidiary to, allow the Risk Management Policy to cease to be in full force and effect, and in accordance therewith, cease to conduct its business in compliance with the Risk Management Policy.

 

ARTICLE VII
NEGATIVE COVENANTS

 

Until Payment in Full, from and after the Closing Date:

 

Section 7.01     Liens. None of the Parent, the Borrower nor the Restricted Subsidiaries shall create, incur, assume or suffer to exist any Lien upon any of its property or assets or revenues, whether now owned or hereafter acquired, other than the following:

 

(a)            (i) Liens pursuant to any Loan Document; (ii) Liens pursuant to any ABL Facility Documents so long as the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (A) the Crossing Liens Intercreditor Agreement as an “ABL Representative” and (B) the Junior Lien Intercreditor Agreement (if any) as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement); and (iii) Liens securing Indebtedness incurred pursuant to Section 7.03(a)(iii); provided that (A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with Indebtedness under the Initial Facility, the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (1) the Pari Passu Intercreditor Agreement as an “Additional Priority Debt Representative”, (2) the Crossing Liens Intercreditor Agreement as a “Fixed Debt Representative” and (3) the Junior Lien Intercreditor Agreement (if any) as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement) and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis with Indebtedness under the Initial Facility, the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement);

 

(b)            (i) Liens existing on the Closing Date and listed on Schedule 7.01(b), (ii) Liens arising under Contractual Obligations listed on Schedule 7.08, and (iii) any modifications, replacements, renewals, refinancings, or extensions of any of the foregoing; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03(b)(i), and (y) proceeds and products thereof, and (B) the replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens, to the extent constituting Indebtedness, is permitted by Section 7.03;

 

(c)            Liens for Taxes that are not overdue for a period of more than sixty (60) days or that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;

 

 

(d)            statutory or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens that secure amounts not overdue for a period of more than sixty (60) days or if more than sixty (60) days overdue, that are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate actions diligently conducted;

 

(e)            (i) pledges, deposits or Liens in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Parent, the Borrower or any of its Restricted Subsidiaries;

 

(f)            pledges, deposits or Liens to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory or regulatory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including (i) those to secure human health, workplace safety and environmental protection obligations and (ii) letters of credit and bank guarantees required or requested by any Governmental Authority in connection with any contract or Law) or deposits to secure public or statutory obligations or deposits or cash or United States government bonds to secure surety, or deposits as security for contested taxes or import or customs duties, in each case, incurred in the ordinary course of business;

 

(g)            (i) easements, surface leases, rights-of-way, covenants, conditions, restrictions, encroachments, survey matters, zoning and similar restrictions, protrusions, permits and other similar encumbrances and other minor title defects, imperfection or irregularity and oil, gas and other mineral interests, reservations, royalty interests and leases or subleases affecting Real Property, which do not in the aggregate materially interfere with the ordinary conduct of the business of the Parent or any of its Restricted Subsidiaries, taken as a whole, and (ii) any exceptions on the Mortgage Policies, issued in connection with the Mortgaged Properties;

 

(h)            Liens (i) securing judgments or orders for the payment of money not constituting an Event of Default under Section 8.01(h) or (ii) securing appeal or other surety bonds related to such judgments;

 

(i)            leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not (x) interfere in any material respect with the business of the Parent and its Restricted Subsidiaries, taken as a whole or (y) secure any Indebtedness;

 

(j)            Liens (i) in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods and (ii) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

 

(k)            Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;

 

(l)            Liens (i) on cash advances or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections 7.02(c), (i), (n), (t), (x), (y) or (aa) to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

 

(m)            Liens (i) in favor of the Parent or any Restricted Subsidiary on assets of a Restricted Subsidiary that is not a Loan Party securing permitted intercompany Indebtedness and (ii) in favor of the Parent, the Borrower or any Subsidiary Guarantor;

 

(n)            any interest or title of a lessor, sublessor, licensor or sublicensor under leases, subleases, licenses or sublicenses entered into by the Parent or any of its Restricted Subsidiaries in the ordinary course of business;

 

(o)            Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Parent or any of its Restricted Subsidiaries in the ordinary course of business permitted, or not otherwise prohibited by this Agreement;

 

(p)            Liens deemed to exist in connection with Investments in repurchase agreements under Section 7.02;

 

(q)            (i) Liens to secure Swap Obligations that are permitted by Section 7.03(f) and (ii) Liens to secure obligations with respect to Banking Services in the ordinary course of business;

 

(r)            Liens that are contractual rights of set-off or rights of pledge (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Parent or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Parent or any of its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Parent or any of its Restricted Subsidiaries in the ordinary course of business;

 

(s)            Liens solely on any cash earnest money deposits made by the Parent or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

 

(t)            ground leases in respect of Real Property on which facilities owned or leased by the Parent or any of its Restricted Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased or held by the Parent, the Borrower or any of its Restricted Subsidiaries;

 

 

(u)            Liens to secure Indebtedness permitted under Section 7.03(e); provided that (i) such Liens are created within 360 days of the acquisition, construction, repair, lease or improvement of the property subject to such Liens, (ii) such Liens do not at any time encumber property (except for replacements, additions and accessions to such property) other than the property financed by such Indebtedness and the proceeds and products thereof and customary security deposits and (iii) with respect to Financing Leases, such Liens do not at any time extend to or cover any assets (except for replacements, additions and accessions to such assets) other than the assets subject to such Financing Leases and the proceeds and products thereof and customary security deposits; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;

 

(v)            Liens securing Indebtedness of Foreign Subsidiaries (other than any Canadian Loan Party) that is permitted to be incurred pursuant to Section 7.03(m) hereof and (ii) Liens to secure Indebtedness of Restricted Subsidiaries that are not Guarantors permitted under Section 7.03(m); provided that such Liens may not extend to any property or assets of the Parent or any Guarantor other than the Equity Interests of any non-Guarantor Restricted Subsidiaries;

 

(w)            Liens existing on property (including Equity Interests) at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14) or is merged with or into or consolidated with the Parent or any Restricted Subsidiary, in each case after the Closing Date; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary or merging with or into or consolidating with the Parent or any Restricted Subsidiary and (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted, or not otherwise prohibited, hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition);

 

(x)            (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business materially complies, and (ii) any zoning, order, decree, restriction, condition, permit or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property and all rights of condemnation or eminent domain that does not materially interfere with the ordinary conduct of the business of the Parent and its Restricted Subsidiaries, taken as a whole;

 

(y)            (i) Liens arising from precautionary Uniform Commercial Code and PPSA financing statement or similar filings or (ii) filing of Uniform Commercial Code financing statements in connection with operating leases;

 

(z)            Liens on insurance policies and the proceeds thereof, or other deposits, to secure the insurance premium financings;

 

 

(aa)     the modification, replacement, renewal or extension of any Lien permitted by clauses (u) and (w) of this Section 7.01; provided that (i) the Lien does not extend to any additional property, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03 (to the extent constituting Indebtedness);

 

(bb)         Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;

 

(cc)         Liens with respect to property or assets of the Parent or any of its Restricted Subsidiaries securing obligations (including Indebtedness permitted under Section 7.03(m)) in an aggregate principal amount outstanding at any time not to exceed the greater of $75,000,000 and 1.75% of Total Assets (after giving effect to any concurrent Investments), in each case determined as of the date of incurrence; provided, subject to the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement, that if such Indebtedness is secured by Liens on the Collateral the representative of the holders of any such Indebtedness (including any Other Debt Representative) becomes party, in the event that it is not already a party, to (i) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Initial Facility, the Junior Lien Intercreditor Agreement as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement), in the event that a Junior Lien Intercreditor Agreement is in effect at such time, the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement and (ii) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens on the Collateral securing the Initial Facility, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement);

 

(dd)         Liens to secure Indebtedness permitted under Section 7.03(q); provided that the representative of the holders of each such Indebtedness becomes party to (i) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Initial Facility, the Junior Lien Intercreditor Agreement (if any) as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement), if applicable, the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement and (ii) if such Indebtedness is secured by the Collateral on a junior priority basis to the Liens securing the Initial Facility, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement);

 

(ee)          Liens on the Collateral securing obligations in respect of (i) Credit Agreement Refinancing Indebtedness constituting Permitted First Priority Refinancing Debt or Permitted Second Priority Refinancing Debt (and any Permitted Refinancing of any of the foregoing); provided that the representative of the holders of each such Indebtedness (including any Other Debt Representative) becomes party, in the event that it is not already a party, to (A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Initial Facility, the Junior Lien Intercreditor Agreement as a “Senior Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement), in the event that a Junior Lien Intercreditor Agreement is in effect at such time, the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens on the Collateral securing the Initial Facility, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (or similar term, as defined in the Junior Lien Intercreditor Agreement) and (ii) Incremental Term Facilities;

 

 

(ff)           (i) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned by the Parent or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or joint venture and (ii) any restriction or encumbrance (including customary rights of first refusal and tag, drag and similar rights) with respect to the pledge or transfer of Equity Interests of (x) any Unrestricted Subsidiary, (y) any Subsidiary that is not a wholly owned Subsidiary or (z) the Equity Interests in any Person that is not a Subsidiary;

 

(gg)         deposits of cash with the owner or lessor of premises leased and operated by the Parent or any of its Subsidiaries to secure the performance of the Parent’s or such Subsidiary’s obligations under the terms of the lease for such premises;

 

(hh)        Liens on pipelines or pipeline facilities that arise by operation of law;

 

(ii)            non-exclusive licenses of patents, trademarks and other intellectual property rights granted by the Parent or any of its Restricted Subsidiaries in the ordinary course of business;

 

(jj)            Liens arising under operating agreements, joint venture agreements, partnership agreements, construction agreements, oil and gas leases, farmout agreements, division orders, agreements for the purchase, gathering, processing, treatment, sale, transportation or exchange of Hydrocarbons, unitization and pooling designations, declarations, orders and agreements, development agreements, participating agreements, area of mutual interest agreements, gas balancing agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, and other agreements arising in the ordinary course of the Parent’s or any of its Restricted Subsidiaries’ business that are customary in the Permitted Business;

 

(kk)         Liens on, or related to, properties or assets to secure all or part of the costs incurred in the ordinary course of a Permitted Business for gathering, transporting, compressing, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, including entering into Swap Obligations to support these businesses and the development, manufacture or sale of equipment or technology related to these activities; and

 

(ll)           statutory Liens or deemed trusts in respect of contributions to a Canadian Pension Plan or a Canadian Multi-Employer Plan that are (i) not yet due; or (ii) immaterial and inadvertently delinquent by a Canadian Loan Party as a result of reasonable error, provided that any contribution arrears described in this clause (ii) are rectified within thirty (30) days of the Canadian Loan Party becoming aware thereof.

 

 

For purposes of determining compliance with this Section 7.01, (A) Liens need not be incurred solely by reference to one category of Liens permitted by this Section 7.01 but are permitted to be incurred in part under any combination thereof and of any other available exemption, (B) in the event that such Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section 7.01, the Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this provision and (C) in the event that a portion of Indebtedness or other obligations secured by a Lien could be classified as secured in part pursuant to Section 7.01(dd) above (giving pro forma effect to the incurrence of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect thereof) as having been secured pursuant to Section 7.01(dd) above and thereafter the remainder of the Indebtedness or other obligations as having been secured pursuant to one or more of the other clauses of this Section 7.01 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time.

 

Section 7.02     Investments. None of the Parent, the Borrower nor the Restricted Subsidiaries shall directly or indirectly, make or hold any Investments, except:

 

(a)            Investments in Cash Equivalents;

 

(b)            loans or advances to officers, directors and employees of any Loan Party (or any direct or indirect parent thereof) or any of its Subsidiaries for (i) business-related travel, entertainment, relocation, drawing accounts and similar expenditures in the ordinary course of business or (ii) such other uses and purposes in the ordinary course of business; provided that the aggregate principal amount outstanding at any time under this clause (b)(ii) shall not exceed $5,000,000;

 

(c)            Investments in the Parent or any Restricted Subsidiary;

 

(d)            Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and deposits, prepayments and other credits to suppliers in the ordinary course of business;

 

(e)            Investments (excluding loans and advances made in lieu of Restricted Payments pursuant to and limited by Section 7.02(m) below) consisting of transactions permitted under Sections 7.01, 7.03 (other than 7.03(c) and (d)), 7.04 (other than 7.04(c), (d) or (e)), 7.05 (other than 7.05(e) and (g)), 7.06 (other than 7.06(e) or 7.06(i)) and 7.10, respectively;

 

(f)            Investments (i) existing or contemplated on the Closing Date and set forth on Schedule 7.02(f), and any modification, replacement, renewal, reinvestment or extension thereof and (ii) existing on the Closing Date by the Parent or any Restricted Subsidiary in the Parent or any other Restricted Subsidiary and any modification, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment in effect as of the Closing Date or as otherwise permitted by this Section 7.02;

 

(g)            Investments in Swap Contracts (including Commodity Hedge Agreements) permitted under Section 7.03;

 

 

(h)            promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 7.05;

 

(i)            any Investment by the Parent or any of its Restricted Subsidiaries in the form of a purchase or acquisition of one or more Person(s) or assets if as a result of such Investment:

 

(i)      (A) the Parent and its Restricted Subsidiaries maintain compliance with Section 6.16 and (B) (x) such Person becomes a Restricted Subsidiary, (y) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Parent, the Borrower or a Restricted Subsidiary and/or (z) such assets are acquired by the Parent, the Borrower or any other Restricted Subsidiary (any such purchase or acquisition, a “Permitted Acquisition”);

 

(ii)     subject to Section 1.02(l), no Default or Event of Default has occurred and is continuing immediately after giving effect to such purchase or acquisition; and

 

(iii)    to the extent applicable, Section 6.11 shall be complied with respect to any such newly acquired Restricted Subsidiary and property;

 

(j)            the Transactions and Investments made in connection with the Transactions;

 

(k)            Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;

 

(l)            Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;

 

(m)          loans and advances to the Borrower and any other direct or indirect parent of the Borrower not to exceed the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof) Restricted Payments permitted to be made to such parent by Sections 7.06(g), (h) or (i);

 

(n)           other Investments, which when combined with the aggregate amount of other Investments outstanding pursuant to this clause (n) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof, but giving effect to any positive return in respect thereof, including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts), do not exceed at the time when any such new Investment is made, the sum of (x) greater of (i) $200,000,000 and (ii) 3.75% of Total Assets (determined on the date of making such Investment, after giving effect to such Investments) and (y) the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this clause (n)(y), provided that, in the case of this clause (n)(y), the Cumulative Credit Conditions are satisfied;

 

 

(o)           advances of payroll payments to employees in the ordinary course of business;

 

(p)           Investments to the extent that payment for such Investments is made solely with Equity Interests (other than Disqualified Equity Interests) of the Parent;

 

(q)           Investments of a Restricted Subsidiary acquired after the Closing Date or of a Person merged or amalgamated or consolidated into the Parent or the Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary in accordance with Section 7.04 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger or consolidation;

 

(r)            Investments constituting the non-cash portion of consideration received in a Disposition permitted by Section 7.05;

 

(s)           Guarantees by the Parent or any of its Restricted Subsidiaries of leases (other than Financing Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;

 

(t)            other Investments, which when combined with the aggregate amount of other Investments outstanding pursuant to this clause (t) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof, but giving effect to any positive return in respect thereof, including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts), does not exceed at the time when any such new Investment is made, the Available Equity Amount; provided that no Event of Default has occurred and is continuing immediately after giving effect to such Investment;

 

(u)           Permitted Intercompany Activities;

 

(v)           [reserved];

 

(w)           Investments consisting of Capital Expenditures reasonably necessary to permit the Parent, the Borrower or any Restricted Subsidiary, to (i) operate its properties and assets in accordance with prudent industry practice or (ii) to comply with applicable law (including any Environmental Laws);

 

(x)           any Investment; provided the Restricted Payment Conditions are satisfied;

 

(y)           Investments in joint ventures and Unrestricted Subsidiaries of the Parent or any of its Restricted Subsidiaries not to exceed the greater of (i) $200,000,000 and (ii) 3.75% of Total Assets (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

(z)           Investments in respect of surety and performance bonds and workers’ compensation, utility, lease, tax, performance and similar deposits and prepaid expenses in the ordinary course of business; and

 

 

(aa)     earnest money deposits required in connection with Permitted Acquisitions (or similar Investments).

 

Section 7.03     Indebtedness. Neither the Parent, the Borrower nor any of the Restricted Subsidiaries shall directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:

 

(a)            (i) Indebtedness of any Loan Party under the Loan Documents; (ii) Indebtedness of any Loan Party under the ABL Facility in an aggregate principal amount at any one time outstanding under this clause (a)(ii) not to exceed the greater of (A) $600,000,000 and (B) the Borrowing Base determined at such time and, in each case, any Permitted Refinancing thereof (provided that Permitted Refinancing Indebtedness under this clause (ii) shall be governed by a Borrowing Base); and (iii) Indebtedness in respect of the Secured Notes and Permitted Refinancing thereof, in an aggregate principal amount at any one time outstanding under this clause (a)(iii) not to exceed, when combined with the aggregate outstanding principal amount of (A) Indebtedness incurred under clause (a)(i) and (B) any Incremental Term Loans and Incremental Equivalent Debt incurred using the Free and Clear Incremental Amount, the greater of (A) $2,950,000,000 and (B) 40.0% of Total Assets;

 

(b)            (i) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b) and any Permitted Refinancing thereof and (ii) intercompany Indebtedness outstanding on the Closing Date and any refinancing thereof, of which any amount owed by a Restricted Subsidiary that is not a Loan Party to a Loan Party shall be evidenced by an Intercompany Note; provided that all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to an Intercompany Note;

 

(c)            Guarantees by the Parent, the Borrower and any Restricted Subsidiary in respect of Indebtedness of the Parent, the Borrower or any Restricted Subsidiary otherwise permitted hereunder; provided that (1) no Guarantee of any Junior Financing in excess of $50,000,000 shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on the terms set forth herein and (2) if the Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;

 

(d)            Indebtedness of the Parent, the Borrower or any Restricted Subsidiary owing to the Parent, the Borrower or any Restricted Subsidiary (or issued or transferred to any direct or indirect parent of a Loan Party which is substantially contemporaneously transferred to a Loan Party or any Restricted Subsidiary of a Loan Party) to the extent constituting an Investment permitted by Section 7.02; provided that all such Indebtedness shall be evidenced by an Intercompany Note;

 

(e)            (i) Attributable Indebtedness and other Indebtedness (including Financing Leases) financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by the Parent, the Borrower or any Restricted Subsidiary prior to or within 360 days after the acquisition, construction, repair, replacement, lease or improvement of the applicable asset in an aggregate amount not to exceed the greater of $200,000,000 and 3.75% of Total Assets (after giving effect to any concurrent Investments), in each case determined at the time of incurrence (together with any Permitted Refinancings thereof) at any time outstanding, (ii) Attributable Indebtedness arising out of sale leaseback transactions permitted by Section 7.05(j) and (iii) any Permitted Refinancing of any of the foregoing;

 

 

(f)            Indebtedness in respect of Swap Contracts in the ordinary course of business and not for speculative purposes;

 

(g)            (i) Indebtedness of the Parent, the Borrower or any Restricted Subsidiary that is a Loan Party incurred in connection with any Permitted Acquisition or Investment so long as, after giving Pro Forma Effect to such Permitted Acquisition or Investment and the incurrence of such Indebtedness, either, at the Borrower’s election (A) the Fixed Charge Coverage Ratio shall be no less than 2.00:1.00 determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available or (B) the Fixed Charge Coverage Ratio upon completion of the Permitted Acquisition or Investment shall be greater than or equal to the Fixed Charge Coverage Ratio immediately preceding such Permitted Acquisition or Investment; provided, that any Indebtedness incurred pursuant to this clause (g) shall, subject to the Permitted Earlier Maturity Indebtedness Exception, (1) have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred and (2) have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities and (ii) any Permitted Refinancing thereof;

 

(h)            Indebtedness representing deferred compensation to employees of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries incurred in the ordinary course of business;

 

(i)            Indebtedness consisting of promissory notes issued by the Parent, the Borrower or any of its Restricted Subsidiaries to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any direct or indirect parent of the Borrower permitted by Section 7.06;

 

(j)            Indebtedness incurred by the Parent, the Borrower or any of its Restricted Subsidiaries in connection with an Investment expressly permitted hereunder or any Disposition, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments;

 

(k)            Indebtedness consisting of obligations of the Parent, the Borrower or any Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Investments expressly permitted hereunder;

 

(l)            Indebtedness in respect of (i) Banking Services or (ii) netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts;

 

 

(m)            (i)(A) Indebtedness of the Parent, the Borrower or any Restricted Subsidiaries, in an aggregate principal amount at any time outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $75,000,000 and 1.75% of Total Assets, plus (B) additional Indebtedness of the Parent, the Borrower or any Restricted Subsidiaries in an aggregate outstanding principal amount at any time outstanding not greater than 100.00% of the Available Equity Amount at the time of such incurrence; provided that (I) no Event of Default has occurred and is continuing immediately after giving effect to the incurrence of such Indebtedness and (II) the proceeds of such Indebtedness shall not be used to make any Restricted Payment; and (ii) any Permitted Refinancing thereof;

 

(n)            Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

 

(o)            Indebtedness incurred by the Parent, the Borrower or any Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business, including in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;

 

(p)            obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Parent, the Borrower or any Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;

 

(q)            Indebtedness of the Borrower and/or any Guarantor in respect of one or more series of senior secured loans or notes (whether issued in a public offering, under Rule 144A of the Securities Act or in another private placement or otherwise) (and including any bridge financings in lieu of such notes), junior secured or unsecured “mezzanine” loans or notes or senior unsecured or subordinated loans or notes, in each case, pursuant to an indenture, interim agreement, loan agreement, note purchase agreement or otherwise and any extensions, renewals, refinancings and replacements thereof, including in the case of any such notes, any Registered Equivalent Notes (the “Incremental Equivalent Debt”); provided that (i) any such Incremental Equivalent Debt that is secured shall not be secured by any property or assets of the Parent, the Borrower or any Restricted Subsidiary other than the Collateral, (ii) in the case of Incremental Equivalent Debt secured on a pari passu basis with the Initial Facility (“Incremental Equivalent First Lien Debt”), subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity) and, in the case of Incremental Equivalent Debt that is secured on a junior lien basis to the Facilities (“Incremental Equivalent Junior Debt”) or is unsecured (“Incremental Equivalent Unsecured Debt”), subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness shall not be subject to scheduled amortization prior to maturity, (iii) in the case of Incremental Equivalent First Lien Debt, subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred, and in the case of Incremental Equivalent Junior Debt and Incremental Equivalent Unsecured Debt, subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness shall have a maturity date that is at least ninety-one (91) days after the Latest Maturity Date at the time such Indebtedness is incurred, (iv) the aggregate outstanding principal amount of all Incremental Equivalent Debt incurred in accordance with this Section 7.03(q), together with the aggregate principal amount of all Incremental Commitments and Incremental Term Loans shall not exceed the Incremental Availability Amount, (v) the security agreements, if applicable, relating to such Indebtedness are substantially the same as, or more favorable to the Loan Parties than, the Collateral Documents (or with such other differences as are reasonably satisfactory to the Administrative Agent), (vi) such Indebtedness is not guaranteed by any Subsidiaries of the Parent other than the Loan Parties, (vii) if such Incremental Equivalent Debt is secured, the Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable, (viii) in the case of Incremental Equivalent First Lien Debt in the form of term loans secured on a pari passu basis with the Initial Term Loans, other than MFN Excluded Debt, such Indebtedness shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan and (ix) subject to clauses (ii), (iii) and (viii) above, the amortization, pricing, rate floors, discounts, fees, premiums and optional prepayment and redemptions provisions applicable to such Incremental Equivalent Debt shall be determined by the Borrower and the holders of such Incremental Equivalent Debt;

 

 

(r)            Indebtedness of the Parent, the Borrower or any Restricted Subsidiary assumed in connection with any Permitted Acquisition or other Investment so long as, after giving Pro Forma Effect to such Permitted Acquisition or other Investment and the assumption of such Indebtedness (A) until such time as the Class D Preferred Units are redeemed in full and no Class D Preferred Units remain outstanding, the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis, shall be no greater than a Consolidated Total Net Leverage Ratio of 4.75:1.00 and (B) thereafter, the Fixed Charge Coverage Ratio is no less than 2.00:1.00 determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available;

 

(s)            Permitted Ratio Debt; provided that (i) no Event of Default shall have occurred and then be continuing (except, in the case of Permitted Ratio Debt used to finance a Permitted Acquisition, Investment or irrevocable payment, repurchase or redemption of Indebtedness), only no Payment or Bankruptcy Default (in respect of the Borrower) shall have occurred and then be continuing), (ii) the aggregate outstanding principal amount of Indebtedness incurred by the Restricted Subsidiaries that are not Guarantors pursuant to this clause (s) shall not exceed $50,000,000 and (iii) subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness shall (A) have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred and (B) have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities;

 

(t)            Credit Agreement Refinancing Indebtedness;

 

(u)           Indebtedness incurred in connection with the Class D Preferred Units;

 

 

(v)            Permitted Intercompany Activities (to the extent constituting Indebtedness); and

 

(w)            Indebtedness incurred by the Parent or any of its Restricted Subsidiaries in respect of the Indebtedness of any Unrestricted Subsidiary or any joint venture but only to the extent that such Indebtedness is the result of the Parent’s or any such Restricted Subsidiary’s being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or joint venture and not as guarantor of such Indebtedness; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (w) and then outstanding does not exceed $50,000,000.

 

For purposes of determining compliance with this Section 7.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (x) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such item of Indebtedness or any portion thereof (including as between the Free and Clear Incremental Amount (or any component thereof) and the Incurrence-Based Incremental Amount) in a manner that complies with this Section 7.03 and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan Documents and, in each case, any Permitted Refinancing thereof, will at all times be deemed to be outstanding in reliance only on the exception in Section 7.03(a) or (t) (but without limiting the right of the Borrower to classify and reclassify, or later divide, classify or reclassify, Indebtedness incurred under Section 2.13 or Sections 7.03(q) or 7.03(s)); provided further that all Indebtedness outstanding under the ABL Facility or the Secured Notes and, in each case, any Permitted Refinancing thereof, will at all times be deemed to be outstanding in reliance only on the exception in Section 7.03(a)(ii) or Section 7.03(a)(iii), as applicable. In the event that a portion of Indebtedness or other obligations could be classified as incurred under a “ratio-based” basket (giving pro forma effect to the incurrence of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any obligations in respect thereof) as having been incurred pursuant to such “ratio-based” basket and thereafter the remainder of the Indebtedness or other obligations as having been incurred pursuant to one or more of the other clauses of this Section 7.03 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time.

 

Section 7.04     Fundamental Changes. None of the Parent, the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions and including by way of, or as a result of, any Division/Series Transaction) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:

 

(a)            any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Parent (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Parent shall be the continuing or surviving Person and such merger does not result in the Parent ceasing to be a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the District of Columbia, (ii) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person and such merger does not result in the Borrower ceasing to be a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the District of Columbia or (iii) one or more other Restricted Subsidiaries; provided that when any Person that is a Loan Party is merging or amalgamating with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;

 

 

(b)            (i) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Parent, the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interest of the Parent and its Subsidiaries and if not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 (other than Section 7.05(e)) or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);

 

(c)            any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent, the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;

 

(d)            so long as no Event of Default exists or would immediately result therefrom, the Parent or the Borrower (as applicable, the “Subject Entity”) may merge or consolidate with any other Person; provided that (i) the Subject Entity shall be the continuing or surviving corporation or entity or (ii) if the Person formed by or surviving any such merger or consolidation is not the Subject Entity (any such other Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of the Subject Entity under this Agreement and the other Loan Documents to which the Subject Entity is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (F) the Subject Entity shall have delivered to the Administrative Agent a certificate signed by a Responsible Officer of the Subject Entity and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Subject Entity under this Agreement;

 

 

(e)            so long as no Event of Default exists or would immediately result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement;

 

(f)            the Parent, the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;

 

(g)            the Parent, the Borrower and the Subsidiaries may consummate Permitted Intercompany Activities; and

 

(h)            the Parent, the Borrower and the other Subsidiaries may effect the formation, dissolution, liquidation or Disposition of any Subsidiary pursuant to a Division/Series Transaction, provided that upon formation of such Subsidiary, the Borrower has complied with Section 6.11 to the extent applicable.

 

Section 7.05     Dispositions. None of the Parent, the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition (including by way of, or as a result of, any Division/Series Transaction), except:

 

(a)            (i) Dispositions of obsolete, non-core, worn out, surplus or other property, whether now owned or hereafter acquired, in the ordinary course of business and (ii) Dispositions of property no longer used or useful in the conduct of the business of the Parent, the Borrower or any of its Restricted Subsidiaries;

 

(b)            Dispositions of inventory and goods held for sale in the ordinary course of business and immaterial assets (including allowing any registrations or any applications for registration of any IP Rights to lapse or go abandoned in the ordinary course of business) in the ordinary course of business;

 

(c)            Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) all of the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;

 

(d)            Dispositions of property to the Parent, the Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;

 

 

(e)            to the extent constituting Dispositions, transactions permitted by Sections 7.01, 7.02 (other than Section 7.02(e)), 7.04 (other than Section 7.04(f)) and 7.06;

 

(f)            Dispositions contemplated as of the Closing Date and listed on Schedule 7.05(f);

 

(g)            Dispositions, liquidations or use of Cash Equivalents;

 

(h)            (i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license and other technology licenses), in each case in the ordinary course of business and which do not materially and adversely interfere with the business of the Parent or any of its Restricted Subsidiaries, and (ii) Dispositions of IP Rights that do not materially and adversely interfere with the business of the Parent or any of its Restricted Subsidiaries (or that avoid such interference by granting to the Parent or any of its Restricted Subsidiaries a license or other ownership rights to use such IP Rights);

 

(i)             transfers of property subject to Casualty Events;

 

(j)             Dispositions of property so long as (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would immediately result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $50,000,000 (at the time a legally binding commitment for such Disposition was entered into), the Parent or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent’s (or the Restricted Subsidiaries’, as applicable) most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Parent and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Parent or the applicable Restricted Subsidiary from such transferee that are converted by the Parent or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred eighty (180) days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Parent or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received (or the date on which a legally binding commitment for such Disposition is entered into) not to exceed the greater of (i) $85,000,000 and (ii) 12.5% of LTM Consolidated EBITDA at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents));

 

(k)            Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;

 

(l)            [reserved];

 

 

(m)            any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Parent and its Subsidiaries as a whole, as determined in good faith by the management of the Borrower;

 

(n)           the unwinding, termination, transfer, liquidation or novation of any Swap Contract;

 

(o)           Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

 

(p)           the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;

 

(q)           Permitted Intercompany Activities;

 

(r)            Dispositions of assets acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent and the Restricted Subsidiaries;

 

(s)            Dispositions to effect the formation of any Subsidiary pursuant to a Division/Series Transaction, provided that upon formation of such Subsidiary, the Borrower has complied with Section 6.11, to the extent applicable;

 

(t)            the Specified Asset Sales;

 

(u)           any issuance of sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and

 

(v)           leases, subleases, licenses or sublicenses of Real Property which do not constitute Material Real Property Assets.

 

provided that any Disposition of any property pursuant to Section 7.05(j) shall be for no less than the fair market value of such property (measured at the time of contractually agreeing to such Disposition) as determined by the Borrower in good faith. To the extent any Collateral is disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

 

For purposes of determining compliance with this Section 7.05, in the event that a Disposition meets the criteria of more than one of the categories of Dispositions described in clauses (a) through (v) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Disposition or any portion thereof in a manner that complies with this Section 7.05.

 

 

Section 7.06     Restricted Payments. None of the Parent, the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:

 

(a)            each Restricted Subsidiary may make Restricted Payments to the Parent, the Borrower and other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Parent, the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);

 

(b)           the Parent, the Borrower and each Restricted Subsidiary may declare and make Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;

 

(c)            any Restricted Payment; provided that the Restricted Payment Conditions are satisfied;

 

(d)            Restricted Payments in an aggregate amount not to exceed the Available Equity Amount; provided that no Event of Default has occurred and is continuing immediately after giving effect to such Restricted Payment;

 

(e)            to the extent constituting Restricted Payments, the Parent, the Borrower and the other Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 7.02 (other than Sections 7.02(e) and (m)), 7.04 or 7.07 (other than Sections 7.07(d) or 7.07(i));

 

(f)            repurchases of Equity Interests in the Parent, the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

 

(g)            the Parent, the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Parent or the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of thereof) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $20,000,000 in any fiscal year; provided further, no Event of Default shall have occurred and then be continuing; provided, further, that such amount in any fiscal year may be increased by an amount not to exceed:

 

(i)            to the extent contributed to the Parent or the Borrower, the net cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Parent or the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of the Parent or the Borrower, any of their respective Subsidiaries or any of their respective direct or indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus 

 

 

(ii)            the net cash proceeds of key man life insurance policies received by the Parent, the Borrower or any Restricted Subsidiaries; less

 

(iii)            the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);

 

(h)           Restricted Payments in an aggregate amount equal to, the sum of (x) when combined with prepayments of Indebtedness pursuant to Section 7.10(a)(iv), the greater of (i) $175,000,000 and (ii) 25.00% of LTM Consolidated EBITDA (after giving effect to any concurrent Investments) at the time of such Restricted Payment and (y) the portion, if any, of the Cumulative Credit on the date of making such Restricted Payment that the Borrower elects to apply to this clause (h)(y), provided that, in the case of this clause (h)(y) the Cumulative Credit Conditions are satisfied; provided further in the case of clause (h)(x), no Event of Default shall have occurred and then be continuing;

 

(i)            the Parent may pay or make dividends or distributions (each, a “Permitted Tax Distribution”) to any equity holder of the Parent used to pay foreign, federal, state, provincial, territorial or local income taxes of such equity holder, to the extent such income taxes are attributable to the income of the Parent (other than income attributable to its Unrestricted Subsidiaries) and, with respect to income attributable to its Unrestricted Subsidiaries, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes attributable to the income of such Unrestricted Subsidiaries; provided that the aggregate amount of payments by the Parent pursuant to this Section 7.06(i) with respect to any fiscal year does not exceed the amount of taxes that the Parent would be required to pay in respect of such income (to the extent described above with respect to income attributable to Unrestricted Subsidiaries) for such fiscal year were the Parent to pay such taxes as a corporation for income tax purposes;

 

(j)            payments made using the Asset Sale RP Amount and/or the Specified Asset Sale RP Amount so long as no Event of Default shall have occurred and be continuing at the time of such payment and immediately after giving effect thereto;

 

(k)            payments made or expected to be made by the Parent, the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;

 

 

(l)            any Restricted Payments in connection with the Transactions;

 

(m)           the Parent, the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any acquisition permitted under Section 7.02 and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;

 

(n)           the purchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options, warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion of the exercise or exchange price thereof, and any purchase, redemption or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights to acquire Equity Interests;

 

(o)           the purchase, redemption or other acquisition or retirement for value of Equity Interests of the Parent or any Restricted Subsidiary representing fractional units of such Equity Interests in connection with a merger or consolidation involving the Parent or such Restricted Subsidiary or any other transaction permitted by this Agreement;

 

(p)           payments to the General Partner constituting reimbursements for expenses in accordance with the Parent’s LPA as in effect on the Closing Date and as it may be amended or replaced thereafter; provided that any such amendment or replacement is not materially less favorable to the Parent in any material respect than the agreement prior to such amendment or replacement; and

 

(q)           in connection with an acquisition by the Parent or any of its Restricted Subsidiaries, the return to the Parent or any of its Restricted Subsidiaries of Equity Interests of the Parent or its Restricted Subsidiaries constituting a portion of the purchase consideration in settlement of indemnification claims or purchase price adjustments.

