8-K

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): July 26, 2023

Par Pacific Holdings, Inc.

(Exact name of registrant as specified in its charter)

Delaware	1-36550	84-1060803
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

825 Town & Country Lane, Suite 1500 Houston, Texas	77024
(Address of principal executive offices)	(Zip Code)

(281) 899-4800

(Registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

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 (see General Instruction A.2. below):

☐ 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 stock, $0.01 par value	PARR	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 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

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

Uncommitted Credit Agreement

On July 26, 2023 (the “Closing Date”), Par Hawaii Refining, LLC (“PHR”), a subsidiary of Par Pacific Holdings, Inc. (“Par Pacific”), as borrower, the lenders and letter of credit issuing banks party thereto (collectively, the “Lenders”), MUFG Bank, Ltd., as administrative agent (in such capacity, the “LC Facility Agent”), sub-collateral agent, joint lead arranger and sole bookrunner, Macquarie Bank Limited, as joint lead arranger, and U.S. Bank Trust Company, National Association, as collateral agent (the “Collateral Agent”), entered into an Uncommitted Credit Agreement (the “Uncommitted Credit Agreement”) whereby the Lenders agree, on an uncommitted and absolutely discretionary basis, to consider making revolving credit loans and issuing and participating in letters of credit for the account of PHR in the maximum available amount of $120,000,000 in the aggregate (the “Uncommitted Facility”). PHR has the right to request an increase in the Uncommitted Facility up to a maximum available amount of $350,000,000 in the aggregate, subject to the satisfaction or waiver of certain conditions precedent. Letters of credit issued under the Uncommitted Facility may be standby or documentary letters of credit to finance and provide credit support for certain of PHR’s purchases of crude oil from crude oil suppliers pursuant to an “LC Eligible Refinery Procurement Contract” (as defined in the Uncommitted Credit Agreement), or performance letters of credit issued for the purpose of supporting bids for public release of crude oil from the Strategic Petroleum Reserve (as defined in the Uncommitted Credit Agreement). Proceeds of revolving credit loans may be used to make payments to a crude oil supplier when due and payable and prior to receipt of the “J. Aron Payment Obligation” as defined in the Uncommitted Credit Agreement. Capitalized terms used but not defined in all paragraphs under this “Uncommitted Credit Agreement” section shall have the meanings given such terms in the Uncommitted Credit Agreement.

Set forth below are certain of the material terms of the Uncommitted Credit Agreement:

364-Day Uncommitted Facility. Subject to the terms and conditions of the Uncommitted Credit Agreement, the Uncommitted Facility has a duration that begins on the Closing Date and ends on the date that is 364 days after the Closing Date, unless the obligations are accelerated and the maximum credit limits of the Lenders are terminated prior to such date.

Letter of Credit Fees. PHR has agreed to pay certain fees and commissions with respect to letters of credit issued under the Uncommitted Credit Agreement, including, but not limited to, a letter of credit commission in an amount equal to the greater of (x) $750 and (y) (A) 2.00% per annum of the Face Amount of any Trade Letter of Credit, or (B) 2.25% per annum of the Face Amount of any Performance Letter of Credit, each payable monthly in arrears. In addition, PHR shall pay a fronting fee equal to 0.25% of the Face Amount of each letter of credit issued by a Letter of Credit Issuing Bank, payable monthly in arrears, and such other fees for the issuance, negotiation, amendment and processing of letters of credit (and other costs and charges) by such Letter of Credit Issuing Bank relating to the issuance of letters of credit.

Revolving Credit Loans. Revolving credit loans may accrue interest as SOFR Loans or Costs of Funds Loans plus 2.50% per annum, or as ABR Loans plus 1.50% annum, as more particularly described in the Uncommitted Credit Agreement. Revolving credit loans shall be repaid on the earliest to occur of (a) one business day after the J. Aron Payment Obligation has been deposited, (b) the Credit Facility Termination Date, (c) the Cost of Funds Loan Maturity Date, if applicable, (d) 15 days after the making of a borrowing for a Delivered Crude Oil Purchase, and (e) 30 days after the making of a borrowing for a FOB Crude Oil Purchase.

Security and Collateral. As discussed below under “Collateral Documents,” to secure PHR’s obligations under the Uncommitted Credit Agreement, PHR has granted a lien and security interest in certain of its assets to the Collateral Agent pursuant to the Third A&R Security Agreement (as defined below). PHR is also required to provide cash collateral to the LC Facility Agent as a condition to issuance of certain letters of credit. In addition, PHR may be required to provide cash collateral in connection with a request to increase the face amount of an outstanding letter of credit or upon the occurrence of an event of default.

Covenants. The Uncommitted Credit Agreement requires PHR to comply with various affirmative and negative covenants affecting its business and operations including, but not limited to, compliance with the minimum liquidity covenant as discussed below under “Amendment to Second Amended and Restated Supply and Offtake Agreement.”

Guaranty. On the Closing Date and in connection with the Uncommitted Credit Agreement, Par Petroleum, LLC (“Par Petroleum”), a subsidiary of Par Pacific and the direct parent of PHR, entered into a Parent Guaranty (the “Par Petroleum Guaranty”), pursuant to which, among other things, Par Petroleum irrevocably unconditionally guaranteed the due and punctual payment and performance of PHR’s obligations under the Uncommitted Credit Agreement.

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The foregoing descriptions of the Uncommitted Credit Agreement and the Par Petroleum Guaranty are qualified in their entirety by reference to the Uncommitted Credit Agreement and the Par Petroleum Guaranty, copies of which are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated by reference herein.

Amendment to Second Amended and Restated Supply and Offtake Agreement

On the Closing Date and in connection with the consummation of the transactions contemplated by the Uncommitted Credit Agreement, PHR, Par Petroleum, as guarantor, and J. Aron & Company LLC (“Aron”) entered into an Amendment to Second Amended and Restated Supply and Offtake Agreement (the “S&O Amendment”). The S&O Amendment amends that certain Second Amended and Restated Supply and Offtake Agreement dated June 1, 2021, between Aron and PHR (as amended prior to the Closing Date, the “Second A&R S&O Agreement”). Pursuant to the S&O Amendment, if PHR enters into a crude oil procurement contract with a supplier which provides for PHR’s payment obligations to be supported by a letter of credit issued to such supplier, subject to the satisfaction of certain terms and conditions, Aron will purchase such crude oil from PHR pursuant to a procurement contract entered into between Aron and PHR (each an “LC Related Aron Procurement Contract”) and Aron will fund its J. Aron Payment Obligation (as defined in the S&O Amendment) into a collection account subject to the control of MUFG Bank, Ltd., as sub-collateral agent (the “Collection Account”). Under the S&O Amendment, PHR agrees that it shall not permit the liquidity of PHR for any three consecutive business days to be less than $15,000,000 at any time, with at least $15,000,000 of such liquidity consisting of cash and cash equivalents. In addition, the S&O Amendment amends the Second A&R S&O Agreement to provide that Aron’s liens and security interests granted by PHR under the Second Amended and Restated Pledge and Security Agreement dated as of June 1, 2021 between Aron and PHR (the “Existing S&O Security Agreement”), shall be assigned to the Collateral Agent under the Third A&R Security Agreement discussed below.

The foregoing description of the S&O Amendment is qualified in its entirety by reference to the S&O Amendment, a copy of which is attached hereto as Exhibit 10.3, and incorporated by reference herein.

Collateral Documents

As a condition to the closing of the Uncommitted Credit Agreement and the S&O Amendment, on the Closing Date, PHR entered into the Third Amended and Restated Pledge and Security Agreement (the “Third A&R Security Agreement”) with Aron, the LC Facility Agent, and the Collateral Agent. The Third A&R Security Agreement amends and restates the Existing S&O Security Agreement to provide for, among other things, an assignment of Aron’s liens and security interests under the Existing S&O Security Agreement to the Collateral Agent for the benefit of Aron, the LC Facility Agent, the Lenders and the other secured parties. In addition, under the Third A&R Security Agreement, PHR grants a security interest in favor of the Collateral Agent to secure the obligations of PHR under the Uncommitted Credit Agreement and the Second A&R S&O Agreement, including, without limitation, a security interest in the following (collectively, the “LC Priority Collateral”): (i) certain crude oil inventory to which PHR has title, which has been purchased under an LC Eligible Refinery Procurement Contract (as defined in the S&O Amendment) and which has not yet passed the inlet flange of PHR’s crude storage tanks following its discharge, (ii) all J. Aron Payment Obligations as defined in the Uncommitted Credit Agreement, (iii) the Collection Account, (iv) all books, records, and other materials related to the foregoing, and (v) all proceeds, replacements, additions to, increases of, substitutions for, accessions of, and property necessary for the operation of the foregoing. The Third A&R Security Agreement designates PHR collateral as (i) priority collateral for Aron under the Second A&R S&O Agreement, consisting of all collateral other than the LC Priority Collateral (the “S&O Priority Collateral”), and (ii) LC Priority Collateral for the LC Facility Agent, Lenders and other secured parties under the Uncommitted Credit Agreement.

In connection with the entry into the Third A&R Security Agreement, PHR, Aron, the LC Facility Agent and the Collateral Agent entered into the Collateral Agency and Intermediation Rights Agreement (the “Collateral Agency Agreement”). The Collateral Agency Agreement establishes the rights and obligations of Aron and the LC Facility Agent and the relative priorities of the liens granted to the Collateral Agent under the Third A&R Security Agreement in favor of Aron and the LC Facility Agent. Pursuant to the Collateral Agency Agreement, the Collateral Agent is appointed as collateral agent for the secured parties, Aron is appointed sub-collateral agent for the S&O Priority Collateral and the LC Facility Agent is appointed sub-collateral agent for the LC Priority Collateral. Under the Collateral Agency Agreement, the LC Facility Agent, the Lenders and the other secured parties under the Uncommitted Credit Agreement specifically disclaim and decline any security interest in the S&O Priority Collateral.

The foregoing description of the Third A&R Security Agreement and the Collateral Agency Agreement is qualified in its entirety by reference to the Third A&R Security Agreement and the Collateral Agency Agreement, copies of which are attached hereto as Exhibit 10.4, and Exhibit 10.5, respectively, and incorporated by reference herein.

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

The information provided under Item 1.01 of this Current Report on Form 8-K regarding each of the transactions described therein (the “Financing Transactions”) is also responsive to Item 2.03 of this Current Report on Form 8-K and are hereby incorporated by reference into this Item 2.03.

Item 9.01 Financial Statements and Exhibits

10.1 Uncommitted Credit Agreement, dated as of July 26, 2023, by and among Par Hawaii Refining, LLC, as borrower, each of the lenders and letter of credit issuers listed on the signature pages thereof, MUFG Bank, Ltd., as administrative agent for the lenders, sub-collateral agent, as joint lead arranger and sole bookrunner, Macquarie Bank Limited, as joint lead arranger, and U.S. Bank Trust Company, National Association, solely in its capacity as collateral agent.

10.2 Parent Guaranty, dated as of July 26, 2023, made by Par Petroleum, LLC, as guarantor.

10.3 Amendment to Second Amended and Restated Supply and Offtake Agreement, dated as of July 26, 2023, by and among Par Hawaii Refining LLC, Par Petroleum, LLC, as guarantor, and J. Aron & Company LLC.

10.4 Third Amended and Restated Pledge and Security Agreement, dated as of July 26, 2023, by and among Par Hawaii Refining, LLC, J. Aron & Company LLC, MUFG Bank, Ltd., and U.S. Bank Trust Company, National Association, as collateral agent.

10.5 Collateral Agency and Intermediation Rights Agreement, dated as of July 26, 2023, by and among Par Hawaii Refining, LLC, MUFG Bank, Ltd., J. Aron & Company LLC, and U.S. Bank Trust Company, National Association, as collateral agent.

104 Cover Page Interactive Data File (embedded within the Inline XBRL document)

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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.

Date: July 31, 2023

PAR PACIFIC HOLDINGS, INC.
By:	/s/ Jeffrey R. Hollis
	Jeffrey R. Hollis
	Senior Vice President and General Counsel

5

EX-10.1

Exhibit 10.1

Execution Version

UNCOMMITTED CREDIT AGREEMENT

Dated as of July 26, 2023

among

PAR HAWAII REFINING, LLC,

as Borrower,

CERTAIN LENDERS LISTED ON THE SIGNATURE PAGES HEREOF,

as Lenders,

MUFG BANK, LTD.,

as Administrative Agent, Sub-Collateral Agent, Joint Lead Arranger and Sole Bookrunner, and

Macquarie Bank Limited,

as Joint Lead Arranger

and

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

as Collateral Agent

THIS AGREEMENT PROVIDES FOR AN UNCOMMITTED

SENIOR SECURED REVOLVING CREDIT LOAN AND LETTER OF CREDIT FACILITY

ALL REVOLVING CREDIT LOANS AND ISSUANCES OF LETTERS OF CREDIT

ARE DISCRETIONARY ON THE PART OF THE ADMINISTRATIVE AGENT

AND THE LENDERS IN THEIR SOLE AND ABSOLUTE DISCRETION

Table of Contents

Page

Article I. DEFINITIONS		1
1.01	Certain Defined Terms	1
1.02	Other Interpretive Provisions.	34
1.03	Accounting Principles.	35
1.04	[Reserved]	35
1.05	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 on the first date of its existence by the holders of its Equity Interests at such time.	35
1.06	Rates.  The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Alternate Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Alternate Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, SOFR, or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes.  The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Alternate Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower.  The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Alternate Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, SOFR, or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, 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.	35
Article II. THE CREDITS		36
2.01	Amounts and Terms of Uncommitted Facility	36
2.02	Loans and Borrowings.	37
2.03	Requests for Borrowings.  Subject to the provisions of Section 2.01 of this Agreement, including, without limitation, the conditions precedent (including the requirements of Section 5.02 hereof), Collateral requirements, limits and purposes provided for therein and elsewhere in this Agreement, the Borrower may request a Borrowing by notifying the Administrative Agent of such request by delivering to the Administrative Agent a Borrowing Request (or such other form as may be approved by the Administrative Agent) and signed by the Borrower (i) in the case of a Borrowing consisting of SOFR Loans, not later than 2:00 p.m., New York time, three U.S. Government Securities Business Days  before the date of the proposed Borrowing or (ii) in the case of a Borrowing consisting of ABR Loans or Cost of Funds Loans, not later than 2:00 p.m., New York time, one Business Day prior to the day of the proposed Borrowing.  Each Borrowing Request shall be made by electronic mail in portable document format (.PDF) or other facsimile, shall be signed by an Authorized Officer and shall specify the following information in compliance with Section 2.02:	37

Table of Contents

2.04	Notice to Lenders; Funding of Borrowings.	38
2.05	Evidence of Debt.	39
2.06	Repayment of Loans.  The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender its Pro Rata Share of each Borrowing on the earliest of (a) one (1) Business Day after the J. Aron Payment Obligation has been deposited into the J. Aron Crude Oil Provisional Payment Account, (b) the Credit Facility Termination Date, (c) the Cost of Funds Loan Maturity Date, if applicable, (d) 15 days after the making of such Borrowing if such Borrowing is in connection with a Delivered Crude Oil Purchase and (e) 30 days after the making of such Borrowing if such Borrowing is in connection with an FOB Crude Oil Purchase.  All payments for the account of the Lenders in respect of this Section 2.06 shall be applied to the Revolving Credit Loans on a pro rata basis based on such Lender’s Pro Rata Share. The Administrative Agent is hereby authorized to charge the Collection Accounts for each payment of principal, interest and bank fees as they become due hereunder.	40
2.07	Prepayment of Loans.	40
2.08	Interest.	40
2.09	Alternate Rate of Interest and Benchmark Replacement Settings.	41
2.10	Break Funding Payments.  In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b)  the failure (for a reason other than the failure of a Lender to make a Revolving Credit Loan) to borrow or prepay any SOFR Loan on the date specified in any notice delivered by the Borrower pursuant hereto or (c) the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 4.07, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.	43
2.11	Assignment of J. Aron Payment Obligations.	43
2.12	Letter of Credit Accounts.	43
2.13	Fees	44
2.14	Computation of Fees and Interest.	44
2.15	Payments by the Borrower.	44
2.16	Sharing of Payments	44
2.17	The Election of Approving Lenders to Continue Making Revolving Credit Loans and Issuing and Participating in Letters of Credit	45
2.18	Increases in Maximum Availability	46

Table of Contents

Article III. LETTERS OF CREDIT		46
3.01	Requests for Letters of Credit.	46
3.02	Amendment and Renewal of Letters of Credit.	48
3.03	Payments, Drawings and Reimbursements in Respect of Letters of Credit; Collateral Coverage.	49
3.04	Role of a Letter of Credit Issuing Bank.	51
3.05	Obligations Absolute	52
3.06	Cash Collateral Pledge.	52
3.07	Letter of Credit Fees.	53
3.08	Uniform Customs and Practice	54
3.09	Procedures for Reduction or Cancellation of Letters of Credit	54
Article IV. TAXES, COMPENSATION, SHARING OF PAYMENTS		55
4.01	Taxes.	55
4.02	Increased Costs and Reduced Return; Capital Adequacy.	58
4.03	Certificate of Administrative Agent	59
4.04	Pro Rata Treatment	59
4.05	Survival	59
4.06	Defaulting Lenders	59
4.07	Replacement of Lenders	61
Article V. CONDITIONS PRECEDENT		62
5.01	Conditions Precedent to the Effectiveness of this Agreement	62
5.02	Conditions Precedent to all Credit Extensions	65
5.03	Conditions Precedent to Increases in Maximum Availability. Any increase in the Maximum Availability pursuant to Section 2.18 of this Agreement is subject to the satisfaction of the following conditions precedent:	66
Article VI. REPRESENTATIONS AND WARRANTIES		67
6.01	Corporate Existence and Power	67
6.02	Corporate Authorization; No Contravention	68
6.03	Governmental Authorization	68
6.04	Binding Effect	68
6.05	Litigation	68
6.06	Default	68
6.07	ERISA Compliance.	69
6.08	Use of Proceeds, Margin Regulations	69
6.09	Title to Properties	69
6.10	Taxes	69
6.11	Financial Condition	70
6.12	Environmental Matters	70
6.13	Regulated Entities	70
6.14	Copyrights, Patents, Trademarks and Licenses	70
6.15	Subsidiaries	70
6.16	Insurance	71
6.17	No Material Adverse Change	71
6.18	Solvency	71
6.19	Full Disclosure	71
6.20	Anti-Terrorism.	71
6.21	Beneficial Ownership	72
6.22	Security Documents	72
6.23	Affected Financial Institution	73

Table of Contents

Article VII. AFFIRMATIVE COMPLIANCE GUIDELINES		73
7.01	Financial Statements	73
7.02	Certificates; Other Information	74
7.03	Notices	75
7.04	Preservation of Corporate Existence, Etc.	77
7.05	Maintenance of Property	77
7.06	Insurance	77
7.07	Payment of Obligations	77
7.08	Compliance with Laws	78
7.09	Compliance with ERISA	78
7.10	Inspection of Property and Books and Records	78
7.11	Environmental Laws	78
7.12	Use of Proceeds	78
7.13	Payments to Collection Accounts	78
7.14	Maintenance of Collection Accounts	78
7.15	Security for Obligations	79
7.16	USA PATRIOT Act Notice	79
7.17	Anti-Corruption Laws	79
7.18	Safe Delivery of Crude Oil	79
7.19	Lien and Judgment Searches	79
7.20	. The Borrower shall pay the reasonable cost of Lien and judgment searches in the State of Hawaii and the State of Delaware to be ordered by the Administrative Agent or its outside counsel at intervals that the Administrative Agent shall request, not more frequently than once every 60 days, until such time as the effective searched through date with respect to such Lien and judgment searches is after the Closing Date. In the event that for any reason such Lien and judgment searches reveal Liens on the Collateral that are not Permitted Collateral Liens or judgments against the Borrower or Parent Guarantor that had not been disclosed in writing to the Administrative Agent prior to the Closing Date and would otherwise result in an Event of Default pursuant to Section 9.01(k) or 9.01(l) had they arisen after the Closing Date, an Event of Default pursuant to such sections shall be deemed to have occurred hereunder.	79
7.21	Diverted Crude Oil Cargoes.  In the event that an FOB Crude Oil Purchase is unable to be delivered to the Crude Intake Point for any reason, the Borrower shall deliver the notice required by Section 7.03(j) and in such notice shall elect to (i) (a)deposit Cash Collateral for the Trade Letter of Credit related to such FOB Crude Oil Purchase in an amount equal to the sum of 105% of (x) the aggregate undrawn Face Amount of such Trade Letter of Credit and (y) the aggregate amount of any drawings under such Trade Letter of Credit which has not yet been reimbursed by the Borrower to the applicable Letter of Credit Issuing Bank with the Administrative Agent and (b) repay any outstanding Revolving Credit Loans (providing, for the avoidance of doubt, the required notice for prepayment pursuant to Section 2.07), in each case, within a period of time acceptable to the Administrative Agent in its Permitted Discretion, (ii) within 45 days of the delivery of the notice required by Section 7.03(j), identify the legal name of an Eligible Counterparty that will purchase such FOB Crude Oil Purchase within a timeframe reasonably acceptable to the Administrative Agent and detailing the terms of such purchase, which shall be acceptable to the Administrative Agent or (iii) within 45 days of the delivery of the notice required by Section 7.03(j), inform the Administrative Agent that it will be able to deliver such FOB Crude Oil Purchase to the Crude Intake Point within a period of time acceptable to the Administrative Agent in its Permitted Discretion.  The Administrative Agent shall provide a copy of the notice required by this Section 7.21 to the Lenders following receipt thereof.  After receiving such notice, such counterparty shall be deemed to be acceptable to the Required Lenders if the same is not objected to in writing by the Required Lenders within 3 Business Days following the receipt of notice thereof.	79

Table of Contents

7.22	Hedging.  The Borrower shall enter into and maintain, at all times that any L/C Related Aron Procurement Contract is outstanding, Hedging Arrangements with respect to such L/C Related Aron Procurement Contract consisting of intermonth time spread transactions, with a time spread based on the period between cargo pricing and the expected delivery month, with pricing based on the first nearby ICE Brent Futures for the contractual pricing period for such L/C Related Aron Procurement Contract and the ICE Brent calendar month swap for the relevant expected delivery month for such L/C Related Aron Procurement Contract and with pricing calculations made on the same basis as in such L/C Related Aron Procurement Contract.	80
Article VIII. NEGATIVE COMPLIANCE GUIDELINES		80
8.01	Limitation on Liens; Negative Pledges	80
8.02	Financial Compliance Guideline	80
8.03	Disposition of Assets	80
8.04	Consolidations and Mergers	81
8.05	Loans, Investments and Acquisitions	81
8.06	Limitation on Indebtedness	82
8.07	Transactions with Affiliates; Formation of Subsidiaries	84
8.08	Use of Proceeds	84
8.09	[Reserved]	84
8.10	Joint Ventures	84
8.11	Lease Obligations	84
8.12	Restricted Payments	84
8.13	ERISA	85
8.14	Change in Business	85
8.15	[Reserved]	85
8.16	Hedging Arrangements	85
8.17	Modification of J. Aron CP Documents and Other Documents	85
8.18	Accounting Changes	86
8.19	Anti-Corruption Laws	86
8.20	Compliance With Anti-Terrorism Laws and Economic Sanctions	86
Article IX. EVENTS OF DEFAULT		87
9.01	Events of Default	87
9.02	Remedies	89
9.03	Application of Funds	90
9.04	Rights Not Exclusive	91
9.05	Default Rate	91
Article X. THE AGENT		91
10.01	Appointment, Powers and Immunities	91
10.02	Reliance by Administrative Agent	92
10.03	Defaults	92
10.04	Rights as a Lender	93
10.05	Indemnification	93

Table of Contents

10.06	Non-Reliance on Administrative Agent, Collateral Agent, Sub-Collateral Agent and Other Lenders	93
10.07	Failure to Act	94
10.08	Resignation of Administrative Agent	94
10.09	Administrative Agent or Collateral Agent, Sub-Collateral Agent as Collateral Holder.	94
10.10	Erroneous Payments.	97
Article XI. MISCELLANEOUS		99
11.01	Amendments and Waivers; Instructions to Collateral Agent or Sub-Collateral Agent	99
11.02	Notices.	101
11.03	No Waiver: Cumulative Remedies	102
11.04	Costs and Expenses	102
11.05	Indemnity	102
11.06	Payments Set Aside	103
11.07	Successors and Assigns	103
11.08	Assignments; Participations, Etc.	103
11.09	Set-off	105
11.10	Automatic Debits of Fees	106
11.11	Counterparts	106
11.12	Severability	106
11.13	No Third Parties Benefited	106
11.14	Governing Law and Jurisdiction.	107
11.15	Waiver of Jury Trial and Punitive Damages.	107
11.16	Discretionary Facility	108
11.17	Entire Agreement	108
11.18	Confidentiality	108
11.19	Acknowledgement and Consent to Bail-In of Affected Financial Institutions Amendment and Restatement	109
11.20	Acknowledgement Regarding Any Supported QFCs	109

Schedules
Schedule 1.01	List of Maximum Credit Limits
Schedule 6.05	Litigation
Schedule 6.15	Subsidiaries
Schedule 6.22	Jurisdictions for Perfection
Schedule 8.06	Indebtedness
Schedule 11.02	Notices
Exhibits
Exhibit A	Form of Compliance Certificate
Exhibit B-1	Form of Letter of Credit Request
Exhibit B-2	Form of Borrowing Request
Exhibit C	Form of Parent Guaranty
Exhibit D	Form of Security Agreement
Exhibit E	Form of Notice of Declining Lender
Exhibit F	Form of Joinder
Exhibit G	Form of Notice of Uncommitted Facility Assignment
Exhibit H	[Reserved]
Exhibit I	Form of Transaction/Collateral Report
Exhibit J	Form of Revolving Credit Note

UNCOMMITTED CREDIT AGREEMENT

This UNCOMMITTED CREDIT AGREEMENT is entered into as of July 26, 2023, by and among PAR HAWAII REFINING, LLC (“PHR”), a limited liability company organized under the laws of the State of Hawaii (the “Borrower”), each of the Lenders listed on the signature pages hereof, MUFG BANK, LTD. (“MUFG”) as Administrative Agent for the Lenders, as Sub-Collateral Agent and as Joint Lead Arranger and Sole Bookrunner, Macquarie Bank Limited, as Joint Lead Arranger, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, solely in its capacity as the Collateral Agent.

WHEREAS, the Lenders and Letter of Credit Issuing Banks party hereto wish to provide an uncommitted revolving credit facility and letter of credit facility to the Borrower, all as set forth in this Agreement, and the Borrower desires that the Lenders and Letter of Credit Issuing Banks provide such financing.

NOW, THEREFORE, in consideration of the mutual agreements, provisions, covenants and compliance guidelines contained herein, the parties agree as follows:

ARTICLE I.

DEFINITIONS

1.01    Certain Defined Terms. The following terms have the following meanings:

“ABL Agreement” means that certain Asset-Based Revolving Credit Agreement dated as of April 26, 2023, by and among Parent Guarantor, Par Hawaii, LLC; Hermes Consolidated, LLC, Wyoming Pipeline Company LLC, Par Montana, LLC, and Par Rocky Mountain Midstream, LLC, as borrowers; Par Pacific Holdings, Inc.; Wells Fargo Bank, National Association, as administrative agent, the lenders that are parties thereto; and the issuing banks that are parties thereto, as amended, restated, modified or supplemented from time to time.

“ABR Borrowing” shall mean a Borrowing consisting of ABR Loans.

“ABR Loan” shall mean any Revolving Credit Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

“ABR Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

“Account Receivable Requirements” means, at the time of any determination thereof, a J. Aron Payment Obligation payable to the Borrower which the Administrative Agent in its Permitted Discretion (or with respect to clause (k), in its sole judgment) shall deem to have satisfied the following requirements:

(a)         Subject to Permitted Collateral Liens, the Borrower has lawful and absolute title to such J. Aron Payment Obligation;

(b)         Such J. Aron Payment Obligation is a valid, legally enforceable obligation of J. Aron, which is obligated under such J. Aron Payment Obligation for Crude Oil actually delivered to J. Aron in the ordinary course of the Borrower’s business;

(c)         Upon delivery of the Crude Oil that is the subject of said J. Aron Payment Obligation to the Crude Intake Point (whether owned and operated by the Borrower or by any third parties) following its discharge at the SPM (and without any determination by the Administrative Agent as to whether title to said Crude Oil has passed as contemplated by the terms of the Supply and Offtake Agreement or the applicable L/C Related Aron Procurement Contract or any subsequent actual or purported transfers of title to such Crude Oil) and satisfaction of the Issuance Condition, the obligation of J. Aron to pay the amount of such J. Aron Payment Obligation to the Borrower is absolute, irrevocable, and unconditional without recoupment, set-off, counterclaim, defense, or deduction of any kind;

(d)         Such J. Aron Payment Obligation shall have excluded therefrom any portion that is subject to any dispute, offset, netting arrangement, counterclaim or other claim or defense on the part of J. Aron or to any claim on the part of J. Aron denying liability under such J. Aron Payment Obligation;

(e)         Such J. Aron Payment Obligation is not evidenced by any chattel paper, promissory note or other instrument;

(f)         Such J. Aron Payment Obligation is subject to a perfected first priority security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Credit Documents and all applicable law, prior to the rights of, and enforceable as such against, any other Person, and such J. Aron Payment Obligation is not subject to any security interest or Lien in favor of any Person other than Permitted Collateral Liens;

(g)         Such J. Aron Payment Obligation shall have excluded any portion (i) which is not payable in Dollars in the U.S., (ii) with respect to which a currency valuation or conversion risk rests with the Borrower, and/or (iii) representing sales tax, excise tax or any other Taxes or collections on behalf of any Governmental Authority which the Borrower is obligated to distribute to such Governmental Authority;

(h)         Such J. Aron Payment Obligation complies with all applicable laws and regulations;

(i)         J. Aron is not then subject to any Insolvency Proceeding;

(j)         J. Aron is not then in default with respect to any material payment obligation owing to Borrower under the Supply and Offtake Agreement; and

(k)         The Administrative Agent, in its sole judgment, does not believe that collection of such J. Aron Payment Obligation is insecure or that such J. Aron Payment Obligation may not be paid by reason of J. Aron’s financial inability to pay.

“Acknowledgment Agreement” the Third Amended and Restated Acknowledgment Agreement dated as of the Closing Date, which amends and restates that certain Second Amended and Restated Acknowledgement Agreement dated as of April 26, 2023 among J. Aron, Merrill Lynch Commodities, Inc., the Borrower, U.S. Oil & Refining Co., McChord Pipeline Co., USOT WA, LLC, and Wells Fargo Bank, National Association, as Term Loan Agent and ABL Agent, as amended, restated, modified or supplemented from time to time.

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of, or control over, in excess of 50% of the voting securities, capital stock, partnership interests or equity of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary) provided that the Borrower or the Subsidiary is the surviving entity.

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“Additional Costs” has the meaning specified in Section 4.02 of this Agreement.

“Adjusted Daily Simple SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Daily Simple SOFR plus (b) the Daily Simple SOFR Adjustment; provided that if Adjusted Daily Simple SOFR as so determined shall ever be less than the Floor, then Adjusted Daily Simple SOFR shall be deemed to be the Floor.

“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation as calculated pursuant to clause (a) of the definition of “Term SOFR” plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.

“Administrative Agent” means MUFG in its capacity as Administrative Agent under this Agreement, together with its successors and assigns in such capacity.

“Administrative Agent’s Payment Office” means, with respect to the Administrative Agent, the address for payments set forth on Schedule 11.02 attached hereto and incorporated herein, or such other address as the Administrative Agent may from time to time specify.

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

“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise.

“Agent-Related Persons” means (a) MUFG, together with its Affiliates and the officers, directors, employees, agents and attorneys-in-fact of MUFG and its Affiliates; (b) the Collateral Agent, together with its Affiliates and the officers, directors, employees, agents and attorneys-in-fact of the Collateral Agent and its Affiliates; and (c) the Sub-Collateral Agent, together with its Affiliates and the officers, directors, employees, agents and attorneys-in-fact of the Sub-Collateral Agent and its Affiliates.

“Agreement” means this Uncommitted Credit Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Alternate Base Rate” shall mean the greatest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% per annum and (c) Adjusted Term SOFR for a one-month Interest Period plus 1.00% per annum. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Adjusted Term SOFR shall be effective from and including the date of such change in the Prime Rate, the Federal Funds Rate or Adjusted Term SOFR, respectively.

“Ancillary Costs” means, to the extent reasonably demonstrated by the Borrower by trade ticket, invoice or other supporting documentation, all freight, pipeline, transportation, storage, tariffs and other costs and expenses incurred as a result of the purchase, movement and storage of Crude Oil or Products (as defined in the Supply and Offtake Agreement as of the Closing Date) undertaken in connection with or required for purposes of FOB Crude Oil Purchases, including, ocean-going freight and other costs associated with waterborne movements, inspection costs and fees, wharfage, port and dock fees, vessel demurrage, lightering costs, ship’s agent fees, import charges, waterborne insurance premiums, fees and expenses, broker’s and agent’s fees, load or discharge port charges and fees, pipeline transportation costs, pipeline transfer and pumpover fees, pipeline throughput and scheduling charges (including any fees and charges resulting from changes in nominations undertaken to satisfy delivery requirements under this Agreement), pipeline and other common carrier tariffs, blending, tankage, linefill and throughput charges, pipeline demurrage, superfund and other comparable fees, processing fees (including fees for water or sediment removal or feedstock decontamination), merchandise processing costs and fees, any charges imposed by any Governmental Authority (including transfer taxes (but not taxes on the net income of Aron) and customs and other duties), user fees, fees and costs for any credit support provided to any third party with respect to any transactions contemplated by this Agreement and any pipeline compensation or reimbursement payments that are not timely paid by the pipeline to Aron.

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“Anti-Corruption Laws” has the meaning specified in Section 6.20(e) of this Agreement.

“Anti-Money Laundering Laws” means the Patriot Act, the Money Laundering Control Act of 1986, the Bank Secrecy Act, and the rules and regulations promulgated thereunder, and corresponding laws of the jurisdictions in which the Borrower or any of its Subsidiaries operates or in which the proceeds of any Letters of Credit will be used.

“Anti-Terrorism and Economic Sanctions Law” means any Requirement of Law related to money laundering, financing terrorism or economic sanctions, including embargoes, export restrictions, the ability to make or receive international payments, the freezing or blocking of assets of targeted Persons, the ability to engage in transactions with specified persons or countries, or the ability to take an ownership interest in assets of specified Persons or located in a specified country, including any Requirements of Law threatening to impose economic sanctions on any Person for engaging in proscribed behavior. Anti-Terrorism and Economic Sanctions Laws shall include, but not be limited to, the Patriot Act, The Currency and Foreign Transactions Reporting Act (31 U.S.C §§5311-5330 and 12 U.S.C §§1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C §1 et seq.) (“TWEA”), International Emergency Economic Powers Act (50 U.S.C §§1701-1707) and Executive Order 13224 (effective September 24, 2001) each as amended or supplemented from time to time, or any successor statute or other Requirement of Law with materially the same purpose(s).

“Applicable Margin” shall mean 2.50% per annum in the case of any SOFR Loan or Cost of Funds Loan and 1.50% per annum in the case of any ABR Loan.

“Approving Lenders” shall have the meaning specified in Section 2.17 of this Agreement.

“Aron Acceptance Email” shall have the meaning specified in the Supply and Offtake Agreement as of the date hereof and as hereafter amended but only by amendments to which the Required Lenders have consented.

“Aron Spread Transaction” shall have the meaning specified in the Supply and Offtake Agreement.

“Arrangers” means MUFG, in its capacity as joint lead arranger and sole bookrunner and Macquarie Bank Limited, in its capacity as joint lead arranger.

“Attorney Costs” means and includes all fees and out-of-pocket disbursements of any law firm or other external counsel.

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“Authorized Officer” means, with respect to any action by the Borrower, an officer of the Borrower authorized to take such action pursuant to resolutions of the members of the Borrower delivered to the Administrative Agent from time to time.

“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 pursuant to this Agreement, 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 2.09(e).

“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).

“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978, as amended (11 U. S.C. §§101, et seq.).

“Basel Accord” has the meaning specified in Section 4.02(d) of this Agreement.

“Benchmark” means, initially, the rate calculated pursuant to clause (a) of the definition of “Term SOFR”; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have 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 2.09(b).

“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:

(a)         Adjusted Daily Simple SOFR;

(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 U.S. Dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment, provided that if such Benchmark Replacement as so determined pursuant to this clause (b) would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.

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“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 U.S. Dollar-denominated syndicated credit facilities at such time.

“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 the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness 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.

For the avoidance of doubt, 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 the 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 Federal Reserve Board, 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

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(c)         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 not, or as of a specified future date will not 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 Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).

“Benchmark Unavailability Period” means, 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 Credit Document in accordance with Section 2.09 and (b) 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 2.09.

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

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

“BHC Act Affiliate” has the meaning specified in Section 11.20 of this Agreement.

“Borrowing” shall mean a group of Revolving Credit Loans of a single Type under the Uncommitted Facility and made on a single date to the Borrower and, in the case of (i) SOFR Loans, as to which a single Interest Period is in effect and (ii) Cost of Funds Loans, which have the same Cost of Funds Loan Maturity Date.

“Borrowing Request” shall mean a written request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit B-2.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are not authorized to be open or required to close in New York City; provided that, in relation to SOFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such SOFR Loan, any such day that is a U.S. Government Securities Business Day.

“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy or liquidity requirements of any Lender or of any corporation controlling a Lender.

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“Cash Collateral” means, at any time, all cash denominated in Dollars held in a Collection Account, which is not subject to, or encumbered by, any Lien except Permitted Collateral Liens.

“Change of Control” – means, any event or series of events by which:

(a) with respect to the Borrower or the Parent Guarantor:

(i) The Parent Guarantor at any time ceases to own 100% of the Equity Interests of the Borrower;

(ii) Par Pacific at any time ceases to own 100% of the Equity Interests of the Parent Guarantor;

(iii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding the Permitted Holders or 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) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, 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, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right”)), directly or indirectly, of 30% or more of the Equity Interests of Par Pacific entitled to vote for members of the board of directors or equivalent governing body of Par Pacific 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);

(iv) Par Pacific consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into Par Pacific, in any such event pursuant to a transaction in which any of the outstanding voting stock of Par Pacific or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the voting stock of Par Pacific outstanding immediately prior to such transaction is converted into or exchanged for voting stock of the surviving or transferee Person constituting a majority of the outstanding shares of such voting stock of such surviving or transferee Person (immediately after giving effect to such issuance) or (B) immediately after such transaction, no “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) (other than a holding company created to hold Par Pacific or any other direct or indirect parent of the Borrower; provided that holders of the voting stock of Par Pacific prior to such creation continue to hold at least a majority of the voting stock of such holding company), becomes, directly or indirectly, the beneficial owner of more than 50% of the voting power of the voting stock of the surviving or transferee Person;

(v) the adoption of a plan relating to the liquidation or dissolution of Par Pacific, the Parent Guarantor, or the Borrower; or

(vi) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of, the power to exercise, directly or indirectly, a controlling influence over the management or policies of Par Pacific, or control over the equity securities of Par Pacific entitled to vote for members of the board of directors or equivalent governing body of Par Pacific 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) representing 30% or more of the combined voting power of such securities and such contract or arrangement shall have continued in effect for 30 consecutive days.

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“Closing Date” means the date on which all conditions precedent set forth in Section 5.01 of this Agreement are satisfied or waived by the Administrative Agent and all the Lenders, which is deemed to be July 26, 2023.

“Code” means the Internal Revenue Code of 1986, and regulations promulgated thereunder.

“Collateral” means the following assets of the Borrower:

(a)    All Crude Oil inventory on an ocean-going vessel evidenced by negotiable bills of lading, a full set of which has been issued to the order of, or properly endorsed to, the Collateral Agent or Sub-Collateral Agent (and all cash proceeds thereof), and for the purchase of which a Letter of Credit was issued or Revolving Credit Loan was made;

(b)    All Crude Oil inventory (and all cash proceeds thereof) (i) to which the Borrower has title; (ii) which has been purchased pursuant to the terms of an L/C Eligible Refinery Procurement Contract and (iii) which has not yet passed the Crude Intake Point (whether owned and operated by the Borrower or by any third parties) for the purposes of receiving delivery of such Crude Oil inventory following its discharge at the SPM;

(c)    All J. Aron Payment Obligations;

(d)    All amounts deposited from time to into all Collection Accounts;

(e)    All policies of insurance (whether or not required by the Administrative Agent) covering any property referred of the Borrower described in clauses (a) through (f) of this definition but excluding any policies of insurance relating to business interruption;

(f)    All books, records, supplies, customer lists and other materials in any way related to any property described herein including, without limitation, computer software, computer files and all licenses and other rights necessary to own, operate and access the same; and

(g)    All proceeds, replacements, additions to, increases of, substitutions for, accessions of, and property necessary for the operation of any of the property described herein, including, without limitation, insurance payable as a result of loss or damage to such property and any proceeds thereunder, refunds of unearned premiums of any such insurance policy and claims against third parties.

“Collateral Agency Agreement” means that certain Collateral Agency and Intermediation Rights Agreement dated as of even date herewith by and among the Borrower, the Administrative Agent for the benefit of the Secured Parties, J. Aron and the Collateral Agent, as amended, supplemented or otherwise revised from time to time in accordance with the terms hereof and thereof.

“Collateral Agent” means U.S. Bank Trust Company, National Association in its capacity as Collateral Agent under this Agreement, the Collateral Agency Agreement and the other Credit Documents, together with its successors and assigns in such capacity.

“Collateral Coverage” means, with respect to (a) any Trade Letter of Credit from time to time, an amount in cash or other collateral acceptable to the Administrative Agent in its discretion, not to exceed (i) the difference between (x) the full Face Amount of such Trade Letter of Credit, and (y) the J. Aron Payment Obligation in respect of the applicable L/C Related Aron Procurement Contract for the same Crude Oil in connection with which said Trade Letter of Credit was issued plus (ii) in the case of any Trade Letter of Credit issued for an FOB Crude Oil Purchase, 15% of the provisional commercial invoice issued with respect to such FOB Crude Oil Purchase for which said Trade Letter of Credit was issued (such amounts in this clause (ii), the “FOB Trade LC Additional Cash Collateral”), and (b) any Performance Letter of Credit from time to time, an amount equal to the full Face Amount of such Performance Letter of Credit.

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“Collection Account” means any deposit account, including the J. Aron Crude Oil Provisional Payment Account and the FOB Trade Collateral Account, in the name of the Borrower held by MUFG Bank, Ltd. in its capacity as depository bank and in which a first priority security interest and certain other rights have been granted by the Borrower to the Sub-Collateral Agent pursuant to the terms of (a) the Security Agreement and (b) the Collection Account DACA.

“Collection Account DACA” means, with respect to the Collection Accounts, the deposit account control agreement relating thereto providing for, among other things, (x) the Sub-Collateral Agent’s “control” (as such term is defined in the applicable Uniform Commercial Code) over the Collection Accounts and perfection of the Sub-Collateral Agent’s first priority security interest therein for the benefit of the Secured Parties and J. Aron and (y) blocking the access of the Borrower to funds deposited from time to time in said Collection Account as of the effective date of such deposit account control agreement.

“Collection Account Deposit Date” means, with respect to any deposit of cash into a Collection Account by (a) the Borrower or (b) J. Aron as required under a Payment Obligation Confirmation, (x) in the case of Trade Letters of Credit issued for Delivered Crude Oil Purchases and FOB Crude Oil Purchases which have been completely delivered to the Crude Intake Point, in each case no later than 6:00 p.m. New York time on the second Business Day after such delivery has been completed, provided, that the Borrower will endeavor, on a best efforts basis, to arrange to have such deposit made on the day that is at least one Business Day prior to the applicable PHR Crude Oil Contract Payment Date, and (y) in the case of Trade Letters of Credit issued for all other FOB Crude Oil Purchases, no later than one Business Day after delivery of such FOB Crude Oil Purchase to the Crude Intake Point; and provided, further, that the foregoing shall not require or be deemed to require J. Aron make payment of a Payment Obligation and deposit the proceeds thereof into a Collection Account at any date or time earlier than that which is required under the Supply and Offtake Agreement.

“Commodities Contract” means, regardless of the definition of “commodity contract” or “commodities contract” under applicable law, a contract for the purchase, sale, storage, transfer, or exchange of commodities, including any physical or financial transaction; or any futures, forward, exchange, swap or other derivatives contract or option or cap, collar, or floor transactions, or similar arrangements or similar transactions (i) in respect of commodities or (ii) relating to the purchase, sale, storage, transfer, or exchange of commodities that may have a fixed price, a floating price and floating differential, or other pricing basis.

“Compliance Certificate” means a certificate substantially in the form of Exhibit A, executed by a Responsible Officer of the Borrower.

“Company Proposal Email” shall have the meaning specified in the Supply and Offtake Agreement as of the date hereof and as hereafter amended but only by amendments to which the Administrative Agent has consented.

“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities 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, the applicability and length of lookback periods, the applicability of Section 2.10 and other technical, administrative or operational matters) that the Administrative Agent decides 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 decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).

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“Contingent Obligation” means, as to any Person, any direct or indirect liability of that Person, whether or not contingent, with or without recourse, (a) any Guaranty Obligation; (b) with respect to any Surety Instrument (other than any Letter of Credit) issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments; (c) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services are ever performed or tendered, or (d) in respect of any Hedging Arrangement.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.

“Conversion to Approving Lenders Credit Extension Date” shall have the meaning specified in Section 2.17 of this Agreement.

“Corporate Overhead Expenses” has the meaning specified in Section 8.07 of this Agreement.

“Cost of Funds Borrowing” means, as to any Borrowing, the Cost of Funds Loans comprising such Borrowing.

“Cost of Funds Loan” means a Revolving Credit Loan that bears interest at a rate based on the Cost of Funds Rate.

“Cost of Funds Loan Maturity Date” means, as to any Cost of Funds Borrowing, the date specified as the Cost of Funds Loan Maturity Date in the Borrowing Request for such Borrowing; provided that the Cost of Funds Maturity Date shall in no case be more than 30 days after the date requested for such Borrowing in the Borrowing Request.

“Cost of Funds Rate” means for any day, the rate per annum that is determined by MUFG, in its sole discretion, to be its estimated cost of funds for funding or maintaining Revolving Credit Loans on such day, which determination may include, without limitation, such factors as MUFG shall reasonably deem appropriate from time-to-time, including, without limitation, market, regulatory and liquidity conditions; provided that such rate is not necessarily the cost to MUFG of funding or maintaining a Revolving Credit Loan on such day, and may exceed MUFG’s actual cost of borrowing in the interbank market or other markets in which MUFG may obtain funds from time-to-time for amounts and time periods similar to the amount and time period of such Revolving Credit Loan. Notwithstanding the foregoing, if the Cost of Funds Rate shall at any time be less than zero, such rate shall be deemed to be zero at such time for the purposes of this Agreement.

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“Covered Entity” has the meaning specified in Section 11.20 of this Agreement.

“Covered Party” has the meaning specified in Section 11.20 of this Agreement.

“Credit and Risk Management Policy” means the written credit and risk management policies of the Parent Guarantor applicable to the Borrower as of the Closing Date.

“Credit Documents” mean, collectively, this Agreement, the Fee Letters, the Collateral Agency Agreement, the Security Documents, the Parent Guaranty, the UCC-1 financing statements, the L/C-Related Documents, and all other documents executed in connection therewith, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof.

“Credit Extension” means each of the following: (a) a Borrowing and (b) an Issuance or amendment, as applicable, of a Letter of Credit.

“Credit Facility Termination Date” means the earliest to occur of:

(a) the date that is the 364 days after the Closing Date; or

(b) the date that the Obligations are accelerated pursuant to Section 9.02 of this Agreement and all Maximum Credit Limits of all Lenders are terminated.

“Crude Intake Point” means the inlet flange of the Crude Storage Tanks.

“Crude Oil” means crude oil of any type or grade, excluding any Sludge.

“Crude Oil Supplier” means any seller of Crude Oil to the Borrower reasonably acceptable to the Administrative Agent other than J. Aron or an Affiliate of the Borrower, pursuant to an L/C Eligible Refinery Procurement Contract which is supported by a Letter of Credit issued hereunder.

“Crude Storage Tanks” means any of the tanks that store Crude Oil and are owned by the Borrower which are listed on Schedule E of the Supply and Offtake Agreement.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

“Daily Simple SOFR Adjustment” means a percentage equal to 0.10 % per annum.

“Declining Lender” shall have the meaning specified in Section 2.17 of this Agreement.

“Default” means (a) any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default; or (b) any event or circumstance whereby J. Aron has provided written notice to the Borrower that it intends to accelerate any Indebtedness or payment obligations under the Supply and Offtake Agreement and any applicable grace period or cure period contained therein as in effect on the Closing Date or as amended, restated, supplemented, or otherwise modified thereafter, in accordance with the Credit Documents, shall have expired (provided, that a customary reservation of rights that does not assert a current intent to exercise remedies shall not be deemed to be a notice of the intention to exercise rights and remedies for purposes hereof).

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“Default Rate” means, in respect of any obligation of the Borrower with respect to any Letter of Credit or any other amount under this Agreement (including, without limitation, any fee due hereunder), or any other Credit Document that is not paid when due (whether at stated maturity, by acceleration, by optional or mandatory prepayment or otherwise), a rate per annum during the period from and including the due date to but excluding the date on which such amount is paid in full equal to (i) in the case of principal of any Revolving Credit Loan, 2.00% plus the rate otherwise applicable to such Revolving Credit Loan as provided in the Section 2.08(c) or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR Loans in Section 2.08(a).

“Default Right” has the meaning specified in Section 11.20 of this Agreement.

“Defaulting Lender” at any time, any Lender that (a) within one (1) Business Day of when due, has failed to fund any portion of its Revolving Credit Loans or of any participations in Letters of Credit, to the Borrower, the Administrative Agent, any Lender or any Letter of Credit Issuing Bank required pursuant to the terms of this Agreement to be funded by such Lender, or has notified the Administrative Agent that it does not intend to do so, unless the subject of a good faith dispute; (b) notified the Borrower, the Administrative Agent, any Letter of Credit Issuing Bank, or any Lender in writing that it does not intend to comply with any of its obligations with respect to Revolving Credit Loans and Letters of Credit under this Agreement or has made a public statement to the effect that it does not intend to comply with its obligations with respect to Revolving Credit Loans and Letters of Credit under this Agreement or under other agreements in which it commits to extend credit; (c) failed, within one (1) Business Day after request by the Administrative Agent or the Borrower (made with the good faith belief that such Lender may not honor its obligations hereunder), to confirm that it will comply with the terms of this Agreement relating to its obligations to fund Revolving Credit Loans and participations in any Letter of Credit; (d) otherwise failed to pay over to the Administrative Agent, any Letter of Credit Issuing Bank, 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 the subject of a good faith dispute; (e)(i) has become or is insolvent or has a parent company that has become or is insolvent or (ii) has become the subject of a bankruptcy or Insolvency Proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or Insolvency Proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action; provided that, a Lender shall not become a Defaulting Lender solely as a result of (x) the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (y) if such Lender or its direct or indirect parent company is solvent, the appointment of a receiver, conservator, trustee or custodian or other similar official by a Governmental Authority under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if Requirements of Law require that such appointment not be disclosed, in each case so long as such ownership interest or appointment, as applicable, does not result in or provide such Lender 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 permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

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“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.

“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

“Delivered Crude Oil Purchase” means a transaction involving the sale of Crude Oil pursuant to which title to the Crude Oil being sold transfers to the Borrower at the time the Crude Oil passes through the SPM Delivery Point.

“Discharge of Secured Obligations” has the meaning specified in the Collateral Agency Agreement.

“Dollars”, “dollars” and “$” each mean lawful money of the United States.

“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.

“Effective Amount” means (a) with respect to Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing), as the case may be, occurring on such date; or (b) respect to any outstanding L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any Issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

“Eligible Assignee” means (a) one of the existing Lenders hereunder, (b) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000, (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States, (d) a Person that is an Affiliate of a Lender; or (e) a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and having total assets in excess of $100,000,000.

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“Eligible Counterparty” means any Person engaged in the business of the purchase and/or storage of Crude Oil (i) whose long-term senior unsecured debt rating is BBB-/Baa3 by S&P or Moody’s (or their equivalent) or higher (“Investment Grade”), (ii) backed by a letter of credit issued by an Investment Grade bank or other financial institution or guaranteed by an Investment Grade Person, (iii) who is unrated but determined by the Borrower’s internal risk management assessment in its good faith business judgement to be the functional equivalent of Investment Grade as set forth in a certificate in form and substance reasonably acceptable to the Administrative Agent or (iv) acceptable to the Required Lenders pursuant to Section 7.21.

“Environmental Claims” means all claims, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release or injury to the environment.

“Environmental Laws” means all federal, state or local laws (including the common law), statutes, regulations, rules, ordinances and codes, together with all administrative orders, decrees, directives, licenses, concessions, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters.

“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, and regulations promulgated thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower or the Parent Guarantor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower, the Parent Guarantor 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 which is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower, the Parent Guarantor or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which might reasonably be expected to constitute 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) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (g) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower, the Parent Guarantor or any ERISA Affiliate.

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“Erroneous Payment” has the meaning specified in Section 10.10(a) of this Agreement.

“Erroneous Payment Subrogation Rights” has the meaning specified in Section 10.10(d) of this Agreement.

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

“Event of Default” has the meaning specified in Section 9.01 of this Agreement.

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

“Excluded Taxes” means, any of the following Taxes imposed on or with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any of the Obligations 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 Lender, any U.S. federal withholding tax that is imposed on amounts payable to such Lender at the time such Lender become a party to this Agreement (or designates a new lending office, other than designations pursuant to Section 4.01(f)), except in each case to the extent that, pursuant to Section 4.01, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office (c) Taxes attributable to such recipient’s failure to comply with Section 4.01 of this Agreement, and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Expiration Date” has the meaning given in the Supply and Offtake Agreement as in effect on the Closing Date and as otherwise amended, restated, supplemented, or modified from time to time in accordance with the terms and conditions set forth herein.

“Face Amount” means, with respect to any Letter of Credit, the maximum aggregate amount the applicable Letter of Credit Issuing Bank may be obligated to pay to the beneficiary pursuant to the terms of such Letter of Credit, after giving effect to any automatic reduction clause applicable thereto, and which, with respect to any Letter of Credit issued in a face amount with a tolerance of plus or minus a percentage of the face amount, shall equal the sum of such face amount plus an amount equal to the maximum applicable percentage tolerance of such face amount so as to cover the maximum amount that could be drawn thereunder.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement 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 Rate” shall mean, for any day, the weighted average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upward, if necessary, to the next 1/100 of 1%) of the quotations for the day of such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.

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“Fee Letters” means (a) that certain fee letter dated as of October 28, 2022, executed by the Borrower, the Parent Guarantor, and the Administrative Agent; (b) the schedule of fees for services letter dated December 6, 2022, executed by the Borrower and the Collateral Agent; and (c) any other fee letter agreement executed by the Borrower and the Administrative Agent, the Collateral Agent, or any Lender in connection with this Agreement, in each case as any of the foregoing may be amended, restated, supplemented, or otherwise modified from time to time.

“FERC” means the U.S. Federal Energy Regulatory Commission.

“FERC Contract Collateral” means all contracts of the Borrower and the books and records related thereto, in each case, that constitute Collateral, that, by their nature, require a filing with the FERC (whether such filing is made for notice purposes only or is intended to receive acceptance by FERC of such filing or approval by FERC of the requests set forth therein) in order for the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Lender or Letter of Credit Issuing Bank to be able to exercise the remedies under the Credit Documents.

“FinanceCo” means Par Petroleum Finance Corp., a Delaware corporation.

“Floor” means 0.00% per annum.

“FOB Crude Oil Purchase” means a transaction involving the sale of Crude Oil between a Crude Oil Supplier, as seller, and the Borrower, as purchaser, pursuant to which the risk of loss of the Crude Oil being sold transfers to the Borrower at the time the Crude Oil passes through the last connecting flange into the vessel transporting said Crude Oil.

“FOB Trade Collateral Account” means the blocked, interest bearing deposit account into which any FOB Trade LC Additional Cash Collateral required to be deposited by the Borrower shall be deposited. The Borrower shall retain the sole responsibility for the selection of the investments of the FOB Trade LC Additional Cash Collateral and bear all risk from any such investments. In no event will the Administrative Agent be deemed an investment manager or adviser in respect of any selection of such investments and the Administrative Agent shall bear no responsibility for such investments or the selection thereof.

“Foreign Corrupt Practices Act” means the United States Foreign Corrupt Practices Act of 1977, (15 U.S.C §78dd-1, et seq.) as amended or supplemented from time to time, or any successor statute or other Requirement of Law with materially the same purpose.

“FRB” means the Board of Governors of the Federal Reserve System, and any Governmental Authority succeeding to any of its principal functions.

“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.

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“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, including any applicable supranational bodies (such as the European Union or the European Central Bank).

“Guaranty Obligation” means, as to any Person, any direct or indirect liability of that Person, whether or not contingent, with or without recourse, with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary obligor”) including any obligation of that Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Guaranty Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Guaranty Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto.

“Hedge Termination Value” in respect of any one or more Hedging Arrangements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Arrangements, (a) for any date on or after the date such Hedging Arrangements 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 Hedging Arrangements, as determined by the counterparties to such Hedging Arrangements.

“Hedging Arrangement” means a hedge, call, swap (including Swap Contracts), collar, floor, cap, option, forward sale or purchase or other contract or similar arrangement (including any obligations to purchase or sell any commodity or security at a future date for a specific price) which is entered into to reduce or eliminate or otherwise protect against the risk of fluctuations in prices or rates, including interest rates, foreign exchange rates, commodity prices and securities prices. For purposes hereof, the Supply and Offtake Agreement (except for any J. Aron Hedge Agreement, Aron Spread Transaction or Third Party Spread Transaction entered in connection therewith) and the transactions contemplated thereby do not constitute a Hedging Arrangement.

“Indebtedness” of any Person means, without duplication: (a) all indebtedness for borrowed money (including any issuance by such Person of preferred stock or other securities with the characteristics generally attributable to preferred stock); (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business on ordinary terms); (c) all non-contingent reimbursement or payment obligations with respect to Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property); (f) all obligations with respect to capital leases or finance leases; (g) all obligations with respect to Hedging Arrangements; (h) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position or covenants of others or to purchase the Indebtedness or property of others; (i) any Indebtedness of a partnership for which such Person is liable either by agreement, by operation of law or by applicable law but only to the extent of such liability; (j) all indebtedness referred to in clauses (a) through (i) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness; and (k) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (j) above. For purposes of determining the “principal amount” of the obligations of the Parent Guarantor, the Borrower or any of their Subsidiaries in respect of any Hedging Arrangement at any time shall be the Hedge Termination Value.

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“Indemnified Liabilities” has the meaning specified in Section 11.05 of this Agreement.

“Indemnified Person” has the meaning specified in Section 11.05 of this Agreement.

“Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document.

“Information” has the meaning specified in Section 11.18 of this Agreement.

“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

“Interest Payment Date” shall mean (a) with respect to any SOFR Loan based on Adjusted Term SOFR, the last day of the Interest Period applicable to the Borrowing of which such SOFR Loan is a part, (b) with respect to any ABR Loan, the last Business Day of each calendar month (commencing with the calendar month ending July 30, 2023), (c) with respect to any Cost of Funds Loan, the Cost of Funds Loan Maturity Date specified in the Borrowing Request for such Cost of Funds Loan pursuant to Section 2.03 and (d) in each case, the Credit Facility Termination Date.

“Interest Period” means, as to any Term SOFR Borrowing, the period commencing on the date of such Revolving Credit Loan or Revolving Credit Borrowing and ending on the numerically corresponding day in the calendar month that is one month thereafter (subject to the availability thereof), as specified in a Borrowing Request; provided that (i) 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, (ii) 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, (iii) no Interest Period shall extend beyond the Credit Facility Termination Date and (iv) no tenor that has been removed from this definition pursuant to Section 2.09(e) shall be available for specification in such Borrowing Request. For purposes hereof, the date of a Revolving Credit Loan or Revolving Credit Borrowing initially shall be the date on which such Revolving Credit Loan or Revolving Credit Borrowing is made.

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“Inventory Requirements” means, at the time of any determination thereof, Crude Oil inventory of the Borrower meeting the requirements of clause (a) or (b) of the definition of “Collateral” set forth in Section 1.01 hereunder and to which the Administrative Agent in its Permitted Discretion shall deem to have satisfied the following additional requirements:

(a)         The inventory is owned by the Borrower free and clear of all Liens, except Permitted Collateral Liens;

(b)         The inventory has not been identified for deliveries with the result that a buyer would have rights to the inventory that would be superior to the Collateral Agent’s security interest, nor shall such inventory have become the subject of a customer’s ownership or Lien;

(c)         The inventory is subject to a perfected first priority security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Credit Documents;

(d)         The inventory is saleable in the ordinary course of the Borrower’s business without any notice to, or consent of, any Governmental Authority and has not been determined by the Administrative Agent to be unmarketable; and

(e)         The inventory does not consist of bill-and-hold goods (i.e., inventory which has been sold by the Borrower to any Person other than J. Aron but which is being held by the Borrower pending delivery).

“Investment” has the meaning specified in Section 8.05 of this Agreement.

“Investment Grade” has the meaning specified in the definition of “Eligible Counterparty”

“Issuance Condition” means, with respect to a J. Aron Payment Obligation, that a Letter of Credit has been issued under this Agreement and the available amount of such Letter of Credit at the time of issuance is no less than the amount of the J. Aron Payment Obligation applicable to the Crude Oil the purchase of which is being supported by such Letter of Credit (plus, in the case of Letters of Credit issued to support FOB Crude Oil Purchases, Ancillary Costs).

“Issue” means, with respect to any Letter of Credit, to issue or to extend the expiry of, or to renew or increase the amount of, such Letter of Credit; and the terms “Issued” “Issuing” and “Issuance” have corresponding meanings.

“J. Aron” means J. Aron & Company LLC (“JANY LLC”), f/k/a J. Aron & Company, a limited liability company organized under the laws of the State of New York or any other subsidiary of The Goldman Sachs Group, Inc. that is a successor to JANY LLC as party to the Supply and Offtake Agreement and the other documents related thereto (whether by assignment, operation of law or otherwise).

“J. Aron Collateral” means all Collateral as defined in the Security Agreement.

“J. Aron CP Documentation” means, collectively, (i) the Supply and Offtake Agreement, as amended on or before the Closing Date as may be necessary or appropriate to permit the transactions contemplated by the Credit Documents to the reasonable satisfaction of the Administrative Agent and its counsel, and (ii) the Collateral Agency Agreement.

“J. Aron Crude Oil Provisional Payment Account” means the blocked, non-interest bearing deposit account into which any deposits made by J. Aron or the Borrower with respect to the J. Aron Payment Obligation shall be deposited.

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“J. Aron Hedge Agreements” means any Related Hedges as such term is defined in the Supply and Offtake Agreement as in effect on the Closing Date and as otherwise amended, restated, supplemented, or modified from time to time in accordance with the terms and conditions set forth herein.

“J. Aron Payment Obligation” means each account receivable arising from the sale of Crude Oil by the Borrower to J. Aron pursuant to an L/C Related Aron Procurement Contract and representing the obligation by J. Aron to pay to the Borrower the “J. Aron Payment Obligation” specified in and due thereunder but not any other amount subsequently due thereunder; provided that the term “J. Aron Payment Obligation” used in an L/C Related Aron Procurement Contract shall be defined as provided in the Supply and Offtake Agreement as of the date hereof and as amended thereafter but only by such amendments as are consented to by the Administrative Agent and the Required Lenders.

“J. Aron Security Agreement” means that certain Second Amended and Restated Pledge and Security Agreement dated as of June 1, 2021 between the Borrower and J. Aron.

“Joint Venture” means a corporation, partnership, joint venture or other similar legal arrangement (whether created by contract or conducted through a separate legal entity) now or hereafter formed by the Borrower or any of its Subsidiaries with another Person in order to conduct a common venture or enterprise with such Person.

“L/C Amendment Application” means an application form for an amendment of outstanding Trade Letters of Credit or Performance Letters of Credit as shall at any time be in use by the Administrative Agent or a Letter of Credit Issuing Bank, as applicable.

“L/C Eligible Refinery Procurement Contract” means an “LC Eligible Refinery Procurement Contract” between a Crude Oil Supplier, as seller, and the Borrower, as purchaser, as such term is defined in the Supply and Offtake Agreement as in effect on the Closing Date and as otherwise amended, restated, supplemented, or modified from time to time in accordance with the terms and conditions set forth herein.

“L/C Issuance Date” means the later of the date of initial Issuance of a Letter of Credit under this Agreement, or, in the case of any amendment or renewal of such Letter of Credit hereunder, the most recent effective date of any such amendment or renewal.

“L/C Obligations” means at any time the sum of (a) the aggregate undrawn Face Amount of all Letters of Credit then outstanding, plus (b) the amount of all unreimbursed drawings under all Letters of Credit.

“L/C Related Aron Procurement Contract” means an “LC Related Aron Procurement Contract” between the Borrower, as seller, and J. Aron, as purchaser, as such term is defined in the Supply and Offtake Agreement as in effect on the Closing Date and as otherwise amended, restated, supplemented, or modified from time to time in accordance with the terms and conditions set forth herein.

“L/C-Related Documents” means the Letters of Credit, the Letter of Credit Requests, the L/C Amendment Applications and any other document relating to any Letter of Credit, including any Letter of Credit Issuing Bank’s standard form documents for letter of credit issuances.

“Lenders” means (a) on the date hereof, the Lenders listed on the signature pages hereof and (b) thereafter, the Lenders from time to time a party hereto after giving effect to any assignments thereof permitted by Section 11.08(a) of this Agreement or, as a result of an increase in the Maximum Availability pursuant to Section 2.18 of this Agreement, any Person who becomes a Lender by executing a joinder agreement in accordance with Section 5.03(a) of this Agreement.

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“Lender’s Aggregate Accommodations” means, for each Lender, the sum of the amount of the outstanding principal amount of such Lender’s Revolving Credit Loans after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing), as the case may be, occurring on such date and the amount of such Lender’s Pro Rata Share outstanding L/C Obligations on such date after giving effect to any Issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions, in the maximum amount available for drawing under Letters of Credit taking effect on such date.

“Letter of Credit” means any Trade Letters of Credit or Performance Letters of Credit Issued hereunder.

“Letter of Credit Issuing Bank” means, with respect to each Letter of Credit, each of MUFG, Macquarie Bank Limited and such other Lenders mutually acceptable to the Borrower and the Administrative Agent and appointed as such hereunder, in each case as an issuer of one or more Letters of Credit hereunder, together with their respective successors and assigns in such capacity.

“Letter of Credit Issuing Bank-Related Persons” means each Letter of Credit Issuing Bank, together with their respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of each Letter of Credit Issuing Bank and its Affiliates.

“Letter of Credit Payment Confirmation” has the meaning specified in Section 3.09 of this Agreement.

“Letter of Credit Related Payment” means any payment of funds on deposit in a Collection Account from time to time initiated by the Borrower, as authorized by the Sub-Collateral Agent as provided for in Section 3.03(a): (a) to a Crude Oil Supplier representing the purchase price owed in respect of certain Crude Oil inventory sold by said Crude Oil Supplier to the Borrower under an L/C Eligible Refinery Procurement Contract, or (b) to the applicable Letter of Credit Issuing Bank to reimburse it for (i) its having made payment to a Crude Oil Supplier representing the purchase price owed in respect of certain Crude Oil inventory sold by said Crude Oil Supplier to the Borrower under an L/C Eligible Refinery Procurement Contract; or (ii) its having paid the beneficiary in respect of any conforming drawing under the related Letter of Credit. In connection with any such payment made pursuant to clauses (a) or (b)(i) hereof, the provisions of Section 3.09 regarding a Letter of Credit Payment Confirmation shall be applicable.

“Letter of Credit Request” means a request by the Borrower for the Issuance of a Letter of Credit in the form of Exhibit B hereto together with, if applicable, any completed application for the issuance of Trade Letters of Credit and Performance Letters of Credit in form used by any Letter of Credit Issuing Bank.

“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a capital lease, any financing lease having substantially the same economic effect as any of the foregoing, or the filing of any financing statement naming the owner of the asset to which such lien relates as debtor, under the Uniform Commercial Code or any comparable law).

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“Liquidity” has the meaning given in the Supply and Offtake Agreement as in effect on the date hereof and as otherwise amended, restated, supplemented, or modified from time to time in accordance with the terms and conditions set forth herein.

“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the FRB.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the business, assets, properties, operations or financial condition of (i) the Borrower, (ii) the Parent Guarantor, (iii) the Parent Guarantor and its Subsidiaries taken as a whole, or (iv) J. Aron; (b) a material impairment of the ability of (i) the Borrower or the Parent Guarantor to perform their respective material obligations under any Credit Document to which they are a party, or (ii) of J. Aron to perform any of its obligations under (A) the J. Aron CP Documentation or (B) any Payment Obligation Confirmation; (c) a material adverse effect upon the legality, validity, binding effect or enforceability against (i) the Borrower or the Parent Guarantor of any Credit Document or (ii) J. Aron of (A) the J. Aron CP Documentation; (B) any Payment Obligation Confirmation, or (C) any other material document required to be executed and/or delivered by J. Aron in connection with the Uncommitted Facility; or (d) a material adverse effect upon any of the rights and remedies of, or the benefits available to, the Collateral Agent, the Sub-Collateral Agent, the Administrative Agent, the Lenders or any Letter of Credit Issuing Bank under the Credit Documents.

“Maximum Availability” means an amount equal to $120,000,000 as such amount may be increased from time to time after the Closing Date pursuant to Section 2.18 of this Agreement or decreased by an amount equal to (x) the Maximum Credit Limit of any Declining Lender pursuant to Section 2.17 of this Agreement, less (y) the Lender’s Aggregate Accommodations of such Declining Lender outstanding as of the date of calculation.

“Maximum Credit Limit” means, for each Lender, the maximum amount of Lender’s Aggregate Accommodations that may be incurred by such Lender hereunder, which amount as of the Closing Date shall be provided on Schedule 1.01 attached hereto and incorporated herein, and which amount may be increased or decreased at each Lender’s sole discretion (a) upon ten (10) Business Days’ prior written notice to the Borrower, which notice shall be effective upon receipt and shall be deemed to be an amendment to said Schedule 1.01 without further action by the Administrative Agent, other Lenders or the Borrower; or (b) as a result of assignments permitted hereunder; or (c) in connection with a Declining Lender election pursuant to Section 2.17 of this Agreement; provided, however, that at no time shall any Lender’s Maximum Credit Limit be decreased to an amount less than such Lender’s Aggregate Accommodations as of the date of such reduction. Subject to the proviso below, in the event of any increase or decrease in the Maximum Credit Limit for any Lender at any time, the manner in which the shares of all existing Lenders shall be reallocated (both with respect to then outstanding Letters of Credit and with respect to future Letters of Credit) shall be on a pro rata basis based on the ratio of each Lender’s Maximum Credit Limit to the Maximum Availability, as calculated immediately prior to such decrease or subsequent to such increase, as the case may be, or as otherwise determined by agreement of all of the Lenders, including any new Lender, provided, however, that no Lender shall be obligated to increase its Maximum Credit Limit or decrease (except in connection with a reallocation of L/C Obligations pursuant to Section 2.18 of this Agreement) or increase its share of outstanding Letters of Credit.

“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA, to which the Borrower, the Parent Guarantor or any ERISA Affiliate makes, is making, or is obligated to make contributions or, during the preceding five plan years, has made, or been obligated to make, contributions.

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“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 11.01; and (b) has been approved by the Required Lenders.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

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

“Notice of Declining Lender” has the meaning specified in Section 2.17 of this Agreement.

“Obligations” means all Revolving Credit Loans, L/C Obligations, fees, debts, liabilities, obligations, indemnities, costs, expenses, compliance guidelines, duties, and other Indebtedness arising under this Agreement or any Credit Document (including, without limitation, all fees and disbursements of counsel to the Administrative Agent, to the Lenders, to the Letter of Credit Issuing Banks or to the Collateral Agent that are required to be paid by the Borrower pursuant to the terms of the Credit Documents or otherwise) owing by the Borrower to the Administrative Agent, any Letter of Credit Issuing Bank, any Lender, the Collateral Agent or any other Indemnified Person, including but not limited to the unpaid principal amount of, and interest (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post filing or post-petition interest is allowed in such proceeding) on all Revolving Credit Loans and L/C Obligations, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising including without limitation overdraft costs arising as a result of transfers of funds made through the automated clearinghouse system and all obligations of the Borrower arising from Letters of Credit.

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Organizational Documents” means, for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereon) of such corporation. For any limited liability company or partnership, the term shall have a correlative meaning and shall include any certificate of limited liability company or limited partnership, and any limited liability company agreement, limited partnership agreement and/or general partnership agreement, as applicable.

“Other Connection Taxes” means with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any of the Obligations 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 Obligations or Credit Document).

“Other Taxes” means any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Credit Documents, except for any such Taxes that are Other Connection Taxes imposed with respect to an assignment of any Credit Document (other than an assignment made pursuant to Section 4.01(f)).

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“Parent Guarantor” means Par Petroleum, LLC, a limited liability company organized under the laws of the State of Delaware.

“Parent Guaranty” means a guaranty substantially in the form of Exhibit C hereto, executed and delivered by the Parent Guarantor and dated as of the Closing Date, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

“Par Pacific” means Par Pacific Holdings, Inc., a corporation organized under the laws of the State of Delaware.

“Participant” has the meaning specified in Section 11.08(b) of this Agreement.

“Patriot Act” has the meaning specified in Section 6.20(d) of this Agreement.

“Payment Obligation Confirmation” means, with respect to each J. Aron Payment Obligation, the Aron Acceptance Email sent by J. Aron to the Borrower (with a copy sent to the Administrative Agent) evidencing J. Aron’s agreement to the L/C Related Aron Procurement Contract pursuant to which such J. Aron Payment Obligation has arisen, which constitutes a binding obligation of J. Aron from the time such Aron Acceptance Email is sent regardless of whether any written confirmation of such L/C Related Aron Procurement Contract is subsequently issued. Such Aron Acceptance Email and the Company Proposal Email (which included the relevant trade ticket) to which it relates shall collectively specify, among other things, the amount of or the basis for calculating the relevant J. Aron Payment Obligation, the supplier of, vessel on which, and quantity of Crude Oil inventory being shipped to the Borrower and subject to such L/C Related Aron Procurement Contract.

“Payment Recipient” has the meaning specified in Section 10.10(a) of this Agreement.

“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to any of its principal functions under ERISA.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA which the Borrower, the Parent Guarantor or an ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions or with respect to which the Borrower, the Parent Guarantor or any ERISA Affiliate has any liability.

“Performance Letter of Credit” means a performance letter of credit Issued for the purpose of supporting bids for public releases of Crude Oil from the Strategic Petroleum Reserve.

“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.

“Permitted Collateral Liens” means (a) Liens in favor of the Collateral Agent or the Sub-Collateral Agent as the case may be, arising under the Credit Documents; (b) Liens in favor of J. Aron on the Collateral that have been properly subordinated to the rights of the Administrative Agent and the Lenders pursuant to the Collateral Agency Agreement; (c) Liens for taxes, assessments, judgments, governmental charges or levies, or claims not yet delinquent or the non-payment of which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been made; (d) Liens (1) incurred in the ordinary course of business in connection with the purchase or shipping of goods or assets (or the related assets and proceeds thereof), which Liens arise by operation of law in favor of the seller or shipper of such goods or assets, only attach to such goods or assets and cease to be in effect upon payment in full of the purchase price for such goods or assets, and (2) 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 (e) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and cash equivalents on deposit in a Collection Account.

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“Permitted Discretion” means a determination made in good faith and in the exercise of commercially reasonable business judgment.

“Permitted Holders” means Zell Credit Opportunities Master Fund, L.P. and its Affiliates.

“Permitted Investments” means (a) investments consisting of cash equivalents and securities held in an account in which a perfected security interest has been granted to the Collateral Agent or the Sub-Collateral Agent under the Security Agreement, and (b) transactions in the ordinary course of business with Affiliates or third parties entered into on fair and reasonable terms which, in the case of any transaction with an Affiliate, are on terms not less favorable to the Borrower than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate.

“Permitted Liens” means (a) Permitted Collateral Liens; (b) Liens securing the Indebtedness under the ABL Agreement, the Indebtedness under the Term Loan Agreement, and the Indebtedness listed on Schedule 8.06 hereof and any amendments, restatements, amendment and restatements, supplements, other modifications, refinancings, refundings, renewals or extensions thereof not prohibited by said Section 8.06 hereof, provided that through such amendment, restatement, amendment and restatement, supplement, modification, refinancing, refunding, renewal or extension (1) the Borrower and its Subsidiaries shall not provide security for such Indebtedness to the extent such security would include types of collateral not previously included therein, (2) the amount of Indebtedness secured or benefitted thereby is not increased except as permitted under Section 8.06(c) hereof, (3) no Subsidiary of the Borrower shall be required to guarantee such Indebtedness unless such Person has guaranteed the Obligations, and (4) any refinancings, refundings, renewals or extensions of the obligations secured or benefitted thereby is permitted by Section 8.06(c) hereof; (c) statutory inchoate liens (except for Liens for the benefit of warehousemen, terminal operators or landlords); (d) Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits required in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation; (e) Liens for Taxes, assessments or other governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (f) Liens in respect of property or assets of the Borrower imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehouseman’s, mechanic’s, materialmen’s, repairmen’s, or other like Liens arising in the ordinary course of business, and (1) which do not in the aggregate materially detract from the value of the Borrower’s property or assets or materially impair the use thereof in the operation of the business of the Borrower or materially impair the value of any Collateral; or (2) are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the Borrower; (g) Liens upon assets of the Borrower subject to capital leases and leases giving rise to Synthetic Lease Obligations to the extent such capital leases and leases giving rise to Synthetic Lease Obligations are permitted by Section 8.06(f) hereof, provided that (1) such Liens only serve to secure the payment of Indebtedness arising under such capital lease obligation or leases giving rise to Synthetic Lease Obligations and (2) the Lien encumbering the asset giving rise to such capital lease obligation or leases giving rise to Synthetic Lease Obligations does not encumber other assets of the Borrower; (h) Liens upon equipment and machinery acquired after the Closing Date and used in the ordinary course of business of the Borrower or its Subsidiaries, if any, to secure Indebtedness permitted by Sections 8.06(g) and (h) hereof, provided, that in all events, the Lien encumbering the equipment or machinery so acquired does not encumber any other asset of the Borrower; (i) Liens arising out of the existence of judgments or awards in an aggregate amount not to exceed $5,000,000 in respect of which the Borrower or any Subsidiary, if any, shall in good faith be prosecuting an appeal or proceedings for review and in respect of which there shall have been secured a subsisting stay of execution pending such appeal or proceedings; (j) statutory and common law landlords’ Liens under leases to which the Borrower is a party; (k) Liens on cash collateral or deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (l) easements, rights-of-way, restrictions and other similar encumbrances affecting real property, including minor title deficiencies, which, in the aggregate, are not substantial in amount, and which do not in any case secure money obligations or materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Borrower; (m) Liens incurred in the ordinary course of business in connection with (1) the shipping of goods or assets with respect to amounts due to such shipper for the carriage of such goods or assets and only attach to such goods or assets, or (2) the purchase of goods or assets, which Liens arise by operation of law in favor of the seller of such goods or assets, only attach to such goods or assets and cease to be in effect upon payment in full of the purchase price for such goods or assets; (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) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and cash equivalents on deposit in one or more accounts maintained by the Borrower, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained (including, without limitation, the rights of the depositary bank in respect of a Collection Account) securing amounts owing to such bank or banks with respect to cash management and operating account arrangements; (p) Liens granted in the ordinary course of business on insurance policies, proceeds thereof and the unearned portion of insurance premiums with respect thereto securing the financing of the unpaid cost of the insurance policies to the extent the financing is permitted under Section 8.06(m) hereof; (q) Liens on cash collateral posted solely to secure the Borrower’s reimbursement obligations under letters of credit permitted to be issued under Section 8.06(n) hereof; and (r) Liens arising under the terms of the Security Documents.

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“Permitted Uses” means solely (a) with respect to Trade Letters of Credit and Revolving Credit Loans related to such Trade Letters of Credit, to finance and provide credit support for the Borrower’s purchase of Crude Oil in connection with an FOB Crude Oil Purchase or L/C Related Aron Procurement Contract pursuant to the terms of the Supply and Offtake Agreement, (b) with respect to Performance Letters of Credit, to finance and provide credit support for the Borrower’s purchase of Crude Oil from the Strategic Petroleum Reserves and (c) with respect to Revolving Credit Loans for which a Trade Letter of Credit has been issued, to make payment to the applicable Crude Oil Supplier on or before such payment is due.

“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

“PHR Crude Oil Contract Payment Date” means the earliest date upon which (x) payment is due by the Borrower to the applicable Crude Oil Supplier pursuant to the terms of the applicable L/C Eligible Refinery Procurement Contract or otherwise, and (y) the applicable Crude Oil Supplier, as beneficiary under the related Letter of Credit, is permitted to draw thereon.

“Plan” means a material employee benefit plan (as defined in Section 3(3) of ERISA) which the Borrower, the Parent Guarantor or any ERISA Affiliate sponsors or maintains or to which the Borrower, the Parent Guarantor or any ERISA Affiliate makes, is making, or is obligated to make contributions and includes any Pension Plan.

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“Plan Assets” means “plan assets” within the meaning of the Plan Assets Regulation or any other relevant legal authority.

“Plan Assets Regulation” means 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA.

“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.

“Principal Office” means, as to the Administrative Agent or any Letter of Credit Issuing Bank, the principal office of its New York Branch located in New York City, or such other office or offices as such Administrative Agent or such Letter of Credit Issuing Bank may from time to time notify the Borrower.

“Pro Rata Share” means (a) at any time prior to a Conversion to Approving Lenders Credit Extension Date, for any Lender, a fraction, the numerator of which is such Lender’s Maximum Credit Limit and the denominator of which is the Maximum Availability, and (b) at any time after a Conversion to Approving Lenders Credit Extension Date, for any Lender, a fraction, the numerator of which is the amount of Lender’s Aggregate Accommodations attributable to, or other Obligations owed to, such Lender on such date and the denominator of which is the aggregate amount of Lender’s Aggregate Accommodations attributable to all Lenders (including, without limitation, all Declining Lenders) having L/C Obligations or other Obligations owed to all Lenders outstanding as of such date of calculation.

“QFC” has the meaning specified in Section 11.20 of this Agreement.

“QFC Credit Support” has the meaning specified in Section 11.20 of this Agreement.

“Refinery” means, any of the following taken individually, (x) the crude oil refinery and related assets owned and operated by the Borrower located in Kapolei, Hawaii (including, without limitation, all submerged pipes in which Crude Oil passes into the refinery crude oil tanks), (y) the SPM Delivery Point, or (z) the Crude Storage Tanks.

“Regulatory Change” means, with respect to the Administrative Agent, any change after the Closing Date in Federal, state or foreign law or regulations (including, without limitation, Regulation D) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks including the Administrative Agent or any Letter of Credit Issuing Bank of or under any Federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or governmental or monetary authority charged with the interpretation or administration thereof.

“Relevant Governmental Body” means the Federal Board of Reserves or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Board of Reserves or the Federal Reserve Bank of New York or the Term SOFR Administrator or any successor to any of the foregoing.

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“Reportable Event” means, any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.

“Request for Credit Extension” means (a) with respect to a Borrowing of Revolving Credit Loans, a Borrowing Request, (b) with respect to an Issuance of a Letter of Credit, a Letter of Credit Request and (c) with respect to an amendment of a Letter of Credit, an L/C Amendment Application.

“Required Lenders” means (a) at any time during which any Letters of Credit or Revolving Credit Loans have been Issued and are outstanding hereunder or at any time during which any L/C Obligations remain unpaid, Lenders holding more than 50.0% of the Lender’s Aggregate Accommodations on an aggregate basis for all Lenders, or (b) at any time during which no Letters of Credit or Revolving Credit Loans are outstanding hereunder and no L/C Obligations or Revolving Credit Loans remain unpaid, Lenders holding more than 50.0% of the aggregate Maximum Credit Limits of all of the Lenders party hereto on such date, provided, however, that if any Lender is a Defaulting Lender as of any date of determination, then on such date (x) such Defaulting Lender shall be excluded from the determination of Required Lenders and, for purpose of calculating the Lender’s Aggregate Accommodations on an aggregate basis for all Lenders, such amount shall be reduced by such Defaulting Lender’s otherwise applicable Lender’s Aggregate Accommodations, and (y) such Defaulting Lender’s Maximum Credit Limit shall be excluded from the determination of the aggregate Maximum Credit Limits of all the Lenders party hereto for the purposes of determining the Required Lenders.

“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.

“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 the Borrower or the Parent Guarantor, as the case may be, (a) the chief executive officer, president, chief financial officer, chief administrative officer, treasurer or assistant treasurer as the context may require, or any other officer having substantially the same authority and responsibility; or (b) with respect to certifying as to Organizational Documents or governance matters, the Secretary or Assistant Secretary.

“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type made by each of the Lenders pursuant to Section 2.01.

“Revolving Credit Loans” means any Revolving Credit Loan made pursuant to Section 2.01.

“Revolving Credit Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit J hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Revolving Credit Loans made by such Lender.

“Sanctioned Country” means, at any time, a country or territory which is the subject or target of any Sanctions.

“Sanctioned Person” at any time, any Person or vessel (i) listed on, and/or targeted by, any Sanctions, (ii) resident, operating, or organized under the laws of, a Sanctioned Country, or (iii) that is directly or indirectly owned or controlled by any such Person or Person(s) described in the foregoing clause (i).

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“Sanctions” means any financial, economic, or trade sanctions laws, regulations, rules, decisions, embargoes and/or restrictive measures imposed, administered or enforced from time to time by (a) any U.S. Governmental Authority (including, without limitation, OFAC), including Executive Order 13224, the Patriot Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act and the laws, regulations, rules and/or executive orders relating to restrictive measures against Iran; (b) the United Nations Security Council; (c) the European Union or any of its member states; (d) His Majesty’s Treasury of the United Kingdom, or (e) any other relevant sanctions authority with jurisdiction over any Lender, the Borrower, the Parent Guarantor or any of its Subsidiaries or Affiliates.

“Secured Parties” means the Administrative Agent, the Agent-Related Persons, the Lenders and the Letter of Credit Issuing Banks.

“Security Agreement” means that certain Security Agreement, dated as of the Closing Date substantially in the form of Exhibit D hereto, which amends and restates the J. Aron Security Agreement in its entirety, executed by the Borrower in favor of the Collateral Agent or Sub-Collateral Agent, as the case may be, and delivered to the Administrative Agent granting to the Collateral Agent or the Sub-Collateral Agent, as the case may be, a first and prior security interest in and Lien upon (i) the Collateral for the benefit of the Secured Parties, and (ii) the J. Aron Collateral for the benefit of J. Aron, as the same may be amended, restated, supplemented, or otherwise modified from time to time as permit hereby or thereby.

“Security Documents” means, collectively, the Security Agreement, the Collateral Agency Agreement, the Collection Account DACA and any other agreements, instruments or documents entered into as a condition precedent to the effectiveness of the Uncommitted Facility relating to the Collateral or the J. Aron Collateral.

“Sludge” means a semi-solid slurry consisting of hydrocarbons, sediment, paraffin and water, produced from a process or as a result of solids separated from suspension in a liquid.

“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

“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 Revolving Credit Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Alternate Base Rate”.

“SPM” means the self-contained single-point mooring buoy offshore terminal facility maintained by the Borrower offshore of the Refinery for the purposes of mooring and transferring Crude Oil and other hydrocarbon cargoes from oceangoing vessels.

“SPM Delivery Point” means the delivery point specified in the relevant L/C Eligible Refinery Procurement Contract at which title to the Crude Oil being sold thereunder is to be transferred from the Crude Oil Supplier party thereto to the Borrower. Such delivery point may be the entry point of a subsea hose, subsea pipeline or other similar infrastructure.

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“Strategic Petroleum Reserve” means petroleum stocks maintained by the United States government for use during periods of major supply interruption established pursuant to 42 U.S.C. § 6234.

“Sub-Collateral Agent” means MUFG Bank, Ltd. in its capacity as a sub-collateral agent of the Collateral Agent under this Agreement, the Collateral Agency Agreement and the other Credit Documents to which it is a party.

“Subordinated Indebtedness” means, with respect to any Person collectively, Indebtedness (a) for which such Person is directly and primarily liable, (b) in respect of which none of the Subsidiaries of such Person is contingently or otherwise obligated and (c) that is subordinated to the obligations of such Person hereunder on terms, and pursuant to documentation containing other terms (including interest, amortization, compliance guidelines and events of default), in form and substance satisfactory to the Required Lenders.

“Subsidiary” means, with respect to any Person, any corporation, association, partnership, joint venture or other business entity of which more than 50% of the voting stock or other Equity Interests (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Borrower.

“Supply and Offtake Agreement” means that certain Second Amended and Restated Supply and Offtake Agreement dated as of June 1, 2021 between J. Aron and the Borrower, as amended by that certain Amendment dated March 24, 2022, that certain Amendment dated April 25, 2022, that certain Amendment dated May 17, 2022, that certain Amendment dated September 13, 2022, that certain Amendment dated February 13, 2023, that certain Amendment dated June 21, 2023, and as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof or thereof, including by that certain Amendment dated as of July 26, 2023.

“Supported QFC” has the meaning specified in Section 11.20 of this Agreement.

“Surety Instruments” means all letters of credit (including standby and commercial), bank’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.

“Swap Contract” means, regardless of the definition of “Swap Contract” or “Swap” under any applicable law, any agreement entered into by the Borrower (including any master agreement and any agreement, whether or not in writing, relating to any single physical or financial transaction) that is an interest rate swap agreement, a basis swap, forward rate agreement, commodity swap, Commodities Contract, commodity option, equity or equity index swap or option, bond option, interest rate option, forward foreign exchange agreement, rate cap, collar or floor agreement, currency swap agreement, cross currency rate swap agreement, currency option or any other similar agreement (including any option to enter into any of the foregoing) or any combination of the foregoing, and, unless the context clearly requires, any master agreement and confirmation relating to or governing any or all of the foregoing. No agreement of the nature described above will be deemed a Swap Contract unless it is subject to the applicable ISDA Master Agreement or its equivalent (i.e., long-form confirmations).

“Synthetic Lease Obligations” means the monetary obligation of the Borrower under (i) a so-called synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of the Borrower, but which, upon the insolvency or bankruptcy of the Borrower, would be characterized as the indebtedness of the Borrower (without regard to accounting treatment).

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“Taxes” means any and all present or future taxes, levies, imposts, deductions, charges or withholdings, assessments, fees or other charges imposed by any Governmental Authority, and any interest, penalties and other liabilities with respect thereto.

“Term Loan Agreement” means that certain Term Loan Credit Agreement, dated as of February 28, 2023, among Par Pacific, the Parent Guarantor, FinanceCo, the lenders party thereto from time to time and Wells Fargo Bank, National Association, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.

“Term SOFR” means:

(a)         for any calculation with respect to a SOFR Loan based on Adjusted Term SOFR, 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 ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR 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 ABR 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 ABR Term SOFR Determination Day.

“Term SOFR Adjustment” means a percentage equal to 0.10 % per annum.

“Term SOFR Administrator” means 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 Reference Rate” means the forward-looking term rate based on SOFR.

“Third Party Spread Transaction” shall have the meaning specified in the Supply and Offtake Agreement.

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“Trade Letter of Credit” means a standby (other than a Performance Letter of Credit) or documentary letter of credit, as required by context.

“Transaction/Collateral Report” means a report substantially in the form of Exhibit I hereto or in any other form mutually acceptable to the Borrower and the Administrative Agent, providing the details of each transaction for which a Letter of Credit has been issued or a Revolving Credit Loan has been made, including but not limited to, a description of the relevant purchase contract, quantity, purchase price, payment terms, (estimated) date of loading/discharge, location (i.e. vessel name) of the related Crude Oil inventory, whether a J. Aron Payment Obligation has been created and assigned as Collateral under the Security Agreement, and any other information, data or certification reasonably requested by the Administrative Agent, along with copies of relevant documentation relating to such transactions, including but not limited to, the related purchase contracts, shipping documents (i.e. bills of lading), and invoices, if available.

“TWEA” shall have the meaning ascribed to such term in the definition of “Anti-Terrorism and Economic Sanctions Law”.

“Type” when used in respect of any Revolving Credit Loan or Borrowing, shall refer to the Rate by reference to which interest on such Revolving Credit Loan or on the Revolving Credit Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted Term SOFR, the Cost of Funds Rate and the Alternate Base Rate.

“UK Financial Institution” 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 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.

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

“Uncommitted Facility” means the uncommitted credit facility for the making of Revolving Credit Loans and the issuance of Letters of Credit described in Article II hereof and provided to the Borrower upon the terms and conditions set forth in this Agreement and the other Credit Documents.

“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“Uniform Commercial Code” means the Uniform Commercial Code as now or hereafter in effect in the State of New York provided that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, the Administrative Agent’s security interest in any assets of the Borrower is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term ‘Uniform Commercial Code’ means the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for the purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.

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“United States” and “U.S.” each means the United States of America.

“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 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)(3) of the Code.

“U.S. Special Resolution Regimes” has the meaning specified in Section 11.20 of this Agreement.

“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.

1.02    Other Interpretive Provisions.

(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b)    The words “hereof”, “herein”, “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and Subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(c)    The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

(i)    The term “including” is not limiting and means “including without limitation.”

(ii)    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.”

(iii)    The term “shall” is and will be construed to have the same meaning and effect as the word “will”.

(d)    Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Credit Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

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(e)    Initially capitalized terms that are not defined herein but are defined in the Uniform Commercial Code shall have the meanings ascribed to such terms in the applicable Uniform Commercial Code.

(f)    The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

(g)    This Agreement and other Credit Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.

(h)    This Agreement and the other Credit Documents are the result of negotiations among and have been reviewed by counsel to the Administrative Agent, the Lenders, the Borrower and the other parties, and are the products of all parties. Accordingly, they shall not be construed against the Administrative Agent merely because of the Administrative Agent’s involvement in their preparation.

(i)    For the avoidance of doubt, any Lien upon, or security interest granted in the Collateral to or in favor of the Collateral Agent or the Sub-Collateral Agent in accordance with this Agreement and any other Credit Documents shall be for the benefit of the Collateral Agent or Sub-Collateral Agent, as applicable, for the further benefit of the Secured Parties.

1.03    Accounting Principles.

(a)    Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made in accordance with GAAP, consistently applied.

(b)    References herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods of the Borrower or the Parent Guarantor, as applicable.

1.04    [Reserved].

1.05    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 on the first date of its existence by the holders of its Equity Interests at such time.

1.06    Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Alternate Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Alternate Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, SOFR, or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Alternate Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Alternate Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, SOFR, or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, 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.

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ARTICLE II.

THE CREDITS

2.01    Amounts and Terms of Uncommitted Facility.

(a)    The Lenders agree, on an UNCOMMITTED AND ABSOLUTELY DISCRETIONARY basis, and on the terms and conditions set forth herein, to consider (a) making revolving credit loans in U.S. Dollars (each such loan, a “Revolving Credit Loan”) to the Borrower and (b) Issuing, and participating in, Letters of Credit for the account of the Borrower, in each case, on any Business Day during the period from the Closing Date to the Credit Facility Termination Date; provided, however, that, after giving effect to any Borrowings of Revolving Credit Loans and the issuance of any Letter of Credit, (i) the Effective Amount of all Revolving Credit Loans and L/C Obligations shall not, in the aggregate, exceed the Maximum Availability then in effect and (ii) such Lender’s Pro Rata Share of all Revolving Credit Loans and L/C Obligations shall not, in the aggregate, exceed such Lender’s Maximum Credit Limit then in effect.

(b)    The Lenders hereby establish the Uncommitted Facility to be in effect, subject to the terms of this Agreement, until the Credit Facility Termination Date, pursuant to which the Lenders, acting in their sole and absolute discretion, may agree from time to time, but shall have no obligation to agree to the making of Revolving Credit Loans and the Issuance of Letters of Credit by any Letter of Credit Issuing Bank for the account of the Borrower and solely for Permitted Uses, and, in the case of Letters of Credit, to be participated in by the other Lenders pursuant to Section 3.01(b) of this Agreement. If the Lenders agree at any time to the Issuance of one or more Letters of Credit by a Letter of Credit Issuing Bank, for the account of the Borrower and solely for Permitted Uses, and to be participated in by the other Lenders, such Letters of Credit shall be governed by the terms of this Agreement. Revolving Credit Loans may be ABR Loans, SOFR Loans or Cost of Funds Loans, as further provided herein.

(c)    NOTWITHSTANDING (i) THAT THIS AGREEMENT SETS FORTH CERTAIN PROCEDURES FOR THE POSSIBLE ISSUANCE OF LETTERS OF CREDIT BY ANY LETTER OF CREDIT ISSUING BANK, FOR THE ACCOUNT OF THE BORROWER AND TO BE PARTICIPATED IN BY THE LENDERS, AND POSSIBLE MAKING OF BORROWINGS BY THE LENDERS AND (ii) THAT THIS AGREEMENT CONTAINS CERTAIN AGREEMENTS OF THE BORROWER TO PROVIDE INFORMATION TO THE LENDERS ON A REGULAR BASIS, TO MAKE CERTAIN PAYMENTS TO THE LENDERS OR CONSTRAIN THE BORROWER, THE BORROWER ACKNOWLEDGES AND AGREES THAT (A) THE LENDERS HAVE NO OBLIGATION WHATSOEVER TO AGREE TO THE ISSUANCE OF LETTERS OF CREDIT OR THE MAKING OF REVOLVING CREDIT LOANS AS DESCRIBED HEREIN OR OTHERWISE AND (B) THE LENDERS HAVE THE RIGHT, SHOULD THEY EXTEND CREDIT TO THE BORROWER AT ANY TIME AS DESCRIBED HEREIN OR OTHERWISE, TO DECLINE ANY FUTURE EXTENSION OF CREDIT FOR THE ACCOUNT OF THE BORROWER.

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2.02    Loans and Borrowings.

(a)    Borrowings. Subject to Section 2.01, each Revolving Credit Loan to the Borrower shall be made as part of a Borrowing consisting of Revolving Credit Loans made by the Lenders ratably in accordance with their Pro Rata Shares.

(b)    Types of Loans. Each Borrowing shall be comprised entirely of ABR Loans, SOFR Loans or Cost of Funds Loans as the Borrower may request in accordance herewith.

(c)    Number of Borrowings. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of five (5) Interest Periods in respect of Borrowings (unless agreed by the Administrative Agent).

(d)    Minimum Amounts. Each Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000; provided that any Borrowing may be in an aggregate amount that is equal to the remaining Maximum Availability immediately prior to giving effect to such Borrowing.

(e)    Latest Interest Period. Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request any Borrowing if the Interest Period requested with respect thereto would end after the Credit Facility Termination Date.

2.03    Requests for Borrowings. Subject to the provisions of Section 2.01 of this Agreement, including, without limitation, the conditions precedent (including the requirements of Section 5.02 hereof), Collateral requirements, limits and purposes provided for therein and elsewhere in this Agreement, the Borrower may request a Borrowing by notifying the Administrative Agent of such request by delivering to the Administrative Agent a Borrowing Request (or such other form as may be approved by the Administrative Agent) and signed by the Borrower (i) in the case of a Borrowing consisting of SOFR Loans, not later than 2:00 p.m., New York time, three U.S. Government Securities Business Days before the date of the proposed Borrowing or (ii) in the case of a Borrowing consisting of ABR Loans or Cost of Funds Loans, not later than 2:00 p.m., New York time, one Business Day prior to the day of the proposed Borrowing. Each Borrowing Request shall be made by electronic mail in portable document format (.PDF) or other facsimile, shall be signed by an Authorized Officer and shall specify the following information in compliance with Section 2.02:

(a)    the aggregate amount of the requested Borrowing, which shall not exceed the Face Amount of the related Trade Letter of Credit issued with respect to the Crude Oil inventory being purchased;

(b)    the date of such Borrowing, which shall be a Business Day;

(c)    whether such Borrowing is in connection with an FOB Crude Oil Purchase or a Delivered Crude Oil Purchase;

(d)    whether such Borrowing is to be an ABR Borrowing, a SOFR Borrowing or a Cost of Funds Borrowing;

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(e)    if such Borrowing is to be a Cost of Funds Borrowing, the Cost of Funds Loan Maturity Date applicable to such Borrowing, which shall be a Business Day;

(f)    the tenor applicable to such Borrowing (15 days for a Delivered Crude Oil Purchase and 30 days for an FOB Crude Oil Purchase); and

(g)    identifying the related Trade Letter of Credit issued with respect to the Crude Oil inventory being purchased from the applicable Crude Oil Supplier for which the proceeds of such Borrowing are being used to make such payment on or before when due, together with any other documentation relating to such cargo reasonably requested by the Administrative Agent.

When delivered, such Borrowing Request shall be irrevocable and shall be effective upon receipt by the Administrative Agent.

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be made as an ABR Borrowing. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Revolving Credit Loan to be made as part of the requested Borrowing. Notwithstanding anything set forth herein, no SOFR Loan based on Adjusted Daily Simple SOFR may be requested unless a Benchmark Transition Event has occurred.

2.04    Notice to Lenders; Funding of Borrowings.

(a)    The Administrative Agent shall promptly give each Lender written notice (or telephonic notice promptly confirmed in writing) of each requested Borrowing, and of such Lender’s proportionate share thereof and of the other matters covered by the Borrowing Request, as the case may be, relating thereto.

(b)    In the event that prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the proposed date of the requested Borrowing, the Administrative Agent has received a written notice in the form of Exhibit E from any Lender, the Administrative Agent shall notify the Borrower by 6:00 p.m. New York time on the Business Day immediately preceding the proposed date of Borrowing, and the proposed Borrowing will be made only if one or more of the Lenders have elected to become Approving Lenders thereby triggering the Conversion to Approving Lenders Credit Extension Date pursuant to Section 2.17 hereof. If the Approving Lenders elect to make the Revolving Credit Loans requested in such Borrowing, they may (on a pro rata basis among the Lenders that have elected to continue making Revolving Credit Loans) make the full amount of such Borrowing, or a pro rata amount after taking into account each Declining Lender’s Pro Rata Share of such requested Borrowing. At no time shall any Approving Lender be required to make any Revolving Credit Loan if such participation would cause such Lender’s Aggregate Accommodation of such Lender to exceed its Maximum Credit Limit.

(c)    Upon satisfaction or waiver of the conditions precedent specified herein, each Approving Lender shall make each Revolving Credit Loan to be made by it to the Borrower hereunder by 12:00 noon (New York time) on the proposed date thereof by wire transfer of immediately available funds, to the account of the Administrative Agent. Upon receipt of all requested funds and the satisfaction or waiver of the conditions precedent specified herein, the Administrative Agent will make such Revolving Credit Loans available to the Borrower by promptly wire transferring the amounts so received, in like funds, to the J. Aron Crude Oil Provisional Payment Account.

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(d)    Unless the Administrative Agent shall have received written notice from a Declining Lender in accordance with Section 2.17, the Administrative Agent may assume that such Lender has made its pro rata share (determined in accordance with Section 2.04(b)) available on such date in accordance with Section 2.04(c) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount provided that the Administrative Agent does not have the obligation to make available such amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower, severally, agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Revolving Credit Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

2.05    Evidence of Debt.

(a)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Credit Extension made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. Any Lender may, by written notice to the Borrower, request that Revolving Credit Loans made by it to the Borrower be evidenced by a Revolving Credit Note. In such event, the Borrower shall prepare, execute and deliver to such Lender a Revolving Credit Note promissory note payable to such Lender, which shall evidence such Lender’s Revolving Credit Loans.

(b)    The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Credit Extension made hereunder, the Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and (iii) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(c)    In addition to the accounts and records referred to in Sections 2.05(a) and 2.05(b), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the Register and the corresponding accounts and records maintained by the Administrative Agent and the accounts and records of any Lender 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.

(d)    The entries made in the accounts maintained pursuant to Sections 2.05(a), 2.05(b) or 2.05(c) shall be prima facie evidence absent manifest error of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Revolving Credit Loans or other Credit Extensions under this Agreement in accordance with the terms of this Agreement; provided, further, that in the event of any conflict between the entries made in the accounts maintained pursuant to Sections 2.05(a), 2.05(b) and 2.05(c), the Register and corresponding entries maintained by the Administrative Agent shall control.

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2.06    Repayment of Loans. The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender its Pro Rata Share of each Borrowing on the earliest of (a) one (1) Business Day after the J. Aron Payment Obligation has been deposited into the J. Aron Crude Oil Provisional Payment Account, (b) the Credit Facility Termination Date, (c) the Cost of Funds Loan Maturity Date, if applicable, (d) 15 days after the making of such Borrowing if such Borrowing is in connection with a Delivered Crude Oil Purchase and (e) 30 days after the making of such Borrowing if such Borrowing is in connection with an FOB Crude Oil Purchase. All payments for the account of the Lenders in respect of this Section 2.06 shall be applied to the Revolving Credit Loans on a pro rata basis based on such Lender’s Pro Rata Share. The Administrative Agent is hereby authorized to charge the Collection Accounts for each payment of principal, interest and bank fees as they become due hereunder.

2.07    Prepayment of Loans.

(a)    The Borrower shall have the right to prepay Revolving Credit Loans in whole or in part, in an aggregate principal amount equal to an amount equal to one or more outstanding Borrowings. The Borrower shall notify the Administrative Agent of any prepayment hereunder (1) in the case of prepayment of a SOFR Borrowing, not later than 2:00 p.m. (New York time), three U.S. Government Securities Business Days before the date of prepayment, or (2) in the case of prepayment of an ABR Borrowing or a Cost of Funds Borrowing, not later than 2:00 p.m. (New York time), one Business Day prior to the date of prepayment (or such later times to which the Administrative Agent may agree). Each such notice shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid. Each prepayment of a Borrowing shall be applied to the Revolving Credit Loans included in the prepaid Borrowing in accordance with each Lender’s Pro Rata Share. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.08(e).

(b)    If for any reason the aggregate Effective Amount at any time exceeds the Maximum Availability then in effect, the Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and/or cash collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that, the Borrower shall not be required to cash collateralize the L/C Obligations pursuant to this Section 2.07(b) unless after the prepayment in full of the Revolving Credit Loans such aggregate Effective Amount with respect to the L/C Obligations exceeds the aggregate Maximum Availability then in effect.

(c)    If for any reason The Goldman Sachs Group, Inc. does not own directly or indirectly more than fifty percent (50.0%) of the Equity Interest in, or otherwise control, J. Aron, the Borrower shall, within three Business Days following the date on which The Goldman Sachs Group, Inc. no longer owns directly or indirectly more than fifty percent (50.0%) of the Equity Interest in, or otherwise controls, J. Aron, prepay or cause to be prepaid Revolving Credit Loans and/or cash collateralize the L/C Obligations pursuant to Section 3.06(a).

(d)    Subject to Section 2.10, prepayments under this Section 2.07 shall be without premium or penalty.

2.08    Interest.

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(a)    The Borrower shall pay interest on the unpaid principal amount of each ABR Loan made to the Borrower at the Alternate Base Rate plus the Applicable Margin.

(b)    The Borrower shall pay interest on the unpaid principal amount of each Cost of Funds Loan made to the Borrower at the Cost of Funds Rate plus the Applicable Margin.

(c)    The Borrower shall pay interest on the unpaid principal amount of each SOFR Loan made to the Borrower (i) prior to a Benchmark Transition Event, at the Adjusted Term SOFR for the Interest Period in effect for such SOFR Loan plus the Applicable Margin, and (ii) from and after a Benchmark Transition Event, at the Adjusted Daily Simple SOFR in effect for such SOFR Loan plus the Applicable Margin.

(d)    Notwithstanding the foregoing, beginning upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on all Obligations outstanding hereunder, at the Default Rate; provided that in no event shall the Default Rate apply to any Default or Event of Default that has been waived by the Required Lenders.

