Form 8-K - Current report

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): September 25, 2024

VERTEX ENERGY, INC.

(Exact name of registrant as specified in its charter)

Nevada	001-11476	94-3439569
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

1331 Gemini Street

Suite 250

Houston, TX

77058

(Address of principal executive offices)

(Zip Code)

Registrant’s telephone number, including area code: (866) 660-8156

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

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

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, $0.001 Par Value Per Share

VTNR

The NASDAQ
Stock Market LLC

(Nasdaq Capital Market)

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

Emerging growth company ☐

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

EXPLANATORY NOTE

As previously reported in the Current Report on Form 8-K filed by Vertex Energy, Inc. (the “Company”), with the Securities and Exchange Commission on September 26, 2024 (the “September 26th Form 8-K”), on September 24, 2024, the Company and certain of its subsidiaries (collectively with the Company, the “Company Parties”) entered into a Restructuring Support Agreement (including all of the exhibits and attachments thereto, the “Restructuring Support Agreement”, and the transactions contemplated thereby, collectively, the “Restructuring Transactions”), with parties that hold 100% of the claims under that certain Loan and Security Agreement, dated as of April 1, 2022 (as amended from time to time, the “Term Loan”), by and among Vertex Refining Alabama LLC, as borrower (“Vertex Refining”), the Company, as parent and guarantor, certain subsidiaries of the Company, as guarantors, Cantor Fitzgerald Securities, as agent (the “Agent”), and the lenders party thereto (the “Term Loan Lenders” or the “Consenting Stakeholders”).

The Restructuring Support Agreement contemplates agreed-upon terms for a financial restructuring of the Company Parties’ capital structure (the “Restructuring”) to be implemented pursuant to a chapter 11 plan (the “Plan”) filed by the Company Parties in cases (the “Chapter 11 Cases”) under chapter 11 of title 11 (“Chapter 11”) of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”). Pursuant to the Restructuring Support Agreement, the Consenting Stakeholders have agreed, subject to certain terms and conditions, to support the Plan.

Item 1.01 Entry into a Material Definitive Agreement.

DIP Loan Agreement

To fund the administration of the Chapter 11 Cases and the implementation of the Restructuring Transactions, on September 25, 2024, Vertex Refining, as the borrower, the Company, as parent and as a guarantor, certain direct and indirect subsidiaries of the Company, as guarantors, certain debtor-in-possession financing lenders (“DIP Lenders”) party thereto, and the Agent, entered into a Senior Secured Super-Priority Debtor-in-Possession Loan and Security Agreement (such agreement, the “DIP Loan Agreement”, and the financing facility thereunder, the “DIP Facility”), consisting of (a) a new money term loan facility in the aggregate principal amount of up to $80 million and (b) a “roll up” loan facility, whereby $200 million of outstanding principal amount of the claims relating to the Term Loan (the “Term Loan Claims”) were or, subject to the entry of the final order of the Bankruptcy Court governing the DIP Facility, will be, converted on a cashless, dollar-for-dollar basis into DIP Facility loans on the terms and conditions set forth in the DIP Loan Agreement, which provides for, among other things, the granting of a security interest in substantially all assets of the Company Parties as collateral, and provides for a guarantee by the Company Parties. The DIP Facility will be used by the Company in accordance with the budget agreed upon between the Company Parties and the Required Lenders (as defined in the DIP Loan Agreement).

The amounts borrowed under the DIP Loan Agreement will bear interest at a rate per annum equal to the sum of (i) the greater of (x) the per annum rate publicly quoted from time to time by The Wall Street Journal as the “Prime Rate” in the United States minus 1.50% as in effect on such day and (y) the Federal Funds rate for such day plus 0.50%, subject in the case of this clause (i), to a floor of 1.0%, plus (ii) a margin of (x) 9.40% for the Interim Roll-Up Loans and the Final Roll-Up Loans (each as defined in the DIP Loan Agreement), (y) 9.50% in the case of the New Money Term Loans (as defined in the DIP Loan Agreement, the “New Money Term Loans”), and (z) 9.60% in the case of the Restricted Roll-Up Loans (as defined in the DIP Loan Agreement). The rate of interest increases by 2% per annum after the notice of an occurrence of an event of default.

Amounts borrowed under the DIP Loan Agreement are due upon the earliest to occur of (a) the date that is four (4) months after September 25, 2024, which may be extended, at Vertex Refining’s election, so long as no default or event of default shall have occurred and be continuing, by two (2) one-month extensions, subject to the payment of an extension fee, in connection with each such extension, equal to 2.0% on drawn amounts of the New Money Term Loans as of the date of such extension, (b) the date that is thirty (30) days after September 25, 2024, if a final debtor-in-possession order has not been approved by the Bankruptcy Court on or prior to such date, (c) the date the Plan is effective, and (d) the date the Agent, at the direction of the Required Lenders (as defined in the DIP Loan Agreement), delivers a notice of termination to Vertex Refining, in each case, subject to certain prepayment events described in greater detail in the DIP Loan Agreement.

The amounts borrowed pursuant to the terms of the DIP Loan Agreement are secured by substantially all of the present and after-acquired assets of the Company and its subsidiaries. Additionally, Vertex Refining’s obligations under the DIP Loan Agreement are jointly and severally guaranteed by substantially all of the Company’s subsidiaries (other than any Excluded Subsidiary, as defined in the DIP Loan Agreement) and the Company.

The DIP Loan Agreement includes customary representations and warranties, and affirmative and negative covenants of the Loan Parties for a facility of this size and type. Upon the occurrence of an event of default, the Agent may declare the entire amount of obligations owed under the DIP Loan Agreement immediately due and payable and take certain other actions provided for under the DIP Loan Agreement, including enforcing security interests and guarantees.

The DIP Loan Agreement includes customary indemnification obligations for a facility of this size and type, requiring us to indemnify the Agent and the Lenders for certain expenses, losses and claims.

Intermediation Agreement

In connection with the filing of the Chapter 11 Cases, on September 25, 2024 Vertex Refining, the Company, Vertex Renewables Alabama LLC (“Vertex Renewables”, and Macquarie Energy North America Trading Inc. (“Macquarie”) entered into that certain Assurance and Amendment and Restatement Agreement (the “Assurance Agreement”). Pursuant to this Assurance Agreement, Macquarie agreed to, subject to certain conditions, defer and delay exercise of certain remedies under and make certain amendments to that certain Supply and Offtake Agreement dated April 1, 2022 (as amended from time to time) relating to the crude oil used, and refined products produced, at the Mobile Refinery (the “Supply and Offtake Agreement”). The Assurance Agreement also implements certain amendments to other transaction documents relating to the Supply and Offtake Agreement.

As amended, the Supply and Offtake Agreement will terminate upon the earliest to occur of (a) the date that is four (4) months after September 25, 2024, which may be extended, subject to certain conditions, by two (2) one-month extensions, (b) the date that is thirty (30) days after September 25, 2024, if a final intermediation order has not been approved by the Bankruptcy Court on or prior to such date, (c) the date the Plan is effective, and (d) the date Macquarie, at the direction of the required Lenders, delivers a notice of termination to Vertex Refining, in each case subject to certain terms described in greater detail in the Assurance Agreement and in the Supply and Offtake Agreement.

Hedge Facility

In connection with the filing of the Chapter 11 Cases, on September 25, 2024, Vertex Refining and Macquarie Bank Limited entered into that certain Amendment Agreement to the ISDA 2002 Master Agreement originally deemed entered into as of March 31, 2022 (such ISDA 2022 Master Agreement, as so amended, the “Hedge Facility”). As amended, the Hedge Facility allows Vertex Refining, notwithstanding the Chapter 11 Cases, to conduct a hedging program in respect of certain of its exposures through the end of 2024, and as may be further extended or modified by mutual agreement.

* * * * *

The foregoing description of the DIP Loan Agreement, Assurance Agreement and Hedge Facility does not purport to be complete and is qualified in its entirety by reference to the DIP Loan Agreement, Assurance Agreement and Hedge Facility, copies of which are filed as Exhibits 10.1, 10.2 and 10.3, hereto, respectively, which are incorporated herein by reference.

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

The information in Item 1.01 above relating to the DIP Loan Agreement and Hedge Facility are incorporated by reference into this Item 2.03 in their entirety.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On September 27, 2024, the Company received written notice from the Listing Qualifications Department of the Nasdaq Stock Market LLC (“Nasdaq”) notifying the Company that, as a result of the Chapter 11 Cases and in accordance with Nasdaq Listing Rules 5101, 5110(b) and IM-5101-1, Nasdaq had determined that the Company’s common stock will be delisted from Nasdaq. The Nasdaq notice also advises the Company of its right to request an appeal of the determination. The Company does not intend to appeal Nasdaq’s determination and, accordingly, the Company expects that the common stock will be delisted.

Trading of the Company’s common stock will be suspended at the opening of business on October 8, 2024.

Item 3.03 Modification to Rights of Security Holders.

The description of the DIP Loan Agreement in Item 2.03 above is incorporated by reference into this Item 3.03 in its entirety by reference.

Item 9.01            Financial Statements and Exhibits.

Exhibit		Description
10.1*#		Senior Secured Super-Priority Debtor-in-Possession Loan and Security Agreement, dated as of September 25, 2024, by and between Vertex Refining Alabama LLC, as the borrower, Vertex Energy, Inc., as parent and as a guarantor, certain direct and indirect subsidiaries of parent party thereto, as guarantors, the lenders party thereto, and Cantor Fitzgerald Securities, as Agent
10.2*£#		Assurance and Amendment and Restatement Agreement dated September 25, 2024, entered into by and between Vertex Refining Alabama LLC, Vertex Energy, Inc., Vertex Renewables Alabama LLC and Macquarie Energy North America Trading Inc.
10.3*		Amendment Agreement dated as of September 25, 2024 to the ISDA 2002 Master Agreement deemed entered into as of March 31, 2022 between Macquarie Bank Limited and Vertex Refining Alabama LLC
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

* Filed herewith.

# Certain schedules, annexes and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request; provided, however that Vertex Energy, Inc. may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedule or exhibit so furnished.

£ Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because the identified confidential portions (i) are not material and (ii) the Company customarily and actually treats that information as private or confidential.

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.

	VERTEX ENERGY, INC.

Date: October 1, 2024	By:	/s/ Chris Carlson
		Chris Carlson
		Chief Financial Officer

VERTEX ENERGY, INC. 8-K

Exhibit 10.1

Execution Version

SENIOR SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION

LOAN AND SECURITY AGREEMENT

Dated as of September 25, 2024

among

VERTEX REFINING ALABAMA LLC,

as the Borrower,

VERTEX ENERGY, INC.,

as Parent and as a Guarantor,

CERTAIN DIRECT AND INDIRECT SUBSIDIARIES OF PARENT PARTY HERETO,
as Guarantors,

THE LENDERS PARTY HERETO,

CANTOR FITZGERALD SECURITIES,

as Agent

TABLE OF CONTENTS

			Page

1.	Definitions and Construction		2
	1.1.	Definitions	2
	1.2.	Divisions	48
	1.3.	Other Interpretive Provisions	48
2.	Term Loan and Terms of Payment		49
	2.1.	Term Loan	49
	2.2.	Use of Proceeds; The Term Loan	50
	2.3.	Procedure for Making the Term Loan; Interest	51
	2.4.	Payments of Principal and Interest	51
	2.5.	Fees and Expenses	52
	2.6.	Prepayments	52
	2.7.	Other Payment Terms	54
	2.8.	Increased Costs	56
	2.9.	Taxes	57
	2.10.	Term	60
3.	Conditions Precedent		61
	3.1.	Conditions Precedent to the Closing Date	61
	3.2.	Conditions Precedent to each Term Loan	62
4.	Creation of Security Interest		63
	4.1.	Grant of Security Interest	63
	4.2.	Duration of Security Interest	64
	4.3.	Possession of Collateral	64
	4.4.	Delivery of Additional Documentation Required	64
	4.5.	Right to Inspect	65
	4.6.	Authorization to File	65
	4.7.	Collateral Matters	65
	4.8.	Loan Parties’ Rights	66
	4.9.	Defaults and Remedies; Proxy	68
5.	Representations and Warranties		70
	5.1.	Due Organization and Qualification	70
	5.2.	Authority and Power	70
	5.3.	Subsidiaries	71
	5.4.	Conflict with Other Instruments, etc.	71
	5.5.	Enforceability	71
	5.6.	No Prior Encumbrances	71
	5.7.	[Reserved]	71
	5.8.	Litigation; Governmental Action	71

-i-

	5.9.	Financial Statements	71
	5.10.	No Fraudulent Transfer	72
	5.11.	Taxes; Pension Plans	72
	5.12.	Consents and Approvals	72
	5.13.	Intellectual Property	73
	5.14.	[Reserved]	73
	5.15.	Environmental Matters	73
	5.16.	Government Consents	74
	5.17.	Full Disclosure	74
	5.18.	Inventory	74
	5.19.	Sanctioned Persons	74
	5.20.	Foreign Assets Control Regulations, Etc.	75
	5.21.	Status	75
	5.22.	[Reserved]	75
	5.23.	Tax Classification	75
	5.24.	Bankruptcy Related Matters	76
	5.25.	Compensation of Officers and Directors	76
6.	Affirmative Covenants		77
	6.1.	Good Standing	77
	6.2.	Government Compliance	77
	6.3.	Financial Statements, Reports, Certificates	78
	6.4.	Certificates of Compliance	80
	6.5.	Notices	80
	6.6.	Taxes	80
	6.7.	Maintenance	81
	6.8.	Insurance	81
	6.9.	Environmental Laws	82
	6.10.	Intellectual Property Rights	82
	6.11.	Formation or Acquisition of Subsidiaries	83
	6.12.	Further Assurances	84
	6.13.	Inventory, Returns	84
	6.14.	Delivery of Third-Party Agreements	85
	6.15.	Inspections and Rights to Consult with Management	85
	6.16.	Privacy and Data Security	85
	6.17.	[Reserved]	85
	6.18.	Bankruptcy Matters	85
	6.19.	Post-Closing Matters	86
	6.20.	[Reserved]	86
	6.21.	Access Rights to Advisors	86
	6.22.	Engagement and Retention of Chief Restructuring Officer	87
	6.23.	Additional Covenants of the Borrower	88
	6.24.	Restructuring Milestones	89
	6.25.	Additional Financings	89
7.	Negative Covenants		89
	7.1.	Chief Executive Office; Location of Collateral	89
	7.2.	Extraordinary Transactions and Disposal of Collateral	90

	7.3.	Restructure	90
	7.4.	Liens	91
	7.5.	Indebtedness, Disqualified Equity Interests and Preferred Stock	91
	7.6.	Investments	91
	7.7.	[Reserved]	91
	7.8.	Transactions with Affiliates	91
	7.9.	Stock Certificates	91
	7.10.	Compliance	91
	7.11.	Deposit Accounts	91
	7.12.	[Reserved]	92
	7.13.	Sanctions and AML Restrictions on Use of Proceeds	92
	7.14.	Accounting Changes; Change in Nature of Business; Foreign Operations	92
	7.15.	Burdensome Agreements	92
	7.16.	Restricted Payments; Prepayments of Certain Indebtedness	93
	7.17.	Amendments or Waivers of Certain Related Agreements	94
	7.18.	Activities of Parent	94
	7.19.	Financial Covenant	94
8.	Events of Default		94
	8.1.	Payment Default	94
	8.2.	Certain Covenant Defaults	95
	8.3.	Other Covenant Defaults	95
	8.4.	Attachment	95
	8.5.	Other Agreements	95
	8.6.	Judgments	95
	8.7.	Misrepresentations	96
	8.8.	Enforceability	96
	8.9.	Bankruptcy Event of Default	96
	8.10.	RSA	96
	8.11.	[Reserved]	96
	8.12.	Cross Default	96
	8.13.	ERISA	96
	8.14.	Change of Control	96
	8.15.	Collateral Documents	96
	8.16.	[Reserved]	96
	8.17.	Loss of Material Contracts	96
9.	Agent and Lenders’ Rights and Remedies		97
	9.1.	Rights and Remedies	97
	9.2.	Waiver by the Loan Parties	98
	9.3.	Effect of Sale	99
	9.4.	Power of Attorney in Respect of the Collateral	99
	9.5.	Lender Expenses	99
	9.6.	Remedies Cumulative	100
	9.7.	Reinstatement of Rights	100
	9.8.	Share Collateral	100
	9.9.	Application of Proceeds	101
	9.10.	Lift of Stay; Stay of Proceedings	102

10.	Waivers; Indemnification		102
	10.1.	Demand; Protest	102
	10.2.	Liability for Collateral	102
	10.3.	Indemnification; Lender Expenses	102
11.	Notices		104
12.	Agent Provisions		106
	12.1.	Appointment and Authorization	106
	12.2.	Agent in Individual Capacity; Lender as Agent	107
	12.3.	Exculpatory Provisions	107
	12.4.	Exculpation; Limitation of Liability	108
	12.5.	Credit Decisions	109
	12.6.	Indemnification	109
	12.7.	Successor Agents	110
	12.8.	Agent Generally	110
	12.9.	Reliance	110
	12.10.	Notice of Default	111
	12.11.	Erroneous Payments	111
	12.12.	Collateral Matters	114
13.	Guaranty		115
	13.1.	Guaranty	115
	13.2.	Rights of Lenders	115
	13.3.	Certain Waivers	115
	13.4.	Obligations Independent	116
	13.5.	Subrogation	116
	13.6.	Termination; Reinstatement	117
	13.7.	Stay of Acceleration	117
	13.8.	Condition of Borrower	117
	13.9.	Appointment of Borrower	117
	13.10.	Right of Contribution	118
14.	General Provisions		118
	14.1.	Successors and Assigns	118
	14.2.	Representation of the JS Lender	120
	14.3.	Severability of Provisions	120
	14.4.	Entire Agreement; Construction; Amendments and Waivers	120
	14.5.	Reliance	123
	14.6.	[Reserved]	123
	14.7.	Counterparts	123
	14.8.	Survival	123
	14.9.	Publicity	123
	14.10.	Keepwell; Acknowledgement Regarding Any Supported QFCs	123
	14.11.	Relationship of Parties	124
	14.12.	Confidentiality	125
	14.13.	Patriot Act/Freedom Act	126
	14.14.	Governing Law; Jurisdiction; Waiver of Jury Trial	126
	14.15.	DIP Orders Control	126
	14.16.	Counterparts	127
	14.17.	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	127

SENIOR SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION LOAN AND SECURITY AGREEMENT

This Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, this “Agreement”) is entered into as of September 25, 2024, by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, as a debtor and debtor-in-possession, a Delaware limited liability company (“Borrower”), each of Parent’s direct and indirect Subsidiaries from time to time party hereto listed on Schedule 1 hereto other than Excluded Subsidiaries (as hereinafter defined) (collectively, the “Subsidiary Guarantors” and each, individually, a “Subsidiary Guarantor”; the Subsidiary Guarantors, together with Parent, each a “Guarantor” and collectively, the “Guarantors”), Cantor Fitzgerald Securities (“Cantor”) as administrative agent and collateral agent for the Lenders (“Agent”) and the Lenders from time to time party hereto.

RECITALS

The Borrower entered into a Loan and Security Agreement, dated as of April 1, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified and in effect prior to the date hereof, the “Pre-Petition Loan Agreement”), among the Borrower, the guarantors party thereto, the Pre-Petition Agent and each lender from time to time party thereto.

On September 24, 2024, (the “Petition Date”), each of the Loan Parties (each, a “Debtor”, and collectively, the “Debtors”) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”). The Debtors are continuing in the possession of their assets and continuing to operate their respective businesses and manage their respective properties as debtors and debtors in possession under Section 1107(a) and 1108 of the Bankruptcy Code.

On the Petition Date, the Loan Parties filed an Acceptable Disclosure Statement (as defined below) and an Acceptable Plan of Reorganization (as defined below) with the Bankruptcy Court.

The Debtors have requested that the Lenders make available to the Borrower, from and after the date of entry of the Interim DIP Order, a senior secured super-priority debtor-in- possession term loan facility in the aggregate principal amount of up to $280,000,000 (the “DIP Facility”) which shall consist of (x) a new money term loan facility (the “New Money Facility”) in the aggregate principal amount of up to $80,000,000 and (y) a $200,000,000 term loan to reflect the roll-up of a portion of outstanding Pre-Petition Loans made by the Pre-Petition Lenders under the Pre-Petition Loan Agreement, on the terms and conditions set forth in this Agreement.

The DIP Facility shall be available for borrowing as of the Interim Effective Date, subject in all respects to the terms, conditions and limitations set forth herein and in the other Loan Documents and shall be afforded the liens and priority set forth in the DIP Orders and as set forth in Annexes 2 and 3 and to be used during the Bankruptcy Cases for the purposes set forth in Section 2.2.

By execution and delivery of this Agreement and the other Loan Documents and entry of the applicable DIP Order, the Guarantors, as applicable, agree to guarantee the Obligations, and the Borrower and each Guarantor agrees to secure all of the Obligations by granting to the Agent, for the benefit of the Secured Parties, a lien and security interest in respect of, and on, substantially all of each Debtor’s respective assets, on and subject to the terms and priorities set forth in the DIP Orders and the other Loan Documents.

The Lenders are willing to make available the DIP Facility described herein, subject to and in accordance with the terms and conditions set forth in this Agreement.

AGREEMENT

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, parties agree as follows:

Definitions and Construction.

1.1. Definitions. As used in this Agreement, capitalized terms shall have the meanings set forth below, or if not set forth therein, shall be given the meaning set forth in Annex 4 or the DIP Order.

“Acceptable Disclosure Statement” shall mean the disclosure statement relating to an Acceptable Plan of Reorganization in form and substance reasonably acceptable to the Required Lenders and the Debtors or as may be amended or modified in a manner reasonably acceptable to the Required Lenders and the Debtors.

“Acceptable Intermediation Order” means an Intermediation Order in form and substance reasonably acceptable to the Required Lenders and the Debtors or as may be amended or modified in a manner reasonably acceptable to the Required Lenders and the Debtors.

“Acceptable Plan of Reorganization” means a Plan of Reorganization that (a) is in form and substance reasonably acceptable to the Debtors, the Agent, and the Required Lenders (including containing a release in favor of the Agent, the Pre-Petition Agent, the Lenders, the Pre-Petition Lenders and their affiliates) or as may be amended or modified in a manner reasonably acceptable to the Agent, the Required Lenders and the Debtors, and (b) is in form and substance reasonably acceptable to the Debtors and the Required Lenders and contains a provision for termination of the Term Loan Commitments and treatment of the Obligations in accordance with the RSA.

“Account” is any “account” as defined in the UCC, and includes, without limitation, all accounts receivable and other sums owing to any Loan Party.

“Account Debtor” is any “account debtor” as defined in the UCC with such additions to such term as may hereafter be made.

“Act” means the provisions of the Securities Act of 1933, as amended from time to time, and any successor statute thereof.

“Additional Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of each Loan Party arising under, owing pursuant to, or existing in respect of Hedging Agreements entered into with one or more of the Additional Hedge Providers; provided that Additional Hedge Obligations shall not include any obligations (including, without limitation, any Transaction Obligations and Related Hedges (in each case, under and as defined under the Intermediation Facility (as in effect on the Closing Date)) under any Intermediation Contracts or Hedge Facility, including, without limitation, by virtue of setoff or indemnification rights under the Intermediation Facility Documents).

“Additional Hedge Provider” means any Bank Product Provider that is a party to a Hedging Agreement with a Loan Party or otherwise provides Bank Products under clause (f) of the definition thereof; provided for the avoidance of doubt, the Hedge Provider is not an Additional Hedge Provider.

“Additional Secured Obligations” means (x) all fees under the Loan Documents and costs and expenses incurred in connection with enforcement and collection of the Secured Obligations (including the out-of-pocket fees, charges and disbursements of counsel for each of the Agent and the Lenders), in each case whether direct or indirect (including those acquired by assumption), matured or unmatured, absolute or contingent, primary or secondary, liquidated or unliquidated, disputed or undisputed, joint, joint and several, legal, equitable, secured or unsecured, due or to become due, now existing or hereafter arising whether or not any claim for such Indebtedness, liability or obligation is discharged, stayed or otherwise affected by any proceeding under any Debtor Relief Law, including the Bankruptcy Cases and (y) interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, including the Bankruptcy Cases, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that (x) Additional Secured Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party and (y) Additional Secured Obligations shall not include any obligations (including, without limitation, any Transaction Obligations and Related Hedges (in each case, under and as defined under the Intermediation Facility (as in effect on the Closing Date)) under any Intermediation Facility Document, including, without limitation, by virtue of setoff or indemnification rights under the Intermediation Facility Documents).

“Adequate Protection Liens” shall have the meaning assigned such term in the DIP Orders.

“Administrative Questionnaire” means with respect to each Lender, an administrative questionnaire in the form provided or approved by Agent (which form shall be reasonable in light of its scope and purpose) and submitted to Agent duly completed by such Lender.

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

“Affiliate” means, with respect to any Person, any Person that owns or Controls such Person, any Person that Controls or is Controlled by or is under common Control with such Person or each of such Person’s senior executive officers, directors, members or partners. Notwithstanding anything to the contrary, no Secured Party (nor any of their Affiliates or Approved Funds), and none of Macquarie Energy North America Trading Inc., Shell Trading (US) Company, Equilon Enterprises LLC d/b/a Shell Oil Products US, Shell Chemical LP, Synergy Supply & Trading LLC, and Idemitsu Apollo Renewable Corp. (or any of their respective Affiliates) shall be an Affiliate of any Loan Party or of any Subsidiary of any Loan Party.

“Agent” has the meaning given to such term in preamble to this Agreement.

“Agent Fee Letter” means that certain Agent Fee Letter, dated as of the Closing Date, by and between Parent, Borrower and Agent, as may be amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, as amended, and all other Applicable Laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.

“Anti-Money Laundering Laws” means the Applicable Laws, statutes, regulations or rules in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including, but not limited to, the Bank Secrecy Act (31 U.S.C. § 5311 et seq.) and the USA Patriot Act.

“Applicable Law” means, as to any Person, all applicable Laws of any Governmental Authority binding upon such Person or to which such a Person is subject.

“Applicable Rate” shall mean a percentage per annum equal to the Base Rate plus, (v) in the case of New Money Term Loans, 9.50%, (w) in the case of Interim Roll-Up Loans, 9.40%, (x) in the case of Restricted Roll-Up Loans, 9.60% and (y) in the case of Final Roll- Up Loans, 9.40%.

“Approved Bank” has the meaning ascribed thereto in the definition of “Cash Equivalents” contained herein.

“Approved Bankruptcy Court Order” shall mean (a) the DIP Orders and the Cash Management Order, as each such order is amended and in effect from time to time in accordance with this Agreement and (b) any other order entered by the Bankruptcy Court regarding, relating to or impacting (i) any rights or remedies of Agent and Lenders, (ii) the Loan Documents (including the Loan Parties’ obligations thereunder), (iii) the Collateral, any Liens thereon or any DIP Super-Priority Claims (as defined in the DIP Order) (including, without limitation, any sale or other disposition of Collateral or the priority of any such Liens or DIP Super- Priority Claims (as defined in the DIP Order)), (iv) use of Cash Collateral, (v) debtor-in-possession financing, (vi) adequate protection or otherwise relating to the DIP Facility or Pre-Petition Loan Agreement, (vii) the Acceptable Plan of Reorganization, (viii) the Bid Procedures Order, the Scheduling Order, any Sale Order, and (ix) the Intermediation Order, in each case, for clauses (a) and (b), that (x) are in form and substance reasonably acceptable to Agent and the Required Lenders, (y) have not been vacated, reversed or stayed and (y) have not been amended or modified except in a manner reasonably acceptable to the Required Lenders.

“Approved Budget” means the Initial Approved Budget, as the same may be updated, modified or supplemented from time to time as provided in Section 6.23(a)(i).

“Approved Fund” means (a) with respect to any Lender other than the JS Lender, any Fund that is administered or managed by, a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers or manages a Lender and (b) with respect to the JS Lender, any lineal descendant, sibling or other family member(s) of Jennifer Straumins, and each of their respective heirs and estates, and any partnerships, trusts or other investment vehicles formed for the benefit of any of the above.

“Assignment” has the meaning assigned to it in Section 14.1(b).

“Assignment Agreement” means an agreement substantially in the form of Exhibit C attached hereto or such other form as approved by Agent.

“Automatic Stay” means the automatic stay provided under Section 362 of the Bankruptcy Code.

“Availability Period” means the period beginning on the Closing Date and ending on the Term Loan Commitment Termination Date.

“Avoidance Actions” means any of the actions described in clause (c) of the definition of “Collateral”.

“Avoidance Proceeds” has the meaning specified in clause (c) of the definition of “Collateral”.

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

“Bank Product” means any one or more of the following financial products or accommodations extended to any Loan Party or any of its Subsidiaries by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) payment card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedging Agreements.

“Bank Product Agreements” means those agreements entered into from time to time by any Loan Party or any of its Subsidiaries with a Bank Product Provider in connection with the obtaining of any of the Bank Products.

“Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Loan Party and its Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, in each case, other than Additional Hedge Obligations, (b) all Additional Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to a Loan Party; provided that Bank Product Obligations shall not include any obligations (including, without limitation, any Transaction Obligations and Related Hedges (in each case, under and as defined under the Intermediation Facility (as in effect on the Closing Date)) under any Intermediation Facility Document, including, without limitation, by virtue of setoff or indemnification rights under the Intermediation Facility Documents). The Borrower shall provide an officer’s certificate upon the incurrence of any Bank Product Obligations, which shall include the amount of such Bank Product Obligations, the identity of the Bank Product Provider and such information as may be requested by the Agent in connection therewith. The Agent shall have no duties with respect to such holders of Bank Product Obligations in the absence of such certificate.

“Bank Product Provider” means each Person providing the Bank Products to the Loan Parties.

“Bankruptcy Cases” means the cases of the Debtors filed under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court from and after the Petition Date including any and all proceedings arising in or related to such cases.

“Bankruptcy Code” means (x) Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute, or (y) equivalent legislation in any jurisdiction applicable to the Loan Parties.

“Bankruptcy Court” has the meaning given to such term in the recitals to this Agreement.

“Bankruptcy Event of Default” means the occurrence of any of the following in the Bankruptcy Cases:

(a) the bringing of a motion or taking of any action by any of the Loan Parties or any Subsidiary to use cash collateral of the Agent and the other Secured Parties under section 363(c) of the Bankruptcy Code without the prior written consent of the Required Lenders, except as provided in the Interim DIP Order or Final DIP Order;

(b) the filing by any of the Loan Parties of a Plan of Reorganization other than an Acceptable Plan of Reorganization or the entry of an order in the Bankruptcy Cases confirming a Plan of Reorganization that is not an Acceptable Plan of Reorganization;

(c) (i) the entry of an order amending, supplementing, staying, vacating or otherwise modifying the Interim DIP Order or the Final DIP Order in any material respect without the written consent of the Required Lenders or (ii) the Interim DIP Order or the Final DIP Order not being in full force and effect;

(d) after entry of the Final DIP Order, the allowance of any claim or claims under Section 506(c) of the Bankruptcy Code or otherwise against, the Agent, any Lender, any other Secured Party or any of the Collateral;

(e) the entry of an order granting relief from the Automatic Stay under section 362 of the Bankruptcy Code so as to allow a third-party to exercise remedies against a material portion of the Collateral;

(f) (i) the appointment of a trustee, receiver or an examiner (other than a fee examiner) in the Bankruptcy Cases with expanded powers to operate or manage the financial affairs, the business, or reorganization of the Loan Parties, or (ii) the sale without the Required Lenders’ consent of all or substantially all of the Debtors’ assets either through a sale under Section 363 of the Bankruptcy Code, through a confirmed Plan of Reorganization in the Bankruptcy Cases or otherwise that does not result in either the payment in full in cash of all the Obligations, treatment of the Obligations in accordance with the RSA, or as otherwise agreed by the Required Lenders;

(g) the dismissal of the Bankruptcy Cases, or the conversion of the Bankruptcy Cases from one under Chapter 11 to one under Chapter 7 of the Bankruptcy Code or any Loan Party shall file a motion or other pleading seeking the dismissal of the Bankruptcy Cases under Section 1112 of the Bankruptcy Code or otherwise or the conversion of the Bankruptcy Cases to Chapter 7 of the Bankruptcy Code;

(h) any Loan Party shall file a motion seeking, or the Bankruptcy Court shall enter an order granting relief from or modifying the Automatic Stay (i) to allow any creditor (other than the Agent) to execute upon or enforce a Lien on any material portion of the Collateral, (ii) approving any settlement or other stipulation not approved by the Required Lenders (which approval shall not be unreasonably withheld) with any secured creditor of any Loan Party providing for payments as adequate protection or otherwise to such secured creditor, (iii) with respect to any Lien (other than Permitted Liens) on or the granting of any Lien (other than Permitted Liens) on any Collateral to any federal, state or local environmental or regulatory agency or authority which in either case involved a claim of $500,000 or more or (iv) permit other actions that would have a Material Adverse Effect on the Debtors or their estates (taken as a whole);

(i) the commencement of a suit or an action (but not including a motion for standing to commence a suit or an action) against the Agent, any Lender or any other Secured Party and, as to any suit or action brought by any Person other than a Loan Party or a Subsidiary, officer or employee of a Loan Party, the continuation thereof without dismissal for thirty (30) days after service thereof on the Agent, or such any Secured Party, where such suit or action asserts or seeks by or on behalf of a Loan Party, a claim or any legal or equitable remedy or the entry of an order in the Bankruptcy Cases that would (x) have the effect of invalidating, subordinating or challenging any or all of the Obligations or Liens of the Agent (on behalf of the Secured Parties) to any other claim, (other than as contemplated in Annexes 2 or 3), or (y) have a Material Adverse Effect on the rights and remedies of the Agent or the collectability of all or any portion of the Obligations (other than a challenge as to whether an Event of Default has, in fact, occurred and is continuing);

(j) the entry of an order in the Bankruptcy Cases avoiding or permitting recovery of any portion of the payments made on account of the Obligations owing under this Agreement;

(k) the failure of any Loan Party to perform in all material respects any of its obligations under the DIP Orders, the Intermediation Order, any Sale Order, the Scheduling Order or the Bid Procedures Orders, in each case, as determined by the Bankruptcy Court;

(l) the existence of any claims or charges, or the entry of any order of the Bankruptcy Court authorizing any claims or charges, other than the Obligations in, or as otherwise permitted under the applicable Loan Documents or permitted under the DIP Orders, entitled to superpriority administrative expense claim status in the Bankruptcy Cases pursuant to Section 364(c)(1) of the Bankruptcy Code pari passu with or senior to the claims of the Agent and the Secured Parties under this Agreement and the other Loan Documents, or there shall arise or be granted by the Bankruptcy Court (i) any claim having priority over any or all administrative expenses of the kind specified in clause (b) of Section 503 of the Bankruptcy Code or clause (b) of Section 507 of the Bankruptcy Code (other than the Carve Out) or (ii) any Lien on the Collateral having a priority senior to or pari passu with the Liens and security interests granted herein, except, in each case, as expressly provided in the Loan Documents or in the DIP Orders then in effect;

(m) the Interim DIP Order (prior to the entry of the Final DIP Order) or, on and after entry thereof, the Final DIP Order shall cease (i) to create a valid and perfected Lien on the Collateral, (ii) to grant valid, perfected and enforceable super-priority claims with respect to the DIP Facility with the priority provided in the RSA or (iii) to be in full force and effect, shall have been reversed, modified, amended, stayed, vacated, or subject to stay pending appeal, in the case of modification or amendment, without the prior written consent of the Required Lenders;

(n) upon entry of a Final DIP Order, an order in the Bankruptcy Cases shall be entered limiting the extension under Section 552(b) of the Bankruptcy Code of the Liens of the Pre-Petition Agent on the Collateral to any proceeds, products, offspring, or profits of the Collateral acquired by any Loan Party after the Petition Date;

(o) an order of the Bankruptcy Court shall be entered denying or terminating use of Cash Collateral by the Loan Parties;

(p) an order materially adversely impacting the rights and interests of the Agent and the Lenders under the Loan Documents, as reasonably determined by the Required Lenders in good faith, shall have been entered by the Bankruptcy Court or any other court of competent jurisdiction;

(q) any Loan Party shall challenge, support or encourage a challenge of any payments made to the Agent, any Lender, or any Secured Party with respect to the Obligations, or without the consent of the Required Lenders, the filing of any motion by the Loan Parties seeking approval of (or the entry of an order by the Bankruptcy Court approving) adequate protection to any Pre-Petition Agent, or the Pre-Petition Lenders, that is inconsistent with a DIP Order;

(r) without the Required Lenders’ prior written consent, the entry of any order by the Bankruptcy Court granting, or the filing by any Loan Party of any motion or other request with the Bankruptcy Court (in each case, other than the DIP Orders and motions seeking entry thereof or permitted amendments or modifications thereto) seeking, authority to use any cash proceeds of any of the Collateral without the consent of the Agent (at the direction of the Required Lenders) or to obtain any financing under Section 364 of the Bankruptcy Code other than the Loan Documents;

(s) any Loan Party or any person acting validly on behalf of any Loan Party shall file any motion seeking authority to consummate a sale of assets (constituting Collateral or otherwise) outside the ordinary course of business and not permitted hereunder (for the avoidance of doubt, a Third-Party Sale, a Credit Bid Sale, and a Sale shall each be permitted hereunder, in each case, to the extent in accordance with an Approved Bankruptcy Court Order);

(t) any Loan Party shall make any payment (whether by way of adequate protection or otherwise) of principal or interest or otherwise or on account of any pre-petition Indebtedness or payables, in each case, except as otherwise permitted under this Agreement, the RSA, one or more “first day” or “second day” orders, the DIP Orders, or other Approved Bankruptcy Court Orders and consistent with the Approved Budget (subject to Permitted Variances);

(u) without the Required Lenders’ prior written consent, any Loan Party shall file any motion or other request with the Bankruptcy Court seeking (A) to grant or impose, under Section 364 of the Bankruptcy Code or otherwise, Liens or security interests in any Collateral, whether senior, equal or subordinate to the Agent’s Liens and security interests; or (B) to modify or affect any of the rights of the Agent, the Lenders or the Secured Parties under the DIP Orders or the Loan Documents and related documents by any plan of reorganization confirmed in the Bankruptcy Cases or subsequent order entered in the Bankruptcy Cases; or

(v) the entry of the Final DIP Order shall not have occurred within thirty (30) days after the Petition Date.

“Base Rate” shall be, for any day, the greater of (i) the per annum rate publicly quoted from time to time by The Wall Street Journal as the “Prime Rate” in the United States minus 1.50% as in effect on such day and (ii) the sum of the Federal Funds Rate for such day plus 1/2 of 1.0%. In no event shall the Base Rate be less than 1.0%.

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

“Bid Deadline” means the deadline for submitting qualified bids for the Third-Party Sale.

“Bid Procedures Order” means an order to approve the bidding procedures in form and substance reasonably acceptable to the Required Lenders and the Debtors.

“BlackRock Lenders” means each of the Lenders party hereto from time to time that are affiliated with or managed by BlackRock Financial Management, Inc. or any Affiliate thereof.

“Board” means Parent’s board of directors (or equivalent management or oversight body) as elected from time to time in accordance with the Organization Documents and bylaws of Parent in effect from time to time.

“Borrower” has the meaning set forth in the introductory paragraph hereto.

“Borrower Joinder Agreement” means the agreement substantially in the form of Exhibit B-1 hereto.

“Borrower Materials” has the meaning given to such term in Section 6.3(c).

“Business Day” means any day that is not a Saturday, Sunday, or other day on which banks in the State of New York are authorized to close under the laws of, or are in fact closed in, New York.

“Cantor” has the meaning given to such term in preamble to this Agreement.

“Capital Lease Obligations” means, as to any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (consistently applied), and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP (consistently applied); provided that any lease that would properly be recognized as an “operating lease” by Parent as of the Closing Date shall continue to be treated as an operating lease and shall not constitute a Capital Lease Obligation for purposes of this Agreement.

“Carve Out” has the meaning given to the term in the DIP Orders.

“Cash Collateral” has the meaning ascribed to it in section 363(a) of the Bankruptcy Code.

“Cash Equivalents” means, as to any Person: (a) securities issued or directly and guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than twelve (12) months from the date of acquisition; (b) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than twelve (12) months from the date of acquisition and having one of the two highest ratings from either Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., or Moody’s Investors Service, Inc.; (c) certificates of deposit, denominated solely in U.S. Dollars, maturing within 180 days after the date of acquisition, issued by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia or that is a U.S. subsidiary of a foreign commercial bank; in each of the foregoing cases, solely to the extent that: (i) such commercial bank’s short-term commercial paper is rated at least A-1 or the equivalent by Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc. (any such commercial bank, an “Approved Bank”); or (ii) the par amount of all certificates of deposit acquired from such commercial bank are fully insured by the Federal Deposit Insurance Corporation; or (d) commercial paper issued by any Approved Bank (or by the parent company thereof), in each case maturing not more than twelve months after the date of the acquisition thereof.

“Cash Flow Forecast” means a projected statement of sources and uses of cash for the Borrower, prepared in accordance with Section 6.23(a)(i), for the current and following 13 calendar weeks (but not any preceding weeks), including the anticipated uses of the proceeds of the Term Loans for each week during such period. As used herein, “Cash Flow Forecast” shall initially refer to the 13-week cash flow forecast used to prepare the Initial Budget and, thereafter, the most recent Cash Flow Forecast delivered by the Borrower in accordance with Section 6.23(a)(i).

“Cash Management Order” means an order relating to or authorizing, among other things, the continuation of certain cash management services to the Debtors on an emergency, interim or final basis pursuant to Section 364 of the Bankruptcy Code as may be issued or entered by the Bankruptcy Court in the Bankruptcy Cases, in form and substance reasonably acceptable to the Required Lenders and the Debtors.

“Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, credit, purchasing debit card, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, treasury management services (including controlled disbursement services), cash pooling arrangements, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.

“Casualty Event” means any material loss of or damage to any tangible property or interest in tangible property of Parent or any Subsidiary.

“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.

“Certificate of Title Collateral” shall mean all Vehicles and Rolling Stock (to the extent covered by a certificate of title), in each case, with a fair market value in excess of $100,000.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty 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, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means an event or series of events by which:

(a) the direct or indirect Disposition occurs (other than by way of merger or consolidation permitted hereunder), in one or a series of related transactions, of all or substantially all of the Properties or assets of Loan Parties taken as a whole, to any “person” (as that term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended);

(b) the consummation of any transaction (including any merger or consolidation), in one or a series of related transactions, the result of which is that any “person” (as that term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), becomes the beneficial owner, directly or indirectly, of more than 33% of the Equity Interest of Parent, measured by voting power rather than number of shares, units or the like; or

(c) Parent fails to own and control, directly or indirectly, one hundred percent (100%) of the Equity Interests of (x) the Borrower and (y) each other Loan Party, unless, in the case of this clause (y), permitted hereunder.

“Closing Date” means the first date on which all the conditions precedent in Section 3.1 and Section 3.2 are satisfied or waived in accordance with Section 14.1, which date is September 25, 2024.

“Collateral” means all real and personal property and interests in real and personal property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents or the DIP Orders, including but not limited to (provided that, for the avoidance of doubt, “Collateral” shall not include Excluded Property):

(a)

the assets and property listed on Annex 1 (including, without limitation, any Purchase Agreement);

(b)

all Real Property;

(c)

all proceeds recovered by or on behalf of each Loan Party or any trustee of any Loan Party (whether in the Bankruptcy Cases or any subsequent case to which any of the Bankruptcy Cases is converted) as a result of transfers or obligations avoided or actions maintained or taken pursuant to sections 542, 545, 547, 548, 549, 550, 551, 552 and 553 of the Bankruptcy Code or other Debtor Relief Laws (such actions, “Avoidance Actions”), subject to the entry of the Final DIP Order (“Avoidance Proceeds”);

(d)

all “Collateral” referred to in the DIP Order, it being understood that Collateral shall include all such “Collateral,” irrespective of whether any such property was excluded pursuant to the Pre-Petition Loan Agreement or any other Pre-Petition Loan Document; and

(e)

to the extent not otherwise included, all proceeds of the foregoing.

“Collateral Documents” means Article 4 of this Agreement, the DIP Orders, the Mortgages, if any, any Control Agreement, and all other instruments, documents, and agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents which purport to grant to Agent, for the benefit of Secured Parties, a Lien on any real, personal, or mixed property of such Loan Party as security for the Secured Obligations and any power of attorney from time to time granted by Agent in relation to notating the Agent’s Lien on any Certificate of Title Collateral, in each case, as such Collateral Documents may be amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Commercial Tort Claim” means any “commercial tort claim” as defined in the UCC.

“Committee” means an official committee of unsecured creditors appointed in the Bankruptcy Cases.

“Committee Professionals” means the persons or firms retained by the Committee pursuant to section 328 or 1103 of the Bankruptcy Code.

“Competitor” means any Person (other than the Parent or any of its Subsidiaries or any of their respective Affiliates) that is actively engaged in a Similar Business; provided, that an investment bank, a commercial bank, a finance company, a fund, or other Person which merely has an economic interest in any such direct competitor and has no active control of management or governance, shall not be deemed to be a direct competitor for the purposes of this definition.

“Compliance Certificate” has the meaning given to such term in Section 6.4.

“Confidential Information” has the meaning given to such term in Section 14.12.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated Liquidity” means, for any period, an amount determined for the Loan Parties on a consolidated basis, equal to the aggregate sum of (x) Unrestricted Cash of the Loan Parties plus (y) the aggregate principal amount of Term Loan Commitments available to be drawn; provided that any calculation of Consolidated Liquidity for any purpose hereunder shall include a certification from the Loan Parties to the Agent that all accounts payable included in such calculation are within stated invoices terms and are no more than sixty (60) days past due.

“Contingent Obligation” means, as applied to any Person, any obligation, whether contingent or otherwise, with respect to any indebtedness, lease, dividend, letter of credit of such Person or other obligation of another Person, including, without limitation, any obligation of such Person, with respect to (i) undrawn letters of credit, corporate credit cards, or merchant services issued or provided for the account of that Person; and (ii) all obligations arising under any agreement or arrangement designed to protect such Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by Agent in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under such guarantee or other support arrangement.

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

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

“Control Agreement” means an account control agreement, the terms of which are reasonably satisfactory to Agent and Required Lenders (it being agreed that the Agent shall not be obligated to enter into any agreement where it indemnifies a third-party in Agent’s individual capacity; provided that the Control Agreement, if any, entered into on or about the Closing Date is satisfactory to Agent), which is executed by Agent, each Loan Party and the applicable financial institution and/or securities/investment intermediary, and which perfects Agent’s (for itself and for the benefit of the Lenders) first priority security interest in the Loan Parties’ accounts maintained at such financial institution or securities/investment intermediary, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Copyrights” means any and all copyright rights in the United States (whether registered or unregistered and whether published or unpublished), copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, together with any and all (i) rights and privileges arising under Applicable Law with respect thereto and (ii) renewals and extensions thereof.

“Covered Entity” means any of the following:

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

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

“Covered Party” has the meaning given to such term in Section 14.10(b).

“Credit Bid Sale” means a Sale to the Lenders.

“Credit Bid Sale Order” means an order approving the Credit Bid Sale.

“CRO” has the meaning given to such term in Section 6.22(a).

“Current Financial Statements” has the meaning given to such term in Section 5.9. Agreement.

“Debtor” has the meaning given to such term in the recitals to this

“Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, arrangement, compromise, receivership, insolvency, reorganization, or similar debtor relief Laws (including applicable provisions of any corporate laws) of the United States or any state thereof or other applicable jurisdictions from time to time in effect.

“Default” means any event which with the passing of time or the giving of notice or both would become an Event of Default hereunder.

“Default Rate” means the per annum rate of interest equal to (i) the then Applicable Rate, plus (ii) 2% per annum.

“Defaulting Lender” means any Lender that:

(a) has failed to (i) fund any payments required to be made by it under the Loan Documents within two (2) Business Days after any such payment is due (excluding expense and similar reimbursements that are subject to good faith disputes) unless such Lender notifies Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due,

(b) has given written notice (and Agent has not received a revocation in writing), to the Borrower, Agent or has otherwise publicly announced (and Agent has not received notice of a public retraction) that such Lender believes it will fail to fund payments or purchases of participations required to be funded by it under the Loan Documents (unless such writing or public statement relates to such Lender’s obligation to fund a Term Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), or

(c) has, or any Person that directly or indirectly controls such Lender has, (i) become subject to a voluntary or involuntary case under an Insolvency Proceeding, (ii) had a custodian, conservator, receiver or similar official appointed for it or any substantial part of such Person’s assets or (iii) made a general assignment for the benefit of creditors, been liquidated, or otherwise been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be, insolvent or bankrupt, and for this clause (c), Agent has determined that such Lender is reasonably likely to fail to fund any payments required to be made by it under the Loan Documents.

“Deposit Account” means any “deposit account” as defined in the UCC.

“DIP Facility” has the meaning given to such term in the recitals to this Agreement. DIP Order.

“DIP Orders” means, collectively, the Interim DIP Order and the Final

“Disclosure Amount” means $250,000.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a division or otherwise) of any property by any Person (including any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Secured Obligations that are accrued and payable and the termination of the Term Loan Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the payment of any cash dividend or any other scheduled payment constituting a return of capital, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term Loans at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of any Loan Party or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by any Loan Party in order to satisfy applicable statutory or regulatory obligations.

“Disqualified Institution” shall mean any Person that is (i) designated by the Supermajority Lenders by written notice delivered to Agent on or prior to the Closing Date, and listed on Schedule 2 hereto; provided that following the Closing Date, any Disqualified Institution may be removed from Schedule 2 by the Supermajority Lenders by written notice delivered to Agent and no Borrower consent shall be required for such removal.

“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.

“Enforcement Notice Period” has the meaning given to such term in the applicable DIP Order.

“Environmental Claim” means any complaint, summons, citation, notice, notice of potential liability, notice of violation, directive, order, claim, suit, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority or any other Person arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder; (ii) in connection with the actual or alleged presence or Release of Hazardous Materials; (iii) exposure of any Person to any Hazardous Materials; or (iv) in connection with any actual or alleged liability under Environmental Law arising from any damage, injury, threat or harm to human health or safety (to the extent relating to exposure of any Person to Hazardous Materials), natural resources or the environment.

“Environmental Law” means any Law or any binding and enforceable judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party and/or any Subsidiary thereof, relating to (i) the protection of human health or safety (to the extent relating to exposure of any Person to Hazardous Materials) and the environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the manufacture, processing, handling, generation, use, disposal, production, storage, handling, treatment, Release or transport of, or exposure of Persons to, Hazardous Materials, (iv) occupational health and safety (to the extent relating to exposure of any Person to Hazardous Materials) or (v) pipeline safety, in each case as amended from time to time.

“Environmental Liabilities” means all liabilities, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) any violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure of any Person to any Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement to the extent pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.

“Equity Interests” mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant, convertible debt or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

“Equity Issuance” means, any issuance by any Loan Party or any of its Subsidiaries to any Person of its Equity Interests.

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

“ERISA Affiliate” means, with respect to any Loan Party, any entity, trade or business (whether or not incorporated) under common control with the Loan Party within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) for purposes of provisions relating to Section 412 of the Internal Revenue Code).

“ERISA Event” means (a) a Reportable Event (other than the Bankruptcy Cases or the events giving rise thereto) with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan; (g) the filing of a notice of intent to terminate a Pension Plan, 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; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan other than the Bankruptcy Cases or the events giving rise thereto; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Parent or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code, (k) the filing by a Loan Party or any ERISA Affiliate of an application with respect to a Pension Plan for a waiver of the minimum funding standard under Section 412(c) of the Code or Section 302(c) of ERISA, or (l) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan.

“Erroneous Payment” has the meaning assigned to it in Section 12.11(a).

“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 12.11(d)(i).

“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 12.11(d)(i).

“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 12.11(d)(i).

“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 12.11(e).

“Event of Default” has the meaning given to such term in Section 8.

“Exchange” has the meaning given to such term in Section 6.21(d).

“Excluded Account” means (a) any tax, trust, or payroll account (including, without limitation, accounts used for payroll, payroll taxes, workers’ compensation or unemployment compensation premiums or benefits and other employee wage and benefit payments to or for the benefit of any Loan Party’s employees or for other trust or fiduciary purposes of a Loan Party or accounts of a Loan Party used specifically and exclusively for holding any other taxes required to be collected or withheld by a Loan Party (including, without limitation, federal and state sales, use and excise taxes, customs duties, import duties and independent customs brokers’ charges) for which any Loan Party is or may reasonably be expected to be liable), so long as such deposit account contains only funds to be used exclusively for taxes, trust obligations and payroll obligations, (b) in accordance with the Intermediation Order, an account solely used to post cash collateral or margin to an Intermediator to secure any Intermediation Facility (including, without limitation, any account used to hold any Independent Amount), (c) any account solely used to post cash collateral or margin to any Bank Product Provider to secure Non-LSA Hedges up to an amount not to exceed $750,000 and (d) other deposit accounts, so long as at any time the balance in any such account does not exceed $250,000 and the aggregate balance in all such accounts does not exceed $1,000,000.

“Excluded Property” means, with respect to any Loan Party, (a) any property which, subject to the terms of clause (c) of “Permitted Indebtedness”, is subject to a Lien of the type described in clause (c) of “Permitted Liens” pursuant to documents that prohibit such Loan Party from granting any other Liens in such property, (b) Excluded Accounts (other than clause (d) of such definition which shall not be Excluded Property), (c) any contract, permit, license or any contractual obligation entered into by any Loan Party (A) that prohibits or requires the consent of any Person other than any Loan Party and its Affiliates (which consent has not been obtained) as a condition to the creation by such Loan Party of a Lien on any right, title or interest in such permit, license or contractual obligation or any equity interest related thereto or that would be breached or give the other party to the right to terminate such permit, license or contractual obligation as a result thereof or (B) to the extent that any requirement of law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition or requirement for consent in clauses (A) and (B), to the extent, and for as long as, such prohibition or requirement for consent (x) was not entered into in contemplation of this Agreement and (y) is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other requirement of law or by the receipt of the applicable Person whose consent is required, (d) any “intent to use” trademark application for registration of a Trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, (e) Intermediation Excluded Property and (f) Avoidance Actions; provided that, subject to the entry of the Final DIP Order, the proceeds of any Avoidance Action shall not be Excluded Property.

“Excluded Subsidiary” means (x) as of the Closing Date, VRM-LA and (y) any Subsidiary that is prohibited, but only so long as such Subsidiary would be prohibited, by any contract entered into by any Loan Party or any Subsidiary acquired after the Closing Date (but only to the extent in existence on the Closing Date or, upon the acquisition of any Subsidiary and in respect of such Subsidiary, in existence on the date of acquisition thereof and, in each case, only to the extent not entered into in contemplation of this Agreement or is not terminated or rendered unenforceable or otherwise deemed ineffective by the Code or any other requirement of law) with one or more unaffiliated third parties, from providing a guaranty of the Secured Obligations or granting a Lien on its assets to secure the Secured Obligations or that would require third-party contractual authorization to provide such a guaranty or grant such a Lien unless such authorization has been received (it being understood that the Loan Parties shall not be obligated to seek any authorization except to the extent it is commercially reasonable to do so); provided that the exclusion in this clause (y) shall in no way be construed to (A) apply to the extent that any described prohibition is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the Code or other Applicable Law, or (B) limit, impair, or otherwise affect any of the Agent’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (1) monies due or to become due under or in connection with the Equity Interests of such Excluded Subsidiary, or (2) any proceeds from the sale, license, lease, or other dispositions of the Equity Interests of such Excluded Subsidiary; provided that in the case of clauses (x) or (y) above, such Subsidiary or Subsidiaries shall, upon no longer constituting an “Excluded Subsidiary”, promptly (and, in all events, within 10 Business Days or such longer period as the Required Lenders shall reasonably agree) comply with Sections 6.11 and 6.12.

“Excluded Swap Obligation” means, with respect to any Loan Party, any Additional Hedge Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of (including by virtue of the joint and several liability provisions of Section 14.10), or the grant by such Loan Party of a security interest to secure, such Additional Hedge Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Additional Hedge Obligation. If an Additional Hedge Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Additional Hedge Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Term Loan or Term Loan Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Term Loan or Term Loan Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.9, 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 2.9(g) and (d) any withholding Taxes imposed under FATCA.

“Existing Convertible Notes” means the 6.25% Convertible Senior Notes due 2027 issued pursuant to the Existing Convertible Notes Indenture.

“Existing Convertible Notes Indenture” means the Indenture, dated as of November 1, 2021, by and between Parent and U.S. Bank Trust Company, National Association as successor in interest to U.S. Bank National Association, as Trustee, as in effect on the date hereof.

“FATCA” means Sections 1471 through 1474 of the 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), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue 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 Internal Revenue Code.

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

“Fee Letter” means that certain Fee Letter, dated as of the Closing Date, by and between Parent, Borrower and the Initial Lenders, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Final DIP Order” means a Final DIP Order entered by the Bankruptcy Court (i) authorizing the Debtors to (a) obtain post-petition secured financing pursuant to this Agreement and (b) use Cash Collateral during the pendency of the Bankruptcy Cases, and (ii) granting certain related relief on a final basis, in form and substance reasonably acceptable to the Agent, the Required Lenders and the Borrower, as the same may be amended, modified or supplemented from time to time with the express written joinder or consent of the Agent (at the direction of the Required Lenders), the Required Lenders and the Borrower.

“Final Effective Date” means the first date after (i) the entry of the Final DIP Order and (ii) the Interim Effective Date.

“Final Roll-Up Lender” has the meaning specified therefor in Section 2.1(d).

“Final Roll-Up Loans” has the meaning specified therefor in Section 2.1(d).

“Flood Laws” means all Applicable Law relating to policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and other Applicable Law related thereto.

“Foreign Lender” means any Lender that is not a U.S. Person.

“Fund” means any Person (other than a natural Person), fund, commingled investment vehicle or managed account that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities.

“Funds Flow Memorandum” shall mean each funds flow memorandum to delivered with a Notice of Borrowing and executed and delivered by the Borrower to the Agent in connection with the application of Term Loan proceeds on any proposed borrowing date, which funds flow memorandum shall be in form and substance reasonably satisfactory to the Lenders.

“GAAP” means, as of any date of determination, generally accepted accounting principles as then in effect in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board.

“GDPR” means the European Union General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 of the European Parliament and the Council of the European Union and all regulations promulgated thereunder.

“Goods” means any “goods” as defined in the UCC.

“Governmental Authority” means (a) any United States federal, state, county, municipal or foreign government, or political subdivision thereof, (b) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body, (c) any court or administrative tribunal or (d) with respect to any Person, any arbitration tribunal or other similar non-governmental authority to whose jurisdiction that Person has consented.

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in the definition thereof or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guaranteed Obligations” has the meaning given to such term in Section 13.1.

“Guarantor Joinder Agreement” means the agreement substantially in the form of Exhibit B-2 hereto.

“Guarantors” has the meaning given to such term in the preamble. “Guaranty” means, collectively, the Guarantee made by the Guarantors under Article 13 in favor of the Secured Parties, together with each other guaranty delivered pursuant to Section 6.11, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Hazardous Materials” means (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid or gas, in each case, whether naturally occurring or manmade, that is defined, designated, identified or classified as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental Law, or for which liability or standards of care are imposed by, any Environmental Law; and (b) any petroleum, petroleum distillate or petroleum-derived substances or products, crude oil, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil or natural gas, radon, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos- containing materials, lead or lead-containing materials, urea formaldehyde foam insulation, and polychlorinated biphenyls.

“Hedging Agreement” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time; provided that, notwithstanding anything to the contrary, Intermediation Contracts and Hedge Facility shall not constitute a Hedging Agreement hereunder.

“Hedging Obligations” has the meaning set forth in Annex 4.

“Highbridge Lenders” means each of the Lenders party hereto that are managed by Highbridge Capital Management, LLC.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money (including interest whether charged at the Applicable Rate or otherwise) or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, including any earn-out obligations, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business and not more than sixty (60) days past due), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Contingent Obligations of such Person (not in duplication of any other clause of this definition), (h) all Capital Lease Obligations and Synthetic Lease Obligations of such Person, (i) all obligations of such Person as an account party in respect of letters of credit, (j) all obligations of such Person in respect of bankers’ acceptances, (k) obligations in respect of Disqualified Equity Interests, and (l) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including any Hedging Agreement, in each case, whether entered into for hedging or speculative purposes or otherwise. The amount of any Indebtedness of any Person in respect of a Hedging Agreement shall be the amount determined in respect thereof as of the end of the then most recently ended calendar quarter of such Person, based on the assumption that such Hedging Agreement had terminated at the end of such calendar quarter. In making such determination, if any agreement relating to such Hedging Agreement provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined, in each case to the extent that such agreement is legally enforceable in Insolvency Proceedings against the applicable counterparty thereof. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venture; provided that Indebtedness will not be deemed to include obligations incurred in advance of, and the proceeds of which are to be applied in connection with, the consummation of a transaction (including any proceeds held in an escrow, trust, collateral or similar account or arrangement for a period of no longer than thirty (30) days (or such longer period to which the Required Lenders may reasonably agree)).

“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 Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Initial Approved Budget” means the budget prepared by the Loan Parties in the form of Exhibit J attached hereto and initially furnished to the Agent and Required Lenders on the Closing Date and which is approved by, and in form and substance satisfactory to the Required Lenders.

“Initial Lender” means each of the Whitebox Lenders, the Highbridge Lenders, the BlackRock Lenders, CrowdOut Credit Opportunities Fund LLC, CrowdOut Capital LLC and the JS Lender.

“Insolvency Proceeding” means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law (domestic or foreign), including assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.

“Intellectual Property” means all of a Person’s right, title, and interest in and to the following: Copyrights, Trademarks and Patents (including registrations and applications therefor prior to granting, and whether or not filed, recorded or issued); domain names; all trade secrets and related rights, including without limitation rights to unpatented inventions, know-how and manuals; all design rights; claims for damages by way of past, present and future infringement of any of the rights included above; all amendments, renewals and extensions of any Copyrights, Trademarks or Patents; all licenses or other rights to use any of the foregoing and all license fees and royalties arising from such use; and all proceeds and products of the foregoing.

“Intellectual Property Security Agreement” means an intellectual property security agreement to be filed with the USPTO if required by the terms of the DIP Orders in form and substance satisfactory to the Required Lenders in their reasonable discretion with respect to Intellectual Property, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Interest Payment Date” shall mean (a) the last Business Day of each calendar month commencing October 2024 to occur during any period in which any Term Loan is outstanding and (b) the Maturity Date.

“Interim DIP Order” means the interim order entered by the Bankruptcy Court (i) authorizing the Debtors to (a) obtain post-petition secured financing pursuant to this Agreement and (b) use cash collateral during the pendency of the Bankruptcy Cases, and (ii) granting certain related relief on an interim basis substantially in the form of Exhibit A, as the same may be amended, modified or supplemented from time to time with the express written joinder or consent of the Agent (at the direction of the Required Lenders), the Required Lenders and the Borrower.

“Interim Effective Date” means the first date after (i) the entry of the Interim DIP Order and (ii) the Closing Date.

“Interim Facility Amount” means, $39,390,204.38.

“Interim Period” means the period commencing on the Interim Effective Date and ending on (but excluding) the earlier to occur of (a) the Final Effective Date and (b) the Term Loan Commitment Termination Date.

“Interim Roll-Up Lender” has the meaning specified therefor in Section 2.1(b).

“Interim Roll-Up Loans” has the meaning specified therefor in Section 2.1(b).