 

For purposes of determining compliance with this Section 7.06, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (a) through (m) above, the Borrower shall, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment or any portion thereof in a manner that complies with this Section 7.06.

 

 

Section 7.07    Transactions with Affiliates. The Parent shall not, nor shall the Parent permit any of the Restricted Subsidiaries to, directly or indirectly, enter into any transaction of any kind with any Affiliate of the Parent, whether or not in the ordinary course of business, involving aggregate payments or consideration in excess of $15,000,000 at the time of entering into such transaction, other than (a) loans and other transactions among the Parent and its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such loan or other transaction to the extent permitted under this Article VII, (b) on terms substantially as favorable to the Parent or such Restricted Subsidiary as would be obtainable by the Parent or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the Transactions and the payment of Transaction Expenses as part of or in connection with the Transactions, (d) Restricted Payments permitted under Section 7.06 and Investments permitted under Section 7.02, (e) employment and severance arrangements between the Parent and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements in the ordinary course of business, (f) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of the Parent and its Restricted Subsidiaries (or any direct or indirect parent of the Parent) in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, (h) transactions pursuant to agreements in existence on the Closing Date and set forth on Schedule 7.07 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (i) payments by the Parent or any of its Subsidiaries pursuant to any tax sharing agreements with any direct or in direct parent of the Parent to the extent attributable to the ownership or operation of the Borrower and the Subsidiaries, but only to the extent permitted by Section 7.06(i), (j) Permitted Intercompany Activities, (k) a joint venture which would constitute a transaction with an Affiliate solely as a result of the Parent or the Borrower or any Restricted Subsidiary owning an Equity Interest or otherwise controlling such joint venture or similar entity, (l) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of the Parent to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Parent, the Borrower, any of its Subsidiaries or any direct or indirect parent thereof, (m) payments to the General Partner with respect to reimbursement for expenses in accordance with the Parent LPA as in effect on the Closing Date and as it may be amended, provided that any such amendment is not less favorable to the Parent in any material respect than the agreement prior to such amendment; (n) Guarantees by the Parent or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (o) pledges by the Parent or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries; provided that with respect to such transaction with any Affiliate, the Administrative Agent shall have received, if any such transaction or series of related transactions involves aggregate consideration in excess of (a) $45,000,000 but less than or equal to $75,000,000, a certificate signed by a Responsible Officer of the Parent certifying that such transaction or series of related transaction complies with this Section 7.07 and (b) $75,000,000, a resolution of the board of directors of the Parent set forth in a certificate signed by a Responsible Officer of the Parent certifying that such transaction or series of related transactions complies with this Section 7.07 and that such transaction or series of related transactions has been approved by either the Conflicts Committee of the board of directors of the Parent (so long as the members of the Conflicts Committee approving the transaction or series of related transactions are disinterested) or a majority of the disinterested members of the Board of Directors of the Parent.

 

 

Section 7.08     Burdensome Agreements. The Parent shall not, nor shall the Parent permit any of the Restricted Subsidiaries to, enter into or permit to exist any Contractual Obligation (other than this Agreement, the other Loan Documents, the ABL Facility Documents, the Secured Notes Documents, any agreements governing any Permitted Refinancing thereof, any agreements or documents governing, evidencing and/or securing Credit Agreement Refinancing Indebtedness (or any functionally equivalent term under the ABL Credit Agreement, the Secured Notes Indenture or the agreements documenting any Permitted Refinancing thereof), Incremental Commitments or Incremental Equivalent Debt and any requirements of Law that are memorialized as Contractual Obligations) that prohibits any Loan Party from creating, incurring, assuming or suffering to exist Liens on the Collateral of such Person for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents (such Contractual Obligations being “Burdensome Agreements”); provided that the foregoing shall not apply to Contractual Obligations which (i)(x) exist on the Closing Date and (to the extent not otherwise permitted by this Section 7.08) are listed on Schedule 7.08 and (y) to the extent Contractual Obligations permitted by clause (i)(x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing does not expand the scope of such Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Parent or the Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Subsidiary of the Parent or the Borrower; provided further that this clause (ii) shall not apply to Contractual Obligations that are binding on a Person that becomes a Restricted Subsidiary pursuant to Section 6.14, (iii) represent Indebtedness of a Subsidiary of the Parent which is not a Loan Party which is permitted by Section 7.03, (iv) arise in connection with any Disposition permitted by Section 7.04 or 7.05 and relate solely to the assets or Person subject to such Disposition, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in the ordinary course of business, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by such Indebtedness, (vii) are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(e), (g) or (m) and to the extent that such restrictions apply only to the property or assets securing such Indebtedness or to the Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Parent or any Restricted Subsidiary, (x) are customary provisions on the disposition or assignment of real estate interests found in easement agreements, (xi) are customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (xii) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xiii) customary restrictions on Liens in Indebtedness permitted hereunder so long as such Indebtedness permits the Liens of the Secured Parties on the Collateral (with the priority required hereby and by the other Loan Documents), (xiv) are entered into in the ordinary course of business that is customary for Persons engaged in Midstream Activities, and (xv) arise in connection with cash or other deposits permitted under Sections 7.01 and 7.02 and limited to such cash or deposit.

 

Section 7.09     Financial Covenant. The Borrower will not permit the Debt Service Coverage Ratio to be less than 1.10:1.00 as of the last day of a Test Period (commencing with the Test Period ending June 30, 2024).

 

 

Section 7.10     Prepayments, Etc. of Indebtedness.

 

(a)            The Parent shall not, nor shall the Parent permit any of the Restricted Subsidiaries to, directly or indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that (A) payments of regularly scheduled principal and interest shall be permitted, (B) customary “AHYDO catchup” payments shall be permitted, (C) any prepayment, redemption, purchase, defeasance or other retirement in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of such prepayment redemption, purchase, defeasance or other retirement thereof shall be permitted, (D) payments on any intercompany Indebtedness shall be permitted and (E) any prepayments, redemptions or other purchases of Indebtedness in connection with the Transactions shall be permitted) any Indebtedness that is subordinated in right of payment to the Obligations or secured by a Lien that is junior to the Lien securing the Obligations (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) the refinancing thereof with the Net Proceeds of, or in exchange for, any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing), to the extent not required to prepay any Loans pursuant to Section 2.04(b), (ii) the conversion of any Junior Financing to, or the exchange of any Junior Financing for, Equity Interests (other than Disqualified Equity Interests) of Parent or any direct or indirect parent thereof, (iii) [reserved], (iv) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed the sum of (x) when combined with the amount of Restricted Payments pursuant to Section 7.06(h), the greater of $175,000,000 and 25.00% of LTM Consolidated EBITDA (after giving effect to any concurrent Investments) on the date of such prepayment, redemption, purchase, defeasance or other payment, plus (y) the portion, if any of the Cumulative Credit on the date of such prepayment, redemption, purchase, defeasance or other payment that the Borrower elects to apply to this clause (iv), provided that, in the case of this clause (iv), the Cumulative Credit Conditions are satisfied, (v) prepayments, redemptions, purchases, defeasances or other payments of, or with respect to, Junior Financings if the Restricted Payment Conditions are satisfied; (vi) [reserved]; and (vii) prepayments, redemptions, purchases, defeasances, and other payments of Junior Financings with the Available Equity Amount; provided that no Event of Default has occurred and is continuing immediately after giving effect to such prepayments, redemptions, purchases, defeasances, and other payments of Junior Financings.

 

(b)           The Parent shall not, nor shall it permit any of the Restricted Subsidiaries to amend, modify or change in any manner (i) materially adverse to the interests of the Lenders (as determined in good faith by the Borrower) (A) any term or condition of any Junior Financing Documentation in respect of Junior Financings having an outstanding aggregate principal amount in excess of $100,000,000 (other than as a result of any Permitted Refinancing in respect thereof) or (B) any Organization Document (including the Parent LPA) or (ii) the ABL Facility Documents or the Secured Notes Document in contravention of the applicable Intercreditor Agreement.

 

 

Section 7.11    [Reserved].

 

Section 7.12     Layering. None of the Parent, the Borrower nor any of its Restricted Subsidiaries will, directly or indirectly, incur:

 

(a)            any Indebtedness that is secured by a Lien (other than Financing Leases) if such Indebtedness is or purports to be by its terms (or by the terms of any agreement governing such Indebtedness) (i) secured by Liens that, with respect to any Fixed Debt Priority Collateral, are junior in priority to any Liens securing the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations) and senior in priority to the Liens securing the Indebtedness under the ABL Facility (or any Indebtedness that is secured on a pari passu basis with the ABL Facility) or (ii) secured by Liens that, with respect to any ABL Priority Collateral, are junior in priority to any Liens securing the Indebtedness under the ABL Facility (or any Indebtedness that is secured on a pari passu basis with the ABL Facility) and senior in priority to Lien securing the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations); or

 

(b)           any Indebtedness in an aggregate principal amount in excess of $25,000,000 that is subordinate in right of payment (including via any “first-out” collateral proceeds waterfall or similar structure) to (i) the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations) unless such Indebtedness is also subordinated in right of payment to the obligations under the ABL Facility (or any Indebtedness that is secured on a pari passu basis with the ABL Facility) or (ii) the ABL Facility (or any Indebtedness that is secured on a pari passu basis with the ABL Facility) unless such Indebtedness is also subordinated in right of payment to the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations).

 

Section 7.13     Canadian Pension Plans. None of the Canadian Loan Parties shall, without the consent of the Administrative Agent, maintain, administer, contribute or have any liability in respect of any Canadian Defined Benefit Plan or acquire an interest in any Person if such Person sponsors, maintains, administers or contributes to, or has any liability in respect of any Canadian Defined Benefit Plan.

 

Section 7.14     Limitation on Activities of the Parent. The Parent will not conduct, transfer or otherwise engage in any business or operations other than (a) its direct or indirect ownership of all of the Equity Interests in, and its management of, the Borrower and its other Restricted Subsidiaries, (b) action required to maintain its existence and the performance of obligations under and compliance with its Organization Documents and any requirements of any Laws (including rules and regulations applicable to companies with equity or debt securities held by the public), (c) performance of its obligations under the Loan Documents, the ABL Facility Documents, the Secured Notes Documents, the agreements documenting any Permitted Refinancing thereof and other agreements contemplated hereby, (d) any public offering of its Equity Interests, including the payment of any costs, fees and expenses related thereto, (e) activities incidental to guaranteeing payment and performance obligations of its Subsidiaries in the ordinary course of business, (f) incurring fees, costs and expenses relating to overhead and general operating including professional fees and paying taxes, (g) providing indemnification for its and the General Partner’s current and former officers, directors, members of management, managers, employees and advisors and consultants, (h) other activities to the extent not prohibited by, and in compliance with, the Loan Documents, the ABL Facility Documents, the Secured Notes Documents and the agreements documenting any Permitted Refinancing thereof and (i) activities incidental to its maintenance and continuance and to any of the foregoing activities.

 

 

ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES

 

Section 8.01     Events of Default. Any of the following from and after the Closing Date shall constitute an event of default (an “Event of Default”):

 

(a)           Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five (5) Business Days after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or

 

(b)           Specific Covenants. The Parent, the Borrower or any Restricted Subsidiary fails to perform or observe any term, covenant or agreement contained in any of Sections 6.03(a), 6.05(a) (solely with respect to the Borrower) or 6.18 or Article VII; provided that a Default as a result of a breach of Section 7.09 is subject to cure pursuant to Section 8.05 and such Default will not become an Event of Default for purposes of exercising remedies under Section 8.02 until such cure is no longer available with respect to such Default; or

 

(c)            Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after written notice thereof by the Administrative Agent to the Borrower; provided that, (A) if such failure does not involve the payment of money to any Person and is not susceptible to cure within such thirty (30) days, (B) such Person is proceeding with diligence and good faith to cure such default and such default is susceptible to cure and (C) the existence of such failure has not resulted in a Material Adverse Effect, such thirty (30) day period shall be extended as may be necessary to cure such failure, such extended period not to exceed sixty (60) days in the aggregate (inclusive of the original thirty (30)-day period); or

 

(d)           Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by any Loan Party herein, in any other Loan Document, or in any certificate required to be delivered in connection herewith or therewith shall be incorrect in any material respect when made or deemed made provided that if (i) such Loan Party was not aware that such representation or warranty was incorrect at the time such representation or warranty was made, (ii) the fact, event or circumstance resulting in such incorrect representation or warranty is capable of being cured, corrected or otherwise remedied (including through the receipt and application of indemnification proceeds received from the prior owners of any Loan Party or any Affiliate thereof), and (iii) such fact, event or circumstance resulting in such incorrect representation or warranty shall have been cured, corrected or otherwise remedied within thirty (30) days (or if such incorrect representation or warranty is not susceptible to cure within thirty (30) days, and such Loan Party is proceeding with diligence and in good faith to cure such default and such default is susceptible to cure, such thirty (30) day cure period shall be extended as may be necessary to cure such incorrect representation or warranty, such extended period not to exceed sixty (60) days in the aggregate (inclusive of the original thirty (30) day period)) from the date a Responsible Officer of any Loan Party obtains knowledge thereof, such false or incorrect representation or warranty shall not constitute a Default or an Event of Default for purposes of the Loan Documents; or

 

 

(e)            Cross-Default. Any Loan Party or any Restricted Subsidiary (A) fails to make any payment beyond the applicable grace period with respect thereto, if any, (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness for borrowed money hereunder) having an aggregate principal amount of not less than the Threshold Amount or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(B) shall not apply to: (i) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; (ii) any event requiring a prepayment or offer to purchase pursuant to customary asset sale or change of control provisions and (iii) any breach of a financial maintenance covenant under the ABL Facility unless and until, with respect to this clause (iii), all amounts outstanding under the ABL Facility have been declared immediately due and payable and all outstanding commitments with respect thereto have been immediately terminated, in each case in accordance with the terms of the ABL Facility, and such declaration has not been rescinded on or before such date; provided further that in no event shall the exercise of the rights held by the holders of the Class D Preferred Units pursuant to Section 5.13(d)(iii) of the Parent LPA constitute an Event of Default under this Section 8.01(e), or

 

(f)            Insolvency Proceedings, Etc. Any Loan Party or any Restricted Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes a general assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) days, or an order for relief is entered in any such proceeding; or

 

(g)           Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of the Loan Parties, taken as a whole, and is not released, vacated, settled or fully bonded within sixty (60) days after its issue or levy; or

 

 

(h)          Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied coverage) and such judgment or order shall not have been satisfied, vacated, discharged, settled, stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or

 

(i)            Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or as a result of acts or omissions by the Administrative Agent or Collateral Agent or any Lender or the satisfaction in full of all the Obligations (other than (x) contingent indemnification or reimbursement obligations as to which not claim has been asserted, and (y) any other obligations which, by their terms, are to survive the termination of this Agreement), ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any material provision of any Loan Document or the validity or priority of a Lien as required by the Collateral Documents on a material portion of the Collateral; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of Payment in Full), or purports in writing to revoke or rescind any Loan Document (other than in accordance with its terms); or

 

(j)            Change of Control. There occurs any Change of Control; or

 

(k)            Collateral Documents. Any Collateral Document after delivery thereof pursuant to Sections 4.01, 6.11 or 6.13 shall for any reason (other than pursuant to the terms thereof including as a result of a transaction not prohibited under this Agreement) cease to create a valid and perfected Lien, with the priority required by the Collateral Documents and the Intercreditor Agreements on and security interest in any Collateral purported to be covered thereby, subject to Liens permitted under Section 7.01, (x) except to the extent that any such perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or any loss thereof results from the failure of the Administrative Agent or the Collateral Agent to maintain possession of certificates actually delivered to it representing securities or negotiable instruments pledged under the Collateral Documents or to file Uniform Commercial Code or PPSA financing change statements or take any other actions required by the Loan Documents to be taken by the Administrative Agent or the Collateral Agent, (y) except as to Collateral consisting of Real Property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage and (z) except to the extent that the aggregate value of the Collateral over which the Collateral Agent fails to have or ceases to have a valid and perfected Lien with the required priority does not exceed, individually and in the aggregate $50,000,000; or

 

(l)            ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be expected to result in liability of a Loan Party or a Restricted Subsidiary or any ERISA Affiliate in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect, (ii) a Loan Party, any Restricted Subsidiary or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan which has resulted or could reasonably be expected to result in liability of a Loan Party or a Restricted Subsidiary or any ERISA Affiliate in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect or (iii) a Canadian Pension Event shall have occurred.

 

 

Section 8.02     Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:

 

(a)           declare the commitment of each Lender to make Loans, if any, to be terminated, whereupon such commitments and obligation shall be terminated;

 

(b)           declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, premiums (including any prepayment premium) and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and each Guarantor; and

 

(c)           exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;

 

provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code, the obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans, interest, premiums (including any prepayment premium) and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.

 

Section 8.03     Exclusion of Immaterial Subsidiaries. Solely for the purpose of determining whether a Default or Event of Default has occurred under Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Immaterial Subsidiary affected by event of circumstance referred to in any such clause (it being agreed that all Restricted Subsidiaries affected by any event or circumstance referred to in any such clause shall be considered together, as a single consolidated Restricted Subsidiary, for purposes of determining whether the condition specified above is satisfied).

 

Section 8.04     Application of Funds. Subject to the Intercreditor Agreements, after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts or other distributions received on account of the Obligations, including any proceeds of Collateral, shall be applied by the Administrative Agent in the following order (to the fullest extent permitted by mandatory provisions of applicable Law):

 

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to the Administrative Agent or the Collateral Agent in its capacity as such;

 

 

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them;

 

Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them;

 

Fifth, to the payment of all other Obligations that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

 

Last, the balance, if any, after all of the Obligations then due and payable have been paid in full, to the Borrower or as otherwise required by Law.

 

Section 8.05     Borrower’s Right to Cure.

 

(a)            Notwithstanding anything to the contrary contained in Section 8.01 or 8.02, if the Borrower determines that an Event of Default under the Financial Performance Covenant has occurred or may occur, during the period commencing after the beginning of the last fiscal quarter included in such Test Period and ending ten (10) Business Days after the date on which financial statements are required to be delivered hereunder with respect to such fiscal quarter (such period, the “Designated Contribution Period” and such last day of the Designated Contribution Period, the “Cure Expiration Date”), the Permitted Holders may make a Specified Equity Contribution to the Parent (a “Designated Equity Contribution”), and the amount of the net cash proceeds thereof shall, at the request of the Borrower, be deemed to increase Consolidated EBITDA with respect to such applicable fiscal quarter for the purpose of determining compliance with the Financial Performance Covenant at the end of such fiscal quarter and applicable subsequent periods; provided that such net cash proceeds (i) are actually received by the Parent as cash common equity during the period commencing after the beginning of the last fiscal quarter included in such Test Period and ending on the Cure Expiration Date and (ii) are Not Otherwise Applied. The parties hereby acknowledge that this Section 8.05(a) may not be relied on for purposes of calculating any financial ratios other than as applicable to Section 7.09 and shall not result in any adjustment to any baskets or other amounts other than the amount of the Consolidated EBITDA for the purposes of Section 7.09.

 

 

 

(b)           (i) In each period of four (4) consecutive fiscal quarters, there shall be at least two (2) fiscal quarters in which no Designated Equity Contribution is made, (ii) no more than five (5) Designated Equity Contributions may be made in the aggregate during the term of this Agreement, (iii) the amount of any Designated Equity Contribution shall be no more than the amount required to cause the Borrower to be in Pro Forma Compliance with Section 7.09 for any applicable period and (iv) there shall be no pro forma reduction in Indebtedness with the proceeds of any Designated Equity Contribution for determining compliance with Section 7.09 for the fiscal quarter with respect to which such Designated Equity Contribution was made; provided that, to the extent such net cash proceeds are actually applied to prepay Indebtedness, such reduction may be credited in any subsequent fiscal quarter.

 

(c)           Neither the Administrative Agent nor any Lender shall exercise the right to accelerate the Loans and none of Administrative Agent, any Lender or any Secured Party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy pursuant to Section 8.02, the other Loan Documents or applicable law prior to the Cure Expiration Date solely on the basis of an Event of Default having occurred and continuing as a result of non-compliance with the Financial Performance Covenant (except to the extent that the Permitted Holders have confirmed in writing that they do not intend to provide an equity contribution).

 

ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS

 

Section 9.01     Appointment and Authorization of Agents.

 

(a)            Each Lender hereby irrevocably appoints, designates and authorizes each of the Administrative Agent and the Collateral Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto, and the Administrative Agent, the Collateral Agent and the Real Property Collateral Agent hereby accept such appointment. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent, the Collateral Agent and the Real Property Collateral Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, neither the Administrative Agent, the Collateral Agent, nor the Real Property Collateral Agent shall have any duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent, the Collateral Agent or the Real Property Collateral Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent, the Collateral Agent or the Real Property Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

 

(b)           Each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent, the Real Property Collateral Agent and Administrative Agent, respectively, to act as (i) the agent of (and to hold, or to appoint any co-agents, sub-agents and attorneys-in-fact appointed of the Collateral Agent and/or the Administrative Agent to hold, any security interest created by the Collateral Documents for and on behalf of or on trust for) such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations and (ii) (1) “Additional Priority Debt Representative” (or similar term, as defined in the Pari Passu Intercreditor Agreement) and (2) “Fixed Debt Representative” (or similar term, as defined in the Crossing Liens Intercreditor Agreement) for the Secured Parties under the Intercreditor Agreements, in each case, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, the Real Property Collateral Agent and the Collateral Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent, the Real Property Collateral Agent or the Collateral Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.07, as though such co- agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto.

 

(c)           Each Lender hereby (a) acknowledges that it has received a copy of the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement, (b) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements to the extent then in effect, (c) authorizes the Administrative Agent, the Collateral Agent and the Real Property Collateral Agent to enter into each Intercreditor Agreement as Collateral Agent, Administrative Agent, Real Property Collateral Agent or other appropriate agent title, as applicable, and on behalf of such Lender.

 

(d)           Except as provided in Sections 9.09 and 9.11, the provisions of this Article IX are solely for the benefit of the Administrative Agent, the Collateral Agent, the Real Property Collateral Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions.

 

 

(e)           For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Obligations by any Loan Party, each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to, as part of its duties as Collateral Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Secured Parties and Credit Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Assumption, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Section 9 shall also result in the substitution of the Attorney.

 

Section 9.02     Delegation of Duties. Each of the Administrative Agent, the Collateral Agent and the Real Property Collateral Agent may execute any of its respective duties under this Agreement or any other Loan Document (including, with respect to the Collateral Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder (it being understood that the Real Property Collateral Agent is executing such duties for the Collateral Agent) by or through agents, employees or attorneys-in-fact (including the Real Property Collateral Agent) and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent, the Collateral Agent, the Real Property Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Agent-Related Persons. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Agent-Related Persons of the Administrative Agent, the Collateral Agent, the Real Property Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent, the Collateral Agent or Real Property Collateral Agent. The Administrative Agent, the Collateral Agent and Real Property Collateral Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final non-appealable judgment of a court of competent jurisdiction).

 

 

Section 9.03     Liability of Agents. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), (b) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity, (c) be responsible for or have any duty to ascertain or inquire into the satisfaction of any condition set forth in Article IV or elsewhere herein, other than that the Administrative Agent shall confirm receipt of items expressly required to be delivered to the Administrative Agent or (d) be responsible in any manner for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent or the Collateral Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, the existence, value or collectability of the Collateral, any failure to monitor or maintain any part of the Collateral, any loss or diminution in the value of the Collateral or the validity, perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. The Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property. No Agent-Related Person shall be under any obligation to any Lender or Participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. Notwithstanding the foregoing, neither the Administrative Agent nor the Collateral Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent or Collateral Agent (as applicable) is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent or Collateral Agent (as applicable) shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent or Collateral Agent (as applicable) to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law. Phrases such as “satisfactory to the Collateral Agent”, “approved by the Collateral Agent”, “acceptable to the Collateral Agent”, “as determined by the Collateral Agent”, “in the Collateral Agent’s discretion”, “selected by the Collateral Agent”, and phrases of similar import authorize and permit the Collateral Agent to approve, disapprove, determine, act or decline to act in its discretion, it being understood that the Collateral Agent in exercising such discretion under the Loan Documents shall be acting on the instructions of the Administrative Agent or the Required Lenders (or all Lenders to the extent required hereunder) and shall be fully protected in, and shall incur no liability in connection with, acting or failing to act (or failing to act while awaiting such instruction) pursuant to such instructions. Upon request from the Collateral Agent, the Administrative Agent shall confirm that the Lenders executing any document or delivering any direction are, in fact, the Required Lenders.

 

Section 9.04     Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement, court order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice, direction or concurrence of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) (and, in the case of the Collateral Agent, the advice, direction, or concurrence of the Administrative Agent) as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (and, in the case of the Collateral Agent, the Administrative Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.

 

 

Section 9.05     Notice of Default. No Agent shall be deemed to have knowledge or notice of the occurrence of any Default, except with respect to Defaults in the payment of principal, interest and fees required to be paid to such Agent for the account of the Lenders, unless such Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” Each of the Administrative Agent and Collateral Agent will notify the Lenders of its receipt of any such notice. Each Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders (and, in the case of the Collateral Agent, the Administrative Agent in accordance with Article VIII); provided that unless and until the Administrative Agent has received any such direction, such Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.

 

Section 9.06     Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent taken after the Closing Date, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person.

 

 

Section 9.07     Indemnification of Agents. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related Person’s own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction; provided, further, that no action taken or not taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse each of the Administrative Agent and the Collateral Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent or the Collateral Agent, as the case may be, in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent or the Collateral Agent, as the case may be, is not reimbursed for such expenses by or on behalf of the Loan Parties and without limiting their obligation to do so. The undertaking in this Section 9.07 shall survive Payment in Full and any resignation or removal of the Administrative Agent or the Collateral Agent, as the case may be.

 

Section 9.08     Agents in Their Individual Capacities. Toronto Dominion (Texas), LLC and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower and its respective Affiliates as though such Person were not the Administrative Agent or Collateral Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Toronto Dominion (Texas), LLC and its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliate) and acknowledge that neither the Administrative Agent nor the Collateral Agent shall be under any obligation to provide such information to them. With respect to its Loans (if any), Toronto Dominion (Texas), LLC and its Affiliates shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not the Administrative Agent or the Collateral Agent and the terms “Lender” and “Lenders” include Toronto Dominion (Texas), LLC in its individual capacity. Any successor to Toronto Dominion (Texas), LLC as the Administrative Agent or as the Collateral Agent shall also have the rights attributed to such Person under this paragraph.

 

 

Section 9.09     Successor Agents. Each of the Administrative Agent and the Collateral Agent may resign as the Administrative Agent or the Collateral Agent, as applicable, upon thirty (30) days’ written notice to the Lenders, the Borrower and each other Agent and if either the Administrative Agent or the Collateral Agent is a Defaulting Lender, the Borrower may remove such Defaulting Lender from such role upon ten (10) days’ notice to the Administrative Agent or Collateral Agent, as applicable, the Lenders and each other Agent. Subject to the terms of the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement, if the Administrative Agent or the Collateral Agent resigns or is removed by the Borrower, the Required Lenders shall appoint a successor agent, which successor agent shall (a) in the case of the Administrative Agent be selected from among the Lenders and (b) be consented to by the Borrower at all times other than during the existence of a Payment or Bankruptcy Default (which consent of the Borrower shall not be unreasonably withheld or delayed); provided that in no event shall any such successor Administrative Agent or Collateral Agent be a Defaulting Lender. If no successor agent is appointed prior to the effective date of the resignation or removal of the Administrative Agent or the Collateral Agent, as applicable, the Administrative Agent or the Collateral Agent, as applicable, in the case of a resignation, and the Borrower, in the case of a removal may appoint, after consulting with the Lenders and the Borrower (in the case of a resignation), a successor agent which, in the case of the Administrative Agent, shall be from among the Lenders (subject to the proviso at the end of the immediately preceding sentence). Upon the acceptance of its appointment as successor agent, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent or retiring Collateral Agent under the Loan Documents and the term “Administrative Agent” or “Collateral Agent” shall mean such successor administrative agent or collateral agent, as the case may be, and the retiring Administrative Agent’s or Collateral Agent’s appointment, powers and duties as the Administrative Agent or Collateral Agent shall be terminated. After the retiring Administrative Agent’s or the Collateral Agent’s resignation or removal in accordance herewith as the Administrative Agent or the Collateral Agent, the provisions of this Article IX and the provisions of Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent or Collateral Agent in respect of the Loan Documents. If no successor agent has accepted appointment as the Administrative Agent or the Collateral Agent by the date which is thirty (30) days following the retiring Administrative Agent’s or Collateral Agent’s notice of resignation or ten (10) days following the Borrower’s notice of removal, the retiring Administrative Agent’s or the retiring Collateral Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent or Collateral Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. Upon the acceptance of any appointment as the Administrative Agent or Collateral Agent in accordance herewith by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to (x) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (y) otherwise ensure that Section 6.11 is satisfied, the Administrative Agent or Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent or Collateral Agent under the Loan Documents, and the retiring Administrative Agent or Collateral Agent shall be discharged from its duties and obligations under the Loan Documents.

 

 

Section 9.10     Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be (to the fullest extent permitted by mandatory provisions of applicable Law) entitled and empowered, by intervention in such proceeding or otherwise:

 

(a)            to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Collateral Agent and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Collateral Agent and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Collateral Agent and the Administrative Agent under Sections 2.07, 9.07, 10.04 and 10.05) allowed in such judicial proceeding; and

 

(b)           to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, curator, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent or the Collateral Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent or the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent or the Collateral Agent under Sections 2.07, 10.04 and 10.05.

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

 

Section 9.11     Collateral and Guaranty Matters. Each Lender and each other Secured Party by its acceptance of the Collateral Documents irrevocably agrees:

 

(a)           that any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent (or the Real Property Collateral Agent) under any Loan Document shall be automatically released (i) upon Payment in Full, (ii) at the time the property subject to such Lien is sold or transferred as part of or in connection with any Disposition permitted hereunder or under any other Loan Document to any Person other than a Loan Party, (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon release of such Subsidiary Guarantor from its obligations under its Guaranty pursuant to clause (c) below, (v) upon a permitted designation of a Restricted Subsidiary as an Unrestricted Subsidiary, the Collateral owned by such Unrestricted Subsidiary or (vi) to the extent (and only for so long as) such property constitutes an “Excluded Asset”;

 

 

(b)            that upon the request of the Borrower, the Administrative Agent and the Collateral Agent (or the Real Property Collateral Agent) may release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(u) or Section 7.01(w) (in the case of clause (w), to the extent required by the terms of the obligations secured by such Liens) or that is a deposit account described in clause (d) of the definition of “Excluded Account”, in each case pursuant to documents reasonably acceptable to the Administrative Agent;

 

(c)            that any Subsidiary Guarantor shall be automatically released from its obligations under the Guaranty if (i) such Person ceases to be a Restricted Subsidiary or becomes an Excluded Subsidiary as a result of a transaction or designation permitted hereunder or (ii) subject to Section 10.01, if such release is approved, authorized or ratified in writing by the Required Lenders; provided that no such release shall occur if such Subsidiary Guarantor continues to be a guarantor in respect of the ABL Facility, the Secured Notes, any Junior Financing or any Permitted Refinancing of any of the foregoing, in each case, with a principal amount in excess of $50,000,000; provided, further that, no Subsidiary Guarantor which ceases to be a wholly owned Subsidiary of the Borrower after the Closing Date as a result of the Disposition of less than all of such Subsidiary Guarantor’s Equity Interests shall be released pursuant to this clause (c) unless such Disposition is made in good faith to a bona fide unaffiliated third party and for bona fide business purposes and, as a result of such transaction, such third parties collectively hold 50% or more of such Subsidiary Guarantor’s Equity Interests;

 

(d)            [reserved];

 

(e)            each of the Lenders hereby authorizes and instructs the Administrative Agent and the Collateral Agent (and the Real Property Collateral Agent) to enter into the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement on the Closing Date, and agrees to be bound by all of the terms and provisions of the Pari Passu Intercreditor Agreement and the Crossing Liens Intercreditor Agreement; and

 

(f)            the Collateral Agent (and the Real Property Collateral Agent) and the Administrative Agent may, without any further consent of any Lender, enter into (i) a supplement or amendment to, or an amendment and restatement or replacement of, the Pari Passu Intercreditor Agreement and/or the Crossing Liens Intercreditor Agreement with the collateral agent or other representatives of holders of Indebtedness permitted under Section 7.03 where such Indebtedness is secured by Liens permitted under Section 7.01 that is intended to be secured on a pari passu basis with the Liens securing the Initial Facility and/or (ii) a Junior Lien Intercreditor Agreement with the collateral agent or other representatives of the holders of Indebtedness permitted under Section 7.03 that is intended to be secured on a junior basis to the Liens securing the Initial Facility, in each case, where such Indebtedness is secured by Liens permitted under Section 7.01. The Collateral Agent and the Administrative Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower as to whether any such other Liens are permitted. Any supplement or amendment to, or amendment and restatement or replacement of, the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement, or any Junior Lien Intercreditor Agreement entered into by the Administrative Agent and the Collateral Agent in accordance with the terms of this Agreement shall be binding on the Secured Parties.