(e)    Accrued interest on each Revolving Credit Loan shall be payable by the Borrower in arrears on each Interest Payment Date for such Revolving Credit Loan, and on the Credit Facility Termination Date; provided that (x) interest accrued pursuant to Section 2.08(d) shall be payable promptly on demand, and (y) in the event of any repayment or prepayment of any Revolving Credit Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.

(f)    In connection with the use or administration of Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit 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 Credit Document. The Administrative Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

2.09    Alternate Rate of Interest and Benchmark Replacement Settings.

(a)    Subject to Sections 2.09(b) through (f), if, on or prior to the first day of any Interest Period for any SOFR Loan based on Adjusted Term SOFR:

(i)    the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof; or

(ii)    the Required Lenders determine that for any reason in connection with any request for a SOFR Loan that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Revolving Credit Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent;

the Administrative Agent will promptly so notify the Borrower and each Lender.

Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make SOFR Loans shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of ABR Loans in the amount specified therein. The Borrower shall also pay any additional amounts required pursuant to Section 2.10. Subject to Sections 2.09(b) through (f), if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination.

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(b)    Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York time) on the fifth (5^th) 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. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.09(b) will occur prior to the applicable Benchmark Transition Start Date.

(c)    In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent, will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit 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 Credit Document.

(d)    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 notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.09(e) and (y) the commencement 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 2.09, 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 2.09.

(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 Reference 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 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 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 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.

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(f)    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 SOFR Loans to be made 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 ABR Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate.

2.10    Break Funding Payments. In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b)  the failure (for a reason other than the failure of a Lender to make a Revolving Credit Loan) to borrow or prepay any SOFR Loan on the date specified in any notice delivered by the Borrower pursuant hereto or (c) the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 4.07, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.

2.11    Assignment of J. Aron Payment Obligations.

The Borrower covenants and agrees that pursuant to the Security Agreement it shall grant to the Collateral Agent, for the benefit of the Secured Parties, a first priority security interest in the J. Aron Payment Obligations and the cash proceeds thereof.

2.12    Letter of Credit Accounts.

(a)    The Letters of Credit Issued by any Letter of Credit Issuing Bank shall be evidenced by one or more accounts or records maintained by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent shall be conclusive absent manifest error of the amount of the Letters of Credit Issued by any Letter of Credit Issuing Bank for the account of the Borrower hereunder, and the fees and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the Obligations of the Borrower hereunder to pay any amount owing with respect to any Letter of Credit.

(b)    Subject to the terms and conditions of this Agreement and the right of any Lender to approve or disapprove any request for a Credit Extension hereunder in its sole discretion, prior to the Credit Facility Termination Date the Borrower may request Credit Extensions up to the Maximum Availability on a revolving basis.

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2.13    Fees. All fees to be paid to the Lenders as fees in connection with this Uncommitted Facility will be set forth in separate Fee Letters upon terms and conditions to be agreed upon as a condition precedent to the initial Credit Extension hereunder.

2.14    Computation of Fees and Interest.

(a)    All computations of fees and interest calculated utilizing the Prime Rate shall be made on the basis of a 365/6-day year and actual days elapsed. All other fees and interests shall be calculated on the basis of a 360-day year for actual days elapsed (which results in more interest being paid than if computed on the basis of a 365-day year). All interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof.

(b)    Each determination of an interest rate by the Administrative Agent shall be conclusive and binding on the Borrower in the absence of manifest error.

2.15    Payments by the Borrower.

(a)    All payments to be made by the Borrower shall be made without set-off, recoupment or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower shall be made to the Administrative Agent for the account of the Lenders at the Administrative Agent’s Payment Office and shall be made in Dollars and in immediately available funds, no later than 12:00 noon (New York time) on the date specified herein. Any payment received by the Administrative Agent later than 12:00 noon (New York time) shall be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue.

(b)    Whenever any payment is due on a day other than a Business Day, such payment shall be made on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

(c)    If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, interest and fees then due from the Borrower hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from the Borrower hereunder in respect of the Uncommitted Facility, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties and (ii) second, towards payment of principal and unreimbursed drawings under Letters of Credit then due from the Borrower hereunder in respect of the Uncommitted Facility, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed drawings under Letters of Credit then due to such parties.

2.16    Sharing of Payments. If, other than as expressly provided elsewhere herein, any Letter of Credit Issuing Bank shall obtain on account of the Letters of Credit Issued by it, or any Lender shall obtain on account of its Revolving Credit Loans or its participation in any Letter of Credit, any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its Pro Rata Share at such time, such Letter of Credit Issuing Bank or Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Revolving Credit Loans or Letters of Credit, as applicable, purchased by them as shall be necessary to cause such purchasing Letter of Credit Issuing Bank or Lender to share the excess payment with each of them in accordance with their Pro Rata Shares; provided, however, that if all or any portion of such excess payment is thereafter recovered from the Letter of Credit Issuing Bank or Lender, such purchase shall to that extent be rescinded and each other Lender shall repay to the Letter of Credit Issuing Bank or Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Letter of Credit Issuing Bank or Lender of any interest or other amount paid or payable by the purchasing Letter of Credit Issuing Bank or Lender in respect of the total amount so recovered). The Borrower agrees that any Letter of Credit Issuing Bank or Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set off, but subject to Section 11.09 of this Agreement) with respect to such participation as fully as if such Letter of Credit Issuing Bank or 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 2.16 and will in each case notify the Lenders following any such purchases or repayments.

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2.17    The Election of Approving Lenders to Continue Making Revolving Credit Loans and Issuing and Participating in Letters of Credit. If one or more Lenders (the “Declining Lender” or “Declining Lenders”) provides the Administrative Agent with, and the Administrative Agent has actually received, a written notice (a “Notice of Declining Lender”) in the form of Exhibit E by 5:00 p.m. (New York City time) on the Business Day immediately preceding the proposed date of the requested Borrowing indicating that for reasons other than the existence of a Default that such Lenders have elected not to make Revolving Credit Loans and Issue or participate in additional Letters of Credit, the Administrative Agent shall notify the other Lenders by 6:00 p.m. (New York City time) that same day. If by 5:00 p.m. (New York City time) on the Business Day immediately preceding the proposed date of the requested Borrowing, any Lender has not provided a Notice of Declining Lender in writing to the Administrative Agent, such silence shall be deemed to indicate such Lender’s willingness to be an Approving Lender. On the next succeeding Business Day, the remaining Lenders shall consider additional requests for Revolving Credit Borrowings by the Borrower in accordance with Section 2.01 hereof and they shall (on a pro rata basis, based on the Maximum Credit Limit of all Lenders that have elected to continue making Revolving Credit Loans as adjusted after such Conversion to Approving Lenders Credit Extension Date) make the requested Borrowing irrespective of the Declining Lenders’ disapproval, and, in the case of Letters of Credit, so long as one or more of the remaining Lenders who are not the Declining Lenders are Letter of Credit Issuing Banks or shall elect to become Letter of Credit Issuing Banks, the Letter of Credit Issuing Banks and the Lenders shall consider additional requests for Letters of Credit by the Borrower in accordance with Section 3.01 hereof and they shall (on a pro rata basis, based on the Maximum Credit Limit of all Lenders that have elected to continue Issuing and/or participating in, Letters of Credit as adjusted after such Conversion to Approving Lenders Credit Extension Date) Issue or amend the requested Letter of Credit irrespective of the Declining Lenders’ disapproval (in each such case, the Lenders that had not previously delivered a Notice of Declining Lender shall be referred to as the “Approving Lenders”). In such event, from such date forward (the “Conversion to Approving Lenders Credit Extension Date”) (i) all subsequent Revolving Credit Loans made or Issuances of Letters of Credit or amendments of Letters of Credit issued after the Conversion to Approving Lenders Credit Extension Date shall be made unilaterally by the Approving Lenders and no Revolving Credit Loan thereafter made or Letter of Credit thereafter Issued shall be participated in by the Declining Lenders (other than any Obligations related to Revolving Credit Loans or Letters of Credit with respect to which such Lender was not a Declining Lender on the date such Revolving Credit Loans were made or such Letters of Credit were Issued or amended), (ii) the Lender’s Aggregate Accommodations for each such Approving Lender shall be increased on the basis of each subsequent Revolving Credit Loan made or Issuance or amendment of a Letter of Credit, but in any event by an amount not more than its Pro Rata Share of the Declining Lender’s Maximum Credit Limit (determined as of the Conversion to Approving Lenders Credit Extension Date), and (iii) at no time shall any Approving Lender be required to make any Revolving Credit Loans or participate in any Letter of Credit if the making of such Revolving Credit Loan or such participation, respectively, would exceed its Maximum Credit Limit.

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2.18    Increases in Maximum Availability. The Borrower shall have the right to request that the Maximum Availability be increased up to an aggregate amount not to exceed, at any time, $350,000,000; provided, however, that any such increase will be in increments of $20,000,000 and is subject to satisfaction or waiver of each of the conditions precedent contained in Section 5.03 of this Agreement. The Borrower may seek an increase in Maximum Credit Limit from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders (in each case, subject to approval of the Administrative Agent and Letter of Credit Issuing Banks, such approval not to be unreasonably withheld, delayed, or conditioned) who will become Lenders in connection therewith; the Borrower and each such Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably request to evidence the joinder of such additional Lender and its Maximum Credit Limit. Notwithstanding anything to the contrary contained herein, satisfaction of any conditions precedent contained in Section 5.03 of this Agreement shall not be deemed to be a consent by any Lender to any such increase in such Lender’s Maximum Credit Limit and any such consent shall be at the sole discretion of each Lender and shall not be effective unless and until agreed in writing by such Lender. In connection with any increase in the Maximum Availability pursuant to this Section 2.18, the Administrative Agent shall, without the necessity of the consent of any other Person, reallocate L/C Obligations and Revolving Credit Loans among the Lenders to reflect each Lender’s Pro Rata Share thereof based on their respective Maximum Credit Limits after giving effect to such increase.

ARTICLE III.

LETTERS OF CREDIT

3.01    Requests for Letters of Credit.

(a)    Subject to the provisions of Section 2.01 of this Agreement, including without limitation all applicable conditions precedent (including the requirements of Section 5.02 hereof), Collateral requirements, limits and purposes provided for therein and elsewhere in this Agreement, the Borrower may request the Issuance of a Letter of Credit for its account, by giving the applicable Letter of Credit Issuing Bank and the Administrative Agent a Letter of Credit Request by no later than 2:00 p.m., New York time (or such shorter time as such Letter of Credit Issuing Bank may agree in a particular instance in its sole discretion), on the date that is one (1) Business Day prior to the requested date of Issuance of such Letter of Credit (which shall be a Business Day). Any Letter of Credit Request received by a Letter of Credit Issuing Bank or the Administrative Agent later than 2:00 p.m., New York time, as applicable, shall be deemed to have been received thereby at the opening of business on the next Business Day. Each Letter of Credit Request shall be made by electronic mail in portable document format (.PDF) or other facsimile, shall be signed by an Authorized Officer, shall contain the related vessel name and quantity of Crude Oil inventory being shipped in the relevant cargo and attach a copy of the related L/C Eligible Refinery Procurement Contract and any other documentation relating to such cargo reasonably requested by said Letter of Credit Issuing Bank. When delivered, such Letter of Credit Request shall be irrevocable and shall be effective upon receipt by the applicable Letter of Credit Issuing Bank and the Administrative Agent. In the event that prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the proposed date of Issuance, the Administrative Agent has received a written notice in the form of Exhibit E from any Lender, the Administrative Agent shall notify the Borrower by 6:00 p.m. New York time on the Business Day immediately preceding the proposed date of Issuance, and the proposed Letter of Credit will be Issued only if one or more of the Lenders is a Letter of Credit Issuing Bank (or has elected to become a Letter of Credit Issuing Bank hereunder) and one or more Lenders have elected to become Approving Lenders thereby triggering the Conversion to Approving Lenders Credit Extension Date pursuant to Section 2.17 hereof. If the Approving Lenders elect to Issue the Letter of Credit, they may (on a pro rata basis among the Lenders that have elected to continue Issuing, and/or participating in, Letters of Credit) Issue the full amount, or a pro rata amount after taking into account each Declining Lender’s Pro Rata Share of such requested Letter of Credit. At no time shall any Approving Lender be required to participate in any Letter of Credit if such participation would cause such Lender’s Aggregate Accommodation of such Lender to exceed its Maximum Credit Limit.

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(b)    Immediately and automatically upon the Issuance of each Letter of Credit, the applicable Letter of Credit Issuing Bank shall be deemed to have sold and transferred to each other participating Lender (unless the Administrative Agent has received a written Notice of Declining Lender from one or more Lenders in the form of Exhibit E attached hereto no later than 5:00 p.m. New York time on the Business Day immediately preceding such Issuance), and each such Lender shall be deemed to have purchased and received from the applicable Letter of Credit Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof, in an amount equal to such Lender’s Pro Rata Share or on a pro rata basis among the Lenders that have elected to continue Issuing, and/or participating in, Letters of Credit as determined in accordance with Section 3.01(a).

(c)    No Letter of Credit Issuing Bank is under any obligation to consider the Issuance of or to Issue any Letter of Credit unless such Letter of Credit Issuing Bank shall have consented to the Issuance of such Letter of Credit in its sole discretion. No Letter of Credit Issuing Bank shall, in any event, Issue any Letter of Credit if:

(i)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Letter of Credit Issuing Bank from Issuing such Letter of Credit, or any Requirement of Law applicable to such Letter of Credit Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuing Bank shall prohibit or request that such Letter of Credit Issuing Bank refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Letter of Credit Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Letter of Credit Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Letter of Credit Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Letter of Credit Issuing Bank in good faith deems material to it;

(ii)    such Letter of Credit Issuing Bank has received written notice from the Borrower or the Administrative Agent, prior to the Issuance of such Letter of Credit that one or more of the applicable conditions contained in Article V is not then satisfied or waived;

(iii)    the requested expiration date of any requested Letter of Credit is more than 90 days after the proposed issuance date or after the Expiration Date;

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(iv)    such requested Letter of Credit is not in form and substance acceptable to such Letter of Credit Issuing Bank;

(v)    the Issuance of a Letter of Credit shall violate any applicable policies of such Letter of Credit Issuing Bank;

(vi)    the Administrative Agent has not confirmed to the Letter of Credit Issuing Bank that such requested Letter of Credit complies with all applicable terms and conditions to its issuance;

(vii)    such Letter of Credit is for any purpose other than the applicable purposes for such Letter of Credit set forth in the definition of “Permitted Uses” in Section 1.01 hereof;

(viii)    such Letter of Credit is denominated in a currency other than Dollars;

(ix)    the Issuance of such requested Letter of Credit violates the provisions of Section 2.01 of this Agreement;

(x)    any condition precedent to the Issuance of such Letter of Credit has not been satisfied; or

(xi)    any Default or Event of Default exists hereunder.

(d)    At no time shall the aggregate Face Amount of outstanding Letters of Credit with an expiry date after the Credit Facility Termination Date exceed $100,000,000.

3.02    Amendment and Renewal of Letters of Credit.

(a)    From time to time while a Letter of Credit is outstanding and prior to the Credit Facility Termination Date, the applicable Letter of Credit Issuing Bank will, upon the written request of the Borrower received by such Letter of Credit Issuing Bank by no later than 12:00 noon, New York time (or such shorter time as such Letter of Credit Issuing Bank may agree in a particular instance in its sole discretion) on the proposed date of Issuance of such amendment (which shall be a Business Day), consider the amendment of any Letter of Credit Issued by it. Each such request for amendment of a Letter of Credit shall be made by facsimile or other electronic transmission, confirmed immediately in an original writing, made in the form of an L/C Amendment Application and shall specify in form and detail satisfactory to such Letter of Credit Issuing Bank: (A) the Letter of Credit to be amended; (B) the proposed date of amendment of the Letter of Credit (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as such Letter of Credit Issuing Bank may require. No Letter of Credit Issuing Bank shall be under any obligation to amend any Letter of Credit. No such amendment will be made if prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the proposed date of amendment, a Lender has provided the Administrative Agent with, and the Administrative Agent has actually received, a written notice in the form of Exhibit E. If the Administrative Agent does timely receive a written notice in the form of Exhibit E, the Administrative Agent shall notify the Borrower and the applicable Letter of Credit Issuing Bank by 2:00 p.m. New York time on the proposed date of amendment, and the proposed Letter of Credit will not be amended; provided, however, that if one or more Lenders do approve such amendment, the applicable Letter of Credit Issuing Bank shall notify all Lenders and the approving Lenders may elect to become the Approving Lenders and amend such Letter of Credit thereby triggering the Conversion to Approving Lenders Credit Extension Date.

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(b)    Notwithstanding anything to the contrary in Section 3.01(a) of this Agreement, a Letter of Credit Issuing Bank may, at its election, deliver any notices of termination or other communications to any Letter of Credit beneficiary or transferee not contrary to the terms of the related Letter of Credit or take any other action as necessary or appropriate, at any time and from time to time, in order to cause the expiration date of such Letter of Credit to be a date not later than the earlier of the Credit Facility Termination Date or the Expiration Date (but not earlier than the current expiration date of such Letter of Credit).

(c)    This Agreement shall control in the event of any conflict with any L/C-Related Document (other than any Letter of Credit), except that neither the Letter of Credit Issuing Bank thereof nor the Lenders participating therein shall be under any obligation to renew any Letter of Credit.

3.03    Payments, Drawings and Reimbursements in Respect of Letters of Credit; Collateral Coverage.

(a)    Payments.

(i)    Pursuant to the terms of each Payment Obligation Confirmation delivered to the Administrative Agent as a condition precedent to the Issuance of any Trade Letter of Credit hereunder, upon satisfaction of the Issuance Condition, J. Aron or the Borrower shall be obligated to deposit cash in an amount equal to the J. Aron Payment Obligation (as specified in such Payment Obligation Confirmation) into the J. Aron Crude Oil Provisional Payment Account on the related Collection Account Deposit Date, unless payment to the relevant Crude Oil Supplier has previously been made by the Borrower and documentary evidence reflecting the same in form and substance reasonably acceptable to the Administrative Agent has been delivered to the Administrative Agent with copies to the applicable Letter of Credit Issuing Bank and J. Aron. The Administrative Agent and the applicable Letter of Credit Issuing Bank may rely upon the amount of such J. Aron Payment Obligation stated in a Payment Obligation Confirmation without further act or inquiry in determining the necessary amount of each Trade Letter of Credit to satisfy the Issuance Condition and for all other purposes relating to the issuance of the related Letter of Credit.

(ii)    As a condition precedent to the Issuance of any Performance Letter of Credit hereunder, the Borrower shall be obligated to deposit cash in an amount equal to the Face Amount of such Performance Letter of Credit into a Collection Account.

(iii)    In connection with a Letter of Credit Related Payment, Borrower may provide from time to time an irrevocable written request to the Sub-Collateral Agent specifying the account into which proceeds deposited in a Collection Account may be transferred. Borrower hereby authorizes the Sub-Collateral Agent to use any proceeds deposited into a Collection Account, plus any Collateral Coverage amounts deposited into a Collection Account pursuant to Section 3.03(c) hereof, to make any and all required Letter of Credit Related Payments.

(b)    Drawings and Reimbursements. In the event that for any reason there are insufficient funds deposited to a Collection Account and allocated to the transactions related to said Letter of Credit as required pursuant to Section 3.03(a) hereof to cover, in full, the amount of any drawing under said Letter of Credit, not later than 2:00 p.m., New York time, on the day of any such drawing under said Letter of Credit, the Borrower shall pay to the applicable Letter of Credit Issuing Bank an amount equal to the difference between (x) the amount so drawn and (y) any amounts so deposited into a Collection Account pursuant to said Section 3.03(a) and allocated to the transactions related to said Letter of Credit, such payment to include appropriate information identifying the invoice and the cargo to which such payment request relates.

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(c)    Reimbursement of Letter of Credit Issuing Bank. In the event that a drawing under any Letter of Credit is not reimbursed by the Borrower by the time specified in Section 3.03(b) of this Agreement, the applicable Letter of Credit Issuing Bank will promptly so notify the Administrative Agent, which will promptly so notify each other Lender. Each such Lender (including without limitation any Lender that is a Declining Lender but was not a Declining Lender as of the date such Letter of Credit was Issued or amended) will then, on the Business Day of such notification, make available to the Administrative Agent for the account of such Letter of Credit Issuing Bank, at the Administrative Agent’s Principal Office, in immediately available funds, an amount equal to the amount of such Lender’s participation in such drawing, to reimburse such Letter of Credit Issuing Bank for the applicable portion of such drawing regardless of whether a Default or Event of Default has occurred and is continuing. Any payment made by a Lender pursuant to this paragraph to reimburse any Letter of Credit Issuing Bank for any drawing under any Letter of Credit shall not constitute a Revolving Credit Loan and shall not relieve the Borrower of its obligation to reimburse such drawing. In the event that any Lender fails to make available to the Administrative Agent for the account of such Letter of Credit Issuing Bank the amount required pursuant to the provisions of this Section 3.03(c), such Letter of Credit Issuing Bank will be entitled to recover such amount on demand from such Lender, together with interest thereon at the Federal Funds Rate. The agreements in this Section 3.03 shall survive termination of this Agreement and the other Credit Documents, the repayment of all amounts payable hereunder and thereunder, and the termination of all Letters of Credit. In the event that amounts shall subsequently be received by the Administrative Agent or any Letter of Credit Issuing Bank in reimbursement of a drawing under any Letter of Credit after such time as the Lenders shall have made a payment to the Administrative Agent as provided in this Section 3.03(c) to reimburse it in respect of the same drawing, the Administrative Agent shall promptly return (or cause the Letter of Credit Issuing Bank to return) such amounts paid by the Lenders on a pro rata basis in aggregate amount equal to the amount of such reimbursement payment subsequently received.

(d)    Collateral Coverage. If the Borrower requests that the face amount of any outstanding Letter of Credit be increased as required under the terms of its Delivered or FOB Crude Oil Purchase and the Administrative Agent determines in its Permitted Discretion that the Collateral deposited by the Borrower as Collateral Coverage for such Letter of Credit is less than the aggregate amount of Collateral Coverage that would be required if such an increase were in effect, then as a condition to agreeing to such increase request, the Administrative Agent shall request that the Borrower deposit additional collateral of the type required as Collateral Coverage in an amount sufficient so that, as such additional deposit is made, the aggregate amount of Collateral Coverage held in the appropriate Collection Account is equal to the amount required as Collateral Coverage for such increased Letter of Credit. Upon receipt of such a request, the Borrower shall deposit such collateral equal to the Collateral Coverage into the appropriate Collection Accounts within one (1) Business Day.

(e)    Cash Collateral in Respect of a Defaulting Lender. Anything contained herein to the contrary notwithstanding, in the event that any Lender becomes a Defaulting Lender, then each Letter of Credit Issuing Bank with respect to each Letter of Credit it has Issued may, in its sole discretion, require such Defaulting Lender or, in the event such Defaulting Lender fails to do so, require the Borrower to deposit Cash Collateral with the Administrative Agent in an aggregate amount equal to such Defaulting Lender’s participations in any requested or outstanding Letter of Credit Issued by such Letter of Credit Issuing Bank, a first priority security interest in which Cash Collateral is hereby granted in favor of the Administrative Agent, for the sole benefit of such Letter of Credit Issuing Bank. In the event that such Defaulting Lender fails to deposit cash collateral as required hereby and the Borrower is required to do so, the Borrower may, at any time thereafter, upon five (5) Business Days prior written notice to such Defaulting Lender, require that such Defaulting Lender terminate its obligations hereunder and under the other Credit Documents and transfer all of its Lender’s Aggregate Accommodations to one or more of the existing Lenders (upon their consent to accept such accommodations) or to one or more new Lenders acceptable to the Borrower and the Administrative Agent if such transferee Lenders can be found.

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3.04    Role of a Letter of Credit Issuing Bank.

(a)    Each Letter of Credit Issuing Bank and the Borrower agree that, in paying any drawing under a Letter of Credit, no Letter of Credit Issuing Bank shall have any responsibility to obtain any document (other than any sight draft and certificates expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.

(b)    No Letter of Credit Issuing Bank-Related Person, no Lender nor any of the respective correspondents, participants or assignees of a Letter of Credit Issuing Bank shall be liable for: (i) any action taken or omitted in connection herewith at the request or with the approval of any Letter of Credit Issuing Bank; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any L/C-Related Document.

(c)    The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. No Letter of Credit Issuing Bank-Related Person, no Lender nor any of the respective correspondents, participants or assignees of any Letter of Credit Issuing Bank shall be liable or responsible for any of the matters described in Section 3.05 of this Agreement; provided, however, anything in such clauses to the contrary notwithstanding, that the Borrower may have a claim against a Letter of Credit Issuing Bank, and such Letter of Credit Issuing Bank may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such Letter of Credit Issuing Bank’s willful misconduct or gross negligence or such Letter of Credit Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing: (i) a Letter of Credit Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; and (ii) no Letter of Credit Issuing Bank shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

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3.05    Obligations Absolute. The Obligations of the Borrower under this Agreement and any L/C-Related Document to reimburse each Letter of Credit Issuing Bank for a drawing under a Letter of Credit Issued by it shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement and each such other L/C-Related Document under all circumstances, including the following:

(a)    any lack of validity or enforceability of this Agreement or any L/C-Related Document;

(b)    any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of the Borrower in respect of any Letter of Credit or any other amendment or waiver of or any consent to departure from all or any of the L/C-Related Documents;

(c)    the existence of any claim, set off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such Letter of Credit Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the L/C-Related Documents or any unrelated transaction;

(d)    any draft, demand, certificate or 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;

(e)    any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit;

(f)    any payment by such Letter of Credit Issuing Bank under any Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of any Letter of Credit; or any payment made by such Letter of Credit Issuing Bank under any Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of any Letter of Credit, including any arising in connection with any Insolvency Proceeding;

(g)    any exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Parent Guaranty or any other guaranty, for all or any of the Obligations of the Borrower in respect of any Letter of Credit; or

(h)    any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or the Parent Guarantor.

3.06    Cash Collateral Pledge.

(a)    Borrower shall be obligated to deposit into the J. Aron Crude Oil Provisional Payment Account Cash Collateral equal to 105% of the following amounts (without duplication) plus, for Trade Letters of Credit Issued for FOB Crude Oil Purchases, any previously provided Cash Collateral, in each case upon the occurrence of any of the following events:

(i)    If any Letters of Credit may for any reason remain outstanding and partially or wholly undrawn as of the Credit Facility Termination Date, not more than 5 Business Days prior to the Credit Facility Termination Date and upon the request of the Administrative Agent or the Required Lenders, an amount sufficient to cover the sum of (x) the aggregate undrawn Face Amount of all Letters of Credit with an expiry date after the Credit Facility Termination Date and (y) the aggregate amount of any drawings under outstanding Letters of Credit which have not yet been reimbursed by the Borrower to the applicable Letter of Credit Issuing Bank;

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(ii)    Upon the occurrence and continuation of an Event of Default hereunder (and immediately without any request or further action by any Person upon the occurrence of an Event of Default under Section 9.01(h) of this Agreement) and upon the request of the Administrative Agent or the Required Lenders, an amount sufficient to cover the sum of (x) the aggregate undrawn Face Amount of all Letters of Credit and (y) the aggregate amount of any drawings under outstanding Letters of Credit which have not yet been reimbursed by the Borrower to the applicable Letter of Credit Issuing Bank; and

(iii)    As required by Sections 2.07(c) and 7.21 of this Agreement.

(b)    Cash Collateral will be returned to the Borrower in each case when, either (i) in the Administrative Agent’s Permitted Discretion circumstances giving rise to such Cash Collateral as provided in this Section 3.06 no longer are continuing, (ii) the underlying Event of Default giving rise to such Cash Collateral as provided in Section 3.06(a)(ii) (x) has been waived or (y) after the applicable Letter of Credit to which such Cash Collateral relates expires or is terminated and no L/C Obligations remain outstanding with respect thereto (in which case only the Cash Collateral related to such Letter of Credit shall be returned), or (iii) the obligations of the Borrower to the Administrative Agent and the Lenders covered thereby have been indefeasibly repaid or otherwise reduced by the Borrower by the amount of such repayment or reduction; provided that, if any Revolving Credit Loan has been made that is related to a Trade Letter of Credit for an FOB Crude Oil Purchase, the associated FOB Trade LC Additional Cash Collateral shall remain on deposit in the FOB Trade Collateral Account until such Revolving Credit Loan has been repaid in full.

(c)    All cash collateralized Letters of Credit, other than cash collateralized Letters of Credit remaining outstanding after the Credit Facility Termination Date to the extent permitted by the Administrative Agent (and, if applicable, the Lenders) shall also remain secured by all other Collateral pledged under the Credit Documents.

(d)    If any additional Cash Collateral is deposited pursuant to Section 3.06(a), the amount of then outstanding J. Aron Payment Obligations that J. Aron is required to deposit into a Collection Account shall be reduced on a dollar-for-dollar basis, with such reduction being made by J. Aron in chronological order starting with the J. Aron Payment Obligation it expects to become due earliest based J. Aron’s commercially reasonable estimate of when the relevant Crude Oil shipment will be delivered to the Crude Intake Point; provided, that any such reduction in the amount payable and to be deposited by J. Aron into a Collection Account shall remain payable by J. Aron to the Borrower, subject to all rights and remedies of J. Aron under the Supply and Offtake Agreement and the other documentation related thereto.

3.07    Letter of Credit Fees.

(a)    The Borrower shall pay (i) to each Letter of Credit Issuing Bank a fronting fee equal to 0.25% per annum on the Face Amount of each Letter of Credit Issued by such Letter of Credit Issuing Bank, payable monthly in arrears on the twenty-fifth calendar day of the following month (if such day is a Business Day, and if not on the next succeeding Business Day), subject to a minimum fronting fee of $750; and (ii) to the Administrative Agent for the account of such Letter of Credit Issuing Bank and for the pro rata benefit of each of the Lenders purchasing a participation interest therein pursuant to Section 3.01(b) of this Agreement, a letter of credit commission (the “L/C Commission”) in an amount equal to (i) the greater of (x) $750 and (y) (A) 2.00% per annum of the Face Amount of any Trade Letter of Credit or (B) 2.25% per annum of the Face Amount of any Performance Letter of Credit, each payable monthly in arrears on the twenty-fifth calendar day of the following month (if such day is a Business Day, and if not on the next succeeding Business Day). In the event that any Letter of Credit is scheduled to expire after the Credit Facility Termination Date hereof, all Letter of Credit fees due with respect to such Letter of Credit shall be payable in full on or prior to the Credit Facility Termination Date and Cash Collateral shall be required to be deposited with the Administrative Agent in accordance with Section 3.06 of this Agreement.

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(b)    The Borrower shall pay to each Letter of Credit Issuing Bank from time to time (i) on demand for its own account only the issuance, negotiation, amendment and other processing fees, and other costs and charges, of such Letter of Credit Issuing Bank relating to the Issuance of the Letters of Credit at its customary rates as determined by reference to a written fee schedule which will be provided to the Borrower from time to time upon request including, without limitation, a fee of $100 per amendment for amending the text of any Letter of Credit which shall be retained by such Letter of Credit Issuing Bank for its own account and (ii) monthly in arrears on the twenty-fifth (25^th) day of the following calendar month (if such day is a Business Day, and if not on the next succeeding Business Day), the L/C Commission for any extension or increase in the Face Amount of any Letter of Credit as permitted pursuant to Section 3.02 of this Agreement which shall be shared by the participants in such Letter of Credit on a pro rata basis based upon the percentage of its participation in such Letter of Credit.

(c)    At any time during which an Event of Default shall have occurred and is continuing hereunder and at the election of either the Administrative Agent or the Required Lenders, all fees which may be due and payable pursuant to this Section 3.07 shall bear interest at the Default Rate.

3.08    Uniform Customs and Practice. Each Letter of Credit may be governed by: (a) the Uniform Customs and Practice for Documentary Credits as published by the International Chamber of Commerce; (b) the International Standby Practices for Letters of Credit; (c) the laws of the State of New York or the United Kingdom, or (d) any other law or regulation acceptable to the Administrative Agent and the applicable Letter of Credit Issuing Bank, in each case as in effect most recently at the time of issuance of such Letter of Credit.

3.09    Procedures for Reduction or Cancellation of Letters of Credit. The Borrower may send a Letter of Credit Issuing Bank confirmation that payment was made directly to the beneficiary of any outstanding Letter of Credit Issued by such Letter of Credit Issuing Bank (each a “Letter of Credit Payment Confirmation”). Any such Letter of Credit Payment Confirmation will include appropriate information identifying the invoice and the cargo to which such payment relates, wire transfer details with respect to such payment, the applicable Letter of Credit number and whether such Letter of Credit shall be reduced by the amount of such payment or cancelled. Upon receipt of a Letter of Credit Payment Confirmation, the applicable Letter of Credit Issuing Bank shall:

(a)    if the applicable Letter of Credit includes an automatic reduction clause, a balance remains on such Letter of Credit following the payment referenced in the Letter of Credit Payment Confirmation and the Letter of Credit Payment Confirmation indicates that the applicable Letter of Credit should be cancelled, use its commercially reasonable efforts to have such Letter of Credit cancelled (including seeking the consent of the beneficiary of such Letter of Credit to the cancellation), and, upon receipt of such cancellation, send the evidence of such cancellation to the Administrative Agent and the Borrower; and

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(b)    if the applicable Letter of Credit does not include an automatic reduction clause, use its commercially reasonable efforts to have such Letter of Credit reduced by the amount of the applicable payment or cancelled in accordance with the Letter of Credit Payment Confirmation, and upon such Letter of Credit being reduced or cancelled, send the evidence of the same to the Administrative Agent and the Borrower.

For the avoidance of doubt, each Letter of Credit Payment Confirmation shall be deemed to be a request by the Borrower that the applicable Letter of Credit Issuing Bank have the applicable Letter of Credit amended or cancelled in accordance with clauses (a) and (b) above and the Borrower shall not be required to deliver a separate amendment request.

ARTICLE IV.

TAXES, COMPENSATION, SHARING OF PAYMENTS

4.01    Taxes.

(a)    Any and all payments by the Borrower to any Lender, the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Letter of Credit Issuing Bank under this Agreement and any other Credit Document shall be made free and clear of, and without deduction or withholding for any Taxes, except as required by applicable law. In addition, the Borrower 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.

(b)    The Borrower agrees to indemnify and hold harmless each Lender, the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and each Letter of Credit Issuing Bank for the full amount of Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section) paid or payable by such Lender, Administrative Agent, Collateral Agent, Sub-Collateral Agent or Letter of Credit Issuing Bank, or required to be withheld or deducted from a payment to such recipient, in connection with the transactions contemplated by this Agreement and the other Credit Documents and any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days after the date the Administrative Agent makes written demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower 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.

(c)    Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified 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 11.08(b) 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 paragraph (c).

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(d)    If the Borrower shall be required by law to deduct or withhold any Indemnified Taxes or Other Taxes from or in respect of any sum payable hereunder to the Administrative Agent, Collateral Agent, Sub-Collateral Agent, any Lender or any Letter of Credit Issuing Bank then:

(i)    the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section) such Administrative Agent, Collateral Agent, Sub-Collateral Agent, Lender or Letter of Credit Issuing Bank receives an amount equal to the sum it would have received had no such deductions or withholdings been made;

(ii)    the Borrower shall make such deductions and withholdings; and

(iii)    the Borrower shall pay the full amount deducted or withheld to the relevant taxing authority or other authority in accordance with applicable law.

(e)    Within 30 days after the date of any payment by the Borrower of Indemnified Taxes or Other Taxes, the Borrower shall furnish the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment satisfactory to the Administrative Agent.

(f)    If the Borrower is required to pay additional amounts to the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent, any Lender or any Letter of Credit Issuing Bank pursuant to clause (c) of this Section 4.01, then the Administrative Agent, Collateral Agent, Sub-Collateral Agent, such Lender or such Letter of Credit Issuing Bank shall, at the request of Borrower, use commercially reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office or letter of credit issuing office so as to eliminate any such additional payment by the Borrower which may thereafter accrue, if such change in the judgment of the Administrative Agent, Collateral Agent, Sub-Collateral Agent, such Lender or such Letter of Credit Issuing Bank is not otherwise disadvantageous to the Administrative Agent, Collateral Agent, Sub-Collateral Agent, such Lender or such Letter of Credit Issuing Bank.

(g)    Each of the Administrative Agent, Collateral Agent, Sub-Collateral Agent and any Lender that is a Non-U.S. Person agrees that it shall on the date it becomes a Lender, Administrative Agent, Collateral Agent or Sub-Collateral Agent hereunder, deliver to the Borrower and the Administrative Agent (x) for the purpose of establishing foreign status and claiming that payments made to it hereunder are effectively connected with the conduct of a trade or business in the United States, one duly completed and executed copy of United States Internal Revenue Service Form W-8ECI (or replacement or successor form thereto), (y) for the purpose of establishing foreign status and exemption from, or a reduced rate of, withholding as a resident of a foreign country with which the United States has an income tax treaty, one duly completed and executed copy of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (or replacement or successor form thereto), or (z) for the purpose of establishing the portfolio interest exemption from United States Federal withholding tax pursuant to Sections 871(h) or 881(c) of the Code, both (i) one duly completed and executed copy of a United States Internal Revenue Service Form W 8BEN, W-8BEN-E (or replacement or successor form thereto), and (ii) a certificate representing that such Non-U.S. Person is not a “bank” for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code), in each case such documentation certifying that such Lender, Administrative Agent, Collateral Agent or Sub-Collateral Agent is entitled to receive payments hereunder payable to it without deduction or withholding of any United States Federal income taxes, or subject to a reduced rate thereof; provided, however, that any Administrative Agent, Collateral Agent, Sub-Collateral Agent or Lender that is not the beneficial owner of a payment shall provide the Administrative Agent and the Borrower with (x) one duly completed and executed copy of United States Internal Revenue Service Form W-8IMY (in lieu of the Form W-8BEN, W-8BEN-E or W-8ECI), and (y) all additional forms or certifications, as provided in Treasury Regulation §1.1441-1(e)(3), required to be attached to such Form W-8IMY, necessary to establish that the Administrative Agent, Collateral Agent, Sub-Collateral Agent or the Lender, in its capacity as an intermediary, is entitled to receive payments hereunder without deduction or withholding of any United States Federal income taxes, or subject to a reduced rate thereof. A Non-U.S. Person shall be required to furnish any such form or certificate only if it is entitled to claim an exemption from, or a reduced rate of, withholding. Each of Administrative Agent, Collateral Agent, Sub-Collateral Agent and any Lender that is a U.S. Person agrees that it shall on the date it becomes a Lender, Administrative Agent, Collateral Agent or Sub-Collateral Agent hereunder, deliver to the Borrower and the Administrative Agent one duly executed and completed Internal Revenue Service Form W-9 (or replacement or successor form thereto), and such other documentation as may be otherwise required to establish that there is no withholding, including backup withholding, with respect to any payment under any Credit Document, and to satisfy, and allow the Borrower to satisfy, any informational reporting requirements with respect to the Obligations and Credit Documents.

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(h)    If any Lender which is a Non-U.S. Person sells an assignment or participating interest pursuant to Section 11.08 of this Agreement or otherwise ceases to own the beneficial interest in all or a portion of its Revolving Credit Loans and L/C Obligations (as such term is defined in Treasury Regulation section 1.1441-1(c)(6)), such Lender shall, at the time of the sale of the beneficial interest, provide the Borrower and the Administrative Agent with revised forms, reflecting the portion of its Revolving Credit Loans and L/C Obligations which have been sold on one duly completed and executed copy of United States Internal Revenue Service Form W-8IMY (or replacement or successor from thereto) and required attachments thereto, and that portion of its Revolving Credit Loans and L/C Obligations retained on one duly completed and executed copy of United States Internal Revenue Service Form W-8BEN, W-8BEN-E or W-8ECI (or replacement or successor form thereto).

(i)    Each of the Administrative Agent, Collateral Agent, Sub-Collateral Agent or any Lender that delivers to the Borrower and the Administrative Agent any such form or certification as required under this Section 4.01 agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(j)    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 Sections 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 law and such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or 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 purposed of this clause (j) “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

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(k)    To the extent the Administrative Agent, Collateral Agent, Sub-Collateral Agent, any Lender or any Letter of Credit Issuing Bank receives a refund of any amounts with respect to which it was indemnified pursuant to this Section 4.01, it shall pay such refund over to the Borrower; provided, however, that none of the foregoing shall have any obligation to pay such amount over to the Borrower to the extent it would place them in a less favorable after-Tax position than would be the case if the Tax with respect to which it was indemnified hereunder was not deducted, withheld or imposed in the first instance.

4.02    Increased Costs and Reduced Return; Capital Adequacy.

(a)    If any Lender determines that as a result of any Regulatory Change after the Closing Date or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of Issuing or participating in Letters of Credit or making Revolving Credit Loans, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this subsection (a) any such increased costs or reduction in amount resulting from (i) Indemnified Taxes, Excluded Taxes or Other Taxes (as to which Section 4.01 of this Agreement shall govern), and (ii) reserve requirements, then from time to time upon demand of such Lender (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 (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”).

(b)    If any Lender determines that the introduction of any Capital Adequacy Regulation or Regulatory Change or in the interpretation thereof, 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 liquidity requirements and such Lender’s desired return on capital), then from time to time upon demand of such Lender (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.

(c)    For purposes of this Section 4.02, each of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as enacted by the United States Congress, and all statutes, rules, guidelines or directives promulgated thereunder and the Basel Accord shall be deemed to be a Regulatory Change made subsequent to the Closing Date.

(d)    Without limiting the effect of the foregoing provision of this Section 4.02 (but without duplication), the Borrower shall pay directly to each Lender from time to time on request such amounts as such Lender may reasonably determine to be necessary to compensate it for any costs that are attributable to the maintenance by it, pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any court or governmental or monetary authority implemented after the Closing Date (i) following any Regulatory Change or (ii) instituting any risk-based capital guideline or other requirement (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) heretofore or hereafter issued by any government or governmental or supervisory authority implementing at the national level the Basel Accord (including, without limitation, the Final Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R. Part 225, Appendix A) and the Final Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital in respect of its extensions of credit (such compensation to include, without limitation, an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any applicable lending office) to a level below that which such Lender (or any applicable lending office) could have achieved but for such law, regulation, interpretation, directive or request). For purposes of this Section 4.02, “Basel Accord” means the proposals for risk-based capital framework described by the Basel Committee on Banking Regulations and Supervisory Practices in its paper entitled “International Convergence of Capital Measurement and Capital Standards” dated July 1988, and in its paper entitled “Basel III: A global regulatory framework for more resilient banks and banking systems”, dated December 2010, in each case as amended, modified and supplemented and in effect from time to time or any replacement thereof.

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4.03    Certificate of Administrative Agent. Upon claiming reimbursement or compensation under this Article IV the Administrative Agent, Collateral Agent, Sub-Collateral Agent, any Lender or any Letter of Credit Issuing Bank shall deliver to the Borrower a certificate setting forth in reasonable detail the amount payable to the Administrative Agent, Collateral Agent, Sub-Collateral Agent, such Lender or such Letter of Credit Issuing Bank hereunder and such certificate shall be conclusive and binding on the Borrower in the absence of manifest error, provided that such certificate need not disclose any information that is sensitive, confidential or legally restricted.

4.04    Pro Rata Treatment. Except to the extent otherwise provided herein each payment of letter of credit fees (except for those which are for the sole account of a Letter of Credit Issuing Bank) shall be made for account of the Lenders and shall be made on the basis of their respective Pro Rata Shares.

4.05    Survival. The agreements in this Article IV shall survive the resignation or replacement of the Administrative Agent or the Collateral Agent or any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the other Credit Documents, the repayment, satisfaction or discharge of all amounts payable hereunder and thereunder, and the termination or expiration of all Letters of Credit.

4.06    Defaulting Lenders. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Lender becomes a Defaulting Lender, the following provisions shall apply so long as any Lender is a Defaulting Lender:

(a)    If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its Lender’s Aggregate Accommodations which results in its Lender’s Aggregate Accommodations being less than its Pro Rata Share of the Obligations, then payments (including principal, interest and fees) to such Defaulting Lender will be suspended until such time as all amounts due and owing to the Lenders has been equalized in accordance with each of the Lenders’ respective Pro Rata Share of the Obligations. Further, if at any time prior to the acceleration or maturity of the Obligations, the Administrative Agent shall receive any payment in respect of reimbursement of any Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Obligation(s) for which such Defaulting Lender(s) shall have failed to fund its Pro Rata Share until such time as such Obligation(s) are paid in full. After acceleration or maturity of the Obligations, subject to the first sentence of this Section 4.06(a), all amounts due to the Lenders in respect of the Obligations will be paid ratably in accordance with this Agreement.

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(b)    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:

(i)    fees shall cease to accrue on the unfunded portion of the Maximum Credit Limit of such Defaulting Lender pursuant to Section 2.13 of this Agreement and under any Fee Letter entered into for the benefit of such Defaulting Lender, regardless of whether such Defaulting Lender is a party thereto.

(ii)    Such 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 definition of “Required Lenders” and Section 11.01.

(iii)    with respect to any L/C Obligations that exist at the time a Lender becomes a Defaulting Lender or thereafter:

(A)    all or any part of such the Defaulting Lender’s Pro Rata Share of the L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share (calculated without regard to such Defaulting Lender’s Maximum Credit Limit) but only to the extent (x) the sum of all of the Lender’s Aggregate Accommodations of the Non-Defaulting Lenders’ plus such Defaulting Lender’s Pro Rata Share of the L/C Obligations does not exceed the total of all Non-Defaulting Lenders’ Maximum Credit Limits and (y) the conditions set forth in Section 5.02 of this Agreement are satisfied or waived at such time; provided, that subject to Section 11.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;

(B)    if the reallocation described in clause (iii)(A) above cannot, or can only partially, be effected, then the Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lender’s Pro Rata Share of the L/C Obligations (after giving effect to any partial reallocation pursuant to clause (iii)(A) above) in accordance with the terms of this Agreement for so long as such L/C Obligations are outstanding;

(C)    if the Borrower cash collateralizes any portion of such Defaulting Lender’s Pro Rata Share of the L/C Obligations pursuant to this Section 4.06 then the Borrower shall not be required to pay any fees for the pro rata benefit of such Defaulting Lender pursuant to Section 3.07 of this Agreement with respect to such Defaulting Lender’s Pro Rata Share of the L/C Obligations during the period such Defaulting Lender’s Pro Rata Share of the L/C Obligations is cash collateralized;

(D)    if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to this Section 4.06 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.13 or Section 3.07 of this Agreement with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligation is cash collateralized; or

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(E)    if any Defaulting Lender’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to this Section 4.06(b)(iii), then, without prejudice to any rights or remedies of any Letter of Credit Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 3.07 of this Agreement with respect to such Defaulting Lender’s Pro Rata Share of the L/C Obligations shall be payable to the applicable Letter of Credit Issuing Bank until such Pro Rata Share of the L/C Obligations is cash collateralized, reallocated, or repaid in full.

(c)    So long as any Lender is a Defaulting Lender, no Letter of Credit Issuing Bank shall be required to Issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Maximum Credit Limits of the Non-Defaulting Lenders and/or cash collateral will be provided by Defaulting Lender or the Borrower in accordance with Section 3.03(e) of this Agreement, and participating interests in any such newly Issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 3.01(b) of this Agreement (and Defaulting Lenders shall not participate therein).

(d)    In the event that the Administrative Agent, the Borrower and the applicable Letter of Credit Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Pro Rata Share of the L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Maximum Credit Limit and on such date such Lender shall purchase at par (or, to the extent no cash obligations are outstanding, shall be deemed to have interests in such of the L/C Obligations of the other Lenders) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such L/C Obligations in accordance with its Pro Rata Share as though it were not a Defaulting Lender.

4.07    Replacement of Lenders. If any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort (including the reasonable cost of any legal fees and legal or other expenses of the Administrative Agent and any Non-Consenting Lender incurred in connection therewith), upon notice to such Lender, the Administrative Agent and, if applicable, any Letter of Credit Issuing Bank(s) with respect to L/C Obligations, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.07), all of its interests, rights (other than its existing rights to payments pursuant to Section 4.01 or Section 4.02) and obligations under this Agreement and the related Credit Documents to an Eligible Assignee reasonably acceptable to the Administrative Agent and, if applicable, any Letter of Credit Issuing Bank(s) with respect to L/C Obligations, which Eligible Assignee shall assume such obligations (which assignee may be another Lender without the consent of the Administrative Agent or the applicable Letter of Credit Issuing Bank(s), if a Lender accepts such assignment); provided that:

(i)    the consents of the Administrative Agent and Letter of Credit Issuing Banks, if applicable, required under this Section 4.07 shall have been obtained in writing in form and substance reasonably acceptable to the Administrative Agent;

(ii)    Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.08;

(iii)    such Lender shall have received payment of an amount equal to such Lender’s Aggregate Accommodations, accrued fees and all other amounts payable to it under this Agreement and under the other Credit Documents from the assignee (with respect to Lender’s Aggregate Accommodations and accrued fees) or the Borrower (with respect to any other amounts);

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(iv)    such assignment does not conflict with any applicable law; and

(v)    in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver, or consent.

ARTICLE V.

CONDITIONS PRECEDENT

5.01    Conditions Precedent to the Effectiveness of this Agreement. The agreement of the Lenders and Letter of Credit Issuing Banks, on an UNCOMMITTED AND ABSOLUTELY DISCRETIONARY basis, and on the terms and conditions set forth herein, to consider making any Revolving Credit Loans or Issuing or participating in Letters of Credit hereunder, is subject to the satisfaction of the following conditions precedent:

(a)    Credit Documents. The Administrative Agent shall have received this Agreement, the Security Documents, the Acknowledgement Agreement and all other Credit Documents (excluding the L/C Related Documents) executed by the Borrower and, if applicable, by the Collateral Agent, J. Aron or each other applicable party thereto, and each other document or certificate required to be executed in connection with this Agreement, shall have been duly executed by each party thereto and delivered to the Administrative Agent.

(b)    J. Aron CP Documentation. The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying the fully executed and effective J. Aron CP Documentation certified as of the Closing Date by a Responsible Officer of the Borrower.

(c)    Parent Guaranty. The Administrative Agent shall have received the Parent Guaranty duly executed and delivered by the Parent Guarantor.

(d)    Resolutions; Incumbency. The Administrative Agent shall have received:

(i)    Copies of the resolutions adopted by the sole member of the Borrower and the board of managers of the Parent Guarantor, authorizing the transactions contemplated hereby, certified as of the Closing Date by a Responsible Officer of the Borrower or the Parent Guarantor, as applicable; and

(ii)    A certificate of a Responsible Officer of the Borrower and of the Parent Guarantor certifying the names and true signatures of the officers of the Borrower and the Parent Guarantor authorized to execute, deliver and perform, this Agreement and all other Credit Documents to which they are a party.

(e)    Organizational Documents; Good Standing. The Administrative Agent shall have received each of the following documents:

(i)    the Organizational Documents of the Borrower and the Parent Guarantor as in effect on the Closing Date, certified by a Responsible Officer of the Borrower or the Parent Guarantor, as applicable, as of the Closing Date; and

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(ii)    a good standing certificate for the Borrower and the Parent Guarantor from the Secretary of State (or similar, applicable Governmental Authority) of its state of organization and for the Borrower and its Subsidiaries, if any, from each state where its ownership, lease or operation of property or the conduct of its business requires it to be qualified to do business as a foreign entity, certified as of, or reasonably close to, the Closing Date.

(f)    Legal Opinions. The Administrative Agent shall have received opinions of New York, Delaware and Hawaii counsel to the Borrower and the Parent Guarantor including, without limitation, opinions regarding: (A) enforceability of the Credit Documents to which it is a party under the laws of the State of New York and (B) the perfection of security interest in the Collateral under applicable law.

(g)    Financing Statements; UCC Searches; Lien Releases. The Administrative Agent shall have received (i) evidence in form and substance satisfactory to the Administrative Agent and its counsel that Uniform Commercial Code financing statements have been properly filed in the jurisdiction of organization of the Borrower and in any other location reasonably required by the Administrative Agent and its counsel (including any applicable filings relating to the Borrower as a transmitting utility), in each case in form and substance acceptable to the Administrative Agent and its counsel, and either executed by the Borrower or as to which the Borrower has authorized the Administrative Agent in writing to file on its behalf without its signature, (ii) UCC searches in each of the jurisdictions where the Administrative Agent and its counsel may reasonably request to determine the existence of Liens upon any of the Collateral or judgment or tax liens against the Borrower and the Parent Guarantor; and (iii) evidence in form and substance satisfactory to the Administrative Agent that any Liens that are not Permitted Collateral Liens have been (or will be automatically upon issuance of the initial Letter of Credit hereunder) released.

(h)    Financial Statements and Compliance With Compliance Guideline. The Administrative Agent shall have received the most recently available annual audited financial statements of the Borrower and the Parent Guarantor referred to in Section 7.01(b) and (d) hereof as well as a report calculating the compliance of the Borrower with Section 8.02 hereof in form and substance reasonably acceptable to the Administrative Agent as of a date no more than seven (7) days prior to the Closing Date.

(i)    Payment of Fees. The Administrative Agent shall have received evidence of payment by the Borrower of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date (including, without limitation, as set forth in the Fee Letters to be executed and delivered as provided in Section 2.13 hereof), together with all reasonable Attorney Costs of the Administrative Agent and the Collateral Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of reasonable Attorney Costs as shall constitute the Administrative Agent’s and Collateral Agent’s reasonable estimates of their respective Attorney Costs incurred or to be incurred by it through the closing proceedings and ordinary and customary post-closing tasks such as compilation and distribution of the Credit Documents (provided that such estimate shall not thereafter preclude final settling of accounts between the Borrower and the Administrative Agent and the Collateral Agent, as applicable); including any such costs, fees and expenses arising under or referenced in Sections 2.05 and 11.04 of this Agreement and all costs of the auditors and consultants retained by the Administrative Agent in connection with the obligations of the Borrower to the Administrative Agent.

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(j)    Certificate. The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower, dated as of the Closing Date, stating that:

(i)    the representations and warranties contained in Article VI are true and correct on and as of such date in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any such qualification contained therein) in all respects), as though made on and as of such date;

(ii)    no Default or Event of Default exists or, if a Borrowing is to be made or a Letter of Credit is to be issued on the Closing Date, would result from such Borrowing or the issuance of the such Letter of Credit, and

(iii)    no event has occurred since the date of the most recent financial statements delivered by the Borrower described in Section 6.11 hereof that would have a Material Adverse Effect.

(k)    Collection Account. The Administrative Agent shall have received evidence reasonably acceptable to it that the Collection Accounts have been established and that all actions have been taken that may be reasonably requested by the Sub-Collateral Agent, the Administrative Agent or their respective counsel to perfect the Sub-Collateral Agent’s security interest therein for the benefit of the Secured Parties (including the execution and delivery by all parties thereto of the Collection Account DACA in form and substance acceptable to the Administrative Agent and J. Aron).

(l)    Evidence of Insurance. The Administrative Agent shall have received certificates of insurance evidencing the existence of all insurance required to be maintained by the Borrower and its Subsidiaries, if any, pursuant to Section 7.06 of this Agreement and the designation of the Collateral Agent as the lender loss payee with respect to property insurance on the Collateral and the Collateral Agent and the Administrative Agent as additional named insured with respect to liability insurance, as the case may be, thereunder to the extent required by said Section 7.06 of this Agreement, such certificates to be in such form and contain such information as is specified in said Section 7.06 of this Agreement. In addition, the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer setting forth the insurance obtained by it in accordance with the requirements of Section 7.06 of this Agreement and stating that such insurance is in full force and effect and that all premiums then due and payable thereon have been paid.

(m)    Credit and Risk Management Policy. The Administrative Agent shall have received a copy of the Credit and Risk Management Policy.

(n)    Beneficial Ownership. At least five (5) Business Days prior to the Closing Date, if the Borrower or the Parent Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower or the Parent Guarantor, as applicable.

(o)    Other Documents. The Administrative Agent shall have received such other approvals, opinions, documents or materials as the Administrative Agent, the Collateral Agent or any Lender may reasonably request, including, without limitation, the documents and certificates listed in Sections 7.01(a), (b) and (d) and 7.02(a) and (b) of this Agreement.

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5.02    Conditions Precedent to all Credit Extensions. In addition to the conditions precedent to the effectiveness of this Agreement set forth in Section 5.01 hereof, the agreement of the Lenders and Letter of Credit Issuing Banks, on an UNCOMMITTED AND ABSOLUTELY DISCRETIONARY basis, and on the terms and conditions set forth herein, to consider making any Revolving Credit Loans or Issuing or participating in any Letter of Credit, is subject to the satisfaction, immediately prior to or concurrently with the making of a Request for Credit Extension, of the following conditions precedent:

(a)    Notice and Application. The Administrative Agent and the applicable Letter of Credit Issuing Bank, if applicable, shall have received a Request for Credit Extension by the time specified in Sections 2.03, 3.01 or 3.02, as applicable.

(b)    Continuation of Representations and Warranties. The representations and warranties in Article VI shall be true and correct in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any such qualification contained therein) in all respects) on and as of the date of such Borrowing or such L/C Issuance Date, as applicable, with the same effect as if made on and as of the date of such Borrowing or such L/C Issuance Date, as applicable, including, without limitation, the absence of any Material Adverse Effect or material litigation where an adverse judgment could reasonably be expected to have a Material Adverse Effect.

(c)    Acceptability of Collateral: (i) The Collateral securing such Borrowing or such Letter of Credit, as applicable, (A) has been identified to the Administrative Agent; (B) is, in the Administrative Agent’s reasonable opinion, sufficient in value to secure the Borrowing to be made or the Letter of Credit to be issued in connection therewith; and (C) complies in all material respects with the definition of “Collateral” in Section 1.01 hereof and the Account Receivable Requirements and the Inventory Requirements, as applicable; (ii) in the case of Letters of Credit, the Collateral Coverage determined as of the L/C Issuance Date of said Letter of Credit shall have been deposited by the Borrower into the appropriate Collection Account (or otherwise delivered to the Administrative Agent in a reasonably acceptable manner such that the Administrative Agent or the Collateral Agent shall have a perfected security interest therein for the benefit of the Secured Parties), and (iii) the Administrative Agent and the applicable Letter of Credit Issuing Bank, if applicable, believe, in their reasonable discretion, that the Borrower has the ability to provide sufficient Collateral Coverage for said Borrowing or the Issuance of said Letter of Credit throughout its term.

(d)    Receipt of J. Aron Related Documentation. If the Request for Credit Extension is for a Trade Letter of Credit, the Administrative Agent shall have received a copy of (i) [reserved], (ii) a Company Proposal Email, including the proposed trade ticket for an L/C Related Aron Procurement Contract, which the Borrower shall have emailed to J. Aron and the Administrative Agent and (iii) a Payment Obligation Confirmation which J. Aron shall have emailed to the Borrower and the Administrative Agent, each of which documents are in form and substance satisfactory to the Administrative Agent. If the Request for Credit Extension is for a Borrowing, the Administrative Agent shall have received a written confirmation from the Borrower that the Payment Obligation Confirmation for the Trade Letter of Credit related to such Revolving Credit Loan are in full force and effect.

(e)    Purchase Contract and Provisional Invoice. If the Request for Credit Extension is for a Trade Letter of Credit, the Administrative Agent shall have received a copy of (i) the applicable L/C Eligible Refinery Procurement Contract between the Crude Oil Supplier and the Borrower and (ii) the related provisional sales invoice under the L/C Eligible Refinery Procurement Contract, if available, from the Crude Oil Supplier, as seller, to the Borrower, as purchaser.

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(f)    No Existing Default. No Event of Default or Default under any of the Credit Documents shall exist at the time of, or shall result from, the making of such Borrowing or the issuance of such Letter of Credit.

(g)    Delivery of Draft Letter of Credit. If applicable, the Borrower shall have delivered to the Administrative Agent and the applicable Letter of Credit Issuing Bank a draft of the proposed Letter of Credit to be Issued in form and substance reasonably acceptable to such recipients at least one (1) Business Day prior to issuance.

(h)    Control of J. Aron. The Goldman Sachs Group, Inc. shall directly or indirectly own more than fifty percent (50.0%) of the Equity Interest in, or otherwise control, J. Aron.

(i)    Sufficient Availability; Conditions Precedent. After taking into account each Borrowing and Letter of Credit to be Issued on such date:

(i)    the Effective Amount shall be not greater than the Maximum Availability at the time of determination; and

(ii)    each of the requirements as to purpose and tenor of Letters of Credit and Revolving Credit Loans as more fully described in the definition of “Letter of Credit”, “Revolving Credit Loans” and “Permitted Uses” in Section 1.01 herein shall be satisfied in all respects.

Request for Credit Extension submitted by the Borrower hereunder shall constitute a representation and warranty by the Borrower hereunder, that the conditions set forth in this Article V are satisfied as of each L/C Issuance Date or Borrowing, as applicable.

5.03    Conditions Precedent to Increases in Maximum Availability. Any increase in the Maximum Availability pursuant to Section 2.18 of this Agreement is subject to the satisfaction of the following conditions precedent:

(a)    Maximum Credit Limits. One or more Lenders, in their sole discretion, or one or more banks or financial institutions acceptable to the Borrower, the Administrative Agent, and the Letter of Credit Issuing Banks shall have agreed to increase or incur the additional Maximum Credit Limits necessary to effectuate the Borrower’s request for such increase in the Maximum Availability. No Lender shall be obligated to increase its Maximum Credit Limit hereunder, and any such increase in any Lender’s Maximum Credit Limit shall be made in the sole discretion of such Lender. To the extent that any Lender that has agreed to incur the additional Maximum Credit Limit necessary to effectuate the Borrower’s request for such increase in the Maximum Availability is not an existing Lender, the Administrative Agent shall have received a joinder agreement, substantially in the form of Exhibit F attached hereto with appropriate completions, duly executed by the Borrower, the Administrative Agent, and such new Lender, and in form and substance reasonably satisfactory to the Administrative Agent.

(b)    Additional Fees. The Borrower shall have paid to the Administrative Agent, for the ratable benefit of any Lenders to whom such fees are owed, all fees due and owing hereunder or under any applicable Fee Letter, if any, in respect of the increase in each applicable Maximum Credit Limit and the Maximum Availability.

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(c)    Reaffirmations of Guaranties and Credit Documents. The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, reaffirmations of all Guaranties and all other Credit Documents, executed and delivered by the Borrower, its Subsidiaries, if any, and the Parent Guarantor, as well as J. Aron, as applicable.

(d)    Increase Agreement. The Borrower, the Administrative Agent and the Lenders agreeing to an increase in their respective Maximum Credit Limit shall have executed and delivered an increase agreement to reflect the change in Maximum Availability.

(e)    Representations and Warranties. A certificate of a Responsible Officer of the Borrower certifying that (i) each of the representations and warranties made by the Borrower in or pursuant to the Credit Documents shall be true and correct in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any such qualification contained therein) shall be true and correct in all respects) on and as of such date as if made on and as of such date, and (ii) since the date of the last Credit Extension hereunder, there has been no development or event which has had or could have a Material Adverse Effect.

(f)    No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the increase requested to be made on such date.

(g)    Additional Matters. All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the increase in the Maximum Availability shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received such other documents and legal opinions in respect of the transactions that the Administrative Agent shall reasonably request.

ARTICLE VI.

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent, the Collateral Agent, each Letter of Credit Issuing Bank and each Lender that:

6.01    Corporate Existence and Power. The Borrower, each of its Subsidiaries, if any, and the Parent Guarantor:

(a)    is a corporation, partnership or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation;

(b)    has the power and authority and all material governmental licenses, authorizations, consents and approvals to own its assets, carry on its business and to execute, deliver, and perform its obligations under the Credit Documents to which it is a party;

(c)    is duly qualified as a foreign entity and is qualified 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 of any Subsidiary of the Borrower to be so qualified would not constitute a Material Adverse Effect; and

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(d)    is in material compliance with all Requirements of Law, including, without limitation, the provisions of United States Executive Order 13224 of September 24, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (31 CFR Part 595 et seq.).

6.02    Corporate Authorization; No Contravention. The execution, delivery and performance by the Borrower of this Agreement and by the Borrower and the Parent Guarantor of each other Credit Document to which it is a party, have been duly authorized by all necessary limited liability company, corporate, or other such necessary action, and do not and will not:

(a)    contravene the terms of any of its Organizational Documents;

(b)    conflict with or result in any material breach or contravention of, or cause a default or event of default under, or result in the creation of any Lien under, any document evidencing any Contractual Obligation to which it is a party or any order, injunction, writ or decree of any Governmental Authority to which it or its property is subject; or

(c)    violate any Requirement of Law (including without limitation any rules or regulations promulgated by the FERC).

6.03    Governmental Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority (including without limitation FERC) is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower, the Parent Guarantor, or any of their respective Subsidiaries of this Agreement or any other Credit Document. No Collateral is or constitutes FERC Contract Collateral as to which further consent of the FERC may be required in connection with the exercise of remedies by the Collateral Agent, Sub-Collateral Agent, the Administrative Agent or any of the Lenders or the Letter of Credit Issuing Banks.

6.04    Binding Effect. This Agreement and each other Credit Document to which the Borrower or the Parent Guarantor is a party constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity.

6.05    Litigation. Except as set forth on Schedule 6.05 attached hereto and incorporated herein, there are no actions, suits, proceedings, claims or disputes pending, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, against the Borrower, the Parent Guarantor or any of their respective Subsidiaries or any of their respective properties which purport to affect or pertain to this Agreement or any other Credit Document, or any of the transactions contemplated hereby or thereby; and no injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement or any other Credit Document, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided.

6.06    Default. No Default or Event of Default exists or would result from the incurring of any Obligations by the Borrower or of any Guaranty Obligations under the Parent Guaranty by the Parent Guarantor. The Borrower is not in default under or with respect to any Contractual Obligation in any respect which, individually or together with all such defaults, could reasonably be expected to have a Material Adverse Effect, or that would, constitute an Event of Default hereunder.

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6.07    ERISA Compliance.

(a)    Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law.

(b)    There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits (other than routine claims for benefits), or action by any Governmental Authority, with respect to any Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c)    Except as could not, singularly or in the aggregate, reasonably be expected to result in a Material Adverse Effect: (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) the Borrower, the Parent Guarantor and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iv) neither the Borrower 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); (v) neither the Borrower 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 or 4243 of ERISA with respect to a Multiemployer Plan; (vi) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) or ERISA; and (vii) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.

(d)    The underlying assets of the Borrower and the Parent Guarantor do not constitute Plan Assets.

6.08    Use of Proceeds, Margin Regulations. The Letters of Credit, Revolving Credit Loans, and the proceeds thereof will be used solely for the Permitted Uses and as permitted by Section 8.08. The Borrower is not generally engaged in the business of purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.

6.09    Title to Properties. The Borrower and each of its Subsidiaries, if any, has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, have a Material Adverse Effect. The property of the Borrower and each of its Subsidiaries is subject to no Liens, other than Permitted Liens.

6.10    Taxes. All Tax returns and reports of the Borrower required to be filed by it have been timely filed, and all Taxes, assessments, fees and other governmental charges upon the Borrower and upon its properties, income, businesses and franchises that are due and payable, have been paid when due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower has set aside on its books reserves with respect thereto to the extent required by GAAP and (b) to the extent that the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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6.11    Financial Condition. The (a) audited consolidated financial statements of Par Pacific reflecting the financial condition of the Parent Guarantor and its Subsidiaries and the audited consolidated financial statements of the Borrower, for their respective fiscal years ending December 31, 2022, and the related consolidated statements of income or operations and cash flows for such fiscal year ended on that date, and (b) the unaudited interim consolidated financial statements of Par Pacific reflecting the financial condition of the Parent Guarantor and its Subsidiaries and the unaudited interim consolidated financial statements of the Borrower, for their respective calendar quarters ending September 30, 2022 and the related consolidated statements of income or operations and cash flows for such month; in each case of the foregoing clauses (a) and (b):

(i)    were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, subject to ordinary, good faith year-end audit adjustments;

(ii)    fairly present the financial condition of the Parent Guarantor and its Subsidiaries or of the Borrower, as applicable, as of the respective dates thereof and results of operations for the periods covered thereby; and

(iii)    except as previously specifically disclosed to the Administrative Agent and the Lenders in writing, show all material indebtedness and other liabilities, direct or contingent, of the Parent Guarantor and its consolidated Subsidiaries or the Borrower, as applicable, as of the respective date thereof, including liabilities for taxes, material commitments and Contingent Obligations.

6.12    Environmental Matters. The Borrower and each of its Subsidiaries, if any, conducts in the ordinary course of business a review of the effect of existing Environmental Laws and existing Environmental Claims on its business, operations and properties, and as a result thereof the Parent Guarantor, the Borrower or any of the Borrower’s Subsidiaries, if any, has reasonably concluded that, except as previously specifically disclosed to the Administrative Agent and the Lenders, such Environmental Laws and Environmental Claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

6.13    Regulated Entities. Neither the Borrower, nor the Parent Guarantor or any other Person controlling the Borrower, nor any Subsidiary, if any, is an “Investment Company” within the meaning of the Investment Company Act of 1940. None of the Borrower, any of its Subsidiaries, if any, or the Parent Guarantor is subject to restrictions under any Federal or State statute regulation limiting its ability to incur the Obligations.

6.14    Copyrights, Patents, Trademarks and Licenses. The Borrower and the Borrower’s Subsidiaries, if any, own or are licensed or otherwise have the right to use all of the patents, trademarks, service marks, trade names, copyrights, contractual franchises, authorizations and other rights that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person. To the best knowledge of the Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary of Borrower infringes upon any rights held by any other Person. Except as previously specifically disclosed to the Administrative Agent and the Lenders, no claim or litigation regarding any of the foregoing is pending or threatened, and no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code is pending or, to the knowledge of the Borrower, proposed, which, in either case, could reasonably be expected to have a Material Adverse Effect.

6.15    Subsidiaries. The Borrower has no Subsidiaries, other than as set forth on Schedule 6.15.

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6.16    Insurance. The properties of the Borrower, its Subsidiaries, if any, and the Parent Guarantor (including, without limitation, all Collateral) are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by comparable companies engaged in similar businesses and owning similar properties in localities where the Borrower, such Subsidiaries or the Parent Guarantor operates and as required by the J. Aron CP Documentation.

6.17    No Material Adverse Change. Since the date of the financial statements described in Section 6.11 of this Agreement, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.

6.18    Solvency. The Borrower, (i) is adequately capitalized to conduct its business and affairs as a going concern, considering the size and nature of its business and intended purposes; (ii) is solvent, including, without limitation, that it has not been rendered insolvent by the transactions described herein; and (iii) intends to and believes that it will be able to pay its debts as they come due. The Parent Guarantor and its Subsidiaries taken as a whole (x) are adequately capitalized to conduct their business and affairs as a going concern, considering the size and nature of their business and intended purposes; (y) are solvent, including, without limitation, that they have not been rendered insolvent by the transactions described herein; and (z) intend to and believe that, taken as a whole, they will be able to pay their debts as they come due.

6.19    Full Disclosure. None of the representations or warranties made by the Borrower or any Subsidiary or the Parent Guarantor or any of its Subsidiaries in the Credit Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in any exhibit, report, statement or certificate furnished by or on behalf of the Borrower or any Subsidiary or the Parent Guarantor or any of its Subsidiaries in connection with the Credit Documents contain any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.

6.20    Anti-Terrorism.

(a)    None of the Borrower, any of its Subsidiaries or the Parent Guarantor, or, to the knowledge of the Borrower, any director, officer, agent or other Person acting on behalf of the Borrower, any of its Subsidiaries or the Parent Guarantor (i) is a Sanctioned Person, (ii) has any business affiliation or commercial dealings with, or investments in, any Sanctioned Country or Sanctioned Person; (iii) is the subject of any action or investigation under any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws; or (iv) has taken any action, directly or indirectly, that would result in a violation by such Persons of Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.

(b)    The Borrower and the Parent Guarantor have implemented and maintained in effect policies and procedures designed to ensure compliance by the Borrower, including its Subsidiaries, and the Parent Guarantor and, to the extent commercially reasonable, its agents with applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.

(c)    (i) Neither the Borrower nor any of its Affiliates has engaged in any activity or conduct that would result in a violation of, or be sanctionable under, any Anti-Terrorism and Economic Sanctions Laws, and (ii) there are not pending, nor to the best of the Borrower’s knowledge, threatened, claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Borrower or any of its Affiliates alleging a violation by the Borrower or any of its Affiliates of any applicable Anti-Terrorism and Economic Sanctions Laws.

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(d)    (i) The Borrower, its Subsidiaries, if any, and the Parent Guarantor are in compliance with all Anti-Terrorism and Economic Sanctions Laws, including without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”); (ii) to the knowledge of the Borrower, no investigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator, involving the Borrower, any of its Subsidiaries, or the Parent Guarantor with respect to Anti-Terrorism and Economic Sanctions Laws is currently pending or threatened; and (iii) the Borrower agrees to provide the Administrative Agent and the Lenders with all information reasonably required by Administrative Agent and the Lenders to carry out its obligations under applicable Anti-Terrorism and Economic Sanctions Laws and the Administrative Agent’s and the Lenders’ anti-money laundering policies and procedures.

(e)    The Borrower, its Subsidiaries, the Parent Guarantor and their respective employees, directors, officers and any agent, in each case, acting on the Borrower’s, its Subsidiaries’ or the Parent Guarantor’s behalf, have not corruptly paid, offered or promised to pay, or authorized payment of any monies or a thing of value, directly or indirectly, to any Person, including without limitation any government official (including employees of government-owned or -controlled entities or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing) or any political party or party official or candidate for political office, for the purpose of obtaining or retaining business, or directing business to any Person, or obtaining any other improper advantage, in each case in violation of the U.S. Foreign Corrupt Practices Act or any other applicable anti-corruption law (collectively, “Anti-Corruption Laws”), and to the knowledge of the Borrower, no investigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator, involving the Borrower or any of its Subsidiaries, with respect to Anti-Corruption Laws, is currently pending or threatened.

The Borrower and the Parent Guarantor have caused and the Borrower will cause its Subsidiaries, if any, to (i) maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, any Person that is an Affiliate of the Borrower, including its Subsidiaries and the Parent Guarantor, and, to the extent commercially reasonable, its agents with Anti-Corruption Laws and applicable Anti-Terrorism and Economic Sanctions Laws and (ii) ensure at all times the truth and accuracy of the representations and warranties, and adherence to, the covenants, set forth in clauses (a) through (e) of this Section 6.20.

6.21    Beneficial Ownership. As of (a) the Closing Date, the information included in each Beneficial Ownership Certification delivered pursuant to Section 5.01(n), is true and correct in all respects and (b) the date delivered, the information included in each Beneficial Ownership Certification delivered pursuant to Section 7.16 is true and correct in all respects.

6.22    Security Documents.

(a)    The provisions of each Security Document are effective to create in favor of the Collateral Agent or the Sub-Collateral Agent, as applicable, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in all right, title and interest of the Borrower in the Collateral described therein.

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(b)    When UCC-1 financing statements have been filed in the offices in the jurisdictions listed on Schedule 6.22 attached hereto, the security interests granted pursuant to the Security Agreement and any other Security Document shall each constitute a fully perfected first Lien on, and security interest in, all right, title and interest of the Borrower in the Collateral described therein that can be perfected by such filing.

6.23    Affected Financial Institution. None of the Borrower, the Parent Guarantor, or any of their respective Subsidiaries is an Affected Financial Institution.

ARTICLE VII.

AFFIRMATIVE COMPLIANCE GUIDELINES

So long as any Lender or any Letter of Credit Issuing Bank shall be continuing to consider making Revolving Credit Loans and Issuing or participating in Letters of Credit hereunder, or any other Obligation shall remain unpaid or unsatisfied, or any Revolving Credit Loan or Letter of Credit shall remain outstanding, the Borrower shall be in compliance with the following compliance guidelines, IT BEING UNDERSTOOD THAT THE BORROWER’S FULFILLMENT OF SUCH COMPLIANCE GUIDELINES SHALL NOT OBLIGATE THE LENDERS TO MAKE ANY REVOLVING CREDIT LOANS OR TO ISSUE OR PARTICIPATE IN ANY LETTERS OF CREDIT WHICH THE LENDERS MAY DECIDE TO DO OR NOT DO IN THEIR SOLE AND ABSOLUTE DISCRETION:

7.01    Financial Statements. The Borrower shall deliver (and in the case of Sections 7.01(c) and (d) of this Agreement, the Parent Guarantor shall deliver) to the Administrative Agent:

(a)    as soon as available, but (i) not later than 45 days after the end of the first three (3) fiscal quarters of each fiscal year, commencing with the fiscal quarter ending June 30, 2023 and (ii) not later than 90 days after the end of each fiscal year (and, with respect to clause (ii), in no event later than the delivery of the statements and reports required by Section 7.01(b)), a copy of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries, if any, as of the end of such quarter and the related consolidated statement of operations and statement of cash flows, for the period commencing on the first day and ending on the last day of such fiscal quarter.

(b)    as soon as available, but not later than 90 days after the end of each fiscal year, a copy of the audited consolidated balance sheet of the Borrower and its Subsidiaries, if any, as of the end of such year and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the opinion of a nationally-recognized independent public accounting firm of good repute reasonably acceptable to the Administrative Agent (such other accounting firm, the “Independent Auditor”) which report shall state that such consolidated financial statements present fairly the financial position for the periods indicated in conformity with GAAP. Such opinion shall not be qualified or limited because of a restricted or limited examination by the Independent Auditor of any material portion of the Borrower’s or any subsidiary’s records nor by any going concern qualification.

(c)    (i) as soon as available, but not later than 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Parent Guarantor commencing with the fiscal quarter ending June 30, 2023, a copy of the quarterly report of the Parent Guarantor or its parent, containing the quarterly unaudited consolidated balance sheet of the Parent Guarantor or its parent and its subsidiaries, as of the end of such fiscal quarter and the related consolidated statement of operations and (ii) not later than 60 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Parent Guarantor, a statement of cash flows of the Parent Guarantor or its parent and in either case its subsidiaries, in each case for the period commencing on the first day and ending on the last day of such fiscal quarter, provided that for so long as the Parent Guarantor or its parent is required to make public filings of its quarterly results pursuant to the Exchange Act and they are available on EDGAR and made in a timely manner, the Borrower shall not be required to provide such quarterly reports to the Administrative Agent and the Lenders.

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(d)    (i) as soon as available, but not later than 90 days after the end of each fiscal year, a copy of the annual report of the Parent Guarantor or its parent, containing audited consolidated balance sheet of the Parent Guarantor, or its parent, and in either case its Subsidiaries as of the end of such year and the related consolidated statements of income, operations and shareholders’ equity; and (ii) not later than 120 days after the end of each fiscal year, a statement of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the opinion of the Independent Auditor, which report shall state that such consolidated financial statements present fairly the financial position for the periods indicated in conformity with GAAP. Such opinion shall not be qualified or limited because of a restricted or limited examination by the Independent Auditor of any material portion of the Borrower’s or any subsidiary’s records nor by any going concern qualification provided that for so long as the Parent Guarantor or its parent is required to make public filings of its quarterly results pursuant to the Exchange Act and they are available on EDGAR and made in a timely manner, the Borrower shall not be required to provide such annual reports to the Administrative Agent and the Lenders.

7.02    Certificates; Other Information. The Borrower shall furnish to the Administrative Agent, who shall within a reasonable time thereafter furnish the same to each Lender:

(a)    Concurrently with the delivery of the financial statements referred to in Section 7.01(a) and Section 7.01(b), a Compliance Certificate executed by a Responsible Officer.

(b)    In no event later than 11:59 p.m. New York time on the first Business Day of each calendar week, (i) a Transaction/Collateral Report executed by a Responsible Officer of the Borrower as of the close of business on the final Business Day of the preceding calendar week, and (ii) by electronic mail or other same-day written notice, a report in form and substance reasonably acceptable to the Administrative Agent of the Liquidity as of the close of business on the final Business Day of the preceding calendar week for purposes of compliance with Section 8.02 hereof.

(c)    Upon reasonable notice, such additional information regarding the business, financial or corporate affairs of the Borrower or the Parent Guarantor and any of their respective Subsidiaries, as the Administrative Agent or any Lender, may from time to time reasonably request to ascertain the current financial condition of the Borrower or the Parent Guarantor or determine whether any occurrence has resulted in a Material Adverse Effect.

(d)    Upon reasonable notice and at the request of the Administrative Agent or the Required Lenders, copies of notices delivered by, or additional information obtained by the Borrower or the Parent Guarantor from, the administrative agent, collateral agent, trustee, lenders or holders in respect of indebtedness for borrowed money evidenced by notes, bonds, debentures, loan agreements, credit agreements or other similar instruments, including, without limitation, the ABL Agreement and the Term Loan Agreement, to the extent the Borrower or the Parent Guarantor may contractually disclose such notices and additional information to the Administrative Agent and the Lenders.

(e)    A copy of the annual audit conducted under the Supply and Offtake Agreement.

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7.03    Notices. The Borrower shall promptly notify the Administrative Agent (the filing of a report on Form 8-K or other filing available on EDGAR and made in a timely manner about the occurrence of an event described in clauses (d) or (g) below shall constitute Borrowers’ prompt written notice to Administrative Agent):

(a)    of the occurrence of any Default or Event of Default;

(b)    of (i) any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including, without limitation, breach or non-performance of, or any default under, a Contractual Obligation of the Borrower, the Parent Guarantor or, in either case, any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower, the Parent Guarantor or, in either case, any Subsidiary, and any Governmental Authority which if determined adversely to the Borrower, the Parent Guarantor or such Subsidiary would be reasonably likely to result in liability in excess of $20,000,000; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower, the Parent Guarantor or, in either case, any Subsidiary; including pursuant to any applicable Environmental Laws, in each case, that would be reasonably likely to result in either a Material Adverse Effect or liability in excess of $20,000,000;

(c)    of the occurrence of any of the following events affecting the Borrower, the Parent Guarantor or any ERISA Affiliate (but in no event more than 10 days after such event), and deliver to the Administrative Agent and each Lender a copy of any notice with respect to such event that is filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Borrower, the Parent Guarantor or any ERISA Affiliate with respect to such event:

(i)    any ERISA Event which, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in (1) direct liability of the Borrower in an aggregate amount exceeding $5,000,000, or (2) liability of the Borrower, the Parent Guarantor, and any ERISA Affiliate in an aggregate amount exceeding $10,000,000;

(ii)    a material increase in the Unfunded Pension Liability of any Pension Plan; and

(iii)    the adoption of any amendment to a Pension Plan, if such amendment results in a material increase in contributions or Unfunded Pension Liability;

(d)    of the occurrence of any of the following events (except as expressly provided in clause (v) below) within five (5) Business Days after having actual knowledge of any of the following:

(i)    sale, lease or other transfer by the Borrower of a material portion of the Refinery and the Refinery Facilities (as defined in the Supply and Offtake Agreement as of the Closing Date);

(ii)    the agreement by the Borrower, any of Borrower’s Subsidiaries, or the Parent Guarantor to merge with, or into, or transfer substantially all of its assets to another Person (including an Affiliate);

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(iii)    any early termination or notice of any “event of default” under any Base Agreement (as such term is defined in the Supply and Offtake Agreement as in effect on the Closing Date);

(iv)    any amendment, supplement, modification, waiver or other revision to any Financing Agreement (as such term is defined in the Supply and Offtake Agreement as in effect on the Closing Date);

(v)    subject to Section 8.17, any amendment, supplement, modification, waiver or other revision to the Supply and Offtake Agreement, provided that the Borrower must notify the Administrative Agent at least ten (10) Business Days (or such shorter period as is acceptable to the Administrative Agent in its discretion) before entering into an amendment to the Supply and Offtake Agreement, and delivery of copies of such executed amendment, supplement, modification, waiver or other revision no more than three (3) Business Days after the effectiveness thereof; and

(vi)    execution of any agreement or announcement of any transaction or proposed transaction that constitutes or would result in a Change of Control;

(e)    [Reserved];

(f)    of any default or event of default or other occurrence pursuant to which J. Aron or any other party thereto other than the Borrower (i) could exercise remedies, or (ii) with notice or passage of time or expiration of any applicable cure period could exercise remedies, in either case under any document comprising the J. Aron CP Documentation within two (2) Business Days of its having actual knowledge thereof;

(g)    of any material change in accounting policies or financial reporting practices by the Borrower or any of its consolidated Subsidiaries;

(h)    any change in the information provided in the Beneficial Ownership Certification that would results in a change to the list of beneficial owners identified on parts (c) and (d) of such certification;

(i)    (i) within thirty (30) days after effectiveness, a summary of any changes in lines and limits of coverage for any insurance policy with respect to the Collateral which is required to be maintained under Section 7.06 hereof and (ii) within thirty (30) days after the end of each fiscal year of the Borrower, a summary of any changes in lines and limits of coverage for any other insurance policy which is required to be maintained under Section 7.06 hereof; and

(j)    of any event or condition that results in FOB Crude Oil Purchase cargoes being unable to be delivered to the Crude Intake Point promptly after such event occurs or such condition arises.

Each notice under Section 7.03(a) of this Agreement shall be accompanied by a written statement by a Responsible Officer setting forth details of the occurrence referred to therein, and stating what action the Borrower or any affected Subsidiary proposes to take with respect thereto and the anticipated timing of the same. Each notice under Section 7.03(a) of this Agreement shall describe with particularity any and all clauses or provisions of this Agreement or other Credit Document that have been (or foreseeably will be) breached or violated.

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7.04    Preservation of Corporate Existence, Etc.. The Borrower, each Subsidiary of the Borrower, and the Parent Guarantor shall:

(a)    preserve and maintain in full force and effect its existence and good standing under the laws of its state or jurisdiction of incorporation, organization or formation;

(b)    preserve and maintain in full force and effect all material governmental rights, privileges, qualifications, permits, licenses and franchises necessary or desirable in the normal conduct of its business except in connection with transactions permitted by this Agreement;

(c)    use reasonable efforts, in the ordinary course of business, to preserve its business organization and goodwill; and

(d)    preserve or renew, all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

7.05    Maintenance of Property. The Borrower shall maintain, and shall cause each Subsidiary of the Borrower, if any, to maintain, and preserve all its property which is used or useful in its business in good working order and condition, ordinary wear and tear and casualty events excepted and make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

7.06    Insurance. The Borrower shall maintain, and shall cause each Subsidiary to maintain, with financially sound and reputable independent insurers reasonably acceptable to the Administrative Agent, insurance with respect to its properties and business against loss or damage of such types and in such amounts as required by the J. Aron CP Documentation and as are customarily carried by comparable companies engaged in similar businesses and owning similar properties in similar localities where the Borrower and its Subsidiaries, if any, operate. Subject to the provisions of the Collateral Agency Agreement, the Collateral Agent, for the benefit of the Secured Parties, is hereby and will be named as an additional insured or lender loss payee, as applicable, under all such policies covering the Collateral, without liability for premiums and the Administrative Agent in capacity as such, and the Collateral Agent each are hereby and each will be named as an additional insured or lender loss payee, as applicable, under all of the Borrower’s liability insurance policies. In addition, within 10 Business Days of the Closing Date (or such longer period as the Administrative Agent, in its sole discretion, may approve), the Borrower will deliver to the Administrative Agent endorsements to insurance policies or other evidence reasonably satisfactory to the Administrative Agent demonstrating that the Sub-Collateral Agent, for the benefit of the Secured Parties, is lender loss payee or additional insured, as the case may be, with respect to the Collateral.

7.07    Payment of Obligations. The Borrower shall, and shall cause each of its Subsidiaries to, pay and discharge as the same shall become due and payable, all their respective obligations and liabilities, including:

(a)    all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP;

(b)    all lawful claims which, if unpaid, would by law become a Lien upon its property; and

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(c)    all indebtedness, as and when due and payable, but subject to any subordination provisions contained in, any instrument or agreement evidencing such Indebtedness.

7.08    Compliance with Laws. The Borrower and the Parent Guarantor shall comply, in all material respects with all Contractual Obligations and Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including the Federal Fair Labor Standards Act), except such as may be contested in good faith or as to which a bona fide dispute may exist.

7.09    Compliance with ERISA. The Borrower, the Parent Guarantor and each of their ERISA Affiliates shall: (a) maintain each Plan in compliance in all respects with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; and (c) make all required contributions to each Pension Plan and Multiemployer Plan, except where failure to comply with any of the foregoing clauses (a)-(c) alone or in the aggregate could reasonably be expected to result in a Material Adverse Effect.

7.10    Inspection of Property and Books and Records. The Borrower and the Parent Guarantor shall maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower and its Subsidiaries. The Borrower and the Parent Guarantor shall permit representatives and independent contractors of the Lenders to visit and inspect any of their respective properties, to examine their respective corporate, financial and operating records, and make copies thereof or abstracts therefrom, to conduct an audit of their inventories and to discuss their respective affairs, finances and accounts with their respective directors, officers, and independent public accountants, in connection with the Uncommitted Facility (including, without limitation, in connection with all Collateral and to determine compliance with any provision of the Credit Documents), once a year at the Lenders’ sole discretion or as often as may be reasonably desired by the Required Lenders, at such reasonable times during normal business hours and upon reasonable advance notice to the Borrower at the expense of the Borrower; provided, however, that so long as no Event of Default shall have occurred or be continuing, Borrower shall not be responsible to pay the cost of more than one (1) inspection or audit per year during the term of this Agreement.

7.11    Environmental Laws. The Borrower and the Parent Guarantor shall, and shall cause each of their Subsidiaries to, conduct its operations and keep and maintain its property in material compliance with all Environmental Laws.

7.12    Use of Proceeds. The Borrower shall use the proceeds of the Letters of Credit and Revolving Credit Loans only for Permitted Uses and not in contravention of any Requirement of Law or of any Credit Document restrictions on use of proceeds.

7.13    Payments to Collection Accounts. If for any reason cash representing payment from J. Aron on any J. Aron Payment Obligation is received by the Borrower or one of its Subsidiaries, if any, the Borrower agrees to deposit and cause each of its Subsidiaries to deposit, such amounts into the J. Aron Crude Oil Provisional Payment Account as soon as practicable, but in each case within one (1) Business Day after its receipt of such funds. In addition to any rights it may be granted pursuant to the Collection Account DACA, the depositary bank at any time may apply amounts contained in a Collection Account through its set-off rights, or is hereby authorized to instruct the Sub-Collateral Agent to apply such amounts contained in a Collection Account, toward satisfaction of the Obligations.

7.14    Maintenance of Collection Accounts. The Borrower shall, and shall cause each Subsidiary to, maintain the Collection Accounts, at MUFG, or at another depository institution acceptable to the Administrative Agent and, in each case, over which the Sub-Collateral Agent shall have “control” as such term is defined in all applicable Uniform Commercial Codes, for the benefit of the Secured Parties.

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7.15    Security for Obligations. The Borrower shall at all times maintain security interests in favor of the Collateral Agent or the Sub-Collateral Agent, as the case may be, for the benefit of the Secured Parties, so that such Lien in favor of the Collateral Agent, or the Sub-Collateral Agent, as the case may be, subject to Permitted Collateral Liens, shall have a first priority perfected Lien on the Collateral, to secure the Borrower’s Obligations hereunder and under the other Credit Documents. The Borrower shall deliver any legal opinions reasonably requested by the Administrative Agent or any Lender evidencing the perfection of the security interests described in this Section 7.15.

7.16    USA PATRIOT Act Notice. Each Lender, the Administrative Agent (for itself and not on behalf of any Lender) and the Collateral Agent hereby notifies the Borrower and the Parent Guarantor that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower and the Parent Guarantor, which information includes the names and addresses of the Borrower and the Parent Guarantor and other information that will allow such Lender, the Administrative Agent or the Collateral Agent, as applicable, to identify the Borrower and the Parent Guarantor in accordance with the Patriot Act. The Borrower and the Parent Guarantor shall, and shall cause each of their Subsidiaries to, provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by each Lender, the Administrative Agent and the Collateral Agent to maintain compliance with the Patriot Act and the Beneficial Ownership Regulation.

7.17    Anti-Corruption Laws. The Borrower, the Parent Guarantor and any of their respective Subsidiaries shall comply, and each shall cause any agent acting on their behalf to comply, with the Anti-Corruption Laws, including maintaining and complying with all policies and procedures to ensure compliance with the Anti-Corruption Laws.

7.18    Safe Delivery of Crude Oil. The Borrower agrees that it will use commercially reasonable efforts provide, or cause to be provided, (a) a safe berth for each vessel delivering Crude Oil Collateral free of all wharfage, dockage and quay dues other than those dues being contested in good faith for which adequate reserves have been established in accordance with GAAP, which such vessel can proceed to, lie at, and depart from, always safely afloat, and (b) safe passage of each vessel containing Crude Oil inventory to the SPM Delivery Point and safe delivery thereof through the SPM Delivery Point up to the Crude Intake Point.

7.19    Lien and Judgment Searches. The Borrower shall pay the reasonable cost of Lien and judgment searches in the State of Hawaii and the State of Delaware to be ordered by the Administrative Agent or its outside counsel at intervals that the Administrative Agent shall request, not more frequently than once every 60 days, until such time as the effective searched through date with respect to such Lien and judgment searches is after the Closing Date. In the event that for any reason such Lien and judgment searches reveal Liens on the Collateral that are not Permitted Collateral Liens or judgments against the Borrower or Parent Guarantor that had not been disclosed in writing to the Administrative Agent prior to the Closing Date and would otherwise result in an Event of Default pursuant to Section 9.01(k) or 9.01(l) had they arisen after the Closing Date, an Event of Default pursuant to such sections shall be deemed to have occurred hereunder.

7.21    Diverted Crude Oil Cargoes. In the event that an FOB Crude Oil Purchase is unable to be delivered to the Crude Intake Point for any reason, the Borrower shall deliver the notice required by Section 7.03(j) and in such notice shall elect to (i) (a)deposit Cash Collateral for the Trade Letter of Credit related to such FOB Crude Oil Purchase in an amount equal to the sum of 105% of (x) the aggregate undrawn Face Amount of such Trade Letter of Credit and (y) the aggregate amount of any drawings under such Trade Letter of Credit which has not yet been reimbursed by the Borrower to the applicable Letter of Credit Issuing Bank with the Administrative Agent and (b) repay any outstanding Revolving Credit Loans (providing, for the avoidance of doubt, the required notice for prepayment pursuant to Section 2.07), in each case, within a period of time acceptable to the Administrative Agent in its Permitted Discretion, (ii) within 45 days of the delivery of the notice required by Section 7.03(j), identify the legal name of an Eligible Counterparty that will purchase such FOB Crude Oil Purchase within a timeframe reasonably acceptable to the Administrative Agent and detailing the terms of such purchase, which shall be acceptable to the Administrative Agent or (iii) within 45 days of the delivery of the notice required by Section 7.03(j), inform the Administrative Agent that it will be able to deliver such FOB Crude Oil Purchase to the Crude Intake Point within a period of time acceptable to the Administrative Agent in its Permitted Discretion. The Administrative Agent shall provide a copy of the notice required by this Section 7.21 to the Lenders following receipt thereof. After receiving such notice, such counterparty shall be deemed to be acceptable to the Required Lenders if the same is not objected to in writing by the Required Lenders within 3 Business Days following the receipt of notice thereof.

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7.22    Hedging. The Borrower shall enter into and maintain, at all times that any L/C Related Aron Procurement Contract is outstanding, Hedging Arrangements with respect to such L/C Related Aron Procurement Contract consisting of intermonth time spread transactions, with a time spread based on the period between cargo pricing and the expected delivery month, with pricing based on the first nearby ICE Brent Futures for the contractual pricing period for such L/C Related Aron Procurement Contract and the ICE Brent calendar month swap for the relevant expected delivery month for such L/C Related Aron Procurement Contract and with pricing calculations made on the same basis as in such L/C Related Aron Procurement Contract.

ARTICLE VIII.

NEGATIVE COMPLIANCE GUIDELINES

So long as any Lender or Letter of Credit Issuing Bank shall be continuing to consider making Revolving Credit Loans and Issuing or participating in Letters of Credit hereunder, or any other Obligation shall remain unpaid or unsatisfied, or any Revolving Credit Loan or Letter of Credit shall remain outstanding the Borrower shall be in compliance with the following compliance guidelines, IT BEING UNDERSTOOD THAT THE BORROWER’S FULFILLMENT OF SUCH COMPLIANCE GUIDELINES SHALL NOT OBLIGATE THE LENDERS TO MAKE ANY REVOLVING CREDIT LOANS OR ISSUE ANY LETTERS OF CREDIT WHICH THE LENDERS MAY DECIDE TO DO OR NOT DO IN THEIR SOLE AND ABSOLUTE DISCRETION:

8.01    Limitation on Liens; Negative Pledges. (a) The Borrower shall not, and shall not suffer or permit any Subsidiary, if any, to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its property, assets or revenues, whether now owned or hereafter acquired, other than Permitted Liens; and (b) the Borrower shall not grant a negative pledge to any Person under any agreement, indenture or other document if the result would be to inhibit the ability of the Borrower to grant a first priority perfected security interest in the Collateral under the Credit Documents in favor of the Collateral Agent or the Sub-Collateral Agent, as the case may be.

8.02    Financial Compliance Guideline. The Borrower shall not permit its Liquidity for any (3) consecutive Business Days to be less than $15,000,000 at any time with at least $15,000,000 of such Liquidity consisting of cash and cash equivalents.

8.03    Disposition of Assets. The Borrower shall not, and shall not suffer or permit any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing (including without limitation to a Delaware Divided LLC pursuant to a Delaware LLC Division), except for (a)(i) dispositions of inventory that is Collateral, in the ordinary course of business; or (ii) the sale, assignment, lease, sublease, conveyance, transfer or other disposition of inventory, products, Crude Oil, services, accounts receivable, credits, obsolete or worn out property, or other property, in each case, that is not Collateral, whether now owned or hereafter acquired, unless such disposition would result in the disposition of all or substantially all of the Borrower’s assets related to the Refineries; (b) dispositions of equipment or real property (other than equipment or real property in or on which Collateral is located or stored) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, or (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property; (c) the Borrower may lease (as lessee) or license (as licensee) real or personal property in the ordinary course of business so long as any such lease or license does not create a capital lease obligation or Synthetic Lease Obligation except to the extent permitted by Section 8.06(f); and (d) the Borrower may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower, in each case so long as no such grant otherwise affects either (i) J. Aron’s security interest in the asset or property subject thereto under the Supply and Offtake Agreement, or (ii) the security interest of the Collateral Agent or the Sub-Collateral Agent, as the case may be, in the Collateral; (e) the Borrower may liquidate or otherwise dispose of cash equivalents in the ordinary course of business, in each case for cash at fair market value; (f) the Borrower may dispose of property and assets to the extent such property and assets were the subject of a casualty or condemnation proceedings upon the occurrence of an event that gives rise to the receipt by the Borrower or any of its Subsidiaries, if any, of any cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, physical destruction, damage, taking or any other similar event with respect to any property or assets of the Borrower, or (ii) under any policy of insurance maintained by any of them; (g) dispositions of the Borrower’s vehicles in the ordinary course of business; (h) transactions consummated under the Supply and Offtake Agreement in the ordinary course of business and in accordance therewith and (i) dispositions of property or assets in transactions not otherwise permitted by this Section 8.03 provided the net sale proceeds recovered from all assets or property sold pursuant to this clause (i) shall not exceed $5,000,000 in any fiscal year of the Borrower.

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8.04    Consolidations and Mergers. The Borrower shall not, and shall not suffer or permit any Subsidiary of the Borrower to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (including without limitation to or in favor of a Delaware Divided LLC pursuant to a Delaware LLC Division), except any Subsidiary may merge with the Borrower, provided that the Borrower shall be the continuing or surviving corporation. The Parent Guarantor shall not merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (including without limitation to or in favor of a Delaware Divided LLC pursuant to a Delaware LLC Division).

8.05    Loans, Investments and Acquisitions. Except as otherwise disclosed to the Administrative Agent on or before the Closing Date, the Borrower shall not purchase or acquire, or suffer or permit any Subsidiary of the Borrower to purchase or acquire, or make any commitment therefor, any capital stock, equity interest, or any obligations or other securities of, or any interest in, any Person, or make or commit to make any Acquisitions, or make or commit to make any advance, loan, extension of credit or capital contribution to or any other investment in (each an “Investment”), any Person including any Affiliate of the Borrower. The Borrower shall not prepay, repurchase or otherwise defease any of its Indebtedness for borrowed money existing on the Closing Date unless no Default or Event of Default has occurred and is continuing (except for Indebtedness incurred pursuant to this Agreement or any Credit Document and Permitted Investments).

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8.06    Limitation on Indebtedness. The Borrower shall not, and shall not suffer or permit any Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, Subordinated Indebtedness or Contingent Obligation, except:

(a)    Indebtedness incurred pursuant to this Agreement or any other Credit Document;

(b)    Indebtedness consisting of trade payables in the ordinary course of business;

(c)    Indebtedness under the Supply and Offtake Agreement, the ABL Agreement, the Term Loan Agreement, and other Indebtedness or Contingent Obligations pursuant to documentation existing on the Closing Date, as disclosed to the Administrative Agent in Schedule 8.06 attached hereto and incorporated herein and, in each case, any amendments, restatements, amendments and restatements, supplements, other modifications, refinancings, refundings, renewals or extensions thereof (so long as any such amendments, restatements, amendments and restatements, supplements, or other modifications, thereof are not prohibited by Section 8.17 hereof, provided that, other than with respect to the Supply and Offtake Agreement, in connection with any amendment, restatement, amendment and restatement, supplement, other modification, refinancing, refunding, renewal or extension thereof (i) the aggregate principal amount of such Indebtedness is not increased at the time of such amendment, restatement, amendment and restatement, supplement, other modification, refinancing, refunding, renewal or extension except by (A) additional principal amounts that are contemplated by such documentation and (B) an amount equal to a reasonable premium, breakage or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, and (ii) the terms relating to principal amount, amortization (if any), maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole of any such amendment, restatement, supplement, replacement, refinancing, refunding, renewing or extending or other modification of such Indebtedness, and of any agreement or any instrument entered into or issued in connection therewith, (1) are no less favorable in any material respect to the Borrower or the Secured Parties than the terms of any agreement or instrument governing the Indebtedness being amended, restated, supplemented, replaced, refinanced, refunded, renewed or extended or otherwise modified, (2) the interest rate applicable to any such amendment, restatement, supplement, replacement, refinancing, refunding, renewing or extending or other modification of such Indebtedness does not exceed the then applicable market interest rate and (3) shall not adversely affect in any material respect any of the rights and remedies of, or the benefits available to, J. Aron under the Supply and Offtake Agreement or the Collateral Agent, the Sub-Collateral Agent, the Administrative Agent, the Lenders or any Letter of Credit Issuing Bank under the Credit Documents or otherwise be prohibited by Section 8.17;

(d)    Guarantees of the Borrower in respect of Indebtedness otherwise permitted hereunder.

(e)    Indebtedness not secured by a Lien pursuant to a Hedging Arrangement otherwise permitted under this Agreement provided that (i) such obligations are (or were) entered into by the Borrower in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, assets, or property held or reasonably anticipated by the Borrower and not for purposes of speculation; and (ii) such swap contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

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(f)    (i) capital leases and leases giving rise to Synthetic Lease Obligations (excluding the catalyst leases giving rise to Synthetic Lease Obligations described in clause (ii) of this Section 8.06(f)) relating to equipment or real estate used in the business of the Borrower, provided, that at the time any such lease is entered into, the aggregate remaining Indebtedness under all such leases then in existence shall not exceed $10,000,000 and (ii) capital leases and leases giving rise to Synthetic Lease Obligations with respect to the catalyst and related metals necessary or useful in the operation of the Refinery;

(g)    Indebtedness incurred to pay all or a portion of the purchase price of equipment or machinery used in the ordinary course of business of the Borrower, not to exceed $5,000,000 outstanding at any time;

(h)    Indebtedness incurred to pay all or a portion of the purchase price of equipment or machinery installed or otherwise utilized or obtained in connection with any turnaround at the Refinery;

(i)    transportation and storage contracts that give rise to Contingent Obligations;

(j)    unsecured Indebtedness arising under intercompany transactions with any Affiliate entered into in the ordinary course of the Borrower’s business and which is permitted under Section 8.07 hereof;

(k)    Indebtedness arising from the endorsement of instruments or other payment items for deposit in the ordinary course of business or in respect of netting services, overdraft protection, and other like services in the ordinary course of business;

(l)    Indebtedness of the Borrower with respect to performance bonds, surety bonds, appeal bonds, guarantees or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Borrower or in connection with judgments that do not cause a Default or Event of Default or hereunder, provided, that the aggregate outstanding amount of all such performance bonds, surety bonds, appeal bonds, guarantees and customs bonds permitted by this Section 8.06(l) shall not at any time exceed $5,000,000;

(m)    Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Borrower, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of such insurance for the period in which such Indebtedness is incurred;

(n)    Reimbursement obligations associated with letters of credit issued (i) solely for the purchase of refined products and other feedstock acquired by the Borrower in the ordinary course of business whether such reimbursement obligations are secured or unsecured, or (ii) for general business purposes in the ordinary course of business, but with respect to this clause (ii), not at any time exceeding $2,000,000;

(o)    Obligations arising under indemnities, guaranties, or contracts for the acquisition of services, supplies or goods, in the ordinary course of business; and

(p)    Unsecured Indebtedness incurred in the ordinary course of business in an aggregate principal amount not to exceed $5,000,000 at any time outstanding.

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8.07    Transactions with Affiliates; Formation of Subsidiaries. The Borrower shall not, and shall not suffer or permit any Subsidiary to (a) create any Subsidiary, other than those listed on Schedule 6.15 attached hereto and incorporated herein, without the prior written consent of the Administrative Agent and the Required Lenders; (b) other than intercompany transactions between the Borrower and Par Pacific or any of its Subsidiaries in the ordinary course of business related to tax sharing, shared corporate office space, payroll and other administrative matters (collectively, “Corporate Overhead Expenses”), enter into any transaction with any Affiliate of the Borrower except upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than would be obtained in a comparable arms-length transaction with a Person not an Affiliate of the Borrower or such Subsidiary; (c) allocate (or have allocated to it by Par Pacific or any of its Subsidiaries) Corporate Overhead Expenses other than in a commercially reasonable manner; (d) make, or become obligated to make, payment of management or similar fees to Par Pacific; or (e) make any additional Investments in any Affiliate of the Borrower.

8.08    Use of Proceeds. The Borrower shall not, and shall not suffer or permit any Subsidiary to, use any portion of any Letter of Credit or Revolving Credit Loan, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of the Borrower or others incurred to purchase or carry Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any security in any transaction that is subject to Section 13 or 14 of the Exchange Act.

8.09    [Reserved].

8.10    Joint Ventures. The Borrower shall not, and shall not suffer or permit any Subsidiary to, enter into any Joint Venture without the prior written consent of the Required Lenders.

8.11    Lease Obligations. The Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any sale-leaseback transactions except to the extent permitted by the ABL Agreement as in effect on the Closing Date.

8.12    Restricted Payments. The Borrower shall not, and shall not suffer or permit any Subsidiary of the Borrower to, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, or purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants, rights or options to acquire such shares, now or hereafter outstanding; provided, however, that notwithstanding the foregoing, the Borrower may make the foregoing payments, so long as:

(a)    no Default or Event of Default exists immediately prior to the making of any such payment or will result from the making thereof, and on the date of any such payment, the Borrower is in compliance with Section 8.02 hereof, after giving effect to any of the foregoing payments; or

(b)    the Borrower shall be permitted to make distributions to enable any holder of the equity interests of the Borrower to pay its federal and state income taxes or necessary to enable Par Pacific to pay its federal and state income taxes, to the extent allowed under the Supply and Offtake Agreement as in effect on the Closing Date; and

(c)    in the case of clauses (a) or (b), the Borrower notifies the Administrative Agent in form and substance reasonably acceptable to the Administrative Agent (which may be delivered by electronic mail pursuant to instructions of the Administrative Agent) and in a manner substantially similar to which the Borrower notifies J. Aron pursuant to the Supply and Offtake Agreement as in effect on the Closing Date and as otherwise amended, restated, supplemented, or modified from time to time in accordance with the terms and conditions set forth herein.