“Intermediation Facility” means that certain Supply and Offtake Agreement, dated as of April 1, 2022, entered into by and among the Intermediator and certain of the Loan Parties (including any replacement or refinancing of thereof), as amended, modified or supplemented from time to time in accordance with the terms thereof and subject to and in accordance with the terms and conditions of an Acceptable Intermediation Order.

“Intermediation Facility Documents” means the agreements documenting the Intermediation Facility between a Loan Party and the Intermediator, including, the Intermediation Contracts and Intermediation Order, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Intermediation Facility Obligations” means the Intermediation Obligations (as defined in Annex 4), but for the avoidance of doubt, excluding all Hedge Obligations.

“Intermediation Order” means the Intermediation Order (as defined in Annex 4).

“Intermediator” means Macquarie Energy North America Trading Inc.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“Inventory” means “inventory” as defined in the UCC, including work in process and finished products intended for sale or lease or to be furnished under a contract of service, of every kind and description now or at any time hereafter owned by or in the custody or possession, actual or constructive, of any Loan Party, including such inventory as is temporarily out of its custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, and each Loan Party’s Books relating to any of the foregoing.

“Investment” means any beneficial equity ownership in any Person (including stock, partnership interest or other securities), any purchase or other acquisition of debt or other securities of any Person, any loan, advance or capital contribution to, or Guarantee or assumption of debt of, any Person (including any partnership or joint venture interest in any Person), or the purchase or other acquisition (in one transaction or series of transactions) of all or substantially all of the property and assets or business of any Person or assets constituting a business unit, line of business or division of any Person.

“Involuntary Disposition” means any loss of damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party.

“IRS” means the United States Internal Revenue Service.

“JS Lender” means Jennifer Straumins, a natural Person, in her capacity as a Lender hereunder.

“Knowingly” has a correlative meaning of undertaking an action with Knowledge.

“Knowledge” means, with respect to a Person, the knowledge of the individuals of such Person, including a Responsible Officer, who have the responsibility for any day-to-day decision making, or legal, operational, or financial affairs of such Person, which knowledge shall include any and all facts and other information of such Person actually knew or reasonably should have known in accordance with all applicable industry standards and commercially reasonable prudence and diligence.

“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“Lender Expenses” means all reasonable and documented out-of-pocket costs or expenses (including reasonable attorneys’ fees and expenses), incurred by Agent or any Lender in connection with the preparation, negotiation, administration, any Default or Events of Default, and enforcement of the Loan Documents or the DIP Orders (including without limitation the reasonable and documented (1) legal fees and expenses of (i) Sidley Austin LLP, counsel for the Lender Group, (ii) Shipman & Goodwin LLP, counsel to the Agent, (iii) Latham & Watkins LLP, as special counsel for the JS Lender with scope of role and limitations as agreed by JS Lender and the Borrower; provided that such expenses for the JS Lender shall not exceed $100,000 per month after the Closing Date, and (iv) one local counsel in each applicable jurisdiction for the Lenders as a group and the Agent and one of each of any specialty/regulatory/tax counsel as reasonably required by the Agent or any Lender, and (2) fees, expenses and disbursements of an appraiser, investment banker, consultant and/or financial advisor employed or retained by the Secured Parties or their counsel for the Lenders as a group limited to one of each category), including any amendments, modifications, consents and waiver to and/or under any and all Loan Documents, the Interim DIP Order, the Final DIP Order and any transaction contemplated thereby (whether or not the transactions contemplated hereby or thereby shall be consummated) and any refinancing of the obligations hereunder or any “exit financing” requested by the Loan Parties in connection with the Bankruptcy Cases; any public record searches conducted by or at the request of Agent from time to time, including without limitation, title investigations, public records searches, pending litigation and tax lien searches and searches for applicable corporate, limited liability, partnership and related records; reasonable Collateral audit fees incurred by Agent or any Lender; and Agent’s and any Lender’s reasonable costs and expenses (including but not limited to reasonable and documented out-of-pocket attorneys’ fees and expenses) incurred before, during and/or after an Insolvency Proceeding (including, for the avoidance of doubt, the Bankruptcy Cases) (i) protecting, storing, insuring, handling, maintaining, auditing, examining, valuing or selling any Collateral; (ii) maintaining, amending, enforcing, collecting, performing (including any workout or restructuring) or defending the Loan Documents or DIP Orders; or incurred in any other matter or proceeding relating to the Loan Documents or DIP Orders (including in all cases, without limit, court costs, settlement costs, legal expenses and reasonable attorneys’ fees and expenses, whether or not suit is instituted, and, if suit is instituted, whether at trial court level, appellate court level, in a bankruptcy, probate or administrative proceeding or otherwise); and (iii) the preparation and review of pleadings, documents and reports related to the Bankruptcy Cases and any successor cases, attendance at meetings, court hearings or conferences related to the Bankruptcy Cases or any successor cases, and general monitoring of the Bankruptcy Cases and any successor cases.

“Lender Group” means the Initial Lenders, their respective Affiliated and Approved Funds and their permitted successors and assignees pursuant to Section 14.1 hereof.

“Lenders” shall mean collectively, the New Money Lenders and the Roll-Up Lenders.

“Letter of Credit Rights” means any “letter of credit right” as defined in the UCC.

“Lien” means any pledge, bailment, lease, mortgage, deed of trust (or similar instrument), hypothecation, conditional sales and title retention agreement, charge, claim, encumbrance, preference, priority or other lien (statutory or otherwise) in favor of any Person, including any Lien (as defined in Annex 2).

“Loan and Security Agreement” means this Agreement.

“Loan Documents” means, collectively, this Agreement, each Note, each Approved Budget, each Variance Report, the Agent Fee Letter, the Fee Letter, any Borrower Joinder Agreement, any Guarantor Joinder Agreement, each Notice of Borrowing, the Collateral Documents, and all other documents, instruments and agreements executed or delivered by any Loan Party to or for the benefit of Agent and Lenders in connection with this Agreement, all as amended or extended from time to time, including for the avoidance of doubt, any other agreements, consents or waivers entered into which are designated therein as a “Loan Document”.

“Loan Party” means the Borrower and each Guarantor.

“Material Adverse Effect” means a material adverse effect on (i) the business, operations, assets, liabilities, prospects or condition (financial or otherwise) of Parent and the other Loan Parties taken as a whole, (ii) the ability of Borrower to repay the Secured Obligations or any Loan Party to otherwise perform its obligations under the Loan Documents taken as a whole, or (iii) the validity, perfection or priority of, or any impairment to, Agent’s security interests in the Collateral or Agent’s right to enforce any of its rights or remedies with respect to the Secured Obligations; provided, that, the commencement of the Bankruptcy Cases or any sale or other liquidation of any, all or substantially all of Debtors’ assets in such Bankruptcy Cases in accordance with the terms of the RSA, an Approved Bankruptcy Court Order, or this Agreement shall not, individually or collectively, constitute a Material Adverse Effect.

“Material Contracts” means any contract or agreement (whether written or oral) to which any Loan Party is a party where the aggregate consideration payable to or by such Loan Party pursuant to the terms of such contract or agreement exceeds 10% of such Loan Party’s expenditures for contracts or agreements of such type, with the types of “expenditures” being (A) Revenue, (B) costs and (C) operating expenditures, as amended, restated, supplemented or otherwise modified from time to time.

“Matheson Documents” means, collectively, as amended, restated, supplemented or otherwise modified from time to time, (i) the Hydrogen and Steam Supply Agreement by and between Borrower and Matheson Tri-Gas, Inc., as successor in interest to Linde Gas LLC, dated as of June 11, 2022; (ii) the A&R Hydrogen and Steam Supply Agreement by and between Vertex Refining Alabama LLC, as successor in interest to Shell Chemical LP, and Matheson Tri-Gas, Inc., as successor in interest to Linde Gas LLC, dated as of January 12, 2006 and amended as of March 31, 2020; and (iii) the Ground Lease Agreement by and between Vertex Refining Alabama LLC as successor in interest to Linde Gas LLC and Matheson Tri-Gas, Inc. as successor in interest to Shell Chemical LP, dated as of January 12, 2006.

“Maturity Date” shall mean the earliest to occur of (a) the date that is four (4) months after the Closing Date, which may be extended, at the Borrower’s election so long as no Default or Event of Default shall have occurred and be continuing, by two (2) one-month extensions, subject to the payment of the Extension Fee (as defined in the Fee Letter) for each such one-month extension, (b) the date that is thirty (30) days after the Petition Date if the Final DIP Order has not been approved by the Bankruptcy Court on or prior to such date, (c) the Plan Effective Date, and (d) the date the Agent, at the direction of the Required Lenders, delivers the Termination Declaration (as defined in the DIP Orders) to the Borrower.

“Mobile Refinery” means that certain refinery and related assets in Mobile, Alabama.

“Mortgage” means a mortgage, deed of trust, trust deeds, or deed to secure debt, in form and substance reasonably satisfactory to the Required Lenders, made by a Loan Party in favor of Agent for the benefit of Agents and the Lenders, securing the Secured Obligations and delivered to Agent, in each case, as amended, amended and restated, replaced, supplemented or otherwise modified from time to time.

“Multiemployer Plan” means any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) to which a Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six years has made or been obligated to make contributions.

“Named Executive Officers and Directors” means (a) the Persons currently serving (x) in the roles listed as Named Executive Officers (as defined in the Parent’s SCHEDULE 14A filed with the SEC on April 29, 2024), (y) as any other C-level officer, including on an interim basis, of Parent established from time to time, including the CRO, but excluding the current general counsel and (z) as the members of the Board, but excluding independent and disinterested members of the Board, (b) any Person serving as a successor to any such Person described in clause (a), including on an interim basis (which for the avoidance of doubt would exclude independent and disinterested members of the Board but not any successor general counsel) and (c) any such Person described in the foregoing clauses (a) or (b) serving in any other role or capacity with Parent or its Subsidiaries.

“Negotiable Collateral” means all Collateral of which any Loan Party is a beneficiary, including, letters of credit, notes, drafts, instruments, securities, documents of title, and chattel paper, and such Loan Party’s Books relating to any of the foregoing.

“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by Parent or any Subsidiary in respect of any Disposition, Equity Issuance, or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees and sales commissions), (b) taxes paid or payable as a result thereof and (c) in the case of any Disposition or any Involuntary Disposition, the amount necessary to retire any Indebtedness permitted to be incurred hereunder and secured by a Permitted Lien (ranking senior to any Lien of the Agent) on the related property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by Parent or any Subsidiary in any Disposition, Equity Issuance, or Involuntary Disposition.

“New Money Facility” has the meaning given to such term in the recitals to this Agreement.

“New Money Lenders” means the Lenders providing the New Money Term Loans.

“New Money Term Loans” has the meaning specified therefor in Section 2.1(a).

“New Owned Property” has the meaning specified therefor in Section 6.14(c).

“Non-LSA Hedges” has the meaning specified therefor in clause (l) of “Permitted Liens”.

“Note” means a secured promissory note in favor of a Lender in substantially the form of Exhibit E.

“Notice of Borrowing” means a notice of borrowing of a Term Loan pursuant to the terms of this Agreement in substantially the form of Exhibit D.

“Obligations” means all debt, principal, interest, fees, charges, indemnities, Lender Expenses, and other amounts owing by Borrower or any other Loan Party to Agent or a Lender of any kind and description whether arising under or pursuant to or evidenced by the Loan Documents, regardless of how such obligation arises or by what Loan Document it may be evidenced, whether or not for the payment of money, whether direct or indirect, matured or unmatured, absolute or contingent, primary or secondary, liquidated or unliquidated, disputed or undisputed, joint, joint and several, legal, equitable, secured or unsecured, due or to become due, now existing or hereafter arising, including the principal and interest due with respect to the Term Loans and including all Lender’s Expenses that Borrower or any other Loan Party is required to pay or reimburse by the Loan Documents, by law, or otherwise, whether or not any claim for such Indebtedness, liability or obligation is discharged, stayed or otherwise affected by any proceeding under any Debtor Relief Law.

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

“Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction), (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

“Other Connection Taxes” means, with respect to any Recipient, 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 Loan Document, or sold or assigned an interest in any Term Loan or Loan Document).

“Other Taxes” means 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, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

“Parent” has the meaning given to such term in preamble to this Agreement.

“Participant” has the meaning specified in Section 14.1(e).

“Participant Register” has the meaning specified in Section 14.1(e).

“Patents” means all issued patents, patent applications and like protections including without limitation rights and privileges arising under Applicable Law with respect thereto (in the United States), inventions, improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.

“Payment Recipient” has the meaning assigned to it in Section 12.11(a).

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

“Pension Plan” means any “employee benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to Title IV of ERISA or Sections 412 of the Internal Revenue Code or Section 302 of ERISA, and which is or was, within the preceding six years, maintained, or required to be contributed to, a Loan Party or any ERISA Affiliate.

“Permitted Disposition” has the meaning given to such term in Section 7.2.

“Permitted Equity Issuance” means (x) any Equity Issuance by a Loan Party to Parent, the Borrower or another Loan Party resulting from any Loan Party forming a Subsidiary in accordance with the terms hereof, which Subsidiary shall also become a Loan Party, the issuance by such Subsidiary of Equity Interests to such Loan Party and (y) the issuance of Equity Interests by a Subsidiary of a Loan Party to its parent or member in connection with the contribution by such parent or member to such Subsidiary of the proceeds of an issuance described in clause (x) above.

“Permitted Indebtedness” means the following:

(a) Indebtedness of any Loan Party in favor of Agent or a Lender arising under this Agreement or any other Loan Document;

(b) Indebtedness existing on the Closing Date, including under the Pre- Petition Loan Agreement and the Existing Convertible Notes;

(c) Indebtedness consisting of capital leases or purchase money obligations in an amount not to exceed $1,000,000 to the extent contemplated by the Approved Budget;

(d) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is promptly extinguished;

(e) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(f) Indebtedness of any Loan Party arising from Bank Products provided by Bank Product Providers; provided that in the case of Additional Hedge Obligations (which shall not include the Hedge Obligations under the Hedge Facility): (i) such obligations are (or were) entered into by such Person in the ordinary course of business and not for purposes of speculation and (ii) such Hedging Agreement does not contain any provision exonerating the non- defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

(g) Indebtedness consisting of the financing of insurance premiums contemplated by clause (h) of the definition of “Permitted Liens”;

(h) other obligations of any kind not to exceed at any time outstanding more than $1,000,000 to the extent contemplated by the Approved Budget;

(i) Indebtedness of the Loan Parties with respect to performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business requiring no more than $3,000,000 per year in premiums and/or penalty payments;

(j) intercompany Indebtedness by and among Parent and its Subsidiaries (subject to clause (c) of the definition of “Permitted Investments”);

(k) other obligations to the extent permitted in the DIP Orders or otherwise contemplated by the Approved Budget;

(l) advances or deposits received in the ordinary course of business from customers or vendors;

(m) (x) Intermediation Obligations, including deferred payment obligations, incurred by any Loan Party under the Intermediation Contracts in accordance with an Acceptable Intermediation Order and (y) Hedge Obligations incurred by any Loan Party under the Hedge Facility in accordance with an Acceptable Intermediation Order; and

(n) guarantees in respect of any Permitted Indebtedness.

“Permitted Investment” means:

(a) Investments existing on the Closing Date as permitted in the DIP Orders;

(b) Investments constituting cash and Cash Equivalents;

(d) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of the Loan Parties’ business;

(e) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;

(f) Investments in accounts at financial institutions; provided, that such accounts are permitted pursuant to Section 7.11 and Agent has a perfected security interest in the amounts held in such deposit accounts as required pursuant to Section 7.11;

(g) [reserved];

(h) deposits made to secure the performance of leases, licenses or contracts in the ordinary course of business, and other deposits made in connection with the incurrence of Permitted Liens; and

(i) Investments (other than Investments in Excluded Subsidiaries) in accordance with (and as specifically identified in) the Approved Budget.

“Permitted Liens” means the following:

(a) Liens existing on the Closing Date;

(b) Liens for taxes, fees, assessments or other governmental charges or levies that are delinquent and for which the applicable Loan Party maintains adequate reserves;

(c) Liens on fixed or capital assets which secure Indebtedness permitted under clause (c) of the definition of Permitted Indebtedness;

(d) non-exclusive licenses or sublicenses of Intellectual Property granted to third parties in the ordinary course of business that do not materially interfere with the business of the Parent or any of its Subsidiaries;

(e) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.4 or Section 8.6;

(f) Liens in favor of other financial institutions arising in connection with Loan Parties’ deposit accounts or securities accounts held at such institutions to secure standard fees for services charged by, but not financing made available by such institutions; provided that Agent, for itself and the benefit of Lenders has a perfected security interest in the amounts held in such accounts to the extent required under Section 7.11 of this Agreement;

(g) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods;

(h) Liens on insurance proceeds in favor of insurance companies granted solely as security for financed premiums;

(i) Liens on deposits securing obligations with suppliers entered into in the ordinary course of business and 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;

(j) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business; provided that such Liens attach only to Inventory and secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same;

(k) (x) Intermediation Liens arising under the Intermediation Facility Documents to secure Permitted Indebtedness under clause (m) of the definition thereof and (y) Hedging Liens arising under the Hedge Facility, in each case, in accordance with the terms of an Acceptable Intermediation Order and subject to the Lien priorities set forth in Annex 2;

(l) Liens in favor of a Bank Product Provider securing Bank Product Obligations constituting Permitted Indebtedness under clause (f) of the definition thereof but not constituting Secured Obligations hereunder (any such obligations, “Non-LSA Hedges”); provided that the value of collateral securing such Bank Product Obligations shall not exceed $750,000 in the form of cash collateral held in Excluded Accounts under clause (c) of the definition thereof; provided further that any such Liens are subject to the DIP Orders;

(m) Liens to secure workers’ compensation, employment insurance, old- age pensions, social security and other like obligations incurred in the ordinary course of business;

(n) Adequate Protection Liens subject to the Lien priorities set forth in Annex 2;

(o) Liens granted in favor of the Agent to secure the Secured Obligations subject to the Lien priorities set forth in Annex 2;

(p) Liens granted with respect to Indebtedness permitted under clause (j) of Permitted Indebtedness;

(q) Leases and rights of usage granted to Matheson Tri-Gas, Inc. pursuant to the Matheson Documents but for the avoidance of doubt, obligations of the Loan Parties under the Matheson Documents are not permitted to be secured by a Lien granted by the Loan Parties to Matheson Tri-Gas, Inc.; and

(r) other Liens to the extent permitted in the DIP Orders or otherwise contemplated by the Approved Budget.

“Permitted Variance” has the meaning given to such term in Section 6.23(b).

“Person” means and includes any individual, any partnership, any corporation, any business trust, any joint stock company, any limited liability company, any unincorporated association or any other entity and any Governmental Authority.

“Petition Date” has the meaning given to such term in recitals to this Agreement.

“PIK Interest Amount” has the meaning given to such term in Section 2.4(a).

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Multiemployer Plan, established, maintained or required to be contributed to by a Loan Party or, with respect to any such plan that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, by any ERISA Affiliate.

“Plan Effective Date” means the effective date of a Plan of Reorganization in the Bankruptcy Cases.

“Plan of Reorganization” means a plan of reorganization or liquidation filed by the Debtors under chapter 11 of the Bankruptcy Code.

“Platform” has the meaning given to such term in Section 6.3(c).

“Pledged Entity” means an issuer of pledged Equity Interests or holder of pledged Indebtedness, in each case, owned by any Loan Party.

“Pledged Securities” means all Equity Interests of a Pledged Entity now owned or hereafter acquired by any Loan Party.

“Pre-Petition” means the time period ending immediately prior to the filing of the Bankruptcy Cases.

“Pre-Petition Agent” shall mean the “Agent” under and as defined in the Pre-Petition Loan Agreement.

“Pre-Petition Lenders” shall mean the “Lenders” under and as defined in the Pre-Petition Loan Agreement.

“Pre-Petition Loan Agreement” has the meaning given to such term in the recitals to this Agreement.

“Pre-Petition Loan Documents” shall mean the “Loan Documents” under and as defined in the Pre-Petition Loan Agreement.

“Pre-Petition Loans” shall mean the “Term Loans” under and as defined in the Pre-Petition Loan Agreement.

“Preferred Stock”: as applied to the Equity Interests of any corporation or company, Equity Interest of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, redemptions upon liquidation, dissolutions or winding up or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Equity Interests of any other class of such corporation or company.

“Prepayment Event” means the occurrence of any of the following events or circumstance prior to the Maturity Date: (a) all or any portion of the Secured Obligations evidenced by the Term Loans are refinanced, repaid, prepaid or replaced or modified by operation of Law or reduced for any reason prior to the date of any scheduled repayment pursuant to this Agreement, including, without limitation, as a result of any optional or mandatory repayments of the Term Loans, by acceleration or otherwise, (b) there is a Bankruptcy Event of Default, (c) all or any portion of the Obligations evidenced by the Term Loans are satisfied as a result of a foreclosure sale, deed in lieu or by similar means (including, without limitation, (x) a foreclosure or enforcement of any Lien on the Collateral pursuant to the Loan Documents or (y) a sale of the Collateral in any proceeding under Debtor Relief Laws) or (d) this Agreement (or the Secured Obligations evidenced by the Term Loans) terminates for any other reason.

“Pro Rata Percentage” means, with respect to any Lender (a) a percentage equal to a fraction (i) the numerator of which is such Lender’s applicable undisbursed Term Loan Commitment (as the case may be), then in effect plus the aggregate unpaid principal balance of the applicable Term Loans (as the case may be) of such Lender and (ii) the denominator of which is the aggregate of the applicable undisbursed Term Loan Commitments (as the case may be) of all Lenders then in effect plus the aggregate unpaid principal balance of all outstanding applicable Term Loans (as the case may be) or (b) if all of the applicable Term Loan Commitments (as the case may be) have terminated, a percentage equal to a fraction (i) the numerator of which is the aggregate unpaid principal balance of the applicable Term Loans (as the case may be) of such Lender and (ii) the denominator of which is the aggregate unpaid principal balance of all outstanding applicable Term Loans (as the case may be).

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, whether tangible or intangible.

“Public Lender” has the meaning given to such term in Section 6.3(c).

“Purchase Agreement” means an asset purchase agreement or similar agreement for a Third-Party Sale.

“Purchaser” means the “Purchaser” or “Buyer” or similar party to the Purchase Agreement.

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

“QFC Credit Support” has the meaning given to such term in Section 14.10(b).

“Qualified ECP Guarantor” means, in respect of any Additional Hedge Obligations under a Secured Hedge Agreement, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Additional Hedge Obligation under a Secured Hedge Agreement or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Qualified Equity Interests” means any Equity Interests that do not constitute Disqualified Equity Interests.

“Real Property” means any estates or interests in real property now owned or hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.

“Real Property Deliverables” means each of the following agreements, instruments and other documents in respect of each New Owned Property, each in form and substance reasonably satisfactory to the Required Lenders:

(a) a Mortgage duly executed by the applicable Loan Party, together with evidence of the recording of such Mortgage in such office or offices as may be necessary to create a valid and perfected Lien on such New Owned Property in favor of the Agent for the benefit of the Required Lenders (or evidence that such Mortgage has been deposited with such recording office or offices for recording) and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Required Lenders;

(b) a paid Title Insurance Policy with respect to each Mortgage, dated as of the date such Title Insurance Policy is required to be delivered to the Agent;

(c) a current ALTA survey and a surveyor’s certificate, certified to Agent and to the issuer of the Title Insurance Policy with respect thereto by a professional surveyor licensed in the state in which such New Owned Property is located;

(d) customary opinions of counsel (x) from counsel in the state where such New Owned Property is located with respect to the enforceability of the Mortgage to be recorded and (y) from counsel of the jurisdiction of organization of the Loan Party entering into the Mortgage as to matters relating to due authorization and execution of the Mortgage by such Loan Party;

(e) to the extent reasonably requested by the Agent, an ASTM 1527-21 Phase I Environmental Site Assessment by an independent firm reasonably satisfactory to the Required Lenders with respect to such New Owned Property;

(f) such documentation and information reasonably requested by any Lender (through the Agent) to ensure that such Lender is in compliance with the Flood Laws applicable to New Owned Property that is subject to a Mortgage, including, but not limited to, if required by Flood Laws obtaining flood insurance for such property, structures and contents prior to or upon such property, structures and contents becoming Collateral, and thereafter maintaining such flood insurance in full force and effect for so long as required by the Flood Laws; and

(g) such other agreements, instruments and other documents (including “bad boy” guarantees and opinions of counsel) as Agent may reasonably require and to the extent customarily required by lenders in comparable loan transactions.

“Recipient” means (a) the Agent or (b) any Lender, as applicable.

“Recovery Event Proceeds” means any insurance proceeds from any Casualty Event or any condemnation proceeds (or similar recoveries) received by any Parent or any Subsidiary in respect of any assets that are Collateral, in each case, net of (a) any reasonable and documented collection expenses and other direct costs incurred in connection therewith (including, without limitation, legal and accounting fees, if applicable), (b) taxes paid or reasonably estimated by the Borrower to be payable by the applicable Loan Party as a result thereof (after taking into account any available tax credit or deduction), and (c) any amount required to be applied to the repayment of any Indebtedness secured by a Lien on the asset subject to the Casualty Event or condemnation (excluding any repayment hereunder); provided that “Recovery Event Proceeds” shall not include any such proceeds received by any Parent or any Subsidiary from any Casualty Event or any condemnation proceeds with respect to any Intermediation Excluded Property.

“Register” has the meaning given to such term in Section 14.1(d).

“Related Agreements” means, collectively, the Intermediation Facility Documents, any agreements governing Indebtedness over the Threshold Amount, any Organization Documents and any Material Contracts.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, shareholders, controlling persons, members, directors, officers, employees, agents, trustees, administrators, financing sources, managers, advisors, attorneys-in- fact, managed funds and accounts and representatives of such Person and of such Person’s Affiliates and each of the successors and assigns of each of the foregoing.

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including from any building, structure, facility or fixture and any movement of any Hazardous Material through the air, soil, surface water or groundwater.

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

“Required Lenders” means Lenders holding more than 66 2/3% of the sum of (a) the undisbursed Term Loan Commitments then in effect plus (b) the aggregate unpaid principal balance of the Term Loans then outstanding. Such portion of the aggregate undisbursed Term Loan Commitments and the sum of the aggregate unpaid principal amount of the Term Loans then outstanding, as applicable, held by a Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders at any time.

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

“Responsible Officer” means the President, Chief Executive Officer, Chief Financial Officer, Head of Finance, or Controller of any Loan Party.

“Restricted Information” means any material non-public information relating to the business and affairs of Parent and its Subsidiaries, including without limitation, any Confidential Information or other competitively sensitive information or trade secrets.

“Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of Parent or any of its Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of Parent or any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, including with respect to the Existing Convertible Notes, (d) any payment with respect to any earnouts, hold back amounts, deferred purchase price, contingent obligations or similar obligation and (e) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, conversion, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, the Existing Convertible Notes or any Indebtedness subordinated to the Term Loan.

“Restricted Roll-Up Lender” has the meaning specified therefor in Section 2.1(c).

“Restricted Roll-Up Loans” has the meaning specified therefor in Section 2.1(c).

“Restructuring Milestones” means the Restructuring Milestones set forth on Schedule 6.24 hereof.

“Revenue” means, for any Person, revenue received by such Person as determined in accordance with GAAP (consistently applied) from the sale of finished Goods, Inventory or services, in all cases in the ordinary course of such entity’s business, less returns, credits and sales taxes, computed using the same methodology employed in Current Financial Statements to report such matter.

“RFS Assets” means as of any date of determination and as determined by the Borrower in good faith the market value of RINs of the Loan Parties as of the last Business Day of the immediately preceding calendar month (as published by the Oil Price Information Service, commonly known as OPIS, or any successor market price-reporting agency or, if no such value is published by the Oil Price Information Service or any successor thereto as of such date, any other source selected by the Borrower in good faith that publishes market values of RINs and is generally accepted as a reference source in the refining industry) expressed in Dollars.

“RFS Liabilities” mean the amount, expressed in Dollars, of all (x) RIN obligations of the Borrower or any other Loan Party that have arisen in connection with the RFS Program as of any date of determination and as determined by the Borrower in good faith based on the market value of RINs as of the last Business Day of the immediately preceding calendar month (as published by the Oil Price Information Service, commonly known as OPIS, or any successor market price-reporting agency or, if no such value is published by the Oil Price Information Service or any successor thereto as of such date, any other source selected by the Borrower in good faith that publishes market values of RINs and is generally accepted as a reference source in the refining industry) and (y) fines, penalties, costs or liabilities of the Borrower or any other Loan Party that have arisen in connection with the RFS Program as of any date of determination and as determined by the Borrower in good faith.

“RFS Program” means the renewable fuel program and policies established section 211(o) of the Clean Air Act (42 U.S.C. § 7545(o)) as implemented by the U.S. Environmental Protection Agency under Subpart M of Part 80 of Title 40 of the Code of Federal Regulations.

“RIN” means the renewable identification number, which is the serial number assigned to a batch of biofuel for the purpose of tracking biofuel production, use and trading as required by the RFS Program.

“Roll-Up Lender” shall mean (a) each financial institution and other Persons listed on Schedule 2.1(a) as having Roll-Up Loans constituting either Interim Roll-Up Loans, Restricted Roll-Up Loans or Final Roll-Up Loans, respectively, and (b) each financial institution or other Person that becomes a party hereto pursuant to an Assignment Agreement that shall hold Roll-Up Loans constituting either Interim Roll-Up Loans, Restricted Roll-Up Loans or Final Roll- Up Loans, respectively, other than, in each case, any such financial institution or Person that has ceased to be a party hereto pursuant to an Assignment Agreement.

“Roll-Up Loans” means, collectively, the Interim Roll-Up Loans, the Restricted Roll-Up Loans and the Final Roll-Up Loans.

“Rolling Stock” means all Equipment (as defined in the UCC) covered by a certificate of title under applicable state law, including, without limitation, trucks, trailers, tractors, and other registered mobile equipment.

“RSA” mean that certain Restructuring Support Agreement and all exhibits attached thereto, dated as of September 24, 2024 by and among the Loan Parties, the Pre-Petition Lenders, and their permitted successors, assigns and transferees.

“RVOs” means Renewable Volume Obligations, as calculated pursuant to 40 C.F.R. 80.1407.

“Sale” means a sale of some or substantially all of the Debtors’ assets pursuant to section 363 of the Bankruptcy Code.

“Sale Date” means the date of the consummation of any Sale.

“Sale Orders” means the Credit Bid Sale Order and/or Third-Party Sale Order.

“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by Governmental Authorities in the United States (including, but not limited to, OFAC and the U.S. Department of State), the United Nations Security Council, the European Union, His Majesty’s Treasury or any other relevant Governmental Authority.

“Sanctions Target” means any Person: (a) that is the subject or target of any Sanctions; (b) named in any Sanctions-related list maintained by OFAC and the U.S. Department of State or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons,” or any similar list maintained by the United Nations Security Council, the European Union, His Majesty’s Treasury or any other relevant Governmental Authority (c) located, organized or resident in a country, territory or geographical region which is itself the subject or target of any Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, Crimea and so-called Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine) or (d) owned or controlled (as such terms are defined by the applicable Sanctions) by any such Person or Persons described in the foregoing clauses (a)-(c).

“Scheduling Order” means an order to approve a schedule of key dates related to confirmation of an Acceptable Plan of Reorganization in form and substance reasonably acceptable to the Required Lenders.

“SEC” means the Securities and Exchange Commission, or any governmental or regulatory authority succeeding to any of its principal functions.

“Secured Bank Product Agreement” means any Bank Product permitted to be incurred under Section 7.5 and permitted to be secured under Section 7.4 that is entered into by and between any Loan Party (and to the extent such Loan Party is not the Borrower, the Borrower as joint and several primary obligor thereunder) and any Bank Product Provider and designated by the Borrower and the Bank Product Provider in writing to the Agent as a “Secured Bank Product Agreement”; provided that no such agreement shall constitute a Secured Bank Product Agreement unless and until Agent receives a notice that such an agreement exists from such Person on or prior to the date that is ten (10) days after the provision of such Bank Product to a Loan Party (or such later date as Agent (at the direction of the Required Lenders) shall agree to in writing in its sole discretion) with respect to Bank Product Agreements entered into after the Closing Date. The designation of any Bank Products as a “Secured Bank Product Agreement” shall not create in favor of such Bank Product Provider any rights in connection with the management or release of Collateral or the obligations of any Loan Party under the Loan Documents.

“Secured Hedge Agreement” means any Hedging Agreement permitted to be incurred under Section 7.5 and permitted to be secured under Section 7.4 that is entered into by and between any Loan Party (and to the extent such Loan Party is not the Borrower, the Borrower as joint and several primary obligor thereunder) and any Additional Hedge Provider and designated by the Borrower and the Additional Hedge Provider in writing to the Agent as a “Secured Hedge Agreement”; provided that no such agreement shall constitute a Secured Hedge Agreement unless and until Agent receives a notice that such an agreement exists from such Person on or prior to the date that is ten (10) days after the effectiveness of such Hedging Agreement (or such later date as Agent (at the direction of the Required Lenders) shall agree to in writing in its sole discretion) with respect to Hedging Agreements entered into after the Closing Date. The designation of any Hedging Agreement as a “Secured Hedge Agreement” as provided above shall not create in favor of such Additional Hedge Provider any rights in connection with the management or release of Collateral or the obligations of any Loan Party under the Loan Documents.

“Secured Obligations” means all Obligations, all Bank Product Obligations arising under Secured Bank Product Agreements and Secured Hedge Agreements, any Erroneous Payment Subrogation Rights and all Additional Secured Obligations. Without limiting the generality of the foregoing, the Secured Obligations of the Loan Parties include (a) the obligation (irrespective of whether a claim therefor is allowed in a proceeding under any Debtor Relief Law) to pay principal, interest, fees (whether primary, secondary, direct, indirect, contingent, fixed or otherwise (including obligations of performance) and/or attorneys’ fees), and disbursements, indemnities and other amounts payable by such Person under the Loan Documents, (b) the obligation to pay all costs and expenses incurred by the Agent and/or any other Secured Party to obtain, preserve, perfect and enforce the security interest granted herein and to maintain, preserve and collect the property subject to the security interest, including but not limited to all reasonable attorneys’ fees and expenses of any Secured Party to enforce any Obligations whether or not by litigation, and (c) the obligation to reimburse any amount in respect of any of the foregoing that any Secured Party (in its reasonable discretion pursuant to the terms of this Agreement or any other Loan Document) may elect to pay or advance on behalf of the Loan Parties.

“Secured Parties” means, collectively, the Agent, the Lenders, the Bank Product Providers party to Secured Bank Product Agreements, the Indemnified Persons and each co-agent or sub-agent appointed by the Agent from time to time pursuant to Section 12.1; provided that no such Bank Product Provider (including any Additional Hedge Provider), in its capacity as such, shall have any rights under any Loan Document in connection with the management or release of any Collateral or the obligations of any Loan Party under the Loan Documents.

“Securities Account” means any “securities account” as defined in the UCC.

“Seller” means the Loan Party or Loan Parties that are the “Seller” or similar party to the Purchase Agreement.

“Similar Business” any of the following, whether domestic or foreign: refining used motor oil (as described in the definition of Used Motor Oil Asset Divestiture), processing various grades of sweet crude oil and renewable biomass into gasoline, diesel, renewable diesel, vacuum gas oil, jet, renewable jet, benzene concentrate, LPG and other miscellaneous related products or byproducts, for sale to customers via pipeline, marine transportation and truck, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.

“Subsidiary” means any Person that is an entity of which a majority of the outstanding capital stock, membership interests or other equity interests entitled to vote for the election of directors, managers or the equivalent is owned, controlled or held by Parent directly or indirectly through Subsidiaries including any Subsidiary formed after the Closing Date, in each case, other than Excluded Subsidiaries as of such date.

“Subsidiary Guarantor” has the meaning given to such term in preamble to this Agreement.

“Supermajority Lenders” means Lenders holding more than 80% of the sum of (a) the undisbursed Term Loan Commitments then in effect plus (b) the aggregate unpaid principal balance of the Term Loans then outstanding. Such portion of the aggregate undisbursed Term Loan Commitments and the sum of the aggregate unpaid principal amount of the Term Loans then outstanding, as applicable, held by a Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders at any time.

“Supported QFC” has the meaning given to such term in Section 14.10(b).

“Supporting Obligations” means any “supporting obligations” as defined in the UCC.

“Synthetic Lease Obligations” means, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any synthetic lease that would appear on a balance sheet of such Person in accordance with GAAP (consistently applied) if such obligations were accounted for as Capital Lease Obligations.

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

“Term Loan” means collectively the New Money Term Loans and the Roll-Up Loans.

“Term Loan Commitment” means the obligation of the Lenders to make New Money Term Loans which, (i) on the Interim Effective Date, (a) with respect to all Lenders, shall be in an amount equal to the Interim Facility Amount and (b) with respect to each Lender, shall be up to the amount set forth opposite such Lender’s name on Schedule 2.1(a) attached hereto under the column entitled “Term Loan Commitments as of the Interim Effective Date” as such Term Loan Commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to an Assignment Agreement and (ii) on and after the Final Effective Date and during the Availability Period, (a) with respect to all Lenders, shall be $80,000,000 (before taking into account any borrowing that happens from the Closing Date until such date) and (b) with respect to each Lender, shall be up to the amount set forth opposite such Lender’s name on Schedule 2.1(a) attached hereto under the column entitled “Term Loan Commitments as of the Final Effective Date”, as such Term Loan Commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to an Assignment Agreement; provided, that on and after the Term Loan Commitment Termination Date, the amount of each Lender’s Term Loan Commitment shall be zero.

“Term Loan Commitment Termination Date” means the earlier of (i) the Sale Date (or such other date as may be agreed by the Required Lenders and the Debtors) and (ii) one (1) day prior to the Maturity Date.

“Test Period” means, the first cumulative four-week period ending on a Friday, including the Petition Date, and each subsequent four-week period thereafter.

“Third-Party Sale” means a Sale to a Person that is not an Affiliate of the Lenders or Loan Parties.

“Third-Party Sale Order” means an order approving a Third-Party Sale.

“Threshold Amount” means $2,000,000.

“Title Insurance Policy” means a mortgagee’s loan policy, in form and substance reasonably satisfactory to the Required Lenders, together with all customary endorsements made from time to time thereto and available in the state in which the New Owned Property is located, issued by or on behalf of a title insurance company reasonably satisfactory to the Required Lenders, insuring the Lien created by a Mortgage in an amount equal to the loan amount allocated to such real property secured by the Mortgage and on terms otherwise reasonably satisfactory to the Required Lenders and delivered thereto.

“Trademarks” means any and all trademark and service mark rights, whether registered or not, applications to register and registrations of the same and like protections (whether filed with the USPTO or any similar offices in any State of the United States), and the entire goodwill of the business of Loan Party connected with and symbolized by such trademarks, together with any and all (i) rights and privileges arising under Applicable Law, and (ii) extensions and renewals thereof.

“U.S. Borrower” means the Borrower that is a U.S. Person.

“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

“U.S. Special Resolution Regimes” has the meaning given to such term in Section 14.10(b).

“U.S. Tax Compliance Certificate” has the meaning given to such term in Section 2.9(g).

“UCC” means the Uniform Commercial Code as adopted and in effect in the State of New York, as amended from time to time, provided, that, to the extent that the UCC is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term contained in Article or Division 9 shall govern; provided further, 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, Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling with 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.

“Unrestricted Cash” of any Person, means cash or Cash Equivalents of such Person, (a) that are not, and are not required to be, designated as “restricted” on the financial statements of such Person, (b) that are not contractually required, and have not been contractually committed by such Person, to be used for a specific purpose, (c) that are not subject to (i) any provision of law, statute, rule or regulation, (ii) any provision of the organizational documents of such Person, (iii) any order of any Governmental Authority or (iv) any contractual restriction (including the terms of any Equity Interests), in each case of (i) through (iv), preventing such cash or Cash Equivalents from being applied to the payment of the Obligations, (d) in which no Person other than Agent has a Lien other than Permitted Liens as set forth in clause (f) of the definition of Permitted Liens, and (e) that are held in a Deposit Account or Securities Account, as applicable, in which Agent has a valid and enforceable security interest, perfected by “control” (within the meaning of the applicable UCC or for any Deposit Account or Securities Account located outside the United States, other controlling legal authority) or as provided in the DIP Orders, but in all cases shall exclude the amount of such Person’s Indebtedness which is more than 10 Business Days overdue (or in the case of Indebtedness of the type described in clause (e) of the definition of Indebtedness, remains outstanding more than 10 Business Days from the date constituting Indebtedness).

“USA FREEDOM Act” means The Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring (USA FREEDOM ACT) Act of 2015, Public Law 114-23 (June 2, 2015), as may be amended.

“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as may be amended.

“Used Motor Oil Asset Divestiture” means the sale, transfer or other disposition of any substantial portion of the businesses and related assets owned or controlled by Borrower and/or its Affiliates consisting primarily of (1) operating two used oil refineries and a barge terminal and, in connection therewith, acquiring used lubricating oils from commercial and retail establishments and re-refining such oils into processed oils and other products for the distribution, supply and sale to end-customers, (2) collecting and processing used motor oil, oil filters, and related automotive waste streams and (3) the provision of related products and support services.

“Variance Report” means a weekly variance report setting forth for the week ended on the immediately preceding Friday prior to the delivery thereof (1) the positive variance (as compared to the Approved Budget) of the aggregate operating disbursements made by the Borrower ; provided that professional fees shall not be subject to variance testing and (2) an explanation, in reasonable detail, for any positive variance greater than 15%, certified by a Responsible Officer of Borrower.

“Vehicles” means (i) all cars, Rolling Stock, construction and earth moving equipment and other vehicles covered by a certificate of title or similar evidence of title, law of any state, and (ii) motor vehicles, trailers, and road vehicles in each case as defined in any applicable UCC and any other term now or hereafter used to describe or define any of the foregoing in any applicable UCC.

“Whitebox Lender” means each of the Lenders party hereto that are affiliated with or managed by Whitebox Advisors, LLC.

“Wind Down Reserve” means New Money Term Loans in an amount to be determined at a later date by the Debtors in their reasonable discretion, and consented to by the Required Lenders sufficient to (a) fund the estimated fees, costs, and expenses necessary to fully administer and wind down the estates of the Debtors, including the fees, costs, and expenses of the plan administrator selected by the Required Lenders to wind down the Debtors’ estates and (b) pay in full in cash all Claims (as defined in the RSA) required to be paid under the Bankruptcy Code and Plan in order for the Plan Effective Date to occur or otherwise assumed or required to be paid under the terms of the Plan, in each case to the extent not liquidated and paid in full in cash on the Plan Effective Date; provided that (x) in no event shall the Wind Down Reserve constitute an increase to the Term Commitments at any time without the express consent of all Lenders and (y) any New Money Term Loans provided for the Wind Down Reserve shall be funded in accordance with Section 2.1(a)(v) and the conditions set forth therein.

“Withholding Agent” means the Borrower and the Agent.

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

1.2. Divisions. For all purposes under the Loan 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.

1.3. Other Interpretive Provisions. References in this Agreement to “Articles,” “Sections,” “Exhibits,” “Schedules” and “Annexes” are to articles, sections, exhibits, schedules and annexes herein and hereto unless otherwise indicated. References in this Agreement and each of the other Loan Documents to (a) any other document, instrument or agreement shall include all exhibits, schedules, annexes and other attachments thereto, and (b) any law, statute or regulation shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law, statute or regulation, and (c) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns. References to this Agreement or any of the other Loan Documents shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any given time. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. The words “include” and “including” and words or similar import when used in this Agreement or any other Loan Document shall not be construed to be limiting or exclusive. Unless otherwise indicated in this Agreement or any other Loan Document, (a) all references to dollars, Dollars or $ shall mean United States Dollars and (b) all accounting terms used in this Agreement or any other Loan Document (e.g. revenue) shall be construed, and all accounting and financial computations hereunder or thereunder shall be computed, in accordance with GAAP, consistently applied. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. Any reference herein or in any other Loan Document to the “satisfaction,” “repayment,” “paid in full” or “payment in full” of the Secured Obligations (including the “Guaranteed Obligations” and the “Secured Obligations” as may be defined in any Collateral Document) shall mean (i) the repayment in Dollars in full in cash of immediately available funds of (a) all of the Secured Obligations (including any interest, fees and other charges accruing during the Bankruptcy Cases (whether or not allowed in such proceeding)) and all Lender Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, other than (x) unasserted contingent indemnification obligations or (y) Bank Product Obligations or Additional Secured Obligations relating to such Bank Product Obligations unless acceptable arrangements have been made with the Bank Product Providers holding such Bank Product Obligations and (b) all fees or charges that have accrued hereunder or under any other Loan Document and are unpaid, and (ii) the termination of all Term Loan Commitments of the Lenders. A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement, and in the case of an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Required Lenders, as applicable.

Term Loan and Terms of Payment.

2.1.

Term Loan.

(a) Subject to the terms and conditions set forth herein, after the Interim Effective Date and prior to the Term Loan Commitment Termination Date, each Lender with a Term Loan Commitment agrees severally (not jointly, and not jointly and severally) to make Term Loans to the Borrower (such loans, the “New Money Term Loans”), from time to time, and subject to the DIP Orders; provided, that (i) no more than one (1) Term Loan borrowing per month, in accordance with the Approved Budget, shall be made hereunder, (ii) the aggregate principal amount of each borrowing of New Money Term Loans shall be in a minimum amount of at least $5,000,000 and in a multiple of $100,000 in excess thereof (except for any borrowing of New Money Term Loans in an aggregate amount that is equal to the entire unused balance of aggregate Term Loan Commitments), (iii) prior to the Final Effective Date, the aggregate borrowings of New Money Term Loans hereunder shall not exceed the Interim Facility Amount, (iv) notwithstanding anything to the contrary set forth herein or in the other Loan Documents, in no event shall the aggregate outstanding principal balance of the Term Loans at any time exceed the aggregate amount set forth in Schedule 2.1(a) or Term Loan Commitment and in no event shall any Lender’s Pro Rata Percentage of the outstanding principal balance of the Term Loans exceed the amount set forth opposite such Lender on Schedule 2.1(a), and (v) subject to the limitations set forth above (other than subclause (i) above) and satisfaction of the terms and conditions herein including Section 3.2, New Money Term Loans in an amount equal to the Wind Down Reserve shall be made available to the Debtors upon approval of a Credit Bid Sale Order or Third-Party Sale Order and three (3) days prior to the consummation of a Credit Bid Sale or Third-Party Sale, as applicable. Any dispute regarding the Wind Down Reserve shall be resolved by the Bankruptcy Court.

(b) Upon entry of the Interim DIP Order, each Roll-Up Lender holding 2024-1 Term Loans (as defined in the Pre-Petition Loan Agreement) (“Interim Roll-Up Lender”) shall be deemed to have advanced additional loans in an aggregate principal amount of $37,949,226.03 of Term Loans in the amount set forth opposite such Interim Roll-Up Lender on Schedule 2.1(a), and such Interim Roll-Up Lender’s 2024-1 Term Loans (as defined in the Pre- Petition Loan Agreement) will be deemed to have been converted on a cashless, dollar-for-dollar basis into Term Loans (such Term Loans, the “Interim Roll-Up Loans”). The Interim Roll-Up Loans shall be deemed funded and shall constitute and be deemed to be Term Loans hereunder with the terms set forth on the date of entry of the Interim DIP Order. Each Interim Roll-Up Lender shall have been deemed to execute this Agreement on the Closing Date.

(c) Upon entry of the Final DIP Order, each Roll-Up Lender holding Initial Term Loans or Additional Term Loans (each as defined in the Pre-Petition Loan Agreement) that were funded by such Restricted Roll-Up Lender on the Closing Date or the First Amendment Effective Date (each as defined in the Pre-Petition Loan Agreement), as applicable, (“Restricted Roll-Up Lender”) shall be deemed to have advanced additional loans in an aggregate principal amount of $135,202,821.00 of Term Loans in the amount set forth opposite such Restricted Roll- Up Lender on Schedule 2.1(a), and such Restricted Roll-Up Lender’s Initial Term Loans or Additional Term Loans (each as defined in the Pre-Petition Loan Agreement) that were funded by such Restricted Roll-Up Lender on the Closing Date or the First Amendment Effective Date (each as defined in the Pre-Petition Loan Agreement), as applicable, will be deemed to have been converted on a cashless, dollar-for-dollar basis into Term Loans (such Term Loans, the “Restricted Roll-Up Loans”). The Restricted Roll-Up Loans shall be deemed funded and shall constitute and be deemed to be Term Loans hereunder with the terms set forth on the date of entry of the Final DIP Order. Each Restricted Roll-Up Lender shall have been deemed to execute this Agreement on the Closing Date.

(d) Upon entry of the Final DIP Order, each Roll-Up Lender holding 2023 Term Loans or JS Loans (each as defined in the Pre-Petition Loan Agreement), as applicable, (“Final Roll-Up Lender”) shall be deemed to have advanced additional loans in an aggregate principal amount of $26,847,952.97 of Term Loans in the amount set forth opposite such Final Roll-Up Lender on Schedule 2.1(a), and a portion of such Final Roll-Up Lender’s 2023 Term Loans or JS Loans (each as defined in the Pre-Petition Loan Agreement), as applicable, will be deemed to have been converted on a cashless, dollar-for-dollar basis in the amounts set forth on Schedule 2.1(a) into Term Loans (such Term Loans, the “Final Roll-Up Loans”). The Final Roll- Up Loans shall be deemed funded and shall constitute and be deemed to be Term Loans hereunder with the terms set forth on the date of entry of the Final DIP Order. Each Final Roll-Up Lender shall have been deemed to execute this Agreement on the Closing Date.

2.2.

Use of Proceeds; The Term Loan.

(a) Use of Proceeds. The proceeds of the Term Loans hereunder shall be used (i) for working capital needs and other general corporate and other purposes of the Debtors, and (ii) to pay costs and expenses (including professional fees) of administering the Bankruptcy cases, in each case, subject to, and within the limitations contained in, the Approved Budget (subject to the Permitted Variance (other than in the case of professional fees)).

(b) The Term Loan. The Term Loan shall be repayable as set forth in Section 2.4. If prepaid or repaid, the principal of the Term Loan may not be re-borrowed. Each Lender and Agent may, and are hereby authorized by the Borrower to, endorse in such Lender’s and Agent’s books and records appropriate notations regarding such Lender’s interest in the Term Loan; provided, however, that the failure to make, or an error in making, any such notation shall not limit or otherwise affect the Obligations.

2.3.

Procedure for Making the Term Loan; Interest.

(a) Notice and Eligibility. On and after the Closing Date, an irrevocable Notice of Borrowing must be submitted by 3:00 p.m. New York time at least one (1) Business Day prior to the proposed funding date of any Term Loan. Upon receipt of a Notice of Borrowing, Agent shall promptly notify the Lenders. Funding on the Closing Date shall be subject to the satisfaction of the conditions set forth in Sections 3.1 and 3.2. Each funding after the Closing Date shall be subject to the satisfaction of the conditions set forth in Section 3.2. Upon satisfaction of the conditions set forth in Sections 3.1 and 3.2, as applicable, each Lender with a Term Loan Commitment agrees, severally and not jointly, to fund its Pro Rata Percentage of the Term Loan to the Agent.

(b) Interest Rate. Interest will accrue on the unpaid principal amount of the Term Loans (including any PIK Interest Amount), from the date of funding or deemed borrowing of such Term Loan until such Term Loan has been paid in full, at a per annum rate of interest equal to the Applicable Rate, payable as set forth in Section 2.4(a). All computations of interest shall be based on a year of three hundred sixty (360) days for actual days elapsed including the first day but excluding the last day. Notwithstanding any other provision hereof, the amount of interest payable hereunder shall not in any event exceed the maximum amount permitted by the law applicable to interest charged on commercial loans.

(c) Disbursement. Subject to the satisfaction of the conditions set forth in Sections 3.1 and 3.2, as applicable, upon receipt of all amounts requested in the Notice of Borrowing (unless otherwise agreed by the Agent), Agent will make the proceeds of such Term Loans available to or as directed by the Borrower on the day of the proposed Term Loan by causing said amount, in immediately available funds, to be disbursed as specified by the Borrower in the Notice of Borrowing.

2.4.

Payments of Principal and Interest.

(a) Interest Payments. Interest on the Term Loans shall be (i) in the case of all interest accrued on the Term Loans from the immediately prior Interest Payment Date (or the Closing Date, as applicable) to such Interest Payment Date in respect of all then outstanding Term Loans (the “PIK Interest Amount”), payable in kind, monthly, in arrears, on each Interest Payment Date, in which case, on and as of such Interest Payment Date for such then outstanding Term Loans, an amount equal to the PIK Interest Amount shall be automatically capitalized and added to the then-outstanding principal amount of such Term Loans, (ii) payable in cash in connection with any prepayment or repayment of the Term Loan, and (iii) payable in cash at maturity (whether upon demand, by acceleration or otherwise), in each case except as otherwise set forth in the RSA.

(b) [Reserved]

(c) Principal Payment at or Prior to Maturity. Unless the Term Loan is prepaid in full prior to the Maturity Date, Borrower shall pay the entire unpaid principal and accrued interest and all unpaid Obligations constituting Secured Obligations and Additional Secured Obligations relating to such Obligations on the Maturity Date in cash. Agent shall allocate and distribute all such payments to the Lenders based on each Lender’s Pro Rata Percentage.

(d) Payments to JS Lender. All principal and interest payments with respect to the Term Loans held by the JS Lender shall be made directly from Borrower to the JS Lender at the account designated by the JS Lender and shall not be paid through the Agent.

2.5.

Fees and Expenses.

(a) Agent Fees. The Borrower agrees to pay Agent the fees set forth in the Agent Fee Letter.

(b) Lender Expenses. On the Closing Date, Borrower shall pay to Agent, for the benefit of the applicable Persons, (i) the fees set forth in the Fee Letter and (ii) all unreimbursed Lender Expenses, which, if provided for in the DIP Orders, the Agent may deduct from the New Money Term Loans when funded if consented to by the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned). Thereafter, all unreimbursed Lender Expenses shall be due and payable on demand. Agent shall allocate and disburse such payments to the Person having incurred such Lender Expenses.

2.6.

Prepayments.

(a)

Mandatory Prepayments.

(i) Acceleration. If, at the election of Agent (acting at the direction of the Required Lenders) repayment of the Term Loan is accelerated following the occurrence and continuance of an Event of Default, then Borrower shall immediately pay to Agent for its benefit and the benefit of Lenders, as applicable (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment, (ii) the outstanding principal amount of the Term Loan and (iii) all other sums, if any, that shall have become due and payable hereunder with respect to the Term Loan, including all Secured Obligations due hereunder.

(ii) [Reserved].

(iii) Recovery Event Proceeds. Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the Recovery Event Proceeds concurrently upon receipt of the same by Borrower, Parent or any Subsidiary of Parent and the same shall be applied to (x) (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment, (ii) the outstanding principal amount of the Term Loan and (iii) all other sums, if any, that shall have become due and payable hereunder with respect to the Term Loan, including all Obligations due hereunder; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, such Recovery Event Proceeds, to the extent less than $20,000,000 in the aggregate and the assets subject to such Casualty Event are necessary in the go-forward business, shall not be required to be so applied to the extent that Borrower notifies Agent prior to or concurrently with receipt of such Recovery Event Proceeds that the same will be used (and to the extent Borrower, Parent or such Subsidiary actually uses such Recovery Event Proceeds) for the replacement, substitution or restoration of the assets subject to the applicable Casualty Event or condemnation within one hundred eighty (180) days after the receipt of such Recovery Event Proceeds; provided further that, if at any time Borrower, Parent or any Subsidiary of Parent determines that such Recovery Event Proceeds or any portion thereof will not be so used within one hundred eighty (180) days after the receipt of such Recovery Event Proceeds, such Recovery Event Proceeds shall be immediately applied to prepay the Term Loans as required above.

(iv) Dispositions and Involuntary Dispositions. Borrower shall (x) prepay the Term Loans in an aggregate amount equal to 100% of the Net Cash Proceeds received by Borrower, Parent or any Subsidiary of Parent from all Dispositions or Involuntary Dispositions (other than Casualty Events or Dispositions permitted by Sections 7.2(i) or (iii) within five (5) Business Days of the date of such Disposition or Involuntary Disposition and shall be applied to (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment, (ii) the outstanding principal amount of the Term Loan and (iii) all other sums, if any, that shall have become due and payable hereunder with respect to the Term Loan, including all Obligations due hereunder.

(v) [Reserved].

(vi) [Reserved].

(vii) Change of Control. Other than with respect to any Change of Control resulting from a Credit Bid Sale consummated in accordance with the Approved Bankruptcy Court Order or a Recapitalization Transaction as defined in and in accordance with the RSA, upon a Change of Control, Borrower shall immediately offer to pay to Agent for its benefit and the benefit of Lenders, as applicable (i) all accrued and unpaid payments of interest with respect to the Term Loan due prior to the date of prepayment, (ii) the outstanding principal amount of the Term Loan, and (iii) all other sums, if any, that shall have become due and payable hereunder with respect to the Term Loan, including all Obligations due hereunder.

(viii) Certain Equity Issuances. Immediately upon the receipt by Borrower, Parent or any Subsidiary of Parent of the Net Cash Proceeds of any Equity Issuance (other than Permitted Equity Issuances) Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of such Net Cash Proceeds.

(ix) Issuance of Indebtedness. Immediately upon the receipt by Borrower, Parent or any Subsidiary of Parent of the Net Cash Proceeds of any Indebtedness (other than any Permitted Indebtedness), the Borrower shall prepay the Term Loans as hereinafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds.

(b) Voluntary Prepayments. Borrower may voluntarily prepay the Term Loan in whole or in part, at any time; provided that each of the following conditions is satisfied: Borrower pays to Agent for its benefit and the benefit of Lenders, as applicable, (i) all accrued and unpaid payments of interest with respect to the Term Loan (or portion thereof subject to prepayment) due up to and including the date of prepayment, (ii) the outstanding principal amount of the Term Loan being prepaid, and (iii) to the extent that on any date occurring prior to the Maturity Date that payment or prepayment in full of the Secured Obligations hereunder occurs (or is deemed to have occurred in the case of a Prepayment Event), the Borrower shall pay in full all outstanding Secured Obligations (other than contingent indemnification obligations as to which no claim has been asserted). Term Loans bearing interest based on the Base Rate may be prepaid upon two (2) Business Days prior written notice, which is received by the Agent no later than 11:00 a.m. New York time on a Business Day (or such notice is counted as the next Business Day).

(c) Each prepayment of the outstanding Term Loan pursuant to this Section 2.6 shall be applied to pursuant to Section 9.9. Such prepayments shall be paid to the Lenders in accordance with their Pro Rata Percentage.

(d) Borrower shall notify the Agent in writing (such writing to include, the subsection of this Section 2.6 pursuant to which such prepayment is being made, the amount of such prepayment and the date of such prepayment) of any prepayment required to be made pursuant to this Section 2.6 at least one (1) Business Day prior to the date of such prepayment, unless otherwise specified in this Section 2.6.

2.7.

Other Payment Terms.

(a) Place and Manner. Except as otherwise provided herein. all payments to be made by Borrower under any Loan Document, including payments of principal and accrued but unpaid interest hereunder, and all fees and Lender Expenses shall be made without setoff or counterclaim from. All payments to be made by Borrower under any of the Loan Documents shall be made by 3:00 p.m. New York time in immediately available funds by same day wire transfer to Agent, for its benefit and the benefit of Lenders, as applicable, in accordance with the wire transfer instructions as provided in writing by Agent from time to time. Unless otherwise determined by Agent (acting at the direction of the Required Lenders), all payments received from Borrower shall be applied first to any outstanding fees and/or Lender Expenses, then to accrued and unpaid interest, then to principal. Any wire transfer or payment received by Agent after 3:00 p.m. New York time may be deemed to have been received by Agent, in its sole discretion, as of the opening of business on the immediately following Business Day. Any prepayment made pursuant to Section 2.6 shall be accompanied by interest to, but not including, the prepayment date on the amount so prepaid.

(b) Date. Whenever any payment due hereunder shall fall due on a day other than 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 interest or fees, as the case may be.

(c) Default Rate. If an Event of Default has occurred and is continuing, at the election of the Required Lenders, upon written notice from the Agent, Borrower shall pay interest on the Obligations from the date of such Event of Default until such Event of Default is cured, at a per annum rate equal to the Default Rate, without further notice, motion or application to, hearing before, or order from, the Bankruptcy Court. Notwithstanding anything to the contrary herein, (x) the Required Lenders may waive the Default Rate on all outstanding Term Loans if all underlying Event of Defaults could be waived by Required Lenders and (y) the Supermajority Lenders may waive the Default Rate on all outstanding Term Loans for any underlying Event of Default. All computations of interest shall be made on the basis of a year of 360 days, as the case may be, and actual days elapsed.

(d) Sharing of Payments, Etc. If any Lender, directly or through an Affiliate or branch office thereof, obtains any payment of any Obligation of any Loan Party (whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) (and other than pursuant to Section 2.8 and Section 14.1) and such payment exceeds the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, Agent in accordance with the provisions of the Loan Documents, such Lender shall purchase for cash from other Lenders such participations in their Obligations as necessary for such Lender to share such excess payment with such Lenders to ensure such payment is applied as though it had been received by Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of the Borrower, applied to repay the Obligations in accordance herewith); provided, however, that (i) if such payment is rescinded or otherwise recovered from such Lender in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender without interest and (ii) such Lender shall, to the fullest extent permitted by applicable requirements of law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Loan Party in the amount of such participation.

(e) Defaulting Lenders.

(i) Responsibility. The failure of any Defaulting Lender to make any Term Loan, or to fund any purchase of any participation required to be made or funded by hereunder, or to make any payment required by it under any Loan Document on the date specified therefor shall not relieve any other Lender of its obligations to make such loan, fund the purchase of any such participation, or make any other such required payment on such date, and neither Agent nor, other than as expressly set forth herein, any other Lender shall be responsible for the failure of any Defaulting Lender to make a loan, fund the purchase of a participation or make any other required payment under any Loan Document.

(ii) Voting Rights. Notwithstanding anything set forth herein to the contrary, including Section 14.4, a Defaulting Lender shall not have any voting or consent rights under or with respect to any Loan Document (or be, or have its Term Loans and Term Loan Commitments, included in the determination of “Required Lenders” or “Lenders directly and adversely affected” pursuant to Section 14.4) for any voting or consent rights under or with respect to any Loan Document, provided that (A) the Term Loan Commitment of a Defaulting Lender may not be increased, extended or reinstated, (B) the principal of a Defaulting Lender’s Term Loans may not be reduced or forgiven, and (C) the interest rate applicable to Obligations under the Loan Documents owing to a Defaulting Lender may not be reduced in such a manner that by its terms affects such Defaulting Lender more adversely than other Lenders, in each case, without the consent of such Defaulting Lender. Moreover, for the purposes of determining Required Lenders, the Term Loans and Term Loan Commitments held by Defaulting Lenders shall be excluded from the total Term Loans and Term Loan Commitments outstanding.

(iii) Borrower Payments to a Defaulting Lender. Agent shall be authorized to use all payments received by Agent for the benefit of any Defaulting Lender pursuant to this Agreement to pay in full the Aggregate Excess Funding Amount to the appropriate Lenders. Upon any such unfunded obligations owing by a Defaulting Lender becoming due and payable, Agent shall be authorized to use such cash collateral to make such payment on behalf of such Defaulting Lender. In the event that Agent is holding cash collateral of a Defaulting Lender that cures pursuant to clause (iv) below or ceases to be a Defaulting Lender pursuant to the definition of Defaulting Lender, Agent shall return the unused portion of such cash collateral to such Lender. The “Aggregate Excess Funding Amount” of a Defaulting Lender shall be the aggregate amount of all unpaid obligations owing by such Lender to Agent, and other Lenders under the Loan Documents.