 

 

Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent or the Collateral Agent will promptly upon the request of the Borrower (and each Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as the Borrower may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11 (and the Administrative Agent and the Collateral Agent may rely conclusively on a certificate of a Responsible Officer of the Borrower to that effect provided to it by any Loan Party upon its reasonable request without further inquiry). Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent or the Collateral Agent.

 

Section 9.12     Other Agents; Lead Arrangers and Managers. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “joint bookrunner”, “joint lead arrangers”, “co-manager”, “co-syndication agent” or “co-documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.

 

Section 9.13     Appointment of Supplemental Agents.

 

(a)            It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent or the Collateral Agent, in each case, as applicable, deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent or the Collateral Agent, in each case, as applicable, is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent or the Collateral Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Agent” and collectively as “Supplemental Agents”).

 

 

(b)            In the event that the Collateral Agent appoints a Supplemental Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Agent to the extent, and only to the extent, necessary to enable such Supplemental Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Agent shall run to and be enforceable by either the Collateral Agent or such Supplemental Agent, and (ii) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Agent and all references therein to the Collateral Agent shall be deemed to be references to the Collateral Agent and/or such Supplemental Agent, as the context may require.

 

(c)            Should any instrument in writing from any Loan Party be required by any Supplemental Agent so appointed by the Administrative Agent or the Collateral Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent or the Collateral Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Agent.

 

Section 9.14     Withholding Tax Indemnity. To the extent required by any applicable Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective), such Lender shall, within ten (10) days after written demand therefor, indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrower or any Guarantor pursuant to Section 3.01 and Section 3.04 and without limiting or expanding the obligation of the Borrower or any Guarantor to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement, any other Loan Document or otherwise against any amount due the Administrative Agent under this Section 9.14. The agreements in this Section 9.14 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and Payment in Full.

 

 

Section 9.15     Certain ERISA Matters.

 

(a)            Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:

 

(i)      such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,

 

(ii)     the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

 

(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84- 14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

 

(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b)            In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent and the Lead Arrangers are not fiduciaries with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).

 

 

(c)            The Administrative Agent and the Lead Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

 

Section 9.16     Erroneous Payments.

 

(a)            Each Lender (and each Participant of any of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds (or any portion thereof) received by such Lender (any of the foregoing, a “Payment Recipient”) from the Administrative Agent (or any of its Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) and demands the return of such Payment, such Payment Recipient shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment as to which such a demand was made. A notice of the Administrative Agent to any Payment Recipient under this Section 9.16(a) shall be conclusive, absent manifest error.

 

(b)           Without limitation of clause (a) above, each Payment Recipient further acknowledges and agrees that if such Payment Recipient receives a Payment from the Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made.

 

 

(c)           Any Payment required to be returned by a Payment Recipient under this Section shall be made in same-day funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Payment Recipient hereby agrees that it shall not assert and, to the fullest extent permitted by applicable law, hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Administrative Agent for the return of any Payment received, including without limitation any defense based on “discharge for value” or any similar doctrine.

 

(d)           The Parent, the Borrower and each other Restricted Subsidiary hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason (other than the bad faith, gross negligence or willful misconduct of the Administrative Agent (as determined in a final and non-appealable judgment in a court of competent jurisdiction)), the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Parent, the Borrower or any other Restricted Subsidiary except, in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Parent, the Borrower or any other Restricted Subsidiary; provided that this Section 9.16 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Parent, the Borrower or any other Loan Party relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent any such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.

 

(e)           Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.

 

ARTICLE X
MISCELLANEOUS

 

Section 10.01   Amendments, Etc. Except as otherwise set forth in this Agreement or any other Loan Document, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders, or by the Administrative Agent with the consent of the Required Lenders, and such Loan Party (with an executed copy thereof promptly delivered to the Administrative Agent if not otherwise a party thereto) and each such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:

 

(a)           extend or increase the Commitment of any Lender without the written consent of each Lender holding such Commitment (it being understood that a waiver of any condition precedent or of any Default or Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);

 

 

(b)           postpone any date scheduled for, or reduce or forgive the amount of, any payment of principal or interest under Sections 2.05 or 2.06 without the written consent of each Lender holding the applicable Obligation (it being understood that the waiver of any obligation to pay interest at the Default Rate or the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest);

 

(c)           reduce or forgive the principal of, or the rate of interest specified herein on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document (or change the timing of payments of such fees or other amounts) without the written consent of each Lender holding such Loan or to whom such fee or other amount is owed; provided that only the consent of the Required Lenders shall be necessary to (i) amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate or (ii) amend the definition of “Consolidated First Lien Net Leverage Ratio”, “Consolidated Secured Net Leverage Ratio” or “Consolidated Total Net Leverage Ratio”;

 

(d)           change any provision of Section 8.04 or Section 10.01 or the definition of “Required Lenders,” “Required Class Lenders,” or any other provision specifying the number of Lenders or portion of the Loans or Commitments required to take any action under the Loan Documents, in each case, without the written consent of each Lender directly and adversely affected thereby;

 

(e)           other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the Liens on the Collateral in any transaction or series of related transactions, without the written consent of each Lender;

 

(f)           other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the aggregate value of the Guarantees provided by the Guarantors, without the written consent of each Lender;

 

(g)           [Reserved];

 

(h)           amend, waive or otherwise modify the portion of the definition of “Interest Period” that provides for one (1), three (3) or six (6) month intervals to automatically allow intervals in excess of six (6) months, without the written consent of each Lender affected thereby;

 

(i)            [Reserved];

 

 

 

(j)            amend, waive or otherwise modify the provisions related to the order of payments under Section 8.04 and the definition of Pro Rata Share or the pro rata sharing of payment provisions set forth in Section 2.11 and Section 2.12 in a manner that alters the order of application of funds set forth therein without the written consent of each Lender directly and adversely affected thereby;

 

(k)           amend, waive or otherwise modify any term or provision (including the availability and conditions to funding under Section 2.13 (but not the conditions to implementing Incremental Commitments or Incremental Term Loans pursuant to Section 2.13(d)(iii)) with respect to Incremental Commitments and Incremental Term Loans, under Section 2.14 with respect to Refinancing Term Loans and under Section 2.15 with respect to Extended Term Loans and, in each case, the rate of interest applicable thereto) which directly affects Lenders of one or more Incremental Commitments, Incremental Term Loans, Refinancing Term Loans, Extended Term Loans and does not directly affect Lenders under any other Facility, in each case, without the written consent of the Required Class Lenders under such applicable Facility (and in the case of multiple Facilities which are affected, with respect to any such Facility, such consent shall be effected by the Required Class Lenders of such Facility); provided, however, that the waivers described in this clause (k) shall not require the consent of any Lenders other than the Required Class Lenders under such applicable Incremental Term Loans, Incremental Commitments, Refinancing Term Loans or Extended Term Loans, as the case may be; and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent, as applicable, under this Agreement or any other Loan Document; and (ii) Section 10.07(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; or

 

(l)            (x) subordinate any of the Obligations to any other Indebtedness or (y) subordinate the Lien securing any of the Obligations on all or substantially all of the Collateral to any other Lien securing any other Indebtedness (except as provided in Section 9.11 (without giving effect to any amendment the primary purpose of which is to permit the subordination of the Lien securing any of the Obligations on all or substantially all of the Collateral)), in each case, without the consent of each Lender affected thereby; provided, further, that (A) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent, as applicable, under this Agreement or any other Loan Document;

 

provided that any removal or replacement of the Administrative Agent or the Collateral Agent in accordance with the provisions of Section 9.09 shall not require the consent of the Administrative Agent or the Collateral Agent so removed or replaced and (B) the consent of the Required Class Lenders of any Class of Commitments or Loans shall be required with respect to any amendment that by its terms adversely affects the rights of such Class in respect of payments or Collateral hereunder in a manner different than such amendment affects other Classes.

 

 

Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms materially and adversely affects any Defaulting Lender (if such Lender were not a Defaulting Lender) to a greater extent than other affected Lenders shall require the consent of such Defaulting Lender.

 

Notwithstanding anything to the contrary in this Section 10.01, no Lender consent is required to effect a supplement or amendment to, or an amendment and restatement or replacement of, the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement, any Junior Lien Intercreditor Agreement or other intercreditor agreement or arrangement permitted under this Agreement that is for the purpose of adding (i) the collateral agent or other representatives of holders of Indebtedness permitted pursuant to Section 7.03 where such Indebtedness is secured by Liens permitted under Section 7.01 that is intended to be secured on a pari passu basis with the Liens securing the Initial Facility or any ABL Facility or (ii) the collateral agent or other representatives of the holders of Indebtedness permitted under Section 7.03 that is intended to be secured on a junior basis to the Liens securing the Initial Facility where such Indebtedness is secured by Liens permitted under Section 7.01 (it being understood that any such amendment or supplement, amendment and restatement or replacement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing, provided that such other changes are not adverse, in any material respect, to the interests of the Lenders (as determined by the Borrower)); provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Collateral Agent, as applicable.

 

Notwithstanding anything to the contrary in this Section 10.01, this Agreement and any other Loan Document may be amended solely with the consent of the Administrative Agent and/or the Collateral Agent (if applicable) and the Borrower without the need to obtain the consent of any other Lender if such amendment is delivered in order (A) to correct or cure ambiguities, errors, omissions or defects, (B) to effect administrative changes of a technical or immaterial nature, (C) to fix incorrect cross references or similar inaccuracies in this Agreement or the applicable Loan Document, (D) [reserved], (E) add any financial covenant or other terms for the benefit of all Lenders or any Class of Lenders pursuant to the conditions imposed on the incurrence of any Indebtedness set forth elsewhere in this Agreement, (F) to implement a Benchmark Replacement, (G) solely to add benefit to one or more existing Facilities, including but not limited to, increase in margin, interest rate floor, prepayment premium, call protection and reestablishment of or increase in amortization schedule, in order to cause any Incremental Term Facility to be fungible with any existing Facility, (H) solely to make the terms of this Agreement or any other Loan Document more restrictive (or less favorable) to the Parent and its Restricted Subsidiaries (as determined by the Borrower) or (I) to implement amendments permitted by the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement, this Agreement or the other Collateral Documents that do not by the terms of the Pari Passu Intercreditor Agreement, the Crossing Liens Intercreditor Agreement or other Collateral Documents require lender consent, and, in each case of clauses (A), (B) and (C), such amendment shall become effective without any further action or the consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. The Collateral Documents and related documents in connection with this Agreement and the other Loan Documents may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with the consent of the Administrative Agent and/ or the Collateral Agent (if applicable) at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to correct or cure ambiguities, omissions, mistakes or defects or (iii) to cause such Collateral Documents or other document to be consistent with this Agreement and the other Loan Documents and, in each case, such amendment shall become effective without any further action or the consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.

 

 

Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Borrower and the Administrative Agent may enter into any Incremental Amendment in accordance with Section 2.13, any Refinancing Amendment in accordance with Section 2.14 and any Extension Amendment in accordance with Section 2.15 and such Incremental Amendments, Refinancing Amendments and Extension Amendments shall be effective to amend the terms of this Agreement and the other applicable Loan Documents, in each case, without any further action or consent of any other party to any Loan Document. In addition, upon the initial incurrence of any Loans intended to be secured on a basis junior in right of priority to the Obligations or intended to be unsecured pursuant to any Incremental Amendment or Refinancing Amendment, the Borrower, the Administrative Agent and the Collateral Agent may, without the need to obtain consent of any other Lender, make changes to the Loan Documents reasonably satisfactory to the Borrower, the Administrative Agent and the Collateral Agent that are necessary to reflect the junior Lien status or unsecured status of such Loans, including but not limited to (i) entering into the Junior Lien Intercreditor Agreement by the Administrative Agent on behalf of the holders of such junior lien Loans, (ii) including such Loans in the definition of “Latest Maturity Date” or Weighted Average Life to Maturity limitations but only with respect to future Indebtedness secured on a junior lien basis to the Lien securing the Initial Term Loans or unsecured (or not secured by the Collateral) and (iii) amending the Collateral Documents to exclude unsecured Loans from “Obligations” secured thereby.

 

Notwithstanding anything to the contrary herein, at any time and from time to time, upon notice to the Administrative Agent (who shall promptly notify the applicable Lenders) specifying in reasonable detail the proposed terms thereof, the Borrower may make one or more loan modification offers to all the Lenders of any Facility that would, if and to the extent accepted by any such Lender, (a) change the Applicable Rate and/or fees payable with respect to the Loans and Commitments under such Facility (in each case solely with respect to the Loans and Commitments of accepting Lenders in respect of which an acceptance is delivered) and (b) treat the Loans and Commitments so modified as a new “Facility” and a new “Class” for all purposes under this Agreement; provided that (i) such loan modification offer is made to each Lender under the applicable Facility on the same terms and subject to the same procedures as are applicable to all other Lenders under such Facility (which procedures in any case shall be reasonably satisfactory to the Administrative Agent) and (ii) no loan modification shall affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent without its prior written consent.

 

 

In connection with any such loan modification, the Borrowers and each accepting Lender shall execute and deliver to the Administrative Agent such agreements and other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the applicable loan modification offer and the terms and conditions thereof, and this Agreement and the other Loan Documents shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent and shall be effective only with respect to the applicable Loans and Commitments of Lenders that shall have accepted the relevant loan modification offer (and only with respect to Loans and Commitments as to which any such Lender has accepted the loan modification offer)) to the extent necessary or appropriate, in the judgment of the Administrative Agent, to reflect the existence of, and to give effect to the terms and conditions of, the applicable loan modification (including the addition of such modified Loans and/or Commitments as a “Facility” or a “Class” hereunder). No Lender shall have any obligation whatsoever to accept any loan modification offer, and may reject any such offer in its sole discretion. Notwithstanding the foregoing, no modification referred to above shall become effective unless the Administrative Agent, to the extent reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 with respect to the Borrower and all Guarantors.

 

Section 10.02      Notices and Other Communications; Facsimile Copies.

 

(a)           General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission or electronic mail). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

 

(i)            if to the Borrower (or any other Loan Party) or the Administrative Agent or the Collateral Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02(a) or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and

 

(ii)           if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrower and the Administrative Agent or the Collateral Agent.

 

 

All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(d)), when delivered; provided that notices and other communications to the Administrative Agent and the Collateral Agent pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder. Any notice not given during normal business hours for the recipient shall be deemed to have been given at the opening of business on the next Business Day for the recipient.

 

(b)           Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic communication. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the Agents and the Lenders.

 

(c)           Reliance by Agents and Lenders. The Administrative Agent, the Collateral Agent and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to the Administrative Agent or Collateral Agent may be recorded by the Administrative Agent or the Collateral Agent, and each of the parties hereto hereby consents to such recording.

 

(d)           Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by FpML messaging and Internet or intranet websites pursuant to procedures approved by the Administrative Agent acting reasonably, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by such communication. The Administrative Agent or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by FpML messaging and Internet or intranet websites pursuant to procedures approved by it, provided, further, that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address of notification that such notice or communication is available and identifying the website address therefor.

 

 

Section 10.03      No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

 

Section 10.04      Attorney Costs and Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent, the Collateral Agent and the Lead Arrangers for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby (including all Attorney Costs, which shall be limited to one primary counsel for the Agents and the Lead Arrangers, taken as a whole (which shall be Simpson Thacher & Bartlett LLP for any and all of the foregoing in connection with the Transactions and other matters, including primary syndication, to occur on or prior to or otherwise in connection with the Closing Date), and, if necessary, one local counsel for the Agents and the Lead Arrangers, taken as a whole, in each relevant jurisdiction material to the interests of the Lenders, taken as a whole (and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees after notification to the Borrower)), and (b) to pay or reimburse the Agents, the Lead Arrangers and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law), and including all respective Attorney Costs which shall be limited to Attorney Costs of one primary counsel for the Agents, the Lead Arrangers and the Lenders, taken as a whole, and, if necessary, one local counsel for the Agents, the Lead Arrangers and the Lenders, taken as a whole, in each relevant jurisdiction material to the interests of the Lenders, taken as a whole (and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees, after notification to the Borrower). The foregoing costs and expenses shall include all reasonable and documented out-of-pocket search, filing, recording and title insurance charges and fees related thereto, and other reasonable and documented out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall survive Payment in Full and any resignation or removal of the Administrative Agent and/or the Collateral Agent. All amounts due under this Section 10.04 shall be paid within thirty (30) days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail including, if requested by the Borrower and to the extent reasonably available, backup documentation supporting such reimbursement request; provided that, with respect to the Closing Date, all amounts due under this Section 10.04 shall be paid on the Closing Date to the extent required by Section 4.01. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.

 

 

For the avoidance of doubt, this Section 10.04 shall not apply to Taxes, other than any Taxes directly attributable to any non-Tax cost or expense covered by this Section 10.04 (e.g., a sales tax imposed in respect of a covered non-Tax cost or expense).

 

Section 10.05      Indemnification by the Borrower. The Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates and their respective officers, directors, employees, partners, agents, advisors and other representatives of each of the foregoing (collectively the “Indemnitees”) from and against any and all liabilities (including Environmental Liabilities), obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs but limited in the case of legal fees and expenses to the reasonable and documented out-of-pocket fees, disbursements and other charges of (i) one counsel to the Indemnitees taken as a whole, (ii) if necessary, one local counsel for the Indemnitees, taken as a whole, in each relevant jurisdiction material to the interests of the Indemnities, taken as a whole, and (iii) solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees after notification to the Borrower) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding), whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction, (y) a material breach of any obligations under any Loan Document by such Indemnitee or of any of its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent, collateral agent, arranger or any similar role under any Facility and other than any claims arising out of any act or omission of the Parent or the Borrower or any of their Affiliates). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor, to the extent permissible under applicable Law, shall any Indemnitee, Loan Party or any Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses in each case subject to the indemnification provisions of this Section 10.05); it being agreed that this sentence shall not limit the indemnification obligations of the Parent, the Borrower or any Restricted Subsidiary. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated. All amounts due under this Section 10.05 shall be paid within thirty (30) days after written demand therefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 10.05.

 

 

The agreements in this Section 10.05 shall survive the resignation or removal of the Administrative Agent or the Collateral Agent, the replacement of any Lender and Payment in Full. This Section 10.05 shall not apply with respect to Taxes, other than any Taxes that represent liabilities, obligations, losses, damages, penalties, claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claims.

 

Section 10.06      Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall, to the fullest extent possible under provisions of applicable Law, be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Overnight Bank Funding Rate from time to time in effect, in the applicable currency of such recovery or payment.

 

Section 10.07      Successors and Assigns.

 

(a)           The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (such consent not to be unreasonably withheld or delayed except as permitted by Section 7.04) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Assignee pursuant to an assignment made in accordance with the provisions of Section 10.07(b) (such an assignee, an “Eligible Assignee”) and, in the case of any Assignee that is the Parent, the Borrower or any of their respective Subsidiaries, Section 10.07(m), (ii) by way of participation in accordance with the provisions of Section 10.07(f), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(h), or (iv) to an SPC in accordance with the provisions of Section 10.07(i) (and any other attempted assignment or transfer by any party hereto shall be null and void); provided, however, that notwithstanding anything to the contrary, no Lender may assign or transfer by participation any of its rights or obligations hereunder to (i) any Person that is a Defaulting Lender, (ii) a natural Person or (iii) to the Parent, the Borrower or any of their respective Subsidiaries (except pursuant to Section 2.04(a)(iv) or Section 10.07(m)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(f) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

 

Any assignment or participation of a Loan or Commitment by a Lender without the Borrower’s consent to the extent the Borrower’s consent is required under this Section 10.07, to any other Person, shall be null and void, and, in the event of any assignment or participation of any Loan or Commitment by a Lender in breach of the foregoing, the Borrower shall be entitled to seek specific performance to unwind any such assignment or participation in addition to any other remedies available to the Borrower at law or in equity. In addition, the Borrower may (i) terminate any Commitment of such person and prepay any applicable outstanding Loans at a price equal to the lesser of par and the amount such person paid to acquire such Loans, without premium, penalty, prepayment fee or breakage, and/or (ii) require such person to assign its rights and obligations to one or more Eligible Assignees at the price indicated above (which assignment shall not be subject to any processing and recordation fee) and if such person does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such assignment within five (5) Business Days of the date on which the assignee Lender executes and delivers such Assignment and Assumption to such person, then such person shall be deemed to have executed and delivered such Assignment and Assumption without any action on its part, (a) no such person shall receive any information or reporting provided by the Borrower, the Administrative Agent or any Lender, (b) for purposes of voting, any Loans or Commitments held by such person shall be deemed not to be outstanding, and such person shall have no voting or consent rights with respect to “Required Lender” or class votes or consents, (c) for purposes of any matter requiring the vote or consent of each Lender affected by any amendment or waiver, such person shall be deemed to have voted or consented to approve such amendment or waiver if a majority of the affected class (giving effect to clause (b) above) so approves and (d) such person shall not be entitled to any expense reimbursement or indemnification rights and shall be treated in all other respects as a Defaulting Lender; it being understood and agreed that the foregoing provisions shall only apply to the Person specified in (A) or (B) of the first sentence of this paragraph and not to any assignee of such Person that becomes a Lender so long as such assignee becomes an assignee in accordance with the provisions of this Section 10.07. Nothing in this Agreement shall be deemed to prejudice any right or remedy that the Borrower may otherwise have at law or equity. Each Lender acknowledges and agrees that the Borrower and its Subsidiaries will suffer irreparable harm if such Lender breaches any obligation under this Section 10.07. Additionally, each Lender agrees that the Borrower may seek to obtain specific performance or other equitable or injunctive relief to enforce this paragraph against such Lender with respect to such breach without posting a bond or presenting evidence of irreparable harm.

 

 

(b)           (i) Subject to Section 10.07(a) and the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) of:

 

(A)            the Borrower; provided that no consent of the Borrower shall be required (i) for an assignment of all or any portion of Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund; provided, further, that the Borrower shall be deemed to have consented to any such assignment of any Loans unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof to a Responsible Officer of the Borrower, (ii) if a Payment or Bankruptcy Default with respect to the Borrower has occurred and is continuing, (iii) for an assignment of all or a portion of the Term Loans pursuant to Section 10.07(h) or Section 10.07(m), or (iv) for any assignment relating to the primary allocation or syndication of the Loans and Commitments by the Lead Arrangers to Persons identified by Administrative Agent to the Borrower on or prior to the Closing Date; and

 

(B)            the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of (i) all or any portion of the Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) all or any portion of the Term Loans pursuant to Section 10.07(h) or Section 10.07(m);

 

(ii)            Assignments shall be subject to the following additional conditions:

 

(A)            except in the case of an assignment to a Lender, an Affiliate of a Lender, or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 and shall be in increments of $1,000,000 in excess thereof (provided that simultaneous assignments to or from two or more Approved Funds shall be aggregated for purposes of determining compliance with this Section 10.07(b)(ii)(A)), unless each of the Borrower and the Administrative Agent otherwise consents; provided, further, that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;

 

(B)            the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (or if previously agreed with the Administrative Agent, manually), together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided that only one such fee shall be payable in the event of simultaneous assignments to or from two (2) or more Approved Funds; and

 

 

(C)            other than in the case of assignments pursuant to Section 10.07(m), the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the Assignee shall designate one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their Affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including federal and state securities laws) and all applicable tax forms required pursuant to Section 3.01(e).

 

This paragraph (b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis among such Facilities.

 

In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

(c)           Subject to acceptance and recording thereof by the Administrative Agent pursuant to Sections 10.07(d) and (e), from and after the effective date specified in each Assignment and Assumption, (1) other than in connection with an assignment pursuant to Section 10.07(m), the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and (2) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(f).

 

 

(d)           The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption and each notice of cancellation of any Loans delivered by the Borrower to the Administrative Agent pursuant to Section 10.07(m) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and, with respect to such Lender’s own interest only, any Lender, at any reasonable time and from time to time upon reasonable prior notice. The parties intend that the Register will cause all Loans and other obligations hereunder to be at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury Regulations (or any other relevant or successor provisions of the Code or of such Treasury Regulations).

 

(e)           Upon its receipt of, and consent to, a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, an Administrative Questionnaire completed in respect of the Assignee (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above, if applicable, and the written consent of the Administrative Agent, if required, and, if required, the Borrower to such assignment and any applicable tax forms required pursuant to Section 3.01(e), the Administrative Agent shall promptly (i) accept such Assignment and Assumption and (ii) record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e).

 

 

(f)            Any Lender may at any time, without the consent of the Borrower, sell participations to any Person, subject to the proviso in the first paragraph of Section 10.07(a) (each, a “Participant”), in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided, further, that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in Sections 10.01(a) through (f) and (j) that requires the affirmative vote of such Lender, in each case, to the extent the Participant is directly and adversely affected thereby. Subject to Section 10.07(g), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections, including the requirements under Section 3.01(e)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(c). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant shall be subject to Section 2.12 as though it were a Lender and Section 3.07 as though it were an Assignee. Each Participant will provide any applicable tax forms required pursuant to Section 3.01(e) solely to the Participating Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register complying with the requirements of Treasury Regulation Section 5f.103-1(c) and Sections 163(f), 871(h)(2) and 881(c)(2) of the Code on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided, further, that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary in connection with an audit or other proceeding to establish that such Commitment, Loan or other obligation is in registered form under Treasury Regulation Section 5f.103-1(c), proposed Treasury Regulation Section 1.163-5 or any applicable temporary, final or other successor regulations . The entries in the Participant Register shall be conclusive absent manifest error and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

 

(g)           A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent, not to be unreasonably withheld or delayed (for the avoidance of doubt, the Borrower shall have reasonable basis for withholding consent if the participation would result in increased gross-up or indemnification obligations by the Borrower at such time).

 

(h)           Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

 

(i)            Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) such SPC and the applicable Loan or any applicable part thereof, shall be appropriately reflected in the Participant Register. Each party hereto hereby agrees that (i) an SPC shall be entitled to the benefit of Section 3.01, 3.04 or 3.05 (subject to the requirements and the limitations of such Sections and it being understood that the documentation required under Section 3.01(e) shall be delivered solely to the Granting Lender), but neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement except in the case of Section 3.01 or 3.04 to the extent that the grant to the SPC was made with the prior written consent of the Borrower (not to be unreasonably withheld or delayed; for the avoidance of doubt, the Borrower shall have reasonable basis for withholding consent if an exercise by SPC immediately after the grant would result in increased indemnification obligations by the Borrower at such time), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.

 

(j)            Notwithstanding anything to the contrary contained herein, without the consent of the Borrower or the Administrative Agent, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

 

(k)           [Reserved].

 

(l)            [Reserved].

 

(m)           Any Lender may, so long as no Default or Event of Default has occurred and is continuing and, to the extent Term Loans are purchased at a discount, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to the Parent, the Borrower or any of its Subsidiaries through (i) Dutch auctions open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.04(a)(iv) or (ii) notwithstanding Sections 2.11 and 2.12 or any other provision in this Agreement, open market or privately negotiated purchase (including an exchange) on a pro rata or non-pro rata basis; provided, that, in connection with assignments pursuant to clauses (i) and (ii) above, (A) if the Parent is the assignee, upon such assignment, transfer or contribution, the Parent shall automatically be deemed to have contributed the principal amount of such Term Loans, plus all accrued and unpaid interest thereon, to the Borrower or (B) if the assignee is the Borrower or a Subsidiary (including through contribution or transfer from the Parent), (x) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower or a Subsidiary shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (y) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower or such Subsidiary and (z) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register.

 

 

 

(n)           [Reserved]; and

 

(o)           [Reserved].

 

Section 10.08      Confidentiality. Each of the Agents and the Lenders severally (and not jointly) agrees to maintain the confidentiality of the Information and not to disclose such information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ managers, administrators, directors, officers, employees, trustees, partners, investors, investment advisors and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority or self-regulatory authority having or asserting jurisdiction over such Person (including any Governmental Authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender or its Affiliates); provided that the Administrative Agent or such Lender, as applicable, agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the request of a regulatory authority or examiner) unless such notification is prohibited by law, rule or regulation; (c) to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities or market data collectors, similar services providers to the lending industry and service providers to the Administrative Agent in connection with the administration and management of this Agreement and the Loan Documents; (d) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; provided that the Administrative Agent or such Lender, as applicable, agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the request of a regulatory authority or examiner) unless such notification is prohibited by law, rule or regulation; (e) to any other party to this Agreement; (f) subject to an agreement containing provisions at least as restrictive as those set forth in this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower), to any pledgee referred to in Section 10.07(h), counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement (provided that the disclosure of any such Information to any Lenders or Eligible Assignees or Participants shall be made subject to the acknowledgement and acceptance by such Lender, Eligible Assignee or Participant that such Information is being disseminated on a confidential basis) (on substantially the terms set forth in this Section 10.08 or as otherwise reasonably acceptable to the Borrower, including, without limitation, as agreed in any Borrower Materials) in accordance with the standard processes of the Administrative Agent or customary market standards for dissemination of such type of Information; (g) with the written consent of the Borrower; (h) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08 or becomes available to the Administrative Agent, the Lead Arrangers, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than a Loan Party or their respective Affiliates (so long as such source is not known to the Administrative Agent, the Lead Arrangers, such Lender or any of their respective Affiliates to be bound by confidentiality obligations to any Loan Party); (i) to any Governmental Authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; (j) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to Loan Parties and their Subsidiaries received by it from such Lender) or to the CUSIP Service Bureau or any similar organization; (k) in connection with establishing a “due diligence” defense, (l) to the extent such Information is independently developed by the Administrative Agent, the Lead Arrangers, such Lender or any of their respective Affiliates or (m) subject to an agreement containing provisions at least as restrictive as those set forth in this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower), to any actual or potential credit provider, investor, or other entity in connection with a financing or securitization or proposed financing or securitization of all or a part of any amounts payable to or for the benefit of any Lender or its Affiliates under the Loan Documents. In addition, the Agents and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Borrowings. For the purposes of this Section 10.08, “Information” means all information received from the Loan Parties relating to any Loan Party, its Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors or agents, relating to the Parent or any of its Subsidiaries or its business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08; provided that all information received after the Closing Date from the Parent or any of its Subsidiaries shall be deemed confidential unless such information is clearly identified at the time of delivery as not being confidential.

 

 

Section 10.09      Setoff. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates (and the Collateral Agent, in respect of any unpaid fees, costs and expenses payable hereunder) is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and each of its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or the Collateral Agent to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or the Collateral Agent hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided, further, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, the Collateral Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, the Collateral Agent and such Lender may have.

 

Section 10.10      Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

Section 10.11      Tax Treatment. The Borrower, the Administrative Agent and each Lender agree (i) that for U.S. federal and other applicable income tax purposes, (A) each Loan shall be treated as indebtedness, and (B) each Loan shall not be treated as “contingent payment debt instruments” under Section 1.1275-4 of the United States Treasury Regulations (or any corresponding provision of state income tax law) and (ii) to file all U.S. federal income tax and state income tax and franchise tax returns in a manner consistent with the foregoing.

 

Section 10.12      Counterparts. This Agreement and each other Loan Document be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be.

 

 

Section 10.13      Integration; Termination. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.

 

Section 10.14      Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.

 

Section 10.15      Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.15, if and to the extent that the enforceability of any provision in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent then such provisions shall be deemed to be in effect only to the extent not so limited. Without limiting the foregoing provisions of this Section 10.15, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent then such provisions shall be deemed to be in effect only to the extent not so limited.

 

 

Section 10.16      GOVERNING LAW.

 

(a)           THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

(b)           ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE SITTING IN THE BOROUGH OF MANHATTAN, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS AND AGREES THAT IT WILL NOT COMMENCE OR SUPPORT ANY SUCH ACTION OR PROCEEDING IN ANOTHER JURISDICTION. EACH LOAN PARTY, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER OR OTHER ELECTRONIC TRANSMISSION) IN SECTION 10.02. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION TO ENFORCE ANY AWARD OR JUDGMENT OR EXERCISE ANY RIGHT UNDER THE COLLATERAL DOCUMENTS AGAINST ANY COLLATERAL OR ANY OTHER PROPERTY OF ANY LOAN PARTY IN ANY OTHER FORUM IN ANY JURISDICTION IN WHICH COLLATERAL IS LOCATED.

 

Section 10.17      WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

 

Section 10.18      Binding Effect. This Agreement shall become effective when it shall have been executed by the Loan Parties, the Administrative Agent and the Collateral Agent, and the Administrative Agent shall have been notified by each Lender that each Lender has executed it and thereafter this Agreement shall be binding upon and inure to the benefit of the Loan Parties, each Agent and each Lender and their respective successors and assigns, in each case in accordance with Section 10.07 (if applicable) and except that no Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.

 

Section 10.19      USA PATRIOT Act and Beneficial Ownership. Each Lender that is subject to the USA PATRIOT Act and the Beneficial Ownership Regulation, and the Administrative Agent and the Collateral Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name, address and tax identification number of such Loan Party and other information regarding such Loan Party that will allow such Lender, the Administrative Agent or the Collateral Agent, as applicable, to identify such Loan Party in accordance with the USA PATRIOT Act and, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower under the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation and is effective as to the Lenders, the Administrative Agent and the Collateral Agent.

 

Section 10.20      No Advisory or Fiduciary Responsibility.

 

(a)           In connection with all aspects of each transaction contemplated hereby, each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its Affiliates, on the one hand, and the Agents, the Lead Arrangers and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the Agents, the Lead Arrangers (and their respective Affiliates) and the Lenders is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Agents, the Lead Arrangers (or their respective Affiliates) or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Agent or Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Agents, the Lead Arrangers (or their respective Affiliates) or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Agents, the Lead Arrangers (and their respective Affiliates) and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none of the Agents, the Lead Arrangers or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Agents, the Lead Arrangers (and their respective Affiliates) and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate. Each Loan Party hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Agents, the Lead Arrangers (and their respective Affiliates) and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty under applicable law relating to agency and fiduciary obligations.