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8.13    ERISA. The Borrower shall not engage in and shall use its reasonable efforts to prevent the Parent Guarantor and any of their ERISA Affiliates from engaging in: (a) a prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan which has resulted or could reasonably be expected to result in liability of the Borrower that could reasonably be expected to have a Material Adverse Effect; or (b) a transaction that could be subject to Section 4069 or 4212(c) of ERISA that could reasonably be expected to have a Material Adverse Effect.

8.14    Change in Business. The Borrower shall not, and shall not suffer or permit any Subsidiary to, engage in any material line of business substantially different from those lines of business carried on by the Borrower and its Subsidiaries, if any, on the Closing Date.

8.15    [Reserved].

8.16    Hedging Arrangements. The Borrower shall not, and shall not permit any Subsidiary to, enter into any Hedging Arrangement that is either (a) for speculative purposes; or (b) not entered into in the normal course of business operations of the Borrower or its Subsidiaries as a risk management strategy and/or hedge against changes resulting from market conditions related to such business operations.

8.17    Modification of J. Aron CP Documents and Other Documents. (a) The Borrower shall not, after the Closing Date, further replace, amend, restate, amend and restate, modify, supplement or otherwise revise any J. Aron CP Documentation or any other agreement, document or instrument to which it is a party, in a manner that could be reasonably be expected to have a material adverse effect on the interests of the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent, as secured party on behalf of the Secured Parties; (b) the Parent Guarantor shall not, after the Closing Date, further replace, amend, restate, amend and restate, modify, supplement or otherwise revise any agreement, document or instrument to which it is a party, in a manner that could be reasonably anticipated to have a material adverse effect upon any of the rights and remedies of, or the benefits available to the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent, as secured party on behalf of the Secured Parties, in the case of clauses (a) and (b) (as applicable), including, but not limited to, materially replacing, amending, restating, amended and restated, modifying, supplementing or otherwise revising (i) the definition of “Liquidity” under the Supply and Offtake Agreement or any decrease in the minimum Liquidity amount required to be maintained by the Borrower thereunder without written notice to, and the consent of, all of the Lenders, such consent not to be unreasonably withheld; (ii) Section 5.13 of the Supply and Offtake Agreement or any of the defined terms used therein without written notice to, and the consent of, all of the Lenders, such consent not to be unreasonably withheld; (iii) any notice or cure period under the Supply and Offtake Agreement with respect to (A) failure to make material payments or (B) any other event of default or similar occurrence that is not related to the failure to make a material payment that, were such period to lapse following either such occurrence, would result in J. Aron having the right to accelerate Indebtedness or payment obligations thereunder, without written notice to, and the consent of, the Required Lenders, such consent not to be unreasonably withheld, (iv) [reserved], (v) the definitions of “Insurance and Condemnation Event”, “Intermediation Access Agreement”, “Intermediation Collateral”, “Intermediation Counterparty”, “Intermediation Document”, “Intermediation Facility”, “J. Aron Intermediation Agreement”, clause (i) of “Excluded Assets”, clause (c) of “Permitted Disposition”, clause (r) of “Permitted Indebtedness”, clauses (u) and (dd) of “Permitted Liens” and “Unrestricted Cash”, or similar or related definitions under the Term Loan Agreement or Sections 2.4(b)(ii), 6.13(b)(xi), 6.17 and 16.17 of the Term Loan Agreement (or any provision with similar effect permitting the Uncommitted Facility under the Term Loan Agreement), in each case, without written notice to, and the consent of, all of the Lenders or (vi) the definitions of “Borrower Group”, “Intermediation Access Agreement”, “Intermediation Collateral”, “Intermediation Counterparty”, “Intermediation Facility”, “Intermediation Property”, “J. Aron Intermediation Agreement”, “J. Aron Intermediation Collateral”, “Restricted Subsidiary”, “Intermediation Subsidiary”, “Insurance and Condemnation Event”, “Unrestricted Cash”, or “Intermediation Document” under the ABL Agreement or clause (i) of the definition of “Excluded Asset”, clauses (g) and (r) of the definition of “Permitted Indebtedness”, clauses (l), (m) and (o) of the definition of “Permitted Investments”, clauses (u) and (dd) of the definition of “Permitted Liens”, clause (c) of the definition of “Permitted Disposition” or Sections 2.4, 6.13(b)(ix), 6.17 or 16.16 of the ABL Agreement (or any provision with similar effect permitting the Uncommitted Facility under the ABL Agreement), in each case, without written notice to, and the consent of, all of the Lenders; and (c) pursuant to the terms of Section 2.11(g) of the Collateral Agency Agreement, J. Aron is not permitted to amend, modify, terminate, waive or consent in respect of (collectively, “Revise”) the following terms appearing in the Supply and Offtake Agreement: SPM Delivery Point or Liquidity, Revise Sections 5.3(e)(C) or 18.5(c)(ii)(B)(iv) of the Supply and Offtake Agreement, or Revise any provision in the Supply and Offtake Agreement decreasing the minimum Liquidity amount required to be maintained by the Borrower without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed and shall be provided only with the consent of the Required Lenders.

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8.18    Accounting Changes. The Borrower shall not, and shall not suffer or permit any Subsidiary to, make any material change in accounting treatment or reporting practices, except as required by GAAP, or change the fiscal year of the Borrower or of any Subsidiary of the Borrower.

8.19    Anti-Corruption Laws. The Borrower has not and shall not, and neither the Parent Guarantor nor any Subsidiary of the Borrower or, to the knowledge of the Borrower, any agent acting on behalf of the Borrower, the Parent Guarantor, or any of their respective Subsidiaries, has or shall (a) directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (b) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (c) failed to disclose fully any contribution made by the Borrower, the Parent Guarantor, or any of their respective Subsidiaries (or made by any agent acting on its behalf of which the Borrower, the Parent Guarantor, or any of their respective Subsidiaries is aware) or which is in violation of law, or (d) violated in any material respect any provision of the Anti-Corruption Laws. No issuance of any Letter of Credit, will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the Anti-Corruption Laws.

8.20    Compliance With Anti-Terrorism Laws and Economic Sanctions.

(a)    None of the Parent Guarantor, the Borrower or any of their respective Subsidiaries shall or shall permit those Persons’ respective directors, officers, employees, agents, and joint venture partners, to use, directly or indirectly, all or any part of the proceeds of any Letter of Credit or Revolving Credit Loan (i) for the purpose of funding, financing, or facilitating any activities, business or transaction of any Sanctioned Person or in any Sanctioned Country, or (ii) in any manner that would result in the violation of any Sanctions by any Person (including any Person participating in the transactions contemplated hereunder, including as Lender, Letter of Credit Issuing Bank or otherwise);

(b)    No part of the proceeds of the Letters of Credit or Revolving Credit Loans will be used, directly or indirectly, 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 Anti-Corruption Laws; and

(c)    The Borrower has caused and will cause its Subsidiaries, and the Parent Guarantor has caused and will cause its Subsidiaries, to (i) maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower and the Parent Guarantor and their respective Subsidiaries, and, to the extent commercially reasonable, their agents with applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws; and (ii) ensure at all times the truth and accuracy of the representations and warranties set forth in Section 6.20 hereof, and adherence to, the covenants, set forth in this Section 8.20 hereof.

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ARTICLE IX.

EVENTS OF DEFAULT

9.01    Events of Default. The occurrence of any of the following shall constitute an “Event of Default” hereunder:

(a)    Non-Payment. (i) The Borrower fails to (x) reimburse any drawing under the Letter of Credit as required pursuant to Section 3.03(b) or otherwise when due or (y) pay when and as required to be paid herein, any amount of principal of any Revolving Credit Loan, and such failure is not cured within one (1) Business Day after such due date, or (ii) the Borrower fails to pay interest, fees or any other amount payable hereunder or under any other Credit Document when due, and such failure is not cured within three (3) Business Days after such due date; or

(b)    Representation or Warranty. Any representation or warranty by the Borrower, the Parent Guarantor, or any of the Borrower’s Subsidiaries made or deemed made herein, in any other Credit Document, or which is contained in any certificate, document or financial or other statement by the Borrower, any of its Subsidiaries, the Parent Guarantor, or any Responsible Officer, furnished at any time under this Agreement, or in or under any other Credit Document, is false, misleading or incomplete in any material respect on or as of the date made or deemed made; or

(c)    Compliance Guideline Defaults. The Parent Guarantor, Borrower or any of the Borrower’s Subsidiaries fails (i) to perform or observe any term, agreement or compliance guideline applicable to it contained in Sections 7.01, 7.02(a), 7.03(a), 7.04, 7.06, 7.07, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, or 7.21 or in Article VIII of this Agreement, or (ii) if any Compliance Certificate delivered pursuant to Section 7.02(a) of this Agreement indicates a failure to comply with the compliance guideline referred to therein, if such failure is not cured by the Borrower or the applicable Subsidiary within three (3) Business Days of the occurrence of such failure; or (iii) to perform or observe the terms and conditions set forth in Section 7.02(b) on a timely basis, provided that the Administrative Agent may, in its discretion, allow for an extension or extensions of the time for the delivery of the report required thereunder for a period not to exceed three (3) days in the aggregate; (iv) if the Borrower, any of its Subsidiaries, or the Parent Guarantor fails to perform or observe any other term, agreement or compliance guideline applicable to it contained herein or in any other Credit Document and not specified in (i), (ii), or (iii) above, if such failure is not cured by the Borrower or the applicable Subsidiary or Parent Guarantor within fifteen (15) Business Days; or

(d)    Change of Control. Any event or circumstance, or combination thereof, resulting in a Change of Control; or

(e)    Material Adverse Change. There occurs a Material Adverse Effect; or

(f)    Cross-Default. (i) The Borrower, or any Subsidiary of the Borrower (A) fails to make any payment with respect to any Indebtedness or Contingent Obligation having an aggregate principal amount of $1,000,000 or more or (B) fails to perform or observe any other condition, covenant or compliance guideline, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Contingent Obligation, and such failure continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated maturity, or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded, or (ii) the Parent Guarantor (A) fails to make any payment with respect to any Indebtedness or Contingent Obligation having an aggregate principal amount of $10,000,000 or more or (B) fails to perform or observe any other condition, covenant or compliance guideline, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Contingent Obligation, and such failure continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated maturity, or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded; or

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(g)    Default Under, or Termination or Contest of J. Aron CP Documentation. (i) An event of default or any similar occurrence relating to failure by the Borrower to make a material payment under any document comprising the J. Aron CP Documentation has occurred and is continuing (after giving effect to any applicable grace period or cure period contained in the Supply and Offtake Agreement as in effect on the Closing Date or as amended, restated, supplemented, or otherwise modified thereafter in accordance with the Credit Documents), (ii) an event of default or any similar occurrence under the J. Aron CP Documentation not relating to failure by the Borrower to make a material payment thereunder has occurred and is continuing and J. Aron has accelerated any Indebtedness or payment obligations thereunder; (iii) any document comprising the J. Aron CP Documentation shall for whatever reason be terminated or cease to be in full force and effect, or the validity or enforceability of any material provision thereof (or of any Payment Obligation Confirmation) shall be contested or disclaimed by any party thereto; or (iv) any Person obligated to make a payment under any document comprising the J. Aron CP Documentation or under any Payment Obligation Confirmation to the Collateral Agent, Sub-Collateral Agent or the Administrative Agent for the benefit of the Secured Parties, as the case may be, fails to do so on a timely basis; or

(h)    Insolvency: Voluntary Proceedings. The Borrower, any Subsidiary of the Borrower, or the Parent Guarantor (i) ceases or fails to be solvent, or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to effectuate or authorize any of the foregoing; or

(i)    Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced or filed against the Borrower, any Subsidiary of the Borrower, or the Parent Guarantor, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of Borrower’s or the Parent Guarantor’s properties and such writ, judgment, warrant of attachment, execution or similar process remains in effect for more than 15 days; (ii) the Borrower or the Parent Guarantor admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Borrower or the Parent Guarantor acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its property or business; or

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(j)    ERISA. (i) An ERISA Event shall occur or exist with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in (A) direct liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (B) liability of the Borrower, the Parent Guarantor or any ERISA Affiliate under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000, (ii) the Borrower, the Parent Guarantor 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 in an aggregate amount in excess of $5,000,000; or (iii) an event or condition described in Section 6.07(c) shall occur or exist; or

(k)    Judgments. Any judgment, order or decree is entered against the Parent Guarantor, the Borrower or any Subsidiary of the Borrower in excess of $10,000,000 and there shall be any period of 15 consecutive days during which such judgment is not paid or a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect unless such judgment is covered by insurance and provided that the insurance carrier has not denied coverage; or

(l)    Perfected Security Interest; Priority of Indebtedness. For any reason (i) the Collateral Agent or the Sub-Collateral Agent, as the case may be, shall at any time not have a first priority perfected security interest in the Collateral for the benefit of the Secured Parties; (ii) any rights of the Collateral Agent, the Sub-Collateral Agent, the Administrative Agent, any Lender or any Letter of Credit Issuing Bank in the Collateral become unenforceable or invalid; or (iii) the subordinated nature of any Subordinated Indebtedness shall for whatever reason be contested by the Borrower, the Parent Guarantor, any of their respective Affiliates or Subsidiaries, or any holder of such Subordinated Indebtedness or disallowed by any court of competent jurisdiction; or

(m)    Credit Documents. Any Credit Document shall for whatever reason be terminated or cease to be in full force and effect, or the validity or enforceability of any provision thereof shall be contested or disclaimed by the Borrower, the Parent Guarantor, or any of their respective Affiliates or Subsidiaries, or any other party thereto; or

(n)    Transfer of the Refinery. The Borrower sells, leases, transfers or otherwise disposes of all or a material portion of the Refinery (other than the mortgage of the Refinery and replacements, renewals or extensions thereof, on substantially the same or similar terms as in effect on the Closing Date).

9.02    Remedies. If any Event of Default occurs, the Administrative Agent shall, upon request of the Required Lenders:

(a)    declare (i) an amount equal to the maximum aggregate amount that is or at any time thereafter may become available for drawing by the beneficiary under any outstanding Letters of Credit (whether or not any beneficiary shall have presented, or shall be entitled at such time to present, the drafts or other documents required to draw under such Letters of Credit) to be immediately due and payable, (ii) the unpaid principal amount of all outstanding Revolving Credit Loans, and all interest and premium accrued and unpaid thereon to be immediately due and payable, and (iii) all other amounts owing or payable hereunder or under any other Credit Document to be immediately due and payable, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;

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(b)    exercise on behalf of itself and the Lenders and the Letter of Credit Issuing Banks all rights and remedies available to it under the Credit Documents or applicable law including, without limitation seeking to lift the stay in effect under the Insolvency Proceeding; provided, however, that upon the occurrence of any event specified in clauses (h) or (i) of Section 9.01 of this Agreement with respect to the Borrower, any Subsidiary of the Borrower, or the Parent Guarantor, an amount equal to the maximum aggregate amount that is or at any time thereafter may become available for drawing by the beneficiary under any outstanding Letters of Credit (whether or not any beneficiary shall have presented, or shall be entitled at such time to present, the drafts or other documents required to draw under such Letters of Credit), the unpaid principal amount of all outstanding Revolving Credit Loans, and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent;

(c)    terminate the Maximum Credit Limits of the Lenders; provided, however, that upon the occurrence of any event specified in clauses (h) or (i) of Section 9.01 of this Agreement with respect to the Borrower, any Subsidiary of the Borrower, or the Parent Guarantor, the Maximum Credit Limits of the Lenders will be deemed automatically terminated; and

(d)    obtain cash collateral from the Borrower as provided in Section 3.06 of this Agreement.

9.03    Application of Funds. Subject to the Collateral Agency Agreement, after the exercise of remedies provided for in Section 9.02 (or after the Revolving Credit Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be cash collateralized as set forth in Section 9.02(d)), any amounts received on account of the Obligations shall, subject to the provisions of Section 4.06, be applied by the Administrative Agent in the following order:

(a) first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and Collateral Agent) payable to the Administrative Agent and the Collateral Agent in their capacities as such;

(b) second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit fees) payable to the Lenders and the Letter of Credit Issuing Banks (including fees, charges and disbursements of counsel to the respective Lenders and the Letter of Credit Issuing Banks) arising under the Credit Documents, ratably among them in proportion to the respective amounts described in this clause (b) payable to them;

(c) third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees and interest on the Loans, L/C Obligations and other Obligations arising under the Credit Documents, ratably among the Lenders and the Letter of Credit Issuing Banks in proportion to the respective amounts described in this clause (c) payable to them;

(d) fourth, to the Administrative Agent for the account of the Letter of Credit Issuing Banks, to cash collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise cash collateralized by the Borrower pursuant to Section 9.02(d);

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(e) fifth, to payment of that portion of the Obligations constituting unpaid principal of the Revolving Credit Loans and L/C Obligations ratably among the Lenders and the Letter of Credit Issuing Banks, in proportion to the respective amounts described in this clause (e) payable by them; and

(f) last, the balance, if any, after payment in full of all Obligations, to the Borrower or as otherwise required by law.

Amounts used to cash collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause (d) above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

9.04    Rights Not Exclusive. The rights provided for in this Agreement and the other Credit Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.

9.05    Default Rate. At any time after an Event of Default has occurred and at the election of either the Administrative Agent or the Required Lenders, any obligation of the Borrower with respect to any Revolving Credit Loan, Letter of Credit or any other amount under this Agreement (including, without limitation, any fee due hereunder), or any other Credit Document that is not paid when due (whether at stated maturity, by acceleration, by optional or mandatory prepayment or otherwise) shall bear interest at the Default Rate. The Administrative Agent shall use its best efforts to notify the Borrower promptly upon the account officer responsible for the Uncommitted Facility having actual knowledge that interest at the Default Rate is being charged to the Borrower, provided, however, that the failure to do so shall not prevent the Default Rate from being charged hereunder from the date an Event of Default has occurred.

ARTICLE X.

THE AGENT

10.01    Appointment, Powers and Immunities. Each Lender hereby appoints and authorizes the Administrative Agent and the Agent-Related Persons to act as its agent hereunder and under the other Credit Documents with such powers as are specifically delegated to the Administrative Agent and the Agent-Related Persons by the terms of this Agreement and of the other Credit Documents, together with such other powers as are reasonably incidental thereto. The Administrative Agent and the Agent-Related Persons:

(a)    shall have no duties or responsibilities except those expressly set forth in this Agreement and in the other Credit Documents, and shall not by reason of this Agreement or any other Credit Document be a fiduciary or a trustee for any Lender, regardless of whether a Default has occurred and is continuing;

(b)    shall not 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 Credit Documents that the Administrative Agent 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 Credit Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under the Bankruptcy Code or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of the Bankruptcy Code

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(c)    shall not be responsible to the Lenders for any recitals, statements, representations or warranties contained in this Agreement or in any other Credit Document, or in any certificate or other document referred to or provided for in, or received by any of them under, 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 or any other document referred to or provided for herein or therein or for any failure by the Borrower or any other Person to perform any of its obligations hereunder or thereunder;

(d)    shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Agreement, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Credit Document; and

(e)    shall not be responsible for any action taken or omitted to be taken by it hereunder or under any other Credit Document or under any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith, except for its own gross negligence or willful misconduct.

The Administrative Agent may employ agents and attorneys in fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys in fact selected by it in good faith.

10.02    Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon any certification, notice or other communication (including, without limitation, any thereof by telephone, telecopy, telegram, electronic mail, or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the Administrative Agent. As to any matters not expressly provided for by this Agreement or any other Credit Document, the Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in accordance with instructions given by all of the Lenders or, if provided herein, in accordance with the instructions given by all of the Lenders, and such instructions of such Lenders and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders.

10.03    Defaults. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default unless the Administrative Agent has received notice from a Lender or the Borrower specifying such Default and stating that such notice is a “Notice of Default”. In the event that the Administrative Agent receives such a notice of the occurrence of a Default, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent and Sub-Collateral Agent shall each (subject to Sections 10.07 and 10.09(a) of this Agreement) take such action with respect to such Default as shall be directed by all of the Lenders, and the Collateral Agent shall (subject to Sections 10.07 and 10.09(a) of this Agreement) take such action with respect to such Default as may be required by the Collateral Agency Agreement; provided in each case, however, that, unless and until the Administrative Agent, Collateral Agent or Sub-Collateral Agent as applicable, shall have received such directions, the Administrative Agent, Collateral Agent and Sub-Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable in the best interest of the Lenders except to the extent that this Agreement or any other Credit Document expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of the Required Lenders, all of the Lenders or the Administrative Agent, as the case may be.

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10.04    Rights as a Lender. With respect to its role as Letter of Credit Issuing Bank or in its capacity as a Lender hereunder, MUFG (and any successor acting as Administrative Agent) shall have the same rights and powers hereunder as any other Letter of Credit Issuing Bank or Lender and may exercise the same as though it were not acting as the Administrative Agent, and the terms “Letter of Credit Issuing Bank”, “Letter of Credit Issuing Banks”, “Lender” or “Lenders” shall, unless the context otherwise indicates, include MUFG in its individual capacity. MUFG (and any successor acting as Administrative Agent) and its affiliates may (without having to account therefor to any Lender) accept deposits from, lend money to, make investments in and generally engage in any kind of banking, trust or other business with the Borrower (and any of its Subsidiaries or Affiliates) as if it were not acting as the Administrative Agent, and MUFG (and any such successor) and its affiliates may accept fees and other consideration from the Borrower for services in connection with this Agreement or otherwise without having to account for the same to the Lenders.

10.05    Indemnification. The Lenders (including each Declining Lender and Defaulting Lender) agree to indemnify the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and the Agent-Related Persons (to the extent not reimbursed under Section 11.05 of this Agreement, but without limiting the obligations of the Borrower under said Section 11.05 of this Agreement), ratably in accordance with their respective Maximum Credit Limits (as increased or decreased) in effect at the time of the alleged act or omission that is the subject of such claim, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Agent-Related Person (including by any Lender) arising out of or by reason of any investigation in or in any way relating to or arising out of the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent serving in its capacity as administrative agent, collateral agent or sub-collateral agent under this Agreement or any other Credit Document, or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby (including, without limitation, the costs and expenses that the Borrower is obligated to pay under Section 11.05 of this Agreement, but excluding, unless a Default has occurred and is continuing, normal administrative costs and expenses incident to the performance of its agency duties hereunder but excluding fees payable to the Administrative Agent under any Fee Letter) or the enforcement of any of the terms hereof or thereof or of any such other documents, provided, however, that no Lender shall be liable for any of the foregoing to the extent they are found by a final non-appealable judgment of a court of competent jurisdiction to be the direct result solely of the gross negligence or willful misconduct of the party to be indemnified. The agreements in this Section 10.05 shall survive termination of this Agreement and the other Credit Documents, the repayment of the L/C Obligations and all other amounts payable hereunder and thereunder, and the termination or expiration of all Letters of Credit (and with respect to each Declining Lender shall survive its termination of its obligations under this Agreement).

10.06    Non-Reliance on Administrative Agent, Collateral Agent, Sub-Collateral Agent and Other Lenders. Each Lender agrees that it has, independently and without reliance on the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and any Agent-Related Person, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower, its consolidated Subsidiaries and the Parent Guarantor (including such Persons’ financial condition, creditworthiness, affairs, Collateral value and status), including without limitation, its own independent review of the Collateral, including the existence of the Collateral, the quality and nature of the Collateral and the adequacy of the Collateral to fully secure the Obligations, and its decision to enter into this Agreement and that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent, any Agent-Related Person, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under this Agreement or under any other Credit Document. Neither the Administrative Agent nor the Collateral Agent nor the Sub-Collateral Agent shall be required to keep itself informed as to the performance or observance by the Borrower of this Agreement or any of the other Credit Documents or any other document referred to or provided for herein or therein or to inspect the Collateral or other properties or books of the Borrower and any of its consolidated Subsidiaries. Except as otherwise specifically stated herein to the contrary, neither the Administrative Agent, nor the Collateral Agent, nor the Sub-Collateral Agent nor any Agent-Related Person shall have any duty or responsibility to provide any Lender with any information with respect to the quality, nature, existence or other information regarding the Collateral and makes no representation to the Lenders whatsoever in respect of the accuracy or validity of any representation or warranty made by the Borrower herein, including as to the quality, nature, existence or other information regarding the Collateral. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent hereunder or under the Credit Documents, neither the Administrative Agent nor the Collateral Agent nor the Sub-Collateral Agent nor any Agent-Related Person shall have any duty or responsibility to provide any Lender with any credit or other information concerning the affairs, financial condition or business of the Borrower, any of its consolidated Subsidiaries (or any of their Affiliates) that may come into the possession of the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Agent-Related Person.

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10.07    Failure to Act. Except for action expressly required of the Administrative Agent hereunder and under the other Credit Documents, each of the Administrative Agent and the Collateral Agent shall in all cases be fully justified in failing or refusing to act hereunder and thereunder unless it shall receive further assurances to its satisfaction from the Lenders of their indemnification obligations under Section 10.05 of this Agreement against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.

10.08    Resignation of Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, the Administrative Agent may resign at any time by giving notice thereof to the Lenders and Borrower. Upon any such resignation, the Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the 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, appoint a successor Administrative Agent, that shall be a bank that has an office in New York, New York with a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article X shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent.

10.09    Administrative Agent or Collateral Agent, Sub-Collateral Agent as Collateral Holder.

(a)    Except for action expressly required of the Administrative Agent, Collateral Agent or Sub-Collateral Agent, as applicable, hereunder, or under any other Credit Document as holder of any Collateral, the Administrative Agent, Collateral Agent or Sub-Collateral Agent, as applicable, shall in all cases be fully justified in refusing to act hereunder and thereunder unless it is further indemnified to its satisfaction by the Lenders, proportionately in accordance with the Obligations then due and payable to each of them, against any and all liability and expense that may be incurred by the Administrative Agent, Collateral Agent or Sub-Collateral Agent by reason of taking or continuing to take any such action.

(b)    Each Lender will make its own credit decisions hereunder, including the decision whether or not to consent to the Issuance of Letters of Credit or to make Revolving Credit Loans, thus the Administrative Agent, Collateral Agent or Sub-Collateral Agent, as applicable, shall have no duty to monitor the Collateral, the amounts outstanding under any limits or the reporting requirements or the contents of reports delivered by the Borrower. Neither the Administrative Agent, the Collateral Agent nor the Sub-Collateral Agent shall incur any liability as a result of any private sale of the Collateral. Each Lender assumes the responsibility of keeping itself informed at all times.

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(c)    The Lenders hereby consent, and agree upon written request by the Administrative Agent, Collateral Agent or Sub-Collateral Agent, as applicable, to execute and deliver such instruments and other documents as the Administrative Agent, Collateral Agent or Sub-Collateral Agent, as applicable, may deem desirable to confirm such consent to the release of the Liens on the Collateral provided that such release is consented to by the requisite Lenders or such release is otherwise permitted in accordance with the terms of the Credit Documents.

(d)    The Administrative Agent, Collateral Agent or Sub-Collateral Agent, as applicable, shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which it accords its own property, it being understood that none of the Administrative Agent, Collateral Agent, Sub-Collateral Agent nor any Lender shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Administrative Agent, Collateral Agent, Sub-Collateral Agent or any Lender is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Collateral.

(e)    Each of the Administrative Agent, the Collateral Agent and the Sub-Collateral Agent is hereby authorized by each Letter of Credit Issuing Bank and each Lender, on behalf of all of all Letter of Credit Issuing Banks and Lenders, without the necessity of any notice to or further consent therefrom, from time to time to take any action with respect to any Collateral or the Credit Documents which may be necessary to perfect, preserve, maintain perfected, and enforce the security interest in and Liens upon the Collateral granted pursuant to the Credit Documents and such other acts or omission with respect to the Credit Documents (including without limitation the Collateral Agency Agreement) and the Liens created thereby as it deems appropriate in its sole discretion, including without limitation entering into and performing its respective obligations under the Collateral Agency Agreement.

(f)    Each of the Lenders, the Letter of Credit Issuing Banks and the other Secured Parties (except the Collateral Agent) hereby irrevocably authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party (x) the Collateral Agency Agreement (provided for the avoidance of doubt, that such agreement is acceptable to the Required Lenders) and (y) any documents relating thereto.

(g)    Each of the Lenders, the Letter of Credit Issuing Banks and the other Secured Parties (except the Collateral Agent) hereby irrevocably (w) consents to the treatment of Liens to be provided for under the Collateral Agency Agreement, (x) agrees that, upon the execution and delivery thereof, such Secured Party will be bound by the provisions of the Collateral Agency Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of the Collateral Agency Agreement, (y) agrees that no Secured Party shall have any right of action whatsoever against the Administrative Agent as a result of any action taken by the Administrative Agent pursuant to this Section or in accordance with the terms of the Collateral Agency Agreement (provided for the avoidance of doubt, that such agreement is acceptable to the Required Lenders) and (z) authorizes and directs the Administrative Agent to carry out the provisions and intent of the Collateral Agency Agreement.

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(h)    Each of the Lenders, the Letter of Credit Issuing Banks and the other Secured Parties (except the Collateral Agent) hereby irrevocably further authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of the Collateral Agency Agreement that the Borrower may from time to time request (i) to confirm for any party that such Collateral Agency Agreement is effective and binding upon the Administrative Agent on behalf of the Secured Parties or (iii) to effect any other amendment, supplement or modification so long as the resulting agreement would constitute the Collateral Agency Agreement if executed at such time as a new agreement.

(i)    Each of the Lenders, the Letter of Credit Issuing Banks and the other Secured Parties (except the Collateral Agent) hereby irrevocably further authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Security Document to add or remove any legend that may be required pursuant to the Collateral Agency Agreement.

(j)    The Administrative Agent shall have the benefit of the provisions of Article X with respect to all actions taken by it pursuant to this Section 10.09 or in accordance with the terms of the Collateral Agency Agreement to the full extent thereof.

(k)    The Administrative Agent, Collateral Agent and Sub-Collateral Agent may execute any of their respective duties as collateral agent by or through agents, subagents, or attorneys-in-fact, and are entitled to advice of counsel concerning all matters pertaining to such duties. Neither the Administrative Agent, the Collateral Agent nor the Sub-Collateral Agent is or will be deemed responsible for the negligence or misconduct of any agents, subagents, or attorneys-in-fact selected by it with reasonable care, provided that, notwithstanding the foregoing, the parties hereto agree that the Collateral Agent shall have no liability for (x) the selection of MUFG as Sub-Collateral Agent or J. Aron as a sub-collateral agent under the Security Agreement or the Collateral Agency Agreement or the assignment or delegation of any rights or duties by the Collateral Agent to such Persons, or (y) any actions taken by MUFG or J. Aron in such capacities. Anything herein to the contrary notwithstanding, none of the Arrangers or the Agent-Related Parties shall have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent, a Lender or a Letter of Credit Issuing Bank hereunder or thereunder.

(l)    Collateral Matters. Anything contained in any of the Credit Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, the Agent-Related Persons, the Lenders and the Letter of Credit Issuing Banks hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Security Agreement or any other Security Document, it being understood and agreed that all powers, rights and remedies under any of the Security Documents may be exercised solely by the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms thereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent or Sub-Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii)  in the event of a foreclosure or similar enforcement action by the Administrative Agent, Collateral Agent (or the Sub-Collateral Agent) on any of the Collateral pursuant to a public or private sale or other disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent at such sale or other disposition.

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(m)    Administrative Agent May File Proofs of Claim. In case of the pendency of any Insolvency Proceeding, the Administrative Agent (irrespective of whether the principal of any Revolving Credit Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent or Collateral Agent shall have made any demand on the Borrower) 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 Revolving Credit Loans, L/C Obligations 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 Letter of Credit Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Letter of Credit Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Letter of Credit Issuing Banks and the Administrative Agent under Section 2.13, Section 3.07 and Section 11.04) 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, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Letter of Credit Issuing Bank 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 and the Letter of Credit Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.13 and Section 11.04.

10.10    Erroneous Payments.

(a)    If the Administrative Agent (x) notifies a Lender, Letter of Credit Issuing Bank, or any Person who has received funds on behalf of a Lender or Letter of Credit Issuing Bank (any such Lender, Letter of Credit Issuing Bank or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this ‎Section 10.10 and held in trust for the benefit of the Secured Parties shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.

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(b)    Without limiting immediately preceding clause (a), each Lender, Letter of Credit Issuing Bank or any Person who has received funds on behalf of a Lender or Letter of Credit Issuing Bank (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, Letter of Credit Issuing Bank or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:

(i)    it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and

(ii)    such Lender or Letter of Credit Issuing Bank shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 10.10(b).

(iii)    For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this ‎Section 10.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to ‎Section 10.10(a) or on whether or not an Erroneous Payment has been made.

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(c)    Each Lender or Letter of Credit Issuing Bank hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Letter of Credit Issuing Bank under any Credit Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Letter of Credit Issuing Bank under any Credit Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a).

(d)    The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Letter of Credit Issuing Bank, to the rights and interests of such Lender or Letter of Credit Issuing Bank, as the case may be) under the Credit Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower; provided that this ‎Section 10.10 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 Borrower 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, 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, or on behalf of (including through the exercise of remedies under any Credit Document), the Borrower for the purpose of a payment on the Obligations.

(e)    To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.

Each party’s obligations, agreements and waivers under this Section 10.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Letter of Credit Issuing Bank, the termination of the Uncommitted Facility and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Credit Document.

ARTICLE XI.

MISCELLANEOUS

11.01    Amendments and Waivers; Instructions to Collateral Agent or Sub-Collateral Agent. Neither this Agreement, any provision hereof nor any other Credit Document may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent (if the Collateral Agent is a party to such Credit Document), and the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders (other than as provided in Section 4.06 of this Agreement concerning Defaulting Lenders) and, in the event of a waiver, such waiver shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:

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(a)    without the written consent of each Lender affected thereby, no such waiver, amendment or modification shall (i) increase the Maximum Credit Limit of any Lender, (ii) reduce the rate of interest, Default Rate or reduce any fees payable hereunder, or (iii) postpone the scheduled date of payment of any payment of interest or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the Credit Facility Termination Date,

(b)    without the written consent of each Lender, no such waiver, amendment or modification shall (i) [reserved], (ii) amend or modify in any material respect the provisions of Section 4.02 of this Agreement, (iii) amend or modify Section 2.16 or 3.03(c) of this Agreement in a manner that would alter the pro rata sharing of payments required thereby, (iv) amend or modify in any material respect the provisions of Sections 7.15, 8.02 (or the definition of “Liquidity” or any of the defined terms used therein), 10.05, 11.04 or 11.05 of this Agreement, (v) permit the Borrower, the Parent Guarantor, or any of their respective Subsidiaries to assign its rights or obligations under the Credit Documents, (vi) change any of the provisions of this Section 11.01 of this Agreement or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, or (vii) release all or substantially all of the Collateral from the liens created pursuant to the Security Documents or release the Parent Guaranty; provided that the Collateral Agent may, upon the written instruction of the Administrative Agent and without further consent, release all of the Collateral from the liens created pursuant to the Security Documents and release the Parent Guaranty upon the Discharge of Secured Obligations relating to the Collateral pursuant to Section 24 of the Security Agreement;

(c)    no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent hereunder or under any other Credit Document without the prior written consent of the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent, as applicable,

(d)    no such agreement shall amend, modify or otherwise affect the rights or duties of any Letter of Credit Issuing Bank without the prior written consent of such Letter of Credit Issuing Bank;

(e)    no such waiver, amendment or modification shall subordinate (in right of security) the Liens on the Collateral securing the Obligations to other secured Indebtedness of the Parent Guarantor, the Borrower or any Subsidiary of Borrower or subordinate (in right of payment) the Obligations to other senior Indebtedness of the Parent Guarantor, the Borrower or any Subsidiary of Borrower, in each case without the prior written consent of each Lender (but excluding the agreements among the Secured Parties and J. Aron under the terms of the Collateral Agency Agreement);

(f)    no waiver, amendment or modification of any agreement, document or instrument subject to Section 8.17 shall be permitted unless such waiver, amendment or modification is consented to in accordance with the terms of Section 8.17; and

(g)    in accordance with the terms of Section 2.11(g) of the Collateral Agency Agreement, the prior written consent of J. Aron, which shall not be unreasonably withheld or delayed, shall be required for any amendment, modification, waiver or consent in respect of the definition of “J. Aron Payment Obligation” set forth herein.

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Notwithstanding the foregoing, each of the Lenders hereby acknowledges and agrees that (a) the Administrative Agent may, without the consent of any Lender, but with written notice to each Lender, enter into with the Borrower, the Parent Guarantor, or any of their respective Subsidiaries written amendments, supplements or modifications hereto and to the other Credit Documents, in each case including but not limited to amendments, supplements or modifications to Schedules 1.01 and 11.02 attached hereto or otherwise necessary to effectuate changes in any existing or new Lender’s Maximum Credit Limit in accordance with Sections 2.18 and 5.03 of this Agreement, or for the purpose of (i) making technical corrections to or clarifications of this Agreement and the other Credit Documents that do not affect the rights or obligations of any Lender or the Collateral Agent, or, to the extent that the rights or obligations of any Lender or the Collateral Agent are affected, the consent of only the affected Lender or Collateral Agent, as applicable, or (ii) the addition of new Lenders under this Agreement to the extent otherwise in compliance with Sections 2.18 and 5.03 of this Agreement and (b) a Lender may waive any fee due to such Lender without the consent of any other Lender not adversely affected thereby.

Notwithstanding anything herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent that by its terms requires the consent of all the Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), including any increases, reaffirmations or decreases in the Maximum Availability, except that (x) the Maximum Credit Limit of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Revolving Credit Loans may not be reduced and the principal amount of any of its Revolving Credit Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.

11.02    Notices.

(a)    All notices, requests and other communications shall be in writing (including, unless the context expressly otherwise provides, by facsimile or electronic transmission (provided, however, any matter transmitted by the Borrower by facsimile or electronic mail shall be immediately confirmed by a telephone call to the recipient at the number specified on Schedule 11.02 attached hereto and incorporated herein) and mailed, delivered by fax or electronic mail, to the address or facsimile number specified for notices on said Schedule 11.02; or directed to the Borrower, the Administrative Agent, the Collateral Agent or any Lender, to such other address as shall be designated by such party in a written notice to the other parties, and as directed to any other party, at such other address as shall be designated by such party in a written notice to the Borrower, the Administrative Agent, the Collateral Agent and the Lenders.

(b)    All such notices, requests and communications shall, when transmitted by overnight delivery, fax, or electronic mail, be effective when delivered for overnight (next-day) delivery or transmitted in legible form by facsimile machine or electronic mail with telephonic confirmation of receipt (subject to the provisions of clause (c) of this Section 11.02), respectively, or if mailed, within two (2) Business Days after the date deposited into the U.S. mail, or if delivered, upon delivery; provided, however, the provisions of this section shall be superseded by any other express provisions in this Agreement to the contrary.

(c)    Any agreement of the Administrative Agent or the Collateral Agent herein to receive notices by telephone, facsimile, or electronic mail is solely for the convenience and at the request of the Borrower, the Administrative Agent and the Collateral Agent shall be entitled to rely on the authority of any officer who is purportedly authorized by the Borrower to give such notice and the Administrative Agent and the Collateral Agent shall not have any liability to the Borrower or other Person on account of any act taken or not taken by the Administrative Agent or the Collateral Agent in reliance upon such telephonic or facsimile notice. The obligation of the Borrower to repay the L/C Obligations shall not be affected in any way or to any extent by any failure by the Administrative Agent to receive a written confirmation of any telephonic or facsimile notice or the receipt by the Administrative Agent of a confirmation which is at variance with the terms understood by the Administrative Agent to be contained in the telephonic or facsimile notice.

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11.03    No Waiver: Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Collateral Agent, the Sub-Collateral 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.

11.04    Costs and Expenses. The Borrower shall be obligated:

(a)    whether or not the transactions contemplated hereby are consummated, to pay or reimburse each of the Administrative Agent, the Collateral Agent and the Sub-Collateral Agent within five (5) Business Days after demand (subject to Section 5.01(i) of this Agreement) for all reasonable and documented out-of-pocket costs and expenses (including reasonable Attorney Costs) incurred by the Administrative Agent, the Collateral Agent and the Sub-Collateral Agent in connection with syndication of the facility evidenced hereby and the development, preparation, delivery, execution of, administration and monitoring, and any amendment, supplement, waiver or modification to (in each case, whether or not consummated), this Agreement, any Credit Document and any other documents prepared in connection herewith or therewith, and the consummation of the transactions contemplated hereby and thereby, including reasonable Attorney Costs, and costs of commercial finance examinations, incurred by the Administrative Agent, the Collateral Agent and the Sub-Collateral Agent with respect thereto; and

(b)    pay or reimburse each of the Lenders, Letter of Credit Issuing Banks, the Administrative Agent, the Collateral Agent and the Sub-Collateral Agent within five Business Days after demand (subject to Section 5.01(i) of this Agreement) for all out-of-pocket costs and expenses (including Attorney Costs) incurred in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies under this Agreement or any other Credit Document during the existence of an Event of Default or after acceleration of the L/C Obligations (including all such costs and expenses incurred in connection with any “workout” or restructuring in respect of the Obligations, and including in any Insolvency Proceeding or appellate proceeding).

11.05    Indemnity. Whether or not the transactions contemplated hereby are consummated, the Borrower is hereby obligated to indemnify and hold the Arrangers, Administrative Agent, the Agent-Related Persons, the Letter of Credit Issuing Bank-Related Persons, the Collateral Agent, the Sub-Collateral Agent and each of the Lenders and their respective Affiliates, officers, directors, employees, counsel, agents, advisors and attorneys (each, an “Indemnified Person”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs and Environmental Claims) of any kind or nature whatsoever which may at any time (including at any time following the termination of the Letters of Credit) be imposed on, incurred by or asserted against any such Person asserted by any Person (including the Borrower or Parent Guarantor) in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) asserted by any Person (including the Borrower or Parent Guarantor) related to or arising out of this Agreement or the Letters of Credit or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided, however, that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities that are found by a final non-appealable judgment of a court of competent jurisdiction to be the direct result solely from the gross negligence or willful misconduct of such Indemnified Person provided, further, however, that Borrower is hereby obligated to indemnify and hold each Indemnified Person harmless from and against any and all Indemnified Liabilities arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems, or for any special, indirect, consequential or punitive damages in connection with the Uncommitted Facility, in each case except to the extent any such damages are found by a final non-appealable judgment of a court of competent jurisdiction to be the direct result solely from the gross negligence or willful misconduct of such Indemnified Person or such Indemnified Person’s affiliates, directors, employees, advisors or agents. The agreements in this Section 11.05 shall survive termination of this Agreement and the other Credit Documents, the repayment of all amounts payable hereunder and thereunder, and the termination or expiration of all Letters of Credit. THIS INDEMNITY OBLIGATION IS INTENDED TO ALLOCATE LIABILITY IN ACCORDANCE WITH ITS TERMS FOR, WITHOUT LIMITATION, ANY CLAIMS RESULTING FROM THE NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PERSON INCLUDING CLAIMS ARISING UNDER ENVIRONMENTAL LAWS (INCLUDING THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT AND ANALOGOUS STATE LAWS).

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11.06    Payments Set Aside. To the extent that the Borrower makes a payment to the Administrative Agent, the Collateral Agent or any Lender, or the Administrative Agent, the Collateral Agent or any Lender exercises its right of set off, and such payment or the proceeds of such set off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the Collateral Agent or any Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then to the extent of such recovery the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred.

11.07    Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not, and will not suffer or permit the Parent Guarantor to, assign or transfer any of its respective rights or obligations under this Agreement or any other Credit Document without the prior written consent of all the Lenders and the Administrative Agent.

11.08    Assignments; Participations, Etc.

(a)    Each Lender may assign to one or more Eligible Assignees all, or a portion of, its rights and obligations under this Agreement (including any of its L/C Obligations (but only with the consent of the Administrative Agent and, so long as no Event of Default exists, the Borrower, which consent of the Borrower shall not be unreasonably withheld or delayed, and, in the case of an L/C Obligation, the applicable Letter of Credit Issuing Bank)); provided, however, that:

(i)    no such consent by the Borrower shall be required at any time during which an Event of Default shall have occurred and been continuing hereunder;

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(ii)    no such consent by the Borrower shall be required in respect of any assignment to (1) a Lender or (2) an Affiliate of a Lender, or (3) any fund that is managed by a Lender, by an Affiliate of a Lender, or by an entity or Affiliate of an entity that administers or manages a Lender (which such fund is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business);

(iii)    except to the extent the Borrower and the Administrative Agent (and the applicable Letter of Credit Issuing Bank, in the case of a Letter of Credit) shall otherwise consent, any such partial assignment to an Eligible Assignee other than those listed in subparagraph (a)(ii) above shall be in an amount at least equal to $1,000,000;

(iv)    each such assignment by a Lender of its Maximum Credit Limit, Revolving Credit Loans and L/C Obligations shall be made in such manner so that the same portion of its Maximum Credit Limit, Revolving Credit Loans and L/C Obligations is assigned to the respective Eligible Assignee; and

(v)    upon each such assignment, the assigning Lender and Eligible Assignee shall deliver to the Borrower, the Administrative Agent and the Letter of Credit Issuing Banks a Notice of Uncommitted Facility Assignment in the form of Exhibit G hereto, and the assigning Lender shall pay a $3,500 recordation fee to the Administrative Agent.

Upon execution and delivery by the assigning Lender and the Eligible Assignee to the Borrower, the Administrative Agent and the Letter of Credit Issuing Banks of such Notice of Uncommitted Facility Assignment, and upon consent thereto by the Borrower, the Administrative Agent and the Letter of Credit Issuing Banks to the extent required above, the Eligible Assignee shall be a party to this Agreement and, to the extent of the interest assigned by such Notice of Uncommitted Facility Assignment, have the rights and obligations of a Lender under this Agreement and the assigning Lender shall, to the extent of such interest assigned by such Notice Uncommitted Facility Assignment, be released from its obligations under this Agreement (and, in the case of an Uncommitted Facility Assignment covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain a copy of each Notice of Uncommitted Facility Assignment delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Maximum Credit Limit of, and principal amount (and stated interest) of the Revolving Credit Loans and L/C Obligations owing to, each Lender and Letter of Credit Issuing Bank 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 and Letter of Credit Issuing Banks shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender or Letter of Credit Issuing Bank, as applicable, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender or Letter of Credit Issuing Bank, at any reasonable time and from time to time upon reasonable prior notice.

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(b)    A Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of the Borrower (a “Participant”) participating interests in any L/C Obligations and any other interests of such Lender hereunder and under the other Credit Documents: provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Credit Documents, and (iv) such Lender shall not transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Credit Document, except to the extent such amendment, consent or waiver relates to the Face Amount of any Letters of Credit, the rate of interest to be charged with respect to any Revolving Credit Loan or L/C Obligations, any fees payable to a Lender under this Agreement or the extension of the Credit Facility Termination Date. In the case of any such participation, the Participant shall not have any rights under this Agreement, or any of the other Credit Documents, and all amounts payable by the Borrower hereunder shall be determined as if the Lender had not sold such participation; except that (1) if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and (2) each Participant will be entitled to the benefits of Sections 4.01 and 4.02 of this Agreement with respect to its participation in the Maximum Credit Limit, the Revolving Credit Loans and the Letters of Credit outstanding from time to time as if it was a Lender; provided, however, that, in the case of Section 4.01 of this Agreement, such Participant shall have complied with the requirements of said Section (it being understood that the documentation required under Section 4.01(h) shall be delivered to the participating Lender); and provided further, however, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferring Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferring Lender to such Participant 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. Each Lender that sells a participation hereunder shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, 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 Revolving Credit Loans, the Letters of Credit 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 Maximum Credit Limits, Letters of Credit or its other obligations under any Credit Document) to any Person except as set forth herein or to the extent that such disclosure is necessary to establish that such 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.

(c)    Notwithstanding any other provision in this Agreement, any Lender may at any time assign, create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR 203.14, or other central bank in accordance with applicable Requirements of Law and such Federal Reserve Bank or central bank may enforce such pledge or security interest in any manner permitted under applicable law.

11.09    Set-off. Subject to the provisions of Section 2.16 of this Agreement, in addition to any rights and remedies of the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and the Lenders provided by law, if an Event of Default exists or the Revolving Credit Loans and the L/C Obligations have been accelerated, the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and each of the Lenders is hereby authorized at any time and from time to time, without prior notice to the Borrower, any such prior notice being waived by the Borrower to the fullest extent permitted by 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, the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Lender to or for the credit or the account of the Borrower against any and all Obligations owing to the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or such Lender, now or hereafter existing, irrespective of whether or not the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or such Lender shall have made demand under this Agreement or any Credit Document and although such Obligations may be contingent or unmatured. The Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and the Lenders agree promptly to notify the Borrower after any such set-off and application made by the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.

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11.10    Automatic Debits of Fees. With respect to any fee or any other cost or expense (including Attorney Costs), due and payable to the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent under the Credit Documents, the Borrower hereby irrevocably authorizes the Administrative Agent, the Collateral Agent and the Sub-Collateral Agent to debit any deposit account of the Borrower with the Administrative Agent, the Collateral Agent or the Sub-Collateral Agent in an amount such that the aggregate amount debited from all such deposit accounts does not exceed such fee or other cost or expense. The Administrative Agent, the Collateral Agent and the Sub-Collateral Agent agree to use their best efforts to provide reasonable prior notice to the Borrower of any debiting of its accounts pursuant to this Section 11.10. If there are insufficient funds in such deposit accounts to cover the amount of the fee or other cost or expense then due, such debits will be reversed (in whole or in part, in the Administrative Agent’s, the Collateral Agent’s or the Sub-Collateral Agent’s sole discretion) and such amount not debited shall be deemed to be unpaid. No such debit under this Section 11.10 shall be deemed a set-off.

11.11    Counterparts. This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (e.g. “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to this Agreement or any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Notices of Uncommitted Facility Assignment, amendments or other Requests for Credit Extensions, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

11.12    Severability. The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.

11.13    No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Borrower, the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent, the Agent-Related Persons, the Indemnified Persons, the Lenders and the Letter of Credit Issuing Banks and their permitted successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Credit Documents.

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11.14    Governing Law and Jurisdiction.

(a)    THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) OF THE STATE OF NEW YORK; PROVIDED THAT THE SECURED PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

(b)    ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE SUB-COLLATERAL AGENT AND EACH LENDER EACH CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE EXTENT PERMITTED BY LAW, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE SUB-COLLATERAL AGENT AND EACH LENDER EACH HEREBY 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 THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT. THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE SUB-COLLATERAL AGENT AND EACH LENDER EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

11.15    Waiver of Jury Trial and Punitive Damages.

(a)    THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE SUB-COLLATERAL AGENT AND EACH LENDER EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE SUB-COLLATERAL AGENT AND EACH LENDER EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.

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(b)    THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES.

11.16    Discretionary Facility. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT PROVIDES FOR AN UNCOMMITTED CREDIT FACILITY THAT IS COMPLETELY DISCRETIONARY ON THE PART OF THE ADMINISTRATIVE AGENT AND THE LENDERS AND THAT THE ADMINISTRATIVE AGENT OR THE LENDERS HAVE ABSOLUTELY NO DUTY OR OBLIGATION TO MAKE ANY REVOLVING CREDIT LOAN OR TO ISSUE ANY LETTER OF CREDIT. THE BORROWER UNDERSTANDS THAT PURSUANT TO THE TERMS OF THIS AGREEMENT, WITHOUT REASON, CAUSE OR PRIOR NOTICE, THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS MAY CEASE MAKING REVOLVING CREDIT LOANS AND ISSUING LETTERS OF CREDIT. THE BORROWER REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND THE LENDERS THAT THE BORROWER IS AWARE OF THE RISKS ASSOCIATED WITH CONDUCTING BUSINESS UTILIZING AN UNCOMMITTED FACILITY.

11.17    Entire Agreement. THIS AGREEMENT, TOGETHER WITH THE OTHER CREDIT DOCUMENTS, EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE SUB-COLLATERAL AGENT AND THE LENDERS AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF.

11.18    Confidentiality. The Administrative Agent, the Collateral Agent, the Sub-Collateral Agent and each Lender 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, credit risk protection providers, 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 required to be disclosed to, or disclosed to in accordance with the Administrative Agent’s, the Collateral Agent’s, the Sub-Collateral Agent’s or any Lender’s regulatory compliance policy, to any (i) rating agency, or (ii) regulatory or similar 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 hereto, (e) in connection with the exercise of any remedies under this Agreement or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 11.18, to (i) any purchasing Lender, proposed purchasing Lender, Participant, proposed Participant, brokers, insurers, or reinsurers, or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 11.18 or (y) becomes available to the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Lender on a non-confidential basis from a source other than the Borrower. For purposes of this Section 11.18, “Information” means all information received from the Borrower, the Parent Guarantor, or any of their respective Subsidiaries relating to the Borrower, the Parent Guarantor or any of their respective Subsidiaries in connection with the transactions contemplated hereby, the Parent Guarantor or any of its Subsidiaries, other than any such information that is available to the Administrative Agent, the Collateral Agent, the Sub-Collateral Agent or any Lender on a non-confidential basis prior to disclosure by the Borrower, the Parent Guarantor, or any of their respective Subsidiaries. Any Person required to maintain the confidentiality of Information as provided in this Section 11.18 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.

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11.19    Acknowledgement and Consent to Bail-In of Affected Financial Institutions Amendment and Restatement. 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, 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 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 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.

11.20    Acknowledgement Regarding Any Supported QFCs. To the extent that the Credit Documents provide support, through a guarantee or otherwise, for Hedging Arrangements 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 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):

(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 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.

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(b)    As used in this Section 11.20, 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).

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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed and delivered by an authorized officer as of the day and year first above written.

PAR HAWAII REFINING, LLC
By:	/s/ Shawn Flores
	Name:	Shawn Flores
	Title:	Chief Financial Officer

Signature Page to

Par Hawaii Refining Uncommitted Credit Agreement

MUFG BANK, LTD., as Administrative Agent, Sub-Collateral Agent, a Letter of Credit Issuing Bank and a Lender
By:	/s/ Christopher Taylor
	Name:	Christopher Taylor
	Title:	Managing Director

Signature Page to

Par Hawaii Refining Uncommitted Credit Agreement

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent
By:	/s/ Michael K. Herberger
	Name:	Michael K. Herberger
	Title:	Vice President

Signature Page to

Par Hawaii Refining Uncommitted Credit Agreement

EX-10.2

Exhibit 10.2

Execution Version

PARENT GUARANTY

(Unsecured)

This PARENT GUARANTY (this “Guaranty”), dated as of July 26, 2023, is hereby executed by PAR PETROLEUM, LLC, a limited liability company organized under the laws of the State of Delaware (the “Guarantor”).

WHEREAS, simultaneously herewith, Par Hawaii Refining, LLC, a limited liability company organized under the laws of the State of Hawaii (the “Borrower”), the Lenders and Letter of Credit Issuing Banks party thereto from time to time, MUFG Bank, Ltd., as Administrative Agent (in such capacity, collectively with its successors and assigns in such capacity, hereinafter called the “Agent”) and the Collateral Agent are entering into that certain Uncommitted Credit Agreement dated as of July 26, 2023 (as amended, restated, supplemented or otherwise modified from time to time pursuant to the terms thereof, the “Credit Agreement”);

WHEREAS, the Borrower is a wholly owned subsidiary of the Guarantor;

WHEREAS, the execution and delivery of this Guaranty is a condition precedent to the Lenders and Letter of Credit Issuing Banks issuing and participating in the Letters of Credit or otherwise extending credit under the Credit Agreement; and

WHEREAS, the Guarantor desires to enter into this Guaranty to satisfy the conditions set forth in the preceding paragraph;

NOW, THEREFORE, the Guarantor agrees as follows:

1. Guarantee of Payment. For valuable consideration, the receipt whereof is hereby acknowledged, and to induce the Agent, the Collateral Agent, the Lenders and the Letter of Credit Issuing Banks to enter into the Credit Agreement and the other Credit Documents, as the case may be, and to enter into the transactions contemplated thereby, the Guarantor hereby irrevocably unconditionally guarantees the due and punctual payment and performance and promises to pay to the Agent, for the benefit of the Secured Parties, at the Agent’s offices located at 1251 Avenue of the Americas, New York, New York 10020-1104, ON DEMAND or otherwise whenever such amounts shall be due and payable to any Secured Party (referred to, together, as the “Guaranteed Parties” and each a “Guaranteed Party”), any and all Obligations (as defined in the Credit Agreement) (the “Guarantied Obligations”) stated to be payable or which become payable to any of the Guaranteed Parties by operation of law or otherwise, whether at maturity or earlier by reason of demand, acceleration or otherwise, together with interest thereon (as determined in accordance with the Credit Agreement) and any and all legal and other costs and expenses paid or incurred in connection therewith by any of the Guaranteed Parties (as determined in accordance with the Credit Agreement but, including, without limitation, interest accruing after the filing of any petition in any Insolvency Proceeding relating to the Borrower or any Guarantor, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and, in case of one or more extensions of time of payment or renewals, in whole or in part, of any such Guarantied Obligations, that the Guarantor will pay the same according to each such extension or renewal, whether at maturity or earlier by reason of demand, acceleration or otherwise; provided, however, that the obligations of the Guarantor hereunder shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law, in each case after giving full effect to the liability under such guarantee set forth in this Guaranty and its related contribution rights but before taking into account any liabilities under any other guarantee by the Guarantor. The Guarantor further guarantees that all payments made by the Borrower to, or received by, the Agent for the benefit of the Guaranteed Parties on any Guarantied Obligations hereby guaranteed, will, when made or received, be final and agrees that if any such payment is recovered from, or repaid by, any Guaranteed Party in whole or in part in any bankruptcy, insolvency, or similar proceeding instituted by or against the Borrower, the Guarantor or under any other circumstance, this Guaranty shall continue to be fully applicable to such Guarantied Obligations to the same extent as though the payment so recovered or repaid had never been originally made or received on such Guarantied Obligations.

2. Scope of Guarantee. The liability of the Guarantor under this Guaranty shall be absolute, irrevocable and unconditional, irrespective of (a) any lack of validity or enforceability of any Credit Document or of the Guarantied Obligations thereunder or relating thereto, (b) any present or future Requirement of Law (whether of right or in fact) purporting to reduce, amend or otherwise affect any Credit Document or Obligations of the Borrower, the Guarantor or to vary the terms of payment, (c) any of the acts mentioned in any provisions of any Credit Document are performed or omitted, (d) whether the maturity of any of the Obligations shall be increased, modified, supplemented or amended in any respect, or any right under any Credit Document shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with, (e) any Lien or security interest granted to, or in favor of, any Guaranteed Party as security for any of the Obligations shall fail to attach or be perfected or released or replaced, and (f) any other circumstance, condition or contingency which might otherwise constitute a defense available to, or a legal or equitable discharge of, a guarantor or surety (such defenses being waived by the Guarantor with respect to the foregoing). The Guarantor hereby consents that from time to time, without notice to or consent of the Guarantor and without affecting the liability of the Guarantor hereunder, the performance or observance by the Borrower or the Guarantor of any Credit Document and any Obligations including without limitation the Guarantied Obligations may be waived or the manner, place or terms of payment may be changed, or the time of performance thereof extended by the Guaranteed Parties, and payment of any Guarantied Obligations hereby guaranteed may be accelerated or compromised, or may be extended, or any Credit Document and any Obligations including without limitation the Guarantied Obligations may be increased or renewed in whole or in part, or any provision of any Credit Document may be modified, supplemented, amended or waived, or any collateral or other guarantee may be taken therefor, and any such collateral or guarantee may be exchanged, surrendered, realized upon or otherwise dealt with as the Guaranteed Parties may determine, and any of the acts mentioned in any Credit Document or relating to any Obligations may be done, and the Guaranteed Parties may exercise or refrain from exercising any rights against the Borrower or others (including any Subsidiary of the Borrower (a “Subsidiary Guarantor”), or any other guarantors if any, together with the Guarantor, the “Guarantors”) including all rights of setoff and banker’s liens, or otherwise act or refrain from acting in any way whatsoever, and the Guaranteed Parties may settle, compromise, discharge or release any of the Obligations or Guarantied Obligations in whole or in part, any security therefor or any liability incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Borrower or any other Guarantors to any of the Guaranteed Parties or any other creditors of the Borrower or any other Guarantor. The Guarantor waives any right to require the Guaranteed Parties to (i) proceed or enforce any of their rights against the Borrower or any other Person liable on the Guarantied Obligations; (ii) proceed or enforce any of their rights against, or exhaust any, collateral or any other guarantor or surety; or (iii) pursue any other remedy in any of the Guaranteed Parties’ powers whatsoever. The Guarantor hereby waives notice of the existence, creation or incurrence of new or additional Obligations including without limitation any Guarantied Obligations of the Borrower to any of the Guaranteed Parties, notice of acceptance of this Guaranty, presentment, demand for payment, protest, notice of acceleration of or intent to accelerate the maturity of any Obligations or the Guarantied Obligations and notice of non‑payment or dishonor of any or all of the Obligations or all of the Guarantied Obligations, notice of any exchange, sale, surrender or other handling or disposition of any such collateral, notice of Default or Event of Default and any other notice except as expressly set forth herein. This is a Guaranty of payment and not of collection merely. The obligations of the Guarantor hereunder are independent of the obligations of the Borrower, and a separate action or actions may be brought and prosecuted against the Guarantor whether action is brought against the Borrower, any other Guarantor, or whether the Borrower or any other Guarantor, is joined in any such action or actions all without affecting the Guarantor’s liability hereunder or the enforcement thereof.

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3. Reinstatement.   The obligations of the Guarantor under this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Borrower or any other Guarantor in respect of the Guarantied Obligations is rescinded, disgorged or must be otherwise restored by any holder of any of the Guarantied Obligations, whether as a result of any Insolvency Proceedings or otherwise and the Guarantor agrees that it will indemnify each Guaranteed Party on demand for all reasonable costs and expenses (including, without limitation, fees and disbursements of counsel) incurred by such Guaranteed Party in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law, but excluding any such costs and expenses to the extent arising from the gross negligence or willful misconduct of such Guaranteed Party.

4. Certain Waivers.  Subject to the other provisions contained in this paragraph, the Guarantor expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which it may now or hereafter have against the Borrower, any Guarantor or any other person directly or contingently liable for the Obligations or the Guarantied Obligations, or against or with respect to the Borrower’s property, arising from the existence or performance of this Guaranty. Each of the waivers set forth in the preceding sentence shall cease to be effective only at the end of the period which begins 1 day after the date on which the Borrower has repaid in full to each of the Guaranteed Parties all of the Guarantied Obligations and ends one year later and then, only if during such period, the Borrower or any successor thereto has not become subject to any Insolvency Proceeding. If the provisions set forth in the preceding sentences of this paragraph: (a) would, in the Guaranteed Parties’ determination, adversely affect any defense available to the Guarantor or the Guaranteed Parties to any claim that any payment made by the Borrower or any other Guarantor to the Guaranteed Parties with respect to the Obligations or Guarantied Obligations may be a voidable preference or (b) shall be determined by a court of competent jurisdiction (i) to be unenforceable or (ii) to void this Guaranty in its entirety, or the provisions of the preceding sentences in this paragraph, under any fraudulent transfer or similar law, then in any such event, and with respect to clause (a) hereof only after written notice by the Agent to the Guarantor, the waivers set forth in the preceding sentences of this paragraph shall have no force and effect and the Guarantor agrees that it will not exercise any rights which it might acquire by way of subrogation or otherwise until all of the Guarantied Obligations have been paid in full. If any amount shall be paid to the Guarantor in violation of this paragraph, such amount shall be held in trust for the Guaranteed Parties’ benefit and shall forthwith be paid to the Agent for the benefit of the Guaranteed Parties to be credited and applied to the Obligations whether matured or unmatured in accordance with the Credit Documents. The Borrower and any successor thereto and any trustee in bankruptcy of the Borrower or such successor shall be a third-party beneficiary of and have the right to enforce, and have the benefit of, the waivers contained in this paragraph.

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5. Continuing Guarantee.  This Guaranty shall be a continuing Guaranty and shall be binding upon the Guarantor and its respective successors and assigns. Any co‑guarantor or surety, including any Guarantor, if any, or any other party liable upon or in respect of any Guarantied Obligations hereby guaranteed or of any other Obligations may be released, or its obligations hereunder revoked, without affecting the liability of the Guarantor. The Guarantor may not assign or delegate its obligations hereunder without the prior written consent of all the Agent and any such assignment in violation hereof shall be void. Without limiting the generality of the foregoing, this Guaranty and the obligations of the Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, set-off, defense, counterclaim, discharge or termination for any reason (other than payment in full in cash of the Guaranteed Obligations and the termination or expiration of all Letters of Credit).

6. Assignment.  The Guaranteed Parties may assign this Guaranty or any of their respective rights and powers hereunder, in accordance with the Credit Documents, and, in the event of such assignment, the assignee of such rights and powers shall have the same rights and remedies as if originally named herein in place of the Guaranteed Parties.

7. Costs and Expenses; Indemnification.  The Guarantor shall be liable to reimburse the Agent for all costs and expenses (including legal fees and disbursements) which the Agent may incur in connection with the enforcement of its rights hereunder or otherwise enforcing or preserving any rights under this Guaranty and the other Credit Documents to which the Guarantor is a party, including, without limitation, the fees and disbursements of counsel to each Guaranteed Party and of counsel to the Agent, Collateral Agent and the Sub-Collateral Agent. The Guarantor agrees to pay, and to save the Guaranteed Parties (including all Indemnified Persons pursuant to Section 11.05 of the Credit Agreement), harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Guaranty to the extent the Borrower would be required to do so pursuant to Section 11.05 of the Credit Agreement (it being understood and agreed that the indemnification obligations set forth in this Section 7 shall apply to the Guaranteed Parties to the same extent that they apply to the Indemnified Persons under the Credit Agreement).

8. GOVERNING LAW, SERVICE OF PROCESS, ETC. THIS GUARANTY AND ALL RIGHTS, OBLIGATIONS AND LIABILITIES ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) OF THE STATE OF NEW YORK; PROVIDED THAT THE SECURED PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. THE GUARANTOR BY ITS EXECUTION HEREOF SUBMITS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING BROUGHT BY THE AGENT OR ANY GUARANTEED PARTY AGAINST THE GUARANTOR BY MEANS OF REGISTERED OR CERTIFIED MAIL TO THE ADDRESS LISTED FOR THE GUARANTOR IN SECTION 17 HEREOF. NOTHING HEREIN, HOWEVER, SHALL PREVENT SERVICE OF PROCESS BY ANY OTHER MEANS RECOGNIZED AS VALID BY LAW, WITHIN, OR WITHOUT THE STATE OF NEW YORK.

9. Waiver and Amendment.  None of the terms or provisions hereof may be waived, altered, modified or amended except by a writing duly signed by authorized officers of the Agent and of the Guarantor provided that such waiver, modification or amendment is consented to by all the requisite Lenders or otherwise permitted in accordance with the terms of the Credit Agreement. If any term hereof shall be held to be invalid, illegal or unenforceable, the validity of all other terms shall in no way be affected thereby.

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10. Representations and Warranties of the Guarantor.  The Guarantor hereby represents and warrants to the Agent and the Guaranteed Parties on the Closing Date and on the date of each Credit Extension that:

(a)         Credit Agreement. That the representations and warranties set forth in Article VI of the Credit Agreement as they relate to the Guarantor or to the Credit Documents to which the Guarantor is a party, each of which is incorporated herein by reference, are true and correct in all material respects, except for representations and warranties that are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case such representations and warranties shall be true and correct (after giving effect to any such qualification therein) in all respects as of such date, in each case unless expressly 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, and the Guaranteed Parties shall be entitled to rely on each of such representations and warranties as if they were fully set forth herein.

(b)         Existence. The Guarantor: (a) is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Delaware; (b) has all requisite power, and has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted; (c) is duly qualified as a foreign entity and is qualified 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; and (d) (i) is adequately capitalized to conduct its business and affairs as a going concern, considering the size, nature of its business and intended purposes; (ii) is solvent, including, without limitation, that it has not been rendered insolvent by the transactions described herein; and (iii) intends to and believes that it will be able to pay its debts as they come due.

(c)         No Breach. The execution and delivery of this Guaranty, the consummation of the transactions contemplated hereby or compliance with the terms and provisions hereof will not conflict with or result in a breach of, or require any consent under, the certificate of formation, limited liability company agreement or any other organizational document of the Guarantor, as the case may be, or any applicable Requirement of Law, or except as has been obtained by the Guarantor, any material agreement or instrument to which the Guarantor is a party or by which the Guarantor or any of its property is bound or to which the Guarantor is subject, or constitute a default under any such material agreement or instrument, or result in the creation or imposition of any Lien upon any property of the Guarantor pursuant to the terms of any such agreement or instrument.

(d)         Action. The Guarantor has all necessary power, authority and legal right to execute, deliver and perform its obligations under this Guaranty; and the execution, delivery and performance by the Guarantor of this Guaranty have been duly authorized by all necessary action on its part and this Guaranty has been duly and validly executed and delivered by the Guarantor and constitutes its legal, valid and binding obligation, enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e)         Approvals. No authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority, or any securities exchange, are necessary for the execution, delivery or performance by the Guarantor of this Guaranty or for the legality, validity or enforceability thereof.

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(f)         Litigation. Except as set forth on Schedule 6.05 to the Credit Agreement, there are no actions, suits, proceedings, claims or disputes pending, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, against the Guarantor, the Borrower, any of their respective Subsidiaries, or any of their respective properties which purport to affect or pertain to this Guaranty or any other Credit Document, or any of the transactions contemplated hereby or thereby; and no injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Guaranty or any other Credit Document, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided.

11. Payments.  The obligations of the Guarantor under this Guaranty shall not be subject to any set‑off, counterclaim, deduction or defense (other than payment or performance) based upon any claim the Guarantor may have against any of the Guaranteed Parties, the Borrower or any other person. Each Guarantor agrees that the provisions of Section 4.01 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis, and each Guaranteed Party shall be entitled to rely on them as if they were fully set forth herein. All payments shall be made in Dollars and in immediately available funds at the Administrative Agent’s Payment Office specified in the Credit Agreement.

12. Admissibility of Records.  The Agent’s books and records showing the accounts as between the any Guaranteed Party and the Borrower shall be admissible in any action or proceeding hereunder and shall constitute prima facie proof, subject to rebuttal, of the truth and accuracy thereof as against the Guarantor.

13. Set-Off.  Without any notice to the Guarantor (which notice is hereby expressly waived by the Guarantor), but subject to the provisions of Section 11.09 of the Credit Agreement, which shall be fully applicable as between the Guaranteed Parties with respect to any amounts recovered hereunder, the Guaranteed Parties may set‑off or apply any and all deposits (general or special, time or demand, provisional or final) and any other property at any time held by, or any and all indebtedness or other obligations at any time, owing by, the Guaranteed Parties to the Guarantor against any obligation of the Guarantor hereunder irrespective of whether any demand has been made hereunder or whether any of such indebtedness or obligations are due.

14. No Waiver. Any Guaranteed Party’s failure or delay in exercising any right, remedy or power hereunder shall not operate as a waiver thereof, nor shall any single or partial exercise by any Guaranteed Party of any right, remedy or power hereunder preclude any Guaranteed Party from any other or future exercise of any right, remedy or power. Each and every right, remedy and power granted to any of the Guaranteed Parties hereunder or allowed to any of them by law or other agreement shall be cumulative with and not exclusive of any other.

15. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY INDEBTEDNESS OR THIS GUARANTY AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE GUARANTOR FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR THE OTHER CREDIT DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AND THE OTHER CREDIT DOCUMENTS.

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16. Initially Capitalized Terms.  Initially capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement.

17. Notices.  All notices, requests and demands to or upon the respective parties hereto to be effective shall be effected in the manner provided for in Section 11.02 of the Credit Agreement; provided that that any such notice, request or demand to or upon the Guarantor shall be addressed to the Guarantor at its notice address as set forth below, or at such other address as may be designated by such party in a written notice to all other parties :

Guarantor:	Par Petroleum, LLC
	825 Town & Country Lane
	Suite 1500
	Houston, TX 77024
	Attention: Jeff Hollis
	Telephone: (832) 916-3392
	Email: jhollis@parpacific.com

18. Section Headings. Section headings provided herein are for informational and identification purposes only and should not be deemed to otherwise amend, modify or limit the express provisions set forth in the related sections.

19. Waiver of Certain Damages.  Notwithstanding any other provision of this Guaranty, no Guaranteed Party shall be responsible or liable to the Guarantor or any other person for any special, punitive, indirect or consequential damages which may be alleged as a result from this Guaranty and the transactions contemplated hereby.

20. Agreement to be Bound.  Without limiting the generality of the foregoing, by its execution and delivery of this Guaranty, the Guarantor hereby agrees and covenants to comply with the compliance guidelines set forth in the Credit Agreement to which the Borrower has agreed with respect to the Guarantor, in each case, fully as though the Guarantor were a party thereto, and such agreements and compliance guidelines are incorporated herein by this reference, mutatis mutandis.

21. Joint and Several Obligations.  The obligations of the Guarantor hereunder shall be joint and several with any Guaranty Obligation made by any other Guarantor or surety of the Guarantied Obligations.

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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed as of the date first above written.

PAR PETROLEUM, LLC
By:	/s/ Shawn Flores
Name:	Shawn Flores
Title:	Chief Financial Officer

[Signature Page to Parent Guaranty]

EX-10.3

Exhibit 10.3

Execution Version

AMENDMENT TO SECOND AMENDED AND RESTATED

SUPPLY AND OFFTAKE AGREEMENT

This AMENDMENT TO SECOND AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT (this “Amendment”), dated as of July 26, 2023, is made by and among Par Hawaii Refining, LLC, a Hawaii limited liability company (the “Company”), Par Petroleum, LLC, a Delaware limited liability company (the “Guarantor”), and J. Aron & Company LLC, a New York limited liability company (“Aron”) (each referred to individually as a “Party” and collectively, the “Parties”).

RECITALS

A.         The Company owns and operates the Refinery for the processing and refining of crude oil and other feedstocks and the recovery therefrom of refined products.

B.         The Parties have entered into that certain Second Amended and Restated Supply and Offtake Agreement, dated as of June 1, 2021 (as from time to time amended, modified, supplemented, extended, renewed and/or restated, the “S&O Agreement”), pursuant and subject to which Aron has agreed to supply crude oil to the Company to be processed at the Refinery and purchase refined products from the Company produced at the Refinery.

C.         The Parties have agreed to amend the S&O Agreement pursuant to the terms set forth herein.

AGREEMENTS

NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, subject to the terms and conditions hereinafter set forth, agree as follows:

SECTION 1  Definitions; Interpretation

Section 1.1    Defined Terms. All capitalized terms used in this Amendment (including in the Recitals hereto) and not otherwise defined herein shall have the meanings assigned to them in the S&O Agreement, as amended hereby.

Section 1.2    Interpretation. The rules of construction set forth in Section 1.2 of the S&O Agreement shall be applicable to this Amendment and are incorporated herein by this reference.

SECTION 2  Amendments to S&O Agreement.

Section 2.1    Effective as of the Amendment Effective Date (as defined below), (i) the S&O Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as reflected in the modifications identified in the document annexed hereto as Annex A and (ii) Schedule JJ set forth on Annex B hereto is hereby added to the Schedules to the S&O Agreement.

Section 2.2    References Within S&O Agreement. Each reference in the S&O Agreement to “this Agreement” and the words “hereof,” “hereto,” “herein,” “hereunder,” or words of like import, and each reference in any other Transaction Document to “the S&O Agreement” and the words “thereof,” “thereto,” “therein,” “thereunder” or words of like import, in each case, shall mean and be a reference to the S&O Agreement as amended hereby.

SECTION 3  Representations and Warranties

To induce the other Party to enter into this Amendment, each Party hereby represents and warrants that (i) it has the limited liability company, governmental or other legal capacity, authority and power to execute this Amendment, to deliver this Amendment and to perform its obligations under the S&O Agreement, as amended hereby, and has taken all necessary action to authorize the foregoing; (ii) the execution, delivery and performance of this Amendment does not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any of its assets or subject; (iii) all governmental and other consents required to have been obtained by it with respect to this Amendment have been obtained and are in full force and effect; (iv) its obligations under the S&O Agreement, as amended hereby, constitute its legal, valid and binding obligations, enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law); and (v) no Event of Default with respect to it has occurred and is continuing.

SECTION 4  Reaffirmation

All of the terms and provisions of the S&O Agreement shall, as amended and modified hereby, remain in full force and effect. Each of the Company and the Guarantor hereby agrees that the amendments and modifications herein contained shall in no manner affect (other than expressly provided herein) or impair its obligations under the S&O Agreement and the other Transaction Documents or the Liens securing the payment and performance thereof. Each of the Company and the Guarantor hereby ratifies and confirms all of its respective obligations and liabilities under the Transaction Documents to which it is a party, as expressly modified herein, and the Guarantor ratifies and confirms that such obligations and liabilities extend to and continue in effect with respect to, and continue to guarantee the obligations of the Company under the Transaction Documents, as expressly modified herein.

SECTION 5  Miscellaneous

Section 5.1    S&O Agreement Otherwise Not Affected. Except for the amendments pursuant hereto, the S&O Agreement remains unchanged. Other than as amended hereby, the S&O Agreement remains in full force and effect and is hereby ratified and confirmed in all respects. The execution and delivery of, or acceptance of, this Amendment and any other documents and instruments in connection herewith by either Party shall not be deemed to create a course of dealing or otherwise create any express or implied duty by it to provide any other or further amendments, consents or waivers in the future. For all purposes of the S&O Agreement and the other Transaction Documents, this Amendment shall constitute a “Transaction Document.”

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Section 5.2    No Reliance. Each Party hereby acknowledges and confirms that it is executing this Amendment on the basis of its own investigation and for its own reasons without reliance upon any agreement, representation, understanding or communication by or on behalf of any other Person.

Section 5.3    Costs and Expenses. The Company acknowledges and confirms that, pursuant to Section 21.5 of the S&O Agreement, it is responsible for the payment of all reasonable out-of-pocket expenses incurred by Aron and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Aron) in connection with the preparation, negotiation, execution, delivery and administration of this Amendment, the other agreements amended in connection herewith, and the transactions contemplated hereby or thereby.

Section 5.4    Binding Effect. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the Company, the Guarantor, Aron and their respective successors and assigns. This Amendment shall become effective upon receipt by Aron of fully executed counterparts of this Amendment by the Company and the Guarantor.

Section 5.5    Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER STATE.

Section 5.6    Amendments. This Amendment may not be modified, amended or otherwise altered except by written instrument executed by the Parties’ duly authorized representatives.

Section 5.7    Effectiveness. This Amendment shall become effective upon the prior or simultaneous satisfaction of each of the following conditions in a manner reasonably satisfactory to Aron (such date of effectiveness, the “Amendment Effective Date”):

(a)    the Company shall have delivered to Aron:

(i) the Collateral Agency Agreement (as defined in the S&O Agreement as amended hereby) in form and substance satisfactory to Aron, executed by all parties thereto;

(ii) the Security Agreement (as defined in the S&O Agreement as amended hereby) in form and substance satisfactory to Aron, executed by all parties thereto;

(iii) the Acknowledgment Agreement (as defined in the S&O Agreement as amended hereby) in form and substance satisfactory to Aron, executed by all parties thereto;

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(iv) a certificate, in form and substance reasonably satisfactory to Aron, signed by an appropriate officer of each of the Company and the Guarantor certifying as to its organizational documents, incumbency, due authorization and/or board or other limited liability company approvals and resolutions authorizing and approving the amendments contemplated hereby;

(v) a certificate, in form and substance reasonably satisfactory to Aron, signed by an Authorized Officer of each of the Company and the Guarantor certifying that, as of the date hereof, (A) no Event of Default or Default with respect to the Company and the Guarantor has occurred and is continuing and (B) the representations and warranties of the Company and the Guarantor set forth in this Amendment and each other Transaction Document are true and correct in all material respects as of the date of this Amendment as if made as of the date of this Amendment (except for any representation and warranty that is qualified by materiality which such representation and warranty shall be true and correct in all respects on and as of the date of this Amendment), except for those representations or warranties that speak as of an earlier date, which were true and correct as of such date; and

(vi) opinions of counsel, in form and substance satisfactory to Aron, covering such matters with respect to the Company and the Guarantor as Aron shall reasonably request in connection with the amendments contemplated hereby;

(b)    the “Closing Date” under and as defined in the LC Facility Agreement shall have occurred; the LC Facility Agreement and the other LC Credit Documents required by the terms of the LC Facility Agreement to be executed and delivered on the Closing Date shall be in full force and effect; and the Company shall have delivered to Aron copies of all such agreements;

(c)    a UCC-3 financing statement amendment shall have been filed with the Hawaii Bureau of Conveyances (the “HBC”) assigning the UCC-1 financing statement #A-56320593, filed with the HBC on June 3, 2015, as amended, naming the Company, as debtor, and Aron, as secured party, to the Collateral Agent (as defined in the S&O Agreement as amended hereby) and a UCC-1 financing statement shall have been filed with the HBC naming the Company, as debtor, and the Collateral Agent, as secured party; and

(d)    Aron shall have received from the Company payment of or reimbursement for all fees, costs, and expenses (including all reasonable attorneys’ fees and expenses) incurred by Aron in connection with the negotiation, preparation and execution of this Amendment and any other Transaction Documents (or any amendments of any Transaction Documents) in anticipation of or connection with the amendments contemplated hereby and all other documents and transactions being executed in connection herewith.

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Section 5.8    Counterparts. This Amendment may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.

Section 5.9    Interpretation. This Amendment is the result of negotiations between the Parties and has been reviewed by counsel to each of the Parties, and is the product of all Parties hereto. Accordingly, this Amendment shall not be construed against either Party merely because of such Party’s involvement in the preparation hereof.

[Remainder of this page intentionally left blank]

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IN WITNESS WHEREOF, each Party hereto has caused this Amendment to be executed by its duly authorized representative as of the date first above written.

J. ARON & COMPANY LLC

By: /s/ Simone Collier

Name: Simon Collier

Title:   Authorized Signatory

PAR HAWAII REFINING, LLC

By: /s/ Shawn Flores

Name: Shawn Flores

Title:   Chief Financial Officer

PAR PETROLEUM, LLC

By: /s/ Shawn Flores

Name: Shawn Flores

Title:   Chief Financial Officer

SIGNATURE PAGE TO AMENDMENT TO AMENDED AND

RESTATED SUPPLY AND OFFTAKE AGREEMENT

Annex A

Conformed S&O Agreement

(See attached).

Execution VersionCONFORMED COPY THROUGH AMENDMENT, DATED AS OF JULY 26, 2023

SECOND AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT

dated as of June 1, 2021

between

J. ARON & COMPANY LLC

and

PAR HAWAII REFINING, LLC

[Conformed to include the amendments dated 3/24/22, 4/25/22, 5/17/22, 9/13/22, and 6/21/23]

TABLE OF CONTENTS

Page

ARTICLE 1 DEFINITIONS AND CONSTRUCTION	2
ARTICLE 2 CONDITIONS PRECEDENT	55
ARTICLE 3 TERM OF AGREEMENT	59
ARTICLE 4 COMMENCEMENT DATE TRANSFER	61
ARTICLE 5 PURCHASE AND SALE OF CRUDE OIL	62
ARTICLE 6 PURCHASE VALUE FOR CRUDE OIL	77
ARTICLE 7 TARGET INVENTORY LEVELS AND PRICE ADJUSTMENT	78
ARTICLE 8 PURCHASE AND DELIVERY OF PRODUCTS	84
ARTICLE 9 ANCILLARY COSTS; MONTH END INVENTORY; CERTAIN DISPOSITIONS; TANK MAINTENANCE	90
ARTICLE 10 PAYMENT PROVISIONS	95
ARTICLE 11 DISCRETIONARY DRAW FACILITY	100
ARTICLE 12 INDEPENDENT INSPECTORS; STANDARDS OF MEASUREMENT	111
ARTICLE 13 FINANCIAL INFORMATION; CREDIT SUPPORT	112
ARTICLE 14 REFINERY TURNAROUND, MAINTENANCE AND CLOSURE; TERMINAL CONVERSION	117
ARTICLE 15 TAXES	120
ARTICLE 16 INSURANCE	121
ARTICLE 17 FORCE MAJEURE	124
ARTICLE 18 REPRESENTATIONS, WARRANTIES AND COVENANTS	125
ARTICLE 19 DEFAULT AND TERMINATION	145
ARTICLE 20 SETTLEMENT AT TERMINATION	155
ARTICLE 21 INDEMNIFICATION; EXPENSES	159
ARTICLE 22 LIMITATION ON DAMAGES	160
ARTICLE 23 AUDIT AND INSPECTION	161
ARTICLE 24 CONFIDENTIALITY	161
ARTICLE 25 GOVERNING LAW	162
ARTICLE 26 ASSIGNMENT	162
ARTICLE 27 NOTICES	164
ARTICLE 28 NO WAIVER, CUMULATIVE REMEDIES	164
ARTICLE 29 NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES	164

-i-

TABLE OF CONTENTS

(continued)

Page

ARTICLE 30 MISCELLANEOUS	165
ARTICLE 31 FORWARD JET FUEL TRANSACTION WITH PROVISIONAL PAYMENT	167

-ii-

Schedules

Schedule	Description
Schedule A	Products and Product Specifications
Schedule B	Product Values
Schedule C	Monthly True-Up Amounts; Daily and Monthly Settlement Amounts
Schedule D	Operational Volume Range
Schedule E	Included Tanks
Schedule F	Determination and Application of Net Deferred Amount
Schedule G	Daily Settlement Schedule
Schedule H	Form of Inventory Reports
Schedule I	Initial Inventory Targets
Schedule J	Scheduling and Communications Protocol
Schedule K	Price Adjustment Determination Procedures
Schedule L	Reserved
Schedule M	Notices
Schedule N	FIFO Balance Final Settlements
Schedule O	Form of Run-out Report
Schedule P	Pricing Group
Schedule Q	Form of Trade Sheet
Schedule R	Form of Step-Out Inventory Sales Agreement
Schedule S	Form of Refinery Production Volume Report
Schedule T	Initial Acceptable Account Debtors
Schedule U	Included Locations
Schedule V	Eligible Hydrocarbon Inventory Locations and Tanks

-iii-

Schedule W	SPM Master Buy/Sell Confirmations
Schedule X	Included Materials
Schedule Y	Roll Procedures
Schedule Z	Transition Adjustment Amount
Schedule AA	Annex
Schedule BB	Monthly Jet Fuel Volumes
Schedule CC	Authorized Company Representatives
Schedule DD	Authorized Third Party Payees
Schedule EE	Indebtedness
Schedule FF	Form of Daily Discretionary Draw Election Report
Schedule GG	Form of Promissory Note
Schedule HH	Form of Compliance Certificate
Schedule II	Form of Liquidity Report
Schedule JJ	Form of LC Related Confirmation

-iv-

SECOND AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT

This Second Amended and Restated Supply and Offtake Agreement (this “Agreement”) is made as of June 1, 2021 (the “Second Restatement Effective Date”), between J. Aron & Company LLC f/k/a J. Aron & Company (“Aron”), a New York limited liability company, located at 200 West Street, New York, New York 10282-2198, and Par Hawaii Refining, LLC (the “Company”), a Hawaii limited liability company, located at 825 Town & Country Lane, Suite 1500, Houston, Texas 77024 (each referred to individually as a “Party” or collectively as the “Parties”).

WHEREAS, the Company owns and operates a crude oil refinery and related assets located in Kapolei, Hawaii (the “Refinery”) for the processing and refining of Crude Oil (as defined below) and other feedstocks and the recovery therefrom of refined products;

WHEREAS, the Company and Aron entered into a Supply and Offtake Agreement, dated as of June 1, 2015, providing for a supply and offtake transaction under which Aron agreed to supply Crude Oil to the Company to be processed at the Refinery and purchase all Products (as defined below) from the Company produced at the Refinery (such agreement, as from time to time amended, the “Original Agreement”);

WHEREAS, as contemplated, on the Commencement Date (as defined below), Aron purchased from the Company or Existing Supplier/Offtaker (as defined below) all Crude Oil and Products then being held by either entity at the Included Locations (as defined below);

WHEREAS, the Parties have agreed that, for the Term of this Agreement, the Company will provide professional consulting, liaison, and other related services to assist Aron in the marketing and sale of the refined products acquired by Aron hereunder in accordance with the terms and conditions of the Marketing and Sales Agreement (as defined below);

WHEREAS, the Company and Aron amended and restated in its entirety the Original Agreement on December 21, 2017 (such agreement, as from time to time amended prior to the date hereof, the “First Amended and Restated S&O Agreement”);

WHEREAS, the Company and Aron desire to amend and restate in its entirety the First Amended and Restated S&O Agreement as hereinafter provided; and

WHEREAS, it is contemplated that upon the termination of this Agreement, Aron will sell and the Company will purchase all of Aron’s Crude Oil and Products inventory held at the Included Locations in accordance with the term and conditions of the Step-Out Inventory Sales Agreement (as defined below) and Aron will transfer to the Company, through novations or reassignments, various contractual rights pursuant to the termination provisions provided herein;

NOW, THEREFORE, in consideration of the premises and respective promises, conditions, terms and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do agree as follows:

ARTICLE 1

DEFINITIONS AND CONSTRUCTION

1.1    Definitions.

For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:

“2017 Indenture” means the Indenture, dated as of December 21, 2017, among the Notes Issuers, Wilmington Trust, National Association as trustee, and the Notes Collateral Trustee.

“2017 Notes” means the 7.75% Senior Secured Notes due 2025 issued under the 2017 Indenture.

“2020 Indenture” means the Indenture, dated as of June 5, 2020, among the Notes Issuers, Wilmington Trust, National Association as trustee, and the Notes Collateral Trustee.

“2020 Notes” means the 12.875% Senior Secured Notes due 2026 issued under the 2020 Indenture.

“ABL Agent” means Wells Fargo Bank of America, N.A. in its capacity, National Association as administrative agent and collateral agent for the lenders under the ABL Facility, and any successors and assigns or replacements in such capacity.

“ABL Facility” means the Loan and SecurityAsset-Based Revolving Credit Agreement, dated as of the First Restatement Effective DateApril 26, 2023, among Par LLC and certain of its subsidiaries, as co-borrowers, and certain subsidiaries of Par LLC as guarantors, the ABL Agent, and the banks and other financial institutions party thereto, each as amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Acceptable Account Debtors” means such account debtors as Aron, in its reasonable judgment, from time to time determines are acceptable as account debtors for purposes of determining whether an Account will qualify as an Eligible Receivable for purposes hereof; provided that:

(a)         each of the Initial Acceptable Account Debtors shall constitute an Acceptable Account Debtor for purposes hereof, subject to clause (c) below;

(b)         from time to time the Company may propose to Aron that a new entity constitute an Acceptable Account Debtor for purposes hereof, in which case Aron shall make an examination and evaluation of such entity and determine whether to accept such entity as Acceptable Account Debtor; provided further that (i) in connection with such proposal, the Company shall obtain and provide to Aron such information as Aron shall reasonably request in connection with its determination as to whether such entity shall be accepted as an Acceptable Account Debtor; (ii) based on such information and such factors and considerations as Aron deems relevant, but in any event consistent with the standards and practices that Aron and its Affiliates generally and consistently apply in evaluating the eligibility of receivables in the context of secured financing transactions, which may include (without limitation) the proposed commercial terms, credit considerations (including credit quality and credit limits) and reputational considerations relating to such entity, Aron will promptly endeavor to make such determination and apprise the Company thereof, (iii) such entity shall only be accepted as and constitute an Acceptable Account Debtors if Aron, in its reasonable judgment makes an affirmative decision that such entity be so accepted, and (iv) once added to the list of Acceptable Account Debtors, such entity shall be subject to clause (c) below;

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(c)         An entity that at any time constitutes an Acceptable Account Debtor may, upon ten (10) Business Days’ prior written notice by Aron to the Company, be removed from such status and cease to be an Acceptable Account Debtor for purposes hereof; provided that Aron bases such determination on such information and such factors and considerations as Aron deems relevant in its commercially reasonable judgment, but in any event consistent with the standards and practices that Aron and its Affiliates generally and consistently apply in evaluating the eligibility of receivables in the context of secured financing transactions, which may include (without limitation) the proposed commercial terms, credit considerations (including credit quality and credit limits) and reputational considerations relating to such entity; and provided further that if the Company objects to such change in status and so notifies Aron in writing of its objection prior to the expiration of such ten (10) Business Day period, then such change in status shall not take effect until three (3) Business Days after the end of such ten (10) Business Day period, during which the Parties shall confer and the Company may provide any additional information to Aron and Aron may utilize such information to make a redetermination of such entity’s status as an Acceptable Account Debtor. If, at the end of such three (3) Business Day period Aron does not inform the Company in writing (including via email) that Aron is dissatisfied with such entity’s status as an Acceptable Account Debtor, then such entity shall constitute an Acceptable Account Debtor.

Notwithstanding the foregoing paragraphs (b) and (c), for any account debtor that posts (i) a customary trade letter of credit from a US bank, the US branch of a foreign branch or an Acceptable Foreign Bank that has an Investment Grade Rating, or (ii) cash collateral, to support its payment obligations with respect to any account, any credit-based considerations (but excluding other considerations which are not credit-based) made by Aron in making its determination as to whether such account debtor shall be accepted as or remain as an Acceptable Account Debtor shall be deemed to have been satisfied.

“Acceptable Foreign Bank” means any foreign bank or non-US branch of a foreign bank that is acceptable to Aron in accordance with its internal policies and procedures in effect from time to time, consistently applied.

“Accounts” means all present and future accounts, as defined in the UCC, of the Company.

3

“Acknowledgment Agreements” means, collectively (i) the Third Amended and Restated Acknowledgment Agreement dated as of the January 11, 2019July 26, 2023 among Aron, the LC Facility Agent, the Collateral Agent, Merrill Lynch Commodities, Inc., the Company, U.S. Oil & Refining Co., McChord Pipeline Co., USOT WA, LLC, the Notes Collateral TrusteeTerm Loan Agent, and the ABL Agent, and (ii) the Amended and Restated Acknowledgment Agreement dated as of December 19, 2018 among Aron, the Company, Midcap Financial Trust, Merrill Lynch Commodities, Inc., IES Downstream and the other IES Entities party thereto, in each case, as amended, restated, supplemented or otherwise modified from time to time.

“Actual Forward Delivered Volumes” has the meaning specified in Section 31.4(a).

“Additional Product Transaction” has the meaning specified in the Marketing and Sales Agreement.

“Adjustment Date” means July 1, 2021.

“Affected Lender” has the meaning specified in Section 11.14(b).

“Affected Obligations” has the meaning specified in Section 17.3.

“Affected Party” has the meaning specified in Section 17.1.

“Affiliate” means, in relation to any Person, any entity controlled, directly or indirectly, by such Person, any entity that controls, directly or indirectly, such Person, or any entity directly or indirectly under common control with such Person. For this purpose, “control” of any entity or Person means ownership of a majority of the issued shares or voting power or control in fact of the entity or Person; provided, however, a Permitted Holder shall not be deemed to be an Affiliate of the Company.

“Agency Agreement” means that certain Agency Agreement by and between the Company and Aron, dated as of June 1, 2015.

“Aggregate Monthly Product Sales Fee” has the meaning specified in Section 7.6.

“Aggregate Monthly Purchased Products Fee” has the meaning specified in Section 8.8.

“Aggregate Purchase Proceeds” has the meaning specified in Schedule C.

“Aggregate Sale Receipts” has the meaning specified in Schedule C.

“Agreement” has the meaning specified in the preamble to this Agreement.

“Ancillary Contract” has the meaning specified in Section 20.1(c).

4

“Ancillary Costs” means, to the extent reasonably demonstrated by Aron by trade ticket, invoice or other supporting documentation, all freight, pipeline, transportation, storage, tariffs and other costs and expenses incurred as a result of the purchase, movement and storage of Crude Oil or Products undertaken in connection with or required for purposes of this Agreement (whether or not arising under Aron Procurement Contracts and regardless of the point at which or terms upon which delivery is made under any such Aron Procurement Contract), including, ocean-going freight and other costs associated with waterborne movements, inspection costs and fees, wharfage, port and dock fees, vessel demurrage, lightering costs, ship’s agent fees, import charges, waterborne insurance premiums, fees and expenses, broker’s and agent’s fees, load or discharge port charges and fees, pipeline transportation costs, pipeline transfer and pumpover fees, pipeline throughput and scheduling charges (including any fees and charges resulting from changes in nominations undertaken to satisfy delivery requirements under this Agreement), pipeline and other common carrier tariffs, blending, tankage, linefill and throughput charges, pipeline demurrage, superfund and other comparable fees, processing fees (including fees for water or sediment removal or feedstock decontamination), merchandise processing costs and fees, any charges imposed by any Governmental Authority (including transfer taxes (but not taxes on the net income of Aron) and customs and other duties), user fees, fees and costs for any credit support provided to any third party with respect to any transactions contemplated by this Agreement and any pipeline compensation or reimbursement payments that are not timely paid by the pipeline to Aron. Notwithstanding the foregoing, the following shall not be considered Ancillary Costs: (i) Aron’s hedging costs in connection with this Agreement or the transactions contemplated hereby (but such exclusion shall not change or be deemed to change the manner in which Related Hedges are addressed under Articles 19 and 20 below), (ii) any costs for which Aron has otherwise been compensated under this Agreement and the Transaction Documents by the inclusion of the full amount thereof in any other payment made hereunder, including pursuant to any true-up, adjustment, or netting mechanism provided for thereunder, or (iii) any costs which Aron has agreed, in accordance with the express terms hereof, shall be solely for Aron’s own account.

“Applicable Law” means collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case as may apply to the applicable Party or the subject matter of this Agreement.

“Applicable Spread” has the meaning assigned to such term in the Fee Letter.

“Aron Crude Purchases” means, for any month, any volumes delivered under Aron Procurement Contracts during such month.

“Aron Procurement Contract” means a procurement contract entered into by Aron for the purchase or sale of Crude Oil to be processed or sold at the Refinery, which may be (i) a contract with any Third Party Supplier or third party purchaser of Crude Oil (other than the Company or an Affiliate of the Company) or a contract with the Company (or an Affiliate of the Company) or such other contract to the extent the Parties deem such contract to be an Aron Procurement Contract for purposes hereof or (ii) a contract with the Company entered into pursuant to Section 5.3(g)(i) which shall provide for the purchase by Aron from the Company of Crude Oil delivered to Aron at the Crude Intake Point; provided that any transaction entered into under the Master Agreement shall not constitute an Aron Procurement Contract or otherwise result in a transaction subject to this Agreement. The term “Aron Procurement Contract” includes any LC Related Aron Procurement Contract.

5

“Aron’s Policies and Procedures” shall have the meaning specified in Section 14.4(a).

“Aron’s Property” shall have the meaning specified in Section 18.2(l).

“Arrangement Fee” has the meaning assigned to such term in the Fee Letter.

“Assignment of Claims Act” means the Assignment of Claims Act of 1940, as it may be amended from time to time, together with all regulations promulgated from time to time in respect thereof.

“Associated Person” has the meaning assigned to such term in Section 18.4(b).

“Attributable Indebtedness” means, on any date, (i) in respect of any capital 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, and (ii) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

“Bank Holiday” means any day (other than a Saturday or Sunday) on which banks are authorized or required to close in the State of New York.

“Bankrupt” means a Person that (i) is dissolved, other than pursuant to a consolidation, amalgamation or merger, (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due, (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iv) institutes a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, (v) has a resolution passed for its winding-up, official management or liquidation, other than pursuant to a consolidation, amalgamation or merger, (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for all or substantially all of its assets, (vii) has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets, (viii) files an answer or other pleading admitting or failing to contest the allegations of a petition filed against it in any proceeding of the foregoing nature, (ix) causes or is subject to any event with respect to which, under Applicable Law, has an analogous effect to any of the foregoing events, (x) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy under any bankruptcy or insolvency law or other similar law affecting creditors’ rights and such proceeding is not dismissed within fifteen (15) days or (xi) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing events.

“Bankruptcy Code” means chapter 11 of Title 11, U.S. Code.

6

“Barrel” means forty-two (42) net U.S. gallons, measured at 60° F.

“Base Agreements” means any agreements from time to time entered into between the Company and a third party pursuant to which the Company acquires any rights to use Included Pipelines or the Included Tanks, including, without limitation, the Transition Terminalling Agreement, Long-Term Terminalling Agreement, the Refinery Access Agreement, the Services Agreement and the Refinery Property Lease; provided that the Refinery Property Lease shall cease to be a Base Agreement upon fee transfer to the Company of the Main Premises (as defined in the Topping Unit Purchase Agreement).

“Best Available Inventory Data” means daily inventory reports produced by the Company or third parties in respect of the Included Crude Tanks, Included Product Tanks and Included Product Pipelines, in the form specified in Schedule H.

“Benchmark” means the SOFR Rate, provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, then, pursuant to terms and according to Section 11.14(a) of the S&O Agreement, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder in respect of such determination on such date and all determinations on all subsequent dates; provided further that if Compounded SOFR as determined would be less than the Floor for any calculation period under the Agreement, Compounded SOFR will be the Floor for such period.

“Benchmark Replacement” means, for any relevant period applicable thereto, the sum of: (a) the alternate benchmark rate that has been selected by Aron 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 U.S. dollar denominated syndicated or bilateral credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as determined 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 Transaction Documents.

“Benchmark Replacement Adjustment” means, for any relevant period applicable thereto, 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 Aron for the applicable Corresponding Tenor in its sole and absolute discretion, giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment 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 U.S. Dollar denominated syndicated credit facilities at such time.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the timing and frequency of determining rates and making payments of interest and other administrative matters) that Aron decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Aron in a manner substantially consistent with market practice (or, if Aron decides that adoption of any portion of such market practice is not administratively feasible or if Aron determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as Aron decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).

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“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark: 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 the Benchmark permanently or indefinitely ceases to provide the Benchmark; or in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

For the avoidance of doubt, 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.

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

a) (a) a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;

b) (b) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or

c) (c) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.

“Best Available Inventory Data” means daily inventory reports produced by the Company or third parties in respect of the Included Crude Tanks, Included Product Tanks and Included Product Pipelines, in the form specified in Schedule H.

8

“Billing Due Report” has the meaning as specified in Section 11.4(a).

“Borrowing Base” means, as of any date of determination, the sum of:

(a)         in the case of Eligible Receivables, the product of (i) 85% multiplied by (ii) the amount of all Eligible Receivables of the Company as of such date, plus

(b)         in the case of Eligible Hydrocarbon Inventory, the lesser of (i) $107,500,000.00 and (ii) the product of (A) 85% multiplied by (B) the value of Eligible Hydrocarbon Inventory of the Company as of such date, determined using the then current Daily Values; minus

(c)         any Reserves that Aron may establish in respect of Eligible Receivables and Eligible Hydrocarbon Inventory from time to time.

“BPH Pipelines” has the meaning specified on Schedule U.

“BS&W” means basic sediment and water.

“Business Day” means any day that is not a Saturday, Sunday, or Bank Holiday.

“Change in Law” means the occurrence, after the Second Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any rule, regulation, treaty or other law, (b) any change in any rule, regulation, treaty or other law or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines or directives thereunder or issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) 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”, to the extent enacted, adopted, promulgated or issued.

“Change of Control” means an event or series of events by which:

(a)         Par LLC at any time ceases to own 100% of the Equity Interests of the Company;

(b)         Par Pacific Holdings, Inc. (“Par Pacific”) at any time ceases to own 100% of the Equity Interests of Par LLC;

(c)         any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding the Permitted Holders or 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) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, 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, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 30% or more of the Equity Interests of Par Pacific entitled to vote for members of the board of directors or equivalent governing body of Par Pacific 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);

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(d)         Par Pacific consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into Par Pacific, in any such event pursuant to a transaction in which any of the outstanding voting stock of Par Pacific or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the voting stock of Par Pacific outstanding immediately prior to such transaction is converted into or exchanged for voting stock of the surviving or transferee Person constituting a majority of the outstanding shares of such voting stock of such surviving or transferee Person (immediately after giving effect to such issuance) or (B) immediately after such transaction, no “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) (other than a holding company created to hold Par Pacific or any other direct or indirect parent of the Company; provided that holders of the voting stock of Par Pacific prior to such creation continue to hold at least a majority of the voting stock of such holding company), becomes, directly or indirectly, the beneficial owner of more than 50% of the voting power of the voting stock of the surviving or transferee Person;

(e)         the adoption of a plan relating to the liquidation or dissolution of Par Pacific, Par LLC, or the Company; or

(f)         any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of, the power to exercise, directly or indirectly, a controlling influence over the management or policies of Par Pacific, or control over the equity securities of Par Pacific entitled to vote for members of the board of directors or equivalent governing body of Par Pacific 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) representing 30% or more of the combined voting power of such securities and such contract or arrangement shall have continued in effect for 30 consecutive days.

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

“Collateral Reports” means, collectively, the Inventory Reports and the Receivables Reports.

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“Collateral Trust and IntercreditorAgency Agreement” means the Collateral Trust and IntercreditorAgency and Intermediation Rights Agreement, dated as of the First Restatement Effective Date among the Notes Issuers, the Notes Collateral Trustee, and certain other secured partiesJuly 26, 2023 among the Collateral Agent, the LC Facility Agent, Aron and the Company, as amended, restated, supplemented or otherwise modified from time to time.

“Collateral Agent” means U.S. Bank Trust Company, National Association, in its capacity as Collateral Agent pursuant to the Collateral Agency Agreement.

“Collateral Reports” means, collectively, the Inventory Reports and the Receivables Reports.

“Collection Account” has the meaning set forth in the Security Agreement.

“Commencement Date” has the meaning specified in Section 2.5.

“Commencement Date Crude Oil Volumes” means the total quantity of Crude Oil in the Crude Storage Tanks purchased by Aron on the Commencement Date, pursuant to the Inventory Sales Agreements.

“Commencement Date Products Volumes” means the total quantities of the Products in the Product Storage Facilities purchased by Aron on the Commencement Date, pursuant to the Inventory Sales Agreements.

“Commencement Date Purchase Value” means, with respect to the Commencement Date Volumes, initially the Estimated Commencement Date Value until the Definitive Commencement Date Value has been determined and thereafter the Definitive Commencement Date Value.

“Commencement Date Volumes” means, collectively, the Commencement Date Crude Oil Volumes and the Commencement Date Products Volumes.

“Commercial Accounts” means all Accounts other than Government Accounts.

“Commodity Forward Agreement” has the meaning specified in Section 19.2(o).

“Commodity Forward Settlement Amount” has the meaning specified in Section 19.2(n).

“Commodity Forward Transaction” has the meaning specified in Section 19.2(n).

“Company” has the meaning specified in the preamble to this Agreement.

“Company Crude Reimbursement Obligation” has the meaning specified in Section 5.11(c).

“Company Included Locations” has the meaning specified in the Storage Facilities Agreement.

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“Company Inventory Sales Agreement” means the purchase and sale agreement, in form and in substance mutually agreeable to the Parties, dated as of the Commencement Date, pursuant to which the Company is selling and transferring to Aron the portion of the Commencement Date Volumes then owned by the Company for the Commencement Date Purchase Value related thereto, free and clear of all liens, claims and encumbrances of any kind, other than Permitted S&O Liens.

“Company Product Reimbursement Obligation” has the meaning specified in Section 8.1(f)(iii).

“Company Purchase Agreement” has the meaning specified in the Marketing and Sales Agreement.

“Company Sourcing Transaction” has the meaning specified in Section 18.2(o).

“Compliance Certificate” means a certificate substantially in the form of Schedule HH.

“Compounded SOFR” means the rate calculated by Aron to be the “USD-SOFR-OIS Compound” rate as defined in the ISDA Definitions; provided, however, that for purposes of such definition (a) the term “Calculation Period” shall mean, with respect to any date on which a payment is due, the applicable month and (b) the term “Underlying Benchmark” shall mean SOFR.