(iv) Cure. A Lender may cure its status as a Defaulting Lender under clause (a) of the definition of Defaulting Lender if such Lender fully pays to Agent, on behalf of the applicable Lenders the Aggregate Excess Funding Amount, plus all interest due thereon. Any such cure shall not relieve any Lender from liability for breaching its Contractual Obligations hereunder and shall not constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

2.8.

Increased Costs.

If any Change in Law shall:

(a) 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, any Lender;

(b) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(c) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Term Loans made by such Lender or participation in any such Term Loan;

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

2.9.

Taxes.

(a) Defined Terms: For purposes of this Section, the term “Applicable Law” includes FATCA.

(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in 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 such Loan Party 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 2.9(b)) the applicable Recipient 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 Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.

(d) Indemnification by Borrower. The Borrower shall indemnify each Recipient, within 10 days after 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) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient 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 Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e) Indemnification by the Lenders. Each Lender shall severally indemnify the 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 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 14.1(e) 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 Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.

(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this Section) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(i) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,

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

(B) Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement and from time to time thereafter upon the reasonable request of the Borrower or the Agent, whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

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

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or

(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8 BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and

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

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.

(h) 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 (including by the payment of additional amounts pursuant to this Section), 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 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 paragraph (h) (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 paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i) Survival. Each party’s obligations under this Section 2.9 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Term Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

2.10. Term. This Agreement shall become effective on the Closing Date and shall continue in full force and effect for so long as any Obligations remain outstanding (other than inchoate indemnity obligations). Agent’s Lien on the Collateral shall remain in effect for so long as any Obligations are outstanding (other than inchoate indemnity obligations) and upon payment in full of all Obligations (other than inchoate indemnity obligations which are not the subject of an indemnity claim), Agent’s Lien on the Collateral shall terminate automatically. This Agreement may be terminated prior to the Maturity Date by Borrower, effective five (5) Business Days after written notice of termination is given to Agent and Lenders and upon receipt by Agent of payment of the Obligations in full in cash (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement).

Conditions Precedent.

3.1. Conditions Precedent to the Closing Date. The obligation of each Lender to make New Money Term Loans on the Closing Date is subject to the satisfaction of (or waiver by the Initial Lenders in writing of) the following the conditions precedent, in form and substance satisfactory to Agent and the Initial Lenders:

(a) The Loan Documents (including, but not limited to, this Agreement and the Agent Fee Letter) duly executed by Borrower and the Guarantors required to sign such Loan Document.

(b) Customary legal opinions of (x) Bracewell LLP, in its capacity as special counsel to the Loan Parties and (y) local counsel opinions covering Loan Parties and jurisdictions as reasonably agreed by the Borrower and the Initial Lenders, in each case, dated as of the Closing Date and addressed to the Agent and the Initial Lenders.

(c) A duly executed officer’s certificate of each Loan Party containing (i) resolutions authorizing the Loan Documents, (ii) a good standing certificate from (A) each Loan Party’s state of formation and (B) from any state where such party is, or is required to be, qualified to do business to the extent failure to so qualified could reasonably be expected to have a Material Adverse Effect, (iii) incumbency and representative signatures and (iv) certifying as to the conditions set forth in Sections 3.1 (e), (f), (g), (k) and Sections 3.2(b), (c), and (d).

(d) The Borrower and each of the Guarantors shall have provided no less than 3 business days prior to the Closing Date the documentation and other information to the Lenders that are reasonably requested by the Lenders no later than 10 days prior to the Closing Date under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, the USA FREEDOM Act, IRS Form W-9 (if applicable) and other applicable tax forms.

(e) The Petition Date shall have occurred.

(f) No later than three (3) Business Days after the Petition Date, the Bankruptcy Court shall have entered the Interim DIP Order granting of the super-priority claim and the liens and other rights and protections contemplated hereby and as customary for debtor in possession financings and authorizing the Term Loans (including, for the avoidance of doubt, a roll up of the Pre-Petition Loans into the Roll-Up Loans upon the entry of the Final DIP Order), which Interim DIP Order (i) shall be in full force and effect and shall not have been, in whole or in part, vacated, reversed, stayed, or set aside and (ii) shall not have been modified or amended without the consent of the Required Lenders.

(g) The “first day” orders (including the Cash Management Order and approval of the cash management system) entered by the Bankruptcy Court, to the extent affecting the rights or obligations of the Agent, the Lenders, or the agent or the lenders under the Pre-Petition Loan Agreement, or which may give rise to a post-petition claim, administrative in nature or otherwise, shall be in form and substance reasonably acceptable to the Agent and Required Lenders. There shall exist no unstayed order and injunctions challenging this Agreement or any other Loan Documents, the Pre-Petition Loan Agreement or any Pre-Petition Loan Document, this Agreement or any Loan Documents (as defined therein), the Pre-Petition Loan Obligations, or any Liens or claims in connection therewith.

(h) The Lenders shall have received UCC, tax and judgment lien searches and other appropriate evidence in form and substance reasonably satisfactory to the Required Lenders evidencing the absence of any other liens or mortgages on the Collateral, except the liens securing the Pre-Petition Loan Documents, Permitted Liens, and other existing liens acceptable to the Required Lenders.

(i) The Lenders shall have received an Initial Approved Budget.

(j) The Loan Parties shall have filed the Acceptable Disclosure Statement and the Acceptable Plan of Reorganization with the Bankruptcy Court.

(k) Since the Petition Date there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate a Material Adverse Effect.

For purposes of determining compliance with the conditions specified in this Section 3.1, each Initial Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

3.2. Conditions Precedent to each Term Loan. The obligation of each Lender on and after the Closing Date to honor a Notice of Borrowing is subject to the satisfaction of each of the following conditions precedent:

(a) Delivery of an executed Notice of Borrowing and Funds Flow Memorandum.

(b) The following statements shall be true on the proposed date of borrowing of any Term Loan, both immediately before and immediately after giving effect to the application of the proceeds thereof:

(i) the representations and warranties contained in Article 5 shall be true and correct on and as of the Closing Date (except for such representations and warranties made as of a specific date, in which case such representations and warranties shall be true and correct as of such specific date), after giving effect in all cases to any standard(s) of materiality contained in Article 5 as to such representations and warranties; and

(ii) no Default or Event of Default shall have occurred and be continuing, or would exist after giving effect to the funding of the Term Loan, including the application of proceeds therefrom (including, without limitation, the entry of the Final DIP Order in accordance with Section 6.24 hereof).

(c) The DIP Order shall be in full force and effect and which shall not have been modified or amended without the consent of the Required Lenders and not have been vacated, reversed, modified, amended or stayed.

For purposes of determining compliance with the conditions specified in this Section 3.2, each Lender that has signed this Agreement or delivered an Assignment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the date of the applicable Term Loan borrowing specifying its objection thereto.

Creation of Security Interest.

4.1. Grant of Security Interest. To secure prompt repayment of any and all Secured Obligations and prompt performance by the Loan Parties of each of their covenants and duties under the Loan Documents, each Loan Party grants Agent, for itself and as agent for Lenders, a continuing security interest in all presently existing and hereafter acquired or arising Collateral. Such security interest constitutes a valid, first priority security interest in the presently existing Collateral, and will constitute a valid, first priority security interest in Collateral acquired after the Closing Date, in each case, subject to Permitted Liens. This Agreement is intended by the parties to be a security agreement for purposes of the UCC.

IT BEING UNDERSTOOD, HOWEVER, that, notwithstanding anything in this Section 4.1 to the contrary, (1) in no event shall the Collateral include, or the security interest or Lien granted under this Section 4.1 attach to, any Excluded Property, and (2) for so long as the applicable property continues to be Excluded Property, the Loan Parties shall not be required to take any action intended to cause any Excluded Property to constitute Collateral, and none of the covenants or representations and warranties herein shall be deemed to apply to any property constituting Excluded Property; provided, however, that the security interest granted under this Section 4.1 shall immediately attach to, and the Collateral shall immediately include, any such asset (or portion thereof) that would otherwise constitute Collateral, were it not Excluded Property, upon such asset (or portion thereof) ceasing to be Excluded Property and (3) any and all assets or property sold, conveyed, transferred, assigned or otherwise disposed of by the Loan Parties to the extent permitted by the terms of the Loan Documents shall be free of the security interests granted and created herein upon, from and after such sale, conveyance, transfer, assignment or other disposition, and all rights therein shall revert to the applicable Loan Party; provided, further, however, that security interests granted and created herein shall continue in any Proceeds (as defined in the UCC) of such sale, conveyance, transfer, assignment or other disposition. Upon any such release or such sale, transfer, conveyance, assignment or other disposition of Collateral or any part thereof, the Agent shall, upon the request and at the sole cost and expense of the Loan Parties, assign, transfer and deliver to the applicable Loan Party, against receipt and without recourse to our any warranty by Agent except as to the fact that the Agent has not encumbered the released assets, such of the Collateral or any part thereof to be released (in the case of a release) as may be in the possession of the Agent and as have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Collateral, documents and instruments (including UCC-3 termination financing statements or releases) reasonably requested by the Borrower acknowledging the termination hereof or the release of such Collateral.

4.2. Duration of Security Interest. Agent’s security interest in the Collateral shall continue until the payment in full in cash and the satisfaction of all Secured Obligations (other than inchoate indemnity obligations or other obligations that expressly survive termination), whereupon such security interest shall terminate and Agent shall, at Borrower’s sole cost and expense, promptly execute such further documents and take such further actions as may be reasonably requested by the Borrower at the Borrower’s sole cost and expense to effect the release contemplated by this Section 4.2, including duly executing and delivering termination statements for filing in all relevant jurisdictions under the UCC. Any such release shall be without recourse, representation or warranty by Agent.

4.3. Possession of Collateral. So long as no Event of Default has occurred and is continuing, and subject to the DIP Orders, the Loan Parties shall remain in full possession, enjoyment and control of the Collateral (except only as may be otherwise required by Agent or the Required Lenders for perfection or protection of Agent’s security interest therein or in connection with any Permitted Lien, Permitted Disposition or Permitted Investment) and shall be entitled to manage, operate and use the same and each part thereof with all the rights and franchises appertaining thereto; provided, however, that the possession, enjoyment, control and use of the Collateral shall at all times be subject to the observance and performance of the terms of this Agreement.

4.4. Delivery of Additional Documentation Required.

(a) Negotiable Collateral. The Loan Parties shall from time to time execute and deliver to Agent for the benefit of Lenders, in accordance with the terms of the DIP Orders, all Negotiable Collateral and other documents that Agent (at the direction of Required Lenders) may reasonably request, in a form reasonably satisfactory to Agent and Required Lenders, to perfect and continue the perfection of Agent’s security interests in the Collateral and in order to fully consummate all of the transactions contemplated under the Loan Documents.

(b) Commercial Tort Claims. For the avoidance of doubt, if Borrower acquires a Commercial Tort Claim, Borrower shall promptly notify Agent of the general details thereof, and upon Agent’s request (at the direction of the Required Lenders), cooperate in any filings necessary to perfect a Lien on such Commercial Tort Claim.

(c) Certificate of Title Collateral. Subject to Section 6.19, on the Closing Date, each Loan Party agrees to deliver to Agent or Agent’s designee the certificates of title for all Certificate of Title Collateral owned by such Loan Party for notation of the Agent’s Lien. With respect to any Certificate of Title Collateral acquired by any Loan Party after the Closing Date, the Loan Parties shall deliver to Agent or Agent’s designee the certificates of title for all Certificate of Title Collateral provided that to the extent such protections are granted in any DIP Order, Certificate of Title Collateral will not be required to be delivered. Each Loan Party agrees to take all actions necessary to cause such certificates to be filed (with the Agent’s Lien noted thereon) in the appropriate state motor vehicle filing office.

4.5. Right to Inspect. Agent and/or a representative of the Required Lenders (through any of their officers, employees, or agents) shall have the right, upon reasonable prior notice, from time to time during the Loan Parties’ usual business hours but no more than once per year at the expense of the Borrower (or if an Event of Default has occurred and is continuing may do any of the foregoing at the expense of the Borrower as often as the Agent and/or a representative of the Required Lenders may desire any time during normal business hours and without advance notice), to inspect each Loan Party’s Books and to make copies thereof and to check, test, and appraise the Collateral in order to verify the Loan Parties’ financial condition or the amount, condition of, or any other matter relating to, the Collateral.

4.6. Authorization to File. Each Loan Party hereby authorizes the Agent, at the expense of such Loan Party (including the reasonable and documented fees and expenses of outside counsel to the extent of and as permitted by Section 10.3), to file one or more financing or continuation statements, and amendments thereto, relating to all or any part of the Collateral without the signature of such Loan Party where permitted by law and using language such as “All assets of the Debtor whether now owned or hereafter acquired or arising and wheresoever located, including all accessions thereto and products and proceeds thereof” or such other language as the Agent (acting at the direction of the Required Lenders) reasonably deems necessary or appropriate. A photocopy or other reproduction of any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law. Each Loan Party understands and agrees that even though the Agent has no obligation to do so, with respect to any financing statement, the Agent intends to file (at the expense of such Loan Party, including the reasonable and documented fees and expenses of outside counsel to the extent of and as permitted by Section 10.3) any continuation statement or amendment where failure to so file could reasonably be expected to result in the lapse of such financing statement at any time within six months of any such proposed filing. Notwithstanding the foregoing, Agent shall have no obligation to make such filings or to otherwise perfect or maintain the perfection of the security interest on the Collateral.

4.7. Collateral Matters.

(a) The parties hereto agree, and the DIP Orders shall provide, that the Agent’s Liens on the Collateral shall continue to be valid, enforceable and perfected without the need for the Agent or any Lender to prepare, file, register or publish any financing statements, mortgages, hypothecs, account control agreements, collateral access agreements, notices of Lien or similar instruments or to otherwise perfect the Agent’s Liens under applicable non-bankruptcy law.

(b) Notwithstanding anything to the contrary herein, except as set forth in the DIP Orders, in no event shall the Collateral of the Debtors include any Excluded Property and/or any other property specifically excluded pursuant to the DIP Orders.

(c) Each of the Loan Parties agrees that to the extent that its Obligations have not been paid in full, (i) its obligations shall not be discharged by any order confirming a Plan of Reorganization (and each of the Loan Parties, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (ii) DIP Superpriority Claims (as defined in the DIP Order) granted to the Secured Parties pursuant to the DIP Orders and the Liens granted to the Secured Parties pursuant to the DIP Orders shall not be affected in any manner by any order confirming a Plan of Reorganization; provided that such Obligations shall be discharged either (i) upon such payment in full, or (ii) upon such Obligations being treated in accordance with an Acceptable Plan of Reorganization and such treatment will provide for the discharge of the Obligations arising hereunder if so provided by such Acceptable Plan of Reorganization.

(d) Each Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to the Interim DIP Order (and, when entered, the Final DIP Order), the Liens in favor of the Agent on behalf of and for the benefit of the Secured Parties in all of the Collateral (as defined in the Interim DIP Order, but in any case, excluding any Excluded Property and Avoidance Actions (but including, in the case of any Avoidance Actions, subject to the entry of the Final DIP Order, the proceeds thereof)), which includes, without limitation, all of such Debtor’s Real Property (excluding any Real Property that is Excluded Property), now existing or hereafter acquired, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.

(e) Each Loan Party that is a Debtor further agrees that upon the request of the Agent (acting at the direction of the Required Lenders), such Loan Party shall execute and deliver to the Agent, as soon as reasonably practicable following such request but in any event within 45 days following such request (or such later date as may be extended by the Required Lenders), with respect to Real Property owned or leased by such Loan Party (in any case, excluding any Real Property that is Excluded Property) and identified by the Agent, the applicable Loan Party shall deliver Real Property Deliverables.

4.8. Loan Parties’ Rights. As long as no Event of Default shall have occurred and be continuing and until written notice shall be given to the Loan Parties in accordance with Section 4.9(a) hereof:

(a) Each Loan Party shall have the right, from time to time, to vote and give consents with respect to the Collateral, or any part thereof for all purposes not inconsistent with the provisions of this Agreement or any other Loan Document; provided, however, that no vote shall be cast, and no consent shall be given or action taken, which would have the effect of materially and adversely effecting Agent’s position or interest in respect of the Collateral or which would authorize, effect or consent to (unless and to the extent expressly permitted hereby) any of the following:

(i) the dissolution or liquidation, in whole or in part, of a Pledged Entity;

(ii) the consolidation or merger of a Pledged Entity with any other Person;

(iii) the Disposition or encumbrance of all or substantially all of the assets of a Pledged Entity, except for the granting of Liens in favor of Agent, for itself and the benefit of the other Secured Parties and except for Permitted Liens;

(iv) any change in the authorized number of shares, the stated capital or the authorized share capital of a Pledged Entity or the issuance of any additional shares of its Equity Interests; or

(v) the alteration of the voting rights with respect to the Equity Interests of a Pledged Entity;

(b) Each Loan Party shall be entitled, from time to time, to collect and receive for its own use all dividends, interest, principal or other distributions paid on or distributed in respect of the Pledged Securities to the extent not in violation of this Agreement other than any non-cash dividends, interest, principal or other distributions that would constitute Pledged Securities, whether received, receivable or otherwise distributed in respect of, or in exchange for, any Pledged Securities; and

(c) all dividends, interest, principal or other distributions (other than such dividends, interest, principal or other distributions permitted to be paid to each Loan Party in accordance with Section 7.16), whenever paid or made, shall, to the extent constituting Collateral, be delivered to Agent to hold as Collateral for its and the other Secured Parties’ benefit, and shall, if received by such Loan Party, be received in trust for the benefit of Agent and the other Secured Parties, be segregated from the other property or funds of such Loan Party, and be delivered to Agent as Collateral in the same form as so received (with any necessary indorsement).

4.9.

Defaults and Remedies; Proxy.

(a) Subject to the provisions of the Interim DIP Order (and, when entered, the Final DIP Order) and following expiration of the Remedies Notice Period (as defined in the DIP Orders), upon the occurrence of an Event of Default and during the continuation of such Event of Default, and with written notice to Borrower, Agent (personally or through an agent) is hereby authorized and empowered to transfer and register in its name or in the name of its nominee the whole or any part of the Collateral, to exchange certificates or instruments representing or evidencing Collateral for certificates or instruments of smaller or larger denominations, to exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon, to sell in any manner permitted by the UCC in one or more sales after ten (10) days’ notice of the time and place of any public sale or of the time at which a private sale is to take place (which notice each Loan Party agrees is commercially reasonable) the whole or any part of the Collateral and to otherwise act with respect to the Collateral as though Agent was the outright owner thereof. Any sale shall be made at a public or private sale at Agent’s place of business, or at any place to be named in the notice of sale, either for cash or upon credit or for future delivery at such price as Agent may deem fair, and Agent or Lenders may be the purchaser of the whole or any part of the Collateral so sold and hold the same thereafter in its own right free from any claim of any Loan Party or any right of redemption. Each sale shall be made to the highest bidder, but Agent reserves the right to reject any and all bids at such sale which, in its discretion, it shall deem inadequate. Agent may apply the proceeds of any sale or sales to other persons or entities, in whatever order Agent in its sole discretion may decide, to the expenses of such sale (including, without limitation, reasonable attorneys’ fees), to the Secured Obligations, and the remainder, if any, shall be paid to the applicable Loan Party or to such other person or entity legally entitled to payment of such remainder. Demands of performance, except as otherwise herein specifically provided for, notices of sale, advertisements and the presence of property at sale are hereby waived and any sale hereunder may be conducted by an auctioneer or any officer, agent or designee of Agent. EFFECTIVE UPON AN EVENT OF DEFAULT THAT REMAINS CONTINUING EACH LOAN PARTY HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF SUCH LOAN PARTY WITH RESPECT TO THE COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SECURITIES, WITH FULL POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE MATURITY DATE. IN ADDITION TO THE RIGHT TO VOTE THE PLEDGED SECURITIES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SECURITIES WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY PLEDGED SECURITIES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE PLEDGED SECURITIES OR ANY OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO.

(b) If, at the original time or times appointed for the sale of the whole or any part of the Collateral, the highest bid, if there be but one sale, shall be inadequate to discharge in full all the Secured Obligations, or if the Collateral be offered for sale in lots, if at any of such sales, the highest bid for the lot offered for sale would indicate to Agent, in its discretion (at the direction of the Required Lenders), that the proceeds of the sales of the whole of the Collateral would be unlikely to be sufficient to discharge all the Secured Obligations, Agent may, on one or more occasions and in its sole discretion, postpone any such sales by public announcement at the time of sale or the time of previous postponement of sale, and no other notice of such postponement or postponements of sale need be given, any other notice being hereby waived; provided, however, that any sale or sales made after such postponement shall be after five (5) days’ notice to the applicable Pledgor.

(c) If, at any time when Agent shall determine to exercise its right to sell the whole or any part of the Collateral hereunder, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Act, Agent may, in its sole discretion (subject only to applicable requirements of law) at the direction of the Required Lenders, sell such Collateral or part thereof by private sale in such manner and under such circumstances as Agent may deem necessary or advisable (at the direction of the Required Lenders), but subject to the other requirements of this Section 4.9, and shall not be required to effect a registration of such Collateral under the Act or to cause the same to be effected. Without limiting the generality of the foregoing, in any such event, Agent in its discretion (but without obligation) (x) may, in accordance with applicable securities laws, proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under said Act (or similar statute), (y) may approach and negotiate with a single possible purchaser to effect such sale, and (z) may restrict such sale to a purchaser who is an accredited investor under the Act and who will represent and agree that such purchaser is purchasing for its own account, for investment and not with a view to the distribution or sale of such Collateral or any part thereof. In addition to a private sale as provided above in this Section 4.9, if any of the Collateral shall not be freely distributable to the public without registration under the Act (or similar statute) at the time of any proposed sale pursuant to this Section 4.9, then Agent shall not be required to effect such registration or cause the same to be effected but, in its discretion (subject only to applicable requirements of law), may require that any sale hereunder (including a sale at auction) be conducted subject to restrictions:

(i) as to the financial sophistication and ability of any person or entity permitted to bid or purchase at any such sale;

(ii) as to the content of legends to be placed upon any certificates representing the Collateral sold in such sale, including restrictions on future transfer thereof;

(iii) as to the representations required to be made by each Person bidding or purchasing at such sale relating to that Person’s access to financial information about the Loan Parties and such Person’s intentions as to the holding of the Collateral so sold for investment for its own account and not with a view to the distribution thereof; and

(iv) as to such other matters as Agent may, in its discretion, deem necessary or appropriate (at the direction of the Required Lenders) in order that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors’ rights and the Act and all applicable state securities laws.

(d) Each Loan Party recognizes that Agent may be unable to effect a public sale of any or all the Collateral and may be compelled to resort to one or more private sales thereof in accordance with clause (c) above. Each Loan Party also acknowledges that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. Agent shall be under no obligation to delay a sale of any of the Collateral for the period of time necessary to permit the Pledged Entity to register such securities for public sale under the Act, or under applicable state securities laws, even if the applicable Loan Party and the Pledged Entity would agree to do so.

(e) Each Loan Party agrees to the maximum extent permitted by applicable law that following the occurrence and during the continuance of an Event of Default it will not at any time plead, claim or take the benefit of any appraisal, valuation, stay, extension, moratorium or redemption law now or hereafter in force in order to prevent or delay the enforcement of this Agreement, or the absolute sale of the whole or any part of the Collateral or the possession thereof by any purchaser at any sale hereunder, and each Loan Party waives the benefit of all such laws to the extent it lawfully may do so. Each Loan Party agrees that it will not interfere with any right, power and remedy of Agent provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by Agent of any one or more of such rights, powers or remedies. No failure or delay on the part of Agent to exercise any such right, power or remedy and no notice or demand which may be given to or made upon any Loan Party by Agent with respect to any such remedies shall operate as a waiver thereof, or limit or impair Agent’s right to take any action or to exercise any power or remedy hereunder, without notice or demand, or prejudice its rights as against any Loan Party in any respect.

(f) Each Loan Party further agrees that a breach of any of the covenants contained in this Section 4.9 will cause irreparable injury to Agent and Lenders, that Agent and Lenders shall have no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in this Section 4.9 shall be specifically enforceable against such Loan Party, and each Loan Party hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable in accordance with the agreements and instruments governing and evidencing such obligations. Each Loan Party hereby waives any right to require the posting of a bond in connection with Agent’s request for equitable relief, including without limitation, specific performance or injunctive relief.

Notwithstanding anything to the contrary herein, the enforcement of Liens or remedies with respect to the Collateral and the exercise of all other remedies provided for in this Agreement and the other Loan Documents, shall be subject to the provisions of the Interim DIP Order (and, when entered, the Final DIP Order).

Representations and Warranties.

Each Loan Party represents, warrants and covenants to Agent and Lenders, which representations, warranties and covenants shall survive the execution and delivery of this Agreement and the providing of any Term Loan pursuant hereto, as of the Closing Date and as of the date of funding of any Term Loan, prior to such funding and after giving effect thereto including the application of proceeds thereof (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date), as follows:

5.1. Due Organization and Qualification. Each Loan Party (a) is duly formed and existing under the laws of its respective state of formation or incorporation, as applicable, and

(b) is qualified and licensed to do business in any state in which the conduct of its business or its ownership of property requires that it be so qualified, except, solely in the case of this clause (b), where the failure to do so could not reasonably be expected to cause a Material Adverse Effect.

5.2. Authority and Power. Subject to the entry of the applicable DIP Order, the execution, delivery, and performance of the Loan Documents are within each Loan Party’s powers, have been duly authorized, and are not in conflict with nor constitute a breach of any provision of such Loan Party’s Organization Documents. No Loan Party is in default under any Material Contract to which it is a party or by which it is bound (other than as may have been caused by the Chapter 11 Cases) in which the default could reasonably be expected to have a Material Adverse Effect and the execution and delivery by the Loan Parties of the Loan Documents will not cause a breach of any Material Contract to which any Loan Party is a party or by which it is bound.

5.3. Subsidiaries. Parent has no Subsidiaries other than as disclosed in Schedule 1 hereto. The ownership interests in each Subsidiary is uncertificated. Each Subsidiary is duly formed and validly existing under the laws of its respective jurisdiction.

5.4. Conflict with Other Instruments, etc.. Neither the execution and delivery of any Loan Document to which any Loan Party is a party nor the consummation of the transactions therein contemplated nor compliance with the terms, conditions and provisions thereof will, subject to the entry of the applicable DIP Order, (a) conflict with or result in a breach of any law or any regulation, order, writ, injunction or decree of any court or governmental instrumentality (other than instances in which (i) such instance is being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP or (ii) such instance could not reasonably be expected to have a Material Adverse Effect) or (b) result in the creation or imposition of any Lien on any assets of any Loan Party, other than Permitted Liens under this Agreement.

5.5. Enforceability. Subject to the entry of the applicable DIP Order, the Loan Documents have been duly executed and delivered by each Loan Party that is a party thereto, and constitute legal, valid and binding obligations of such Loan Party, enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application relating to or affecting the enforcement of creditors’ rights or by general principles of equity.

5.6. No Prior Encumbrances. Each Loan Party has good and marketable title to (i) its respective property, except for defects to title which individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect and (ii) its respective Collateral, free and clear of Liens, except for Permitted Liens.

5.7. [Reserved].

5.8. Litigation; Governmental Action. Other than the Bankruptcy Cases and any litigation disclosed, there are no actions or proceedings pending or, to the Knowledge of the Responsible Officers, threatened by or against any Loan Party or any of their respective Subsidiaries in writing (x) with reasonably expected liability more than the Disclosure Amount or (y) that could be reasonably be expected to have a Material Adverse Effect.

5.9. Financial Statements. As of the Closing Date, Agent and the Lenders have received (a) audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2023, and the related consolidated statement of operations, shareholder’s equity and cash flows for the fiscal year then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the twelve (12) months ended December 31, 2023, and the related consolidated statement of operations and cash flows for the twelve (12) months then ended (the “Current Financial Statements”). The Current Financial Statements fairly present in all material respects Parent’s consolidated financial condition as of the dates thereof and consolidated results of operations for the periods then ended, subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnote disclosures.

5.10. No Fraudulent Transfer. No property has been transferred, concealed or removed by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan Documents, in each case, with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.

5.11. Taxes; Pension Plans. Parent and each Subsidiary has filed or caused to be filed all federal income tax returns and other material tax returns required to be filed, and has paid, or has made adequate provision for the payment of, all Taxes before the same become delinquent, other than payments of Taxes in an aggregate amount not to exceed the Disclosure Amount or except to the extent such Taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor. No Loan Party is aware of any claims or adjustments proposed for Parent’s or any Subsidiary’s prior tax years which could result in additional Taxes in excess of the Disclosure Amount becoming due and payable. Except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (a) Parent and each Subsidiary have paid all amounts necessary, if any, to fund all present qualified pension, profit sharing and deferred compensation plans in accordance with their terms, (b) no Loan Party nor any ERISA Affiliate has incurred any liability to the Pension Benefit Guaranty Corporation which remains outstanding other than the payment of premiums, and there are no such premium payments which have become due which are unpaid, (c) no ERISA Event has occurred or is reasonably expected to occur and (d) no Loan Party or ERISA Affiliate has withdrawn from participation in, permitted the partial or complete termination of, or permitted the occurrence of any other event with respect to, any Pension Plan or Multiemployer Plan which could reasonably be expected to result in any liability to any Loan Party, including any such liability to the Pension Benefit Guaranty Corporation or its successors or any other governmental agency.

5.12. Consents and Approvals. Subject to the entry of the DIP Order, no approval, authorization or consent of any trustee or holder of any Indebtedness or obligation of any Loan Party or of any other Person under any material agreement, contract, lease or license or similar document or instrument to which any Loan Party is a party or by which any Loan Party is bound, is required to be obtained by the Loan Parties in order to make or consummate the transactions contemplated under the Loan Documents except for those that have already been obtained and are in full force and effect and except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. Subject to the entry of the applicable DIP Order, all consents and approvals of, filings and registrations with, and other actions in respect of, all Governmental Authorities required to be obtained by the Loan Parties in order to make or consummate the transactions contemplated under the Loan Documents have been, or prior to the time when required will have been, obtained, given, filed or taken and are or will be in full force and effect, except for those that have already been obtained and are in full force and effect and except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

5.13. Intellectual Property. Except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, the Loan Parties own all Intellectual Property used in their business, except for (i) off the shelf or shrink-wrap software and non-customized mass market licenses that are commercially available to the public, (ii) [reserved], (iii) [reserved], and (iv) other Intellectual Property licensed from a third party to any Loan Party. Except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, to the Knowledge of such Loan Party, each Loan Party has all rights with respect to Intellectual Property that are reasonably necessary for, or otherwise used or held for use in, the operation of any portion of its respective businesses as currently conducted. Except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, to the Knowledge of the Loan Parties, no Intellectual Property material to the Loan Parties’ business is owned by any Subsidiary that is not a Loan Party. Except where the failure to do so could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (a) each of the Copyrights, Trademarks and Patents owned by any Loan Party that is material to its business is valid and enforceable, (b) no part of the Intellectual Property owned by any Loan Party that is material to its business has been judged invalid or unenforceable, in whole or in part, (c) no claim has been made to any Loan Party that any material Intellectual Property used in the business of such Loan Party violates or infringes the rights of any third party, and (d) no Loan Party is a party to, or bound by, any material inbound license or other agreement that restricts the grant by such Loan Party of a security interest in Parent’s or such Subsidiary’s rights in such license or agreement or any other Intellectual Property. Except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, each Loan Party has a valid license agreement for the use of Intellectual Property rights of third parties known to the Loan Parties to be necessary to the conduct of the Loan Parties’ business.

5.14. [Reserved].

5.15. Environmental Matters. Except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (a) each Loan Party and its Subsidiaries, business, operations and Real Property are in compliance with, and none of the Loan Parties or their Subsidiaries have any liability under, any Environmental Laws, (b) each Loan Party and its Subsidiaries have obtained and maintain all permits, licenses, approvals, registrations and other authorizations required for the conduct of their businesses and operations, and the ownership, operation and use of their Real Property, under Environmental Laws, and all such permits, licenses, approvals, registrations and other authorizations are valid and in good standing, (c) there has been no Release or threatened Release of any Hazardous Materials on, at, under, to or from any Real Property or facility presently or formerly owned, leased or operated by the Loan Parties, their Subsidiaries, or their predecessors in interest that would result in liability for the Loan Parties or any of their Subsidiaries under Environmental Law, (d) there is no Environmental Claim pending, or to each Loan Party’s Knowledge, threatened against the Loan Parties or any of their Subsidiaries or relating to any Real Property currently or formerly owned, leased or operated by the Loan Parties or any of their Subsidiaries or relating to the operations of the Loan Parties or any of their Subsidiaries and there are no actions, activities, circumstances, conditions, events or incidents that could reasonably be expected to form the basis of such Environmental Claim, (e) no Real Property or facility owned, operated or leased by the Loan Parties or any of their Subsidiaries and, to each Loan Party’s Knowledge, no Real Property or facility formerly owned, operated or leased by the Loan Parties or any of their Subsidiaries or predecessors in interest is (i) listed or proposed for listing on the National Priorities List promulgated pursuant to CERCLA, (ii) listed on the Comprehensive Environmental Response, Compensation and Liability Information System or the Superfund Enterprise Management System promulgated pursuant to CERCLA or (iii) included on any similar list maintained by any Governmental Authority including any such list relating to petroleum, (f) none of the Loan Parties or their Subsidiaries is conducting any investigation, removal, remedial or other corrective action pursuant to any Environmental Law at any location, (g) no Environmental Lien has been recorded or attached to any revenues or to any Real Property owned or operated by a Loan Party or any of their Subsidiaries, (h) none of the Loan Parties or their Subsidiaries has treated, stored, transported, released or disposed or arranged for disposal or transport for disposal of Hazardous Materials at, on, under or from any currently or formerly owned or leased Real Property or facility in a manner that could reasonably be expected to give rise to any Environmental Liability of the Loan Parties or any of their Subsidiaries, and (i) no Loan Party nor any of its Subsidiaries nor any of their respective facilities or operations is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating to any Environmental Law or Environmental Liability.

5.16. Government Consents. Subject to the entry of the applicable DIP Order, each Loan Party (and each Subsidiary thereof) has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary for the continued operation of the Loan Parties’ (and their Subsidiaries’) business as currently conducted, except where the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

5.17. Full Disclosure. No representation, warranty or other statement made by (or on behalf of) any Loan Party (or any Subsidiary thereof) in any Loan Document, certificate or written statement furnished to Agent or any Lender, taken together with all such certificates, Loan Documents and written statements, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in such Loan Documents, certificates or statements not misleading, it being recognized by Agent and Lenders that the projections and forecasts provided by the Loan Parties in good faith and based upon reasonable assumptions are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ from the projected or forecasted results.

5.18. Inventory. All Inventory is in all material respects of good and marketable quality, free from all material defects, spoilage, non-conformance, or payment dispute (except for Inventory for which adequate reserves have been made), and free and clear of Liens (except for Permitted Liens).

5.19. Sanctioned Persons. None of Parent or any of its Subsidiaries, and to Parent’s Knowledge, any of their directors, officers, agents, employees is a Sanctions Target. Borrower will not directly or indirectly use the proceeds of the Term Loan or otherwise make available such proceeds to any Sanctions Target.

5.20. Foreign Assets Control Regulations, Etc.

(a) Neither the borrowing of the Term Loan by Borrower hereunder nor its use thereof will violate (i) the United States Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) executive order relating thereto, (iii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Terrorism Order”), (iv) USA PATRIOT ACT, or (v) USA FREEDOM ACT. No part of the Term Loan will be used, directly or Knowingly indirectly, for any material 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 United States Foreign Corrupt Practices Act of 1977, as amended.

(b) Neither Parent nor any Subsidiary, including Borrower (i) is or will become a “blocked person” as described in Section 1.01 of the Terrorism Order or (ii) engages or will engage in any dealings or transactions, or is otherwise associated, with any such blocked person.

(c) Each Loan Party, including Borrower, and their respective Affiliates are in compliance, in all material respects, with the USA PATRIOT ACT and the USA FREEDOM ACT.

(d) The Loan Parties, each of their Subsidiaries, and, to the Knowledge of Parent, each of their respective directors, officers and employees and, to the Knowledge of Parent, the agents of the Loan Parties, are and will remain in material compliance with all applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Parent and its Subsidiaries, including Borrower have instituted and maintain or are subject to policies and procedures designed to ensure continued compliance with applicable Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.

5.21. Status. Neither Parent nor any of its Subsidiaries, including Borrower, ever has been, is, or, upon the consummation of the transactions contemplated hereby, by any other Loan Document or any related agreements, will be (i) a “passive foreign investment company” within the meaning of Section 1297 of the Internal Revenue Code, (ii) a “controlled foreign corporation” within the meaning of Section 957(a) of the Internal Revenue Code or (iii) a “U.S. Real Property Holding Corporation” within the meaning of Section 897 of the Internal Revenue Code.

5.22. [Reserved].

5.23. Tax Classification. The Borrower is classified as a disregarded entity for U.S. federal income tax purposes.

5.24. Bankruptcy Related Matters.

(a) The Bankruptcy Cases were commenced on the Petition Date in accordance with applicable laws and proper notice thereof was given for (i) the motion seeking approval of the Loan Documents and the Interim DIP Order and Final DIP Order, (ii) the hearing for the entry of the Interim DIP Order, and (iii) the hearing for the entry of the Final DIP Order (provided that notice of the final hearing will be given as soon as reasonably practicable after such hearing has been scheduled).

(b) After the entry of the Interim DIP Order, and pursuant to and to the extent permitted in the Interim DIP Order and the Final DIP Order, the Obligations will constitute allowed administrative expense claims in the Bankruptcy Cases having priority over all administrative expense claims and unsecured claims against the Debtors now existing or hereafter arising, of any kind whatsoever, including all administrative expense claims of the kind specified in Sections 105, 326, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c), 726, 1114 or any other provision of the Bankruptcy Code or otherwise, as provided under Section 364(c)(l) of the Bankruptcy Code, subject to (i) the Carve Out, (ii) an Acceptable Intermediation Order and (iii) the priorities set forth in the Interim DIP Order or Final DIP Order, as applicable, subject to any Permitted Liens.

(c) After the entry of the Interim DIP Order and pursuant to and to the extent provided in the Interim DIP Order and the Final DIP Order, the Obligations will be secured by a valid and perfected Lien on all of the Collateral subject, as to priority, to the extent set forth in the Interim DIP Order or the Final DIP Order and to the extent such Collateral is not subject to valid, enforceable, perfected and non-avoidable Liens as of the Petition Date, and in any case, (i) subject to Permitted Liens and (ii) excluding Avoidance Actions (but including, upon entry of the Final DIP Order, the proceeds thereof).

(d) The Interim DIP Order (with respect to the period on and after entry of the Interim DIP Order and prior to entry of the Final DIP Order) or the Final DIP Order (with respect to the period on and after entry of the Final DIP Order), as the case may be, is in full force and effect and has not been reversed, stayed (whether by statutory stay or otherwise), vacated, or, without the Required Lenders’ (and with respect to any provision that affects the rights or duties of the Agent, Agent’s) consent, modified or amended.

(e) The Loan Parties are in compliance in all material respects with the DIP Orders.

5.25. Compensation of Officers and Directors. No Loan Party has adopted or approved increased base compensation and regular course incentive opportunities for, or adopted or approved special, additional or supplemental cash compensation or bonuses for Named Executive Officers and Directors since December 31, 2023 inconsistent with the Loan Parties’ historical ordinary course of business practices as in effect prior to December 31, 2023 other than (i) the retention of the CRO required by Section 6.22(a), (ii) as previously disclosed to the Lender Group in connection with the Pre-Petition Loan Agreement, (iii) occurred prior to the Closing Date and was permitted under the Pre-Petition Loan Agreement at such time or (iv) after the Closing Date, in accordance with the RSA. No key employee agreement, director compensation arrangement, severance agreements or employee retention plans, in each case, with respect to Named Executive Officers and Directors, have been approved, adopted, amended, modified or ratified by any Loan Party since April 17, 2023, except (i) as otherwise already disclosed to the Lender Group in connection with the Pre-Petition Loan Agreement, (ii) that occurred prior to the Closing Date and was permitted under the Pre-Petition Loan Agreement at such time or (iii) after the Closing Date, in accordance with the RSA. No management incentive plan, or equity, equity- based, and/or cash incentive plan or similar arrangements or agreements, in each case, for Named Executive Officers and Directors, have been approved, adopted, amended, modified or ratified by any Loan Party and no Loan Party has discretionarily accelerated vesting under any such plan since April 4, 2024, except (i) as otherwise already disclosed to the Lender Group in connection with the Pre-Petition Loan Agreement, (ii) occurred prior to the Closing Date and was permitted under the Pre-Petition Loan Agreement at such time or (iii) after the Closing Date, in accordance with the RSA.

6. Affirmative Covenants.

The Loan Parties covenant and agree that, until the full and complete payment of the Obligations (other than inchoate indemnity obligations) in cash, each Loan Party shall (and shall cause each of its Subsidiaries to) do all of the following:

6.1. Good Standing. Each Loan Party and each of its Subsidiaries shall maintain its corporate existence and good standing in its jurisdiction of formation and maintain qualification in each other jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect. Each Loan Party and each of its Subsidiaries shall maintain in force all licenses, approvals and agreements, the loss of which could reasonably be expected to have a Material Adverse Effect.

6.2. Government Compliance. Parent, each Loan Party, and each of their Subsidiaries shall comply with all applicable federal and state statutes, laws, ordinances and government rules and regulations (including Environmental Laws) to which it or its operations is subject, noncompliance with which could reasonably be expected to have a Material Adverse Effect.

6.3. Financial Statements, Reports, Certificates.

(a) Borrower shall deliver the following to Agent by email to the address specified pursuant to Article 11 (and Agent shall deliver same to Lenders immediately upon receipt thereof), and Agent and Lenders shall be entitled to rely on the information contained therein: (i) as soon as available, but in any event within the earlier of (x) forty-five (45) days after the end of each calendar quarter and (y) the date on which delivered to the SEC, Parent’s consolidated financial statements including a cash flow statement, income statement and balance sheet for the period reported, and certified by a Responsible Officer of Parent; (ii) if a Default or Event of Default has occurred and is continuing, as soon as available, but in any event within thirty (30) days after the end of each calendar month (in form and substance satisfactory to the Required Lenders), Parent’s consolidated financial statements including a cash flow statement, income statement and balance sheet for the period reported, and certified by a Responsible Officer of Parent; (iii) as soon as available, but in any event within the earlier of (x) one hundred and twenty (120) days after the end of Parent’s fiscal year and (y) the date on which delivered to the SEC, audited consolidated financial statements of Parent in accordance with GAAP, consistently applied; (iv) as soon as available, but in any event within thirty (30) days prior to the end of Parent’s fiscal year, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal year, presented in a quarterly format reasonably acceptable to the Required Lenders; (v) copies of all statements, reports and notices sent or made available generally by any Loan Party to its security holders and debt holders, when made available to such holders; (vi) promptly upon receipt of written notice thereof, a report of any legal actions pending or threatened against any Loan Party that could reasonably be deemed to result in damages, fines, penalties or other sanctions by any Governmental Authority payable by any Loan Party exceeding the Threshold Amount, or claims for injunctive or equitable relief; (vii) promptly upon receipt thereof (but in any event no more than three (3) Business Days thereafter), (A) copies of any amendments, waivers, consents or other modifications to any Intermediation Facility Documents or any other documents relating to Indebtedness in excess of the Threshold Amount, as applicable, (B) notices of default required to be delivered pursuant to any Intermediation Facility Documents, or any other documents relating to Indebtedness in excess of the Threshold Amount, as applicable, (C) notices of material adverse changes, and (D) notice of any Change of Control; (viii) other financial information as Agent or any Lender may reasonably request from time to time promptly after such request; (ix) environmental, social and corporate governance related materials reasonably requested by the Lenders, including the BlackRock ESG Questionnaire within seventy-five (75) days after request therefor by the requesting Lenders, which in the case of the BlackRock ESG Questionnaire, shall be completed by the Loan Parties, for direct delivery to the BlackRock Lenders, within seventy-five (75) days after request through the e-Front system without any additional request by such BlackRock Lenders and (x) no later than 30 days after the end of each calendar month (commencing on September 30, 2024), (1) a reasonably detailed summary as of the last day of the preceding month of the Loan Parties’ RFS Assets and RFS Liabilities and (2) a reasonably detailed summary of (x) all obligations for the purchase of RINs that have not been paid and (y) RINs that the Loan Parties must purchase in order to satisfy its RVOs; provided, that if requested by Agent, the Borrower shall make its management and advisors available to Required Lenders and their advisors from time to time during normal business hours with reasonable advance notice to address questions from Agent and its advisors in respect of the foregoing items in clause (x).

(b) Electronic Delivery. Documents required to be delivered pursuant to Section 6.3(a) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent or any other Loan Party posts such documents, or provides a link thereto on the Parent’s website at: www.vertexenergy.com; or (ii) on which such documents are posted on the Loan Parties’ behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Agent or such Lender and (y) the Borrower shall notify the Agent and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents (other than documents otherwise filed with the SEC) and provide to the Agent by e-mail electronic versions (i.e., soft copies) of such documents. The Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

(c) “PUBLIC” Borrower Materials. The Loan Parties hereby acknowledge that (i) the Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Parent, Borrower or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Loan Parties hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (A) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Agent, any Affiliate thereof and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Parent, Borrower, their Affiliates or their respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 14.12); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (D) the Agent and any Affiliate thereof shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

(d) [Reserved].

(e) Aging. Upon reasonable request by the Required Lenders, the Loan Parties shall deliver a summary aging, by vendor, of each Loan Party’s accounts payable, any book overdraft, and any held checks, in form and substance reasonably satisfactory to the Required Lenders and consistent with the Loan Parties’ historical practices.

(f) Reserved.

(g) Reports delivered to the Agent pursuant this Section 6.3 are for informational purposes only and the Agent will not be deemed to have actual or constructive notice of any information contained therein or determinable therefrom, including the Borrower’s compliance with its covenants under this Agreement. Any Lender may request to not receive any information that may constitute material non-public information from the Agent or the Loan Parties, pursuant to this Section 6.3, it being acknowledged that such documents or information may include amendments or requests for amendment that have been designated as “private side” information by the Borrower. The Loan Parties may request that the Lenders enter into or extend non-disclosure agreements prior to receiving material non-public information for the time period for which information is being provided under Section 6.3 which non-disclosure agreements shall be in form and substance consistent with past practice.

6.4. Certificates of Compliance. Each time financial statements are required to be furnished pursuant to Section 6.3(a) (i) or (iii) above, there shall be delivered to Agent (for delivery to the Lenders) a certificate signed by a Responsible Officer of Parent (each a “Compliance Certificate”) in substantially the form attached hereto as Exhibit G certifying that as of the end of the reporting period for such financial statements, the Loan Parties were in full compliance with all of the terms and conditions of the Loan Documents, and setting forth such other information as Agent (at the direction of the Required Lenders) shall reasonably request, or otherwise certifying as to any applicable non-compliance together with details thereof. Parent shall deliver the Compliance Certificate to Agent (for delivery to the Lenders) by email to the address specified pursuant to Section 11, and Agent and Lenders shall be entitled to rely on the information contained therein.

6.5. Notices.

(a) As soon as possible, and in any event within three (3) Business Days after any Loan Party’s Knowledge of a Default or an Event of Default, notify the Agent of the facts relating to or giving rise to such Default or Event of Default and the action which the Loan Parties propose to take with respect thereto. Borrower shall deliver such notice to Agent by email to the address specified pursuant to Section 11, and Agent and Lenders shall be entitled to rely on the information contained therein.

(b) [Reserved].

(c) Notify the Agent (each such notice, an “IA Notice”), as soon as possible, and in any event within five (5) Business Days after any Loan Party’s Knowledge that the amount of the Independent Amount has increased by 20% or more from (x) the amount of the Independent Amount as in effect on the Closing Date or (y) the amount of the Independent Amount as in effect on the date of the previously delivered IA Notice, as applicable. Borrower shall deliver such IA Notice to Agent by email to the address specified pursuant to Section 11, and Agent and Lenders shall be entitled to rely on the information contained therein.

(d) Notify the Agent, as soon as possible, and in any event within five (5) Business Days after any Loan Party’s Knowledge of any matter that results in or could reasonably be expected to result in a Material Adverse Effect with respect to the Loan Parties, taken as a whole. Notwithstanding the foregoing, any Lender may request to not receive any information that may constitute material non-public information from the Agent, it being acknowledged that such documents or information may include amendments or requests for amendment that have been designated as “private side” information by the Borrower.

6.6. Taxes. Except to the extent such Taxes are excused or prohibited by the Bankruptcy Code or not otherwise authorized by the Bankruptcy Court with respect to periods prior to the Closing Date, Parent shall make, and cause each other Subsidiary to make, due and timely payment or deposit of all federal and material state and local Taxes, assessments, or contributions required of it by law or imposed on its income or upon any properties belonging to it; and Parent will make due and timely payment or deposit of all material related tax payments and withholding Taxes required of it by Applicable Law, including those laws concerning F.I.C.A., F.U.T.A., and state disability, and will, upon request, furnish Agent with proof reasonably satisfactory to Agent and Required Lenders indicating that the Loan Parties have made such payments or deposits; provided that the Loan Parties need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is fully reserved against by the applicable Loan Party.

6.7. Maintenance. The Loan Parties, at their expense, shall maintain the Collateral in good condition, normal wear and tear and casualty and condemnation excepted, and will comply in all material respects with all laws, rules and regulations to which the use and operation of the Collateral may be or become subject. Such obligation shall extend to repair and replacement of any partial loss or damage to the Collateral, regardless of the cause, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.

6.8. Insurance.

(a) The Loan Parties and each of their Subsidiaries shall maintain, at its sole cost and expense, with financially sound and reputable insurance companies which are not Affiliates of the Loan Parties, insurance with respect to the Collateral, its properties and businesses against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts in such amounts, with such deductibles and covering such risks as are, in the reasonable business judgment of the management of Parent, adequate for Loan Parties. All such policies of insurance shall be in such form, with such companies, and in such amounts as are reasonably satisfactory to the Required Lenders.

(b) Within 30 days (or such later date as consented to by the Required Lenders), all such policies of property insurance shall contain a lender’s loss payable endorsement, in a form satisfactory to Agent and Required Lenders, showing Agent for itself and the benefit of each other Secured Party as an additional loss payee thereof, and all liability insurance policies shall show Agent for itself and the benefit of each other Secured Party as an additional insured and shall specify that the insurer must give at least thirty (30) days’ notice to Agent before canceling its policy for any reason (except for nonpayment, which shall be ten (10) days prior notice). Each Loan Party shall promptly deliver to Agent its current copy of such policies of insurance, evidence of the payments of all premiums therefor and insurance certificates and related endorsements thereto, it being understood that any time there is a change or renewal of insurance, it is Borrower’s obligation to promptly deliver such materials to Agent.

(c) The Loan Parties shall bear the risk of the Collateral being lost, stolen, destroyed, damaged beyond repair, rendered permanently unfit for use, or seized by a Governmental Authority for any reason whatsoever at any time. Proceeds payable under any insurance policy shall, at Agent’s option, be payable to Agent for the benefit of the Secured Parties on account of the Secured Obligations.

6.9. Environmental Laws.

(a) At its sole expense, the Loan Parties shall (i) comply, and shall cause their Subsidiaries and their Real Property and operations to comply, with applicable Environmental Laws, the breach of which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; (ii) not Release any Hazardous Material on, under, about or from any of the Loan Parties’ or any of their Subsidiaries’ Real Property or any other property offsite the Real Property to the extent caused by any Loan Party’s or any of their Subsidiaries’ operations except in compliance with applicable Environmental Laws, if and to the extent that the Release or threatened Release of such Hazardous Materials, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; (iii) timely obtain or file all permits, licenses, approvals, registrations and other authorizations to be obtained or filed in connection with the operation or use of the Loan Parties’ or any of their Subsidiaries’ Real Property, if and to the extent that the failure to obtain or file such permits, licenses, approvals, registrations or other authorizations, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; and (iv) promptly commence and diligently prosecute to completion any assessment, evaluation, investigation, monitoring, containment, cleanup, removal, repair, restoration, remediation or other remedial obligations (collectively, the “Remedial Work”) in the event such Remedial Work is required under applicable Environmental Laws because of or in connection with the Release of Hazardous Material on, under, about or from any of the Loan Parties’ or any of their Subsidiaries’ Real Property, if and to the extent that failure to commence and diligently prosecute to completion such Remedial Work, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(b) If any Loan Party or any of its Subsidiaries receives written notice of any action or, investigation or inquiry by any Governmental Authority or any threatened demand or lawsuit by any Person against any Loan Party, any of its Subsidiaries, or their Real Properties, in each case in connection with any Environmental Laws, the Borrower shall within fifteen (15) days after any Responsible Officer obtains actual Knowledge thereof give written notice of the same to Agent if such action, investigation, inquiry, demand or lawsuit could reasonably be expected to cause a Material Adverse Effect.

6.10. Intellectual Property Rights.

(a) Concurrently with the delivery of each Compliance Certificate for the months ending March 31, June 30, September 30 and December 31 pursuant to Section 6.4, Borrower shall give Agent written notice of: (i) any registration or filing in the U.S. of any Trademark, Copyright or Patent by any Loan Party since the delivery of the prior Compliance Certificate including the date of such registration or filing, the registration or filing numbers, the jurisdiction of such registration or filing, and a general description of such registration or filing and shall execute an Intellectual Property Security Agreement and take such other actions as necessary or that Agent (at direction of the Required Lenders) may request to perfect and maintain a first priority perfected security interest in favor of the Agent; provided that to the extent such protections are granted in any DIP Order, no Intellectual Property Security Agreement will be required, (ii) any material change to the Loan Party’s material Intellectual Property, and (iii) Parent’s knowledge of an event that could reasonably be expected to materially and adversely affect the value of its or any other Loan Party’s material Intellectual Property.

(b) The Loan Parties shall (and shall cause all its licensees to), (i) (1) continue to use each material Trademark in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (2) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (3) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable requirements of law, (4) not adopt or use any other Trademark that is confusingly similar or a colorable imitation of such Trademark unless the Agent shall obtain a perfected security interest in such other Trademark pursuant to this Agreement and (ii) not do any act or omit to do any act whereby (w) such Trademark (or any goodwill associated therewith) may become destroyed, invalidated, impaired or harmed in any way, (x) any material Patent may become forfeited, misused, unenforceable, abandoned or dedicated to the public, (y) any portion of the material Copyrights may become invalidated, otherwise impaired or fall into the public domain or (z) any material trade secret may become publicly available or otherwise unprotectable.

(c) The Loan Parties shall notify the Agent promptly if it knows, or has reason to know, that any application or registration relating to any material Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, or of any adverse determination or development regarding the validity or enforceability or such entity’s ownership of, interest in, right to use, register, own or maintain any material Intellectual Property (including the institution of, or any such determination or development in, any proceeding relating to the foregoing in any intellectual property office). The Loan Parties shall take all actions that are necessary or reasonably requested by the Agent (at the direction of the Required Lenders) to maintain or pursue each application (and to obtain the relevant registration) and to maintain each registration and recordation included in the material Intellectual Property. The Loan Parties shall not knowingly do any act or omit to do any act to infringe, misappropriate, dilute, violate or otherwise impair the Intellectual Property of any other Person. In the event that any material Intellectual Property of the Loan Parties is or has been infringed, misappropriated, violated, diluted or otherwise impaired by a third-party, such entity shall take such action as it reasonably deems appropriate under the circumstances in response thereto, including promptly bringing suit and recovering all damages therefor.

6.11. Formation or Acquisition of Subsidiaries. Notwithstanding and without limiting the negative covenants contained in Section 7.6 hereof, the Loan Parties will cause each of their Subsidiaries (other than any Excluded Subsidiary so long as such Subsidiary remains an Excluded Subsidiary) whether newly formed, after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired (or such longer period of time as agreed to by the Required Lenders in their reasonable discretion)) become a Guarantor hereunder by way of execution of a Guarantor Joinder Agreement or become a Borrower hereunder by way of execution of a Borrower Joinder Agreement. In connection therewith, the Loan Parties shall give notice to the Agent and the Lenders not less than ten (10) days prior to creating a Subsidiary (or such shorter period of time as agreed to by the Required Lenders in their reasonable discretion), or acquiring the Equity Interests of any other Person that results in such Person becoming a Subsidiary. In connection with the foregoing, the Loan Parties shall deliver to the Agent and the Lenders, with respect to each new Guarantor or Borrower to the extent applicable, substantially the same documentation required pursuant to Sections 3.1(b) – (d), and 6.12 and such other documents or agreements as the Agent or any Lender may reasonably request with respect to any new Subsidiary that signs and delivers a Borrower Joinder Agreement or Guarantor Joinder Agreement in order to comply with their ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, the USA FREEDOM Act, an IRS Form W-9 or other applicable tax forms.

6.12. Further Assurances.

(a) Except with respect to Excluded Property, each Loan Party will cause all Equity Interests and all of its tangible and intangible personal property now owned or hereafter acquired by it to be subject at all times to a first priority, perfected Lien (subject to Permitted Liens) in favor of the Agent for the benefit of the Secured Parties to secure the Secured Obligations pursuant to the terms and conditions of the Collateral Documents. Each Loan Party shall provide opinions of counsel and any filings and deliveries reasonably necessary in connection therewith to perfect the security interests therein, all in form and substance reasonably satisfactory to the Required Lenders.

(b) At any time upon request of the Required Lenders, promptly execute and deliver any and all further instruments and documents and take all such other action as the Required Lenders may reasonably deem necessary or desirable to maintain in favor of the Agent, for the benefit of the Secured Parties, Liens and insurance rights on the Collateral that are duly perfected in accordance with the requirements of, or the obligations of the Loan Parties under, the Loan Documents and all Applicable Laws.

(c) Promptly upon request by the Agent, or any Lender through the Agent, (a) correct any material defect or material error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Agent (at the direction of the Required Lenders) may reasonably require from time to time in order to (i) carry out more effectively the purposes of (A) the Collateral Documents or (B) this Agreement and the other Loan Documents, (ii) to the fullest extent permitted by Applicable Law, subject any Loan Party’s or any of its Subsidiaries’ (other than any Excluded Subsidiary so long as such Subsidiary remains an Excluded Subsidiary) properties, assets, rights or interests to the Liens intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries (other than any Excluded Subsidiary so long as such Subsidiary remains an Excluded Subsidiary) is or is to be a party, and cause each of its Subsidiaries (other than any Excluded Subsidiary so long as such Subsidiary remains an Excluded Subsidiary) to do so, provided that in the case of clause (i)(B) above, the same does not increase the obligations, or detract from the rights, of any Loan Parties under the Loan Documents in any material respect.

6.13. Inventory, Returns. The Loan Parties shall use commercially reasonable efforts to keep all Inventory in good and marketable condition, free from all material defects and payment disputes (except for Inventory for which adequate reserves have been made), and free and clear of Liens (except for Permitted Liens). Returns and allowances, if any, as between the Loan Parties and its Account Debtors shall be on the same basis and in accordance with GAAP, consistently applied, or with the usual customary practices of the Loan Parties, as they exist at the time of the execution and delivery of this Agreement.

6.14. Delivery of Third-Party Agreements.

(a) [Reserved].

(b) [Reserved].

(c) Upon the acquisition by any Loan Party after the Closing Date of any fee interest in any real property (wherever located) (each such interest, a “New Owned Property”) with a Current Value (as defined below) in excess of $500,000, promptly so notify Agent, setting forth with reasonable specificity a description of the interest acquired, the location of the real property, any structures or improvements. For purposes of this Section 6.14(c), the “Current Value” shall be calculated as the greater of (i) either an appraisal or such Loan Party’s good-faith and reasonable estimate of the current fair market value of such real property and (ii) the value of such real property at the time of its acquisition. Agent (at the direction of the Required Lenders) shall notify such Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables) with respect to any such New Owned Property with a Current Value in excess of $500,000. Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables), the Loan Party that has acquired such New Owned Property shall promptly furnish the same to Agent within ninety (90) days of such Loan Party’s receipt of such notice. The Borrower shall pay all actual fees and out-of-pocket expenses, including, without limitation, reasonable attorneys’ fees and expenses, and all customary title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section 6.14(c).

6.15. Inspections and Rights to Consult with Management. Agent and Lenders shall have the inspection rights provided in Section 4.5 of this Agreement. In addition, the Loan Parties shall permit any representative of the Agent or the Lenders to meet, at reasonable times and upon reasonable notice, with management and officers of the Loan Parties and their Subsidiaries at least once per calendar quarter (unless an Event of Default is continuing, in which case such additional meetings as requested shall be permitted).

6.16. Privacy and Data Security. The Loan Parties and their Subsidiaries shall, at all times, remain in compliance in all material respects with all applicable United States and international privacy and data security laws and regulations including GDPR (to the extent applicable).

6.17. [Reserved].

6.18. Bankruptcy Matters.

Parent and the Borrower will and will cause each of the other Loan Parties to:

(a) cause all proposed (i) “first day” orders, (ii) “second day” orders, (iii) orders related to or affecting the Term Loans and other Obligations, the Pre-Petition Loan Obligations and the Loan Documents, the Intermediation Facility, the Hedge Facility, the use of Cash Collateral, any sale or other disposition of Collateral outside the ordinary course, cash management, adequate protection, any plan of reorganization and/or any disclosure statement related thereto, (iv) orders concerning the financial condition of the Borrower or any of its Subsidiaries or other Indebtedness of the Loan Parties or seeking relief under section 363, 365, 1113 or 1114 of the Bankruptcy Code or section 9019 of the Federal Rules of Bankruptcy Procedure, (v) orders authorizing additional payments to critical vendors (outside of the relief approved in the “first day” and “second day” orders) and (vi) orders establishing procedures for administration of the Bankruptcy Cases or approving significant transactions submitted to the Bankruptcy Court, in each case, proposed by the Debtors to be in accordance with and permitted by the terms of this Agreement to be Approved Bankruptcy Court Orders (and with respect to any provision that affects the rights or duties of the Agent, acceptable to the Agent in their reasonable discretion);

(b) comply in all material respects with each order entered by the Bankruptcy Court in connection with the Bankruptcy Cases;

(c) comply in a timely manner with their obligations and responsibilities as debtors- in-possession under the Bankruptcy Code, the Bankruptcy Rules, the Interim DIP Order and the Final DIP Order, as applicable, and any other order of the Bankruptcy Court; and

(d) deliver to counsel to the Required Lenders and to counsel to the Agent (to the extent practicable) (x) promptly as soon as available but no later than two (2) Business Days prior to filing, copies of all (i) First Day Pleadings and all orders sought pursuant thereto; (ii) Bidding Procedures Motion; (iii) Sale Order; (iv) the Plan of Reorganization; (v) the Plan Supplement; (vi) the Disclosure Statement; (vii) the Disclosure Statement Order; (viii) the Solicitation Materials; (x) the DIP Orders; and (x) the Confirmation Order, and (xi) all other material filings to be filed by or on behalf of the Loan Parties with the Bankruptcy Court in the Bankruptcy Cases, or distributed by or on behalf of the Loan Parties to any official or unofficial committee appointed or appearing in the Bankruptcy Cases or any other party in interest, and shall consult in good faith with the Required Lenders’ advisors regarding the form and substance of any such document and (y) use commercially reasonable efforts to provide to counsel to the Required Lenders and to counsel to the Agent drafts of all pleadings that the Company Parties or any of its Affiliates intend to file with the Bankruptcy Court at least two days prior to the date on which such party files such pleading.

6.19. Post-Closing Matters. Each Loan Party agrees to complete, or cause all of the items, matters and documents set forth in Schedule 6.19 to be completed, executed and delivered (as applicable) not later than the dates and times set forth in the Schedule 6.19.