 

 

(b)           Each Loan Party acknowledges and agrees that each Lender, the Lead Arrangers and any Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of the Borrower, any Affiliate thereof or any other person or entity that may do business with or own securities of any of the foregoing, all as if such Lender, the Lead Arrangers or Affiliate thereof were not a Lender, the Lead Arrangers or an Affiliate thereof (or an agent or any other person with any similar role under the Facilities) and without any duty to account therefor to any other Lender, the Lead Arrangers, the Borrower or any Affiliate of the foregoing. Each Lender, the Lead Arrangers and any Affiliate thereof may accept fees and other consideration from the Borrower or any Affiliate thereof for services in connection with this Agreement, the Facilities or otherwise without having to account for the same to any other Lender, the Lead Arrangers, the Borrower or any Affiliate of the foregoing. Some or all of the Lenders and the Lead Arrangers may have directly or indirectly acquired certain Equity Interests (including warrants) in the Borrower or an Affiliate thereof or may have directly or indirectly extended credit on a subordinated basis to the Borrower or an Affiliate thereof. Each party hereto, on its behalf and on behalf of its Affiliates, acknowledges and waives the potential conflict of interest resulting from any such Lender, the Lead Arrangers or an Affiliate thereof holding disproportionate interests in the extensions of credit under the Facilities or otherwise acting as arranger, manager or agent thereunder and such Lender, the Lead Arrangers or any Affiliate thereof directly or indirectly holding Equity Interests in or subordinated debt issued by the Borrower or an Affiliate thereof.

 

Section 10.21      Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be.

 

 

Section 10.22      Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures any Lender could purchase the specified currency with such other currency at such Lender’s New York office on the Business Day preceding that on which final judgment is given. The obligations of the Borrower in respect of any sum due to any Lender hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender of any sum adjudged to be so due in such other currency such Lender may in accordance with normal banking procedures purchase the specified currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally due to such Lender in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify the Lender against such loss, and if the amount of the specified currency so purchased exceeds the sum originally due to such Lender in the specified currency, such Lender agrees to remit such excess to the Borrower.

 

Section 10.23      Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

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

 

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

 

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

 

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

 

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

 

Section 10.24      Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, if agreed by the Borrower, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement (including if such Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Term Facilities, Facilities in connection with any Refinancing Series, Extended Term Loans or loans incurred under a new credit facility), pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender, and any such transactions or mechanisms shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”, “in Cash” or any other similar requirement.

 

 

Section 10.25      Acknowledgement Regarding any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York or of the United States or any other state of the United States):

 

(a)            In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

 

(b)           As used in this Section 10.25, the following terms have the following meanings:

 

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

 

“Covered Entity” means any of the following:

 

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

 

 

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

 

(iii)          a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

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

 

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

Section 10.26      Canadian Anti-Money Laundering Legislation.

 

Each Loan Party acknowledges that, pursuant to the Proceeds of Crime Act and other applicable Canadian anti-money laundering, anti-terrorist financing, government sanction and “know your client” laws (collectively, including any guidelines or orders thereunder, “AML Legislation”), the Lenders may be required to obtain, verify and record information regarding the Loan Parties and their respective directors, authorized signing officers, direct or indirect shareholders or other Persons in control of the Loan Parties, and the transactions contemplated hereby. Each Loan Party shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or any prospective assignee or participant of a Lender, or the Administrative Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.

 

If the Administrative Agent has ascertained the identity of any Loan Party or any authorized signatories of the Loan Parties for the purposes of applicable AML Legislation, then the Administrative Agent:

 

shall be deemed to have done so as an agent for each Lender, and this Agreement shall constitute a “written agreement” in such regard between each Lender and the Administrative Agent within the meaning of the applicable AML Legislation; and

 

shall provide to each Lender copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.

 

Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Lenders agrees that neither the Administrative Agent nor any other agent has any obligation to ascertain the identity of the Loan Parties or any authorized signatories of the Loan Parties on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from any Loan Party or any such authorized signatory in doing so.

 

[Signature Pages Follow]

 

 

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

 

COMPANY:	NGL ENERGY OPERATING LLC
	By:	/s/ H. Michael Krimbill
	Name:	H. Michael Krimbill
	Title:	Chief Executive Officer

 

PARENT:	NGL ENERGY PARTNERS LP   By: NGL ENERGY HOLDINGS LLC, its General Partner
	By:	/s/ H. Michael Krimbill
	Name:	H. Michael Krimbill
	Title:	Chief Executive Officer

 

Term Loan B Credit Agreement Signature Page

 

 

 

GUARANTORS:

 

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

 

Term Loan B Credit Agreement Signature Page

 

 

GUARANTORS:

 

	NGL SHARED SERVICES HOLDINGS, INC.
	By:	/s/ H. Michael Krimbill
	Name:	H. Michael Krimbill
	Title:	President and Chief Execute Officer
	NGL NGL SOUTH RANCH, INC.
	By:	/s/ H. Michael Krimbill
	Name:	H. Michael Krimbill
	Title:	President and Chief Execute Officer

 

Term Loan B Credit Agreement Signature Page

 

 

ADMINISTRATIVE AGENT	TORONTO DOMINION (TEXAS) LLC
& COLLATERAL AGENT:
	By:	/s/ Jonathan Schwartz
	Name:	Jonathan Schwartz
	Title:	Vice President

 

Term Loan B Credit Agreement Signature Page

 

 

LENDER:	THE TORONTO-DOMINION BANK, NEW YORK BRANCH
	By:	/s/ Jonathan Schwartz
	Name:	Jonathan Schwartz
	Title:	Authorized Signatory

 

Term Loan B Credit Agreement Signature Page

 

 

SCHEDULE 1.01A

 

COMMITMENTS

 

LENDER		COMMITMENTS
The Toronto-Dominion Bank, New York Branch		$	700,000,000.00
Total		$	700,000,000.00

 

 

 

Exhibit 10.2

 

Execution Version

 

FIFTH AMENDMENT TO CREDIT AGREEMENT

 

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

 

Recitals

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

4.12          The Administrative Agent shall have received:

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 5.         Real Estate Matters.

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Section 6.         Miscellaneous.

 

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

 

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

 

6.3            Credit Document. This Amendment is a Credit Document.

 

 

6.4            Counterparts.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

[Signature Pages Follow]

 

 

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

 

COMPANY:	NGL ENERGY OPERATING LLC
	By:	/s/ Bradley P. Cooper
	Name:	Bradley P. Cooper
	Title:	Chief Financial Officer and Executive Vice President

 

 

PARENT:	NGL ENERGY PARTNERS LP   By: NGL ENERGY HOLDINGS LLC, its General Partner
	By:	/s/ Bradley P. Cooper
	Name:	Bradley P. Cooper
	Title:	Chief Financial Officer and Executive Vice President

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

GUARANTORS:	ANTICLINE DISPOSAL, LLC AWR DISPOSAL, LLC CENTENNIAL ENERGY, LLC CENTENNIAL GAS LIQUIDS ULC CHOYA OPERATING, LLC DISPOSALS OPERATING, LLC GGCOF HEP BLOCKER, LLC GGCOF HEP BLOCKER II, LLC GRAND MESA PIPELINE, LLC GSR NORTHEAST TERMINALS LLC HILLSTONE ENVIRONMENTAL PARTNERS, LLC NGL CRUDE CUSHING, LLC NGL CRUDE LOGISTICS, LLC NGL CRUDE TERMINALS, LLC NGL CRUDE TRANSPORTATION, LLC NGL DELAWARE BASIN HOLDINGS, LLC NGL ENERGY FINANCE CORP. NGL ENERGY GP LLC NGL LIQUIDS, LLC NGL MARINE, LLC NGL NORTH RANCH, LLC NGL RECYCLING SERVICES, LLC NGL SHARED SERVICES, LLC. NGL SUPPLY TERMINAL COMPANY, LLC NGL SUPPLY WHOLESALE, LLC NGL WATER PIPELINES, LLC NGL WATER SOLUTIONS, LLC NGL WATER SOLUTIONS DJ, LLC NGL WATER SOLUTIONS EAGLE FORD, LLC NGL WATER SOLUTIONS – ORLA SWD, LLC NGL WATER SOLUTIONS PERMIAN, LLC NGL WATER SOLUTIONS PRODUCT SERVICES, LLC
	By:	/s/ Bradley P. Cooper
	Name:	Bradley P. Cooper
	Title:	Chief Financial Officer and Executive Vice President

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

GUARANTORS:	NGL SHARED SERVICES HOLDINGS, INC.
	By:	/s/ Bradley P. Cooper
	Name:	Bradley P. Cooper
	Title:	Chief Financial Officer and Vice President

 

	NGL SOUTH RANCH, INC.
	By:	/s/ Bradley P. Cooper
	Name:	Bradley P. Cooper
	Title:	Chief Financial Officer

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

ADMINISTRATIVE AGENT, COLLATERAL AGENT, SWINGLINE LENDER, ISSUING LENDER AND A LENDER:	JPMORGAN CHASE BANK, N.A.
	By:	/s/ Umar Hassan
	Name:	Umar Hassan
	Title:	Authorized Officer

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

LENDER:	BARCLAYS BANK PLC
	By:	/s/ Sydney G. Dennis
	Name:	Sydney G. Dennis
	Title:	Director

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

LENDER:	Royal Bank of Canada
	By:	/s/ Don J. McKinnerney
	Name:	Don J. McKinnerney
	Title:	Authorized Signatory

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

ISSUING LENDER AND  LENDER:	THE TORONTO-DOMINION BANK, NEW YORK BRANCH
	By:	/s/ Jonathan Schwartz
	Name:	Jonathan Schwartz
	Title:	Authorized Signatory

 

Fifth Amendment to Credit Agreement
Signature Page

 

ISSUING LENDER AND LENDER:	WELLS FARGO BANK, NATIONAL ASSOCIATION
	By:	/s/ Suriyya Ali
	Name:	Suriyya Ali
	Title:	Authorized Signatory

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

ADDITIONAL  LENDER:	Bank of America, N.A.
	By:	/s/ Lisa Huynh
	Name:	Lisa Huynh
	Title:	Vice President

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

ADDITIONAL  LENDER:	MUFG BANK, LTD.
	By:	/s/ Jeehae Kim
	Name:	Jeehae Kim
	Title:	Vice President

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

ADDITIONAL  LENDER:	TEXAS CAPITAL BANK
	By:	/s/ Kimberly Heathcott
	Name:	Kimberly Heathcott
	Title:	Director

 

Fifth Amendment to Credit Agreement
Signature Page

 

 

ANNEX A

CREDIT AGREEMENT

 

[Attached]

 

 

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

 

Dated as of February 4, 2021

 

NGL ENERGY OPERATING LLC,

as the Company,

 

NGL ENERGY PARTNERS LP,

as Parent,

 

THE FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS

 

and

 

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

 

 

JPMORGAN CHASE BANK, N.A.,

BARCLAYS BANK PLC,

RBC CAPITAL MARKETS,¹

THE TORONTO-DOMINION BANK, NEW YORK BRANCH,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

BANK OF AMERICA, N.A. and

MUFG BANK, LTD.,

as Joint Lead Arrangers,

 

and

 

JPMORGAN CHASE BANK, N.A.,

BARCLAYS BANK PLC,

RBC CAPITAL MARKETS,

THE TORONTO-DOMINION BANK, NEW YORK BRANCH,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

BANK OF AMERICA, N.A. and

MUFG BANK, LTD

as Joint Bookrunners

 

	CREDIT AGREEMENT

 

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

 

 

Table of Contents

 

Page

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

SCHEDULES:
Schedule 1A	—	Commitment Amounts
Schedule 1B	—	Existing Money Market Funds
Schedule 1C	—	Eligible Carriers
Schedule 1D	—	Risk Management Policy
Schedule 6.11	—	Subsidiaries
Schedule 6.12	—	Real Property
Schedule 6.20	—	Filings
Schedule 6.22	—	Insurance
Schedule 9.2(h)	—	Indebtedness
Schedule 9.2(k)	—	Contingent Obligations
Schedule 9.3	—	Liens
Schedule 9.7	—	Investments, Loans and Advances
Schedule 9.10	—	Transaction with Affiliates
Schedule 9.14	—	Restrictive Agreements
EXHIBITS:
Exhibit A	—	Form of Assignment and Assumption
Exhibit B	—	Form of Borrowing Base Certificate
Exhibit C-1	—	Form of Canadian Pledge and Security Agreement
Exhibit C-2	—	Form of Pledge and Security Agreement
Exhibit D	—	Form of Credit Party Accession Agreement
Exhibit E	—	Form of Guaranty
Exhibit F	—	Form of U.S. Tax Compliance Certificates
Exhibit G	—	Form of Responsible Officer’s Certificate
Exhibit H	—	Form of Solvency Certificate
Exhibit I	—	Form of Compliance Certificates

 

 

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

 

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

 

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

 

1.

Definitions

 

1.1

UCC Definitions

 

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

 

1.2

Defined Terms

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

(1)            the Adjusted Daily Simple SOFR;

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

  

 

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

 

(viii)            Reserves.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

“Change in Law” means, with respect to any Lender, the adoption of any law, treaty, rule, regulation, policy, guideline or directive (whether or not having the force of law) or any change therein or in the interpretation or application thereof by any Governmental Authority, including, without limitation, the issuance of any final rule, regulation or guideline by any regulatory agency having jurisdiction over such Lender or, in the case of Section 5.12(b) or 5.20(b), any corporation controlling such Lender, in each case, after the date such Lender becomes a party to this Agreement; provided, however, that notwithstanding anything herein to the contrary, (x) the 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 the occurrence of any of the following events: (a) Parent fails to directly or indirectly own and control beneficially and of record (free and clear of all Liens other than Liens permitted under Section 9.3) the percentage of the Equity Interests of each Credit Party as set forth in Schedule 6.11 (other than as a result of a disposition permitted under Section 9.6); (b) the General Partner shall fail to directly own and control beneficially and of record (free and clear of all Liens other than Liens permitted under Section 9.3) 100% of the general partner interests of the Parent; (c) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and any Permitted Holder) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the voting Equity Interests of the General Partner on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (d) a majority of the members of the board of managers or other equivalent governing body of the General Partner (excluding vacant seats) cease to be Continuing Members.

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

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

 

 

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

 

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

 

(i)            Consolidated Net Income for such period; plus

 

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

 

(A)            Consolidated Interest Expense;

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

(e)            treasury stock;

 

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

 

(f)            Investments in and assets of Unrestricted Subsidiaries.

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

“Covered Entity” means any of the following:

 

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

 

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

 

(iii)            a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Covered Party” has the meaning assigned to it in Section 12.18.

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

(c)            [reserved];

 

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

 

 

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

 

(f)            [reserved];

 

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

 

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

 

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

 

(j)            which cannot be located;

 

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

 

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

 

(m)            which is perishable;

 

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

 

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

 

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

 

(q)            [reserved];

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

 

 

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

 

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

 

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

 

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

 

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of the Company hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under this Agreement) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 5.23(b), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) in the case of a Lender, Canadian federal withholding Taxes imposed on amounts paid or credited to a Lender as a result of such Lender (A) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with any Canadian Credit Party, or (B) being a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of any Canadian Credit Party or not dealing at arm’s length with such a specified shareholder for purposes of the Income Tax Act (Canada), except, in the case of (A) or (B) above, where the non-arm’s length relationship arose, or the Lender was a specified shareholder or was dealing non-arm’s length with a specified shareholder, solely as a result of such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or enforced this Agreement or any other Credit Document, (d) Taxes attributable to such recipient’s failure to comply with Section 5.23(g) and (e) any withholding Taxes imposed under FATCA.

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

“Investment” has the meaning specified in Section 9.7.

 

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

 

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

 

 

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

 

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

 

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

 

“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directives, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

(i)

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

 

(ii)

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

 

 

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

 

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

 

“Organization Documents” means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

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

 

“Other Connection Taxes” means, with respect to a Lender (including an Issuing Lender) or the Administrative Agent or any other recipient of any payment to be made by or on account of any obligation of the Company hereunder, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

“Platform” has the meaning specified in Section 8.2.

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

“Product Inventory” means Inventory consisting of Product.

 

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

 

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

 

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

 

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

 

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

“QFC Credit Support” has the meaning assigned to it in Section 12.18(b).

 

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other Person constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

(e)            the Canadian Priority Payable Reserve; plus

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Same Day Funds” means immediately available funds.

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

1.3

Other Definitional Provisions

 

(a)

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

 

(b)

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

 

 

(c)

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

 

(d)

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

 

(e)

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

 

(f)

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

 

 

1.4

Divisions

 

For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.

 

1.5

Interest Rates; Benchmark Notifications

 

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

 

1.6

Pro Forma Basis; Limited Condition Transactions.

 

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

 

 

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

 

 

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

 

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

 

 

1.7

Performance.

 

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

 

1.8

Additional Alternative Currencies.

 

(a)

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

 

(b)

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

 

1.9

Exchange Rates; Currency Equivalents

 

(a)

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

 

(b)

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

 

2.

Amount and Terms of Revolving Credit Commitments

 

2.1

Revolving Credit Commitments

 

(a)

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

 

 

(b)

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

 

(c)

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

 

2.2

Proceeds of Revolving Credit Loans

 

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

 

 

2.3

Issuance of Letters of Credit

 

(a)

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

 

(b)

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

 

(c)

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

 

 

(d)

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

 

2.4

Participating Interests

 

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

 

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

 

 

2.5

Procedure for Opening Letters of Credit

 

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

 

2.6

Payments in Respect of Letters of Credit

 

(a)

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

 

(b)

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

 

 

(c)

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

 

(d)

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

 

2.7

Eligible Cash Account

 

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

 

 

2.8

Protective Advances

 

(a)

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

 

(b)

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

 

(c)

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

 

2.9

Swingline Loans

 

(a)

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

 

 

(b)

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

 

(c)

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

 

3.

Amount and Terms of Incremental Loans

 

3.1

Requests for Incremental Loans

 

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

 

 

3.2

Ranking and Other Provisions

 

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

 

3.3

Notices; Lender Elections

 

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

 

 

3.4

Incremental Facility Amendment

 

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

 

3.5

Effective Date and Allocations

 

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

 

3.6

Conditions to Effectiveness of Increase

 

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

 

(a)

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

 

(b)

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

 

 

(c)

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

 

3.7

Effect of Incremental Facility Amendment

 

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

 

3.8

Revolving Credit Commitment Increases

 

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

 

 

3.9

Conflicting Provisions

 

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

 

4.

[RESERVED]

 

5.

General Provisions Applicable to Loans and Letters of Credit

 

5.1

Procedure for Borrowing by the Company

 

(a)

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

 

(b)

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

 

 

5.2

Repayment of Loans; Evidence of Debt

 

(a)

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

 

(b)

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

 

(c)

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

 

(d)

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

 

 

(e)

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

 

5.3

Conversion and Continuation Options

 

(a)

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

 

(b)

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

 

 

5.4

Changes of Commitment Amounts

 

(a)

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

 

(b)

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

 

 

5.5

Optional Prepayments

 

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

 

5.6

Mandatory Prepayments

 

(a)

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

 

(b)

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

 

(c)

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

 

 

(d)

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

 

(e)

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

 

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

 

5.7

Interest Rates and Payment Dates

 

(a)

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

 

 

(b)

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

 

(c)

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

 

(d)

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

 

(e)

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

 

5.8

Computation of Interest and Fees

 

(a)

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

 

(b)

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

 

 

5.9

Commitment Fees

 

(a)

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

 

(b)

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

 

5.10

Certain Fees

 

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

 

5.11

Letter of Credit Fees

 

(a)

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

 

(b)

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

 

 

5.12

Letter of Credit Reserves

 

(a)

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

 

(b)

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

 

(c)

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

 

 

5.13

Further Assurances

 

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

 

5.14

Obligations Absolute

 

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

 

(a)

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

 

(b)

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

 

(c)

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

 

(d)

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

 

5.15

Assignments

 

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

 

 

5.16

Participations

 

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

 

5.17

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

 

(a)

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

 

(i)

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

 

(ii)

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

 

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

 

 

(b)

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

 

(c)

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

 

(d)

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

 

 

(e)

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

 

(f)

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

 

(g)

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

 

 

5.18

Pro Rata Treatment and Payments

 

(a)

Each borrowing of any Loans by the Company from the Lenders, each payment by the Company on account of any fee hereunder (other than as set forth in Sections 5.10 and 5.11) and any reduction of the Revolving Credit Commitments or Revolving Credit Commitments Increases of the Lenders hereunder shall be made pro-rata according to the Commitment Percentages of the Lenders. Each payment (including each prepayment) by the Company on account of principal of and interest on the Loans (other than payments made directly to the Swingline Lender as expressly provided herein or as set forth in Sections 5.6, 5.19, 5.20 and 5.21) shall be made pro-rata according to the Commitment Percentages of the Lenders. All payments (including prepayments) to be made by the Company on account of principal, interest and fees shall be made without set-off or counterclaim and shall be made to the Administrative Agent, for the account of the Lenders, at the Administrative Agent’s office located at 10 South Dearborn Street, Floor L2, Chicago, Illinois in Same Day Funds. The Administrative Agent shall promptly distribute such payments ratably to each Lender in like funds as received to the extent required by this Agreement. If any payment hereunder (other than payments on Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension unless the result of such extension would be to extend such payment into another calendar month in which event such payment shall be made on the immediately preceding Business Day. All payments hereunder shall be made in Dollars.

 

(b)

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

 

 

(c)

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

 

(d)

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

 

(e)

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

 

 

(f)

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

 

 

5.19

Illegality

 

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

 

5.20

Requirements of Law

 

(a)

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

 

(i)

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

 

(ii)

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

 

(iii)

subject any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iv)

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

 

 

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

 

(b)

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

 

(c)

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

 

 

(d)

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

 

5.21

Break Funding Payments

 

(a)

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

 

(b)

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

 

 

5.22

Replacement of Lenders

 

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

 

5.23

Taxes

 

(a)

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

 

(b)

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

 

(c)

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

 

 

(d)

Indemnification by the Company. The Company shall indemnify the Administrative Agent, or any Lender, within twenty (20) days after demand therefor, for the full amount of any Indemnified Taxes arising from any and all payments by or on account of any obligation of the Company under any Credit Document (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) that are payable or paid by the Administrative Agent or any Lender or are required to be withheld or deducted from a payment to such Person and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(e)

Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within twenty (20) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.6(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (e).

 

(f)

Evidence of Payments. As soon as practicable after any payment of Taxes pursuant to this Section 5.23 by the Company to a Governmental Authority, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(g)

Status of Lenders.

 

(i)

Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.23(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

 

(ii)

Without limiting the generality of the foregoing,

 

(A)

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

 

(B)

any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent, but only if the Foreign Lender is legally entitled to do so), whichever of the following is applicable:

 

(I)

in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(II)

executed copies of IRS Form W-8ECI;

 

(III)

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

 

 

(IV)

to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner;

 

(C)

any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)

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

 

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.

 

(h)

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

 

(i)

Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.23 (including by the payment of additional amounts pursuant to Section 5.23(b)), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made or additional amounts paid under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (i) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (i), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (i) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(j)

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

 

 

5.24

Defaulting Lenders

 

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

 

(a)

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

 

(b)

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

 

(c)

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

 

(i)

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

 

(ii)

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

 

(iii)

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

 

 

(iv)

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

 

(v)

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

 

(d)

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

 

If (i) a Bankruptcy Event or Bail-In Action with respect to the parent of any Lender shall occur following the Closing Date and for so long as such event shall continue or (ii) the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Lender shall have entered into arrangements with the Company or such Lender, satisfactory to the Issuing Lender to defease any risk to it in respect of such Lender hereunder.

 

In the event that the Administrative Agent, the Company, the Swingline Lender and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and the L/C Participating Interest of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitments and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than the Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Credit Commitments.

 

 

5.25

Accounts; Cash Dominion

 

(a)            At all times subject to the following sentence, all Deposit Accounts, Securities Accounts and Commodities Accounts (other than any Excluded Account for so long as such account is an Excluded Account) of the Credit Parties shall be Controlled Accounts. The Credit Parties will, in connection with any Deposit Account, Securities Account or Commodity Account (other than any Excluded Account for so long as such account is an Excluded Account), enter into and deliver to the Collateral Agent a Control Agreement in form and substance acceptable to the Collateral Agent: (i) with respect to Deposit Accounts, Securities Accounts and Commodities Accounts in existence on the Fifth Amendment Effective Date, within sixty (60) days of the Fifth Amendment Effective Date, (ii) with respect to Deposit Accounts, Securities Accounts and Commodities Accounts established after the Fifth Amendment Effective Date pursuant to Section 8.14, on the date such account is established and (iii) with respect to all other Deposit Accounts, Securities Accounts and Commodities Accounts established after the Fifth Amendment Effective Date, promptly but in any event within thirty (30) days of the date such account is established (or, in each case of clauses (i), (ii) and (iii), such later date as the Collateral Agent may agree in its sole discretion). Each Credit Party shall be subject to cash dominion at all times a Cash Dominion Event has occurred and is continuing. At any time that a Cash Dominion Event has occurred and is continuing, cash on hand and collections which are received into any Controlled Account (other than the Material Debt Reserve Account), and, to the extent necessary, any securities held in any Securities Account shall be liquidated and the cash proceeds thereof, shall be swept on a daily basis into the Collection Account and used to prepay Loans outstanding under this Agreement in accordance with Section 5.2(b); provided that notwithstanding anything to the contrary contained herein, any time that a Cash Dominion Event has occurred and is continuing, any Net Proceeds in respect of any Fixed Debt Priority Collateral Prepayment Event shall be deposited in the Asset Sale Reserve Account to the extent required by Section 5.6(c) and shall not be swept to the Collection Account. During any time that a Cash Dominion Event has occurred and is continuing (A) all proceeds of any Loan shall be deposited into a Deposit Account that is a Controlled Account and maintained with the Administrative Agent and (B) the Company shall accurately report to the Administrative Agent the daily balance of the Controlled Accounts to ensure the proper transfer of funds as set forth above.

 

(b)            In the event during the Asset Sale Reserve Period, the Company desires to use cash on deposit in the Asset Sale Reserve Account to (i) repay, redeem, retire, defease, replace, refinance or repurchase the Fixed Debt or any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien or (ii) invest in any property or assets to be used by the Parent, the Company or a Restricted Subsidiary in a Permitted Business that would constitute Fixed Debt Priority Collateral (a transaction under clause (i) or clause (ii) above, a “Permitted Transaction”), the Company shall, promptly following any determination by the Company of an election to apply cash on deposit in the Asset Sale Reserve Account in accordance with this Section 5.25(b) (in event no later than three (3) Business Days prior to the date of any such application of cash on deposit in the Asset Sale Reserve Account), deliver to the Administrative Agent a certificate of a Responsible Officer of the Company specifying in reasonable detail the Permitted Transaction, the proposed date thereof and the amount of cash on deposit in the Asset Sale Reserve Account to be applied towards the Permitted Transaction (the “Requested Release”) and certifying that Permitted Transaction is permitted in accordance with the terms of (x) this Agreement and (y) the Fixed Debt Documents and any indenture or other document governing the terms of any Indebtedness permitted hereunder to be secured by a Pari Passu Second Lien. In the event the Company delivers to the Administrative Agent a certificate in accordance with this Section 5.25(b), on the date of the Permitted Transaction, an amount of cash equal to Requested Release shall be transferred to a Deposit Account specified by the Company and shall be applied by the Company in accordance with Permitted Transaction described in the certificate delivered to the Administrative Agent in accordance with this Section 5.25(b). Notwithstanding anything to the contrary set forth herein, if the Asset Sale Reserve Period ends as a result of the Cash Dominion Event that commenced such Asset Sale Reserve Period no longer being continuing, the Administrative Agent shall promptly apply funds credited to the Asset Sale Reserve Account at the Company’s direction for any purpose not prohibited hereunder. Notwithstanding the foregoing, to the extent any funds credited to the Asset Sale Reserve Account constitute Net Proceeds of a Fixed Debt Priority Collateral Prepayment Event, the application of such proceeds shall be subject to Section 5.6(c).

 

 

6.

Representations and Warranties

 

In order to induce the Lenders to enter into this Agreement and to make the Loans and to induce the Issuing Lenders to issue, and the Participating Lenders to participate in, the Letters of Credit, the Parent and the Company each hereby represent and warrant to each Lender and each Agent, on and as of the Closing Date and on the date of each Loan made or Letter of Credit issued thereafter, that:

 

6.1

Corporate Existence; Compliance with Law

 

Each Credit Party and each of its Restricted Subsidiaries (i) is a limited liability company, unlimited liability company, partnership or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (ii) has the power and authority and the legal right to own and operate its property, to lease the property it operates and to conduct the business in which it is currently engaged, except to the extent that the failure to have such power, authority, or rights could not reasonably be expected to have a Material Adverse Effect, (iii) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect and (iv) is in compliance with all applicable Requirements of Law, except to the extent that the failure to comply therewith could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

 

6.2

Corporate Power; Authorization

 

Each Credit Party has the power and authority and the legal right to make, deliver and perform the Credit Documents to which it is a party; the Company has the power and authority and legal right to borrow hereunder and to have Letters of Credit issued for its account hereunder. Each Credit Party has taken all necessary corporate, stockholder, partnership or limited liability company action to authorize the execution, delivery and performance of the Credit Documents to which it is a party and, in the case of the Company, to authorize the borrowings hereunder and the issuance of Letters of Credit for its account hereunder. No consent or authorization of, or filing with, any Person (including, without limitation, any Governmental Authority) is required in connection with the execution, delivery or performance by any Credit Party, or the validity or enforceability against any Credit Party, of any Credit Document to the extent that it is a party thereto, other than any such consent or authorization which has been obtained or filing which has been made to the extent required hereunder, or the failure of which to obtain could have a Material Adverse Effect.

 

 

6.3

Enforceable Obligations

 

Each of the Credit Documents has been duly executed and delivered on behalf of each Credit Party party thereto and each of such Credit Documents constitutes the legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

 

6.4

No Conflict with Law or Contractual Obligations

 

The performance of each Credit Document, and the use of the proceeds of the Loans and of drawings under the Letters of Credit will not violate any Requirement of Law or any material Contractual Obligation (including under such Credit Party’s organizational documents) applicable to or binding upon any Credit Party, any of its Restricted Subsidiaries or any of its properties or assets, and will not result in the creation or imposition of (or the obligation to create or impose) any Lien (other than any Liens created pursuant to the Credit Documents) on any of its or their respective properties or assets pursuant to any Requirement of Law applicable to it or them, as the case may be, or any of its or their Contractual Obligations, except, in the case of any Contractual Obligations, for any such violations which could not reasonably be expected to have a Material Adverse Effect.

 

6.5

No Material Litigation

 

No litigation or investigation or proceeding of or by any Governmental Authority or any other Person is pending or has been overtly threatened against any Credit Party or any of its Restricted Subsidiaries, (i) with respect to the validity, binding effect or enforceability of any Credit Document, or with respect to the Loans made hereunder, the use of proceeds thereof or of any drawings under a Letter of Credit, and the other transactions contemplated hereby or thereby, or (ii) which could reasonably be expected to have a Material Adverse Effect.

 

6.6

Borrowing Base Certificate

 

At the time of delivery of each Borrowing Base Certificate, assuming that any eligibility criteria that requires the approval or satisfaction of the Administrative Agent has been approved by or is satisfactory to the Administrative Agent, each Account reflected therein as eligible for inclusion in the Borrowing Base is an Eligible Account, the Product Inventory reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Inventory, each Commodity Account reflected therein as eligible for inclusion in the Borrowing Base constitutes an Eligible Futures Account and each Dollar or Cash Equivalent reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Cash Collateral.

 

 

6.7

Investment Company Act

 

No Credit Party is required to register as an “investment company” (as such term is defined or used in the Investment Company Act of 1940, as amended).

 

6.8

Federal Reserve Regulations

 

No part of the proceeds of any of the Loans or any drawing under a Letter of Credit will be used to “purchase” or “carry” “margin stock” within the meaning of Regulation U of the Board or for any other purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of the Board. Neither the Company nor any of its Restricted Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under said Regulation U.

 

6.9

No Default

 

No Credit Party nor any of their Restricted Subsidiaries is in default in the payment or performance of any of its or their Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Restricted Subsidiaries is in default under any order, award or decree of any Governmental Authority or arbitrator binding upon or affecting it or them or by which any of its or their properties or assets may be bound or affected in any respect which could reasonably be expected to have a Material Adverse Effect, and no such order, award or decree could reasonably be expected to materially adversely affect the ability of the Company and its Restricted Subsidiaries taken as a whole to carry on their businesses as presently conducted or the ability of any Credit Party to perform its obligations under any Credit Document to which it is a party.

 

6.10

Taxes

 

Each Credit Party and their Restricted Subsidiaries has filed or caused to be filed or has timely requested an extension to file or has received an approved extension to file all Federal and all other material tax returns which are required to have been filed, and has paid all material Taxes shown to be due and payable on said returns or extension requests or on any assessments made against it or any of its property and all other material Taxes imposed on it or any of its property by any Governmental Authority (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the books of the Company or its Restricted Subsidiaries, as the case may be); and no claims are being asserted in writing with respect to any such material Taxes (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided in the books of the Credit Party or its Restricted Subsidiaries, as the case may be).

 

 

6.11

Subsidiaries

 

The Subsidiaries of the Company listed on Schedule 6.11 constitute all of the Subsidiaries of the Parent and the Company as of the Fifth Amendment Effective Date.

 

6.12

Ownership of Property; Liens

 

As of the Fifth Amendment Effective Date, Schedule 6.12 describes the Credit Parties’ owned and leased Material Real Property Assets. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Parent and its Restricted Subsidiaries has good and marketable title to, or valid Leasehold interests in or rights to use, all its Material Real Property Assets and personal property material to its business taken as a whole, and none of such property is subject to any Lien except for Liens permitted by Section 9.3.

 

6.13

ERISA; Canadian Pension Plans

 

(a)

No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect. The present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Accounting Standards Codification 715-30) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans, in each case by an amount that, if required to be paid by the Company and its Subsidiaries, would reasonably be expected to have a Material Adverse Effect.

 

(b)

Each Canadian Credit Party is in compliance with the requirements of the Employment Pension Plans Act (Alberta), the Pension Benefits Act (Ontario) and other federal or provincial laws with respect to each (i) Canadian Pension Plan, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, and (ii) Canadian Defined Benefit Plan. No fact or situation that may reasonably be expected to result in a Material Adverse Effect exists in connection with any Canadian Pension Plan or Canadian Defined Benefit Plan. No Canadian Pension Event has occurred. No Canadian Credit Party has a Canadian Defined Benefit Plan. No lien has arisen, choate or inchoate, in respect of any Canadian Credit Party or their property in connection with (a) any Canadian Pension Plan, or (b) any “registered pension plan” as defined in subsection 248(1) of the Income Tax Act (Canada) that is sponsored and maintained by a third party to which a Credit Party contributes in respect of some or all of its employees (in each case, save for contribution amounts not yet due).