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

(a)         an amount equal to any net loss realized by such Person or any of its Subsidiaries in connection with a Disposition, to the extent such loss was deducted in computing such Consolidated Net Income; plus

(b)         provision for Taxes based on income or profits, capital gains or capital losses of such Person and its Subsidiaries for such period, including without limitation state, franchise and similar taxes and any foreign withholding taxes of such Person and its Subsidiaries paid or accrued during such period, to the extent that such provision for Taxes was deducted in computing such Consolidated Net Income; plus

(c)         consolidated interest expense of such Person and its Subsidiaries for such period, whether paid or accrued and whether or not capitalized (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, imputed interest with respect to Attributable Indebtedness, 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 interest rate Hedging Agreements, to the extent that any such expense was deducted in computing such Consolidated Net Income; plus

(d)         depreciation and amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), impairment charges or expenses (including impairment of intangibles or goodwill), non-cash equity based compensation expense and other non-cash expenses or charges (including asset write-offs or writedowns) (excluding any such non-cash item to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Subsidiaries for such period to the extent that such depreciation and amortization, impairment and other non-cash items were deducted in computing such Consolidated Net Income; plus

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(e)         unrealized non-cash losses resulting from foreign currency balance sheet adjustments required by GAAP to the extent such losses were deducted in computing such Consolidated Net Income; plus

(f)         all extraordinary, unusual or non-recurring items of gain or loss, or revenue or expense; plus

(g)         the amount of any minority interest expense consisting of income of a Subsidiary attributable to minority equity interests of third parties in any non-wholly owned Subsidiary deducted in such period in calculating Consolidated Net Income; plus

(h)         an amount (to the extent not included in Consolidated Net Income) equal to the dividends or distributions paid during such period in cash or Cash Equivalents to such Person or any of its Subsidiaries by a Person that is not a Subsidiary of such Person; plus

(i)         any expenses or charges (other than depreciation or amortization expense) related to any equity offering, Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred hereunder (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the Indentures, the ABL Facility, the Term Loan Agreement, Other Intermediation Agreements, this Agreement and (ii) any amendment, supplement or other modification of the Indentures, the ABL Facility, the Term Loan Agreement, Other Intermediation Agreements, and this Agreement, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

(j)         the amount of any restructuring charge or reserve or non-recurring integration costs deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the date hereof and costs related to the closure and/or consolidation of facilities; plus

(k)         the amount of any integration costs, business optimization expenses and costs, one-time costs related to acquisitions, costs related to the closure or consolidation of facilities, employee termination costs and turnaround expense; plus

(l)         any other non-cash charges ((i) including any write-offs or write downs, any Environmental Credits gain or loss in excess of the net obligation, any non-cash change in market value of inventory or inventory repurchase obligations or any non-cash deferral of gross profit on finished product sales and (ii) excluding any mark to market on the net Environmental Credits obligation) reducing Consolidated Net Income for such period provided, that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period; plus

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(m)         the amount of expenses, charges or losses with respect to liability or casualty events to the extent deducted (and not added back) in such period in computing Consolidated Net Income and to the extent (i) covered by insurance and actually reimbursed (other than proceeds received from business interruption insurance to the extent already included in the Consolidated Net Income of such Person) or (ii) so long as a determination has been made in good faith that a reasonable basis exists that such amount shall in fact be reimbursed by an insurer to the extent it is (y) not denied by the applicable carrier (without any right of appeal thereof) within 180 days (with a deduction in the applicable future period for any amount so added back to the extent denied within such 180 days) and (z) in fact reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days); minus

(n)         non-cash items increasing such Consolidated Net Income for such period, other than items that were accrued in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP; provided, that if the Company, Par LLC, Par Pacific or any of their Subsidiaries, as applicable, shall acquire or Dispose of any property in an aggregate amount of at least $15,000,000.00 during such period (other than acquisitions and Dispositions of equipment in the ordinary course of business), then Consolidated EBITDA shall be calculated, with calculation in form and substance reasonably satisfactory to Aron, after giving pro forma effect to such acquisition or disposition, as if such acquisition or disposition had occurred on the first day of such period (provided that Aron is reasonably satisfied with the form and substance of the related projections).

“Consolidated Indebtedness” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Guarantor and its Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP, consisting only of Indebtedness for borrowed money and Indebtedness evidenced by notes or other instruments, net of unrestricted cash; provided, however, that Consolidated Indebtedness shall not include Indebtedness in respect of amounts owed or permitted to be incurred under this Agreement and under that certain ISDA 2002 Master Agreement dated as of March 17, 2016, between U.S. Oil & Refining Co. and Merrill Lynch Commodities, Inc. as supplemented, modified or amended by the Schedule to the ISDA 2002 Master Agreement, and as amended or otherwise modified from time to time

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(a)         the Net Income (but not loss) of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting will be included, but only to the extent of the amount of dividends or distributions paid in cash or Cash Equivalents (or converted into cash) to the specified Person or a Subsidiary of the Person;

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(b)         inventory valuation adjustments of a Subsidiary which adjust for timing differences to reflect the economics of inventory financing agreements as described in the filings by the Guarantor, Par Pacific or a direct or indirect parent of the Guarantor with the SEC will be included;

(c)         the Net Income of any Subsidiary (other than a Guarantor) will be excluded to the extent that the declaration or payment of dividends or similar distributions by that 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 judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its stockholders, partners or members, unless such restrictions with respect to the declaration and payment of dividends or distributions have been properly waived; provided that Consolidated Net Income will be increased by the amount of dividends or other distributions or other payments paid in cash (or to the extent converted into cash) or cash equivalents to the Guarantor or a Subsidiary thereof in respect of such period to the extent not already included therein;

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

(e)         any amortization of fees or expenses that have been capitalized shall be excluded;

(f)         non-cash charges relating to employee benefit or management compensation plans of the Guarantor or any Subsidiary thereof or any non-cash compensation charge arising from any equity-based awards for the benefit of officers, directors, employees and consultants of the Guarantor, its Subsidiaries, or any direct or indirect parent of the Guarantor shall be excluded (other than in each case any non-cash charge to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense incurred in a prior period);

(g)         (i) any non-cash restructuring charges shall be excluded and (ii) up to an aggregate of $15.0 million of other restructuring charges in any fiscal year ($30.0 million over the life of this Agreement) shall be excluded;

(h)         any non-cash impairment charge or asset write-off, in each case pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP, shall be excluded;

(i)         any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with (i) any sale of assets outside the ordinary course of business of such Person or (ii) the disposition of any securities by such Person or any of its Subsidiaries or the extinguishment of any Indebtedness (including, without limitation, deferred financing costs written off and premiums or make-whole payments paid) or the early termination of Hedging Agreements or other derivative instruments of such Person or any of its Subsidiaries, shall, in each case, be excluded;

(j)         any after-tax effect of income (loss) from disposed, abandoned, transferred, closed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall, in each case, be excluded;

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(k)         any extraordinary, non-recurring or unusual gain or loss or expense, together with any related provision for taxes, shall be excluded;

(l)         the effects of adjustments in the property, plant and equipment, inventories, goodwill, intangible assets and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;

(m)         unrealized gains and losses related to any Hedging Agreement shall be excluded; and

(o)         any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including relating to acquisitions to the extent incurred on or prior to the date hereof), severance, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded.

“Contract Nominations” has the meaning specified in Section 5.4(b).

“Controlled Account” has the meaning specified in the Pledge and Security Agreement.

“Corresponding Tenor” means, with respect to a Benchmark Replacement, a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable accrual period with respect to the then-current Benchmark.

“Counterparty Crude Sales Fee” means, with respect to any month, the sum of all Crude Sales Fees relating to all Counterparty Crude Sales.

“Counterparty Crude Sales” means all sales of Barrels of Crude Oil under Aron Procurement Contracts made by Aron during any month at the direction of the Company to a counterparty other than the Company.

“Crack Spread Hedge” means a cash-settled commodity transaction entered into between Company and any Person (including an option, swap, floor, cap, collar, forward sale or forward purchase) which is provided for the purpose of managing the Company’s risk with respect to the spread created by the purchase by a party of Crude Oil for delivery in the future and the sale by such party of gasoline, diesel, jet fuel and/or heating oil under contract for future delivery (regardless of whether such transaction is effected by means of one or more futures contracts or over-the-counter Hedging Agreements); provided that a Crack Spread Hedge may be based on a single agreement or trade or on a combination of agreements or trades that are intended to collectively constitute a Crack Spread Hedge.

“Crack Spreads” means the spread created by the purchase of Crude Oil for delivery in the future and the sale of gasoline, diesel, jet fuel and/or heating oil under contract for future delivery.

“Credit Date” means the date of the making of any advance constituting a Discretionary Draw Advance or an Incremental Discretionary Draw Amount.

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“Credit Enhancement” means any credit enhancement or credit support arrangement in support of the obligations of Aron under or with respect to the Safe Harbor Agreements, including any guarantee, collateral arrangement (including any pledge, charge, mortgage or other security interest in collateral or title transfer arrangement), trust or similar arrangement, letter of credit, transfer of margin or any similar arrangement.

“Crude Buy Leg” has the meaning specified in Section 5.3(e).

“Crude Delivery Point” means the outlet flange of the Included Crude Tanks.

“Crude Intake Point” means the inlet flange of the Included Crude Tanks.

“Crude Oil” means crude oil of any type or grade, excluding any Sludge.

“Crude Payment Undertaking” means, with respect to a Refinery Procurement Contract, a written undertaking by Aron in the form of Schedule AA hereto, subject to revisions as reasonably necessary to account for payment due dates occurring prior to completion of delivery of Crude Oil to the Company or otherwise, in each case in form and substance satisfactory to Aron under which Aron irrevocably agrees to remit or cause or otherwise arrange for the remittance to the relevant Third Party Supplier of funds sufficient to pay the Crude Procurement Payment due to such Third Party Supplier under such Refinery Procurement Contract on the relevant Procurement Due Date without discount, deduction, set-off or counterclaim; provided that (i) such remittance of the full Crude Procurement Payment shall in no way limit the Company’s obligation hereunder to reimburse Aron therefor and to compensate Aron for any Ancillary Costs in connection therewith and (ii) in no event shall such undertaking obligate Aron to make, cause or arrange for any remittance of a prepayment under a Refinery Procurement Contract unless the Parties have agreed to such additional terms and conditions not inconsistent with this Agreement as Aron may, in its discretion, require in connection therewith.

“Crude Price” means the Price applicable to the relevant Index Amount for Crude Oil as specified in Schedule B and adjusted monthly pursuant to Schedule K.

“Crude Price Adjustment Settlement Amount” has the meaning specified in Schedule K.

“Crude Procurement Payment” means, with respect to a Refinery Procurement Contract, the payment due to the Third Party Supplier thereunder as reflected in the invoice provided by such Third Party Supplier to the Company with respect to the volume of Crude Oil delivered thereunder to the Company.

“Crude Procurement Request” has the meaning specified in Section 5.3(b).

“Crude Sales Fee” means, for any month, the number of Barrels sold by Aron in connection with any Counterparty Crude Sale multiplied by the Crude Sales Fee Rate for such Counterparty Crude Sale.

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“Crude Sales Fee Rate” means, with respect to any Counterparty Crude Sale under which Aron is seller, the fee per Barrel agreed to by Aron and the Company in connection with such Counterparty Crude Sale that shall be due from the Company to Aron with respect to each Barrel sold thereunder.

“Crude Sell Leg” has the meaning specified in Section 5.3(e).

“Crude Storage Tanks” means any of the tanks at the Refinery listed on Schedule E that store Crude Oil and are owned by the Company.

“Cumulative Daily Forward Settlement” means, for any Forward Delivery Month, (x) the sum of the Daily Forward Settlements paid to Aron for all days occurring during such month minus (y) the sum of the Daily Forward Settlements paid to the Company for all days occurring during such month.

“Customer” has the meaning specified in the Marketing and Sales Agreement.

“Daily Forward Settlement” has the meaning specified in Section 31.8.

“Daily Produced Volume” means, for any day, the actual aggregate volume of Jet Fuel delivered by the Company to Aron at the Products Delivery Point during such day determined using the Forward Volume Determination Procedures, except as otherwise adjusted pursuant to Section 31.7(b).

“Daily Product Purchases” means, for any day and Product Group, Aron’s estimate of the aggregate volume of such Product purchased during such day pursuant to Included Purchase Transactions.

“Daily Product Sales” means, for any day and Product Group, Aron’s estimate of the aggregate sales volume of such Product sold during such day, pursuant to (a) any Included Sales Transaction, and (b) any Additional Product Transaction.

“Daily Value” has the meaning set forth on Schedule B.

“Default” means any event that, with notice or the passage of time, would constitute an Event of Default.

“Default Interest Rate” means the lesser of (i) SOFR Rate plus the Applicable Spread plus two hundred (200) basis points and (ii) the maximum rate of interest permitted by Applicable Law.

“Defaulting Party” has the meaning specified in Section 19.2(a).

“Definitive Commencement Date Value” has the meaning specified in the Inventory Sales Agreements.

“Delivery Date” means any calendar day.

“Delivery Month” means (i) the month in which Crude Oil is to be delivered to the Refinery in accordance with the relevant Procurement Contract, or (ii) the month in which Product is to be delivered to the Refinery in accordance with the relevant Refinery Product Contract or Included Product Contract.

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“Delivery Point” means a Crude Delivery Point or a Products Delivery Point, as applicable.

“Deposit Account Control Agreements” means agreements in writing, in form and substance reasonably satisfactory to Aron, by and among Aron, the Company and each bank at which a Controlled Account is at any time maintained which provides that such bank will comply with instructions originated by Aron directing disposition of the funds in the deposit account without further consent by the Company and has such other terms and conditions as Aron may reasonably require.

“Designated Affiliate” means, in the case of Aron, Goldman, Sachs & Co. LLC, and in the case of the Company, Par Pacific and Par LLC.

“Discount Rate” has the meaning set forth in the Fee Letter.

“Discretionary Draw Advance” means, as of any time, the aggregate amount then advanced by Aron to the Company pursuant to Section 11.1(b).

“Discretionary Draw Availability” means, as of any date of determination, the amount, determined in accordance with Schedule C, by which the (a) the lesser of (i) the Discretionary Draw Maximum Commitment Amount and (ii) the Borrowing Base as of such date, exceeds (b) the Discretionary Draw Advance then outstanding at such time.

“Discretionary Draw Availability Fee” has the meaning specified in Schedule C.

“Discretionary Draw Commitment” means the commitment of Aron, if any, to make the Discretionary Draw Advance hereunder.

“Discretionary Draw Commitment Period” means the period from July 1, 2021 to but excluding the Expiration Date.

“Discretionary Draw Election Report” means a duly delivered report substantially in the form provided in Schedule FF.

“Discretionary Draw Facility” means the discretionary draw credit facility provided by Aron to the Company pursuant to Article 11.

“Discretionary Draw Maximum Commitment Amount” means $215,000,000.00.

“Discretionary Draw Utilization Fee” has the meaning specified in Schedule C.

“Disposed Quantity” has the meaning specified in Section 9.4(a).

“Disposition” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) 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 herewith.

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“Disposition Amount” has the meaning specified in Section 9.4(a).

“Eagle Island” means Eagle Island, LLC.

“Eligible Hydrocarbon Inventory” means, as of any day, the Hydrocarbons (including, for the avoidance of doubt, gasoline blendstock) owned by the Company and held for sale or that consists of raw materials and, in each case, that are subject to a valid, first priority perfected Lien and security interest in favor of Aron, including, without limitation, at any time and with respect to any such Hydrocarbons, the aggregate volume of such Hydrocarbons constituting linefill; provided that, unless Aron shall otherwise elect in its reasonable discretion, Eligible Hydrocarbon Inventory shall not include any Hydrocarbon:

(a)         that is not evidenced in an Inventory Report delivered to Aron pursuant to the terms of this Agreement;

(b)         that is held on consignment or not otherwise owned by the Company;

(c)         that is obsolete or returned or repossessed or used goods taken in trade;

(d)         that is unmerchantable, constitutes Sludge or damaged product or constitutes product that is permanently off-spec or otherwise not in accordance with the specifications set forth on Schedule A;

(e)         that is subject to any other Lien whatsoever (other than Permitted Liens);

(f)         that consists solely of chemicals (other than commodity chemicals maintained in bulk), samples, prototypes, supplies, or packing and shipping materials;

(g)         that has been sold to a customer of the Company;

(h)         that is not (i) located at a location owned or leased by the Company and set forth on Schedule V hereto, or (ii) in transit between any such locations (other than via pipeline movement within the Refinery and Storage Facilities);

(i)         that is not currently either usable or salable, at market price, in the normal course of the Company’s business;

(j)         that contains or bears any Intellectual Property (as defined in the Pledge and Security Agreement) licensed to the Company by any Person, if it would restrict Aron from selling or otherwise disposing of such Hydrocarbon Inventory in accordance with the terms of the Pledge and Security Agreement without infringing the rights of the licensor of such Intellectual Property or violating any contract with such licensor (and without payment other than any ordinary course royalty payments or similar payments due with respect to the sale or disposition of such Inventory pursuant to the applicable license agreement for such Intellectual Property) and as to which the Company has not delivered to Aron a consent or sublicense agreement from such licensor in form and substance acceptable to Aron if requested; and

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(k)         that is not identified on Schedule X, unless otherwise mutually agreed by the Parties.

“Eligible Hydrocarbon Inventory Value” means, as of any day, the aggregate value of the then existing Eligible Hydrocarbon Inventory, determined based on the applicable then current Daily Values; provided that to the extent the price of any such Eligible Hydrocarbon Inventory is hedged under Swap Contracts, such aggregate value shall be increased or decreased (as appropriate) by the then current aggregate mark-to-market value of such Swap Contracts as determined by Aron based on its then current methodology for marking outstanding positions; provided further that such Swap Contracts shall only include those that have been designated by the Company (which designation shall be no less frequent than monthly) to hedge the Company’s price exposure with respect to Eligible Hydrocarbon Inventory.

“Eligible Receivables” means Accounts created by the Company that in each case satisfy the criteria set forth below as reasonably determined by Aron:

(a)         such Accounts arise from the actual and bona fide sale and delivery of refined petroleum products by the Company to an Acceptable Account Debtor in the ordinary course of the Company’s business which transactions are completed in accordance with the terms and provisions contained in any documents related thereto and are evidenced by an invoice delivered to the relevant Acceptable Account Debtor;

(b)         such Accounts (i) are not unpaid more than fifteen (15) days after the original due date therefor and (ii) are not unpaid more than forty-five (45) days after the date of the original invoice thereof;

(c)         such Accounts comply with the following terms and conditions: (i) the amounts shown on any invoice delivered to Aron or schedule thereof delivered to Aron shall be true and complete, (ii) no payments shall be made thereon except payments immediately delivered to the Receivables Collection Account, (iii) no credit, discount, allowance or extension or agreement for any of the foregoing shall be granted to any Acceptable Account Debtor except for credits, discounts, allowances or extensions made or given in the ordinary course of the Company’s business in accordance with practices and policies previously disclosed to Aron and (iv) none of the transactions giving rise thereto will violate any Applicable Law, all documentation relating thereto will be legally sufficient under such Applicable Law and all such documentation will be legally enforceable in accordance with its terms;

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(d)         such Accounts do not arise from sales on consignment, guaranteed sale, sale and return, sale on approval, or other terms under which payment by the account debtor may be conditional or contingent;

(e)         such Accounts do not consist of percentage of completion accounts or progress billings (such that the obligation of the account debtors with respect to such Accounts is conditioned upon the Company’s satisfactory completion of any further performance under the agreement giving rise thereto), bill and hold invoices or retainage invoices, except as to bill and hold invoices, if Aron shall have received an agreement in writing from the Acceptable Account Debtor, in form and substance reasonably satisfactory to Aron, confirming the unconditional obligation of the account debtor to take the goods related thereto and pay such invoice;

(f)         such Accounts are not owing by creditors of or suppliers to the Company or an Affiliate or employee of the Company, excluding USOR and Par Hawaii;

(g)         if such Accounts arise from the sale and delivery of refined petroleum products by the Company to USOR and Par Hawaii, such sale shall have arisen in the ordinary course of the Company’s or such Affiliate’s business, be made upon fair and reasonable terms not less favorable to the Company or such Affiliate than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate of the Company, be promptly invoiced upon delivery and provide for payment thereunder being due no later than three Business Days after invoicing; provided that the amount of such Accounts from USOR or Par Hawaii taken individually shall not constitute more than ten percent (10%) of the sum of all Eligible Receivables at any time (but the portion of the Accounts not in excess of such percentage shall be deemed Eligible Receivables); provided further that the aggregate amount of such Accounts shall not constitute more than eighteen percent (18%) of the sum of all Eligible Receivables at any time (but the portion of the Accounts not in excess of such percentage shall be deemed Eligible Receivables);

(h)         there are no facts, events or occurrences which would materially impair the validity, enforceability or collectability of such Accounts or reduce the amount payable or materially delay payment thereunder;

(i)         such Accounts are subject to the first priority, valid and perfected security interest in favor of Aronthe Collateral Agent for the benefit of Aron, subject to the Collateral Agency Agreement, pursuant to the Lien Documents and each Acceptable Account Debtor has been instructed that all payments in respect of such Accounts are to be made directly to the Receivables Collection Account;

(j)         such Accounts are not subject to any other Liens and any goods giving rise thereto are not, and were not at the time of the sale thereof, subject to any Liens, in each case, other than Permitted S&O Liens;

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(k)         neither the Acceptable Account Debtor nor any officer or employee of the Acceptable Account Debtor with respect to such Accounts is an officer, employee, agent or Affiliate of the Company;

(l)         there are no proceedings or actions which are pending or, to the knowledge of the Company, threatened against the account debtor with respect to such Accounts which might result in any Material Adverse Effect in any such account debtor’s financial condition (including, without limitation, any bankruptcy, dissolution, liquidation, reorganization or similar proceeding);

(m)         such Account is not owed by an account debtor that has (i) applied for, suffered, or consented to the appointment of any receiver, interim receiver, receiver-manager, 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, receiver-manager, custodian, trustee or liquidator, (iii) filed, or had filed against it, any request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or voluntary or involuntary case or other insolvency proceeding under any Federal, State, foreign or other bankruptcy laws (other than post-petition accounts payable of an account debtor that is a debtor-in-possession under the Bankruptcy Code and reasonably acceptable to Aron), (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;

(n)         such Account is not owed by an account debtor that has sold all or substantially all its assets (unless such Account has been assumed by a Person that shall have acquired such assets and otherwise satisfies the requirements set forth in this definition);

(o)         such Account is not owed by an account debtor that has Accounts classified as ineligible under clause (b) above which constitute more than twenty-five percent (25%) of the total Accounts of such account debtor;

(p)         the account debtor is not located in a state requiring the filing of a “Notice of Business Activities Report” or similar report in order to permit the Company to seek judicial enforcement in such State of payment of such Account, unless the Company has qualified to do business in such state or has filed a “Notice of Business Activities Report” or equivalent report for the then current year or such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;

(q)         such Accounts do not include any billing for interest, fees or late charges (but the portion of the Accounts in excess of such amounts shall be deemed Eligible Receivables if such Accounts are otherwise Eligible Receivables);

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(r)         which indicates any Person other than the Company as payee or remittance party or is owed in any currency other than U.S. dollars;

(s)         which is owed by an account debtor (i) that maintains its chief executive office in the United States and is organized under applicable law of the United States or any State of the United States or (ii) (A) that maintains an Investment Grade Rating, (B) the obligations of which under any Account that is to be an Eligible Receivable are supported by a customary trade letter of credit from a US bank, the US branch of a foreign branch or an Acceptable Foreign Bank that has an Investment Grade Rating or (C) the obligations of which under any Account that is to be an Eligible Receivable are supported by credit insurance that is in form and substance and by an issuer reasonably satisfactory to Aron;

(t)         such Accounts are owed by account debtors that at all times are Acceptable Account Debtors;

(u)         no portion of any such Accounts is evidenced by a promissory note or other instrument or by chattel paper;

(v)         such Accounts are not otherwise subject to any potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, rebate, credit or allowance (provided that if such Accounts are otherwise Eligible Receivables, the portion of such Accounts in excess of the amount at any time and from time to time owed by the Company to the Acceptable Account Debtor or claimed owed by such Acceptable Account Debtor may be deemed Eligible Receivables);

(w)         if the Account is a Commercial Account, then it shall be an Eligible Receivable only if it satisfies the following additional criteria:

(I)         the aggregate amount of such Accounts owing by a single account debtor does not constitute more than twenty-five percent (25%) of the sum of all Eligible Receivables (but the portion of the Accounts not in excess of such percentage shall be deemed Eligible Receivables); provided that with respect to the HECO Entities, (x) at all times HECO Parent maintains an Investment Grade Rating, the aggregate amount of such Accounts owing by the HECO Entities does not constitute more than fifty percent (50%) of the sum of all Eligible Receivables and (y) at all times HECO Parent does not maintain an Investment Grade Rating, the aggregate amount of such Accounts owing by the HECO Entities does not constitute more than twenty-five (25%) of the sum of all Eligible Receivables.

(II)         the account debtors with respect to such Accounts are not any foreign government, the United States of America, any State, political subdivision, department, agency or instrumentality thereof; and

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(III)         such Accounts are owed by account debtors whose total indebtedness to such the Company does not exceed the credit limit with respect to such account debtors as determined by the Company from time to time, to the extent such credit limit as to any account debtor is established consistent with the current practices and policies of the Company as of the Commencement Date and such credit limit is reasonably acceptable to Aron (but the portion of the Accounts not in excess of such credit limit may be deemed Eligible Receivables if such Accounts are otherwise Eligible Receivables); and

(x)         if the Account is a Government Account and otherwise satisfies the criteria for an Eligible Receivable it shall be an Eligible Receivable except for any portion thereof:

(I)         against which the applicable U.S. Governmental Authority has exercised its right of setoff or deduction or has formally notified the Company of its intention to do so;

(II)         to the extent such Government Account is offset by a deferred revenue deposit related to such Government Account (but only to the extent of such deferred revenue deposit; provided, if and to the extent any such deferred revenue deposit exceeds the related Government Account (such excess, the “Deferred Revenue Excess”), such Deferred Revenue Excess shall further reduce the total Eligible Receivables on a dollar for dollar basis); and

(III)         as to which the Company shall not have executed a Notice of Assignment and an Instrument of Assignment with respect to the contract underlying such Government Account and any other agreements, instruments and documents and performed all acts that Aron may reasonably require to ensure compliance with the Assignment of Claims Act (or any other similar state laws) which may include, without limitation, an acknowledgment or other reply from the relevant Government Authority account debtor that it has accepted and will comply with such notice or is otherwise reasonably satisfactory in substance to Aron (a “Government Response”); provided, however, that the filing of such Notice of Assignment and Instrument of Assignment with the applicable U.S. Governmental Authority shall not occur until required pursuant to the Lien Documents; provided however, that, notwithstanding the foregoing, with respect only to Specified Government Accounts, the provisions of Section 11.9 shall have been satisfied;

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(y)         the aggregate amount of Government Accounts owing by a single account debtor does not constitute more than twenty-five percent (25%) of the sum of all Eligible Receivables (but the portion of the Accounts not in excess of such percentage shall be deemed Eligible Receivables) other than with respect to Specified Government Accounts that constitute Eligible Receivables in accordance with Section 11.6;

provided that, in determining the amount of the Accounts to be included in as Eligible Receivables, the face amount of an Account shall be reduced, to the extent not reflected in such face amount, by (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Company may be obligated to rebate to a customer pursuant to the terms of any agreement or understanding (written or oral)); (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Company to reduce the amount of such Account or (iii) the amount of any Reserve established for such Accounts by Aron.

“Ending In-Tank Crude Inventory” has the meaning specified in Section 9.2(a).

“Ending In-Tank Product Inventory” has the meaning specified in Section 9.2(a).

“Environmental Credits” means benzene credits, sulfur credits or renewable fuel credits, including RINs and diesel fuel credits.

“Environmental Law” means any existing or past Applicable Law, policy, judicial or administrative interpretation thereof or any legally binding requirement that governs or purports to govern the protection of persons, natural resources or the environment (including the protection of ambient air, surface water, groundwater, land surface or subsurface strata, endangered species or wetlands), occupational health and safety and the manufacture, processing, distribution, use, generation, handling, treatment, storage, disposal, transportation, release or management of solid waste, industrial waste or hazardous substances or materials.

“Environmental Liabilities” means Liabilities arising from compliance or non-compliance with, or the manufacture, processing, distribution, use, generation, handling, treatment, storage, disposal, transportation, or release of Hazardous Substances under, 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.

“Equity Pledge Agreement” means the Equity Pledge Agreement, dated as of the Commencement Date, by and between Par LLC and Aron, pursuant to which Par LLC pledged to Aron, and granted Aron a first lien in, all Equity Interests of the Company.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“EST” means the prevailing time in the Eastern time zone.

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“Estimated Commencement Date Value” has the meaning specified in the Inventory Sales Agreements.

“Estimated Daily Net Crude Sales” has the meaning specified in Schedule C.

“Estimated Daily Net Product Sales” has the meaning specified in Schedule C.

“Estimated Monthly Forward Volume” has the meaning specified in Section 31.7(a).

“Estimated Termination Amount” has the meaning specified in Section 20.2(b).

“Estimated Yield” has the meaning specified in Section 8.3(a).

“Event of Default” means an occurrence of the events or circumstances described in Section 19.1.

“Excess Quantity” has the meaning specified in Section 7.10(a).

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

“Exchanged Confirmations” mean, with respect to an Aron Procurement Contract that is confirmed by Aron and the Third Party Supplier exchanging confirmations rather than jointly executing a single confirmation, the confirmations so exchanged by Aron and such Third Party Supplier.

“Excluded Materials” means any materials other than Crude Oil or Products.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to Aron or required to be withheld or deducted from a payment to Aron: (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 Aron being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Aron under any Transaction Document pursuant to a law in effect on the date on which (i) Aron acquires an interest in such amounts payable or (ii) Aron changes its lending office, (c) any Taxes attributable to Aron’s failure to provide to the Company, at the time or times reasonably requested by the Company, such properly completed and executed documentation reasonably requested by the Company as would permit payments to be made under this Agreement without withholding or at a reduced rate of withholding (including a properly completed and executed IRS Form W-9) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Existing Supplier/Offtaker” means Barclays Bank PLC, a public limited company organized under the laws of England and Wales.

“Existing Supplier/Offtaker Inventory Sales Agreement” means the purchase and sale agreements, in form and in substance reasonably satisfactory to Aron, dated as of the Commencement Date, pursuant to which the Existing Supplier/Offtaker and the Company is selling and transferring to Aron the portion of the Commencement Date Volumes then owned by the Existing Supplier/Offtaker and the Company for the Commencement Date Purchase Value related thereto, free and clear of all liens, claims and encumbrances of any kind, other than Permitted S&O Liens.

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“Expiration Date” has the meaning specified in Section 3.1.

“FATCA” means Sections 1471 through 1474 of the U.S. Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), or any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the U.S. Internal Revenue Code.

“Fed Funds Rate” means the rate set forth in H.15(519) or in H.15 Daily Update for the most recently preceding Business Day under the caption “Federal funds (effective)”; provided that if no such rate is so published for any of the immediately three preceding Business Days, then such rate shall be the arithmetic mean of the rates for the last transaction in overnight Federal funds arranged by each of three leading brokers of U.S. dollar Federal funds transactions prior to 9:00 a.m., EST, on that day, which brokers shall be selected by Aron in a commercially reasonable manner. For purposes hereof, “H.15(519)” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the Federal Reserve System, available through the worldwide website of the Board of Governors of the Federal Reserve System at http://www.federalreserve.gov/releases/h15/, or any successor site or publication and “H.15 Daily Update” means the daily update of H.15(519), available through the worldwide website of the Board of Governors of the Federal Reserve System at http://www.federalreserve.gov/releases/h15/update/, or any successor site or publication. Notwithstanding the foregoing, if the Fed Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Fee Letter” means that certain letter from Aron to the Company, dated as of May 8, 2017, as amended and restated on the Second Restatement Effective Date (the “Amended and Restated Fee Letter”), and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, which identifies itself as the “Fee Letter” for purposes hereof, and pursuant to which the Parties have set forth the amounts for and other terms relating to certain fees payable hereunder.

“FIFO Balance Final Settlement” has the meaning specified in Schedule N.

“Financing Agreement” means any credit agreement, indenture or other financing agreement under which the Company or any of its Affiliates may incur or become liable for indebtedness for borrowed money (including capitalized lease obligations and reimbursement obligations with respect to letters of credit) but only if the covenants thereunder limit or otherwise apply to any of the business, assets or operations of the Company and/or any of its Subsidiaries.

“First Additional Posting Date” means the Purchase Agreement Closing Date.

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“First Amended and Restated S&O Agreement” has the meaning specified in the recitals hereto.

“First Restatement Effective Date” means December 21, 2017.

“Floor” means a rate of interest equal to 0.00%.

“Force Majeure” means any cause or event reasonably beyond the control of a Party, including fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides, epidemics, pandemics and other acts of natural calamity or acts of God; navigational accidents or maritime peril; vessel damage or loss; strikes, grievances, actions by or among workers or lock-outs (whether or not such labor difficulty could be settled by acceding to any demands of any such labor group of individuals and whether or not involving employees of the Company or Aron); accidents at, closing of, or restrictions upon the use of mooring facilities, docks, ports, pipelines, harbors, railroads or other navigational or transportation mechanisms; disruption or breakdown of, explosions or accidents to wells, storage plants, refineries, terminals, machinery or other facilities; acts of war, hostilities (whether declared or undeclared), civil commotion, embargoes, blockades, terrorism, sabotage or acts of the public enemy; any act or omission of any Governmental Authority; good faith compliance with any order, request or directive of any Governmental Authority; curtailment, interference, failure or cessation of supplies reasonably beyond the control of a Party; or any other cause reasonably beyond the control of a Party, whether similar or dissimilar to those above and whether foreseeable or unforeseeable, which, by the exercise of due diligence, such Party could not have been able to avoid or overcome. Solely for purposes of this definition, the failure of any Third Party Supplier to deliver Crude Oil pursuant to any Aron Procurement Contract, whether as a result of Force Majeure as defined above, “force majeure” as defined in such Aron Procurement Contract, breach of contract by such Third Party Supplier or any other reason, shall constitute an event of Force Majeure for Aron under this Agreement with respect to the quantity of Crude Oil subject to that Aron Procurement Contract.

“Forward Delivery Month” has the meaning specified in Section 31.2.

“Forward Jet Fuel Transaction” has the meaning specified in Section 31.1.

“Forward Transaction Commencement Date” has the meaning specified in Section 31.2.

“Forward Transaction Early Termination” has the meaning specified in Section 31.12.

“Forward Transaction Obligations” means all of the Company’s obligations to Aron from time to time arising under this Article 31 in respect of the Forward Jet Fuel Transaction.

“Forward Volume Determination Procedures” mean, for any specified period, procedures for determining the volume of Jet Fuel or other Product that has been delivered by the Company to Aron at the Products Delivery Point during such period using available meters, gauges and other measuring equipment or methods, which procedures shall be developed by the Company in consultation with Aron and shall be satisfactory to Aron in its commercially reasonable judgment.

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“FTZ” means a foreign trade zone authorized in accordance with the Foreign Trade Zone Act of 1934.

“GAAP” means generally accepted accounting principles in the U.S. set out in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Financial Accounting Standards Board as in effect from time to time.

“Government Accounts” means Accounts owing directly by any U.S. Governmental Authority to the Company under a prime contract entered into between such U.S. Governmental Authority and the Company.

“Government Accounts Assignment Condition” means the execution by the Company of a Notice of Assignment and an Instrument of Assignment with respect to the contract underlying such Government Account and any other agreements, instruments and documents and the performance by the Company of all acts that Aron may reasonably require to ensure compliance with the Assignment of Claims Act (or any other similar state laws).

“Governmental Authority” means any federal, state, regional, local, or municipal governmental body, agency, instrumentality, authority or entity established or controlled by a government or subdivision thereof, including any legislative, administrative or judicial body, or any person purporting to act therefor.

“Guarantor” means Par LLC.

“Guaranty” means the Amended and Restated Guaranty, dated as of the Second Restatement Effective Date, from the Guarantor provided to Aron in connection with this Agreement and the transactions contemplated hereby, in form and substance satisfactory to Aron.

“Hazardous Substances” means any explosive or radioactive substances or wastes and any toxic or hazardous substances, materials, wastes, contaminants or pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances defined or listed as “hazardous substances,” “hazardous materials,” “hazardous wastes” or “toxic substances” (or similarly identified), regulated under or forming the basis for liability under any applicable Environmental Law.

“HECO Entities” means, collectively, (i) Hawaiian Electric Co., Inc., (ii) Maui Electric Company, Ltd. and (iii) Hawaii Electric Light Company, Inc.

“HECO Parent” means Hawaiian Electric Industries, Inc.

“Hedging Agreement” means any Swap Contract relating to Crude Oil, natural gas, ethanol, biofuels or electricity, Products, intermediate product, finished product, other feedstocks, other refined petroleum products, blendstocks, other hydrocarbons (including without limitation any such agreement relating to Crack Spread Hedges, time spreads and grade differentials) or other energy, weather or emissions related commodity, entered into by a Person in the ordinary course of business and for non-speculative purposes, that hedges or mitigates risks to which such Person or any of its Subsidiaries has actual exposure.

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“Honolulu 10 Inch Pipeline” has the meaning specified on Schedule U.

“HST” means the prevailing time in Hawaii.

“Hydrocarbons” means crude oil, intermediate feedstocks, blendstocks, and finished and unfinished petroleum products, including without limitation, asphalt, gasoline, diesel fuels, fuel oil and jet fuels; provided that such term shall not include solvents.

“Identified Facilities” has the meaning specified in Section 14.4(a).

“IES Downstream” means IES Downstream, LLC.

“IES Entity” means IES Downstream or any Affiliate of IES Downstream.

“Included Company Product Tanks” means all Included Product Tanks owned by the Company or any Affiliate of the Company.

“Included Crude Pipelines” means the Crude Oil pipelines or sections thereof owned or leased by the Company or by a third party that is listed on Schedule U, as such schedule may from time to time be amended by the Parties.

“Included Crude Tanks” means the Crude Oil storage tanks owned and operated by the Company or by third parties as further identified and described on Schedule E, including, as applicable with respect to the inventory report provided by such third party, any related facilities or pipelines used in connection with such tanks, including, without limitation, the Crude Storage Tanks.

“Included Locations” means, collectively, the Included Crude Tanks, the Included Crude Pipelines, and the Product Storage Facilities, as more particularly described on Schedule E and Schedule U.

“Included Pipelines” means the Included Crude Pipelines and the Included Product Pipelines.

“Included Product Pipelines” means the Product pipelines or sections thereof owned or leased by the Company or by a third party that is listed on Schedule U, as such schedule may from time to time be amended by the Parties.

“Included Product Tanks” means the Product storage tanks owned and operated by the Company or by third parties as further identified and described on Schedule E, including, as applicable with respect to the inventory report provided by such third party, any related facilities or pipelines used in connection with such tanks.

“Included Purchase Transaction” means (i) an agreement entered into by Aron at the request of the Company under Section 2.3 of the Marketing and Sales Agreement, pursuant to which Aron purchases any Products from a third party (a “Product Supplier”), or (ii) an agreement with the Company entered into pursuant to Section 8.1(c)(i) which shall provide for purchase by Aron from the Company of Products delivered to Aron at the Products Intake Point.

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“Included Sales Transaction” has the meaning specified in the Marketing and Sales Agreement.

“Included Tanks” means the Included Crude Tanks and Included Product Tanks, as more particularly described on Schedule E.

“Included Third Party Crude Tanks” means any Included Crude Tanks other than the Crude Storage Tanks.

“Included Third Party Product Tanks” means any Included Product Tanks other than Included Company Product Tanks.

“Included Utility” means Kauai Island Utility Cooperative.

“Incremental Discretionary Draw Amount” has the meaning set forth in Schedule C.

“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:

(i)          in respect of borrowed money;

(ii)         evidenced by bonds, notes, debentures or similar instruments;

(iii)         in respect of all outstanding letters of credit issued for the account of such Person that support obligations that constitute Indebtedness (provided that the amount of such letters of credit included in Indebtedness shall not exceed the amount of the Indebtedness being supported) and, without duplication, the unreimbursed amount of all drafts drawn under letters of credit issued for the account of such Person;

(iv)         in respect of bankers’ acceptances;

(v)         representing that portion of capital lease obligations and Synthetic Lease Obligations that is properly classified as a liability on a balance sheet in conformity with GAAP;

(vi)         representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade accounts payable or similar obligation to a trade creditor;

(vii)         representing any obligations under Hedging Agreements, other than obligations under Hedging Agreements that are incurred in the normal course of business and not for speculative purposes and do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices, Crack Spreads or foreign currency exchange rates or other hedged subject matter, or by reason of fees, indemnities and compensation payable thereunder; or

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(viii)         all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;

if and to the extent any of the preceding items (other than letters of credit and obligations under Hedging Agreements) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all (i) Indebtedness of other Persons secured by a Lien on any asset (other than Liens on and pledges of the Equity Interests of any joint venture owned by the Par LLC or any Subsidiary, securing Indebtedness of such joint venture) of the specified Person (whether or not such Indebtedness is assumed by the specified Person) (provided that the amount of such Indebtedness shall be the lesser of (a) the fair market value of such asset at such date of determination and (b) the amount of such Indebtedness) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person; and (ii) 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, unless such Indebtedness is expressly made non-recourse to such Person.

Indebtedness shall not include:

(i)   any liability for Taxes;

(ii)  any liability 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, however, that such liability is extinguished within five Business Days of its incurrence;

(iii)  any liability owed to any Person in connection with workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance provided by such Person pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;

(iv)  any Indebtedness that is satisfied and discharged or defeased by legal defeasance;

(v)  any obligations under any Other Intermediation Agreement, but only to the extent that such obligations are not classified as long-term debt or a current maturity of long-term debt on a balance sheet of the specified Person prepared in accordance with GAAP;

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

(vii)  any obligation in respect of buy-sell or similar arrangements related to Environmental Credits (but excluding any obligations relating to the financing of any Environmental Credits or borrowed money obligations for which any Environmental Credits constitute any portion of the collateral securing such obligations).

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No Indebtedness of any Person will be deemed to be contractually subordinated in right of payment to any other Indebtedness of such Person solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Company for any advance constituting a Discretionary Draw Advance made pursuant to Article 11 and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indentures” means the 2017 Indenture and 2020 Indenture.

“Independent Inspection Company” has the meaning specified in Section 12.3.

“Index Amount(s)” means, for any month and with respect to a particular Pricing Group, the pricing index, formula or benchmark set forth on and determined in accordance with Schedule B for such month.

“Index Purchase Value” has the meaning specified in Schedule C.

“Infrared Thermography” means the use of infrared images taken on four sides of each tank with the average value determined used to determine the level of Sludge from the appropriate strapping table, with values adjusted from Gross Standard Volume (GSV) to reflect Sludge volumes.

“Initial Acceptable Account Debtors” means the entities listed on Schedule T hereto.

“Initial Estimated Yield” means the expected Product yield for the Refinery based on its then current operating forecast provided by the Company to Aron on or prior to the Commencement Date.

“Initial Margin Amount” has the meaning specified in Section 4.3.

“Interim Price Adjustment Week” has the meaning specified in Section 7.4(d).

“Interim Payment” has the meaning specified in Schedule C.

“Inventory Report” has the meaning as specified in Section 11.4(a).

“Inventory Sales Agreements” means the Company Inventory Sales Agreement and the Existing Supplier/Offtaker Inventory Sales Agreement.

“Investment” means, for any Person, any direct or indirect acquisition or investment by such Person, whether by means of (i) the purchase or other acquisition of Equity Interests or other securities of another Person, (ii) a loan, advance or capital contribution to, guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other Indebtedness or Equity Interest (or similar equity participation) in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guarantees any Indebtedness of such other Person, or (iii) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.

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“Investment Grade Rating” means a rating of BBB- or better by Standard & Poor’s Rating Services and Baa3 or better by Moody’s Investors Service, Inc.

“ISDA Definitions” means the 2021 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. (including all appendices thereto and the Matrices, as defined therein) or any successor thereto, as in effect on July 1, 2023 or any successor definitional booklet for interest rate derivatives published from time to time.

“Issuance Condition” means the “Issuance Condition” under and as defined in the LC Facility Agreement as in effect on the LC Facility Amendment Effective Date.

“J. Aron Payment Obligation” means, with respect to an LC Related Aron Procurement Contract, an amount (i) equal to the amount of the provisional payment due from Aron to the Company (x) as set forth in the trade ticket for such LC Related Aron Procurement Contract which shall match the amount set forth in the corresponding LC Eligible Refinery Procurement Contract, or (y) determined pursuant to a formula set forth in the trade ticket for such LC Related Aron Procurement Contract which shall match the formula set forth in the corresponding LC Eligible Refinery Procurement Contract and (ii) payable by Aron directly into the Collection Account no later than 6:00 p.m. New York time on the second Business Day after delivery under such LC Related Aron Procurement Contract to Aron at the Crude Intake Point has been completed; provided that Aron shall have no obligation to purchase any relevant cargo from the Company on any date that occurs after the Expiration Date notwithstanding that an LC Related Aron Procurement Contract has been executed in respect of such cargo.

“Jet Fuel” means the Jet Fuel Product Group described on Schedule P hereto.

“LC Credit Documents” means the “Credit Documents” under and as defined in the LC Facility Agreement.

“LC Cut-off Date” has the meaning set forth in the definition of LC Eligible Refinery Procurement Contract.

“LC Eligible Refinery Procurement Contract” means a Refinery Procurement Contract (i) under which the Company agrees to arrange for the issuance of a Letter of Credit to the Supplier thereunder on or prior to a date designated therein as the last day by when such Letter of Credit may be delivered thereunder (the “LC Cut-off Date”), having a specified available amount of no less than the amount expected to be stated in the provisional commercial invoice issued under such Refinery Procurement Contract and (ii) having a Procurement Due Date, in the case of a “delivered” cargo, no earlier than two Business Days following completion of delivery to the Company under such Refinery Procurement Contract and, in the case of an “FOB” cargo, a customary period of time (but no less than two Business Days) after loading of the cargo at the load port.

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“LC Facility” the uncommitted senior secured revolving letter of credit facility contemplated by the LC Facility Agreement.

“LC Facility Agent” means MUFG Bank, Ltd., in its capacity as Administrative Agent pursuant to the LC Facility Agreement.

“LC Facility Agreement” means the Uncommitted Credit Agreement, dated as of the LC Facility Amendment Effective Date, among the Company, the LC Facility Agent, the Collateral Agent, as collateral agent and the banks and other financial institutions party thereto, as amended, restated, supplemented or otherwise modified from time to time.

“LC Facility Amendment Effective Date” means July 26, 2023.

“LC Issuer” means a letter of credit issuing bank under the LC Facility.

“LC Related Aron Procurement Contract” means an Aron Procurement Contract referred to in clause (ii) of the definition of “Aron Procurement Contract” providing for the purchase by Aron of Crude Oil that is being procured by the Company under an LC Eligible Refinery Procurement Contract, which is to be evidenced by a confirmation substantially in the form attached hereto as Schedule JJ.

“Letter of Credit” means a letter of credit issued under the LC Facility.

“Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Indebtedness as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Guarantor and its Subsidiaries immediately last ended as of such date of determination for which financials have been or were required to be delivered.

“Liabilities” means any losses, liabilities, charges, damages, deficiencies, assessments, interests, fines, penalties, costs and expenses (collectively, “Costs”) of any kind (including reasonable attorneys’ fees and other fees, court costs and other disbursements), including any Costs directly or indirectly arising out of or related to any suit, proceeding, judgment, settlement or judicial or administrative order and any Costs arising from compliance or non-compliance with Environmental Law.

“Lien Documents” means the Pledge and(i) prior to the LC Facility Amendment Effective Date, the Security Agreement, the Deposit Account Control Agreements and any other instruments, documents and agreements delivered by or on behalf of the Company and its Affiliates in order to grant to and perfect in favor of Aron a security interest in and lien on all real, personal or mixed property of any nature of the Company and its Affiliates (subject to customary exclusions acceptable to Aron) as security for the obligations of the Company pursuant to this Agreement and the other Transaction Documents. in effect prior to the LC Facility Amendment Effective Date, and (ii) from and after the LC Facility Amendment Effective Date, the Security Agreement and any other instruments, documents and agreements delivered by or on behalf of the Company and its Affiliates in order to grant to and perfect in favor of the Collateral Agent a security interest in and Lien on all real, personal or mixed property of any nature of the Company and its Affiliates (subject to customary exclusions acceptable set forth in the Transaction Documents ) as security for the obligations of the Company pursuant to this Agreement and the other Transaction Documents in effect after the LC Facility Amendment Effective Date, subject to the Collateral Agency Agreement.

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“Liens” has the meaning specified in Section 18.2(l).

“Lien” means any security interest, lien, encumbrance, charge or other claim of any nature.

“Liquidated Amount” has the meaning specified in Section 19.2(f).

“Liquidity” means, as of any date of determination, an amount equal to (a) all unrestricted cash and cash equivalents of the Company held in Controlled Accounts constituting S&O Priority Collateral (as defined in the Security Agreement), on such date, plus (b) the Discretionary Draw Availability for such date; provided that funds credited to the Collection Account shall not be included in the calculation of Liquidity hereunder.

“Long-Term Dedicated Storage” has the meaning specified in the Long-Term Terminalling Agreement.

“Long-Term Terminalling Agreement” means the Terminalling Agreement as defined in the Topping Unit Purchase Agreement, as amended, supplemented or otherwise modified from time to time.

“Marketing and Sales Agreement” means the products marketing and sales agreement, dated as of the Commencement Date (as amended and restated on the Second Restatement Effective Date (the “Amended and Restated Marketing and Sales Agreement”)), between the Company and Aron pursuant to which the Product purchased by Aron hereunder shall from time to time be marketed and sold by the Company for Aron’s account or otherwise, as amended, supplemented, restated or otherwise modified from time to time.

“Master Agreement” means the ISDA Master Agreement, dated as of June 1, 2015, between the Company and Aron, including the Schedule thereto, amended and restated as of the First Restatement Effective Date, and all other schedules, annexes and exhibits thereto and all confirmations from time to time issued thereunder and subject thereto, amended and restated as of the First Restatement Effective Date (the “Amended and Restated Master Agreement”), and as further amended, supplemented, restated or otherwise modified from time to time.

“Master Agreement Termination Event” means, with respect to a party, any “Event of Default” under the Master Agreement with respect to such party or any “Additional Termination Event” under the Master Agreement for which such party is the sole Affected Party thereunder (other than the “Event of Default” referred to in Part 1(h) of the Schedule to the Master Agreement).

“Material Adverse Effect” means a material adverse effect on (a) the business, results of operations, assets or financial condition of the Company, (b) the ability of the Parties to fully and timely perform their obligations under the Transaction Documents, taken as a whole, (c) the legality, validity, binding effect or enforceability against the Parties of any Transaction Documents to which they are party or (d) the rights, remedies and benefits available to, or conferred upon, the Parties under the Transaction Documents, taken as a whole.

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“Measured Crude Quantity” means, for any Delivery Date, the total quantity of Crude Oil that, during such Delivery Date, was withdrawn and lifted by and delivered to the Company at the Crude Delivery Point, as evidenced by either meter readings and meter tickets for that Delivery Date and tank gaugings conducted at the beginning and end of such Delivery Date.

“Measured Product Quantity” means, for any Delivery Date, the total quantity of a particular Product that, during such Delivery Date, was delivered by the Company to Aron at the Products Intake Point, as evidenced by either (i) meter readings and meter tickets for that Delivery Date or (ii) tank gaugings conducted at the beginning and end of such Delivery Date.

“Monthly Cover Costs” has the meaning specified in Section 7.7.

“Monthly Crude Forecast” has the meaning specified in Section ‎5.2(b).

“Monthly Crude Oil True-Up Amount” has the meaning specified in Schedule C.

“Monthly Forward True-Up Amount” has the meaning specified in Section 31.4(b).

“Monthly Forward Volume” has the meaning specified in Section 31.2.

“Monthly Market Structure Roll Fees” has the meaning specified in Schedule Y.

“Monthly Net Crude Sales” has the meaning specified in Section 9.3(a).

“Monthly Net Product Group Sales” has the meaning specified in Section 9.3(b).

“Monthly Produced Volume” means, for any Forward Delivery Month, the actual aggregate volume of Jet Fuel delivered by the Company to Aron at the Products Delivery Point during such Month determined using the Forward Volume Determination Procedures.

“Monthly Product Purchase Adjustment” has the meaning specified in Schedule C.

“Monthly Product Sale Adjustment” has the meaning specified in Schedule C.

“Monthly Product True-Up Amount” has the meaning specified in Schedule C.

“Monthly True-Up Amount” has the meaning specified in Section 10.2(a).

“Monthly True-Up Date” means each date on which the Monthly True-Up Amount is due in accordance with Article 10.

“Monthly Volumetric Shortfall” has the meaning specified in Section 31.5(a).

“Mortgage” means the Mortgage and Security Agreement, dated as of the Commencement Date, between the Company, as mortgagor and Aron, as mortgagee, granting Aron a lien on all real property and improvements owned by the Company and related asset of the Company as further described therein, as amended, supplemented, restated or otherwise modified from time to time.

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“Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP.

“Nomination Cutoff Date” means, with respect to any Aron Procurement Contract, the date and time (if any) by which Aron is required to provide its nominations to the Third Party Supplier thereunder for the next delivery for which nominations are then due or can then be made.

“Non-Affected Party” has the meaning specified in Section 17.1.

“Non-Defaulting Party” has the meaning specified in Section 19.2(a).

“Notes” means the 2017 Notes and 2020 Notes.

“Note Collateral” means assets of the Company on which the Company has granted, or hereinafter grants, Liens to secure obligations under the Indentures, the Notes, the Term Loan Agreement and certain pari passu hedging agreements and pari passu indebtedness pursuant to the Security Agreement, Mortgages and other Security Documents (each as defined in the Collateral Trust and Intercreditor Agreement).

“Notes Collateral Trustee” means Wilmington Trust, National Association in its capacity as collateral trustee under the Collateral Trust and Intercreditor Agreement, and any successors and assigns in such capacity.

“Notes Issuers” means Par LLC and Par Petroleum Finance Corp.

“NSV” means, with respect to any measurement of volume, the total liquid volume, excluding sediment and water and free water, corrected for the observed temperature to 60° F.

“Obligations” means any and all obligations owing by the Company to Aron or any indemnitee under or in connection with this Agreement and the other Transaction Documents, including, without limitation, in respect of fees, debts, indemnitees, costs, expenses, and all other amounts, covenants and duties of the Company to Aron required to be paid or performed by the Company hereunder or thereunder, and, in each case, whether now existing or hereafter arising, and whether due or to become due, absolute or contingent, liquidated or unliquidated, determined or undetermined, and including interest that accrues after the commencement by or against the Company of any insolvency or bankruptcy of such Person naming such Person as the debtor in such proceeding.

“Operational Volume Range” means the range of operational volumes for any given set of associated Included Crude Tanks for each type of Crude Oil and for any given set of associated Product Storage Facilities for each group of Products, between the minimum volume and the maximum volume, as set forth on Schedule D.

“Original Agreement” has the meaning specified in the recitals hereto.

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“Original Effective Date” means June 1, 2015.

“Other Barrels” has the meaning specified in Section 5.3(g)(ii).

“Other Connection Taxes” means, with respect to Aron, Taxes imposed as a result of a present or former connection between Aron and the jurisdiction imposing such Tax.

“Other Product Barrels” has the meaning specified in Section 8.1(c)(ii).

“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

“Outstanding Forward Amount” means, as of any date of determination, the present value, using the Discount Rate, of future cash flows that equal the then remaining Monthly Forward Volumes multiplied by the corresponding Specified Index Price for such month utilized in the calculations thereof as of the Forward Transaction Commencement Date.

“Par East” means the storage tanks located at or adjacent to the Company’s original Kapolei refinery, prior to the acquisition of the Topping Unit Refinery Assets.

“Par Hawaii” means Par Hawaii, LLC (successor by merger to Mid Pac Petroleum, LLC), a Delaware limited liability company.

“Par LLC” means Par Petroleum, LLC, a Delaware limited liability company.

“Par West” means the storage tanks located at or adjacent to the Topping Unit Refinery Assets.

“Party” or “Parties” has the meaning specified in the preamble to this Agreement.

“Payment Undertaking” has the meaning specified in Section 18.2(r).

“Permitted Holders” means Zell Credit Opportunities Master Fund, L.P. and its respective Affiliates.

“Permitted Liens” means:

(a)         Liens pursuant to any Transaction Document;

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(b)         Liens existing on the date hereof securing Indebtedness permitted under Section 18.5(c)(ii)(B) and Section 18.5(c)(ii)(P) and any amendments, restatements, amendment and restatements, supplements, other modifications, refinancings, refundings, renewals or extensions thereof; provided that through such amendment, restatement, amendment and restatement, supplement, modification, refinancing, refunding, renewal or extension (1) the Company and its Subsidiaries shall not provide security for such Indebtedness to the extent such security would include types of collateral not previously included therein, (2) the amount of Indebtedness secured or benefited thereby is not increased except as contemplated by Section 18.5(c)(ii)(B) and Section 18.5(c)(ii)(P), (3) no Subsidiary of the Company shall be required to guarantee such Indebtedness unless such Person has guaranteed the Obligations, and (4) any refinancings, refundings, renewals or extensions of the obligation secured or benefitted thereby is permitted by Section 18.5(c)(ii)(B) and Section 18.5(c)(ii)(P);

(c)         Liens for Taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(d)         Liens in respect of property or assets of the Company imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business, and (1) which do not in the aggregate materially detract from the value of the Company’s property or assets or materially impair the use thereof in the operation of the business of the Company or (2) are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;

(e)         Liens upon assets of the Company subject to capital leases and leases giving rise to Synthetic Lease Obligations to the extent such capital leases and leases giving rise to Synthetic Lease Obligations are permitted by Section 18.5(c)(ii)(E); provided that (1) such Liens only serve to secure the payment of Indebtedness arising under such capital lease obligation or leases giving rise to Synthetic Lease Obligations and (2) the Lien encumbering the asset giving rise to the such capital lease obligation or leases giving rise to Synthetic Lease Obligations does not encumber other assets of the Company;

(f)         Liens upon equipment or machinery acquired after Effective Date and used in the ordinary course of business of the Company or any of its Subsidiaries to secure Indebtedness permitted by Section 18.5(c)(ii)(F) and Section 18.5(c)(ii)(G); provided, that in all events, the Lien encumbering the equipment or machinery so acquired does not encumber any other asset of the Company;

(g)         Liens arising out of the existence of judgments or awards in an aggregate amount not to exceed $5,000,000.00 in respect of which the Company or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review and in respect of which there shall have been secured a subsisting stay of execution pending such appeal or proceedings;

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(h)         statutory and common law landlords’ Liens under leases to which the Company is a party;

(i)         Liens or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

(j)         Liens on cash collateral or deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(k)         easements, rights-of-way, restrictions and other similar encumbrances affecting real property, including minor title deficiencies, which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

(l)         Liens incurred in the ordinary course of business in connection with (1) the shipping of goods or assets, which Liens are in favor of the shipper of such goods or assets with respect amounts due to such shipper for the carriage of such goods or assets and only attach to such goods or assets or (2) the purchase of goods or assets, which Liens arise by operation of law in favor of the seller of such goods or assets, only attach to such goods or assets and cease to be in effect upon payment in full of the purchase price for such goods or assets;

(m)         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;

(n)         bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and cash equivalents on deposit in one or more accounts maintained by the Company, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank or banks with respect to cash management and operating account arrangements;

(o)         Liens granted in the ordinary course of business on insurance policies, proceeds thereof and the unearned portion of insurance premiums with respect thereto securing the financing of the unpaid cost of the insurance policies to the extent the financing is permitted under Section 18.5(c)(ii)(L);

(p)         Liens arising by operation of law securing rental, storage, throughput, transportation, handling or other similar fees or charges owing from time to time to bailees, transporters or warehousemen, solely to the extent of such fees or charges and incurred in the ordinary course of business of the Company;

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(q)         Liens on RINs; and

(r)         Liens on cash collateral posted solely to secure the Company’s reimbursement obligations under Permitted Letters of Credit.

“Permitted S&O Liens” means: (a) Liens for taxes, assessments, judgments, governmental charges or levies, either not yet delinquent or the non-payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been made; (b) Liens of mechanics, laborers, suppliers, workers, materialmen, and other similar liens incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith by appropriate proceedings, if such reserve or appropriate provision, if any, as shall be required by GAAP shall have been made therefore; (c) Liens arising by operation of law securing rental, storage, throughput, transportation, handling or other similar fees or charges owing from time to time to carriers, bailees, transporters or warehousemen, solely to the extent of such fees or charges and incurred in the ordinary course of business of the Company; (d) Liens pursuant to any Transaction Document; and (e) Liens (1) incurred in the ordinary course of business in connection with the purchase of goods, which Liens arise by operation of law in favor of the seller of such goods, only attach to such goods and cease to be in effect upon payment in full of the purchase price for such goods, and (2) 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 such goods; provided that, notwithstanding the foregoing, “Permitted S&O Liens” shall not include (x) Liens securing (i) amounts owing in connection with or as a result of any termination or early termination of any Base Agreement or other similar agreement relating to any Included Location owned and/or operated by any third party, (ii) any take-or-pay obligations of the Company in connection with or pursuant to any Base Agreement or other similar agreement relating to any Included Location owned and/or operated by any third party or (iii) any minimum or guaranteed amounts or other non-ordinary course fees or other amounts payable in connection with or pursuant to any Base Agreement or other similar agreement relating to any Included Location owned and/or operated by any third party or (y) any other Liens expressly waived pursuant to the terms of any Required Storage and Transportation Arrangement.

“Person” means an individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity.

“Pipeline Cutoff Date” means, with respect to any third party Included Pipeline, the date and time by which a shipper on such Included Pipeline is required to provide its nominations to the entity that schedules and tracks Crude Oil or Products, as applicable, in such Included Pipeline for the next shipment period for which nominations are then due.

“Pledge and Security Agreement” means that certain Pledge and Security Agreement by and between the Company and Aron, dated of June 1, 2015, as amended and restated as of the First Restatement Effective Date, as amended and restated as of the Second Restatement Effective Date (the “Second Amended and Restated Pledge and Security Agreement”), and as further amended, restated, supplemented or otherwise modified from time to time.

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“Price” means, for any month and with respect to a particular Product Group, the amount added to or subtracted from the applicable Index Amount to determine the Pricing Value for such month and Product Group. The Price applicable during the Term, as shall be set forth on Schedule B and as may be adjusted from time to time pursuant to Section 7.4.

“Price Adjustment Month or Week” has the meaning specified in Section 7.4(d).

“Pricing Group” means any of the Product Groups listed as a pricing group on Schedule P.

“Pricing Value” means, with respect to a particular grade of Crude Oil or type of Product, the applicable Daily Value or Current Month Value, as the case may be, indicated on Schedule B.

“Procurement Contract” means any Aron Procurement Contract or Refinery Procurement Contract, or such other contract to the extent the Parties mutually deem such contract to be a Procurement Contract for purposes hereof.

“Procurement Contract Assignment” means an instrument, in form and substance reasonably satisfactory to Aron, by which the Company assigns to Aron all rights and obligations under a Refinery Procurement Contract and Aron assumes such rights and obligations thereunder, subject to terms reasonably satisfactory to Aron providing for the automatic reassignment thereof to the Company in connection with the termination of this Agreement.

“Procurement Due Date” means, with respect to a Refinery Procurement Contract or Refinery Product Contract, the date on which the Crude Procurement Payment or Product Procurement Payment under the applicable contract is due to be paid, which date shall occur after the delivery date under such Refinery Procurement Contract or Refinery Product Contract (unless otherwise expressly agreed by Aron).

“Product” means any of the petroleum products listed on Schedule A, as from time to time amended by mutual agreement of the Parties, excluding any Sludge.

“Product Buy Leg” has the meaning specified in Section 8.1(d).

“Product Group” means Crude Oil or a group of Products as specified on Schedule P.

“Product Linefill” means, at any time and for any grade of Product or Crude Oil, the aggregate volume of linefill of that Product or Crude Oil on the Included Pipelines for which Aron is treated as the exclusive owner by the Included Pipelines; provided that such volume shall be determined by using the volumes reported on the monthly or daily statements, as applicable, from the Included Pipelines.

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“Product Payment Undertaking” means, with respect to a Refinery Product Contract, a written undertaking by Aron in the form of Schedule AA, subject to revisions as reasonably necessary to account for payment due dates occurring prior to completion of delivery of Products to the Company or otherwise, in each case in form and substance satisfactory to Aron under which Aron irrevocably agrees to remit or cause or otherwise arrange for the remittance to the relevant Third Party Seller of funds sufficient to pay the Product Procurement Payment due to such Third Party Seller under such Refinery Product Contract on the relevant Procurement Due Date without discount, deduction, set-off or counterclaim; provided that (i) such remittance of the full Product Procurement Payment shall in no way limit the Company’s obligation hereunder to reimburse Aron therefor and to compensate Aron for any Ancillary Costs in connection therewith and (ii) in no event shall such undertaking obligate Aron to make, cause or arrange for any remittance of a prepayment under a Refinery Product Contract unless the Parties have agreed to such additional terms and conditions not inconsistent with the terms of this Agreement as Aron may, in its discretion, require in connection therewith.

“Product Price” means any Price applicable to a relevant Index Amount as shall be set forth on Schedule B and as may be adjusted from time to time pursuant to Section 7.4.

“Product Price Adjustment Settlement Amount” has the meaning specified in Schedule K.

“Product Procurement Fee” has the meaning specified in the Marketing and Sales Agreement.

“Product Procurement Payment” means, with respect to a Refinery Product Contract, the payment due to the Third Party Seller thereunder as reflected in the invoice provided by such Third Party Seller to the Company with respect to the volume of Products delivered thereunder to the Company.

“Product Sales Fee” has the meaning specified in the Marketing and Sales Agreement.

“Product Sell Leg” has the meaning specified in Section 8.1(d).

“Product Storage Facilities” means, collectively, Included Product Tanks and Included Product Pipelines.

“Products Delivery Point” means, with respect to any delivery of Product from an Included Location, (i) in the case of delivery from the Refinery Product Storage Tanks, (A) if the Product is to be transported via the Honolulu 10 Inch Pipeline, the last permanent flange of the Honolulu 10 Inch Pipeline and (B) if the Product is to be transported via any of the BPH Pipelines, the last permanent flange of the relevant BPH Pipeline, and (ii) in the case of delivery from any Product Storage Facility other than the Refinery Product Storage Tanks, the outlet flange of the Included Product Tank at such Product Storage Facility.

“Products Intake Point” means (i) in the case of the Refinery Product Storage Tanks, the inlet flange of the Refinery Product Storage Tanks and (ii) in the case of any Product Storage Facility other than the Refinery Product Storage Tanks, the inlet flange of the Included Product Tanks at such Product Storage Facility.

“Products Offtake Point” means the delivery point at which Aron transfers title to Products in accordance with sales transactions executed pursuant to the Marketing and Sales Agreement.

“Projected Monthly Run Volume” has the meaning specified in Section 7.2(a).

“Provisional Payment” has the meaning specified in Section 31.3.

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“Purchase Agreement Closing” means the Closing as defined in the Topping Unit Purchase Agreement.

“Purchase Agreement Closing Date” means December 19, 2018.

“Purchase Agreement Closing Inventory Sales Agreement” means the purchase and sale agreement, in form and in substance mutually agreeable to the Parties, dated as of the Purchase Agreement Closing Date, pursuant to which the Company is selling and transferring to Aron certain Hydrocarbon inventories at storage locations that, as of the Purchase Agreement Closing Date, will become Included Locations under this Agreement, free and clear of all Liens, other than Permitted S&O Liens.

“Receivables Collection Account” means the deposit account identified in and subject to a Deposit Account Control Agreement which is the exclusive account maintained by the Company for the collection of all its Accounts.

“Receivables Report” has the meaning specified in Section 11.4(a).

“Reference Time” with respect to any determination of the Benchmark means the time determined by Aron in accordance with the Benchmark Replacement Conforming Changes.

“Refinery” has the meaning specified in the recitals hereto; provided that from and after the Purchase Agreement Closing the term “Refinery” shall also include the Topping Unit Refinery Assets.

“Refinery Access Agreement” means the “Refinery Access Agreement” (as defined in the Topping Unit Purchase Agreement) that is to be entered into as of the Purchase Agreement Closing Date.

“Refinery Crude Purchase Fee” has the meaning specified in Schedule C.

“Refinery Crude Purchase Fee Price” has the meaning specified in the Fee Letter.

“Refinery Facilities” means (i) all the facilities located at the Refinery, and (ii) any associated or adjacent facility used by the Company to carry out the terms of this Agreement, excluding, however, the Crude Oil receiving and Products delivery facilities, pipelines, tanks and associated facilities which constitute the Storage Facilities.

“Refinery Procured Barrels” has the meaning specified in Section 5.3(g)(i).

“Refinery Procured Product Barrels” has the meaning specified in Section 8.1(c)(i).

“Refinery Procurement Contract” means a procurement contract entered into by the Company with any Third Party Supplier for the purchase by the Company of Crude Oil, which Crude Oil is to be resold by the Company to Aron at the time such Crude Oil passes the Crude Intake Point. The term “Refinery Procurement Contract” includes any LC Eligible Refinery Procurement Contract.

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“Refinery Product Contract” means a procurement contract entered into by the Company with any Third Party Seller for the purchase by the Company of Product, which Product is to be resold by the Company to Aron at the time such Product passes the Products Intake Point.

“Refinery Product Storage Tanks” means the Included Product Tanks owned by the Company and located adjacent to the Refinery used for the storage of Products, as identified on Schedule E.

“Refinery Property Lease” means the “Refinery Property Lease” (as defined in the Topping Unit Purchase Agreement) that is to be entered into as of the Purchase Agreement Closing Date.

“Regulatory Event” has the meaning specified in Section 9.6.

“Related Hedges” means any transactions from time to time entered into by Aron with third parties unrelated to Aron or its Affiliates to hedge Aron’s exposure resulting from this Agreement or any other Transaction Document and Aron’s rights and obligations hereunder or thereunder.

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or, in each case, any successor thereto.

“Remaining Tenor” has the meaning specified in Section 31.10(a).

“Renewable Fuel Standards” means the regulatory requirements set forth in 40 C.F.R. Part 80, Subpart M, §§ 80.1400 et seq.

“Required Storage and Transportation Arrangements” means such designations, acknowledgments and other binding contractual arrangements hereafter entered into, in form and substance reasonably satisfactory to Aron, pursuant to which the Company (or its Affiliates) hereafter shall provide Aron with the Company’s (or its Affiliates’) full right to use the third party Included Pipelines and third party Included Tanks, pursuant to the terms and conditions of the Base Agreements or such other agreements creating the Company’s rights in and to such facilities and the rights of existing third parties; provided that, without limiting the generality of the foregoing, Aron may require that the terms and conditions of any such contractual arrangement provide that (a) any third party thereto waive any Lien or charge that might apply to or be deemed to apply to any Crude Oil and/or Products of which Aron is the owner as contemplated by this Agreement and the other Transaction Documents, or to subordinate such Lien or charge to the Lien granted to Aron under the Lien Documents, and (b) the Company (or its Affiliate) agrees to provide Aron with such further documentation as it may reasonably request in order to confirm such waiver or subordination.

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“Reserves” means as of any date of determination, such amounts as Aron may from time to time establish in evaluating the eligibility of receivables or inventory in the context of secured financing transactions or the financial condition of the Company or any of its Subsidiaries, reducing the amount of Accounts that would otherwise be Eligible Receivables or any Hydrocarbons that would otherwise constitute Eligible Hydrocarbon Inventory: (a) to reflect events, conditions, contingencies or risks which, as reasonably determined by Aron, adversely affect or would have a reasonable likelihood of adversely affecting the financial condition of the Company, any of its Subsidiaries, or such Account or the amount that might be received by Aron, the Company or any of its Subsidiaries in connection with such Account, the sale or other disposition or realization upon such Account (but without duplication to the extent already addressed in the criteria which establishes Eligible Receivables) or (b) to reflect Aron’s belief that (1) any Collateral Report or financial information furnished by or on behalf of the Company or any of its Subsidiaries to Aron is incomplete, inaccurate or misleading in any material respect or (2) the information being used by Aron is no longer current as a result of any such Collateral Report or financial information not having been provided or having been provided after its required delivery date. Without limiting the generality of the foregoing, Reserves may, at Aron’s option, be established to reflect: (A) dilution with respect to the Accounts (based on the ratio of the aggregate amount of non-cash reductions in such Accounts for any period to the aggregate dollar amount of the sales for such period); (B) returns, discounts, claims (including, without limitation, warranty claims), credits and allowances of any nature that are not paid pursuant to the reduction of Accounts; or (C) sales, excise or similar taxes included in the amount of any such Accounts reported to Aron. To the extent that an event, condition or matter as to any Eligible Receivable or Eligible Hydrocarbon Inventory is addressed pursuant to the treatment thereof within the applicable definition of such term, Aron shall not also establish a Reserve to address the same event, condition or matter. The amount of any Reserve established by Aron shall have a reasonable relationship to the event, condition or other matter which is the basis for such Reserve as reasonably determined by Aron, in good faith in its reasonable credit judgment, taking into account the then current and reasonably anticipated financial condition of the Company or any of its Subsidiaries.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Company’s stockholders, partners or members (or the equivalent Person thereof).

“Revised Estimated Yield” has the meaning specified in Section 8.3(a).

“RINs” means any “renewable identification number” as defined in 40 C.F.R. § 80.1401 and regulated as part of Renewable Fuel Standards.

“Run-out Report” has the meaning specified in Section 7.3(a).

“Safe Harbor Agreements” has the meaning specified in Section 19.4(a)(i).

“Scheduled Price Adjustment Month” has the meaning specified in Section 7.4(d).

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Second Additional Posting Date” means March 1, 2019.

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“Second Restatement Effective Date” has the meaning specified in the introductory paragraph of this Agreement.

“Security Agreement” means that certain Third Amended and Restated Security Agreement dated the LC Facility Amendment Effective Date, among the Collateral Agent, the LC Facility Agent, Aron and the Company, as further amended, restated, supplemented or otherwise modified from time to time; provided that the foregoing constitutes an amendment and restatement of that certain Second Amended and Restated Pledge and Security Agreement by and between the Company and Aron, dated as of the Second Restatement Effective Date, and as further amended, restated, supplemented or otherwise modified prior to the LC Facility Amendment Effective Date.

“Services Agreement” means the Services Agreement, dated as of the Purchase Agreement Closing Date, by and among IES Downstream, Eagle Island and the Company.

“Settlement Amount” has the meaning specified in Section 19.2(b).

“Shortfall Settlement Date” means, for any Forward Delivery Month in which a Monthly Volumetric Shortfall occurs, the same day as the Monthly True-up Amount for such month is due under Section 10.2 hereof.

“Shortfall Value” has the meaning specified in Section 31.5(a).

“Sludge” means a semi-solid slurry consisting of hydrocarbons, sediment, paraffin and water, produced from a process or as a result of solids separated from suspension in a liquid.

“SOFR” means, with respect to any day, the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website; provided, however, that if SOFR as determined would be less than the Floor for any calculation period under the Agreement, SOFR will be the Floor for such period.

“SOFR Adjustment” means 0.26161% per annum.

“SOFR Advance” means a Discretionary Draw Advance bearing interest at a rate determined by reference to SOFR Rate.

“SOFR Rate” means the sum of: (a) Compounded SOFR, and (b) the SOFR Adjustment.

“Sourcing Transaction” has the meaning specified in Section 18.2(r).

“Specified Hedging Agreement” means a Hedging Agreement that is a Crack Spread Hedge, a time spread hedge or a grade or basis differential hedge.

“Specified Government Accounts” means Accounts owing directly by DLA Energy to the Company under a prime contract entered between DLA Energy and the Company.

“Specified Schedule” has the meaning specified in Section 30.9.

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“Specified Schedule Change” has the meaning specified in Section 30.9.

“Specified Transaction” means (a) any transaction (including an agreement with respect thereto) now existing or hereafter entered into between Aron (or any of its Designated Affiliates) and the Company (or any of its Designated Affiliates) (i) which is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, commodity spot transaction, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, weather swap, weather derivative, weather option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions) or (ii) which is a type of transaction that is similar to any transaction referred to in clause (i) that is currently, or in the future becomes, recurrently entered into the financial markets (including terms and conditions incorporated by reference in such agreement) and that is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, or economic indices or measures of economic risk or value, (b) any combination of these transactions and (c) any other transaction identified as a Specified Transaction in this agreement or the relevant confirmation; provided that neither the Commodity Forward Agreement nor any Commodity Forward Transaction shall constitute a Specified Transaction.

“SPM” means the self-contained single-point mooring buoy offshore terminal facility maintained by the Company offshore of the Refinery for the purposes of mooring and transferring Crude Oil and Product cargoes from oceangoing vessels.

“SPM Buy/Sell Crude Transaction” has the meaning specified in Section 5.3(e).

“SPM Buy/Sell Product Transaction” has the meaning specified in Section 8.1(d).

“SPM Buy/Sell Transaction” means any SPM Buy/Sell Crude Transaction or SPM Buy/Sell Product Transaction.

“SPM Delivery Point” means, with respect to any Aron Procurement Contract that contemplates delivery at the SPM, the delivery point specified in such Aron Procurement Contract at which title to the Crude Oil or Products being sold thereunder is to be transferred from the Third Party Supplier thereunder to Aron.

“SPM Master Buy/Sell Crude Confirmation” means the master confirmation for SPM Buy/Sell Crude Transactions in the form provided on Schedule W.

“SPM Master Buy/Sell Product Confirmation” means the master confirmation for SPM Buy/Sell Product Transactions in the form provided on Schedule W.

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“Step-Out Inventory Sales Agreement” means the purchase and sale agreement, in the form provided on Schedule R, to be dated as of the Termination Date, pursuant to which the Company shall buy Crude Oil and Products from Aron subject to the provisions of this Agreement and any other terms agreed to by the Parties thereto.

“Storage Facilities” means the storage, loading and offloading facilities located at the Refinery including the Crude Storage Tanks and the Refinery Product Storage Tanks and the land, piping, marine facilities, truck facilities and other facilities related thereto, together with existing or future modifications or additions, which are excluded from the definition of Refinery. In addition, the term “Storage Facilities” includes all other Company Included Locations, except those storage, loading and offloading facilities which are used exclusively to store Excluded Materials.

“Storage Facilities Agreement” means the storage facilities agreement, in form and substance mutually agreeable to the Parties, dated as of the Commencement Date (as amended and restated on the Second Restatement Effective Date (the “Amended and Restated Storage Facilities Agreement”)), between the Company and Aron, pursuant to which the Company has granted to Aron an exclusive right to use the Storage Facilities (to the extent that such exclusive right can be granted) in connection with this Agreement; provided that such storage facilities agreement shall also grant Aron the right to use the SPM for receiving delivery of material to the extent contemplated by this Agreement, it being acknowledged that Aron shall only receive and concurrently transfer to the Company title to materials delivered at the SPM Delivery Point and shall not at any time hold, store or transport any materials at or through the SPM or the pipelines, hoses and other infrastructure connecting the SPM to the Crude Storage Tanks or Refinery Product Storage Tanks.

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

“Supplier’s Inspector” means any Person selected by Aron in a commercially reasonable manner that is acting as an agent for Aron or that (1) is a licensed Person who performs sampling, quality analysis and quantity determination of the Crude Oil and Products purchased and sold hereunder, (2) is not an Affiliate of any Party and (3) in the reasonable judgment of Aron, is qualified and reputed to perform its services in accordance with Applicable Law and industry practice, to perform any and all inspections required by Aron.

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“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, including any such obligations or liabilities under any such agreement.

“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, (i) 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 (ii) for any date prior to the date referenced in clause (i), 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 Aron or any Affiliate of Aron).

“Synthetic Lease Obligation” means the monetary obligation of a Person under (i) a so-called synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Tank Maintenance” has the meaning specified in Section 9.5(c).

“Target Month End Crude Volume” has the meaning specified in Section 7.2(b).

“Target Month End Product Volume” has the meaning specified in Section 7.3(b).

“Tax” or “Taxes” has the meaning specified in Section 15.1(a).

“Term” has the meaning specified in Section 3.1.

“Term Loan Agreement” has the meaning specified in Section 18.5(c)(ii)(P).

“Termination Amount” means, without duplication, the total net amount owed by one Party to the other Party upon termination of this Agreement under Section 20.2(a).

“Termination Date” has the meaning specified in Section 20.1.

“Termination Date Crude Oil Volumes” has the meaning specified in Section 20.1(d).

“Termination Date Product Volumes” has the meaning specified in Section 20.1(d).

“Termination Date Volumes” has the meaning specified in Section 20.1(d).

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“Termination Reconciliation Statement” has the meaning specified in Section 20.2(c).

“Third Additional Posting Date” means June 3, 2019.

“Third Party Seller” means any seller of Product under a Refinery Product Contract (other than the Company or any Affiliate of the Company).

“Third Party Supplier” means any seller of Crude Oil under a Procurement Contract (other than the Company or any Affiliate of the Company).

“Topping Unit Purchase Agreement” means that certain Topping Unit Purchase Agreement, dated as of August 29, 2018, by and among IES Downstream, Eagle Island, the Company and, for the limited purposes specified therein, Par Pacific Holdings, Inc., as amended, supplemented or otherwise modified from time to time.

“Topping Unit Refinery Assets” means, collectively, the Topping Units, the Facilities and Equipment and the Transferred Real Property (each as defined in the Topping Unit Purchase Agreement).

“Topping Units” has the meaning specified in the Topping Unit Purchase Agreement.

“Transaction Commencement Date” has the meaning specified in Section 31.2.

“Transaction Cutoff Date” has the meaning specified in Section 31.9.

“Transaction Document” means any of this Agreement, Marketing and Sales Agreement, the Inventory Sales Agreements, the Storage Facilities Agreement, the Step-Out Inventory Sales Agreement, the Required Storage and Transportation Arrangements, the Fee Letter, any SPM Master Buy/Sell Crude Confirmation, any SPM Master Buy/Sell Product Confirmation, the Lien Documents, the Guaranty and any other agreement or instrument contemplated hereby or executed in connection herewith, including any guarantees or other credit support documents as may be from time to time provided by the Company and/or its Affiliates; provided that, it is agreed that the Master Agreement is not and shall not be deemed to constitute a Transaction Document.

“Transition Adjustment Amount” has the meaning specified on Schedule Z hereto.

“Transition Terminalling Agreement” has the meaning specified in the Topping Unit Purchase Agreement.

“U.S. Governmental Authority” means the federal government of the United States of America or any agency or instrumentality thereof or any state of the United States of America approved by Aron or any agency or instrumentality thereof.

“USOR” means U.S. Oil & Refining Co., a Delaware corporation.

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“Volume Determination Procedures” means (a) in respect of determining the NSV of Crude Oil in the Crude Storage Tanks or Products in the Included Company Product Tanks, the Company’s ordinary daily and month-end procedures, which may include manual gauging by an Independent Inspection Company (as provided in Section 12.5) of each Crude Storage Tank or Included Company Product Tank at the end of each calendar quarter to ensure that the automated tank level readings are accurate to within a tolerance of two inches; provided that if the automated reading cannot be calibrated to be within such tolerance, the Company shall use the manual gauge reading in its calculation of month-end inventory; (b) in respect of determining the NSV of Products in the Included Third Party Product Tanks or Crude Oil in the Included Third Party Crude Tanks, using the volumes reported on the most recently available daily reports or monthly statements in respect of such tanks; and (c) in respect of the linefill in the Company-owned Included Pipelines, such pipelines shall be deemed full, except when products owned by third parties are flowing through such pipelines.

1.2    Construction of Agreement.

(a)    Unless otherwise specified, reference to, and the definition of any document (including this Agreement) shall be deemed a reference to such document as may be, amended, supplemented, revised or modified from time to time.

(b)    Unless otherwise specified, all references to an “Article,” “Section,” or “Schedule” are to an Article or Section hereof or a Schedule attached hereto.

(c)    All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.

(d)    Unless expressly provided otherwise, the word “including” as used herein does not limit the preceding words or terms and shall be read to be followed by the words “without limitation” or words having similar import.

(e)    Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively.

(f)    Unless expressly provided otherwise, references herein to “consent” mean the prior written consent of the Party at issue, which shall not be unreasonably withheld, delayed or conditioned.

(g)    A reference to any Party to this Agreement or another agreement or document includes the Party’s permitted successors and assigns.

(h)    Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender.

(i)    Except where specifically stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or re-enacted from time to time.

(j)    Unless otherwise expressly stated herein, any reference to “volume” shall be deemed to refer to actual NSV, unless such volume has not been yet been determined, in which case, volume shall be an estimated net volume determined in accordance with the terms hereof.

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(k)    The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(l)    Any reference to the “prior month” means the period from and including the Commencement Date of the Original Agreement (as defined therein) to and including the day immediately preceding the Commencement Date.

1.3    The Parties acknowledge that they and their counsel have reviewed and revised this Agreement and that no presumption of contract interpretation or construction shall apply to the advantage or disadvantage of the drafter of this Agreement.

ARTICLE 2

CONDITIONS PRECEDENT

2.1    Conditions Relating to Second Amended and Restated Supply and Offtake Agreement. In connection with and as a condition to the execution by the Parties of the amendment and restatement of this Agreement on the Second Restatement Effective Date:

(a)    The Parties have entered into this Agreement, the Second Amended and Restated Pledge and Security Agreement, the Amended and Restated Fee Letter, the Amended and Restated Storage Facilities Agreement and the Amended and Restated Marketing and Sales Agreement;

(b)    The Guarantor shall have executed and delivered the Guaranty;

(c)    The Company has provided to Aron confirmation, in form and substance satisfactory to Aron, that all Transaction Documents remain in full force and effect;

(d)    The Parties have prepared and appended hereto a full amended and restated set of Schedules;

(e)    To the extent required by Aron, updated and amended UCC filings shall have been filed;

(f)    The Company and the Guarantor shall have provided certified board resolutions authoring the amendment and restatement contemplated hereby and transactions subject hereto and to the other Transaction Documents to be entered into on the Second Restatement Effective Date;

(g)    The Company and the Guarantor shall have delivered to Aron a certificate signed by an appropriate officer of the Company certifying as to incumbency, due authorization, board approval and resolutions;

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(h)    The Company shall have delivered to Aron an opinion of counsel, in form and substance satisfactory to Aron, covering such matters as Aron shall reasonably request, including: good standing; existence and due qualification; power and authority; due authorization and execution; enforceability; and no conflicts with respect to the Indentures, the ABL Facility and the Term Loan Agreement; provided that, subject to Aron’s consent, certain of such opinions may be delivered by the General Counsel of the Company;

(i)    No action or proceeding shall have been instituted nor shall any action by a Governmental Authority be threatened, nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority as of the Second Restatement Effective Date to set aside, restrain, enjoin or prevent the transactions and performance of the obligations contemplated by this Agreement or any other Transaction Documents;

(j)    Neither the Refinery nor any of the Included Locations shall have been affected adversely or threatened to be affected adversely by any loss or damage, whether or not covered by insurance, unless such loss or damages would not have a Material Adverse Effect on the usual, regular and ordinary operations of the Refinery or the Included Locations;

(k)    The Company shall have delivered to Aron insurance certificates evidencing the effectiveness of the insurance policies and endorsements required pursuant to Article 16 on the Second Restatement Effective Date;

(l)    Since December 31, 2020, there shall not have been the occurrence of any Material Adverse Effect;

(m)    Aron shall have received the results of a search of the UCC (or equivalent) filings made with respect to the Company in the State of Hawaii and copies of the financing statements (or similar documents) disclosed by such search;

(n)    (i) All representations and warranties of the Company and its Affiliates contained in the Transaction Documents shall be true and correct on and as of the Second Restatement Effective Date and (ii) no Default or Event of Default in respect of the Company shall have occurred, and the Company shall have delivered to Aron a certificate in respect of the foregoing;

(o)    Aron shall have received from the Company payment of or reimbursement for all fees, costs, and expenses (including all reasonable attorneys’ fees and expenses which shall be directly paid by the Company to Aron’s counsel) incurred by Aron in connection with the negotiation, preparation and execution of this Agreement and all other documents and transactions being executed in connection herewith (including all such fees and expenses due and owing pursuant to the Exclusivity and Expense Reimbursement Agreement, dated as of April 1, 2021, between the Company and Aron); and

(p)    Aron shall have received payment of all fees, expenses and other amounts due and payable by the Company on or prior to the Second Restatement Effective Date.

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2.2    Conditions to Discretionary Draw Advance. Aron shall only be obligated to make an advance constituting a Discretionary Draw Advance or an Incremental Discretionary Draw Amount pursuant to Section 11.1 on or after July 1, 2021 and such obligations of Aron shall be subject to satisfaction by the Company of the conditions precedent set forth in Section 2.1 relating to the occurrence of the Second Restatement Effective Date and the following conditions precedent:

(a)    Aron shall have received a duly delivered Inventory Report in advance of the Credit Date in accordance with Section 11.4(a);

(b)    Aron shall have received a duly delivered Receivables Report in advance of the Credit Date in accordance with Section 11.4(a);

(c)    Aron shall have received a duly delivered Discretionary Draw Election Report, no later than 4:00 p.m. (EST) at least two (2) Business Days prior to the Credit Date, via e-mail, showing the total principal amount of the Discretionary Draw Advance then outstanding, after giving effect to an advance constituting a Discretionary Draw Advance requested to be made on such Credit Date, which Discretionary Draw Election Report shall be subject to the calculations set forth in Schedule C; provided that, in the event that Aron fails to receive a duly delivered Discretionary Draw Election Report by such time, the amount of the advance constituting a Discretionary Draw Advance requested to be made on such Credit Date shall be determined by the number in the most recently received Discretionary Draw Election Report received by Aron prior to such Credit Date;

(d)    after making the Incremental Discretionary Draw Amount requested on such Credit Date, the Discretionary Draw Advance shall not exceed the Discretionary Draw Availability as of such date;

(e)    as of such Credit Date, the representations and warranties contained herein and in the other Transaction Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality, Material Adverse Effect or other like term in the text thereof; and

(f)    prior to, as of, and after giving effect to the advance constituting a Discretionary Draw Advance to be made or increased on such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable advance constituting a Discretionary Draw Advance that would constitute an Event of Default or a Default.

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2.3    Post-Commencement Date Undertakings. From and after the Commencement Date, the Company may endeavor to negotiate and implement designations and other binding contractual arrangements, in form and substance reasonably satisfactory to Aron, pursuant to which the Company may transfer and assign to Aron the Company’s (or its Affiliates’) right to use any storage or transportation facility as may hereafter be identified by the Company; provided that (i) upon and concurrently with implementing any such assignment, designation or arrangement, any such storage or transportation facility shall be added to the appropriate Schedule hereto as an additional Included Crude Tank, Included Product Tank or Included Pipeline, as applicable, and such assignment, designation or arrangement shall constitute a Required Storage and Transportation Arrangement hereunder; (ii) to the extent requested by Aron, the Parties shall amend the Company Inventory Sales Agreement and any other applicable Transaction Document to include any inventory transferred to Aron as a result of such assignment, designation or arrangement; and (iii) without limiting the generality of the foregoing, the addition of an Included Location shall be subject to acceptance by Aron and satisfaction of Aron’s Policies and Procedures (as defined in Section 14.4(a) below), which shall be applied in a nondiscriminatory manner as provided in Section 14.4(b)(i) below. In addition, if the relevant storage or transportation facility fails to satisfy Aron’s Policies and Procedures, then, upon the Company’s request, Aron shall consult with the Company in good faith to determine whether based on further information provided by the Company such storage or transportation facility complies with Aron’s Policies and Procedures and/or whether additional actions or procedures can be taken or implemented so that, as a result, such storage or transportation facility would comply with Aron’s Policies and Procedures and, based on such further information and/or the implementation of such additional actions or procedures, Aron will from time to time reconsider whether such storage or transportation facility satisfies clause (iii) above.

2.4    UCC Filings.

(a)    From and after the Commencement Date, the Company will cooperate with Aron to cause to be prepared, and filed, in such jurisdictions as Aron shall deem necessary or appropriate, UCC-1 financing statements reflecting (i) Aron as owner of all Crude Oil and Products in the Included Locations and (ii) Aronthe Collateral Agent, as a secured party with respect to the Collateral, to perfect Aron’s security interest under the Lien Documents. Thein the Collateral. Subject to the Security Agreement and the Collateral Agency Agreement, the Company shall execute and deliver to Aron, and the Company hereby authorizes Aron to file (with or without the Company’s signature), at any time and from time to time, all such financing statements, amendments to financing statements, continuation financing statements, termination statements, relating to such Crude Oil and Products and the Collateral, and other documents and instruments, all in form satisfactory to Aron, as Aron may request, to confirm Aron’s ownership of such Crude Oil and Products and to otherwise accomplish the purposes of this Agreement and as required pursuant to the Lien Documents.

(b)    Without limiting the generality of the foregoing, the Company ratifies and authorizes the filing by Aron of any financing statements filed prior to the Commencement Date.

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2.5    Status of Certain Conditions and Other Provisions. The Parties acknowledge that the Commencement Date occurred on June 1, 2015 (the “Commencement Date”) under the Original Agreement and that, on and as of such date, various conditions were satisfied and other provisions complied with as contemplated under the Original Agreement, including the determinations, transfer and payments contemplated under Article 4. The Parties acknowledge that the First Restatement Effective Date occurred on December 21, 2017 under the First Amended and Restated S&O Agreement and that, on and as of such date, various conditions were satisfied and other provisions complied with as contemplated under the Original Agreement. The Parties acknowledge that the Purchase Agreement Closing Date occurred on December 19, 2018 and that, on and as of such date, various conditions were satisfied and other provisions complied with as contemplated under the First Amended and Restated S&O Agreement.

ARTICLE 3

TERM OF AGREEMENT

3.1    Term. The Original Agreement became effective on the Original Effective Date with the Commencement Date (as acknowledged in Section 2.5 above) occurring on June 1, 2015. This Agreement constitutes a continuation of the term of the Original Agreement and the First Amended and Restated S&O Agreement and, subject to Section 3.2, shall continue for a period ending at 11:59:59 p.m., EST on May 31, 2024 (the “Term”; the last day of such Term being herein referred to as the “Expiration Date,” except as provided in Section 3.2 below).

3.2    Changing the Term. The Parties may, no later than one hundred twenty (120) days prior to the then current Expiration Date, by mutual agreement, elect to extend the Term of this Agreement for an additional one year period following such current Expiration Date and, upon the effectiveness of such mutual agreement, the last day of such additional one year period shall be the Expiration Date hereunder.

3.3    Early Termination Option. The Company may terminate this Agreement prior to the Expiration Date referred to in Section 3.1 solely on the following terms and conditions:

(a)    On or prior to January 14, 2022, the Company shall notify Aron of its intention to terminate this Agreement effective as of May 31, 2022 in which case, in addition to any amounts owed by the Company to Aron or by Aron to the Company (as determined in accordance with Article 20), the Company shall pay to Aron an early termination fee equal to $10,000,000.00 on such date.

(b)    On or prior to January 13, 2023, the Company shall notify Aron of its intention to terminate this Agreement effective as of May 31, 2023 in which case, in addition to any amounts owed by the Company to Aron or by Aron to the Company (as determined in accordance with Article 20), the Company shall pay to Aron an early termination fee equal to $5,000,000.00 on such date.

(c)    THE EARLY TERMINATION FEES PROVIDED FOR IN THIS SECTION 3.3 ARE DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, AND THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT SUCH EARLY TERMINATION FEES ARE INTENDED TO BE A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY.

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3.4    FTZ Designation Change. If any Included Location is determined to no longer be within the FTZ, the Company shall promptly notify Aron of such determination.

(a)    If fewer than five (5) Included Locations in the aggregate since the Second Restatement Effective Date have been determined to no longer be within the FTZ, Aron shall have the option to cease purchasing Product from the Company held at the affected Included Locations and/or modify this Agreement to provide for a lien-based intermediation facility with respect to such affected Included Locations.

(b)    If five (5) or more Included Locations in the aggregate since the Second Restatement Effective Date have been determined to no longer be within the FTZ, Aron shall have the option to cease purchasing Product from the Company held at the affected Included Locations and any other Included Locations and/or modify this Agreement to provide for a lien-based intermediation facility with respect to such Included Locations, or terminate this Agreement in which case this Agreement shall be terminated in accordance with Article 20. In the event Aron elects not to exercise any such option pursuant to the immediately preceding sentence, the Company may terminate this Agreement by notice to Aron specifying a termination date occurring on the date that is the later of (i) 30 days following the date such notice is given and (ii) the last Business Day of the immediately following calendar month, in which case this Agreement shall be terminated in accordance with Article 20.

(c)    Any notice by Aron of any election pursuant to clauses (a) or (b) above shall specify an effective date therefor or termination date of this Agreement, as the case may be, occurring on the date that is the later of (i) 30 days following the date such notice is given and (ii) the last Business Day of the immediately following calendar month.

3.5    Applicability of Schedules; Schedule K. For all purposes of this Agreement and any other Transaction Documents: (i) with respect to the period from the Second Restatement Effective Date to the Adjustment Date, Schedule A shall mean Schedule A-1 hereto, Schedule B shall mean Schedule B-1 hereto, Schedule C shall mean Schedule C-1, Schedule D shall mean Schedule D-1 hereto, Schedule P shall mean Schedule P-1 hereto, and Schedule X shall mean Schedule X-1 hereto and (ii) with respect to the period from and after the Adjustment Date, Schedule A shall mean Schedule A-2 hereto, Schedule B shall mean Schedule B-2 hereto, Schedule C shall mean Schedule C-2, Schedule D shall mean Schedule D-2 hereto, Schedule P shall mean Schedule P-2 hereto, and Schedule X shall mean Schedule X-2 hereto. Notwithstanding anything herein to the contrary, the price adjustment procedures set forth in Schedule K shall be used to determined Crude Price and Product Price, effective as of July 1, 2021.

3.6    Obligations upon Termination. In connection with the termination of the Agreement on the Expiration Date, the Parties shall perform their obligations relating to termination pursuant to Article 20.

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ARTICLE 4

COMMENCEMENT DATE TRANSFER

4.1    Transfer and Payment on the Commencement Date. The Parties acknowledge that Aron’s obligations hereunder shall commence on the Commencement Date only if the Commencement Date Volumes shall be sold and transferred to Aron as provided under the Inventory Sales Agreements, against payment of the Estimated Commencement Date Value made as provided therein.

4.2    Post-Commencement Date Reconciliation and True-Up. The Parties further acknowledge that the determination and payment of the Definitive Commencement Date Value shall be made as provided in the Inventory Sales Agreements.

4.3    Initial Margin Amount.

(a)    The Company shall post with Aron on the Commencement Date and maintain during the Term cash in the amount of $7,033,475 or, from and after the Additional Posting Date, such greater amounts as are required under Section 4.3(b) below (each such amount, an “Initial Margin Amount”); provided, as further agreed by the Parties, all or a portion of such amount may be posted by Aron holding back a portion of the amount payable to the Company under the Company Inventory Sales Agreement.

(b)    The Company further agrees that:

(i)    on the First Additional Posting Date, the Company shall post with Aron cash in an additional amount of $1,250,000.00, so that the Company shall have posted and shall thereafter maintain from and after the First Additional Posting Date to but not including the Second Additional Posting Date an Initial Margin Amount of $8,283,475 in total;

(ii)    on the Second Additional Posting Date, the Company shall post with Aron in cash an additional amount of $500,000.00, so that the Company shall have posted and shall thereafter maintain from and after the Second Additional Posting Date to but not including the Third Additional Posting Date an Initial Margin Amount of $8,783,475 in total; and

(iii)    on the Third Additional Posting Date, the Company shall post with Aron in cash an additional amount of $750,000.00, so that the Company shall have posted and shall thereafter maintain for the remainder of the Term an Initial Margin Amount of $9,533,475.00 in total.

(c)    The Initial Margin Amount shall (i) constitute credit support for all of the Company’s obligations under the Transaction Documents, (ii) be subject to the applicable provisions of this Agreement, including Section 13.4(a), and (iii) except as otherwise applied in accordance with the terms of the Transaction Documents, be returned to the Company only if the Transaction Documents have been terminated and all the Company’s obligations under the Transactions Documents have been satisfied in full.

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4.4    Transition Adjustment Amount. Promptly after the Commencement Date, Aron shall determine in accordance with the procedure and methodology set forth on Schedule Z hereto the Transition Adjustment Amount and, after such determination is made, Aron shall provide to the Company written notice of such amount, together with a statement setting forth in reasonable detail Aron’s calculation thereof. If such notice is given at least two Business Days prior to the date on which payment with respect to the Definitive Commencement Date Value is to be made under the Inventory Sales Agreement, then the Party obligated to pay such Transition Adjustment Amount (as provided on Schedule Z) shall pay such amount on such payment date under the Inventory Sales Agreement and, to the extent appropriate, the Transition Adjustment Amount shall be aggregated with or netted against the amount being paid by one Party to the other under the Inventory Sales Agreement. If such notice is given at a later date than specified in the preceding sentence, then the Party obligated to pay the Transition Adjustment Amount (as provided in Schedule Z) shall be obligated to pay such amount no later than the second Business Day following the date such notice is given.

ARTICLE 5

PURCHASE AND SALE OF CRUDE OIL

5.1    Sale of Crude Oil. On and after the Commencement Date through the end of the Term, and subject to (a) Aron’s ability to procure Crude Oil in accordance with the terms hereof, (b) its receipt of Crude Oil under Aron Procurement Contracts and (c) the Company’s maintenance of the Base Agreements and Required Storage and Transportation Arrangements, if any, and compliance with the terms and conditions hereof, Aron will endeavor, in a commercially reasonable manner, to enter into Aron Procurement Contracts which will accommodate, in the aggregate, monthly deliveries of Crude Oil of up to an average of one-hundred fifty thousand (150,000) Barrels per day and the Company agrees to purchase and receive from Aron all such Crude Oil as provided herein. Aron shall, in accordance with the terms and conditions hereof, have the right to be the exclusive owner of Crude Oil in the Included Crude Tanks. Notwithstanding anything herein to the contrary, unless otherwise agreed to in writing by Aron, all Crude Oil procured by Aron hereunder shall be delivered to an Included Location.

5.2    Monthly Forecasts and Projections.

(a)    No later than the fifth (5^th) Business Day of the month preceding a Delivery Month, the Company shall provide Aron with a preliminary written forecast of the Target Month End Crude Volume and Target Month End Product Volume for the Delivery Month. During the first (1^st) month of deliveries of Crude Oil made pursuant to this Agreement, the Target Month End Crude Volume and Target Month End Product Volume shall be the amounts set forth on Schedule I.

(b)    No later than the fifth (5^th) Business Day of the month preceding a Delivery Month, the Company shall provide Aron with a written forecast of the Refinery’s anticipated Crude Oil requirements for the following Delivery Month and the immediately following month (each, a “Monthly Crude Forecast”).

(c)    [Reserved].

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(d)    The Company shall promptly notify Aron in writing upon learning of any material change in any Monthly Crude Forecast or if it is necessary to delay any previously scheduled pipeline nominations.

(e)    The Parties acknowledge that the Company is solely responsible for providing the Monthly Crude Forecast and for making any adjustments thereto, and the Company agrees that all such forecasts and projections shall be prepared in good faith, with due regard to all available and reliable historical information and the Company’s then-current business prospects, and in accordance with such standards of care as are generally applicable in the U.S. oil refining industry; provided, however, the Parties acknowledge and agree that such forecasts and projections are only estimates, and the Company shall have no liability to Aron for any differences between such forecasts and projections provided by Producer in good faith and the actual crude requirements or runs. The Company acknowledges and agrees that (i) Aron shall be entitled to rely and act, and shall be fully protected in relying and acting, upon all such forecasts and projections, and (ii) Aron shall not have any responsibility to make any investigation into the facts or matters stated in such forecasts or projections.

5.3    Procurement of Crude Oil.

(a)    As of the Commencement Date, Aron may have entered into or novated from the Existing Supplier/Offtaker one or more Aron Procurement Contracts for the purchase of Crude Oil to be processed at the Refinery.

(b)    From time to time during the Term of this Agreement, the Company may propose that one or more additional Aron Procurement Contracts be entered into, including any such additional Aron Procurement Contract as may be entered into in connection with the expiration of an outstanding Aron Procurement Contract. If the Parties mutually agree to seek additional Aron Procurement Contracts, then the Company shall endeavor to identify quantities of Crude Oil that may be acquired from one or more Third Party Suppliers under contracts that provide for one or more shipment(s) of Crude Oil. The Company may negotiate with any such Third Party Supplier regarding the price and other terms of such potential additional Aron Procurement Contract. The Company shall have no authority to bind Aron to, or enter into on Aron’s behalf, any additional Aron Procurement Contract or Procurement Contract Assignment, and the Company shall not represent to any third party that it has such authority. If the Company has negotiated an offer from a Third Party Supplier for an additional Aron Procurement Contract (and if relevant, Procurement Contract Assignment) that the Company wishes to be executed, the Company shall (i) apprise Aron in writing, using the applicable trade sheet included in Schedule Q (the “Crude Procurement Request”), of the terms of such offer, and (ii) arrange to have such Third Party Supplier provide to Aron a confirmation of the applicable terms (which confirmation may be provided over email), and Aron shall promptly, but no later than two (2) Business Days after the Company’s delivery of such applicable trade sheet (at which time the Crude Procurement Request shall terminate), determine and advise the Company as to whether Aron desires to accept such offer (provided that if Aron does not advise the Company within such two (2) Business Day period, Aron shall have been deemed to not accept such offer). If Aron indicates its desire to accept such offer, then Aron shall promptly endeavor to formally communicate its acceptance of such offer to the Company and such Third Party Supplier so that the Third Party Supplier and Aron may enter into a binding additional Aron Procurement Contract (and if relevant, Procurement Contract Assignment) provided that any additional Aron Procurement Contract (and, if relevant, related Procurement Contract Assignment) shall require Aron’s express agreement and Aron shall not have any liability under or in connection with this Agreement if for any reason it, acting in good faith, does not agree to any proposed additional Aron Procurement Contract or related Procurement Contract Assignment. If any Aron Procurement Contract is a term contract pursuant to which Aron may, from time to time, nominate a shipment by a Nomination Cutoff Date for expected delivery during a designated month, Aron will apprise the Company of such timing requirements relating to such Nomination Cutoff Date. The Company acknowledges that the confirmation of an Aron Procurement Contract with a Third Party Supplier may be effected by Exchanged Confirmations.

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(c)    Aron may, in its discretion, acting in good faith, elect to reject any such offer to enter into an Aron Procurement Contract, provided that from time to time during the Term hereof Aron shall, upon the reasonable request of the Company, consult with the Company regarding those counterparties that Aron would be prepared to trade with as of the time of such consultation upon review of acceptable documentation as further contemplated herein. Aron’s decision to reject any such offer shall be based on such factors and considerations as Aron deems relevant, which may include (without limitation) the proposed commercial terms, credit considerations (including credit quality and credit limits), reputational considerations, prior or current interactions between Aron and the proposed Third Party Supplier, the presence or absence of trading documentation between Aron and the proposed Third Party Supplier, the presence or absence of a pre-existing trading relationship with the proposed Third Party Supplier or the suitability of the proposed Third Party Supplier for such transaction. Without limiting the foregoing, any proposed Third Party Supplier shall be required to satisfy Aron's internal requirements and policies as they relate to any applicable "know-your-customer" rules, anti-money laundering policies and procedures, laws, rules and regulations (including without limitation, the Patriot Act, rules and regulations of the Office of Foreign Assets Control) and other similar client identification and business conduct standard and dealing policies and procedures (including reputational considerations), in each case, as consistently applied by Aron and to have provided to Aron all material documentation and other information required by such policies and procedure and applicable regulatory authorities. Notwithstanding the foregoing, Aron shall not reject any such offer to enter into an Aron Procurement Contract with any counterparty based solely on the fact that such offer was presented to it by the Company hereunder where, at such time, Aron would otherwise have transacted with such counterparty on such terms and under all other applicable policies and limitations.