6.20. [Reserved].

6.21. Access Rights to Advisors.

(a) The Loan Parties agree that Alvarez & Marsal, subject to any applicable privilege, shall be authorized and directed to (i) consult, communicate (without the presence of the Borrower) and fully cooperate with the Lenders and to share with the Lenders all records, projections, financial information, reports and other information prepared by or in the possession of Alvarez & Marsal relating to Collateral held by the Agent for the benefit of the Secured Parties and the financial condition and operations of the businesses of the Loan Parties; and (ii) keep the Lenders fully informed of the progress of the business and operations of the Loan Parties and respond fully to inquiries of any Lender regarding the business and operations of the Loan Parties.

(b) The Loan Parties agree that Perella Weinberg Partners, subject to any applicable privilege, shall be authorized and directed to (i) consult, communicate (without the presence of the Borrower) and fully cooperate with the Lenders and to share with the Lenders all records, projections, financial information, reports and other information prepared by or in the possession of Perella Weinberg Partners relating to Collateral held by the Agent for the benefit of the Secured Parties and the financial condition and operations of the businesses of the Loan Parties; and (ii) keep the Lenders fully informed of the progress of the business and operations of the Loan Parties and respond fully to inquiries of any Lender regarding the business and operations of the Loan Parties.

(c) The Loan Parties agree that Donohoe Advisory Associates LLC, subject to any applicable privilege, shall be authorized and directed to (i) consult, communicate (without the presence of the Borrower, but shall be in the presence of the CRO) and fully cooperate with the Lenders and to share with the Lenders all materials, reports and other information prepared by or in the possession of Donohoe Advisory Associates LLC relating to (x) retaining the listing of Parent’s securities on The Nasdaq Stock Market LLC (the “Exchange”) and (y) assisting the Loan Parties in seeking and obtaining approval of any potential upcoming transactions, including any rights offering transaction, any backstop thereof, any change of control transaction resulting from an issuance of warrants, common stock or otherwise, in each case, under the applicable Exchange Listing Rules and policies, including the financial hardship exemption; and (ii) keep the Lenders fully informed of the progress of the foregoing.

6.22. Engagement and Retention of Chief Restructuring Officer.

(a) The Loan Parties shall have appointed a Chief Restructuring Officer (the “CRO”), who shall be reasonably acceptable to the Required Lenders (and for the avoidance of doubt, the CRO in place as of the Petition Date is acceptable to the Required Lenders), the Loan Parties agree that the CRO, subject to any applicable privilege and fiduciary duties, shall be authorized and directed to (i) consult, communicate (without the presence of any other officers of the Borrower) and fully cooperate with the Lenders and to share with the Lenders all records, projections, financial information, reports and other information prepared by or in the possession of the CRO relating to Collateral held by the Agent for the benefit of the Secured Parties and the financial condition and operations of the businesses of the Loan Parties; and (ii) keep the Lenders fully informed of the progress of the business and operations of the Loan Parties and respond fully to inquiries of any Lender regarding the business and operations of the Loan Parties. For the avoidance of doubt, the Required Lenders hereby consent to the appointment of Seth Bullock as the Chief Restructuring Officer.

(b) The Loan Parties shall maintain such CRO and shall not terminate the CRO without the prior written consent of the Required Lenders, which consent shall not be unreasonably conditioned, delayed, or withheld. If the CRO resigns, the Borrower shall immediately notify Agent in writing and provide Agent with a copy of any notice of resignation immediately upon the sending of such notice by the CRO. Any replacement or successor CRO shall be reasonably acceptable to the Required Lenders and shall be appointed within three (3) Business Days immediately following the notice of resignation of the resigning CRO.

6.23. Additional Covenants of the Borrower.

In consideration of Agent and Lenders entering into this Agreement in accordance with the terms and conditions hereof, Borrower hereby covenants and agrees that the Borrower shall at all times comply with each of the following covenants, it being understood by the parties that the failure to do so will immediately constitute the occurrence of an Event of Default:

(a) Reporting.

(i) No later than 5:00 p.m. on the Thursday of every fourth calendar week, commencing with fourth Thursday including the week in which the Closing Date occurs, the Borrower shall deliver to the Agent a Cash Flow Forecast. Each Cash Flow Forecast shall be reasonably acceptable to Agent and the Required Lenders and no such Cash Flow Forecast shall be effective until so approved; provided that (x) Agent and the Required Lenders shall be deemed to have approved a Cash Flow Forecast delivered pursuant to this clause (a)(i) unless Agent and the Required Lenders have objected to such Cash Flow Forecast prior to 5:00 p.m. on the immediately succeeding Tuesday and (y) any single capital expenditure disbursement in excess of $1,000,000 shall be subject to the prior written approval of the Required Lenders (which approval shall be deemed provided if the Required Lenders do not object to such disbursement as a separate (and not aggregated) line item within 48 hours of receiving prior written notice thereof from the Borrower). Upon such approval or deemed approval by Agent and the Required Lenders pursuant to this clause (a)(i), the Cash Flow Forecast delivered shall constitute an “Approved Budget”; provided that the Borrower may amend, supplement or replace the current Approved Budget, and once such Cash Flow Forecast is approved or deemed approved by Agent and the Required Lenders, the amended Cash Flow Forecast shall constitute the current Approved Budget; provided however; until any such proposed amended, supplemented or replacement Cash Flow Forecast is so approved or deemed approved, the then-current form of the Approved Budget shall remain in effect; provided further that Agent and the Required Lenders shall have deemed to have approved an amended, supplemented or replacement Cash Flow Forecast delivered pursuant to this clause (a)(i) unless Agent and the Required Lenders have objected to such Cash Flow Forecast within forty-eight hours of delivery of an amended, supplemented or replacement Cash Flow Forecast; and

(ii) no later than 5:00 p.m. on the Thursday of every calendar week, commencing with the Thursday of the first full week following the week in which the Closing Date occurs, a Variance Report. Each such report shall be certified by a Responsible Officer of each of the Loan Parties as being prepared in good faith and fairly presenting in all material respects the information set forth therein.

(b) Variance Covenant. Beginning with the delivery of the fourth Variance Report and tested, as of the last day of each applicable Test Period, commencing with the last day of the first Test Period ending after the Closing Date, for such initial Test Period, and for each Test Period thereafter, the positive variance (as compared to the Approved Budget) of the aggregate operating disbursements made by the Borrower shall not exceed 15% (the percentage set forth in this clause (b), the “Permitted Variance”). For the avoidance of doubt, professional fees shall not be subject to the variance covenant set forth herein and any positive variance with respect to professional fees (in any amount) as compared to the Budget shall constitute a Permitted Variance. For the avoidance of doubt, the Loan Parties may carry forward to subsequent Test Periods any overperformance during prior Test Periods.

6.24. Restructuring Milestones.

Borrower agrees to complete, or cause to be completed, all Restructuring Milestones not later than the dates set forth in Schedule 6.24 (or such later date to which the Supermajority Lenders agree in their sole discretion).

6.25. Additional Financings.

Each Lender shall have the right to participate, directly or through any Affiliate (other than any Competitors), on a pro rata basis, in any debt or equity financing of the Parent or its Subsidiaries in which any other current or future Lender participates, whether pre or post- petition, on the same terms and conditions as applied to all participants in the respective financing. For purposes of this Section 6.25, each Lender, in its capacity as a Pre-Petition Lender, hereby agrees and acknowledges that it has been given the right to participate, on a pro rata basis, in the Term Loans hereunder on the same terms and conditions as applied to all participants in such financing.

7. Negative Covenants.

Each Loan Party covenants and agrees that until the full and complete payment of the Obligations (other than inchoate indemnity obligations) in cash and termination of the Term Loan Commitment, such Loan Party will not (and will cause each of its Subsidiaries to not) do any of the following:

7.1. Chief Executive Office; Location of Collateral. During the continuance of this Agreement, change the state of formation, chief executive office or principal place of business or remove or cause to be removed, except in the ordinary course of a Loan Party’s business, the Collateral or the records concerning the Collateral to a location that is not within the Loan Parties’ control and was not a location previously disclosed under the Pre-Petition Loan Agreement without twenty (20) days (or such shorter period as may be agreed to by the Required Lenders in their reasonable discretion) prior written notice to Agent, provided that any such removal of a Loan Party’s Collateral may not be to a location outside of the United States without Agent’s (at direction for the Required Lenders) and Required Lenders’ prior written consent.

7.2. Extraordinary Transactions and Disposal of Collateral. Convey, sell, lease, license, assign, transfer or otherwise Dispose of, all or any Collateral, other than:(i) Dispositions of Inventory in the ordinary course of business (including with respect to consignment arrangements with respect to such Inventory and any disposition or transfer of any Inventory pursuant to the terms of any Indebtedness under clause (m) of the definition of Permitted Indebtedness); (ii) Dispositions of equipment, Vehicles, Rolling Stock and similar assets, in each case, in the ordinary course of business that are surplus, worn-out or obsolete; (iii) uses of cash and Cash Equivalents not prohibited under this Agreement; (iv) Dispositions consisting of or made in connection with Permitted Liens, Permitted Investments (other than clause (c) of the definition thereof; (v) the unwinding, terminating and/or offsetting of any Hedging Agreement; (vi) Dispositions of property will be permitted if such property is subject to a Casualty Event or in connection with any condemnation proceeding with respect to Collateral; (vii) if no Event of Default then exists or would result as a result thereof, sales and other Dispositions of property not otherwise permitted pursuant to this Section 7.2 (including, without limitation, any disposition under Bankruptcy Code section 363); provided that the Debtors will not be permitted to enter into sales or other Dispositions pursuant to this clause (vii) to the extent the net cash proceeds of which, in the aggregate with all other Dispositions effected under this clause (vii), would reasonably be expected to exceed $5,000,000 in the aggregate; and (viii) Dispositions of any property of any Debtor pursuant to an Approved Bankruptcy Court Order (including any Dispositions contemplated by the procedures for de minimis asset transactions authorized and approved by the Bankruptcy Court) (collectively, the “Permitted Dispositions”). Except for the pledge of its interests in the Equity Interest of any of its Subsidiaries to the Agent or any other Disposition in compliance with the first sentence of this Section 7.2, no Loan Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to qualify directors if required by Applicable Law; or (b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to another Loan Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify directors if required by Applicable Law.

7.3. Restructure. (i) Without providing not less than twenty (20) days (or such shorter period as may be agreed to by the Required Lenders in their reasonable discretion) advance written notice to Agent, change its name, type of organization, or jurisdiction of formation; (ii) suspend operation of its business or permit any Subsidiary to suspend operations of its business (other than in connection with a dissolution permitted pursuant to Section 7.3(vi) or suspending operations of any portion of the business not necessary after a conversion from renewable diesel to conventional diesel); (iii) engage in any business other than the businesses currently engaged in by Parent and its Subsidiaries, and any business substantially similar or related thereto (except for the conversion of a portion of the Mobile Refinery from renewable diesel to conventional diesel, or, upon the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld, conditioned or delayed), to renewable diesel); (iv) experience a departure of a Responsible Officer, without providing Agent a written notice within 10 days after the occurrence of such departure; (v) without Agent’s and Required Lenders’ prior written consent, change the date on which its fiscal year ends; (vi) permit any Loan Party to liquidate or dissolve (other than the liquidation or dissolution of Subsidiaries that (x) are not Loan Parties or (y) whose assets are transferred to Borrower or another Loan Party at the time of such liquidation or dissolution); or (vii) other than in connection with a Permitted Disposition, consummate or permit any Subsidiary to consummate any transaction or series of related transactions (provided such transactions are otherwise permitted under this Agreement) in which the stockholders of Parent or such Subsidiary, as applicable, who were not stockholders immediately prior to the first such transaction own more than fifty percent (50%) of the voting Equity Interests of a Loan Party, including the Borrower, or a Subsidiary, as applicable, immediately after giving effect to such transaction or related series of such transactions.

7.4. Liens. Create, incur, assume or suffer to exist any Lien with respect to any of Collateral, except for Permitted Liens. For the avoidance of doubt, all Liens granted by the Loan Parties in the Collateral to the DIP Secured Parties, Hedge Provider and the Intermediator shall be subject to the Lien priorities set forth in Annex 2.

7.5. Indebtedness, Disqualified Equity Interests and Preferred Stock. Create, incur, assume or suffer to exist any Indebtedness other than Permitted Indebtedness without Required Lenders’ prior written consent or issue any share of Disqualified Equity Interests or Preferred Stock.

7.6. Investments. Directly or indirectly make any Investment other than a Permitted Investment without Required Lenders’ prior written consent. In no event, shall Investments be made in Subsidiaries that are not Loan Parties.

7.7. [Reserved].

7.8. Transactions with Affiliates. Directly or indirectly enter into or permit to exist any transaction with any Affiliate of any Loan Party after the Closing Date except (i) transactions between or among Loan Parties, (ii) other transactions as permitted by the Approved Bankruptcy Court Orders and the Approved Budget and (iii) agreements between the Loan Parties and their respective officers and directors in existence prior to the Closing Date or as amended in accordance with the RSA.

7.9. Stock Certificates. For any Loan Party (other than Parent) for which such Loan Party’s parent’s ownership interest is not evidenced by a certificate, allow such Subsidiary Guarantor to certificate such ownership interest without Agent’s (at direction for the Required Lenders) and Required Lenders’ prior written consent.

7.10. Compliance. Become an “investment company” under the Investment Company Act of 1940 or undertake as one of its important activities extending credit to purchase or carry margin stock, or use the proceeds of the Term Loan for that purpose; except as could not be reasonably expected to have a Material Adverse Effect, fail to meet the minimum funding requirements of ERISA with respect to any Pension Plan or permit an ERISA Event or a prohibited transaction (as such term is defined in Section 406 of ERISA and Section 4975 of the Internal Revenue Code) with respect to a Plan to occur; fail to comply with wage and hour laws under the Fair Labor Standards Act or any analogous state wage and hour law with respect to their employees, if such failure to comply would reasonably be expected to have a Material Adverse Effect.

7.11. Deposit Accounts. Subject to Section 6.19, maintain any Deposit Accounts or Securities Accounts except accounts respecting which Agent has obtained a Control Agreement, provided however, that the Loan Parties may maintain Excluded Accounts without them being subject to a Control Agreement; provided that to the extent such protections are granted in any DIP Order, no new Control Agreements will be required.

7.12. [Reserved].

7.13. Sanctions and AML Restrictions on Use of Proceeds. Directly or indirectly use any part of the Term Loan to (a) make any payments to a Sanctions Target, to fund any investments, loans or contributions in, or otherwise make such proceeds available to, a Sanctions Target, to fund any operations, activities or business of a Sanctions Target, or in any other manner that would result in a violation of Sanctions applicable to any party hereto or (b) 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 material violation of any Anti-Corruption Laws or Anti-Money Laundering Laws.

7.14. Accounting Changes; Change in Nature of Business; Foreign Operations. Change the Parent’s or any Loan Party’s accounting and financial reporting practices as in effect as of the Closing Date in any material respect, except for any changes made in accordance with GAAP, without the prior written consent of the Agent (at the direction of the Required Lenders) or engage in any material line of business other than a Similar Business or hold a material portion of its Property that would otherwise be required pursuant to the Loan Documents to become subject to a fully perfected Lien in favor of the Agent in a foreign jurisdiction.

7.15. Burdensome Agreements. Enter into any Contractual Obligation after the Closing Date that (x) limits the ability of the Borrower or any Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property to secure the Obligations hereunder or (y) limits the ability of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor; provided, however, that the foregoing clause shall not apply to Contractual Obligations which:

(a) [reserved];

(b) are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary of the Parent, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Subsidiary of the Borrower;

(c) arise in connection with covenants in documents creating Permitted Liens prohibiting further Liens on the properties encumbered thereby;

(d) arise in connection the Intermediation Facility Documents or any Permitted Indebtedness (including negative pledges and restriction on Liens in favor of any holder of Permitted Indebtedness, Permitted Investments or Restricted Payments permitted by this Agreement);

(e) arise in connection with any Permitted Disposition solely with respect to the assets that are the subject of such Disposition;

(f) are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;

(g) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Parent or any Subsidiary;

(h) are customary limitations (including financial maintenance covenants) existing under or by reason of leases entered into in the ordinary course of business;

(i) are restrictions on cash or other deposits imposed under contracts entered into in the ordinary course of business;

(j) are customary provisions restricting assignment of any agreements;

(k) arise in connection with any Contractual Obligations that relate to Excluded Property;

(l) arise in connection with Applicable Law, rule, regulation, order, approval, license, permit or similar restriction (whether or not existing on the Closing Date) or are mandated by any Governmental Authority;

(m) customary provisions in Hedging Agreements;

(n) customary provisions in joint venture agreements and other similar agreements to the extent permitted hereunder; or

(o) are set forth in any agreement evidencing an amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations referred to in clauses (a) through (n) above; provided, that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, not materially less favorable to the Loan Party with respect to such limitations than those applicable pursuant to such Contractual Obligations prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

7.16. Restricted Payments; Prepayments of Certain Indebtedness. (a) Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Restricted Payments by one Loan Party to another Loan Party, (ii) as otherwise expressly permitted hereunder and expressly identified in any line item in the Approved Budget or (iii) to Affiliates as permitted by Section 7.8(iii).

(b) Subject to any Approved Bankruptcy Court Order, directly or indirectly, purchase, redeem, refinance, convert, exchange, settle, acquire for value, defease or prepay any principal of, premium, if any, interest or any other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than the Secured Obligations. No Loan Party (nor any Subsidiary thereof) may make any “earn-out” payments or other similar payments. No Loan Party shall make any material payments in respect of Pre-Petition Indebtedness other than to the extent expressly included in a line item in the Approved Budget, permitted by an Approved Bankruptcy Court Order or otherwise agreed to in writing by the Required Lenders.

7.17. Amendments or Waivers of Certain Related Agreements. (a) To the extent materially adverse to the rights of the Lenders, agree to any amendment, restatement, supplement or other modification to, any of its rights under any Related Agreement (other than any Intermediation Facility Documents) after the Closing Date without in each case obtaining the prior written consent of the Required Lenders to such amendment, restatement, supplement or other modification or waiver or (b) (x) except as permitted under an Acceptable Intermediation Order, agree to any amendment, restatement, supplement or other modification to, or waiver of, any of its rights under any Intermediation Facility Documents or (y) to the extent materially adverse to the rights of the Lenders, agree to amend or modify any Intermediation Facility Documents that would have the effect of changing the definition of Independent Amount or any component definition or component calculation thereof.

7.18. Activities of Parent. In respect of Parent, Parent shall not (a) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever, other than guarantees and obligations permitted under the Loan Documents and any Intermediation Facility Documents; (b) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by it other than the Liens created under the Collateral Documents to which it is a party or Liens permitted pursuant to Section 7.4; (c) engage in any business or activity or own any assets other than (i) directly or indirectly holding 100% of the Equity Interests of each of the Loan Parties and directly or indirectly holding Equity Interests in the other non-Loan Party Subsidiaries as of the Closing Date; (ii) performing its obligations and activities incidental thereto under the Loan Documents, and to the extent not inconsistent therewith, the Related Agreements; (iii) making Restricted Payments and Investments to the extent permitted by this Agreement; (iv) any other agreement or activity within the ordinary course of its business or (v) participate in the Bankruptcy Cases; (d) consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person other than as permitted under this Agreement; (e) sell or otherwise dispose of any Equity Interests of any of its Subsidiaries other than as permitted under this Agreement; (f) create or acquire any Subsidiary or make or own any Investment in any Person other than the Subsidiaries on the Closing Date other than to the extent permitted by this Agreement; or (g) fail to hold itself out to the public as a legal entity separate and distinct from all other Persons.

7.19. Financial Covenant. So long as the Intermediation Facility is in effect, at any time, permit Consolidated Liquidity to be less than $15,000,000 for any period of more than three (3) consecutive Business Days.

8. Events of Default.

Notwithstanding the provisions of Section 362 of the Bankruptcy Code, and without notice, application or motion, hearing before, or order of the Bankruptcy Court or any notice to any Loan Party, any one or more of the following events shall constitute an “Event of Default” under this Agreement:

8.1. Payment Default. If Borrower or any other Loan Party fails to (a) make any payment of principal or interest on the Term Loan when due, or (b) pay any other Obligations required under the terms of the Loan Document within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day cure period shall not apply to payments due on the Maturity Date).

8.2. Certain Covenant Defaults. If Borrower or any other Loan Party or Subsidiary thereof fails to perform any obligation under Section 6.3, Section 6.4, Section 6.5, Section 6.8, Section 6.10(a), Section 6.11, Section 6.12, Section 6.19, Section 6.21, Section 6.22, Section 6.23, Section 6.24 and Section 6.25, or violates any of the covenants contained in Article 7 of this Agreement.

8.3. Other Covenant Defaults. If Borrower or any other Loan Party or Subsidiary thereof fails or neglects to perform or observe any other material term, provision, condition, or covenant, or if any representation or warranty made by (or on behalf of) Borrower or any other Loan Party or any Subsidiary thereof was untrue or incorrect in any material respect when made, in each case contained in this Agreement, in any of the Loan Documents, and as to any default under such other term, provision, condition, covenant, representation or warranty that can be cured, has failed to cure such default within the earlier of thirty (30) days after Borrower receives notice thereof or any Responsible Officer of Borrower becomes aware thereof.

8.4. Attachment. If any material portion of the Collateral is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or Person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) Business Days, or if any Loan Party is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien or encumbrance upon any material portion of any Loan Party’s assets, or if a notice of lien, levy, or assessment is filed of record with respect to any Loan Party’s assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within ten (10) days after such Loan Party receives notice thereof; provided that none of the foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contesting by the Loan Parties.

8.5. Other Agreements. Except for defaults occasioned by the filing of the Bankruptcy Cases or entry into this Agreement or resulting from obligations with respect to which the Bankruptcy Code prohibits any Loan Party or Subsidiary from complying or permits any Loan Party or Subsidiary not to comply, an “event of default”, termination event or similar or equivalent event has occurred and is continuing under any agreement governing Indebtedness in excess of $3,000,000 to which Parent or a Subsidiary, including Borrower, is a party with a third-party or parties (other than any Intermediation Facility Documents).

8.6. Judgments. If there is entry of a judgment or judgments against any Loan Party, including Borrower, (other than a judgment or judgements covered by independent third- party insurance as to which liability has been acknowledged by such insurance carrier) for the payment of money in an amount, individually or in the aggregate, of at least the Threshold Amount, and the same are not, within thirty (30) days after the entry thereof, vacated or stayed or bonded pending appeal.

8.7. Misrepresentations. If any material misrepresentation or material misstatement exists when made or when deemed made in any written warranty, representation, statement, certificate, or report made to Agent or any Lender by (or on behalf of) any Loan Party or any Responsible Officer of any Loan Party.

8.8. Enforceability. If any Loan Document shall in any material respect cease to be, or any Loan Party asserts that any Loan Document is not a legal, valid and binding obligation of the Loan Party that is a party thereto, enforceable in accordance with its terms except for the termination of such Loan Document pursuant to its terms.

8.9. Bankruptcy Event of Default. The occurrence of any Bankruptcy Event of Default.

8.10. RSA. The RSA is terminated for any reason, or modified, amended or waived in any manner materially adverse to the Secured Parties without the prior consent of the Required Lenders.

8.11. [Reserved].

8.12. Cross Default. If an “event of default”, termination event or similar or equivalent event has occurred and is continuing under any Intermediation Facility Documents, including the Intermediation Order.

8.13. ERISA. The occurrence of any of the following events that would reasonably be expected to result in a Material Adverse Effect: (i) an ERISA Event, or (ii) a Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment under Section 4219 of ERISA with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan.

8.14. Change of Control. There occurs any Change of Control unless such Change of Control occurs due to a transaction (i) in accordance with the RSA or an Approved Bankruptcy Court Order, or (ii) otherwise with the consent of the Required Lenders.

8.15. Collateral Documents. Any Collateral Document after delivery thereof pursuant to the terms of the Loan Documents or any of the DIP Orders shall for any reason cease to create a valid and perfected Lien having the status and priority provided in the DIP Orders on any material portion of the Collateral purported to be covered thereby, or any Loan Party shall assert the invalidity of such Liens.

8.16. [Reserved].

8.17. Loss of Material Contracts. Except in connection with the Bankruptcy Cases, the loss, termination or modification of, or default under, any Material Contract (unless otherwise replaced on terms not adverse to the interests of the Loan Parties or the Lenders), if such loss, termination, modification or default could reasonably be expected to result in a Material Adverse Effect.

9. Agent and Lenders’ Rights and Remedies.

9.1. Rights and Remedies. Subject to the DIP Orders, upon the occurrence and during the continuance of any Event of Default, notwithstanding the provisions of Section 362 of the Bankruptcy Code or any other Debtor Relief Law, Agent shall have the rights, options, duties and remedies of a secured party as permitted by, and in accordance with, Applicable Law and, in addition to and without limitation of the foregoing, Agent may (and not any Lender without Agent’s written consent), at its election, without notice of election and without demand, and at the direction of the Required Lenders shall, do any one or more of the following, all of which are authorized by the Loan Parties:

(a) upon the occurrence of any Event of Default, then, and in every such event, and at any time thereafter during the continuance of such event, the Agent may (and at the direction of the Required Lenders, shall), by notice to the Borrower, declare the Term Loans and other Secured Obligations then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Term Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Secured Obligations, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.

(b) by written notice to Borrower, declare the Term Loan Commitments terminated, whereupon the Term Loan Commitments shall be immediately terminated together with any obligation of any Lender to make Term Loans and terminate, reduce or restrict the right or ability of the Loan Parties to use any cash collateral (other than, during the Enforcement Notice Period, cash collateral for payroll and other expenses that the Agent (at the direction of the Required Lenders) approves as critical to keep the business of the Loan Parties operating in accordance with the Approved Budget);

(c) subject to the Enforcement Notice Period, direct any or all of the Loan Parties to sell or otherwise dispose of any or all of the Collateral on terms and conditions acceptable to the Agent pursuant to Section 363, Section 365 and other applicable provisions of the Bankruptcy Code (and, without limiting the foregoing, direct any Loan Party to assume and assign any lease or executory contract included in the Collateral to the Agent’s designees in accordance with and subject to Section 365 of the Bankruptcy Code);

(d) declare that the application of the Carve Out has occurred by causing the occurrence of the Trigger Date (as defined in the applicable DIP Order); and

(e) subject to the Enforcement Notice Period (if applicable), exercise all other rights and remedies available to Agent or the Lenders under the Loan Documents, the DIP Orders, under applicable law, or in equity, including making such payments and taking such actions as Agent (at the direction of the Required Lenders) considers necessary or reasonable to protect its security interest in the Collateral. The Loan Parties agree to assemble the Collateral if Agent so requires, and to make the Collateral available to Agent as Agent may designate. Each Loan Party authorizes Agent to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any Lien which in Agent’s determination appears to be prior or superior to its security interest and to pay all expenses incurred in connection therewith; with respect to any of Loan Parties’ owned premises, each Loan Party hereby grants Agent, subject to any rights of third parties, a license to enter into possession of such premises and to occupy the same, without charge in order to exercise any of Agent’s rights or remedies provided herein, at law, in equity, or otherwise;

(f) Set off and apply to the Secured Obligations any and all Indebtedness at any time owing to or for the credit or the account of Borrower;

(g) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral;

(h) Deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreement providing control of any Collateral:

(i) Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including the Loan Parties’ premises) as Agent determines are commercially reasonable;

(j) Agent may credit bid and purchase at any public sale; and

(k) For the purpose of enabling the Agent to exercise rights and remedies under this Section 9.1 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as the Agent shall be lawfully entitled to exercise such rights and remedies, the Loan Parties hereby grant to the Agent, (i) an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to such Loan Party), including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Loan Party and access to all media in which any of the licensed items may be recorded or stored and to all software and programs used for the compilation or printout thereof.

Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower.

9.2. Waiver by the Loan Parties. Upon the occurrence and during the continuance of an Event of Default, to the extent permitted by law, each Loan Party covenants that it will not at any time insist upon or plead, or in any manner whatever claim or take any benefit or advantage of, any stay or extension of law now or at any time hereafter in force, nor claim, take nor insist upon any benefit or advantage of or from any law now or hereafter in force providing for the valuation or appraisement of the Collateral or any part thereof prior to any sale or sales thereof to be made pursuant to any provision herein contained, or to the decree, judgment or order of any court of competent jurisdiction; nor, after such sale or sales, claim or exercise any right under any statute now or hereafter made or enacted by any state or otherwise to redeem the Property so sold or any part thereof, and, to the full extent legally permitted, except as to rights expressly provided herein, hereby expressly waives for itself and on behalf of each and every Person, except decree or judgment creditors of such Loan Party acquiring any interest in or title to the Collateral or any part thereof subsequent to the date of this Agreement, all benefit and advantage of any such law or laws, and covenants that it will not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any power herein granted and delegated to Agent, but will suffer and permit the execution of every such power as though no such power, law or laws had been made or enacted.

9.3. Effect of Sale. Subject to Applicable Law, any sale, whether under any power of sale hereby given under this Article 9 or by virtue of judicial proceedings, shall operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of each Loan Party in and to the Property sold, and shall be a perpetual bar, both at law and in equity, against such Loan Party, its successors and assigns, and against any and all Persons claiming the Property sold or any part thereof under, by or through such Loan Party, its successors or assigns. The timing of any foreclosure sale of Collateral shall be deemed reasonable provided that Agent gives at least ten (10) days advance notice of the initial date set for such foreclosure sale.

9.4. Power of Attorney in Respect of the Collateral. The Loan Parties do hereby irrevocably appoint Agent (which appointment is coupled with an interest) effective only on the occurrence and during the continuance of an Event of Default, the true and lawful attorney in fact of such Loan Party with full power of substitution, for it and in its name: (a) to ask, demand, collect, receive, receipt for, sue for, compound and give acquittance for any and all rents, issues, profits, avails, distributions, income, payment draws and other sums in which a security interest is granted under Article 4 with full power to settle, adjust or compromise any claim thereunder as fully as if Agent were such Loan Party itself, (b) to receive payment of and to endorse the name of such Loan Party to any items of Collateral (including checks, drafts and other orders for the payment of money) that come into Agent’s possession or under Agent’s control, (c) to make all demands, consents and waivers, or take any other action with respect to, the Collateral, (d) in Agent’s discretion (at direction for the Required Lenders) to file any claim or take any other action or proceedings, either in its own name or in the name of such Loan Party or otherwise, which Agent (at direction for the Required Lenders) may reasonably deem necessary or appropriate to protect and preserve the right, title and interest of Agent in and to the Collateral, (e) to sign an amendment to any Loan Document if such Loan Party is obligated, but fails, to do so, (f) in the case of any Intellectual Property owned by or licensed to any Loan Party, execute, deliver and have recorded any document that the Agent may request to evidence, effect, publicize or record the Agent’s security interest in such Intellectual Property and the goodwill and general intangibles of such Loan Party relating thereto or represented thereby, (g) assign any Intellectual Property owned by any Loan Party or any licenses of any Loan Party throughout the world on such terms and conditions and in such manner as the Agent shall in its sole discretion determine, including the execution and filing of any document necessary to effectuate or record such assignment or (h) to otherwise act with respect thereto as though Agent were the outright owner of the Collateral.

9.5. Lender Expenses. If Borrower fails to pay any amounts or furnish any required proof of payment due to third persons or entities as required under the terms of this Agreement, then Agent and/or any Lender may do (but shall not be required to do) any or all of the following: (a) make payment of the same or any part thereof; (b) set up such reserves as Agent or such Lender, as applicable, deems necessary to protect Agent and Lender from the exposure created by such failure; or (c) obtain and maintain insurance policies of the type discussed in Section 6.8 of this Agreement, and take any action with respect to such policies as Agent or such Lender, as applicable, deems prudent. Any amounts paid or deposited by Agent or such Lender, as applicable, shall constitute Lender Expenses, shall be immediately due and payable, and shall bear interest at the then applicable rate herein above provided, and shall be secured by the Collateral. Any payments made by Agent or such Lender shall not constitute an agreement by Agent or any Lender to make similar payments in the future or a waiver by Agent of any Event of Default under this Agreement.

9.6. Remedies Cumulative. Agent’s and each Lender’s rights and remedies under this Agreement, the other Loan Documents, and all other agreements shall be cumulative. Agent and Lenders shall have all other rights and remedies not inconsistent herewith as provided under the UCC, by law, or in equity, provided however, that Lender must first obtain Agent’s written consent before exercising any such rights and remedies. No exercise by Agent or Lenders (to the extent authorized by Agent) of one right or remedy shall be deemed an election, and no waiver by Agent, for itself or on behalf of Lenders, of any Event of Default on any Loan Party’s part shall be deemed a continuing waiver. No delay by Agent or Lenders shall constitute a waiver, election, or acquiescence by such party.

9.7. Reinstatement of Rights. If Agent (or a Lender with Agent’s written consent) shall have proceeded to enforce any right under this Agreement or any other Loan Document by foreclosure, sale, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely, then and in every such case (unless otherwise ordered by a court of competent jurisdiction), Agent and Lenders shall be restored to their former position and rights hereunder with respect to the Property subject to the security interest created under this Agreement.

9.8. Share Collateral. The Loan Parties recognize that Agent may be unable to effect a public sale of any or all the Collateral comprising shares of Parent’s Subsidiaries that constitute Collateral (the “Shares”), by reason of certain prohibitions contained in federal securities laws and any other applicable securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof or other applicable restrictions. The Loan Parties acknowledge and agree that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agree that any such private sale shall be deemed to have been made in a commercially reasonable manner. Agent or any other holder of the Shares shall be under no obligation to delay a sale of any of the Shares for the period of time necessary to permit the issuer thereof to register such securities for public sale under federal securities laws or under applicable state or foreign securities laws. Notwithstanding the foregoing, Agent shall use commercially reasonable efforts with respect to such sale and the price and terms of such sale.

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9.9. Application of Proceeds. Notwithstanding any contrary provision set forth herein or in any other Loan Document, proceeds received by the Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Agent of its remedies shall be applied, subject to the DIP Orders, together with any other sums then held by the Agent pursuant to this Agreement or any other Loan Document, promptly by the Agent, as follows:

(i) First, to the payment of all reasonable and documented costs and expenses, fees, commissions and Taxes of such sale, collection or other realization including compensation to the Agent and its agents and counsel and all expenses, liabilities and advances made or incurred by the Agent in connection therewith and all amounts for which the Agent is entitled to indemnification pursuant to the provisions of any Loan Document, together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;

(ii) Second, to the payment of all other reasonable and documented Lender Expenses related to such sale, collection or other realization to the other Secured Parties and their agents and counsel and all costs incurred by the other Secured Parties in connection therewith, together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;

(iii) Third, to the payment in full of the interest then due and payable in respect of the New Money Term Loans (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of such New Money Term Loans owed to them on the date of any such distribution);

(iv) Fourth, to the payment in full of principal of the New Money Term Loans until paid in full, (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of such New Money Term Loans owed to them on the date of any such distribution);

(v) Fifth, to the payment in full of the interest then due and payable in respect of the Roll-Up Loans (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of such Roll-Up Loans owed to them on the date of any such distribution);

(vi) Sixth, to the payment in full of principal of the Roll-Up Loans until paid in full, (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of such Roll-Up Loans owed to them on the date of any such distribution);

(vii) Seventh, to the payment in full of the other Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of such other Secured Obligations owed to them on the date of any such distribution, including all Bank Product Obligations and all Additional Secured Obligations); and

(viii) Eighth, the balance, if any, after all Secured Obligations have been paid in full, to the person lawfully entitled thereto (including the applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction may direct.

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In carrying out the foregoing, (i) amounts received shall be applied to each category in the numerical order provided until exhausted prior to the application to the immediately succeeding category and (ii) each of the Lenders or other Persons entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses third, fourth and fifth above. In the event that any such proceeds are insufficient to pay in full the items described in the preceding sentences of this Section 9.9, the Loan Parties shall remain liable, jointly and severally, for any deficiency.

9.10. Lift of Stay; Stay of Proceedings. Subject to the applicable DIP Order, the Automatic Stay shall be modified and vacated to permit the Agent and Lenders to exercise all rights and remedies under this Agreement, the other Loan Documents or applicable law, without, except as provided in the DIP Order, motion or application to, hearing before, or order from, the Bankruptcy Court.

10. Waivers; Indemnification.

10.1. Demand; Protest. Except as otherwise provided in this Agreement, Borrower waives any demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, notice of any default, and any other notices relating to the Secured Obligations or Agent’s and/or Lenders’ rights and remedies hereunder.

10.2. Liability for Collateral. So long as Agent complies with its obligations, if any, under Section 9-207 of the UCC, neither Agent nor any Lender in any way or manner shall be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage thereto occurring or arising in any manner or fashion from any cause; (c) any diminution in the value thereof; or (d) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other Person whomsoever. All risk of loss, damage or destruction of the Collateral shall be borne by Borrower.

10.3. Indemnification; Lender Expenses.

(a) General Indemnity. Each Loan Party shall, jointly and severally, pay, indemnify, and hold Agent and each Lender, and each of their Related Parties (each, an “Indemnified Person”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, claims, expenses or disbursements (including without limitations reasonable attorney’s fees and settlement costs) of any kind or nature whatsoever arising out of, with respect to, or as a result of (i) the execution, delivery, enforcement, performance and administration of this Agreement and any other Loan Documents or the transactions contemplated hereby and thereby, (ii) any actual or alleged presence or Release of Hazardous Materials on or from any Real Property currently owned or operated by any Loan Party or any of its Subsidiaries, or any Environmental Claim or Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, and (iii) with respect to any investigation, litigation or proceeding (including any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, dissolution or relief of debtors or any appellate proceeding) related to this Agreement or the Term Loan or the use or proposed use of the proceeds thereof, whether or not any Indemnified Person is a party thereto, including the Bankruptcy Cases (all the foregoing, collectively, the “Indemnified Liabilities”); provided, that Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from solely the gross negligence or willful misconduct of such Indemnified Person as determined by a court of competent jurisdiction in a final, non-appealable judgment. Paragraph (a) of this Section shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

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(b) Defense. At the election of the Required Lenders, each Loan Party shall, jointly and severally, defend such Indemnified Persons in connection with the Indemnified Liabilities, at the sole cost and expense of Borrower. All indemnity amounts owing under this Section 10.3 shall be paid within thirty (30) days after written demand.

(c) Lender Expenses. Borrower agrees to promptly pay (a) all Lender Expenses when due, (b) all reasonable out of pocket expenses incurred by the Agent and the Lenders in connection with the syndication of the Term Loans, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan 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 (c) all out of pocket expenses incurred by the Agent or any Lender in connection with the enforcement or protection of its rights (including any expenses with respect to any appraisers, investment bankers, advisors or consultants and not in duplication of Lender Expenses in clause (a) above) (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Term Loans made, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Term Loans. Without limiting the foregoing, if any Loan Party is required to take any action under any Loan Document, such action shall be taken at the expense of such Loan Party.

(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, no party hereto shall assert, and each party hereto hereby waives, any claim against any Indemnified Person or any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby or any Term Loan or the use of the proceeds thereof. No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

(e) Survival. Each party’s obligations under this Section 10.3 shall survive the termination of the Loan Documents and payment of the obligations hereunder or the earlier resignation or removal of the Agent.

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11. Notices.

Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and (except for financial statements and other informational documents which shall be sent by e-mail) shall be personally delivered or sent by certified mail, postage prepaid, return receipt requested, by e-mail or by prepaid facsimile to Borrower, to Agent or to Lender, as the case may be, at their respective addresses set forth below:

	If to Borrower:	Vertex Refining Alabama LLC 1331 Gemini, #250 Houston, Texas 77058 Attn: Ben Cowart, President E-mail: benc@vertexenergy.com

	With a copy to (which shall not constitute notice):	Bracewell LLP 31 W. 52nd Street, Suite 1900 New York, NY 10019 Attn: Brian Rogers E-mail: brian.rogers@bracewell.com

	With a copy to (which shall not constitute notice):	Kirkland & Ellis LLP 609 Main Street Houston, TX 77002 Attention: Mary Kogut, P.C. Email: mary.kogut@kirkland.com

	If to Agent:	Cantor Fitzgerald Securities 110 East 59^th Street New York, NY 10022 Attn: R. Yeh (Vertex) E-mail: Ryan.Yeh@cantor.com

	With a copy to:	Cantor Fitzgerald Securities 900 West Trade, Suite 725 Charlotte, NC 28202 Attn: Bobbie Young (Vertex) E-mail: BankLoansAgency@cantor.com

	With a copy (which shall not constitute notice) to:	Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103 Attn: N. Plotkin (Vertex) E-mail: nplotkin@goodwin.com

	If to the Whitebox Lenders:	Whitebox Advisors LLC 3033 Excelsior Boulevard, Suite 500 Minneapolis, MN 55416 Attn: Andrew Thau and Parker Tornell E-mail: AThau@whiteboxadvisors.com, ptornell@whiteboxadvisors.com, WHB_LoanDocsHedgeFund_Dist@Whiteboxadvisors.com

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	With a copy to (which shall not constitute notice):	Sidley Austin LLP 787 7th Avenue New York, NY 10019 Attn: Leslie Plaskon & Michele Nudelman E-mail: lplaskon@sidley.com & mnudelman@sidley.com

	If to the Highbridge Lenders:
		Highbridge Capital Management, LLC 277 Park Avenue, 23rd Floor New York, NY 10172 Attn: Damon Meyer & Steve Ardovini E-mail: damon.meyer@highbridge.com & mo-us@highbridge.com

	With a copy to (which shall not constitute notice):	Sidley Austin LLP 787 7th Avenue New York, NY 10019 Attn: Leslie Plaskon & Michele Nudelman E-mail: lplaskon@sidley.com & mnudelman@sidley.com

	If to the BlackRock Lenders:	c/o BlackRock Financial Management, Inc. 50 Hudson Yards New York, NY 10001 Attn: Zachary Viders and William Im E-mail: zachary.viders@blackrock.com and William.im@blackrock.com

	If to CrowdOut Credit Opportunities Fund LLC or CrowdOut Capital LLC
		812 San Antonio Street Suite 105 Austin, TX 78701 Attn: Ken Chuang, Alexander Schoenbaum and Brian Gilmore Email: kchuang@corwdoutcapital.com, alexander@crowdoutcapital.com and brian@crowdoutcapital.com

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	With a copy to (which shall not constitute notice):	Sidley Austin LLP 787 7th Avenue New York, NY 10019 Attn: Leslie Plaskon & Michele Nudelman E-mail: lplaskon@sidley.com & mnudelman@sidley.com

	With a copy to (which shall not constitute notice):	c/o BlackRock, Inc. Office of the General Counsel 50 Hudson Yards New York, NY 10001 Attention: Lucy Liu E-mail: LegalTransactions@blackrock.com

	If to the JS Lender:	On file with the Borrower and Agent.

	With a copy to (which shall not constitute notice):	Latham & Watkins LLP 811 Main Street, Suite 3700 Attn: Michael Chambers E-mail: Michael.Chambers@lw.com

	If to any other Lender:	At such address provided in the respective Assignment Agreement

The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.

12. Agent Provisions.

12.1. Appointment and Authorization.

(a) Each Lender hereby irrevocably appoints Agent to act on its behalf as the administrative agent and collateral agent under the Loan Documents, and authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms of any of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article 12 are solely for the benefit of the Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. Should any Lender obtain possession or control of any such Collateral, such Lender shall be deemed to hold such Collateral for the benefit of Agent and each other Lender, shall notify Agent thereof, and, promptly upon Agent’s request therefor shall deliver possession or control of such Collateral to Agent.

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(b) Each Lender hereby authorizes Agent, on behalf of and for the benefit of Lender, to enter into any of the Loan Documents as secured party, and as Agent for and representative of such Lender thereunder, and each Lender agrees to be bound by the terms of each such document; provided that Agent shall not (i) enter into or consent to any material amendment, modification, termination or waiver of any provision contained in any such document or (ii) release any Collateral (except as otherwise expressly permitted or required pursuant to the terms of this Agreement or the applicable Loan Document), in the case of each of clauses (i) and (ii) without the prior consent of Required Lenders (or, if required pursuant to Section 14.4, all Lenders); provided further, however, that, without further written consent or authorization from Lenders (which may, in Agent’s sole discretion be evidence by direction by e-mail from the Required Lenders or their counsel (who as of the Closing Date is Sidley Austin LLP)), Agent may execute any documents or instruments necessary to (a) release any Lien encumbering any item of Collateral that is the subject of a Disposition of assets permitted by this Agreement or to which Required Lenders have otherwise consented, (b) release any party from a Guarantor Joinder Agreement if all of the Equity Interests of such party are transferred to any Person (other than an Affiliate of a Loan Party) pursuant to a Disposition permitted hereunder or to which Required Lenders have otherwise consented, (c) subject to Section 14.4, subordinate the Liens of Agent, on behalf of Lenders, to any other Permitted Lien as certified by a Responsible Officer of the Borrower or (d) release all Liens in accordance with Section 12.12. Whether or not expressly stated therein, the rights, privileges and immunities of the Agent set forth herein shall be incorporated by reference, whether or not expressly stated in such Loan Document. Anything contained in any of the Loan Documents to the contrary notwithstanding, Borrower, Agent and each Lender hereby agree that (1) no Lender shall have any right individually to realize upon any of the Collateral under or otherwise enforce any Loan Document, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by Agent for the benefit of Lenders and Agent in accordance with the terms thereof, and (2) in the event of a foreclosure by either on any of the Collateral pursuant to a public or private sale, either Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Agent, as agent for and representative of Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders and Agent shall otherwise agree in writing) shall be entitled, 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 public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Agent at such sale. Without limiting the generality of the foregoing, Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of Lenders with respect thereto, as contemplated by and in accordance with the provisions of the Loan Documents.

(c) Upon receipt of any notice, agreement or other document required to be delivered to Agent hereunder, Agent shall immediately deliver such notice, agreement or other document to the Lenders.

12.2. Agent in Individual Capacity; Lender as Agent. The Person serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Agent and the term “Lender” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each such Person serving as Agent hereunder in its individual capacity. The exculpatory provisions contained in this Article 12 shall not relieve a Person acting as Agent from its obligations as a Lender to the extent that such Agent is also a Lender.

12.3. Exculpatory Provisions. Agent shall have no duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, Agent shall not:

(a) be subject to any fiduciary or other implied duties, regardless of whether any Default or any Event of Default has occurred and is continuing;

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(b) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that Agent is required to exercise as directed in writing by the Required Lenders, provided that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or Applicable Law; and

(c) except as expressly set forth in the Loan Documents, have any duty to disclose, and Agent shall not be liable for the failure to disclose, any information relating to Parent, the Borrower or any of its Affiliates that is communicated to or obtained by any Person serving as Agent or any of its Affiliates in any capacity.

Agent shall (i) provide Lenders a copy of material written information its receives from Borrower promptly on receipt, it being understood that Agent anticipates that there will be a significant amount of email correspondence, much of which will not be material and therefore will not be relayed to Lenders, and (ii) endeavor to keep Lenders generally apprised of important non-written information Borrower communicates to Agent.

12.4. Exculpation; Limitation of Liability.

(a) Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders or as Agent shall believe in good faith shall be necessary, under the circumstances or (ii) in the absence of its own gross negligence or willful misconduct as determined by a final, non-appealable decision by a court of competent jurisdiction.

(b) Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with the Loan Documents, (ii) the contents of any certificate, report or other document delivered under any of the Loan Documents, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any of the Loan Documents, (iv) the validity, enforceability, effectiveness or genuineness of any of the Loan Documents or any other agreement, instrument or document, (v) shall not be deemed to have made any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall Agent be responsible or liable to Lenders for any failure to monitor or maintain any portion of the Collateral or (vi) the satisfaction of any condition set forth in Article 3 or elsewhere in the Loan Documents, other than to confirm receipt of items expressly required to be delivered to Agent.

(c) Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of emails, cables, telecopies and telexes, to have been sent by the proper party or parties. Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Agent and conforming to the requirements of any of the Loan Documents. Agent may consult with counsel (which may be counsel for the Loan Parties), and any opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken or suffered by Agent under any of the Loan Documents in accordance therewith. Agent shall have the right at any time to seek instructions concerning the administration of the Collateral from any court of competent jurisdiction. Agent shall not be under any obligation to exercise any of the rights or powers granted to Agent by the Loan Documents at the request or direction of any Lender unless Agent shall have been provided by such Lender with adequate security and indemnity against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction, and then, only to the extent that such Lender has the right under the applicable Loan Document to direct Agent to act.

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(d) The Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into monitor or enforce, compliance with the provisions relating to Disqualified Institution. Without limiting the generality of the foregoing, the Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Term Loans, or disclosure of confidential information, to, or the restriction on any exercise of rights or remedies of, any Disqualified Institution.

12.5. Credit Decisions. Each Lender acknowledges that neither Agent nor any other Lender has made any representation or warranty to it, and that no act by any Agent or other Lender hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of Parent, Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent or such Lender to any other Lender as to any matter, including whether there has been disclosure of material information in their possession. Each Lender acknowledges that it has, independently and without reliance upon Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Agent or any other Lender 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 the Loan Documents, any related agreement or any document furnished thereunder.

12.6. Indemnification. To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under Section 10.3 to be paid by it to the Agent (or any sub- agent thereof), each Lender severally agrees to pay to the Agent (or any such sub-agent), such Lender’s Pro Rata Percentage according to their respective Term Loan Commitment (provided, that if at such time all Term Loan Commitments have been terminated, then such Lender’s funded Term Loans, and if the Obligations paid in full, then each Lender’s Pro Rata Percentage shall be determined as of the day immediately preceding the date that the Obligations were paid in full) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent) in its capacity as such; provided further that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The obligations of the Lenders under this Section 12.6 shall survive in accordance with Section 10.3(e) and are subject to the provisions of Section 2.7(d).

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12.7. Successor Agents. Agent may resign upon thirty (30) days’ notice to the Lenders and Borrower. In addition, the Required Lenders may remove the Agent at any time upon at least five (5) Business Days’ notice to the Borrower and the existing Agent, with or without cause and without the consent of the Borrower (provided, the foregoing shall have no effect on the rights of the Borrower in the immediately succeeding sentence with respect to consent over appointment of a replacement Agent). If Agent shall resign or be removed in its capacity under this Agreement and the other Loan Documents, then the Required Lenders (with the consent of the Borrower so long as no Event of Default has occurred and is continuing) shall appoint a successor agent, whereupon such successor agent shall succeed to the rights, powers and duties of Agent in its capacity, and the term “Agent” shall mean such successor agent effective upon such appointment and approval, and the former Agent’s rights, powers and duties as Agent in its capacity shall be terminated, without any other or further act or deed on the part of such former Agent or any of the parties to this Agreement or any Lender. If no applicable successor agent has accepted appointment as such Agent in its capacity by the date that is thirty (30) days following such retiring Agent’s notice of resignation or within five (5) Business Days following notice to the Borrower and the existing Agent of such Agent’s removal by the Required Lenders, such retiring or removed Agent’s resignation or removal, as applicable, shall nevertheless thereupon become effective and the Required Lenders shall assume and perform all of the duties of such Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any retiring or removed Agent’s resignation or removal as Agent, as applicable, the provisions of this Article 12 and Section 10.3 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under this Agreement and the other Loan Documents.

12.8. Agent Generally. Except as expressly set forth herein, Agent shall not have any duties or responsibilities hereunder in its capacity as such.

12.9. Reliance. Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by it. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders or all Lenders, as it deems appropriate, or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and which may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders or all Lenders, as may be required, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Term Loans. Such instruction may, in the Agent’s sole discretion, be delivered by e-mail from the Required Lenders or their counsel, who, as of the Closing Date is Sidley Austin LLP, and the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under Debtor Relief Laws.

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12.10. Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. Agent will notify each Lender of its receipt of any such notice. Agent shall take such action with respect to such Default or Event of Default as may be requested by Required Lenders (or all such other portion of Lenders as shall be prescribed by this Agreement) in accordance with the terms hereof. Unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interest of Lenders.

12.11. Erroneous Payments.

(a) If the Agent (x) notifies a Lender, Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Agent has determined in its reasonable 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 Agent) received by such Payment Recipient from the 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, Secured Party 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) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 5 Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the Agent pending its return or repayment as contemplated below in this Section 12.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party 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 Agent may, in its sole discretion, specify in writing), return to the 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). A notice of the 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, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party (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 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 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 Agent (or any of its Affiliates), or (z) that such Lender or Secured Party, 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 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 Secured Party shall use commercially reasonable efforts to (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 Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this Section 12.11(b).

For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 12.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.11(a) or on whether or not an Erroneous Payment has been made.

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

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(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent for any reason, after demand therefor in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Term Loans with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Term Loans of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment Agreement (or, to the extent applicable, an agreement incorporating an Assignment Agreement by reference pursuant to a platform such as ClearPar as to which the Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Term Loans to the Borrower or the Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement which shall survive as to such assigning Lender, (D) the Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Term Loans subject to the Erroneous Payment Deficiency Assignment.

(i) Subject to Section 14.1 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Agent may, in its discretion, sell any Term Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Term Loan (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Term Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Term Loans are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.

(e) The parties hereto agree that (x) irrespective of whether the 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 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 Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Secured Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Secured Obligations in respect of Term Loans that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; provided that this Section 12.11 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 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 Agent from the Borrower for the purpose of making such Erroneous Payment.

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(f) 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 Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.

(g) Each party’s obligations, agreements and waivers under this Section 12.11 shall survive the resignation or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Term Loan Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Loan Document.

12.12. Collateral Matters.

(a) The Lenders hereby authorize Agent, at the direction of the Required Lenders, to release any Lien granted to or held by the Agent upon any Collateral (i) upon termination of the Term Loan Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnification obligations that are not then due and payable) at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of upon the sale or other disposition thereof in compliance with Section 7.2, and (iii) if approved, authorized or ratified in writing by the Required Lenders or all Lenders, as applicable. Upon request by the Agent at any time, the Lenders will confirm in writing the Agent’s authority to release particular types or items of Collateral pursuant to this Section.

(b) No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any provision of Articles 4 or 13 of this Agreement. The Lenders understand and agree that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by Agent for the benefit of the Secured Parties in accordance with the terms hereof and thereof.

(c) Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of any Lien thereon, or any certificate prepared by any Loan Party in connection therewith, and the Agent shall not be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral. Each party to this Agreement acknowledges and agrees that the Agent shall have no obligation to file financing statements, amendments to financing statements, or continuation statements, or to perfect or maintain the perfection of any Agent’s Lien on the Collateral, other than, in each case, as instructed by the Required Lenders or their counsel, together with the form of such financing statement to be filed.

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13. Guaranty.

13.1. Guaranty.

Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that the liability of each Guarantor individually with respect to this Guaranty 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 United States Bankruptcy Code or any comparable provisions of any applicable state law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non- perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.

13.2. Rights of Lenders.

Each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured Obligations; (c) apply such security and direct the order or manner of sale thereof as the Agent and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.

13.3. Certain Waivers.

Each Guarantor waives (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Secured Obligations.

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Without limiting the generality of the foregoing, or of any other waiver or other provision set forth in this Agreement, each Loan Party waives all rights and defenses arising out of an election of remedies by Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Agent’s or Lender’s rights of subrogation and reimbursement against such Loan Party by the operation of Section 580(d) of the California Code of Civil Procedure or otherwise. Each Loan Party waives all rights and defenses that such Loan Party may have because the Obligations are secured by Real Property which means, among other things: (i) Agent may collect from any Loan Party without first foreclosing on any Real Property pledged by a Loan Party; (ii) if Agent or any Lender forecloses on any Real Property pledged by any Loan Party, the amount of the Obligations may be reduced only by the price for which that Real Property is sold at the foreclosure sale, even if the Real Property is worth more than the sale price; and (iii) the Agent may collect Obligations from a Loan Party even if Agent, by foreclosing on any such Real Property, has destroyed any right any Loan Party may have to collect from the other Loan Parties. This is an unconditional and irrevocable waiver of any rights and defenses any Loan Party may have because the Obligations are secured by Real Property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the California Civil Code or any similar law of California.

13.4. Obligations Independent.

The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Secured Obligations and the obligations of any other guarantor, and a separate action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.

13.5. Subrogation.

No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Secured Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and the Term Loan Commitments and the Term Loans are terminated. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Secured Obligations, whether matured or unmatured.

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13.6. Termination; Reinstatement.

This Guaranty is a continuing and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Maturity Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this Section 13.6 shall survive termination of this Guaranty.

13.7. Stay of Acceleration.

If acceleration of the time for payment of any of the Secured Obligations is stayed, in connection with any case commenced by or against a Guarantor or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally, immediately upon demand by the Secured Parties.

13.8. Condition of Borrower.

Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to disclose to it any information relating to the business, operations or financial condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).

13.9. Appointment of Borrower.

Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide such authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Agent or a Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Agent or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower on behalf of each of the Loan Parties. The foregoing appointment and agreement shall terminate upon the foreclosure of any pledge in favor of the Secured Parties of the direct or indirect equity interest in the Borrower.

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13.10. Right of Contribution.

The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under Applicable Law.

14. General Provisions.

14.1. Successors and Assigns.

(a) This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties; provided, however, that neither this Agreement nor any rights hereunder may be assigned by Borrower without Agent’s and Required Lenders’ prior written consent, which consent may be granted or withheld in Agent’s and Required Lenders’ sole discretion.

(b) Each Lender shall have the right without the consent of and without written notice to Borrower to sell, assign, transfer, negotiate, or grant participations in all or any part of, or any interest in Lender’s rights and benefits hereunder and under any Loan Document (an “Assignment”) to a Lender or an Affiliate or Approved Fund of a Lender; provided, that any sale or assignment of a Lender’s interest in any Loan Document (to a Person other than a Lender or Affiliate or Approved Fund of a Lender) shall require (a) Agent’s written consent, such consent not to be unreasonably withheld, conditioned or delayed, (b) if no Default or Event of Default exists and is continuing, Borrower’s written consent (such consent not to be unreasonably withheld, conditioned or delayed), (c) Required Lender consent for any Assignment to a Competitor whether or not identified to the Agent, (d) a minimum of $1,000,000 (which minimum may be waived with consent of the Agent (at the direction of the Required Lenders) and, unless an Event of Default exists, the Borrower) and (e) shall not be to a Disqualified Institution. Borrower and Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned to an assignee until Agent shall have received and accepted an effective Assignment Agreement executed, delivered and fully completed by the applicable parties thereto, and, except with respect to an assignee that is a Lender or Affiliate or Approved Fund of a Lender, such other information regarding such assignee as Agent reasonably shall require, to include, without limitation for any assignee which is not already a Lender party hereto, an Administrative Questionnaire, all applicable “know your customer” documentation requested by Agent, and a processing fee of $3,500.

(c) From and after the date on which the conditions described above have been met and recordation in the Register, as set forth in Section 14.1(d) below, (i) such assignee shall be deemed automatically to have become a party hereto and, to the extent of the interests assigned to such assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder, (ii) the assigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, shall be released from its rights and obligations hereunder (other than those that survived termination pursuant to Section 14.8 and, for greater certainty, the assigning Lender shall continue to be entitled to the benefits of Section 2.9 with respect to the facts and circumstances existing prior to the date of such assignment) and (iii) upon the request of such assignee (and as applicable, the assigning Lender), new Notes in the aggregate principal amount of such assignee’s percentage interest in the Term Loan (and, as applicable, Notes in the principal amount of that portion of the Term Loans retained by the assigning Lender) shall be executed and delivered to such assignee (and, if applicable, the assigning Lender) and the assigning Lender shall return to the Borrower any prior Note held by it upon receipt of such new Note (if applicable).

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(d) The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in Charlotte, North Carolina a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the applicable Lenders, and the applicable Term Loan Commitments of, and principal amounts (and stated interest) of the applicable Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the applicable Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(e) Any Lender may at any time, without the consent of, or notice to, Agent or Borrower, sell to one or more Persons participating interests in its Term Loans, commitments or other interests hereunder (any such Person, a “Participant”). No Lender shall sell, transfer, negotiate, or grant participations in all or any part of, or any interest in Lender’s rights and benefits hereunder and under any Loan Document to any Defaulting Lender, any Loan Party or Disqualified Institution. In the event of a sale by a Lender of a participating interest to a Participant, (i) such Lender’s obligations hereunder shall remain unchanged for all purposes, (ii) Borrower and Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder and (iii) all amounts payable by Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.8 and 2.9 (subject to the requirements and limitations therein, including the requirements under Section 2.9(g) (it being understood that the documentation required under Section 2.9(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Section 2.8 or 2.9, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. No Participant shall have any direct or indirect voting rights hereunder except with respect to any event described in Section 14.4 expressly requiring the unanimous vote of all Lenders or, as applicable, all directly and adversely affected lenders. Each Lender that sells a participation 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 Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.

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(f) [Reserved].

(g) Notwithstanding the forgoing or any other provision of this agreement, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank and, in the case of any Lender that is a fund, to its trustee for the benefit of its investors; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

14.2. Representation of the JS Lender. The JS Lender hereby represents and warrants that the JS Lender is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Act.

14.3. Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

14.4. Entire Agreement; Construction; Amendments and Waivers.

(a) This Agreement and each of the other Loan Documents, taken together, constitute and contain the entire agreement between the Loan Parties, Agent and Lenders and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.

(b) This Agreement is the result of negotiations between and has been reviewed by each of the Loan Parties, Agent and Lenders as of the Closing Date and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against any Loan Party, Agent or any Lender as a result of such provision having been written by such party. The Loan Parties, Agent and Lenders agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish the Loan Parties’, Agent’s or Lenders’ actual intentions.

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(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (d)(iii)(a)(x), (d)(iii)(a)(y) and (d)(iii)(b) below, each Bank Product Provider holding Secured Obligations directly and adversely affected thereby at such time) directly and adversely affected thereby, or, in connection with the case of any Restructuring and with respect to clauses (ii), (iv), (v), and (vi) below only, the Supermajority Lenders, shall do any of the following:

(i) increase or extend the Term Loan Commitment of such Lender;

(ii) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of principal, interest (other than the waiver of interest at the Default Rate which may be effected upon consent of Required Lenders), fees, premiums or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document; provided that any extension of the Maturity Date in accordance with the definition thereof shall not constitute a postponement or delay hereunder;

(iii) (a) change the pro rata treatment of any Lender with respect to (x) any payments (including voluntary and mandatory prepayments), (y) proceeds of Collateral or (z) reductions in Term Loan Commitments and (b) amend the definition of Pro Rata Percentage (it being understood by the Parties that participation by any Lender in a new financing by the Loan Parties offered to the Lenders in compliance with Section 6.25 providing rights under any debt instrument with respect to payment and collateral senior to the Term Loans in and of itself shall not constitute a change in the pro rata treatment of any Lender so long as such terms of any senior terms apply on an equal and ratable basis to the rights of Lenders with respect to, and the terms of the Term Loans outstanding, under this Agreement as of the Closing Date);

(iv) discharge all or substantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, in each case except as otherwise may be provided in this Agreement or the other Loan Documents; and

(v) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans or (2) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) if proposed by any Lender or any Affiliate thereof is offered ratably to all Lenders on the same terms and conditions;

(vi) subordinate the Term Loans to any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be senior in right of payment to the Term Loans or (2) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) if proposed by any Lender or any Affiliate thereof is offered ratably to all Lenders on the same terms and conditions; and

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(vii) amend this Section 14.4(d), the definition of Required Lenders, the definition of Supermajority Lenders, or any provision providing for consent or other action by all Lenders.

For purposes of this Section 14.4(d), a “Restructuring” means any amendment, modification, discharge, waiver of terms of this Agreement or other Collateral Document, or the exchange or conversion of Term Loans, in each case, reasonably necessary or required to consummate a restructuring of the Borrower’s capital structure which is consented to by Supermajority Lenders; provided: (x) subject to Section 14.4(d)(iii) and no Lender is adversely affected disproportionately to the other Lenders and (y) the principal amount of each Term Loan is given proportional economic treatment, and receiving the same form of consideration, to the principal amount of all other outstanding Term Loans.

Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 14.4 shall be binding upon Agent, Lenders and Borrower.

(e) This Agreement may be amended with the written consent of Agent, the Borrower and the Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.

(f) Notwithstanding anything to the contrary contained in this Section 14.4 (i) Agent may amend Schedules to reflect assignments or participations entered into pursuant to Section 14.1 and (ii) Agent (at the direction of Required Lenders) and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein, (2) grant a new Lien for the benefit of the Lenders, extend an existing Lien over additional property for the benefit of the Lenders or join additional Persons as Loan Parties, and (3) to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.

(g) Any fee letter, side letter, any Control Agreement, any mortgage or similar agreement or any landlord, bailee or mortgagee agreement may be amended as provided therein and if not provided therein, by each of the parties thereto. Only the consent of the parties to any Bank Product Agreement relating to a Bank Product shall be required for any modification of such Bank Product Agreement.

(h) Notwithstanding anything else to the contrary herein or in any other Loan Document, any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document may be provided or documented via email in the discretion of the Lenders providing such consent subject to the thresholds required in this Agreement and the other Loan Documents.

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14.5. Reliance. All covenants, agreements, representations and warranties made herein by the Loan Parties shall, notwithstanding any investigation by Agent and Lenders, be deemed to be material to and to have been relied upon by Agent and Lenders.

14.6. [Reserved].

14.7. Counterparts. This Agreement and each of the other Loan Documents may be executed in any number of counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Agreement or any of the other Loan Documents by telecopy or other electronic imaging means (e.g. PDF by email) shall be effective as delivery of a manually executed counterpart.

14.8. Survival. All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any Obligations (other than inchoate indemnification obligations) remain outstanding. The obligation of Borrower to indemnify each Indemnified Person with respect to the expenses, damages, losses, costs and liabilities described in Section 10.3 shall survive until all applicable statute of limitations periods with respect to actions that may be brought against an Indemnified Person have run. Further, Sections 14.9 and 14.12 shall survive the termination of the Term Loan Commitment or this Agreement as will any other provision which by its terms extend beyond the payment in full in cash of the Obligations.

14.9. Publicity. Agent and Lender may use Parent’s name and logo and include a brief description of the relationship between Borrower, Parent, Agent and Lender, in Agent’s and Lender’s marketing materials.

14.10. Keepwell; Acknowledgement Regarding Any Supported QFCs.

(a) Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under the this Agreement in respect of Additional Hedge Obligations under any Secured Hedge Agreement (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 14.10(a) for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 14.10(a), or otherwise under this Agreement, voidable under Applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 14.10(a) shall remain in full force and effect until the guarantees in respect of Additional Hedge Obligations under each Secured Hedge Agreement have been discharged, or otherwise released or terminated in accordance with the terms of this Agreement. Each Qualified ECP Guarantor intends that this Section 14.10(a) constitute, and this Section 14.10(a) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

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(b) Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

14.11. Relationship of Parties. Borrower, Agent and Lenders acknowledge, understand and agree that the relationship between the Borrower, on the one hand, and Agent and Lenders, on the other, is, and at all times shall remain solely that of a borrower and lender. Neither Agent nor Lenders nor any of their Related Parties shall under any circumstances be construed to be a partner or joint venturer of Borrower, any other Loan Party or any of their respective Affiliates; nor shall Agent or any Lender nor any of their Related Parties under any circumstances be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrower, any other Loan Party or any of their respective Affiliates, or to owe any fiduciary duty to Borrower, any other Loan Party or any of their respective Affiliates. Agent and Lenders do not undertake or assume any responsibility or duty to Borrower, any other Loan Party or any of their respective Affiliates to select, review, inspect, supervise, pass judgment upon or otherwise inform the Borrower, any other Loan Party or any of their respective Affiliates of any matter in connection with its or their Property, any Collateral or the operations of Borrower, any other Loan Party or any of their respective Affiliates. Borrower, each other Loan Party and their respective Affiliates shall rely entirely on their own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by Agent or Lenders in connection with such matters is solely for the protection of Agent and Lenders, and Borrower, any other Loan Party or any of their respective Affiliates is not entitled to rely thereon.

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14.12. Confidentiality. Neither Agent, Lenders nor any of their employees, agents or representatives shall disclose to any third-party any Confidential Information that any Loan Party or any Affiliate of any Loan Party discloses to it pursuant to the Loan Documents, except that Agent and Lenders (together with their employees, agents and representatives) (i) may disclose Confidential Information to a third-party to the extent required by subpoena, civil investigative demand, interrogatories or similar legal process or otherwise as required by Applicable Law (including, without limitation, in connection with filings, submissions and any other similar documentation required or customary to comply with Securities and Exchange Commission filing requirements) or as requested by a governmental authority (in which case such Person, to the extent practical and permitted by law and except in connection with any request as part of a regulatory examination or with respect to any request for information by any legal, judicial, governmental, administrative, or regulatory authority that is not specific to the confidential information provided hereunder, agrees to inform the Borrower promptly thereof), (ii) may disclose Confidential Information to a potential assignee or transferee of or participant in the Loan Documents; provided that the potential assignee, transferee or participant agrees to be bound by substantially similar confidentiality obligations as Agent and Lenders under this Section 14.12, (iii) may disclose Confidential Information to their and their Affiliates’ members, partners, limited partners, lenders, investors, prospective investors, managed accounts, rating agencies, directors (or equivalent managers), officers, managers, employees, agents, independent auditors, legal counsel, accountants and other professional advisors and any other Related Parties of any Lender provided they are informed of the confidential nature of such information and advised to adhere to substantially similar confidentiality obligations as Agent or Lender as set forth in this Section, (iv) may disclose Confidential Information to regulatory authorities having jurisdiction over Agent or Lender or any assignee, transferee or participant, and (v) may disclose Confidential Information in connection with the exercise of its rights and remedies during the continuance of an Event of Default, to the extent Agent or Lenders reasonably deems necessary. For purposes hereof, “Confidential Information” is information that a Loan Party or an Affiliate of Loan Party discloses to Agent or Lenders pursuant to the Loan Documents that is not information which (i) becomes generally available to the public, other than as a result of disclosure by Agent or Lenders, (ii) was available on a non-confidential basis prior to its disclosure to Agent or Lenders by such Loan Party or such Affiliate, as applicable, (iii) becomes available to Agent or any Lender on a non- confidential basis from a source other the Loan Party or such Affiliate, as applicable; provided that neither Agent nor any Lender have actual knowledge that such third-party is prohibited from disclosing such information, or (iv) is independently developed by Agent or any Lender without reference to confidential information provided by Loan Party or an Affiliate of a Loan Party. Notwithstanding the foregoing, (1) any Lender may disclose (A) the aggregate principal amount of the Term Loan, (B) the interest rate of the Term Loan, (C) the call protection applicable to the Term Loan, (D) the role of such Lender in the transactions contemplated hereby, (E) the name and logo of Parent and (F) the date on which the Closing Date actually occurs, in each case, to any potential limited partner or potential client of the applicable Lender or such Lender’s relevant Affiliates and (2) Parent grants each Lender permission to use Parent’s and its Subsidiaries’ names and logos in such Lender’s or its Affiliates’ marketing materials; provided that any such logos or other materials are used solely in a manner that is not intended to or reasonably likely to harm or disparage Parent or any of its Subsidiaries or the reputation or goodwill of any of them. No Lender shall disclose to make copies or abstracts of with the intention to share, or discuss with, any Competitor any Restricted Information received hereunder; provided that the Lenders may share such Restricted Information to the extent such Competitor is separately under a nondisclosure agreement with the Loan Parties covering such Restricted Information.

125

14.13. Patriot Act/Freedom Act. Agent and Lenders hereby notify Parent and its Subsidiaries that pursuant to the requirements of the USA PATRIOT Act and USA FREEDOM Act, they are required to obtain, verify and record information that identifies Parent and its Subsidiaries, which information includes the name and address of Parent and its Subsidiaries and other information that will allow them to identify Parent and its Subsidiaries in accordance with the USA PATRIOT Act and the USA FREEDOM Act.

14.14. Governing Law; Jurisdiction; Waiver of Jury Trial. Except as otherwise expressly provided in any of the Loan Documents, the laws of the State of New York and to the extent applicable, the Bankruptcy Code, govern the Loan Documents without regard to principles of conflicts of law. Except to the extent otherwise set forth in the Loan Documents, each of the Loan Parties, Agent and Lenders submit to the exclusive jurisdiction of the State and Federal courts in the Borough of Manhattan in New York, New York or the Bankruptcy Court; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Agent from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Agent or any Lender. Borrower and each other Loan Party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and Borrower and each other Loan Party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower and each other Loan Party hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Article 11 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s or such other Loan Party’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, EACH OTHER LOAN PARTY, AGENT AND EACH LENDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL. This Section 14.14 shall survive the termination of this Agreement.

14.15. DIP Orders Control. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control. To the extent that any specific provision hereof is inconsistent with any of the DIP Orders, the Interim Order or Final Order (as applicable) shall control.

126

14.16. Counterparts. This Agreement and any notices delivered under this Agreement may be executed by means of (i) an electronic signature that complies with 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; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures 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. This Agreement may be executed in any number of counterparts, and it is not necessary that the signatures of all parties hereto be contained on any one counterpart hereof, each counterpart will be deemed to be an original, and all together shall constitute one and the same document.

14.17. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution, and (b) the effects of any Bail-In Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document, or (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.

[Signature pages follow]

127

IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written.

PARENT:	VERTEX ENERGY, INC.,
	a Nevada corporation

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

BORROWER:	VERTEX REFINING ALABAMA LLC,
	a Delaware limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

SUBSIDIARY GUARANTORS:	VERTEX REFINING TEXAS LLC,
	a Texas limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX MARINE FUEL SERVICES LLC,
	a Delaware limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX ENERGY OPERATING, LLC,
	a Texas limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

	VERTEX REFINING LA, LLC,
	a Louisiana limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	HPRM LLC,
	a Delaware limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	Director, President and Chief Executive Officer

	TENSILE-HEARTLAND ACQUISITION CORPORATION,
	a Delaware corporation

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	Director, President and Chief Executive Officer

	VERTEX RECOVERY MANAGEMENT, LLC,
	a Texas limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX REFINING NV, LLC,
	a Nevada limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX SPLITTER CORPORATION,
	a Delaware corporation

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	Director

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

	VERTEX REFINING MYRTLE GROVE LLC,
	a Delaware limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	CRYSTAL ENERGY, LLC,
	an Alabama limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President

	VERTEX ACQUISITION SUB, LLC,
	a Nevada limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	BANGO OIL LLC,
	a Nevada limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	CEDAR MARINE TERMINALS, LP,
	a Texas limited partnership

	By: Vertex II GP, LLC, its General Partner

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

	CROSSROAD CARRIERS, L.P.,
	a Texas limited partnership

	By: Vertex II GP, LLC, its General Partner

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX RECOVERY, L.P.,
	a Texas limited partnership

	By: Vertex II GP, LLC, its General Partner

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	H & H OIL, L. P.,
	a Texas limited partnership

	By: Vertex II GP, LLC, its General Partner

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX II GP, LLC,
	a Nevada limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	TENSILE-MYRTLE GROVE ACQUISITION CORPORATION,
	a Delaware corporation

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chairman of the Board

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

	VERTEX MERGER SUB, LLC,
	a California limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX RENEWABLES LLC,
	a Delaware limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

	VERTEX RENEWABLES ALABAMA LLC,
	a Delaware limited liability company

	By:	/s/ Benjamin P. Cowart
	Name:	Benjamin P. Cowart
	Title:	President and Chief Executive Officer

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

WHITEBOX MULTI-STRATEGY PARTNERS, LP,
as a New Money Lender and as a Roll-Up Lender

By:	/s/ Andrew Thau
	Name:	Andrew Thau
	Title:	Managing Director

WHITEBOX RELATIVE VALUE PARTNERS, LP,
as a New Money Lender and as a Roll-Up Lender

By:	/s/ Andrew Thau
	Name:	Andrew Thau
	Title:	Managing Director

WHITEBOX GT FUND, LP,
as a New Money Lender and as a Roll-Up Lender

By:	/s/ Andrew Thau
	Name:	Andrew Thau
	Title:	Managing Director

PANDORA SELECT PARTNERS, LP,
as a New Money Lender and as a Roll-Up Lender

By:	/s/ Andrew Thau
	Name:	Andrew Thau
	Title:	Managing Director

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

HIGHBRIDGE TACTICAL CREDIT MASTER FUND, L.P.,
as a New Money Lender and as a Roll-Up Lender

By:	Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity

By:	/s/ Jonathan Segal
	Name:	Jonathan Segal
	Title:	Managing Director, Co-Chief Investment Officer

HIGHBRIDGE SCF II LOAN SPV, L.P.,
as a New Money Lender and as a Roll-Up Lender

By:	Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity

By:	/s/ Jonathan Segal
	Name:	Jonathan Segal
	Title:	Managing Director, Co-Chief Investment Officer

HIGHBRIDGE TACTICAL CREDIT INSTITUTIONAL FUND, LTD.,
as a New Money Lender and as a Roll-Up Lender

By:	Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity

By:	/s/ Jonathan Segal
	Name:	Jonathan Segal
	Title:	Managing Director, Co-Chief Investment Officer

1992 MASTER FUND CO-INVEST SPC - SERIES 4 SEGREGATED PORTFOLIO,
as a New Money Lender and as a Roll-Up Lender

By:	Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity

By:	/s/ Jonathan Segal
	Name:	Jonathan Segal
	Title:	Managing Director, Co-Chief Investment Officer

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

BLACKROCK DIVERSIFIED PRIVATE DEBT FUND MASTER LP,
as a New Money Lender and as a Roll-Up Lender

By:	BlackRock Financial Management, Inc., its manager

By:	/s/ Zach Viders
	Name:	Zach Viders
	Title:	Authorized Signatory

GCO II AGGREGATOR 6 L.P.,
as a New Money Lender and as a Roll-Up Lender

By:	BlackRock Financial Management, Inc., its manager

By:	/s/ Zach Viders
	Name:	Zach Viders
	Title:	Authorized Signatory

GCO II AGGREGATOR 2 L.P.,
as a New Money Lender and as a Roll-Up Lender

By:	BlackRock Financial Management, Inc., its manager

By:	/s/ Zach Viders
	Name:	Zach Viders
	Title:	Authorized Signatory

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

CROWDOUT CAPITAL LLC,
as a New Money Lender and as a Roll-Up Lender

By:	/s/ Brian Gilmore
	Name:	Brian Gilmore
	Title:	Managing Member

CROWDOUT CREDIT OPPORTUNITIES FUND LLC,
as a New Money Lender and as a Roll-Up Lender

By:	/s/ Brian Gilmore
	Name:	Brian Gilmore
	Title:	Managing Member

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

	JENNIFER STRAUMINS,
	as a New Money Lender and as a Roll-Up Lender

	/s/ Jennifer Straumins

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

	AGENT:

Legal Reviewed	CANTOR FITZGERALD SECURITIES, as Agent

/s/ Ryan Yeh	By:	/s/ Christian Wall
Ryan Yeh		Name:	Christian Wall
Assistant General Counsel		Title:	Head of Fixed Income

Signature Page to Senior Secured Super-Priority
Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

List of Schedules and Exhibits

Schedule 1	Subsidiaries
Schedule 2	Disqualified Institutions Designated by the Supermajority Lenders
Schedule 2.1(a)	Term Loan Commitments
Schedule 6.19	Post-Closing Matters
Schedule 6.24	Restructuring Milestones
Annex 1	Collateral Description Attachment to Loan and Security Agreement
Annex 2	Relative Lien Priorities on Collateral
Annex 3	Relative Claim Priorities
Annex 4	Certain Defined Terms
Exhibit A	Form of Interim DIP Order
Exhibit B-1	Form of Borrower Joinder Agreement
Exhibit B-2	Form of Guarantor Joinder Agreement
Exhibit C	Form of Assignment
Exhibit D	Form of Notice of Borrowing
Exhibit E	Form of Note
Exhibit F	[Reserved]
Exhibit G	Form of Compliance Certificate
Exhibit H	Form of Tax Compliance Certificates
Exhibit I	[Reserved]
Exhibit J	Form of Initial Approved Budget

Schedule 1
Subsidiaries

●

VERTEX ENERGY OPERATING, LLC, a Texas limited liability company (wholly- owned) (“Vertex Operating”)

●

Vertex Splitter Corporation, a Delaware corporation (wholly-owned) (“Vertex Splitter”)

●

Vertex Refining LA, LLC, a Louisiana limited liability company (wholly-owned by Vertex Operating) (“VRLA”)

●

Crystal Energy, LLC, an Alabama limited liability company (wholly-owned by Vertex Operating) (“Crystal”)

●

Tensile-Myrtle Grove Acquisition Corporation, a Delaware corporation (wholly-owned by Vertex Splitter) (“TMGA”)

●

VERTEX MERGER SUB, LLC, a California limited liability company (wholly-owned by Vertex Operating) (“Merger Sub”)

●

VERTEX RECOVERY MANAGEMENT, LLC, a Texas limited liability company (wholly-owned by Vertex Operating) (“VRM”)

●

Vertex Refining NV, LLC, a Nevada limited liability company (wholly owned by Vertex Operating) (“VRNV”)

●

Vertex Refining Myrtle Grove LLC, a Delaware limited liability company (84% owned by Vertex Operating and 16% owned by TMGA)

●

Vertex II GP, LLC, a Nevada limited liability company (100% owned by Vertex Operating) (“Vertex II GP”)

●

Vertex Acquisition Sub, LLC, a Nevada limited liability company (wholly-owned by Vertex Operating) (“Vertex Acquisition”)

●

BANGO OIL LLC, a Nevada limited liability company (wholly-owned by VRNV) (“Bango Oil”)

●

VERTEX RECOVERY, L.P., a Texas limited partnership (99% owned by Vertex Acquisition and 1% owned by Vertex II GP) (“Vertex Recovery”)

●

CROSSROAD CARRIERS, L.P., a Texas limited partnership (99% owned by Vertex Acquisition and 1% owned by Vertex II GP) (“Crossroad Carriers”)

●

CEDAR MARINE TERMINALS, LP, a Texas limited partnership (99% owned by Vertex Acquisition and 1% owned by Vertex II GP) (“CMT”)

●

H & H OIL, L. P., a Texas limited partnership (100% owned by Crossroad Carriers) (“H &H Oil”)

●

HPRM, LLC, a Delaware limited liability company (1% owned by Vertex Splitter, 65% owned by THAC and 34% owned by Vertex Operating) (“HPRM”)

●

Tensile-Heartland Acquisition Corporation, a Delaware corporation (100% owned by Vertex Splitter) (“THAC”)

●

Vertex Marine Fuel Services LLC, a Delaware limited liability company (wholly-owned by Vertex Operating) (“Vertex Marine”)

●

Vertex Refining Texas LLC, a Texas limited liability company (wholly-owned by Vertex Operating) (“Vertex Texas”)

●

Vertex Renewables LLC, a Delaware limited liability company (wholly-owned by Vertex Operating) (“Renewables”)

Senior Secured Super-Priority Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

Schedule 1 - 1

●

Vertex Renewables Alabama LLC, a Delaware limited liability company (wholly-owned by Renewables) (“Renewables AL”)

Excluded Subsidiaries as of the Closing Date

●

Vertex Recovery Management LA, LLC, a Louisiana limited liability company (50% owned by VRM) (“VRM-LA”)

Senior Secured Super-Priority Debtor-in-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

Schedule 1 - 2

Schedule 2

Disqualified Institutions Designated by the Supermajority Lenders

[On file with Agent]

Schedule 2.1(a)
Term Loan Commitments

Lender Name	Term Loan Commitments for New Money Term Loans as of the Closing Date	Interim Roll -Up Loan Amounts	Restricted Roll-Up Loan Amounts	Final Roll-Up Loan Amounts
Whitebox Multi-Strategy Partners, LP	$10,722,291.21	$4,979,354.62	$15,635,700.38	$6,066,641.50
Whitebox Relative Value Partners, LP	$6,307,230.13	$2,929,032.13	$9,197,470.82	$3,568,612.66
Whitebox GT Fund, LP	$1,009,156.82	$468,645.14	$1,471,595.33	$570,978.02
Pandora Select Partners, LP	$587,345.33	$272,758.94	$1,011,721.78	$392,547.40
Highbridge SCF II Loan SPV, L.P.	$1,697,567.02	$788,337.87	$0.00	$1,897,559.83
Highbridge Tactical Credit Master Fund, L.P.	$7,668,655.49	$3,561,268.23	$15,833,630.27	$1,174,915.76
Highbridge Tactical Credit Institutional Fund, Ltd.	$1,780,600.07	$826,897.82	$4,032,906.68	$106,271.67
1992 Master Fund Co-Invest SPC – Series 4 Segregated Portfolio	$386,503.94	$179,489.64	$0.00	$432,038.53
GCO II Aggregator 2 L.P.	$0.00	$3,090,700.20	$56,385,753.51	$0.00
BlackRock Diversified Private Debt Fund Master LP	$10,697,564.88	$4,967,871.90	$22,528,546.11	$1,418,154.96
GCO II Aggregator 6 L.P.	$33,764,720.20	$12,589,392.09	$0.00	$10,175,293.93
CrowdOut Credit Opportunities Fund LLC	$3,407,157.94	$1,582,259.56	$7,266,001.95	$365,078.14
CrowdOut Capital LLC	$1,471,206.97	$683,217.89	$1,839,494.17	$459,860.57
Jennifer Straumins	$500,000.00	$1,030,000.00	$0.00	$220,000.00
TOTAL	$80,000,000.00	$37,949,226.03	$135,202,821.00	$26,847,952.97

Loan and Security Agreement – Vertex Refining Alabama LLC

Schedule 2.1(a) - 1

Schedule 6.19
Post-Closing Matters

The Loan Parties agree to and will complete, or cause to be completed, all of the following actions, including execution and delivery of any documents, as applicable, not later than the dates specified following the Closing Date (or such later date as agreed by the Required Lenders in their sole discretion), in each case, in form and substance satisfactory to Agent and the Required Lenders:

None.

Loan and Security Agreement – Vertex Refining Alabama LLC

Schedule 6.19 - 1

Schedule 6.24
Restructuring Milestones

●

No later than three (3) days after the Petition Date, subject to Bankruptcy Court availability, the Bankruptcy Court shall have entered the Interim DIP Order, the Scheduling Order and the Bid Procedures Order;

●

No later than thirty (30) days after the Petition Date, the Bankruptcy Court shall have entered the Final DIP Order;

●

No later than thirty-five (35) days after the Petition Date, the deadline for submitting indications of interest;

●

No later than fifty (50) days after the Petition Date, the Bankruptcy Court shall have entered an order approving the disclosure statement;

●

If the Debtors elect to pursue a Credit Bid Sale, no later than seventy (70) days after the Petition Date, the Bankruptcy Court shall have entered the Credit Bid Sale Order;

●

If the Debtors elect to pursue a Third-Party Sale, (a) the Bid Deadline shall be no later than no later than sixty-five (65) days after the Petition Date; and (b) no later than ninety (90) days after the Petition Date, the Bankruptcy Court shall have entered the Third-Party Sale Order;

●

No later than ninety-five (95) days after the Petition Date, the order confirming the Plan shall have been entered; and

●

No later than one hundred and fifteen (115) days after the Petition Date, the Plan Effective Date shall have occurred.

Loan and Security Agreement – Vertex Refining Alabama LLC

Schedule 6.24 - 1

ANNEX 1

COLLATERAL DESCRIPTION ATTACHMENT
TO LOAN AND SECURITY AGREEMENT

DEBTOR: Each of the Loan Parties

SECURED PARTY: Cantor Fitzgerald Securities, as Agent for the benefit of Lenders

All property of each of the Loan Parties (herein referred to as “Grantor”) whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to (collectively, the “Collateral”):

(a) all accounts, accounts receivable, contract rights, notes, drafts, acceptances, chattel paper, leases, letters of credit issued for the benefit of such Grantor and all writings evidencing a monetary obligation or a security interest in or a lease of goods; all rights to receive the payment of money or other considerations under contracts (including, without limitation, letter-of-credit rights) or by virtue of merchandise sold, leased or licensed, services rendered, loans and advances made or other considerations given, whether or not earned by performance and whether or not evidenced by or set forth in or arising out of any chattel paper, note, draft, lease, acceptance, writing, bond, insurance policy, instrument, document or general intangible, and all extensions and renewals of any thereof; all merchandise which gave rise to any or all of the foregoing, including all goods; all claims or causes of action in connection with or under any agreement, contract, instrument or document or by operation of law or otherwise with respect to any of the foregoing; all collateral security of any kind given by any Person with respect to any of the foregoing; and, in any event, all accounts, instruments, letter-of-credit rights and chattel paper within the meaning of the UCC (any and all of the foregoing being the “Accounts, Instruments, Letter-of-Credit Rights and Chattel Paper”);

(b) all inventory in all of its forms, wherever located, whether acquired by purchase, merger or otherwise; all raw materials and work in process therefor; all finished goods thereof and all materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing or production thereof, and, in any event, all inventory within the meaning of the UCC; goods in which such Grantor has an interest in mass or a joint or other interest or right of any kind and goods which are returned to or repossessed by such Grantor; and all accessions thereto and products thereof (any and all such inventory, goods, accessions and products being the “Inventory”);

(c) all equipment, machinery, chattels, tools, parts, machine tools, motor vehicles, aircraft, rolling stock, furniture, furnishings, fixtures and supplies of every nature, wherever located, and all accessions, additions and improvements thereto and substitutions therefor and all parts and equipment which may be attached to or which are necessary for the operation and use of such personal property, whether or not the same shall be deemed to be affixed to real property; all rights under or arising out of contracts relating to the foregoing; and, in any event, all equipment within the meaning of the UCC (any and all of the foregoing being the “Equipment”);

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 1 - 1

(d) all general intangibles of every nature, including, without limitation, all payment intangibles; all books, correspondence, credit files, records, computer tapes, cards and other papers and documents in the possession or control of such Grantor, claims (including, without limitation, all claims for income tax and other refunds), rights, powers, privileges, authority, options, security interests, liens, remedies, choses in action, judgments, franchises, permits, licenses, licensing agreements and distributor agreements, together with the goodwill of the business associated with the foregoing, arising in or relating to the ordinary course of such Grantor’s business; all amounts received as an award in or settlement of a suit in damages and all rights to sue for past, present or future infringements; interests in joint ventures, general or limited partnerships or limited liability companies, option agreements, joint operating agreements, promotional materials and rights, leases and subleases; all other contract rights of such Grantor, including, without limitation, all rights to payment under a contract not yet earned by performance and not yet evidenced by an Account, Instrument, Letter-of-Credit Right or Chattel Paper; and, in any event, all general intangibles within the meaning of the UCC (any and all of the foregoing, together with all Intellectual Property (as defined in the Loan Agreement), being the “General Intangibles” and, together with the Accounts, Instruments, Letter-of-Credit Rights and Chattel Paper, herein collectively being the “Receivables”);

(e) all documents of every nature and, in any event, all documents within the meaning of the UCC (any and all of the foregoing, including electronic documents, being the “Documents”);

(f) all investment property of every nature, including, without limitation, allsecurities (whether certificated or uncertificated), security entitlements, securities accounts, commodity contracts and commodity accounts and, in any event, all investment property within the meaning of the UCC (any and all of the foregoing being the “Investment Property”);

(g) all deposit accounts of every nature, including without limitation, all demand, time, checking, savings, passbook or other accounts maintained with any bank or similar institution and, in any event, all deposit accounts within the meaning of the UCC; provided that “Collateral” shall not include any zero-balance accounts for the purpose of managing payroll, employee benefits, or payroll or withholding tax payments (any and all of the foregoing being the “Deposit Accounts”);

(h) all Intellectual Property (as defined in the Loan Agreement); and

(i) supporting obligations, commercial tort claims, and the proceeds (in cash or otherwise) and products of the Collateral described in the foregoing clauses (a) through (o) including, without limitation, the proceeds of any sale or other disposition of such Collateral and all insurance proceeds of any kind paid at any time in connection with such Collateral, all liens (whether possessory, contractual, statutory or otherwise) with respect to such Collateral, and all rights and claims (whether in the nature of indemnities, warranties, guaranties or otherwise) of such Grantor with respect to such Collateral, including, without limitation, the right of such Grantor to bring suit to enforce its rights with respect to such Collateral; provided that the inclusion of proceeds in this Agreement does not authorize such Grantor to sell, dispose of or otherwise use the Collateral in any manner not specifically authorized hereby or by the Loan Agreement.

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 1 - 2

Notwithstanding the foregoing, “Collateral” shall not include and no security interest shall be deemed granted in any Excluded Property; provided, however, the exclusion in clause (c) of the definition of “Excluded Property” in the Loan Agreement shall in no way be construed (i) to apply if any such prohibition would be rendered ineffective under the UCC (including Sections 9-406, 9- 407 and 9- 408 thereof) or other applicable law (including the United States Bankruptcy Code) or principles of equity, (ii) so as to limit, impair or otherwise affect Agent’s unconditional continuing Liens upon any rights or interests of any Grantor in or to the Proceeds thereof (including proceeds from the sale, license, lease or other disposition thereof), including monies due or to become due under any such lease, license, contract, or agreement (including any Accounts or other Receivables), or (iii) to apply at such time as the condition causing such prohibition shall be remedied and, to the extent severable, “Collateral” shall include any portion of such lease, license, contract, agreement or assets subject thereto that does not result in such prohibition.

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 1 - 3

ANNEX 2

Relative Lien Priorities on Collateral¹

Shared Collateral constituting Intermediation Facility Priority Collateral (other than Business Interruption Insurance Proceeds)	Shared Collateral constituting DIP Priority Collateral (other than Business Interruption Insurance Proceeds)	Shared Collateral constituting Business Interruption Insurance Proceeds²	DIP Exclusive Collateral
Carve Out	Carve Out	Carve Out	Carve Out
Permitted Priority Liens	Permitted Priority Liens	Permitted Priority Liens	Permitted Priority Liens
Intermediation Facility Liens	Hedging Liens	Hedging Liens/ Intermediation Facility Liens/DIP Liens	Hedging Liens³
Intermediation Facility Adequate Protection Liens	DIP Liens	Pre-Petition Term Loan Adequate Protection Liens/ Intermediation Facility Adequate Protection Liens	DIP Liens
Hedging Liens	Pre-Petition Term Loan Adequate Protection Liens	Pre-Petition Liens	Pre-Petition Term Loan Adequate Protection Liens
DIP Liens	Pre-Petition Liens	—	Pre-Petition Liens
Pre-Petition Term Loan Adequate Protection Liens	Intermediation Facility Liens	—	—
Pre-Petition Liens	Intermediation Facility Adequate Protection Liens	—	—

¹Terms used in this Annex shall have the meaning given to such terms in Annex 4.

²The Intermediator must have marshalled, taken, liquidated and exhausted all remedies and recoveries available to the Intermediator under the Intermediation Contracts from any other Intermediation Facility Priority Collateral, including Intermediation Title Property.

³Only with respect to DIP Exclusive Collateral held by Participating Hedging Debtors.

Annex 2 - 1

ANNEX 3

Relative Claim Priorities⁴

Vertex Refining
(with respect to
proceeds of
Intermediation
Facility Priority
Collateral (other
than Business
Interruption
Insurance
Proceeds))

Vertex Refining
(with respect to
proceeds of DIP
Priority
Collateral (other
than Business
Interruption
Insurance
Proceeds))

Vertex Refining
(with respect to
Business
Interruption
Insurance
Proceeds)

Parent

Vertex Renewables

Participating
Hedging
Debtors (other
than Vertex
Refining,
Parent and
Vertex
Renewables)

All Other
Debtors

Carve Out

Intermediation Superpriority Claims

Superpriority Hedging Claims

Superpriority Hedging Claims/ DIP Super-Priority Claims/ Intermediation Superpriority Claims

Superpriority Hedging Claims

DIP

Super-Priority Claims

⁴Terms used in this Annex shall have the meaning given to such terms in Annex 4.

Annex 3 - 1

Vertex Refining
(with respect to
proceeds of
Intermediation
Facility Priority
Collateral (other
than Business
Interruption
Insurance
Proceeds))

Vertex Refining
(with respect to
proceeds of DIP
Priority
Collateral (other
than Business
Interruption
Insurance
Proceeds))

Vertex Refining
(with respect to
Business
Interruption
Insurance
Proceeds)

Parent

Vertex Renewables

Participating
Hedging
Debtors (other
than Vertex
Refining,
Parent and
Vertex
Renewables)

All Other
Debtors

Pre-Petition Intermediation Facility Adequate Protection Claims

DIP Super-Priority Claims

Shell Superpriority Claims

All DIP Super-Priority Claims / Certain Intermediation Superpriority Claims (solely with respect to Business Interruption Insurance Proceeds)

All DIP Super-Priority Claims

DIP Super-Priority Claims

Pre-Petition Term Loan Adequate Protection Super-Priority Claims

Superpriority Hedging Claims

Intermediation Superpriority Claims

Pre-Petition Term Loan Adequate Protection Super-Priority Claims / Pre- Petition Intermediation Facility Adequate Protection Claims

Intermediation Superpriority Claims (claims other than Business Interruption Insurance Proceeds)

Intermediation Superpriority Claims

Pre-Petition Term Loan Adequate Protection Super-Priority Claims

—

Annex 3 - 2

Vertex Refining
(with respect to
proceeds of
Intermediation
Facility Priority
Collateral (other
than Business
Interruption
Insurance
Proceeds))

Vertex Refining
(with respect to
proceeds of DIP
Priority
Collateral (other
than Business
Interruption
Insurance
Proceeds))

Vertex Refining
(with respect to
Business
Interruption
Insurance
Proceeds)

Parent

Vertex
Renewables

Participating
Hedging
Debtors (other
than Vertex
Refining,
Parent and
Vertex
Renewables)

All Other
Debtors

DIP Super-Priority Claims

Shell Superpriority Claims

—

Shell Superpriority Claims

Pre-Petition Term Loan Adequate Protection Super-Priority Claims

—

Shell Superpriority Claims

Pre-Petition Term Loan Adequate Protection

Super-Priority Claims

—

Pre-Petition Term Loan Adequate Protection Super-Priority Claims /Certain Pre-Petition Intermediation Facility Adequate Protection Claims (solely with respect to Business Interruption Insurance Proceeds)

—

Annex 3 - 3

Vertex Refining (with respect to proceeds of Intermediation Facility Priority Collateral (other than Business Interruption Insurance Proceeds))	Vertex Refining (with respect to proceeds of DIP Priority Collateral (other than Business Interruption Insurance Proceeds))	Vertex Refining (with respect to Business Interruption Insurance Proceeds)	Parent	Vertex Renewables	Participating Hedging Debtors (other than Vertex Refining, Parent and Vertex Renewables)	All Other Debtors
Pre-Petition Term Loan Adequate Protection Super-Priority Claims	Pre-Petition Intermediation Facility Adequate Protection Claims	—	Pre-Petition Intermediation Facility Adequate Protection Claims (claims other than Business Interruption Insurance Proceeds)	—	—	—

Annex 3 - 4

ANNEX 4

Certain Defined Terms

“Books” means, as to any Debtor, the books and records, including ledgers; records concerning such Debtor’s assets or liabilities, including the Collateral, business operations or financial condition; and all computer programs, or data storage, and the related devices and equipment, containing such information.

“Business Interruption Insurance Percentage” means, as of any date of determination, (i) with respect to the Intermediator, the percentage determined by dividing the outstanding Intermediation Obligations after the Intermediator has marshalled, taken, liquidated and exhausted all remedies and recoveries available to the Intermediator under the Intermediation Contracts (as defined in the Intermediation Order) from any other Intermediation Facility Priority Collateral and any insurance rights owned or held by the Intermediator in its own name covering such Intermediation Facility Priority Collateral to the Intermediation Obligations under the Intermediation Contracts, by the sum of such Intermediation Obligations, plus the outstanding Hedge Obligations plus the outstanding DIP Obligations, hereunder in each case, as of the time of the occurrence of the event giving rise to Business Interruption Insurance Proceeds; (ii) with respect to the Hedge Provider, the percentage determined by dividing the outstanding Hedge Obligations, by the sum of such Intermediation Obligations, plus the outstanding Hedge Obligations plus the outstanding DIP Obligations, hereunder in each case, as of the time of the occurrence of the event giving rise to Business Interruption Insurance Proceeds and (iii) with respect to the DIP Secured Parties hereunder, the difference between 100% and the percentages determined in items (i) and (ii) of this definition. For purposes of determining “Business Interruption Insurance Percentage” with respect to the Intermediator, the Intermediator shall be required to marshal, take, liquidate and exhaust all remedies and recoveries available to the Intermediator with respect to (x) all other categories of Intermediation Facility Priority Collateral, including Intermediation Title Property and (y) all insurance owned and held in the name of the Intermediator with respect to the Intermediation Facility Priority Collateral prior to receiving any recovery of Business Interruption Insurance Proceeds under policies required by the Intermediation Contracts and such policies shall be the secondary policy with respect to Intermediation Facility Priority Collateral.

“Business Interruption Insurance Proceeds” means proceeds of business interruption insurance policies maintained by Parent or Vertex Refining. Any Business Interruption Insurance Proceeds go, first, to satisfy the Carve Out, second, to any Permitted Priority Liens, and third, to any obligations secured by Hedging Liens, DIP Liens and Intermediation Facility Liens on a pari passu basis in accordance with the Business Interruption Insurance Percentage to claims secured by the DIP Liens, Hedging Liens and Intermediation Facility Liens.

“Catalyst Assets” means any catalyst assets and inventory constituting catalyst, precious metals assets and precious metals inventory and all additions, accessions and all rights related thereto.

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 4 - 1

“Carve Out” means the Carve Out (as defined in the DIP Order).

“Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Debtor or arising and wheresoever located, including all accessions thereto and products and proceeds thereof (other than Excluded Property (as defined in the DIP Order or as defined in the Intermediation Order)) in or upon which a Lien is granted by a Debtor to the Secured Parties with the priorities as set forth in Annex 3.

“Debtors” means the Debtors (as defined in the DIP Order).

“DIP Exclusive Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Debtor (excluding, Vertex Refining and limited with respect to the Hedge Provider, only Participating Hedging Debtors) or arising and wheresoever located, including all accessions thereto and products and proceeds thereof (other than Excluded Property or any other Shared Collateral, including business interruption insurance policies maintained by Parent) in or upon which a Lien is granted by a Debtor to the Hedge Provider and DIP Secured Parties with the priorities as set forth in Annex 3; provided that no Debtor shall grant a Lien to the Hedge Provider to the extent such Debtor does not constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty by such Debtor.

“DIP Liens” means the DIP Liens (as defined in the DIP Order).

“DIP Obligations” means the DIP Obligations (as defined in the DIP Order).

“DIP Order” means that certain interim or final order (I) Authorizing The Debtors to Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral, (III) Granting Liens and Providing Claims with Superpriority Administrative Expense Status, (IV) Granting Adequate Protection to the Pre-Petition Term Loan Secured Parties, (V) Modifying the Automatic Stay, (VI) Scheduling a Final Hearing, and (VII) Granting Related Relief.

“DIP Priority Collateral” means Shared Collateral other than the Intermediation Facility Priority Collateral including the DIP Secured Parties’ Business Interruption Insurance Percentage.

“DIP Secured Parties” means the DIP Secured Parties (as defined in the DIP Order).

“DIP Super-Priority Claims” means the DIP Super-Priority Claims (as defined in the DIP Order).

“Excluded Property” means Excluded Property (as defined in the DIP Order or as defined in the Intermediation Order).

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 4 - 2

“Hedge Facility” means the Hedge Facility (as defined in the Intermediation Order).

“Hedge Obligations” means the Hedge Obligations (as defined in the Intermediation Order) but shall not include any other Intermediation Obligations or Transaction Obligations (as defined in the Intermediation Contracts), including, without limitation, by virtue of setoff, netting, or indemnification rights under the Intermediation Contracts.

“Hedge Provider” means the Hedge Provider (as defined in the Intermediation Order).

“Hedging Liens” means the Hedging Liens (as defined in the Intermediation Order).

“Hydrocarbon Credit Support” means, as of any time, all Inventory constituting or consisting of Hydrocarbons (as defined in the Intermediation Contracts) then owned or at any time hereafter acquired by Vertex Refining, that is located at a Company Storage Location (as defined in the Intermediation Contracts); provided that “Hydrocarbon Credit Support” shall not include any Excluded Property or any Catalyst Assets.

“Independent Amount” means the Independent Amount (as defined in the Independent Amount Letter as in effect on the date hereof).

“Independent Amount Letter” means the independent amount letter entered into between Vertex Refining and the Intermediator in connection with the Intermediation Contracts, as may be amended from time to time.

“Intermediation Contracts” means the Intermediation Contracts (as defined in the Intermediation Order).

“Intermediation Title Property” means Intermediation Title Property (as defined in the Intermediation Order) or the Proceeds thereof and Supporting Obligations with respect thereto, and the Independent Amount.

“Intermediation Facility Adequate Protection Liens” means the Intermediation Facility Adequate Protection Liens (as defined in the Intermediation Order).

“Intermediation Facility Liens” means the Intermediation Facility Liens (as defined in the Intermediation Order).

“Intermediation Facility Priority Collateral” means all of the following assets of Vertex Refining (or Parent, solely with respect to business interruption insurance policies held by the Parent subject, clause (c)) with respect to which a Lien is granted as security for the Intermediation Obligations in each case whether tangible or intangible: (a) all Inventory subject to or intended to be sold as Intermediation Title Property under the Intermediation Contracts; (b) all Inventory constituting Hydrocarbon Credit Support; (c) the Intermediator’s Business Interruption Insurance Percentage of the proceeds of business interruption insurance policies; and (d) all Proceeds of (including other proceeds of insurance with respect to the foregoing), and Supporting Obligations (including Letter of Credit Rights) with respect to, any of the foregoing.

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 4 - 3

“Intermediation Obligations” means the Intermediation Obligations (as defined in the Intermediation Order), whether arising prepetition or post-petition, but shall not include any Hedge Obligations, including, without limitation, by virtue of setoff, netting, or indemnification rights under the Intermediation Contracts or Hedge Facility.

“Intermediation Order” means that certain interim or final order (I) Authorizing Continuation of the Intermediation Contracts, as Amended, (II) Authorizing the Debtors to Enter Into and Perform Postpetition Intermediation Transactions and Postpetition Hedging Transactions, (IV) Providing Superpriority Administrative Expense Status and Liens in respect of Postpetition Intermediation Transactions and Postpetition Hedging Transactions, (V) Granting Adequate Protection to the Intermediation Provider, (VI) Provider Superpriority Administrative Expense Status in respect of Purchaser Support Agreements, (VII) Modifying the Automatic Stay, (VIII) Scheduling a Final Hearing and (IX) Granting Related Relief.

“Intermediation Superpriority Claims” means the Intermediation Superpriority Claims (as defined in Intermediation Order).

“Intermediator” means Macquarie (as defined in the Intermediation Order).

“Inventory” means “inventory” as defined in the UCC, including work in process and finished products intended for sale or lease or to be furnished under a contract of service, of every kind and description now or at any time hereafter owned by or in the custody or possession, actual or constructive, of any Debtor, including such inventory as is temporarily out of its custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, and each Debtor’s Books relating to any of the foregoing.

“Letter of Credit Rights” means “letter of credit rights” as defined in the UCC.

“Lien” means any pledge, bailment, lease, mortgage, deed of trust (or similar instrument), hypothecation, conditional sales and title retention agreement, charge, claim, encumbrance, preference, priority or other lien (statutory or otherwise) in favor of the Secured Parties under the DIP Order or Intermediation Order.

“Parent” means Vertex Energy, Inc., a Nevada corporation, as debtor and debtor-in-possession.

“Participating Hedging Debtors” means the Participating Hedging Debtors (as defined in Intermediation Order).

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 4 - 4

“Permitted Priority Liens” means the Permitted Priority Liens (as defined in the DIP Order or as defined in the Intermediation Order).

“Pre-Petition Intermediation Facility Adequate Protection Claims” means Pre-Petition Intermediation Facility Adequate Protection Claims (as defined in the Intermediation Order).

“Pre-Petition Liens” means the Pre-Petition Liens (as defined in the DIP Order).

“Pre-Petition Loan Obligations” means the Pre-Petition Loan Obligations (as defined in the DIP Order).

“Pre-Petition Term Loan Adequate Protection Liens” means the “Pre-Petition Term Loan Adequate Protection Liens (as defined in the DIP Order).

“Pre-Petition Term Loan Adequate Protection Super-Priority Claims” means the Pre-Petition Term Loan Adequate Protection Super-Priority Claims (as defined in the DIP Order).

“Proceeds” means “proceeds” as defined in the UCC.

“Secured Parties” means DIP Secured Parties, the Hedge Provider and the Intermediator.

“Shared Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by Vertex Refining and Parent (solely with respect to business interruption insurance policies maintained by Parent) thereby or arising and wheresoever located, including all accessions thereto and products and proceeds thereof (other than Excluded Property) in or upon which a Lien is granted by a Debtor with the priorities as set forth in Annex 3. For the avoidance of doubt and notwithstanding anything to the contrary herein, Shared Collateral constituting Intermediation Facility Priority Collateral shall not include Intermediation Excluded Property.

“Shell Superpriority Claims” means the Shell Superpriority Claims (as defined in Intermediation Order).

“Superpriority Hedging Claims” means the Superpriority Hedging Claims (as defined in Intermediation Order).

“Supporting Obligations” means “supporting obligations” as defined in the UCC.

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 4 - 5

“UCC” means the Uniform Commercial Code as adopted and in effect in the State of New York, as amended from time to time; 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, any Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.

“Vertex Refining” means Vertex Refining Alabama, LLC, a Delaware limited liability company, as debtor and debtor-in-possession.

Loan and Security Agreement – Vertex Refining Alabama LLC

Annex 4 - 6

Exhibit A

Form of Interim DIP Order

[See proposed Interim DIP Order attached to DIP Motion]

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

A - 1

Exhibit B-1

Form of Borrower Joinder

THIS BORROWER JOINDER AGREEMENT NO. ___ (this “Agreement”), dated as of [___________], [___], to that certain Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement, dated as of September 25, 2024, as may be amended from time to time (hereinafter referred to as the “Loan Agreement”) by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, a Delaware limited liability company (the “Borrower”), each of Parent’s direct and indirect subsidiaries from time to time party thereto, Cantor Fitzgerald Securities, as agent (the “Agent”) and the several lenders from time to time party thereto (collectively, the “Lenders”). Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Loan Agreement.

The undersigned, ______________a [●] [corporation/limited liability company] (the “Additional Borrower”) wishes to become a party to the Loan Agreement and to acquire and undertake the rights and obligations of a “Borrower” thereunder. The Additional Borrower is entering into this Agreement in accordance with the provisions of the Loan Agreement in order to become a Borrower thereunder.

Accordingly, the Additional Borrower and the other Loan Parties hereby agree as follows with the Agent, for the benefit of the Secured Parties:

1. The Additional Borrower hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Additional Borrower will be deemed to be a party to and a “Borrower” under the Loan Agreement and shall have all of the obligations of a Borrower thereunder as if it had executed the Loan Agreement and the other Loan Documents as a “Borrower”. The Additional Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, all representations and warranties, covenants and other terms, conditions and provisions of the Loan Agreement and the other applicable Loan Documents. Without limiting the generality of the foregoing terms of this Paragraph 1, the Additional Borrower (i) is hereby made a party to the Loan Agreement and the other Loan Documents as a “Borrower” thereunder with the same force and effect as if originally named therein as a “Borrower” and the Additional Borrower hereby jointly and severally assumes and agrees to pay and perform all obligations of a Borrower under the Loan Agreement and each of the other Loan Documents, (ii) hereby jointly and severally agrees to pay in full the Obligations as set forth in Article XIII of the Loan Agreement, and (iii) hereby expressly assumes all obligations and liabilities of a Borrower under the Loan Agreement.

2. Each of the Additional Borrower and the other Loan Parties hereby agree that all of the representations and warranties contained in Article V of the Loan Agreement and each other Loan Document are true and correct in all material respects as of the date hereof (without duplication of any materiality qualifier set forth therein) after giving effect to any Disclosure Letter Supplement delivered in connection herewith.

3. The Additional Borrower hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Additional Borrower will be deemed to be a party to the Security Agreement, and shall have all the rights and obligations of a “Grantor” (as such term is defined in the Security Agreement) thereunder as if it had executed the Security Agreement. The Additional Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Loan Agreement. Without limiting the generality of the foregoing terms of this Paragraph 3, the Additional Borrower hereby grants, pledges and assigns to the Agent, for the benefit of the Secured Parties, a continuing security interest in, and a right of set off, to the extent applicable, against any and all right, title and interest of the Additional Borrower in and to the Collateral (as such term is defined in Exhibit A of the Loan Agreement) of the Additional Borrower.

4. The Additional Borrower acknowledges and confirms that it has received a copy of the Loan Agreement and the schedules and exhibits thereto and each Loan Document and the schedules and exhibits thereto. The information on the schedules to the Loan Agreement are hereby supplemented (to the extent permitted under the Loan Agreement) to reflect the information shown on the attached Schedule A.

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-1

5. The Loan Parties confirm that the Loan Agreement is, and upon the Additional Borrower becoming a Guarantor, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon the Additional Borrower becoming a Borrower the term “Obligations,” as used in the Loan Agreement, shall include all obligations of the Additional Borrower under the Loan Agreement and under each other Loan Document.

6. Each of the Loan Parties and the Additional Borrower agrees that at any time and from time to time, upon the written request of the Agent, it will execute and deliver such further documents and do such further acts as the Agent may reasonably request in accordance with the terms and conditions of the Loan Agreement and the other Loan Documents in order to effect the purposes of this Agreement.

7. The following conditions must be met on or before the date hereof:

(a) Loan Documents. Agent and the Lenders shall have received executed copies of this Agreement, executed by each applicable Loan Party.

(b) Organizational Documents; Incumbency. Agent and the Lenders shall have received (i) copies of each Organizational Document executed by Additional Borrower, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated as of the date hereof or a recent date prior thereto, (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party, (iii) resolutions of the Board or similar governing body of each Loan Party, in each case, approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the date hereof, certified as of the date hereof by its secretary or an assistant secretary or other similar responsible officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate from the applicable Governmental Authority of Additional Borrower’s jurisdiction of incorporation, organization, or formation dated a recent date prior to the date hereof.

(c) Personal Property Collateral. In order to create in favor of Agent, for the benefit of Secured Parties, a valid, perfected security interest in personal property Collateral, Agent and the Lenders shall have received:

(i) evidence satisfactory to Required Lenders of the compliance by Additional Borrower of its obligations under the Loan Agreement and the other Loan Documents to which it is a party (including, without limitation, its obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, and any agreements governing deposit and/or securities accounts as provided therein), together with appropriate financing statements on Form UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Required Lenders, desirable to perfect the security interests purported to be created by each Security Agreement,

(ii) original certificates (if any) with respect to all of the Equity Interests issued by Additional Borrower, together with undated powers executed in blank with respect thereto (provided, that any such certificates issued by any Person other than Additional Borrower shall only be required to be delivered on the date hereof to the extent timely received after using commercially reasonable efforts to obtain them), and

(iii) a completed Disclosure Letter dated the date hereof and executed by an Responsible Officer of the Borrowers, together with all attachments contemplated thereby.

(d) Opinion of Counsel. Lenders and the Agent and their respective counsel shall have received executed copies of the favorable written opinions of counsel for the Additional Borrower, and as to such other matters as Required Lenders may reasonably request, dated as of the date hereof and otherwise in form and substance satisfactory to Agent (and such counsel is hereby instructed to deliver such opinion to the Agent and Lenders).

(e) Fees and Expenses. All accrued costs, fees, and expenses (including, without limitation, reasonable legal fees and expenses and the reasonable fees and expenses of any other advisors) and other compensation due and payable to Agent and the Lenders and required by this Agreement and the other Loan Documents to be paid on the date hereof shall have been paid, in the case of expenses, to the extent a reasonably detailed invoice has been delivered to Borrowers.

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-2

(f) Closing Date Certificate. Borrowers shall have delivered to the Lenders an executed certificate certifying the items described in clause (b) of paragraph 7 and the conditions in Section 3.2(b) of the Loan Agreement have been met, together with all attachments thereto.

(g) Notes. If requested, the Additional Borrower shall, simultaneously with the execution and delivery of this Agreement, execute and deliver a joinder to any Note that is outstanding substantially in the form of Annex A hereto.

Each Lender, by delivering its signature page to this Agreement shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by the Agent or Lenders, as applicable, on the date hereof.

8. This Agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

9. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. The terms of Section 14.14 of the Loan Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

10. Cantor Fitzgerald Securities is entering into this Agreement solely in its capacity as Agent and shall be entitled to all of the rights, privileges and immunities set forth in the Loan Agreement in acting hereunder.

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Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-3

IN WITNESS WHEREOF, each of the Loan Parties and the Additional Borrower has caused this Agreement to be duly executed by its authorized officer, and the Agent, for the benefit of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

ADDITIONAL BORROWER:		[ADDITIONAL BORROWER]
		a [Jurisdiction and Type of Organization]

		By:
		Name:
		Title:

[LOAN PARTIES]:		[LOAN PARTIES],
		a [Jurisdiction and Type of Organization]

		By:
		Name:
		Title:

Acknowledged, accepted and agreed:

CANTOR FITZGERALD SECURITIES,
as Agent

By:
Name:
Title:

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-4

Schedule A

Schedules to Loan Agreement

[TO BE COMPLETED BY BORROWER]

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-5

ANNEX A

JOINDER AGREEMENT TO NOTE

This Joinder Agreement to Note (this “Agreement”), dated as of [●], is entered into by [ ], a [●] [corporation/limited liability company] (the “Additional Borrower”), with respect to that certain Note, dated as of September 25, 2024, made by Vertex Refining Alabama LLC, a Delaware limited liability company (the “Borrower”, and collectively with the Additional Borrower, the “Borrowers”), payable to [●] (the “Lender”) (as amended, modified, supplemented or restated, and in effect from time to time, the “Note”). Each capitalized term used herein and not otherwise defined herein shall have the meaning assigned to such term in the Note.

The Additional Borrower hereby acknowledges that it has received and reviewed a copy of the Note. By its execution and delivery of this Joinder Agreement and the counterpart signature page to the Note attached as Exhibit A hereto, the Additional Borrower shall be deemed to be a party to the Note and shall be a Borrower thereunder, in each case as if such Additional Borrower were an original signatory thereto. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

[Signature Page Follows]

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-6

	[ADDITIONAL BORROWER],
	a [Jurisdiction and Type of Organization]

	By:
	Name:
	Title:

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-7

COUNTERPART SIGNATURE PAGE TO NOTE

[See Attached]

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-8

	[ADDITIONAL BORROWER],
	a [Jurisdiction and Type of Organization]

	By:
	Name:
	Title:

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-1-9

Exhibit B-2

Form of Guarantor Joinder

THIS JOINDER AGREEMENT NO. ___ (this “Agreement”), dated as of [_________________], [___], to that certain Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement, dated as of September 25, 2024, as may be amended from time to time (hereinafter referred to as the “Loan Agreement”) by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), Vertex Refining Alabama LLC, a Delaware limited liability company (the “Borrower”), each of Parent’s direct and indirect subsidiaries from time to time party thereto, Cantor Fitzgerald Securities, as agent (the “Agent”) and the several lenders from time to time party thereto (collectively, the “Lenders”). Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Loan Agreement.

The undersigned, ________________, a [●] [corporation/limited liability company] (the “Additional Guarantor”) wishes to become a party to the Loan Agreement and to acquire and undertake the rights and obligations of a “Guarantor” thereunder. The Additional Guarantor is entering into this Agreement in accordance with the provisions of the Loan Agreement in order to become a Guarantor thereunder.

Accordingly, the Additional Guarantor and the other Loan Parties hereby agree as follows with the Agent, for the benefit of the Secured Parties:

1. The Additional Guarantor hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Additional Guarantor will be deemed to be a party to and a “Guarantor” under the Loan Agreement and shall have all of the obligations and rights of a Guarantor thereunder as if it had executed the Loan Agreement and the other Loan Documents as a Guarantor. The Additional Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all representations and warranties, covenants and other terms, conditions and provisions of the Loan Agreement and the other applicable Loan Documents. Without limiting the generality of the foregoing terms of this Paragraph 1, the Additional Guarantor (i) is hereby made a party to the Loan Agreement and the other Loan Documents as a Guarantor thereunder with the same force and effect as if originally named therein as a Guarantor and the Additional Guarantor hereby jointly and severally assumes and agrees to pay and perform all obligations of a Guarantor under the Loan Agreement and each of the other Loan Documents, (ii) hereby guarantees, jointly and severally together with the other Guarantors, the prompt payment of the Secured Obligations in accordance with Article XIII of the Loan Agreement and (iii) hereby expressly assumes all obligations and liabilities of a Guarantor under the Loan Agreement.

2. Each of the Additional Guarantor and the other Loan Parties hereby agree that all of the representations and warranties contained in Article V of the Loan Agreement and each other Loan Document are true and correct in all material respects as of the date hereof (without duplication of any materiality qualifier set forth therein) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects (without duplication of any materiality standard set forth therein) as of such earlier date, and except that for purposes hereof, the representations and warranties contained in Section 5.9 of the Loan Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (i) and (iii), respectively, of Section 6.3(a) of the Loan Agreement.

3. The Additional Guarantor acknowledges and confirms that it has received a copy of the Loan Agreement and the schedules and exhibits thereto and each Loan Document and Collateral Document and the schedules and exhibits thereto. The information on the schedules to the Loan Agreement and the Collateral Documents are hereby supplemented (to the extent permitted under the Loan Agreement or Collateral Documents) to reflect the information shown on the attached Schedule A (and each of the Loan Parties ratifies such supplements and confirms that its obligations under the Collateral Documents, as so supplemented, shall be and continue to be in full force and effect).

4. The Loan Parties confirm that the Loan Agreement is, and upon the Additional Guarantor becoming a Guarantor, shall continue to be, in full force and effect. The parties hereto confirm and agree that immediately upon the Additional Guarantor becoming a Guarantor the term “Obligations,” as used in the Loan Agreement, shall include all obligations of the Additional Guarantor under the Loan Agreement and under each other Loan Document.

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-2-1

5. Each of the Loan Parties and the Additional Guarantor agrees that at any time and from time to time, upon the written request of the Agent, it will execute and deliver such further documents and do such further acts as the Agent may reasonably request in accordance with the terms and conditions of, and to the extent that such further assurances are required under, the Loan Agreement and the other Loan Documents in order to effect the purposes of this Agreement.

The following conditions must be met on or before the date hereof:

(a)

Loan Documents. Agent shall have received this Agreement executed by each applicable Loan Party.

(b) Organizational Documents; Incumbency. Agent shall have received (i) copies of each Organizational Document executed by Additional Guarantor, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, each dated as of the date hereof or a recent date prior thereto, (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party, (iii) resolutions of the Board or similar governing body of each Loan Party, in each case, approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the date hereof, certified as of the date hereof by its secretary or an assistant secretary or other similar responsible officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate from the applicable Governmental Authority of Additional Guarantor’s jurisdiction of incorporation, organization, or formation dated a recent date prior to the date hereof.

(i) evidence satisfactory to the Required Lenders of the compliance by Additional Guarantor of its obligations under the Loan Agreement and Collateral Documents to which it is a party (including, without limitation, its obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, and any agreements governing deposit and/or securities accounts as provided therein), together with appropriate financing statements on Form UCC-1 duly filed in such office or offices as may be necessary or, in the reasonable opinion of the Required Lenders, desirable to perfect the security interests purported to be created by the Loan Agreement and Collateral Documents, and

(ii) original certificates (if any) with respect to all of the capital stock issued by Additional Guarantor, together with undated powers executed in blank with respect thereto (provided, that any such certificates issued by any Person other than Additional Guarantor shall only be required to be delivered on the date hereof to the extent timely received after using commercially reasonable efforts to obtain them).

(d) Fees and Expenses. All accrued reasonable costs, fees, and expenses (including, without limitation, reasonable legal fees and expenses and the reasonable fees and expenses of any other advisors) and other compensation due and payable to Agent and the Lenders and required by this Agreement and the other Loan Documents to be paid on the date hereof shall have been paid, in the case of expenses, to the extent a reasonably detailed invoice has been delivered to Borrower.

(e) Officer’s Certificate. Borrower shall have delivered to the Agent an executed Officer’s Certificate, certifying the items described in clause (b) of this paragraph 6 and the conditions in Section 3.2(b) of the Loan Agreement have been met, with all attachments thereto.

7. This Agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-2-2

8. Each provision of this Agreement shall be severable from every other provision of this Joinder Agreement for the purpose of determining the legal enforceability of any specific provision.

9. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. The terms of Section 14.14 of the Loan Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

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Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-2-3

IN WITNESS WHEREOF, each of the Loan Parties and the Additional Guarantor has caused this Agreement to be duly executed by its authorized officer, and the Agent, for the benefit of the Secured Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

ADDITIONAL GUARANTOR:		[ADDITIONAL GUARANTOR]
		a [Jurisdiction and Type of Organization]

		By:
		Name:
		Title:

[LOAN PARTIES]:		[LOAN PARTIES],
		a [Jurisdiction and Type of Organization]

		By:
		Name:
		Title:

Acknowledged, accepted and agreed:

CANTOR FITZGERALD SECURITIES,
as Agent

By:
Name:
Title:

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

B-2-4

EXHIBIT E

Form of Note

[ ], [ ]

FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to [_______________________] or its registered assigns (the “Lender”), in accordance with the provisions of the Loan Agreement (as hereinafter defined), the principal amount of the Term Loan made by the Lender to the Borrower under that certain Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement, dated as of September 25, 2024, by and among Vertex Energy, Inc., a Nevada corporation (“Parent”), the Borrower, each of Parent’s direct and indirect subsidiaries from time to time party thereto, Cantor Fitzgerald Securities, as agent (the “Agent”) and the several lenders from time to time party thereto (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “Loan Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Loan Agreement).

The Borrower promises to pay interest on the unpaid principal amount of the Term Loan from the date of such Term Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Loan Agreement. All payments of principal and interest shall be made to the Agent for the account of the Lender in Dollars in immediately available funds in the manner set forth in Section 2.7(a) of the Loan Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Loan Agreement.

This Note is one of the Notes referred to in the Loan Agreement, and the holder is entitled to the benefits thereof. The Term Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Term Loan and payments with respect thereto.

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.

Delivery of an executed counterpart of a signature page of this Note by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Note.

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

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Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

E-1

	VERTEX REFINING ALABAMA LLC,
	a Delaware limited liability company

	By:
	Name:
	Title:

Senior Secured Super-Priority Debtor-In-Possession Loan and Security Agreement – Vertex Refining Alabama LLC

E-2

VERTEX ENERGY, INC. 8-K

Exhibit 10.2

EXECUTION VERSION

d a T E D

S e p t e m b e r 2 5 , 2 0 2 4

( 1 )

M A C Q U A R I E E N E R G Y N O R T H A M E R I C A T R A D I N G I N C .