 

 

6.14

Environmental Matters

 

(a)

The Real Properties do not contain any Materials of Environmental Concern in concentrations which constitute a violation of, or could reasonably be expected to give rise to liability under, Environmental Laws that could reasonably be expected to have a Material Adverse Effect.

 

(b)

The Real Properties and all operations at the Real Properties are in compliance with all, and have not violated any, applicable Environmental Laws, except for failure to be in compliance or for such violation that could not reasonably be expected to have a Material Adverse Effect, and there is no contamination at, under or about the Real Properties that could reasonably be expected to have a Material Adverse Effect.

 

(c)

Neither the Company nor any of its Restricted Subsidiaries has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws that could reasonably be expected to have a Material Adverse Effect, nor does the Company or any Restricted Subsidiary have knowledge that any such action is being contemplated, considered or threatened.

 

(d)

There are no judicial proceedings or governmental or administrative actions pending or threatened under any Environmental Law to which the Company or any Restricted Subsidiary is or will be named as a party that could reasonably be expected to have a Material Adverse Effect, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders under any Environmental Law that could reasonably be expected to have a Material Adverse Effect.

 

6.15

Accuracy and Completeness of Financial Statements

 

(a)

(i)  The audited balance sheet of the Parent and its Subsidiaries for the fiscal year ended March 31, 2023 and the related audited consolidated statements of earnings (loss), parent company equity and cash flows for fiscal year ended March 31, 2023, reported on by Grant Thornton LLP, and (ii) the unaudited balance sheet of the Parent and its Subsidiaries for the fiscal quarters ended June 30, 2023 and September 30, 2023, in each case, present fairly, in all material respects, the financial position of the Parent and its Subsidiaries, and their results of operations and cash flows, for such periods, in conformity with GAAP, subject to year-end audit adjustments and absence of footnotes in the case of clause (ii).

 

(b)

All Projections delivered in accordance with Section 7.1(b), when taken as a whole, were prepared in good faith based upon assumptions believed by the Company to be reasonable at the time prepared (it being recognized that such Projections are not to be viewed as facts and 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).

 

6.16

Absence of Undisclosed Liabilities

 

Except for the Loans, if any, incurred on the Closing Date, neither the Company nor any of its Restricted Subsidiaries has or is subject to any liabilities (absolute, accrued, contingent or otherwise) that are not disclosed in the financial statements referred to in Section 6.15(a), except liabilities or obligations which could not, individually or in the aggregate, reasonably be expected to constitute a Material Adverse Effect.

 

 

6.17

No Material Adverse Effect

 

Since March 31, 2023, there has not been any event, occurrence, fact, condition, change, development or effect which individually or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect.

 

6.18

Solvency

 

The Parent and its Restricted Subsidiaries on a consolidated basis are, (a) on the Fifth Amendment Effective Date and (b) immediately before and immediately after giving effect to any Extension of Credit to be made on and following the Fifth Amendment Effective Date, Solvent. No Credit Party intends to, nor will it permit any of its Restricted Subsidiaries to, nor does it believe that it or any of its Restricted Subsidiaries has or will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it or any such Restricted Subsidiary and the timing of the amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Restricted Subsidiary.

 

6.19

Intellectual Property

 

The Credit Parties and each of their Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, industrial designs, franchises, licenses and other intellectual property rights that are reasonably necessary for the operation of their respective businesses, free and clear of all Liens (other than Permitted Liens). To the knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Credit Parties or any of their Restricted Subsidiaries, nor the operation of their respective businesses, infringes upon any rights held by any other Person, and no Person is infringing the intellectual property of the Credit Parties and their Restricted Subsidiaries, in each case, which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Company, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

6.20

Creation and Perfection of Security Interests

 

(a)

Article 9 Collateral. The Pledge and Security Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein to secure the Finance Obligations. In the case of the Pledged Collateral, when such Pledged Collateral is delivered (in accordance with the Intercreditor Agreement) to the Collateral Agent (together with a properly completed and signed undated endorsement), in the case of Collateral consisting of Deposit Accounts, Securities Accounts or Commodity Accounts, when such accounts are subject to a Control Agreement, and in the case of the other Collateral described in the Pledge and Security Agreement that can be perfected by the filing of a financing statement or other filing, when financing statements and other filings specified on Schedule 6.20 in appropriate form are filed in the offices specified on Schedule 6.20, the Collateral Agent will have, for the ratable benefit of the Secured Parties, a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such of the Collateral in which a security interest can be perfected under Article 9 of the UCC to secure the Finance Obligations, in each case prior and superior in right to any other Person, other than with respect to Permitted Liens made superior to such security interest by the Intercreditor Agreement or automatically by operation of law.

 

 

(b)

Canadian Collateral. The Canadian Pledge and Security Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein to secure the Finance Obligations. In the case of the Collateral described in the Canadian Pledge and Security Agreement that can be perfected by the filing of a PPSA filing, when PPSA and other filings specified on Schedule 6.20 in appropriate form are filed in the offices specified on Schedule 6.20, the Collateral Agent will have, for the ratable benefit of the Secured Parties, a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such of the Collateral in which a security interest can be perfected under the PPSA to secure the Finance Obligations, in each case prior and superior in right to any other Person, other than with respect to Permitted Liens made superior to such security interest by the Intercreditor Agreement or automatically by operation of law.

 

(c)

Intellectual Property. The Pledge and Security Agreement and the Canadian Pledge and Security Agreement, in each case together with an intellectual property security agreement, in form and substance reasonably agreed by the Company and the Administrative Agent will, when filed in the United States Patent and Trademark Office, the United States Copyright Office and/or the Canadian Intellectual Property Office, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in the United States and Canadian patents, industrial designs, trademarks, copyrights, licenses and other intellectual property rights covered in such intellectual property security agreement to secure the Finance Obligations, in each case prior and superior in right to any other Person, other than with respect to Permitted Liens made superior to such security interest by the Intercreditor Agreement or automatically by operation of law (it being understood that subsequent recordings in the United States Patent and Trademark Office, the United States Copyright Office and the Canadian Intellectual Property Office may be necessary to perfect a lien on registered trademarks, trademark applications, patents, patent applications, industrial designs, industrial design applications, copyrights and licenses acquired by the Credit Parties after the Closing Date).

 

(d)

Mortgages. Upon execution and delivery thereof, the Mortgages and Leasehold Mortgages will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Mortgaged Property to secure the Finance Obligations, and, when filed in the office of the county clerk for the county in which the Mortgaged Property is located, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the mortgagors thereunder in the Mortgaged Property, in each case prior and superior in right to any other Person other than with respect to Permitted Liens.

 

 

(e)

Status of Liens. The Collateral Agent, for the ratable benefit of the Secured Parties, will at all times have the Liens provided for in the Collateral Documents and, subject to the filing by the Collateral Agent of continuation statements to the extent required by the UCC, PPSA or such other continuation statements or filings required by applicable Laws of the relevant applicable jurisdiction, the Collateral Documents (subject to and in accordance with their respective provisions) will at all times constitute valid and continuing liens of record and first priority perfected security interests in all the Collateral referred to therein to secure the Finance Obligations, except as priority may be affected by Permitted Liens made superior to such Liens by the Intercreditor Agreement or automatically by operation of law.

 

6.21

Accuracy and Completeness of Disclosure

 

(a)

The Parent and the Company each has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate, partnership, limited liability company or other restrictions to which it or any of its Restricted Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of the Credit Parties or any of their Restricted Subsidiaries to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Credit Document (in each case 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 the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Parent and the Company each represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time prepared (it being recognized that such Projections are not to be viewed as facts and 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).

 

(b)

As of the Fifth Amendment Effective Date, to the best knowledge of the Company, the information included in the Beneficial Ownership Certification provided on or prior to the Fifth Amendment Effective Date to any Lender in connection with this Agreement is true and correct in all respects.

 

6.22

Insurance

 

Schedule 6.22 sets forth a description of all insurance maintained by or on behalf of the Credit Parties and their Restricted Subsidiaries as of the Fifth Amendment Effective Date. As of the Fifth Amendment Effective Date, all premiums in respect of such insurance that are due and owing have been paid. The Company maintains, and has caused each Restricted Subsidiary to maintain, with financially sound and reputable insurance companies, insurance on all their real and personal property in such amounts, subject to such deductibles and self-insurance retentions and covering such properties and risks as are adequate and customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.

 

 

6.23

Anti-Corruption Laws and Sanctions

 

Each Credit Party has implemented and maintains in effect policies and procedures designed to ensure compliance by the such Credit Party and their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Parent, the Company and their Subsidiaries and their respective officers and directors and to the knowledge of the Company their employees and agents, are in compliance with Anti-Corruption Laws in all material respects and applicable Sanctions. None of (a) the Parent, the Company and their Subsidiaries and any of their respective directors or officers or employees, or (b) to the knowledge of the Company, any agent of the Parent, the Company or any of their Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person, has any assets located in a Sanctioned Country or derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Countries. No Loan or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions. Notwithstanding the foregoing, the representations given in this Section 6.23 shall not be made by nor apply to any Person that qualifies as a corporation that is registered or incorporated under the laws of Canada or any province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) insofar as such representations would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.

 

6.24

Patriot Act and Proceeds of Crime Act

 

Each Credit Party is in compliance, in all material respects, with the Uniting And Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act of 2001) (the “Patriot Act”) and the Proceeds of Crime Act.

 

6.25

Burdensome Restrictions

 

No Credit Party is subject to any Burdensome Restrictions except Burdensome Restrictions permitted under Section 9.14.

 

6.26

Labor Matters

 

As of the Fifth Amendment Effective Date, there are no strikes, lockouts or slowdowns against any Credit Party or any Restricted Subsidiary pending or, to the knowledge of any Credit Party, threatened. The hours worked by and payments made to employees of the Credit Parties and their Restricted Subsidiaries have not been in violation, in any material respect, of the Fair Labor Standards Act or any other applicable federal, state, provincial, territorial, local or foreign law dealing with such matters. None of the Credit Parties or any of their Restricted Subsidiaries are subject to any material liability in respect of any Unrestricted Subsidiary’s violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with the hours worked by and payments made to employees of such Unrestricted Subsidiary. All payments due from any Credit Party or any Restricted Subsidiary, or for which any claim may be made against any Credit Party or any Restricted Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Credit Party or such Restricted Subsidiary.

 

 

6.27

Qualified Eligible Contract Participant

 

As of the date of this Agreement, each Credit Party is a Qualified ECP Guarantor.

 

6.28

Affected Financial Institutions

 

No Credit Party is an Affected Financial Institution.

 

7.

Conditions Precedent

 

7.1

Conditions to Closing Date

 

This Agreement shall not become effective and the obligation of each Lender to make its extensions of credit and for the Issuing Lender to issue any Letters of Credit shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 12.1):

 

(a)

Deliverables. The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or .pdf or similar electronic transmission (which, subject to Section 12.8(b), may include any Electronic Signatures transmitted by telecopy, pdf or similar electronic transmission) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:

 

(i)

This Agreement. Executed counterparts of this Agreement signed by the Lenders, the Company, the Issuing Lender, the Collateral Agent and the Administrative Agent (which may include telecopy or electronic transmission (including .pdf file) of a signed signature page of this Agreement) or written evidence reasonably satisfactory to the Administrative Agent that each such party has signed a counterpart signature page of this Agreement.

 

(ii)

Guaranty, Pledge and Security Agreement, Canadian Pledge and Security Agreement and Intercreditor Agreement: Executed counterparts of  (A) a Pledge and Security Agreement signed by each Credit Party (other than the Canadian Credit Parties) and the Collateral Agent, (B) the Guaranty signed by each Credit Party (other than the Canadian Credit Parties) and the Administrative Agent, (C) a Guaranty (governed by Canadian law) signed by each Canadian Credit Party and the Collateral Agent and (D) a Canadian Pledge and Security Agreement signed by each Canadian Credit Party and the Collateral Agent.

 

 

(iii)

Responsible Officer’s Closing Certificate. A certificate in the form attached as Exhibit G executed and delivered by a Responsible Officer of the Company in a manner satisfactory to the Administrative Agent and dated as of the Closing Date.

 

(iv)

Solvency Certificate. A solvency certificate in the form of Exhibit H provided by the chief financial officer of the Parent.

 

(v)

Borrowing Base Certificate. The Administrative Agent and the Lenders shall have received a Borrowing Base Certificate (along with customary supporting documentation and supplemental reporting) which calculates the Borrowing Base as of the last day of the calendar month most recently ended on or prior to the date occurring twenty (20) days prior to the Closing Date.

 

(vi)

Notes. Each Lender that has requested a Note shall have received an executed original of such Note timely requested by such Lender hereunder.

 

(vii)

Other Collateral Documents.

 

(A)

Appropriate financing statements (Form UCC-1, applicable PPSA financing statements or such other financing statements or similar notices as shall be required by local Law) authenticated and authorized for filing under the UCC, PPSA or other applicable local Law of each jurisdiction in which the filing of a financing statement or giving of notice may be required, or reasonably requested by the Collateral Agent, to perfect the security interests intended to be created by the Collateral Documents.

 

(B)

Copies of reports from CT Corporation or another independent search service reasonably satisfactory to the Collateral Agent listing all effective financing statements, notices of tax, PBGC or judgment liens or similar notices that name any of the Company or any other Credit Party (under its present name and any previous name and, if requested by the Collateral Agent, under any trade names), as debtor or seller that are filed in the jurisdictions referred to in sub-clause (B) above (regardless of whether or not financing statements are then on file) or in any other jurisdiction having files which must be searched in order to determine fully the existence of the UCC security interests, PPSA financing statements, notices of the filing of federal tax Liens (filed pursuant to Section 6323 of the Code), Liens of the PBGC (filed pursuant to Section 4068 of ERISA) or judgment Liens on any Collateral, together with copies of such financing statements, notices of tax, PBGC or judgment Liens or similar notices (none of which shall cover the Collateral except to the extent evidencing Permitted Liens or for which the Collateral Agent shall have received termination statements (Form UCC-3 or such other termination statements as shall be required by local Law) authenticated and authorized for filing).

 

 

(C)

Searches of ownership of and liens on intellectual property in the appropriate governmental offices and such patent, industrial design, trademark and/or copyright filings as may be requested by the Collateral Agent to the extent necessary or reasonably advisable to perfect the Collateral Agent’s security interest in intellectual property Collateral.

 

(D)

All of the Pledged Collateral, which Pledged Collateral shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, accompanied in each case by any required transfer tax stamps, all in form and substance reasonably satisfactory to the Collateral Agent.

 

(E)

[Reserved].

 

(F)

A short form intellectual property security agreement, in form and substance reasonably agreed by the Company and the Administrative Agent, duly executed by each Credit Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens in intellectual property created under the Pledge and Security Agreement and under such short form assignments or grants of security interests has been taken.

 

(G)

Evidence of the completion of all other filings and recordings of or with respect to the Collateral Documents and of all other actions as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests intended to be created by the Collateral Documents.

 

(viii)

Evidence of Insurance. The Administrative Agent and the Majority Lenders shall have received and be satisfied with (i) evidence of the insurance under all insurance policies to be maintained with respect to the properties of the Parent, the Company and its Subsidiaries forming part of the Collateral, including endorsements naming the Collateral Agent on behalf of the Lenders, as an additional insured or loss payee, as the case may be and (ii) a review of the Credit Parties’ insurance binders or other initial contractual documentation evidencing the insurance coverage and documentation related thereto that shall be entered into, and delivered to the Administrative Agent and the Majority Lenders on or around the Closing Date.

 

(ix)

Secretary’s Certificate. A secretary’s certificate executed and delivered by a Responsible Officer or secretary of the Parent, certifying as to each of the Credit Parties’ (A) officers’ incumbency appended thereto, (B) authorizing resolutions or consents appended thereto and (C) true and complete copies of Organization Documents, with the applicable insertions and attachments being satisfactory in form and substance to the Administrative Agent.

 

 

(x)

Corporate Documents. Copies of certificates from the Secretary of State or other appropriate authority of such jurisdiction, evidencing good standing of the Credit Parties in their respective jurisdiction of incorporation and in each state where the ownership, lease or operation of property or the conduct of business requires it to qualify as a foreign corporation.

 

(b)

Financial Projections. The Administrative Agent shall have received quarterly projections for the Company for the fiscal quarters ending December 31, 2020 through March 31, 2022 and annual projections for each fiscal year thereafter, through and including the fiscal year ending March 31, 2025.

 

(c)

Fees. The Administrative Agent shall have received (i) for the respective accounts of the Persons entitled to the same, all costs, expenses, fees and other compensation payable to the Lenders, the Agents and the Arrangers on or prior to the Closing Date, to the extent invoiced to the Company at least one (1) Business Day prior to the Closing Date, including, without limitation, reasonable fees of one legal counsel to the Lenders and one local counsel in each appropriate jurisdiction, (ii) any fees and expenses required to be paid as of the Closing Date by Section 12.5(a), to the extent such fees have been invoiced at least one (1) Business Day prior to the Closing Date and (iii) any fees and expenses required to be paid as of the Closing Date by the Fee Letter.

 

(d)

Regulatory Authority Information. (i) The Company and each Credit Party shall have provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and the Proceeds of Crime Act, in each case no later than five (5) days prior to the Closing Date to the extent reasonably requested by the Lenders at least ten (10) Business Days in advance of the Closing Date and (ii) to the extent the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Company shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).

 

(e)

Field Examination. The Administrative Agent or its designee shall have conducted a field examination of the Parent, the Company and its Restricted Subsidiaries, the results of which shall be satisfactory to the Administrative Agent; provided that if, notwithstanding the use by the Credit Parties of commercially efforts to satisfy the requirement set forth in this clause (e), such requirement is not satisfied as of the Closing Date, the satisfaction of such requirement shall not be a condition to the effectiveness of this Agreement or the availability of the Loans (but shall be required to be satisfied within 30 Business Days of the Closing Date.

 

(f)

Consents. All governmental and third party approvals necessary in connection with the entry into of this Agreement (including shareholder approvals, if any) shall have been obtained on reasonably satisfactory terms and shall be in full force and effect.

 

 

(g)

Financial Statements. The Administrative Agent shall have received and be satisfied with the financial statements referred to in Section 6.15(a).

 

(h)

Regulatory Matters. All legal (including tax implications) and regulatory matters shall be satisfactory to the Administrative Agent and the Lenders, including but not limited to compliance with all applicable requirements of Regulations U, T and X of the Board of Governors of the Federal Reserve System.

 

(i)

Legal Opinions. An opinion addressed to the Administrative Agent, the Collateral Agent and the Lenders of (A) Paul Hastings LLP, counsel to the Company and (B) certain other local counsel to the Credit Parties (including Stikeman Elliott LLP, Alberta counsel to the Company, Brownstein Hyatt Farber Schreck LLP, Colorado counsel to the Company, McAfee & Taft, a Professional Corporation, Oklahoma counsel to the Company, Brownstein Hyatt Farber Schreck LLP, New Mexico counsel to the Company and Oram & Houghton, PLLC, Wyoming counsel to the Company) in each case, in form and substance reasonably satisfactory to the Administrative Agent. Such opinions shall also cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent shall reasonably require.

 

(j)

[Reserved].

 

(k)

Availability. The Company shall have pro forma minimum Availability under this Agreement of not less than $100,000,000 after giving effect to any borrowings on the Closing Date.

 

(l)

[Reserved].

 

(m)

Representations and Warranties. Each of the representations set forth in Article 6, or which are contained in any other Credit Document shall, to the extent already qualified by materiality, be true and correct in all respects, and, if not so already qualified, shall be true and correct in all material respects, in any case on and as of the date such Loan is made (or such Letter of Credit is issued) as if made on and as of such date (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

 

(n)

No Default or Event of Default. No Default or Event of Default shall be in existence on the Closing Date after giving effect to any Loans to be made or Letter of Credits to be issued on the Closing Date.

 

 

7.2

Conditions to All Loans and Letters of Credit

 

The obligation of each Lender to make any Loan and the obligation of each Issuing Lender to issue any Letter of Credit is subject to the satisfaction of the following conditions precedent on the relevant Borrowing Date:

 

(a)

Representations and Warranties. Each of the representations set forth in Article 6, or which are contained in any other Credit Document shall, to the extent already qualified by materiality, be true and correct in all respects, and, if not so already qualified, shall be true and correct in all material respects, in any case on and as of the date such Loan is made (or such Letter of Credit is issued) as if made on and as of such date (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

 

(b)

No Default or Event of Default. No Default or Event of Default shall be in existence on such date or after giving effect to the Loan to be made or the Letter of Credit to be issued on such Borrowing Date.

 

(c)

Notice. The Administrative Agent and, if applicable, the applicable Issuing Lender shall have received a notice of borrowing request or credit extension in accordance with the requirements of Article 5.

 

(d)

Availability. On the date or after giving effect to any Extension of Credit to be made on such Borrowing Date, the Aggregate Revolving Credit Extensions of Credit shall not exceed the lesser of the Revolving Credit Commitment and the Borrowing Base then in effect.

 

(e)

Excess Cash. At the time of and immediately after giving effect to any Extension of Credit to be made on such Borrowing Date, the Credit Parties and their Restricted Subsidiaries have not have Excess Cash exceeding $50,000,000.

 

Each borrowing by the Company hereunder and the issuance of each Letter of Credit by each Issuing Lender hereunder shall constitute a representation and warranty by the Company as of the date of such borrowing or issuance that the conditions in clauses (a), (b), (d) and (e) of this Section 7.2 have been satisfied.

 

8.

Affirmative Covenants

 

The Parent and the Company each hereby agrees that, so long as the Commitments remain in effect, any Loan or Revolving L/C Obligation remains outstanding and unpaid, any amount remains available to be drawn under any Letter of Credit or any other amount is owing to any Lender (other than Unmatured Surviving Obligations), any Agent or any Issuing Lender hereunder, it shall, and shall cause each of Restricted Subsidiaries of the Parent to:

 

8.1

Financial Statements

 

Furnish to the Administrative Agent (with sufficient copies for each Lender):

 

(a)

Audited Annual Financial Statements. As soon as available, but in any event not later than the earlier to occur of (i) the fifteenth day after the Form 10-K Annual Report is filed with the Securities and Exchange Commission with respect to the end of each fiscal year of the Parent, and (ii) the 100th day after the end of each fiscal year of the Parent, annual audited financial statements of the Parent and its Subsidiaries, including all notes thereto, which statements shall include, on a consolidated basis, a balance sheet as of the end of such fiscal year and a statement of operations, a statement of changes in equity and a statement of cash flows for such fiscal year, all setting forth in comparative form the corresponding figures from the previous fiscal year and accompanied by a report and opinion of independent certified public accountants with Grant Thornton LLP consistently applied or an accounting firm of national standing reasonably acceptable to the Administrative Agent, which report shall not contain any qualification (and be without comment as to the accountants’ opinion whether such Person is a “going concern” or can continue to be a “going concern”) (except for a “going concern” statement that is due solely to impending debt maturities occurring within 12 months of such audit), and shall state that such financial statements, in the opinion of such accountants, present fairly, in all material respects, the financial position of the Parent and its Subsidiaries as of the date thereof and the results of its operations and cash flows for the period covered thereby in conformity with GAAP consistently applied.

 

 

(b)

Quarterly Financial Statements. As soon as available, but in any event not later than forty-five (45) days after the end of each of the first three quarterly periods of each fiscal year of the Parent, the quarterly unaudited financial statements of the Parent and its Subsidiaries, which statements shall include (i) a balance sheet as of the end of the respective fiscal quarter, (ii) a statement of operations for such respective fiscal quarter and for the fiscal year to date setting forth in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and (iii) a statement of cash flows for the fiscal year to date setting forth in comparative form the corresponding figures in the corresponding period of the preceding fiscal year, all prepared in reasonable detail and in accordance with GAAP and certified by a Financial Officer of the Company as fairly and accurately presenting in all material respects the financial condition and results of operations of the Parent and its Subsidiaries, on a consolidated basis, at the dates and for the periods indicated therein, subject to normal year-end adjustments.

 

(c)

Consolidating Financial Statements. Concurrently with any delivery of consolidated financial statements under clause (a) or (b) above, the related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements.

 

(d)

Annual Budget. As soon as available, but in any event within 60 days of each fiscal year of the Parent, a management-prepared budget of the Parent and its Restricted Subsidiaries for such fiscal year (which budget shall be limited to a Capital Expenditure line, an income statement presenting profitability to the EBITDA line and a summary of cash flows in the form provided to the Administrative Agent prior to the Closing Date or otherwise in a form reasonably acceptable to the Administrative Agent).

 

Following delivery of the information required pursuant to clause (a) or (b) above (but not more frequently than quarterly), the Company will cause its and the other Credit Parties’ appropriate officers to participate in a conference call for Lenders to discuss the financial condition and results of operations of the Credit Parties for the most recently-ended period for which financial statements have been delivered; provided that the requirement to participate in any such conference call for the applicable quarter shall be deemed satisfied if the Company conducts a customary public earnings call for such fiscal quarter.

 

 

All financial statements shall be prepared in reasonable detail in accordance with GAAP in all material respects (provided that interim statements may be condensed and may exclude detailed footnote disclosure) applied consistently throughout the periods reflected therein and with prior periods (except as concurred to by such officer and disclosed therein and except that interim financial statements need not be restated for changes in accounting principles which require retroactive application, and operations which have been discontinued (as such term is used in Statement of Financial Accounting Standards No. 144) during the current year need not be shown in interim financial statements as such either for the current period or comparable prior period).

 

8.2

Certificates; Other Information

 

Furnish to the Administrative Agent (with sufficient copies for each Lender):

 

(a)

Risk Management Policy. Not later than ten (10) Business Days after any material amendment, modification, supplement or other change to the Risk Management Policy, written notice of such amendment, modification, supplement or other change; provided that changes in personnel reflected in the Risk Management Policy will not be deemed “material” for purposes of this Section 8.2(a).

 

(b)

Compliance Certificate. Concurrently with the delivery of the financial statements referred to in clauses (a) and (b) of Section 8.1, a certificate, in the form attached as Exhibit I, of a Responsible Officer on behalf of the Company: (i) stating that, to the best of such officer’s knowledge, the Credit Parties have observed or performed all of its covenants and other agreements, and satisfied every applicable condition, contained in this Agreement and the other Credit Documents to be observed, performed or satisfied by it, and that such officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate; (ii) stating whether or not Availability exceeded the Availability Trigger for each day of the applicable period; (iii) stating whether or not Availability exceeded the Specified Trigger for each day of the applicable period; (iv) showing in detail as of the end of the related fiscal period the calculations in reasonable detail for purposes of calculating the Consolidated Net Leverage Ratio and the Fixed Charge Coverage Ratio for the fiscal quarter then ended (irrespectively of whether a Cash Dominion Event has occurred and is then continuing); (v) if the Company is required to comply with Section 9.1, certifying whether the Company is in compliance with the provisions of Section 9.1; (vi) if not specified in the financial statements delivered pursuant to Section 8.1, specifying on a consolidated basis the aggregate amount of interest paid or accrued by the Credit Parties, and the aggregate amount of depreciation, depletion and amortization charged on the books of the Credit Parties, during such accounting period; and (vii) setting forth in reasonable detail the reconciliation of Consolidated EBITDA to Consolidated Net Income of the Company;

 

(c)

Accountants’ Management Letters. Promptly upon receipt thereof, copies of all final reports submitted to the Company by independent certified public accountants in connection with each annual, interim or special audit of the books of the Company made by such accountants.

 

 

(d)

Reports to Holders of Debt Securities. Promptly, after the furnishing thereof, copies of any statement or report (other than any notice of borrowing, repayment, redemption, defeasement or prepayment or any statement or report relating to administrative matters) furnished to holders generally of any debt securities constituting Material Indebtedness of the Credit Parties thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 8.1 or any other paragraph of this Section 8.2 and not otherwise filed with the Securities and Exchange Commission or any Governmental Authority succeeding to any of its functions.

 

(e)

Other Information. Promptly after any request therefor, (i) such additional financial or other information regarding the operations, business affairs and financial condition of the Credit Parties, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender, through the Administrative Agent, may reasonably request; provided that, notwithstanding anything to the contrary herein, other than in connection with the exercise of remedies in accordance with Article 10 hereof, none of the Parent or any of its Restricted Subsidiaries shall be required to deliver, disclose, permit the inspection, examination or making of copies of or excerpts from, or any discussion of, any document, information, or other matter (A) that constitutes non-financial trade secrets or non-financial proprietary information, (B) in respect of which disclosure to the Administrative Agent (or any Lender) is prohibited by applicable law, (C) that is subject to attorney-client or similar privilege or constitutes attorney work product or (D) with respect to which any Credit Party or any of its Restricted Subsidiaries owes confidentiality obligations to any third party, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Proceeds of Crime Act.

 

(f)

Borrowing Base Certificates. On or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent shall reasonably request. Notwithstanding the foregoing, (i) after the occurrence and during the continuance of a Specified Trigger Event, within three (3) Business Days of the end of each calendar week, the Company shall furnish a Borrowing Base Certificate calculated as of the close of business on the last Business Day of the immediately preceding calendar week and (ii) at any time and from time to time, the Company is entitled to furnish within three (3) Business Days of the end of each calendar week a Borrowing Base Certificate calculated as of the close of business on the last Business Day of the immediately preceding calendar week; provided that if the Company elects to deliver weekly Borrowing Base Certificates in accordance with this clause (ii), then the Company shall continue to deliver weekly Borrowing Base Certificates until delivery of the next monthly Borrowing Base Certificate required under this clause (f). The Borrowing Base Certificate shall also be delivered prior to or upon the consummation of any agreement for the sale or disposition of ABL Priority Collateral outside the ordinary course of business which would result in the receipt of any cash or Cash Equivalents by the Parent or any of its Restricted Subsidiaries in an amount in excess of $25,000,000, and such Borrowing Base Certificate shall give effect to such transaction.

 

 

(g)

Collateral Reporting. (i) Concurrently with each delivery of a Borrowing Base Certificate hereunder, and at such other times as may be requested by the Administrative Agent upon the occurrence and during the continuance of a Cash Dominion Event, all delivered electronically in a format reasonably acceptable to the Administrative Agent, calculations prepared by the Company in a manner reasonably acceptable to the Administrative Agent such information as is necessary to determine Eligible Cash Collateral, Eligible Accounts, Eligible Futures Accounts, Eligible Inventory, Eligible Railcar Inventory and Product Inventory Letters of Credit (including, without limitation, accounts receivable agings, accrued sales and payables, accounts payable agings, detail on advance payments received (prepaid inventory), customer deposits, deferred revenue and deferred service contracts and inventory reports by location and product type) and (ii) concurrently with each delivery of the financial statements required by Section 8.1(a), a schedule detailing any ownership or other interest in any registered or applied for trademarks, trademark applications, patents, patent applications, industrial designs, industrial design applications, copyrights or exclusive licenses to registered U.S. or Canadian copyrights the Credit Parties may obtain at any time after the date hereof;

 

(h)

Corporate Information. The Company shall deliver to the Administrative Agent and Collateral Agent, with respect to any Credit Party, promptly (and in any event within no more than five (5) Business Days following such change (or such later date as agreed to by the Administrative Agent in its sole discretion)) written notice of any change in such Person’s (1) legal name, (2) jurisdiction of organization or formation, (3) identity or corporate structure or (4) legal identification number.

 

Information required to be delivered pursuant to Section 8.1 or 8.2 shall be deemed to have been delivered if such information shall have been delivered by the Company to the Administrative Agent for posting by the Administrative Agent on an IntraLinks or similar site to which each Lender has been granted access. Information delivered pursuant to Section 8.1 or 8.2 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.

 

The Company hereby acknowledges that (i) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Company hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Company or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. So long as the Company is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities, the Company may elect to identify any portion of the Company Materials that may be distributed to the Public Lenders and : (A) any such Company Materials will be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking any Company Materials “PUBLIC”, the Company shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Company or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in Section 12.13); (C) all Company Materials marked “PUBLIC” by the Company are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (D) the Administrative Agent and the Arrangers shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.

 

 

Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 8.1 may be satisfied by furnishing the applicable financial statements of Parent’s Form 10-K or 10-Q, as applicable, filed with the SEC, in each case, within the time periods specified in such paragraphs; provided that, to the extent such statements are in lieu of statements required to be provided under Section 8.1(a), such statements shall be accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall satisfy the applicable requirements set forth in Section 8.1.

 

8.3

Payment of Other Obligations

 

Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations and liabilities of whatever nature, except (i) when the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the Company or any of its Restricted Subsidiaries, as the case may be and (ii) for trade and other accounts payable in the ordinary course of business in accordance with customary trade terms and which are not overdue for a period of more than sixty (60) days (or any longer period if longer payment terms are accepted in the ordinary course of business) or, if overdue for more than sixty (60) days (or such longer period), as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of the Company and its Restricted Subsidiaries, as the case may be.

 

8.4

Continuation of Business and Maintenance of Existence and Material Rights and Privileges

 

Continue to engage in business of the same general type as now conducted by it and those reasonably related or incidental thereto, and preserve, renew and keep in full force and effect its corporate, partnership or limited liability company existence and take all reasonable action to maintain all rights, privileges, franchises, accreditations, certifications, authorizations, licenses, permits, approvals and registrations, necessary or desirable in the normal conduct of its business except for rights, privileges, franchises, accreditations, certifications, authorizations, licenses, permits, approvals and registrations the loss of which could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, and except as otherwise permitted by Sections 9.6, 9.7 and 9.9.

 

 

8.5

Compliance with All Applicable Laws and Regulations and Material Contractual Obligations

 

Comply with all applicable Requirements of Law (including, without limitation, any and all Environmental Laws, tax, and ERISA laws) and Contractual Obligations except to the extent that the failure to comply therewith could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

8.6

Maintenance of Property; Insurance

 

(a)

Keep all property useful and necessary in its business in good working order and condition (ordinary wear and tear and damage and condemnation excepted), and maintain with financially sound and reputable insurance companies insurance on all its property in at least such amounts and with only such deductibles as are usually maintained by, and against at least such risks as are usually insured against in the same general area by, companies engaged in the same or a similar business (in any event including general liability, contractual liability, personal injury, workers’ compensation, employers’ liability, automobile liability and physical damage coverage, all risk property, business interruption, fidelity and crime insurance); provided that the Parent, the Company and its Restricted Subsidiaries may implement programs of self-insurance in the ordinary course of business and in accordance with industry standards for a company of similar size so long as reserves are maintained in accordance with GAAP for the liabilities associated therewith.