(d)    If the Company determines, in its reasonable judgment, that it is commercially beneficial for the Refinery to run a particular grade and/or volume of Crude Oil that is available from a Third Party Supplier that is not a counterparty with which Aron is then prepared to enter into a contract, then the Company may execute a Refinery Procurement Contract to acquire such Crude Oil for the Company’s account, with such Crude Oil constituting Other Barrels pursuant to Section 5.3(g)(ii) below.

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(e)    With respect to each shipment of Crude Oil delivered under an Aron Procurement Contract and/or a Procurement Contract Assignment that provides for delivery at the SPM Delivery Point, (i) the Company and Aron shall automatically be deemed to have entered into a buy/sell transaction (each, an “SPM Buy/Sell Crude Transaction”) subject to and in accordance with the terms and conditions of the SPM Master Buy/Sell Crude Confirmation, with the Company buying such shipment of Crude Oil from Aron at the SPM Delivery Point (the “Crude Buy Leg”) and selling an equal quantity and quality of Crude Oil to Aron at the Crude Intake Point (the “Crude Sell Leg”), (ii) under the Crude Buy Leg of each SPM Buy/Sell Crude Transaction, the Company shall purchase from Aron the quantity of Crude Oil delivered under the relevant shipment with delivery and transfer of title and risk of loss all occurring at the SPM Delivery Point on the same basis as transfer of title and risk of loss are to occur under the Aron Procurement Contract and/or a Procurement Contract Assignment so that, simultaneously with the transfer of title to such Crude Oil from the Third Party Supplier to Aron, title to such Crude Oil is transferred from Aron to the Company and (iii) under the Crude Sell Leg of such SPM Buy/Sell Crude Transaction, the Company shall sell to Aron Crude Oil in a quantity equal to, and of a grade and quality at least equivalent to, that of the Crude Oil purchased by the Company under the Crude Buy Leg of such SPM Buy/Sell Crude Transaction, with delivery and transfer of title and risk of loss occurring at and as such Crude Oil passes the Crude Intake Point. With respect to each SPM Buy/Sell Crude Transaction, the parties acknowledge and agree that (A) any quantity shortfall, or grade or quality deficiency, with respect to the Crude Oil delivered under the Crude Sell Leg shall be borne by and is solely for the account of the Company, (B) as a result of the foregoing arrangements, title to Crude Oil shall be held exclusively by the Company at all times as and after such Crude Oil passes the SPM Delivery Point, while such Crude Oil is being held in or transported by any subsea hoses, subsea pipelines or other infrastructure connecting the SPM Delivery Point to the Crude Intake Point and until such Crude Oil passes the Crude Intake Point, (C) all such Crude Oil in which the Company holds title shall be subject to the security interest and lien in favor of Aronthe Collateral Agent under the Lien Documents, subject to the Collateral Agency Agreement, (D) for purposes of calculating inventory measurements, determining cash settlements under Sections 10.1 and 10.2 and calculating any fees due hereunder or under any other Transaction Document, quantities of Crude Oil in which the Company has title as contemplated by clause (B) above shall not be counted as quantities of Crude Oil held in an Included Location and (E) for purposes hereof, neither an SPM Buy/Sell Crude Transaction nor the Crude Buy Leg or Crude Sell Leg thereunder shall constitute an Aron Procurement Contract, a Procurement Contract Assignment, or a Refinery Procurement Contract.

(f)    For deliveries of Crude Oil not made via the SPM Delivery Point, title for each quantity of Crude Oil shall pass to Aron as the Crude Oil passes the Crude Intake Point. The Parties acknowledge that the consideration due from Aron to the Company for any Crude Oil that is not delivered under a Procurement Contract will be reflected in the Monthly True-Up Amounts determined following delivery and in accordance with Schedule C.

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(g)    The following provisions shall be applicable to Refinery Procured Barrels:

(i)    No later than the fifth (5th) Business Day of the month preceding a Delivery Month, the Company shall inform Aron whether the Company has purchased or intends to purchase any Crude Oil that is being procured under a Refinery Procurement Contract for delivery during such Delivery Month (“Refinery Procured Barrels”). In connection with each such quantity of Refinery Procured Barrels, the Company shall provide to Aron a trade ticket stating the quantity, grade, pricing and delivery terms of such Refinery Procured Barrels (which for the avoidance of doubt shall be identical to the terms of the corresponding Refinery Procurement Contract) expected to be delivered to the Included Crude Tanks during such Delivery Month and notify Aron if the Company has entered into an Aron Spread Transaction in connection therewith, and, provided no Default or Event of Default with respect to the Company has occurred and is then continuing and the proposed pricing terms stated in such trade ticket are acceptable to Aron in accordance with Section 5.3(c), the Company and Aron shall enter into an Aron Procurement Contract under which Aron shall purchase such quantity from the Company as and when it passes the Crude Intake Point and Aron shall promptly provide to the Company a written confirmation of such Aron Procurement Contract; provided that Aron's agreement to enter into such Aron Procurement Contract shall not constitute an agreement to make any prepayment thereunder which, if requested by the Company, shall be an obligation of Aron only if separately agreed to by Aron in its sole discretion. If any change occurs in the quantity, grade or delivery terms of the Refinery Procured Barrels that the Company expects to procure for delivery during such month, the Company shall promptly advise Aron of such change and the related Aron Procurement Contract shall be modified accordingly. With respect to any such confirmation issued by Aron to the Company in connection with an Aron Procurement Contract with the Company, if Aron does not receive from the Company either acceptance or notification of a bona fide error within five Business Days after receipt of such confirmation, then the Company shall be deemed to have accepted such confirmation, and such confirmation shall be effective and binding upon the Parties.

(ii)    In the event that the Company enters into a Refinery Procurement Contract, but does not enter into a related Aron Procurement Contract pursuant to a trade ticket as contemplated under Section 5.3(g)(i) above, and the Crude Oil procured under such Refinery Procurement Contract is delivered to the Included Crude Tanks (“Other Barrels”), then such Other Barrels shall be deemed sold to Aron as and when they pass the Crude Intake Point at the applicable Pricing Value, provided that prior to the delivery of any Other Barrels hereunder, the Parties shall establish procedures and mechanisms, reasonably satisfactory to Aron, for determining and reporting specific volumes of such Other Barrels. With respect to any Other Barrels that the Company expects to deliver to the Included Crude Tanks, the Company shall give Aron written notice of such expected delivery at least ten (10) Business Days preceding the expected delivery month for such Other Barrels and in such notice the Company shall provide to Aron the quantity, grade and delivery terms of such Other Barrels expected to be delivered. If thereafter any change occurs in the quantity, grade or delivery terms of the Other Barrels that the Company expects to procure for delivery during such month, the Company shall promptly advise Aron of such change.

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(h)    Concurrently with or promptly after entering into an Aron Procurement Contract pursuant to Section 5.3(b), (i) Aron and the Company may agree to the terms of the intermonth time spread transaction that the Parties have entered into in connection with such Aron Procurement Contract, which (unless otherwise agreed by Aron) shall consist of a time spread based on the period between cargo pricing and the expected delivery month, with pricing based on the first nearby ICE Brent Futures for the Cargo Pricing Window (as defined in Schedule K) and the ICE Brent calendar month swap for the relevant expected delivery month; provided that the Parties agree that each such time spread shall be a “Transaction” under and subject to the Master Agreement and Aron shall issue a confirmation of each such time spread confirming it as a “Transaction” under and subject to the Master Agreement (an “Aron Spread Transaction”) and (ii) if Aron and the Company do not enter into an Aron Spread Transaction, the Company shall enter into an intermonth time spread transaction with a party other than Aron (a “Third Party Spread Transaction”) and promptly notify Aron of such Third Party Spread Transaction and the material terms thereof. The Company shall promptly notify Aron of any Aron Spread Transaction and the material terms thereof. If the Company (i) fails to enter into an Aron Spread Transaction and to notify Aron of a Third Party Spread Transaction or (ii) enters into a Third Party Spread Transaction, then Aron may from time to time require provisional settlement of Aron’s unhedged exposure (as determined by Aron in a commercially reasonable manner) with respect to such Aron Procurement Contract and any prepayment funded by Aron for such Aron Procurement Contract. In calculating any such provisional settlement, Aron shall take account of all prior provisional settlements made with respect to such Aron Procurement Contract or prepayment. Each such provisional settlement shall be incorporated into an Interim Payment due promptly following Aron’s notice to the Company that such provisional settlement is to be made. The applicable Monthly True-up Amount shall include any additional amount required so that the impact of Aron’s unhedged exposure has been definitely settled as between Aron and the Company.

(i)    The Company agrees that all Crude Oil sold to Aron hereunder shall conform to the respective specifications set forth on Schedule A or to such other specifications as are from time to time agreed upon by the Parties.

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(j)    In the event that (a) a Third Party Supplier relating to an Aron Procurement Contract refunds or remits, or is otherwise obligated to refund or remit, to the Company all or any portion of the amount relating to the Crude Procurement Payment that was previously paid by Aron pursuant to such Aron Procurement Contract, then on or prior to the date that is the earlier of (x) two (2) Business Days after the receipt by the Company of such refund or remittance and (y) fifteen (15) Business Days after obtaining knowledge of such obligation of the counterparty to pay such refund or remittance (unless there is a dispute or claim as between the Company and such counterparty relating to such refund or remittance and the Company and such counterparty are working in good faith and in a commercially reasonable manner to resolve such dispute or claim in which case the Company shall keep Aron informed of the status of such dispute or claim), the Company shall remit or cause the remittance to Aron of such amount relating to the Crude Procurement Payment (and, in the case of clause (y) above, irrespective of whether the Company actually received such amount relating to the Crude Procurement Payment), and/or (b) any Refinery Procurement Contract relating to an Aron Procurement Contract is amended or modified such that (x) the quantity of Refinery Procured Barrels to be delivered and sold to the Company under such Refinery Procurement Contract is reduced, the related Aron Procurement Contract shall be amended accordingly so that the corresponding quantity of Refinery Procured Barrels to be delivered and sold to Aron pursuant to such Aron Procurement Contract shall also be reduced on a barrel-for-barrel basis and the Company shall, promptly after such amendment of the Refinery Procurement Contract, pay Aron an amount equal to the portion of the Crude Procurement Payment that was previously paid by Aron pursuant to such Aron Procurement Contract that corresponds with the amount of such reduction in quantity and/or (y) the delivery date under such Refinery Procurement Contract is extended to a date that is greater than fifteen (15) days after the originally agreed delivery date thereunder, Aron may elect, in its sole discretion, (A) to approve such modified delivery date, in which case, the related Aron Procurement Contract shall be modified accordingly or (B) to terminate the related Aron Procurement Contract, in which case the Company shall promptly pay Aron the full amount of the Crude Procurement Payment paid by Aron pursuant to such Aron Procurement Contract.

5.4    Nominations under Aron Procurement Contracts.

(a)    Concurrently with its delivery of a Monthly Crude Forecast to Aron, the Company shall provide to Aron the Company’s Target Month End Crude Volume and Target Month End Product Volumes for the related Delivery Month if different from the Target Month End Crude Volume and/or Target Month End Product Volumes for the related Delivery Month previously provided in Section 5.2(a). With respect to each Delivery Month, based on its Projected Monthly Run Volume, Crude Oil volumes then in Included Locations, shipments previously nominated under Aron Procurement Contracts, Other Barrels being delivered under Refinery Procurement Contracts and such other information as it deems relevant, the Company shall determine, in its commercially reasonable judgment, (i) the additional shipments of Crude Oil under Aron Procurement Contracts that the Company desires be delivered to the Included Locations during such Delivery Month and (ii) the aggregate number of shipments of Crude Oil under Aron Procurement Contracts that the Company desires be in transit but not delivered during such Delivery Month. With respect to each shipment under an Aron Procurement Contract that the Company desires be delivered by a specified Delivery Month, the Company shall notify Aron of such shipment at least 15 Business Days prior to the first applicable Nomination Cutoff Date for such month, if any (each, a “Shipment Notification”). As part of such Projected Monthly Run Volume, the Company may specify the grade of such Projected Monthly Run Volume, provided that such grades and their respective quantities specified by the Company shall fall within the grades and quantities then available to be nominated by Aron under the outstanding Aron Procurement Contracts.

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(b)    Provided that the Company provides Aron with the Projected Monthly Run Volume and the Shipment Notifications as required under Section 5.4(a), Aron and the Company shall consult regarding scheduling and other selections and nominations (collectively, “Contract Nominations”) to be made by Aron under then outstanding Aron Procurement Contracts on or before any applicable Nomination Cutoff Dates taking into account the quantities of Other Barrel being acquired pursuant to Refinery Procurement Contracts. To the extent reasonably practicable and in accordance with its consultation with the Company, Aron shall endeavor to make Contract Nominations that reflect the quantity of each grade specified by the Company in such Projected Monthly Run Volume. Should any Contract Nomination not be accepted by any Third Party Supplier under an Aron Procurement Contract, Aron shall promptly advise the Company and use commercially reasonable efforts with the Company and such Third Party Supplier to revise the Contract Nomination subject to the terms of any such Aron Procurement Contract. Aron shall provide the Company with confirmation of each such Contract Nomination that is made.

(c)    The Parties agree that the Company may, from time to time, request that Aron make adjustments or modifications to Contract Nominations it has previously made under the Aron Procurement Contracts. Promptly following receipt of any such request, Aron will use its commercially reasonable efforts to make such adjustment or modification, subject to any limitations or restrictions under the relevant Aron Procurement Contracts. Any additional cost or expenses incurred as a result of such an adjustment or modification shall constitute an Ancillary Cost hereunder.

(d)    Aron shall not nominate or to its knowledge otherwise acquire any Crude Oil with characteristics that are not previously approved by the Company for use at the Refinery, such approval to be in the Company’s sole and absolute discretion.

(e)    In addition to the nomination process, Aron and the Company shall follow the mutually agreed communications protocol as set forth on Schedule J hereto, with respect to ongoing daily coordination with feedstock suppliers, including purchases or sales of Crude Oil or other feedstocks outside of the normal nomination procedures.

(f)    Each of the Company and Aron agrees to use commercially reasonable efforts in preparing the forecasts, projections and nominations required by this Agreement in a manner intended to maintain Crude Oil and Product operational volumes within the Operational Volume Range.

(g)    Prior to entering into any Ancillary Contract that is intended for the exclusive benefit of the Company in connection with this Agreement and does not by its terms expire or terminate on or before the Expiration Date, Aron will endeavor, in good faith and subject to any confidentiality restrictions, to afford the Company an opportunity to review and comment on such Ancillary Contract or the terms thereof and to confer with the Company regarding such Ancillary Contract and terms, and if Aron enters into any such Ancillary Contract without the Company’s consent, the Company shall not be obligated to assume such Ancillary Contract pursuant to Section 20.1(c) below.

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5.5    Transportation, Storage and Delivery of Crude Oil.

(a)    Aron shall have the exclusive right to inject (except for such injections by the Company otherwise contemplated hereby, which result in title to any injected Crude Oil being transferred to Aron), store and withdraw Crude Oil in and from the Crude Storage Tanks as provided in the Storage Facilities Agreement. Aron shall have exclusive right to store Crude Oil in the Crude Storage Tanks as provided in the Storage Facilities Agreement. Pursuant to the Required Storage and Transportation Arrangements, Aron shall have the exclusive right (to the extent that such exclusive right can be granted) to inject (except for such injections by the Company otherwise contemplated hereby), store, transport and withdraw Crude Oil in and on the Included Crude Pipelines and the Included Crude Tanks (other than Crude Storage Tanks) to the same extent as the Company’s rights to do so prior to the implementation of the Required Storage and Transportation Arrangements.

(b)    Provided no Default or Event of Default has occurred and is continuing, the Company shall be permitted to withdraw from the Included Crude Tanks and take delivery of Crude Oil on any day and at any time. The withdrawal and receipt of any Crude Oil by the Company at the Crude Delivery Point shall be on an “ex works” basis (EXW Incoterms 2010). Aron shall be responsible only for arranging transportation and delivery of Crude Oil into the Included Crude Tanks and the Company shall bear sole responsibility for arranging the withdrawal of Crude Oil from the Included Crude Tanks. The Company shall take all commercially reasonable actions necessary to maintain a connection with the Included Crude Tanks to enable withdrawal and delivery of Crude Oil to be made as contemplated hereby. Notwithstanding the foregoing, the Company may not withdraw Crude Oil from any Included Crude Tanks if such Crude Oil is not to be injected into the Refinery for processing unless prior to such withdrawal, the Company and Aron have mutually agreed to such additional terms and condition as are satisfactory to Aron, which may include the prepayment by the Company of the purchase value for such Crude Oil.

5.6    Title, Risk of Loss and Custody.

(a)    Title to and risk of loss of the Crude Oil shall pass from the Company to Aron at the Crude Intake Point. Aron shall retain title to and risk of loss of such Crude Oil during the time such Crude Oil is held in any Included Locations. Title to and risk of loss of the Crude Oil shall pass from Aron to the Company at the Crude Delivery Point. The Company shall assume custody of the Crude Oil as it passes the Crude Delivery Point.

(b)    During the time any Crude Oil or Products are held in any Storage Facilities, the Company, in its capacity as operator of the Storage Facilities and pursuant to the Storage Facilities Agreement, shall be solely responsible for compliance with all Applicable Laws, including all Environmental Laws, pertaining to the possession, handling, use and processing of such Crude Oil or Products and shall indemnify and hold harmless Aron, its Affiliates and their agents, representatives, contractors, employees, directors and officers, for all Liabilities directly or indirectly arising therefrom except to the extent such Liabilities are caused by or attributable to any of the matters for which Aron is indemnifying the Company pursuant to Article 21.

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(c)    At and after transfer of any Crude Oil at the Crude Delivery Point, the Company and its Affiliates shall be solely responsible for compliance with all Applicable Laws, including all Environmental Laws pertaining to the possession, handling, use and processing of such Crude Oil and shall indemnify and hold harmless Aron, its Affiliates and their agents, representatives, contractors, employees, directors and officers, for all Liabilities directly or indirectly arising therefrom.

(d)    To the extent the Company wishes to sell any Crude Oil to any third party, the Company acknowledges that it shall not have the authority to agree to such sale without Aron’s prior written consent.

(e)    The Company shall not arrange for delivery of any Crude Oil to any location other than the Crude Intake Point except in the event that an “FOB” Crude Oil cargo is unable to be delivered to the Crude Intake Point in accordance with Section 7.21 of the LC Facility Agreement; provided that such a cargo shall not be deemed “unable to be delivered” if the cause of such non-delivery is any willful or negligent act or omission by the Company.

5.7    Contract Documentation, Confirmations and Conditions.

(a)    Aron’s obligations to deliver Crude Oil under this Agreement shall be subject to (i) the Company identifying and negotiating potential Aron Procurement Contracts, in accordance with Section 5.3, that are acceptable to both the Company and Aron relating to a sufficient quantity of Crude Oil to meet the Refinery’s requirements, (ii) the Company performing its obligations hereunder with respect to providing Aron with timely nominations, forecasts and projections (including Projected Monthly Run Volumes, as contemplated in Section 5.4(a)) so that Aron may make timely nominations under the Aron Procurement Contracts, (iii) all of the terms and conditions of the Aron Procurement Contracts, (iv) any other condition set forth in Section 5.1 above and (v) no Event of Default having occurred and continuing with respect to the Company.

(b)    In documenting each Aron Procurement Contract, Aron will endeavor and cooperate with the Company, in good faith and in a commercially reasonable manner, to obtain the Third Party Supplier’s agreement that a copy of such Aron Procurement Contract may be provided to the Company; provided that this Section 5.7(b) in no way limits the Company’s rights to consent to all Aron Procurement Contracts as contemplated by Section 5.3. In addition, to the extent it is permitted to do so, Aron will endeavor to keep the Company apprised of, and consult with the Company regarding, the terms and conditions being incorporated into any Aron Procurement Contract under negotiation with a Third Party Supplier.

(c)    The Company acknowledges and agrees that, subject to the terms and conditions of this Agreement, it is obligated to purchase and take delivery of all Crude Oil acquired by Aron under Aron Procurement Contracts executed in connection herewith and subject to the terms and conditions specified in Section 5.4 above. In the event of a dispute, Aron will provide, to the extent legally and contractually permissible, to the Company, a copy of the Aron Procurement Contract in question.

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(d)    The Company acknowledges and agrees that any changes or modification to any Aron Procurement Contract (whether proposed by the Company or the Third Party Supplier) shall be subject to Aron’s approval, such approval to be in Aron’s sole and absolute discretion.

5.8    DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTY OF TITLE WITH RESPECT TO CRUDE OIL OR PRODUCTS DELIVERED HEREUNDER, NEITHER PARTY MAKES ANY WARRANTY, CONDITION OR OTHER REPRESENTATION, WRITTEN OR ORAL, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR SUITABILITY OF SUCH CRUDE OIL OR PRODUCTS FOR ANY PARTICULAR PURPOSE OR OTHERWISE. FURTHER, NEITHER PARTY MAKES ANY WARRANTY OR REPRESENTATION THAT SUCH CRUDE OIL OR PRODUCTS CONFORMS TO THE SPECIFICATIONS IDENTIFIED IN ANY CONTRACT WITH ANY THIRD PARTY SUPPLIER.

5.9    Quality Claims and Claims Handling.

(a)    The failure of any Crude Oil or Product that Aron hereunder sells to the Company to meet the specifications or other quality requirements applicable thereto as stated in an Aron Procurement Contract for that Crude Oil or Product shall be for the sole account of the Company and shall not entitle the Company to any reduction in the amounts due by it to Aron hereunder; provided, however, that any claims made by Aron with respect to such non-conforming Crude Oil or Product shall be for the Company’s account and resolved in accordance with this Section 5.9.

(b)    The Parties shall consult with each other and coordinate how to handle and resolve any claims arising in the ordinary course of business (including claims related to Crude Oil, Products, pipeline, tank transfers, or ocean transportation, and any dispute, claim, or controversy arising hereunder between Aron and any of its vendors who supply goods or services in conjunction with Aron’s performance of its obligations under this Agreement) made by or against Aron. In all instances wherein claims are made by a third party against Aron which will be for the account of the Company, the Company shall have the right, subject to Section 5.9(d), to either direct Aron to take commercially reasonable actions in the handling of such claims or assume the handling of such claims in the name of Aron, all at the Company’s cost and expense; provided that Aron may require that the Company assume the handling of any such claim. To the extent that the Company believes that any claim should be made by Aron for the account of the Company against any third party (whether a Third Party Supplier, terminal facility, pipeline, storage facility or otherwise), and subject to Section 5.9(d) and the terms and conditions of the Agency Agreement, Aron will take any commercially reasonable actions as requested by the Company either directly, or by allowing the Company to do so, to prosecute such claim all at the Company’s cost and expense and all recoveries resulting from the prosecution of such claim shall be for the account of the Company.

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(c)    Aron shall, in a commercially reasonable manner, cooperate with the Company in prosecuting any such claim and shall be entitled to assist in the prosecution of such claim at the Company’s expense, if the Company so requests. In the event that Aron assists in the prosecution of such claim not at the request of Company, such prosecution shall be at Aron’s sole cost and expense.

(d)    Notwithstanding anything in Section 5.9(b) or Section 5.9(c) to the contrary, Aron may notify the Company that Aron is retaining control over or limiting its participation in the resolution of any claim referred to in Section 5.9(b) or Section 5.9(c) if Aron, in its reasonable judgment, has determined that it has commercially reasonable business considerations for doing so based on any relationships that Aron or any of its Affiliates had, has or may have with the third party involved in such claim; provided that, subject to such considerations, Aron shall use commercially reasonable efforts to resolve such claim, at the Company’s expense and for the Company’s account. In addition, any claim that is or becomes subject to Article 21 shall be handled and resolved in accordance with the provisions of Article 21.

5.10    Communications.

(a)    Each Party shall promptly provide to the other copies of any and all written communications and documents between it and any third party which in any way relate to Ancillary Costs, including but not limited to written communications and documents with Included Pipelines, provided that Aron has received such communications and documents in respect of the Included Pipelines and/or any communications and documents related to the nominating, scheduling and/or chartering of vessels; provided that neither Party shall be obligated to provide to the other any such materials that contain proprietary or confidential information and, in providing any such materials, such Party may redact or delete any such proprietary or confidential information.

(b)    With respect to any proprietary or confidential information referred to in Section 5.10(a), Aron shall promptly notify the Company of the nature or type of such information and use its commercially reasonable efforts to obtain such consents or releases as necessary to permit such information to be made available to the Company.

(c)    The Parties shall coordinate all nominations and deliveries according to the communications protocol on Schedule J hereto.

5.11    Payment Undertakings for Refinery Procurement Contracts.

(a)    From time to time, upon the request of the Company, Aron and the Company may endeavor to negotiate with a Third Party Supplier a Crude Payment Undertaking by Aron under which Aron will agree to remit or cause or otherwise arrange for the remittance to such Third Party Supplier of funds sufficient to pay the Crude Procurement Payment due to such Third Party Supplier under one or more Refinery Procurement Contracts on the relevant Procurement Due Dates; provided in no event shall Aron be deemed to be obligated to enter into any proposed Aron Procurement Contract.

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(b)    To the extent deemed appropriate by Aron, the considerations under Section 5.3(c) applicable to the determining whether Aron elects to enter into a proposed Aron Procurement Contract shall also apply to Aron’s determination regarding whether to execute a Crude Payment Undertaking with a Third Party Supplier. As a condition to entering into any proposed Aron Procurement Contract, Aron shall have received a duly delivered trade ticket stating the quantity, grade and delivery terms of such Crude Oil expected to be delivered under such Aron Procurement Contract.

(c)    For each Crude Payment Undertaking that Aron enters into, the Company shall, automatically and without any further action by either Party, become obligated to reimburse Aron for, and pay all Ancillary Costs applicable to, the payment made or caused to be made by Aron under such Crude Payment Undertaking (a “Company Crude Reimbursement Obligation”); provided that (i) the amounts payable by the Company under the Company Crude Reimbursement Obligation shall be determined in accordance with Schedule C hereof and (ii) any security and credit support with respect to a Company Crude Reimbursement Obligation shall be as provided in this Agreement and other Transaction Documents. The Company Crude Reimbursement Obligation for a Crude Payment Undertaking shall arise at the time as such Crude Payment Undertaking is entered into by Aron.

(d)    Without limiting any other rights or remedies of Aron hereunder (including any obligations of the Company to indemnify Aron), if any claim of any nature (including any quantity or quality claim) arises under a Refinery Procurement Contract for which Aron has made, or caused to be made, payment under a Crude Payment Undertaking, then Aron shall, to the same extent as contemplated by Section 5.9(b), Section 5.9(c) and Section 5.9(d) hereof, cooperate with and take such actions as reasonably requested by the Company in pursuing or endeavoring to resolve such claim.

5.12    Documentation Discrepancies. If any dispute arises with a Third Party Supplier or Third Party Seller regarding the terms of any documentation to which Aron is a party, Aron in cooperation with the Company shall use commercially reasonable efforts to resolve such documentation discrepancy with such Third Party Supplier or Third Party Seller; provided that if such discrepancy has not been resolved within 5 Business Days after Aron has commenced such efforts, then any time thereafter, upon request by Aron, the Company shall assume full responsibility for communicating with such Third Party Supplier or Third Party Seller and endeavoring to resolve such documentation discrepancy and, following such request, Aron shall not be required to take any further action to resolve such documentation discrepancy not otherwise required by Section 5.9(b) and Section 5.9(c) and Aron shall be fully entitled to rely on the terms in any contract that Aron has executed notwithstanding any discrepancy with any other documentation unless and until a further amendment thereto is agreed by all parties. Without limiting the foregoing, the Company covenants and agrees that any costs, losses or damages that Aron may incur directly as a result of such a documentation discrepancy (including any differences in the terms reflected in any Exchanged Confirmations) shall constitute Ancillary Costs and be for the account of the Company.

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5.13 LC Eligible Crude Procurements. The Parties agree to endeavor in a commercially reasonable manner to determine the terms and conditions that would need to be implemented so that LC Related Aron Procurement Contracts can be executed in connection with LC Eligible Refinery Procurement Contracts and, if the Parties (each acting in its sole discretion) agree on terms and conditions that are mutually satisfactory, then they will promptly endeavor to execute an amendment to this Agreement incorporating such terms and conditions; provided that (a) the agreements relating to the letter of credit facility in respect of LC Eligible Refinery Procurement Contract shall be in form and substance satisfactory to Aron; (b) the issuer of such letters of credit shall have entered into intercreditor arrangements satisfactory to Aron in its sole discretion; and (c) all LC Eligible Refinery Procurement Contracts shall provide for payment terms satisfactory to Aron in its sole discretion which payment terms shall include the option of the Company to post a letter of credit by a certain date in lieu of prepayment of the applicable purchase value. For purposes hereof: (i) “LC Eligible Refinery Procurement Contract” means a Refinery Procurement Contract that provides, if the Company arranges for a letter of credit with a specified available amount (which shall be no less than the amount specified in the provisional commercial invoice issued under such Refinery Procurement Contract) to be issued to the Supplier thereunder on or prior to a date designated therein as the last day by when such letter of credit may be delivered thereunder, the Procurement Due Date thereunder shall occur no earlier than one (1) day following completion of delivery to the Company under such Refinery Procurement Contract and (ii) “LC Related Aron Procurement Contract” means an Aron Procurement Contract referred to in clause (ii) of the definition of “Aron Procurement Contract” providing for the purchase by Aron of Crude Oil that is being procured by the Company under an LC Eligible Refinery Procurement Contract, which is to be evidenced by a confirmation substantially in the form provided by Aron.

5.13    LC Eligible Crude Procurements. From time to time on and after the LC Facility Amendment Effective Date through the end of the Term, the Company may propose that Aron enter into an LC Related Aron Procurement Contract on the terms and conditions set forth in this Section 5.13.

(a)    (i) If the Company wishes to arrange for the issuance of a Letter of Credit relating to an LC Eligible Refinery Procurement Contract, then at least fifteen (15) Business Days prior to the applicable LC Cut-off Date, the Company shall provide to Aron, via email, (x) a copy of such LC Eligible Refinery Procurement Contract, which may contemplate delivery of Crude Oil to the Company on an “FOB” or “ delivered” basis, (y) as required under Section 5.3(g)(i), a trade ticket for a proposed Aron Procurement Contract providing for Aron to purchase from the Company the Barrels being procured under such LC Eligible Refinery Procurement Contract (the “Subject Barrels”) as and to the extent delivered to Aron at the Crude Intake Point (each such email, a “Company Proposal Email”) and (z) all information and other reporting related to the Letter of Credit being issued in connection with such LC Eligible Refinery Procurement Contract provided by the Company to the LC Facility Agent under the LC Facility Agreement. (ii) Aron shall promptly review each Company Proposal Email and, provided that the conditions set forth in Sections 5.3(g)(i) and 5.13(c) are satisfied, Aron shall enter into the proposed Aron Procurement Contract with the Company (such Aron Procurement Contract, an “LC Related Aron Procurement Contract”) by sending the Company an email agreeing to the terms of such trade ticket, including the purchase of the Subject Barrels by Aron from the Company as and when such Barrels pass the Crude Intake Point (each such email, an “Aron Acceptance Email”); provided that if Aron does not send such Aron Acceptance Email within two (2) Business Days, Aron shall be deemed to have rejected such Company Proposal Email. As provided in Section 5.3(g)(i), Aron shall issue a written confirmation to the Company for each for such LC Related Aron Procurement Contract entered into by the Parties; provided that Aron and the Company shall be bound to the terms of each LC Related Aron Procurement Contract from and after the time the relevant Aron Acceptance Email is sent to the Company, regardless of whether such written confirmation has been issued by Aron or agreed to by the Company.

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(b)    Each LC Eligible Refinery Procurement Contract shall comply with the requirements hereunder for a Refinery Procurement Contract, except that the payment terms thereunder shall (i) require or permit the Company to deliver to the Third Party Supplier a Letter of Credit by the applicable LC Cut-off Date and (ii) if such Letter of Credit is so delivered, provide that payment to such supplier, for a “delivered” cargo, shall not be due until a defined period occurring after delivery to Par at the SPM and, for an “FOB” cargo, shall not be due until a customary period of time after loading of such cargo at the load port.

(c)    Without limiting the foregoing, an LC Related Aron Procurement Contract shall become effective only if Aron provides the related Aron Acceptance Email and the following conditions are satisfied on and as of the date such LC Related Aron Procurement Contract is to be entered into:

(i)    no Default or Event of Default with respect to the Company has occurred and is then continuing;

(ii)    the Company shall have entered into, or is concurrently entering into, an LC Eligible Refinery Procurement Contract with a Third Party Supplier on terms and conditions satisfactory to Aron in its sole discretion, and provided Aron a copy thereof; and

(iii)    the Collateral Agency Agreement shall be in full force and effect.

(d)    Each LC Related Aron Procurement Contract shall provide that Aron will pay the J. Aron Payment Obligation due hereunder to the Collection Account by no later than 6:00 p.m. New York time on the second Business Day after completing delivery to Aron at the Crude Intake Point (or such later time as requested by the Company with the written consent of the LC Facility Agent); provided that (i) Aron’s obligation to pay such amount is conditioned upon the delivery to Aron of the applicable quantity of Crude Oil occurring at the Crude Intake Point in accordance with the relevant LC Related Aron Procurement Contract and the satisfaction of the Issuance Condition; and (ii) if an Event of Default has occurred with respect to the Company and if the Company posts additional cash collateral to the LC Facility Agent in accordance with Section 3.06 of the LC Facility Agreement (the “Additional Posted Cash Collateral”), then the aggregate amount of outstanding J. Aron Payment Obligations shall be reduced by the amount of such Additional Posted Cash Collateral which shall be applied to such outstanding J. Aron Payment Obligations in chronological order based on (and starting from the earliest of) the expected delivery dates of the applicable cargoes as determined by Aron in its reasonable judgment. Aron may pay such purchase price prior to the applicable payment date specified above subject to the satisfaction of the condition set forth in clause (i) above and, in its sole discretion, may condition such earlier payment on further agreements with the Company to remit such amount promptly to the Third Party Supplier under the relevant LC Eligible Refinery Procurement Contract.

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(e)    In connection with, and as collateral for the Company’s obligations related to, a Letter of Credit issued in connection with an LC Eligible Refinery Procurement Contract, the rights of the Company under the LC Related Aron Procurement Contract to receive payment of the J. Aron Payment Obligation thereunder shall be assigned to the Collateral Agent pursuant to the Security Agreement.

(f)    J. Aron Payment Obligation. The Company shall not, without first obtaining Aron’s written consent, convey, assign, sell, mortgage, encumber, pledge, hypothecate, grant a security interest in, grant an option or options with respect to, or otherwise transfer in trust, assign or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration) any J. Aron Payment Obligation, other than the assignment pursuant to the Security Agreement.

(g)    Prepayment by Aron of the J. Aron Payment Obligation under an outstanding LC Related Aron Procurement Contract is subject to compliance with Section 18.2(o) hereof and such other terms and conditions as may be agreed by the Parties in connection with such LC Related Aron Procurement Contract; provided that it is in Aron’s sole discretion whether to agree to make any prepayment of a J. Aron Payment Obligation.

(h)    For the avoidance of doubt, in no event shall Aron be obligated to purchase any Crude Oil from the Company under any LC Related Aron Procurement Contract on any date that occurs after the Expiration Date notwithstanding that Letter of Credit has been issued in respect of such Crude Oil.

ARTICLE 6

PURCHASE VALUE FOR CRUDE OIL

6.1    Daily Volumes. Each Business Day the Company shall provide to Aron, by no later than 7:00 pm HST meter tickets and/or meter readings, and tank gauge readings confirming the Measured Crude Quantity for each Included Crude Tank for all Delivery Dates since the prior Business Day. If the Company determines that any meter tickets and/or meter readings and tank gauge readings provided pursuant to this Section 6.1 are inaccurate, the Company will provide to Aron such corrected meter tickets and/or meter readings and tank gauge readings by no later than 7:00 p.m., HST on the first (1st) Business Day following the date on which such determination is made.

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6.2    Purchase Value for Crude Oil. The per Barrel purchase value for the Monthly Net Crude Sales shall equal the Pricing Value specified for Crude Oil, subject to the calculation of the Total Monthly Crude Oil True-Up Amount as provided for on Schedule C.

6.3    Refinery Crude Purchase Fee. For any month, the Company shall owe to Aron when due the Refinery Crude Purchase Fee calculated in accordance with Schedule C; provided that if the Company maintains in full force and effect insurance coverage of the type described in Section 16.1(a)(ii), in each Period (as defined below), the Company shall be permitted to apply a credit of $500,000 towards Refinery Crude Purchase Fees payable to Aron pursuant to this Section 6.3, with such credit to be included in the applicable Monthly True-Up Amount for any applicable month (any such credit, a “Fee Credit”). For purposes hereof: “First Period” means the period from July 1, 2021 through and including May 31, 2022; “Second Period” means the period from June 1, 2022 through and including May 31, 2023; “Third Period” means the period from June 1, 2023 through and including May 31, 2024; and “Periods” means collectively, the First Period, the Second Period and the Third Period.

6.4    Material Crude Grade Changes. If either the Company or Aron concludes in its reasonable judgment that the specifications (including specific gravity and sulfur content of the Crude Oil) of the Crude Oil procured, or projected to be procured, differ materially from the grades that have generally been run by the Refinery or such grades that the Company may run from time to time acting as a prudent refinery operator, then the Company and Aron will endeavor in good faith to mutually agree on (i) acceptable price indices for such Crude Oil, and (ii) a settlement payment from one Party to the other that is sufficient to compensate the relevant Party for the relative costs and benefits to each of the price differences between the prior price indices and the amended price indices.

6.5    Counterparty Crude Sales. At the request of the Company and subject to the applicable provisions of Article 5 above, Aron may from time to time enter into one or more Counterparty Crude Sales. In such cases, the Counterparty Crude Sales Fee shall be applicable to such Counterparty Crude Sales, and shall be payable by the Company to Aron hereunder; provided, however, such Counterparty Crude Sales Fee shall not be applicable to any other disposition of Crude Oil made by Aron hereunder or under the Transaction Documents.

6.6    Upon Aron’s request, the Company will provide documentation evidencing all Barrels of Crude Oil purchased for any month under Refinery Procurement Contracts.

ARTICLE 7

TARGET INVENTORY LEVELS AND PRICE ADJUSTMENT

7.1    Target Inventory Levels. Monthly inventory targets for Crude Oil and Products shall be set pursuant to this Article 7. Such monthly inventory targets for Crude Oil and Products shall be subject to the minimum and maximum inventory levels in Schedule D for each Pricing Group; provided that the Company may set monthly inventory targets for a Pricing Group below the applicable minimum inventory level but in no event less than the greater of (i) the applicable Target Month End Crude Volume or Target Month End Product Volume for such Pricing Group and (ii) the aggregate volume of all then outstanding Agreed Roll Differentials with respect to Crude Oil or a Pricing Group. The Company represents and warrants that the respective Target Month End Crude Volumes and Target Month End Product Volumes that the Company sets for each month during the Term hereof shall be the Company’s good faith estimate, at the time it sets such targets, of the Ending In-Tank Crude Inventory and the Ending In-Tank Product Inventories at the end of such month.

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7.2    Target Month End Crude Volume.

(a)    By no later than the fifth (5^th) Business Day of the month preceding each Delivery Month, the Company shall notify Aron of the aggregate quantity of Crude Oil that the Company expects to run at the Refinery during such Delivery Month (the “Projected Monthly Run Volume”).

(b)    For each month of the Term, the Company shall from time to time (but subject to any applicable notification deadlines specified on Schedule D hereto) specify the “Target Month End Crude Volume” which shall equal (i) the Target Month End Crude Volume for the immediately preceding month, plus (ii) the aggregate volume of Crude Oil that Aron has nominated under the Aron Procurement Contracts for delivery during that month pursuant to Section 5.4(b), plus (iii) the aggregate volume of the Other Barrels expected to be delivered during such month, minus (iv) the Projected Monthly Run Volume for that month (except that the Target Month End Crude Volume as of the Commencement Date and as of the end of the first month of the Term shall be the respective volumes specified as such on Schedule I hereto).

(c)    In establishing a Target Month End Crude Volume, the Parties acknowledge that any increase in a Target Month End Crude Volume is constrained to the extent that the Crude Oil available for delivery under the Aron Procurement Contracts with Third Party Suppliers plus Other Barrels available for delivery during such month are not greater than the Company’s Crude Oil requirements for the Refinery for the month related to such Target Month End Crude Volume.

(d)    The Parties may, by mutual agreement, adjust the Target Month End Crude Volume for any month. Any change to a Target Month End Crude Volume shall affect only the subject month and does not impact the calculation of the Target Month End Crude Volume in subsequent months pursuant to Section 7.2(b).

7.3    Target Month End Product Volume.

(a)    By no later than the fifth (5^th) Business Day of the month preceding each Delivery Month, the Company shall provide to Aron its standard run-out report substantially in the form of Schedule O (the “Run-out Report”) showing the estimated quantities of each Product that it expects to produce and deliver to Aron during the following month and the quantities of each Product it expects to sell under the Marketing and Sales Agreement during such following month (for each Product, the “Projected Monthly Production Volume”), which may, from time to time, be adjusted by the Company.

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(b)    For each month and each type of Product, the Company shall from time to time (but subject to any applicable notification deadlines specified on Schedule D hereto) specify an aggregate quantity and grade that shall be the “Target Month End Product Volume” for that month, which shall represent a volume which may be zero or a positive number taking into account the estimates provided pursuant to Section 7.3(a) (except that the Target Month End Product Volume for each type of Product as of the Commencement Date and as of the end of the first month of the Term shall be the respective volumes specified as such on Schedule I hereto).

(c)    Subject to events of Force Majeure, facility turnarounds, the performance of any third parties (including purchasers of Products under the Marketing and Sales Agreement), the Company will, in establishing each Target Month End Product Volume, cause such Target Month End Product Volume to be within the applicable range specified for such Product on Schedule D hereto, except as otherwise permitted under Section 7.1.

(d)    At any time prior to the beginning of the month to which a Target Month End Product Volume relates (but subject to any applicable notification deadlines specified on Schedule D hereto), the Parties may, by mutual agreement, change such Target Month End Product Volume.

(e)    In addition, Aron may adjust the Target Month End Product Volume with the consent of the Company.

(f)    For any calendar month in which quantities of Products are delivered by Aron under one or more Additional Product Transactions entered into during such month pursuant to the Marketing and Sales Agreement, the Target Month End Product Volume of any such Product for the end of such month shall be reduced by the aggregate net quantity of such Product so delivered to the extent such Additional Product Transactions are entered into after such Target Month End Product Volume is established.

7.4    Price Adjustments.

(a)    Pursuant to the procedures set forth in Schedule K hereto, (i) in any given month during the term hereof, and (ii) from and after the Adjustment Date, solely to the extent that the Liquidity of the Company for five (5) consecutive Business Days is less than $40,000,000.00 as of the last date the Company was required to report their Liquidity pursuant to Section 13.2(d), in any given week, Aron shall determine whether any adjustment to the Crude Price or any of the Product Prices is appropriate. Promptly after Aron has completed such calculation, it shall advise the Company in writing as to whether any Crude Price or Product Price adjustment is appropriate and if so the amount of such Crude Price or Product Price adjustments. Any such adjusted Crude Price shall become applicable commencing with the month or week immediately following the month or week with respect to which such determination was made.

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(b)    Promptly following each Price Adjustment Month or Week, Aron shall review the realized sales data for such Price Adjustment Month or Week and calculate whether, based on such data, an adjustment to any of the Product Prices is appropriate (or, in the case of an Interim Price Adjustment Week, the Product Prices identified by whichever Party provides notification thereof); provided that, if Aron determines in its reasonable judgment that the data for such Price Adjustment Month or Week do not provide a representative basis for such determination (due to anomalies, distortions or other factors identified by Aron), then Aron may, at its election, make such calculation based on data for the three calendar month period preceding the Price Adjustment Month or Week. Promptly after Aron has completed such calculation, it shall advise the Company in writing as to whether any Product Price adjustments are appropriate and if so the amounts of such Product Price adjustments. Any such adjusted Product Prices shall become applicable commencing with the month or week immediately following such Price Adjustment Month or Week.

(c)    For any month or week for which a Crude Price adjustment is to be made pursuant to Section 7.4(a) or for any Price Adjustment Month or Week for which any Product Price adjustments are to be made pursuant to Section 7.4(b), Aron shall determine either the Product Price Adjustment Settlement Amount or the Crude Price Adjustment Settlement Amount and such amount shall be included in the Total Monthly Crude True-Up Amount (in the case of a Crude Price adjustment) or Aggregate Monthly Product True-Up Amount (in the case of a Product Price Adjustment) or the applicable Interim Payment, as the case may be, that is incorporated into the Monthly True-Up Payment for such month or the applicable Interim Payment for such week or Price Adjustment Month or Week; provided that, in the case of an Interim Price Adjustment Week, such determination shall be made only with respect to those Product Prices identified in Aron’s notification to the Company relating to such Interim Price Adjustment Week.

(d)    As used herein,

(i)    “Interim Price Adjustment Week” means any week during which either Party notifies the other Party in writing (including via email) on or prior to the last Business Day of such week that, in such notifying Party’s commercially reasonable judgment, a material change has occurred in one or more of the market differentials used to establish any of the Product Prices hereunder;

(ii)    “Price Adjustment Month or Week” means either a Scheduled Price Adjustment Month or an Interim Price Adjustment Week; and

(iii)   “Scheduled Price Adjustment Month” means, unless otherwise agreed by Aron in writing, each calendar month during the Term (except for the final month of the Term).

7.5    Monthly Product Adjustments.

(a)    Monthly Product Sale Adjustment. For each month (or portion thereof) during the term of the Marketing and Sales Agreement and for each Product Group, Aron shall determine whether an amount is due by one Party to the other (for each Product Group, a “Monthly Product Sale Adjustment”) in accordance with Schedule C.

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(b)    Monthly Product Purchase Adjustment. For each month (or portion thereof) during the term of the Marketing and Sales Agreement and for each Product Group, Aron shall determine whether an amount is due by one Party to the other (for each Product Group, a “Monthly Product Purchase Adjustment”) in accordance with Schedule C.

7.6    Monthly Product Sales Fees. For each month, the applicable Product Sales Fee shall be applied to each Barrel of Product, if any, sold by Aron under any Included Sales Transaction during such month. With respect to each month, the aggregate monthly value of the Product Sale Fees (the “Aggregate Monthly Product Sales Fee”) shall be calculated pursuant to Schedule C and shall be due and payable from the Company to Aron as specified in Schedule C.

7.7    Monthly Cover Costs. If, for any month (or portion thereof), Aron reasonably determines that, as a result of the Company’s failure to produce the quantities of Product projected under this Agreement or the Company’s failure to comply with its obligations under the Marketing and Sales Agreement, Aron retains insufficient quantities of Product to comply with its obligations to any third parties, under Included Sales Transactions, and Aron incurs any additional costs and expenses or related damages in procuring and transporting Product from other sources for purposes of covering such delivery obligations or the shortfall in the quantity held for its account (collectively, “Monthly Cover Costs”), then the Company shall be obliged to reimburse Aron for such Monthly Cover Costs, subject to the limitations set forth in Article 22. If Aron determines that any Monthly Cover Costs are due to it, Aron shall promptly communicate such determination to the Company and, subject to any mitigation of such costs actually achieved by the Company, include the calculation of such amount in the documentation provided to the Company for the relevant period pursuant to Section 10.2 and such Monthly Cover Costs shall be incorporated as a component of the Monthly True-Up Amount due for such period hereunder. If, for any month (or portion thereof), Aron reasonably determines that, as a result of the Company’s failure to produce the quantities of Product projected under this Agreement or the Company’s failure to comply with its obligations under the Marketing and Sales Agreement, Aron retains insufficient quantities of Product to comply with its obligations to Company, under any Company Agreements or otherwise pursuant to Section 2.6 of the Marketing and Sales Agreement, the Company shall be solely responsible for covering any delivery obligations to third parties or the shortfall in the quantity held for such third parties in connection with the Company’s Product Marketing Operations (as defined in the Marketing and Sales Agreement).

7.8    Costs Related to Shortfall. To the extent that Aron is required to cover any shortfall in any Product delivery, under an Included Sales Transaction, by any inventory it owns and acquires separately from the inventory owned and maintained in connection with this Agreement, any cost or loss incurred by Aron in connection therewith that is not otherwise included as a Monthly Cover Cost shall constitute an Ancillary Cost that is to be reimbursed to Aron.

7.9    Excess Target Levels. No later than five (5) Business Days prior to the date on which the Company is obligated to establish the Target Month End Crude Volume or the Target Month End Product Volumes for any month, the Company may request that Aron agree to a level for any of the foregoing that exceeds that applicable maximum level set forth on Schedule D hereto (an “Excess Inventory Level”); provided that such request may be for only such month or for a period of two or more consecutive months starting with such month, as the Company shall specify in its request. If such request is made in a timely manner, Aron shall promptly review such request and advise the Company as to whether Aron accepts or rejects such Excess Inventory Level; provided that, Aron is under no obligation to accept any such request. If Aron accepts any request for an Excess Inventory Level, then for all purposes of this Agreement and in lieu of the relevant level set forth on Schedule D, such Excess Inventory Level shall constitute the maximum level the relevant Product Group for the period specified in such request; provided that, after such period, the applicable level set forth on Schedule D shall be in effect for purposes of this Agreement. If Aron rejects any such request, then the applicable level set forth on Schedule D shall continue in effect, unless otherwise expressly agreed by the Parties in writing.

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7.10    Excess Inventory Levels.

(a)    The Company shall promptly notify Aron if, at any time, with respect to any Product Group, the aggregate quantity of such Product Group being held in the Included Locations exceeds the Maximum Inventory Level for such Product Group (such excess, an “Excess Quantity”). Such notice shall contain the applicable volume of Excess Quantity. Within three (3) Business Days after such notice is given, Aron shall advise the Company as to whether Aron accepts such Excess Quantity (in which case Section 7.10(b) shall apply) or rejects such Excess Quantity (in which case Section 7.10(c) shall apply).

(b)    If Aron accepts an Excess Quantity then the Maximum Inventory Level for the relevant Product Group shall be automatically temporarily adjusted (on a one-time basis) by the amount of such Excess Quantity, and such adjusted Maximum Inventory Level shall temporarily constitute the Maximum Inventory Level for the relevant Product Group for the day in which such Excess Quantity was first identified until and including the day Aron accepts such Excess Quantity and, at Aron’s option, for such additional day or days as Aron may specify in writing; provided that if Aron does not accept such Excess Quantity for any additional day or days, such Excess Quantity shall only be in effect for the day in which such Excess Quantity was first identified until and including the day Aron accepts such Excess Quantity and if such Excess Quantity remains after the end of such period, the provisions of this Section 7.10 shall apply anew on the following day.

(c)    If Aron rejects an Excess Quantity then, for purposes of determining amounts due under Sections 10.1 and 10.2 of this Agreement, such Excess Quantity shall not be counted as Crude Oil or Products being held at an Included Location. So long as such Excess Quantity remains in an Included Tank which contains any other quantity of the relevant Product Group that is Aron’s Property, then Aron shall have exclusive right, title and interest to such Excess Quantity. In such case, if the Company is able to segregate in one or more Included Tanks a quantity of the relevant Product Group at least equal to such Excess Quantity in which no other Aron’s Property is held, the Company may, at its option, elect to designate such Included Tanks and purchase from Aron the segregated quantity of such Product Group held in such designated Included Tanks so that the quantity of such Product Group owned by Aron would not exceed the Maximum Inventory Level for the relevant Product Group after giving effect to such purchase, at a value equal to the product of (a) the volume of such Product Group held in such Included Tanks and (b) the Pricing Value for the applicable Product Group. After settlement of such purchase, such Included Tanks shall no longer constitute Included Locations for purposes hereof unless and until Aron determines, in its reasonable discretion, that Aron’s ownership of the quantities held in such tanks would not result, as of the time of such determination, in the aggregate quantity of the relevant Product Group owned by Aron exceeding the applicable Maximum Inventory Level. If and when such determination is made, the Parties shall confirm the sale by the Company to Aron of the quantities held in such Included Tanks at a value equal to the product of (a) such quantity and (b) the Pricing Value for the applicable Product Group and upon the settlement of such purchase, such Included Tanks shall thereafter again constitute Included Locations for all purposes hereof.

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ARTICLE 8

PURCHASE AND DELIVERY OF PRODUCTS

8.1    Purchase and Sale of Products.

(a)    Aron agrees to purchase and receive from the Company, and the Company agrees to sell and deliver to Aron, the entire Products output of the Refinery from and including the Commencement Date through the end of the Term of this Agreement, at the prices determined pursuant to this Agreement and otherwise in accordance with the terms and conditions of this Agreement. Notwithstanding anything herein to the contrary, unless otherwise agreed to in writing by Aron, all Products procured by Aron hereunder shall be delivered to an Included Location.

(b)    From time to time, under the Marketing and Sales Agreement, the Company may propose that Aron enter into an Included Purchase Transaction with an identified Product Supplier. Such proposal and Aron’s acceptance and rejection of such proposal shall be made pursuant to Section 2.3 of the Marketing and Sales Agreement.

(c)    The following provisions shall be applicable to Refinery Procured Product Barrels:

(i)    No later than the fifth (5^th) Business Day of the month preceding a Delivery Month, the Company shall inform Aron whether the Company has purchased or intends to purchase any Product that is being procured under a Refinery Product Contract for delivery during such Delivery Month (“Refinery Procured Product Barrels”). In connection with each such quantity of Refinery Procured Product Barrels, the Company shall provide to Aron a trade ticket stating the quantity, grade and delivery terms of such Refinery Procured Product Barrels expected to be delivered to the Refinery Product Storage Tanks or such other location designated by the Company during such Delivery Month and, provided no Default or Event of Default with respect to the Company has occurred and is then continuing, the Company and Aron shall enter into a Included Purchase Transaction under which Aron shall purchase such quantity from the Company as and when it passes the Products Intake Point and Aron shall promptly provide to the Company a written confirmation of such Included Purchase Transaction. If any change occurs in the quantity, grade or delivery terms of the Refinery Procured Product Barrels that the Company expects to procure for delivery during such month, the Company shall promptly advise Aron of such change and the related Included Purchase Transaction shall be modified accordingly. With respect to any such confirmation issued by Aron to the Company in connection with an Included Purchase Transaction with the Company, if Aron does not receive from the Company either acceptance or notification of a bona fide error within five Business Days after receipt of such confirmation, then the Company shall be deemed to have accepted such confirmation, and such confirmation shall be effective and binding upon the Parties.

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(ii)    In the event that the Company enters into a Refinery Product Contract, but does not enter into a related Included Purchase Transaction pursuant to a trade ticket as contemplated under Section 8.1(c) above, and the Products procured under such Refinery Product Contract is delivered to the Refinery Product Storage Tanks or such other location designated by the Company (“Other Product Barrels”), then such Other Product Barrels shall be deemed sold to Aron as and when they pass the Products Intake Point at the Pricing Value, provided that prior to the delivery of any Other Product Barrels hereunder, the Parties shall establish reasonable procedures and mechanisms for determining and reporting specific volumes of such Other Product Barrels. With respect to any Other Product Barrels that the Company expects to deliver to the Refinery Product Storage Tanks or such other designated Included Product Tanks, the Company shall give Aron written notice of such expected delivery at least ten (10) Business Days preceding the expected delivery month for such Other Product Barrels and in such notice the Company shall provide to Aron the quantity, grade and delivery terms of such Other Product Barrels expected to be delivered. If thereafter any change occurs in the quantity, grade or delivery terms of the Other Product Barrels that the Company expects to procure for delivery during such month, the Company shall promptly advise Aron of such change.

(iii)    In the event that (a) a Third Party Seller relating to an Included Purchase Transaction refunds or remits, or is otherwise obligated to refund or remit, to the Company all or any portion of the amount relating to the Product Procurement Payment that was previously paid by Aron pursuant to such Included Purchase Transaction, then on or prior to the date that is the earlier of (x) two (2) Business Days after the receipt by the Company of such refund or remittance and (y) fifteen (15) Business Days after obtaining knowledge of such obligation of the counterparty to pay such refund or remittance (unless there is a dispute or claim as between the Company and such counterparty relating to such refund or remittance and the Company and such counterparty are working in good faith and in a commercially reasonable manner to resolve such dispute or claim in which case the Company shall keep Aron informed of the status of such dispute or claim), the Company shall remit or cause the remittance to Aron of such amount relating to the Product Procurement Payment (and, in the case of clause (y) above, irrespective of whether the Company actually received such amount relating to the Product Procurement Payment), and/or (b) any Refinery Product Contract relating to an Included Purchase Transaction is amended or modified such that (x) the quantity of Refinery Procured Barrels to be delivered and sold to the Company under such Refinery Product Contract is reduced, the related Included Purchase Transaction shall be amended accordingly so that the corresponding quantity of Refinery Procured Barrels to be delivered and sold to Aron pursuant to such Included Purchase Transaction shall also be reduced on a barrel-for-barrel basis and the Company shall, promptly after such amendment of the Refinery Product Contract, pay Aron an amount equal to the portion of the Product Procurement Payment that was previously paid by Aron pursuant to such Included Purchase Transaction that corresponds with the amount of such reduction in quantity and/or (y) the delivery date under such Refinery Product Contract is extended to a date that is greater than fifteen (15) days after the originally agreed delivery date thereunder, Aron may elect, in its sole discretion, (A) to approve such modified delivery date, in which case, the related Included Purchase Transaction shall be modified accordingly or (B) to terminate the related Included Purchase Transaction, in which case the Company shall promptly pay Aron the full amount of the Product Procurement Payment paid by Aron pursuant to such Included Purchase Transaction.

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(d)    With respect to each shipment of Products delivered under an Included Purchase Transaction that provides for delivery at the SPM Delivery Point, (i) the Company and Aron shall automatically be deemed to have entered into a buy/sell transaction (each, an “SPM Buy/Sell Product Transaction”) subject to and in accordance with the terms and conditions of the SPM Master Buy/Sell Product Confirmation, with the Company buying such shipment of Products from Aron at the SPM Delivery Point (the “Product Buy Leg”) and selling an equal quantity and quality of Product to Aron at the Products Intake Point (the “Product Sell Leg”), (ii) under the Product Buy Leg of each SPM Buy/Sell Product Transaction, the Company shall purchase from Aron the quantity of Product delivered under the relevant shipment with delivery and transfer of title and risk of loss all occurring at the SPM Delivery Point on the same basis as transfer of title and risk of loss are to occur under the Included Purchase Transaction so that, simultaneously with the transfer of title to such Products from the Third Party Seller to Aron, title to such Products is transferred from Aron to the Company and (iii) under the Product Sell Leg of such SPM Buy/Sell Products Transaction, the Company shall sell to Aron Products in a quantity equal to, and of a grade and quality at least equivalent to, that of the Products purchased by the Company under the Product Buy Leg of such SPM Buy/Sell Product Transaction, with delivery and transfer of title and risk of loss occurring at and as such Product passes the Products Intake Point. With respect to each SPM Buy/Sell Product Transaction, the parties acknowledge and agree that (A) any quantity shortfall, or grade or quality deficiency, with respect to the Products delivered under the Product Sell Leg shall be borne by and is solely for the account of the Company, (B) as a result of the foregoing arrangements, title to Product shall be held exclusively by the Company at all times as and after such Product passes the SPM Delivery Point, while such Product is being held in or transported by any subsea hoses, subsea pipelines or other infrastructure connecting the SPM Delivery Point to the Products Intake Point and until such Product passes the Products Intake Point, (C) all such Products in which the Company holds title shall be subject to the security interest and lien in favor of Aronthe Collateral Agent under the Lien Documents, subject to the Collateral Agency Agreement, (D) for purposes of calculating inventory measurements, determining cash settlements under Sections 10.1 and 10.2 and calculating any fees due hereunder or under any other Transaction Document, quantities of Products in which the Company has title as contemplated by clause (B) above shall not be counted as quantities of Products held in an Included Location and (E) for purposes hereof, neither an SPM Buy/Sell Product Transaction nor the Product Buy Leg or Product Sell Leg thereunder shall constitute a Included Purchase Transaction.

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(e)    For purposes of all computations hereunder relating to the value of any materials held in the Honolulu 10” Pipeline, including without limitation, for the purposes of Sections 10.1 and 10.2 hereof, the per-barrel price of any such materials shall equal the applicable Pricing Value for the Slop Product Group.

(f)    Payment Undertaking for Refinery Product Contracts.

(i)    From time to time, upon the request of the Company, Aron and the Company may endeavor to negotiate with a Third Party Seller a Product Payment Undertaking by Aron under which Aron will agree to remit or cause or otherwise arrange for the remittance to such Third Party Seller of funds sufficient to pay the Product Procurement Payment due to such Third Party Seller under one or more Refinery Product Contracts on the relevant Procurement Due Dates; provided in no event shall Aron be deemed to be obligated to enter into any proposed Aron Procurement Contract.

(ii)    To the extent deemed appropriate by Aron, the considerations under Section 5.3(c) applicable to the determining whether Aron elects to enter into a proposed Aron Procurement Contract shall also apply to Aron’s determination regarding whether to execute a Product Payment Undertaking with a Third Party Seller. As a condition to entering into any proposed Aron Procurement Contract, Aron shall have received a duly delivered trade ticket stating the quantity, grade and delivery terms of such Products expected to be delivered under such Aron Procurement Contract.

(iii)    For each Product Payment Undertaking that Aron enters into, the Company shall, automatically and without any further action by either Party, become obligated to reimburse Aron for, and pay all Ancillary Costs applicable to, the payment made or caused to be made by Aron under such Product Payment Undertaking (a “Company Product Reimbursement Obligation”); provided that (x) the amounts payable by the Company under the Company Product Reimbursement Obligation shall be determined in accordance with Schedule C hereof and (y) any security and credit support with respect to a Company Product Reimbursement Obligation shall be as provided in this Agreement and other Transaction Documents. The Company Product Reimbursement Obligation for a Product Payment Undertaking shall arise at the time as such Product Payment Undertaking is entered into by Aron.

(iv)    Without limiting any other rights or remedies of Aron hereunder (including any obligations of the Company to indemnify Aron), if any claim of any nature (including any quantity or quality claim) arises under a Refinery Product Contract for which Aron has made, or caused to be made, payment under a Product Payment Undertaking, then Aron shall, to the same extent as contemplated by Section 5.9(b), Section 5.9(c) and Section 5.9(d) hereof, cooperate with and take such actions as reasonably requested by the Company in pursuing or endeavoring to resolve such claim.

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8.2    Delivery and Storage of Products.

(a)    Unless otherwise agreed by Aron, all Products shall be delivered by the Company to Aron at the Products Intake Point of the Refinery Product Storage Tanks or any other Included Product Tanks (as the case may be) on a DDP (Incoterms 2010) basis, with the Company being responsible for ensuring delivery of such Product into the Refinery Product Storage Tanks.

(b)    Aron shall have exclusive right (to the extent that such exclusive right can be granted) to store Products in the Refinery Product Storage Tanks and all other Included Product Tanks as provided under the Storage Facilities Agreement and, if hereafter entered into, any Required Storage and Transportation Arrangements.

8.3    Expected Yield and Estimated Output.

(a)    From time to time, based on its then current operating forecast for the Refinery, the Company may provide to Aron a revised expected Product yield for the Refinery (each, a “Revised Estimated Yield” and, together with the Initial Estimated Yield, an “Estimated Yield”).

(b)    As set forth on Schedule J, the Company shall, based on the then current Estimated Yield and such other operating factors as it deems relevant, prepare and provide to Aron an estimate of the Product quantities it expects to deliver to Aron during such month (each, a “Monthly Product Estimate”).

8.4    Delivered Quantities.

(a)    For each Delivery Date, the Company shall provide to Aron, by no later than 7:00 p.m., HST on the second (2^nd) Business Day following such Delivery Date, meter tickets and/or meter readings and tank gauge readings confirming the Measured Product Quantity in each Included Product Tank for each Product delivered during that Delivery Date and other such relevant information including but not limited to Product identifiers and the location of Products, aggregated on a Product Group basis.

(b)    If the Company determines that any meter tickets and/or meter readings and tank gauge readings provided pursuant to clause (a) above are inaccurate, the Company will provide to Aron such corrected meter tickets and/or meter readings and tank gauge readings by no later than 7:00 p.m., HST on the third (3^rd) Business Day following the date on which such determination is made.

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8.5    Title and Risk of Loss. Title and risk of loss to Products shall pass from the Company to Aron as Products pass the Products Intake Point. Aron shall retain title and risk of loss through the Included Product Pipelines and in the Included Product Tanks. Title and risk of loss to Products shall pass from Aron (i) to the Company as Products pass at a Products Delivery Point or (ii) in the case of sales of Product by Aron under the Marketing and Sales Agreement, to the Company or third parties (as the case may be) at a Products Offtake Point, including tank to tank transfer.

8.6    Product Specifications. The Company agrees that all Products sold to Aron hereunder shall conform to the respective specifications set forth on Schedule A or to such other specifications as are from time to time agreed upon by the Parties.

8.7    Purchase Value of Products. The per Barrel purchase value for the Monthly Net Product Group Sales for each type of Product Group sold to Aron hereunder shall equal the Pricing Value specified for such Product Group, subject to the calculation of the Aggregate Monthly Product True-Up Amount as provided for on Schedule C.

8.8    Fees for Included Purchase Transactions. The Product Procurement Fee shall be applied to each Barrel of Product to be delivered to an Included Location or the Refinery pursuant to an Included Purchase Transaction. With respect to each month, the aggregate monthly value of the Product Procurement Fees (the “Aggregate Monthly Purchased Products Fee”) shall be calculated pursuant to Schedule C and shall be due and payable from the Company to Aron as specified in Schedule C.

8.9    Transportation, Storage and Delivery of Products.

(a)    Aron shall have the exclusive right (to the extent that such exclusive right can be granted) to inject, store and withdraw Products in the Storage Facilities as provided in the Storage Facilities Agreement.

(b)    Pursuant to the Required Storage and Transportation Arrangements, Aron shall have the exclusive right (to the extent that such exclusive right can be granted) to inject (except for such injections by the Company otherwise contemplated hereby), store, transport and withdraw Products in and on the Included Product Pipelines and the Included Product Tanks to the same extent as the Company’s rights to do so prior to the implementation of the Required Storage and Transportation Arrangements.

(c)    Insofar as any pipeline nominations are required to be made by Aron for any Product prior to any applicable Pipeline Cutoff Date for any month, Aron shall be responsible for making such pipeline and terminal nominations for that month; provided that, Aron’s obligation to make such nominations shall be conditioned on its receiving from the Company scheduling instructions for that month a sufficient number of days prior to such Pipeline Cutoff Date so that Aron can make such nominations within the lead times required by such pipelines and terminals. Aron shall not be responsible if an Included Product Pipeline is unable to accept Aron’s nomination or if the Included Product Pipelines must allocate capacity among its shippers.

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8.10    Material Product Grade Changes. If either the Company or Aron concludes in its reasonable judgment that the specifications or the mix of the constituents of a Pricing Group produced, or projected to be produced, differ materially from those that have generally been produced by the Refinery or those that the Company may produce from time to time acting as a prudent refinery operator, then the Company and Aron will endeavor in good faith to mutually agree on (i) acceptable price indices for such Product, and (ii) a settlement payment from one Party to the other sufficient to compensate the relevant Party for the relative costs and benefits to each of the price differences between the prior price indices and the amended price indices

ARTICLE 9

ANCILLARY COSTS; MONTH END INVENTORY; CERTAIN DISPOSITIONS; TANK MAINTENANCE

9.1    Ancillary Costs.

(a)    The Parties agree that, to the maximum extent reasonably practicable, the Company shall pay directly any item that would constitute an Ancillary Cost. The Parties shall cooperate and endeavor in a commercially reasonable manner to arrange for all such items to be billed directly to the Company and for the payee of such item to expect payment of such item solely from the Company.

(b)    Without limiting the foregoing, the Company agrees to reimburse Aron for all Ancillary Costs incurred by Aron. Such reimbursement shall occur from time to time upon demand of Aron to the Company. When making such demand, Aron shall promptly provide the Company with copies of any relevant trade tickets, invoices or other supporting documentation for Ancillary Costs incurred by Aron.

(c)    To the extent the Company has not paid or reimbursed Aron for any Ancillary Costs then outstanding and payable with respect to any month or any adjustments or refunds have occurred with respect to any Ancillary Costs previously paid or reimbursed, Aron may include in the Monthly True-Up Amount for such month as a separate line item on the applicable Monthly True-Up Amount invoice an amount to compensate the Parties, as appropriate, for such items.

(d)    From time to time upon the reasonable request of either Party, the Parties shall consult to assess whether (i) Ancillary Costs actually being incurred are consistent with the expectations of the Parties and the terms of this Agreement, (ii) procedures for paying, handling or otherwise dealing with Ancillary Costs can be improved or should be modified, (iii) documentation relating to substantiation of Ancillary Costs is sufficient and (iv) in any other respect the processing of Ancillary Costs hereunder can or improved or modified.

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9.2    Month End Inventory.

(a)    As of 11:59:59 p.m., HST, on the last day of each month, the Company shall apply the Volume Determination Procedures to the Included Locations, and based thereon shall determine for such month (i) the aggregate volume of Crude Oil held in the Included Crude Tanks at that time (the “Ending In-Tank Crude Inventory”) and (ii) for each Product, the aggregate volume of such Product held in the Refinery Product Storage Tanks and the other Included Product Tanks at that time, plus the Product Linefill for such Product at that time (each, an “Ending In-Tank Product Inventory”). The Company shall notify Aron of the Ending In-Tank Crude Inventory and each Ending In-Tank Product Inventory by no later than 5:00 p.m., HST on the tenth day thereafter, except that with respect to volume information provided by third parties, the Company shall endeavor to cause third parties to provide such information to Aron by the tenth (10^th) day after the end of such month.

(b)    Aron may, or may have Supplier’s Inspector, at Aron’s sole cost and expense, witness all or any aspects of the Volume Determination Procedures as Aron shall direct. If, in the reasonable judgment of Aron or Supplier’s Inspector, the Volume Determination Procedures have not been applied correctly, then the Company will cooperate with Aron, or Supplier’s Inspector, to ensure the correct application of the Volume Determination Procedures, including making such revisions to the Ending In-Tank Crude Inventory and any Ending In-Tank Product Inventory as may be necessary to correct any such errors.

(c)    The Company agrees that in addition to reporting to Aron the volume determinations made by the Company pursuant to Section 9.2(a), the Company will provide to Aron copies of all volume reports and statements related to Crude Oil or Products held at any Included Locations or with respect to any hydrocarbon inventories held by the Company at any other locations including any inventory, quantity, or quality inspection reports prepared by a third party.

9.3    Calculation of Sales.

(a)    For any month, the “Monthly Net Crude Sales” shall be determined as set forth on Schedule C.

(b)    For any month, and for each Pricing Group (as defined on Schedule P), the “Monthly Net Product Group Sales” shall be determined as set forth on Schedule C.

9.4    Disposition Following Force Majeure.

(a)    Notwithstanding anything to the contrary, if Aron decides or is required, due to an event of Force Majeure affecting either Party or otherwise, to sell to any unrelated third parties, in arm’s length transactions, any quantities of Crude Oil or Products that, based on the then current Monthly Crude Forecast, Aron would reasonably have expected to have sold to the Company (any quantity of Crude Oil or Products so disposed of by Aron being referred to as a “Disposed Quantity”), then the Company shall be obligated to pay to Aron an amount equal to the difference between the price at which such Disposed Quantity would have been sold to the Company, minus the amount realized in the sale to a third party (the “Disposition Amount”); provided, however, prior to Aron making any such disposition and provided that no Event of Default with respect to the Company has occurred and is continuing, the Company shall have a period equal to the lesser of (i) ten (10) Business Days from the occurrence of such Force Majeure event or (ii) the remaining time period before an event of default would occur under the contracts relevant to the Disposed Quantity as a result of such Force Majeure event, in which to arrange the disposition of such Disposed Quantity on commercially reasonable terms and conditions. In no event shall the Disposed Quantity exceed the aggregate amount of Crude Oil or Products that the Company would have been expected to purchase based on their current Monthly Crude Forecast for the period during which the Company is unable to take delivery of Crude Oil or Products as the result of the Force Majeure event or otherwise.

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(b)    In connection with its selling any Disposed Quantity, Aron shall promptly determine the Disposition Amount and issue to the Company an invoice for such amount. The Company shall pay to Aron the invoiced amount no later than the second Business Day after the date of such invoice. If, in connection with the sale of any Disposed Quantity, the Disposition Amount is a negative number, then Aron shall pay the amount of such excess to the Company no later than the second Business Day after the date of such invoice.

(c)    In connection with any disposition by Aron permitted by this Section 9.4, Aron will endeavor, in good faith, to consult with the Company regarding, and keep the Company apprised of Aron’s negotiations relating to, such disposition so long as, in Aron’s commercially reasonable judgment, doing so does not in any way interfere with or limit Aron’s ability to execute such disposition in such manner as it deems acceptable.

9.5    Tank and Pipeline Maintenance.

(a)    Promptly after the Company completes its annual business plan with respect to any year, it shall notify Aron of any tank maintenance contemplated with respect to such year that would result in any SPM Delivery Point, Included Crude Tank, Included Product Tank or Included Pipelines being unavailable.

(b)    The Company immediately shall notify Aron orally (followed by prompt written notice) of any previously unscheduled downtime or maintenance of any SPM Delivery Point, or in the case of any Included Crude Tank, Included Product Tank or Included Pipelines, any previously unscheduled downtime or maintenance expected to have a duration in excess of ten (10) days.

(c)    The Company shall give Aron at least thirty (30) days’ prior written notice of any scheduled maintenance that the Company and/or any of its Affiliates intends to conduct on any of the Crude Storage Tanks or the Included Company Product Tanks that would result in such storage tank being taken out of service for a period greater than thirty (30) days (“Tank Maintenance”).

(d)    In connection with any Tank Maintenance, the Parties shall promptly consult and endeavor to agree on adjusted inventory minimum and maximum levels and other appropriate adjustments hereunder that are to apply during the period of such Tank Maintenance, if deemed necessary by the Parties.

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(e)    The Company agrees that it will use its best efforts, consistent with good industry standards and practices, to complete (and to cause any third parties to complete) any Tank Maintenance as promptly as practicable. The Company shall provide Aron with an initial estimate of the period of any Tank Maintenance and shall regularly update Aron as to the progress of such Tank Maintenance. If, the Company determines that the expected completion date for Tank Maintenance has or is likely to change by thirty (30) days or more, it shall promptly notify Aron of such determination.

9.6    Certain Regulatory Matters.

(a)    If Aron shall determine, in its reasonable judgment, that as a result of (i) the taking effect of any Applicable Law after the date hereof, (ii) any change in Applicable Law or in the administration, interpretation or application thereof by any Governmental Authority, (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) or any interpretation thereof by any Governmental Authority or the entry of a final, non-appealable judgment or order in a court of competent jurisdiction (regardless of whether related to Aron) or (iv) any interpretation of or proposal to implement any of the foregoing by a Governmental Authority, including, without limitation, any of the foregoing events described in clauses (i)-(iv) arising from or relating to either the Federal Reserve Notice of Proposed Rulemaking or the Federal Reserve 620 Report and whether occurring before or after the Effective Date (each, a “Regulatory Event”), Aron or any of its Affiliates is or would (A) not be permitted to hold, store, transport, buy, finance, sell or own any or certain of the commodities subject to the transactions contemplated by the Transaction Documents, (B) be required to hold additional capital, or be assessed any additional capital or other charges, on the basis of holding, storing, transporting, buying, financing, selling, or owing any commodities from time to time, including without limitation, any of the commodities subject to the transactions contemplated by this Agreement and the other Transaction Documents, (C) be unable to perform in any material respect its obligations under this Agreement and the other Transaction Documents, or (D) were it to continue to hold, store, transport, buy, finance, sell or own any of the commodities subject to the transactions contemplated by this Agreement and the Transaction Documents or perform any such obligations, and taking into account other commodities and the volumes thereof held by Aron or any of its Affiliates from time to time, be or likely to be required to hold additional capital, or be assessed any additional capital or other charges, or be or likely to be subject to additional or increased burdens or costs (such additional capital or other charges, burdens and costs, collectively, “Additional Costs”), then it shall notify the Company in writing of such determination (a “Regulatory Event Notice”). Promptly following the sending of a Regulatory Event Notice, Aron shall propose what actions or steps, if any, either Party or both Parties could implement to alleviate, minimize and/or mitigate the effect of any such Regulatory Event, and the Company shall consider any such actions or steps in good faith. If, in Aron’s reasonable judgment, such actions or steps can be implemented with respect to the transactions contemplated by this Agreement and the other Transaction Documents without adversely impacting the business conducted by Aron and its Affiliates generally, including, without limitation, without resulting in Aron or its Affiliates being required to incur any Additional Costs on the basis of holding, storing, transporting, buying, selling or owing any commodities from time to time, including without limitation, any of the commodities subject to the transactions contemplated by this Agreement and the other Transaction Documents, while preserving the economic terms and conditions of this Agreement and the other Transaction Documents (including economic benefits, risk allocation, costs and Liabilities), then the Parties shall, in good faith and in a commercially reasonable manner, endeavor to implement such actions and steps. If, in Aron’s reasonable judgment, no such actions or steps are so identified or the Parties are unable to implement any actions and steps that have been so identified, then Aron may, by written notice to the Company (a “Regulatory Termination Notice”), elect to terminate this Agreement in the manner provided for in Article 20 on such date Aron shall specify in such notice, which date shall constitute a Termination Date for purposes of Article 20; provided that (x) (unless such Regulatory Event has or is expected to become effective at an earlier date) the date specified in such Regulatory Termination Notice shall occur at least one hundred and twenty (120) days after the date such notice is given and if practicable on the last day of a month and (y) if the relevant Regulatory Termination Notice relates only to the incurrence of Additional Costs, then if and for so long as the Company exercises its option under Section 9.6(b) below, no termination shall result from such Regulatory Termination Notice. In the case of a Regulatory Termination Notice referred to in clause (y) of the preceding sentence, Aron will also provide to the Company an estimate of such Additional Costs which Aron shall determine in a commercially reasonable manner based on such information relating to the relevant Regulatory Event as is then available to Aron.

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(b)    If Aron gives a Regulatory Termination Notice relating to a Regulatory Event Notice that relates only to the incurrence of Additional Costs, then the Company may elect, by written notice to Aron, to compensate Aron from time to time for such Additional Costs incurred by Aron and so long as the Company compensates Aron for such Additional Costs, this Agreement shall not be terminated on the basis of such Regulatory Event Notice; provided that (i) upon giving such notice to Aron, the Company shall become obligated to pay all Additional Costs thereafter incurred, subject to clause (iv) below, and without limiting such obligation Aron may require that the Company execute such further documents or instruments as Aron may request to confirm such obligation, (ii) the amount of such Additional Costs shall be determined by Aron in accordance with its internal procedures and shall include Additional Costs directly arising from this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby and the portion of any other Additional Costs allocable, on a pro rata basis, to this Agreement, such Transaction Documents and such transactions, (iii) such Additional Costs shall be invoiced by Aron to the Company on a monthly basis and be due and payable within three (3) Business Days after invoicing, it being acknowledged that to the extent feasible, Aron will endeavor to include such Additional Costs in the monthly settlement provided for under Section 10.2 hereof and (iv) the Company may elect to cease compensating Aron for such Additional Costs by written notice which shall be effective 120 days after being given, in which case Aron may reinstate its Regulatory Termination Notice with respect to such Additional Costs.

(c)    As used herein, “Federal Reserve Notice of Proposed Rulemaking” means the notice of proposed rulemaking issued by the Board of Governors of the Federal Reserve System titled “Risk-based Capital and Other Regulatory Requirements for Activities of Financing Holding Companies Related to Physical Commodities and Risk-based Capital Requirements for Merchant Banking Investments” (Docket No. R-1547; RIN 7100 AE-58); and “Federal Reserve 620 Report” means the Report to the Congress and the Financial Stability Oversight Council Pursuant to Section 620 of the Dodd-Frank Act issued in September 2016 by the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency.

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ARTICLE 10

PAYMENT PROVISIONS

10.1    Interim Payments.

(a)    For each day, Aron will calculate a provisional payment (each an “Interim Payment”) in accordance with the calculation set forth in Schedule C for that day, in the manner illustrated on Schedule G and using Best Available Inventory Data; provided that if inventory data have not been reported on any day within a three (3) Business Day period, Aron will use the inventory data for the day occurring during the thirty (30) day period preceding such calendar day that results in the largest Estimated Daily Net Crude Sales or the smallest Estimated Daily Net Product Sales (as the case may be), in any case resulting in an amount equal to the highest daily amount that would be payable to Aron; provided further that, if Aron determines that any inventory data it has used in such determination was inaccurate by at least 20,000 barrels, then Aron shall adjust future Interim Payments to take account of any corrected inventory data.

(b)    With respect to the Estimated Daily Net Crude Sales and Estimated Daily Net Product Sales,

(i)    The inventory data to be used in determining each shall include the Best Available Inventory Data.

(ii)    The Company shall, at the end of each day, provide to Aron inventory reports in the form set forth on Schedule H, showing the quantity of Crude Oil held in the Included Crude Tanks and the quantities of Products held in the Included Product Tanks; and

(iii)    The Company shall provide Aron with all relevant transfer data for Crude Oil Barrels that are in transit between Included Crude Tanks at the Par East (as identified in Schedule E) and the Par West (as identified in Schedule E).

(c)    For each day, Aron shall determine the Estimated Daily Net Crude Sales and Estimated Daily Net Product Sales, in a commercially reasonable manner based on the inventory data and otherwise in the manner contemplated by this Section 10.1 and Schedule G, and to the extent it deems appropriate taking into account such other data as may be relevant to the determination of such estimates.

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(d)    Aron shall advise the Company of the amount of an Interim Payment via invoice issued in accordance with Schedule G. The party obligated to make such Interim Payment shall cause such payment to be made on the applicable Payment Date indicated on Schedule G.

(e)    For any Business Day, the Interim Payment to be determined and advised by Aron shall be the Interim Payment for that day, provided that if such Business Day is followed by one or more non-Business Days (whether weekends or Bank Holidays), then Aron shall determine and advise to the Company the Interim Payment for that Business Day as well as the Interim Payment each of such following non-Business Days and all such Interim Payments shall be due on the same day.

(f)    From time to time Aron may (but shall not be obligated to) include a provisional calculation of the Monthly Product Purchase Adjustment or Monthly Product Sale Adjustment in the applicable Interim Payment, which shall be calculated by Aron based on the current Daily Value or Aron’s good faith estimate of pricing and volume based on the applicable trade ticket (irrespective of whether Aron was invoiced for the applicable Crude Oil or Product) (each such adjustment, a “Provisional Marketing Adjustment”); provided that (x) if any calculated adjustment is positive, it will represent an amount payable to Aron and (y) if any calculated adjustment is negative, it will represent an amount payable to the Company. For avoidance of doubt, Aron may include such provisional calculation in the applicable Interim Payment in respect of any Crude Oil or Products sold or purchased pursuant to the Marketing and Sales Agreement or any Payment Undertaking. All provisionally charged adjustments will be credited in the applicable Monthly True-Up Amount. All amounts included in any Interim Payment as a Provisional Marketing Adjustment will be taken into account (but without duplication) for purposes of calculating any subsequent Provisional Marketing Adjustments or any Monthly Product Purchase Adjustment or Monthly Product Sale Adjustment included as a part of a subsequent Monthly True-Up Amount (or estimated Monthly True-Up Amount) or any unpaid amounts hereunder.

10.2    Monthly True-Up Amount.

(a)    Aron will use commercially reasonable efforts to provide to the Company, within five (5) Business Days following receipt of the Ending In-Tank Crude Inventory and the Ending In-Tank Product Inventory pursuant to Section 9.2, a calculation and appropriate documentation to support such calculation for such month for a monthly true-up payment (the “Monthly True-Up Amount”); provided that, if, at any time, the Liquidity of the Company is less than $50,000,000.00 for five (5) consecutive Business Days as of the last date the Company was required to report its Liquidity pursuant to Section 13.2(d), Aron may (but shall not be obligated to), in respect of any Monthly True-Up Amount, provide to the Company an estimate of such Monthly True-Up Amount associated with the applicable true-up month at any time on or after the first calendar day of the immediately following month, and each such estimated Monthly True-Up Amount shall be payable in accordance with this Section 10.2(a). The Monthly True-Up Amount for any month shall be equal to the following in accordance with Schedule C:

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(i)    the Total Monthly Crude Oil True-Up Amount (as defined in Schedule C); plus

(ii)    the Aggregate Monthly Product True-Up Amount (as defined in Schedule C), plus

(iii)    the aggregate amount of unpaid or unreimbursed Ancillary Costs for such month and any adjustments relating to estimated or paid Ancillary Cost, plus

(iv)    the Counterparty Crude Sales Fee for such month, plus

(v)    the Discretionary Draw Availability Fee and Discretionary Draw Utilization Fee, plus

(vi)    the Monthly Cover Costs; plus

(vii)    any other amount then due from the Company to Aron under this Agreement or any other Transaction Document, minus

(viii)    any Fee Credit, minus

(ix)    any other amount then due from Aron to the Company under this Agreement or any other Transaction Document.

If the Monthly True-Up Amount is a negative number, then the absolute value of such number shall be the amount due from Aron to the Company, and if the Monthly True-Up Amount is a positive number, such amount shall be due from the Company to Aron. Either Party shall pay any True-Up Amount due to the other Party no later than two (2) Business Days after such Party’s receipt of the monthly invoice and all related documentation supporting the invoiced amount. For the avoidance of doubt, the difference between any provisional payment amount in respect of a J. Aron Payment Obligation and the ultimate amount payable under any LC Related Aron Procurement Contract shall be subject to the true-up provisions under Section 10.1 and this Section 10.2, provided that, for the avoidance of doubt, the full amount of a J. Aron Payment Obligation shall be deposited to the Collection Account upon satisfaction of the conditions set forth in Section 5.13(d)(i) rather than being incorporated into any Interim Payments and Monthly True-Up Amounts.

(b)    For purposes of determining the amounts due under clauses (i) and (ii) of Section 10.2(a), the definitions and formulas set forth in Schedule C shall apply and for purposes of determining the amount due under clause (v) and (vi) of Section 10.2(a), the definitions and formula set forth in Schedule F shall apply. In addition, the Fee Letter contains various definitions and formulas that shall be applied for purposes of determining certain of the amounts referred to in Section 10.2(a).

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10.3    Maximum Inventory Levels. Notwithstanding any transfer of title to Aron to all such Crude Oil or Products, Aron shall not be obligated at any time to pay for any quantity of Crude Oil or Product under Section 10.1 or 10.2 or otherwise hereunder to the extent such payment would relate to an aggregate quantity of Crude Oil or such Products in the Included Locations in excess of the then applicable maximum level as set forth on Schedule D or as may have been temporarily adjusted under Section 7.9; provided that (i) from and after the Second Restatement Effective Date to June 1, 2022, the maximum level set forth in Schedule D shall be no more than 6,000,000 Barrels; and (ii) from and after June 1, 2022, if the Leverage Ratio for the fiscal quarter ended March 31, 2022 is greater than or equal to 3.50:1.00, the maximum level set forth in Schedule D shall be 5,000,000 Barrels until such time the Leverage Ratio for any fiscal quarter ending thereafter is less than 3.50:1.00 at which time the maximum level set forth in Schedule D for the Specified Period (as defined below) shall be increased to 6,000,000 Barrels for so long as the Leverage Ratio for such fiscal quarter most recently ended is less than 3.50:1.00 (it being agreed that the Leverage Ratio shall be tested on April 1 (in respect of the fiscal quarter ended December 31 of the previous year), June 1, September 1 and December 1 (in respect of each other fiscal quarter most recently ended) in determining the maximum level set forth in Schedule D for the applicable period). For purposes hereof “Specified Period” means each of the following periods of each calendar year: (i) June 1 to August 31; (ii) September 1 to November 30; (iii) December 1 to March 31; and (iv) April 1 to May 31.

10.4    Invoices.

(a)    Invoices shall be prepared and submitted in accordance to Schedule G.

(b)    If the Company in good faith disputes the amount of any invoice issued by Aron relating to any amount payable hereunder (including Interim Payments, Monthly True-Up Amounts or Ancillary Costs), it nonetheless shall pay Aron the full amount of such invoice by the due date and inform Aron in writing of the portion of the invoice with which it disagrees and why; provided that, to the extent that the Company promptly informs Aron of a calculation error that is obvious on its face, the Company shall pay Aron the undisputed amounts and may retain such disputed amount pending resolution of such dispute. The Parties shall cooperate in resolving the dispute expeditiously. If the Parties agree that the Company does not owe some or all of the disputed amount or as may be determined by a court pursuant to Article 25, Aron shall return such amount to the Company, together with interest at the Fed Funds Rate from the date such amount was paid, within two (2) Business Days from, as appropriate, the date of their agreement or the date of the final, non-appealable decision of such court. Following resolution of any such disputed amount, Aron will issue a corrected invoice and any residual payment that would be required thereby will be made by the appropriate Party within two (2) Business Days.

10.5    Other Feedstocks. If Aron procures any catfeed or other non-Crude Oil feedstocks for the Company to run at the Refinery, the Parties shall agree in connection with such procurement upon terms for incorporating the purchase of such feedstocks into the daily and monthly settlements contemplated by Sections 10.1 and 10.2 above.

10.6    Adjustment Date Settlements.

(a)    In connection with the adjustments contemplated hereunder to occur on and as of the Adjustment Date, Aron shall determine in a commercially reasonable manner any payments required to be made by one party to the other to compensate for the change in certain terms on and as of the Adjustment Date and, promptly after making such determination, Aron shall prepare and issue an invoice reflecting all such payments and the net payment resulting therefrom which shall be due from one party to the other as provided in Section 10.6(b) below or for amounts not covered under Section 10.6(b), no later than the second Business Day following the date on which such invoice is issued.

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(b)    Without limiting the generality of Section 10.6(a), it is agreed that, in connection with the Adjustment Date, Aron shall in a commercially reasonable manner calculate, and either Aron or the Company (as appropriate) shall be obligated to make, the payments provided for below:

(i)    With respect to each Product Group, a Provisional Step-Out amount (as defined in Schedule B-1) and a Provisional Step-In amount (as defined in Schedule B-2) shall each be calculated based on the end-of-day inventories reported for June 23, 2021 and the difference between such amounts (the “Net Provisional Adjustment Amount”) shall be due from the Company to Aron if the Provisional Step-Out amount is greater than the Provisional Step-In Amount and otherwise from Aron to the Company;

(ii)    The Net Provisional Adjustment Amounts shall be included in the invoice issued by Aron on June 30, 2021 and shall be included in the Interim Payment due on July 1, 2021;

(iii)    In connection with the calculation of each Net Provisional Adjustment Amount, Aron shall calculate any additional amount due from one party to the other as a result of provisionally closing out and reestablishing the related FIFO balance based on the Target Month End Crude Volume or Target Month End Product Volume (as applicable) for the June 2021 Delivery Month (subject to clause (vii) below). If any such amount is determined to be due, it will be invoiced and payable concurrently with the related Net Provisional Adjustment Amount;

(iv)    With respect to each Product Group, a Step-Out amount (as defined in Schedule B-1) and a Step-In amount (as defined in Schedule B-2) shall be calculated based on the end-of-day inventories reported for June 30, 2021 and the difference between such amounts (the “Net Adjustment Amount”) shall be due from the Company to Aron if the Step-Out amount is greater than the Step-In Amount and otherwise from Aron to the Company; provided that if the Net Adjustment Amount for a Product Group is due from the same Party that paid the Net Provisional Adjustment Amount for such Product Group, then the amount due pursuant to this clause (iv) for such Product Group shall equal the difference between such amounts and be due from such Party if such Net Provisional Adjustment Amount is less than such Net Adjustment Amount and otherwise from the other Party, and if the Net Adjustment Amount for a Product Group is not due from the Party that paid the Net Provisional Adjustment Amount for such Product Group, then the amount due pursuant to this clause (iv) for such Product Group shall equal the sum of such amounts and shall be due from the Party that did not pay such Net Provisional Adjustment Amount;

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(v)    The amounts determined under clause (iv) above shall be included in the invoice issued by Aron on July 7, 2021 and shall be included in the Interim Payment due on July 8, 2021;

(vi)    In connection with the calculation of each Net Adjustment Amount, Aron shall calculate any additional amount due from one party to the other as a result of closing out and reestablishing the relevant FIFO balance based on the Target Month End Crude Volume or Target Month End Product Volume (as applicable) for the June 2021 Delivery Month (subject to clause (vii) below). If any such amount is determined to be due, it will be invoiced and payable concurrently with the related Net Adjustment Amount; provided that such amount shall be netted against or aggregated with any amount paid under clause (iii) above so that, as a result, the Party obligated to pay such amount shall have done so after giving effect to such netting or aggregation; and

(vii)    For purposes of calculating the payments under clauses (iii) and (vi) above with respect to the Gasoline Product Group, the calculation for the reestablishing of the FIFO position shall be based on the sum of the volumes for the Gasoline Product Group and the Naphtha Product Group, which shall equal the Target Month End Product Volume of the Gasoline Product Group for the June 2021 Delivery Month and shall be allocated 224,000 Barrels to the Gasoline Product Group and 198,000 Barrels to the Naphtha Product Group.

ARTICLE 11

DISCRETIONARY DRAW FACILITY

11.1    DUP Facility: Discretionary Draw Commitments.

(a)    The Parties agree that, notwithstanding anything herein to the contrary: (a) with respect to the period from the Second Restatement Effective Date to the Adjustment Date, the terms and conditions providing for the deferred payment arrangements between the Company and Aron as set forth in Article 11 and related sections and defined terms (including all arrangements relating to fees in respect thereof) of the First Amended and Restated S&O Agreement shall be in full force and effect notwithstanding the amendment and restatement of the First Amended and Restated S&O Agreement occurring on the Second Restatement Effective Date (such terms and conditions, the “DUP Facility T&C’s”); and (b) with respect to the period after the Adjustment Date, the DUP Facility T&C’s shall cease to be in effect and such deferred payment arrangements shall for all purposes hereunder be replaced by the Discretionary Draw Facility.

(b)    During the Discretionary Draw Commitment Period, subject to the terms and conditions hereof, Aron agrees to make advances constituting Discretionary Draw Advances to the Company in Dollars in an aggregate principal amount at any one time outstanding up to but not exceeding the lesser of (i) the Discretionary Draw Maximum Commitment Amount and (ii) the Borrowing Base as of such date (based upon the Collateral Reports delivered by the Company to Aron in connection with the applicable advance constituting a Discretionary Draw Advance, in each case, in accordance with the terms and conditions hereof). Amounts borrowed pursuant to this Article 11 that are repaid or prepaid may, subject to the terms and conditions hereof, be reborrowed during the Discretionary Draw Commitment Period. The Discretionary Draw Commitment shall terminate on the Business Day immediately preceding the Termination Date.

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11.2    Borrowing Mechanics for the Discretionary Draw Advance and Incremental Discretionary Draw Amount.

(a)    To request an advance constituting a Discretionary Draw Advance or an Incremental Discretionary Draw Amount, the Company shall satisfy each of the conditions set forth in Section 2.2 prior to the applicable Credit Date.

(b)    Aron will make an advance constituting a Discretionary Draw Advance or an Incremental Discretionary Draw Amount available to the Company by promptly remitting the applicable amount of such Discretionary Draw Advance or Incremental Discretionary Draw Amount to a Controlled Account specified by the Company in the applicable Discretionary Draw Election Report in accordance with Section 10 and Schedule G. Notwithstanding the foregoing, if the Interim Payment payable on any Payment Date (as set forth in Schedule G) is due from the Company to Aron and the Company has requested that a Discretionary Draw Advance or an Incremental Discretionary Draw Amount be made on such Payment Date and the conditions thereto have been satisfied so that such Payment Date is also the relevant Credit Date, then on such date Aron may, at its option, set off the amount of such Interim Payment against the amount of such Discretionary Draw Advance or  Incremental Discretionary Draw Amount and to the extent of such set off, such Interim Payment and such Discretionary Draw Advance or  Incremental Discretionary Draw Amount shall be deemed to have been paid and received by the relevant Parties and to the extent any portion of any such amount exceeds that amount of such set off, it will, in the case of such Interim Payment, be paid by the Company and, in the case of such Discretionary Draw Advance or  Incremental Discretionary Draw Amount, be remitted by Aron on the applicable Payment Date or Credit Date.

(c)    Each request for an advance constituting a Discretionary Draw Advance or an Incremental Discretionary Draw Amount shall be deemed to be a representation and warranty by the Company that, since December 31, 2020, there has been no event or condition that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

11.3    Reserves. Anything to the contrary in this Article 11 notwithstanding, (i) Aron shall have the right (but not the obligation) to establish and increase or decrease Reserves against the Borrowing Base; provided that, Aron shall notify the Company substantially simultaneously with the establishment or increase of any such Reserves, but the failure of Aron to so notify the Company shall not cause such establishment or increase of such Reserve to be ineffective and (ii) without limiting the foregoing, at any time that more than $165,000,000 in Discretionary Draw Advances are outstanding (after giving effect to any adjustments made pursuant to Section 11.2(b)), an additional Reserve of $5,000,000 shall become and continue to be effective, which Reserve may be reduced dollar-for-dollar by the Company posting with Aron additional cash collateral in an amount equal to all or part of such Reserve, provided that such posted cash shall be credited against such Reserve as of a specified Business Day only if the Company notifies Aron of such election no later than 4:00 p.m. (New York City time) on the Business Day on which the applicable invoice for such specified Business Day is to be issued in accordance with Schedule G (and in the event the outstanding Discretionary Draw Advances thereafter are less than or equal to $165,000,000, such additional Reserve shall cease to be effective and, to the extent cash has been posted against such Reserve, Aron shall promptly return such cash to the Company).

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11.4    Eligible Receivables and Eligible Hydrocarbon Inventory.

(a)    By no later than 7:00 p.m. HST on each Business Day, the Company shall provide to Aron, via email, reports in form and substance reasonably satisfactory to Aron as illustrated in Schedule H (the “Receivables Report”, “Billing Due Report” and “Inventory Report”) showing (i) the then current total amount of Eligible Receivables and a breakdown of such Eligible Receivables by Acceptable Account Debtor, which breakdown shall indicate the amount and Remaining Tenor of each Eligible Receivable owing by the relevant Acceptable Account Debtor; provided that if any Receivables Report is not delivered by such time on any Business Day, Aron will use the Receivables Report for the day occurring during the thirty (30) calendar day period preceding such Business Day in the manner illustrated on Schedule G that corresponds to the smallest amount of the Borrowing Base set forth in such Receivables Report; and (ii) the inventory quantities of Crude Oil and Products from the immediately previous Business Day (and any other prior day subsequent thereto that was not a Business Day) that then constitute Eligible Hydrocarbon Inventory, including the quantity and location of each type of inventory; provided that, if any Inventory Report is not delivered by such time on any Business Day, Aron will use the Inventory Report for the day occurring during the thirty (30) calendar day period preceding such Business Day in the manner illustrated on Schedule G that corresponds to the smallest amount of the Borrowing Base set forth in such Inventory Report. If, despite its best efforts, the Company is or anticipates it will be unable to provide the reports required under this Section 11.4(a) for five (5) or more consecutive Business Days, it shall so advise Aron and then the Company and Aron shall endeavor in good faith to implement an alternative interim inventory reporting arrangement that is satisfactory to Aron and if such satisfactory interim arrangement is implemented, it will be used for such period as is agreed by the parties in connection with its implementation; provided that the foregoing shall not relieve the Company of its obligation to continue to use best efforts to restore its ability to deliver the Inventory Report. If the parties are unable to agree on an alternative interim inventory reporting arrangement or following the termination of such arrangement, the Company fails to provide Aron the Inventory Reports required under this Section 11.4(a) for five (5) consecutive Business Days, the total amount of Eligible Receivables and Eligible Hydrocarbon Inventory, as applicable, shall be deemed to be zero for all purposes hereunder until such time the Company provides Aron the reports required under this Section 11.4(a) and Aron is satisfied with the contents thereof.

(b)    Promptly after receipt of each Receivables Report, Billing Due Report and Inventory Report, Aron shall calculate the Borrowing Base based on the information provided in such report; provided that Aron may only exclude from such calculation any receivables included in such report that Aron, in its reasonable judgment, determines in good faith do not constitute Eligible Receivables and any Hydrocarbons that Aron, in its reasonable judgement, determines in good faith do not constitute Eligible Hydrocarbon Inventory.

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(c)    The Company, by delivering a Receivables Report, Billing Due Report and Inventory Report shall be deemed to represent and warrant to Aron (to the same extent as if set forth in this Agreement) that (i) all Accounts identified as Eligible Receivables in such report meet all the requirements of an Eligible Receivable set forth in this Agreement and (ii) all Hydrocarbons identified as Eligible Hydrocarbon Inventory in such report meet all the requirements of Eligible Hydrocarbon Inventory set forth in this Agreement.

(d)    Prior to September 30 of each calendar year, the Company shall procure and cause to be provided to Aron a due diligence report prepared by KPMG LLP and addressed to Aron relating to the Company’s Eligible Receivables and Eligible Hydrocarbon Inventory as of June 30 of such calendar year and other matters pertaining to the Company and its operations and financial condition, which report shall be consistent with customary practices for accounts receivable and inventory audits for asset-based lending facilities conducted by independent auditors for Aron in similar transactions (and shall not involve any physical inspection of the Company’s Inventory) (a “Borrowing Base Assessment”).  The Company further agrees that, if Aron has in its reasonable judgment identified material discrepancies between those Accounts that the Company has reported as Eligible Receivables and the Accounts that actually qualify as Eligible Receivables, or those Hydrocarbons that the Company has reported as Eligible Hydrocarbon Inventory and the Hydrocarbons that actually qualify as Eligible Hydrocarbon Inventory, then Aron may require that the Company procure and cause to be provided to Aron one or more additional Borrowing Base Assessments, provided that Aron shall not be entitled to require more than two additional Borrowing Base Assessments during any 12 month period.  All costs of procuring such Borrowing Base Assessment shall be borne by the Company.

11.5    [Reserved].

11.6    Specified Government Accounts. Specified Government Accounts shall constitute Eligible Receivables without regard to the concentration limit set forth in clause (y) of the definition of “Eligible Receivables” so long as (i) the aggregate amount of such Specified Government Accounts does not constitute more than forty percent (40%) of the sum of all Eligible Receivables; and (ii) the Company shall in good faith and in a commercially reasonable manner diligently pursue and endeavor to satisfy the Government Accounts Assignment Condition and obtain a Government Response with respect to such Specified Government Accounts.

11.7    Use of Proceeds. The Company will use the proceeds of each advance constituting a Discretionary Draw Advance solely for working capital requirements and other general corporate purposes of the Company and any other purpose not prohibited by the Transaction Documents.

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11.8     Evidence of Debt; Register; Notes.

(a)    Aron’s Evidence of Debt. Aron shall maintain records evidencing the obligations of the Company owing to Aron, including the principal amount of the Discretionary Draw Advance made by Aron and each repayment and prepayment in respect thereof. Such records maintained by Aron shall be prima facie evidence thereof, absent manifest error; provided that the failure to maintain any such records, or any error therein, shall not in any manner affect the obligation of the Company to pay any amounts due hereunder in accordance with the terms hereof.

(b)    Notes. Upon the request of Aron by written notice to the Company, the Company shall promptly prepare, execute and deliver to Aron a promissory note payable to Aron to evidence the Discretionary Draw Advance, which shall be substantially in the form attached hereto as Schedule GG.

11.9      Reserved.

11.10    Reserved.

11.11    Fees.

(a)    The Company agrees to pay to Aron the Discretionary Draw Availability Fee and the Discretionary Draw Utilization Fee in respect of the Discretionary Draw Advance, in accordance with Schedule C.

(b)    All fees referred to in Section 11.11(a) shall be calculated on the basis of a year of 360 days and the actual number of days elapsed and shall be payable monthly in arrears for each calendar month of each year on the Monthly True-Up Date applicable to such month and on the Expiration Date.

(c)    The Company agrees to pay on the Second Restatement Effective Date to Aron, closing fees in the amounts separately agreed between the Company and Aron, as set forth in Schedule C or the Fee Letter.

(d)    Fees paid hereunder shall not be refundable or creditable under any circumstances.

11.12    Repayment of Discretionary Draw Advance. The Company shall repay to Aron the then unpaid principal amount of the Discretionary Draw Advance on the Expiration Date.

11.13    Prepayments; General Provisions Regarding Prepayments.

(a)    Voluntary Prepayments.

(i)    From time to time, the Company may, without premium or penalty but subject to compliance with the conditions set forth in this Section 11.13(a) and with Section 11.13(c), prepay the Discretionary Draw Advance in whole or in part, in each case, pursuant to the Discretionary Draw Election Reports as described in Section 11.13(a)(ii).

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(ii)    To make a voluntary prepayment pursuant to Section 11.13(a), the Company shall deliver, via e-mail, to Aron not later than 4:00 p.m. (New York City time) on the immediately preceding Business Day prior to the proposed date of prepayment of the Discretionary Draw Advance or any portion thereof, the Discretionary Draw Election Report which shall specify the prepayment date (which shall be a Business Day) and the total principal amount of the Discretionary Draw Advance then outstanding, after giving effect to any prepayment thereof requested to be made on such prepayment date, to be calculated in accordance with Schedule C. The request for such prepayment under such Discretionary Draw Election Report shall be irrevocable, and the principal amount of the Discretionary Draw Advance specified therein shall become due and payable on the prepayment date specified therein; provided that any request for prepayment under the related Discretionary Draw Election Report pursuant to this Section 11.13(a)(ii) may state that such request is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be rescinded by the Company (by written notice to Aron on or prior to the specified date of prepayment) if such condition is not satisfied.

(b)    No Voluntary Commitment Reductions. The Company shall not reduce or terminate any commitments of Aron hereunder.

(c)    Mandatory Prepayments.

(i)    Total Utilization in Excess of Discretionary Draw Maximum Commitment Amount. In the event and on each occasion that the Discretionary Draw Advance exceeds the amount of the Discretionary Draw Maximum Commitment Amount, the Company shall promptly (but in any event within one (1) Business Day) prepay the Discretionary Draw Advance in an aggregate amount equal to such excess.

(ii)    Total Utilization in Excess of Borrowing Base. If, at any time, (A) the Discretionary Draw Advance on such date exceeds (B) the Borrowing Base reflected in the Collateral Reports most recently delivered by the Company to Aron with respect to Eligible Receivables or Eligible Hydrocarbon Inventory, then Aron shall advise the Company of the aggregate amount equal to the amount of such excess via an invoice issued in accordance with Schedule G and the Company shall promptly (but in any event within one (1) Business Day) prepay the Discretionary Draw Advance in the amount specified in such invoice.

(d)    General Provisions Regarding Payments.

(i)    All payments by the Company of principal, fees and other amounts required to be made hereunder shall be made by wire transfer of same day funds in Dollars, without defense, recoupment, set-off or counterclaim, free of any restriction or condition, to the account of Aron in the United States of America most recently designated by it for such purpose and received by Aron not later than 4:00 p.m. (New York City time) on the date due for the account of the Persons entitled thereto.

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(ii)    Whenever any payment to be made hereunder with respect to the Discretionary Draw Advance shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of the payment of interest hereunder.

(iii)    Any payment hereunder by or on behalf of the Company to Aron that is not received by Aron in same day funds prior to 4:00 p.m. (New York City time) on the date due shall, unless Aron shall determine otherwise, be deemed to have been received, for purposes of computing fees hereunder (including for purposes of determining the applicability of Section 19.3), on the Business Day immediately following the date of receipt (or, if later, the Business Day immediately following the date the funds received become available funds).

(iv)    If an Event of Default shall have occurred and the maturity of the Discretionary Draw Advance shall have been accelerated pursuant to Section 19, all payments or proceeds received by Aron in respect of any of the Obligations hereunder, or from any sale of, collection from or other realization upon all or any part of the Collateral, shall be applied in accordance with the terms hereof.

(v)    Aron shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement.

11.14    Making or Maintaining the Discretionary Draw Advance.

(a)    Benchmark Replacement Setting.