( 2 )

V E R T E X R E F I N I N G A L A B A M A L L C

( 3 )

v e r t e x r e n e w a b l e s a l a b a m a l l c

( 4 )

V E R T E X E N E R G Y , I N C .

a S S U R A N C E A N D A m e n d m e n t a n d r e s t a t e m e n t a g r e e m e n t

i n r e s p e c t o f a s u p p l y a n d o f f t a k e a g r e e m e n t d a t e d a p r i l 1 , 2 0 2 2 a n d c e r t a i n o t h e r t r a n s a c t i o n d o c u m e n t s

Reed Smith llp
1 Blossom Yard

London, E1 6RS
Phone: +44 (0) 20 3116 3000
Fax: +44 (0) 20 3116 3999
DX1066 City / DX18 London

r e e d s m i t h . c o m

CONTENTS

SECTION

1	interpretation	2
2	Conditions precedent	3
3	amendment of the Transaction Documents	3
4	CONDITIONS SUBSEQUENT	4
5	Deferral and delay of enforcement; certain rights	4
6	confirmation of guaranty	5
7	confirmation of EXISTING SECURITY	5
8	Representations	5
9	continuity and RATIFICATION	6
10	MISCELLANEOUS	6
11	Governing law and jurisdiction	6

Schedule

Schedule 1	7
conditions precedent	7
Schedule 2	9
Amended and restated SUPPLY AND OFFTAKE AGREEMENT	9
Schedule 3	10
Amended and restated STORAGE FACILITIES AGREEMENT	10
Schedule 4	11
Amended and restated FEE LETTER	11
Schedule 5	12
amended and restated INDEPENDENT AMOUNT LETTER	12
Schedule 6	13
FORM OF Intermediation ORDER	13

CONTENTS PAGE 1

THIS ASSURANCE AND AMENDMENT AND RESTATEMENT AGREEMENT (this “Agreement”) is dated September 25, 2024

BETWEEN:

(1)

MACQUARIE ENERGY NORTH AMERICA TRADING INC., a Delaware corporation, located at 500 Dallas Street, Suite 3300 Houston, Texas 77002 (“ Macquarie”);

(2)

VERTEX REFINING ALABAMA LLC, a Delaware limited liability company, located at 1331 Gemini Street, Suite 250, Houston, Texas, TX 77058-2764 United States (the “Company”);

(3)

VERTEX RENEWABLES ALABAMA LLC, a Delaware limited liability company, located at 1331 Gemini Street, Suite 250, Houston, Texas, TX 77058-2764 United States (“ Vertex Renewables”); and

(4)

VERTEX ENERGY, INC., a Nevada corporation, located at 1331 Gemini Street, Suite 250, Houston, Texas, TX 77058-2764 United States (the “Parent” and together with Vertex Renewables and the Company, each individually a “Vertex Party” and collectively the “Vertex Parties”),

each referred to individually as a “Party” and collectively as the “Parties”.

RECITALS

(A)

WHEREAS, Macquarie and the Company entered into a supply and offtake agreement dated April 1, 2022 (as so amended, amended and restated, supplemented, refinanced or otherwise modified from time to time prior to the date hereof the “Existing Supply and Offtake Agreement”) and certain other Transaction Documents (as defined in the Existing Supply and Offtake Agreement (the “Existing Transaction Documents);

(B)

WHEREAS, on or around September 24, 2024, the Vertex Parties and certain of their respective affiliates filed voluntary petitions for relief commencing cases under Chapter 11 of the Bankruptcy Code captioned In re Vertex Energy, Inc. et al. (the “Chapter 11 Cases”) in the United States Bankruptcy Court for the Southern District of Texas, Houston division (such court, or another federal court exercising jurisdiction over the Chapter 11 Cases, the “Bankruptcy Court”);

(C)

WHEREAS, in connection with the Chapter 11 Cases, Macquarie and the Company wish to amend and restate the Existing Supply and Offtake Agreement and certain other Existing Transaction Documents, in their entirety, upon the terms and conditions set forth in this Agreement, which amendment and restatement shall become effective on the Effective Date (as so amended and restated, the “Supply and Offtake Agreement” and “Transaction Documents” respectively);

(D)

WHEREAS, it is the intention of the Vertex Parties to confirm that all Transaction Obligations of the Vertex Parties under the Existing Transaction Documents, as amended, amended and restated, supplemented, refinanced, or otherwise modified hereby on or as of the date hereof shall continue in effect from and after the Effective Date, subject to the terms and conditions set forth in this Agreement, including the entry by the Bankruptcy Court of the Interim Intermediation Order and the Final Intermediation Order (as such terms are defined below) within the time periods set forth herein;

(E)

WHEREAS, the Parent and Macquarie entered into a guaranty agreement dated April 1, 2022 in favour of Macquarie (the “Parent Guaranty”) and Vertex Renewables and Macquarie entered into a guaranty dated May 26, 2023 (the “Vertex Renewables Guaranty” and together with the Parent Guaranty, the “Guaranties and each a “Guaranty”), in each case, with respect to the Company's obligations under the Supply and Offtake Agreement;

(F)

WHEREAS, in connection with the amendments to be made to the Supply and Offtake Agreement and certain other Transaction Documents following the commencement of the Chapter 11 Cases, the Parent and Vertex Renewables are a party to this Agreement solely for the purpose of confirming its obligations under the Guaranty to which it is a party, which will remain in full force and effect notwithstanding the amendments made to the Supply and Offtake Agreement and such other Transaction Documents; and

(G)

NOW, THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged and confirmed), the Parties hereto agree as follows.

interpretation

1.1

Definitions

In this Agreement:

“Bankruptcy Court” has the meaning given to that term in Recital (B).

“Chapter 11 Cases” has the meaning given to that term in Recital (B).

“Delayed Remedies” has the meaning given to those terms in Section 5.1.

“Documents” and “Document” have the meaning given to those terms in Section 3.1.

“Effective Date” means the date on which the Effective Time occurs.

“Effective Time” means the time at which Macquarie confirms satisfaction with and/or waiver of all the conditions precedent set out in Section 2 (Conditions Precedent).

“Existing Supply and Offtake Agreement” has the meaning given to that term in Recital (A).

“Existing Transaction Documents” has the meaning given to that term in Recital (A).

“Guaranties” and “Guaranty” have the meaning given to those terms in Recital (E).

“Interim DIP Order” has the meaning given to that term in the Supply and Offtake Agreement.

“Interim Intermediation Order” means an interim intermediation order substantially in the form annexed hereto as Schedule 6.

“Parent Guaranty” has the meaning given to that term in Recital (E).

“Supply and Offtake Agreement” has the meaning given to that term in Recital (C).

“Transaction Documents” has the meaning given to that term in Recital (C).

“Vertex Renewables Guaranty” has the meaning given to that term in Recital (E).

1.2

Interpretation

(a)

Unless a contrary indication appears, terms defined in or construed for the purposes of the Supply and Offtake Agreement, the Interim DIP Order and the Interim Intermediation Order have the same meanings when used in this Agreement.

(b)

The principles of construction as set out in section 1.2 (Construction of Agreement) of the Supply and Offtake Agreement shall have effect as though they were set out in full in this Agreement but so that each reference in that section to “this Agreement” shall be read as a reference to this Agreement.

(c)

In this Agreement any reference to an Article, Section or Schedule is, unless the context otherwise requires, a reference to an article, section or schedule of this Agreement.

(d)

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.

1.3

Third party rights

No Person other than the Parties shall have any rights hereunder or be entitled to rely on this Agreement and all third-party beneficiary rights are hereby expressly disclaimed.

1.4

Transaction Document

Macquarie and the Company agree that this Agreement shall be a “Transaction Document” for the purposes of the Supply and Offtake Agreement.

1.5

The Guarantors

Each of the Parent and Vertex Renewables is entering into this Agreement solely for the purposes set out in Section 6 (Confirmation of Guaranty) and Section 8.1(c) (Representations).

Conditions precedent

2.1

The obligations of the Parties pursuant to this Agreement are subject to:

(a)

receipt by Macquarie (or confirmation that Macquarie has waived any such requirement) of all the documents and other items listed in Schedule 1 (Conditions Precedent), in each case in form and substance satisfactory to Macquarie;

(b)

evidence, in form and substance satisfactory to Macquarie, acting in its sole discretion (or confirmation that Macquarie has waived any such requirement) of the Interim Intermediation Order and the Interim DIP Order having been entered by the Bankruptcy Court no later than three (3) days after the date of commencement of the Chapter 11 Cases, in form and substance, with respect to the Interim Intermediation Order satisfactory to Macquarie, in its sole discretion, and, with respect to the Interim DIP Order, satisfactory to Macquarie in its reasonable discretion, and, in each case, not being subject to any stay of effectiveness;

(c)

no Event of Default having occurred and which is continuing prior to the Effective Date and no Event of Default resulting from entering into this Agreement (other than an Event of Default arising as a result of the commencement of the Chapter 11 Cases) has occurred; and

(d)

all the representations and warranties set out in Section 8 (Representations) being true and accurate in all material respects.

2.2

Macquarie shall, as soon as reasonably practicable following satisfaction or waiver of all conditions precedent, confirm to the Parties that the Effective Time has occurred. For the avoidance of doubt, if the Interim Intermediation Order is not entered within three (3) days following the Petition Date (or such other time period as may be agreed by Macquarie, in its sole discretion) (or any of the other conditions precedent set forth in Section 2.1 above are not satisfied or waived), then the amendment and restatement of the Documents shall not occur.

amendment of the Transaction Documents

3.1

Macquarie and the Company agree that, on and from the Effective Date:

(a)

the Supply and Offtake Agreement;

(b)

the Storage Facilities Agreement;

(c)

the Fee Letter; and

(d)

the Independent Amount Letter,

(together, the “Documents” and each a “Document”) (other than the signature pages and, where omitted, Exhibits and Schedules thereto) are hereby amended and restated (i) to delete the red or green stricken text (indicated textually in the same manner as the following examples: ~~stricken text~~ and ~~stricken text~~) and (ii) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the marked copy of each Document attached as a Schedule hereto. The Parties hereto acknowledge and agree that each amendment to the Documents reflected in the applicable Schedule hereto is and shall be effective as if individually specified in this Agreement (the Parties further acknowledging that amending and restating the Documents by reference to the applicable Schedule provides a convenience to the Parties to permit the amended and restated terms to be read in the context of each full Document).

3.2

On and from the Effective Date, the rights and obligations of the parties to a Document shall be governed and construed in accordance with the provisions of that Document as amended and restated by this Agreement, and all references in any of the Transaction Documents to any such Document (howsoever described) shall mean the Supply and Offtake Agreement, the Fee Letter, and the Independent Amount Letter as amended and restated hereby.

CONDITIONS SUBSEQUENT

Within thirty (30) days following the entry of:

(a)

the Interim Intermediation Order, the Company shall seek and obtain the entry of the Final Intermediation Order; and

(b)

the Interim DIP Order, the Company shall seek and obtain the entry of the Final DIP Order.

Deferral and delay of enforcement; certain rights

5.1

Delay and Deferral Period

(a)

For the period of time following the commencement of the Chapter 11 Cases through the entry of the Interim Intermediation Order (provided such Interim Intermediation Order is entered within three (3) days following the time of filing of the petition commencing the Chapter 11 Cases), and for the period of time that the Interim Intermediation Order is in full force and effect (but not to exceed thirty (30) days after the Petition Date (as defined in the Interim DIP Order)), the “Delay and Deferral Period”), Macquarie expressly agrees to defer and delay (but do not waive) the utilization or enforcement of any contractual right to: liquidate, terminate or accelerate a commodity contract or forward contract as such terms are used in section 556 of the Bankruptcy Code; liquidate, terminate or accelerate a swap agreement as such terms are used in section 560 of the Bankruptcy Code; and/or terminate, liquidate, accelerate or offset under a master netting agreement as such terms are used in section 561 of the Bankruptcy Code; liquidate, terminate or accelerate any Transaction Document (or any transaction contemplated thereby); each because of a condition of the kind specified in section 365(e)(1) of the Bankruptcy Code (the “Delayed Remedies”). For the avoidance of doubt and without limitation, the Delayed Remedies shall apply to the following types of provisions: cross-default, cross acceleration, adequate assurance, ratings triggers, bankruptcy default, and no contemplation of bankruptcy representations.

(b)

If the Final Intermediation Order is entered within the Delay and Deferral Period, Macquarie expressly agrees to waive any further utilization and enforcement of the Delayed Remedies during the continuation of the Chapter 11 Cases. For the avoidance of doubt, this waiver shall apply only in connection with the Chapter 11 Cases and only with respect to rights and remedies that could otherwise have been exercised based on the commencement of the Chapter 11 Cases and shall not apply to any exercise of any such rights or remedies in, based on or with respect to any other or future bankruptcy case or any other event.

(c)

Nothing in Section 5.1(a) or (b) shall be construed to suggest that Macquarie shall suspend and/or temporarily waive its right to exercise any remedies arising from a Default or Event of Default (other than the commencement of the Chapter 11 Cases) occurring under the Transaction Documents after the commencement of the Chapter 11 Cases in accordance with the terms of the Transaction Documents, and the Interim and Final Intermediation Orders.

5.2

Deferred Payment

Notwithstanding anything to the contrary in the Supply and Offtake Agreement, any payments due from one Party to another Party (i) in respect of which an invoice was issued prior to the Petition Date but which is not yet paid or due and payable as of the Petition Date; or (ii) become due and payable during the period from (and including) the Petition Date to (and including) the date on which the Interim Intermediation Order is granted in accordance with the terms of the Supply and Offtake Agreement (including, without limitation, any such payments arising in connection with (a) a sale of Crude Oil by Macquarie to the Company pursuant to section 5.4 of the Supply and Offtake Agreement; (b) a purchase of Product by Macquarie from the Company pursuant to section 8.1(a) of the Supply and Offtake Agreement; or (c) a sale of Product by Macquarie to the Company pursuant to section 8.2(b) of the Supply and Offtake Agreement) shall be subject to payment netting in accordance with section 11.5 of the Supply and Offtake Agreement with the resulting net payment obligation being deferred until the date falling one (1) Business Day after the Effective Date. If the Interim Intermediation Order is not entered within three (3) days of the Petition Date (or such other time period as may be agreed by Macquarie, in its sole discretion), then any such deferred payments shall form part of the Termination Amount or Settlement Amount calculated in accordance with the Supply and Offtake Agreement.

confirmation of guaranty

6.1

By executing this Agreement, each of the Parent and Vertex Renewables:

(a)

consents to the Company entering into this Agreement; and

(b)

confirms and restates that its obligations under the Guaranty to which it is a party shall continue in full force and effect as a continuing security for the payment and discharge of the Guaranteed Obligations (as defined in the Guaranty to which it is a party), including without limitation, all amounts owing by the Company to Macquarie in relation to the Transaction Documents and the Transaction Obligations.

6.2

Each of the Parent and the Company confirms and restates that its obligations under the Vertex Renewables SOA Guaranty to which it is a party shall continue in full force and effect as a continuing security for the payment and discharge of any actual or contingent Guaranteed Obligations (as defined in the Vertex Renewables SOA Guaranty to which it is a party), including without limitation, all amounts owing by the Company to Macquarie in relation to the Transaction Obligations to the extent that such Guaranteed Obligations relate to rights, remedies, obligations or liabilities that have accrued prior to May 23, 2024 or which are expressed to survive termination of any of the Transaction Documents.

confirmation of EXISTING SECURITY

The Company confirms that each of the existing Lien Documents that it has executed in favour of Macquarie shall continue in full force and effect as a continuing security for the obligations of the Company pursuant to the Supply and Offtake Agreement and the other Transaction Documents.

Representations

8.1

Without prejudice to the rights of Macquarie which have arisen on or before the Effective Date:

(a)

the Company and Macquarie each repeat the representations and warranties set out in section 19.1 (Mutual Representations) of the Supply and Offtake Agreement except that the Company shall not be required to repeat any representations that it is not able to give as a result of, or in connection with, the commencement of the Chapter 11 Cases;

(b)

the Company repeats the representations and warranties set out in section 19.2 (Company's Representations) of the Supply and Offtake Agreement other than any representations that it is not able to repeat as a result of, or in connection with, the commencement of the Chapter 11 Cases; and

(c)

the Parent and Vertex Renewables repeats the representations and warranties set out in section 5.1 (Representations and Warranties) of the Guaranty to which it is a party,

in each case on the date of this Agreement and the Effective Date and by reference to the facts and circumstances then existing.

continuity and RATIFICATION

9.1

The provisions of the Transaction Documents shall, save as amended by this Agreement, continue in full force and effect.

9.2

The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of Macquarie or any of its assignees under the Supply and Offtake Agreement or any other Transaction Document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.

MISCELLANEOUS

10.1

Further assurance

The Company agrees to take all further actions and execute all further documents (and to procure the doing of all acts and things and the execution of all documents) as Macquarie may from time to time reasonably request to carry out the transactions contemplated by this Agreement and all other agreements executed and delivered in connection herewith.

10.2

Incorporation of Terms

The provisions of section 22.5 (Indemnification; Expenses), section 25 (Confidentiality) and sections 27 (Assignment) to 32 (Miscellaneous) (inclusive) of the Supply and Offtake Agreement shall apply to this Agreement as if set out in full in this Agreement and as if references in those sections to “this Agreement”, “either Party” and “neither Party” are references to this Agreement, “each Party” and “no Party”, respectively.

Governing law and jurisdiction

11.1

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.

11.2

EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT, (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 28 OF THE SUPPLY AND OFFTAKE AGREEMENT. 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.

11.3

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.

[Remainder of page intentionally left blank.]

Schedule 1

conditions precedent

Vertex Parties

(a)

A copy of the Organization Documents of each Vertex Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority).

(b)

A copy of a resolution of the manager or board of directors, as applicable, of each Vertex Party:

(i)

approving the terms of, and the transactions contemplated by, the Agreement and the ISDA Amendment Agreement (as defined below);

(ii)

authorizing a specified person or persons to execute the Agreement and the ISDA Amendment Agreement on its behalf; and

(iii)

authorizing a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Agreement and the ISDA Amendment Agreement.

(c)

A good standing certificate for each Vertex Party from (A) the relevant state of formation and (B) from any state where it is, or is required to be, qualified to do business to the extent failure to so qualified could reasonably be expected to result in a Material Adverse Change.

(d)

A specimen of the signature of each person authorized by the resolution referred to in paragraph (a) above in relation to this Agreement.

(e)

A certificate addressed to Macquarie of an authorized signatory of each Vertex Party certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

DOCUMENTS

(a)

This Agreement duly executed by the Parties hereto.

(b)

An Amendment Agreement in respect of the ISDA 2002 Master Agreement (including the Schedule thereof) entered into between Macquarie Bank Limited and the Company as of April 1, 2022 (the “ISDA Amendment Agreement”) duly executed by the parties thereto.

OTHER DOCUMENTS AND EVIDENCE

(a)

The debtor-in-possession financing facility in a form and substance reasonably satisfactory to Macquarie executed by the parties thereto (the “DIP Credit Agreement”).

(b)

Evidence satisfactory to Macquarie in its sole discretion that either:

(i)

none of (A) the Shell Crude Supply Agreement; (B) the Tripartite Crude Supply Agreement; or (C) any Tripartite Product Offtake Agreement have been terminated and each such agreement shall remain in full force and effect as of the Effective Date and all such amendments as may be required to be made to such agreements by the Permitted Crude Supplier or the relevant Third Party Product Offtake Agreement in connection with the Chapter 11 Cases have been made in form and substance satisfactory to Macquarie; and/or

(ii)

if the Permitted Supplier elects to terminate the Shell Crude Supply Agreement on or prior to the Effective Date that there are alternative crude supply arrangements (whether spot or term arrangements) contemplated that are sufficient to meet the Crude Oil source requirements of the Refinery (including, without limitation, a list of Third Party Suppliers with whom the Company may request that Macquarie enter into a Macquarie Crude Procurement Contract).

(c)

Evidence satisfactory to Macquarie that the Uniform Commercial Code search results show only those liens as are reasonably acceptable to Macquarie.

(d)

Evidence satisfactory to Macquarie that all reasonable and documented out-of-pocket expenses incurred by Macquarie in connection with this Agreement have been or will be paid by the Company on or prior to the Effective Date.

(e)

Evidence satisfactory to Macquarie in its sole discretion that the Independent Amount Adjustment (if any) as of the Effective Date will be transferred in accordance with the requirements of the Independent Amount Letter.

(f)

The Company has delivered a cash flow forecast (in form and substance acceptable to Macquarie) showing maintenance and ongoing compliance with the Minimum Liquidity Requirement (which, for these purposes, shall be calculated in accordance with the methodology specified in the Supply and Offtake Agreement as if the Effective Date had occurred) throughout the period from (and including) the Effective Date until the last day of the Term.

(g)

The restructuring support agreement (in form and substance satisfactory to Macquarie in its reasonable discretion) duly executed by the parties thereto (including, without limitation, all term sheets attached thereto and commitment letters entered into in connection therewith, the “Restructuring Support Agreement”), is in full force and effect as of the date hereof.

(h)

Evidence satisfactory to Macquarie in its sole discretion that all relevant bankruptcy court confirmations, approvals and orders (including but not limited to the Interim DIP Order and the Interim Intermediation Order) required in order for Macquarie to make an extension of credit and a “financial accommodation” to or for the benefit of the Company under the Supply and Offtake Agreement within the meaning of Section 365(c)(2) and 365(e)(2) of the Bankruptcy Code or enter into transactions under the MBL Secured ISDA, in each case, after the Petition Date have been obtained and continue to be in full force and effect as of the Effective Date.

(i)

Macquarie shall have been granted a perfected junior lien on the Shared Collateral constituting DIP Priority Collateral (as defined in the Interim DIP Order) with the ranking and order of priority of security and claims set out in Exhibit 2 (Relative Lien Priorities on Collateral) and Exhibit 3 (Relative Claim Priorities) to the Interim Intermediation Order.

(j)

Macquarie Bank Limited (in its capacity as hedge provider) shall have been granted (x) a perfected senior lien on the Shared Collateral constituting DIP Priority Collateral and the DIP Exclusive Collateral (each, as defined in the Interim DIP Order); and (y) a lien on the Shared Collateral constituting Business Interruption Proceeds, in each case with the ranking and order of priority of security and claims set out in Exhibit 2 (Relative Lien Priorities on Collateral) and Exhibit 3 (Relative Claim Priorities) to the Interim Intermediation Order.

Schedule 2

Amended and restated SUPPLY AND OFFTAKE AGREEMENT

EXECUTION VERSION

O R I G I N A L L Y d a T E D a p r i l 1 , 2 0 2 2 a s M O S T R E C E N T L Y a m e n d e d ~~o n M a y 2 6 , 2 0 2 3~~ a n d r e s t a t e d w i t h e f f e c t f r o m ( a n d i n c l u d i n g ) t h e R e s t r u c t u r i n g E f f e c t i v e D a t e

( 1 )

M A C Q U A R I E E N E R G Y N O R T H A M E R I C A T R A D I N G I N C .

( 2 )

V e r t e x R e f i n i n g A l a b a m a L L C

A M E N D E D A N D R E S T A T E D S U P P L Y A N D O F F T A K E A G R E E M E N T

Reed Smith llp
1 Blossom Yard

London, E1 6RS
Phone: +44 (0) 20 3116 3000
Fax: +44 (0) 20 3116 3999
DX1066 City / DX18 London

r e e d s m i t h . c o m

CONTENTS

clause

1	DEFINITIONS AND CONSTRUCTION	32
2	CONDITIONS TO COMMENCEMENT	2529
3	TERM OF AGREEMENT	3035
4	COMMENCEMENT DATE TRANSFER	3037
5	PURCHASE AND SALE OF CRUDE OIL	3137
6	PURCHASE PRICE FOR CRUDE OIL	3850
7	TARGET INVENTORY LEVELS AND DIFFERENTIAL ADJUSTMENT	3951
8	PURCHASE AND DELIVERY OF PRODUCTS	4254
9	ANCILLARY COSTS and MONTH END INVENTORY	4661
10	Pledge over MacquArie’s Property	4862
11	PAYMENT PROVISIONS	4862
12	Eligible Hydrocarbon Inventory	5065
13	INDEPENDENT INSPECTORS; STANDARDS OF MEASUREMENT	5165
14	FINANCIAL INFORMATION; CREDIT SUPPORT	5165
15	REFINERY TURNAROUND, MAINTENANCE AND CLOSURE	5469
16	TAXES	5671
17	INSURANCE	5772
18	FORCE MAJEURE	5873
19	REPRESENTATIONS, WARRANTIES AND COVENANTS	6075
20	DEFAULT AND TERMINATION	6581
21	SETTLEMENT AT TERMINATION	7795
22	INDEMNIFICATION; EXPENSES	8098
23	LIMITATION ON DAMAGES	8199
24	RECORDS AND INSPECTION THEREOF	81100
25	CONFIDENTIALITY	82100
26	GOVERNING LAW	82101
27	ASSIGNMENT	83101
28	NOTICES	83101
29	NO WAIVER, CUMULATIVE REMEDIES	83101
30	NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES	83102
31	Amendments and Modifications	84102
32	MISCELLANEOUS	84102

CONTENTS PAGE 1

SCHEDULES

SCHEDULE	DESCRIPTION

SCHEDULE A	Company Storage Locations	85i
SCHEDULE B	Products and Product Specifications	86ii
SCHEDULE C	Monthly True-Up Amounts	87iii
SCHEDULE D	maximum and Minimum Inventory Levels	91IV
SCHEDULE E	Included Tanks	92v
SCHEDULE F	FORM OF INVENTORY REPORTS	93Vii
SCHEDULE G	Initial Inventory Targets	xiVIII
SCHEDULE H	current month pricing benchmarks	~~xii~~IX
SCHEDULE I	SCHEDULING AND COMMUNICATIONS PROTOCOL	~~xiii~~x
SCHEDULE J	~~[RESERVED]~~ ~~xvi~~Crude GTCs and MENAT Required Terms	xIII
SCHEDULE K	NOTICES	~~xvii~~xIV
SCHEDULE L	FORM OF TRANSACTION SUPPLEMENT	~~xviii~~xV
SCHEDULE M	FORM OF STEP-OUT INVENTORY SALES AGREEMENT	~~xix~~xVI
SCHEDULE N	Form of REFINERY PRODUCT VOLUME REPORT	xx7
SCHEDULE O	Form of Included Storage Locations	~~xxi~~8
SCHEDULE P	Forecast of the Target Month End Crude Inventory Volume and Target Month End Product Volume	~~xxii~~9
SCHEDULE Q	MONTHLY CRUDE FORECAST	~~xxiii~~10
SCHEDULE R	WEEKLY Crude PROJECTION	~~xxiv~~11
SCHEDULE S	~~WEEKLY PRODUCT PROJECTION~~ ~~xxv~~Weekly Product Projection	12
SCHEDULE T	MONTHLY PRODUCT ESTIMATE	~~xxvi~~13
SCHEDULE U	Form of Company Due Amount Inventory Swap Notice	~~xxvii~~14
SCHEDULE V	Third Party Supplier List and Third Party OfftakeR lIST	16
SCHEDULE VW	~~FORM OF INVENTORY SWAP ELECTION~~ ~~xxix~~Relevant Jurisdictions	18

CONTENTS PAGE 2

THIS AMENDED AND RESTATED SUPPLY AND OFFTAKE AGREEMENT (this “Agreement”) is dated April 1, 2022 (the “Effective Date”) and is amended and restated with effect from (and including) the Restructuring Effective Date (as defined below),

BETWEEN:

(1)

Macquarie Energy North America Trading Inc. (“Macquarie”), a Delaware corporation, located at 500 Dallas Street, Suite 3300 Houston, Texas 77002; and

(2)

Vertex Refining Alabama LLC (the “Company”), a Delaware limited liability company, located at 1331 Gemini St Ste 250, Houston, Texas, TX 77058-2764 United States

each referred to individually as a “Party” or collectively as the “Parties”.

recitals

(A) WHEREAS, the Company owns and operates a crude oil refinery located in Mobile, Alabama (the “Refinery”) for the processing and refining of Crude Oil (as defined below) and other feedstocks and the recovery therefrom of refined products;

(B) WHEREAS, the Company desires Macquarie to sell Crude Oil to the Company for use at the Refinery and for Macquarie to purchase all Products (as defined below) upon and subject to the terms and conditions set forth below;

(C) WHEREAS, it is contemplated that, Macquarie shall (a) on the Commencement Date (as defined below), purchase from the Company all Crude Oil and Products then being stored at the Included Storage Locations (as defined below); (b) purchase from the Company certain Products produced by the Refinery during the term of this Agreement; (c) sell and deliver Crude Oil and Products to the Company and certain Customers of the Company pursuant to the terms of this Agreement; (d) provide certain other financial accommodations to the Company based on Crude Oil and Products being stored at Company Storage Locations (as defined below) from time to time and otherwise being purchased and sold pursuant to the terms of this Agreement.

(D) WHEREAS, it is contemplated that during the Term of this Agreement, that (i) Macquarie will have title and risk of loss of Crude Oil and Products while they are located in Crude Storage Tanks and Included Storage Locations, respectively, and (ii) Company will have title and risk of loss of Crude Oil and Products while they are not in Crude Storage Tanks or Included Storage Locations;

(E) WHEREAS, it is contemplated that upon the termination of this Agreement, Macquarie shall transfer to the Company, through novations or reassignments, various contractual rights pursuant to the termination provisions provided herein, and is expected ~~(but is not required)~~ to sell to the Company all of Macquarie’s Crude Oil and Products inventory held in Included Storage Locations, in accordance with the Step Out Inventory Sales Agreement (as defined below); ~~and~~

(F) WHEREAS, each of Vertex Renewables and the Parent (each, as defined below) shall derive substantial benefit from the transactions contemplated hereby and by the other Transaction Documents, and have each agreed to severally guarantee all obligations of the Company hereunder and under the other Transaction Documents pursuant to the Guaranty to which it is a party.;

(G) WHEREAS, on or around September 24, 2024, each of the Vertex Parties filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code (the “Chapter 11 Cases”) with the United States Bankruptcy Court for the Southern District of Texas, Houston division (such court, or another federal court exercising jurisdiction over the Chapter 11 Cases, the “Bankruptcy Court”). The Vertex Parties are continuing in the possession of their assets and continuing to operate their respective businesses and manage their respective properties as debtors and debtors in possession under Section 1107(a) and 1108 of the Bankruptcy Code;

(H) WHEREAS, on the Petition Date, the Vertex Parties filed a Disclosure Statement (as defined below) and an Acceptable Plan of Reorganization (as defined below) with the Bankruptcy Court;

(I) WHEREAS, in connection with the Chapter 11 Cases, Macquarie and the Company wish to amend and restate this Agreement, in its entirety, upon the terms and conditions set forth in this Agreement, which amendment and restatement shall become effective as of the Restructuring Effective Date;

(J) WHEREAS, it is the intention of the Company to confirm that all Transaction Obligations of the Company to Macquarie under the Transaction Documents, as amended, amended and restated, supplemented, refinance or otherwise modified hereby on or as of the date hereof shall continue in effect from and after the Restructuring Effective Date; and

(K) ~~(G)~~ 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:

DEFINITIONS AND CONSTRUCTION

1.1

Definitions.

For purposes of this Agreement, including the foregoing recitals, the following terms shall have the meanings indicated below:

“Acceptable Plan or Sale” means a plan of reorganization or sale under Section 363 of the Bankruptcy Code reasonably acceptable to Macquarie; provided that a sale or plan of reorganization will be deemed to be acceptable to Macquarie if (1) it provides for (x) a sale of all Crude Oil and Product owned by Macquarie pursuant to the Transaction Documents at a price consistent with the then applicable Current Month Pricing Benchmark; (y) payment in full in cash of all amounts owed to Macquarie under the Transaction Documents or cash collateralization of all actual or contingent obligations (other than inchoate indemnity obligations) owed to Macquarie that may arise on or after the Early Termination Date; from such sale proceeds or otherwise; and (z) with respect to a plan of reorganization, such plan contains releases in favor of Macquarie similar in all material respects to such releases under the plan contemplated by the RSA (in the form approved by Macquarie, acting reasonably as of the Petition Date); provided that any delay in effecting the foregoing matters set out in this sub-paragraph (1) after the effective date of a plan of reorganization or sale under Section 363 of the Bankruptcy Code as a result of an extension to the Term by a period in length equal to a Transitional Support Period (if any) that Macquarie has agreed to provide in accordance with the requirements of Section 3.1(c) below shall be acceptable to Macquarie; and (2) would not require Macquarie to breach Applicable Law (including as relates to Sanctions Law) or Macquarie’s Policies and Procedures (including, without limitation, those policies and procedures relating to “know your customer” requirements).

“Accepted Industry Practice” means those practices, methods, specifications and standards of safety and performance, as the same may be changed from time to time, as are commonly used in the operation and maintenance of refineries similar to the Refinery. The term “Accepted Industry Practice” contemplates the exercise of that degree of skill, care, diligence, prudence and foresight that would reasonably and ordinarily be expected under similar circumstances in the refining industry in the same type of undertaking under the same or similar circumstances but does not necessarily mean one particular practice, method, specification or standard in all cases and is instead intended to encompass a broad range of acceptable practices, methods and standards.

“Acknowledgment of Title” means, in respect of each Included Barge and the relevant Barge Operator and Barge Owner, an acknowledgment from such Barge Operator and such Barge Owner of Macquarie’s title to any such Crude Oil or Product transported thereon, in each case, in form and substance satisfactory to Macquarie.

“Additional Financing Agreement” has the meaning specified in Section 19.3(k).

“Affected Obligations” has the meaning specified in Section 18.3.

“Affected Party” has the meaning specified in Section 18.1.

“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.

“Aggregate Product Purchase Amounts” has the meaning specified in Section 8.9(b)(i).

“Aggregate Product Sale Amount” has the meaning specified in Section 8.9(a)(i).

“Agreement” has the meaning specified in the introductory paragraph of this Agreement.

“Amended Product Purchase Proposal” has the meaning specified in Section 8.1(b)(v)(B).

“Amended Transaction Supplement” has the meaning specified in Section 5.2(d)(vi)(B).

“Ancillary Costs” means, to the extent reasonably demonstrated by Macquarie by trade ticket, invoice or other supporting documentation and without duplication, (i) any amounts payable by Macquarie under the Third Party Storage Agreements, (ii) all transportation costs, liabilities, and risks associated with transportation to a Crude Intake Point (including, without limitation, pipeline, truck, or freight costs, port costs, terminaling costs, demurrage, bunkers, losses, inspections, liabilities and risks associated with operations at a third party terminal, extra tugs, pipeline scheduling issues or pro-ration issues, vessel delays, and Force Majeure events) in each case pursuant to ~~the~~a Tripartite Crude Supply Agreement, and (iii) all freight, pipeline, transportation, storage, tariffs and other out of pocket 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 Macquarie Crude Procurement Contracts and regardless of the point at which or terms upon which delivery is made under any such Macquarie Crude Procurement Contract), including, fees and expenses, any cost relating to insurance taken out by Macquarie, broker’s and agent’s 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, 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 Macquarie. Ancillary Costs will also include, without duplication, out of pocket expenses associated with the cost of operation of transportation, storage or other facilities assigned hereunder to Macquarie by the Company, reasonable and documented third party out of pocket legal fees, tax advisory fees, and out of pocket expenses incurred by Macquarie in connection with any of the Transaction Documents and any amounts payable by Macquarie pursuant to any indemnity granted in favour of the Permitted Supplier, a Third Party Supplier in connection with a Macquarie Crude Procurement Contract or a third party product offtaker under and in accordance with the terms of ~~the~~a Tripartite Crude Supply Agreement, the Convenience Exchange Agreement and/or an Intermediated Product Offtake Contract. Notwithstanding the foregoing, the following shall not be considered Ancillary Costs: (i) Macquarie’s hedging costs in connection with this Agreement or any of the transactions contemplated by this Agreement (but such exclusion shall not change or be deemed to change the manner in which Related Hedges are addressed under Articles 20 and 21 below), (ii) any costs, fees, expenses, liabilities or risks, in each case, to the extent that Macquarie has otherwise been compensated therefor under this Agreement, any of the other Transaction Documents or any other agreement in any payment made hereunder or thereunder, including pursuant to any true-up, adjustment, or netting mechanism provided hereunder or thereunder, but only to the extent so compensated, or (iii) any costs, fees, expenses, liabilities or risks which Macquarie has agreed, in accordance with the express terms hereof or any other Transaction Document or agreement, shall be solely for Macquarie’s own account. In no event shall “Ancillary Costs” include (i) any costs or expenses that are not paid or payable out of pocket by Macquarie to a third party, (ii) any overhead allocations or other internal costs or amounts which are not due to third parties, (iii) any taxes; and (iv) except as otherwise provided in Section 13.2, any costs of Macquarie’s Inspector under or in respect of the Transaction Documents.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, as amended, and all other Applicable Laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which the Company, Vertex Renewables, the Parent or any of Subsidiary or Affiliate thereof is located or is doing business.

“Anti-Money Laundering Laws” means the Applicable Laws, statutes, regulations or rules in any jurisdiction in which the Company, Vertex Renewables, the Parent, any Affiliate or Subsidiary thereof is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including, but not limited to, the Bank Secrecy Act (31 U.S.C. § 5311 et seq.) and the USA Patriot Act.

“Applicable Law” means (i) any law, statute, regulation, code, ordinance, license, decision, order, writ, injunction, decision, directive, judgment, policy, decree and any judicial or administrative interpretations thereof, (ii) any agreement, concession or arrangement with any Governmental Authority and (iii) any license, permit or compliance requirement, including Environmental Law, in each case as may be applicable to either Party or the subject matter of this Agreement.

“Approved Bankruptcy Court Order” shall mean:

(a)

the Intermediation Orders, as each such order is amended and in effect from time to time in accordance with this Agreement; and

(b)

any other order entered by the Bankruptcy Court directly regarding, relating to or impacting:

(i)

any rights or remedies of Macquarie;

(ii)

the Transaction Documents (including Macquarie’s obligations thereunder);

(iii)

(A) the Credit Support, Independent Amount, Macquarie’s Property or any Lien on the foregoing, or (B) any Intermediation Superpriority Claims (as defined in the Intermediation Orders), in each case, including, without limitation, any sale or other disposition of the foregoing or the priority of any such Liens or Intermediation Superpriority Claims (as defined in the Intermediation Orders);

(iv)

use of cash collateral or Independent Amount;

(v)

adequate protection or otherwise relating to this Agreement and the Transaction Documents;

(vi)

an Acceptable Plan or Sale; or

(vii)

the Orders (other than, the Intermediation Orders, which for the avoidance of doubt are addressed by clause (a) of this definition),

in each case, that (x) are in form and substance reasonably acceptable to Macquarie, (y) have not been vacated, reversed or stayed and (z) have not been amended or modified except in a manner reasonably acceptable to Macquarie.

“Assurance Agreement” means the Assurance and Amendment and Restatement Agreement entered into between Macquarie and the Vertex Parties on or around September 24, 2024.

“Authorization” means an authorization, consent, approval, resolution, license, exemption, filing, notarization, permit, permission or registration.

“Authorized Representatives” means the list of individuals authorized by each Party to agree amendments to an Operational Schedule by an exchange of e-mails, as such list may be amended, modified, updated or varied from time to time.

“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 as a group, (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 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) 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 sixty (60) days or (x) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing events.

“Bankruptcy Code” means Title 11, U.S. Code.

“Bankruptcy Court” has the meaning given to such term in the Recitals.

“Bankruptcy Law” means the Bankruptcy Code, as amended from time to time, or any similar federal or state law for the relief of debtors.

“Bareboat Charter” means, in respect of each Included Barge, the relevant bareboat charter entered into between Company and the relevant Barge Owner in respect of that Included Barge.

“Barge Inclusion Date” has the meaning specified in Section 2.5(d).

“Barge Operator” means, in respect of an Included Barge, each operator of such Included Barge, as specified in the relevant Sub-Bareboat Charter relating to that Included Barge.

“Barge Owner” means, in respect of an Included Barge, each owner of such Included Barge, as specified in the relevant Bareboat Charter relating to that Included Barge.

“Barrel” means forty-two (42) net U.S. gallons, measured at 60° F.

“Base Agreements” means (a) the BWC Agreements (but only from (and including) the relevant BWC Inclusion Date); (b) the Center Point Agreements (but only from (and including) the relevant Center Point Inclusion Date); (bc) the Plains Agreements; (cd) any agreements hereafter entered into between the Company and any third party pursuant to which the Company acquires any rights to use barges, storage tanks or pipelines that the Company elects to be treated as, or that are, Crude Storage Tanks, Included Crude Pipelines, Included Product Pipelines, Included Barges, the Included Product Tanks or Company Storage Locations, and (de) any agreement entered into by Company with Parent or any of Parent’s Subsidiaries, relating to the Refinery and/or the operation or maintenance of the Refinery, including any related agreements related to Crude Oil and Products in connection with the Refinery, provided, however, that the Vertex Renewables SOA and the Vertex Renewables Transaction Documents entered into in connection therewith shall not constitute “Base Agreements” for the purposes of this Agreement.

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition.

“Best Available Inventory Data” means the daily inventory reports produced by the Company or third parties in respect of the Crude Storage Tanks, Included Product Tanks, Included Crude Pipelines, Included Product Pipelines, Included Barges, and Company Storage Locations, in the form specified in Schedule F.

“Board of Directors” means: (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; (2) with respect to a partnership, the board of directors or board of managers of the general partner of the partnership or, if such general partner is itself a limited partnership, then the board of directors or board of managers of its general partner; (3) with respect to a limited liability company, the board of managers or directors, the managing member or members or any controlling committee of managing members thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

“Business Day” means any day that is not a Saturday, Sunday, or Bank Holiday.

“BWC Agreements” means, with respect to each of the BWC Blakeley Island Terminal and the BWC Chickasaw Terminal, as applicable:

(a) the relevant BWC Terminalling Agreement;

(b) the relevant BWC Storage Rights Agreement; and

“BWC Blakeley Island Terminal” means the crude oil and refined product storage and terminalling facilities owned and operated by BWC Alabama LLC and located at 1437 Cochrane Causeway, Mobile, Alabama, 36602.

“BWC Chickasaw Terminal” means the crude oil and refined product storage and terminalling facilities owned and operated by BWC Alabama LLC and located at 500 Viaduct Road, Chickasaw, Alabama, 36611.

“BWC Consent Letter” means, with respect to the BWC Blakeley Island Terminal or the BWC Chickasaw Terminal, as applicable, the “Consent to Storage and Usage Agreement” entered into between the relevant BWC Operator, Macquarie and the Company on or prior to the relevant BWC Inclusion Date.

“BWC Inclusion Date” means, with respect to the BWC Blakeley Island Terminal or the BWC Chickasaw Terminal, as applicable, the first date on which any tank located at the relevant BWC Storage Facilities is specified as an “Included Product Tank” in Schedule E.

“BWC Operator” means, with respect to the BWC Blakeley Island Terminal or the BWC Chickasaw Terminal, as applicable, BWC Terminals LLC, BWC Alabama LLC, or such other successor or assignee that operates the relevant BWC Storage Facilities.

“BWC Storage Facilities” has the meaning, with respect to the BWC Blakeley Island Terminal or the BWC Chickasaw Terminal, as applicable, given to such term in the relevant BWC Storage Rights Agreement.

“BWC Storage Rights Agreement” means (1) with respect to the BWC Blakeley Island Terminal, the BWC Storage Rights Agreement for the storage rights at the BWC Blakeley Island Terminal; and (2) with respect to the BWC Chickasaw Terminal, the BWC Storage Rights Agreement for the storage rights at BWC Chickasaw Terminal, in each case entered into between the Company and Macquarie on or prior to the relevant BWC Inclusion Date.

“BWC Terminalling Agreements” means, with respect to the BWC Blakeley Island Terminal or the BWC Chickasaw Terminal, as applicable, the “Terminalling Agreements” as such term is defined in the relevant BWC Storage Rights Agreement.

“Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“Carve Out” has the meaning given to that term in the Interim DIP Order.

“Cash Equivalents” means(a) securities issued or directly and guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than two (2) years from the date of acquisition; (b) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one (1) calendar year from the date of acquisition and having one of the two highest ratings from either Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., or Moody’s Investors Service, Inc.; (c) certificates of deposit, denominated solely in U.S. Dollars, maturing within two years after the date of acquisition, issued by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia or that is a U.S. subsidiary of a foreign commercial bank; in each of the foregoing cases, solely to the extent that: (i) such commercial bank’s short-term commercial paper is rated at least A-1 or the equivalent by Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc. (any such commercial bank, an “Approved Bank”); or (ii) the par amount of all certificates of deposit acquired from such commercial bank are fully insured by the Federal Deposit Insurance Corporation; or (d) commercial paper issued by any Approved Bank (or by the parent company thereof), in each case maturing not more than twelve months after the date of the acquisition thereof.

“Cash Management Order” means that certain order in the Chapter 11 Cases relating to or authorizing, among other things, the continuation of certain cash management services to the Debtors on an emergency, interim or final basis pursuant to Section 364 of the Bankruptcy Code as may be issued or entered by the Bankruptcy Court in the Bankruptcy Cases.

“Cashflow Forecast” has the meaning specified in Section 14.2(i).

“CDA Swap Delivery Date” has the meaning specified in Section 20.6(a)(ii)(A).

“CDA Swap Pricing Date” has the meaning specified in Section 20.6(a)(ii)(B).

“Center Point Agreements” means, with respect to each of the Center Point Blakeley Island Terminal and the Center Point Chickasaw Terminal, as applicable:

(a)

the relevant Center Point Terminalling Agreement;

(b)

the relevant Center Point Storage Rights Agreement; and

(c)

the relevant Center Point Consent Letter.

“Center Point Blakeley Island Terminal” means the crude oil and refined product storage and terminalling facilities owned and operated by Center Point Terminal Blakeley Island LLC and located at 1257 Cochrane Causeway, Mobile, Alabama, 36610.

“Center Point Chickasaw Terminal” means the crude oil and refined product storage and terminalling facilities owned and operated by Center Point Terminal Chickasaw and located at 200 Viaduct Road North, Chickasaw, Alabama, 36611.

“Center Point Consent Letter” means, with respect to each of the Center Point Blakeley Island Terminal and the Center Point Chickasaw Terminal, as applicable, the “Consent to Storage and Usage Agreement” ~~(in form and substance satisfactory to Macquarie)~~ entered into between the Center Point Operator, Macquarie and the Company on or prior to the relevant Center Point Inclusion Date.

“Center Point Inclusion Date” means, with respect to each of the Center Point Blakeley Island Terminal and the Center Point Chickasaw Terminal, as applicable, the first date on which any tank located at the Center Point Storage Facilities is specified as an “Included Product Tank” in ~~Schedule E~~Schedule E.

“Center Point Operator” “ means, with respect to each of the Center Point ~~Terminals~~Blakeley Island Terminal and the Center Point Chickasaw Terminal, as applicable, Center Point Terminal Chickasaw, LLC, Center Point Blakeley Island, LLC, or ~~such~~any other successor that operates the relevant Center Point Storage Facilities.

“Center Point Storage Facilities” has the meaning, with respect to each of the Center Point Blakeley Island Terminal and the Center Point Chickasaw Terminal, as applicable, given to that term in the relevant Center Point Storage Rights Agreement.

“Center Point Storage Rights Agreement” ~~means the sub-lease agreement~~” means (1) with respect to the Center Point Blakeley Island Terminal, the Center Point Storage Rights Agreement for the storage rights at Center Point Blakeley Island Terminal; and (2) with respect to the Center Point Chickasaw Terminal, the Center Point Storage Rights Agreement for the storage rights at Center Point Chickasaw Terminal, in each case entered into between the Company and Macquarie ~~in respect of tank 3 at the Center Point Storage Facilities on or prior to the Center Point Inclusion Date~~.

“Center Point Terminalling Agreement” means ~~the service agreement dated as of January 30, 2023 between~~, with respect to each of the Center Point Blakeley Island ~~Operator and the Company, as amended on March 23, 2023 and as may be further amended from time to time.~~Terminal and the Center Point Chickasaw Terminal, as applicable, the “Terminalling Agreements” as such term is defined in the relevant Center Point Storage Rights Agreement.

“Change in Law” means, with respect to a Party, an enactment of any new Applicable Law, a modification or change in the interpretation or application of any existing Applicable Law (in each case, which is generally settled or accepted), the imposition of a requirement for an Authorization and/or a change in the terms and conditions attached to an Authorization, in each case which:

(a)

was not reasonably foreseeable as of the date of this Agreement;

(b)

is not a response by a Governmental Authority with competent jurisdiction to such Party’s breach, violation or other non-compliance with the terms of an Applicable Law or Authorization.

“Change of Control” means an event or series of events by which:

(a)

the Parent ceases to be the Beneficial Owner, directly or indirectly, of 100% of the Capital Stock of the Company;

(b)

any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the Beneficial Owner, directly or indirectly, of 50% or more of the Capital Stock of the Company or the Parent, entitled to vote for members of the Board of Directors or equivalent governing body of the Company or the Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(c)

during any period of 12 consecutive months, a majority of the members of the Board of Directors or other equivalent governing body of the Company or the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.;

provided that (and notwithstanding the foregoing or any other term or provision of this Agreement or any other Transaction Document), no event or series of events shall be deemed to be a “Change of Control” if such event(s) occurs either (i) in accordance with an Approved Bankruptcy Court Order; or (ii) otherwise with the consent of Macquarie.

“Chapter 11 Cases” has the meaning given to that term in Recital G.

“CL Affected Party” has the meaning given to it in Section 20.2(a)(i).

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

“Commencement Date” has the meaning specified in Section 2.3(a).

“Commencement Date Crude Oil Volumes” means the total quantity of Crude Oil in the Crude Storage Tanks purchased by Macquarie on the Commencement Date, pursuant to the Inventory Sales Agreement.

“Commencement Date Products Volumes” means the total quantities of the Products in the Included Product Locations purchased by Macquarie on the Commencement Date, pursuant to the Inventory Sales Agreement.

“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.

“Commitment Requirements” means [redacted].

“Company” has the meaning specified in the introductory paragraph of this Agreement.

“Company Due Amount” has the meaning specified in Section 20.6(a)

“Company Interim Payment” has the meaning set forth in Section 11.1(b).

“Company Product Inventory” means, as of any day, Eligible Hydrocarbon Inventory consisting of Products that are then held at a Company Storage Location.

“Company Storage Location” means the storage tanks ~~and pipelines~~, pipelines and other locations where the Company owns Crude Oil, Products or Eligible Hydrocarbon Inventory and identified as such in Schedule A..

“Convenience Exchange Agreement” means the convenience exchange agreement between Macquarie, the Company and Equilon Enterprises LLC, dba Shell Oil Product US, dated on or about the date of this Agreement for the delivery of certain Products by SOPUS to Macquarie, and the redelivery of an equivalent quantity of Products by Macquarie to SOPUS, which contract arises in connection with the contract for the offtake of Regular CBOB, Premium CBOB and ULSD between the Company and Equilon Enterprises LLC, dba Shell Oil Product US, dated April 1, 2022 and the associated Tripartite Product Offtake Agreement.

“Costs” has the meaning set forth in the definition of “Liabilities”.

“Credit Agreement Documents” means, collectively, the Existing Financing Agreements, each Note, the Warrants, the Warrant Agreement, the Agent Fee Letter, the Fee Letter, any Joinder Agreement, each Notice of Borrowing, the Intellectual Property Security Agreement, the Control Agreement(s), the Collateral Access Agreements, the Collateral Pledge Agreement, any Subordination Agreement (each as defined in the relevant Existing Financing Agreements and all other documents, instruments and agreement executed or delivered at any time in connection therewith, including any intercreditor or joinder agreement among holders of Credit Agreement Obligations, to the extent such are effective at the relevant time).

“Credit Agreement Obligations” means (1) all Obligations (as defined in the Post-Petition Financing Agreement); and (2) all debt, principal, interest, fees, charges, Lender Expenses (as defined in the ~~Existing~~Pre-Petition Financing Agreements) and other amounts owing by the Company and each Guarantor (as defined in the ~~Existing~~Pre-Petition Financing Agreements) to Cantor Fitzgerald Securities, as agent to the lenders under the ~~Existing~~Pre-Petition Financing Agreements, of any kind and description whether arising under or pursuant to or evidenced by the Credit Agreement Documents, and whether or not for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including the principal and interest due with respect to the Term Loans (as defined in the ~~Existing~~Pre-Petition Financing Agreements), and further including all Lender’s Expenses that the Company and each Guarantor is required to pay or reimburse by the Credit Agreement Documents, by law, or otherwise.

“Credit Support” means “Collateral” as defined in the Pledge and Security Agreement.

“Crude Cargo Rollover Barrels” means, as of any applicable day, the volumes of Crude Oil which Macquarie has contracted to purchase pursuant to Macquarie Crude Procurement Contracts which have completed pricing as of such day and for which Macquarie has not yet paid a Third Party Supplier Crude Purchase Amount pursuant to Section 6.4.

“Crude Delivery Point” means, in relation to a sale of Crude Oil from Macquarie to the Company for processing at the Refinery, the first inlet flange of the relevant Refinery processing unit, and, in relation to any other sale of Crude Oil by Macquarie from an Included Storage Location, the relevant delivery point as determined in accordance with the relevant Included Crude Sales Transaction or, if such Crude Oil is being sold to the Company pursuant to Section 5.4(a)(ii), the exit flange from the applicable Included Storage Location or as otherwise agreed between the Parties.

“Crude Intake Point” means, in relation to a delivery of Crude Oil to Macquarie at an Included Storage Location pursuant to a Macquarie Crude Procurement Contract, the relevant delivery location as determined in accordance with such Macquarie Crude Procurement Contract or, in relation to a purchase of Crude Oil by Macquarie from the Company, as agreed between the Parties.

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

“Crude Oil or Product Differential” means any Differential applicable to a Current Month Pricing Benchmark with respect to Crude Oil or Product as shall be set forth on Schedule H and as may be adjusted from time to time pursuant to Section 7.4.

“Crude Purchase Adjustment” has the meaning specified in Section 6.4.

“Crude Sales Proposal” has the meaning specified in Section 5.4(b)(i).

“Crude Storage Tanks” means any of the tanks at the Refinery listed on Schedule E that store Crude Oil, including, as applicable, any related facilities or pipelines owned by the Company or Plains Marketing, L.P. and used in connection with such tanks.

“Crude Transaction” has the meaning given to that term in the Master Agreement.

“Current Financial Statements” means:

(a)

audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2020, and the related consolidated statement of operations, shareholder’s equity and cash flows for the fiscal year then ended; and

(b)

the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the twelve (12) months ended December 31, 2021, and the related consolidated statement of operations and cash flows for the twelve (12) months then ended.

“Current Month Pricing Benchmark(s)” means, for any month and with respect to a particular Pricing Group, the pricing index, formula or benchmark plus or minus the applicable Differential (if any) set forth on and determined in accordance with Schedule H for such month.

“Customer” means any third party purchaser of Crude Oil or Products from Macquarie (other than the Company).

“Daily Crude Purchases” means for any day, Macquarie’s estimate of the aggregate volume of Crude Oil purchased by Macquarie from Company at any Crude Intake Point.

“Daily Crude Sales” means on any Delivery Date the volume of Crude Oil sold at a Crude Delivery Point by Macquarie to Company, other than sales pursuant to Section 5.4(a)(ii).

“Daily Prices” means, with respect to a particular Pricing Group, the Current Month Pricing Benchmark applicable to such Pricing Group on any Delivery Date.

“Daily Product Purchases” means, for any day and Product Group, Macquarie’s estimate of the aggregate volume of such Product purchased by Macquarie from the Company during such day pursuant to (i) Section 8.1(a) or (ii) Section 8.1(c).

“Daily Product Sales” means, for any day and Product Group, Macquarie’s estimate of the aggregate sales volume of such Product sold by Macquarie during such day to Company.

“Debtor” has the meaning given to that term in the Interim Intermediation Order.

“Default” means any event that, with notice or the passage of time, would constitute an Event of Default.

“Default Interest Rate” has the meaning given to that term in the Fee Letter.

“Defaulting Party” has the meaning specified in Section 20.4(a).

“Definitive Commencement Date Value” has the meaning specified in the Inventory Sales Agreement.

“Delivery Date” means any day.

“Delivery Month” means, with respect to Crude Oil, the calendar month in which Crude Oil is to be delivered into one or more Crude Storage Tanks or Included Crude Pipelines and, with respect to Products, the month in which Product is to be delivered into one or more Included Product Locations or Company Storage Locations.

“Derivative Transaction” means any obligation in respect of any transaction in the nature of a transaction as described in the definition of Specified Transaction and any reference to the amount of Specified Indebtedness becoming, or becoming capable of being declared, due and payable shall, in the case of a Derivative Transaction, refer to the amount that becomes, or would become, due and payable as a result of the termination of such Derivative Transaction.

“Designated Affiliate” means the Parent, the Company and any Subsidiary of the Company.

“Determining Party” has the meaning specified in Section 20.4(c).

“Differential” means, for each Current Month Pricing Benchmark, the amount added to or subtracted from the applicable pricing index, formula or benchmark set forth on Schedule H to determine such Current Month Pricing Benchmark. The Differentials applicable during the Term, shall be as set forth on Schedule H and as may be adjusted from time to time pursuant to Section 7.4.

“DIP Orders” means, collectively, the Interim DIP Order and the Final DIP Order.

“Disclosure Letter” means the disclosure letter/perfection certificate dated as of the Commencement Date containing certain information and schedules delivered by the Company and the Parent to Macquarie.

“Disclosure Statement” has the meaning given to the term “Acceptable Disclosure Statement” in the Post-Petition Financing Agreement.

“Effective Date” has the meaning specified in the introductory paragraph of this Agreement.

“Eligible Hydrocarbon Inventory” means, as of any day, Crude Oil, Products and Eligible Lien Products owned by the Company that are subject to a valid, first priority perfected Lien and security interest in favor of Macquarie, including, without limitation, the aggregate volume of such Crude Oil, Products and Eligible Lien Products constituting linefill; provided that, unless Macquarie shall otherwise elect in its reasonable discretion, Eligible Hydrocarbon Inventory shall not include any Hydrocarbon:

(a)

that is held on consignment or not otherwise owned by the Company, as applicable;

(b)

that is unmerchantable or damaged product or constitutes product that is permanently off-spec;

(c)

that is subject to any other Lien whatsoever (other than Permitted S&O Liens);

(d)

that consists solely of chemicals (other than commodity chemicals maintained in bulk), samples, prototypes, supplies, or packing and shipping materials;

(e)

that has been sold to a customer of the Company, as applicable;

(f)

that is not located at a Company Storage Location;

(g)

that is not currently either useable or saleable, at market price, in the normal course of the Company’s, business; or

(h)

that is not identified on Schedule A, unless otherwise mutually agreed by the Parties.

“Eligible Lien Product” means liquefied petroleum gas.

“Emergence Milestone Date” means the date that is 115 days after the Petition Date; provided that if such day falls after the date on which the Monthly True-Up Amount for the relevant Delivery Month would otherwise be due as per Article 11 (the “MTA Payment Date” for such Delivery Month), then upon the reasonable request of the Company in connection with a contemplated Acceptable Plan or Sale (and subject to continued compliance with the terms hereof, including (without limitation, Section 19.5), the Emergence Milestone Date will instead be deferred to a day no later than such MTA Payment Date.

“Ending Company Product Inventory” has the meaning specified in Section 9.2(a).

“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 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.

“Equity Interests” mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant, convertible debt or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

“EST” means the prevailing time in the Eastern time zone of the United States of America.

“Estimated Commencement Date Value” has the meaning specified in the Inventory Sales Agreement.

“Estimated Termination Amount” has the meaning specified in Section 21.2(b).

“Estimated Yield” has the meaning specified in Section 8.3(a).

“Event of Default” has the meaning set forth in Section 20.1.

“Excess Inventory Level” has the meaning specified in Section 7.7.

“Excess Quantity” has the meaning specified in Section 7.8(a).

“Exchange Act” means the Securities Exchange Act of 1934.

“Existing Financing Agreements” means that certain Loan and Security Agreement, dated as of April 1, 2022, by and among the Company, as borrower, the other parties party thereto from time to time as guarantors, Cantor Fitzgerald Securities, as agent for the lenders and the lenders party thereto from time to time.(1) the Pre-Petition Financing Agreements; and (2) the Post-Petition Financing Agreements.

“Expiration Date” has the meaning specified in Section 3.1.

“FATCA” mean Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.

“Fee Letter” means that certain letter from Macquarie to the Company, executed on or before the Commencement Date and as from time to time thereafter amended and/or restated, 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 and other amounts determined for purposes hereof.

“Final DIP Order” has the meaning given to it in Section 20.1(u)(iv).

“Final Intermediation Order” means a final order of the Bankruptcy Court granted the relief provided for in the Interim Intermediation Order on a final basis.

“Financing Agreement” means any credit agreement, indenture, financing agreement, hedging agreement or other agreement (including, without limitation, the Credit Agreement Documents) under which the Company may incur or become liable for Specified Indebtedness.

“Force Majeure” means any cause or event reasonably beyond the control of a Party, including fires, earthquakes, lightning, floods, explosions, storms, adverse weather, pandemics, landslides 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 Macquarie); 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 Macquarie Crude Procurement Contract or Product under any Included Product Purchase Transaction, whether as a result of Force Majeure as defined above, “force majeure” as defined in such Macquarie Crude Procurement Contract or Included Product Purchase Transactions, breach of contract by such Third Party Supplier or any other reason, shall constitute an event of Force Majeure for Macquarie under this Agreement with respect to the quantity of Crude Oil or Product that was not delivered subject to that Macquarie Crude Procurement Contract or Included Product Purchase Transaction, as applicable.

“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.

“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.

“Guaranties” means each of:

(a)

the guaranty, dated as of the Commencement Date, from the Parent (the “Parent Guaranty”); and

(b)

the guaranty, dated as of the “Effective Date” (as defined in the Vertex Renewables SOA), from Vertex Renewables (the “VR Guaranty”),

and, in each case, provided to Macquarie in connection with this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, in a form and in substance satisfactory to Macquarie, each a “Guaranty”.

““Guarantors” means Parent, Vertex Renewables and each other Person from time to time that guarantees the Transaction Obligations hereunder, each a ““Guarantor””.

“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.

“High-Risk Country” means, any Sanctioned Country, Afghanistan, Belarus, Crimea, Cuba, Democratic Republic of Congo, Donetsk People’s Republic, Luhansk People’s Republic and any other territory or region of the Republic of Ukraine occupied by Russia or Russian-backed separatist forces, Eritrea, Iran, Mali, Myanmar, Nicaragua, North Korea, Russia, Syria and Venezuela and any country or other territory which Macquarie has notified to the Company as such from time to time in accordance with Section 5.2(e)(i).

“Hydrocarbon Credit Support” means, as of any time, all Inventory constituting or consisting of Hydrocarbons then owned or at any time hereafter acquired by the Company, as applicable, that is located at a Company Storage Location; provided that Hydrocarbon Credit Support shall not include any “Excluded Property” as such term is defined in the Pledge and Security Agreement.

“Hydrocarbons” means Crude Oil, intermediate feedstocks, blendstocks (including, for the avoidance of doubt additives), and finished and unfinished petroleum products and fuels, including without limitation, Products, gasoline, diesel fuels, fuel oil and jet fuels.

“Identified Crude Oil Delivery” has the meaning specified in Section ~~5.2(d)(ii)(A)~~5.2(d)(ii)(A).

“Identified Facilities” has the meaning specified in Section 15.5(a).

“Included Barge” means the barges listed as such on Schedule E that store Product from time to time whilst in transit to the Refinery, the Refinery Facilities, the BWC Storage Facilities, the Plains Storage Facilities, the Center Point Storage Facilities, or such other third party storage terminal as Macquarie and the Company may agree.

“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 O as such schedule may from time to time be amended by the Parties.

“Included Crude Sales Transaction” means sales of Crude Oil from an Included Storage Location by Macquarie to a Customer.

“Included Product Locations” means, collectively, the Included Barges, the Included Product Tanks and the Included Product Pipelines identified in Schedule A hereto.