 

(b)

If any portion of any Mortgaged Property in the United States is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws, (a) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (b) deliver to the Collateral Agent and the Lenders evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent and the Lenders, including a copy of the flood insurance policy and declaration page relating thereto.

 

8.7

Maintenance of Books and Records

 

Keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities which permit financial statements to be prepared in conformity with GAAP and all Requirements of Law.

 

8.8

Right of the Lenders to Inspect Property and Books and Records

 

Permit representatives of any Lender upon reasonable notice during business hours and with a Responsible Officer present to visit and inspect any of its properties and examine and make abstracts from any of its books and records (including in connection with periodic field examinations in accordance with Section 8.12) at any reasonable time and as often as may reasonably be desired upon reasonable notice, and to discuss the business, operations, properties and financial and other condition of the Credit Parties with officers and employees thereof, and with their independent certified public accountants; provided that, only the Administrative Agent on behalf of the Lenders may exercise rights of the Lenders under this Section 8.8 and the Administrative Agent shall not exercise such rights more often than one time during any calendar year absent the existence of an Event of Default; provided, further, that when an Event of Default exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at any time during normal business hours and upon reasonable advance notice, and any Lender (or any of its representatives or independent contractors) may accompany the Administrative Agent (or its representatives or independent contractors). The Administrative Agent and the Lenders shall give the Company the opportunity to participate in any discussions with the Company’s independent certified public accountants.

 

 

8.9

Notices

 

(a)

Promptly give notice to the Administrative Agent and each Lender:

 

(i)

of the occurrence of any Default or Event of Default;

 

(ii)

of any (A) default or event of default under any instrument or other agreement, guarantee or collateral document of any Credit Party which default or event of default has not been waived and could reasonably be expected to have a Material Adverse Effect, or any other default or event of default under any such instrument, agreement, guarantee or other collateral document which, but for the proviso to paragraph (e) of Section 10.1, would have constituted a Default or Event of Default under this Agreement, or (B) litigation, investigation or proceeding which may exist at any time between the Parent, the Company or any of its Restricted Subsidiaries and any Governmental Authority, or receipt of any notice of any environmental claim or assessment against the Parent, the Company or any of its Restricted Subsidiaries by any Governmental Authority, which in any such case could reasonably be expected to have a Material Adverse Effect; of any litigation or proceeding affecting the Parent, the Company or any of its Restricted Subsidiaries that could reasonably be expected to have a Material Adverse Effect;

 

(iii)

as soon as practicable after, and in any event within thirty (30) days after the Company knows thereof, of (A) any ERISA Event shall have occurred that, either alone or together with any other ERISA Event, results in liability of the Parent, the Company or any Subsidiary in an aggregate amount which would reasonably be expected to have a Material Adverse Effect and (B) any Canadian Pension Event shall have occurred and in each case, in addition to such notice, deliver to the Administrative Agent and each Lender whichever of the following may be applicable: (x) a certificate of a Responsible Officer on behalf of the Company setting forth details as to such Reportable Event and the action that the Company or such ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice of such Reportable Event that may be required to be filed with PBGC or any other applicable Governmental Authority, or (y) any notice delivered by PBGC or any other applicable Governmental Authority evidencing its intent to institute such proceedings or any notice to PBGC or any other applicable Governmental Authority that such Plan is to be terminated, as the case may be;

 

 

(iv)

of any material change in accounting policies or financial reporting practices by any Credit Party with respect to the Credit Parties’ Accounts and Inventory or which otherwise would reasonably be expected to affect the calculation of the Borrowing Base or Reserves;

 

(v)

as soon as practicable after, and in any event within five (5) Business Days after the Company knows thereof, if any material portion of the Collateral is damaged, destroyed or condemned; and

 

(vi)

of a material adverse change known by the Parent, the Company or any of its Restricted Subsidiaries in the business, financial condition, assets, liabilities, properties or results of operations of the Parent, the Company and its Restricted Subsidiaries taken as a whole.

 

(b)

Each notice pursuant to this Section 8.9 shall be accompanied by a statement of a Responsible Officer on behalf of the Company setting forth details of the occurrence referred to therein and stating what action the Company proposes to take with respect thereto.

 

8.10

Subsidiary Guaranties and Collateral

 

(a)

Guarantors. The Company will deliver, and will cause each Guarantor to deliver, either (i) a counterpart of the Guaranty duly executed and delivered on behalf of such Person or (ii) in the case of any Person that becomes a Guarantor after the Closing Date, a supplement to the Guaranty in the form specified therein and a joinder and/or supplement to the Pledge and Security Agreement, in each case duly executed and delivered on behalf of such Person, together with opinions (including, without limitation, local counsel opinions reasonably satisfactory to the Administrative Agent and its counsel if such Guarantor is a Canadian Credit Party) and documents of the type referred to in Sections 7.1(a)(ix), 7.1(a)(x), and 7.1(i) with respect to such Person.

 

(b)

Additional Subsidiaries. If any additional Wholly-Owned Subsidiary is formed or acquired (or otherwise becomes a Wholly-Owned Subsidiary) after the Closing Date, then the Company will, as promptly as practicable and, in any event, within thirty (30) days (or such longer period as the Administrative Agent in its reasonable discretion may agree to in writing (including electronic mail)) after such Subsidiary is formed or acquired, notify the Administrative Agent (i) whether the Company intends to designate such Wholly-Owned Subsidiary as an Unrestricted Subsidiary in accordance with Section 8.19 or (ii) if the Subsidiary is a Wholly-Owned Domestic Subsidiary of the Company that is a Restricted Subsidiary (other than an Excluded Subsidiary) or the Company elects by written notice to the Administrative Agent to designate such Wholly-Owned Subsidiary as a Canadian Credit Party, in the case of this clause (ii), the Company shall cause the requirements of this Section 8.10 to be satisfied with respect to such additional Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Credit Party.

 

 

The Parent and the Company will cause the management, business and affairs of each of the Parent, the Company and its Restricted Subsidiaries to be conducted in such a manner (including, without limitation, by keeping separate books of account, furnishing separate financial statements of Unrestricted Subsidiaries to creditors and potential creditors thereof and by not permitting Properties of the Company and its Restricted Subsidiaries to be commingled) so that each Unrestricted Subsidiary could reasonably be expected to be treated as an entity separate and distinct from the Parent, the Company and its Restricted Subsidiaries;

 

(c)

Pledge of Equity Interests. Each Credit Party shall pledge the Equity Interests owned by it (unless such a pledge is expressly not required by this Agreement or the Pledge and Security Agreements) pursuant to the Pledge and Security Agreements, it being understood and agreed that the Pledge and Security Agreements shall not require any Credit Party to pledge:

 

(i)

more than 65% of the outstanding voting capital stock of, or other voting equity interests in, any Subsidiary that is a CFC or CFC Holdco;

 

(ii)

any of the outstanding capital stock of, or other equity interests, in any Subsidiary where such pledge would (A) be prohibited by applicable law; provided that this sub-clause (A) shall in no way be construed to apply if such prohibition is unenforceable under Section 9-408 of the UCC, (B) result in material adverse tax consequences to the Company or any Credit Party, (C) in the case of any non-Wholly-Owned Subsidiary or joint venture existing on the Closing Date, result in a breach of a joint venture agreement, operating agreement or other similar document or agreement in the form existing on the Closing Date; provided that the Company or relevant Subsidiary shall have used its commercially reasonable efforts (which efforts shall not require any Credit Party to pay any amounts or grant any rights in exchange for such consent) to obtain all consents or take such other actions as may be necessary to enable the pledge of capital stock or other equity interests of any such material non-Wholly-Owned Subsidiary or joint venture, (D) in the case of any non-Wholly-Owned Subsidiary or joint venture created or acquired after the Closing Date, result in a breach of a joint venture agreement, operating agreement or other similar document or agreement, provided that the Company shall use its commercially reasonable efforts (which efforts shall not require any Credit Party to pay any amounts or grant any rights in exchange for such consent) to obtain all consents or take such other actions as may be necessary to enable the pledge of capital stock or other equity interests of any such material non-Wholly-Owned Subsidiary or joint venture, or (E) cause the Company to incur costs associated with such pledge that are excessive in comparison to the benefits afforded to the Administrative Agent and the Lenders, as reasonably determined by the Administrative Agent, and provided further that to the extent the Company or another Credit Party does not ultimately acquire 100% of the outstanding capital stock or other equity interests of any acquired or newly formed Subsidiary in any Permitted Acquisition or other Investment made pursuant to Section 9.7(i), notwithstanding clause (ii)(D) above but except as provided in clauses (ii)(A),(B) and (E) above, the Collateral Agent shall receive a pledge of all outstanding capital stock or other equity interests of such entity held by the Company or any other Credit Party.

 

 

(d)

Additional Security.

 

(i)

With respect to (i) any fee owned Material Real Property Assets and (ii) any part of the Grand Mesa Pipeline or the Delaware Pipeline that is a Material Real Property Asset of the type described in the preceding clause (i) in each case, (1) owned by any Credit Party on the Fifth Amendment Effective Date, such Credit Party, as the case may be, with respect thereto shall, within 270 days of the date of the Fifth Amendment Effective Date or such later date as may be agreed to by the Collateral Agent (and in any event within 365 days of the Fifth Amendment Effective Date) or (2) acquired by any Credit Party after the Fifth Amendment Effective Date, such Credit Party, as the case may be, shall, within 270 days of the acquisition thereof or such later date as may be agreed to by the Collateral Agent (and in any event within 365 days of the acquisition thereof), deliver to the Collateral Agent for the ratable benefit of the Secured Parties the following:

 

(A)

a fully executed counterpart of a Mortgage or Leasehold Mortgage in favor of the Collateral Agent covering such Material Real Property Asset, duly executed by such Credit Party, together with satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage or Leasehold Mortgage (and payment of any taxes or fees in connection therewith), together with any necessary fixture filings, as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties purported to be covered thereby;

 

(B)

if such Material Real Property Asset has a Designated Value of $20,000,000 or more, a policy or policies or marked-up unconditional binder of title insurance (or binding commitments thereof), as applicable, in favor of the Collateral Agent and its successors and/or assigns, in an amount not less than the Designated Value of such Material Real Property Asset and in the form necessary, paid for by the such Credit Party, issued by a nationally recognized title insurance company insuring fee simple title to each such Material Real Property Asset and insuring the Lien of such Mortgage or Leasehold Mortgage as a valid Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, title policy modifications, coinsurance and reinsurance as shall be reasonably required;

 

(C)

if such Material Real Property Asset has a Designated Value of $20,000,000 or more, such surveys (or any updates, affidavits or such other information or documents that the title insurance company may reasonably require in connection with the issuance of the title insurance policies), which are sufficient for the title insurance company to remove the standard survey exception and issue customary survey-related endorsements or title policy modifications;

 

 

(D)

if such Material Real Property Asset has a Designated Value of $20,000,000 or more, local counsel opinions (i) as to the due authorization, execution and delivery by such Credit Party of such Mortgage or Leasehold Mortgage and such other customary matters that are incidental thereto and (ii) in jurisdictions where such Material Real Property Asset is located covering the enforceability of such Mortgage or Leasehold Mortgage and such other customary matters as are incidental thereto;

 

(E)

if such Material Real Property Asset has a Designated Value of $20,000,000 or more, with respect to such Material Real Property Asset, evidence from within the past five (5) years that such Material Real Property Asset, and the uses of such Material Real Property Asset, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such Material Real Property Asset, the permitted uses of each such Material Real Property Asset under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

(F)

such affidavits, certificates, instruments of indemnification and other items as shall be reasonably required to comply with the required deliverables set forth in paragraphs (B) through (E) above, and evidence of payment by any Credit Party, as applicable, of all search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and Leasehold Mortgages and the issuance of the title insurance policies, in each case to the extent required pursuant to the foregoing;

 

provided that, notwithstanding the foregoing, the requirements of paragraphs (B), (C), (E) and (F) of this paragraph will not be required with respect to any such Material Real Property Asset, to the extent the cost of providing such items would exceed 1.00% of the then Designated Value of such Material Real Property Asset.

 

 

(ii)

With respect to any Material Real Property Asset consisting of Leaseholds, easements or rights of-way, including Material Real Property Assets that are Leaseholds, easements or rights-of-way constituting part of the Grand Mesa Pipeline or the Delaware Pipeline (in each case other than any fee owned Material Real Property Asset) (such Material Real Property Assets, “Other Specified Property”), (a) held by any Credit Party on the Fifth Amendment Effective Date or (b) acquired by any Credit Party after the Fifth Amendment Effective Date, such Credit Party, as the case may be, shall use commercially reasonable efforts (which, for the avoidance of doubt shall not require cash payments or other consideration aside from the payment or reimbursement of reasonable fees and expenses in connection with the preparation and recording of the documentation related to such Other Specified Collateral Deliverables) to deliver, within 270 days of the Fifth Amendment Effective Date or 120 days from the date of acquisition thereof or such later date as may be agreed to by the Collateral Agent (provided that such deadline may not be extended to a date later than 365 days after the Fifth Amendment Effective Date or the acquisition date, as applicable), to the Collateral Agent for the ratable benefit of the Secured Parties, the following:

 

(A)

a fully executed counterpart of a Leasehold Mortgage, duly executed by a Credit Party that is the lessee, owner or holder of such Other Specified Property, satisfactory evidence of the completion (or satisfactory arrangements for the completion) of all recordings and necessary filings of such Leasehold Mortgage (and payment of any taxes or fees in connection therewith), together with any necessary consents, memoranda of lease and fixture filings, as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties purported to be covered thereby;

 

(B)

if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way policy or policies or marked-up unconditional binder of title insurance (or binding commitments thereof), as applicable, in favor of the Collateral Agent and its successors and/or assigns, in an amount not less than the Designated Value of such Other Specified Property and in the form necessary, paid for by the such Credit Party, issued by a nationally recognized title insurance company insuring leasehold title to such Material Real Property Asset and insuring the Lien of such Leasehold Mortgage as a valid first priority Lien (subject to Permitted Liens) on the applicable real property described therein, together with such endorsements, title policy modification, coinsurance and reinsurance as shall be reasonably required;

 

(C)

if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way such surveys (or any updates, affidavits or such other information or documents that the title insurance company may reasonably require in connection with the issuance of the title insurance policies), which are sufficient for the title insurance company to remove or modify the standard survey exception and issue customary survey-related endorsements or title policy modifications;

 

(D)

if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way, local counsel opinions (i) as to the due authorization, execution and delivery by such Credit Party of such Leasehold Mortgage and such other customary matters that are incidental thereto and (ii) in jurisdictions where such Other Specified Property is located covering the enforceability of such Leasehold Mortgage and such other customary matters as are incidental thereto;

 

 

(E)

if such Other Specified Property has a Designated Value of $20,000,000 or more and is not an easement or right-of-way, with respect to such Other Specified Property, evidence from within the past five (5) years that such Other Specified Property, and the uses of such Other Specified Property, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such Other Specified Property, the permitted uses of each such Other Specified Property under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks); and

 

(F)

such affidavits, certificates, instruments of indemnification and other items as shall be reasonably required to comply with the required deliverables set forth in paragraphs (B) through (E) above and evidence of payment by any Credit Party, as applicable, of all search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Leasehold Mortgage and the issuance of the title insurance policies, in each case to the extent required pursuant to the foregoing;

 

provided that, notwithstanding the foregoing, the requirements of paragraphs (B), (C), (E) and (F) of this Section 8.10(d)(ii) will not be required with respect to (i) any such Other Specified Property, to the extent the cost of providing such items would exceed 1% of the Designated Value of such Other Specified Property or (ii) any such Other Specified Property that is comprised solely of easements or rights-of-way. Notwithstanding anything herein to the contrary, for purposes of the determination of Designated Value pursuant to the preceding proviso, the final paragraph of this Section 8.10(d)(ii) shall not apply.

 

The requirements of this Section 8.10(d)(ii) with respect to the Other Specified Property shall be referred to as the “Other Specified Collateral Requirements”, and the items described in items (A) through (F) of the foregoing Section 8.10(d)(ii) shall be referred to as the “Other Specified Collateral Deliverables”.

 

Solely for purposes of determining the Designated Value of any Real Property Assets with respect to which a Credit Party must use commercially reasonable efforts to provide the Other Specified Collateral Requirements, if any Real Property Asset constitutes, with one or more Real Property Assets, any pipeline, facility, terminal, injection well or disposal well of the Parent and its Restricted Subsidiaries, the Designated Value of such Real Property Asset shall be deemed to be the sum of the Designated Values of all such Real Property Assets forming such pipeline, facility, terminal, injection well or disposal well.

 

 

(iii)

Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property after the Closing Date until the date that is the later of (1) (a) if such Mortgaged Property relates to a property not located in a “special flood hazard area”, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a “special flood hazard area”, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Credit Parties of that fact and (if applicable) notification to the applicable Credit Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Credit Parties of such notice; and (iii) if required by Flood Insurance Laws, evidence of required flood insurance and (2) the timing specified in Section 8.10(d)(i) and (ii) above.

 

(iv)

Notwithstanding the other provisions of this Section 8.10(d), the Collateral Agent and the Secured Parties may, in its sole discretion, determine that the burdens, costs or consequences of obtaining a Mortgage or Leasehold Mortgage on any Material Real Property Asset, all or any part of which contains a Building (as defined in the applicable Flood Insurance Laws) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Law), are excessive in view of the benefits to be obtained by the Secured Parties. In the event that the Collateral Agent and the Secured Parties makes such a determination, the Mortgage or Leasehold Mortgage relating to such Material Real Property Asset will contain customary exclusionary provisions with respect to such Building or Manufactured (Mobile) Home satisfactory to the Collateral Agent in its sole discretion. The exclusionary provisions included in each Mortgage or Leasehold Mortgage in effect as of the Fifth Amendment Effective Date will be included in the case of (a) any amendment, restatement, supplement or modification to a Mortgage or Leasehold Mortgage existing as of the Fifth Amendment Effective Date and (b) any new Mortgage or Leasehold Mortgage entered into after the Fifth Amendment Effective Date.

 

(v)

Notwithstanding the foregoing, no MIRE Event may be closed until the date that is (a) if there are no Mortgaged Properties in a “special flood hazard area”, ten (10) Business Days or (b) if there are any Mortgaged Properties in a “special flood hazard area”, thirty (30) days (in each case, the “Notice Period”), after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Credit Parties of that fact and (if applicable) notification to the applicable Credit Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Credit Parties of such notice; and (iii) if required by Flood Insurance Laws, evidence of required flood insurance; provided that any such MIRE Event may be closed prior to the Notice Period if the Administrative Agent shall have received confirmation from each applicable Lender that such Lender has completed any necessary flood insurance due diligence to its reasonable satisfaction.

 

 

(e)

Intentionally Omitted.

 

(f)

Intentionally Omitted.

 

(g)

Time for Taking Certain Actions. The Company agrees that if no deadline for taking any action required by this Section 8.10 is specified herein, such action shall be completed as soon as possible, but in no event later than thirty (30) days after such action is either requested to be taken by the Administrative Agent, the Collateral Agent or the Majority Lenders or required to be taken by the company or any of its Subsidiaries pursuant to the terms of this Section 8.10.

 

8.11

Compliance with Environmental Laws

 

Except, in each case, to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect, comply, and cause all lessees and other Persons operating or occupying its properties to comply, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Materials of Environmental Concern from any of its properties, in accordance with the requirements of all Environmental Laws; provided, however, that neither the Company nor any of its Restricted Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

 

8.12

Field Examinations

 

Upon the Administrative Agent’s reasonable request and in the Administrative Agent’s Permitted Discretion, representatives designated by the Administrative Agent shall conduct field examinations with respect to any Accounts or Inventory included in the calculation of the Borrowing Base, at reasonable business times and upon reasonable prior notice to the Company; provided, that:

 

(a)

If no Event of Default has occurred and is continuing, one such field examination will be conducted during each 12 month period and will be at the Credit Parties’ expense, subject to Section 8.12(b) and Section 8.12(c).

 

(b)

If Availability is less than the Specified Trigger at any time during such 12 month period referred to in Section 8.12(a), then one additional field examination may be conducted at the expense of the Credit Parties during such 12 month period.

 

(c)

If no Event of Default has occurred and is continuing, the Administrative Agent may conduct, at its own expense, in its Permitted Discretion one additional field examination during any 12-month period referred to in Section 8.12(a).

 

(d)

The Credit Parties shall reasonably cooperate with the Administrative Agent and such designated representatives in the conduct of such field examinations.

 

 

8.13

Further Assurances

 

Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (A) carry out more effectively the purposes of the Credit Documents, (B) to the fullest extent permitted by applicable law, subject any Credit Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (C) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (D) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Credit Document or under any other instrument executed in connection with any Credit Document to which any Credit Party is or is to be a party, and if and to the extent necessary, cause each of its Subsidiaries to do so.

 

8.14

Depositary Banks

 

At all times after the date that is one hundred twenty (120) days after the Closing Date (or such later date as agreed to by the Administrative Agent in its sole reasonable discretion), maintain one or more of the Lenders as its principal depository bank, including for the maintenance of operating, administrative, cash management, collection activity and other deposit accounts for the conduct of its business.

 

8.15

Anti-Corruption; Sanctions

 

Each Credit Party shall comply with and cause its Subsidiaries to comply with, and maintain in effect and enforce, policies and procedures designed to ensure compliance by each Credit Party, their Subsidiaries, and their respective directors, officers, employees and agents with Anti-Corruption Laws and Sanctions. Each Credit Party will not use the proceeds of any Loan, and will not allow such proceeds to be used (to such Credit Party’s knowledge after due care and inquiry) in any way that will violate any Anti-Corruption Laws or Sanctions.

 

8.16

Accuracy of Information

 

The Credit Parties will ensure that (a) all information (other than financial projections, budgets, estimates and other forward-looking information (“Projections”) and information of a general economic or industry specific nature) that has been or will be made available by or on behalf of the Parent, the Company or any of its Restricted Subsidiaries to the Administrative Agent or any Lender in connection with this Agreement or any other Credit Document or any amendment or other modification hereof or thereof, when taken as a whole, is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made and (b) the financial projections, budgets, estimates and other forward-looking information that have been or will be made available by or on behalf of the Parent, the Company or any of its Restricted Subsidiaries to the Administrative Agent or any Lender in connection with this Agreement or any other Credit Document or any amendment or other modification hereof or thereof have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time furnished to us (it being recognized that such Projections are not to be viewed as facts and 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).

 

 

8.17

[Reserved]

 

8.18

Keepwell

 

Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Credit Party to honor all of its obligations under any Credit Document in respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 8.18 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 8.18 or otherwise under any Credit Document voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). Except as otherwise provided herein, the obligations of each Qualified ECP Guarantor under this Section 8.18 shall remain in full force and effect until the termination of all Swap Obligations. Each Qualified ECP Guarantor intends that this Section 8.18 constitute, and this Section 8.18 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

8.19

Designation of Unrestricted Subsidiaries

 

Any Person that becomes a Subsidiary of the Company or any Restricted Subsidiary shall be a Restricted Subsidiary unless such Person (x) is designated as an Unrestricted Subsidiary on Schedule 6.11, as of the date hereof, (y) is designated as an Unrestricted Subsidiary after the date hereof in compliance with this Section 8.19, or (z) is a subsidiary of an Unrestricted Subsidiary. The Company may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by delivering to the Administrative Agent a certificate of an Responsible Office of the Company specifying such designation and certifying that the conditions to such designation set forth in this Section 8.19 are satisfied; provided that:

 

(a)            both immediately before and immediately after any such designation, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Aggregate Revolving Credit Extensions of Credit shall not exceed the Line Cap;

 

(b)            in the case of a designation of a Restricted Subsidiary as an Unrestricted Subsidiary, (i) each subsidiary of such Restricted Subsidiary has been, or concurrently therewith will be, designated as an Unrestricted Subsidiary in accordance with this Section 8.19, (ii) such Person is not a party to any agreement, contract, arrangement or understanding with the Parent, the Company or any Restricted Subsidiary unless the terms of such agreement, contract, arrangement or understanding are permitted by Section 9.10, (iii) such designation is deemed to be an Investment in an Unrestricted Subsidiary in an amount equal to the fair market value as of the date of such designation of the Company’s direct and indirect ownership interest in such Subsidiary and such Investment would be permitted to be made under Section 9.7; and

 

 

(c)            in the case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary, (i) each holder of the outstanding Equity Interests of such Unrestricted Subsidiary is a Restricted Subsidiary or has been, or concurrently therewith will be, designated as a Restricted Subsidiary in accordance with this Section 8.19, (ii) the representations and warranties of the Parent, the Company and the other Credit Parties contained in each of the Credit Documents are true and correct in all material respects on and as of such date as if made on and as of the date of such redesignation except to the extent (A) any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such redesignation, such representations and warranties shall be true and correct in all material respects as of such specified earlier date and (B) to the extent that any such representation and warranty is expressly qualified by materiality or by reference to Material Adverse Effect, such representation and warranty (as so qualified) shall be true and correct in all respects on and as of the date of such redesignation, (iii) the Company complies with the requirements of Section 5.25(a), Section 8.10 and Section 9.17. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary existing at such time.

 

8.20

Post-Closing Covenants

 

The Parent and the Company will, and will cause each other Credit Party to, satisfy, to the extent not satisfied as of the Closing Date, the requirements set forth in Section 5.25(a), Section 7.1(a)(vii)(E) and Section 7.1(e) within the time period set forth in the applicable subsection.

 

9.

Negative Covenants

 

The Parent and the Company each hereby agrees that it shall not, and shall not permit any of the Restricted Subsidiaries of the Parent, directly or indirectly so long as the Commitments remain in effect or any Loan or Revolving L/C Obligation remains outstanding and unpaid, any amount remains available to be drawn under any Letter of Credit or any other amount (other than any Unmatured Surviving Obligations) is owing to any Lender, any Agent or the Issuing Lenders hereunder (it being understood that each of the permitted exceptions to each covenant in this Article 9 is in addition to, and not overlapping with, any other of such permitted exceptions in such covenant except to the extent expressly provided):

 

9.1

Financial Covenant

 

Upon the occurrence and during the continuance of a Cash Dominion Event, the Company shall not permit the Fixed Charge Coverage Ratio to be less than 1.00:1.00, tested at any time based on the financial statements for the most recently ended fiscal quarter for which financial statements were required to be delivered pursuant to Section 8.1 and Section 8.2.

 

 

9.2

Indebtedness

 

Create, incur, assume or suffer to exist any Indebtedness or Contingent Obligation, except:

 

(a)

the Finance Obligations, including any Indebtedness of the Parent, the Company or any Restricted Subsidiary in connection with the Letters of Credit and this Agreement;

 

(b)

Indebtedness of (i) a Credit Party owing to any Restricted Subsidiary; provided that all such Indebtedness of any Credit Party owing to any Restricted Subsidiary that is not a Credit Party shall be subordinated to the Finance Obligations on terms and conditions satisfactory to the Administrative Agent, and (ii) any Restricted Subsidiary owing to a Credit Party or any other Restricted Subsidiary to the extent the Indebtedness referred to in this clause (b) evidences a loan or advance permitted under Section 9.7;

 

(c)

Indebtedness arising under any Swap Contract permitted by Section 9.11;

 

(d)

Indebtedness consisting of reimbursement obligations under surety, indemnity, performance, release and appeal bonds and guarantees thereof and letters of credit required in the ordinary course of business or in connection with the enforcement of rights or claims of a Credit Party or its Restricted Subsidiaries;

 

(e)

(i) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the acquisition, repair, replacement, construction or improvement of any fixed or capital assets, including capital lease obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided that (A) such Indebtedness is incurred prior to or within ninety (90) days after such acquisition, repair, replacement, construction or improvement, (B) the aggregate principal amount of Indebtedness outstanding pursuant to this clause (e) shall not exceed the greater of $200,000,000 and 3.75% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(f)

Indebtedness incurred by the Parent, the Company or any Restricted Subsidiary in respect of the Indebtedness of any Unrestricted Subsidiary or joint venture solely as a result of being a general partner, member or owner of such Unrestricted Subsidiary or joint venture and not as a result of a guarantee of such Indebtedness by such Person; provided that, immediately after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness outstanding pursuant to this Section 9.2(f) shall not exceed $50,000,000;

 

(g)

 

(i)

Indebtedness in respect of the Secured Notes in an aggregate principal amount at any time outstanding not to exceed $2,200,000,000 and any Permitted Refinancing Indebtedness in respect thereof; and

 

 

(ii)

(x) Indebtedness under the Term Loan Agreement (and any Permitted Refinancing Indebtedness in respect thereof) in an aggregate principal amount at any time outstanding not to exceed (A) $700,000,000 plus (B)  the amount of any incremental facility permitted to be incurred under the Term Loan Agreement and (y) Indebtedness with respect to any “Incremental Equivalent Debt” (as defined in the Term Loan Agreement) (and any Permitted Refinancing Indebtedness in respect thereof); provided that (1) in the case of Indebtedness incurred under the foregoing clauses (x) and (y) that is secured by the Collateral, such Indebtedness shall be subject to the Intercreditor Agreement (or another intercreditor agreement reasonably satisfactory to the Administrative Agent) and (2) in the case of Indebtedness incurred under the foregoing clauses (x)(B) and (y), immediately prior to and immediately after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing; provided further that that if the proceeds of such incremental Indebtedness or “Incremental Equivalent Debt” are being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption, there shall be no requirement to satisfy any or all such conditions except that (x) the requirement that no Event of Default under Sections 10.1(a) or (f) (with respect to the Company) shall have occurred and then be continuing after giving effect to such Indebtedness shall not be omitted or waived without the consent of the Majority Lenders and (y) in the case of a Permitted Acquisition or Investment, (i) the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Permitted Acquisition or Investment and the acquired business or assets), (ii) any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition or Investment and (iii) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Majority Lenders;

 

(h)

Indebtedness of the Parent, the Company or any of its Restricted Subsidiaries existing on the Closing Date and listed on Schedule 9.2(h) hereto and any Permitted Refinancing Indebtedness in respect thereof;

 

(i)

[reserved];

 

(j)

(A) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof pursuant to a Permitted Acquisition and Indebtedness of any Person secured by assets acquired in a Permitted Acquisition, provided, that (i) such Indebtedness exists at the time such Person becomes Restricted Subsidiary or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary or such assets being acquired and (ii) that aggregate principal amount of Indebtedness permitted by this clause (j) shall not at any one time exceed $50,000,000 and (B) any Permitted Refinancing Indebtedness in respect thereof;

 

 

(k)

the following Contingent Obligations:

 

(i)

guarantees of obligations to third parties made in the ordinary course of business in connection with relocation of employees of the Parent, the Company or any of its Restricted Subsidiaries;

 

(ii)

guarantees by the Parent, the Company and its Restricted Subsidiaries of obligations incurred in the ordinary course of business for an aggregate amount not to exceed $10,000,000 at any time; provided, however, that any such Contingent Obligation in the form of a guarantee granted by a Restricted Subsidiary shall only be given in accordance with Section 9.15;

 

(iii)

Contingent Obligations existing on the Closing Date and described in Schedule 9.2(k) including any extensions or renewals thereof;

 

(iv)

Contingent Obligations in respect of Swap Contracts;

 

(v)

Contingent Obligations pursuant to the Credit Documents;

 

(vi)

guarantees by a Credit Party or any Restricted Subsidiary of other obligations of Restricted Subsidiaries not prohibited hereunder; and

 

(vii)

guarantees by any Restricted Subsidiary of Indebtedness and other obligations of a Credit Party; provided that the Indebtedness or obligations so guaranteed is permitted pursuant to this Section 9.2; and provided further that any such guarantees shall only be given in accordance with Section 9.15.

 

(l)

Indebtedness consisting of bona fide purchase price adjustments, indemnification obligations, obligations under deferred compensation or similar arrangements and items incurred in connection with asset sales and acquisitions permitted under Section 9.6 or Section 9.7;

 

(m)

Indebtedness in respect of letters of credit (including trade letters of credit), bank guarantees or similar instruments issued or incurred in the ordinary course of business, including in respect of card obligations or any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers, workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims;

 

(n)

Indebtedness in respect of judgments and decrees that do not constitute an Event of Default;

 

(o)

Indebtedness consisting of obligations to make payments to current or former officers, directors and employees, their respective estates, spouses or former spouses with respect to the cancellation, or to finance the purchase or redemption, of Equity Interests of the Company to the extent permitted by Section 9.9;

 

(p)

Indebtedness consisting of (i) the financing of insurance premiums with the providers of such insurance or their affiliates or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

 

 

(q)

Indebtedness in an aggregate principal amount outstanding not to exceed the greater of $75,000,000 and 1.75% of Consolidated Total Assets;

 

(r)

unsecured Indebtedness of Parent, the Company or any Restricted Subsidiary so long as immediately after giving pro forma effect thereto and to the use of the proceeds thereof (but without netting the proceeds thereof), (i) for so long as any Class D Preferred Units are outstanding, the Consolidated Net Leverage Ratio, on a pro forma basis, shall be no greater than 4.75:1.00 and (ii) thereafter, the Fixed Charge Coverage Ratio for the most recently ended Measurement Period, on a pro forma basis, is no less than 2.00:1.00 (such Indebtedness, the “Ratio Debt”); provided that (A) immediately prior to and immediately after giving effect to the incurrence of such Ratio Debt, no Event of Default shall have occurred and then be continuing (or, in the case of Ratio Debt used to finance a Permitted Acquisition, Investment or the irrevocable payment, repurchase or redemption of Indebtedness only, no Event of Default under Sections 10.1(a) or (f) (with respect to the Company) shall have occurred and then be continuing), (B) the aggregate outstanding principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors pursuant to this clause (r) shall not exceed $50,000,000 and (C) the final stated maturity date of such Indebtedness shall be no earlier than the date that is 91 days following the Revolving Credit Termination Date;

 

(s)

Indebtedness in respect of joint ventures and Unrestricted Subsidiaries permitted under Section 9.17(a); and

 

(t)

to the extent constituting Indebtedness, the Class D Preferred Units outstanding as of the Fifth Amendment Effective Date.