(i)    Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, Aron and the Company may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement.

(ii)    Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, Aron 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 Transaction 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 Transaction Document.

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(iii)    Notices; Standards for Decisions and Determinations. Aron will promptly notify the Company of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement and (iii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by Aron pursuant to this Section 11.14(a), 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 sole discretion and without consent from any other party.

(b)    Inability to Determine Applicable Interest Rate. If, as of any date, Aron determines (which determination shall be conclusive absent manifest error) that the SOFR Rate cannot be determined pursuant to the definition thereof, then Aron shall give notice (which may be telephonic) thereof to the Company as promptly as practicable, whereupon, (x) no Discretionary Draw Advances may be made until such time as Aron notifies the Company that the circumstances giving rise to such notice no longer exist, and (y) for any Discretionary Draw Advances that have been made, the Parties shall endeavor to establish an alternate rate of interest to the SOFR Rate in accordance with clause (a) above. Aron shall promptly notify the Company when such circumstances no longer exist.

(c) Notices; Standards for Decisions and Determinations. Aron will promptly notify the Company of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement and (iii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by Aron pursuant to this Section 11.14(a), 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 sole discretion and without consent from any other party.

(c)    (d) Illegality or Impracticability of the Discretionary Draw Advance. In the event that on any date Aron shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, or continuation of, its Discretionary Draw Advance (i) has after the Second Restatement Effective Date become unlawful as a result of compliance by Aron in good faith with any law (or would conflict with any treaty, rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable as a result of contingencies occurring after the Second Restatement Effective Date that materially and adversely affect the position of Aron in the applicable markets, then, if Aron shall have provided notice thereof to the Company, Aron shall be an “Affected Lender”. If the Company receives a notice from Aron pursuant to the preceding sentence, then (1) the obligation of Aron to increase the Discretionary Draw Advance shall be suspended until such notice shall be withdrawn by Aron, and (2) Aron’s obligations to maintain the Discretionary Draw Advance then outstanding (the “Affected Advance”) shall be terminated when required by law. Aron shall promptly notify the Company when the circumstances that led to its notice pursuant to this Section 11.14(b) no longer exist.

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(d)    (e) Compensation for Breakage. In the event that (i) a borrowing of the Discretionary Draw Advance or Incremental Discretionary Draw Amount does not occur on a date specified therefor in any Discretionary Draw Election Report given by the Company (other than as a result of a failure by Aron to make such Discretionary Draw Advance in accordance with its obligations hereunder), whether or not such notice may be rescinded in accordance with the terms hereof, (ii) any payment of any principal of the Discretionary Draw Advance occurs on a day other than on the last day of a period applicable to the setting of SOFR related thereto (including as a result of an Event of Default), or (iii) a prepayment of the Discretionary Draw Advance or any portion thereof does not occur on a date specified therefor in any notice of prepayment given by the Company, whether or not such notice may be rescinded in accordance with the terms hereof, the Company shall compensate Aron for all losses, costs, expenses and liabilities that Aron sustains, including any loss incurred from obtaining, liquidating or employing losses from third parties, but excluding any loss of margin or any interest rate “floor”, for the period following any such payment, assignment or conversion or any such failure to borrow, pay, prepay, convert or continue. To request compensation under this Section 11.14(d), Aron shall deliver to the Company a certificate setting forth in reasonable detail the basis and calculation of any amount or amounts that Aron is entitled to receive pursuant to this Section 11.14(d), which certificate shall be conclusive and binding absent manifest error. The Company shall pay Aron the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

(e)    (f) Booking of Discretionary Draw Advance. Aron may make, carry or transfer the Discretionary Draw Advance at, to or for the account of any of its branch offices or the office of any Affiliate of Aron..

11.15    Increased Costs; Capital Adequacy and Liquidity.

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

(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, Aron;

(ii)    subject Aron to any Taxes (other than (A) Indemnified Taxes, (B) Excluded Taxes and (C) Other Connection Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)    impose on Aron any other condition, cost or expense (other than Taxes) affecting this Agreement or the Discretionary Draw Advance made by Aron;

and the result of any of the foregoing shall be to increase the cost to Aron of making, converting to, continuing or maintaining the Discretionary Draw Advance or of maintaining its obligation to make such Discretionary Draw Advance, or to reduce the amount of any sum received or receivable by Aron hereunder (whether of principal, interest or any other amount) then, upon request of Aron, the Company will pay to Aron such additional amount or amounts as will compensate Aron for such additional costs incurred or reduction suffered.

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

(c)    Certificates for Reimbursement. A certificate of Aron setting forth the amount or amounts necessary to compensate Aron or its holding company, as specified in Section 11.15(a) or 11.15(b) and delivered to the Company, shall be conclusive absent manifest error. The Company shall pay Aron the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

(d)    Delay in Requests. Failure or delay on the part of Aron to demand compensation pursuant to this Section 11.15 shall not constitute a waiver of Aron’s right to demand such compensation; provided that the Company shall not be required to compensate Aron pursuant to this Section 11.15 for any increased costs incurred or reductions suffered more than 120 days prior to the date that Aron notifies the Company of the Change in Law giving rise to such increased costs or reductions, and of Aron’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 120-day period referred to above shall be extended to include the period of retroactive effect thereof).

(e)    Certain Limitations. Notwithstanding any other provision of this Section 11.15 to the contrary, Aron shall not request, or be entitled to receive, any compensation pursuant to this Section 11.15 unless it shall be the general policy or practice of Aron to seek compensation in similar circumstances under comparable provisions of other credit agreements, if any.

11.16    Taxes; Withholding, Etc.

(a)    FATCA. For purposes of this Section 11.16, the term “applicable law” includes FATCA.

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(b)    Payments Free of Taxes. Any and all payments by or on account of any obligation of the Company under this Agreement 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 by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by 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 11.16) Aron 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 Aron timely reimburse it for the payment of, any Other Taxes.

(d)    Indemnification by the Company. The Company shall indemnify Aron, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 11.16) payable or paid by Aron or required to be withheld or deducted from a payment to Aron 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 Aron shall be conclusive absent manifest error.

(e)    Evidence of Payments. As soon as practicable after any payment of Taxes by the Company to a Governmental Authority pursuant to this Section 11.16, the Company shall deliver to Aron 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 Aron.

(f)    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 11.16 (including by the payment of additional amounts pursuant to this Section 11.16), it shall pay to the indemnifying Party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 11.16 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 Section 11.16(f) (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 Section 11.16(f), in no event will the indemnified Party be required to pay any amount to an indemnifying Party pursuant to this Section 11.16(f) 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 Section 11.16(f) shall not be construed to require any indemnified Party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying Party or any other Person.

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(g)    Survival. Each Party’s obligations under this Section 11.16 shall survive the resignation or replacement of Aron or any assignment of rights by, or the replacement of, a lender, the termination of the Discretionary Draw Commitments and the repayment, satisfaction or discharge of all obligations under any Transaction Document.

(h)    Notwithstanding anything herein to the contrary, (i) this Section 11.16, Section 11.15(a)(ii) and Section 11.17, shall apply only with respect to the Discretionary Draw Advance and Incremental Discretionary Draw Amount made by Aron to the Company pursuant to this Article 11 and any payments by the Company to Aron in respect of such Discretionary Draw Advance, as well as any Indemnified Taxes and Other Taxes with respect thereto, and (ii) Article 15 shall apply only to all matters and transactions herein outside the scope of the Discretionary Draw Advance and Incremental Discretionary Draw Amount made pursuant to this Article 11.

11.17    Obligation to Mitigate. If Aron becomes an Affected Lender or requests compensation under Section 11.15, or if the Company is required to pay any Indemnified Taxes or additional amount to Aron or to any Governmental Authority, then Aron shall (at the request of the Company) use reasonable efforts to designate a different lending office for funding or booking of the Discretionary Draw Advance hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the judgment of Aron, such designation or assignment and delegation (a) would cause Aron to cease to be an Affected Lender or would eliminate or reduce amounts payable pursuant to Section 11.15 or 11.16, as the case may be, in the future and (b) would not subject Aron to any unreimbursed cost or expense and would not otherwise be disadvantageous to Aron. The Company hereby agrees to pay all reasonable costs and expenses incurred by Aron in connection with any such designation or assignment and delegation.

ARTICLE 12

INDEPENDENT INSPECTORS; STANDARDS OF MEASUREMENT

12.1    Aron shall be entitled to have Supplier’s Inspector, at Aron’s sole cost and expense, present at any time the Volume Determination Procedures are to be applied in accordance with the terms of this Agreement and to observe the conduct of Volume Determination Procedures.

12.2    In addition to its rights under Section 12.1, Aron may, from time to time during the Term of this Agreement, upon reasonable prior notice to the Company, at Aron’s own cost and expense, have Supplier’s Inspector conduct surveys and inspections of any of the Storage Facilities or observe any Crude Oil or Product transmission, handling, metering or other activities being conducted at such Storage Facilities or the Delivery Points associated therewith, including for the purpose of conducting sampling and analysis of any Crude Oil or Products in accordance with the specifications set forth on Schedule A; provided that such surveys, inspections and observations shall not materially interfere with the ordinary course of business being conducted at such Storage Facilities or the Refinery.

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12.3    Subject to the Storage Facilities Agreement between Aron and the Company, Aron will have the right to inspect the Storage Facilities. In the event that recalibration of meters, gauges or other measurement equipment is requested by Aron such as “strapping,” the Parties shall select a mutually agreeable certified and licensed independent petroleum inspection company (the “Independent Inspection Company”) to conduct such recalibration. The cost of the Independent Inspection Company is to be shared equally by the Company and Aron.

12.4    Standards of Measurement. All quantity determinations herein will be corrected to sixty (60) degrees Fahrenheit based on a U.S. gallon of two hundred thirty one (231) cubic inches and forty two (42) gallons to the Barrel, in accordance with the latest supplement or amendment to ASTM-IP petroleum measurement tables (Table 6A of ASTM-IP for Feedstocks and Table 6B of ASTM-IP for Products).

12.5    The Company shall, at end of each calendar quarter (or at such other time as Aron may agree), provide for manual gauging by an Independent Inspection Company of each Crude Storage Tank or Included Company Product Tank to ensure that the automated tank level readings are accurate to within a tolerance of two inches; provided that if the automated reading cannot be calibrated to be within such tolerance, the Company shall use the manual gauge reading in its calculation of inventory until such time as the automated gauge can be repaired so that it can be calibrated to within such tolerance.

ARTICLE 13

FINANCIAL INFORMATION; CREDIT SUPPORT

13.1    Provision of Financial Information.

(a)    The Company shall provide Aron (i) within ninety (90) days following the end of each of its fiscal years, (a) a copy of the annual report, containing audited consolidated financial statements of the Company and its consolidated subsidiaries for such fiscal year certified by independent certified public accountants, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and (b) the balance sheet, statement of income and statement of cash flow of the Company for such fiscal year, as reviewed by the Company’s independent certified public accountants, together with a Compliance Certificate to be delivered pursuant to Section 13.2(c); and (ii) within forty five (45) days after the end of its first three fiscal quarters of each fiscal year, a copy of the quarterly report, containing unaudited consolidated financial statements of the Company and its consolidated subsidiaries for such fiscal quarter, in each case together with a Compliance Certificate to be delivered pursuant to Section 13.2(c); provided that so long as the Company is required to make public filings of its quarterly and annual financial results pursuant to the Exchange Act, such filings are available on the SEC’s EDGAR database and such filings are made in a timely manner, then the Company will not be required to provide such annual or quarterly financial reports to Aron

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(b)    The Company shall provide Aron within the time periods specified in the SEC’s rules and regulations for a filer that is a “non-accelerated filer,” whether or not required to file reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act: (i) all quarterly and annual financial and other information with respect to the Guarantor and its Subsidiaries that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Guarantor was 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 on the annual financial statements by the Guarantor certified independent accountants which report shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; provided, however, such reports shall not be required to comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act or related items 307 and 308 of Regulation S-K; and (ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Guarantor were required to file such reports unless the Guarantor determines in good faith that such reports are not material to Aron. All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. The availability of the foregoing reports on the SEC’s EDGAR filing system will be deemed to satisfy the foregoing delivery requirements. If, at any time, the Guarantor is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Guarantor will nevertheless file the reports specified in this Section 13.1(b) with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Guarantor will not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Guarantor’s filings for any reason, the Guarantor will post the reports referred to in this Section 13.1(b) on its website within the time periods for a filer that is a “non-accelerated filer” that would apply if the Guarantor were required to file those reports with the SEC.   Notwithstanding the foregoing, so long as the Guarantor is a direct or indirect Subsidiary of Par Pacific or any other direct or indirect parent, if Par Pacific or such other direct or indirect parent of the Guarantor files reports with the SEC in accordance with Section 13 or 15(d) of the Exchange Act, whether voluntarily or otherwise, then the Guarantor shall be deemed to comply in full with this Section 13.1(b). If the Guarantor, Par Pacific or other direct or indirect parent of the Guarantor files or furnishes any information or report pursuant to this Section 13.1(b) in a timely manner and subsequently amends or restates such information or report, such information or report shall be deemed filed or furnished in a timely manner notwithstanding such amendment or restatement. If at any time none of the Guarantor, Par Pacific or other direct or indirect parent of the Guarantor are required to file with the SEC the reports required by this Section 13.1(b) and none of them voluntarily file such reports, the Guarantor will furnish to the Lenders and any prospective Lenders upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Any failure to comply with this Section 13.1(b) shall be automatically cured when the Guarantor, Par Pacific or any other direct or indirect parent of the Guarantor provides all required reports to Aron or files all required reports with the SEC; provided that such cure shall not otherwise affect the rights of Aron hereunder if any amounts hereunder have been accelerated in accordance with the terms of this Agreement and such acceleration has not been rescinded or cancelled prior to such cure. If the Company elects to satisfy its obligations under this Section 13.1(b) with respect to financial information relating to the Guarantor by furnishing financial information relating to Par Pacific or any other direct or indirect parent, and such financial information reflects the assets or operations of Subsidiaries of Par Pacific or other direct or indirect parent of the Guarantor that are not also Subsidiaries of the Guarantor, then the quarterly and annual financial information required by this Section 13.1(b) will include an additional summary presentation, either on the face of the financial statements, in the footnotes thereto, or in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Guarantor and its Subsidiaries separate from the financial condition and results of operations of Par Pacific or any other direct or indirect parent of the Guarantor. The requirement to provide additional summary financial information required by this paragraph will be deemed satisfied if and when such information is posted on the website of the Guarantor, Par Pacific or any other direct or indirect parent of the Guarantor.

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13.2    Additional Information.

(a)    Upon reasonable notice, the Company shall provide to Aron such additional information as Aron may reasonably request to enable it to ascertain the current financial condition of the Company, including product reports in the form of Schedule S;

(b)    From time to time, upon reasonable request by Aron, the Company shall obtain and provide to Aron additional information from third party arrangements, if any, but only to the extent the Company may contractually disclose such arrangements to Aron;

(c)    The Company shall deliver to Aron, in form and detail satisfactory to Aron concurrently with the delivery of the financial statements referred to in Section 13.1(a), a duly completed Compliance Certificate signed by the chief financial officer or treasurer of the Company (a) certifying as to, among other things, such financial statements and certifying that, in making the examination necessary therefor, (A) with respect to the consolidated financial statements of the Company and its Subsidiaries, such consolidated financial statements fairly present in all material respects the financial condition of the Company and its consolidated subsidiaries as at such date and the results of operations of the Company and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied; provided that, for any financial statements delivered pursuant to Section 13.1(a)(i), such statements shall be, subject to changes resulting from normal, year-end audit adjustments and except for the absence of footnotes; and (B) no knowledge was obtained by such chief financial officer or treasurer of any Default or Event of Default, or, if any such Default or Event of Default shall exist, stating the nature and status of the applicable event or circumstance, and (b) providing a calculation of (i) the Leverage Ratio of the Guarantor and its Subsidiaries as of the end of the applicable period and (ii) Liquidity as of the last day of the fiscal quarter most recently ended together with a statement showing in reasonable detail the calculation therefor; and

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(d)    On the first Business Day of each week, the Company shall notify Aron of (A) the Liquidity of the Company as of the close of business on each Business Day of the prior week and shall (i) include evidence, reasonably satisfactory to Aron, of the account balance of each Controlled Account of the Company and (ii) be in substantially the form of Schedule II, and (B) the account balance of each Collection Account under and as defined in the LC Facility Agreement.

(e)    The Company shall furnish to Aron: (i) concurrently with delivery thereof to the LC Facility Agent, copies of all notices and other reports required to be delivered by the Company to the LC Facility Agent under the LC Facility Agreement, (ii) promptly after issuance thereof, each Letter of Credit, and (iii) promptly after the posting of cash collateral under the LC Facility Agreement, a reasonably detailed calculation of the amount and basis of such posted cash collateral.

13.3    Notification of Certain Events. The Company shall notify Aron within one (1) Business Day after learning of any of the following events:

(a)    The Company’s or any of its Affiliates’ binding agreement to sell, lease, sublease, transfer or otherwise dispose of, or grant any Person (including an Affiliate) an option to acquire, in one transaction or a series of related transactions, all or a material portion of the Refinery assets;

(b)    The Company’s or any of its Affiliates’ binding agreement to consolidate or amalgamate with, merge with or into, or transfer all or substantially all of its assets to, another entity (including an Affiliate);

(c)    An early termination of or any notice of any “event of default” under any Base Agreement, if any;

(d)    An amendment to any Financing Agreement; provided that the Company shall notify Aron at least ten (10) Business Days prior to entering into any new Financing Agreement;

(e)    The execution of any agreement or other instrument or the announcement of any transaction or proposed transaction that contemplates or could or does result in a Change of Control;

(f)    Any event or condition that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(g)    theThe occurrence of any Default or Event of Default in respect of which the Company is the Defaulting Party; and

(h)    anyAny material change in accounting policies or financial reporting practices of the Company that could reasonably be expected to cause a material change in the accounting, tracking, interpretation, calculation or determination of (i) value of Hydrocarbons or Accounts of the Company or (ii) any financial covenants and any other provisions under the Transaction Documents (including without limitation in respect of any fees or any other amounts contemplated to be owed to Aron thereunder).;

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(i)    Any amendment, supplement, modification, waiver or other revision to the LC Facility Agreement, provided that the Company shall notify Aron at least ten (10) Business Days (or such shorter period as is acceptable to Aron in its discretion) before entering into an amendment to the LC Facility Agreement, and delivery of copies of such executed amendment, supplement, modification, waiver or other revision no more than three (3) Business Days after the effectiveness thereof;

(j)    The occurrence of any default or event of default or other event that would permit the LC Facility Agent or the LC Issuers or any other party thereto (other than the Company) (i) could exercise remedies, or (ii) with or without notice, the passage of time or expiration of any applicable cure period, to exercise any remedies, in either case, under the LC Facility Agreement (or any related Loan Document), the Security Agreement or any other Security Documents (as defined in the LC Facility Agreement); and

(k)    Any event or condition that results in the purchase of “FOB” Crude Oil cargoes being unable to be delivered to the Crude Intake Point.

13.4    Credit Support.

(a)    As security for the prompt and complete payment of all Obligations, the Company hereby pledges, assigns, conveys and transfers to Aron as margin, and hereby grants to Aron a present and continuing security interest in and to, and a general first lien upon and right of set off against, to amount of U.S. dollars constituting the Initial Margin Amount and all interest and other proceeds from time to time received, receivable or otherwise distributed in respect thereof, or in exchange therefor; provided that (i) the Company shall effect such pledge, assignment, conveyance and transfer of the Initial Margin Amount as and when required under Section 4.3 hereof and (ii) once the full amount of the Initial Margin Amount has been so pledge, assigned conveyed and transferred, the Company agrees that for the duration of the Term, it shall maintain such pledge, assignment, conveyance and transfer and take such action as Aron reasonably requests in order to perfect Aron’s continuing security interest in, and lien on (and right of setoff against), such amount. Notwithstanding the provisions of Applicable Law, if no Event of Default has occurred and is continuing with respect to Aron, then Aron shall have the right to sell, pledge, rehypothecate, assign, invest, use, commingle or otherwise use in its business all or any portion of the Initial Margin Amount, free from any claim or right of any nature whatsoever of the Company, including any equity or right of redemption by the Company. Nothing in this Section 13.4(a) shall limit any rights of Aron under any other provision of this Agreement or any other Transaction Documents, including without limitation, under Section 13.4(b) or Article 19 below. Aron will exercise reasonable care to assure the safe custody of the Initial Margin Amount to the extent required by Applicable Law.

(b)    As further security for the prompt and complete payment of all amounts due or that may become due hereunder, the Company shall grant the Lien contemplated by, comply with the terms of and maintain in full force and effect the Lien Documents and assist Aron in maintaining any UCC financing statements or other filings necessary to preserve Aron’s Liens pursuant to the Lien Documents.

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ARTICLE 14

REFINERY TURNAROUND, MAINTENANCE AND CLOSURE; TERMINAL CONVERSION

14.1    The Company shall be responsible for all operations and maintenance of Included Locations which are, directly or indirectly, owned by the Company. The Company shall promptly notify Aron in writing of the date for which any inspection, maintenance, restart or turnaround at the Refinery or the Refinery Facilities has been scheduled, or any revision to previously scheduled inspection, maintenance, restart or turnaround, which may affect receipts of Crude Oil at the Refinery, the SPM or the Storage Facilities, the processing of Crude Oil in the Refinery or the delivery of Products to Aron or by Aron to the Company or any third parties; provided that, (i) promptly after the Company completes its annual business plan with respect to any year, it shall notify Aron of any such inspection, maintenance, restart or turnaround contemplated with respect to such year and (ii) the Company shall give Aron at least two (2) months’ prior written notice of any such scheduled inspection, maintenance, restart or turnaround.

14.2    The Company shall promptly notify Aron orally (followed by prompt written notice) of any previously unscheduled downtime at the Refinery hydrocracker or Crude Oil unit exceeding twenty-four (24) hours.

14.3    In the event of a scheduled shutdown of the Refinery, the Company shall, to the extent feasible, complete processing of all Crude Oil being charged to, processed at or consumed in the Refinery at that time.

14.4    (a) Subject to Section 14.4(b) below, if at any time Aron determines that all or any portion of the facilities constituting an Included Location (in each case, “Identified Facilities”) fail to satisfy Aron’s then applicable policies and procedures (such policies and procedures to be in reasonable accordance with and not to exceed industry, regulatory and customary practices) relating to the prudent maintenance and operation of storage tanks, pipeline facilities, vessels and other infrastructure used to store or transport crude oil and/or refined products (“Aron’s Policies and Procedures”), and without limiting any other rights and remedies available to Aron hereunder or under any other Transaction Document, Aron may provide the Company notice of such failure so long as such failure is continuing and, if Aron provides such notice, the following provisions shall be applicable: (i) in the case of any Identified Facilities that are subject to the Storage Facility Agreement, upon such date as Aron shall specify, such Identified Facilities shall cease to constitute an Included Location (or part of an Included Location) for purposes hereof and any payment to Aron in respect of any Crude Oil or Products held in such Identified Facilities shall become due in accordance with the provisions of Section 10 hereof; and (ii) in the case of any Identified Facilities that are subject to a Required Storage and Transportation Arrangement, the Parties shall endeavor as promptly as reasonably practicable to execute such rights, provide such notices, negotiate such reassignments or terminations and/or take such further actions as Aron deems necessary or appropriate to terminate Aron’s status as the party entitled to use and/or hold Crude Oil or Products at such Identified Facilities and, concurrently with effecting the termination of such status, such Identified Facilities shall cease to constitute an Included Location (or part of an Included Location) for purposes hereof and any payment to Aron in respect of any Crude Oil or Products held in such Identified Facilities shall become due in accordance with the provisions of Section 10 hereof.

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(b)    Aron’s rights under Section 14.4(a) above are subject to the following additional terms and conditions:

(i)    Aron shall apply Aron’s Policies and Procedures with respect to the Included Locations in a non-discriminatory manner as compared with other similar storage tanks and pipeline facilities utilized by Aron in a similar manner;

(ii)    If the failure of any Identified Facilities to satisfy Aron’s Policies and Procedures is a result of Aron’s Policies and Procedures exceeding the standards or requirements imposed under Applicable Law or good and prudent industry practice, then (1) Aron shall not require the removal of such Identified Facilities as Included Locations until the 120^th day after giving the Company written notice of such failure, unless in Aron’s reasonable judgment such failure presents an imminent risk relating to such Identified Facility in which case Aron may require that such Identified Facility immediately cease to constitute an Included Location and the terms of Section 14.4(a) shall immediately become applicable, (2) during such 120 day period, Aron shall consult with the Company in good faith to determine whether based on further information provided by the Company such Identified Facilities comply with Aron’s Policies and Procedures and/or whether additional actions or procedures can be taken or implemented so that, as a result, such Identified Facilities would comply with Aron’s Policies and Procedures, and (3) if it is determined that such Identified Facilities do comply with Aron’s Policies and Procedures or, as a result of such additional actions or procedures, such Identified Facilities become so compliant within such 120 day period, then such Identified Facilities shall not cease to be Included Locations based on the noncompliance stated in Aron’s notice to the Company;

(iii)    If within the 120 day period referred to in clause (ii)(2) above, the Company has identified and diligently commenced the implementation of additional actions or procedures that are intended to result in such Identified Facilities becoming compliant with Aron’s Policies and Procedures, but such implementation cannot through commercially reasonable efforts be completed within such 120 day period, then so long as the Company continues to diligently and in a commercially reasonable manner pursue the implementation of such additional actions and procedures, Aron will extend such 120 day period up for up to an additional 60 days (or such longer period as the Parties may mutually agree) to allow for such implementation to be completed and if such implementation is completed within such additional 60 day period (or such longer period as the Parties may mutually agree), then such Identified Facilities shall not cease to be Included Locations based on the noncompliance stated in Aron’s notice to the Company; and

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(iv)    If any Identified Facilities cease to be Included Locations pursuant to Section 14.4(a) above and thereafter Aron determines, in its reasonable good faith judgment, that such Identified Facilities have become compliant with Aron’s Policies and Procedures, then Aron shall promptly cooperate with the Company to reestablish such Identified Facilities as Included Locations hereunder.

14.5    If after May 31, 2022 the Company elects to convert the Refinery to a terminalling operation whereby the Company ceases to process and refine Crude Oil and other feedstocks on a permanent basis (a “Terminal Conversion”), the Company shall notify Aron no less than 90 days prior to the effective date of such Terminal Conversion and in addition:

(a)    if the Company elects to restore Refinery operations after a Terminal Conversion prior to the Expiration Date (regardless of whether the Company has terminated this Agreement prior to the Expiration Date pursuant to Section 3.3), the Company shall pay to Aron all fees Aron would have earned pursuant to this Agreement and the Fee Letter during such time if such Terminal Conversion had not happened, as calculated in good faith and in a commercially reasonably manner by Aron;

(b)    Aron may terminate this Agreement by giving written notice thereof to the Company within 30 days after receipt of a notice of a Terminal Conversion, specifying a Termination Date (on which the Parties shall perform their obligations relating to termination pursuant to Article 20) occurring on the date that is the later of (i) 30 days following the date such notice is given and (ii) the last Business Day of the immediately following calendar; and

(c)    In the event Aron does not terminate this Agreement pursuant to clause (b) above, the Parties agree to endeavor in a commercially reasonable manner to determine the terms and conditions that would need to be implemented to provide for an intermediation facility between Aron and the Company after giving effect to the Terminal Conversion and, if the Parties (each acting in its sole discretion) agree on terms and conditions that are mutually satisfactory, then they will promptly endeavor to execute an amendment to this Agreement incorporating such terms and conditions (which shall provide that in no event shall the Company commingle any Crude Oil or Products subject to such intermediation facility); provided that in any event (i) effective as of the effective date of such Terminal Conversion, the Refinery Crude Purchase Fee Price applicable to the Refinery Crude Purchase Fee and the assumed net daily crude runs of 50,000 Barrels per day through the Expiration Date shall no longer be applicable (but the Refinery Crude Purchase Fee Price shall continue to apply to any Crude Oil or Products subject to such intermediation facility) and (ii) Company shall, in consultation with Aron, re-allocate all Products Groups to the maximum extent possible to finished Product Groups.

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ARTICLE 15

TAXES

15.1    (a) The Company shall pay and indemnify and hold Aron harmless against, the amount of all sales, use, gross receipts, value added, severance, ad valorem, excise, property, spill, environmental, transaction-based, or similar taxes, duties and fees, howsoever designated regardless of the taxing authority, and all penalties and interest thereon, except to the extent such penalties and interest are due to the willful misconduct of Aron (each, a “Tax” and collectively, “Taxes”), paid, owing, asserted against, or incurred by Aron directly or indirectly with respect to the Crude Oil procured and sold to Company hereunder, and the Products purchased and resold to Company hereunder, and other transactions contemplated hereunder to the greatest extent permitted by applicable law. The indemnity provision of the previous sentence shall be interpreted to include the indemnity by the Company of any Taxes paid, owing, asserted against, or incurred by Aron directly or indirectly due to its entering into this Agreement, including if this Agreement and/or any transactions entered into pursuant to this Agreement are characterized as a financing or in any other manner other than sales and purchases between the parties. In the event that the Company is not permitted to pay such Taxes, the amount due hereunder shall be adjusted by Aron such that the Company shall bear the economic burden of the Taxes. The Company shall pay when due such Taxes unless there is an applicable exemption from such Tax, with written confirmation of such Tax exemption to be contemporaneously provided to Aron. To the extent Aron is required by law to collect such Taxes, one hundred percent (100%) of such Taxes shall be added to invoices as separately stated charges and paid in full by the Company in accordance with this Agreement, unless the Company is exempt from such Taxes and furnishes Aron with a certificate of exemption; provided, however, that (i) the failure of Aron to separately state or collect Taxes from the Company shall not alter the liability of the Company for Taxes and (ii) Aron shall only be liable for Taxes if and to the extent that such Taxes have been separately stated and collected from the Company. Any refund or credit with respect to any Taxes paid or indemnified by Company hereunder shall belong to Company. Aron shall be responsible for all taxes imposed on Aron’s net or gross (or any derivative thereof) income, and the Company shall be responsible for all taxes imposed on the Company’s net or gross (or any derivative thereof) income. For avoidance of doubt, no taxes described in the immediately preceding sentence shall include gross receipts taxes described in the first sentence of this Section 15.1(a).

(b)    In addition to paragraph (a), the Company shall complete and file all necessary property tax returns on Aron’s behalf with respect to Crude Oil and Products, regardless of whether property tax laws place the obligation to do so on Aron or the Company, disclose Aron’s ownership interest therein, and pay such amounts as due. Provided that the Company pays (or indemnifies Aron for) all property taxes, the Company shall have the first right to claim income tax credits for such property taxes paid and shall be solely responsible for the extent to which such credits are available to or realized by the Company.

15.2    If the Company disagrees with Aron’s determination that any Tax is due with respect to transactions under this Agreement, the Company shall have the right to seek an administrative determination from the applicable taxing authority, or, alternatively, the Company shall have the right to contest any asserted claim for such Taxes, subject to its agreeing to indemnify Aron for the entire amount of such contested Tax should such Tax be deemed applicable. Aron agrees to reasonably cooperate with the Company, in the event the Company determines to contest any such Taxes. Company shall be responsible for all costs and expenses incurred by Company or Aron in the event Company decides to seek an administrative determination from the applicable taxing authority or to contest any such Taxes.

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15.3    (a) The Company and Aron shall promptly inform each other in writing of any assertion by a taxing authority of additional liability for Taxes in respect of said transactions. Any legal proceedings or any other action against Aron with respect to such asserted liability shall be under Aron’s direction but the Company shall be kept reasonably informed and consulted by Aron. Any legal proceedings or any other action against the Company with respect to such asserted liability shall be under the Company’s direction but Aron shall be consulted. In any event, the Company and Aron shall fully cooperate with each other as to the asserted liability. Each Party shall bear all the reasonable costs of any action undertaken by the other at the Party’s request.

(b)    In addition to paragraph (a) and other information sharing requirements applicable to Aron and the Company, Aron and the Company shall seasonably and from time to time as is otherwise reasonable exchange and share information with each other as necessary to properly report, defend, challenge, and pay Taxes (including but not limited to sales taxes and fuel taxes and file tax returns (including without limitation any returns referred to in Section 15.1(b)), including information that supports and demonstrates total sales, sales that are exempt from Tax, and sales that are subject to Tax at a reduced rate.

15.4    Any other provision of this Agreement to the contrary notwithstanding, this Article 15 shall survive until ninety (90) days after the expiration of the statute of limitations for the assessment, collection, and levy of any Tax.

ARTICLE 16

INSURANCE

16.1    Insurance Coverages. The Company shall procure and maintain in full force and effect throughout the Term of this Agreement insurance coverages of the following types and amounts and with insurance companies rated not less than A-VII by A.M. Best Company, or otherwise reasonably acceptable to Aron, in respect of the Company’s receipt, handling and storage of Crude Oil, Products, Aron’s Property or any Collateral in connection with the Transaction Documents or the receipt, handling or storage of Crude Oil, Products, Aron’s Property or any Collateral under any required storage, transportation arrangement or any other Transaction Documents:

(a)    Property insurance for property damage including business interruption coverage on an “all risk” basis without co-insurance, including but not limited to flood, earthquake, windstorm, and tsunami, covering damage to the Refinery and Storage Facilities on a repair or replacement cost basis in an amount sufficient to repair major components of such facilities as reasonably determined pursuant to an engineering report prepared by an expert recognized by underwriters for such purpose or loss limits reasonably acceptable to Aron; provided that:

(i)    business interruption and extra expense coverage shall include an at least twelve (12) months indemnity period and shall be in an amount equal to the projected net income plus costs that would reasonably be expected to continue from the Refinery and Storage Facilities based upon the Company’s reasonable estimate thereof and Aron shall be named as loss payee or lender loss payee under such policy via customary endorsements acceptable to Aron; and

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(ii)    stock throughput insurance on an “all risk” basis without co-insurance, including but not limited to flood, earthquake, windstorm, tsunami, theft and burglary. Such insurance shall cover the physical damage or loss of the Crude Oil, Products, Aron’s Property and all Collateral (including all of the foregoing that are stored at Included Locations) for the full market value or replacement value with respect to the Crude Oil, Products, Aron’s Property and all Collateral, whichever value is greater.

(b)    Commercial general liability coverage which includes bodily injury, broad form property damage and contractual liability, cross suit liability, products and completed operations liability, sudden and accidental pollution liability (excluding events that result in acidic deposition), liability arising out of wharfinger, terminal operator and/or stevedoring operations and loss, and contamination or degradation of all Crude Oil and Products with coverage in a minimum amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, which coverage may be self-insured by the Company.

(c)    (i) Workers compensation in the amount required by Applicable Law, and (ii) employer’s liability with a minimum amount of $1,000,000 per accident, $1,000,000 per disease, and $1,000,000 aggregate.

(d)    Commercial automobile liability insurance in a minimum amount of $1,000,000 per accident.

(e)    Umbrella/excess liability coverage providing coverage on a follow-form basis with respect the coverage required under Sections 16.1(b) (not including contamination or degradation of Aron’s Property), (c)(ii) and (d) in a minimum amount of $450,000,000 per occurrence and in the aggregate; provided that, to the extent such limit exceeds the insurance limits available or the insurance limits available at commercially reasonable rates in the insurance marketplace, the Company will maintain the highest insurance limit available at commercially reasonable rates; provided further however, that the Company will promptly notify Aron of the Company’s inability to procure and maintain such limit of coverage.

(f)    Pollution legal liability coverage in a minimum amount of $100,000,000 per occurrence and in the aggregate for sudden and accidental pollution liability, gradual pollution liability, injury to persons or damage to property resulting from any release, spillage, leak or discharge of Product from the Refinery Facilities and Included Locations and /or the Terminal into the ambient, air, surface water, groundwater, land surface or subsurface strata. Such insurance shall include coverage for clean-up and remediation expenses that is not subject to sub-limits.

(g)    Charterer’s liability insurance (if applicable) in a minimum amount of $50,000,000 per occurrence and in the aggregate.

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16.2    Additional Insurance Requirements.

(a)    The foregoing policies shall include or provide that the underwriters waive all rights of subrogation against Aron, its subsidiaries, and affiliates and their respective directors, officers, employees and agents. The insurance is primary without contribution from Aron’s insurance. The foregoing policies listed in Section 16.1(a)(i) and (ii) shall include Aron as loss payee and/or lender loss payee as per the interest of Aron in the Crude Oil, Products, Aron’s Property and all Collateral. Applicable endorsements for a lender loss payee interest shall be acceptable to Aron. The foregoing policies (other than those listed in Sections 16.1(b), (d) and (f)) shall include Aron, its Subsidiaries, and affiliates and their respective directors, officers, employees and agents as additional insured as their respective interests may appear.

(b)    The Company shall cause its insurance carriers or its authorized insurance broker to furnish Aron with insurance certificates, in Acord form or equivalent, evidencing the existence of the coverages and the endorsements required above. The Company shall provide ten (10) days’ written notice prior to any cancellation or material modification of such insurance policy causing such policy to fail to comply with the requirements of this Article 16 becoming effective. The Company also shall provide renewal certificates prior to expiration of the policy.

(c)    The Company shall comply with all notice and reporting requirements in the foregoing policies and timely pay all premiums.

(d)    The Company shall be responsible for any deductibles or retentions that are applicable to the insurance required pursuant to Section 16.1.

(e)    All insurance required herein and in Section 16.1 with the exception of pollution legal liability should be written on an occurrence-based basis. To the extent that any of the insurance policies are written on a claims-made basis, the Company agrees to continue to maintain such insurance at least 6 years after the termination of this Agreement.

(f)    The Company shall undertake all reasonable due diligence on any third parties prior to contracting any terminaling and storage services and confirm that such appointed third parties have adequate insurance that is standard and customary to their businesses. If the third parties procure less insurance than is required of the Company under this Agreement, the Company’s insurance required herein in this Section 16.1 and 16.2 shall be excess and contingent of the third parties’ insurance.

16.3    No Reduction or Release. The mere purchase and existence of insurance does not reduce or release either Party from any liability incurred or assumed under this Agreement.

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ARTICLE 17

FORCE MAJEURE

17.1    If a Party is rendered unable by an event of Force Majeure to perform in whole or in part any obligation or condition of this Agreement (the “Affected Party”), it shall not be liable to the other Party to perform such obligation or condition (except for payment and indemnification obligations) for so long as the event of Force Majeure exists and to the extent that performance is hindered by such event of Force Majeure; provided, however, that the Affected Party shall use any commercially reasonable efforts to avoid or remove the event of Force Majeure. During the period that performance by the Affected Party of a part or whole of its obligations has been suspended by reason of an event of Force Majeure, the other Party (the “Non-Affected Party”) likewise may suspend the performance of all or a part of its obligations to the extent that such suspension is commercially reasonable, except for any payment and indemnification obligations. The Parties acknowledge that if, as a result of a Force Majeure, the Company were to suspend its receipt and/or processing of Crude Oil, then Aron would be entitled to suspend, to a comparable extent, its purchasing of Products.

17.2    The Affected Party shall give prompt oral notice to the Non-Affected Party of its declaration of an event of Force Majeure, to be followed by written notice within twenty-four (24) hours after receiving such oral notice of the occurrence of a Force Majeure event, including, to the extent feasible, the details and the expected duration of the Force Majeure event and the volume of Crude Oil or Products affected. The Affected Party also shall promptly notify the Non-Affected Party when the event of Force Majeure is terminated. However, the failure or inability of the Affected Party to provide such notice within the time periods specified above shall not preclude it from declaring an event of Force Majeure.

17.3    In the event the Affected Party’s performance is suspended due to an event of Force Majeure in excess of thirty (30) consecutive days after the date that notice of such event is given, and so long as such event is continuing, the Non-Affected Party, in its sole discretion, may terminate or curtail its obligations under this Agreement affected by such event of Force Majeure (the “Affected Obligations”) by giving notice of such termination or curtailment to the Affected Party, and neither Party shall have any further liability to the other in respect of such Affected Obligations to the extent terminated or curtailed, except for the rights and remedies previously accrued under this Agreement, any payment and indemnification obligations by either Party under this Agreement and the obligations set forth in Article 20. Without limiting any rights of any Non-Affected Party under this Article 17, the parties agree that following notice of an event of Force Majeure, they will consult in good faith to assess potential actions or steps with respect thereto.

17.4    If any Affected Obligation is not terminated pursuant to this Article 17 or any other provision of this Agreement, performance shall resume to the extent made possible by the end or amelioration of the event of Force Majeure in accordance with the terms of this Agreement; provided, however, that the term of this Agreement shall not be extended.

17.5    The Parties acknowledge and agree that the right of Aron to declare a Force Majeure based upon any failure by a Third Party Supplier to deliver Crude Oil under a Aron Procurement Contract is solely for purposes of determining the respective rights and obligations as between Aron and the Company with respect to any Crude Oil delivery affected thereby, and any such declaration shall not excuse the default of such Third Party Supplier under one or more Aron Procurement Contracts. Any claims that Aron may have as a result of such Third Party Supplier’s failure shall be subject to Section 5.9 and any other applicable provisions of this Agreement relating to claims against third parties.

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17.6    If at any time during the Term any of the Required Storage and Transportation Arrangements cease to be in effect (in whole or in part) or any of the applicable Included Pipelines or Included Tanks cease, in whole or in part, to be available to Aron pursuant to the Required Storage and Transportation Arrangements, and the foregoing is a result of or attributable to any owner or operator of such Included Pipelines or Included Tanks becoming Bankrupt or breaching or defaulting in any of its obligations relating to the Required Storage and Transportation Arrangements, then:

(a)    The Company shall promptly use commercially reasonable efforts to establish for Aron’s benefit alternative and/or replacement storage and transportation arrangements no less favorable to Aron (in Aron’s reasonable judgment) than those that have ceased to be available;

(b)    Until such alternative and/or replacement arrangements complying with clause (a) above have been established, each Party shall be deemed to have been affected by an event of Force Majeure and its obligations under this Agreement shall be curtailed to the extent such performance is hindered by such lack of effectiveness of any Required Storage and Transportation Arrangements or the availability of any pipeline or storage facility related thereto; and

(c)    Without limiting the generality of the foregoing, in no event shall Aron have any obligation under or in connection with this Agreement to store Crude Oil or Product in any pipeline or store Crude Oil or Product in any storage facility at any time from and after the owner or operator thereof becoming Bankrupt. If any such storage facility is an Included Location then Aron may, in its discretion, elect upon written notice to the Company that such storage facility shall cease to be an Included Location as of a date specified in such written notice in which case any Crude Oil or Product held by Aron therein shall be purchased by the Company in accordance with the applicable provisions of Sections 10.1 and 10.2 hereof.

ARTICLE 18

REPRESENTATIONS, WARRANTIES AND COVENANTS

18.1    Mutual Representations. Each Party represents and warrants to the other Party as of the Effective Date and each sale of Crude Oil or Refined Products hereunder, that:

(a)    It is an “Eligible Contract Participant,” as defined in Section 1a(18) of the Commodity Exchange Act, as amended from time to time, and any successor statute.

(b)    It is a “forward contract merchant” in respect of this Agreement and this Agreement and each sale of Crude Oil or Products hereunder constitutes a “forward contract,” as such term is used in Section 556 of the Bankruptcy Code.

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(c)    It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and in good standing under such laws.

(d)    It has the corporate, governmental or other legal capacity, authority and power to execute and deliver the Transaction Documents and to perform its obligations under this Agreement, and has taken all necessary action to authorize the foregoing.

(e)    The execution, delivery and performance of the Transaction Documents and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby do not violate or conflict with any Applicable Law, any provision of its constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets.

(f)    Except for the filing of UCC-1 or UCC-3 financing statements and the Lien Documents in applicable state and county filing offices, all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to the Transaction Documents have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with.

(g)    Its obligations under the Transaction Documents constitute its legal, valid and binding obligations, enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law).

(h)    No Event of Default or Default has occurred and is continuing with respect to such Party, and no such event or circumstance would occur as a result of its entering into or performing its obligations under the Transaction Documents.

(i)    There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or its ability to perform its obligations under the Transaction Documents.

(j)    It is not relying upon any representations of the other Party other than those expressly set forth in this Agreement.

(k)    It has entered into this Agreement as principal (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise), with a full understanding of the material terms and risks of the same, and is capable of assuming those risks.

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(l)    It has made its trading and investment decisions (including their suitability) based upon its own judgment and any advice from its advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party.

(m)    The other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee as to the expected performance or result of this Agreement.

(n)    It is not bound by any agreement that would preclude or hinder its execution, delivery, or performance of this Agreement.

(o)    Neither it nor any of its Affiliates has been contacted by or negotiated with any finder, broker or other intermediary in connection with the sale of Crude Oil or Products hereunder who is entitled to any compensation with respect thereto.

(p)    None of its directors, officers, employees or agents or those of its Affiliates has received or will receive any commission, fee, rebate, gift or entertainment of significant value in connection with this Agreement.

18.2    Company’s Representations and Covenants.

The Company hereby represents, warrants, covenants and agrees as follows:

(a)    The Company will deliver true and complete copies of the Base Agreements and all amendments thereto to Aron as and when such agreements are entered into by the Company.

(b)    The Company shall in all material respects perform its obligations under and comply with the terms of the Base Agreements and Required Storage and Transportation Arrangements as and when such agreements are entered into by the Company.

(c)    The Company shall maintain and pursue diligently all its material rights under the Base Agreements and Required Storage and Transportation Arrangements and take all reasonable steps to enforce its rights and any rights granted to the Company thereunder as and when such agreements are entered into by the Company.

(d)    With respect to any Aron Procurement Contract, Included Purchase Transaction, buy/sell transaction or other transaction subject hereto in which Aron is receiving delivery of any Crude Oil or Products from a vessel, the Company covenants and agrees that it will use commercially reasonable efforts to provide, or cause to be provided, a safe berth for such vessel free of all wharfage, dockage and quay dues or than those dues being contested in good faith for which adequate reserves have been established in accordance with GAAP, which such vessel can proceed to, lie at, and depart from, always safely afloat.

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(e)    The Company shall not modify, amend or waive rights arising under any of the Base Agreements or the Required Storage and Transportation Arrangements as and when such agreements are entered into by the Company without the prior written consent of Aron; provided, however, that if the Company provides Aron with notice, the Company may make such modifications or amendments, including extensions or elections under any of the foregoing, that do not adversely affect Aron’s rights thereunder, degrade, reduce or limit the standards applicable to the operator thereunder or otherwise interfere with Aron’s rights to use the Included Pipelines and Included Tanks subject thereto without the prior written consent of Aron.

(f)    The Company shall not cause or permit any of the Crude Oil or Products held at the Included Locations to become subject to any Liens, except for Permitted S&O Liens.

(g)    The Company represents and warrants that the Storage Facilities have been maintained, repaired, inspected and serviced in accordance with good and prudent industry standards and Applicable Law and are in good working order and repair in all respects.

(h)    The Company (i) represents and warrants that each Included Location is within the FTZ and (ii) covenants and agrees that it will cause (and take such actions as are necessary to cause) each Included Location at all times during the Term of this Agreement to continue to be within FTZ or to otherwise be entitled to the benefits of being within the FTZ (should any FTZ designation change).

(i)    Neither Company nor the Guarantor shall, from and after the Effective Date, enter into any Financing Agreement (an “Additional Financing Agreement”) unless such Additional Financing Agreement, at the time it is entered into, (i) contains provisions that recognize the respective rights and obligations of the Parties under this Agreement and the other Transaction Documents and (ii) does not adversely affect in any respect any of Aron’s rights or remedies under this Agreement or the other Transaction Documents and the holders of Indebtedness thereunder recognizes that Aron is the owner of Crude Oil and Products to the extent contemplated hereby and by the other Transaction Documents, free and clear of any liens of any lender or other creditor that is party to such Financing Agreement, other than Permitted S&O Liens. Neither Company nor the Guarantor shall modify or amend (including any extensions of or elections under), or waive any rights arising under, any Additional Financing Agreement without the prior written consent of Aron, if doing so would (i) adversely affect in any respect any of Aron’s rights or remedies under this Agreement or the other Transaction Documents or (ii) cause such holder of Indebtedness thereunder to no longer recognize that Aron is the owner of Crude Oil and Products to the extent contemplated hereby and by the other Transaction Documents, free and clear of any Liens of any lender or other creditor that is party to such Financing Agreement, other than Permitted S&O Liens. The Company shall remain a party to, and cause each other party thereto, to the extent that it is a holder of Indebtedness of the Company or any of its affiliates, to remain a party to, the Acknowledgment Agreements.

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(j)    To the extent deemed necessary or appropriate by Aron, the Company shall cause acknowledgements and/or releases (including without limitation, amendments or termination of UCC financing statements), in form and substance satisfactory to Aron, to be duly executed by lenders or other creditors that are party to Financing Agreements, confirming the release of any lien in favor of such lender or other creditor, other than Permitted S&O Liens, that might apply to or be deemed to apply to any Crude Oil and/or Products of which Aron is the owner as contemplated by this Agreement and the other Transaction Documents or the priority of the Lien granted to the Collateral Agent for the benefit of Aron under the Lien Documents, and agreeing to provide the Collateral Agent and Aron with such further documentation as it may reasonably request in order to confirm the foregoing.

(k)    In the event the Company becomes Bankrupt, and to the extent permitted by Applicable Law, the Company intends that (i) Aron’s right to liquidate, collect, net and set off rights and obligations under this Agreement and liquidate and terminate this Agreement shall not be stayed, avoided, or otherwise limited by the Bankruptcy Code, including sections 362(a), 547, 548 or 553 thereof; (ii) Aron shall be entitled to the rights, remedies and protections afforded by and under, among other sections, sections 362(b)(6), 362(b)(17), 362((b)(27), 362(o), 546(e), 546(g), 546(j), 548(d), 553, 556, 560, 561 and 562 of the Bankruptcy Code; and (iii) any cash, securities or other property provided as performance assurance, credit, support or collateral with respect to the transactions contemplated hereby shall constitute “margin payments” as defined in section 101(38) of the Bankruptcy Code and all payments for, under or in connection with the transactions contemplated hereby, shall constitute “settlement payments” as defined in section 101(51A) of the Bankruptcy Code.

(l)    The Company agrees that it shall have no right to dispose of, and shall not permit the creation of, or suffer to exist, any security interest, lien, encumbrance, charge or other claim of any nature (collectively, “Liens”), other than Permitted S&O Liens, with respect to, anyauthorizes Aron and the Collateral Agent to file at any time and from time to time any Uniform Commercial Code financing statements in favor of the Aron or the Collateral Agent, as applicable, describing the quantities of Crude Oil prior to the delivery thereof by Aron to the Company at the Crude Delivery Point or any quantities of Products after delivery thereof to Aron at a Products Intake Point (collectively, “Aron’s Property”). The Company authorizes Aron to file at any time and from time to time any Uniform Commercial Code financing statements describing the quantities of Aron’s Property subject to this Agreement and Aron’s ownership thereof and title thereto, as well as any cash, accounts receivables, inventory or other Collateral on which the Company has granted to the Collateral Agent for the benefit of Aron as a first priority Lien pursuant to the Lien Documents, and the Company shall execute and deliver to Aron and the Collateral Agent, and the Company hereby authorizes the Collateral Agent and Aron to file (with or without the Company’s signature), at any time and from time to time, all amendments to financing statements, assignments, continuation financing statements, termination statements, and other documents and instruments, in form reasonably satisfactory to the Collateral Agent and Aron, as the Collateral Agent or Aron may reasonably request, to provide public notice of Aron’s ownership of and title to the quantities of Aron’s Property subject to this Agreement and to otherwise protect Aron’s interest therein.

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(m)    The Parties acknowledge that, as provided herein and in the other Transaction Documents, Crude Oil and Products owned by Aron may be subject to Permitted S&O Liens. Notwithstanding the foregoing, the Company covenants and agrees that (i) the Company in its capacity as owner and/or operator of any Storage Facilities shall not have or assert any Permitted S&O Lien with respect to any Crude Oil or Products owned by Aron (excluding, however, any Permitted S&O Lien granted to the Company by Aron pursuant to the Storage Facilities Agreement), (ii) the permissibility or existence of any Permitted S&O Liens does not, and shall not be deemed to, in any way limit the Company’s obligations hereunder and the other Transactions Documents to pay amounts that are or could be the basis for any third parties (whether or not a Governmental Authority) asserting or enforcing, or attempting to assert or enforce, any Permitted S&O Lien, including any obligations of the Company with respect to Ancillary Costs or Taxes and (iii) the permissibility or existence of any Permitted S&O Liens does not, and shall not be deemed to, limit any rights and remedies of Aron hereunder or under other Transactions Documents (subject, however, to the right of the Company to exercise any available rights, remedies, or defenses hereunder or under the other Transactions Documents).

(n)    To the extent that Aron, under any Aron Procurement Contract or Included Purchase Transaction, is obligated to make available or provide any berthing, terminalling or other marine-related facilities or services, the Company covenants and agrees that it will (or will cause) such facilities or services to be provided as and when required in accordance with the terms and conditions of such Aron Procurement Contract or Included Purchase Transaction.

(o)    If, in connection with the Company’s procurement of Crude Oil or Products from any third party (a “Company Sourcing Transaction”), Aron enters into Aron Procurement Contract or Included Purchase Transaction with the Company to purchase such Crude Oil or Products from the Company and thereunder agrees to make a prepayment to the Company for such Crude Oil or Products, then the Company covenants and agrees, with respect to such Company Sourcing Transaction, that:

(i)    any bill of lading issued under any Company Sourcing Transaction (including without limitation any change to delivery location for the relevant shipment) shall be nonnegotiable; and

(ii)    the funds prepaid by Aron to the Company under the related Aron Procurement Contract or Included Purchase Transaction shall be used exclusively by the Company to make payment to the seller under such Company Sourcing Transaction and the date by which any prepayment from Aron is due to be made shall be fixed so that promptly after the Company’s receipt of such funds it shall be required remit the same to the seller under such Company Sourcing Transaction or to post such funds as cash collateral to support a letter of credit issued to the seller under such Company Sourcing Transaction.

(p)    The volume of Sludge held in any Included Tanks shall be determined from time to time as follows:

(i)    on an annual basis, the Company shall determine the volume of Sludge in each Included Tank using Infrared Thermography to make such determination;

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(p)    The volume of Sludge held in any Included Tanks shall be determined from time to time as follows:

(i)    on an annual basis, the Company shall determine the volume of Sludge in each Included Tank using Infrared Thermography to make such determination;

(ii)    so long as no Default or Event of Default with respect to the Company has occurred and is continuing, Aron may at any time require that the Company determine within thirty (30) Business Days the volume of Sludge in each Included Tank using Infrared Thermography if no such determination has been made in the immediately preceding six (6) months and the annual determination to be made under clause (i) above is not scheduled to occur within the next 30 days;

(iii)    if a Default or Event of Default with respect to the Company has occurred and is continuing, Aron may at any time require that the Company determine within thirty (30) Business Days the volume of Sludge in each Included Tank using Infrared Thermography; provided that, if the Company does not or is not able to complete such determination within such period, then Aron may elect to have an Independent Inspection Company make such determination as promptly as practicable;

(iv)    Infrared Thermography shall be used in determining the Sludge volumes to be determined as of any Termination Date;

(v)    if the Company makes any volume determination pursuant to the preceding clauses, it shall promptly provide the results of such determination to Aron in writing; and

(vi)    during the Term hereof, for purposes of calculations under Sections 10.1 and 10.2, Aron shall use the most recently Sludge volumes determined pursuant to the foregoing clauses to calculate the volumes of Crude Oil and Products owned by Aron in the Included Tanks.

(q)    The Company shall be the importer of record of all shipments of Crude Oil or Products held in the Included Tanks.

(r)    In connection with Aron’s procurement of Crude Oil or Products, whether from the Company or any third party, under an Aron Procurement Contract or an Included Purchase Transaction (each a “Sourcing Transaction”) or Aron’s provision of a Crude Payment Undertaking or Product Payment Undertaking (each, a “Payment Undertaking”) with respect to any Refinery Procurement Contract or Refinery Product Contract, the Company covenants and agrees that any costs, losses or damages that Aron may incur directly as a result of such Sourcing Transaction or Payment Undertaking, including due to failure by the Company or any such third party to deliver the Crude Oil or Products subject to such Sourcing Transaction, Refinery Procurement Contract or Refinery Product Contract, shall constitute Ancillary Costs and be for the account of the Company and claims arising in connection therewith shall be subject to Section 5.9 hereof.

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(s)    The Company covenants and agrees that it shall be solely responsible for conducting any line flushes using the SPM and any and all Liabilities arising as a result of or in connection with any such line flushes, and acknowledges that Aron shall have no involvement or role in or responsibility of any nature with respect to such activities and that the Company will endeavor to procure for Aron from any third parties involved in any such line flush, including vessel operator and charterers and Third Party Suppliers, written acknowledgment or confirmation in form and substance satisfactory to Aron acknowledging and confirming the foregoing.

(t)    Subsidiaries. As of the date hereof, the Company has no Subsidiaries. The Company covenants and agrees that it shall not create or acquire any Subsidiaries without the written consent of Aron.

(u)    Included Locations. The (x) Included Locations that are owned (or exclusively leased) by the Company and (y) Included Locations that are not owned (or exclusively leased) by the Company, to the knowledge of the Company, have been maintained, repaired, inspected and serviced in accordance with good and prudent industry standards and Applicable Law and are in good working order and repair in all respects.

(v)    Ordinary Course of Business. All purchases and sales of Crude Oil and Products by the Company are and shall be made in the ordinary course of business.

(w)    [Reserved].

(x)    Payment of Taxes. All Tax returns and reports of the Company required to be filed by it have been timely filed, and all Taxes, assessments, fees and other governmental charges upon the Company and upon their properties, income, businesses and franchises that are due and payable, have been paid when due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Company has set aside on its books reserves with respect thereto to the extent required by GAAP and (b) to the extent that the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(y)    Properties. The Company has (i) good, sufficient and marketable title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of licensed interests in intellectual property) and (iv) good title to (in the case of all other personal property) all of its material assets, (a) as of the Second Restatement Effective Date, reflected in the financial statements previously delivered to Aron hereunder or, (b)  on each day of the Term after the Second Restatement Effective Date, reflected in the consolidated financial statements of the Company most recently delivered pursuant to Section 13.1(a), in each case (A) except for assets Disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted by the Transaction Documents, (B) except for Permitted Liens and defects that, individually or in the aggregate, do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company and (C) where the failure to have such title, leasehold or other interest, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

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(z)    Environmental Matters. Except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, the Company (a) has not failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (b) has not become subject to any Environmental Liability, (c) has not received notice of any claim with respect to any Environmental Liability or (d) does not knows of any basis for any Environmental Liability.

(aa)    Solvency. On the Second Restatement Effective Date (after giving effect to the transactions contemplated to occur on such date), and on each other Credit Date, the Company is Solvent. For purposes hereof, “Solvent” means as to any Person, such Person, (a) owns assets whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns assets whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Transaction Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates; and “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.

(bb)    Compliance with Laws. The Company is in compliance with all Applicable Laws, including all orders and other restrictions imposed by any Governmental Authority, in respect of the conduct of its business and the ownership and operation of its properties (including compliance with all applicable Environmental Laws), except where such failure to comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

(cc)    Disclosure. None of the documents, certificates or statements or any other written information (other than financial projections (including financial estimates, budgets, forecasts and other forward-looking information) and information of general economic or industry-specific nature) furnished to Aron by or on behalf of the Company in connection with the negotiation of or pursuant to this Agreement or any other Transaction Document or otherwise in connection with the transactions contemplated hereby and thereby, when taken as a whole, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which they were made (after giving effect to all supplements theretofore provided); provided that, with respect to financial projections, financial estimates, budgets, forecasts and other forward-looking information, the Company represent only that such information was prepared in good faith based upon estimates and assumptions believed by the Company to be reasonable at the time such information is so furnished (it being understood that such information is not a guarantee of financial or other performance and actual results may differ therefrom and that such differences may be material).

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(dd)    Collateral Matters.

(i)    The Pledge and Security Agreement creates in favor of Aron a valid and enforceable security interest in the Collateral and when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Pledge and Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Company in the Collateral to the extent perfection can be obtained by filing UCC financing statements, prior and superior in right to any other Person, but subject to Permitted Liens.

(ii)    Each Lien Document, upon execution and delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under Applicable Law to create in favor of Aron a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Company in the Collateral subject thereto to the extent perfection may be achieved by making the filings and taking the other actions provided for therein, prior and superior to the rights of any other Person, except for rights secured by Permitted Liens.

(ee)    Crude Oil and Products. All Crude Oil sold by the Company to Aron or in respect of which Aron makes an advance constituting a Discretionary Draw Advance to the Company under the Transaction Documents conforms with the requirements set forth in the definition of “Crude Oil” and Schedule A. All Products sold by the Company to Aron or in respect of which Aron makes an advance constituting a Discretionary Draw Advance to the Company under the Transaction Documents conforms with the requirements set forth for such Products in Schedule A, and all such Products are merchantable and saleable.

18.3    Acknowledgment. The Company acknowledges and agrees that (1) Aron is a merchant of Crude Oil and Products and may, from time to time, be dealing with prospective counterparties, or pursuing trading or hedging strategies, in connection with aspects of Aron’s business which are unrelated hereto and that such dealings and such trading or hedging strategies may be different from or opposite to those being pursued by or for the Company, (2) Aron may, in its sole discretion, determine whether to advise the Company of any potential transaction with a Third Party Supplier and prior to advising the Company of any such potential transaction Aron may, in its discretion, determine not to pursue such transaction or to pursue such transaction in connection with another aspect of Aron’s business and Aron shall have no liability of any nature to the Company as a result of any such determination, (3) Aron has no fiduciary or trust obligations of any nature with respect to the Refinery or the Company or any of its Affiliates, (4) Aron may enter into transactions and purchase Crude Oil or Products for its own account or the account of others at prices more favorable than those being paid by the Company hereunder and (5) nothing herein shall be construed to prevent Aron, or any of its partners, officers, employees or Affiliates, in any way from purchasing, selling or otherwise trading in Crude Oil, Products or any other commodity for its or their own account or for the account of others, whether prior to, simultaneously with or subsequent to any transaction under this Agreement.

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18.4    Economic Sanctions/Anti-Bribery Provisions.

(a)    Each Party shall comply with relevant applicable laws and regulations pertaining to bribery and corruption in connection with this Agreement and has instituted and maintains policies and procedures reasonably designed to ensure compliance with all applicable laws, regulations, rules and requirements of the United Kingdom, the United States of America or any other applicable jurisdiction relating to anti-bribery or anti-money laundering. Each party agrees that it shall take reasonable steps to ensure that individuals and entities performing services for or on its behalf has complied with all applicable laws and regulations pertaining to bribery and corruption in connection with this agreement. Without limiting the generality of the foregoing, each Party covenants and agrees that it shall not, directly or indirectly engage in other acts or transactions, in each case, if this is in violation of or inconsistent with the anti-bribery or anti-money laundering legislation of any applicable government, including, as applicable, U.S. Foreign Corrupt Practices Act, the U.K. Anti-Terrorism, Crime and Security Act 2001 and the applicable country legislation implementing either the United Nations Convention against Corruption or the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

(b)    Each Party further represents, warrants and agrees that (i) no provision of this Agreement shall be interpreted to require it or any of its Affiliates to take, or refrain from taking, any action that would cause it or any of its Affiliates to violate or be subject to penalty under applicable economic sanctions laws and regulations of the United Kingdom, the European Union, the United Nations or the United States of America, including U.S. laws restricting participation in or compliance with certain foreign boycotts, directly or indirectly, as contained in the U.S. Export Administration Act of 1979 and the U.S. Internal Revenue Code; (ii) neither Party, nor any of its respective directors, officers, subsidiaries, agents, employees or controlled affiliates, is an individual or entity (each, an “Associated Person”) that is (i) the subject of any sanctions administered or enforced by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other applicable sanctions authority, or (ii) located, organized, or resident in a country or territory that is the subject of comprehensive sanctions (including, without limitation, the Crimean, Donetsk, or Luhansk regions of Ukraine, Cuba, Iran, North Korea, Sudan, and Syria); and, further, neither it nor any of its respective Associated Persons shall, directly or indirectly, use the proceeds, if any, received from the other Party, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Associated Person, to fund any activities or business of or with any Associated Person or in any country or territory that, at the time of such funding, is the subject of the foregoing economic sanctions, or in any other manner that will result in a violation of such sanctions by any Associated Person, unless permitted by law.

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(c)    The Company represents, warrants and covenants to Aron that no Crude Oil or Products originate or will originate from, are or will be derived in whole or in part from any article which is grown, produced, or manufactured in, or have been transported through, the Crimean, Donetsk, or Luhansk regions of Ukraine, Cuba, Iran, North Korea, Sudan, Syria, Russia, or any other country or territory that is the subject of the foregoing economic sanctions, for so long as such country or territory is the subject of economic sanctions. The Company further agrees that, in no event, shall Aron be obligated to take delivery of any Crude Oil or Products, whether from the Company or any other party, that would violate the representation, warranty and covenant in the preceding sentence.

18.5    Additional Covenants.

(a)    (i) The Company shall not agree to any amendment, modification, consent or waiver to the Long-Term Terminalling Agreement that would reasonably be expected to adversely affect in any material respect Aron or any rights Aron may have with respect to the Long-Term Terminalling Agreement, in each case, without the consent of Aron. (ii) The Company shall not agree to any early termination of the Long-Term Terminalling Agreement without the consent of Aron.

(b)    The Company shall (i) provide to Aron at least 3 Business Days’ prior written notice of any anticipated change in the storage tanks that are available under the Long-Term Terminalling Agreement, including without limitation, any changes occurring pursuant to Schedule K to the Long-Term Terminalling Agreement, (ii) notify Aron concurrently with or promptly after any change (whether or not anticipated) to any storage tanks available under the Long-Term Terminalling Agreement having become effective and (iii) promptly execute such amendments to this Agreement (including the Schedules hereto) and other documents, and take such other actions, as Aron shall request in order to reflect any such changes or to confirm Aron’s rights with respect to any Hydrocarbons stored the tanks affected by such changes.

(c)    During the term, the Company covenants as follows:

(i)    Liens. The Company will not create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than Permitted Liens, except to the extent such property, asset or revenue constitutes Notes Collateral.

(ii)    Indebtedness. The Company will not create, incur, assume or suffer to exist any Indebtedness, except:

(A)    Indebtedness under the Transaction Documents;

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(B)    (i) Indebtedness outstanding on the date hereof and pursuant to documentation listed on Schedule EE, (ii) Indebtedness under the Indentures and the Notes, and[reserved], (iii) Indebtedness under the ABL Facility and (iv) Indebtedness under the LC Credit Documents (so long as such Indebtedness is subject to the terms of the Collateral Agency Agreement) and, in each case, any refinancings, refundings, renewals or extensions thereof; provided that (1) the aggregate principal amount of such Indebtedness (including any undrawn principal amounts that are or may become available pursuant to the terms of such documentation as in effect on the Second Restatement Effective Date in the cause of clauses (i), (ii) and (iii) above and on the LC Facility Amendment Effective Date in the case of clause (iv) above) is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium, breakage or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (2) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Company or Aron than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;

(C)    guarantees of the Company in respect of Indebtedness otherwise permitted hereunder or under this Agreement;

(D)    obligations (contingent or otherwise) of the Company not secured by a Lien existing or arising under any Swap Contract, provided that (1) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, assets, or property held or reasonably anticipated by such Person and not for purposes of speculation; and (2) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

(E)    (i) capital leases and leases giving rise to Synthetic Lease Obligations (excluding the catalyst leases and leases giving rise to Synthetic Lease Obligations described in clause (ii) of this Section 18.5(c)(ii)(E)), relating to equipment or real estate used in the business of the Company; provided that at the time any such lease is entered into, the aggregate remaining Indebtedness under all such leases then in existence shall not exceed $10,000,000 and (ii) capital leases and leases giving rise to Synthetic Lease Obligations with respect to the catalyst and related metals necessary or useful in the operation of the Refinery;

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(F)    Indebtedness incurred to pay all or a portion of the purchase price of equipment or machinery used in the ordinary course of business of the Company, not to exceed $5,000,000 outstanding at any time;

(G)    Indebtedness incurred to pay all or a portion of the purchase price of equipment or machinery installed or otherwise utilized or obtained in connection with any turnaround at the Refinery;

(H)    Indebtedness of the Company under Section 18.5(c)(iii);

(I)    unsecured Indebtedness arising under intercompany transactions with any Affiliate entered into in the ordinary course of the Company’s and such Affiliate’s business;

(J)    Indebtedness arising from the endorsement of instruments or other payment items for deposit in the ordinary course of business or in respect of netting services, overdraft protection, and other like services in the ordinary course of business;

(K)    Indebtedness of the Company with respect to performance bonds, surety bonds, appeal bonds, guarantees or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Company or in connection with judgments that do not result in a Default or an Event of Default, provided that the aggregate outstanding amount of all such performance bonds, surety bonds, appeal bonds, guarantees and customs bonds permitted by this clause (K) shall not at any time exceed $5,000,000.00;

(L)    Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Company, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of such insurance for the period in which such Indebtedness is incurred;

(M)    reimbursement obligations associated with letters of credit issued (i) solely for the purchase of crude oil, refined products, and other feedstock acquired by the Company in the ordinary course of business whether such reimbursement obligations are secured or unsecured, or (ii) for general business purposes in the ordinary course of business but, with respect to this clause (ii), not at any time exceeding $2,000,000.00 (collectively, letters of credit issued pursuant to clauses (i) or (ii), “Permitted Letters of Credit”);

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(N)    obligations arising under indemnities, guarantees, or contracts for the acquisition of services, supplies or goods, in the ordinary course of business;

(O)    unsecured Indebtedness incurred in the ordinary course of business in an aggregate principal amount not to exceed $5,000,000.00 at any time outstanding;

(P)    Indebtedness with respect to the Term Loan and GuarantyCredit Agreement, dated as of January 11, 2019February 28, 2023, among Par Pacific, Par Petroleum, LLC, Par Petroleum Finance Corp., the guarantors party thereto from time to time, the lenders party thereto from time to time and Goldman Sachs Bank USAWells Fargo Bank, National Association, as administrative agent for the lenders (as amended, restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”)(together with any successors and assigns or replacements in such capacity, the “Term Loan Agent”), Wells Fargo Securities, LLC, BOFA Securities Inc., and MUFG Bank, LTD., as joint lead arrangers and joint bookrunners, and the financial institutions from time to time party thereto, in an aggregate principal amount not to exceed $250,000,000600,000,000 plus additional principal amounts that are permitted to be incurred under the Term Loan Agreement (as such agreement was in effect on January 11, 2019 and without giving effect to any amendments thereto), andthereunder, in each case with any refinancing, refunding, renewal or extension thereof; provided that, and in each case, as amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time to the extent not prohibited by this Agreement (collectively, the “Term Loan Agreement”); provided that, in connection with any amendment, restatement, supplement, replacement, refinancing, refunding, renewal or extension or other modification thereof (1) the aggregate principal amount of such Indebtedness is not increased at the time of such amendment, restatement, supplement, replacement, refinancing, refunding, renewal or extension  or other modification except by (A) additional principal amounts that are contemplated by the Term Loan Agreement (as such agreement was in effect on January 11, 2019 and without giving effect to any amendments thereto), and (B) an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (2) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such amendment, restatement, supplement, replacement, refinancing, refunding, renewing or extending or other modification of such Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Company or Aron than the terms of any agreement or instrument governing the Indebtedness being amended, restated, supplemented, replaced, refinanced, refunded, renewed or extended or otherwise modified and the interest rate applicable to any such amendment, restatement, supplement, replacement, refinancing, refunding, renewing or extending or other modification of such Indebtedness does not exceed the then applicable market interest rate; and

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(Q)    Indebtedness constituting Pari Passu LienSecured Hedge Agreements (as defined in and permitted under the IndenturesTerm Loan Agreement) and guarantees thereof.

(iii)    Permitted Hedging.

(A)    The Company shall not create, incur, assume or permit to exist any obligation under any Swap Contract relating to Crude Oil and Product, other feedstocks, other refined petroleum products or other hydrocarbons other than Specified Hedging Agreements that (I) reference Crude Oil or Products, (II) are executed at market prices and are settled based on one or more indices that are highly correlated to the purchase prices and sales prices of the referenced Crude Oil or Products, and (III) have a term not exceeding 18 months; provided that, notwithstanding the foregoing, the Company and its Subsidiaries shall not be in breach of this Section 18.5(c)(iii)(A) by entering into this Agreement and entering into any transactions thereunder or contemplated thereby.

(B)    The Company shall not, and shall not permit any of its Subsidiaries to, create, incur, assume or permit to exist any obligation under any Crack Spread Hedges that would result in the aggregate number of Product barrels (based on the notional volumes of such transactions) scheduled to settle thereunder in any single monthly period, as of any date, exceeding the applicable Maximum Hedged Capacity. As used herein, “Maximum Hedged Capacity” means, as of any day, on a product-by-product basis, (i) for each of the next 6 calendar months (the “Initial Period”), the aggregate volume of Products not exceeding 75% of the Refinery’s average monthly projected production volume of Products in such Initial Period, (ii) each of the next 6 calendar months immediately following the Initial Period (the “Second Period”), the aggregate volume of Products not exceeding 50% of the Refinery’s average monthly projected production volume of Products in such Second Period and (iii) for each of the next 6 calendar months immediately following the Second Period (the “Third Period”), the aggregate volume of Products not exceeding 25% of the Refinery’s average monthly projected production volume of Products in such Third Period.

(iv)    Asset Dispositions. The Company shall not make any Disposition, except:

(A)    Dispositions of obsolete or worn-out property, whether now owned or hereafter acquired, in the ordinary course of business;

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(B)    Dispositions of inventory in the ordinary course of business;

(C)    Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;

(D)    the Company may lease (as lessee) or license (as licensee) real or personal property in the ordinary course of business so long as any such lease or license does not create a capital lease obligation or Synthetic Lease Obligation except to the extent permitted by Section 18.5(c)(ii)(E);

(E)    the Company may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company, in each case so long as no such grant otherwise affects Aron’s security interest in the asset or property subject thereto;

(F)    the Company may liquidate or otherwise dispose of cash equivalents in the ordinary course of business, in each case for cash at fair market value;

(G)    the Company may dispose of property and assets to the extent such property and assets were the subject of a casualty or of condemnation proceedings upon the occurrence of an event that gives rise to the receipt by the Company or any of its Subsidiaries of any cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, physical destruction, damage, taking or any other similar event with respect to any property or assets of the Company or (ii) under any policy of insurance maintained by any of them;

(H)    Dispositions of the Company’s vehicles in the ordinary course of business; and

(I)    Dispositions of property or assets in transactions not otherwise permitted by this Section 18.5(c)(v) provided the net sale proceeds received from all assets or property sold pursuant to this clause (H) shall not exceed $5,000,000.00 in any fiscal year of the Company.

(v)      Transactions with Affiliates. Except as otherwise permitted under this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to:

(A)    create any Subsidiaries;

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(B)    other than intercompany transactions between the Company and Par Pacific or any of its Subsidiaries in the ordinary course of business related to tax sharing, shared corporate offices space, payroll and other administrative matters (collectively, “Corporate Overhead Expenses”), enter into any transaction, including the purchase, sale or exchange of property or the rendering of any services, with any Related Party of the Company, or enter into, assume or suffer to exist, or permit any Subsidiary to enter into, assume or suffer to exist, any employment, consulting, management or similar contract with any Related Party of the Company, except in the ordinary course of the Company’s or such Subsidiary’s business and upon fair and reasonable terms not less favorable to the Company or such Subsidiary than it would obtain in a comparable arm’s length transaction with a Person not a Related Party;

(C)    allocate (or have allocated to it by Par Pacific or any of its Subsidiaries) Corporate Overhead Expenses other than in a fair, equitable, proportionate and consistent manner;

(D)    make or become obligated to make payment of management or similar fees to Par Pacific; or

(E)    purchase or otherwise acquire the Equity Interests, assets (constituting a business unit), obligations or other securities of or any interest in any Affiliate of the Company, or otherwise extend any credit to, guarantee the obligations of or make any additional investments in any Affiliate of the Company.

(vi)    Investments. Except as otherwise permitted under this Agreement, the Company shall not make any Investments except for:

(A)    Investments consisting of cash equivalents or securities held in a Controlled Account; and

(B)    transactions in the ordinary course of business with Affiliates or third parties entered into on fair and reasonable terms which, in the case of any transaction with an Affiliate, are on terms not less favorable to the Company than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate.

(vii)   Other Intermediation Agreements. With respect to any “Intermediation AgreementFacility” (as defined in the IndenturesTerm Loan Agreement) and “Intermediation Facility” (as defined in the ABL Facility) to which an “Intermediation Counterparty” (as defined in the IndenturesTerm Loan Agreement) other than Aron is party (each, an “Other Intermediation Agreement”), (i) the Company shall, and shall cause its Affiliates to, comply with the terms, conditions and covenants in the Indentures and/or the Term Loan Agreement relating to Intermediation Agreements and in the ABL Facility relating to Intermediation Facilities and (ii) the Company shall, and shall cause its Affiliates to, promptly provide to Aron copies of all notices, amendments, waivers, consents and other similar documents executed and delivered under the Indentures and/or the Term Loan Agreement relating to any such Intermediation Agreement or under the ABL Facility relating to any such Intermediation Facility.

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(viii)    Minimum Liquidity. The Company covenants and agrees that it shall not permit the Liquidity of the Company for any three consecutive Business Days to be less than $15,000,000.00 at any time with at least $7,500,000.0015,000,000.00 of such Liquidity consisting of cash and cash equivalents.

(ix)    Restricted Payments.  The Company will not declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that the Company may make Restricted Payments in the form of cash distributions at any time:

(A)    if, at the time of and after giving effect to such Restricted Payment, (A) the Liquidity of the Company would be at least $20,000,000.00 with at least $8,750,000.0015,000,000.00 of such Liquidity consisting of cash and cash equivalents, and (B) no Default or Event of Default shall have occurred and be continuing at the time or would result therefrom.  On or prior to any Business Day on which any Restricted Payment under this Section 18.5(c)(ix) is made (but no more than 15 Business Days preceding such Business Day), the chief executive officer, president, chief financial officer, or vice president-finance of the Company shall deliver a certificate to Aron notifying Aron of such Restricted Payment, providing a summary in reasonable detail of the calculation of the amount thereof, and certifying that at the time Restricted Payment is made the Company shall be in compliance with this Section 18.5(c)(ix). Promptly after effecting any Restricted Payment under this Section 18.5(c)(ix), the chief executive officer, president, chief financial officer, or vice president-finance of the Company shall deliver a certificate to Aron certifying Aron that such Restricted Payment has been made in compliance with this Section 18.5(c)(ix); and

(B)    in the amounts (A) necessary to enable any holder of the Equity Interests of the Company (a “Member”) to pay its federal and state income tax obligations; (B) necessary to enable Par Pacific to pay its Federal and state income taxes, in each case (without duplication) attributable to allocations of income and gains, offset by losses and deductions, allocable by the Company to such Member and by such Member to Par Pacific; and (C) equal to the Federal and state income taxes that the Company would owe (or is estimated to owe) for such quarter if the Company were a standalone income tax filer and reporting entity without taking into account any utilization of any net operating loss carryforwards or other tax attributes of Par Pacific; provided that the amount of Restricted Payments paid pursuant to Section 18.5(c)(ix)(A) and Section 18.5(c)(ix)(B) to enable such Member and Par Pacific to pay Federal and state income taxes at any time shall not exceed the amount of such Federal and state income taxes actually owing by such Member and Par Pacific at such time for the respective period attributable and after giving effect to such allocations of income, gains, losses and deductions. The Company shall notify Aron promptly upon making any such Restricted Payment under this Section 18.5(c)(ix).

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(x)    Modification of LC Facility Agreement and Other Documents. (a) The Company shall not, after the LC Facility Amendment Effective Date, further amend, modify, supplement or otherwise revise the LC Facility Agreement, any LC Credit Document or any other agreement, document or instrument to which it is a party, in a manner that could be reasonably anticipated to be materially adverse to the interests of Aron, including, but not limited to, the Company materially amending, modifying, supplementing or otherwise revising (i) the definition of “Liquidity” under the LC Facility Agreement or any decrease in the minimum “Liquidity” amount required to be maintained by the Company thereunder without written notice to, and the consent of, Aron, such consent not to be unreasonably withheld, (ii) the definition of “Collateral Coverage” or any related cash collateral requirements for Letters of Credit thereunder, (iii) the definitions of “Collateral”, “Issuance Condition” or “J. Aron Payment Obligation”, (iv) the definition of “Maximum Availability” to increase the maximum principal amount of the LC Facility above $350,000,000 after giving effect to any increases in the maximum principal amount after the Closing Date (as defined in the LC Facility Agreement, (v) clause (b) of the definition of “Permitted Collateral Liens” or (vi) any change to any notice or cure period under the LC Facility Agreement with respect to (A) failure to make payments under the LC Credit Documents or (B) any other event of default or similar occurrence under the LC Credit Documents that is not related to the failure to make a payment that, were such period to lapse following either such occurrence, would result in the LC Facility Agent or the LC Issuers having the right to accelerate Indebtedness or payment obligations under the LC Credit Documents, without written notice to, and the consent of, Aron, such consent not to be unreasonably withheld.

(xi)    Cash Collateral under the LC Facility Agreement. The Company shall not post as cash collateral under the LC Facility any cash held by the Company if, after giving effect thereto, the Company would not be in compliance with Section 18.5(c)(viii) or any Default or Event of Default would occur as a result thereof; provided that the foregoing would not preclude any direct or indirect parent entity of the Company from using cash not held by the Company to make such posting of cash collateral under the LC Facility.

(xii)    Joint Ventures. The Company shall not, and shall not suffer or permit any Subsidiary to, enter into any joint venture without the prior written consent of Aron.

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(xiii)    Lease Obligations. The Company shall not, and shall not permit any of its Subsidiaries to, enter into any sale-leaseback transactions except to the extent permitted by the ABL Facility.

(xiv)    Strategic Petroleum Reserves. The Company shall ensure that all purchases of Crude Oil from the petroleum stocks maintained by the United States government for use during periods of major supply interruption established pursuant to 42 U.S.C. § 6234. shall be delivered to the Refinery.

ARTICLE 19

DEFAULT AND TERMINATION

19.1    Events of Default. Notwithstanding any other provision of this Agreement, the occurrence of any of the following shall constitute an “Event of Default”:

(a)    Either Party fails to make payment when due (i) under Article 10, Article 11, Article 20 or any Company Purchase Agreement within one (1) Business Day after a written demand therefor (it being understood and agreed that delivery of an invoice by Aron to the Company for any payment hereunder shall constitute written demand therefor) or (ii) under any other provision hereof or any other Transaction Document within five (5) Business Days; or

(b)    Other than a default described in Section 19.1(a), 19.1(c), or 19.1(k), either Party (or, if applicable, any Affiliate of such Party that is party to a Transaction Document) fails to perform any material obligation or covenant to the other under this Agreement or any other Transaction Document, which is not cured to the reasonable satisfaction of the other Party (in its reasonable discretion) within ten (10) Business Days after the date that such Party receives written notice that such obligation or covenant has not been performed; or

(c)    Either Party (or, if applicable, any Affiliate of such Party that is party to a Transaction Document) breaches any material representation or material warranty made or repeated or deemed to have been made or repeated by the Party, or any warranty or representation proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated under any Transaction Document; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of the other Party within ten (10) Business Days after the date that such Party receives notice that corrective action is needed; or

(d)    Either Party becomes Bankrupt; or

(e)    Either Party or any of its Designated Affiliates (1) defaults under a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of obligations under, or any early termination of, that Specified Transaction, (2) defaults, after giving effect to any applicable notice requirement or grace period, in making any payment or delivery due on the last payment, delivery or exchange date of, or any payment on early termination of, a Specified Transaction (or such default continues for at least three (3) Business Days if there is no applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or rejects, in whole or in part, a Specified Transaction (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); or either Party or any Affiliate of such Party that is party to any credit support document provided pursuant hereto or in connection herewith, disaffirms, disclaims, repudiates or rejects, in whole or in party, such credit support document or its obligations thereunder; or

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(f)    A Master Agreement Termination Event occurs with respect to either Party;

(g)    A Change of Control or Material Adverse Effect in respect of the Company occurs; or

(h)    The Company fails, after giving effect to any applicable notice requirement or grace period, to perform its obligations under, comply with, or maintain in any material respect a Base Agreement or the Required Storage and Transportation Arrangements, if any; or

(i)    The Company sells, leases, subleases, transfers or otherwise disposes of, in one transaction or a series of related transactions, all or a material portion of the assets of the Refinery; or

(j)    The Company (i) consolidates or amalgamates with, merges with or into, or transfers all or substantially all of its assets to, another entity (including an Affiliate) or any such consolidation, amalgamation, merger or transfer is consummated, and (ii) (A) the successor entity resulting from any such consolidation, amalgamation or merger or the Person that otherwise acquires all or substantially all of the assets of the Company does not assume, in a manner reasonably satisfactory to Aron, all of the Company’s obligations hereunder and under the other Transaction Documents, or (B) in the reasonable judgment of Aron, the creditworthiness of the resulting, surviving or transferee entity, taking into account any guaranties, is materially weaker than the Company immediately prior to the consolidation, amalgamation, merger or transfer; or

(k)    The Company fails to perform or observe any term, covenant or agreement contained in (i) any of Section 5.13(g), Section 18.5(c)(i) (Liens), Section 18.5(c)(ii) (Indebtedness), Section 18.5(c)(iv) (Asset Dispositions), or Section 18.5(c)(v) (Transactions with Affiliates) or (ii) Section 5.13(f) unless such failure under this clause (ii) is remedied within one (1) Business Day after the occurrence thereof; or

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(l)    (i) There shall occur, after giving effect to any applicable notice requirement or grace period, either (A) a default, event of default or other similar condition or event (however described) in respect of the Company under one or more agreements or instruments relating to Indebtedness (other than the indebtedness under the Transaction Documents) in an aggregate amount of not less than One Million dollars ($1,000,000.00) which has resulted in such Indebtedness becoming due and payable under such agreements and instruments before it would have otherwise been due and payable or (B) a default by the Company in making one or more payments on the due date thereof in an aggregate amount of not less than One Million dollars ($1,000,000.00) under such agreements or instruments (after giving effect to any applicable notice requirement or grace period); or, (ii) there shall occur, after giving effect to any applicable notice requirement or grace period, either (A) a default, event of default or other similar condition or event (however described) in respect of the Guarantor under one or more agreements or instruments relating to Indebtedness (other than the indebtedness under the Transaction Documents) in an aggregate amount of not less than Ten Million dollars ($10,000,000.00) which has resulted in such Indebtedness becoming due and payable under such agreements and instruments before it would have otherwise been due and payable or (B) a default by the Guarantor in making one or more payments on the due date thereof in an aggregate amount of not less than Ten Million dollars ($10,000,000.00) under such agreements or instruments (after giving effect to any applicable notice requirement or grace period); or

(m)    There shall occur (i) any failure of any Note IssuerPar LLC and Par Petroleum Finance Corp. or any Affiliate of a Note Issuerthereof to make any payment when due (beyond any applicable grace or cure period) under the ABL Facility, the Indentures, the Term Loan Agreement or any other Secured DebtObligation (as defined in the IndenturesTerm Loan Agreement) or (ii) any default, event of default or other similar condition or event (however described) in respect of any Note IssuerPar LLC and Par Petroleum Finance Corp. or any Affiliate of a Note Issuerthereof under the Indentures, the Term Loan Agreement or the ABL Facility and such default, event or condition has resulted in the indebtedness or obligations of such Note IssuerPar LLC and Par Petroleum Finance Corp. or Affiliate becoming due and payable thereunder before they would otherwise have been due and payable; or

(n)    Any of the following: (i) the Guarantor fails to perform or otherwise defaults in any obligation under the Guaranty, (ii) the Guarantor becomes Bankrupt, (iii) the Guaranty expires or terminates or ceases to be in full force and effect prior to the satisfaction of all obligations of the Company to Aron under this Agreement and the other Transaction Documents, or (iv) the Guarantor disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, the Guaranty; or

(o)    One or more judgments shall be entered against the Company and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed by reason of a pending appeal or otherwise, or such judgement shall not have been satisfied, vacated or bonded pending appeal, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Company to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of Five Million dollars ($5,000,000.00) or (ii) is for injunctive or other non-monetary relief and would reasonably be expected to result in a Material Adverse Effect. ; or

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(p)    (i) An event of default or any similar occurrence relating to failure by the Company to make a payment under the LC Facility Agreement or any LC Credit Document has occurred and is continuing (after giving effect to any applicable grace period or cure period contained in the LC Facility Agreement or any LC Credit Document as in effect on the LC Facility Amendment Effective Date or as amended, restated, supplemented, or otherwise modified thereafter in accordance with the terms hereof and of the Collateral Agency Agreement), (ii) an event of default or any similar occurrence under the LC Facility Agreement or any LC Credit Document not relating to failure by the Company to make a payment thereunder has occurred and is continuing and the LC Facility Agent or LC Issuers has accelerated any Indebtedness or payment obligations thereunder, or (iii) the LC Facility Agreement or any LC Credit Document shall for whatever reason be terminated or cease to be in full force and effect, or the validity or enforceability of any material provision thereof shall be contested or disclaimed by any party thereto.

(q)    For any reason (i) the Collateral Agent shall at any time not have a first priority perfected security interest in the Collateral for the benefit of Aron and the other secured parties; or (ii) any rights of the Collateral Agent or Aron in the Collateral become unenforceable or invalid; or

(r)    Any Transaction Document shall for whatever reason be terminated or cease to be in full force and effect, or the validity or enforceability of any provision thereof shall be contested or disclaimed by the Company, the Guarantor, or any of their respective Affiliates or Subsidiaries, or any other party thereto.

19.2    Remedies Upon Event of Default.

(a)    Notwithstanding any other provision of this Agreement, if any Event of Default with respect to the Company, on the one hand, or Aron, on the other hand (such defaulting Party, the “Defaulting Party”) has occurred and is continuing, Aron (where the Company is the Defaulting Party) or the Company (where Aron is the Defaulting Party) (such non-defaulting Party or Parties, the “Non-Defaulting Party”) may, without notice, (i) declare all of the Defaulting Party’s obligations under this Agreement and the Commodity Forward Agreement to be forthwith due and payable (except that in the case of any Event of Default under Section 19.1(d), all such obligations shall automatically and without any such declaration become forthwith due and payable) all without presentment, demand, protest or further notice of any kind, all of which are expressly waived by the Defaulting Party, including the Discretionary Draw Advance then outstanding, all Exposure Default Interest accruing pursuant to Section 11.10(b) and any and all other amounts due pursuant to the Fee Letter or any other Transaction Document; (ii) terminate the Discretionary Draw Commitment and/or (iii) subject to Section 19.2(c), exercise any rights and remedies provided or available to the Non-Defaulting Party under this Agreement or at law or equity, including all remedies provided under the Uniform Commercial Code and as provided under this Section 19.2. It is expressly agreed that all such obligations shall be due and payable as a result of any acceleration pursuant to this Section 19.2, including (without limitation) in the case of any automatic acceleration resulting from an Event of Default under Section 19.1(d) and all such obligations shall survive and continue to be due and payable following an Event of Default under Section 19.1(d).

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(b)    Notwithstanding any other provision of this Agreement, if an Event of Default has occurred and is continuing with respect to the Defaulting Party, the Non-Defaulting Party shall have the right, immediately and at any time(s) thereafter, to terminate this Agreement and the Commodity Forward Agreement (and any other contract or agreement that may then be outstanding among the Parties that relates specifically to this Agreement, including any Transaction Document) and, subject to Section 19.2(c), to liquidate and terminate any or all rights and obligations under this Agreement, the Commodity Forward Agreement and such other Transaction Documents; provided that, in the event Aron is the Non-Defaulting Party, neither this Agreement nor the Commodity Forward Agreement shall be deemed to have terminated in full until Aron shall have disposed of all Crude Oil and Products owned or maintained by Aron in connection herewith.; provided further that if, during the continuance of such Event of Default, delivery to Aron is completed at the Crude Intake Point of the Crude Oil subject to an LC Related Aron Procurement Contract that was outstanding upon the occurrence of such Event of Default and either (i) the Letter of Credit issued with respect to the corresponding LC Eligible Refinery Procurement Contract is outstanding at the time of such delivery or (ii) a Revolving Credit Loan (as defined in the LC Facility Agreement) made with respect to such LC Eligible Refinery Procurement Contract is outstanding at the time of such delivery, then the J. Aron Payment Obligation related to such LC Related Aron Procurement Contract shall survive and remain subject to the requirements of Section 5.13(d). The Settlement Amount (as defined below) shall be calculated in a commercially reasonable manner based on such liquidated and terminated rights and obligations and shall be payable by one Party to the other. The “Settlement Amount” shall mean (A) the amount, expressed in U.S. Dollars, of losses and costs that are or would be incurred by the Non-Defaulting Party (expressed as a positive number) or gains that are or would be realized by the Non-Defaulting Party (expressed as a negative number) as a result of the liquidation and termination of all rights and obligations under this Agreement and such other Transaction Documents and shall include, if the Company is the Defaulting Party, without limitation, the DD Make-Whole and the Inventory Make-Whole (each as defined below) other than the rights and obligations arising under the Commodity Forward Agreement, plus (B) at the election of the Non-Defaulting Party, the Commodity Forward Settlement Amount. The determination of the Settlement Amount shall include (without duplication): (x) the losses and costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by the Non-Defaulting Party in terminating, transferring, redeploying or otherwise modifying any outstanding Procurement Contracts, (y) the losses and costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by the Non-Defaulting Party in terminating and liquidating any transactions evidenced by confirmations subject hereto (including the SPM Master Buy/Sell Crude Confirmation, SPM Master Buy/Sell Product Confirmation and any other buy/sell confirmation hereunder) and (z) all losses and costs (or gains) incurred or realized by the Non-Defaulting Party, as a result of the Non-Defaulting Party’s terminating, liquidating, maintaining, obtaining or reestablishing any Related Hedges (including, if Aron is the Non-Defaulting Party, all hedging transactions relating to the Monthly Market Structure Roll Fees); provided further that if the Non-Defaulting Party elects that the Commodity Forward Settlement Amount shall not be included in the determination of the Settlement Amount, the Commodity Forward Settlement Amount and the Settlement Amount shall each become due at the same time pursuant to Section 19.2(f). If the Settlement Amount is a positive number it shall be due to the Non-Defaulting Party and if it is a negative number, the absolute value thereof shall be due to the Defaulting Party. “DD Make-Whole” means, as of any date of determination, the amount, expressed in U.S. Dollars, equal to (A) an amount of utilization fees that Aron would have earned for the period commencing on such date through the end of the Term (assuming that no Event of Default in respect of the Company would occur) (i) using a per annum rate equal to SOFR Rate plus the Applicable Spread, and (ii) assuming that the aggregate principal amount of the Discretionary Draw Advance that would be outstanding at all times during such period is equal to $53,750,000.00, plus (B) an amount of the availability fees that Aron would have earned for the period commencing on such date through the end of the Term (assuming that no Event of Default in respect of the Company would occur) (i) using a per annum rate equal to the Discretionary Draw Availability Fee and (ii) assuming an aggregate availability amount equal to the difference between the Discretionary Draw Maximum Commitment Amount and $53,750,000.00, and “Inventory Make-Whole” means, as of any date of determination, the amount, expressed in U.S. Dollars, and in each case determined for the period commencing on such date through the end of the Term (assuming that no Event of Default in respect of the Company would occur) equal to the sum of: (1) the aggregate amount of fees hereunder and, without duplication, under the Fee Letter (other than (x) the Refinery Crude Oil Purchase Fee Price applicable to the Refinery Crude Oil Purchase Fee and (y) any fees applicable to the Discretionary Draw Facility) that would have been paid to Aron during such period and determined by Aron based on the applicable minimum inventory levels specified in Schedule D and the current forward curve and the value per Barrel equal to the sum of the Pricing Values applicable to each Product Group as of the date of determination of the Inventory Make-Whole; plus (2) aggregate amount of the Refinery Crude Oil Purchase Fee Price applicable to the Refinery Crude Oil Purchase Fee for each day during such period based on an assumed net daily Crude Oil runs of 50,000 Barrels per day.

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(c)    The Settlement Amount and the Commodity Forward Settlement Amount shall be determined by the Non-Defaulting Party, acting in good faith, in a commercially reasonable manner. The Non-Defaulting Party shall determine the Settlement Amount and the Commodity Forward Settlement Amount commencing as of the date on which such termination occurs by reference to such futures, forward, swap and options markets as it shall select in its commercially reasonable judgment; provided that the Non-Defaulting Party is not required to effect such terminations and/or determine the Settlement Amount and/or Commodity Forward Settlement Amount on a single day, but rather may effect such terminations and determine the Settlement Amount and/or Commodity Forward Settlement Amount over a commercially reasonable period of time. Without limiting the generality of the foregoing, it is agreed that for purposes of determining the Settlement Amount or Commodity Forward Settlement Amount: (1) to the extent the Fee Letter provides for the calculation of any amount to be included in the Settlement Amount or Commodity Forward Settlement Amount, the provisions of the Fee Letter shall be controlling for such purpose; (2) to the extent the Non-Defaulting Party deems it commercially reasonable to do so, it may in referencing values in the futures, forward, swap and options markets for purposes of calculating various elements of the Settlement Amount or Commodity Forward Settlement Amount endeavor to align the dates as of which such reference values are determined; and (3) the Non-Defaulting Party shall discount to present value the DD Make-Whole and Inventory Make-Whole (but not any other component in the calculation of the Settlement Amount) using the Discount Rate any amount which would be due at a later date and shall add interest (at a rate determined in the same manner) to any amount due prior to the date of the calculation.

(d)    Without limiting any other rights or remedies hereunder, if an Event of Default has occurred and is continuing and Aron is the Non-Defaulting Party, Aron may, in its discretion, (i) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement, the Commodity Forward Agreement or any other Transaction Documents, (ii) withdraw from storage any and all of the Crude Oil and/or Products then in the Included Locations, (iii) otherwise arrange for the disposition of any Crude Oil and/or Products subject to any outstanding Aron Procurement Contract or Included Purchase Transaction and/or the modification, settlement or termination of such outstanding Aron Procurement Contract or Included Purchase Transaction in such manner as it elects and (iv) liquidate in a commercially reasonable manner any credit support, margin or collateral, to the extent not already in the form of cash (including applying any other margin or collateral) and apply and set off such credit support, margin or collateral or the proceeds thereof against any obligation owing by the Company to Aron (including without limitation the Initial Margin Amount). Aron shall be under no obligation to prioritize the order with respect to which it exercises any one or more rights and remedies available hereunder. The Company shall in all events remain liable to Aron for any amount payable by the Company in respect of any of its obligations remaining unpaid after any such liquidation, application and set off. Aron shall be under no obligation to prioritize the order with respect to which it exercises any one or more rights and remedies available hereunder. The Company shall in all events be liable to Aron for any amount payable by the Company in respect of any of their obligations remaining unpaid after any such liquidation, application and set off.

(e)    Without limiting any other rights or remedies hereunder, if an Event of Default has occurred and is continuing and the Company is the Non-Defaulting Party, the Company may, in its discretion, (i) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement and the Commodity Forward Agreement and/or (ii) otherwise arrange for the settlement or termination of the Parties’ outstanding commitments hereunder, the sale in a commercially reasonable manner of Crude Oil and/or Product for Aron’s account, and the replacement of the supply and offtake arrangement contemplated hereby with such alternative arrangements as it may procure.

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(f)    The Non-Defaulting Party shall set off (i) the Settlement Amount (if due to the Defaulting Party), plus the Commodity Forward Settlement Amount (if the Non-Defaulting Party elects that the Commodity Forward Settlement Amount shall not be included in the determination of the Settlement Amount and it is due to the Defaulting Party), plus any performance security (including any other margin or collateral) then held by the Non-Defaulting Party pursuant to the Transaction Documents, plus (at the Non-Defaulting Party’s election) any or all other amounts due to the Defaulting Party hereunder (including under Article 10), against (ii) the Settlement Amount (if due to the Non-Defaulting Party), plus the Commodity Forward Settlement Amount (if the Non-Defaulting Party elects that the Commodity Forward Settlement Amount shall not be included in the determination of the Settlement Amount and it is due to the Non-Defaulting Party) plus any performance security (including any other margin or collateral) then held by the Defaulting Party, plus (at the Non-Defaulting Party’s election) any or all other amounts due to the Non-Defaulting Party hereunder (including under Article 10), so that all such amounts shall be netted to a single liquidated amount payable by one Party to the other (the “Liquidated Amount”). The Party with the payment obligation shall pay the Liquidated Amount to the applicable other Parties within one (1) Business Day after such amount has been determined. In addition, the Parties acknowledge that, in connection with an Event of Default hereunder, the Step-out Inventory Sales Agreement may be terminated and with respect thereto any rights and remedies available hereunder, under any other agreement between the Parties hereto or the parties thereto, or at law or equity may be exercised.

(g)    No delay or failure on the part of the Non-Defaulting Party in exercising any right or remedy to which it may be entitled on account of any Event of Default shall constitute an abandonment of any such right, and the Non-Defaulting Party shall be entitled to exercise such right or remedy at any time during the continuance of an Event of Default.

(h)    The Non-Defaulting Party’s rights under this Section 19.2 shall be in addition to, and not in limitation or exclusion of, any other rights which the Non‑Defaulting Party may have (whether by agreement, operation of law or otherwise), including any rights of recoupment, setoff, combination of accounts or other rights under any credit support that may from time to time be provided in connection with this Agreement. The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all reasonable costs and expenses, including reasonable attorney fees, incurred in the exercise of any remedies hereunder.

(i)    If an Event of Default has occurred and is continuing, the Non-Defaulting Party may, without limitation on its rights under this Section 19.2, set off amounts which the Defaulting Party owes to it against any amounts which it owes to the Defaulting Party (whether hereunder, under any other contract or agreement or otherwise and whether or not then due).

(j)    The Parties acknowledge and agree that this Agreement is intended to be a “master netting agreement” as such term is defined in section 101(38A) of the Bankruptcy Code. As used in this Section 19.2, unless otherwise expressly provided, each reference to “this Agreement” shall, and shall be deemed to, be a reference to “this Agreement and the other Transaction Documents.”

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(k)    Without limiting the generality of the foregoing, in the event the Obligations under this Agreement and the other Transaction Documents are accelerated or otherwise become due prior to their maturity date, in each case, in respect of any Event of Default with respect to the Company (including, but not limited to, upon the occurrence of an Event of Default arising under Section 19.1(d)), (including the acceleration of claims by operation of law), any amounts that would have become due hereunder or thereunder on the date of such acceleration or otherwise with respect to any early termination hereof (whether or not as a result of an Event of Default) shall also be due and payable as though such early termination had occurred and shall be part of the Obligations. Any such amount payable shall be presumed to be the liquidated damages sustained by Aron as the result of the early termination and the Company agrees that it is reasonable under the circumstances currently existing. THE COMPANY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING AMOUNTS IN CONNECTION WITH ANY SUCH ACCELERATION. The Company expressly agrees (to the fullest extent it may lawfully do so) that: (A) all such amounts are reasonable and the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) such amounts shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Parties hereto giving specific consideration in this transaction for such agreement to pay such amounts; and (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Company expressly acknowledges that its agreement to pay such amounts to Aron as herein described is a material inducement to Aron to enter into this Agreement.

(l)    THE SETTLEMENT AMOUNT IS DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, AND THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT THE SETTLEMENT AMOUNT IS INTENDED TO BE A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY.

(m)    For the avoidance of doubt and without limitation to Section 19.3, if the Settlement Amount and/or Commodity Forward Settlement Amount is owing to Aron and is not paid when due, such overdue amount shall accrue interest at the Default Interest Rate until such amount shall have been paid in full to Aron

(n)    For purposes of this Agreement, (i) “Commodity Forward Settlement Amount” shall mean the amount, expressed in U.S. Dollars, of losses and costs that are or would be incurred by the Non-Defaulting Party (expressed as a positive number) or gains that are or would be realized by the Non-Defaulting Party (expressed as a negative number) as a result of the liquidation and termination of all rights and obligations (assuming the satisfaction of the condition precedent in Section 19.2(o) below) under the Commodity Forward Transactions, including (without duplication) all Specified Unwind Costs (as determined with respect to all Corresponding Futures and aggregated into a net amount), and (ii) “Commodity Forward Transaction” means any transaction entered into between Aron and the Company under this Agreement that is a forward agreement within the meaning of §101(53)(B) of the Bankruptcy Code.

(o)    Aron and the Company agree that (i) each Commodity Forward Transaction, the rights and obligations thereunder, and the provisions set-out in this Agreement relating to the termination of those Commodity Forward Transactions upon an Event of Default and the determination and payment of the resulting Commodity Forward Settlement Amount shall be deemed to form a separate single agreement between Aron and the Company (the “Commodity Forward Agreement”), and without such agreement each such party would not otherwise enter into any Commodity Forward Transaction; and (ii) each obligation of each party under a Commodity Forward Transaction is subject to the condition precedent that no Event of Default pursuant to Section 19.1 has occurred and is continuing.

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19.3    Default Interest.

(a)    If any amount payable by the Company under this Agreement or any other Transaction Document (including any amount payable under this Section 19.3, under Article 9, Article 10, Article 19, Article 20, or in the case of the Guarantor, the Guaranty or otherwise hereunder or thereunder) is not paid when due, whether at its scheduled payment date, by acceleration or otherwise, such amount shall thereafter bear interest at a rate per annum equal to the Default Interest Rate (calculated on the basis of actual days elapsed over a 360 day year) until such amount shall have been paid in full to Aron.

(b)    For so long as any Event of Default with respect to the Company has occurred and is continuing, interest shall accrue on a daily basis for such period (“Exposure Default Interest”) at the Default Interest Rate (calculated on the basis of actual days elapsed over a 360 day year) on Aron’s daily aggregate exposure to the Company under this Agreement and the other Transaction Documents until such Event of Default is no longer occurring, as determined by Aron in a commercially reasonable manner provided that such Exposure Default Interest shall be determined without duplication of any other interest accruing hereunder, including interest accruing at the Default Interest Rate under Section 19.3(a) above.

(c)    Any Default Interest Rate interest accruing under Section 19.3(a) or Exposure Default Interest accruing Section 19.3(b) shall be due to Aron on demand or, absent such demand, monthly and shall continue to accrue after occurrence of any Event of Default under Section 19.1(d) hereof, whether or not allowed or allowable in any insolvency or bankruptcy proceeding.

(d)    Payment or acceptance of the increased rates of interest provided for in this Section 19.3 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Party hereunder.

19.4    U.S. Resolution Stay Provisions.

(a)    Recognition of U.S. Special Resolution Regimes.

(i)    In the event that Aron becomes subject to a proceeding under the Federal Deposit Insurance Act and the regulations promulgated thereunder or Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder (a “U.S. Special Resolution Regime”), the transfer from Aron of this Agreement, the Inventory Sales Agreements and any obligation in or under, and any property securing, this Agreement or any other Transaction Document, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, Inventory Sales Agreements, the Commodity Forward Agreement and, if in effect, the Step-out Inventory Sales Agreement (collectively, the “Safe Harbor Agreements”), and any interest and obligation in or under, and any property securing, the Safe Harbor Agreements were governed by the laws of the United States or a state of the United States.

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(ii)    In the event that Aron or an Affiliate becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Rights (as defined in 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable (“Default Rights”)) under any Safe Harbor Agreement that may be exercised against Aron are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if a Safe Harbor Agreement were governed by the laws of the United States or a state of the United States.