“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 O as such schedule may from time to time be amended by the Parties.

“Included Product Purchase Transaction” means an agreement entered into by Macquarie under Section 8.2(b) pursuant to which Macquarie purchases for delivery into the Included Storage Locations any Products from a Product Supplier.

“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 Sales Transaction” means sales of Product from an Included Storage Location by Macquarie to an offtaker pursuant to any Tripartite Product Offtake Agreement and any other sales of Product from an Included Storage Location by Macquarie to a Customer pursuant to this Agreement.

“Included Storage Locations” means, collectively, the Crude Storage Tanks, Included Crude Pipelines and the Included Product Locations, as more particularly described on Schedule E and Schedule O.

“Included Tanks” means the Crude Storage Tanks and Included Product Tanks, as more particularly described on Schedule E.

“Independent Amount” has the meaning assigned to such term in the Independent Amount Letter.

“Independent Amount Letter” means that certain letter from Macquarie to the Company, executed on or before the Commencement Date and as from time to time thereafter amended and/or restated, which identifies itself as the “IA Letter”, and pursuant to which the Parties have set forth the amounts for and other terms relating to the transfer of Independent Amount as determined for the purposes hereof.

“Independent Inspection Company” has the meaning specified in Section 13.3.

“Index Crude Purchase Value” means (i) in respect of a delivery of Macquarie Procurement Barrels to a Crude Intake Point during the day, the number of Barrels of Crude Oil delivered, multiplied by (ii) the Current Month Pricing Benchmark for Crude Oil on such day.

“Index Product Purchase Value” means, for any Product Group and a day, the product of (i) the number of Barrels of such Product Group purchased during such day under Included Product Purchase Transactions, multiplied by (ii) the Current Month Pricing Benchmark for that Product Group and day.

“Index Product Sale Value” means, for any Product Group and relevant period, the product of (i) the sum of the aggregate quantity of Barrels of such Product Group sold during such period under Included Sales Transactions, multiplied by (ii) the Current Month Pricing Benchmark for that Product Group and period.

“Initial Estimated Yield” has the meaning specified in Section 2.1(x).

“Insolvency or Liquidation Proceeding” means:

(a)

any case commenced by or against any Person under any Bankruptcy Law for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of any Person, any receivership or assignment for the benefit of all or substantially all creditors relating to any Person or any similar case or proceeding relative to any Person or all or substantially all of its creditors, as such, in each case whether or not voluntary; or

(b)

any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to any Person, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency, except for any liquidation or dissolution permitted under the Transaction Documents.

“Insolvent” means, with respect to any Person as of any date of determination, that (a) the sum of the debt (including contingent liabilities existing as of the date hereof) of such Person and its subsidiaries (on a consolidated basis) exceeds the present fair saleable value of the present assets of such Person and its subsidiaries (on a consolidated basis), (b) the capital of such Person and its subsidiaries (on a consolidated basis) is not unreasonably small in relation to its business as of such date or as contemplated as of such date, (c) such Person and its subsidiaries have incurred, or reasonably believe that they will incur, debts beyond their ability to pay such debts as they mature or, in the case of contingent liabilities, otherwise become payable, or (d) such Person is not “solvent” or is “insolvent”, as applicable within the meaning given those terms and similar terms under Applicable Law relating to fraudulent transfers and conveyances.

~~“Initial Estimated Yield” has the meaning specified in Section 2.1(x).~~

~~“Interim Payment” means a net payable amount determined by netting all of the Macquarie Interim Payments and Company Interim Payments.~~

“Intermediated Product Offtake Contract” means each of (i) the term agreement for offtake of ULSD and Jet A-1/Defstan between the Company and Shell Trading (US) Company dated April 1, 2022, (ii) the term agreement for offtake of Heavy Olefin Plant Feed between the Company and Shell Chemical LP dated April 1, 2022, (iii) the term agreement for offtake of Jet Fuel between the Company and Shell Trading (US) Company dated April 1, 2022, (iv) the term agreement for offtake of Gasoline between the Equilon Enterprises LLC, dba Shell Oil Product US, dated April 1, 2022 and any other agreement designated as such by the Parties.

“Intercreditor Agreement” means that certain intercreditor agreement, dated as of April 1, 2022 (as amended, restated, amended and restated, supplemented, modified, extended, renewed, replaced, refinanced or restructured from time to time) by and among Cantor Fitzgerald Securities, as agent for the Term Loan Secured Parties (as defined therein), Macquarie Energy North America Trading Inc., as Intermediation Facility Secured Party (as defined therein), Vertex Refining Alabama LLC, and each of the other Grantors (as defined therein) party thereto.

“Interim Crude Supply Agreement” means the interim crude and hydrocarbon feedstock supply agreement dated April 1, 2022 and entered into between Shell Chemical LP, Shell Trading (US) Company and the Company.

“Interim Crude Supply Assignment Agreement” means the assignment agreement entered into between the Company and Macquarie dated on or around the Commencement Date in respect of the assignment of the Company’s rights and obligations under the Interim Crude Supply Agreement to Macquarie.

“Interim DIP Order” means that certain order: (1) authorizing the Debtors to obtain post-petition financing; (2) authorizing the Debtors to use cash collateral; (3) granting liens and providing claims with superpriority administrative expense status; (4) granting adequate protection to the pre-petition term loan secured parties; (5) modifying the automatic stay; (6) scheduling a final hearing; and (7) granting related relief.

“Interim Intermediation Order” means that certain order: (1) authorizing continuation of the Intermediation Contracts (as defined therein); (2) authorizing the Debtors to enter into and perform post-petition transactions under the Intermediation Contracts (“Intermediation Transactions”) and post-petition hedging transactions; (3) providing superpriority administrative expense status and liens in respect of Intermediation Transactions and post-petition hedging transactions; (4) granting adequate protection to Macquarie; (5) providing superpriority administrative expense status in respect of Purchaser Support Agreements (as defined therein); (6) modifying the automatic stay; (7) setting a final hearing; and (8) granting related relief, entered on or around September 25, 2024, in the Chapter 11 Cases.

“Interim Payment” means a net payable amount determined by netting all of the Macquarie Interim Payments and Company Interim Payments.

“Intermediated Product Offtake Contract” means (i) the Jet Fuel Sales Agreement between the Company and Glencore Ltd. dated as of April 1, 2024, and (ii) the term agreement for offtake of Gasoline between Equilon Enterprises LLC, dba Shell Oil Product US, dated April 1, 2022, and any other agreement designated as such by the Parties.

“Intermediation Orders” means the Interim Intermediation Order and the Final Intermediation Order.

“Inventory” has the meaning assigned to such term in the Uniform Commercial Code of the State of New York as in effect from time to time.

“Inventory Report” has the meaning as specified in Section 12.1(a).

“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 Macquarie 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.

~~“Inventory Swap Delivery Date” has the meaning specified in Section 0~~

~~“Inventory Swap Election” has the meaning specified in Section 0.~~

“Knowledge” means, with respect to a Person, the knowledge of the individuals of such Person, including a Responsible Officer, who have the responsibility for any day-to-day decision making, or legal, operational, or financial affairs of such Person, which knowledge shall include any and all facts and other information of such Person actually knew or reasonably should have known in accordance with all applicable industry standards and commercially reasonable prudence and diligence.

“Latest Commencement Date” has the meaning specified in Section 2.3(a).

“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 Security Agreement and any other instruments, documents, Orders and agreements delivered by or on behalf of the Company and its Affiliates and/or entered by the Bankruptcy Court, as applicable, in order to grant to and perfect in favor of Macquarie a security interest in and lien on the Hydrocarbon Credit Support as security for the obligations of the Company pursuant to this Agreement and the other Transaction Documents.

“Liens” has the meaning specified in Section 19.4(f)(ii).

“Liquidated Amount” has the meaning specified in Section 20.4(g).

“Macquarie” has the meaning specified in the introductory paragraph of this Agreement.

“Macquarie Crude Procurement Contract” means ~~the~~a Tripartite Crude Supply Agreement and any other contract entered into by Macquarie pursuant to this Agreement (including, without limitation, pursuant to Section 5.2(d)) for the procurement and/or purchase of Crude Oil ~~within the U.S.~~ to be sold and delivered to Macquarie at the relevant Crude Intake Point.

“Macquarie Interim Payment” has the meaning specified in Section 11.1(a).

“Macquarie Procurement Barrels” means barrels of Crude Oil purchased by Macquarie under a Macquarie Crude Procurement Contract.

“Macquarie’s Inspector” means any Person selected by Macquarie in a commercially reasonable manner that is acting as an agent for Macquarie and 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 Macquarie, is qualified and reputed to perform its services in accordance with Applicable Law and industry practice, to perform any and all inspections required by Macquarie.

“Macquarie’s Policies and Procedures” shall have the meaning specified in Section 15.5(a).

“Macquarie’s Property” has the meaning specified in Section 19.4(f)(ii).

~~“Macquarie Swap Payment Amount” has the meaning specified in Section 0.~~

“Master Agreement” means the Master Crude Oil and Products Agreement, dated as of the Commencement Date, between the Company and Macquarie.

“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.

“Material Adverse Change” means, in each case and solely to the extent occurring after the Petition Date (a) a material adverse change in, or a material adverse effect upon, the operations, assets, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Company or of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Company, Parent or any other Subsidiary of Parent to perform its obligations under any of the Transaction Documents to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Company, the Parent or any Subsidiary of the Parent of any Transaction Document to which it is a party.; provided that (and notwithstanding the foregoing), the commencement of the Chapter 11 Cases or any sale or liquidation of any, all or substantially all of the Company’s assets in such Chapter 11 Cases in accordance with the terms of an Approved Bankruptcy Court Order or this Agreement shall not, individually or collectively, constitute a Material Adverse Change.

“Material Obligation” means, in respect of the Company, a failure to comply with:

(a)

Section 14.1 (Provision of Financial Information);

(b)

Paragraphs (c),(e) and (g) of Section 14.2 (Additional Information);

(c)

Section 14.3 (Notification of Certain Events);

(d)

Article 17 (Insurance);

(e)

Paragraphs (c), (d), (e), (f) (j) and (k)of Section 19.3 (Company’s Covenants);

(f)

Section 19.4(f) (Further Assurances); and

~~(g) Section 19.5 (Negative Covenants); and~~

(g)

~~(h)~~ Section 19.6 (Additional Covenants).

“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 (i) meter readings and meter tickets for that Delivery Date or, (ii) barge inspection reports for that Delivery Date or (iii) 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 Macquarie at the Products Intake Point, as evidenced by either (i) meter readings and meter tickets for that Delivery Date or, (ii) barge inspection reports for that Delivery Date or (iii) tank gaugings conducted at the beginning and end of such Delivery Date.

“MENAT Required Terms” means the sanctions, anti-corruption, confidentiality and other legal or regulatory related provisions required in accordance with Macquarie’s Policies and Procedures from time to time which, as at the date of this Agreement are set out in Part 2 (MENAT Required Terms) of Schedule J (Crude GTCs and MENAT Required Terms).

“Minimum Liquidity Requirement” has the meaning specified in Section 19.5.

“Monthly Crude Confirmation” has the meaning specified in Section 5.1(b)(ii)(B).

“Monthly Crude Forecast” has the meaning specified in Section ‎5.1(b)(iii).

“Monthly Crude Purchase Offer” has the meaning specified in Section 5.1(b)(ii)(A).

“Monthly Product Estimate” has the meaning specified in Section 8.3(b).

“Monthly True-Up Amount” has the meaning specified in Schedule C.

“MTA Payment Date” has the meaning specified in the definition of “Emergence Milestone Date”.

“Net Storage Volume” means, with respect to any measurement of volume, the total liquid volume, excluding sediment and water, corrected for the observed temperature to 60° F.

“Non-Affected Party” has the meaning specified in Section 18.1.

“Non-CL Affected Party” has the meaning given to it in Section 20.2(a)(ii)(A).

“Non-Defaulting Party” has the meaning specified in Section 20.4(a).

“Notice of Title” means, in respect of each Included Barge and the relevant Barge Operator and Barge Owner, an irrevocable notice in writing from the Company and Macquarie, notifying such Barge Operator and such Barge Owner of Macquarie’s title to any such Crude Oil or Product transported on such Included Barge to or from the Refinery and an Included Product Location, in each case, in form and substance satisfactory to Macquarie.

“Obligations” has the meaning specified in Section 14.4(c).

“OET Fee” has the meaning given to that term in the Fee Letter.

“OET Notice” has the meaning specified in Section 3.2.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Operational Schedule” means Schedule A, Schedule D, Schedule E, Schedule F, Schedule I, Schedule J, Schedule K, Schedule N, Schedule O,Schedule V and Schedule W.

~~“Optional Early Termination Date” has the meaning specified in Section 3.1(b).~~

“Orders” means the Intermediation Orders, the Cash Management Order and the DIP Orders.

“Organization Documents” means, (a) with respect to any corporation, the charter or certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction), (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

“Overriding Obligations” means, for the purposes of the Unwind Procedures, the Company’s obligation to perform its obligations under this Agreement and act in accordance with:

(a)

Accepted Industry Practice; and

(b)

to the extent not covered by paragraph (a) above, any Authorizations held by the Company ~~and~~, all applicable laws including Environmental Laws and all applicable orders of the Bankruptcy Court.

“Parent” means Vertex Energy, Inc.

“Parent Guaranty” has the meaning specified in the definition of “Guaranties”.

“Party” or “Parties” has the meaning specified in the preamble to this Agreement.

“Patriot Act” means The USA Patriot Act.

“Permitted Article 10 Liens” means any Liens which are permitted pursuant to Article 10.

“Permitted S&O Liens” means: (a)(1) Liens created in favor of Macquarie under the Lien Documents or pursuant to an Intermediation Order; (2) junior ranking Liens created in favor of the Collateral Agent (as defined in the relevant Existing Financing Agreement) pursuant to the Cash Management Order or any DIP Order; and (3) junior ranking Liens created in favor of Macquarie Bank Limited (as hedge provider) pursuant to the Interim Intermediation Order or, when entered into, the Final Intermediation Order, (b) Liens for taxes, assessments, judgments, decrees, attachments, governmental charges or levies, or claims 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; (c) Liens of mechanics, laborers, non-commodity 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, if such reserve or appropriate provision, if any, as shall be required by GAAP shall have been made therefor (but not including any such Liens in favor of the Company or any of its Affiliates); (d) except to the extent released in any “bailee letter” or such similar documents, Liens 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 (but not including any such Liens in favor of the Company or any of its Affiliates); (e) Liens (1) incurred in the ordinary course of business (ax) except to the extent released in any “bailee letter” or such similar documents, 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, which attach to such goods or assets and cease to be in effect upon payment in full of the purchase price for or for shipping of such goods or assets, and (by) to the extent available under Applicable Law, arising upon the purchase of oil or gas from the first producer thereof, which 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 goods; and (f) Permitted Article 10 Liens.

“Permitted Supplier” means Shell Trading (US) Company and any other Third Party Supplier between the Parties from time to time.

“Permitted Supplier’s Crude Confirmation” means the confirmation of the Crude Oil grades (including the volumes per grade and the pricing levels) secured by the Permitted Supplier for a Delivery Month, as communicated to the Company by the Permitted Supplier in accordance with the terms of the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement.

“Permitted Supplier Crude Estimate” means the Permitted Supplier’s best estimate of (a) prices; and (b) volume availability, in each case, for the each relevant grade of Crude Oil for a Delivery Month and as communicated to the Company by the Permitted Supplier in accordance with the terms of the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement.

“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.

“Petition Date” has the meaning given to that term in the Interim DIP Order.

“Plains Agreements” means:

(a)

the Plains Terminalling Agreement;

(b)

the Plains Storage Rights Agreement; and

(c)

the Plains Consent Letter.

“Plains Consent Letter” means the “Consent to Storage and Usage Agreement” dated on or around the date of this Agreement and entered into between the Plains Operator, Macquarie and the Company.

“Plains Operator” means Plains Marketing, L.P., or such other successor that operates the Plains Storage Facilities.

“Plains Storage Facilities” has the meaning given to the term “Storage Facilities” in the Plains Storage Rights Agreement.

“Plains Storage Rights Agreement” means the storage rights agreement entered into between the Company and Macquarie dated on or about the date of this Agreement

“Plains Terminalling Agreement” means the terminal services agreement (Agreement No. 5716-15-02-0121) dated as of March 1, 2015 between the Plains Operator and the Company, as successor in interest to Shell Chemical LP (as from time to time further amended, modified, supplemented, extended, renewed and/or restated).

“Pledge and Security Agreement” means that certain Pledge and Security Agreement by and between the Company and Macquarie, dated as of the Commencement Date.

“Post-Petition Financing Agreement” means that certain Senior Secured Super-Priority Debtor-in-Possession Loan and Security Agreement dated on or around September 24, 2024 by and among the Company, as borrower, the other parties party thereto from time to time as guarantors, Cantor Fitzgerald Securities, as agent for the lenders and the lenders party thereto from time to time.

“Pre-Petition Financing Agreements” means that certain Loan and Security Agreement, dated as of April 1, 2022, by and among the Company, as borrower, the other parties party thereto from time to time as guarantors, Cantor Fitzgerald Securities, as agent for the lenders and the lenders party thereto from time to time.

“Pricing Group” means any of the Product Groups listed as a pricing group on Schedule H.

“Product” means any of the petroleum products listed on Schedule A, as from time to time amended by mutual agreement of the Parties.

“Product Group” means Crude Oil or a group of Products as specified on Schedule A.

“Product Purchase Adjustment” has the meaning specified in Section 8.9(b).

“Product Sale Adjustment” has the meaning specified in Section 8.9(a).

“Product Supplier” means any third party seller of Products with whom a Party proposes that Macquarie enter into an Included Product Purchase Transaction in accordance with Section 8.1(b).

“Product Transaction” has the meaning given to that term in the Master Agreement.

“Products Cover Costs” means, collectively, any additional costs and expenses or related damages as a result of the shortfall in the quantity of Product held for its account (in the circumstances described in Section 7.5).

“Products Delivery Point” means, (1) with respect to any delivery of Product from an Included Storage Location, (x) the relevant delivery point as described in the relevant Tripartite Product Offtake Agreement or Included Sales Transaction or, (y) the outlet flange of the relevant Included Barge; or (2) in relation to a sale of Products to the Company, at the exit flange of the relevant Included Storage Location.

“Products Intake Point” means the inlet flange of the relevant Included Product Tank or Included Barge.

“Projected Monthly Run Volume” has the meaning specified in Section 7.2(a).

“Projection Week” means Monday through Sunday.

“Provisional Contract Price” means, with respect to any quantity of Crude Oil or Products of a given type, grade, or specification which is purchased or sold by Macquarie pursuant to a Macquarie Crude Procurement Contract, Included Product Purchase Transaction or Included ~~Product~~ Sales Transaction, the applicable pricing index plus the applicable differential specified in the applicable trade contract for such type, grade, or specification of Crude Oil or Product.

“RD Negotiation Period” has the meaning specified in Section 2.5(b).

~~“RD Early Termination Date” has the meaning specified in Section 3.2(a).~~

~~“Renewable Diesel Intermediation” has the meaning specified in Section 2.5(b).~~

“Refinery” has the meaning specified in the recitals hereto.

“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 Crude Storage Tanks and Included Product Tanks.

“Refinery Procured Crude Barrels” has the meaning given in Section 5.3(a).

“Refinery Procured Product Barrels” has the meaning specified in Section 8.1(c).

“Refinery Product Contract” means a procurement contract entered into by the Company for the purchase by the Company of Product, which Product is to be resold by the Company to Macquarie at the time such Product passes the Products Intake Point.

“Refinery SPA” means the sale and purchase agreement in relation to the Refinery between (i) Equilon Enterprises LLC d/b/a Shell Oil Products US, Shell Chemical LP and Shell Oil Company, collectively as seller and (ii) the Vertex Energy Operating LLC as buyer.

“Related Hedges” means any transactions from time to time entered into by Macquarie with third parties unrelated to Macquarie or its Affiliates to hedge Macquarie’s exposure resulting from this Agreement or any other Transaction Document and Macquarie’s rights and obligations hereunder or thereunder.

“Relevant Date” has the meaning specified in Section 20.6(a).

“Relevant Default” has the meaning specified in Section 5.4(a).

“Renewable Diesel Intermediation” has the meaning specified in Section 2.5(b).

“Required Storage and Transportation Arrangements” means such designations and other binding contractual arrangements hereafter entered into, in form and substance reasonably satisfactory to Macquarie (all such designations and other binding contractual arrangements entered into or in effect prior to the Restructuring Effective Date being deemed satisfactory for all purposes under the Transaction Document), pursuant to which the Company (or its Affiliates) hereafter shall provide Macquarie with the Company’s (or its Affiliates’) full right to use the third party Included Product Pipelines and third party Included Product 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.

“Responsible Officer” means the President, Chief Executive Officer, Chief Financial Officer, Head of Finance, or Controller of any Person.

“Restructuring Effective Date” has the meaning given to the term “Effective Date” in the Assurance Agreement.

“Revised Estimated Yield” has the meaning specified in Section 8.3(a).

“RSA” has the meaning given to that term in the Interim Intermediation Order.

“Sanctioned Country” means any country or other territory which is from time to time subject to a general export, import, financial or investment embargo under any Sanctions Law, which, as of the date of this Agreement, are Crimea, Cuba, Iran, North Korea, and Syria.

“Sanctions Authority” means:

(a)

the United Nations;

(b)

the United States of America;

(c)

the European Union;

(d)

the United Kingdom;

(e)

Australia; and

(f)

the respective governmental, legislative, and regulatory institutions or bodies of any of the foregoing including the OFAC, the U.S. Department of Commerce, the U.S. Department of State, and any other agency of the U.S. government, ~~Her~~His Majesty’s Treasury of the United Kingdom, the United Nations Security Council or other relevant sanctions authority.

“Sanctions Law” or “Sanctions Laws” means any economic or financial sanctions law and/or regulation, export control, trade embargo, prohibition, restrictive measure, decision, executive order, or notice from any regulator implemented, adapted, imposed, administered, enacted and/or enforced by any Sanctions Authority from time to time.

“Sanctions Target” means any Person: (a) that is the subject or target of any Sanctions Law; (b) named in any Sanctions-related list maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons,” or any similar list maintained by any other Sanctions Authority (c) located, organized or resident in a country, territory or geographical region which is itself the subject or target of any Sanctions Law (including, without limitation, Cuba, Iran, North Korea, Syria, Crimea and so-called Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) regions of Ukraine, and, prior to January 1, 2017, Sudan) or (d) owned or controlled (as such terms are defined by the applicable Sanctions Laws) by any such Person or Persons described in the foregoing clauses (a) to (c).

“SEC” means the U.S. Securities and Exchange Commission.

“Settlement Amount” has the meaning specified in Section 20.4(c).

“Shell Crude Supply Agreement” means the term Crude Oil supply agreement between the Company and Shell Trading (US) Company dated on or about the date of this Agreement.

“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” has the meaning given to that term in the Fee Letter.

“Sourcing Transaction” has the meaning specified in Section 19.3(h).

“Specified Event” means a transaction or other event that results in all or substantially all of the assets constituting the Refinery are sold (whether in one transaction or in a series of related transactions) to a Person that is not an Affiliate of the Parent.; provided that (and notwithstanding the foregoing or any other term or provision of this Agreement or any other Transaction Document), no transaction or other event or series of transactions or other events shall be deemed to be a “Specified Event” if such transaction(s) or event(s) occur either (i) in accordance with an Approved Bankruptcy Court Order; or (ii) otherwise with the consent of Macquarie.

“Specified Indebtedness” means any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) in respect of a repurchase transaction, borrowed money (including capitalized lease obligations and reimbursement obligations with respect to letters of credit) or money raised, any finance lease, redeemable preference share, letter of credit, futures contract, guarantee, indemnity or any Derivative Transaction.

“Specified Transaction” means (a) any transaction (including an agreement with respect thereto) now existing or hereafter entered into between Macquarie (or any of its Affiliates) and the Company (or any of its Designated Affiliates) (including, without limitation, any transaction entered into under the MBL Secured ISDA) (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, (c) any other transaction identified as a Specified Transaction in this agreement or the relevant confirmation; provided, that, “Specified Transaction” shall not include the Vertex Renewables SOA or any Vertex Renewables Transaction Documents.

“Step-Out Inventory Sales Agreement” means the purchase and sale agreement, in the form provided on Schedule M, to be dated as of the Termination Date, if elected by Macquarie, pursuant to which the Company shall buy Crude Oil and Products from Macquarie subject to the provisions of this Agreement and any other terms agreed to by the Parties thereto.

“Storage Facilities Agreement” means the storage facilities agreement, in form and substance mutually agreeable to the Parties, to be dated as of the Commencement Date, between the Company and Macquarie, pursuant to which the Company has granted to Macquarie an exclusive right to use the Crude Storage Tanks and Included Product Tanks (to the extent that such exclusive right can be granted) in connection with this Agreement.

“Sub-Bareboat Charter” means, in respect of an Included Barge, the relevant sub-bareboat charter entered into between Company and the relevant Barge Operator in respect of that Included Barge.

“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.

~~“Swap Payment Amount~~”Supply/Offtake Consultation Notice” has the meaning specified in Section 019.6(b).

“Target Month End Company Product Volume” means the commercially reasonable projected volume for Product in the Company Storage Locations at the end of the applicable Delivery Month as set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Product purchases, run rates and sales for the applicable period.

“Target Month End Crude Inventory Volume” means the commercially reasonably projected volume for (i) Crude Oil in the Crude Storage Tanks; plus (ii) Crude Cargo Rollover Barrels, in each case, at the end of the Delivery Month set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Crude Oil purchases, run rates and sales for the applicable period.

“Target Month End Product Inventory Volume” means the commercially reasonably projected volume for Product in the Included Product Locations at the end of the applicable Delivery Month as set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Product purchases, run rates and sales for the applicable period.

“Target Month End Product Volume” means the Target Month End Product Inventory Volume and Target Month End Company Product Volume, collectively.

“Tax” or “Taxes” has the meaning specified in Section 16.1(a).

“Term” has the meaning specified in Section 3.1.

“Term Loan Agent” means Cantor Fitzgerald Securities, in its capacity as agent under, as the context may require, either or both of the Pre-Petition Financing Agreement and the Post-Petition Financing Agreement.

“Termination Amount” means, without duplication, the total net amount owed by one Party to the other Party upon termination of this Agreement under Section 21.2(a).

“Termination Date” has the meaning specified in Section 21.1.

“Termination Date Crude Oil Volumes” has the meaning specified in Section 21.1(c).

“Termination Date Product Volumes” has the meaning specified in Section 21.1(c).

“Termination Date Volumes” has the meaning specified in Section 21.1(c).

“Termination Event” has the meaning specified in Section 20.3(a).

“Termination Notice” has the meaning specified in Section 20.3(b).

“Termination Reconciliation Statement” has the meaning specified in Section 21.2(c).

“Third Party Offtaker” means any purchaser of Crude Oil under an Included Crude Sales Transaction or Product under an Included Sales Transaction (in each case, other than the Company).

“Third Party Storage Agreements” means the BWC Agreements (but only from (and including) the relevant BWC Inclusion Date), the Center Point Agreements (but only from (and including) the relevant Center Point Inclusion Date), the Plains Agreement and any other agreements entered into between or among the Company, Macquarie and/or a Third Party Storage Provider designated as “Third Party Storage Agreements” by Macquarie and the Company.

“Third Party Storage Provider” means:

(a)

from (and including) the relevant BWC Inclusion Date, each relevant BWC Operator;

(b)

~~(a)~~ from (and including) the relevant Center Point Inclusion Date, ~~the~~each relevant Center Point Operator;

(c)

~~(b)~~ the Plains Operator; and

(d)

~~(c)~~ any other third party storage provider approved in writing by Macquarie and the Company; provided that Macquarie has entered into a “Consent to Storage and Usage Agreement” on terms satisfactory to it.

“Third Party Supplier” means any seller of Crude Oil under a Macquarie Crude Procurement Contract or Product under an Included Product Purchase Transaction (in each case, other than the Company).

“Third Party Supplier Crude Purchase Amount” has the meaning specified in Section 6.4.

“Third Party Supply/Offtake Agreement” means collectively, the Macquarie Crude Procurement Contracts, Included Product Purchase Transaction, Included Crude Sales Transactions, Included Sales Transactions, the Shell Crude Supply Agreement, a Tripartite Crude Supply Agreement, an Intermediated Product Offtake Contract and a Tripartite Product Offtake Agreement.

“Third Party Terminalling ~~Agreements~~Agreement” means:

(a)

in respect of the BWC Storage Facilities from and including the relevant BWC Inclusion Date, the relevant BWC Terminalling Agreement,

~~(a)~~ (b) in respect of the Center Point Storage Facilities from (and including) the relevant Center Point Inclusion Date, the relevant Center Point Terminalling Agreement;

~~(b)~~ (c) in respect of the Plains Storage Facilities, the Plains Terminalling Agreement; and

~~(c)~~ (d) in respect of any other Third Party Storage Provider, the terminalling services agreement entered into between the Company and such other Third Party Storage Provider.

“Transaction Document” means (i) any of this Agreement, the Inventory Sales Agreement, the Storage Facilities Agreement, the Step-Out Inventory Sales Agreement, the Guaranties, the Required Storage and Transportation Arrangements, the Fee Letter, the Independent Amount Letter, the Lien Documents, the Intercreditor Agreement, the Master Agreement, the Convenience Exchange Agreement, the Third Party Storage Agreements, the ~~Interim Crude Supply Agreement, the Interim Crude Supply Assignment Agreement, the~~ Shell Crude Supply Agreement, the Tripartite Crude Supply Agreement, the Intermediated Product Offtake Contracts, each Tripartite Product Offtake Agreement, any Macquarie Crude Procurement Contract, Included Crude Sales Transaction, Included Sales Transaction or Included Product Purchase Transaction; and (ii) 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 any of its Affiliates; provided, however, that (1) none of (a) that certain 2002 ISDA Master Agreement, dated as of April 1, 2022, including all schedules and annexes thereto, by and between Macquarie Bank Limited and the Company (the “MBL Secured ISDA”), (b) the Vertex Renewables SOA; (c) the Vertex Refining Guaranty; and (d) any other Vertex Renewables Transaction Documents that are not otherwise expressly listed as Transaction Documents under sub-paragraph (i) above shall constitute “Transaction Documents”. ; and (2) (a) the Tripartite Crude Supply Agreement and Shell Crude Supply Agreement will only constitute Transaction Documents to the extent that Macquarie has made a “Positive Election” (as defined in the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement) for a delivery month; and (b) any other Tripartite Crude Supply Agreement, Tripartite Product Offtake Agreement or similar tripartite agreement entered into on or after the Restructuring Effective Date but with a similar election mechanism as the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement will only constitute a Transaction Document to the extent that Macquarie has made a “Positive Election” (howsoever described or defined) in that relevant agreement, but in the case of (a) or (b), only in respect of the portion thereof assigned to Macquarie in respect of a month.

“Transaction Obligations” means all obligations, including Obligations, owing from time to time by the Parent, Vertex Renewables, the Company and any of the Company’s Subsidiaries to Macquarie pursuant to this Agreement, the Guaranties or any other Transaction Document and shall include, without limitation, (a) all principal, premium, if any, reimbursement obligations, interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the relevant Transaction Document and (b) all fees, costs, expenses, indemnifications, damages, guarantees, and charges and other liabilities or amounts incurred in connection with any of the Transaction Documents and provided for thereunder, in the case of each of clause (a) and clause (b) whether before or after commencement of an Insolvency or Liquidation Proceeding and irrespective of whether any claim for such interest, fees, costs, expenses, indemnifications, damages, guarantees, charges or other liabilities or amounts is allowed as a claim in such Insolvency or Liquidation Proceeding; provided, however, that, for the avoidance of doubt, obligations of the Company pursuant to the Vertex Refining Guaranty shall not constitute “Transaction Obligations”.

“Transaction Supplement” has the meaning given to that term in Section 5.2(d).

“Transactions” has the meaning given to that term in Section 11.5.

“Transitional Extension Fee” has the meaning specified in the Fee Letter.

“Transitional Support Period” has the meaning specified in Section 3.1.

“Tripartite Crude Supply Agreement” means (1) the tripartite agreement among the Company, Macquarie and the Permitted Supplier in relation to the Shell Crude Supply Agreement; and (2) any tripartite agreement entered into among the Company, Macquarie and a Third Party Supplier on the Third Party Supplier List in relation to a Macquarie Crude Procurement Contract.

“Tripartite Product Offtake Agreement” means any tripartite agreement entered into among the Parties and the relevant offtaker in relation to an Intermediated Product Offtake Contract.

“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.

“Unrestricted Cash” means cash or Cash Equivalents:

(a)

that are not, and are not required to be, designated as “restricted” on the financial statements of the Company or Vertex Renewables;

(b)

that are not contractually required, and have not been contractually committed by the Company or Vertex Renewables, to be used for a specific purpose;

(c)

that are not subject to:

(i)

any provision of law, statute, rule or regulation;

(ii)

any provision of the organizational documents of the Company or Vertex Renewables;

(iii)

any order of any Governmental Authority; or

(iv)

any contractual restriction (including the terms of any Equity Interests),

in each case of (i) through (iv), preventing such cash or Cash Equivalents from being applied to the payment of ~~the “Obligations” (as defined in~~any of the Company’s or Vertex Renewables’ payment obligations under the Existing Financing Agreements~~) or any of the Company’s or Vertex Renewables’ payment obligations under~~, the Transaction Documents and the Vertex Renewables Transaction Documents (without duplication);

(d)

in which no Person other than the Term Loan Agent has a Lien other than “Permitted Liens” as set forth in clause (f) of the definition of “Permitted Liens” in the ~~Existing~~Pre-Petition Financing Agreements and in clause (e) of the definition of “Permitted Liens” in the Post-Petition Financing Agreements;

(e)

that are held in a “Deposit Account” or “Securities Account” (~~each~~ as defined in ~~the~~any Existing Financing ~~Agreements~~Agreement), as applicable, but in all cases shall exclude the amount of the Company’s or Vertex Renewables’ “Indebtedness” (as defined in ~~the~~any Existing Financing ~~Agreements~~Agreement) (without duplication) which is more than 10 Business Days overdue (or in the case of Indebtedness of the type described in clause (e) of the definition of Indebtedness, remains outstanding more than 10 Business Days from the date constituting Indebtedness).

“Unwind Period” means the period from, and including, the date on which an Acceleration Notice is delivered to the Company by Macquarie to, and excluding, the Macquarie Unwind Termination Date.

“Unwind Procedures” means the unwind procedures set out in Sections 20.5 to 20.920.9 (inclusive).

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

“Vertex Party” means each of the Parent, the Company and Vertex Renewables (together, the “Vertex Parties”).

“Vertex Refining Guaranty” means the guaranty entered into between Macquarie and the Company on or around the “Effective Date” (as defined in the Vertex Renewables SOA) and pursuant to which the Company guarantees the obligations of Vertex Renewables under the Vertex Renewables Transaction Documents.

“Vertex Renewables” means Vertex Renewables Alabama LLC, a Delaware limited liability company, located at 1331 Gemini Street, Suite 250, Houston, Texas, TX 77058-2764 United States.

“Vertex Renewables Guarantor” means:

(a)

in respect of the Vertex Refining Guaranty, the Company; and

(b)

in respect of the Parent Renewables Guaranty, the Parent,

(collectively, the “Vertex Renewables Guarantors”).

“Vertex Renewables SOA” means the supply and offtake agreement entered into between Vertex Renewables and Macquarie on May 26, 2023 as may be further amended, amended and restated, and/or supplemented or varied from time to time.

“Vertex Renewables SOA Guaranties” means (a) the Vertex Refining Guaranty; and (b) the guaranty entered into between Macquarie and the Company on or around the “Effective Date” (as defined in the Vertex Renewables SOA) and pursuant to which the Parent guarantees the obligations of Vertex Renewables under the Vertex Renewables Transaction Documents (the “Parent Renewables Guaranty”) (each, a “Vertex Renewables SOA Guaranty”).

“Vertex Renewables Transaction Documents” has the meaning given to the term “Transaction Documents” in the Vertex Renewables SOA.

“VR Guaranty” has the meaning specified in the definition of “Guaranties”.

“Volume Determination Procedures” means (a) in respect of determining the Net Storage Volume of Crude Oil in the ~~Crude Storage Tanks or Products in the~~ Included ~~Product Tanks~~Storage Locations (other than any Included Storage Locations that are Included Barges), the Company’s ordinary daily and month-end procedures, which include manually gauging each Crude Storage Tank or Included Product Tank owned by Company on the last day of the month 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, “Volume Determination Procedures” shall include the manual gauge reading in the Company’s calculation of month-end inventory; (b) in respect of determining the Net Storage Volume of Products in the Included Product Tanks owned by any third party, using the volumes reported on the most recently available daily reports or monthly statements in respect of such tanks; (c) in respect of the linefill in the Included Crude Pipelines, such pipelines shall be deemed full, except when products owned by third parties are flowing through such pipelines~~, and~~; (d) in respect to linefill or stored barrels in an Included Crude Pipelines owned by third parties, the most recently available daily storage reports or monthly statements indicating the amount of Crude Oil in respect of such pipelines, adjusted for best available information for daily injections and receipts since the last storage report date; and (e) in respect of determining the Net Storage Volume of Crude Oil or Products in the Included Barges, the most recent volume reports prepared by the operators of such Included Barges.

“Weekly Crude Projection” has the meaning specified in Section 5.1(c).

“Weekly Product Projection” has the meaning specified in Section 8.3(c).

“Weekly Variance Report” has the meaning specified in the Post-Petition Financing Agreement.

1.2

Construction of Agreement.

(a)

Unless otherwise specified, reference to, and the definition of any document or agreement (including this Agreement, as well as all schedules thereto and hereto) shall be deemed a reference to such document or agreement as may be, amended, restated, amended and restated, supplemented, revised or otherwise modified from time to time (in each case, to the extent not prohibited by their terms or by this Agreement and the other Transaction Documents).

(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)

A reference to any Party to this Agreement or another agreement or document includes the Party’s permitted successors and assigns.

(g)

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.

(h)

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.

(i)

Unless otherwise expressly stated herein, any reference to “volume” shall be deemed to refer to actual Net Storage Volume, 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.

(j)

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.

(k)

All references herein to “estimates” or “projections” are intended to be references to good faith statements with respect to future events, and are not to be construed as guarantees of future performance.

(l)

Unless otherwise expressly stated herein, all references to “Schedules” shall mean and include such Schedules as they may be amended, revised or updated from time to time, as evidenced by written agreement (including, to the extent permitted herein, by exchange of e-mails between Authorized Representatives of the Parties) of the Parties evidencing such revision, amendment or update (it being acknowledged hereby that the foregoing does not require any Party hereto to revise, amend or update any such Schedule).

1.3

CONDITIONS TO COMMENCEMENT

2.1

Conditions to Obligations of Macquarie. The effectiveness of this Agreement and the obligations of Macquarie contemplated by this Agreement shall be subject to satisfaction (or waiver by Macquarie) of the following conditions precedent on and as of the Commencement Date:

(a)

The “Effective Time” has occurred under the Refinery SPA.

(b)

The Inventory Sales Agreement shall have been duly executed by the Company and, pursuant thereto, the Company shall have agreed to transfer to Macquarie on the Commencement Date, all right, title and interest in and to the Commencement Date Volumes subject thereto, free and clear of all Liens, other than Permitted S&O Liens;

(c)

The Interim Crude Supply Agreement and the Interim Crude Supply Assignment Agreement shall have been duly executed by the Company;

(d)

The Company shall have agreed to a form of the Step-Out Inventory Sales Agreement in form and in substance satisfactory to Macquarie;

(e)

The Company shall have duly executed the Storage Facilities Agreement in form and in substance satisfactory to Macquarie and provided Macquarie satisfactory documentation that it has secured, for the benefit of Macquarie, full, unencumbered storage and usage rights of the Crude Storage Tanks and Included Product Tanks;

(f)

Macquarie shall have confirmed to its satisfaction that, as of the Commencement Date, the Intercreditor Agreement contains provisions (including through amendments thereto and other ancillary documents such as lien releases, in each case in form and substance satisfactory to Macquarie) that (i) recognize the respective rights and obligations of the Parties under this Agreement and the other Transaction Documents, (ii) confirm that this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby do not and shall not conflict with or violate any terms and conditions of such Existing Financing Agreements, (iii) recognize that Macquarie 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 Existing Financing Agreements, (iv) recognize that Macquarie has a perfected first priority Lien on (A) the Hydrocarbon Credit Support and that such Hydrocarbon Credit Support is not part of the collateral security under the Existing Financing Agreements; and (B) related proceeds of insurance and that such proceeds of insurance are subject to the lien priorities set forth in the Intercreditor Agreements; and (v) confirm the release of any lien in favor of such lender or other creditor that might apply to or be deemed to apply to any Crude Oil and/or Products of which Macquarie is the owner or on which Macquarie has a Lien, in each case as contemplated by this Agreement and the other Transaction Documents;

(g)

Without limiting the generality of clause (e) above, Macquarie shall have received the Intercreditor Agreement with respect to the Existing Financing Agreements;

(h)

The Company shall have provided Macquarie with evidence, in a form reasonably satisfactory to Macquarie, that the Commencement Date Volumes shall be sold to Macquarie free and clear of any Liens, other than Permitted S&O Liens;

(i)

The Company shall have entered into the Lien Documents granting and perfecting in favor of Macquarie the security interest and lien contemplated thereby and all actions necessary to perfect the Liens granted thereunder shall have been completed, including the delivery of executed bailee’s letters as contemplated thereby but excluding the filing of UCC financing statements which shall be filed promptly following the Commencement Date.

(j)

The Company shall have duly executed the Fee Letter and the Independent Amount Letter and performed any terms and conditions thereof to be performed by the Company on or before the Commencement Date;

(k)

The Company shall have delivered to Macquarie the Guaranty, duly executed by the Parent;

(l)

The Company shall have delivered to Macquarie a duly executed officer’s certificate of each of the Company and the Parent containing the following documents: (i) the Organization Documents of the Company or the Parent, as applicable (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), (ii) resolutions authorizing the entry into of this Agreement and the other Transaction Documents to which it is a party, (iii) a good standing certificate for each of the Company and the Parent from (A) the relevant state of formation and (B) from any state where it is, or is required to be, qualified to do business to the extent failure to so qualified could reasonably be expected to result in a Material Adverse Change and (iv) incumbency and representative signatures;

(m)

The Company shall have delivered to Macquarie a solvency certificate from the chief financial officer, chief executive officer, president or similar senior officer of Parent (after giving effect to the transactions contemplated by this Agreement, the other Transaction Documents and the Existing Financing Agreements) certifying that the Company and the Parent, individually and collectively, are not Insolvent;

(n)

The Company shall have delivered to Macquarie a duly executed Disclosure Letter, in form and substance satisfactory to Macquarie;

(o)

The Company shall have delivered to Macquarie:

(i)

the Current Financial Statements of Parent;

(ii)

a copy of the most recent balance sheet, statement of income and statement of cash flow of the Company for the relevant fiscal year, as reviewed by the Company’s independent certified public accountants,

(iii)

a copy of the Parent’s most recent quarterly report, containing unaudited consolidated financial statements of the Company for the relevant fiscal year; and

(iv)

a copy of the Parent’s consolidated financial statements including a cash flow statement, income statement and balance sheet for the second month preceding the Commencement Date, and certified by a Responsible Officer of Parent;

(p)

The Company shall have delivered to Macquarie an opinion of counsel, in form and substance satisfactory to Macquarie, covering such matters as Macquarie shall reasonably request, including: good standing; existence and due qualification; power and authority; due authorization and execution; and the enforceability of the Transaction Documents and the Guaranty;

(q)

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 Commencement Date to set aside, restrain, enjoin or prevent the transactions and performance of the obligations contemplated by this Agreement;

(r)

Neither the Refinery nor any of the Included Storage 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 Storage Locations;

(s)

The Company shall have delivered to Macquarie insurance certificates evidencing the effectiveness of the insurance policies and endorsements required by Article 17 below within five (5) Business Days after the Commencement Date;

(t)

The Company shall have complied with all covenants and agreements hereunder that it is required to comply with on or before the Commencement Date;

(u)

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 Commencement Date, except for such representations and warranties that are expressly limited to another date;

(v)

The Company shall have delivered to Macquarie all necessary consents of stockholders or members and other third parties with respect to the execution, delivery and performance of the Transaction Documents by the Company and the Parent and such other certificates, documents and instruments as may be reasonably necessary to consummate the transactions contemplated herein;

(w)

[reserved];

(x)

On or prior to the Commencement Date, the Company shall have provided to Macquarie:

(i)

the Target Month End Crude Inventory Volume and the Target Month End Product Volume in respect of April 2022;

(ii)

the Monthly Crude Purchase Offer in respect of April 2022;

(iii)

the most recent reports (as at the Commencement Date):

(A)

the Monthly Crude Forecast;

(B)

the Monthly Product Estimate;

(C)

the Projected Monthly Run Volume;

(D)

the Weekly Crude Projection; and

(E)

the Weekly Product Projection; and

(iv)

an expected Product yield for the Refinery based on its then current operating forecast for the Refinery (the “Initial Estimated Yield”);

(y)

Macquarie shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Commencement Date required to be reimbursed or paid by the Company hereunder, under the Fee Letter or any other Transaction Document on or prior to such date, including reimbursement or payment of Macquarie’s and its Affiliates’ reasonable out-of-pocket expenses (including fees, charges and disbursements of Macquarie’s counsel, experts and consultants);

(z)

The Independent Amount shall have been posted with Macquarie as contemplated by Section 4.3;

(aa)

Payment of other Macquarie fees and expenses expressly required hereby and due on the Commencement Date. For the avoidance of doubt, this does not include any monthly fees due throughout the term of the contract;

(bb)

On or prior to the Commencement Date, Reed Smith LLP shall have provided to Macquarie such legal opinions or memoranda of law regarding this Agreement as may be required by Macquarie; and

(cc)

Without duplication, the Company shall have provided Macquarie fully executed Transaction Documents in form and in substance satisfactory to Macquarie.

2.2

Conditions to Obligations of the Company. The obligations of the Company contemplated by this Agreement shall be subject to satisfaction by Macquarie of the following conditions precedent on and as of the Commencement Date:

(a)

Macquarie shall have duly executed and delivered the Inventory Sales Agreement in form and substance satisfactory to the Company;

(b)

Macquarie shall have duly executed and delivered the Interim Crude Supply Assignment Agreement in form and substance satisfactory to the Company;

(c)

Macquarie shall have agreed to the form of the Step-Out Inventory Sales Agreement in form and in substance satisfactory to the Company;

(d)

Macquarie shall have duly executed and delivered the Storage Facilities Agreement in form and in substance satisfactory to the Company;

(e)

Macquarie shall have duly executed and delivered the Fee Letter and the Independent Amount Letter;

(f)

Macquarie shall have executed and delivered the Lien Documents to the extent its signature is required thereunder;

(g)

All representations and warranties of Macquarie contained in the Transaction Documents shall be true and correct on and as of the Commencement Date except for such as are expressly limited to another date;

(h)

Macquarie shall have complied with all covenants and agreements hereunder that it is required to comply with on or before the Commencement Date;

(i)

Macquarie shall have delivered to the Company such other certificates, documents and instruments as may be reasonably necessary to consummate the transactions contemplated herein; and

(j)

Macquarie shall have delivered satisfactory evidence of its federal form 637 license.

2.3

Commencement Date.

(a)

Subject to the satisfaction (or waiver) of the conditions set forth in Sections 2.1 and 2.2, the “Commencement Date” shall be a Business Day mutually agreed to by the Parties on or after the Effective Date and on or prior to April 1, 2022 or such later date as the Parties shall agree (the “Latest Commencement Date”).

(b)

If the Commencement Date has not occurred on or before the Latest Commencement Date, this Agreement shall terminate on the first Business Day following the Latest Commencement Date. In such case, all obligations of the Parties hereunder shall terminate, except for the obligations set forth in Article 2 (excluding Section 2.5(b)), Article 22, Article 23 and Article 25 and any obligation under the last sentence of this Section 2.3(b); provided, however, that nothing herein shall relieve any Party from liability for the breach of any of its representations, warranties, covenants or agreements set forth in this Agreement. Without limiting the foregoing, if the failure of the Commencement Date to occur on or before the Latest Commencement Date is due to (i) any breach by the Company of its obligations hereunder, including its obligations under clause (b) below or (ii) the failure of any of the conditions contained in Section 2.1 to be satisfied on or before the Latest Commencement Date unless such failure is due to any breach by Macquarie of its obligations hereunder, including its obligations under clause (b) below, then the Company shall be obligated to reimburse Macquarie for any out of pocket losses, costs and damages incurred or realized by Macquarie as a result of its maintaining, terminating or obtaining any Related Hedges.

(c)

From and after the Effective Date, the Company shall use commercially reasonable efforts to cause each of the conditions referred to in Section 2.1 to be satisfied on or prior to the Latest Commencement Date and Macquarie shall use commercially reasonable efforts to cause each of the conditions referred to in Section 2.2 to be satisfied on or prior to the Latest Commencement Date.

2.4

UCC Filings and Mortgages.

(a)

UCC Filings.

(i)

From and after the Commencement Date, the Company shall cooperate with Macquarie to cause to be prepared, and filed, in such jurisdictions as Macquarie shall deem necessary or appropriate, UCC-1 financing statements reflecting (i) Macquarie as owner of all Crude Oil and Products in the Included Storage Locations and (ii) Macquarie as a secured party with respect to the Credit Support to perfect Macquarie’s security interest under the Lien Documents. The Company shall execute and deliver to Macquarie, and the Company hereby authorizes Macquarie 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 Credit Support, and other documents and instruments, all in form satisfactory to Macquarie, as Macquarie may request, to confirm Macquarie’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.

(ii)

Without limiting the generality of the foregoing, the Company ratifies and authorizes the filing by Macquarie of any financing statements filed prior to the Commencement Date and identified by Macquarie in writing to the Company.

2.5

Post-Commencement Date Covenants

(a)

[Reserved]

(b)

Renewable Diesel Conversion. From and after the Commencement Date to and including the date falling 90 days after the Commencement Date or such later date as may be agreed between the parties (the “RD Negotiation Period”), the Company and Macquarie shall, in good faith, use commercially reasonable efforts to negotiate mutually agreeable terms for Macquarie’s intermediating of renewable feedstocks and renewable diesel that will be utilized and/or produced by the Company in connection with and following the renewable diesel conversion project (such intermediation, the “Renewable Diesel Intermediation”). During the RD Negotiation Period, the Company acknowledges and agrees that Macquarie shall have the first right of refusal in respect of any intermediation arrangements for renewable feedstock and renewable diesel and accordingly, the Company shall not (and shall procure that neither the Parent nor any of its Affiliates shall) enter into any negotiations with any third parties in respect to any such intermediation arrangements unless and until the earliest to occur of (i) Macquarie notifying the Company in writing that it is not able or willing to enter into a Renewable Diesel Intermediation in relation to the Refinery; and (ii) 11:59 p.m. (EST) on the last day of the RD Negotiation Period. Notwithstanding the foregoing, this Agreement (including this Section 2.5(b)) shall not limit or otherwise restrict the Company’s ability to enter into and negotiate agreements for the purchase and sale of renewable diesel and renewable feedstock with third parties and any such agreements, and any renewable feedstocks or renewable diesel (and any products or proceeds thereof) owned, purchased or sold by the Company shall not be governed by this Agreement unless and until the Parties have consummated the Renewable Diesel Intermediation.

(c)

Cashflow Forecast. From and after the Commencement Date, the Company shall cooperate with Macquarie to develop a form of Cashflow Forecast (in form and substance satisfactory to Macquarie) by no later than the date falling 10 Business Days after the Commencement Date to enable Macquarie to monitor the Company’s compliance with the Minimum Liquidity Requirement and the requirements of Section 19.5 (Negative Covenants),

(d)

Notice of Title. On any day from (and including) each day on which a new Included Barge is specified in Schedule E hereto (each, a “Barge Inclusion Date”), the Company shall deliver a duly executed Notice of Title (in form and substance satisfactory to Macquarie) to the relevant Barge Operator and the relevant Barge Owner in respect of that Included Barge.

(e)

Notice and Acknowledgment of Title.

(i)

On any date on or after the Restructuring Effective Date on which either (A) an Included Barge is first specified in Schedule E hereto; or (B) the date on which the Company becomes aware of a change of Barge Owner or Barge Operator in respect of an Included Barge (such date, the “Notification Date”), the Company shall deliver a Notice of Title to each relevant Barge Owner and/or Barge Operator in respect of such Included Barge.

(ii)

From (and including) the Barge Inclusion Date or, if later, the Notification Date, the Company shall use commercially reasonable efforts to procure that each Barge Operator and each Barge Owner provides a written Acknowledgment of Title (in form and substance satisfactory to Macquarie) by the date falling 30 calendar days after the Restructuring Effective Date or, if later, the relevant Notification Date for that Included Barge.

(iii)

Failure to obtain such Acknowledgment of Title from each Barge Operator and each Barge Owner in respect of each Included Barge shall not constitute a Default or an Event of Default in respect of the Company for the purposes of this Agreement but instead Macquarie may, in its sole discretion, elect to vary the applicable Product Delivery Point(s) or the Product Intake Point(s) as necessary to account for the failure of the relevant Barge Owner and/or Barge Operator, as the case may be, to provide an Acknowledgment of Title in respect of a barge that would (but for such failure to deliver an Acknowledgment of Title) have been treated by Macquarie and the Company as an Included Barge. If an Acknowledgment of Title is not provided in respect of a barge by the Barge Owner and the Barge Operator, such barge shall cease to be treated as an Included Barge for the purposes of this Agreement.

(f)

Bidding Process. With respect to a potential sale under section 363 of the Bankruptcy Code, the Company shall reasonably apprise Macquarie regarding the progress of the bidding process and shall use reasonable good faith efforts to introduce Macquarie to potential bidders interested in the provision of intermediation servicers in connection with their bid, in all cases subject to and in accordance with the Bankruptcy Code and any procedures approved by the Bankruptcy Court governing the bidding process.

(g)

Step-Out Inventory Sales Agreement. Following the Restructuring Effective Date, to the extent reasonably requested by either Party, the Parties will cooperate in good faith to mutually review the Step-Out Inventory Sales Agreement and agree to such conforming changes and other updates as may be appropriate to reflect the circumstances of the Chapter 11 Cases.

(h)

Sale of Products by Macquarie to Customers. Following the Restructuring Effective Date, the Parties will use commercially reasonable efforts to amend the terms of this Agreement to provide a more detailed framework for the entry into of Included Sales Transactions pursuant to which (i) the Company may request that Macquarie enter into an Included Sales Transactions from time to time; and (ii) Macquarie shall review any such request and use commercially reasonable efforts to accommodate the entry into Included Sales Transactions to the extent it is permitted to do so in accordance with Macquarie’s Policies and Procedures; provided that any such framework must be substantially similar to (x) the sale and purchase mechanisms contemplated by the Tripartite Product Offtake Agreements in effect as at the Restructuring Effective Date; and (y) with respect to the procedures relating to the delivery and consideration of Product Sales Request, the procedures relating to the entry into of Macquarie Crude Procurement Contracts as set out in Section 5.2(d).

TERM OF AGREEMENT

3.1

Term.

(a)

~~3.1 Term.~~ The Agreement shall become effective on the Effective Date, and subject to Section 3.2, shall continue ~~for a 24 month period immediately following the “Effective Date” (as defined in the Vertex Renewables SOA) (~~until the earlier of:

(i)

the date falling:

(A)

4 months after the Petition Date; or

(B)

if Macquarie so consents following a request made by the Company in writing at least ten (10) calendar days’ prior to the expiration of the then current Term (a “Term Extension Request”), 5 months or 6 months after the Petition Date, it being acknowledged that the Company may only make two requests for an extension to the Term of no more than one month at a time); and

(ii)

the effective date of a confirmed plan of reorganization or the closing date of a sale under Section 363 of the Bankruptcy Code,

(the “Term”)~~. The~~ and the last day of the Term is, the “Expiration Date”~~. Unless an Optional Early Termination Date or an RD Early Termination Date is designated~~). In considering whether or not to consent to a Term Extension Request, Macquarie shall take into account factors such as it, in its sole discretion, deems relevant, including, without limitation, the application of Macquarie’s Policies and Procedures, whether the most recent Cashflow Forecast delivered to it pursuant to Section ~~3.2, the Term shall be automatically extended for a further year period on the date that is the then prevailing Expiration Date.~~

~~3.2~~ 14.2(i)(i) evidences the Company’s ability to comply with the Minimum Liquidity Requirement for the duration of the Term (as so extended) and if a Default or Event of Default has occurred and is continuing with respect to the Company or if a ~~Early~~ Termination ~~Rights~~Event has occurred.

(b)

(a) Either Party may elect to terminate this Agreement by providing the other Party notice of any such election pursuant to Article 28; provided that (i) no such election shall be effective until the day falling 180 calendar days following the date on which such notice is delivered (the “Optional Early Termination Date”); and (ii) if the Company has elected to terminate this Agreement, such election to terminate shall not be valid unless and until Vertex Renewables has also elected to terminate the Vertex Renewables SOA in accordance with the terms of that agreement and, notwithstanding the foregoing proviso, the “Optional Early Termination Date” in these circumstances shall be the date falling 180 calendar days after the later of the date on which (A) the Company notified Macquarie of its election to terminate this Agreement; and (B) Vertex Renewables notified Macquarie of its election to terminate the Vertex Renewables SOA. For the avoidance of doubt, the Termination Amount for any early termination pursuant to this paragraph shall be calculated in accordance withIf the Term ends on a date that is not the last day of a Month, the Company shall, or shall cause any replacement intermediation provider or purchaser pursuant to an Acceptable Plan or Sale to either (i) accept the transfer, by way of novation, of each Macquarie Crude Procurement Contract or Included Product Purchase Transaction (including any sale and purchase transaction entered into under a Tripartite Crude Supply Agreement) in respect of which the relevant quantity of Crude Oil or Product that is the subject to such Macquarie Crude Procurement Contract or Included Product Purchase Transaction is in transit to the Refinery but has not yet arrived (collectively, the “In-Transit Inventory”); or (ii) if Macquarie determines that it is not able to novate each Macquarie Crude Procurement Contract or Included Product Purchase Transaction (including, without limitation, in circumstances where Macquarie is not able to transact with the Company, any Guarantor, purchaser or replacement intermediation provider following the effective date of a plan of reorganization), prepay to Macquarie an amount equal to the amount payable under the terms of this Agreement for all such In-Transit Inventory (or provide such alternate credit support (which may but need not be in the form of a letter of credit) as Macquarie may reasonably deem acceptable), in which case title and risk to such Crude Oil or Products shall pass upon delivery to the Company. If a Macquarie Crude Procurement Contract or an Included Product Purchase Transaction has not yet completed pricing as of the last day of the Term (each, an “Unpriced Contract”), then Macquarie shall estimate, in good faith and in a commercially reasonable manner, the price payable for any In-Transit Inventory that is the subject of an Unpriced Contract using the pricing benchmark(s) and differential(s) specified in such Unpriced Contract; provided that this sentence will supplement, and not limit, Section ~~21.2~~21.2(b) below.

(c)

The Company may, by notice in writing at least ten (10) calendar days prior to the Expiration Date, request that the Term be extended for a transitional period of no more than ninety (90) calendar days (the “Transitional Support Period”) in order to facilitate an orderly transition as contemplated by this Section 3.2(b) and Section 21. Macquarie shall be under no obligation to agree to extend the Term for the Transitional Support Period if (i) it determines, in accordance with Macquarie’s Policies and Procedures and after completing all necessary “know-your-customer” checks, that it is not able to transact with the Company or a Guarantor after the end of the Chapter 11 Case; or (ii) the Company does not provide a Cashflow Forecast to Macquarie that is dated no more than two (2) weeks prior to the Expiration Date; or (iii) any such Cashflow Forecast delivered by the Company does not evidence its ability to comply, on an ongoing basis, with the Minimum Liquidity Requirement (as may be amended by Macquarie, in its reasonable discretion, to reasonably reflect any change in creditworthiness or ownership structure of the Company after the date that would (but for the Transitional Support Period) have been the end of the Term) for the duration of the Transitional Support Period. Unless Macquarie determines, in accordance with Macquarie’s Policies and Procedures and after completing all necessary “know-your-customer” checks, that it cannot extend the Term for the Transitional Support Period for the foregoing reasons, then (i) subject to sub-paragraphs (ii) and (iii) below, the Term shall be extended by a period of time equal in length to the duration of the Transitional Support Period; (ii) the Company shall pay to Macquarie an amount equal to the Transitional Extension Fee on the first Business Day of the Transitional Support Period; and (iii) the terms of the Transaction Document shall be amended to the extent reasonably required by Macquarie in its reasonable discretion to reasonably reflect any change in creditworthiness or ownership structure of the Company following the date that would (but for the Transitional Support Period) have been the end of the Term.

3.2

Early Termination Rights.

(a)

(b) If, by the end of the RD Negotiation Period and without limiting either Parties’ rights under Section 3.1(b), Macquarie and the Company, each acting in good faith and in a commercially reasonable manner, have not been able to reach commercial agreement regarding the entry into of a Renewable Diesel Intermediation between Macquarie and the Company, theThe Company may elect to terminate this Agreement by providing the other Party with written notice of any such election ~~(which shall specify the effective date of termination (the “RD Early Termination Date”)) to Macquarie~~ pursuant to Article 28 (an “OET Notice”); provided that:

(i)

no such election ~~shall~~will be effective ~~earlier than~~until the date falling 90fifteen (15) calendar days following the date on which notice is delivered (or, if later, the end of the calendar month in which such notice is delivered. or any termination date specified in such OET Notice) (the “Optional Early Termination Date”); and

(c) During the period from (and including) the date on which a notice to terminate has been delivered to Macquarie or to the Company, under Section 3.1(b) or Section 3.2(a), as the case may be, but prior to occurrence of the Optional Early Termination Date or the RD Early Termination Date, as applicable, (i) each of the Parties shall cooperate in good faith and in a commercially reasonable manner with the other Party to implement an orderly transition and (ii) Macquarie will agree to use commercially reasonable efforts to facilitate a sale of all of Crude Oil and Products then stored Included Storage Locations to the Company or to a replacement intermediation provider, as the case may be.

(ii)

simultaneously with the delivery of the OET Notice, the Company must provide evidence in form and substance reasonably acceptable to Macquarie that:

(A)

the Company will have sufficient funds available to it on the Optional Early Termination Date to (x) purchase all Crude Oil and Product owned by Macquarie pursuant to the Transaction Documents, in full, in cash, at a price consistent with the then applicable Current Month Pricing Benchmark; and (y) satisfy in full any other payment obligations owed to Macquarie under the terms of the Transaction Documents as of the Optional Early Termination;

(B)

any Third Party Supply/Offtake Agreements in respect of which the delivery date for the relevant delivery of Crude Oil or Product (including, without limitation, In-Transit Inventory) has not occurred will either:

(3)

in the case of an Included Sales Transaction (including those entered into under a Tripartite Product Offtake Agreement) or an Included Crude Sales Transaction be transferred, by way of novation to the Company: and

(4)

in the case of a Macquarie Crude Procurement Contract, an Included Product Purchase Transaction and a Tripartite Crude Supply Agreement will be transferred, by way of novation, or otherwise prepaid for in the manner contemplated by (and in accordance with the requirements set out in) Section (c).