 

9.3

Limitation on Liens

 

Create, incur, assume or suffer to exist any Lien upon any of its property, assets, income or profits, whether now owned or hereafter acquired, or assign any accounts or other right to receive income, except:

 

(a)

Liens for Taxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or such Restricted Subsidiary, as the case may be, in accordance with GAAP;

 

(b)

carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations which do not, individually or in the aggregate, materially impair the use of any of the assets or properties of the Company or any Restricted Subsidiary or which are not overdue by more than thirty (30) days or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or such Restricted Subsidiary, as the case may be, in accordance with GAAP;

 

 

(c)

pledges or deposits in connection with workmen’s compensation, unemployment insurance and other social security legislation made in the ordinary course of business;

 

(d)

survey matters, easements, encroachments, right-of-way, zoning and similar restrictions and other similar encumbrances or title defects incurred, or leases or subleases or licenses granted to others, in the ordinary course of business, which, in the aggregate, which do not in the aggregate materially and adversely detract from the value of the property subject thereto or do not in the aggregate materially and adversely interfere with the ordinary conduct of the business of the Company and its Restricted Subsidiaries taken as a whole;

 

(e)

Liens in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the Credit Documents (including those securing the Finance Obligations) and bankers’ liens arising by operation of law;

 

(f)

Liens on assets of entities or Persons which become Restricted Subsidiaries of the Company after the date hereof and any renewals thereof to the extent extending only to the assets of such Person that secured the initial Lien; provided that such Liens exist at the time such entities or Persons become Restricted Subsidiaries and are not created in anticipation thereof;

 

(g)

Liens on documents of title and the property covered thereby securing Indebtedness in respect of the Letters of Credit;

 

(h)

Liens in existence on the Closing Date and described in Schedule 9.3 and renewals thereof in amounts not to exceed the amounts listed on such Schedule 9.3 and that do not spread to cover any additional property after the Closing Date;

 

(i)

any leases or non-exclusive licenses of any intellectual property or intangible assets or entering into any franchise agreement, in each case, in the ordinary course of business;

 

(j)

deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, licenses, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

 

(k)

Liens on fixed or capital assets acquired, repaired, replaced, constructed or improved by the Parent, the Company or any Restricted Subsidiary; provided that (i) such security interests secure only Indebtedness permitted by Section 9.2(e), (ii) except in the case of Permitted Refinancing Indebtedness permitted under Section 9.2(e), such security interests and the Indebtedness secured thereby are incurred prior to or within one hundred eighty (180) days after such acquisition, repair, replacement, construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of such acquisition, repair, replacement, construction or improvement plus the amount of any fees or expenses payable in connection therewith, and (iv) such security interests shall not, except as otherwise permitted by this Section 9.3, apply to any other property of the Company or any Restricted Subsidiary (except for the net proceeds of an Asset Sale of, or insurance proceeds of a casualty event with respect to, the fixed or capital assets so acquired, repaired, replaced, constructed or improved);

 

 

(l)

Liens in respect of judgments and decrees that do not constitute an Event of Default under Section 10.1(h);

 

(m)

Liens arising from precautionary UCC filings, PPSA filings or similar filings relating to (x) Operating Leases and (y) sub-leasing and/or chartering arrangements relating to aircrafts;

 

(n)

Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

 

(o)

Liens on insurance proceeds securing the payment of financed insurance premiums (provided that such Liens extend only to such insurance proceeds and not to any other property or assets);

 

(p)

Liens to secure Indebtedness permitted under Section 9.2(g), provided that such Lien is subject to (A) the Intercreditor Agreement or (B) the Administrative Agent shall have entered into customary intercreditor arrangements and executed an intercreditor agreement in a form and substance reasonably satisfactory to the Administrative Agent, and in each case, such Liens, with respect to any ABL Priority Collateral, are junior in priority to any Liens securing the Obligations (and, to the extent such Indebtedness is Permitted Refinancing Indebtedness of Refinanced Indebtedness that was secured and subject to an intercreditor arrangement in favor of the Secured Parties, on terms that are at least as favorable to the Secured Parties as those contained in the documentation governing the Refinanced Indebtedness, taken as a whole) with the agent or other representatives of the holders of such Permitted Refinancing Indebtedness;

 

(q)

Liens arising out of Sale and Leaseback Transactions permitted by Section 9.16;

 

(r)

(i) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned by the Parent or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or joint venture and (ii) any restriction or encumbrance (including customary rights of first refusal and tag, drag and similar rights) with respect to the pledge or transfer of Equity Interests of (x) any Unrestricted Subsidiary, (y) any Subsidiary that is not a wholly owned Subsidiary or (z) the Equity Interests in any Person that is not a Subsidiary;

 

(s)

rights of setoff relating to purchase orders and other agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business;

 

(t)

Liens on equipment owned by the Company or any Restricted Subsidiary and located on the premises of any supplier and used in the ordinary course of business and not securing Indebtedness;

 

(u)

First Purchaser Liens;

 

(v)

Liens on any Commodity Account or Securities Account (including any cash and Cash Equivalents held therein) to secure the obligations of any Credit Party under exchange based Swap Contracts and any Liens on any rights of a Credit Party in respect of such Swap Contracts (including the proceeds thereof); provided that each such Commodity Account and Securities Account is subject to a Control Agreement;

 

 

(w)

Liens in favor of the Credit Parties;

 

(x)

Ground leases in respect of real property on which facilities owned or leases by the Parent or any of its Restricted Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Parent or any Restricted Subsidiary;

 

(y)

rights in favor of depository and securities intermediaries (including rights of setoff) to secure obligations owed in respect of card obligations or any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds and fees and similar amounts related to Deposit Accounts or Securities Accounts (including Liens securing letters of credit, bank guarantees or similar instruments supporting any of the foregoing); provided that no such rights may be outstanding after the date that is one hundred twenty (120) days after the Closing Date (or such later date as is agreed to by the Administrative Agent in its sole discretion);

 

(z)

Liens on property or assets used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is permitted by this Agreement; and

 

(aa)

Liens incurred in the ordinary course of business of NGL Energy or any Restricted Subsidiary with respect to obligations at any one time outstanding not to exceed the greater of $75,000,000 and 1.75% of Consolidated Total Assets.

 

None of the Liens permitted pursuant to this Section 9.3 may at any time attach to any Credit Party’s (1) Accounts, other than those permitted under clauses (a), (e), (f), (n) and (p) above or created pursuant to any Credit Document and (2) Inventory, other than those permitted under clauses (a), (b), (e), (f), (n), (p) and (u) above or created pursuant to any Credit Document. None of the Liens permitted pursuant to this Section 9.3, other than those permitted under clauses (a), (b), (c), (d), (e), (h), (l), (p) or (x) may attach to any Material Real Property Asset of the Parent or its Restricted Subsidiaries until the requirements of Section 8.10(d)(i)(A) and Section 8.10(d)(ii)(A) are satisfied.

 

9.4

Use of Proceeds

 

(a)

The Company will not request any Loans or Letter of Credit, and the Company shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

 

 

(b)

The proceeds of the Loans and the Letters of Credit will be used solely for financing the working capital or general corporate purposes of the Company or any of its Subsidiaries (including making payments to an Issuing Lender to reimburse the Issuing Lender for drawings made under the Letters of Credit). No part of the proceeds of any Loan and no Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.

 

9.5

Prohibition on Fundamental Changes

 

Enter into any merger or consolidation or amalgamation with, any other Person (including any Subsidiary or Affiliate of the Parent, the Company or any of its Subsidiaries), or transfer all or substantially all of its assets to any Subsidiary, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or engage in any type of business other than of the same general type now conducted by it (or business that is ancillary or related thereto), or with respect to the Parent and the Company, reorganize in any foreign jurisdiction, except for:

 

(a)

any merger or amalgamation of any Subsidiary into or with (i) the Parent or the Company provided the Parent or the Company, as applicable, is the surviving entity or (ii)(A) any Domestic Subsidiary or (B) in the case of a Foreign Subsidiary, into or with any other Foreign Subsidiary; provided, in each case, that if one of the parties of such merger or amalgamation is a Guarantor then, the surviving entity shall be or become a Guarantor;

 

(b)

any merger, amalgamation or consolidation or amalgamation permitted under Section 9.7 and any transfer or disposition permitted under Section 9.6; and

 

(c)

liquidation, winding up or dissolution of any Subsidiary, provided that (i) all assets of any such Subsidiary are transferred to the Parent, the Company or to a Wholly-Owned Domestic Subsidiary (or in the case of the liquidation, winding up or dissolution of a non-Wholly Owned Subsidiary, to the equity holders of such Subsidiary on a ratable basis (or a more than ratable basis if transferred to the Parent or a Wholly-Owned Subsidiary)) and (ii) if such Subsidiary is a Guarantor, all assets of such Subsidiary are transferred to a Credit Party.

 

9.6

Prohibition on Sale of Assets

 

Convey, sell, lease, assign, transfer or otherwise dispose of any of its property, business or assets (including, without limitation, tax benefits, receivables and Leasehold interests), whether now owned or hereafter acquired except:

 

(a)

for the sale or other disposition of any tangible personal property that, in the reasonable judgment of the Company, has become uneconomic, obsolete or worn out, and which is disposed of in the ordinary course of business;

 

 

(b)

for sales or other dispositions of inventory made in the ordinary course of business and dispositions, assignments or abandonment of intellectual property in the ordinary course of business;

 

(c)

that any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to Parent or the Company;

 

(d)

that (i) any Foreign Subsidiary of the Company may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or by merger, amalgamation, consolidation, transfer of assets, or otherwise) to the Parent, the Company or a Wholly-Owned Subsidiary of the Company, (ii) any Subsidiary of the Company which is not a Credit Party may sell or otherwise dispose of, or part control of any or all of, the capital stock of, or other equity interests in, any Subsidiary of the Company to a Wholly-Owned Subsidiary of the Company, and (iii) any Subsidiary of the Company which is not a Credit Party may sell or otherwise dispose of, or part control of any or all of, the capital stock of, or other equity interests in, any Subsidiary of the Company to a Wholly-Owned Subsidiary of the Company which is a Credit Party; provided that in any case such transfer shall not cause a Domestic Subsidiary to become a Foreign Subsidiary;

 

(e)

sales other dispositions of assets that are not otherwise permitted by any other paragraph of this Section made for fair market value; provided that (i) in the case of any sale or disposition of ABL Priority Collateral, the Parent, the Company or its Restricted Subsidiaries shall receive not less than 100% of such consideration in the form of cash or Cash Equivalents, (ii) in the case of any sale or disposition of assets that are not ABL Priority Collateral, with respect to any such sale, transfer or disposition for a purchase price in excess of $50,000,000, the Parent, the Company or its Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided that, for purposes of determining what constitutes cash under this clause (ii), (A) any liabilities (as shown on the Parent’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable sale, transfer or disposition and for which the Parent, the Company and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Parent, the Company or such Restricted Subsidiary from such transferee that are converted by the Parent, the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of the applicable sale, transfer or disposition and (C) during the term of this Agreement, an amount of consideration not to exceed the greater of $85,000,000 and 12.5% of Consolidated EBITDA for the most recently ended Measure Period that is not in the form of cash and Cash Equivalents may nevertheless be treated as such so long as the Company has given the Administrative Agent written notice thereof, (iii) after giving effect to any such sale, transfer or disposition, no Default or Event of Default shall have occurred and be continuing, and (iv) to the extent applicable, the net cash proceeds thereof are used to prepay the Revolving Credit Loans as required by Section 5.6(a);

 

 

(f)

dispositions and transfers of property subject to a casualty event or otherwise to comply with a Governmental Authority, including by eminent domain;

 

(g)

any leases or licenses of property in the ordinary course of business or leases or licenses of Real Property that do not constitute Material Real Property Assets;

 

(h)

sale or other disposition of any Real Property that is not a Material Real Property Asset, the other contemplated real estate sales to be included;

 

(i)

any leases or non-exclusive licenses of any intellectual property or intangible assets or entering into any franchise agreement, in each case, in the ordinary course of business;

 

(j)

the sale or other disposition of Cash Equivalents for cash at the fair market value thereof;

 

(k)

the termination, unwinding or other disposition of Swap Contracts in the ordinary course of business;

 

(l)

the issuance, sale or other disposition of Equity Interests of an Unrestricted Subsidiary;

 

(m)

Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;

 

(n)

any disposition, transfer, sale or assignment permitted under Section 9.5 (other than any described in clause (b) of Section 9.5), any Investment permitted under Section 9.7, Restricted Payment permitted under Section 9.9 and any payment made pursuant to Section 9.12(a); and

 

(o)

the Specified Asset Sales.

 

9.7

Limitation on Investments, Loans and Advances

 

Make any advance, loan, extension of credit (including Contingent Obligations in the form of guarantees) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities or any assets constituting a business unit of, any other Person (each an “Investment” and, collectively, “Investments”) in, any Person, except (subject to the final sentence of this Section 9.7) the following:

 

(a)

(i) Investments by the Parent, the Company and the Restricted Subsidiaries in the Parent, the Company or any other Restricted Subsidiary and (ii) Investments by Credit Parties in Unrestricted Subsidiaries and joint ventures; provided that, in each case (x) any Investment constituting such Equity Interests held by a Credit Party shall be pledged pursuant to, and to the extent required by, the Pledge and Security Agreement and (y) the aggregate amount of Investments made after the Fifth Amendment Effective Date (including pursuant to Section 9.7(i)) in Restricted Subsidiaries that are not Wholly-Owned Domestic Subsidiaries, Unrestricted Subsidiaries and in joint ventures shall not exceed the greater of (A) $50,000,000 and (B) 3.75% of Consolidated Net Tangible Assets (determined at the time of making such Investment based on the financial statements most recently delivered under Section 8.1(a) or (b)) (provided that the aggregate amounts set forth in this sub-clause (y) shall be calculated net of any returns, profits, distributions and similar amounts received by any Credit Party (which, in each case, shall not exceed the amount of such Investment (valued at cost) at the time such Investment was made)); provided, further, that in the case of sub-clause (ii), before and after giving effect to such Investment no Event of Default shall have occurred and be continuing;

 

 

(b)

the Parent, the Company or any Restricted Subsidiary may invest in, acquire and hold cash and Cash Equivalents;

 

(c)

the Parent, the Company or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Restricted Subsidiary, in an aggregate outstanding amount not exceeding $500,000 at any time for all such advances and relocation loans;

 

(d)

(i) the Parent, the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business; (ii) Investments in Swap Contracts permitted under Section 9.11; (iii) Investments in the ordinary course of business in prepaid expenses, negotiable instruments held for collection and lease, utility and worker’s compensation, performance and other similar deposits provided to third parties; (iv) Investments in the ordinary course of business consisting of endorsements for collection or deposit; (v) Investments in the ordinary course of business consisting of the non-exclusive licensing or contribution of intellectual property pursuant to development, marketing or manufacturing agreements or arrangements or similar agreements or arrangements with other Persons to the extent the same do not interfere in any material respect with the business of the Company or any Restricted Subsidiary; (vi) Investments to the extent that payment for such Investments is made solely with Equity Interests of the Parent (other than Disqualified Stock); (vii) lease, utility and other similar deposits in the ordinary course of business; and (viii) equity Investment by any Credit Party in any Restricted Subsidiary of such Credit Party which is required by law to maintain a minimum net capital requirement or as may be otherwise required by applicable law;

 

(e)

the Parent, the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause (e) shall prevent the Parent, the Company or any Restricted Subsidiary from offering such concessionary trade terms, or from receiving such Investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);

 

(f)

(i) the Parent, the Company and its Restricted Subsidiaries may hold Investments received as considerations in connection with asset sales permitted by Section 9.6; and (ii) dispositions and other transfers pursuant to Section 9.5 or Section 9.6 and Restricted Payments pursuant to Section 9.9 and purchases, defeasance or prepayment of Restricted Debt pursuant to Section 9.12(b), in each case, to the extent such transactions constitute Investments;

 

 

(g)

Investments, loans and advances of the Company or any Restricted Subsidiary existing on the Closing Date and described on Schedule 9.7 hereto;

 

(h)

Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; and

 

(i)

additional Investments (including Permitted Acquisitions and Investments in Permitted Joint Ventures), provided that, the Investment Conditions shall be satisfied (and subject to the proviso in Section 9.7(a)).

 

If any Person shall be acquired by virtue of an Investment permitted by this Section 9.7, then, the Company shall comply with and shall cause such Person to comply with the requirements set forth in Section 8.10.

 

9.8

Amendments to Documents

 

No Credit Party will, nor will they permit any of their respective Restricted Subsidiaries to, amend, modify or waive any of its rights under its certificate of incorporation, bylaws or other organizational documents (including the Parent LPA), in each case if the effect of such amendment, modification or waiver would be materially adverse to the Lenders.

 

9.9

Restricted Payments

 

No Credit Party will declare or pay any dividends on any shares of any class of stock, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement or other acquisition of its Equity Interests, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property of the Company or any of its Restricted Subsidiaries, or pay any management fee to any Affiliate, or redeem, repurchase or otherwise acquire any of its Equity Interests at any time outstanding (collectively, “Restricted Payments”), except that:

 

(a)

the Parent, the Company and its Restricted Subsidiaries may pay or make dividends or distributions to any holder of its capital stock in the form of additional Equity Interests of the same class and type;

 

(b)

any Restricted Subsidiary of the Parent may make Restricted Payments to the holders of its Equity Interests ratably with respect to such Equity Interests;

 

(c)

the Parent may pay or make dividends or distributions to any equity holder of the Parent used to pay foreign, federal, state, provincial, territorial or local income taxes of such equity holder, to the extent such income taxes are attributable to the income of Parent (other than income attributable to its Unrestricted Subsidiaries) and, with respect to income attributable to its Unrestricted Subsidiaries, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes attributable to the income of such Unrestricted Subsidiaries; provided that the aggregate amount of payments by the Parent pursuant to this Section 9.9(c) in any fiscal year does not exceed the amount of taxes that the Parent would be required to pay in respect of such income (to the extent described above with respect to income attributable to Unrestricted Subsidiaries) for such fiscal year were the Parent to pay such taxes as a corporation for income tax purposes;

 

 

(d)

the Parent may make Restricted Payments, provided that the Payment Conditions shall be satisfied;

 

(e)

the Parent may make Restricted Payments made in lieu of the issuance of fractional shares or units in connection with the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests or in connection with the payment of a dividend or distribution to the holders of Equity Interests of the Parent in the form of Equity Interests (other than Disqualified Stock) of Parent;

 

(f)

the Parent may make Restricted Payments that are in the form of the cashless purchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options, warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion of the exercise or exchange price thereof, or any purchase, redemption or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights to acquire Equity Interests;

 

(g)

as long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the Parent may make Restricted Payments in the form of the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Parent held by any of former directors or employees of the General Partner or the Parent; provided, however, that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests may not exceed $20,000,000 in any fiscal year plus, to the extent not previously applied or included, (a) the cash proceeds received by the Parent or any of its Restricted Subsidiaries from sales of Equity Interests of the Parent to employees or directors of the General Partner or the Parent that occur after the Closing Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of or provisions of this Section 9.9) and (b) the cash proceeds of key man life insurance policies received by the Parent or any of its Restricted Subsidiaries after the Closing Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of or provisions of this Section 9.9); and

 

(h)

payments to the General Partner constituting reimbursements for expenses in accordance with Sections 7.4(b) and (c) of the Parent LPA as in effect on the Fifth Amendment Effective Date and as it may be amended or replaced thereafter, provided that any such amendment or replacement is made in accordance with Section 9.8 and does not result in such agreement being materially less favorable to the Parent in any respect.

 

 

9.10

Transaction with Affiliates

 

Enter into after the date hereof any transaction or series of related transactions involving $1,000,000 or more, including, without limitation, any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate except (a) for transactions which are otherwise permitted under this Agreement and which are in the ordinary course of the Parent, the Company’s or a Restricted Subsidiary’s business and which are upon fair and reasonable terms no less favorable to the Parent, the Company or such Restricted Subsidiary than it would obtain in a hypothetical comparable arm’s length transaction with a Person not an Affiliate, (b) any Permitted Affiliate Transaction, (c) transactions among the Parent and its Restricted Subsidiaries not prohibited under this Agreement; and (d) as set forth on Schedule 9.10; provided that nothing in this Section 9.10 shall prohibit the Parent, the Company or its Restricted Subsidiaries from engaging in the following transactions: (x) the performance of the Parent, the Company’s or any Restricted Subsidiary’s obligations under any employment contract, collective bargaining agreement, employee benefit plan, related trust agreement or any other similar arrangement heretofore or hereafter entered into in the ordinary course of business, (y) the payment of compensation to and reimbursement of expenses of employees, officers, directors or consultants in the ordinary course of business or (z) the maintenance of benefit programs or arrangements for employees, officers or directors, including, without limitation, vacation plans, health and life insurance plans, deferred compensation plans, and retirement or savings plans and similar plans, in each case, in the ordinary course of business.

 

9.11

Swap Contracts

 

(a)

No Credit Party will, nor will it permit any Restricted Subsidiary to, enter into any Swap Contract, except (i) Swap Contracts entered into to hedge or mitigate risks to which the Parent, the Company or any Subsidiary has actual exposure (other than those in respect of Equity Interests or Indebtedness restricted pursuant to Section 9.12 of the Parent, the Company or any Restricted Subsidiary) and (ii) Swap Contracts entered into in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Parent, the Company or any Restricted Subsidiary.

 

(b)

No Credit Party will, nor will it permit any Restricted Subsidiary to, allow the Risk Management Policy to cease to be in full force and effect, and in accordance therewith, cease to conduct its business in compliance with the Risk Management Policy.

 

9.12

Restricted Indebtedness

 

(a)

No Credit Party will, nor will it permit any Restricted Subsidiary to, optionally or voluntarily redeem, purchase, acquire, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, or segregate funds with respect to, any Restricted Indebtedness (“Restricted Indebtedness Payments”) other than (i) Restricted Indebtedness Payments made in respect of intercompany Restricted Indebtedness; provided that no such payment may be made to a non-Credit Party unless the Payment Conditions shall be satisfied; (ii) Restricted Indebtedness Payments made by exchange for, or out of the proceeds of the substantially concurrent incurrence of, Permitted Refinancing Indebtedness; (iii) Restricted Indebtedness Payments made by exchange for Equity Interests of the Parent (other than Disqualified Stock); and (iv) Restricted Indebtedness Payments, provided that the Payment Conditions shall be satisfied.

 

 

(b)

With respect to any financing documentation related to any Restricted Indebtedness that is permitted under this Agreement (other than intercompany Restricted Indebtedness), the Parent and the Company shall not, nor shall it permit any of its Restricted Subsidiaries to amend, modify or change such documentation in any manner materially adverse to the interests of the Lenders, it being understood that an amendment shall be deemed to be materially adverse to the interests of the Lenders if the effect of such amendment is (i) to cause such Restricted Indebtedness to mature prior to the date that is ninety-one (91) days following the Scheduled Termination Date, or (ii) to cause the Weighted Average Life to Maturity of such permitted Restricted Indebtedness to be shorter than the Weighted Average Life to Maturity of the Restricted Indebtedness prior to such amendment.

 

9.13

Fiscal Year

 

Permit the fiscal year of the Parent to end on a day other than March 31, unless the Company shall have given at least forty-five (45) days prior written notice to the Administrative Agent.

 

9.14

Restrictive Agreements

 

Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Credit Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of such Credit Party or Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Parent or any other Restricted Subsidiary or to guarantee Indebtedness of the Parent or any other Restricted Subsidiary; provided that the foregoing shall not apply to: (i) restrictions and conditions imposed by any Requirement of Law or by any Credit Document; (ii) restrictions and conditions existing on the date hereof identified on Schedule 9.14 (but shall apply to any extension or renewal of, or any amendment or modification, in each case, expanding the scope of, any such restriction or condition), (iii) customary restrictions and conditions contained in agreements relating to the sale, sale-leaseback or similar disposition or transfer of a Restricted Subsidiary (or assets of a Restricted Subsidiary) pending such sale, provided that such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold or transferred and such sale or transfer is permitted hereunder, (iv) restrictions or conditions imposed by (A) the Fixed Debt Documents (and any definitive agreements with respect to Permitted Refinancing Indebtedness in respect thereof) and (B) agreements related to other Indebtedness permitted by this Agreement to the extent that encumbrances or restrictions imposed by such other Indebtedness are not more restrictive on a Credit Party or any of its applicable Restricted Subsidiaries than the encumbrances and restrictions contained in this Agreement or any Fixed Debt Document, or on market terms applicable to any such Indebtedness as of the date of incurrence; (v) assumed in connection with an acquisition of property or the Equity Interests of any Person, so long as agreement or arrangement relates solely to the Person and its Subsidiaries (including the Equity Interests of such Person) and/or property so acquired and was not created in connection with or in anticipation of such acquisition; (vi) customary non-assignment provisions in contracts or licenses, easements or leases, in each case, entered into in the ordinary course of business; and (vii) customary provisions on the disposition or assignment of real estate interests found in easement agreements.

 

 

9.15

Limitation on Guarantees

 

The Company will not permit any Restricted Subsidiary to, directly, or indirectly, incur or assume any guarantee of any Indebtedness of any other entity, unless such Restricted Subsidiary is already a Credit Party or contemporaneously therewith, effective provision is made to guarantee the Finance Obligations equally and ratably with (or on a senior secured basis to, if applicable) such other Indebtedness for so long as such other Indebtedness is so guaranteed. Any guarantee required to be given under this Section 9.15 shall be pursuant to the Guaranty or another similar agreement in form and substance satisfactory to the Collateral Agent.

 

9.16

Sale and Leaseback Transactions

 

No Credit Party will, nor will any Credit Party permit any Restricted Subsidiary to, enter into any arrangement or arrangements, with any Person providing for the leasing by any Credit Party or any Restricted Subsidiary of real or personal property that has been or is to be sold or transferred by any Credit Party to such Person or to any other person to whom funds have been or are to be advanced by such person on the security of such property or rental obligations of such Credit Party (a “Sale and Leaseback Transaction”), except for any Sale and Leaseback Transaction which satisfies each of the following requirements:

 

(a)

a Sale and Leaseback Transaction for the sale or transfer of any fixed or capital assets which are made for cash consideration in an amount not less than the fair value of such fixed or capital asset and which is consummated within one hundred eighty (180) days after such Credit Party acquires or completes the construction of such fixed or capital asset; and

 

(b)

a Sale and Leaseback Transaction which does not cause the total aggregate liability under all Sale and Leaseback Transactions permitted under this Section 9.16 to exceed $50,000,000 at any time.

 

9.17

Unrestricted Subsidiaries and Joint Ventures

 

Except to the extent permitted by Section 9.2(f), the Parent will not, and will not permit any of its Restricted Subsidiaries (other than any joint venture that is a Restricted Subsidiary) to, incur, assume, guarantee or be or become liable for any Indebtedness of any joint venture or of any Unrestricted Subsidiary and will not permit any Unrestricted Subsidiary to hold any Equity Interest in, or any Indebtedness of, the Parent or any of its Restricted Subsidiaries.

 

9.18

Activities of the Parent

 

The Parent will not (a) have any direct Subsidiaries other than the Company, NGL Energy Finance Corp., NGL Energy GP LLC and NGL Energy Equipment LLC, (b) own any Equity Interests other than the Equity Interests in the Company, NGL Energy Finance Corp., NGL Energy GP LLC and NGL Energy Equipment LLC or (c) enter into any business or take any action that would cause the Parent to fail to qualify as a master limited partnership.

 

 

 

9.19

Layering

 

The Parent, the Company and any Restricted Subsidiary will not, directly or indirectly, incur:

 

(a)            any Indebtedness that is secured by a Lien (other than Capital Leases) if such Indebtedness is or purports to be by its terms (or by the terms of any agreement governing such Indebtedness) (i) secured by Liens that, with respect to any ABL Priority Collateral, are junior in priority to any Liens securing the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations) and senior in priority to the Liens securing the Fixed Debt (or any Indebtedness that is secured on a pari passu basis with the Fixed Debt) or (ii) secured by Liens that, with respect to any Fixed Debt Priority Collateral, are junior in priority to any Liens securing the Fixed Debt (or any Indebtedness that is secured on a pari passu basis with the Fixed Debt) and senior in priority to Lien securing the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations); or

 

(b)            any Indebtedness in an aggregate principal amount in excess of $25,000,000 that is subordinate in right of payment (including via any “first-out” collateral proceeds waterfall or similar structure) to (i) the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations) unless such Indebtedness is also subordinated in right of payment to the obligations under the Fixed Debt (or any Indebtedness that is secured on a pari passu basis with the Fixed Debt) or (ii) the Fixed Debt (or any Indebtedness that is secured on a pari passu basis with the Fixed Debt) unless such Indebtedness is also subordinated in right of payment to the Obligations (or any Indebtedness that is secured on a pari passu basis with the Obligations).

 

9.20

Canadian Pension Plans

 

None of the Canadian Credit Parties shall, without the consent of the Administrative Agent, maintain, administer, contribute or have any liability in respect of any Canadian Defined Benefit Plan or acquire an interest in any Person if such Person sponsors, maintains, administers or contributes to, or has any liability in respect of any Canadian Defined Benefit Plan.

 

9.21

Independence of Covenants

 

All covenants contained herein shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that such action or condition would be permitted by an exception to, or otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or condition exists.

 

 

10.

Events of Default

 

10.1

Events of Default

 

Upon the occurrence of any of the following events:

 

(a)

the Company shall fail (i) to pay any principal of any Loan when due in accordance with the terms hereof (other than principal due pursuant to Section 5.6(e)) or to reimburse the Issuing Lender in accordance with Section 2.6, (ii) to pay any principal of any Loan due pursuant to Section 5.6(e) within one (1) Business Day after any such interest or other amount becomes due in accordance with the terms thereof or hereof, or (iii) to pay any interest on any Loan or any fees or other amount payable hereunder within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms thereof or hereof; or

 

(b)

any representation or warranty made or deemed made by any Credit Party in any Credit Document or which is contained in any certificate, guarantee, document or financial or other statement furnished under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or

 

(c)

the Company shall default in the observance or performance of any agreement contained in Sections 2.2, 5.25(a), 8.2(b), 8.2(f), 8.2(g), 8.4 (with respect to existence), 8.9, 8.10, 8.15, 8.20 or Article 9 of this Agreement or Sections 3.6 of the Pledge and Security Agreement, provided that, with respect to any default in the observance or performance of any agreement contained in Sections 8.2(f) and 8.2(g), such default shall continue unremedied for a period of five (5) days (or, during the requirement to provide Borrowing Base Certificates on a weekly basis, one (1) Business Day); or

 

(d)

any Credit Party shall default in the observance or performance of any other term, covenant, or agreement contained in any Credit Document, and such default shall continue unremedied for a period of thirty (30) days; or

 

(e)

the Company or any of its Restricted Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Loans, the Revolving L/C Obligations and any intercompany debt (which, if any such intercompany debt consists of loans or advances to the Company or to one or more Guarantors, is subordinated to the Finance Obligations on terms and conditions satisfactory to the Administrative Agent)) or in the payment of any Contingent Obligation or in any payment obligation under any Sale and Leaseback Transaction (a “Sale and Leaseback Obligation”), in each case, in excess of $100,000,000, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness, Sale and Leaseback Obligation or Contingent Obligation was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness, Sale and Leaseback Obligation or Contingent Obligation in excess of $100,000,000 or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Sale and Leaseback Obligation or Contingent Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, any applicable grace period having expired, or such Sale and Leaseback Obligation or Contingent Obligation to become payable, any applicable grace period having expired; provided that in no event shall the exercise of the rights held by the holders of the Class D Preferred Units pursuant to Section 5.13(d)(iii) of the Parent LPA constitute an Event of Default under this Section 10.1(e); or

 

 

(f)

(i) the Company or any of its Restricted Subsidiaries shall commence any case, proceeding or other action (A) 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 (B) seeking appointment of a receiver, interim receiver, monitor, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Company or any such Restricted Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Company or any such Restricted Subsidiary any case, proceeding or other action of a nature referred to in clause (i) 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) there shall be commenced against the Company or any such Restricted Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint 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 sixty (60) days from the entry thereof; or (iv) the Company or any such Restricted Subsidiary 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) the Company or any such Restricted Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or

 

(g)

(i) any failure to meet the minimum funding standard (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Single Employer Plan, (ii) a Reportable Event (other than a Reportable Event with respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) shall occur with respect to, or proceedings to have a trustee appointed shall commence with respect to, or a trustee shall be appointed to administer or to terminate, any Single Employer Plan, which Reportable Event or institution of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, and, in the case of a Reportable Event, such Reportable Event shall continue unremedied for ten (10) days after notice of such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA is given and, in the case of the institution of proceedings, such proceedings shall continue for ten (10) days after commencement thereof, (iii) an ERISA Event shall have occurred that, either alone or together with any other ERISA Event, results in liability of the Company or any Material Subsidiary in an aggregate amount which would reasonably be expected to have a Material Adverse Effect or (iv) a Canadian Pension Event shall have occurred; or

 

(h)

one or more judgments or decrees shall be entered against the Company or any of its Restricted Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance or indemnity (other to the extent of customary deductibles) of $100,000,000 or more to the extent that all such judgments or decrees shall remain unpaid or undischarged for a period of thirty (30) consecutive days without the same having been vacated, discharged, stayed or bonded pending appeal within the time required by the terms of such judgments or decrees; or

 

 

(i)

except as contemplated by this Agreement or any other Credit Document, any Credit Document shall cease, for any reason, or in any material respect, to be in full force and effect or any Credit Party shall so assert in writing; or

 

(j)

except as contemplated by this Agreement or in accordance with the terms of any Credit Document or as provided in Section 12.1, (i) any Credit Party shall assert in writing that any Collateral Document is no longer in full force or effect, (iii) any Lien granted by any Collateral Document in any material portion of the Collateral shall cease to be enforceable or is no longer a first priority Lien (except to the extent any such loss of perfection or priority results from the failure of the Administrative Agent, the Collateral Agent or any Secured Party to take any action within its control) or (iv) any guarantee under any Credit Document shall cease to be enforceable; or

 

(k)

a Change of Control shall occur;

 

then, and in any such event, (i) if such event is an Event of Default with respect to the Company specified in clause (i) or (ii) of clause (f) above, automatically (A) the Commitments and the Issuing Lender’s obligation to issue Letters of Credit shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Loans shall immediately become due and payable, (B) all obligations of the Company in respect of the Letters of Credit, although contingent and unmatured, shall become immediately due and payable and the Issuing Lender’s obligation to issue Letters of Credit shall immediately terminate, and (C) the obligation of the Company to Cash Collateralize the Revolving L/C Obligations shall automatically become effective; and (ii) if such event is any other Event of Default, so long as any such Event of Default shall be continuing, either or both of the following actions may be taken: (A) with the consent of the Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders, the Administrative Agent shall, by notice to the Company declare the Commitments and the Issuing Lender’s obligation to issue Letters of Credit to be terminated forthwith, whereupon the Commitments and such obligation shall immediately terminate; and (B) with the consent of the Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders, the Administrative Agent shall, by notice of default to the Company (x) declare all or a portion of the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Loans to be due and payable forthwith, whereupon the same shall immediately become due and payable, and (y) declare all or a portion of the obligations of the Company in respect of the Letters of Credit, although contingent and unmatured, to be due and payable forthwith, whereupon the same shall immediately become due and payable and/or demand that the Company discharge any or all of the obligations supported by the Letters of Credit by paying or prepaying any amount due or to become due in respect of such obligations. All payments under this Article 10 on account of undrawn Letters of Credit shall be made by the Company directly to a Cash Collateral Account established by the Administrative Agent for such purpose for application to the Company’s reimbursement obligations under Section 2.6 as drafts are presented under the Letters of Credit, with the balance, if any, to be applied to the Company’s obligations under this Agreement and the Loans as the Administrative Agent shall determine with the approval of the Majority Lenders. Except as expressly provided above in this Article 10, presentment, demand, protest and all other notices of any kind are hereby expressly waived.