(b)    Limitation on Exercise of Certain Default Rights Related to an Affiliate’s Entry into insolvency proceedings. Notwithstanding anything herein to the contrary, the Parties expressly acknowledge and agree that:

(i)    In the event that Aron or an Affiliate becomes subject to a proceeding under a U.S. Special Resolution Regime, the Company shall not be permitted to exercise any Default Right with respect to a Safe Harbor Agreement or any Credit Enhancement, in each case, that is related, directly or indirectly, to an Affiliate of Aron becoming subject to any insolvency or liquidation proceeding, except to the extent that the exercise of such Default Right would be permitted under the provisions of 12 C.F.R. 252.84, 12 C.F.R. 47.5 or 12 C.F.R. 382.4, as applicable; and

(ii)    In the event that Aron or an Affiliate becomes subject to a proceeding under a U.S. Special Resolution Regime, nothing in any Safe Harbor Agreement shall prohibit the transfer of any Credit Enhancement, any interest or obligation in or under such Credit Enhancement, or any property securing such Credit Enhancement, to a transferee upon or following an Affiliate of Aron becoming subject to an insolvency or liquidation proceeding, unless the transfer would result in the Company being the beneficiary of such Credit Enhancement in violation of any law applicable to the Company.

(c)    U.S. Protocol. If the Company adheres to the ISDA 2018 U.S. Resolution Stay Protocol, as published by the International Swaps and Derivatives Association, Inc. as of July 31, 2018 (the “ISDA U.S. Protocol”), the terms of the ISDA U.S. Protocol will supersede and replace the terms of this Section 19.4.

(d)    For purposes of this Section 19.4, the term “Affiliate” means “Affiliate” as defined in, and interpreted in accordance with 12 U.S.C. § 1841(k).

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ARTICLE 20

SETTLEMENT AT TERMINATION

20.1    Upon expiration or termination of this Agreement for any reason other than as a result of an Event of Default (in which case the Expiration Date or such other date as the Parties may agree shall be the “Termination Date”; provided that if such date is not a Business Day, any payments due on such date shall be made on the immediately preceding Business Day), the Parties covenant and agree to proceed as provided in this Article 20; provided that (x) this Agreement shall continue in effect following the Termination Date until all obligations are finally settled as contemplated by this Article 20 and (y) the provisions of this Article 20 shall in no way limit the rights and remedies which the Non-Defaulting Party may have as a result of an Event of Default, whether pursuant to Article 19 above or otherwise:

(a)    If any Aron Procurement Contract does not either (i) by its terms automatically become assigned to the Company on and as of the Termination Date in a manner which releases Aron from all obligations thereunder for all periods following the Termination Date or (ii) by its terms, expire or terminate on and as of the Termination Date, then the Parties shall promptly negotiate and enter into, with each of the then existing Third Party Suppliers, assignments, assumptions and/or such other documentation, in form and substance reasonably satisfactory to the Parties, pursuant to which, as of the Termination Date, (w) such Aron Procurement Contract shall be assigned to the Company or shall be terminated, (x) all rights and obligations of Aron under each of the then outstanding Aron Procurement Contracts shall be assigned to the Company, (y) the Company shall assume all of such obligations to be paid or performed following such termination, and (z) Aron shall be released by such Third Party Suppliers and the Company from any further obligations thereunder. In connection with the assignment or reassignment of any Aron Procurement Contract, the Parties shall endeavor, in a commercially reasonable manner, to facilitate the transitioning of the supply and payment arrangements, including any change in payment terms, under the relevant Aron Procurement Contracts so as to prevent any material disruption in the supply of Crude Oil thereunder.

(b)    If, pursuant to the Marketing and Sales Agreement, any sales commitments are outstanding which, by their terms, extend beyond the Termination Date, then the Parties shall promptly negotiate and enter into, with each of the purchasers thereunder, assignments, assumptions and/or such other documentation, in form and substance reasonably satisfactory to the Parties, pursuant to which, as of the Termination Date, (i) such sales commitment shall be assigned (or reassigned) to the Company or shall be terminated, (ii) all rights and obligations of Aron with respect to each then outstanding sales commitment shall be assigned to the Company, (iii) the Company shall assume all of such obligations to be paid or performed following such termination, and (iv) Aron shall be released by the purchasers thereunder and the Company from any further obligations with respect to such sales commitments. In connection with the assignment or reassignment of any Aron Procurement Contract, the Parties shall endeavor, in a commercially reasonable manner, to facilitate the transitioning of the Product marketing and sales arrangements so as to prevent any material disruption in the distribution of Products from the Refinery.

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(c)    In the event that Aron has become a party to any other third party service contract in connection with this Agreement and the transactions contemplated hereby, including any pipeline, terminalling, storage and shipping arrangement including but not limited to the Required Storage and Transportation Arrangements (an “Ancillary Contract”) and such Ancillary Contract does not by its terms expire or terminate on and as of the Termination Date, then the Parties shall promptly negotiate and enter into with each service provider thereunder such instruments or other documentation, in form and substance reasonably satisfactory to the Parties, pursuant to which as of the Termination Date (i) such Ancillary Contract shall be assigned to the Company or shall be terminated, (ii) all rights and obligations of Aron with respect to each then outstanding Ancillary Contract shall be assigned to the Company, (iii) the Company shall assume all of such obligations to be paid or performed following such termination, and (iv) Aron shall be released by the third party service providers thereunder and the Company from any further obligations with respect to such Ancillary Contract.

(d)    The volume of Crude Oil and Products at the Included Locations shall be purchased and transferred as contemplated in the Step-Out Inventory Sales Agreement. The Crude Oil volumes measured by Supplier’s Inspector at the Termination Date and recorded in Supplier’s Inspector’s final inventory report shall be the “Termination Date Crude Oil Volumes” for the purposes of this Agreement and the Product volumes measured by Supplier’s Inspector at the Termination Date and recorded in Supplier’s Inspector’s final inventory report shall be the “Termination Date Product Volumes” for purposes of this Agreement, and such Termination Date Crude Oil Volumes and Termination Date Product Volumes shall collectively be referred to as the “Termination Date Volumes.”

(e)    Aron shall promptly reconcile and determine the Termination Amount pursuant to Section 20.2. The Parties shall promptly exchange all information necessary to determine the estimates and final calculations contemplated by Section 20.2.

(f)    Aron shall have no further obligation to purchase and shall not purchase or pay for Crude Oil or Products, or incur any such purchase obligations on and after the Termination Date. Except as may be required for Aron to fulfill its obligations hereunder until the Termination Date or during any obligatory notice period pursuant to any Aron Procurement Contract, Aron shall not be obligated to purchase, take title to or pay for any Crude Oil or Products following the Termination Date or such earlier date as the Parties may determine in connection with the transitioning of such supply arrangements to the Company. Notwithstanding anything to the contrary herein, no Delivery Date shall occur later than the calendar day immediately preceding the Termination Date.

20.2    Termination Amount.

(a)    The “Termination Amount” shall equal:

(i)    Any unpaid amounts owed by the Company to Aron pursuant to the Step-Out Inventory Sales Agreement, plus

(ii)    all unpaid amounts payable hereunder by the Company to Aron in respect of Crude Oil delivered on or prior to the Termination Date, plus

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(iii)    all Ancillary Costs incurred through the Termination Date that have not yet been paid or reimbursed by the Company, plus

(iv)    in the case of an early termination, the amount reasonably determined by Aron as the breakage costs it incurred in connection with the termination, unwinding or redeploying of all Related Hedges as a result of such early termination, plus

(v)    the aggregate amount due under Section 10.2(a), calculated as of the Termination Date with such date being the final day of the last monthly period for which such calculations are to be made under this Agreement; provided that, if such amount under Section 10.2(a) is due to Aron, then such amount will be included in this Termination Amount as a positive number and if such amount under Section 10.2(a) is due to the Company, then such amount will be included in this Termination Amount as a negative number, plus

(vi)    any unpaid portion of any fee owed to Aron pursuant to Article 11 (including any Discretionary Draw Availability Fee or Discretionary Draw Utilization Fee); plus

(vii)    any FIFO Balance Final Settlement that is determined to be due pursuant to Schedule N; provided that, if such FIFO Balance Final Settlement is due to Aron, then such amount will be included in this Termination Amount as a positive number and if such amount under Section 10.2(a) would be due to the Company, then such amount will be included in this Termination Amount as a negative number, plus

(viii)    any early termination fees owed to Aron pursuant to Section 3.3, plus

(ix)    all unpaid amounts payable hereunder by Aron to the Company in respect of Product delivered on or prior to the Termination Date, minus

(x)    all unpaid amounts payable under the Marketing and Sales Agreement by Aron to the Company for services provided up to the Termination Date.

All of the foregoing amounts shall be aggregated or netted to a single liquidated amount owing from one Party to the other. If the Termination Amount is a positive number, it shall be due to Aron and if it is a negative number, the absolute value thereof shall be due to the Company.

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(b)    The Parties acknowledge that one or more of the components of the Termination Amount will not be able to be definitively determined by the Termination Date and therefore agree that Aron shall, in a commercially reasonable manner, estimate in good faith each of such components and use such estimated components to determine an estimate of the Termination Amount (the “Estimated Termination Amount”); provided that the Parties agree that Aron shall continue to hold the Initial Margin Amount until final settlement is completed pursuant to Section 20.2(c). Without limiting the generality of the foregoing, the Parties agree that the amount due under Section 20.2(a)(i) above shall be estimated by Aron in the same manner and using the same methodology as it used in preparing the Estimated Commencement Date Value, but applying the Step-Out Values under and as defined in Schedule B and other price terms provided for herein with respect to the purchase of the Termination Date Volumes. Aron shall use its commercially reasonable efforts to prepare, and provide the Company with, an initial Estimated Termination Amount, together with appropriate supporting documentation, at least five (5) Business Days prior to the Termination Date. To the extent reasonably practicable, Aron shall endeavor to update its calculation of the Estimated Termination Amount by no later than 12:00 p.m. HST on the Business Day prior to the Termination Date. If Aron is able to provide such updated amount, that amount shall constitute the Estimated Termination Amount and shall be due and payable by no later than 5:00 p.m., HST on the Business Day preceding the Termination Date. Otherwise, the initial Estimated Termination Amount shall be the amount payable on the Termination Date. If the Estimated Termination Amount is a positive number, it shall be due to Aron and if it is a negative number, the absolute value thereof shall be due to the Company.

(c)    On or before ten (10) Business Days following the Termination Date, Aron shall prepare, and provide the Company with, (i) a statement showing the calculation, as of the Termination Date, of the Termination Amount, (ii) a statement (the “Termination Reconciliation Statement”) reconciling the Termination Amount with the sum of the Estimated Termination Amount pursuant to Section 20.2(b) and the Initial Margin Amount and indicating any amount remaining to be paid by one Party to the other as a result of such reconciliation. Within one (1) Business Day after receiving the Termination Reconciliation Statement and the related supporting documentation, the Parties will make any and all payments required pursuant thereto. Promptly after receiving such payment (but in any event within five (5) Business Days), Aron shall (x) cause any filing or recording of any UCC financing forms to be terminated, (y) release and terminate all Lien Documents pursuant to one or more instruments mutually acceptable to the Parties and (z) deliver, re-assign, reconvey and transfer, as applicable, to the Company any other Collateral or credit support held or maintained by Aron (including, without limitation, the remaining balance, if any, of the Initial Margin Amount after giving effect to this Article 20).

(d)    Notwithstanding anything herein to the contrary, Aron shall not have any obligation to make any payment contemplated by this Section 20.2, transfer of title to Crude Oil or Products or to otherwise cooperate in the transition matters described in Section 20.1 unless (i) the Company shall have performed its obligations under the Step-Out Inventory Sales Agreement and this Section 20.02 as and when required pursuant to the terms hereof and thereof, and (ii) except as otherwise agreed by the Parties, the Master Agreement and all Transactions outstanding thereunder have been terminated and all amounts due with respect to such terminated Transactions shall have been paid in full.

20.3    Transition Services. To the extent necessary to facilitate the transition to the Purchasers of the storage and transportation rights and status contemplated hereby, each Party shall take such additional actions, execute such further instruments and provide such additional assistance as the other Party may from time to time reasonably request for such purposes.

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ARTICLE 21

INDEMNIFICATION; EXPENSES

21.1    To the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in the Transaction Documents, Aron shall defend, indemnify and hold harmless the Company, its Affiliates, and their directors, officers, employees, representatives, agents and contractors for and against any Liabilities directly or indirectly arising out of (i) any breach by Aron of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of Aron made herein or in connection herewith proving to be false or misleading, (ii) any failure by Aron to comply with or observe any Applicable Law, (iii) Aron’s negligence or willful misconduct, or (iv) injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by Aron or its employees, representatives, agents or contractors in exercising any rights or performing any obligations hereunder or in connection herewith, except to the extent that any Liability arising under clause (iv) has resulted from the negligence or willful misconduct on the part of the Company, its Affiliates or any of their respective employees, representatives, agents or contractors.

21.2    To the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in this Agreement, the Company shall defend, indemnify and hold harmless Aron, its Affiliates, and their directors, officers, employees, representatives, agents and contractors for and against any Liabilities directly or indirectly arising out of (i) any breach by the Company of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Company made herein or in connection herewith proving to be false or misleading, including, without limitation the Company’s obligation for payment of taxes pursuant to Section 15.1, (ii) the Company’s transportation, handling, storage, refining or disposal of any Crude Oil or the products thereof, including any conduct by the Company on behalf of or as the agent of Aron under the Required Storage and Transportation Arrangements, (iii) the Company’s failure to comply with its obligations under the terminalling, pipeline and lease agreements underlying the Required Storage and Transportation Arrangements, (iv) the Company’s negligence or willful misconduct, (v) any failure by the Company to comply with or observe any Applicable Law, (vi) injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by the Company or its employees, representatives, agents or contractors in exercising any rights or performing any obligations hereunder or in connection herewith, (vii) actual or alleged presence or release of Hazardous Substances in connection with the Transaction Documents or the transactions contemplated thereby, or any liability under any Environmental Law related in any way to or asserted in connection with the Transaction Documents or the transactions contemplated thereby, (viii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company, and regardless of whether Aron is a party thereto, or (ix) any misappropriation or fraud by the Company, its Affiliates or any of their respective officers or employees, except to the extent that any Liability arising under clause (vi), (vii) or (viii) above has resulted from the negligence or willful misconduct on the part of Aron, its Affiliates or any of their respective employees, representatives, agents or contractors.

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21.3    The Parties’ obligations to defend, indemnify, and hold each other harmless under the terms of the Transaction Documents shall not vest any rights in any third party (whether a Governmental Authority or private entity), nor shall they be considered an admission of liability or responsibility for any purposes other than those enumerated in the Transaction Documents.

21.4    Each Party agrees to notify the other as soon as practicable after receiving notice of any claim or suit brought against it within the indemnities of this Agreement, shall furnish to the other the complete details within its knowledge and shall render all reasonable assistance requested by the other in the defense; provided that, the failure to give such notice shall not affect the indemnification provided hereunder, except to the extent that the indemnifying Party is materially adversely affected by such failure. Each Party shall have the right but not the duty to participate, at its own expense, with counsel of its own selection, in the defense and settlement thereof without relieving the other of any obligations hereunder.

21.5    The Company shall pay (i) all reasonable out‑of‑pocket expenses incurred by Aron and its Affiliates (including the reasonable fees, charges and disbursements of counsel and tax consultants for Aron) in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Transaction 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) and (ii) all out‑of‑pocket expenses incurred by Aron and its Affiliates in connection with the enforcement or protection of Aron’s rights under or in connection with this Agreement and the other Transaction Documents.

ARTICLE 22

LIMITATION ON DAMAGES

THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES’ LIABILITY FOR DAMAGES IS LIMITED TO DIRECT, ACTUAL DAMAGES ONLY (WHICH INCLUDE ANY AMOUNTS DETERMINED UNDER ARTICLE 19) AND NEITHER PARTY SHALL BE LIABLE FOR SPECIFIC PERFORMANCE, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, IN TORT, CONTRACT OR OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE, THE SUSPENSION OF PERFORMANCE, THE FAILURE TO PERFORM, OR THE TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT, SUCH LIMITATION SHALL NOT APPLY WITH RESPECT TO (I) ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE UNDER THIS AGREEMENT OR (II) ANY BREACH OF ARTICLE 18.4(C) OR ARTICLE 24. EACH PARTY ACKNOWLEDGES THE DUTY TO MITIGATE DAMAGES HEREUNDER.

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ARTICLE 23

AUDIT AND INSPECTION

During the Term of this Agreement each Party and its duly authorized representatives, upon reasonable notice and during normal working hours, shall have access to the accounting records and other documents maintained by the other Party, or any of the other Party’s contractors and agents, which relate to this Agreement; provided that, neither this Section nor any other provision hereof shall entitle the Company to have access to any records concerning any hedges or offsetting transactions or other trading positions or pricing information that may have been entered into with other parties or utilized in connection with any transactions contemplated hereby or by any other Transaction Document. The right to inspect or audit such records shall survive termination of this Agreement for a period of two (2) years following the Termination Date. Each Party shall preserve, and shall cause all contractors or agents to preserve, all of the aforesaid documents for a period of at least two (2) years from the Termination Date.

ARTICLE 24

CONFIDENTIALITY

24.1    In addition to the Company’s confidentiality obligations under the Transaction Documents, the Parties agree that the specific terms and conditions of this Agreement, including any list of counterparties, the Transaction Documents and the drafts of this Agreement exchanged by the Parties and any information exchanged between the Parties, including calculations of any fees or other amounts paid by the Company to Aron under this Agreement and all information received by Aron from the Company relating to the costs of operation, operating conditions, and other commercial information of the Company not made available to the public, are confidential and shall not be disclosed to any third party, except (i) as may be required by court order or Applicable Laws or as requested by a Governmental Authority, (ii) to such Party’s or its Affiliates’ employees, directors, shareholders, auditors, consultants, banks, lenders, financial advisors and legal advisors for purposes of administering, negotiating, considering, processing or evaluating this Agreement and the other Transaction Documents or the transactions contemplated thereby, or (iii) to such Party’s insurance providers, solely for the purpose of procuring insurance coverage or confirming the extent of existing insurance coverage; provided that, prior to any disclosure permitted by this clause (iii), such insurance providers shall have agreed in writing to keep confidential any information or document subject to this Section 24.1, or (iv) to any potential or prospective participant in connection with any contemplated participation in accordance with Section 26.3 or any participations therein or to any direct or indirect contractual counterparties (or the advisors thereto) to any swap or derivatives transaction, or any credit insurance provider, relating to the Company or any of its Affiliates and their Obligations; provided that, prior to any disclosure permitted by this clause (iv), such participants or prospective participants, counterparties and advisors such insurance providers shall have agreed in writing to keep confidential any information or document subject to this Section 24.1. The confidentiality obligations under this Agreement shall survive termination of this Agreement for a period of two (2) years following the Termination Date. The Parties shall be entitled to all remedies available at law, or in equity, to enforce or seek relief in connection with the confidentiality obligations contained herein.

24.2    In the case of disclosure covered by clause (i) of Section 24.1, to the extent practicable and in conformance with the relevant court order, Applicable Law or request, the disclosing Party shall notify the other Party in writing of any proceeding of which it is aware which may result in disclosure.

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24.3    Tax Disclosure. Notwithstanding anything herein to the contrary, the Parties (and their respective employees, representatives or other agents) are authorized to disclose to any person the U.S. federal and state income tax treatment and tax structure of the transaction and all materials of any kind (including tax opinions and other tax analyses) that are provided to the Parties relating to that treatment and structure, without the Parties imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.

ARTICLE 25

GOVERNING LAW

25.1    THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER STATE.

25.2    EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT OF COMPETENT JURISDICTION SITUATED IN THE CITY OF NEW YORK, (WITHOUT RECOURSE TO ARBITRATION UNLESS BOTH PARTIES AGREE IN WRITING), AND TO SERVICE OF PROCESS BY CERTIFIED MAIL, DELIVERED TO THE PARTY AT THE ADDRESS INDICATED IN ARTICLE 27. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION TO PERSONAL JURISDICTION, WHETHER ON GROUNDS OF VENUE, RESIDENCE OR DOMICILE.

25.3    Each Party waives, to the fullest extent permitted by Applicable Law, any right it may have to a trial by jury in respect of any proceedings relating to this agreement.

ARTICLE 26

ASSIGNMENT

26.1    This Agreement shall inure to the benefit of and be binding upon the Parties hereto, their respective successors and permitted assigns.

26.2    The Company shall not assign this Agreement or its rights or interests hereunder in whole or in part, or delegate its obligations hereunder in whole or in part, without the express written consent of Aron. Aron may, without the Company’s consent, assign and delegate all of Aron’s rights and obligations hereunder to (i) any Affiliate of Aron, provided that the obligations of such Affiliate hereunder are guaranteed by The Goldman Sachs Group, Inc. or (ii) any non-Affiliate Person that succeeds to all or substantially all of its assets and business and assumes Aron’s obligations hereunder, whether by contract, operation of law or otherwise, provided that the creditworthiness of such successor entity, in the Company’s reasonable credit judgment, is equal or superior to the creditworthiness of Aron immediately prior to such assignment. Any other assignment by Aron shall require the Company’s consent.

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26.3    Participations.

(a)    Upon prior notice to the Company, Aron shall have the right at any time to sell one or more participations to any Person in all or any portion of the transactions contemplated pursuant to the Transaction Documents, including the Obligations; provided that, unless an Event of Default has occurred and is continuing in respect of the Company, Aron shall not sell such participations in excess of forty-nine percent (49%) of such transactions in the aggregate; provided that (A) Aron’s Obligations under the Transaction Documents shall remain unchanged, (B) Aron shall remain solely responsible to the Company for the performance of such obligations and (C) the Company shall continue to deal solely and directly with Aron in connection with Aron’s rights and obligations under this Agreement and the other Transaction Documents. In the event that Aron sells a participation pursuant to this Section 26.3, Aron shall, acting solely for United States federal income tax purposes as a non-fiduciary agent of the Company, maintain a register on which it records the name and address of each participant to which it has sold a participation and the amounts (and stated fees or interest, if applicable) of each such participant’s interest in the Transaction Documents or the Obligations (the “Participant Register”); provided that Aron shall not 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 Transaction Documents or Obligations), except to the extent that such disclosure is necessary to establish that such right or obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by Aron directly and solely to the IRS. The entries in the Participant Register shall be conclusive absent manifest error, and Aron shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes under this Agreement and the other Transaction Documents, notwithstanding any notice to the contrary.

(b)    The holder of any such participation shall not be entitled to require Aron to take or omit to take any action hereunder, except that any participation agreement may provide that the participant’s consent must be obtained with respect to the consent of Aron to any waiver, amendment, modification or consent the effect of which would be to:

(i)    (x) increase any commitment or obligation of Aron to purchase or sell Crude Oil or Products or make or increase the Discretionary Draw Advance, in each case, other than any decisions by Aron to enter into Aron Procurement Contracts or (y) postpone the scheduled expiration date of any of those matters addressed in (and not excepted from) the foregoing clause (x) (it being understood that no waiver, amendment or other modification of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any commitment or obligation of Aron for purposes of this Section 26.3(b)(i));

(ii)    extend the Term;

(iii)    waive, reduce or postpone any scheduled payment under the Transaction Documents (but not any voluntary prepayment of the Discretionary Draw Advance);

(iv)    reduce the rate of any fee or premium payable under the Transaction Documents, or waive or postpone the time for payment of any such fee or premium;

(v)    reduce the principal amount of the Discretionary Draw Advance or the amount owed to Aron in connection with any sales to the Company of any Crude Oil or Products under the Transaction Documents;

(vi)    waive, amend or modify any provision of this Section 23.3(b); or

(vii)    release all or substantially all the Collateral from the Liens of the Lien Documents; or

(viii)    any determination to establish Reserves or determination regarding Prices, or any amendments to the provisions in the Transaction Documents governing Reserves and Prices.

(c)    The Company agrees that (x) each participant shall be entitled to the benefits of Section 30.13 (subject to the requirements and limitations therein), and, to the extent such participant holds a participation in any Obligations arising under the Financing Agreement, Sections 11.15 and 11.16 (subject to the requirements and limitations therein) to the same extent as if it were Aron and had acquired its interest by assignment pursuant to Section 26.2 and (y) such participant shall not be entitled to receive any greater payment under Section 11.15 or 11.16 with respect to any participation than Aron would have been entitled to receive with respect to such participation sold to such participant, 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 any set-off and recoupment provisions relating to the portion of the Obligations in which it is participating as though it were Aron.

26.4    Certain Other Transfers. In addition to any other assignment or participation permitted pursuant to this Article 26, Aron may assign, pledge and/or grant a security interest in all or any portion of the Obligations owed to it to secure obligations of Aron, including to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors and any operating circular issued by any Federal Reserve Bank or to any other central bank; provided that, Aron shall not be relieved of any of its obligations hereunder and under the other Transaction Documents as a result of any such assignment and pledge; and provided further that in no event shall the applicable Federal Reserve Bank, other central bank, pledgee or trustee be considered to be “Aron” hereunder or under any other Transaction Document

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26.5    Any attempted assignment in violation of this Article 26 shall be null and void ab initio and the non-assigning Party shall have the right, without prejudice to any other rights or remedies it may have hereunder or otherwise, to terminate this Agreement effective immediately upon notice to the Party attempting such assignment.

ARTICLE 27

NOTICES

All invoices, notices, requests and other communications given pursuant to this Agreement shall be in writing and sent by email or nationally recognized overnight courier. A notice shall be deemed to have been received when transmitted by email to the other Party’s email set forth in Schedule M, or on the following Business Day if sent by nationally recognized overnight courier to the other Party’s address set forth in Schedule M and to the attention of the person or department indicated. A Party may change its address or email address by giving written notice in accordance with this Section, which is effective upon receipt.

ARTICLE 28

NO WAIVER, CUMULATIVE REMEDIES

28.1    The failure of a Party hereunder to assert a right or enforce an obligation of the other Party shall not be deemed a waiver of such right or obligation. The waiver by any Party of a breach of any provision of, or Event of Default or Default under, this Agreement shall not operate or be construed as a waiver of any other breach of that provision or as a waiver of any breach of another provision of, Event of Default or Default under, this Agreement, whether of a like kind or different nature.

28.2    Each and every right granted to the Parties under this Agreement or allowed it by law or equity shall be cumulative and may be exercised from time to time in accordance with the terms thereof and Applicable Law.

ARTICLE 29

NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES

29.1    This Agreement shall not be construed as creating a partnership, association or joint venture between the Parties. It is understood that each Party is an independent contractor with complete charge of its employees and agents in the performance of its duties hereunder, and nothing herein shall be construed to make such Party, or any employee or agent of the Company, an agent or employee of the other Party.

29.2    Neither Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person; to assume, create, or incur any liability of any kind, express or implied, against or in the name of the other; or to otherwise act as the representative of the other, unless expressly authorized in writing by the other.

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ARTICLE 30

MISCELLANEOUS

30.1    If any Article, Section or provision of this Agreement shall be determined to be null and void, voidable or invalid by a court of competent jurisdiction, then for such period that the same is void or invalid, it shall be deemed to be deleted from this Agreement and the remaining portions of this Agreement shall remain in full force and effect.

30.2    The terms of this Agreement constitute the entire agreement between the Parties with respect to the matters set forth in this Agreement, and no representations or warranties shall be implied or provisions added in the absence of a written agreement to such effect between the Parties. This Agreement shall not be modified or changed except by written instrument executed by the Parties’ duly authorized representatives.

30.3    No promise, representation or inducement has been made by either Party that is not embodied in this Agreement or the Transaction Documents, and neither Party shall be bound by or liable for any alleged representation, promise or inducement not so set forth.

30.4    Time is of the essence with respect to all aspects of each Party’s performance of any obligations under this Agreement.

30.5    Nothing expressed or implied in this Agreement is intended to create any rights, obligations or benefits under this Agreement in any person other than the Parties and their successors and permitted assigns.

30.6    All audit rights, payment, confidentiality and indemnification obligations and obligations under this Agreement shall survive for the time periods specified herein.

30.7    This Agreement may be executed by the Parties in separate counterparts and initially delivered by facsimile transmission or otherwise, with original signature pages to follow, and all such counterparts shall together constitute one and the same instrument.

30.8    All transactions hereunder are entered into in reliance on the fact that this Agreement and all such transactions constitute a single, integrated agreement between the Parties, and the Parties would not have otherwise entered into any other transactions hereunder.

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30.9    The Parties agree, that notwithstanding anything to the contrary in Section 30.2 or otherwise herein, the Parties may amend any Schedule hereto (each a “Specified Schedule” and, collectively, the “Specified Schedules”) from time to time in accordance with the following procedures (each such amend, a “Specified Schedule Change”):

(a)    Each Specified Schedule Change shall be evidenced by an exchange of emails between the parties which shall specifically reference the item being changed and indicate the nature of the Specified Schedule Change (which may include, without limitation, the removal or addition of a Tank on Schedule E, change to the notice addresses and parties on Schedule M, the removal or addition of or change to a Pricing Group on Schedule P, changes to account debtors listed on Schedule T, changes relating to Included Materials on Schedule X, changes to representatives listed on Schedule CC or changes to payees listed on Schedule DD), the effective date of such Specified Schedule Change and, if such Specified Schedule Change is known to be temporary (such as in the case of Tank being temporarily removed from service), the date or expected date as of which such Specified Schedule Change is to cease being effective. Either Party may initiate this email exchange, but such email exchange shall only be effective to bind the Parties once the second Party has responded via email in a manner sufficient to confirm its agreement to the Specified Schedule Change reflected in the initial email. Other than a Specified Schedule Change, any amendment to any schedule hereto shall only be effective if evidenced by except by a written instrument executed by the Parties’ duly authorized representatives.

(b)    An exchange of emails complying with the terms of this Section 30.9 shall (notwithstanding anything to the contrary herein) constitute an amendment of relevant Specified Schedule with respect to the Specified Schedule Change memorialized in such emails.

(c)    With respect to Schedule E, whenever as a result of any Specified Schedule Change in accordance with the foregoing procedures, a Tank is (i) included on Schedule E, it shall constitute an Included Location for purposes thereof and (ii) excluded from such Schedule E, it shall not constitute an Included Location, in each case as of the relevant effective date.

30.10    The Parties agree that, notwithstanding anything to the contrary in Section 30.2 or otherwise herein, the Parties may confirm an “Agreed Roll Price” executed pursuant to Schedule Y from time to time in accordance with the following procedures:

(a)    Each Agreed Roll Price executed by the Parties may be confirmed by an exchange of emails between the Parties which shall specifically reference (i) the calendar month(s) for which the Agreed Roll Price shall apply, (ii) the product group and corresponding Agreed Roll Volumes, (iii) the amount per barrel of such Agreed Roll Price and (iv) and the calendar month for which such amount shall be incorporated in the Monthly Market Structure Roll Fee for purposes of calculating the Monthly True-up Amount. Either Party may initiate this email exchange, but such email exchange shall only be effective to bind the Parties once the second Party has responded via email in a manner sufficient to confirm its agreement to the Agreed Roll Price reflected in the initial email.

(b)    An exchange of emails complying with the terms of this Section 30.10 shall (notwithstanding anything to the contrary herein) constitute confirmation of an Agreed Roll Price for all purposes hereunder.

30.11    All transactions hereunder are entered into in reliance on the fact that this Agreement and all such transactions constitute a single, integrated agreement between the Parties, and the Parties would not have otherwise entered into any other transactions hereunder.

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30.12    The Company (a) agrees that the Transaction Documents, as defined in the First Amended and Restated S&O Agreement and as they have been amended or amended and restated on or prior to the date hereof, shall constitute Transaction Documents, (b) agrees that any Lien Documents and the Guaranty, as defined in the First Amended and Restated S&O Agreement and as they have been amended or amended and restated on or prior to the date hereof, shall continue in full force and effect to provide security for, and a guaranty of, all liabilities and other obligations of the Company under this Agreement and the Transaction Documents; (c) reaffirms and ratifies all of its agreements in such Transaction Documents, as they have been amended or amended and restated on or prior to the date hereof; (d) agrees that each reference in such Transaction Documents to the First Amended and Restated S&O Agreement shall be deemed to be references to this Agreement (other than references to the “First Amended and Restated S&O Agreement” in this Agreement). On the Second Restatement Effective Date, the First Amended and Restated S&O Agreement shall be amended and restated in its entirety by this Agreement, and the First Amended and Restated S&O Agreement shall thereafter be of no further force and effect and shall be deemed replaced and superseded in all respects by this Agreement. This Agreement is in no way intended to constitute a novation of the First Amended and Restated S&O Agreement. From and after the Second Restatement Effective Date, all references in any Transaction Document to the “S&O Agreement” shall be deemed to be a reference to this Agreement.

30.13    In the event that any fee, charge or other payment or amount under the Transaction Documents is determined by reference to SOFR Rate and Aron determines that the provisions of Section 11.14(a)(ii) have been implicated, the Parties shall endeavor to establish an alternate rate to replace SOFR Rate for all such purposes pursuant to the terms of Section 11.14(a)(ii).

30.14    The Company agrees that if, at any time prior to the Expiration Date (and regardless of whether this Agreement terminates prior thereto), it wishes to engage in any transaction or series of transactions for purposes of financing RINs or any Environmental Credits (whether or not the obligations under such transaction constitute Indebtedness and including any such transaction using the same as collateral (each, a “RIN Transaction”)), then the Company will offer Aron and its Affiliates (collectively, “Goldman Sachs”) the exclusive first right to act in such RIN Transaction as the lender, purchaser or other creditor and if Goldman Sachs desires to act in such capacity, the Company and Goldman Sachs will endeavor in a commercially reasonable manner negotiate and, if such terms and conditions are mutually satisfactory, enter into such agreements providing for such RIN Transaction.

ARTICLE 31

FORWARD JET FUEL TRANSACTION WITH PROVISIONAL PAYMENT

31.1    Forward Transaction. Pursuant to the terms and conditions of this Article 31, the Parties have entered to a forward transaction for the sale by the Company and the purchase by Aron of volumes of Jet Fuel (as defined below) to be delivered over an agreed period with payment to be made by Aron in a provisional payment subject to subsequent intra-month and monthly true ups (the “Forward Jet Fuel Transaction”).

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31.2    Transaction Commencement. Subject to satisfaction of the conditions in Section 31.9, commencing on May 8, 2017 or such later date as the Parties shall agree (the “Forward Transaction Commencement Date”), the Company shall be obligated to sell and deliver to Aron, and Aron shall be obligated to purchase and receive from the Company, the monthly Jet Fuel volumes as indicated on Schedule BB hereto; provided that (i) each calendar month listed on Schedule BB during which Jet Fuel volumes are to be delivered under the Forward Jet Fuel Transaction shall be a “Forward Delivery Month” hereunder, (ii) the price specified on such Schedule for each Forward Delivery Month shall be the “Specified Index Price” for such month and (iii) the Jet Fuel volume to be delivered by the Company during any Forward Delivery Month shall be the “Monthly Forward Volume” for such month.

31.3    Provisional Payment. Provided that the conditions in Section 31.9 have been satisfied and no Default or Event of Default with respect to the Company has occurred and is continuing on the Forward Transaction Commencement Date, Aron shall pay to the Company, a provisional payment under the Forward Jet Fuel Transaction in the amount of $30,039,211.30 (the “Provisional Payment”).

31.4    Monthly True-Up under Forward Jet Fuel Transaction.

(a)    For each Forward Delivery Month, Aron shall determine the actual volume of Jet Fuel that the Company has delivered during such month under the Forward Jet Fuel Transaction (the “Actual Forward Delivered Volume”), which shall equal the lesser of (A) the Monthly Forward Volume for such month and (B) the Monthly Produced Volume for Jet Fuel for such month.

(b)    For each Forward Delivery Month, Aron shall determine a true up payment (the “Monthly Forward True-Up Amount”) which shall equal:

(i)    (x) the Index Amount for Jet Fuel for such month minus the Specified Index Price for such Forward Delivery Month, multiplied by (y) the Actual Forward Delivered Volume for such month, multiplied by -1; minus

(ii)    The Cumulative Daily Forward Settlement for such Forward Delivery Month.

(iii)    The Monthly Forward True-Up Amount shall be incorporated as provided in Schedule C hereto and as result shall be paid as part of the Monthly True-up Amount due under Section 10.2.

31.5    Volume Shortfalls.

(a)    If for any Forward Delivery Month, the Monthly Forward Volume exceeds the Actual Forward Delivered Volume (a “Monthly Volumetric Shortfall”), then the Company shall be obligated to compensate Aron for such Monthly Volumetric Shortfall no later than the Shortfall Settlement Date by making a cash payment to Aron in an amount equal to the product of (x) the Monthly Volumetric Shortfall and (y) the Specified Index Price for such Forward Delivery Month (the “Shortfall Value”).

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(b)    If the Company has not settled a Monthly Volumetric Shortfall on or before the Shortfall Settlement Date, then (A) an Event of Default with respect to the Company shall occur hereunder and (B) without limiting the foregoing, interest shall accrue on such Shortfall Value (based on actual days elapsed over a 365 day year) during each monthly period from and after such Shortfall Settlement Date until such settlement occurs, at an annual rate of equal to the Discount Rate for the first monthly period which rate shall increase by 1% for each subsequent monthly period, all of which accrued interest shall be due from time to time upon demand by Aron and in any event no later than the settlement of such Monthly Volumetric Shortfall.

31.6    Delivery and Specifications. Unless otherwise agreed by Aron, all deliveries of Jet Fuel delivered under the Forward Jet Fuel Transaction shall be in accordance with Section 8.5 above and all such Products shall conform to the specification requirements under Section 8.6 above.

31.7    Adjustment to Interim Payments. For each Forward Delivery Month, the Interim Payments determined for each day during such month under Section 10.1 hereof shall be adjusted in accordance with the following provisions:

(a)    For each day during a Forward Delivery Month, Aron shall estimate (i) the Daily Produced Volume for such day using the Best Available Inventory Data; provided that if inventory data have not been reported on any day within a three (3) Business Day period, Aron will use the inventory data for the day occurring during the thirty (30) day period preceding such calendar day that results in the smallest Estimated Daily Net Product Sales for Jet Fuel; provided further that, if any Party determines that any inventory data Aron has used in such determination was materially inaccurate, then Aron shall adjust future Daily Forward Settlements to take account of any corrected inventory data, and (ii) the aggregate volume of Jet Fuel that has been delivered to Aron from the first day of such Forward Delivery Month through such day, up to an aggregate volume not exceeding the Monthly Forward Volume for such Forward Delivery Month (the “Estimated Monthly Forward Volume”). All such estimates shall be made by Aron in a commercially reasonable manner based on the available inventory data and otherwise in the manner contemplated above, and to the extent it deems appropriate taking into account such other data as may be relevant to the determination of such estimates.

(b)    If, as of any day during a Forward Delivery Month, the Estimated Monthly Forward Volume equals the Monthly Forward Volume for such month, then for such day (or portion of such day) and for all days occurring thereafter during such month, the Daily Produced Volume shall be zero.

31.8    Daily Forward Settlements. For each day during a Forward Delivery Month, Aron shall calculate a provisional settlement with respect to the Daily Produced Volume for such day (each, a “Daily Forward Settlement”) as provided in this Section 31.8. For purposes of this calculation, (i) the Daily Value for each day shall be the Daily Value for the Jet Fuel Product Group as determined under Section 10.1 and (ii) the Specified Index Price for such day shall be the Specified Index Price for the Forward Delivery Month during which such day occurs. The Daily Forward Settlement for any day shall equal (x) the Specified Index Price for such month minus the Daily Value multiplied by the (y) Daily Produced volume. If the resulting figure is positive, that amount shall be due from the Company to Aron. If the resulting figure is negative, the absolute value of that amount shall be due from Aron to the Company. Payment of the Daily Forward Settlement for any day shall be due on the same date as the Interim Payment for that day and shall be, as appropriate, aggregated with or netted against such Interim Payment determined under Section 10.1(a) hereof.

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31.9    Conditions. The obligation of Aron to purchase Jet Fuel and make the payments for such Jet Fuel contemplated by this Article 31 shall be subject to satisfaction of the following conditions precedent on and as of a date occurring no later than May 8, 2017 (the “Transaction Cutoff Date”):

(a)    All representations and warranties of the Company contained herein shall be true and correct on and as of such date and no Default or Event of Default with respect to the Company shall have occurred and be continuing; and

(b)    Aron shall have received such certificates, documents, instruments and opinion letters from the Company and its representatives as Aron may reasonably request in connection with the commencement of the Forward Jet Fuel Transaction, including an officer’s certificate dated as of the Forward Transaction Commencement Date confirming that no Default or Event of Default with respect to the Company has occurred and is continuing on such day and all other applicable conditions to the Forward Transaction Commencement Date are then satisfied.

(c)    The Company agrees that it will use its commercially reasonable efforts to cause each of the foregoing conditions to be satisfied on or before the Transaction Cutoff Date.

31.10    Remedies upon Event of Default. If an Event of Default with respect to the Company occurs and Aron exercises its remedies under Section 19.2 hereof, then without limiting any rights and remedies that Aron may have thereunder, under the Transaction Documents or otherwise, it is agreed that with respect to the Forward Jet Fuel Transaction:

(a)    Aron shall terminate, close-out and liquidate the Forward Jet Fuel Transaction (including, without limitation, all obligations to make any Provisional Payments thereunder) and determine a Settlement Amount (as defined in Section 19.2(b) hereof) for the Forward Jet Fuel Transaction; provided that such Settlement Amount shall be determined with respect to the period from the date of such termination through the end of the final Forward Delivery Month (the “Remaining Tenor”) by calculating, for each Forward Delivery Month (or portion thereof) during the Remaining Tenor, the product of the relevant Monthly Forward Volume and Specified Index Price, discounting each such product from the end of the relevant Forward Delivery Month to the date of termination at the Discount Rate, and taking the sum of such discounted amounts; provided further that such Settlement Amount shall also take account of any Forward Transaction Obligations then due and owing and all losses and costs which Aron incurs as a result of maintaining, terminating or obtaining any related hedge positions and in doing so Aron may use such pricing and rate references as Aron deems appropriate in its commercially reasonable judgment, including references to such futures, forward, swap and options markets as it shall select in its reasonable judgment; and

(b)    The Settlement Amount determined under clause (i) above shall constitute a Settlement Amount for all purposes of Section 19.2 hereof.

The foregoing shall in no way limit or be deemed to limit Aron’s rights under the Lien Documents, including its rights to apply the proceeds of any collateral to any obligations secured thereby.

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31.11    Settlement at Termination. In the event this Agreement terminates pursuant to Article 20 hereof, the following provisions shall apply with respect to the Forward Jet Fuel Transaction:

(a)    All amounts due between the parties (including any Settlement Amount determined under clause (i) above) shall be included in the Termination Amount under Section 20.2(a); and

(b)    In determining the Estimated Termination Amount and the Termination Holdback Amount, Aron may, in its commercially reasonable judgment, take account of any amounts due under the Forward Jet Fuel Transaction that will not be definitively determined as of the Termination Date and/or which will be subject to any true-up or adjustment following the Termination Date.

31.12    Early Termination of Forward Jet Fuel Transaction.

(a)    Subject to the terms and conditions hereof, the Company may, in its sole discretion and upon no less than 45 days’ notice to Aron and effective on the first calendar day of the following month for purposes of determining the Outstanding Forward Amount, terminate the Forward Jet Fuel Transaction, in whole but not in part, at any time following Forward Transaction Commencement Date (a “Forward Transaction Early Termination”). In order to effectuate any Forward Transaction Early Termination, the Company shall on the proposed date of such Forward Transaction Early Termination pay to Aron, in immediately available funds, and without any set-off or counterclaim, an amount equal to the Outstanding Forward Amount as of such date.

(b)    Notwithstanding the conditions specified in Section 31.12(a), at the Company’s request, the Parties hereby agree that a Forward Transaction Early Termination occurred effective on December 21, 2017 and that, accordingly, the Company paid to Aron $26,438,149.52 on such date.

31.13    Use of Proceeds. The Parties acknowledge that the payments received from Aron under the Forward Jet Fuel Transaction were used to make a one-time “restricted payment” under Section 5(b)(iii)(C) of the Pledge and Security Agreement as in effect at the time of such payments, which Section has been deleted as of the First Restatement Effective Date.

[Remainder of Page Intentionally Left Blank]

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EX-10.4

Exhibit 10.4

Execution Version

THIRD AMENDED AND RESTATED SECURITY AGREEMENT

THIS THIRD AMENDED AND RESTATED SECURITY AGREEMENT (this “Agreement”), dated as of July 26, 2023 is made by and among Par Hawaii Refining, LLC, a Hawaii limited liability company (the “Company”), U.S. Bank Trust Company, National Association, as collateral agent for the Secured Parties referred to below (in such capacity, together with its successors and assigns, “Collateral Agent”), J. Aron & Company LLC, a New York limited liability company (the “S&O Agent”), and MUFG Bank, Ltd., as administrative agent for the LC Secured Parties referred to below (in such capacity, together with its successors and assigns, the “LC Facility Agent”).

WHEREAS, the Company owns and operates the Refinery for the processing and refining of Crude Oil and other feedstocks and the recovery therefrom of refined products;

WHEREAS, the Company and the S&O Agent entered into a Supply and Offtake Agreement, dated as of June 1, 2015, providing for a supply and offtake transaction under which the S&O Agent agreed to supply Crude Oil to the Company to be processed at the Refinery and purchase all Products from the Company produced at the Refinery (as amended or otherwise modified from time to time, the “Original S&O Agreement”), which was amended and restated by the First Amended and Restated Supply and Offtake Agreement, dated as of December 21, 2017 (the “First Amended and Restated S&O Agreement”), between the Company and the S&O Agent and further amended and restated on June 1, 2021 (as amended or otherwise modified prior to the date hereof, the “Second Amended and Restated S&O Agreement”);

WHEREAS, as a condition precedent to the S&O Agent’s obligations under the Original S&O Agreement, the Company and the S&O Agent entered into a Pledge and Security Agreement dated as of June 1, 2015 (the “Original Pledge and Security Agreement”), which was amended and restated on December 21, 2017 (as amended or otherwise modified prior to the date hereof, the “First Amended and Restated Pledge and Security Agreement”) in connection with First Amended and Restated S&O Agreement and further amended and restated on June 1, 2021 (as amended or otherwise modified prior to the date hereof, the “Second Amended and Restated Pledge and Security Agreement”) in connection with Second Amended and Restated S&O Agreement;

WHEREAS, the Company desires to enter into the Uncommitted Credit Agreement, by and among the Company, the LC Facility Agent, the banks and other financial institutions from time to time party thereto (collectively, with the LC Facility Agent, in their roles as lenders and as letter of credit issuers, the “LC Facility Lenders”), and the Collateral Agent (as amended or otherwise modified from time to time, the “LC Facility Agreement”) pursuant to which the LC Facility Lenders will provide the Company an uncommitted senior secured revolving loan and letter of credit facility;

WHEREAS, the Company and the S&O Agent desire to amend the S&O Agreement to permit the transactions contemplated by the LC Facility Agreement (such amendment, the “S&O Agreement Amendment”); and

WHEREAS, in connection with, and as conditions to, the transactions contemplated by the S&O Agreement Amendment and the LC Facility Agreement, (i) the Company and the S&O Agent desire to amend and restate the Second Amended and Restated Pledge and Security Agreement to provide for, among other things, an assignment of the S&O Agent’s rights thereunder to the Collateral Agent, the division of the Collateral into the S&O Priority Collateral and the LC Priority Collateral and the appointment of a sub-collateral agent with respect to each such portion of the Collateral; and (ii) the Company, the S&O Agent, the LC Facility Agent and the Collateral Agent will enter into the Collateral Agency and Intermediation Rights Agreement, dated as of the date hereof (as amended or otherwise modified from time to time, the “Collateral Agency Agreement”) pursuant to which the rights and obligations of the S&O Agent and the LC Facility Agent, for the benefit of the LC Secured Parties, and the relative priorities of the liens granted hereunder to the Collateral Agent in favor of the S&O Agent and the LC Facility Agent for the benefit of the LC Secured Parties (including with respect to each such portion of the Collateral), will be set forth.

NOW, THEREFORE, the parties hereto agree as follows:

SECTION 1    Definitions; Interpretation; Amendment and Restatement; Assignment to the Collateral Agent.

(a)    Terms Defined in S&O Agreement. Subject to Section 1(c), all capitalized terms used in this Agreement (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the S&O Agreement.

(b)    Certain Defined Terms. As used in this Agreement, the following terms shall have the respective meanings set forth below:

“Accounts” means any and all of the Company’s accounts, as such term is defined in Section 9-102 of the UCC.

“Agents” means the Collateral Agent, the LC Facility Agent, the S&O Agent and each Sub-Collateral Agent.

“Books” means all books, records, supplies, customer lists and other written, electronic or other documentation in whatever form maintained now or hereafter by or for the Company in connection with the ownership of its assets or the conduct of its business or evidencing or containing information relating to the Collateral, including: (i) ledgers; (ii) records indicating, summarizing, or evidencing the Company’s assets (including Inventory and Rights to Payment), business operations or financial condition; (iii) computer programs and software; (iv) computer discs, tapes, files, manuals, spreadsheets; (v) computer printouts and output of whatever kind; (vi) any other computer prepared or electronically stored, collected or reported information and Equipment of any kind; and (vii) any and all other rights now or hereafter arising out of any contract or agreement between the Company and any service bureau, computer or data processing company or other Person charged with preparing or maintaining any of the Company’s books or records or with credit reporting, including with regard to the Company’s Accounts.

“Chattel Paper” means any and all of the Company’s chattel paper, as such term is defined in Section 9-102 of the UCC, including all Electronic Chattel Paper.

“Collateral” has the meaning set forth in Section 2(a).

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“Collateral Agency Agreement” has the meaning specified in the recitals hereto.

“Collection Account” means any deposit account, including the J. Aron Crude Oil Provisional Payment Account and the FOB Trade Collateral Account, in the name of the Company held by MUFG Bank, Ltd., in its capacity as depositary bank, that is an account (A) into which (1) the S&O Agent shall pay all or any portion of any J. Aron Payment Obligation that becomes payable to such account in accordance with the terms of the Secured Transaction Documents, and (2) the Company shall pay or cause to be paid any amounts it is obligated to pay as cash collateral with respect to any Letter of Credit (as defined in the LC Facility Agreement) issued under the LC Facility Agreement and (B) from which the Company may pay amounts owing to a Third Party Supplier under each related LC Eligible Refinery Procurement Contract.

“Commercial Tort Claims” means any and all of the Company’s commercial tort claims, as such term is defined in Section 9-102 of the UCC, including any described in Schedule 1.

“Control Agreement” means any control agreement or other agreement with any securities intermediary, bank or other Person establishing the Collateral Agent’s or the applicable Sub-Collateral Agent’s control with respect to any Deposit Accounts, Letter-of-Credit Rights or Investment Property, for purposes of Article 8 or Sections 9-104, 9-106 and 9-107 of the UCC.

“Controlled Account” means any Deposit Account or securities account of the Company that is subject to a Control Agreement in form and substance satisfactory to the applicable Sub-Collateral Agent and, if the Collateral Agent is party thereto, the Collateral Agent.

“Debtor Relief Laws” means the Bankruptcy Code, 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 or other applicable jurisdictions from time to time in effect.

“Default” has the meaning set forth in the Collateral Agency Agreement.

“Deposit Account” means any deposit account, as such term is defined in Section 9-102 of the UCC, maintained by or for the benefit of the Company, whether or not restricted or designated for a particular purpose; provided, however, the term “Deposit Account” shall exclude the Excluded Accounts and the Collection Accounts.

“Documents” means any of the Company’s documents, as such term is defined in Section 9-102 of the UCC, including without limitation, any Documents of Title.

“Documents of Title” means any and all of the Company’s documents of title as such term is defined in Section 1-201 of the UCC.

“Electronic Chattel Paper” means any and all of the Company’s electronic chattel paper, as such term is defined in Section 9-102 of the UCC.

“Equipment” means any and all of the Company’s equipment, including any and all fixtures, as such terms are defined in Section 9-102 of the UCC.

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“Event of Default” has the meaning set forth in the Collateral Agency Agreement.

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

“Excluded Accounts” means: (i) Deposit Accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of the Company’s employees (including, without limitation, pension fund accounts and 401(k) accounts), (ii)any Deposit Account exclusively used for the posting of cash collateral to support obligations arising under cash-collateralized letters of credit or exposure from Hedging Agreements permitted under this Agreement and the S&O Agreement, and (iii) any Term Loan Collateral Account.

“Excluded Assets” means (i) any property (other than equipment or inventory), including any contract, lease, permit, license, license agreement, other agreement or instrument to which the Company is a party or any of its rights or interests thereunder, solely to the extent that the grant of a security interest in such property (A) is prohibited by Applicable Law, (B) requires a consent of any Governmental Authority pursuant to Applicable Law that has not been obtained, or (C) is prohibited by, or constitutes a breach or default under, or results in the termination of or requires any consent not obtained under, any such contract, lease, permit, license, license agreement, other agreement or instrument, or Applicable Law with respect thereto, evidencing, governing, or giving rise to such property; provided that this clause (i) shall not include (x) any contract or other agreement relating to Specified Government Accounts or (y) any contract or other agreement in respect of Inventory, including, but not limited to Crude Oil and Products, (ii) any trademarks, trade names and other intellectual property, (iii) Accounts constituting identifiable proceeds of the Term Loan Collateral, (iv) Equity Interests in any Subsidiary of the Company, (v) Excluded Accounts, and (vi) all RINs and all Environmental Credits and catalyst of the Company; provided, however, that (x) with respect to any property that constitutes Excluded Assets solely by operation of clause (i) of this sentence, the Collateral shall include and such security interest shall automatically attach to such property immediately at such time as such prohibition, breach, default, termination (or right of termination) would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other Applicable Law, and (y) any such property shall cease to constitute Excluded Assets at such time as the condition causing such prohibition, breach, default, termination (or right of termination) no longer exists and, in each case, to the extent severable, the security interest therein shall attach immediately to any portion of such property that would not result in the above specified consequences and are not subject to such prohibitions specified in this proviso.

“First Amended and Restated Pledge and Security Agreement” has the meaning specified in the recitals hereto.

“First Amended and Restated S&O Agreement” has the meaning specified in the recitals hereto.

“FOB Trade Collateral Account” has the meaning set forth in the LC Facility Agreement.

“General Intangibles” means any and all of the Company’s general intangibles, as such term is defined in Section 9-102 of the UCC.

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“Goods” means any and all of the Company’s goods, as such term is defined in Section 9-102 of the UCC.

“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case undertaken under Debtor Relief Laws.

“Instruments” means any and all of the Company’s instruments, as such term is defined in Section 9-102 of the UCC.

“Inventory” means any of the Company’s inventory, as such term is defined in Section 9-102 of the UCC.

“Investment Property” means any of the Company’s investment property, as such term is defined in Section 9-102 of the UCC.

“J. Aron Crude Oil Provisional Payment Account” has the meaning set forth in the LC Facility Agreement.

“J. Aron Payment Obligations” has the meaning set forth in the LC Facility Agreement.

“LC Credit Documents” means the “Credit Documents” under, and as defined in, the LC Facility Agreement.

“LC Facility Agent” has the meaning specified in the preamble hereto.

“LC Facility Agreement” has the meaning specified in the recitals hereto.

“LC Facility Lenders” has the meaning specified in the recitals hereto.

“LC Priority Collateral” has the meaning set forth in Section 2(b)(ii).

“LC Secured Parties” means “Secured Parties” as defined in the LC Facility Agreement.

“Letter-of-Credit Rights” means any and all of the Company’s letter-of-credit rights, as such term is defined in Section 9-102 of the UCC.

“Lien” means any security interest, lien, encumbrance, charge or other claim of any nature.

“Original Pledge and Security Agreement” has the meaning specified in the recitals hereto.

“Original S&O Agreement” has the meaning specified in the recitals hereto.

“Pledged Collateral” means any and all (i) Investment Property of the Company constituting Collateral; (ii) Instruments constituting Collateral; (iii) Documents constituting Collateral; (iv) securities, property, interest, dividends and other payments and distributions issued as an addition to, in redemption of, in renewal or exchange for, in substitution or upon conversion of, or otherwise on account of, any of the foregoing; (v) certificates and instruments now or hereafter representing or evidencing any of the foregoing; (vi) rights, interests and claims with respect to the foregoing, including under any and all related agreements, instruments and other documents, and (vii) cash and non-cash proceeds of any of the foregoing, in each case whether presently existing or owned or hereafter arising or acquired and wherever located, and as from time to time received or receivable by, or otherwise paid or distributed to or acquired by, the Company; provided that Pledged Collateral shall not include at any time any Equity Interests in any Subsidiary of the Company.

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“Priority Collateral” shall mean, (i) with respect to the LC Facility Agent, the LC Priority Collateral, (ii) with respect to the S&O Agent, the S&O Priority Collateral and (iii) with respect to the Collateral Agent, all of the Collateral.

“Proceeds” means all proceeds, as such term is defined in Section 9-102 of the UCC.

“Proceeds Account” has the meaning set forth in Section 10(b).

“Related Party” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Rights to Payment” means any and all of the Company’s Accounts constituting Collateral and any and all of the Company’s rights and claims to the payment or receipt of money or other forms of consideration of any kind in, to and under or with respect to its Chattel Paper, Documents, General Intangibles, Instruments, Investment Property, Letter-of-Credit Rights, Proceeds and Supporting Obligations, in each case, to the extent constituting Collateral.

“Second Amended and Restated Pledge and Security Agreement” has the meaning specified in the recitals hereto.

“Second Amended and Restated S&O Agreement” has the meaning specified in the recitals hereto.

“S&O Agreement” has the meaning specified in the recitals hereto.

“S&O Priority Collateral” means that portion of the Collateral that does not constitute LC Priority Collateral.

“S&O Transaction Documents” means the “Transaction Documents” under and as defined in the S&O Agreement.

“Secured LC Obligations” means the “Obligations” as defined in the LC Facility Agreement.

“Secured Obligations” means, collectively, the Secured LC Obligations and the Secured S&O Obligations, together with any amounts owing to the Collateral Agent pursuant to the LC Facility Agreement, the Collateral Agency Agreement or any other Secured Transaction Document.

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“Secured Parties” has the meaning set forth in the Collateral Agency Agreement.

“Secured S&O Obligations” means the “Obligations” as defined in the S&O Agreement.

“Secured Transaction Documents” has the meaning set forth in the Collateral Agency Agreement.

“Sub-Collateral Agent” has the meaning given to such term in the Collateral Agency Agreement.

“Supporting Obligations” means all supporting obligations, as such term is defined in Section 9-102 of the UCC.

“Term Loan Collateral” means the “Collateral” (as defined in the Term Loan Security Agreement as in effect as of the date hereof).

“Term Loan Collateral Account” means any Collateral Account (as defined in the Term Loan Agreement as in effect as of the date hereof).

“Term Loan Security Agreement” means the Guaranty and Security Agreement, dated as of February 28, 2023, among Par LLC, the Company, the other grantors party thereto and the Term Loan Agent.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York.

(c)    Terms Defined in UCC. Where applicable and except as otherwise defined herein, terms used in this Agreement shall have the meanings assigned to them in the UCC; provided, however, that to the extent that the UCC is used to define any term herein and such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 shall govern.

(d)    Interpretation.

(i)    Unless otherwise specified, reference to, and the definition of any document (including this Agreement) shall be deemed a reference to such document as may be, amended, supplemented, revised or modified from time to time.

(ii)    Unless otherwise specified, all references to an “Article,” “Section,” or Schedule” are to an Article or Section hereof or a Schedule attached hereto.

(iii)    All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement.

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(iv)    Unless expressly provided otherwise, the word “including” as used herein does not limit the preceding words or terms and shall be read to be followed by the words “without limitation” or words having similar import.

(v)    Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively.

(vi)    Unless expressly provided otherwise, references herein to “consent” mean the prior written consent of the party at issue, which shall not be unreasonably withheld, delayed or conditioned.

(vii)    A reference to any party to this Agreement or another agreement or document includes the party’s permitted successors and assigns.

(viii)    Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender.

(ix)    Except where specifically stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or re-enacted from time to time.

(x)    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.”

(xi)    The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

(xii)    The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement unless otherwise specified.

(e)    Amendment and Restatement. This Agreement amends and restates the Second Amended and Restated Pledge and Security Agreement. Subject to clause (f) below, the obligations of the Company under the Second Amended and Restated Pledge and Security Agreement and the grant of security interest in the Collateral by the Company under the Second Amended and Restated Pledge and Security Agreement shall continue under this Agreement but solely to the extent of the security interest in the Collateral as defined in this Agreement, and, to such extent, shall not in any event be terminated, extinguished or annulled, but shall hereafter be governed by this Agreement. All references to the Second Amended and Restated Pledge and Security Agreement in any Transaction Document (other than this Agreement) or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof.

(f)    Assignment to the Collateral Agent. Effective as of the date hereof, the S&O Agent hereby assigns, without recourse, representation or warranty of any kind, to the Collateral Agent (for the benefit of the Secured Parties) all of the right, title and interest of the S&O Agent in, to and under the Collateral granted to the S&O Agent under the Second Amended and Restated Pledge and Security Agreement. The Collateral Agent hereby accepts such assignment, provided that the Collateral Agent assumes no duties, obligations or liabilities whatsoever in respect of the Second Amended and Restated Pledge and Security Agreement.

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SECTION 2    Security Interest.

(a)    Grant of Security Interest. As security for the payment and performance of the Secured Obligations, subject to clause (b) below, the Company hereby grants to the Collateral Agent for the benefit of the Secured Parties, a security interest in all of the Company’s right, title and interest in, to and under the following personal property of the Company, wherever located and whether now existing or owned or hereafter acquired or arising (collectively, the “Collateral”): (i) all Inventory, including, but not limited to Crude Oil and Products; (ii) all Accounts; (iii) all Investment Property, Chattel Paper, General Intangibles, Commercial Tort Claims, Documents and Instruments, in each case, to the extent relating to the items described in clauses (i) and (ii); (iv) all Deposit Accounts, the Collection Accounts and cash and cash equivalents; (v) all Books relating to clauses (i) through (iv); and (vi) all Proceeds of (including (1) products and (2) proceeds of business interruption and other insurance), and Supporting Obligations (including Letter-of-Credit Rights) with respect to any of the foregoing; provided, however, that notwithstanding any other provision set forth in this Section 2, this Agreement shall not at any time constitute a grant of a security interest in any property that is, at such time, an Excluded Asset, and the term “Collateral” and each of the defined terms incorporated therein shall exclude the Excluded Assets.

(b)    LC Priority Collateral and S&O Priority Collateral.

(i)    The Collateral consists of the LC Priority Collateral and the S&O Priority Collateral.

(ii)    The “LC Priority Collateral” consists of all of the Company’s right, title and interest in, to and under the following personal property of the Company, wherever located and whether now existing or owned or hereafter acquired or arising: (1) all Crude Oil inventory (and all cash proceeds thereof) on an ocean-going vessel evidenced by negotiable bills of lading, a full set of which has been issued to the order of, or properly endorsed to, the Collateral Agent or Sub-Collateral Agent (and all cash proceeds thereof), and for the purchase of which a Letter of Credit (as defined in the LC Facility Agreement) was issued or Revolving Credit Loan (as defined in the LC Facility Agreement) was made, (2) all Crude Oil inventory (and all cash proceeds thereof) (x) to which the Company has title; (y) which has been purchased pursuant to the terms of an LC Eligible Refinery Procurement Contract and (z) which has not yet passed the Crude Intake Point following its discharge at the SPM (clauses (1) and (2) collectively, the “Procurement Contract Inventory”); (3) all Investment Property, Chattel Paper, General Intangibles, Commercial Tort Claims, Documents and Instruments, in each case, to the extent relating to any Procurement Contact Inventory; (4) all J. Aron Payment Obligations, (5) the Collection Accounts and all amounts deposited from time to time therein; (6) all Books and other materials relating to clauses (1), (2), (3), (4) and (5) above; and (7) all Proceeds of and Supporting Obligations with respect to, and replacements, additions to, increases of, substitutions for, accessions of, and property necessary for the operation of, any of the foregoing (including, without limitation, insurance proceeds payable as a result of loss or damage to the foregoing and any proceeds thereunder, refunds of unearned premiums of any such insurance policy and claims against third parties (other than any insurance proceeds in respect of business interruption insurance)); provided that in no event shall LC Priority Collateral include Proceeds of S&O Priority Collateral.

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(iii)    The “S&O Priority Collateral” consists of all Collateral other than the LC Priority Collateral.

(c)    Collection Account; Deposit Accounts.

(i)    With respect to the Collection Accounts: (1) as of the date hereof, the Collateral Agent designates the LC Facility Agent as sub-collateral agent therefor and the Sub-Collateral Agent, the Company and MUFG Bank, Ltd., New York Branch have entered into an account control agreement, in form and substance satisfactory to the LC Facility Agent (the “Collection Account DACA”), as a result of which the security interest in the Collection Accounts granted to the Sub-Collateral Agent has been perfected and (2) in the case of any enforcement by the Collateral Agent following an Event of Default (as defined in the Collateral Agency Agreement), the proceeds of such Collection Account shall be applied in accordance with Section 2.01(a) of the Collateral Agency Agreement.

(ii)    With respect to the Deposits Accounts (excluding, for the avoidance of doubt, the Collection Accounts): (1) as of the date hereof, the Collateral Agent designates the S&O Agent as sub-collateral agent therefor, and any account control agreements, in form and substance satisfactory to the S&O Agent (the “Deposit Account DACAs”), that have been or are hereafter entered into by the S&O Agent, the Company and the depository banks at which such Deposit Accounts are maintained shall result in the perfection of the security interest granted to the Collateral Agent in such Deposit Accounts and (2) in the case of any enforcement by the Collateral Agent following an Event of Default (as defined in the Collateral Agency Agreement), the proceeds of such Deposit Accounts shall be applied in accordance with Section 2.01(b) of the Collateral Agency Agreement.

(d)    Company Remains Liable. Anything herein to the contrary notwithstanding, (i) the Company shall remain liable under any contracts, agreements and other documents included in the Collateral, to the extent set forth therein, to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by the Collateral Agent, any Sub-Collateral Agent or any Secured Party of any of the rights granted to the Secured Parties hereunder or under any other S&O Transaction Document or LC Credit Document shall not release the Company from any of its duties or obligations under any such contracts, agreements and other documents included in the Collateral, and (iii) no Secured Party shall have any obligation or liability under any such contracts, agreements and other documents included in the Collateral by reason of this Agreement, nor shall any Secured Party be obligated to perform any of the obligations or duties of the Company thereunder or to take any action to collect or enforce any such contract, agreement or other document included in the Collateral hereunder.

(e)    Continuing Security Interest. The Company agrees that this Agreement shall create a continuing security interest in the Collateral which shall remain in effect until terminated in accordance with Section 24.

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(f)    Acknowledgment Agreement. The Company acknowledges and agrees that nothing in this Agreement limits any Secured Party’s rights under the Acknowledgment Agreement.

(g)    Collateral Agency Agreement. The Company acknowledges and agrees that the S&O Agent, the LC Facility Agent, the Collateral Agent and the Company are parties to the Collateral Agency Agreement and that nothing in this Agreement limits any Secured Party’s rights under the Collateral Agency Agreement. The rights of each of the parties hereunder, including without limitation any rights to the proceeds of any Collateral or the priority of claims of the Secured Parties with respect to any Collateral, shall be subject in all respects to the rights, obligations and priorities set forth in the Collateral Agency Agreement.

(h)    S&O Agent. Pursuant to Section 4.02 of the Collateral Agency Agreement, and without limiting the rights of the S&O Agent thereunder, the Collateral Agent hereby appoints the S&O Agent as Sub-Collateral Agent in respect of the S&O Priority Collateral for all purposes hereunder and the other applicable Secured Transaction Documents, including with respect to the covenants, rights and remedies set forth herein and therein and the Company acknowledges and agrees that, with respect to the S&O Priority Collateral, all provisions hereof and the other applicable Secured Transaction Documents shall apply to the S&O Agent as Sub-Collateral Agent to the same extent as they apply to the Collateral Agent with respect to the Collateral. The parties further agree that such appointment shall be irrevocable (unless otherwise expressly agreed by the S&O Agent in writing) and that, so long as such appointment is in effect, the S&O Agent, as Sub-Collateral Agent, shall have the exclusive right, power and authority to exercise all rights and remedies hereunder and under the other applicable Secured Transaction Documents with respect to the S&O Priority Collateral and, to the extent reasonably requested by the S&O Agent acting in such capacity and subject in all respects to the Collateral Agency Agreement, the Collateral Agent shall cooperate with the S&O Agent in its exercise of such rights and remedies. Subject to the Collateral Agency Agreement, the S&O Agent may take any action permitted to be taken by it or the Collateral Agent with respect to the S&O Priority Collateral and provisions applicable to the Collateral Agent in its capacity as collateral agent (including all indemnifications, exculpations, liability limitations and expenses reimbursements) shall apply to the S&O Agent with respect to the S&O Priority Collateral to the same extent that such provisions apply to the Collateral Agent with respect to the Collateral.

(i)    LC Facility Agent. Pursuant to Section 4.02 of the Collateral Agency Agreement, and without limiting the rights of the LC Facility Agent thereunder, the Collateral Agent hereby appoints the LC Facility Agent as Sub-Collateral Agent in respect of the LC Priority Collateral for all purposes hereunder and the other applicable Secured Transaction Documents, including with respect to the covenants, rights and remedies set forth herein and therein and the Company acknowledges and agrees that, with respect to the LC Priority Collateral, all provisions hereof and the other applicable Secured Transaction Documents shall apply to the LC Facility Agent as Sub-Collateral Agent to the same extent as they apply to the Collateral Agent with respect to the Collateral. The parties further agree that such appointment shall be irrevocable (unless otherwise expressly agreed by the LC Facility Agent in writing) and that, so long as such appointment is in effect, the LC Facility Agent, as Sub-Collateral Agent, shall have the exclusive right, power and authority to exercise all rights and remedies hereunder and under the other applicable Secured Transaction Documents with respect to the LC Priority Collateral and, to the extent reasonably requested by the LC Facility Agent acting in such capacity and subject in all respects to the Collateral Agency Agreement, the Collateral Agent shall cooperate with the LC Facility Agent in its exercise of such rights and remedies. Subject to the Collateral Agency Agreement, the LC Facility Agent may take any action permitted to be taken by it or the Collateral Agent with respect to the LC Priority Collateral and provisions applicable to the Collateral Agent in its capacity as collateral agent (including all indemnifications, exculpations, liability limitations and expenses reimbursements) shall apply to the LC Facility Agent with respect to the LC Priority Collateral to the same extent that such provisions apply to the Collateral Agent with respect to the Collateral.

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SECTION 3    Perfection and Priority.

(a)    Financing Statements, Etc. Subject to the terms of the Collateral Agency Agreement, the Company hereby authorizes any Secured Party to file at any time and from time to time any financing statements describing the Collateral, and the Company shall execute and deliver to any Secured Party, and the Company hereby authorizes any Secured Party to file (with or without the Company’s signature) at any time and from time to time, all amendments to financing statements, continuation financing statements, termination statements, assignments, affidavits, reports, notices and all other documents and instruments, in form satisfactory to such Secured Party, as such Secured Party may reasonably request, to perfect and continue perfected, maintain the priority of or provide notice of the Collateral Agent’s security interest in the Collateral and to accomplish the purposes of this Agreement. Without limiting the generality of the foregoing, the Company (i) ratifies and authorizes the filing by any Secured Party of any financing statements filed with respect to the Collateral prior to the date hereof and (ii) shall from time to time take the actions specified in subsections (b) through (g) below.

(b)    Instrument Collateral. Anything to the contrary notwithstanding, so long as no Event of Default shall have occurred and be continuing, (i) the Company may retain for collection in the ordinary course any Instruments received by the Company in the ordinary course of business, and the Collateral Agent or applicable Sub-Collateral Agent shall, promptly upon request of the Company, make appropriate arrangements for making any other Instruments constituting Collateral available to the payor of any such Instrument for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent required under Applicable Law to continue perfected the Collateral Agent’s or applicable Sub-Collateral Agent’s security interest hereunder in such Instruments, against trust receipt or like document), and (ii) the Company may retain any additional Pledged Collateral consisting of Instruments that is not LC Priority Collateral, as long as the aggregate amount of any such Instruments so retained by the Company shall not exceed $1,000,000 or as otherwise provided in the LC Credit Documents with respect to LC Priority Collateral.

(c)    Transfer of Security Interest Other Than by Delivery. If for any reason Pledged Collateral cannot be delivered to or for the account of the applicable Sub-Collateral Agent as provided in subsection 3(b), the Company shall promptly take such other steps as may be necessary or as shall be reasonably requested from time to time by the applicable Sub-Collateral Agent to effect a transfer of a perfected first priority security interest in and pledge of the Pledged Collateral to such Sub-Collateral Agent pursuant to the UCC. To the extent practicable, the Company shall thereafter deliver the Pledged Collateral to or for the account of the applicable Sub-Collateral Agent as provided in subsection 3(b).

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(d)    Documents, Etc. The Company shall deliver to the applicable Sub-Collateral Agent, or an agent designated by it, appropriately endorsed or accompanied by appropriate instruments of transfer or assignment, all Documents and Chattel Paper, and all other Rights to Payment at any time evidenced by promissory notes, bills of lading, trade acceptances or other instruments, in each case, to the extent constituting Collateral and not already delivered hereunder pursuant to this Section 3; provided, however, that unless an Event of Default shall have occurred and be continuing, the Company shall not be required to deliver any Document, Chattel Paper, promissory note, bill of lading, trade acceptance or other instrument, as long as the aggregate amount of any such Collateral so retained by the Company shall not exceed $1,000,000. Except as otherwise expressly required by the LC Facility Agreement, upon the request of the Collateral Agent or applicable Sub-Collateral Agent, the Company shall mark all Documents and Chattel Paper constituting Collateral with such legends as such Collateral Agent or Sub-Collateral Agent shall reasonably specify.

(e)    Bailees. Any Person (other than the Collateral Agent) at any time and from time to time holding all or any portion of the Collateral shall be deemed to, and shall, hold the Collateral as the agent of, and as pledge holder for, the Collateral Agent for the benefit of the Secured Parties. At any time and from time to time, the Collateral Agent may give notice to any such Person holding all or any portion of the Collateral that such Person is holding the Collateral as the agent and bailee of, and as pledge holder for, the Collateral Agent, and obtain such Person’s written acknowledgment thereof. Without limiting the generality of the foregoing, the Company will join with the Collateral Agent in notifying any Person who has possession of any Collateral of the Collateral Agent’s security interest therein and obtaining an acknowledgment from such Person that it is holding the Collateral for the benefit of the Collateral Agent.

(f)    Control. The Company shall cause all Deposit Accounts and securities accounts (other than Excluded Accounts) to be Controlled Accounts, and the Company will cooperate with the Collateral Agent and Sub-Collateral Agents in obtaining control (as defined in the UCC) of Collateral consisting of any Deposit Accounts, Electronic Chattel Paper, Investment Property (excluding the Equity Interests of any Subsidiary) or Letter-of-Credit Rights, including delivery of Control Agreements, as the Collateral Agent or any Sub-Collateral Agent may reasonably request, to perfect and continue perfected, maintain the priority of or provide notice of the Collateral Agent’s security interest in such Collateral.

(g)    J. Aron Payment Obligations. Concurrently with the issuance by Aron of an Aron Acceptance Email as provided in Section 5.13(a) of the Supply and Offtake Agreement, the J. Aron Payment Obligation under the LC Related Aron Procurement Contract resulting therefrom shall automatically and without any further action of any party hereto be deemed collaterally assigned to the Collateral Agent and constitute part of the LC Priority Collateral hereunder. No further notifications shall be required to be given to any party hereto in connection with the effectiveness of such collateral assignment.

SECTION 4    Representations and Warranties. So long as any of the Secured Obligations (other than contingent indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time) remain unsatisfied, the Company represents and warrants to the Collateral Agent for the benefit of the Secured Parties and the S&O Agent that:

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(a)    Location of Chief Executive Office and Collateral. The Company’s chief executive office and principal place of business (as of the date hereof) is located at the address set forth in Schedule 1, and all other locations (as of the date hereof) where the Company conducts business or Collateral is kept are set forth in Schedule 1.

(b)    Locations of Books. All locations where Books pertaining to the Rights to Payment are kept, including all Equipment necessary for accessing such Books and the names and addresses of all service bureaus, computer or data processing companies and other Persons keeping any Books or collecting Rights to Payment for the Company, are set forth in Schedule 1.

(c)    Jurisdiction of Organization and Names. The Company’s jurisdiction of organization is set forth in Schedule 1; and the Company’s exact legal name is as set forth in the first paragraph of this Agreement. All trade names and trade styles under which the Company presently conducts its business operations are set forth in Schedule 1, and, except as set forth in Schedule 1, the Company has not, at any time in the past: (i) been known as or used any other corporate, trade or fictitious name; (ii) changed its name; (iii) been the surviving or resulting corporation in a merger or consolidation; or (iv) acquired through asset purchase or otherwise any business of any Person.

(d)    Collateral. The Company has rights in or the power to transfer the Collateral, and the Company is the sole and complete owner of the Collateral (or, in the case of after-acquired Collateral, at the time the Company acquires rights in such Collateral, will be the sole and complete owner thereof), free from any Lien other than Liens permitted by the Secured Transaction Documents. No Collateral constitutes (i) Term Loan Collateral, or identifiable proceeds thereof, (ii) Excluded Assets, or (iii) Excluded Accounts.

(e)    Enforceability; Priority of Security Interest. (i) This Agreement creates a security interest which is enforceable against the Collateral in which the Company now has rights and will create a security interest which is enforceable against the Collateral in which the Company hereafter acquires rights at the time the Company acquires any such rights; and (ii) subject to the filing of any financing statements or other filings necessary to perfect a security interest in the Collateral, including without limitation those in connection with the assignment under Section 1(f) hereof, the Collateral Agent or the Sub-Collateral Agent, as the case may be, has a perfected and first priority security interest in the Collateral, in which the Company now has rights, and will have a perfected and first priority security interest in the Collateral in which the Company hereafter acquires rights at the time the Company acquires any such rights, in each case, subject to Liens permitted by the Secured Transaction Documents and securing the payment and performance of the Secured Obligations.

(f)    Other Financing Statements. Other than (i) financing statements disclosed to the Secured Parties in writing as of the date hereof and (ii) financing statements in favor of the Collateral Agent, no effective financing statement naming the Company as debtor, assignor, grantor, mortgagor, pledgor or the like and covering all or any part of the Collateral is on file in any filing or recording office in any jurisdiction.

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(g)    Rights to Payment.

(i)    The Rights to Payment represent valid, binding and enforceable obligations of the account debtors or other Persons obligated thereon, representing, bona fide transactions completed in accordance with the terms and provisions contained in any documents related thereto;

(ii)    the Company has not assigned any of its rights under the Rights to Payment except as provided in this Agreement or as set forth in the Secured Transaction Documents; and

(iii)    all Rights to Payment comply in all material respects with Applicable Law concerning form, content and manner of preparation and execution.

(h)    Inventory. No Inventory is stored with any bailee, warehouseman or similar Person or on any premises leased to the Company, nor has any Inventory been consigned to the Company or consigned by the Company to any Person or is held by the Company for any Person under any “bill and hold” or other arrangement, except as set forth in Schedule 1.

(i)    Deposit Accounts and Collection Accounts. The names and addresses of all financial institutions at which the Company maintains its Deposit Accounts and Collection Accounts, and the account numbers and account names of such Deposit Accounts and Collection Accounts, are set forth in Schedule 1.

(j)    Instrument Collateral. (i) The Company has not previously assigned any interest in any Instruments (other than such interests as will be assigned or released on or before the date hereof), (ii) no Person other than the Company owns an interest in the Instruments (whether as joint holders, participants or otherwise), and (iii) no material default exists under or in respect of the Instruments of the Company.

(k)    Investment Property; Instruments, Documents and Chattel Paper. All securities accounts of the Company and Investment Property of the Company are set forth in Schedule 1, and all Instruments, Documents (other than Documents of Title) and Chattel Paper held by the Company are also set forth in Schedule 1.

(l)    Control Agreements. No Control Agreements exist with respect to any Collateral other than any Control Agreements in favor of any Secured Party.

(m)    Letter-of-Credit Rights. The Company does not have any Letter-of-Credit Rights except as set forth in Schedule 1.

(n)    Commercial Tort Claims. The Company does not have any Commercial Tort Claims except as set forth in Schedule 1.

(o)    Real Property Leases. Except as set forth on Schedule 1, the Company is not and will not become a lessee under any real property lease or other agreement governing the location of Collateral at the premises of another Person pursuant to which the lessor or such other Person may obtain any rights in any of the Collateral, and no such lease or other such agreement now prohibits, restrains, impairs or will prohibit, restrain or impair the Company’s or any Secured Party’s right to remove any Collateral from the premises at which such Collateral is situated, except for the usual and customary restrictions contained in such leases of real property.

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(p)    Insurance. The Collateral Agent is named as loss payee or additional insured, as appropriate, on each insurance policy identified on Schedule 1 to the extent required pursuant to the Secured Transaction Documents.

SECTION 5    Covenants. So long as any of the Secured Obligations (other than contingent indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time) remain unsatisfied, the Company agrees that:

(a)    General Covenants.

(i)    Defense of Collateral. The Company will appear in and defend any action, suit or proceeding which may affect to a material extent its title to, or right or interest in, or the Collateral Agent’s or any other Secured Party’s right or interest in, the Collateral.

(ii)    Preservation of Collateral. The Company will do and perform all reasonable acts that may be necessary and appropriate to maintain, preserve and protect the Collateral.

(iii)    Compliance with Laws, Etc. The Company will comply in all material respects with all Applicable Laws, and all policies of insurance, relating in a material way to the possession, operation, maintenance and control of the Collateral.

(iv)    Location of Books and Chief Executive Office. The Company will: (A) keep all Books pertaining to the Rights to Payment at the locations set forth in Schedule 1; and (B) give at least 30 days’ prior written notice to the Collateral Agent, the S&O Agent and the LC Facility Agent with respect to their respective Priority Collateral of (1) any changes in any such location where Books pertaining to the Rights to Payment are kept, including any change of name or address of any service bureau, computer or data processing company or other Person preparing or maintaining any Books or collecting Rights to Payment for the Company or (2) any changes in the location of the Company’s chief executive office or principal place of business.

(v)    Location of Collateral. The Company will: (A) keep all of the LC Priority Collateral in compliance with the terms of the LC Credit Documents; and (B) keep the S&O Priority Collateral at the locations set forth in Schedule 1, or, in each case, at such other locations as may be disclosed in writing to the Collateral Agent (and the S&O Agent and the LC Facility Agent with respect to their respective Priority Collateral) and will not remove any such Collateral from such locations (other than in connection with sales of Inventory in the ordinary course of the Company’s business, other dispositions permitted by the Secured Transaction Documents and movements of Collateral from one disclosed location to another disclosed location within the United States), except upon at least 30 days’ prior written notice of any removal to the Collateral Agent (and the S&O Agent and the LC Facility Agent with respect to their respective Priority Collateral); and (C) give the Collateral Agent as well as the S&O Agent and the LC Facility Agent with respect to their respective Priority Collateral at least 30 days’ prior written notice of any change in the locations set forth in Schedule 1.

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(vi)    Change in Name, Identity or Structure. The Company will give at least 30 days’ prior written notice to the Collateral Agent, the S&O Agent and the LC Facility Agent of (A) any change in its name, (B) any change in its jurisdiction of organization, (C) any change in its registration as an organization (or any new such registration); and (D) any changes in its identity or structure in any manner which might make any financing statement filed hereunder incorrect or seriously misleading; provided that the Company shall not change its jurisdiction of organization to a jurisdiction outside of the United States.

(vii)    Maintenance of Records. The Company will keep separate, accurate and complete Books with respect to the Collateral, disclosing the Collateral Agent’s security interest (for the benefit of the Secured Parties) hereunder.

(viii)    Leased Premises; Collateral Held by Warehouseman, Bailee, Etc. The Company will use commercially reasonable efforts to obtain from (A) each Person from whom the Company leases any premises, and (B) from each other Person at whose premises any Collateral is at any time present (including any bailee, warehouseman or similar Person), in each case with respect to clauses (A) and (B), where Collateral with an aggregate value in excess of $1,000,000 is present, within 45 days of (1) the date hereof, or (2) if later, the date the Company enters into a lease of or a contract to hold Collateral at any premises, any such collateral access, subordination, landlord waiver, bailment, consent and estoppel agreements, as the S&O Agent may reasonably require, in form and substance satisfactory to the S&O Agent, the Collateral Agent and the LC Facility Agent; provided that, with respect to any such Person that is an Affiliate of the Company, the Company will cause such Person to deliver to the Collateral Agent, the S&O Agent and the LC Facility Agent a “bailee’s letter” in substantially the form attached as Exhibit A hereto no later than 45 days after (1) the date hereof, or (2), if later, the date such lease or contract is entered into. In the event that any such Person becomes an Affiliate of the Company after the date hereof, the Company will cause such Person to deliver such bailee’s letter no later than 45 days after the date such Person becomes an Affiliate of the Company.

(ix)    Rights to Payment. The Company will:

(A)    with such frequency as the Collateral Agent, the LC Facility Agent or the S&O Agent may reasonably require but no more than once per fiscal quarter, or as may be otherwise required under the Secured Transaction Documents, furnish to the Collateral Agent, the LC Facility Agent or the S&O Agent full and complete reports, in form and substance satisfactory to the Collateral Agent, the LC Facility Agent and the S&O Agent, with respect to the Accounts comprising such Agent’s Priority Collateral.

(B)    subject to the terms of the S&O Agreement, if any Accounts constituting S&O Priority Collateral arise from contracts with any U.S. Governmental Authority, promptly notify the Collateral Agent and the S&O Agent thereof and execute any documents and instruments and take any other steps reasonably requested by the Collateral Agent or the S&O Agent in order that all monies due and to become due thereunder shall be assigned as collateral security to the Collateral Agent for the benefit of the S&O Agent and notice thereof be given to the Federal authorities sufficient for such security interest to be recognized under the Federal Assignment of Claims Act;

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(C)    (1) upon the reasonable request of the Collateral Agent or the S&O Agent at any time, notify all or any designated portion of the account debtors and other obligors on the Rights to Payment constituting S&O Priority Collateral of the security interest hereunder, and (2) upon the occurrence and during the continuance of an Event of Default under the S&O Agreement or the other S&O Transaction Documents and upon the request of the Collateral Agent or the S&O Agent, notify the account debtors and other obligors on the Rights to Payment constituting S&O Priority Collateral or any designated portion thereof that payment shall be made directly to the S&O Agent, in its capacity as Sub-Collateral Agent, or to such other Person or location as the S&O Agent shall specify;

(D)    take any and all actions, including actions requested by the Collateral Agent or the S&O Agent, to ensure that all Accounts of the Company constituting S&O Priority Collateral or the identifiable proceeds thereof will be paid to a bank deposit account at a bank acceptable to the S&O Agent and with which the Collateral Agent or the S&O Agent, as Sub-Collateral Agent, has entered into a Control Agreement (the “Specified Account”) and pursuant to which the Collateral Agent has a perfected security interest therein for the benefit of the S&O Agent and, if any Person obligated on an Account constituting S&O Priority Collateral pays directly to the Company, the Company shall promptly remit such sums to the Specified Account. Until deposited in the Specified Account, any such amounts to be remitted shall be held in trust for the benefit of the Collateral Agent or the S&O Agent and shall be segregated from other funds of the Company. Upon the occurrence of an Event of Default under the S&O Agreement or the other S&O Transaction Documents, the Collateral Agent or the S&O Agent shall have the right to notify the customers or obligors under any Accounts constituting S&O Priority Collateral of the assignment of such Accounts to the Collateral Agent or the S&O Agent and to direct such customers or obligors to make payment of all amounts due or to become due directly to the S&O Agent or to such other account designated by the S&O Agent;

(E)    take any and all actions, including actions requested by the Collateral Agent or the LC Facility Agent to ensure that all funds constituting LC Priority Collateral that are required to be deposited into the Collection Accounts will be so deposited in accordance with the provisions of the LC Facility Agreement and the other LC Credit Documents. Until deposited in the LC Facility Collection Account, any such amounts to be remitted shall be held in trust for the benefit of the Collateral Agent and the LC Secured Parties and shall be segregated from other funds of the Company; and

(F)    without limiting the Company’s obligations under (D) or (E), upon the occurrence and during the continuance of any Event of Default and the exercise of remedies by any Secured Party thereunder, establish such lockbox or similar arrangements for the payment of the Accounts and other Rights to Payment as the LC Facility Agent or the S&O Agent shall require with regard to their respective Priority Collateral.

As used in this Section 5(a)(ix), the term “Accounts” shall exclude any Accounts constituting identifiable proceeds of the Term Loan Collateral.

(x)    Instruments, Investment Property, Etc. Except as otherwise expressly required by the terms of the LC Credit Documents, upon the request of the applicable Sub-Collateral Agent, the Company will (A) promptly deliver to the applicable Sub-Collateral Agent, or an agent designated by it, appropriately endorsed or accompanied by appropriate instruments of transfer or assignment, all Instruments, Documents, Chattel Paper and certificated securities with respect to any Investment Property, all letters of credit, and all other Rights to Payment, in each case, constituting Collateral and at any time evidenced by promissory notes, bills of lading, trade acceptances or other instruments, (B) cause any securities intermediaries to show on their books that the applicable Sub-Collateral Agent is the entitlement holder with respect to any Investment Property constituting Collateral, and/or obtain Control Agreements in favor of the applicable Sub-Collateral Agent from such securities intermediaries, in form and substance satisfactory to the Collateral Agent and such Sub-Collateral Agent, with respect to any Investment Property, and (C) provide such notice, obtain such acknowledgments and take all such other action, with respect to any Chattel Paper, Documents and Letter-of-Credit Rights as the applicable Sub-Collateral Agent shall reasonably specify.

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(xi)    Deposit Accounts and Securities Accounts. The Company will give the Collateral Agent and the S&O Agent prompt notice of the establishment of any new Deposit Account and of any new securities account (other than an Excluded Account) established by the Company with respect to any Investment Property constituting S&O Priority Collateral.

(xii)    Inventory. The Company will not store any Inventory constituting LC Priority Collateral with a bailee, warehouseman or similar Person or on premises leased to the Company.The Company will not store any Inventory constituting S&O Priority Collateral other than in Included Locations (solely to the extent contemplated and permitted under the S&O Agreement) and those locations identified in Schedule 1, and will not dispose of any Inventory on a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment or similar basis, and will not acquire any Inventory from any Person on any such basis, without in each case giving the Collateral Agent, the S&O Agent and the LC Facility Agent prior written notice thereof.

(xiii)    Modification of Terms, etc. The Company shall not rescind or cancel any indebtedness evidenced by any Account, or modify any term thereof or make any adjustment with respect thereto, or extend or renew the same, or compromise or settle any dispute, claim, suit or legal proceeding relating thereto, or, except as permitted by the Secured Transaction Documents, sell any Account or interest therein, without the prior written consent of the S&O Agent, and with respect solely to the J. Aron Payment Obligations, the prior written consent solely of the LC Facility Agent. The Company will duly fulfill all obligations on its part to be fulfilled under, or in connection with, the Accounts and will do nothing to impair the rights of the Collateral Agent or, as applicable, the S&O Agent or the LC Facility Agent, in the Accounts or in any other Collateral.

(xiv)    Notices, Reports and Information. The Company will promptly (A) notify the Collateral Agent, the LC Facility Agent and the S&O Agent of any other modifications of or additions necessary to the information contained in Schedule 1 (including any acquisition or holding of an interest in any Chattel Paper, Commercial Tort Claims and Letter-of-Credit Rights), and, in each case, solely to the extent contemplated and permitted under the Secured Transaction Documents); (B) notify the Collateral Agent, the LC Facility Agent and the S&O Agent of any material claim made or asserted against the Collateral by any Person and of any change in the composition of such Agent’s Priority Collateral or other event which could materially adversely affect the value of such Agent’s Priority Collateral or the Collateral Agent’s Lien thereon; (C) furnish to the Collateral Agent, the LC Facility Agent and the S&O Agent listings, descriptions and schedules with respect to Inventory comprising their respective Priority Collateral, and such other reports and other information in connection with the Collateral, as the Collateral Agent or the applicable Agent may reasonably request with respect to its Priority Collateral, all in reasonable detail; and (D) upon the reasonable request of the Collateral Agent, the LC Facility Agent or the S&O Agent make such demands and requests for information and reports in respect of the Company as each such Agent is entitled to make in respect of each Agent’s respective Priority Collateral.

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(xv)    Further Actions. The Company will, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent, the S&O Agent and/or the LC Facility Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral covered by the security interest hereby granted, as the Collateral Agent, the S&O Agent or the LC Facility Agent, as applicable with respect to their Priority Collateral, may reasonably require or reasonably deems appropriate or advisable to perfect, preserve or protect the security interest of the Collateral Agent in the Collateral.

(xvi)    Insurance.

(A)     The Company shall carry and maintain in full force and effect, at the expense of the Company, all insurance coverages with financially sound and reputable insurance companies and comply with all agreements in respect thereof as required by the Secured Transaction Documents.

(B)    If the Company shall fail to maintain the insurance required in paragraph (A) above, each of the S&O Agent and the LC Facility Agent shall have the right (but shall be under no obligation) to procure such insurance with respect to their respective Priority Collateral and the Company shall be obligated to reimburse such Agent for all reasonable costs and expenses of procuring such insurance.

(C)    The Company shall take all actions, including actions requested by the Collateral Agent, the LC Facility Agent or the S&O Agent, to ensure that all insurance proceeds payable to the Company with respect to the Collateral will be paid to a Deposit Account maintained at a bank acceptable to the Collateral Agent, the LC Facility Agent with respect to LC Priority Collateral and the S&O Agent with respect to S&O Priority Collateral, and with which the Collateral Agent or applicable Sub-Collateral Agent has entered into a Control Agreement (the “Insurance Proceeds Account”) and pursuant to which the Collateral Agent has a perfected security interest therein and, if any insurance proceeds with respect to the Collateral are paid directly to the Company, the Company shall promptly remit such sums to the Insurance Proceeds Account. Until deposited in the Insurance Proceeds Account, any such amounts to be remitted shall be held in trust for the benefit of the Collateral Agent and shall be segregated from other funds of the Company.

SECTION 6    Rights to Payment and Pledged Collateral.

(a)    Collection of Rights to Payment. Until any Agent exercises its rights hereunder to collect Rights to Payment, the Company shall endeavor in the first instance diligently and in the ordinary course of its business to collect all amounts due or to become due on or with respect to the Rights to Payment. At the request of any Agent, upon the occurrence and during the continuance of any Event of Default, all remittances received by the Company with respect to the Collateral shall be held in trust for the Secured Parties and, in accordance with any Sub-Collateral Agent’s instructions, remitted to such Sub-Collateral Agent or deposited to an account with such Sub-Collateral Agent in the form received (with any necessary endorsements or instruments of assignment or transfer) and shall be distributed by such Sub-Collateral Agent in accordance with the applicable provisions of the Collateral Agency Agreement.

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(b)    Pledged Collateral. Subject to the provisions of the S&O Agreement, the LC Facility Agreement and the Collateral Agency Agreement, which shall control in all events, unless and until an Event of Default shall have occurred and be continuing, the Company shall be entitled to receive and retain for its own account any cash dividend on or other cash distribution or payment, if any, in respect of the Pledged Collateral; provided, however, that, the Company shall not be entitled to receive (i) cash paid, payable or otherwise distributed in redemption of, or in exchange for or in substitution of, any Pledged Collateral held by the Company, or (ii) dividends and other distributions paid or payable in cash in respect of any such Pledged Collateral in connection with a partial or total liquidation or dissolution of any Person whose ownership interests constitute Pledged Collateral or in connection with a reduction of capital, capital surplus or paid-in-surplus or any other type of recapitalization involving any such Person. At the request of the S&O Agent or the LC Facility Agent, upon the occurrence and during the continuance of any Event of Default, each Sub-Collateral Agent shall be entitled to receive all distributions and payments of any nature with respect to any Pledged Collateral constituting its Priority Collateral, and all such distributions or payments held by the Company shall be held in trust for Collateral Agent for the benefit of the Secured Parties and, in accordance with the Collateral Agent’s instructions, remitted to the Collateral Agent or deposited to an account with the Collateral Agent in the form received (with any necessary endorsements or instruments of assignment or transfer) for further distribution in accordance with the terms of the Collateral Agency Agreement. Following the occurrence and during the continuance of an Event of Default, any such distributions and payments with respect to any Pledged Collateral held in any securities account shall be held and retained in such securities account, in each case as part of the Collateral hereunder. Additionally, each Sub-Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, following prior written notice to the Company, to exercise voting rights and to exercise rights to give consents, ratifications and waivers with respect to any Pledged Collateral constituting its Priority Collateral, and to exercise all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining thereto, as if such Sub-Collateral Agent were the absolute owner thereof; provided that each Sub-Collateral Agent shall have no duty to exercise any of the foregoing rights afforded to it and shall not be responsible to the Company or any other Person for any failure to do so or delay in doing so.

(c)    Certain Other Administrative Matters. Subject to the terms of the Collateral Agency Agreement, which shall be controlling in all events, upon the occurrence and during the continuance of any Event of Default, any Agent may cause any of the Pledged Collateral that constitutes its Priority Collateral to be transferred into its name or into the name of its nominee or nominees (subject to the rights of the Company specified in this Section 6). Subject to the terms of the Collateral Agency Agreement, which shall be controlling in all events, if available and if otherwise required by this Agreement, each Agent shall have the right to exchange uncertificated Pledged Collateral constituting its Priority Collateral for certificated Pledged Collateral, and to exchange certificated Pledged Collateral for certificates of larger or smaller denominations, for any purpose consistent with this Agreement.

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SECTION 7    Authorization; Agents Appointed Attorney-in-Fact. Subject to the terms of the Collateral Agency Agreement, which shall be controlling in all events, each Agent shall have the right to, in the name of the Company, or in the name of such Agent or otherwise, without notice to or assent by the Company, and the Company hereby constitutes and appoints each Agent (and any of such Agent’s officers, employees or agents designated by such Agent) as the Company’s true and lawful attorney-in-fact, with full power and authority to:

(a)    file any of the financing statements which must be filed to perfect or continue perfected, maintain the priority of or provide notice of the Collateral Agent’s security interest in the Collateral;

(b)    take possession of and endorse any notes, acceptances, checks, drafts, money orders or other forms of payment or security and collect any Proceeds of its Priority Collateral;

(c)    sign and endorse any invoice or bill of lading relating to any of its Priority Collateral, warehouse or storage receipts, drafts against customers or other obligors, assignments, notices of assignment, verifications and notices to customers or other obligors;

(d)    notify the U.S. Postal Service or other postal authorities to change the address for delivery of mail addressed to the Company to such address as such Agent may designate and, without limiting the generality of the foregoing, establish with any Person lockbox or similar arrangements for the payment of the Rights to Payment with respect to its Priority Collateral;

(e)    receive, open and dispose of all mail addressed to the Company;

(f)    send requests for verification of Rights to Payment with respect to its Priority Collateral to the customers or other obligors of the Company;

(g)    contact, or direct the Company to contact, all account debtors and other obligors on the Rights to Payment with respect to its Priority Collateral and instruct such account debtors and other obligors to make all payments directly to such Agent;

(h)    assert, adjust, sue for, compromise or release any claims under any policies of insurance related to its Priority Collateral;

(i)    exercise dominion and control over, and refuse to permit further withdrawals from, Deposit Accounts constituting its Priority Collateral and maintained with such Agent, any Secured Party or any other bank, financial institution or other Person;

(j)    notify each Person maintaining lockbox or similar arrangements for the payment of the Rights to Payment with respect to its Priority Collateral to remit all amounts representing collections on such Rights to Payment directly to such Agent;

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(k)    ask, demand, collect, receive and give acquittances and receipts for any and all Rights to Payment with respect to its Priority Collateral, enforce payment or any other rights in respect of such Rights to Payment and other Priority Collateral, grant consents, agree to any amendments, modifications or waivers of the agreements and documents governing such Rights to Payment and other Collateral, and otherwise file any claims, take any action or institute, defend, settle or adjust any actions, suits or proceedings with respect to its Priority Collateral, as such Agent may request to maintain, preserve and protect such Priority Collateral, to collect such Priority Collateral or to enforce the rights of such Agent with respect to its Priority Collateral;

(l)    execute any and all endorsements, assignments or other documents and instruments necessary to sell, lease, assign, convey or otherwise transfer title in or dispose of its Priority Collateral;

(m)    execute and deliver to any securities intermediary or other Person any entitlement order or other notice, document or instrument which the Collateral Agent or any Sub-Collateral Agent may request to maintain, protect, realize upon and preserve the Deposit Accounts and Investment Property constituting such Agent’s Priority Collateral and the Collateral Agent’s security interest therein; and

(n)    execute any and all such other documents and instruments, and do any and all acts and things for and on behalf of the Company, which the Collateral Agent or any Sub-Collateral Agent may request to maintain, protect, realize upon and preserve the Collateral and the Collateral Agent’s security interest therein and to accomplish the purposes of this Agreement.

Each Agent agrees that, except upon the occurrence and during the continuance of an Event of Default, it shall not exercise the power of attorney, or any rights granted to such Agent, pursuant to clauses (b) through (m). The foregoing power of attorney is coupled with an interest and irrevocable so long as the Secured Obligations have not been paid and performed in full. The Company hereby ratifies, to the extent permitted by law, all that such Agent shall lawfully and in good faith do or cause to be done by virtue of and in compliance with this Section 7.

SECTION 8    Agent Performance of Company Obligations. Each Agent may perform or pay any obligation with respect to its Priority Collateral which the Company has agreed to perform or pay under or in connection with this Agreement, and the Company shall reimburse such Agent on demand for any amounts (including reasonable and documented fees and expenses) paid by such Agent pursuant to this Section 8.

SECTION 9    Agent’s Duties. Notwithstanding any provision contained in this Agreement, no Agent shall have a duty to exercise any of the rights, privileges or powers afforded to it and shall not be responsible to the Company or any other Person for any failure to do so or delay in doing so. Beyond the exercise of reasonable care to assure the safe custody of Collateral in any Agent’s possession and the accounting for moneys actually received by any Agent hereunder, no Agent shall have any duty or liability to exercise or preserve any rights, privileges or powers pertaining to the Collateral.

SECTION 10    Remedies.

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(a)    Remedies. Subject in all respects to the terms and conditions set forth in the Collateral Agency Agreement, upon the occurrence and during the continuance of any Event of Default, the Secured Parties shall have, in addition to all other rights and remedies granted to it in this Agreement or any other Secured Transaction Document, all rights and remedies of a secured party under the UCC and other Applicable Law. Without limiting the generality of the foregoing, the Company agrees that, upon the occurrence and during the continuance of any Event of Default:

(i)    Any Agent may peaceably and without notice enter any premises of the Company, take possession of any item of its Priority Collateral, remove or dispose of all or part of its Priority Collateral on any premises of the Company or elsewhere, and otherwise collect, receive, appropriate and realize upon all or any part of its Priority Collateral, and demand, give receipt for, settle, renew, extend, exchange, compromise, adjust, or sue for all or any part of its Priority Collateral, as any Agent may determine.

(ii)    Any Agent may require the Company to assemble all or any part of its Priority Collateral and make it available to such Agent at any place and time designated by such Agent.

(iii)    Any Agent may secure the appointment of a receiver of its Priority Collateral or any part thereof (to the extent and in the manner provided by Applicable Law).

(iv)    Any Agent may withdraw (or cause to be withdrawn) any and all funds from any Deposit Accounts or securities accounts constituting its Priority Collateral.

(v)    Any Agent may sell, resell, lease, use, assign, transfer or otherwise dispose of any or all of its Priority Collateral in its then condition or following any commercially reasonable preparation or processing (utilizing in connection therewith any of the Company’s assets, without charge or liability to such Agent therefor) at public or private sale, by one or more contracts, in one or more parcels, at the same or different times, for cash or credit or for future delivery without assumption of any credit risk, all as such Agent deems advisable; provided, however, that the Company shall be credited with the net proceeds of sale only when such proceeds are finally collected by such Agent. Any Agent shall have the right upon any such public sale, and, to the extent permitted by law, upon any such private sale, to purchase the whole or any part of its Priority Collateral so sold, free of any right or equity of redemption, which right or equity of redemption the Company hereby releases, to the extent permitted by law. Any Agent shall give the Company such notice of any public or private sale as may be required by the UCC or other Applicable Law. The Company recognizes that an Agent may be unable to make a public sale of any or all of the Pledged Collateral, by reason of prohibitions contained in applicable securities laws or otherwise, and expressly agrees that a private sale to a restricted group of purchasers for investment and not with a view to any distribution thereof shall be considered a commercially reasonable sale.

(vi)    No Agent shall have any obligation to clean-up or otherwise prepare the Collateral for sale. No Agent has any obligation to attempt to satisfy the Secured Obligations by collecting them from any other Person liable for them and, subject to the provisions of the Collateral Agency Agreement, which shall control in all respects, any Agent may release, modify or waive any collateral provided by any other Person to secure any of the Secured Obligations, all without affecting such Agent’s or any Secured Party’s rights against the Company. The Company waives any right it may have to require any Agent to pursue any third Person for any of the Secured Obligations. Any Agent may comply with any applicable state or federal law requirements in connection with a disposition of its Priority Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of such Priority Collateral. Any Agent may sell its Priority Collateral without giving any warranties as to such Collateral. The Collateral Agent may specifically disclaim any warranties of title or the like. This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. If any Agent sells any of its Priority Collateral upon credit, the Company will be credited only with payments actually made by the purchaser, received by such Agent and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, any Agent may resell the Collateral and the Company shall be credited with the proceeds of the sale.

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(b)    Proceeds Account. To the extent that any of the Secured Obligations may be contingent, unmatured or unliquidated, and at such time as an Event of Default has occurred and is continuing, an Agent may, at its election, (i) retain the proceeds of any sale, collection, disposition or other realization upon its Priority Collateral (or any portion thereof) in a special purpose non-interest-bearing restricted deposit account (the “Proceeds Account”) created and maintained by such Agent for such purpose (which shall constitute a Deposit Account included within the Collateral hereunder) until such time as such Agent may elect to apply such proceeds to the Secured Obligations in accordance with the Collateral Agency Agreement, and the Company agrees that such retention of such proceeds by such Agent shall not be deemed strict foreclosure with respect thereto; (ii) in any manner elected by such Agent, estimate the liquidated amount of any such contingent, unmatured or unliquidated claims and apply the proceeds of its Priority Collateral against such amount; or (iii) otherwise proceed in any manner permitted by Applicable Law. The Company agrees that the Proceeds Account shall be a blocked account and that upon the irrevocable deposit of funds into the Proceeds Account, the Company shall not have any right of withdrawal with respect to such funds. Accordingly, the Company irrevocably waives until the termination of this Agreement in accordance with Section 24 the right to make any withdrawal from the Proceeds Account and the right to instruct the any Agent to honor drafts against the Proceeds Account.

(c)    Application of Proceeds. The cash proceeds actually received from the sale or other disposition or collection of the Collateral, and any other amounts received in respect of the Collateral the application of which is not otherwise provided for herein, shall be applied as provided in the Collateral Agency Agreement and the other Secured Transaction Documents, as applicable. Any surplus thereof which exists after payment and performance in full of the Secured Obligations shall be promptly paid over to the Company or otherwise disposed of in accordance with the UCC or other Applicable Law. Subject to the limitations of Applicable Law, the Company shall remain liable to the Agents for any deficiency which exists after any sale or other disposition or collection of Collateral.

SECTION 11    Certain Waivers. The Company waives, to the fullest extent permitted by law, (a) any right of redemption, appraisement, valuation, stay, extension or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Agreement with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling of the Collateral or other collateral or security for the Secured Obligations; (b) any right to require any Agent (i) to proceed against any Person, (ii) to exhaust any other collateral or security for any of the Secured Obligations, (iii) to pursue any remedy in such Agent’s power, or (iv) to make or give any presentments, demands for performance, notices of nonperformance, protests, notices of protests or notices of dishonor in connection with any of the Collateral; and (c) all claims, damages, and demands against the Secured Parties arising out of the repossession, retention, sale or application of the proceeds of any sale of the Collateral, unless such damages, and claims and demands in respect thereof, are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from such Agent’s gross negligence or willful misconduct.