 

 

In addition to any other rights and remedies granted to the Administrative Agent and the Lenders in the Credit Documents, the Administrative Agent on behalf of the Lenders may exercise all rights and remedies of a secured party under the New York Uniform Commercial Code or any other applicable law. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Credit Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived by each Credit Party on behalf of itself and its Subsidiaries), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Credit Party of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Credit Party, which right or equity is hereby waived and released by each Credit Party on behalf of itself and its Subsidiaries. Each Credit Party further agrees on behalf of itself and its Subsidiaries, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at the premises of the Company, another Credit Party or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Article 10, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the obligations of the Credit Parties under the Credit Documents, in such order as the Administrative Agent may elect, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York Uniform Commercial Code, need the Administrative Agent account for the surplus, if any, to any Credit Party. To the extent permitted by applicable law, each Credit Party on behalf of itself and its Subsidiaries waives all Liabilities it may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition.

 

 

11.

The Administrative Agent

 

11.1

Authorization and Action

 

(a)

Each Lender and each Issuing Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Credit Documents and each Lender and each Issuing Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Lender hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Lender’s behalf. Without limiting the foregoing, each Lender and each Issuing Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Credit Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Credit Documents.

 

For the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Obligations by any Credit Party, each of the Secured Parties hereby irrevocably appoints and authorizes the Administrative Agent and, to the extent necessary, ratifies the appointment and authorization of the Administrative Agent, to, as part of its duties as Administrative Agent, act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Administrative Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Secured Parties and Credit Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Assumption, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of the Administrative Agent pursuant to the provisions of this Section 11 shall also result in the substitution of the Attorney.

 

 

(b)

As to any matters not expressly provided for herein and in the other Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Lenders with respect to such action or (ii) is contrary to this Agreement or any other Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Majority Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(c)

In performing its functions and duties hereunder and under the other Credit Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:

 

(i)

the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Issuing Lender or holder of any other obligation other than as expressly set forth herein and in the other Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Credit Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or the transactions contemplated hereby; and

 

 

(ii)

nothing in this Agreement or any Credit Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.

 

(d)

The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.

 

(e)

None of the Joint Lead Arrangers shall have obligations or duties whatsoever in such capacity under this Agreement or any other Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.

 

(f)

In case of the pendency of any proceeding with respect to any Credit Party under any federal, state, provincial, territorial or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Company) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

 

(i)

to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Disbursements and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Lenders and the Administrative Agent (including any claim under Sections 5.7, 5.9, 5.10, 5.11, 5.23 and 12.5) allowed in such judicial proceeding; and

 

(ii)

to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, interim receiver, monitor, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Credit Documents (including under Section 12.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Lender in any such proceeding.

 

 

(g)

The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and, except solely to the extent of the Company’s rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Company or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Credit Documents, to have agreed to the provisions of this Article.

 

11.2

Administrative Agent’s Reliance, Limitation of Liability, Etc.

 

(a)

Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Credit Documents (x) with the consent of or at the request of the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Credit Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Credit Party or any officer thereof contained in this Agreement or any other Credit Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Credit Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit Document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of any Credit Party to perform its obligations hereunder or thereunder.

 

(b)

The Administrative Agent shall be deemed not to have knowledge of any (i) notice of any of the events or circumstances set forth or described in Section 8.9 unless and until written notice thereof stating that it is a “notice under Section 8.9” in respect of this Agreement and identifying the specific clause under said Section is given to the Administrative Agent by the Company, or (ii) notice of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of Default” or a “notice of an Event of Default”) is given to the Administrative Agent by the Company, a Lender or an Issuing Lender. Further, the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document or the occurrence of any Default or Event of Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article 7 or elsewhere in any Credit Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent, or (vi) the creation, perfection or priority of Liens on the Collateral.

 

 

(c)

Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 12.6, (ii) may rely on the Register to the extent set forth in Section 12.6(b), (iii) may consult with legal counsel (including counsel to the Company), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Lender and shall not be responsible to any Lender or Issuing Lender for any statements, warranties or representations made by or on behalf of any Credit Party in connection with this Agreement or any other Credit Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Lender, may presume that such condition is satisfactory to such Lender or Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Lender sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Credit Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Credit Documents for being the maker thereof).

 

11.3

Posting of Communications

 

(a)

The Company agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Lenders by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).

 

 

(b)

Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, each of the Issuing Lenders and the Company acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Lenders and the Company hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.

 

(c)

THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY ISSUING LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.

 

(d)

Each Lender and each Issuing Lender agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender and Issuing Lender agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Lender’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.

 

 

(e)

Each of the Lenders, each of the Issuing Lenders and the Company agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.

 

(f)

Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Lender to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.

 

11.4

The Administrative Agent Individually

 

With respect to its Commitment, Loans (including Swingline Loans), Letter of Credit Commitments and Letters of Credit, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or Issuing Lender, as the case may be. The terms “Issuing Lenders”, “Lenders”, “Majority Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Lender, Issuing Lender or as one of the Majority Lenders, as applicable. The Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, the Company, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders or the Issuing Lenders.

 

11.5

Successor Administrative Agent

 

(a)

The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Lenders and the Company, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Majority Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Majority Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Company (which approval may not be unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Credit Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Credit Documents.

 

 

(b)

Notwithstanding clause (a) of this Section, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Lenders and the Company, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents; provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Collateral Documents and Credit Documents, and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (ii) the Majority Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Credit Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Lender. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 12.5, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Credit Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (i) above.

 

11.6

Acknowledgements of Lenders and Issuing Lenders

 

(a)

Each Lender and each Issuing Lender represents and warrants that (i) the Credit Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Lender, in each case in the ordinary course of business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender and each Issuing Lender agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon the Administrative Agent, any Arranger, any other Lender or Issuing Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender or Issuing Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder or thereunder.

 

 

(b)

Each Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment and Assumption or any other Credit Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.

 

11.7

Collateral Matters

 

(a)

Except with respect to the exercise of setoff rights in accordance with Section 12.7 or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Credit Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof.

 

(b)

In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Cash Management Obligations or Swap Obligations, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Credit Party under any Credit Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such arrangement in respect of Cash Management Obligations or Swap Obligations, as applicable, shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Credit Documents and agreed to be bound by the Credit Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.

 

(c)

The Secured Parties irrevocably authorize the Administrative Agent and the Collateral Agent, as applicable, at its option and in its discretion, and the Administrative and Collateral Agreement, as applicable, agree to, upon the request of the Company, (i) subordinate any Lien on any property granted to or held by the Administrative Agent under any Credit Document to the holder of any Lien on such property that is permitted by Sections 9.3(a), 9.3(b), 9.3(c) or 9.3(d), (ii) to release any Guarantor from its obligations under the Guaranty and the other Credit Documents if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Credit Documents, (iii) to release the Lien of any Collateral that is, or is to be, sold, released or otherwise disposed of as permitted pursuant to the terms of the Credit Documents and (iv) to enter into or amend an intercreditor agreement (or direct the Collateral Agent to enter into or amend an intercreditor agreement), including without limitation the Intercreditor Agreement, with the collateral agent or other representatives of the holders of Indebtedness that is permitted to be secured by a Lien on the Collateral; provided, that in the case of each of clauses (i), (ii) and (iii), the Company shall have delivered to the Administrative Agent, no later than concurrently with execution and delivery of such releases, subordination and other documents, a written request of a Responsible Officer for release, together with a certification by the Company stating that such transaction is in compliance with the Credit Documents. Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon or any certificate prepared by any Credit Party in connection therewith, nor shall the Administrative Agent or Collateral Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.

 

 

11.8

Credit Bidding

 

The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Majority Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Credit Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Majority Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Majority Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Majority Lenders contained in Section 12.1 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.

 

 

11.9

Certain ERISA Matters

 

(a)

Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto, to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company, that at least one of the following is and will be true:

 

(i)

such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit, the Commitments or this Agreement;

 

(ii)

the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, and the conditions for exemptive relief thereunder are and will continue to be satisfied in connection therewith;

 

 

(iii)

(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement; or

 

(iv)

such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b)

In addition, unless clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant as provided in clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company, that none of the Administrative Agent or any of its respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Credit Document or any documents related to hereto or thereto);

 

 

12.

Miscellaneous

 

12.1

Amendments and Waivers

 

Subject to Section 5.17, no Credit Document nor any terms thereof may be amended, supplemented, waived or modified except in accordance with the provisions of this Section 12.1. With the written consent of the Majority Lenders, the Administrative Agent and the respective Credit Parties may, from time to time, enter into written amendments, supplements or modifications to any Credit Document for the purpose of adding any provisions to such Credit Document to which they are parties or changing in any manner the rights of the Lenders or of any such Credit Party or any other Person thereunder or waiving, on such terms and conditions as the Administrative Agent may specify in such instrument, any of the requirements of any such Credit Document or any Default or Event of Default and its consequences; provided, however, that:

 

(a)

no such waiver and no such amendment, supplement or modification shall (A) extend the Revolving Credit Termination Date or the scheduled maturity of any Loan or extend the expiry date of any Letter of Credit beyond the Revolving Credit Termination Date, or reduce the rate or extend the time of payment of interest on any Loan or Letter of Credit, or change the method of calculating interest on any Loan or Letter of Credit, or reduce the amount or extend the time of payment of any fee payable to the Lenders hereunder (provided that any amendment or modification of the financial covenants in this Agreement (or any defined term used therein) shall not constitute a reduction in the rate of interest or fees for such purpose and a waiver of payment of any default interest under Section 5.7(d) shall not constitute a reduction of rate), or reduce or forgive the principal amount thereof, or increase the amount of, or postpone the scheduled date of expiry of, any Commitment of any Lender (it being understood that a waiver of any condition precedent set forth in Section 7.02 or the waiver of any mandatory prepayment shall not constitute an increase or an extension of any Commitment of any Lender), without the consent of each Lender directly affected thereby, or (B) amend, modify or waive any provision of this Section 12.1 or the definition of Majority Lenders, the definition of Required Lenders or alter the manner in which payments of principal, interest, or other amounts hereunder shall be applied as among the Lenders in the respective Facility (in which case, the written consent of each Lender in the respective Facility shall be required), or change the percentage of the Lenders required to waive a condition precedent under Sections 7.1 or 7.2, or amend, modify, eliminate or waive a condition precedent under or waive or amend any other provision in any of the Credit Documents which by their terms expressly require all Lenders’ consent or consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Credit Document, or (C) (i) release all or substantially all of the Collateral, (ii)  subordinate any of the Finance Obligations to any other Indebtedness, (iii) subordinate the Lien securing any of the Finance Obligations on a material portion of the Collateral to any other Lien securing any other Indebtedness in any transaction or series of transactions (other than, for the avoidance of doubt, a subordination pursuant to Sections 9.3(a), (b), (c) and (d) of this Agreement) or (iv) release all or substantially all of the value of the guarantees granted (or required to be granted) pursuant to this Agreement, in each case, without the written consent of each Lender (unless otherwise specified in sub-clause (B) of this clause (a));

 

(b)

no such waiver and no such amendment, supplement or modification shall amend, modify or waive any provision of Article 11 without the written consent of the Administrative Agent and the Collateral Agent;

 

(c)

no such waiver and no such amendment, supplement or modification shall amend, modify or waive (i) any provision of Section 5.18(e) in a manner that would alter the manner in which payments are shared, without the written consent of each Lender or (ii) any change to the pro rata reduction in commitments among lenders under Section 5.4(a);

 

 

(d)

no such waiver and no such amendment, supplement or modification shall increase the advance rates set forth in the definition of “Borrowing Base” or add new categories of eligible assets or making other changes to the definition of “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Company would be increased, without the prior written consent of the Required Lenders;

 

(e)

the Administrative Agent and the Company acting together may, without the consent of any other Person, amend, modify or supplement this Agreement and any other Credit Document to cure any typographical error, mistake or defect, to comply with local law or the advice of local counsel or to cause one or more Credit Documents to be consistent with other Credit Documents; and

 

(f)

no such waiver and no such amendment, supplement or modification shall amend, modify or otherwise affect the rights or duties of the Issuing Lender or the Swingline Lender hereunder without the prior written consent of the Issuing Lender or the Swingline Lender, as the case may be (it being understood that any amendment to Section 2.24 shall require the consent of the Issuing Lender and the Swingline Lender).

 

Any such waiver and any such amendment, supplement or modification described in this Section 12.1 shall apply equally to each of the Lenders and shall be binding upon each Credit Party, the Lenders, each Agent and all future holders of the Loans. No waiver, amendment, supplement or modification of any Letter of Credit shall extend the expiry date thereof without the written consent of the Participating Lenders. In the case of any waiver, the Company, the Lenders and each Agent shall be restored to their former position and rights hereunder and under the outstanding Loans, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

 

If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby”, the consent of the Majority Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company, the Administrative Agent and the Issuing Lender shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an assignment under Section 12.6 and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of Section 12.6, and (ii) the Company shall pay to such Non-Consenting Lender in Same Day Funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Company hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 5.20 or Section 5.23, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 5.21 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.

 

 

12.2

Notices

 

(a)

Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

 

The Company:	NGL Energy Operating LLC 6120 South Yale Avenue, Suite 1300 Tulsa, Oklahoma 74136 Attention: Chief Financial Officer General Counsel Telecopy: (918) 481-5896 Email: brad.cooper@nglep.com kurston.mcmurray@nglep.com
The Administrative Agent, Collateral Agent, Swingline Lender and JPMCB in its capacity as an Issuing Lender:	JPMorgan Chase Bank, N.A. c/o Portfolio Manager JPMorgan Chase Bank 2200 Ross Avenue, 9th Floor Mail Code: TX1-2905 Dallas, TX 75201 Telephone: (214) 965-3746 Fax: (214) 965-2594 Attention: Robby Cohenour Email: robby.cohenour@jpmorgan.com

 

 

Issuing Lenders:

Wells Fargo Bank, National Association c/o Becky Rountree Braccio Wells Fargo Capital Finance 14241 Dallas Parkway, Suite 1300 Dallas, TX  75254 Telephone: (972)361-7208 or (531)205-3755 Email: becky.rountree@wellsfargo.com   and The Toronto-Dominion Bank, New York Branch c/o Liana Chernysheva TD Securities 909 Fannin Street, Suite 1100 Houston, TX  77010 Telephone: (713)653-8225 Email: liana.chernysheva@tdsecurities.com

 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through Approved Electronic Platforms, to the extent provided in clause (b) below, shall be effective as provided in said clause (b).

 

(b)

Notices and other communications to the Company, any Credit Party, the Lenders and the Issuing Lenders hereunder may be delivered or furnished by using Approved Electronic Platforms pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article 5 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

 

(c)

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

 

(d)

Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.

 

 

12.3

No Waiver; Cumulative Remedies

 

No failure to exercise and no delay in exercising, on the part of any Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

12.4

Survival

 

All covenants, agreements, representations and warranties made by the Credit Parties herein and in the other Credit Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Credit Documents shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Lender or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 5.21, 5.23 and 12.5 and Article 11 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

 

12.5

Expenses, Limitation of Liability, Indemnity, Etc.

 

(a)

The Company shall pay (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent and its Affiliates (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to such Persons, taken as a whole), in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any Issuing Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to such Issuing Lender and, if reasonably necessary, of one local counsel in any relevant jurisdiction to such Issuing Lender), (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, any Issuing Lender or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Lender or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Credit Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit and (iv) for field examinations to the extent required by Section 8.12.

 

 

(b)

To the extent permitted by applicable law (i) the Company and any Credit Party shall not assert, and the Company and each Credit Party hereby waives, any claim against the Administrative Agent, any Arranger, any Issuing Lender and any Lender, and any Related Party of any of the foregoing Persons (each such Person being called a “Lender-Related Person”) for any Liabilities arising from the use by others of information or other materials (including, without limitation, any personal data) obtained through telecommunications, electronic or other information transmission systems (including the Internet), and (ii) no party hereto shall assert, and each such party hereby waives, any Liabilities against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document, or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this Section 12.5(b) shall relieve the Company and each Credit Party of any obligation it may have to indemnify an Indemnified Person, as provided in Section 12.5(c), against any special, indirect, consequential or punitive damages asserted against such Indemnified Person by a third party.

 

(c)

The Company shall indemnify the Administrative Agent, each Arranger, Issuing Lender and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnified Person”) against, and hold each Indemnified Person harmless from, any and all Liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnified Person, incurred by or asserted against any Indemnified Person arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of hazardous materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any environmental liability related in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective Proceeding relating to any of the foregoing, whether or not such Proceeding is brought by the Company or any other Credit Party or its or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnified Person is a party thereto; provided that such indemnity shall not, as to any Indemnified Person, be available to the extent that such Liabilities or related expenses are (i) determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted primarily from the bad faith, gross negligence or willful misconduct of such Indemnified Person or (ii) arise out of any claim, litigation, investigation or proceeding brought by such Indemnified Person (or its Affiliates) against another Indemnified Person (or its Affiliates) (other than any claim, litigation, investigation or proceeding brought by or against the Administrative Agent, acting in its capacity as the Administrative Agent) that does not involve any act or omission of the Credit Parties. This Section 12.5(c) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.

 

 

(d)

Each Lender severally agrees to pay any amount required to be paid by the Company under clauses (a), (b) or (c) of this Section 12.5 to the Administrative Agent, the Swingline Lender, each Issuing Lender and each Related Party of any of the foregoing Persons (each, an “Agent-Related Person”) (to the extent not reimbursed by the Company and without limiting the obligation of the Company to do so), ratably according to their respective Commitments or Loans in effect on the date on which such payment is sought under this Section (or, if such payment is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably according to their respective Commitments or Loans immediately prior to such date), from and against any and all Liabilities and related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or arising out of the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent-Related Person under or in connection with any of the foregoing; provided that the unreimbursed expense or Liability or related expense, as the case may be, was incurred by or asserted against such Agent-Related Person in its capacity as such; provided further that no Lender shall be liable for the payment of any portion of such Liabilities, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted primarily from such Agent-Related Party’s gross negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

(e)

All amounts due under this Section 12.5 shall be payable promptly after written demand therefor.

 

12.6

Successors and Assigns; Participations

 

(a)

The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of an Issuing Lender that issues any Letter of Credit), except that (i) the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Company without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of an Issuing Lender that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lender and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

 

(b)

(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, participations in Letters of Credit and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:

 

(A)

the Company; provided that, the Company shall be deemed to have consented to an assignment of all or a portion of the Loans and Commitments unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; provided that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;

 

(B)

the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of any Commitment to an assignee that is a Lender (other than a Defaulting Lender) with a Commitment immediately prior to giving effect to such assignment;

 

(C)

each Issuing Lender; and

 

(D)

the Swingline Lender.

 

(ii)

Assignments shall be subject to the following additional conditions:

 

(A)

except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Company and the Administrative Agent otherwise consent; provided that no such consent of the Company shall be required if an Event of Default has occurred and is continuing;

 

 

(B)

each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;

 

(C)

the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, together with a processing and recordation fee of $3,500; and

 

(D)

the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company, the Credit Parties and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

 

(iii)

Subject to acceptance and recording thereof pursuant to clause (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 5.21, 5.23 and 12.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (c) of this Section.

 

(iv)

The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Company, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and L/C Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Company, the Administrative Agent, the Issuing Lenders and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company, any Issuing Lender and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

 

(v)

Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in clause (b) of this Section and any written consent to such assignment required by clause (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it, the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

 

(c)

Any Lender may, without the consent of, or notice to, the Company, the Administrative Agent, the Swingline Lender or the Issuing Lenders, sell participations to one or more banks or other entities (a “Participant”), other than an Ineligible Institution, in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Company, the Administrative Agent, the Issuing Lenders and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.1(b) that affects such Participant. The Company agrees that each Participant shall be entitled to the benefits of Section 5.21 and Section 5.23 (subject to the requirements and limitations therein), to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.22 as if it were an assignee under clause (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 5.21 and Section 5.23, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 5.18 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

 

(d)

Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

12.7

Right of Setoff

 

If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Lender, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to setoff and apply any and all deposits (general or special, time or demand, provisional or final) (other than payroll and trust accounts of any Credit Party) at any time held, and other obligations at any time owing, by such Lender, such Issuing Lender or any such Affiliate, to or for the credit or the account of the Company against any and all of the obligations of the Company now or hereafter existing under this Agreement or any other Credit Document to such Lender or such Issuing Lender or their respective Affiliates, irrespective of whether or not such Lender, Issuing Lender or Affiliate shall have made any demand under this Agreement or any other Credit Document and although such obligations of the Company may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or such Issuing Lender different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Lenders, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each Issuing Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Lender or their respective Affiliates may have. Each Lender and Issuing Lender agrees to notify the Company and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

 

12.8

Counterparts

 

(a)

This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Company and the Administrative Agent.

 

(b)

Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Credit Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 12.2), certificate, request, statement, disclosure or authorization related to this Agreement, any other Credit Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Credit Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Credit Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Company or any other Credit Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic signature and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Company and each Credit Party hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Company and the Credit Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Credit Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Credit Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Credit Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Credit Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against any Lender-Related Person for any Liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any Liabilities arising as a result of the failure of the Company and/or any Credit Party to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.

 

 

12.9

Integration

 

This Agreement and the other Credit Documents represent the entire agreement of the Credit Parties, the Agents and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any Agent or any Lender relative to the subject matter hereof or thereof not expressly set forth or referred to herein or in the other Credit Documents.

 

12.10

GOVERNING LAW; NO THIRD PARTY RIGHTS

 

THIS AGREEMENT AND THE LOANS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE LOANS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT IS SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND, EXCEPT AS SET FORTH IN SECTION 12.6, NO OTHER PERSONS SHALL HAVE ANY RIGHT, BENEFIT, PRIORITY OR INTEREST UNDER, OR BECAUSE OF THE EXISTENCE OF, THIS AGREEMENT.

 

12.11

SUBMISSION TO JURISDICTION; WAIVERS

 

(a)

EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN (OR IF SUCH COURT LACKS SUBJECT MATTER JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN), AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT (UNLESS OTHERWISE SPECIFIED THEREIN) OR THE TRANSACTIONS RELATING HERETO OR THERETO, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY (AND ANY SUCH CLAIMS, CROSS-CLAIMS OR THIRD PARTY CLAIMS BROUGHT AGAINST THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES MAY ONLY) BE HEARD AND DETERMINED IN SUCH FEDERAL (TO THE EXTENT PERMITTED BY LAW) OR NEW YORK STATE COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY ISSUING LENDER OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE ANY CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

 

(b)

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (A) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(c)

EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.2. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

 

(d)

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

 

12.12

Acknowledgements

 

(a)

The Credit Parties acknowledge and agree, and acknowledge their Subsidiaries’ understanding, that no Lender Party will have any obligations except those obligations expressly set forth herein and in the other Credit Documents and each Lender Party is acting solely in the capacity of an arm’s length contractual counterparty to the Credit Parties with respect to the Credit Documents and the transactions contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, the Credit Parties or any other person. The Credit Parties agree that they will not assert any claim against any Lender Party based on an alleged breach of fiduciary duty by such Lender Party in connection with this Agreement and the transactions contemplated hereby. Additionally, the Credit Parties acknowledge and agree that no Lender Party is advising the Credit Parties as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction. The Credit Parties shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated herein or in the other Credit Documents, and the Lender Parties shall have no responsibility or liability to the Credit Parties with respect thereto.

 

(b)

The Credit Parties further acknowledge and agree, and acknowledge their Subsidiaries’ understanding, that each Lender Party, together with its Affiliates, is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Lender Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, the Credit Parties and other companies with which the Credit Parties may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Lender Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

 

(c)

In addition, the Credit Parties acknowledge and agree, and acknowledge their Subsidiaries’ understanding, that each Lender Party and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which the Credit Parties may have conflicting interests regarding the transactions described herein and otherwise. No Lender Party will use confidential information obtained from the Credit Parties by virtue of the transactions contemplated by the Credit Documents or its other relationships with the Credit Parties in connection with the performance by such Lender Party of services for other companies, and no Lender Party will furnish any such information to other companies. The Credit Parties also acknowledge that no Lender Party has any obligation to use in connection with the transactions contemplated by the Credit Documents, or to furnish to the Credit Parties, confidential information obtained from other companies.

 

 

12.13

Confidentiality

 

(a)

Each of the Administrative Agent, the Issuing Lenders and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors on a “need to know” basis solely in connection with the transactions completed hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or under any other Credit Document, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii)  any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and its obligations, (g) on a confidential basis to (1) any rating agency in connection with rating the Credit Parties or their Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of identification numbers with respect to the credit facilities provided for herein, (h) with the consent of the Company or (i) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Lender or any Lender on a non-confidential basis other than as a breach of this Section from a source other than the Company. For the purposes of this Section, “Information” means all information received from the Parent relating to the Parent or any of its Restricted Subsidiaries or their respective businesses, operations or assets, other than any such information that is available to the Administrative Agent, any Issuing Lender or any Lender on a non-confidential basis prior to disclosure by the Company and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

(b)

EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 12.13(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

 

 

(c)

ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY, THE CREDIT PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

 

12.14

Patriot Act

 

Each Lender hereby notifies the Company that pursuant to the requirements of the Patriot Act, it may be required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Lender to identify the Company in accordance with the Patriot Act.

 

12.15

[Reserved]

 

12.16

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.

 

12.17

Acknowledgment and Consent to Bail-In of Affected Financial Institutions

 

Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)

the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

 

(b)

the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)

a reduction in full or in part or cancellation of any such liability;

 

(ii)

a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, 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 Credit Document; or

 

(iii)

the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

 

12.18

Acknowledgement Regarding Any Supported QFCs

 

(a)

To the extent that the Credit Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a

 

(b)

QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Credit Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

 

(c)

In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Credit Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Credit Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

 

 

12.19

Canadian Anti-Money Laundering Legislation

 

(a)

Each Credit Party acknowledges that, pursuant to the Proceeds of Crime Act and other applicable Canadian anti-money laundering, anti-terrorist financing, government sanction and “know your client” laws (collectively, including any guidelines or orders thereunder, “AML Legislation”), the Lenders may be required to obtain, verify and record information regarding the Credit Parties and their respective directors, authorized signing officers, direct or indirect shareholders or other Persons in control of the Credit Parties, and the transactions contemplated hereby. Each Credit Party shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or any prospective assignee or participant of a Lender, any Issuing Lender or the Administrative Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.

 

(b)

If the Administrative Agent has ascertained the identity of any Credit Party or any authorized signatories of the Credit Parties for the purposes of applicable AML Legislation, then the Administrative Agent:

 

(i)

shall be deemed to have done so as an agent for each Lender, and this Agreement shall constitute a “written agreement” in such regard between each Lender and the Administrative Agent within the meaning of the applicable AML Legislation; and

 

(ii)

shall provide to each Lender copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.

 

Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Lenders agrees that neither the Administrative Agent nor any other agent has any obligation to ascertain the identity of the Credit Parties or any authorized signatories of the Credit Parties on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from any Credit Party or any such authorized signatory in doing so.

 

12.20

Judgment Currency

 

If for the purpose of obtaining judgment in any court it is necessary to convert an amount due hereunder in the currency in which it is due (the “Original Currency”) into another currency (the “Second Currency”), the rate of exchange applied shall be that at which, in accordance with normal banking procedures, the Administrative Agent could purchase in the New York foreign exchange market, the Original Currency with the Second Currency on the date two (2) Business Days preceding that on which judgment is given. Each Credit Party agrees that its obligation in respect of any Original Currency due from it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date the Administrative Agent receives payment of any sum so adjudged to be due hereunder in the Second Currency, the Administrative Agent may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid; and if the amount of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency, each Credit Party agrees as a separate obligation and notwithstanding any such payment or judgment to indemnify the Administrative Agent against such loss.

 

 

12.21

Intercreditor Agreement

 

Notwithstanding any provisions in the Agreement or any other Credit Document to the contrary, the terms, conditions and provisions of this Agreement and the other Credit Documents are subject to the term of the Intercreditor Agreement. To the extent there is a conflict between the Credit Documents and the Intercreditor Agreement, the terms and conditions of the Intercreditor Agreement shall control.

 

[Signature Pages Intentionally Omitted]

 

 

SCHEDULE 1A

 

COMMITMENT AMOUNTS

 

Lender		Revolving Credit Commitment				Revolving Credit Commitment Percentage
JPMORGAN CHASE BANK, N.A.		$	82,000,000.00				13.666666667	%
BARCLAYS BANK PLC		$	78,000,000.00				13.000000000	%
RBC CAPITAL MARKETS		$	78,000,000.00				13.000000000	%
THE TORONTO-DOMINION BANK, NEW YORK BRANCH		$	78,000,000.00				13.000000000	%
WELLS FARGO BANK, NATIONAL ASSOCIATION		$	78,000,000.00				13.000000000	%
BANK OF AMERICA, N.A.		$	78,000,000.00				13.000000000	%
MUFG BANK, LTD.		$	78,000,000.00				13.000000000	%
TEXAS CAPITAL BANK		$	50,000,000.00				8.333333333	%
TOTAL		$	600,000,000.00				100.000000000	%

 

Exhibit 99.1

 

NGL Closes $2.9 Billion Debt Refinancing Transactions and Amends and Extends Asset-Based Revolving Credit Facility

 

TULSA, Okla.--(BUSINESS WIRE)--NGL Energy Partners LP (NYSE: NGL) (“NGL”) through its wholly owned subsidiaries NGL Energy Operating LLC and NGL Energy Finance Corp., closed $2.9 billion of refinancing transactions, consisting of their previously announced $2.2 billion senior secured notes offering of $900 million in aggregate principal amount of 8.125% senior secured notes due 2029 and $1.3 billion in aggregate principal amount of 8.375% senior secured notes due 2032, and a seven-year $700.0 million senior secured term loan facility. The net proceeds from these transactions are being used (i) to fund the redemption, and related discharge of the indentures governing NGL’s existing 6.125% senior notes due 2025, 7.5% senior notes due 2026, and 7.500% senior secured notes due 2026, including any applicable premiums and accrued and unpaid interest, (ii) to pay fees and expenses in connection therewith, (iii) to repay all borrowings under NGL’s senior secured asset-based revolving credit facility and (iv) to the extent of any remaining net proceeds, for general corporate purposes.

 

In addition, in connection with the closing of the refinancing transactions, NGL’s senior secured asset-based revolving credit facility was amended to extend the maturity to February 2029 and to make certain other changes to the terms thereof. No changes were made to the aggregate amount of commitments under the facility.

 

The notes were offered and sold in a transaction exempt from registration under the Securities Act of 1933 (the “Securities Act”) only to persons reasonably believed to be qualified institutional buyers in accordance with Rule 144A under the Securities Act, and outside the United States to persons other than U.S. persons, in reliance on Regulation S under the Securities Act, and the notes may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws. This press release shall not constitute an offer to sell or a solicitation of an offer to purchase the notes or any other securities, and shall not constitute an offer, solicitation or sale in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful.

 

Forward Looking Statements

 

This press release includes “forward-looking statements.” All statements other than statements of historical facts included or incorporated herein may constitute forward-looking statements. Specifically, forward-looking statements may include, among others, statements concerning the expected uses of proceeds of the refinancing transactions. Actual results could vary significantly from those expressed or implied in such statements and are subject to a number of risks and uncertainties. While NGL believes such forward-looking statements are reasonable, NGL cannot assure they will prove to be correct. The forward-looking statements involve risks and uncertainties that affect operations, financial performance, and other factors as discussed in filings with the Securities and Exchange Commission. Other factors that could impact any forward-looking statements are those risks described in NGL’s annual report on Form 10-K, quarterly reports on Form 10-Q, and other public filings. You are urged to carefully review and consider the cautionary statements and other disclosures made in those filings, specifically those under the heading “Risk Factors.” NGL undertakes no obligation to publicly update or revise any forward-looking statements except as required by law.

 

 

About NGL Energy Partners LP

 

NGL Energy Partners LP, a Delaware limited partnership, is a diversified midstream energy company that transports, stores, markets and provides other logistics services for crude oil, natural gas liquids and other products and transports, treats and disposes of produced water generated as part of the oil and natural gas production process. For further information, visit NGL’s website at www.nglenergypartners.com.

 

Contacts

 

NGL Energy Partners LP

David Sullivan, 918-495-4631
Vice President – Finance
David.Sullivan@nglep.com

 

 

v3.24.0.1

Cover	Feb. 02, 2024
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Feb. 02, 2024
Entity File Number	001-35172
Entity Registrant Name	NGL ENERGY PARTNERS LP
Entity Central Index Key	0001504461
Entity Tax Identification Number	27-3427920
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	6120 South Yale Avenue
Entity Address, Address Line Two	Suite 1300
Entity Address, City or Town	Tulsa
Entity Address, State or Province	OK
Entity Address, Postal Zip Code	74136
City Area Code	918
Local Phone Number	481-1119
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Limited Partners Capital Account Common Units [Member]
Document Information [Line Items]
Title of 12(b) Security	Common units representing Limited Partner Interests
Trading Symbol	NGL
Security Exchange Name	NYSE
Series B Preferred Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Fixed-to-floating rate cumulative redeemable perpetual preferred units
Trading Symbol	NGL-PB
Security Exchange Name	NYSE
Series C Preferred Stock [Member]
Document Information [Line Items]
Title of 12(b) Security	Fixed-to-floating rate cumulative redeemable perpetual preferred units
Trading Symbol	NGL-PC
Security Exchange Name	NYSE

---