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SECTION 12    Notices. Without limitation to the notice requirements under any Secured Transaction Document or the Collateral Agency Agreement, all notices or other communications hereunder shall be given in the manner and to the addresses specified on the signature pages hereto. Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices and other communications sent by facsimile or by email shall be deemed to have been given when sent; provided that, if a notice or other communication is not given during normal business hours for the recipient, it shall be deemed to have been given at the opening of business on the next business day for the recipient; provided further that the Collateral Agent does not accept funds transfer instructions by email. Any party hereto may change its address, facsimile number or email address for notices and other communications hereunder by notice to the other parties. Any notice or other communication delivered by the Company to the Collateral Agent shall also be delivered to the S&O Agent and the LC Facility Agent.

SECTION 13    No Waiver; Cumulative Remedies. No failure on the part of any Secured Party to exercise, and no delay in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights and remedies under this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges that may otherwise be available to any Secured Party.

SECTION 14    Costs and Expenses; Indemnification; Other Charges.

(a)    Costs and Expenses. The Company agrees to pay the costs and expenses as set forth in Section 21.5 of the S&O Agreement, Section 11.04 of the LC Facility Agreement and Section 4.06 of the Collateral Agency Agreement (including all title, appraisal (including the allocated cost of internal appraisal services), survey, audit, environmental inspection, consulting, search, recording, filing and similar costs, fees and expenses incurred or sustained by any Secured Party or any of its Affiliates in connection with this Agreement or the Collateral).

(b)    Indemnification. The Company hereby agrees to indemnify Aron and each related person as set forth in Section 21.2 of the S&O Agreement, each Indemnified Person (as defined in the LC Facility Agreement) as set forth in Section 11.05 of the LC Facility Agreement and each Indemnitee (as defined in the Collateral Agency Agreement) Section 4.06 of the Collateral Agency Agreement.

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(c)    Payment. All amounts due under this Section shall be payable not later than five (5) Business Days after demand therefor.

(d)    Non-Exclusivity. The Company hereby acknowledges and agrees that the obligations and indemnities set forth in this Section 14 are in addition to, and not in replacement of, the obligations and indemnities provided by the Company under the Secured Transaction Documents.

(e)    Survival. The agreements in this Section 14 shall survive the termination of the Agreement and the repayment of all Secured Obligations.

SECTION 15    Binding Effect. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the Company, each Agent, each indemnified Person referred to in Section 14, and their respective successors and assigns and shall bind any Person who becomes bound as a debtor to this Agreement.

SECTION 16    Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) OF THE STATE OF NEW YORK; PROVIDED THAT THE PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

SECTION 17    Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY SECURED TRANSACTION DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE EXTENT PERMITTED BY LAW, THE PARTIES HERETO EACH HEREBY 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 THIS AGREEMENT, ANY LC CREDIT DOCUMENT OR ANY S&O TRANSACTION DOCUMENT. THE PARTIES HERETO EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

SECTION 18    Waiver of Jury Trial; Waiver of Certain Damages. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT. THE COMPANY WAIVES TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.

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SECTION 19    Entire Agreement; Amendment. THE TERMS OF THIS AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE MATTERS SET FORTH IN THIS AGREEMENT, AND NO REPRESENTATIONS OR WARRANTIES SHALL BE IMPLIED OR PROVISIONS ADDED IN THE ABSENCE OF A WRITTEN AGREEMENT TO SUCH EFFECT BETWEEN THE PARTIES. THIS AGREEMENT SHALL NOT BE AMENDED EXCEPT BY THE WRITTEN AGREEMENT OF THE PARTIES HERETO.

SECTION 20    Severability. If any Section or provision of this Agreement shall be determined to be null and void, voidable or invalid by a court of competent jurisdiction, then for such period that the same is void or invalid, it shall be deemed to be deleted from this Agreement and the remaining portions of this Agreement shall remain in full force and effect.

SECTION 21    Counterparts. This Agreement may be executed by the parties in separate counterparts and initially delivered by facsimile transmission or otherwise, with original signature pages to follow, and all such counterparts shall together constitute one and the same instrument.

SECTION 22    Inconsistent Requirements. The Company acknowledges that this Agreement and the other Secured Transaction Documents may contain covenants and other terms and provisions variously stated regarding the same or similar matters, and agrees that all such covenants, terms and provisions are cumulative and all shall be performed and satisfied in accordance with their respective terms.

SECTION 23    Obligations Absolute. The obligations of the Company under this Agreement shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including, without limitation: (i) any renewal, extension, amendment or modification of or addition or supplement to or deletion from, any of the Secured Transaction Documents or any other material instrument or agreement referred to therein, or any assignment or transfer of any thereof; (ii) any waiver, consent, extension, indulgence or other action or inaction under or in respect of any such instrument or agreement or this Agreement or any exercise or non-exercise of any right, remedy, power or privilege under or in respect of this Agreement or any other Secured Transaction Document; (iii) any furnishing of any additional security to the Collateral Agent or any acceptance thereof or any sale, exchange, release, surrender or realization of or upon any security by the Collateral Agent or any Sub-Collateral Agent; (iv) any invalidity, irregularity or unenforceability of all or part of the Secured Obligations or of any security therefor; or (v) any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment and performance in full).

SECTION 24    Termination. Subject to and in accordance with the Collateral Agency Agreement, (i) upon Discharge in Full (as such term is defined in the Collateral Agency Agreement) of the Secured S&O Obligations, the security interests created by this Agreement with respect to the Collateral granted to the Collateral Agent for the benefit of the S&O Agent shall terminate and the Collateral Agent shall promptly execute and deliver to the Company such documents and instruments reasonably requested by the Company as shall be necessary to evidence the termination of such security interests given by the Company to the Collateral Agent for the benefit of the S&O Agent (provided that no such document or instrument shall contain any representations, warranties or covenants from the Collateral Agent); and (ii) upon Discharge in Full constituting Secured LC Obligations), the security interests created by this Agreement with respect to the Collateral granted to the Collateral Agent for the benefit of the LC Secured Parties shall terminate and the Collateral Agent shall promptly execute and deliver to the Company such documents and instruments reasonably requested by the Company as shall be necessary to evidence the termination of such security interests given by the Company to the Collateral Agent for the benefit of the LC Secured Parties (provided that no such document or instrument shall contain any representations, warranties or covenants from the Collateral Agent).

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SECTION 25    Collateral Agency Agreement. The parties hereto acknowledge and agree that the Collateral Agent is entitled to all the rights, privileges, protections, benefits, indemnities and immunities set forth in the Collateral Agency Agreement, including, without limitation, those set forth in Article IV thereof, as if fully incorporated herein.

[Remainder of page intentionally left blank; signature pages follow]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.

COMPANY:

PAR HAWAII REFINING, LLC

By: /s/ Shawn Flores                           

Name: Shawn Flores

Title:   Chief Financial Officer

Address for Notices:

825 Town & Country Lane, Suite 1500
Houston, Texas 77024

Signature Page to Third Amended and Restated Security Agreement

S&O AGENT:

J. ARON & COMPANY LLC

By: /s/ Simon Collier                                    

Name: Simon Collier                           

Title:  Authorized Signatory                  

Address for Notices:

J. Aron & Company LLC,

200 West Street

New York, New York 10282-2198,

Attention:

Email:

Signature Page to Third Amended and Restated Security Agreement

COLLATERAL AGENT:

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

By: /s/ Michael K. Herberger                           

Name: Michael K. Herberger                           

Title:  Vice President                                    

Address for Notices:

U.S. Bank Trust Company, National Association
13737 Noel Road
8th Floor
Dallas, TX 75240
Attention: Par Hawaii Administrator
Email: michael.herberger@usbank.com

Signature Page to Third Amended and Restated Security Agreement

LC FACILITY AGENT:

MUFG BANK, LTD.

By: /s/ Christopher Taylor                           

Name: Christopher Taylor                           

Title:  Managing Director                           

Address for Notices:

MUFG Bank, Ltd.

1251 Avenue of the Americas

New York, NY 10020-1104

Re:  Par Hawaii Refining, LLC

Attention: Claire Myskiw and Rushi Patel

Telephone: (212) 782-5508

E-mail: cmyskiw@us.mufg.jp; rpatel@us.mufg.jp; CFCMG@us.mufg.jp

Signature Page to Third Amended and Restated Security Agreement

EX-10.5

Exhibit 10.5

Execution Version

COLLATERAL AGENCY AND

INTERMEDIATION RIGHTS AGREEMENT

among

PAR HAWAII REFINING, LLC
as the Company

MUFG BANK, LTD.
as LC Facility Agent for the LC Facility Lenders,

J. ARON & COMPANY LLC

and

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Collateral Agent for the Secured Parties

dated as of July 26, 2023

TABLE OF CONTENTS

PAGE

ARTICLE I DEFINITIONS		1
SECTION 1.01.	Certain Defined Terms	1
SECTION 1.02.	Terms Generally	8
SECTION 1.03.	Impairments	8
ARTICLE II PRIORITIES AND AGREEMENTS WITH RESPECT TO COLLATERAL		9
SECTION 2.01.	Priority of Claims	9
SECTION 2.02.	Actions with Respect to Collateral; Prohibition on Contesting Liens	11
SECTION 2.03.	No Interference; Payment Over	13
SECTION 2.04.	Release of Liens; Termination of Security Documents	13
SECTION 2.05.	Certain Agreements with Respect to Insolvency or Liquidation Proceedings	15
SECTION 2.06.	Reinstatement	17
SECTION 2.07.	Insurance	17
SECTION 2.08.	Refinancings	18
SECTION 2.09.	Possessory Collateral Agent as Gratuitous Bailee for Perfection	18
SECTION 2.10.	Liens and Security Agreements	19
SECTION 2.11.	Modifications	19
SECTION 2.12.	Cash Collateral Accounts; Amounts Not Subject to Sharing	21
SECTION 2.13.	Payment Obligation Confirmation	22
ARTICLE III EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS		22
SECTION 3.01.	Determinations with Respect to Amounts of Liens and Obligations	22
SECTION 3.02.	Application of Proceeds; LC Facility Collection Account	23
ARTICLE IV COLLATERAL AGENCY; ADMINISTRATION OF THE COLLATERAL		23
SECTION 4.01.	Administration of Collateral	23
SECTION 4.02.	Appointment; Duties; Liabilities of Collateral Agent	24
SECTION 4.03.	Rights of Collateral Agent	28
SECTION 4.04.	Resignation; Removal of Collateral Agent	32
SECTION 4.05.	Substitute Collateral Agent	33
SECTION 4.06.	Fees and Expenses; Indemnification	33

SECTION 4.07.	Non-Reliance on Agent and Other Secured Parties	35
SECTION 4.08.	Treatment of Collateral	35
SECTION 4.09.	Absence of Fiduciary Duties	36
SECTION 4.10.	Rights as a Secured Party	36
ARTICLE V ACKNOWLEDGMENT OF ARON PROPERTY		37
SECTION 5.01.	Until the Discharge in Full of the S&O Obligations, MUFG (on behalf of itself and the other LC Secured Parties) acknowledge and agree that:	37
ARTICLE VI MISCELLANEOUS		37
SECTION 6.01.	Notices	37
SECTION 6.02.	Waivers:  Amendment	38
SECTION 6.03.	Parties in Interest	39
SECTION 6.04.	Survival of Agreement	39
SECTION 6.05.	Appointments upon Discharge	39
SECTION 6.06.	Counterparts	39
SECTION 6.07.	Severability	40
SECTION 6.08.	Authorization	40
SECTION 6.09.	GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL	40
SECTION 6.10.	Headings	41
SECTION 6.11.	Conflicts	41
SECTION 6.12.	Provisions Solely to Define Relative Rights	41
SECTION 6.13.	Integration	41
SECTION 6.14.	Information Concerning Financial Condition of the Company	41
SECTION 6.15.	Further Assurances	42
SECTION 6.16.	LC Facility Agent	42
SECTION 6.17.	Damages, Etc.	42

SCHEDULE 1            Accounts

SCHEDULE 6.01       Addresses for Notices

COLLATERAL AGENCY AND INTERMEDIATION RIGHTS AGREEMENT dated as of July 26, 2023 (such date, the “Effective Date,” and such agreement, as amended, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among PAR HAWAII REFINING, LLC, a Hawaii limited liability company (the “Company”), MUFG BANK, LTD. (“MUFG”), as administrative agent for the LC Facility Lenders (as defined below) (in such capacity and together with its successors and permitted assigns in such capacity, the “LC Facility Agent”), J. ARON & COMPANY LLC (together with its successors and permitted assigns, “Aron” or “S&O Agent”) and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION (“US Bank”), as collateral agent for the Secured Parties (as defined below) (in such capacity and together with its successors and permitted assigns in such capacity, the “Collateral Agent”).

In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the LC Facility Agent (for itself and on behalf of the LC Facility Lenders), Aron, and the Collateral Agent agree as follows:

ARTICLE I
Definitions

SECTION 1.01.    Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set forth in the New York UCC (as defined below). As used in this Agreement, the following terms have the meanings specified below:

“Acknowledgment Agreement” means that certain Third Amended and Restated Acknowledgment Agreement dated as of July 26, 2023, among Aron, LC Facility Agent, Collateral Agent, Merrill Lynch Commodities, Inc., the Term Loan Agent (as defined in the S&O Agreement), the ABL Agent (as defined in the S&O Agreement), the Company and the other parties from time to time party thereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise. Notwithstanding the foregoing, the definition of “Affiliate” shall not encompass (a) any individual solely by reason of his or her being a director, officer, manager or employee of any Person and (b) any Agent or any Secured Party.

“Agent(s)” means each of (a) the LC Facility Agent, (b) the Collateral Agent and (c) any other Person appointed under the LC Facility Agreement or the Security Agreement to serve in an agent or similar capacity, including, without limitation, each Sub-Collateral Agent.

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

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“Authorized Officer” shall mean, with respect to any Person, the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer of such Person, or other named officer of such Person for whom the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to the Collateral Agent as to the authority of such Authorized Officer.

“Bankruptcy Code” means Title 11 of the United States Code, as amended.

“Bankruptcy Law” means each of the Bankruptcy Code, any similar federal, state or foreign law for the relief of debtors, or any reorganization, insolvency, moratorium or assignment for the benefit of creditors or any other marshalling of the assets or liabilities of the Company, or similar law affecting creditors’ rights generally.

“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close.

“Cash Collateral Account” has the meaning assigned to such term in Section 2.12(b).

“Collateral” shall mean, collectively, all “Collateral” as such term is defined in the Security Agreement.

“Collateral Agent” has the meaning assigned to such term in the preamble hereto.

“Collection Account” has the meaning given to such term in the Security Agreement.

“Company” has the meaning assigned to such term in the preamble hereto.

“Consent” means a Person’s agreement, approval, authorization, consent, concurrence, permission or other sanction, in each case given in writing.

“Control Agreement” means each control agreement which provides for the applicable Agent to have “control” (as defined in Section 8-106 of the UCC, as such term relates to investment property (other than certificated securities or commodity contracts), or as used in Section 9-106 of the UCC, as such term relates to commodity contracts, or as used in Section 9-104(a) of the UCC, as such term relates to deposit accounts) with respect to any deposit account or securities account of the Company to be executed and delivered by the LC Facility Agent, as Sub-Collateral Agent, the applicable securities intermediary or depositary bank and Company pursuant to the terms of the Security Agreement and each applicable Secured Transaction Document.

“Controlling Agent” means prior to the Discharge in Full of Secured Obligations that are LC Facility Obligations or S&O Obligations:

(i)         with respect to LC Priority Collateral, the LC Facility Agent; and

(ii)        with respect to S&O Priority Collateral, Aron.

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“Controlling Secured Parties” means (i) at any time with respect to any LC Priority Collateral, the LC Secured Parties and (ii) at any time with respect to S&O Priority Collateral, Aron.

“Credit Documents” has the meaning given to such term in the LC Facility Agreement.

“Default” means a “Default” (or any defined term with substantially similar meaning) as defined in any Secured Transaction Document.

“Designated Controlled Account” means the deposit account listed on Schedule 1 hereto and designated as such, or such other account as may be designated from time to time by written notice from Aron to the LC Facility Agent and the Collateral Agent.

“DIP Financing” has the meaning assigned to such term in Section 2.05(b).

“DIP Financing Liens” has the meaning assigned to such term in Section 2.05(b).

“Discharge in Full” means, with respect to any Series of Secured Obligations,

(i)         in the case of LC Facility Obligations, (A) payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding), on all Revolving Credit Loans (as defined in the LC Facility Agreement) and other LC Facility Obligations, (B) all letters of credit issued under the LC Facility Agreement shall have either been terminated or cancelled or, with respect to any such letters of credit that remain outstanding after the termination of the LC Facility Agreement, cash collateral has been posted in accordance with the LC Facility Agreement; provided that any cash paid into the LC Facility Collection Account in connection with a letter of credit that is outstanding after termination of the LC Facility Agreement shall constitute cash collateral with respect thereto (unless otherwise agreed by the LC Facility Agent and/or any applicable LC Facility Lenders); and (C) satisfaction in full (whether by payment in cash or performance) of all other LC Facility Obligations (other than any contingent indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time); and

(ii)         in the case of the S&O Obligations, satisfaction in full (whether by payment in cash or performance) of all such S&O Obligations (other than any contingent indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time), and termination or expiration of any obligation, commitment or other contractual provision pursuant to which additional S&O Obligations may arise or additional transactions under the S&O Agreement may be executed;

provided that a Discharge in Full of any Series of Secured Obligations shall not be deemed to have occurred in connection with a Refinancing of such Series of Secured Obligations with additional secured obligations secured by such Shared Collateral under financing documents which have been designated in writing by the Company as “Secured Obligations” under this Agreement in accordance with a joinder and other agreements satisfactory to the Collateral Agent and each Senior Secured Party Representative.

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“Effective Date” has the meaning assigned to such term in the preamble hereto.

“Environmental Claims” has the meaning given to such term in the LC Facility Agreement.

“Environmental Laws” has the meaning given to such term in the LC Facility Agreement.

“Event of Default” means an “Event of Default” (or any defined term with substantially similar meaning) as defined in any Secured Transaction Document.

“Governmental Authority” means any foreign, federal, state, regional, tribal or local government or political subdivision thereof or other 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 having jurisdiction over the Person or matters in question.

“Hedging Arrangement” has the meaning given to such term in the LC Facility Agreement.

“Indebtedness” has the meaning given to such term in the LC Facility Agreement.

“Indemnitee” has the meaning assigned to such term in Section 4.06(c).

“Insolvency or Liquidation Proceeding” means:

(a)         any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to the Parent Guarantor, the Company or any subsidiary of the Company;

(b)         any other voluntary or involuntary insolvency, reorganization, winding-up or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to the Parent Guarantor, the Company or any subsidiary of the Company or with respect to a material portion of their respective assets (other than any merger or consolidation, liquidation, windup or dissolution not involving bankruptcy that is expressly permitted pursuant to the terms of each Secured Transaction Document);

(c)         any liquidation, dissolution, reorganization or winding up of the Parent Guarantor, the Company or any subsidiary of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy (other than any merger or consolidation, liquidation, windup or dissolution not involving bankruptcy that is expressly permitted pursuant to the terms of each Secured Transaction Document);

(d)         any case or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt or other property of the Parent Guarantor, the Company or any subsidiary of the Company;

(e)         any case or proceeding seeking the entry of an order of relief or the appointment of a custodian, receiver, trustee or other similar proceeding with respect to the Parent Guarantor, the Company or any subsidiary of the Company or any property or Indebtedness of the Parent Guarantor, the Company or any subsidiary of the Company; or

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(f)         any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Parent Guarantor, Company or any subsidiary of the Company.

“Issuance Condition” has the meaning given to such term in the LC Facility Agreement.

“LC Facility Agent” has the meaning assigned to such term in the preamble hereto.

“LC Facility Agreement” means that certain Uncommitted Credit Agreement dated as of July 26, 2023, among the Company, the lenders party thereto from time to time, the LC Facility Agent, and the Collateral Agent.

“LC Facility Collection Account” means the deposit account listed on Schedule 1 hereto and designated as such, or such other account as may be designated from time to time by written notice from the LC Facility Agent to Aron and the Collateral Agent.

“LC Facility Lenders” means each bank, financial institution or institutional lender listed on the signature pages to the LC Facility Agreement as a lender and/or a letter of credit issuing bank, and any other Person that becomes a party thereto in either such capacity pursuant to an assignment and assumption agreement or otherwise.

“LC Facility Obligations” means the “Obligations” as defined in the LC Facility Agreement.

“LC Priority Collateral” means the “LC Priority Collateral” as defined in the Security Agreement.

“LC Priority Collateral Proceeds” has the meaning assigned to such term in Section 2.01(a).

“LC Secured Parties” means “Secured Parties” as defined in the LC Facility Agreement.

“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a capital lease, any financing lease having substantially the same economic effect as any of the foregoing, or the filing of any financing statement naming the owner of the asset to which such lien relates as debtor, under the Uniform Commercial Code or any comparable law).

“Modification” means, with respect to any Secured Transaction Document, any amendment, supplement, Waiver or other modification of the terms and provisions thereof.

“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.

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“Non-Controlling Agent” means (i) at any time with respect to any LC Priority Collateral, Aron and (ii) at any time with respect to S&O Priority Collateral, the LC Facility Agent.

“Non-Controlling Secured Parties” means (i) at any time with respect to any LC Priority Collateral, Aron and (ii) at any time with respect to S&O Priority Collateral, the LC Secured Parties.

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

“Permitted Hedging Arrangement” means any Hedging Arrangement permitted pursuant to the terms of the LC Facility Agreement and the S&O Agreement.

“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

“Possessory Collateral” means any Collateral in the possession of the Collateral Agent, any Sub-Collateral Agent or any Senior Secured Party Representative (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation, any certificated Securities constituting Investment Property, Promissory Notes, Instruments, Documents, Documents of Title (including without limitation physical Bills of Lading), and Chattel Paper, in each case, delivered to or in the possession of the Collateral Agent, any Sub-Collateral Agent or any Senior Secured Party Representative (or its agents or bailees) under the terms of the Security Documents.

“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, replace, refund or repay, or to issue other indebtedness, in exchange or replacement for, such Indebtedness in whole or in part. “Refinanced” and “Refinancing” have correlative meanings.

“S&O Agreement” means that certain Second Amended and Restated Supply and Offtake Agreement dated as of June 1, 2021, between Aron and the Company, together with all schedules, annexes, and exhibits thereto, as amended or otherwise modified from time to time.

“S&O Obligations” means the “Secured S&O Obligations” as defined in the Security Agreement.

“S&O Priority Collateral” means the “S&O Priority Collateral” as defined in the Security Agreement.

“S&O Priority Collateral Proceeds” has the meaning assigned to such term in Section 2.01(b).

“Secured Obligations” means, collectively, (i) the LC Facility Obligations and (ii) the S&O Obligations.

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“Secured Parties” means collectively, Aron (in its capacity as sub-agent with respect to the S&O Priority Collateral under the Security Agreement and as counterparty under the S&O Agreement), the LC Secured Parties, the Collateral Agent and MUFG Bank Ltd., as Sub-Collateral Agent.

“Secured Transaction Documents” means (i) the LC Facility Agreement, (ii) the Credit Documents, (iii) the S&O Agreement and (iv) the Transaction Documents (as defined in the S&O Agreement).

“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Security Agreement” means that certain Third Amended and Restated Security Agreement, dated as of the date hereof, by and between the Company, Aron, the Collateral Agent and the LC Facility Agent.

“Security Documents” means (a) the Security Agreement, (b) this Agreement, (c) any Control Agreement and (d) all other instruments, documents, agreements and filings executed in favor of the Collateral Agent or any Sub-Collateral Agent for the benefit of any Secured Party or for the purpose of securing any Series of Secured Obligations (including any replacement of or supplement to the Security Documents set forth above), including to grant to, or perfect in favor of, the Collateral Agent or any Sub-Collateral Agent, for the benefit of Secured Parties, a Lien on any Collateral.

“Senior Officer” shall mean, with respect to any Person, the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer of such Person.

“Senior Secured Party Representative” means (i) the LC Facility Agent, acting on behalf of the LC Secured Parties, and (ii) Aron, acting on its own behalf.

“Series” means (a) with respect to the Secured Parties, each of (i) the LC Secured Parties (each in their capacities as such) and (ii) Aron, and (b) with respect to any Secured Obligations, each of (i) the LC Facility Obligations and (ii) the S&O Obligations.

“Shared Collateral” means, at any time, LC Priority Collateral in which (x) the Collateral Agent, the LC Facility Agent or another Agent appointed pursuant to the terms of the Security Documents holds, or purports to hold a security interest at such time to secure the LC Facility Obligations; and at the same time (y) the Collateral Agent, Aron or another Agent appointed pursuant to the terms of the Security Documents holds, or purports to hold a security interest at such time to secure the S&O Obligations.

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“Sub-Collateral Agent” means any sub-collateral agent of the Collateral Agent appointed by the Collateral Agent pursuant to this Agreement, any other Security Document, or any Secured Transaction Document to which it is a party, in each case, that has not been removed by the Collateral Agent or resigned as sub-collateral agent. On the Effective Date, the Sub-Collateral Agents include MUFG in its capacity as the LC Facility Agent and Aron.

“Tax” means any and all present or future taxes, levies, imposts, deductions, charges or withholdings, assessments, fees or other charges imposed by any Governmental Authority, and any interest, penalties and other liabilities with respect thereto.

“Uniform Commercial Code” or “UCC” means the New York UCC, or the Uniform Commercial Code (or any similar or comparable legislation) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

“Waiver” means, with respect to any particular conduct, event or other circumstance, any change to an obligation of any Person under any Secured Transaction Document requiring the Consent of one or more Secured Parties, which Consent has the effect of waiving, excusing or accepting or approving changed performance of, or non-compliance with, such obligation or any Default or Event of Default with respect thereto to the extent relating to such conduct, event or circumstance.

SECTION 1.02.    Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. 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 “shall” will be construed to have the same meaning and effect as the word “will”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, amended and restated, supplemented or otherwise modified from time to time, or as increased, refinanced or replaced from time to time, in each case, unless otherwise expressly provided for herein and to the extent permitted hereunder, (ii) any reference herein to any Person shall be construed to include such Person’s permitted successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (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 and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, 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 and (vi) the term “or” is not exclusive.

SECTION 1.03.    Impairments. Notwithstanding any failure by any Secured Party to perfect its Lien on any Collateral (whether such Collateral constitutes Shared Collateral or otherwise) or any avoidance, invalidation, or subordination by any third party or court of competent jurisdiction of the Liens in the such Collateral granted to such Secured Party, the priority and rights as among the Secured Parties with respect to such Collateral shall be as set forth herein.

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ARTICLE II
Priorities and Agreements with Respect to Collateral

SECTION 2.01.    Priority of Claims.

(a)    Notwithstanding anything contained herein or in any of the Secured Transaction Documents to the contrary, if an Event of Default has occurred and is continuing, and any Agent is taking action in accordance with the terms hereof to enforce rights in respect of any LC Priority Collateral, or any distribution is made in respect of any LC Priority Collateral in any Insolvency or Liquidation Proceeding, the proceeds of any sale, collection or other liquidation of any such LC Priority Collateral by any Senior Secured Party Representative or any other Secured Party and proceeds of any such distribution (all proceeds of any sale, collection or other liquidation of any LC Priority Collateral and all proceeds of any such distribution being collectively referred to as “LC Priority Collateral Proceeds”), shall, be applied:

(i)    FIRST, to the payment of all fees, indemnities, expenses and other amounts owing to the Collateral Agent or the applicable Sub-Collateral Agent (each in its capacity as such), including without limitation pursuant to Section 4.06, in connection with this Agreement, any other Security Document, any other Secured Transaction Document or the Acknowledgment Agreement,

(ii)    SECOND, after a determination in accordance with Section 3.01 but subject to Section 1.03, to the LC Facility Agent for application to the payment of all outstanding LC Facility Obligations, with such LC Priority Collateral Proceeds to be applied to the LC Facility Obligations in accordance with the terms of the LC Facility Agreement until such time as all LC Facility Obligations have been Discharged in Full, only at which time further distributions of the proceeds of LC Priority Collateral may be made in accordance with clauses (iii) and (iv) hereof,

(iii)    THIRD, after the Discharge in Full of the LC Facility Obligations, to Aron for application to payment of all S&O Obligations (including with respect to any termination payments in accordance with the S&O Agreement) with such LC Priority Collateral Proceeds to be applied to the S&O Obligations in accordance with the S&O Agreement, and

(iv)    FOURTH, after the Discharge in Full of the S&O Obligations, to the Company as such party may direct in writing, or otherwise, or as a court of competent jurisdiction may direct.

(b)    Notwithstanding anything contained herein or in any of the Secured Transaction Documents to the contrary, if an Event of Default has occurred and is continuing, and any Agent is taking action in accordance with the terms hereof to enforce rights in respect of any S&O Priority Collateral, or any distribution is made in respect of any S&O Priority Collateral in any Insolvency or Liquidation Proceeding, the proceeds of any sale, collection or other liquidation of any such S&O Priority Collateral by any Senior Secured Party Representative or any Secured Parties and proceeds of any such distribution (all proceeds of any sale, collection or other liquidation of any S&O Priority Collateral and all proceeds of any such distribution being collectively referred to as “S&O Priority Collateral Proceeds”), shall, be applied:

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(i)    FIRST, to the payment of all fees, indemnities, expenses and other amounts owing to the Collateral Agent or the applicable Sub-Collateral Agent (each in its capacity as such), including without limitation pursuant to Section 4.06, in connection with this Agreement, any other Security Document, any other Secured Transaction Document or the Acknowledgment Agreement,

(ii)    SECOND, after a determination in accordance with Section 3.01 but subject to Section 1.03, to Aron for application to the payment of all outstanding S&O Obligations (including with respect to any termination payments and any ordinary course settlement payments under any Permitted Hedging Arrangements in accordance with the S&O Agreement), with such S&O Priority Collateral Proceeds to be applied to the S&O Obligations in accordance with the terms of the S&O Agreement, and

(iii)    THIRD, after the Discharge in Full of the S&O Obligations, to the Company as such party may direct in writing, or otherwise, or as a court of competent jurisdiction may direct.

(c)    [Reserved.]

(d)    It is acknowledged that the Secured Obligations of any Series may, subject to the limitations set forth in the then extant Secured Transaction Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) and (b) or the provisions of this Agreement defining the relative rights of the Secured Parties of any Series.

(e)    Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Secured Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Transaction Documents or any defect or deficiencies in the Liens securing the Secured Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each Secured Party hereby agrees that the benefits and proceeds of the Shared Collateral shall be shared among the Secured Parties as provided herein.

(f)    As between LC Secured Parties on the one hand and Aron on the other any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing LC Facility Obligations are and will be prior, senior and superior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing S&O Obligations, and any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing S&O Obligations are and will be junior, subordinate and inferior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing LC Facility Obligations. As between Aron on the one hand and LC Secured Parties on the other any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing S&O Obligations are and will be prior, senior and superior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing LC Facility Obligations, and any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing LC Facility Obligations are and will be junior, subordinate and inferior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing S&O Obligations.

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SECTION 2.02.    Actions with Respect to Collateral; Prohibition on Contesting Liens.

(a)    With respect to any Collateral,

(i)    only the LC Facility Agent as the Controlling Agent shall instruct the Collateral Agent (or the applicable Sub-Collateral Agent) to, and only the Collateral Agent (or the applicable Sub-Collateral Agent), at the instruction of the Controlling Agent, may, act or refrain from acting with respect to the LC Priority Collateral,

(ii)    only Aron as the Controlling Agent shall instruct the Collateral Agent (or the applicable Sub-Collateral Agent) to, and only the Collateral Agent (or the applicable Sub-Collateral Agent) at the instruction of the Controlling Agent, may act or refrain from acting with respect to the S&O Priority Collateral,

(iii)    no Non-Controlling Agent or other Non-Controlling Secured Party shall or shall instruct the Collateral Agent (or the applicable Sub-Collateral Agent) to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any LC Priority Collateral, whether under any Security Document, applicable law or otherwise, it being agreed that only the Collateral Agent (or the applicable Sub-Collateral Agent), at the instruction of the LC Facility Agent as the Controlling Agent, shall be entitled to take any such actions or exercise any such remedies with respect to LC Priority Collateral; provided that, notwithstanding the foregoing, (x) in any Insolvency or Liquidation Proceeding, any Senior Secured Party Representative or any other Secured Party may file a proof of claim or statement of interest with respect to the Secured Obligations owed to the Secured Parties; (y) any Senior Secured Party Representative or any other Secured Party may take any action to preserve or protect the validity and enforceability of the Liens granted in favor of Secured Parties, provided that no such action is, or could reasonably be expected to be, (A) adverse, in any material respect, to the Liens granted in favor of the Collateral Agent or any Sub-Collateral Agent (for the benefit of the Controlling Secured Parties) or the rights of the Collateral Agent, any Sub-Collateral Agent, the Controlling Agent or any other Controlling Secured Parties to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement;

(iv)    no Non-Controlling Agent or other Non-Controlling Secured Party shall or shall instruct the Collateral Agent (or the applicable Sub-Collateral Agent) to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any S&O Priority Collateral, whether under any Security Document, applicable law or otherwise, it being agreed that only the Collateral Agent (or the applicable Sub-Collateral Agent), at the instruction of Aron as the Controlling Agent, shall be entitled to take any such actions or exercise any such remedies with respect to S&O Priority Collateral; provided that, notwithstanding the foregoing, (x) in any Insolvency or Liquidation Proceeding, any Senior Secured Party Representative or any other Secured Party may file a proof of claim or statement of interest with respect to the Secured Obligations owed to the Secured Parties; (y) any Senior Secured Party Representative or any other Secured Party may take any action to preserve or protect the validity and enforceability of the Liens granted in favor of Secured Parties, provided that no such action is, or could reasonably be expected to be, (A) adverse, in any material respect, to the Liens granted in favor of the Collateral Agent or any Sub-Collateral Agent (for the benefit of the Controlling Secured Parties), or the rights of the Collateral Agent, any Sub-Collateral Agent, the Controlling Agent or any other Controlling Secured Parties to exercise remedies in respect thereof or (B) otherwise inconsistent with the terms of this Agreement; and

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(v)    any Senior Secured Party Representative or any other Secured Party may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of such Secured Parties, including any claims secured by the Collateral, in each case, to the extent not inconsistent with the terms of this Agreement.

Notwithstanding the priority of the Liens, (i) the LC Facility Agent as the Controlling Agent may instruct the Collateral Agent (or the applicable Sub-Collateral Agent) to, and the Collateral Agent (or the applicable Sub-Collateral Agent), at the instruction of the Controlling Agent, may, deal with the LC Priority Collateral as if the Collateral Agent (or such Sub-Collateral Agent) had a senior Lien on such LC Priority Collateral solely for the benefit of the Controlling Secured Parties, and (ii) Aron as the Controlling Agent may instruct the Collateral Agent (or the applicable Sub-Collateral Agent) to, and the Collateral Agent (or the applicable Sub-Collateral Agent), at the instruction of the Controlling Agent, may, deal with the S&O Priority Collateral as if the Collateral Agent (or such Sub-Collateral Agent) had a senior Lien on such S&O Priority Collateral solely for the benefit of the Controlling Secured Parties. No Non‑Controlling Agent or Non-Controlling Secured Party will contest, protest or object (or support any other person in contesting, protesting or objecting) to any foreclosure proceeding or action brought by the LC Facility Agent as the Controlling Agent or the Controlling Secured Parties or any other exercise by or for the benefit of the Controlling Agent or the Controlling Secured Parties of any rights and remedies relating to the LC Priority Collateral. No Non‑Controlling Agent or Non-Controlling Secured Party will contest, protest or object (or support any other person in contesting, protesting or objecting) to any foreclosure proceeding or action brought by Aron or any other exercise by or for the benefit of Aron of any rights and remedies relating to the S&O Priority Collateral.

(b)    Each Senior Secured Party Representative and the Secured Parties for which it is acting hereunder agrees to be bound by the provisions of this Agreement. Nothing in this Agreement shall be construed to prevent or impair the rights of the LC Facility Agent, Aron or any Secured Party to enforce this Agreement.

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SECTION 2.03.    No Interference; Payment Over.

(a)    Each Secured Party agrees that it (i) will not challenge, or support any other Person in challenging, in any proceeding the validity or enforceability of any Secured Obligations of any Series or any Security Document or the validity, attachment, perfection or priority of any Lien under any Security Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; (ii) will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Collateral by the Collateral Agent or the applicable Sub-Collateral Agent (at the instruction of the Controlling Agent); (iii) will not institute in any Insolvency or Liquidation Proceeding or other proceeding any claim against the Collateral Agent, the applicable Sub-Collateral Agent, the Controlling Agent or any other Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Collateral, and none of the Collateral Agent, the applicable Sub-Collateral Agent, the Controlling Agent or any other Secured Party shall be liable for any action taken or omitted to be taken by the Collateral Agent, any Sub-Collateral Agent, the Controlling Agent or other Secured Party with respect to any Collateral (A) in the case of the Collateral Agent or the applicable Sub-Collateral Agent, to the to the extent not prohibited by the provisions of this Agreement and (B) in the case of any Controlling Agent or any other Secured Party, to the extent not inconsistent with or not otherwise prohibited by the provisions of this Agreement; (iv) will not seek, and hereby waives any right, to have any Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral; and (v) will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement.

(b)    Each Secured Party hereby agrees that if it shall obtain possession of any Collateral or shall realize any proceeds or payment in respect of any such Collateral, pursuant to any Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies, at any time prior to the Discharge in Full of the Secured Obligations, then it shall hold such Collateral, proceeds or payment in trust for each other Secured Party that has a security interest in such Collateral and promptly transfer such Collateral, LC Priority Collateral Proceeds, S&O Priority Collateral Proceeds or payment, as the case may be, to (i) if such Collateral, proceeds or payment constitutes or is in respect of LC Priority Collateral or LC Priority Collateral Proceeds, to the LC Facility Agent, as Sub-Collateral Agent, or (ii) if such Collateral, proceeds or payment constitutes or is in respect of S&O Priority Collateral or S&O Priority Collateral Proceeds, to Aron as Sub-Collateral Agent, in each case, to be distributed in accordance with the provisions of Section 2.01 hereof. For the avoidance of doubt, payments received by any Secured Parties of principal, interest, fees, indemnities, expenses or other amounts pursuant to the terms of the applicable Secured Transaction Documents are not considered Shared Collateral or proceeds thereof for purposes of this Section 2.03(b).

SECTION 2.04.    Release of Liens; Termination of Security Documents.

(a)    The Collateral Agent’s or the applicable Sub-Collateral Agent’s Liens on Collateral will be automatically released:

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(i)    in whole, upon the Discharge in Full of all Secured Obligations;

(ii)    upon any release, sale or disposition of Collateral permitted pursuant to the terms of the Controlling Agent’s Secured Transaction Documents that results in the release of the Lien in favor of the Collateral Agent (or the applicable Sub-Collateral Agent) for the benefit of (x) the LC Facility Agent as the Controlling Agent of any LC Priority Collateral and (y) Aron as the Controlling Agent of any S&O Priority Collateral (excluding, with respect to any Non-Controlling Agent, any release, sale or other disposition that is expressly prohibited by the Secured Transaction Document of such Non-Controlling Agent, unless such sale or disposition is consummated in connection with, at the instruction of the Controlling Agent, the Collateral Agent’s (or the applicable Sub-Collateral Agent’s) exercise of remedies or consummated after the institution of any Insolvency or Liquidation Proceeding), and the Lien of the Collateral Agent (or the applicable Sub-Collateral Agent) for the benefit of such Non-Controlling Agent on such Shared Collateral shall be automatically released and discharged to the same extent as the Lien in favor of the Controlling Agent; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01 hereof; and

(iii)    as to a release of all or substantially all of the Shared Collateral (other than pursuant to clause (i) above), if consent to release of that Shared Collateral has been given by each of the Senior Secured Party Representatives.

(b)    [reserved];

(c)    The Collateral Agent (or the applicable Sub-Collateral Agent) and the Senior Secured Party Representatives agree for the benefit of the Company that if the Senior Secured Party Representatives and the Collateral Agent at any time receive (i) an officers’ certificate from a Senior Officer of the Company stating that (A) the signing officer has read Section 2.04 of this Agreement and the other Secured Transaction Documents and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the covenants and conditions precedent in this Agreement and all other Secured Transaction Documents, if any, relating to the termination of the Security Documents and/or this Agreement have been complied with and (C)  all covenants and conditions precedent provided for in this Agreement and the Secured Transaction Documents governing or evidencing the Collateral relating to such termination have been complied with and that such termination is authorized or permitted by the terms of such Secured Transaction Documents and this Agreement, (ii) written confirmation from each Senior Secured Party Representative on behalf of itself and the holders of Secured Obligations such Senior Secured Party Representative represents that all related Secured Obligations have been Discharged in Full and (iii) the proposed instrument or instruments terminating such Security Documents and/or this Agreement (in recordable form, if applicable, and in form and substance acceptable to the Collateral Agent (or the applicable Sub-Collateral Agent), provided that no such instrument shall contain any representations, warranties or covenants from the Collateral Agent (or the applicable Sub-Collateral Agent)), then the Collateral Agent (or the applicable Sub-Collateral Agent) will, upon written direction (which may be by electronic mail) from all Senior Secured Party Representatives, execute, at the expense of the Company, (with such acknowledgments and/or notarizations as are required) and deliver such instruments to the Company.

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(d)    Each of the Senior Secured Party Representatives, on behalf of itself and each of the holders of the Secured Obligations that such Senior Secured Party Representative represents, hereby (i) irrevocably authorizes the Collateral Agent (or the applicable Sub-Collateral Agent) to release any lien on the Collateral and/or to terminate this Agreement on their behalf in accordance with this Section 2.04, and (ii) agrees that the Collateral Agent (or the applicable Sub-Collateral Agent) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any release of Collateral or termination of Security Documents requested hereunder, (B) the contents of any certificate, report or other document delivered hereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any of the Security Documents or Secured Transaction Documents with respect thereto, or (D) the validity, enforceability, effectiveness or genuineness of any instrument releasing any such Collateral or terminating any such Security Document or any other agreement, instrument or document.

(e)    In no event shall the Collateral Agent (or the applicable Sub-Collateral Agent) or any of its co-agents, sub-agents and attorneys-in-fact be obligated to execute or deliver any document evidencing any termination, release or re-conveyance of Collateral (including without limitation pursuant to any Modification) without receipt of the officer’s certificate, the written direction (which may be by electronic mail) of the Controlling Agent or Controlling Agents, as applicable, and, if applicable, the written confirmation set forth in Section 2.04(c), as applicable.

(f)    Notwithstanding anything to the contrary, upon the Discharge in Full of the LC Facility Obligations, the LC Facility Agent, in its capacity as Sub-Collateral Agent of the Collateral Agent, is hereby authorized, without the further consent or action of any other party, to terminate any Control Agreements and to remit any Possessory Collateral in its possession to Aron, as Sub-Collateral Agent, or as otherwise directed by Aron.

(g)    Upon the Discharge in Full of the LC Facility Obligations and so long as at such time no Discharge in Full of the S&O Obligations has occurred, the Company hereby agrees that it will not permit any amounts to be on deposit in the LC Facility Collection Account unless such amounts are the result of payment by Aron to the Company and will terminate the account as soon as practicable thereafter. After the Discharge in Full of the LC Facility Obligations and so long as at such time no Discharge in Full of the S&O Obligations has occurred, (i) the LC Facility Collection Account will constitute S&O Priority Collateral and (ii) the LC Facility Agent agrees to cooperate with the Company in terminating the LC Facility Collection Account.

SECTION 2.05.    Certain Agreements with Respect to Insolvency or Liquidation Proceedings.

(a)    The parties hereto acknowledge that this Agreement is a “subordination agreement” under Section 510(a) of the Bankruptcy Code and shall continue in full force and effect notwithstanding the commencement of any Insolvency or Liquidation Proceeding.

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(b)    If an Insolvency or Liquidation Proceeding occurs (a “Bankruptcy Case”):

(i)    if Aron desires to permit the use of cash collateral or to permit the Parent Guarantor, the Company and/or any of the Company’s subsidiaries to obtain financing under Section 363 or Section 364 of the Bankruptcy Code or under any other similar law (“DIP Financing”) secured by a Lien (“DIP Financing Liens”) on, or constituting the proceeds of, the S&O Priority Collateral, then the LC Facility Agent, for itself and on behalf of the LC Facility Lenders, hereby agrees not to object to such use of cash collateral or DIP Financing or to request adequate protection (except as otherwise expressly permitted by the terms of this Agreement) or any other relief in connection therewith; provided that, unless otherwise expressly agreed by the LC Facility Agent in writing, Aron will not propose or request that such DIP Financing Liens extend to any of the LC Priority Collateral; and

(ii)    if the LC Facility Agent desires to permit the use of cash collateral or to permit the Parent Guarantor, the Company and/or any of the Company’s subsidiaries to obtain any DIP Financing secured by a Lien on, or constituting the proceeds of, LC Priority Collateral, then Aron hereby agrees:

(A)    not to object to such use of cash collateral or DIP Financing or to request adequate protection (except as otherwise expressly permitted by the terms of this Agreement) or any other relief in connection therewith so long as (x) such use of cash collateral or DIP Financing and adequate protection is not secured by a Lien on the S&O Priority Collateral and (y) Aron retains the benefit of its Liens on the LC Priority Collateral, including proceeds thereof arising after the commencement of such Bankruptcy Case (to the extent provided for under applicable law), with the same priority vis-à-vis the LC Facility Agent (other than with respect to any DIP Financing Liens granted thereto) as existed prior to the commencement of such Bankruptcy Case; and

(B)    to the extent the Liens on LC Priority Collateral securing LC Facility Obligations are subordinated to, or pari passu with, such DIP Financing Liens, to subordinate its Liens on the LC Priority Collateral to the Liens granted to secure such DIP Financing (and all obligations relating thereto, including any “carve-out” from the LC Priority Collateral granting administrative priority status or Lien priority to secure the payment of fees and expenses of the United States Trustee or professionals retained by any debtor or creditors’ committee agreed to by the LC Facility Agent), to any adequate protection Liens granted to the LC Facility Agent or any LC Secured Party, on the same basis as the Liens on such LC Priority Collateral securing LC Facility Obligations are subordinated to such DIP Financing Liens or to confirm the priorities with respect to such LC Priority Collateral as set forth herein, as applicable.

(c)    Prior to the Discharge in Full of the LC Facility Obligations, Aron agrees that it will not, without the consent of the LC Facility Agent, in its sole discretion, propose or enter into any DIP Financing or support any DIP Financing secured by Liens against the Shared Collateral except as permitted by clause (b) above. Prior to the Discharge in Full of the S&O Obligations, the LC Facility Agent agrees that it will not, without the consent of Aron, in its sole discretion, propose or enter into any DIP Financing or support any DIP Financing secured by Liens against the Shared Collateral except as permitted by clause (b) above.

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(d)    Aron agrees that it will not file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief) based upon its interest in the Shared Collateral, nor object to, oppose or contest (or join with or support any third party objecting to, opposing or contesting) (i) any request by the LC Facility Agent for adequate protection or (ii) any objection by the LC Facility Agent to any motion, relief, action or proceeding based on the LC Facility Agent claiming a lack of adequate protection, except that Aron may:

(i)    freely seek and obtain relief granting adequate protection in the form of a replacement lien coextensive in all respects with, but subordinated (as set forth in Section 2.05(b)) to, and with the same relative priority to the Liens of the LC Facility Agent as existed prior to the commencement of the Insolvency or Liquidation Proceeding, all Liens granted in the Insolvency or Liquidation Proceeding to, or for the benefit of, the LC Facility Agent; and

(ii)    freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief), without any condition or restriction whatsoever, at any time after the Discharge in Full of Secured Obligations constituting LC Facility Obligations.

(e)    The LC Facility Agent agrees that it will not file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief) with respect to the S&O Priority Collateral, nor object to, oppose or contest (or join with or support any third party objecting to, opposing or contesting) (i) any request by Aron for adequate protection or (ii) any objection by Aron to any motion, relief, action or proceeding based on Aron claiming a lack of adequate protection, except that the LC Facility Agent may freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief), without any condition or restriction whatsoever, at any time after the Discharge in Full of the S&O Obligations.

SECTION 2.06.    Reinstatement. In the event that any of the Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under Bankruptcy Law, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Agreement shall be fully applicable thereto until all such Secured Obligations shall again have been Discharged in Full.

SECTION 2.07.    Insurance. As between the Secured Parties, the LC Facility Agent as Controlling Agent shall have the right, subject to the terms of the applicable Secured Transaction Document, to adjust or settle any insurance policy or claim covering or constituting LC Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the LC Priority Collateral, without further consent of, notice to, or action by Aron. As between the Secured Parties, Aron as Controlling Agent shall have the right, subject to the terms of the applicable Secured Transaction Document, to adjust or settle any insurance policy or claim covering or constituting S&O Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the S&O Priority Collateral, without further consent of, notice to, or action by the LC Facility Agent or any other LC Secured Party. Notwithstanding the foregoing, Aron as Controlling Agent shall have the right, subject to the terms of the applicable Secured Transaction Document, to adjust or settle any insurance policy or claim in respect of business interruption covering or constituting Collateral in the event of any loss thereunder. Should the Collateral Agent (or any Sub-Collateral Agent) for any reason receive any proceeds of insurance relating to the Collateral, the Collateral Agent’s (or the applicable Sub-Collateral Agent’s) only duty shall be to turn any such proceeds over to (a) the LC Facility Agent, to the extent such proceeds constitute LC Priority Collateral, or (b) Aron, to the extent such proceeds constitute S&O Priority Collateral, and the Collateral Agent (or the applicable Sub-Collateral Agent) shall be entitled to rely in all respects on notice from both Senior Secured Party Representatives as to whether such proceeds constitute LC Priority Collateral or S&O Priority Collateral.

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SECTION 2.08.    Refinancings. The Secured Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Secured Transaction Document) of any Secured Parties of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Senior Secured Party Representative of the holders of any such Refinancing indebtedness shall have executed a joinder and delivered to the Collateral Agent such other agreements satisfactory to the Collateral Agent, each Senior Secured Party Representative, and the agent or representative on behalf of the holders of such Refinancing indebtedness.

SECTION 2.09.    Possessory Collateral Agent as Gratuitous Bailee for Perfection.

(a)    The Collateral Agent and each Sub-Collateral Agent agrees to hold (including by way of control) any Shared Collateral that is in its possession or under its control (or in the possession or control of its agents or bailees) as gratuitous bailee or gratuitous agent, as applicable, for the benefit of each other Secured Party and any permitted assignee solely for the purpose of perfecting the security interest granted in such Shared Collateral, if any, pursuant to the applicable Security Documents, in each case, subject to the terms and conditions of this Section 2.09; provided that if the Collateral Agent or any Sub-Collateral Agent resigns or is removed pursuant to this Agreement, the Collateral Agent (or the applicable Sub-Collateral Agent) shall (at the sole cost and expense of the Company), promptly deliver all Possessory Collateral, if any, to the successor Collateral Agent (or the applicable Sub-Collateral Agent) together with any necessary endorsements reasonably requested by the successor Collateral Agent (or the applicable Sub-Collateral Agent) (or make such other arrangements as shall be reasonably requested by the successor Collateral Agent (or the applicable Sub-Collateral Agent) to allow the successor Collateral Agent (or the applicable Sub-Collateral Agent) to obtain control of such Shared Collateral). Pending delivery or granting control to the successor Collateral Agent (or the applicable successor Sub-Collateral Agent), each Senior Secured Party Representative agrees to hold (including by way of control) any Shared Collateral, from time to time in its possession or under its control, as gratuitous bailee or gratuitous agent for the benefit of each other Secured Party and any permitted assignee, solely for the purpose of perfecting the security interest granted in such Shared Collateral, if any, pursuant to the applicable Security Documents, in each case, subject to the terms and conditions of this Section 2.09.

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(b)    The duties or responsibilities of the Collateral Agent, the Sub-Collateral Agents and each Senior Secured Party Representative under this Section 2.09 shall be limited solely to holding (including by way of control) any Shared Collateral as gratuitous bailee or gratuitous agent, as applicable for the benefit of each other Secured Party for purposes of perfecting the Lien held by such Secured Parties therein.

SECTION 2.10.    Liens and Security Agreements. Subject to Section 2.12 and Section 2.01(a), the parties hereto agree that it is their intention that the LC Priority Collateral be for the benefit of all Secured Parties (subject to the priorities set forth in Section 2.01(a) hereof) and the S&O Priority Collateral be solely for the benefit of Aron and the Collateral Agent (subject to the priorities set forth in Section 2.01(b) hereof); provided, that this provision will not be violated with respect to any particular Series if the Security Documents for such Series prohibits the Senior Secured Party Representative for that Series from accepting a Lien on such asset or property or such Senior Secured Party Representative otherwise expressly declines to accept a Lien on such asset or property or in connection with adequate protection Liens in an Insolvency or Liquidation Proceeding. In furtherance of, but subject to, the foregoing, subject to the other provisions of this Agreement:

(a)    the LC Facility Agent and the LC Secured Parties specifically disclaim and decline any lien on or security interest in S&O Priority Collateral;

(b)    the parties hereto agree upon request by the Collateral Agent, any Sub-Collateral Agent or any Senior Secured Party Representative, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in LC Priority Collateral, S&O Priority Collateral and Shared Collateral, and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the Security Documents; and

(c)    the Company shall ensure that the documents and agreements creating or evidencing the Liens on Shared Collateral securing the Secured Obligations shall be in all material respects the same document or the same forms of documents as one another.

In no event shall the LC Facility Agent or the LC Secured Parties exercise their rights hereunder in a manner that would interfere with Aron’s access rights to property owned by Aron and held by the Company in accordance with the S&O Agreement and related transaction documents.

SECTION 2.11.    Modifications.

(a)    Subject to the remainder of this Section 2.11, none of the Collateral Agent, the Sub-Collateral Agents and any Senior Secured Party Representative shall enter into any Modification of (i) the Security Agreement that (A) has the effect of changing the priority and application of funds or (B) constitutes a release of all or a material portion of the Collateral from the Lien of the Security Agreement or any other Security Document, or (ii) this Agreement unless (in addition to any requirements set forth in the relevant Secured Transaction Documents, if applicable), in each case, the Collateral Agent (at the instruction of (x) the LC Facility Agent as the Controlling Agent for LC Priority Collateral and (y) Aron as the Controlling Agent for S&O Priority Collateral), each Senior Secured Party Representative (acting in accordance with the applicable Secured Transaction Document) and the Company has provided their Consent to such Modification in writing.

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(b)    Subject to Section 2.11(a) above, each Secured Party agrees that the Collateral Agent (at the instruction of the Controlling Agents as described above), any Series of Secured Parties, or any Senior Secured Party Representative, as applicable, may, subject to the requirements thereof, enter into any Modification of any Secured Transaction Document to which it is a party in such capacity that does not violate this Agreement or any other Secured Transaction Document. Subject to Section 2.11(a) above, the Collateral Agent and the Senior Secured Party Representatives may, without the Consent of any other Secured Party but with written notice to each Secured Party, enter into Modifications of this Agreement for the purpose of making technical corrections to or clarifications of this Agreement that do not affect the rights or obligations of any Secured Party or the Collateral Agent, or, to the extent that the rights or obligations of any Secured Party or the Collateral Agent are affected, the consent of only the affected Secured Party or Collateral Agent, as applicable.

(c)    Neither this Agreement nor any provision hereof, which by the terms of this Agreement requires the Company’s Consent or which increases the obligations or reduces the rights of the Company, may be terminated or Modified without the written Consent of the Company.

(d)    None of this Agreement or any other Security Document to which the Collateral Agent (or any Sub-Collateral Agent) is a party nor any provision hereof or thereof, which by the terms of this Agreement or such other Security Document requires the Collateral Agent’s (or the applicable Sub-Collateral Agent’s) consent or which increases the obligations or reduces the rights, protections, immunities and indemnities of the Collateral Agent (or the applicable Sub-Collateral Agent’s), may be terminated or Modified without the written Consent of the Collateral Agent.

(e)    [Reserved].

(f)    Notwithstanding anything set forth herein or in the LC Facility Agreement or the S&O Agreement to the contrary, (i) Aron shall not in any way be, or be deemed, restricted or limited in its dealings with the Company and/or its Affiliates, including with respect to discussions and negotiations regarding modifications or adjustments that Aron may, in its sole and unfettered discretion, wish to discuss, negotiate and implement with the Company and/or its Affiliates, (ii) Aron may, in its sole and unfettered discretion, grant in favor of or enter into with the Company and/or any of its Affiliates any waivers, forbearance agreements or similar arrangements, in each case, in respect of the S&O Agreement and related agreements, (iii) neither the LC Facility Agent nor any LC Facility Lender shall in any way be, or be deemed, restricted or limited in its dealings with the Company and/or its Affiliates, including with respect to discussions and negotiations regarding modifications or adjustments that the LC Facility Agent or any LC Facility Lender may, in its sole and unfettered discretion, wish to discuss, negotiate and implement with the Company and/or its Affiliates, and (iv) the LC Facility Agent or any LC Facility Lender may, in its sole and unfettered discretion, grant in favor of or enter into with the Company and/or any of its Affiliates any waivers, forbearance agreements or similar arrangements, in each case, in respect of the LC Facility Agreement and related agreements.

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(g)    Notwithstanding anything set forth herein or in the LC Facility Agreement or the S&O Agreement to the contrary, no amendment, modification, termination, waiver or consent in respect of (i) (A) the definition of “J. Aron Payment Obligation” set forth in the LC Facility Agreement, (B) the definition of “Liquidity” under the LC Facility Agreement or any decrease in the minimum Liquidity amount required to be maintained by the Company, and (C) any notice or cure period under the LC Facility Agreement with respect to (1) failure to make the payments set forth under Section 9.01(a) of the LC Facility Agreement or (2) any other event of default or similar occurrence that is not related to the failure to make such payments that, were such period to lapse following either such occurrence, would result in the LC Facility Agent having the right to accelerate the payment or performance obligations thereunder will be effective, in each case, without written notice to, and the consent of, of Aron, such consent not be unreasonably withheld, or (ii) (A) the definition of “Liquidity” under the S&O Agreement or any decrease in the minimum Liquidity amount required to be maintained by the Company, without written notice to, and consent of, all of the LC Facility Lenders, such consent not to be unreasonably withheld; (B) Section 5.13 of the S&O Agreement or any of the defined terms used therein without written notice to, and consent of, all of the LC Facility Lenders, such consent not to be unreasonably withheld; or (C) any notice or cure period under the S&O Agreement with respect to (1) failure to make material payments or (2) any other event of default or similar occurrence that is not related to the failure to make a material payment that, were such period to lapse following either such occurrence, would result in Aron having the right to accelerate the payment or performance obligations thereunder, in each case, without written notice to, and consent of, the Required Lenders (as defined under the LC Facility Agreement), such consent not to be unreasonably withheld; and (D) the definitions of “J. Aron Payment Obligation”, “LC Eligible Refinery Procurement Contract”, “LC Related Aron Procurement Contract”, “Crude Oil”, “Crude Intake Point”, “Third Party Supplier”, “SPM”, or “SPM Delivery Point” set forth in the S&O Agreement will be effective without the prior written consent of the LC Facility Agent, which consent shall not be unreasonably withheld or delayed and shall be provided only with the consent of the Required Lenders (as defined in the LC Facility Agreement).

SECTION 2.12.    Cash Collateral Accounts; Amounts Not Subject to Sharing.

(a)    The LC Facility Agent, as Sub-Collateral Agent, shall have a first priority security interest in the funds on deposit in the Collection Accounts for the benefit of the Secured Parties, and, except after Discharge in Full of the LC Facility Obligations, no Secured Party other than the LC Facility Agent and the LC Secured Parties shall have rights to any distribution from, payments on account of, or proceeds from the Collection Accounts. The LC Facility Agent, as Sub-Collateral Agent, shall solely take instruction from the LC Facility Lenders in accordance with the LC Facility Agreement with respect to the Collection Accounts (and shall not take instruction from any other Secured Parties), and nothing contained in this Agreement shall be construed to impair the rights of the LC Facility Agent or any LC Secured Parties to exercise their respective rights and remedies with respect to any funds available in the Collection Accounts. Upon the Discharge in Full of the LC Facility Obligations (including with respect to any letters of credit that remain outstanding after the LC Facility Agreement has expired or been terminated, the cash collateralization thereof as contemplated in clause (i)(B) of the definition of Discharge in Full), Aron, as the Controlling Agent, shall have rights to any distribution from, payments on account of, proceeds from or funds credited to the Collection Accounts (provided that, so long as a letter of credit is outstanding and cash collateral has been posted with respect thereto, such cash collateral shall not constitute funds subject to the foregoing rights of Aron). The Collateral Agent shall not be obligated to take any actions or directions with respect to the Collection Accounts except as expressly directed by the Controlling Agent and shall not be liable to the LC Secured Parties or any other Person with respect thereto.

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(b)    Except to the extent provided in any Secured Transaction Documents to which it is a party, no Secured Party shall have any obligation to share any amounts received or deemed received by it in respect of any Secured Obligations owed to it from separate insurance, additional insured liability insurance, credit default swap protection or other similar protection against loss arranged by such Secured Party for its own account in respect of any such Secured Obligations (which amounts shall be for the sole benefit of such Secured Party).

SECTION 2.13.    Payment Obligation Confirmation. Execution and delivery of a Payment Obligation Confirmation (as defined in the LC Facility Agreement) by Aron will be deemed to be a binding agreement by Aron with respect to the J. Aron Payment Obligation (as defined in the LC Facility Agreement) related thereto. Subject only to the Issuance Condition and delivery at the Crude Intake Point (as defined in the S&O Agreement; whether owned and operated by the Company or by any third parties on behalf of the Company) and arising immediately upon the applicable Crude Oil (as defined in the S&O Agreement) having passed the Crude Intake Point following its discharge at the SPM (as such term is defined in the S&O Agreement as of the date hereof) and without regard to whether title to said Crude Oil has passed as contemplated by the terms of the S&O Agreement or the applicable LC Related Aron Procurement Contract (as defined in the S&O Agreement as of the date hereof) or any subsequent actual or purported transfers of title to such Crude Oil, Aron will irrevocably, absolutely and unconditionally make payment in cash of such J. Aron Payment Obligation, without recoupment, set-off, counterclaim, defense, or deduction of any kind into the LC Facility Collection Account other than any such rights set forth in Section 5.13(d)(ii) of the S&O Agreement; provided that the foregoing shall not limit Aron’s rights or remedies, or any claims it may assert, against the Company; provided further that any such rights, remedies, or claims asserted by Aron against the Company shall not affect Aron’s obligation to make payment of any J Aron Payment Obligation in accordance with the foregoing.

ARTICLE III
Existence and Amounts of Liens and Obligations

SECTION 3.01.    Determinations with Respect to Amounts of Liens and Obligations.

(a)    Whenever the Collateral Agent, any Sub-Collateral Agent or any Senior Secured Party Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any Secured Obligations of any Series, or the Shared Collateral subject to any Lien securing the Secured Obligations of any Series, it may request that such information be furnished to it in writing by each Senior Secured Party Representative (on behalf of itself and the Secured Obligations which it represents) and shall be entitled to conclusively rely on the basis of the information so furnished. In the event that such requested information is not received with respect to all Secured Obligations, the Collateral Agent (or any Sub-Collateral Agent) shall be entitled to refrain, and shall be fully protected in so refraining, from taking any action. The Collateral Agent, each Sub-Collateral Agent and each Senior Secured Party Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Company, any Secured Parties or any other Person as a result of such determination.

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(b)    In no event shall the Collateral Agent (or any Sub-Collateral Agent) have any obligation to determine, or have any liability with respect to, the amount of Secured Obligations owing to any of the Secured Parties or whether any Secured Obligations are in fact outstanding under any Secured Transaction Documents. Upon the Discharge in Full of the Secured Obligations for which it represents, the Senior Secured Party Representative of such Secured Obligations shall provide written notice of such discharge to the Collateral Agent, the Sub-Collateral Agents, if any, and to the other Senior Secured Party Representatives.

SECTION 3.02.    Application of Proceeds; LC Facility Collection Account

(a)    Whether or not any Insolvency or Liquidation Proceeding has been commenced, any Collateral or any proceeds thereof received in connection with the sale or other disposition of, or collection or realization on, such Collateral and proceeds thereof shall be applied (subject to Section 1.03 and Section 3.02(b) below) in accordance with the priority set forth in Section 2.01(a) and (b).

(b)    The Company has agreed under the S&O Agreement that if the aggregate amount held in the LC Facility Collection Account exceeds an aggregate amount that is required to be held in the LC Facility Collection Account with respect to all then outstanding Letters of Credit issued under the LC Facility Agreement (taking into consideration any amounts required to be posted by the Company as cash collateral before or after Discharge in Full of the LC Facility Obligations), then, so long as no Default or Event of Default under the LC Facility Agreement has occurred and is continuing at such time, the Company will, to the extent it may do so, cause such excess amount to be transferred to the Designated Controlled Account;  provided that any funds deposited in the LC Facility Collection Account in anticipation of and prior to the issuance of a Letter of Credit (as defined in the LC Facility Agreement) that has been requested under the LC Facility Agreement (including any deposited funds with respect to an earlier Letter of Credit that, following such Letter of Credit request, have become available for release but which the Company has elected or is required to have retained on deposit in anticipation of such requested Letter of Credit) shall not be included in the aggregate amount held in the LC Facility Collection Account for purposes of the foregoing determination until either such requested Letter of Credit is issued or such request is (for any reason) withdrawn, rejected or no longer being made.

ARTICLE IV
Collateral Agency; Administration of the Collateral

SECTION 4.01.    Administration of Collateral. The Collateral Agent (or any applicable Sub-Collateral Agent) shall administer the Collateral in the manner contemplated by and hold the Collateral and any Lien thereon for the benefit of the Secured Parties pursuant to, the terms of the Security Agreement, the LC Facility Agreement, S&O Agreement, this Agreement, and any other Security Document or Secured Transaction Document to which the Collateral Agent (or such applicable Sub-Collateral Agent) is a party. The Collateral Agent (or any applicable Sub-Collateral Agent) may exercise such rights and remedies with respect to the Collateral as are granted to it under the Security Agreement, the LC Facility Agreement, the S&O Agreement, this Agreement, the other Secured Transaction Documents to which the Collateral Agent (or such applicable Sub-Collateral Agent) is a party and applicable law.

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SECTION 4.02.    Appointment; Duties; Liabilities of Collateral Agent.

(a)    Each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof and the other Secured Transaction Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent hereby accepts the appointment in the foregoing clause and hereby agrees to act in relation to the Collateral on the terms and conditions expressly set forth herein and in the other Secured Transaction Documents to which it is a party. The Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including without limitation any Sub-Collateral Agent, shall be fully justified in failing or refusing to take any action under this Agreement, any other Security Document or any Secured Transaction Document to which it is party unless it shall (i) receive instruction from the applicable Controlling Agent and (ii) be indemnified to its reasonable satisfaction by the applicable Series of Secured Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action, and any action taken or failure to act by it pursuant thereto shall be binding upon all the Secured Parties. Subject to the foregoing, the applicable Sub-Collateral Agent shall affirmatively act under this Agreement, the other Security Documents and Secured Transaction Documents in accordance with any instructions by the Controlling Agent. Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, any Sub-Collateral Agent, shall incur any liability for any determination made or instruction given by the Controlling Agent. In no event shall the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, any Sub-Collateral Agent, be required to take any action that exposes it to personal liability, to expend or risk its own funds or otherwise incur any liability for which it is not indemnified to its satisfaction or to take any action that is contrary to this Agreement or any applicable law. If the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, any Sub-Collateral Agent, shall request any instructions, it shall be entitled to refrain from such act or taking such action unless and until it shall have received instructions from the applicable Controlling Agent, and it shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Secured Party nor any other Person shall have any right of action whatsoever against the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, any Sub-Collateral Agent, as a result of its acting or refraining from acting hereunder in accordance with the instructions of the applicable Controlling Agent. Each of the LC Facility Agent and Aron hereby direct the Collateral Agent to enter into the Acknowledgment Agreement, and the parties hereto agree that the protective provisions for the benefit of the Collateral Agent set forth in Article IV hereof apply with respect to the Acknowledgment Agreement.

(b)    The Collateral Agent and any Sub-Collateral Agent may execute any of their respective duties as collateral agent by or through agents, subagents, attorneys, custodians or nominees, including without limitation the LC Facility Agent or Aron in any such capacity, and are entitled to advice of counsel concerning all matters pertaining to such duties. Neither the Collateral Agent nor any Sub-Collateral Agent is or will be deemed responsible for the negligence or misconduct of any agents, subagents, or attorneys-in-fact selected by it with reasonable care, provided that, notwithstanding the foregoing, the parties hereto agree that the Collateral Agent shall have no liability for (x) the selection of the LC Facility Agent or the S&O Agent (as such term is defined in the Security Agreement) as a Sub-Collateral Agent under this Agreement, any other Security Document, or any Secured Transaction Document (including such selection being irrevocable) or the assignment or delegation of any rights or duties by the Collateral Agent to such Persons, or (y) any actions taken or not taken by the LC Facility Agent or the S&O Agent in their capacity as a Sub-Collateral Agent.

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(c)    Each of the Secured Parties hereby acknowledges that, as of the Effective Date, US Bank, in its capacity as Collateral Agent, has (i) appointed the LC Facility Agent as Sub-Collateral Agent with respect to the LC Priority Collateral pursuant to Section 2(i) of the Security Agreement, (ii) appointed the S&O Agent as Sub-Collateral Agent with respect to the S&O Priority Collateral pursuant to Section 2(h) of the Security Agreement, and (iii) therefore, notwithstanding anything to the contrary contained herein, in any other Security Document, or in any Secured Transaction Document but without limiting its obligations under Sections 2(h) or (i) of the Security Agreement, US Bank, in its capacity as Collateral Agent, has no duties or obligations under this Agreement, any other Security Document, or any Secured Transaction Document to which it is a party, other than to hold the Liens on the Collateral granted to it, to hold any Collateral in its possession as expressly required by the terms of this Agreement and the other Security Documents to which it is a party and as otherwise expressly provided herein and in the Security Documents and not expressly delegated to a Sub-Collateral Agent. The LC Facility Agent agrees that it shall not resign as Sub-Collateral Agent with respect to the LC Priority Collateral until Discharge in Full of the LC Facility Obligations unless and until a replacement Sub-Collateral Agent with respect to the LC Priority Collateral has been appointed and has accepted such appointment. Aron agrees that it shall not resign as Sub-Collateral Agent with respect to the S&O Priority Collateral until Discharge in Full of the S&O Obligations unless and until a replacement Sub-Collateral Agent with respect to the S&O Priority Collateral has been appointed and has accepted such appointment.

(d)    The LC Facility Agent, as the Controlling Agent for LC Priority Collateral, shall have the sole right to instruct the Collateral Agent, any Sub-Collateral Agent, and co-agents, sub-agents and attorneys-in-fact thereof, to act or refrain from acting with respect to the LC Priority Collateral, and none of the Collateral Agent, any Agent and any of their respective co-agents, sub-agents and attorneys-in-fact shall follow any instructions with respect to the LC Priority Collateral from any other person. Aron, as the Controlling Agent for the S&O Priority Collateral, shall have the sole right to instruct the Collateral Agent, any Sub-Collateral Agent, and co-agents, sub-agents and attorneys-in-fact thereof to act or refrain from acting with respect to the S&O Priority Collateral, and none of the Collateral Agent, any Sub-Collateral Agent, and any of their respective co-agents, sub-agents and attorneys-in-fact shall follow any instructions with respect to the S&O Priority Collateral from any other person. None of the Collateral Agent, any other Agent and any of their respective co-agents, sub-agents and attorneys-in-fact thereof shall have any liability for acting in accordance with any direction from the LC Facility Agent as Controlling Agent or, if applicable, any LC Secured Party with respect to the LC Priority Collateral under its control. None of the Collateral Agent, any other Agent and any of their respective any co-agents, sub-agents and attorneys-in-fact thereof shall have any liability for acting in accordance with any direction from Aron as Controlling Agent with respect to the S&O Priority Collateral. Aron will not instruct the Collateral Agent or any co-agents, sub-agents and attorneys-in-fact thereof to commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interests in or realize upon, or take any other action available to it in respect of, the LC Priority Collateral. The LC Facility Agent will not instruct the Collateral Agent or any co-agents, sub-agents and attorneys-in-fact thereof to commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interests in or realize upon, or take any other action available to it in respect of, the S&O Priority Collateral.

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(e)    Each of the Secured Parties hereby authorizes the Collateral Agent and the LC Facility Agent and Aron as Sub-Collateral Agents to take such actions in the name and for the benefit of the Secured Parties under the provisions of the Secured Transaction Documents to which it is a party and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent and the Sub-Collateral Agents by the terms of the Security Documents and Secured Transaction Documents to which it is a party, together with such other powers as are reasonably incidental thereto, and to execute, deliver and perform each Security Document and Secured Transaction Document to which it is party acting in the name (as may be necessary) and for the benefit of the Secured Parties.

(f)    In furtherance of the foregoing, (i) Aron as the Non-Controlling Secured Party acknowledges and agrees that LC Facility Agent, as the Controlling Agent and as the Sub-Collateral Agent with respect to the LC Priority Collateral, shall be entitled to, for the benefit of the Secured Parties, to sell, transfer or otherwise dispose of or deal with any LC Priority Collateral as provided herein and in the Security Documents, without regard to any rights to which Aron, as the Non-Controlling Secured Party would otherwise be entitled as a result of the Secured Obligations held by such Non-Controlling Secured Party, and (ii) LC Facility Agent and the LC Secured Parties as the Non-Controlling Secured Parties acknowledge and agree that Aron, as the Controlling Agent and as the Sub-Collateral Agent with respect to the S&O Priority Collateral, shall be entitled to, for the benefit of the Secured Parties, to sell, transfer or otherwise dispose of or deal with any S&O Priority Collateral as provided herein and in the Security Documents, without regard to any rights to which the LC Facility Agent and the LC Secured Parties, as the Non-Controlling Secured Parties, would otherwise be entitled as a result of the Secured Obligations held by such Non-Controlling Secured Parties. Without limiting the foregoing, (i) Aron as the Non-Controlling Secured Party acknowledges and agrees that none of the Collateral Agent, the LC Facility Agent or any other Secured Party shall have any duty or obligation first to marshal or realize upon any type of LC Priority Collateral securing any of the Secured Obligations, or to sell, dispose of or otherwise liquidate all or any portion of such LC Priority Collateral (or any other LC Priority Collateral securing any Secured Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation, and (ii) the LC Facility Agent and the LC Secured Parties as the Non-Controlling Secured Parties acknowledge and agree that none of the Collateral Agent, Aron or any other Secured Party shall have any duty or obligation first to marshal or realize upon any type of S&O Priority Collateral securing any of the Secured Obligations, or to sell, dispose of or otherwise liquidate all or any portion of such S&O Priority Collateral (or any other S&O Priority Collateral securing any Secured Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the Secured Parties waives any claim it may now or hereafter have against the Collateral Agent and any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, the Controlling Agent or any other Secured Party of any other Series arising out of (i) any actions that do not violate the express terms of this Agreement which any Senior Secured Party Representative or any Secured Party takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the Secured Obligations from any account debtor, guarantor or any other party) in accordance with the applicable Security Documents or any other applicable agreement related thereto or to the collection of the Secured Obligations or the valuation, use, protection or release of any security for the Secured Obligations, (ii) any election by any Senior Secured Party Representative or any Secured Party, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law by the Company as debtor-in-possession.

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(g)    Notwithstanding any provision to the contrary elsewhere in the Security Documents or other Secured Transaction Documents, (i) neither the Collateral Agent nor any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall have any duties or responsibilities, except those expressly set forth herein and in the other Security Documents and Secured Transaction Documents to which the Collateral Agent or any such co-agent, sub-agent or attorney-in-fact, including, without limitation, the Sub-Collateral Agents, is a party, or any fiduciary relationship with, or obligation to, any Secured Party or any other Person and (ii) no implied covenants, duties, obligations, liabilities, functions or responsibilities shall be read into the Security Documents or other Secured Transaction Documents or otherwise exist against the Collateral Agent or any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, thereof. Without limiting the foregoing, neither the Collateral Agent nor any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, thereof shall be required to take any action which is contrary to this Agreement or any other Security Documents or Secured Transaction Documents to which it is a party or applicable law. Neither the Collateral Agent not any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, thereof shall be responsible or liable for any inaccuracy or error in the performance or observance on its part of any of its duties under the Security Documents or other Secured Transaction Documents to which it is party that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other Person to comply with the terms thereof. Neither the Collateral Agent nor any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, thereof nor any of their respective officers, directors, employees, attorneys, or agents shall be liable to the Company, any Secured Party or any Person for any action taken or omitted under this Agreement or under the other Security Documents or Secured Transaction Documents or in connection therewith, except to the extent caused by bad faith, gross negligence or willful misconduct of such Person, as determined by a court of competent jurisdiction in a final, non-appealable judgment.

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SECTION 4.03.    Rights of Collateral Agent.

(a)    The Collateral Agent and each such co-agent, sub-agent, and attorney-in-fact, including, without limitation, the Sub-Collateral Agents, shall be entitled to seek the advice of independent counsel, accountants, experts and other advisors selected by it concerning all matters pertaining to its rights and duties and shall not be liable for any action or inaction based in good faith on such advice.

(b)    Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, nor any of their respective officers, directors, employees, agents, attorneys, or affiliates shall be (i) liable to any of the Secured Parties or any other Person for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement, any other Security Document or any Secured Transaction Document or (ii) responsible in any manner for any recitals, statements, representations or warranties made by the Company or any other party to a Secured Transaction Document or any Authorized Officer of any thereof contained in any Secured Transaction Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, under or in connection with, this Agreement, any other Security Document, any Secured Transaction Document or any Collateral or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, any other Security Document or any Secured Transaction Documents or for any failure of the Company or any other party to this Agreement, any other Security Document or any Secured Transaction Document to perform its obligations hereunder or thereunder, except to the extent expressly agreed by it in the applicable Secured Transaction Document or for its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final non appealable judgment). Neither the Collateral Agent nor any of its co-agents, sub-agents or attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be under any obligation to ascertain or to inquire as to the observance or performance of any of the terms, conditions or covenants of this Agreement, any other Security Document or any Secured Transaction Document, or to inspect the properties, books or records of the Company or any other party to this Agreement, any other Security Document or any Secured Transaction Document.

(c)    The Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, , including, without limitation, the Sub-Collateral Agents, shall be fully entitled to request, receive and rely and shall be fully protected in relying upon any request, instrument, direction, instruction, communication, opinion, note, writing, resolution, notice, consent, certificate, affidavit, letter, statement, order or other document (whether in original or electronic form) reasonably believed by it to be genuine and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel, independent accountants and other experts selected with due care by it. Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall have any duty or obligation to (i) verify, investigate, ascertain or determine whether any request, instrument, note, writing, resolution, consent, order, statement, opinion, certificate, direction, instruction, notice, communication or document provided to it contains accurate and complete information or whether any individual signing such request, instrument, note, writing, resolution, consent, order, statement, certificate, direction, instruction, notice, communication or document has the authority such individual purports to have or (ii) take any discretionary action or privilege or exercise any discretionary powers.

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(d)    The powers conferred on the Collateral Agent (and by extension to any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents) hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of the Collateral in its possession and the accounting for monies actually received by it hereunder, neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall have any other duty as to the Collateral, whether or not the Collateral Agent, any other co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, or any of the other Secured Parties has or is deemed to have knowledge of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the Collateral. Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be liable for any interest on any money received by it. The Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which it accords similar assets held for the benefit of third parties.

(e)    [Reserved].

(f)    The Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, and their respective Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Company and the other parties to the Secured Transaction Documents, without regard to its acting as the Collateral Agent or co-agent, sub-agent or attorney-in-fact hereunder and under the other Secured Transaction Documents. With respect to the extensions of credit made by it under a Secured Transaction Document, if any, the Collateral Agent and each co-agent, sub-agent and attorney-in-fact, including, without limitation, the Sub-Collateral Agents, shall have the same rights and powers under this Agreement and the other Secured Transaction Documents as any other Secured Party making a comparable extension of credit to the Company and may exercise the same as though it were not the Collateral Agent or a co-agent, sub-agent or attorney-in-fact hereunder.

(g)    For the purposes of this Agreement, the other Security Documents and all Secured Transaction Documents, neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to have knowledge of, (i) the occurrence of any Default or Event of Default, or any other triggering event under the Security Documents or Secured Transaction Documents unless and until such Person has received written notice thereof from the Controlling Agent or the Company or, with respect to the LC Facility Agent or Aron, in any such capacity, it has actual knowledge thereof, (ii) the existence, the content, or the terms and conditions of, any other agreement, instrument or document, in each case, to which it is not a party or beneficiary (so long as, in such capacity as a beneficiary, it has received such other agreement, instrument or document), whether or not referenced herein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Security Document or Secured Transaction Document, (iv) the validity, enforceability, effectiveness or genuineness of any Secured Transaction Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Articles II or III or Section 5.02 of the LC Facility Agreement or elsewhere in any Security Document or other Secured Transaction Document. The Sub-Collateral Agents or any co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, may take such action with respect to such Event of Default as is required and permitted to be taken by it pursuant to each Security Document or other Secured Transaction Document at the written direction of the Controlling Agent or Controlling Secured Parties following the occurrence thereof, and neither any Sub-Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall have any liability for acting in accordance with any such direction. Without prejudice to the foregoing, none of the knowledge or information that any department or division of the Collateral Agent, any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, or any of their respective Affiliates may have from time to time shall be attributed to it, and it shall have no duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Company that is communicated to or obtained by it or any of its Affiliates in any capacity.

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(h)    Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to have knowledge of facts and circumstances unless it has received written notice of such facts and circumstances in accordance with Section 6.01, nor shall it have any obligation to perform any actions or respond to any matters without express authorization to do so.

(i)    Subject to Section 2.04, notwithstanding anything to the contrary contained herein or in any other Secured Transaction Document, in no event shall the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, be obligated to execute or deliver any document evidencing any release or re-conveyance without receipt of a certificate executed by a Senior Officer of the Company certifying that such release is permitted by this Agreement, the other Security Documents, and the other Secured Transaction Documents, and that all conditions precedent to such release or re-conveyance (if any) have been complied with.

(j)    The parties hereto acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the Patriot Act and its implementing regulations, the Collateral Agent in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Collateral Agent. Each party hereby agrees that it shall provide the Collateral Agent with such information as the Collateral Agent may reasonably request that will help the Collateral Agent to identify and verify each party’s identity, including without limitation each party’s name, physical address, tax identification number, organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.

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(k)    Any entity into which the Collateral Agent may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, or any entity succeeding to the business of the Collateral Agent shall be, subject to the satisfaction of applicable “know-your-customer” requirements of the Senior Secured Party Representatives, the successor of the Collateral Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

(l)    Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, will be liable for any delay (or any related consequences) in crediting an account with an amount required under this Agreement to be paid by it if it has taken all necessary steps to comply with the regulations or operating procedures of any recognized clearing or settlement system used by it for that purpose.

(m)    Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be liable for any error of judgment made in good faith unless it shall be proved that it was grossly negligent in ascertaining the pertinent facts (as determined by a court of competent jurisdiction in a final, non-appealable judgment).

(n)    Whether or not therein expressly so provided, every provision of this Agreement, each Security Document, and each other Secured Transaction Document relating to the conduct or affecting the liability of or affording protection to the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be deemed to incorporate the provisions of Section 4.02 and this Section 4.03 and such provisions will also be deemed to extend to each of their respective co-agents, sub-agents, attorneys, custodians, an nominees, whether or not so stated.

(o)    The Collateral Agent may, from time to time, request that the Company and each Senior Secured Party Representative deliver a certificate (upon which the Collateral Agent may conclusively rely) setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement or any related document together with a specimen signature of such authorized officers.

(p)    In order to comply with applicable Tax laws, rules and regulations (“Applicable Tax Law”) related to this Agreement or any agreement supplemental hereto, the parties hereto each agree: (i) to provide to the Collateral Agent sufficient information about such parties and/or transactions (including any modification to the terms of such transactions) so it can determine whether it has any Tax-related obligations under Applicable Tax Law, and (ii) that the Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be entitled to make any withholding or deduction from payments this Agreement or any agreement supplemental hereto to the extent necessary to comply with Applicable Tax Law for which it shall not have any liability. The Company agrees to indemnify the Collateral Agent and each of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, for, and to hold each harmless against, any losses it may suffer due to the actions it takes to comply with such Applicable Tax Law. The terms of this section shall survive the termination of this Agreement or the earlier resignation or removal of the Collateral Agent or applicable co-agent, sub-agent or attorney-in-fact hereunder.

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(q)    In the event of any disagreement between the Controlling Agent and any Senior Secured Party Representative, the Controlling Agent shall control with respect to its applicable Collateral. In the event of any disagreement as to the identity of the Controlling Agent resulting in adverse claims or demands being made with respect to the subject matter of this Agreement, or in the event that the Collateral Agent, in good faith, is in doubt as to any action it should take hereunder, the Collateral Agent may refuse to comply with any claims or demands and refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Collateral Agent shall not be liable in any way or to any person for its failure or refusal to act, and the Collateral Agent shall be entitled to continue to so refuse to act and refrain from acting until the Collateral Agent shall have received either (i) a joint written agreement executed by the Controlling Agent and such disputing party, or (ii) a final non-appealable order, judgment or decree by a court of competent jurisdiction, in which case the Collateral Agent shall be authorized to act in accordance with such written agreement or final court order, judgment or decree without incurring liability therefor. In the event there is a dispute between the LC Secured Parties and Aron with respect to which Secured Parties are liable for fees, costs, expenses, indemnities or other amounts due to the Collateral Agent or any Sub-Collateral Agent hereunder, without waiving any rights either of them may have against the other and expressly reserving any such rights, each of the LC Secured Parties and Aron shall timely pay, to the extent not paid by the Company in a timely manner, such amounts to the Collateral Agent as required hereby in accordance with their pro rata share of their respective Secured Obligations.

SECTION 4.04.    Resignation; Removal of Collateral Agent. Subject to Section 4.02(c), the Collateral Agent or any of its co-agents, sub-agents and attorneys-in-fact, excluding the Sub-Collateral Agents, may (a) resign its appointment as Collateral Agent or co-agent, sub-agent or attorney-in-fact hereunder without providing any reason therefor by giving thirty (30) days’ prior written notice to the Senior Secured Party Representatives and the Company and (b) be removed at any time with cause by the Senior Secured Party Representatives, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent or co-agent, sub-agent or attorney-in-fact, if applicable, under this Article IV. If the Collateral Agent (or any applicable Sub-Collateral Agent) shall resign or be removed as Collateral Agent, then the Senior Secured Party Representatives acting at the direction of the requisite Secured Parties which it represents shall (and if no such successor shall have been appointed within thirty (30) days of the Collateral Agent’s resignation or removal, the Collateral Agent may) petition a court of competent jurisdiction for the appointment of a successor collateral agent hereunder, which successor agent shall (i) be any United States commercial bank(s) or financial institution(s) or a United States branch or subsidiary of a foreign commercial bank(s) or financial institution(s) having, or guaranteed or confirmed by an entity having, a long-term unsecured senior debt rating of at least Baa1 or better by Moody’s or BBB+ or better by S&P or Fitch and a combined capital and surplus of not less than one billion Dollars (US$1,000,000,000), (ii) have an office in New York, New York and (iii) so long as the Collateral Agent has not received notice that an Event of Default has occurred and is continuing under any Secured Transaction Document, reasonably acceptable to the Company, whereupon such successor agent shall succeed to the rights, powers and duties of the Collateral Agent, and the term “Collateral Agent” shall mean such successor agent effective upon its appointment, and the former Collateral Agent’s rights, powers and duties and obligations as Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the former Collateral Agent shall deliver all Collateral then in its possession to the successor Collateral Agent) or any of the other Secured Parties. After resignation or removal hereunder as Collateral Agent, the provisions of this Agreement, including but not limited to this Article IV, shall continue to inure to the former Collateral Agent’s benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent.

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SECTION 4.05.    Substitute Collateral Agent. If at any time the Collateral Agent shall reasonably determine that it shall be necessary or appropriate under any applicable law or in order to permit action to be taken hereunder, the Company shall execute and deliver all instruments necessary to appoint any Person as a co-Collateral Agent or substitute Collateral Agent with respect to all or any portion of the Collateral, in any case with such powers, rights, duties, obligations and immunities conferred upon the Collateral Agent hereunder as may be specified therein. If the Company shall refuse to join in the execution of any such instrument within fifteen (15) Business Days of any written request therefor by the Collateral Agent or if any Senior Secured Party Representative has given written notice to the Collateral Agent that an Event of Default has occurred and is continuing, then in any such instance the Collateral Agent may, but shall not be obligated to, act under the foregoing provisions without the concurrence of the Company. The Company hereby irrevocably makes, constitutes and appoints the Collateral Agent as the Company’s agent and attorney-in-fact to act for the Company under the provisions of this Section 4.05.

SECTION 4.06.    Fees and Expenses; Indemnification.

(a)    The Company will pay (i) the reasonable and documented legal and other professional fees and costs of the Collateral Agent and one primary counsel and one local counsel, if applicable, in each applicable jurisdiction, for the Collateral Agent with respect to the administration of this Agreement and the transactions contemplated hereby (including, without limitation, in connection with the resignation or removal of the Collateral Agent and the appointment of a successor Collateral Agent in accordance with the terms hereof), the preservation of any of its respective rights under the this Agreement or in connection with any amendments, waivers or consents or other implementation and administrative actions required under this Agreement, (ii) all fees payable to the Collateral Agent in connection with the performance of its duties under this Agreement in accordance with its fee letter, (iii) all actual out-of-pocket costs and expenses incurred by the Collateral Agent in connection with the enforcement of any of its (or any Secured Party’s) rights or remedies under this Agreement, any Secured Transaction Document or the Acknowledgment Agreement following the occurrence of a Default or an Event of Default (including the reasonable and documented fees and costs of its legal counsel) and (iv) without limiting the preceding clause, all other actual, reasonable and documented out-of-pocket costs and expenses incurred by the Collateral Agent in connection with the administration of the transactions contemplated hereby, the preservation of its rights under this Agreement, any other Security Document, any Secured Transaction Document and the Acknowledgment Agreement and/or the performance of its duties hereunder or thereunder and any consents, amendments, waivers or other modifications thereto and the transactions contemplated hereby or thereby. Without limiting the obligations of the Company hereunder and to the extent that the Company fails to pay any of the costs, expenses or other amounts due and payable by it to the Collateral Agent in accordance with the provisions of this Section 4.06(a), the LC Facility Lenders and Aron shall pay such costs, expenses and/or other amounts, in each case to the same extent (and subject to the same exceptions or limitations) as is required of the Company under this Section 4.06(a) in accordance with their pro rata share of their respective Secured Obligations.

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(b)    [Reserved].

(c)    The Company shall indemnify the Collateral Agent and each of its Affiliates, permitted successors and permitted assigns and the officers, directors, employees, attorneys, agents, advisors, controlling Persons and partners of each of the foregoing (each, an “Indemnitee”) from and hold each of them harmless from and against all reasonable and documented costs, expenses (including reasonable and documented fees, disbursements and other charges of one primary legal counsel and one local legal counsel, if applicable, in each applicable jurisdiction, acting for the Collateral Agent) and liabilities of such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (each, a “Claim”) that relates to the transactions contemplated in this Agreement, the other Security Documents, any other Secured Transaction Document and/or the Acknowledgment Agreement or any transactions in connection therewith; provided, that no Indemnitee will be indemnified for any cost, expense or liability to the extent determined in the final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from its (or its officers’, directors’, employees’, advisors’ or controlling Persons’) bad faith, gross negligence or willful misconduct. Without limiting the obligations of the Company hereunder and to the extent that the Company fails to indemnify the Collateral Agent or any other Indemnitee in accordance with the provisions of this Section 4.06(c), the LC Facility Lenders and Aron shall indemnify the Collateral Agent or the other Indemnitee, as applicable, in each case to the same extent (and subject to the same exceptions or limitations) as is required of the Company under this Section 4.06(c) in accordance with their pro rata share of their respective Secured Obligations.

(d)    Without limiting the generality of Section 4.06(c) above, the Company hereby agrees to indemnify each Indemnitee from and will hold each Indemnitee harmless against, any Claim arising from any actual or alleged presence or threatened discharge or release of any hazardous materials into the environment on or from any property owned or operated by the Company or any Environmental Claims related to the Collateral, but excluding any such Claims under this Section 4.06(d) based on the bad faith, gross negligence or willful misconduct of any such Indemnitee (or its officers, directors, employees, advisors or controlling Persons), in each case, as determined pursuant to a final, non-appealable judgment by a court of competent jurisdiction.

(e)    To the extent that the undertaking in the preceding paragraphs of this Section 4.06 may be unenforceable because it violates any law or public policy, subject to the limitations set forth in the preceding clauses of this Section 4.06, the Company will contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of such undertaking.

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(f)    All sums paid and costs incurred by any Indemnitee with respect to any matter indemnified hereunder shall be added to the Secured Obligations and be secured by the Security Documents and, unless otherwise provided, shall be due and payable within ten (10) Business Days following receipt by the Company of written demand accompanied by reasonable documentation. Each such Indemnitee shall promptly notify the Company in a timely manner of any such amounts payable by the Company hereunder together with reasonable details and calculation thereof; provided, that any failure to provide such notice shall not affect the Company’s obligations under this Section 4.06.

(g)    The provisions of this Section 4.06 shall survive termination of this Agreement and the resignation or removal of the Collateral Agent.

SECTION 4.07.    Non-Reliance on Agent and Other Secured Parties. The Company acknowledges that it will, independently and without reliance upon any Agent or any other Secured Party or any of their respective Affiliates and based on such documents and information 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 Secured Transaction Document, the Acknowledgment Agreement or related agreement or any document furnished hereunder or thereunder.

SECTION 4.08.    Treatment of Collateral.

(a)    Neither the Collateral Agent nor any of its any of its co-agents, sub-agents or attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be responsible for insuring the Collateral or for the payment of Taxes (and shall not be responsible for any Tax reporting in connection with this Agreement), charges, assessments or liens upon the Collateral. Neither the Collateral Agent nor any of its co-agents, sub-agents or attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be under any obligation independently to request or examine insurance coverage with respect to any Collateral. Neither the Collateral Agent nor any of its co-agents, sub-agents and attorneys-in-fact, including, without limitation, the Sub-Collateral Agents, shall be responsible for the maintenance of the Collateral, except as expressly provided herein when the Collateral Agent or any such co-agent, sub-agent or attorney-in-fact has possession of the Collateral.

(b)    In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any Collateral pursuant to this Agreement or any other Security Document or any other Secured Transaction Document, the Collateral Agent shall not be obligated to take title to or possession of any item of Collateral in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any Environmental Laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as the Collateral Agent subject to the terms and conditions hereof or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any Environmental Claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered or directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.

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(c)    The Collateral Agent and each of the LC Facility Agent and Aron in its capacity as Sub-Collateral Agent each hereby disclaims any representation or warranty and shall have no responsibility to any person for the existence, priority or perfection of the Liens and security interests granted hereunder or under any other Security Document or any other Secured Transaction Document or in the value of any of the Collateral. Neither the Collateral Agent nor the LC Facility Agent or Aron in its capacity as Sub-Collateral Agent makes any representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Secured Parties or the Company to the Collateral, or as to the security afforded by any Secured Transaction Document.

(d)    Neither the Collateral Agent nor the LC Facility Agent or Aron in its capacity as Sub-Collateral Agent shall be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of any Secured Party or the Company or any other party selected by it with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and shall not be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, neither the Collateral Agent nor the LC Facility Agent or Aron in its capacity as Sub-Collateral Agent shall be responsible for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, and such other documents or instruments; provided that if the Company or any Secured Party files a UCC financing statement or amendment naming the Collateral Agent as secured party, such Person shall promptly send the Collateral Agent a copy thereof.

SECTION 4.09.    Absence of Fiduciary Duties. The Company agrees that in connection with all aspects of the transactions contemplated hereby or by the other Secured Transaction Documents and any communications in connection therewith, the Company and its Affiliates, on the one hand, and the Collateral Agent or any of its co-agents, sub-agents or attorneys-in-fact, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty or other implied duties, obligations, liabilities, functions or responsibilities on the part of the Collateral Agent, any of its co-agents, sub-agents or attorneys-in-fact, or any of their respective Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.

SECTION 4.10.    Rights as a Secured Party. The Person serving as the Collateral Agent or the Controlling Agent hereunder shall have the same rights and powers in its capacity as a Secured Party under any Series of Secured Obligations that it holds as any other Secured Party of such Series and may exercise the same as though it were not the Collateral Agent or the Controlling Agent, as applicable, and the term “Secured Parties” or “Secured Parties” shall with respect to rights and benefits (but none of the obligations) afforded to it, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Collateral Agent or the Controlling Agent, as applicable, hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Affiliate thereof as if such Person were not the Collateral Agent or the Controlling Agent, as applicable, hereunder and without any duty to account therefor to any other Secured Party.

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ARTICLE V
Acknowledgment of Aron Property

SECTION 5.01.    Until the Discharge in Full of the S&O Obligations, MUFG (on behalf of itself and the other LC Secured Parties) acknowledge and agree that:

(a)    the Collateral does not include the volumes of crude oil, other petroleum feedstocks and refined petroleum products (collectively, “Hydrocarbons”), including without limitation, all volumes of Hydrocarbons owned by Aron and held in any of the “Included Locations” as defined under the S&O Agreement (all such Hydrocarbons owned by Aron, the “Aron Property”);

(b)    MUFG has no right, title or interest in, or any lien upon, nor will MUFG acquire any lien upon, any of the Aron Property to secure the LC Facility Obligations and, to the extent MUFG obtains a lien on the Aron Property to secure the LC Facility Obligations, such lien shall be deemed to be automatically released and of no force and effect with no further action by any person (provided that MUFG shall cooperate with Aron to provide such evidence as Aron shall reasonably require to confirm the absence and/or release of any such lien); and

(c)    notwithstanding any rights or remedies (if any) available under the LC Facility Agreement, any related documents, the UCC, other applicable law or otherwise, MUFG shall not (i) contest, protest or object to, or support any other person in contesting, protesting or objecting to, in any proceeding or action (including any bankruptcy, insolvency or liquidation proceeding) Aron’s title to or ownership of, or other rights in, all or any part of the Aron Property; (ii) directly or indirectly, exercise or seek to exercise any rights or remedies with respect to any of the Aron Property or institute any action or proceeding with respect to such rights or remedies, including any action to foreclose, execute, levy, collect on, take possession or control of, sell or otherwise realize upon any of the Aron Property, (and to the extent MUFG receives proceeds of any such actions, MUFG shall hold such proceeds in trust for Aron and promptly pay over such proceeds to Aron in the form received with all necessary endorsements); or (iii) contest, protest or object to, or support any other person in contesting, protesting or objecting to, in any proceeding or action (including any bankruptcy, insolvency or liquidation proceeding) any proceeding or action brought by or on behalf of Aron, to execute, levy, collect on, take possession or control of, sell or otherwise realize upon any of the Aron Property or any other exercise by or on behalf of Aron of any rights and remedies relating to the Aron Property under the S&O Agreement, the related transaction documents, the UCC, other applicable law or otherwise.

ARTICLE VI
Miscellaneous

SECTION 6.01.    Notices.

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(a)    All notices and other communications provided for herein (including, but not limited to, all the directions and instructions to be provided to the Controlling Agent or to the Collateral Agent herein by the Controlling Agent) shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy to the applicable address listed in Schedule 6.01 hereto. Any notice or other communication delivered by e-mail to the Collateral Agent must include and be contained in a scanned or imaged attachment (such as .pdf or similar widely used format); provided that the Collateral Agent does not accept funds transfer instructions by email.

(b)    Any party hereto may change its address, fax number or email address for notices and other communications hereunder by notice to the other parties hereto. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and, may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth in Schedule 6.01 hereto or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties. To the extent agreed to in writing among the Collateral Agent and each Senior Secured Party Representative from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person. The Collateral Agent and any Senior Secured Party Representative may conclusively rely upon, and shall not in any event be liable for any losses, costs, expenses or damages, including, but not limited to, indirect, incidental, consequential, special or punitive damages, arising directly or indirectly from the Collateral Agent’s or Senior Secured Party Representative’s reliance upon and compliance with, any communication, notice, instruction, or other document sent via email or other similar electronic method which the Collateral Agent or Senior Secured Party Representative reasonably believes to have been sent by the party who, on the face of the communication, appears to have been the appropriate party. The Collateral Agent and each Senior Secured Party Representative assumes no risk arising out of the use of such electronic methods of communication, including without limitation, any risk of the Collateral Agent reasonably acting on unauthorized instructions, or the risk of interception and misuse by third parties.

SECTION 6.02.    Waivers: Amendment.

(a)    No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No Modification of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by Section 2.11, and then such Modification shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.

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(b)    This Agreement shall not be modified except as specified in Section 2.11.

(c)    In connection with any Modification, the Collateral Agent and each Senior Secured Party Representative shall be entitled to receive, and shall be fully protected in relying on, an officer’s certificate of the Company stating that such waiver, amendment or other modification is authorized or permitted by the terms hereof and that all conditions precedent with respect thereto have been satisfied.

SECTION 6.03.    Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.

SECTION 6.04.    Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.

SECTION 6.05.    Appointments upon Discharge. Upon Discharge in Full of LC Facility Obligations (upon which event the LC Facility Agent will give prompt notice thereof to the Collateral Agent), Aron will be automatically appointed as Collateral Agent with respect to the Collateral and any obligations of US Bank as Collateral Agent hereunder and under any other Secured Transaction Document will concurrently be terminated. Upon Discharge in Full of the S&O Obligations (upon which event Aron will give prompt notice thereof to the Collateral Agent), the LC Facility Agent will be automatically appointed as Collateral Agent with respect to the LC Priority Collateral and any obligations of US Bank as Collateral Agent hereunder and under any other Secured Transaction Document will be terminated. Each party hereto agrees to execute and deliver, in each case at the expense of the Company, such additional documents or instruments as may be reasonably requested by the Collateral Agent to evidence and effectuate the foregoing. After any such termination, the provisions of this Agreement, including but not limited to Article IV, shall continue to inure to US Bank’s benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent.

SECTION 6.06.    Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission (e.g. “pdf” or “tif” format) shall be as effective as delivery of a manually signed counterpart of this Agreement . The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to this Agreement or any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Collateral Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

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SECTION 6.07.    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. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 6.08.    Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.

SECTION 6.09.    GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.

(a)    THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) OF THE STATE OF NEW YORK; PROVIDED THAT THE COLLATERAL AGENT AND EACH SECURED PARTY SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

(b)    ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, ANY SECURITY DOCUMENT OR ANY OTHER SECURED TRANSACTION DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE EXTENT PERMITTED BY LAW, THE PARTIES HERETO EACH HEREBY 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 THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT. THE PARTIES HERETO EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

(c)    THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SECURITY DOCUMENTS OR ANY SECURED TRANSACTION DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY SECURITY DOCUMENTS OR ANY SECURED TRANSACTION DOCUMENTS.

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SECTION 6.10.    Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 6.11.    Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the other Security Documents or any Secured Transaction Documents (including, without limitation, any conflicts between the rights, protections and responsibilities of the Collateral Agent under the terms of any of the Secured Transaction Documents), the provisions of this Agreement shall control.

SECTION 6.12.    Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Secured Parties in relation to one another. Neither the Company nor any creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement. Nothing in this Agreement is intended to or shall impair the obligations of the Company, which are absolute and unconditional, to pay the Secured Obligations as and when the same shall become due and payable in accordance with their terms.

SECTION 6.13.    Integration. This Agreement together with the other Secured Transaction Documents and the Security Documents represents the entire agreement of each of the Company and the Secured Parties with respect to the subject matter hereof and thereof and there are no promises, undertakings, representations or warranties by the Company, any Senior Secured Party Representative or any other Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Transaction Documents or the Security Documents.

SECTION 6.14.    Information Concerning Financial Condition of the Company. None of the Collateral Agent, any Senior Secured Party Representative, or any Secured Party shall be responsible for keeping any other party informed of (a) the financial condition of the Company and all endorsers or guarantors of the Secured Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the Secured Obligations. The Collateral Agent, the Senior Secured Party Representatives and the Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the Collateral Agent, any Senior Secured Party Representative or any Secured Parties undertakes at any time or from time to time to provide any such information to any other party, it shall be under no obligation to (i) make, and the Collateral Agent, the Senior Secured Party Representatives and the Secured Parties shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional information or to provide any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.

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SECTION 6.15.    Further Assurances. The Company agrees that at any time and from time to time, as may be necessary or upon the written request of the Collateral Agent (acting at the written direction of the Controlling Agent), it will execute and deliver such further documents and do such further acts and things as may be necessary in order to effect the purposes of this Agreement and to protect and perfect the security interests granted in the applicable Collateral. Each Senior Secured Party Representative, on behalf of itself and each Secured Party under the applicable Secured Transaction Document, agrees that, subject to the terms of its applicable Secured Transaction Document, it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities contemplated by, this Agreement.

SECTION 6.16.    LC Facility Agent.

(a)    It is understood and agreed that the LC Facility Agent is entering into this Agreement in its capacity as administrative agent under the LC Facility Agreement and the provisions of Article X of the LC Facility Agreement applicable to it and any other rights, protections, immunities and indemnities afforded to it as administrative agent thereunder shall also apply to it hereunder, including without limitation, with respect to its designation as Controlling Agent.

(b)    Notwithstanding anything herein to the contrary, prior to taking any action (including without limitation providing any consent or instruction to the Collateral Agent), the Controlling Agent shall be permitted to seek (and to the extent required by the terms of the applicable Secured Transaction Document, shall seek) the instruction, consent or other authority from the requisite Secured Parties it represents in accordance with the applicable Secured Transaction Document, and in the event that it does so, it shall be fully protected in acting in accordance with such instructions or, in the absence of any such instructions, refraining from taking any action or providing any such consent or instructions.

SECTION 6.17.    Damages, Etc. FOR THE AVOIDANCE OF DOUBT, THE PARTIES HERETO ACKNOWLEDGE THAT IN NO EVENT SHALL THE COLLATERAL AGENT, ANY SENIOR SECURED PARTY REPRESENTATIVE, ANY SECURED PARTY OR ANY OF THEIR CO-AGENTS, SUB-AGENTS OR ATTORNEYS-IN-FACT 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 ANY SUCH PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE OR WHETHER SUCH DAMAGES WERE FORESEEABLE OR CONTEMPLATED AND REGARDLESS OF THE FORM OF ACTION.

[Remainder of Page Intentionally Left Blank]

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COMPANY: PAR HAWAII REFINING, LLC, a Hawaii limited liability company
By:	/s/ Shawn Flores
Name:	Shawn Flores
Title:	Chief Financial Officer

[Signature Page to Collateral Agency and Intermediation Rights Agreement]

LC FACILITY AGENT: MUFG BANK, LTD., as Administrative Agent
By:	/s/ Christopher Taylor
Name:	Christopher Taylor
Title:	Managing Director

[Signature Page to Collateral Agency and Intermediation Rights Agreement]

ARON: J. ARON & COMPANY LLC
By:	/s/ Simon Collier
Name:	Simon Collier
Title:	Authorized Signatory

[Signature Page to Collateral Agency and Intermediation Rights Agreement]

COLLATERAL AGENT: U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
By:	/s/ Michael K. Herberger
Name:	Michael K. Herberger
Title:	Vice President

[Signature Page to Collateral Agency and Intermediation Rights Agreement]

XML

Document And Entity Information	Jul. 26, 2023
Document Information [Line Items]
Entity, Registrant Name	Par Pacific Holdings, Inc.
Document, Type	8-K
Document, Period End Date	Jul. 26, 2023
Entity, Incorporation, State or Country Code	DE
Entity, File Number	1-36550
Entity, Tax Identification Number	84-1060803
Entity, Address, Address Line One	825 Town & Country Lane, Suite 1500
Entity, Address, City or Town	Houston
Entity, Address, State or Province	TX
Entity, Address, Postal Zip Code	77024
City Area Code	281
Local Phone Number	899-4800
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common stock
Trading Symbol	PARR
Security Exchange Name	NYSE
Entity, Emerging Growth Company	false
Amendment Flag	false
Entity, Central Index Key	0000821483