(iii)

in consideration for delivering an OET Notice to Macquarie, the Company shall pay to Macquarie an amount equal to the OET Fee on the Optional Early Termination Date, which shall form part of the calculation of the amount payable by one Party to another in accordance with Article 21. For these purposes (and in consideration for the payment of the OET Fee), the amount payable in accordance with Article 21 shall disregard any fee payments that would (but for the designation of an Optional Early Termination Date) have been payable by the Company to Macquarie for further calculation periods during the Term, it being acknowledged that any breakage costs incurred by Macquarie in connection with the termination, unwinding or redeploying of all Related Hedges as a result of such early termination shall nevertheless still form part of the amount calculated in accordance with Article 21.

(b)

[Reserved].

3.3

Obligations upon Termination. The Parties shall perform their obligations relating to termination pursuant to Article 21 in connection with the termination of the Agreement on the Expiration Date.

COMMENCEMENT DATE TRANSFER

4.1

Transfer and Payment on the Commencement Date. The Parties acknowledge that Macquarie’s obligations hereunder (other than its obligation under Section 2.3 above) shall commence on the Commencement Date only if the Commencement Date Volumes shall be sold and transferred to Macquarie as provided under the Inventory Sales Agreement upon payment of the Estimated Commencement Date Value 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 Agreement.

4.3

Posting of Independent Amount. The Company shall transfer or otherwise make available to Macquarie the Independent Amount in accordance with the Independent Amount Letter. The Independent Amount shall (a) constitute credit support for all of the Company’s obligations to Macquarie under the Transactions Documents, inclusive of all of the Company’s obligations to Macquarie under Transactions and (b) be subject to the applicable provisions of this Agreement, including Section 14.4(c), and (c) except as otherwise applied or returned in accordance with the terms of the Transaction Documents, be returned to the Company only if (and when) the Transaction Documents have been terminated and all of the Company’s respective obligations to Macquarie under the Transactions Documents have been satisfied in full.

PURCHASE AND SALE OF CRUDE OIL

5.1

Monthly and Weekly Forecasts and Projections.

(a)

Target Month End Crude Inventory Volume and Target Month End Product Volume. No later than the twenty-fifth (25^th) day of the month preceding a Delivery Month, the Company shall provide Macquarie with a preliminary written forecast in the form of Schedule P of the Target Month End Crude Inventory Volume and the Target Month End Product Volume for the following Delivery Month. During the first (1^st) month of deliveries of Crude Oil made pursuant to this Agreement, the Target Month End Crude Inventory Volume and Target Month End Product Volume shall be the amounts set forth on Schedule G.

(b)

Monthly Crude Forecast.

(i)

If, following the commencement of the Chapter 11 Cases, the Permitted Supplier remains Shell Trading (US) Company, then:

(A)

~~(i) No~~no later than the tenth (10^th) day of the second month preceding a Delivery Month, the Company will deliver to Macquarie the Permitted Supplier Crude Estimate for that Delivery Month;

(B)

~~(ii) No~~no later than the twentieth (20^th) day of the second month preceding a Delivery Month, the Company shall provide Macquarie and the Permitted Supplier with an initial mandate for that Delivery Month in the form of Schedule Q, setting forth the Refinery’s anticipated Crude Oil requirements (each, a “Monthly Crude Forecast”). The Monthly Crude Forecast will include (i) the quantity, grade and schedule of Crude Oil to be supplied to Macquarie by the Permitted Supplier in accordance with the terms of the relevant Tripartite Crude Supply Agreement; and (ii) the quantity, grade and schedule of any Refinery Procured Crude Barrels (if any) expected to be delivered for that Delivery Month. ,

but only to the extent that the foregoing requirements are consistent with the terms of the Shell Crude Supply Agreement and the Tripartite Crude Supply Agreement relating thereto as in effect after the commencement of the Chapter 11 Cases, the entry of the Interim Intermediation Order and/or the Final Intermediation Order.

(ii)

~~(iii)~~ No later than the twenty-fifth (25^th) day of the month preceding a Delivery Month, or promptly following the Company’s receipt of the Permitted Supplier’s Crude Confirmation from the Permitted Supplier (such date being, the “Monthly Crude Notification Date”), the Company will deliver to Macquarie:

~~(A) the Permitted Supplier’s Crude Confirmation for that Delivery Month (a “Monthly Crude Confirmation”); and~~

(A)

~~(B)~~ an offer to purchase certain grades and quantities of Crude Oil from Macquarie (a “Monthly Crude Purchase Offer”) in accordance with the terms of this Agreement within two calendar months of the Monthly Crude Notification Date. ; and

(B)

if Shell Trading (US) Company remains the Permitted Supplier following the commencement of the Chapter 11 Cases and the terms of the Shell Crude Supply Agreement and the related Tripartite Crude Supply Agreement as in effect following the commencement of the Chapter 11 Cases require the Permitted Supplier to deliver a monthly confirmation to the Company of the Crude Oil grades (including the volumes per grade and the pricing levels) secured by the Permitted Supplier for a Delivery Month, the Permitted Supplier’s Crude Confirmation for that Delivery Month (a “Monthly Crude Confirmation”).

(iii)

~~(iv)~~ Macquarie shall ~~have the right to reject any Monthly Crude Confirmation and/or any Monthly Crude Purchase Offer; provided, however, that~~promptly accept each Monthly Crude Purchase Offer and, subject to the provisions of this Section (iii)5.1(b)(iii), each Monthly Crude Confirmation. The Company and Macquarie acknowledge and agree that (x) Macquarie shall be under no obligation to accept a Monthly Crude Confirmation if Macquarie determines, in good faith and in a commercially reasonable manner, that the Commitment Requirements are not satisfied in relation to the Monthly Crude Confirmation and corresponding Delivery Month and accordingly, Macquarie may reject a Monthly Crude Confirmation if it determines, in good faith and in a commercially reasonable manner, that such Commitment Requirements are not met; (y) the acceptance of a Monthly Crude Confirmation and the entry into any resulting transactions with the Permitted Supplier pursuant to the Tripartite Crude Supply Agreement shall constitute an extension of credit and a “financial accommodation” to or for the benefit of the Company within the meaning of Section 365(c)(2) and 365(e)(2) of the Bankruptcy Code; and (z) if Macquarie determines ~~that it is not able to accept any Monthly Crude Confirmation or any Monthly Crude Purchase Offer~~, in good faith and in a commercially reasonable manner that the Commitment Requirements are met for a Delivery Month, ~~it will notify the Company within one (1) Business Day of the Monthly Crude Notification Date~~Macquarie shall make a “Positive Election” to the Permitted Supplier in accordance with the terms of the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement. Macquarie shall, subject to confidentiality and compliance with its internal policies and procedures of general application and consistently applied, provide a reasonably detailed explanation for its rejection of such Monthly Crude Confirmation ~~and/or such Monthly Crude Purchase Offer, as applicable~~, to the extent possible but shall be under no obligation to disclose any information that Macquarie determines, in good faith and in a commercially reasonable manner, to be confidential or proprietary information. In the event that Macquarie does not reject a Monthly Crude Confirmation ~~or a Monthly Crude Purchase Offer~~ within one (1) Business Day of the Monthly Crude Notification Date, Macquarie shall be deemed to have accepted the same. In the event Macquarie timely rejects any Monthly Crude Confirmation ~~and/or any Monthly Crude Purchase Offer~~, the Parties will meet not later than the following day to agree upon a mutually agreeable alternative.

(iv)

~~(v)~~ If thereafter any change occurs outside of customary refinery operations affecting the quantity, grade or schedule of the Crude Oil to be supplied to Macquarie by the Permitted Supplier or any Third Party Supplier ~~pursuant to Section 5.1(b)(iii)~~on the Third Party Supplier List or the Refinery Procured Crude Barrels (if any) that the Company expects to procure for delivery during a Delivery Month that the Monthly Crude Forecast, Monthly Crude Purchase Offer or Monthly Crude Confirmation (if any) relates to, the Company shall promptly advise Macquarie of such change and resolve and agree upon any needed changes in Target Month End Crude Inventory Volumes.

(c)

Weekly Crude Projection. No later than 5:00 p.m., CT on Thursday of each week, the Company shall provide Macquarie with a written summary in the form of Schedule R of the Refinery’s projected Crude Oil runs for the next immediately succeeding Projection Week (each, a “Weekly Crude Projection”). Macquarie shall have the right to reject any Weekly Crude Projection if it determines that either (i) such Weekly Crude Projection is not consistent with the terms of any Monthly Crude Purchase Offer that has been accepted by Macquarie; and/or (ii) such Weekly Crude Projection is inconsistent with the quantities of Crude Oil expected to be stored in the Crude Storage Tanks on any day during the relevant Projection Week, after taking into account any quantities of Crude Oil that Macquarie has notified the Company that it intends to withdraw from the Crude Storage Tanks on or prior to such date in accordance with the terms of the Storage Facilities Agreement; provided, however, that in the event Macquarie does not reject a Weekly Crude Projection by Friday at 5:00 pm CT, Macquarie shall be deemed to have accepted the same. In the event that Macquarie timely rejects any Weekly Crude Projection, the Parties will meet not later than the following day to agree upon a mutually agreeable alternative to be used as the Weekly Crude Projection.

(d)

Change in Weekly Crude Projection. The Company shall promptly notify Macquarie in writing upon learning of any material change in any Weekly Crude Projection or if it is necessary to delay any previously scheduled pipeline nominations.

(e)

Responsibility of Company for Forecast and Projections. The Parties acknowledge that the Company is solely responsible for providing the Monthly Crude Confirmation, the Monthly Crude Purchase Offer, the Monthly Crude Forecast and the Weekly Crude Projection and for making any adjustments thereto, and the Company agrees that any 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 Accepted Industry Practice; provided, however, that the Parties acknowledge and agree that any such forecasts and projections are only estimates and not guarantees of future performance, and the Company shall have no liability to Macquarie for any differences between such forecasts and projections provided by the Company in good faith and the actual crude requirements or runs. The Company acknowledges and agrees that (i) Macquarie shall be entitled to rely and act, and shall be fully protected in relying and acting, upon all such forecasts and projections until notified otherwise by the Company in accordance with Section ~~5.1(b)(iv)~~5.1(b)(iv) or (d) of this Agreement, and (ii) Macquarie shall not have any responsibility to make any investigation into the facts or matters stated in such forecasts or projections.

5.2

Macquarie Crude Procurement Contracts.

(a)

Volume of Macquarie Procurement Barrels. On and after the Commencement Date through the end of the Term, Macquarie shall, ~~if it has agreed to do so in accordance with the terms and conditions set forth therein~~subject to all applicable terms hereof, purchase from:

(i)

the Permitted Supplier under the Tripartite Crude Supply Agreement~~; if it has agreed to do so in accordance with the terms and conditions set forth therein;~~ relating to the Shell Crude Supply Agreement if a “Positive Election” (as defined in such Tripartite Crude Supply Agreement) has been made by Macquarie for the relevant Delivery Month;

(ii)

a Third Party Supplier (other than the Permitted Supplier under the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement) but only to the extent that Macquarie has notified the Company pursuant to Section ~~5.2(d)(v)~~5.2(d)(v) that it is willing and able to enter into a Macquarie Crude Procurement Contract with the relevant Third Party Supplier in relation to an Identified Crude Oil Delivery and subject always to Section 5.2(g); and/or

(iii)

the Company, in the limited circumstances described in Section ~~5.2(d)(viii)~~5.2(d)(viii) below,

in each case, the Crude Oil set out in each Monthly Crude Confirmation ~~accepted by Macquarie.~~for a Delivery Month or as may be determined in accordance with the Monthly Crude Purchase Offer for that Delivery Month. The Company and Macquarie acknowledge and agree that (x) Macquarie shall be under no obligation to enter into a Macquarie Crude Procurement Contract unless Macquarie determines, in good faith and in a commercially reasonable manner, that the Commitment Requirements are met in relation to any request to enter into a Macquarie Crude Procurement Contract and accordingly, Macquarie may reject a request to enter into a Macquarie Crude Procurement Contract if it determines, in good faith and in a commercially reasonable manner, that such Commitment Requirements are not met in relation to that Macquarie Crude Procurement Contract; (y) the entry into each Macquarie Crude Procurement Contract shall constitute an extension of credit and a “financial accommodation” to or for the benefit of the Company within the meaning of Section 365(c)(2) and 365(e)(2) of the Bankruptcy Code; and (z) if Macquarie determines that the Commitment Requirements are met in relation to a request to enter into a Macquarie Crude Procurement Contract, the provisions of Section 5.2(d) below shall apply.

(b)

Sale of Macquarie Procurement Barrels. For sales of Macquarie Procurement Barrels by Macquarie to the Company, title and risk of loss for each quantity of Crude Oil shall pass to Company on an “ex works” basis (EXW Incoterms ® 2010) as the Crude Oil passes the applicable Crude Delivery Point and such title shall pass to the Company free of all Liens, other than Permitted S&O Liens which are not Permitted Article 10 Liens. The Parties acknowledge that the consideration due from the Company to Macquarie for any Crude Oil shall be paid for in accordance with Article 11.

(c)

Third Party Suppliers and Third Party Offtakers

(i)

Schedule V (Third Party Supplier List and Third Party Offtaker List) contains a list of (x) Third Party Suppliers; and (y) Third Party Offtakers, in each case, in respect of whom Macquarie has completed all necessary “know-your-customer” and similar on-boarding procedures as at the Restructuring Effective Date (with respect to (x) the “Third Party Supplier List” and with respect to (y), the “Third Party Offtaker List”). Each of the Third Party Supplier List and the Third Party Offtaker List may be updated by notice from Macquarie to the Company from time to time.

(ii)

The Company may from time to time propose to Macquarie the addition of a new Third Party Supplier to the Third Party Supplier List or a new Third Party Offtaker to the Third Party Offtaker List. Macquarie shall consider any proposal, in good faith and in a commercially reasonable manner, and shall seek to accommodate each such proposal to the extent it is able to do so in accordance with Macquarie’s Policies and Procedures. Macquarie shall promptly after receipt of such proposal from the Company confirm to the Company whether Macquarie expects that it or an Affiliate will or will not be able to enter into (i) a Macquarie Crude Procurement Contract or Included Product Purchase Transaction with such proposed Third Party Supplier(s); or (y) an Included Crude Sale Transaction or Included Sales Transaction with such proposed Third Party Offtakers.

(iii)

If Macquarie has confirmed to the Company that it expects that it or an Affiliate will be able to enter into (x) a Macquarie Crude Procurement Contract or Included Product Purchase Transaction with a proposed Third Party Supplier; or (y) an Included Crude Sales Transaction or Included Sales Transaction with a proposed Third Party Offtaker, Macquarie shall use reasonable endeavors to complete all necessary “know-your-customer” and similar on-boarding procedures in respect of such proposed Third Party Supplier or Third Party Offtaker, as applicable, in order to permit Macquarie or an Affiliate to enter into (1) Macquarie Crude Procurement Contracts or Included Product Purchase Transactions with the proposed Third Party Supplier or (2) Included Crude Sales Transactions or Included Sales Transaction, as applicable, following which Macquarie shall include such proposed Third Party Supplier or Third Party Offtaker on the Third Party Supplier List or Third Party Offtaker List.

(iv)

Macquarie shall notify the Company promptly after its operational team involved in the management of the Transactions contemplated by this Agreement becomes aware that it or an Affiliate may or may not be able to enter into (x) a Macquarie Crude Procurement Contract or Included Product Purchase Transaction with any Third Party Supplier already on the Third Party Supplier List; or (y) an Included Crude Sales Transaction or an Included Sales Transaction with a Third Party Offtaker already on the Third Party Offtaker List (including as a consequence of the application of Macquarie’s Policies and Procedures). The Parties shall consult in relation to the same to determine if there are consequential steps mutually agreeable to both Parties that might operate to alleviate the relevant issue such that Macquarie or an Affiliate is able to enter into (1) Macquarie Crude Procurement Contracts or Included Product Purchase Transactions with the relevant Third Party Supplier or (2) Included Crude Sales Transaction or Included Sales Transactions with the relevant Third Party Offtaker. Until and in the absence of agreement between the Parties in relation to the same, the relevant entity shall not be treated as being on the Third Party Supplier List or Third Party Offtaker List and any Transaction Supplement (other than a Transaction Supplement which has been accepted in accordance with Section 5.2(d) or Section 8.1(b), which shall continue in accordance with its terms) referencing such Third Party Supplier or Third Party Offtaker shall be deemed to have been withdrawn.

(d)

~~(c)~~ Procedures and Mechanisms for Additional Macquarie Crude Procurement Contracts.

(i)

Macquarie and the Company may, from time to time, to the extent not prohibited by the terms of the Tripartite Crude Supply Agreement and the Shell Crude Supply Contract but subject always to Section 5.2(g), agree on an ad hoc basis that Macquarie will procure Crude Oil pursuant to a Macquarie Crude Procurement Contract on such terms and subject to such conditions as the Parties may agree, each in their sole discretion.

(ii)

Without limiting the foregoing, the Company may, from time to time but subject always to Section 5.2(g) (if and to the extent ~~permitted by the terms of the Tripartite Crude Supply Agreement and the Shell Crude Supply Contract~~that such contracts remain in effect following the commencement of the Chapter 11 Cases), notify Macquarie of:

(A)

one or more quantities of Crude Oil available in the market for delivery (each an “Identified Crude Oil Delivery”) which:

(1)

are available from a Third Party Supplier (other than the Permitted Supplier under the Shell Crude Supply ~~Contract)~~Agreement) on the Third Party Supplier List;

(2)

are of a specified grade; ~~and~~

(3)

the underlying Crude Oil in respect of such Identified Crude Oil Delivery does not originate from, nor has been supplied through or loaded and discharged in any High-Risk Country and

(B)

the terms (including any applicable discount or premium to index, and terms and conditions of sale) on which such cargoes or pipeline crudes are expected to be available for purchase (for the avoidance of doubt on a DES, DAT~~, FOB, CFR,~~ or DAP ~~or CIF~~ basis (or any others as may be agreed in writing as between the parties)) and whether the Company requires freight to be arranged for such Identified Crude Oil Delivery,

by providing Macquarie with a notice in the relevant form set out in Schedule L (Form of Transaction Supplement) (a “Transaction Supplement”) or in such other form as may be agreed by the Parties in writing from time to time which:

(1)

shall comply with all applicable Sanctions Laws and other Applicable Laws relating to the control of export and contract;

(2)

shall relate to a proposed contract with a Third Party Supplier included on the Third Party Supplier List:

(I)

on open credit terms, unless otherwise agreed with Macquarie in its sole discretion (in which case, without duplication, any costs of expenses incurred by Macquarie in connection with the provision and maintenance of such credit support or collateral shall be deemed to be Ancillary Costs for which the Company is required to indemnify Macquarie); and

(II)

which are on contract terms with the relevant Third Party Supplier that are acceptable to Macquarie;

(3)

shall provide for each cargo of Crude Oil to be supplied on a customs-cleared basis where the original Third Party Supplier shall arrange and pay for export documentation and costs;

(4)

shall include full charterparty options for discharge and with diversions at charterparty cost, with access to vessel and charterparty data; ~~and~~

(5)

when such volume of Crude Oil is expected to be purchased by the Company from Macquarie.; and

(6)

shall be consistent with the terms set out in Schedule W (Relevant Jurisdictions).

(iii)

The Company shall use commercially reasonable efforts to:

(A)

separately provide to Macquarie and the relevant Third Party Supplier a draft trade recap in respect of each Transaction Supplement; and

(B)

negotiate and agree the terms of any proposed Macquarie Crude Procurement Contract with a Third Party Supplier in principle prior to delivering a Transaction Supplement and the corresponding draft trade recap to Macquarie by:

~~(B) agree~~(1) agreeing to terms with the relevant Third Party Supplier to permit Macquarie to disclose the resultant Macquarie Crude Procurement Contract and related information to the Company,; and

(2)

to the extent that the Company is aware of such MENAT Required Terms, ensuring that the relevant Macquarie Crude Procurement Contract to be entered into with a relevant Third Party Supplier contains the MENAT Required Terms (unless: (i) Macquarie or the relevant Affiliate has otherwise consented explicitly in writing to any specific amendments thereto; or (ii) Macquarie has notified the Company that Macquarie or the relevant Affiliate has previously agreed terms of sale with such Third Party Supplier which contain alternative sanctions and anti-corruption provisions, in which case such alternative provisions shall apply in respect of the Macquarie Crude Procurement Contract),

in each case, at the same time as its delivery of the relevant Transaction Supplement ~~or as soon as practicable thereafter (and, in any case, prior to Macquarie and the relevant Third Party Supplier entering into the relevant Macquarie Crude Procurement Contract)~~.

(iv)

Upon receipt of a Transaction Supplement from the Company pursuant to Section ~~5.2(d)(ii)~~5.2(d)(ii) above, Macquarie shall:

(A)

promptly notify the Company that it has received the same; and

(B)

promptly review the proposed terms of purchase of the identified delivery of Crude Oil set out in the relevant trade recap and corresponding Transaction Supplement.

(v)

Macquarie will consider any request to enter into a Macquarie Crude Procurement Contract in good faith and in a commercially reasonable manner and will seek to accommodate such request to the extent it is able to do so in accordance with Macquarie’s Policies and Procedures but subject always to the requirements set out below. Macquarie shall as soon as is reasonably practicable and in any event within ~~one~~two (12) Business ~~Day~~Days of receipt of a Transaction Supplement pursuant to Section ~~5.2(d)(ii)~~5.2(d)(ii) above, notify the Company and the relevant Third Party Supplier whether or not Macquarie is willing and able to enter into a contract to purchase the Identified Crude Oil Delivery on the terms set out in the ~~Transaction Supplement~~relevant trade recap (provided that if the Company indicates together with the relevant Transaction Supplement that greater urgency is required setting out a target time for response then Macquarie shall use commercially reasonable efforts to respond by the target time so notified)~~. Macquarie may in its sole discretion determine whether or not it is willing and~~ and shall advise (x) the Company whether any amendments are required to the terms of the Transaction Supplement; and (y) the Company and the relevant Third Party Supplier whether any amendments are required to the relevant trade recap and corresponding Macquarie Crude Procurement Contract, in each case, in order to incorporate all MENAT Required Terms. Issues in respect of which Macquarie may determine that it or an Affiliate is unable to enter into the contract include (1) the application of Macquarie’s Policies and Procedures; (2) that such trade recap and corresponding Transaction Supplement do not contain (in form and substance satisfactory to Macquarie) the inclusion of the MENAT Required Terms; (3) Macquarie determining, in good faith and in a commercially reasonable manner, that the Commitment Requirements are not met in relation to such trade recap and corresponding Transaction Supplement. If Macquarie determines that it or an Affiliate is unwilling or unable to enter into the contract, Macquarie shall, subject to confidentiality and compliance with its internal policies and procedures of general application and consistently applied, provide a reasonably detailed explanation for its rejection of such Transaction Supplement and corresponding Macquarie Crude Procurement Contract, to the extent possible but shall be under no obligation to disclose any information that Macquarie determines, in good faith and in a commercially reasonable manner, to be confidential or proprietary information and Macquarie and the Company shall consult in relation to the same to determine if there are consequential steps mutually agreeable to both such Parties that might operate to alleviate the relevant issue such that Macquarie is able to enter into ~~such~~the relevant contract.

(vi)

If Macquarie notifies the Company pursuant to Section ~~5.2(d)(v)~~5.2(d)(v) that, subject to the terms of any Macquarie Crude Procurement Contract being in form and substance acceptable to Macquarie~~, it is~~ (as determined in accordance with the requirements set out herein), it or an Affiliate is willing and able to enter into a Macquarie Crude Procurement Contract to purchase the Identified Crude Oil Delivery on the terms set out in the Transaction Supplement, then the following process shall be followed with a view to completing all steps set out in sub-paragraphs (A) to (C) below, to the extent possible, within two (2) Business Days of receipt of the original Transaction Supplement delivered to Macquarie pursuant to Section 5.2(d)(ii) above (provided that if the Company indicates together with the relevant Transaction Supplement that greater urgency is required setting out a target time for response then Macquarie shall use ~~commercially~~ reasonable ~~efforts to promptly enter into such~~ endeavors to respond by the target time so notified):

(A)

if Macquarie has advised the Company and the relevant Third Party Supplier that amendments are required to the terms of the proposed Macquarie Crude Procurement Contract in order to incorporate all MENAT Required Terms, Macquarie and the Company shall negotiate the terms of any such Macquarie Crude Procurement Contract with the Third Party Supplier to ensure that the Macquarie Crude Procurement Contract contains the MENAT Required Terms (unless: (i) Macquarie has otherwise consented explicitly in writing to any specific amendments thereto; or (ii) Macquarie has notified the Company that Macquarie has previously agreed terms of sale with such Third Party Supplier which contain alternative sanctions and anti-corruption provisions, in which case such alternative provisions shall apply in respect of the Macquarie Crude Procurement Contract);

(B)

once Macquarie, the Company and the Third Party Supplier have agreed the terms of the relevant trade recap, the Company shall amend the corresponding Transaction Supplement relating to that trade recap as soon as reasonably practicable thereafter to reflect the amendments made to the trade recap by Macquarie, the Company and the Third Party Supplier (such revised Transaction Supplement, the “Amended Transaction Supplement”) and shall deliver the Amended Transaction Supplement to Macquarie;

(C)

promptly following receipt of the Amended Transaction Supplement, Macquarie shall confirm to the Company whether it or an Affiliate is willing and able to enter into an Macquarie Crude Procurement Contract with the relevant Third Party Supplier to purchase the Identified Crude Oil Delivery on the terms set out in such Amended Transaction Supplement; and

(D)

if Macquarie has notified the Company that it or an Affiliate is willing and able to enter into an Macquarie Crude Procurement Contract on the terms set out in the relevant trade recap and Amended Transaction Supplement, Macquarie or the relevant Affiliate, as applicable, shall use commercially reasonable endeavors to enter into such Macquarie Crude Procurement Contract with the Third Party Supplier for the purchase of the Identified Crude Oil Delivery (ason the ~~same may be~~terms negotiated between Macquarie, the Company and the Third Party Supplier), provided that the Identified Crude Oil Delivery remains available for purchase on the market under those same terms (or similar terms acceptable to the Company and Macquarie) and provided always that Macquarie, in its sole discretion, may decline to enter into any such Macquarie Crude Procurement Contract. In the event that Macquarie, in its sole discretion, declines to enter into any such Macquarie Crude Procurement Contract, it shall promptly notify the Company of its decision..

(vii)

Macquarie shall notify the Company promptly after entering into any Macquarie Crude Procurement Contract pursuant to Section ~~5.2(d)(vi)~~ 5.2(d)(vi) (and, in any event, no later than one (1) Business Day after entering into the relevant Macquarie Crude Procurement Contract).

(viii)

If Macquarie notifies the Company that it is unwilling or unable to enter into the relevant Macquarie Crude Procurement Contract with a Third Party Supplier, the Company may instead purchase the Identified Crude Oil Delivery from the relevant Third Party Supplier and sell the relevant Identified Crude Oil Delivery to Macquarie in accordance with Section 5.3 below.

(e)

Procurement Terms

(i)

High Risk Countries. If, at any point, Macquarie’s operational team in respect of the Agreement (the “MENAT Operational Team”) becomes aware that either (i) a country which is not a Sanctioned Country (a “New High Risk Country”) should be included as a High-Risk Country; or (ii) a High-Risk Country should no longer be included as a High-Risk Country (a “Ceased High Risk Country”), in either case, as a consequence of the application of Macquarie’s Policies and Procedures, Macquarie shall notify the Company of such New High-Risk Country or Ceased High Risk Country as soon as reasonably practicable upon becoming aware of any change in Macquarie’s Policies and Procedures as a result of Macquarie making such determination. From the date of such notice, any Ceased High Risk Country shall no longer be treated as a High-Risk Country for the purposes of this Agreement and any New High-Risk Country shall be a High-Risk Country and any relevant Transaction Supplement (other than Transaction Supplement which has been accepted by Macquarie or an Affiliate and which shall continue in accordance with its terms) shall be deemed to have been withdrawn.

(ii)

Jurisdictions

(A)

Schedule W (Relevant Jurisdictions) sets out the jurisdictions and territories (each, a “Relevant Jurisdiction”) in respect of which, as at the Restructuring Effective Date, Macquarie or any Affiliate may enter into a Macquarie Crude Procurement Contract or an Included Product Purchase Transaction and on which Incoterm basis.

(B)

The Company may, from time to time, propose to Macquarie a list of potential additional jurisdictions (or proposed amendments to the geographical coverage of existing Relevant Jurisdictions) from which and on which Incoterms basis it anticipates Macquarie or an Affiliate may purchase Crude Oil or Product, Macquarie shall promptly after receipt of such proposal from the Company, confirm to the Company whether Macquarie or an Affiliate may or may not enter into purchase contracts in accordance with Sections 5.2 or 8.1(b) in such jurisdictions and on such Incoterms basis. Upon confirmation of the same, Macquarie shall update Schedule W (Relevant Jurisdictions) as required to reflect any additional or updated Relevant Jurisdictions and Incoterm bases.

(C)

Macquarie shall promptly notify the Company after the MENAT Operational Team becomes aware that Macquarie or an Affiliate will or may not be able to enter into a Macquarie Crude Procurement Contract or an Included Product Purchase Transaction in respect of a Relevant Jurisdiction on a pre-agreed Incoterms basis (including as a consequence of the application of Macquarie’s Policies and Procedures). Promptly thereafter, the Parties shall consult in relation to the same to determine if there are consequential steps mutually agreeable to both Parties that might operate the alleviate the relevant issue such that Macquarie or the relevant Affiliate is able to enter into Macquarie Crude Procurement Contracts in respect of such Relevant Jurisdiction and Incoterms basis. Until and in the absence of agreement between the Parties in relation to the same, the relevant jurisdiction shall not be treated as being a Relevant Jurisdiction and any Transaction Supplement (other than a Transaction Supplement which has been accepted in accordance Section 5.2(d) or Section 8.1(b) which shall continue in accordance with its terms) referencing such jurisdiction and Incoterms basis shall be deemed to have been withdrawn.

(f)

Crude GTCs. Following the Restructuring Effective Date (but prior to the Company requesting that Macquarie enter into a Macquarie Crude Procurement Contract with a Third Party Supplier (other than the Permitted Supplier), the Parties will cooperate in good faith and in a commercially reasonable manner to agree the Crude GTCs upon which basis the Company wishes to purchase Crude Oil, which shall be specified in Schedule J (Crude GTCs and MENAT Required Terms). The Company may, from time to time, propose to Macquarie new Crude GTCs (or amendments to the existing Crude GTCs) on which basis the Company wishes Macquarie to purchase Crude Oil. Macquarie shall consider any such proposal in good faith and in a commercially reasonable manner and shall seek to accommodate each such proposal to the extent it is able to do so in accordance with Macquarie’s Policies and Procedures and after taking into account the MENAT Required Terms, in addition to the other requirements set out in Section 5.2(d) above. Macquarie shall, as soon as reasonably practicable after receipt of such proposal from the Company, confirm to the Company whether Macquarie or an Affiliate may or may not enter into Macquarie Crude Procurement Contracts in accordance with Sections 5.2 on such proposed new terms. Upon confirmation of the same, Macquarie shall update Schedule J (Crude GTCs and MENAT Required Terms).

(g)

Breach of Contractual Arrangements. Macquarie shall not be required to enter into a proposed Macquarie Crude Procurement Contract if entering into such proposed Macquarie Crude Procurement Contract would result in a breach of the Permitted Supplier’s exclusive right to supply Crude Oil under the Shell Crude Supply Agreement unless:

(i)

the Shell Crude Supply Agreement has effectively terminated (whether by rejection, other order of the Bankruptcy Court, or otherwise); and

(ii)

the first delivery under the proposed Macquarie Crude Procurement Contract is scheduled to occur after the end of the last Delivery Month for which Macquarie has made a Positive Election (as defined in the Tripartite Crude Supply Agreement relating to the Shell Crude Supply Agreement).

(h)

Policies and Procedures. In applying Macquarie’s Policies and Procedures in connection with this Agreement and the other Transaction Documents, Macquarie will apply such Policies and Procedures in good faith, in a timely manner and in a non-discriminatory fashion.

5.3

Refinery Procured Crude Barrels.

(a)

Macquarie Purchase of Refinery Procured Crude Barrels. Macquarie shall purchase all quantities of Crude Oil which the Company procures from a Third Party Supplier (“Refinery Procured Crude Barrels”) which are consistent with the volumetric nominations in the applicable Monthly Crude Confirmation ~~that has been accepted by Macquarie~~; provided that Macquarie is satisfied that the following conditions are met and subject always to Section 5.2(g):

(i)

such Refinery Procured Crude Barrels are of such grade as Macquarie has approved (including any of the grades specified in the Shell Crude Supply ~~Contract~~Agreement);

(ii) the procurement of such Refinery Procured Crude Barrels by the Company does not breach and/or would not cause the Company or Macquarie to breach the terms of the Shell Crude Supply Agreement or the Tripartite Crude Supply Agreement;

(ii)

~~(iii)~~ the quantities of Crude Oil comprising such Refinery Procured Crude Barrels do not exceed, and would not cause the Company to exceed, the maximum inventory level for Crude Oil set forth on Schedule D; and

(iii)

~~(iv)~~ no Relevant Default has occurred and is continuing in respect of the Company and no Event of Default has occurred and is continuing under this Agreement.

(b)

Procedures and Mechanisms for Refinery Procured Crude Barrels. Prior to the delivery of any Refinery Procured Crude Barrels hereunder, the Parties shall establish procedures and mechanisms, reasonably satisfactory to Macquarie, for determining and reporting specific volumes of such Refinery Procured Crude Barrels.

(c)

Sales of Refinery Procured Crude Barrels. For sales by the Company to Macquarie, they shall be on DDP (Incoterms 2010) basis (or such other basis as may be agreed between the Parties) at Current Month Pricing Benchmark(s), subject to the calculation of the Monthly True-Up Amounts as provided for on Schedule C, and title and risk of loss for each quantity of Crude Oil shall pass to Macquarie as the Crude Oil passes the applicable Crude Intake Point free of Liens other than Permitted S&O Liens. The Parties acknowledge that the consideration due from Macquarie to the Company for any Crude Oil shall be paid for in accordance with Article 11.

(d)

Sale of Refinery Procured Crude Barrels. For sales of Refinery Procured Crude Barrels by Macquarie to Company, title and risk of loss for each quantity of Crude Oil shall pass to Company on an “ex works” basis (EXW Incoterms ® 2010) as the Crude Oil passes the applicable Crude Delivery Point free of Liens, other than Permitted S&O Liens which are not Permitted Article 10 Liens. The Parties acknowledge that the consideration due from the Company to Macquarie for any Crude Oil shall be paid for in accordance with Article 11.

(e)

Company’s Obligation to Refinery Procured Crude Barrels. The Company acknowledges and agrees that, subject to the terms and conditions of this Agreement, it is obligated to purchase and take delivery of Refinery Procured Crude Barrels acquired by Macquarie from the Company.

5.4

Sale of Crude Oil by Macquarie at Crude Delivery Points.

(a)

Sale of Crude Oil by Macquarie to the Company. Provided that (a) no Default pursuant to Section 20.1(a), ~~20.1(d) or~~ Section 20.1(e) or Section 20.1(u) of this Agreement has occurred and is continuing with respect to the Company (a “Relevant Default”); or (b) no Event of Default has occurred and is continuing:

(i)

the Company shall be permitted to purchase Crude Oil from the Crude Storage Tanks and take delivery of such Crude Oil at the Crude Delivery Point in accordance with the Weekly Crude Projection and contracted for under ~~an accepted~~a Monthly Crude Purchase Offer, or as otherwise mutually agreed to by the Parties. The Parties acknowledge and agree that Macquarie is under no obligation to sell Crude Oil purchased by Macquarie pursuant to a Macquarie Crude Procurement Contract to the Company but, in any event, Macquarie is obliged to sell Crude Oil to the Company in accordance with the terms of any accepted Monthly Crude Purchase Offer. The sale and receipt of any Crude Oil by Company at any Crude Delivery Point shall be on an “ex works” basis (EXW Incoterms 2010) free of liens, other than Permitted S&O Liens. Upon such sale, title and risk of loss will transfer to the Company. The Company shall take all commercially reasonable actions necessary to maintain a connection with the Crude Storage Tanks to enable withdrawal and delivery of Crude Oil to be made as contemplated hereby; and

(ii)

the Company may, from time to time, notify Macquarie that it wishes to optimize the Crude Oil stored in the Crude Storage Tanks by purchasing Crude Oil from such Crude Storage Tanks and on-selling such Crude Oil to a third party. In such circumstances, the Company shall take delivery of such Crude Oil at a Crude Delivery Point for such purposes which, for the avoidance of doubt, shall be different to the Crude Delivery Point for purchases of Crude Oil by the Company from Macquarie pursuant to sub-paragraph (i) above. The terms for pricing and transfer of title and risk of loss for any such sale shall be as set forth in Sections 5.2(b) and 5.3(d); provided, that, on the date falling one Business Day prior to the relevant Delivery Date, the Company shall prepay to Macquarie an amount equal to the applicable Daily Price (determined by Macquarie as of the date falling two (2) Business Days prior to the relevant Delivery Date) for any volumes of Crude Oil which the Company purchases pursuant to this Section 5.4(a)(ii) prior to the withdrawal of such Crude Oil from the Included Storage Locations. Any such prepayment will be subject to the calculation of the Monthly True-Up Amounts as provided for on Schedule C and shall be invoiced and otherwise payable by the Company in accordance with Article 11 of this Agreement. For the avoidance of doubt, any such prepaid volumes shall not be separately included in the calculation of Daily Crude Sales. Any such sales shall corresponding reduce the obligations of the Parties under the relevant Monthly Crude Purchase Offer.

(b)

Included Crude Sales Transactions.

(i)

Notwithstanding anything to the contrary in this Agreement, the Company may from time to time propose to Macquarie that Macquarie enter into an Included Crude Sales Transaction with ~~a Customer~~Third Party Offtaker on the Third Party Offtaker List. Any such proposal must specify an identified ~~Customer~~Third Party Offtaker on the Third Party Offtaker List and trade terms, including price, quantity, delivery period(s), product grade or other material terms (a “Crude Sales Proposal”); provided, that the Company shall not have authority to bind Macquarie to, or enter into on Macquarie’s behalf, any Included Sales Transactions and the Company shall not represent to any Person that it has such authority. Macquarie shall consider any such proposal to enter into an Included Crude Sales Transaction in good faith and in a commercially reasonable manner, but shall be under no obligation to enter into any such Included Crude Sale Transaction. Macquarie may, as a condition precedent to the entry into of any such Included Crude Sales Transaction, require in its sole and absolute discretion that (i) an additional fee is payable by the Company to Macquarie in relation to Included Crude Sales Transactions; and (ii) procedures and mechanisms for determining and reporting the quantities and grades of Crude Oil that are the subject of any Included Crude Sales Transaction are agreed between the Parties.

(ii)

If, and only if, the Company and Macquarie agree on the terms for a potential Included Crude Sales Transaction (each in their sole and absolute discretion), Macquarie shall use commercially reasonable efforts to promptly enter into a binding agreement with a potential Customer on pricing terms at least as favorable to the Company as those on which the Company proposed that Macquarie enter into such Included Crude Sales Transaction, as specified in the Crude Sales Proposal. In the event that Macquarie identifies and enters into such an agreement with a Customer, Macquarie shall promptly finalize and confirm such Included Crude Sales Transaction to the Company using its ordinary documentation and confirmation procedures. Macquarie shall use commercially reasonable efforts to obtain the relevant Customer’s consent to Macquarie’s disclosing the applicable trade documents for such Included Sales Transaction to the Company.

(iii)

Each of the Company and Macquarie acknowledges and agrees that the difference between the amount at which Macquarie sold the relevant quantity of Crude Oil to a Customer pursuant to an Included Crude Sales Transaction and the amount at which Macquarie would have sold such quantity of Crude Oil to the Company in accordance with the terms of Section 5.4(a)(i) of the Agreement shall form part of the calculation of the Monthly True-Up Amount.

5.5

Transportation, Storage and Delivery of Crude Oil. Macquarie shall have the exclusive right to inject (except for such injections by the Company otherwise contemplated in Section 11.3), store and withdraw Crude Oil in and from the Crude Storage Tanks as provided in and subject to the Storage Facilities Agreement or applicable Required Storage and Transportation Arrangement; provided, however, that the Company shall (i) bear sole responsibility for the physical transfer of Crude Oil to and from the Crude Storage Tanks and (ii) be permitted to withdraw, transfer and inject Crude Oil to facilitate the transactions contemplated by this Agreement and as otherwise permitted by the terms of the Storage Facilities Agreement and the other Transactions Documents.

5.6

Hydrocarbon Credit Support. In the event that the Company holds title to any Hydrocarbon Credit Support, the Company shall, (for the avoidance of doubt in construing Article 22) indemnify and hold harmless Macquarie, its Affiliates and their agents, representatives, contractors, employees, directors and officers, for all Liabilities directly or indirectly arising therefrom as and to the extent provided in Article 22 (and subject thereto in all respects) except to the extent such Liabilities are caused by or attributable to any of the matters for which Macquarie is indemnifying the Company pursuant to Article 22.

5.7

Contract Documentation, Confirmations and Conditions.

Conditions to Macquarie Delivery of Crude. Macquarie’s obligations to sell Crude Oil to the Company under this Agreement shall be subject to (i) all of the terms and conditions of the Macquarie Crude Procurement Contracts, (ii) the Company fulfilling its obligations to deliver Refinery Procured Crude Barrels (if any) to Macquarie and (iii) the condition precedent that no Relevant Default and/or no Event of Default has occurred and is continuing with respect to the Company.

5.8

DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTY THAT (I) MACQUARIE SHALL HAVE AND CONVEY GOOD TITLE TO ALL CRUDE OIL OR PRODUCTS SOLD BY MACQUARIE TO COMPANY HEREUNDER; OR (II) THE COMPANY SHALL HAVE AND CONVEY GOOD TITLE TO ALL CRUDE OIL OR PRODUCTS SOLD TO MACQUARIE BY THE COMPANY HEREUNDER, IN EACH CASE, FREE AND CLEAR OF ALL LIENS, other than Permitted S&O Liens (WHICH, FOR CONVEYANCES TO THE COMPANY, ARE NOT PERMITTED ARTICLE 10 LIENS), NEITHER THE COMPANY NOR MACQUARIE, AS APPLICABLE, 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 AND ALL SUCH WARRANTIES, CONDITIONS AND OTHER REPRESENTATIONS ARE HEREBY DISCLAIMED. FURTHER, MACQUARIE MAKES NO WARRANTY OR REPRESENTATION THAT SUCH CRUDE OIL OR PRODUCTS CONFORMS TO THE SPECIFICATIONS IDENTIFIED IN ANY CONTRACT WITH THE COMPANY OR ANY THIRD PARTY SUPPLIER.

5.9

Losses, Quality Claims and Claims Handling.

(a)

Responsibility for volume differences. Where a delivery of Crude Oil to Macquarie from a Third Party Supplier pursuant to a Macquarie Crude Procurement Contract prices based on load volume, the Company shall indemnify and hold Macquarie harmless against any losses, costs and damages incurred by Macquarie if the actual volume of Crude Oil delivered to the relevant Crude Intake Point is less than the supplier invoiced load volume, including, without limitation as a result of Macquarie adjusting, entering into or terminating or obtaining any Related Hedges; provided that the Company shall be under no obligation to indemnify and hold Macquarie harmless against any losses, costs and damages incurred by Macquarie if such losses, costs and damages were caused as a result of the gross negligence, willful misconduct or intentional default of Macquarie.

(b)

Responsibility for Specifications of Crude Oil. The failure of any Crude Oil or Product that Macquarie hereunder sells to the Company to meet the specifications or other quality requirements applicable thereto as stated in a Macquarie Crude Procurement Contract for that Crude Oil 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 Macquarie hereunder; provided, however, that any claims made by Macquarie 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. The sale of any Crude Oil to the Company by Macquarie that does not meet the specifications or other quality requirements application thereto as specified in the relevant Macquarie Crude Procurement Contract for that Crude Oil shall not constitute a breach of this Agreement by Macquarie.

(c)

Coordination of Resolution of Disputes with Third Parties. 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, ocean transportation or Ancillary Costs and any dispute, claim, or controversy arising hereunder or under or in relation to any Transaction Document between Macquarie and any of its vendors or counterparties who supply goods or services in conjunction with Macquarie’s performance of its obligations under this Agreement) made by or against Macquarie arising out of or in connection with the Transaction Documents or the transactions contemplated therein. In all instances wherein any such claims are made by a third party against Macquarie which, absent any gross negligence, willful misconduct or intentional default on the part of Macquarie, shall be for the account of the Company, the Company shall have the right, subject to Section 5.9(e), to either direct Macquarie to take commercially reasonable actions in the handling of such claims or assume the handling of such claims in the name of Macquarie, all at the Company’s cost and expense; provided that Macquarie 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 Macquarie 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(e), Macquarie shall 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.

(d)

Macquarie Involvement Resolution of Disputes with Third Parties. Macquarie 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 Macquarie assists in the prosecution of such claim not at the request of Company, such prosecution shall be at Macquarie’s sole cost and expense. In no event may Macquarie settle any such claim without the Company’s prior written consent, such consent not to be unreasonably conditioned, delayed or withheld. In the event that Macquarie has a claim or cause of action arising under any Macquarie Crude Procurement Contract that Macquarie declines to pursue or prosecute, then Macquarie shall, upon written request of the Company, to the extent possible through the use of commercially reasonable efforts either assign such claim or cause of action to the Company, or designate the Company as Macquarie’s limited agent, so at to facilitate the Company’s ability to pursue or prosecute such claim.

(e)

Disputes Subject to Indemnification Provisions. In addition, any claim that is or becomes subject to Article 22 shall be handled and resolved in accordance with the provisions of Article 22.

(f)

Disputes with a ~~Permitted~~Third Party Supplier: Macquarie shall be under no obligation to pay any amount to the Company in relation to any quantity, quality or other claim in relation to any Crude Oil or Product delivered to Refinery that is the subject of a Macquarie Crude Procurement Contract or an Included Product Purchase Transaction including, without limitation, in relation to any damage caused to the Refinery, the Refinery Facility, the Included Storage Locations or otherwise, except and to the extent only, that Macquarie has received the corresponding payment from the Permitted Supplier or Third Party Supplier or other third party with respect to such claim.

(g)

Intent of the Parties. The Parties acknowledge and agree that the excusal of Macquarie’s performance under Sections 5.9(a), 5.9(b), and otherwise under this Agreement and the other Transaction Documents, is solely for purposes of allocating the respective rights, liabilities and obligations as between Macquarie and the Company and is not intended to excuse a default or limit the liability of any third party.

5.10

Communications Regarding Nominations and Deliveries. The Parties shall coordinate all nominations and deliveries according to the communications protocol on Schedule I.

PURCHASE PRICE FOR CRUDE OIL

6.1

Daily Volumes. Each Business Day the Company shall provide to Macquarie meter tickets and/or meter readings, barge inspection report(s), and tank gauge readings confirming the Measured Crude Quantity for each of the Crude Storage Tanks for all Delivery Dates since the prior Business Day. The Company shall use commercially reasonable efforts to deliver such tickets, readings and other information by 10:00 a.m. CT on the relevant Business Day (as applicable) but shall in any event deliver such tickets, readings and other information by no later than 12:00 pm CT on such day or Business Day.

6.2

Purchase Price for Crude Oil. The per Barrel purchase price for the Daily Crude Sales and Daily Crude Purchases shall equal the Current Month Pricing Benchmark specified for Crude Oil, subject to the calculation of the Monthly True-Up Amounts as provided for on Schedule C, and Macquarie shall provide interim invoice statements (subject to the calculation of the Monthly True-Up Amount) to the Company during each month based on provisional prices (determined using the index price for the day plus the applicable Differential for such month) established in good faith by Macquarie for Barrels purchased.

6.3

Material Crude Grade Changes. If either the Company or Macquarie 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 in accordance with Accepted Industry Practice, then the Company and Macquarie shall 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.

6.4

Crude Purchase Adjustment. In respect of each ~~delivery of~~commitment to deliver Macquarie Procurement Barrels to a Crude Intake Point pursuant to a Macquarie Crude Procurement Contract, Macquarie shall determine whether an amount is due by one Party to the other (a “Crude Purchase Adjustment”) in accordance with the following terms and conditions:

(a)

Macquarie shall determine the quantity of Barrels of Crude Oil committed to be purchased and Macquarie shall provide interim invoice statements (subject to adjustment in accordance with the Crude Purchase Adjustment contemplated in this Section 6.4(b)and (c)) for a provisional amount equal to the product of (i) the applicable number of Barrels of Crude Oil committed to be delivered on that day; and (ii) the applicable Provisional Contract Price(s) on ~~such~~the day of such committed delivery (a “Third Party Supplier Crude Purchase Amount”); ~~provided that~~, for delivery by vessel, a Third Party Supplier Crude Purchase Amount will not be calculated until the applicable cargo has fully discharged;

(b)

If, (i) the Third Party Supplier Crude Purchase Amount exceeds the Index Crude Purchase Value, then the Crude Purchase Adjustment for that Crude Oil shall equal such excess and shall be due to Macquarie or (ii) the Index Crude Purchase Value exceeds the Third Party Supplier Crude Purchase Amount, then the Crude Purchase Adjustment for that Crude Oil shall equal such excess and shall be due to Company, in either case within two Business Days after the relevant commitment; and

(c)

Once the final price is known for the relevant delivery of Crude Oil by a Third Party Supplier to Macquarie, a further true-up shall be determined and incorporated as a component of the ~~next~~ Monthly True-Up Amount in accordance with Schedule C.

TARGET INVENTORY LEVELS AND DIFFERENTIAL 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 (except in the case of Crude Cargo Rollover Barrels) be subject to the minimum and maximum inventory levels set forth in Schedule D for each Pricing Group, which minimum and maximum inventory levels shall be satisfied by the procurement and sale of Crude Oil and Products in accordance with the terms hereof. The Company represents and warrants that the respective Target Month End Crude Inventory 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 (which is not a guarantee of actual performance), at the time it sets such targets, of the Ending In-Tank Crude Inventory (and, as applicable, Crude Cargo Rollover Barrels) and the Ending In-Tank Product Inventory at the end of such month.

7.2

Target Month End Crude Inventory Volume.

(a)

Projected Monthly Run Volume. By no later than the twenty-fifth (25^th) day of the month preceding each Delivery Month, the Company shall notify Macquarie 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”). Macquarie shall have the right to reject any Projected Monthly Run Volume if it determines that either (i) such Projected Monthly Run Volume is not consistent with the terms of any Monthly Crude Purchase Offer ~~that has been accepted by Macquarie~~; and/or (ii) such Projected Monthly Run Volume is inconsistent with the quantities of Crude Oil expected to be stored in the Crude Storage Tanks on any day during the relevant Delivery Month, after taking into account any quantities of Crude Oil that Macquarie has notified the Company that it intends to withdraw from the Crude Storage Tanks on or prior to such date in accordance with the terms of the Storage Facilities Agreement; provided, however, that in the event Macquarie does not reject a Projected Monthly Run Volume within one (1) Business Day of receipt, Macquarie shall be deemed to have accepted the same. If Macquarie elects to reject any Projected Monthly Run Volume, it shall, subject to confidentiality and compliance with its internal policies and procedures of general application and consistently applied, provide a reasonably detailed explanation for its rejection of such Projected Monthly Run Volume to the extent possible, but shall be under no obligation to disclose any information that Macquarie determines, in good faith and a commercially reasonable manner to be confidential or proprietary information. In the event that Macquarie timely rejects any Projected Monthly Run Volume, the Parties will meet not later than the following day to agree upon a mutually agreeable alternative to be used as the Projected Monthly Run Volume.

(b)

Constraints on Target Month End Crude Inventory Volume. In establishing a Target Month End Crude Inventory Volume, the Parties acknowledge that any increase in a Target Month End Crude Inventory Volume is constrained by the maximum inventory levels specified in Schedule D and the terms of any relevant Monthly Crude Purchase Offer ~~that has been accepted by Macquarie~~, and that such Target Month End Crude Inventory volumes may not exceed such limits for the applicable month without the prior written consent of Macquarie.

(c)

Adjustments to Target Month End Crude Inventory Volume. The Parties may, by mutual agreement, adjust the Target Month End Crude Inventory Volume for any month. Any change to a Target Month End Crude Inventory Volume shall affect only the subject month and does not impact the calculation of the Target Month End Crude Inventory Volume in subsequent months.

7.3

Target Month End Product Volume.

(a)

Target Month End Product Volume; Applicable Range. Subject to events of Force Majeure, facility turnarounds, the performance of any third parties (including purchasers of Products under Included Sales Transactions and offtakers pursuant to the Tripartite Product Offtake Agreements), the Company shall, in establishing each Target Month End Product Volume, use commercially reasonable efforts to cause such Target Month End Product Volume to be within the applicable range specified for such Product on Schedule D.

(b)

Changes to Target Month End Product Volume. At any time the Parties may, by mutual agreement, change such Target Month End Product Volume.

7.4

Differential Adjustments. Promptly following the twenty-fifth (25^th) of each month (a “Scheduled Differential Adjustment Review Date”) and, if Macquarie (in its sole and absolute discretion) considers (after taking into account the then prevailing market conditions) that a further review is required prior to the immediately succeeding Scheduled Differential Adjustment Review Date, on such other date as Macquarie may select for these purposes (an “Optional Differential Adjustment Review Date”), Macquarie shall review the data for such month and the immediately succeeding Delivery Month and determine in consultation with the Company, and in good faith and in a commercially reasonable manner, whether, based on such data, an adjustment to any of the Crude Oil or Product Differentials is appropriate so as to more closely approximate applicable market differentials for Crude Oil or Product during that month and shall communicate such determination to the Company; provided that, if Macquarie or the Company determines in its reasonable judgment that the data for such months does not provide a representative basis for such determination (due to anomalies, distortions or other factors identified by Macquarie), such party shall propose an adjustment to the applicable Crude Oil and/or Product Differentials. In the event that the Parties mutually agree to the proposed adjustments to such Crude Oil and/or Product Differentials, such adjustments shall become effective (x) in respect of a Scheduled Differential Adjustment Review Date, commencing with the month immediately following such month in which such Scheduled Differential Adjustment Review Date occurred; and (y) in respect of an Optional Differential Adjustment Review Date, on the Business Day immediately following the date on which the Parties mutually agree to the proposed adjustments to the applicable Crude Oil or Product Differentials (in each case, in accordance with this Section 7.4); provided, however, that in the event that no such mutual agreement is made, the relevant Crude Oil and/or Product Differentials set forth on Schedule H will continue to apply. Macquarie shall deliver a revised Schedule H to the Company reflecting any such amended Differentials;

7.5

Products Cover Costs.

(a)

If, for any month (or portion thereof), Macquarie reasonably determines that, as a result of the Company’s failure to produce the quantities of Product projected under this Agreement, regardless of how caused (including any event of Force Majeure), Macquarie retains insufficient quantities of Product to comply with its obligations to any third parties under Included Sales Transactions, and Macquarie incurs any Products Cover Costs, then the Company shall be obliged to reimburse Macquarie for such Products Cover Costs; subject to any mitigation of such costs actually achieved by the Company.

(b)

If, for any month (or portion thereof), the Company reasonably determines that, solely as a result of the withdrawal of Product from an Included Product Tank by Macquarie (other than pursuant to Included Sales Transactions and/or sales to the Company), there are insufficient quantities of Product available to be sold to the Company by Macquarie pursuant to Section 8.2(b) below and the Company incurs any Product Cover Costs, then Macquarie shall be obliged to reimburse the Company for such Products Cover Costs.

7.6

Costs Related to Shortfall of Product.

(a)

To the extent that Macquarie is required to cover, pursuant to an Included Sales Transaction, any shortfall in any Product delivery, which shortfall arises as a result of the failure by the Company to produce, store or deliver when due such Product of the correct quality and quantity, using any inventory Macquarie owns and acquires separately from the inventory owned and maintained in connection with this Agreement, regardless of how caused (including any event of Force Majeure), any out of pocket cost or loss (excluding lost profits) incurred by Macquarie in connection therewith that is not otherwise included as a Products Cover Cost shall constitute an Ancillary Cost that is to be reimbursed to Macquarie.

(b)

To the extent that, as a result of the withdrawal of Product from an Included Product Tank by Macquarie, there is a shortfall in any Product to be sold to the Company by Macquarie pursuant to Section 8.2(b) below, any out of pocket cost or loss (excluding lost profits) incurred by the Company in connection therewith that is not otherwise included as a Products Cover Cost shall, notwithstanding anything to the contrary in this Agreement, constitute an Ancillary Cost that is to be reimbursed to the Company by Macquarie.

7.7

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 Inventory Volume or the Target Month End Product Volumes for any month, the Company may request that Macquarie agree to a level for any of the foregoing that, without taking into any account any Crude Cargo Rollover Barrels, exceeds that applicable maximum level set forth on Schedule D (an “Excess Inventory Level”); provided that such request may be for only such month or for a period of two (2) 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, Macquarie shall promptly review such request and advise the Company as to whether Macquarie accepts or rejects such Excess Inventory Level; provided that, Macquarie is under no obligation to accept any such request. If Macquarie 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 inventory level for 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 Macquarie 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.

7.8

Excess Inventory Levels.

(a)

Excess Quantity. If, at any time, either Party determines, with respect to any Product Group, that the aggregate quantity of such Product Group being held in the Included Storage Locations exceeds the maximum inventory level set forth on Schedule D for such Product Group in the Included Storage Locations (such excess, an “Excess Quantity”), such Party shall promptly notify the other Party of the existence and volume of such Excess Quantity. Within three (3) Business Days after such notice is given, Macquarie shall advise the Company as to whether Macquarie accepts such Excess Quantity (in which case Section 7.8(b) shall apply) or rejects such Excess Quantity (in which case Section 7.8(c) shall apply).

(b)

Response for Excess Quantity. If, and as of the day that, Macquarie accepts an Excess Quantity then:

(i)

for all purposes of this Agreement, the Excess Inventory Level for the relevant Product Group for the Included Storage Locations shall be increased by such Excess Quantity for the balance of the month in which such Excess Quantity was first identified and, at Macquarie’s option, for such additional month or months as Macquarie may specify; provided that if Macquarie does not accept such Excess Quantity for any additional month or months, such Excess Inventory Level shall only be in effect for the then current month and if the maximum inventory level is exceeded after the end of such current month, the provisions of this Section 7.8 shall apply anew as of the beginning the following month; and

(ii)

the provisions of this Agreement relating to the purchase and sale of Product (including, without limitation, Article 8 below) shall apply as if such quantity of Product did not constitute Excess Quantity.

(c)

Deferred Payment for Excess Quantity. If Macquarie rejects an Excess Quantity then, Macquarie shall purchase such Excess Quantity of Product from the Company on deferred payment terms and, accordingly, the provisions of Article 8 below shall not apply and no Monthly True-Up Amount shall be calculated in respect of such Excess Quantity. Instead, on (i) the date on which such Excess Quantity of Product is sold to the Company in accordance with the Weekly Product Projections, Macquarie shall pay to the Company an amount equal to the amount payable for the purchase of such Excess Quantity of Product by the Company, as determined in accordance with the terms of this Agreement; and (ii) the second Business Day following the date on which Excess Quantity of Product is sold to an offtaker in accordance with the terms of the relevant Tripartite Product Offtake Agreement, Macquarie shall pay to the Company an amount equal to the amount payable for the purpose of such Excess Quantity by the relevant offtaker, as determined in accordance with the terms of the relevant Tripartite Product Offtake Agreement. For the purposes of determining when any Excess Quantity of Product is sold, such Excess Quantity shall be deemed to have been withdrawn from the Included Product Tanks first.

PURCHASE AND DELIVERY OF PRODUCTS

8.1

Purchase and Sale of Products.

(a)

Macquarie Purchase of Products. From (and including) the Commencement Date through to (and including) the last day of the Term, the Company agrees to offer to sell and deliver to Macquarie, the entire Products output of the Refinery (excluding Eligible Lien Products). ~~If Macquarie has accepted (or is deemed to have accepted)~~In respect of a Monthly Product Estimate ~~delivered to it pursuant to Section 8.3 below, then~~and a Month, Macquarie shall purchase and receive from the Company the entire Products output of the Refinery (excluding the Eligible Lien Products) during the Month in respect of which the Monthly Product Estimate relates, irrespective of whether or not such Products output is consistent with that Monthly Product Estimate.

(b)

Included Product Purchase Transaction.

(i)

From time to time, the Company may ~~propose~~notify Macquarie of one or more quantities of Product of a particular Product Group that is available from an identified Product Supplier and request that Macquarie enter into an Included Product Purchase Transaction with ansuch identified Product Supplier or on certain specified trade terms, such as price, quantity, delivery period(s), product grade or any other material term(sby providing Macquarie with a transaction supplement in substantially the relevant form included in Schedule L (Form of Transaction Supplement) (a “Product Purchase Proposal”). ~~Macquarie may, in its sole and absolute discretion, reject a~~Each Product Purchase Proposal ~~from the Company.~~ :

(ii) If, and only if, the Company and Macquarie agree on the terms for a potential Included Product Purchase Transaction, Macquarie shall use commercially reasonable efforts to promptly enter into a binding agreement with a potential Product Supplier on terms which, unless otherwise agreed by the Company, are at least as favorable to the Company as those specified by the Company in the relevant Product Purchase Proposal, to the extent such terms were accepted by Macquarie. In the event that Macquarie enters into an Included Product Purchase Transaction in accordance with the foregoing procedures, Macquarie shall promptly confirm such Included Product Purchase Transaction and its key trade terms to the Company using Macquarie’s ordinary documentation and confirmation procedures. Macquarie shall use commercially reasonable efforts to obtain the consent of each Product Supplier party to an Included Product Purchase Transaction to Macquarie’s disclosing the applicable trade documents for such Included Product Purchase Transaction to the Company and, if required and so provided, shall share such documents with the Company.

(A)

shall comply with all applicable Sanctions Laws and other Applicable Laws relating to the control of export and contract;

(B)

shall relate to a proposed contract with a Product Supplier included on the Third Party Supplier List:

(I)

on open credit terms, unless otherwise agreed with Macquarie in its sole discretion (in which case, without duplication, any costs or expenses incurred by Macquarie in connection with the provision and maintenance of such credit support or collateral shall be deemed to be Ancillary Costs for which the Company is required to indemnify Macquarie); and

(II)

which are on contract terms with the relevant Product Supplier that are acceptable to Macquarie;

(C)

shall provide for each cargo of Product to be supplied on a customs-cleared basis where the original Product Supplier shall arrange and pay for export documentation and costs;

(D)

shall include full charterparty options for discharge and with diversions at charterparty cost, with access to vessel and charterparty data;

(E)

when such volume of Product is expected to be purchased by the Company from Macquarie; and

(F)

is consistent with the terms set out in Schedule W (Relevant Jurisdictions).

(ii)

The Company shall use commercially reasonable efforts to:

(A)

separately provide to Macquarie and the relevant Product Supplier a draft trade recap in respect of each Product Purchase Proposal; and

(B)

negotiate and agree the terms of any proposed Included Product Purchase Transaction with a Product Supplier in principle prior to delivering a Product Purchase Proposal and the corresponding draft trade recap to Macquarie by:

(1)

agreeing to terms with the relevant Product Supplier to permit Macquarie to disclose the resultant Included Product Purchase Transaction and related information to the Company; and

(2)

to the extent that the Company is aware of such MENAT Required Terms, ensuring that the relevant Included Product Purchase Transaction to be entered into with a relevant Product Supplier contains the MENAT Required Terms (unless: (i) Macquarie or the relevant Affiliate has otherwise consented explicitly in writing to any specific amendments thereto; or (ii) Macquarie has notified the Company that Macquarie or the relevant Affiliate has previously agreed terms of sale with such Product Supplier which contain alternative sanctions and anti-corruption provisions, in which case such alternative provisions shall apply in respect of the Included Product Purchase Transaction),

in each case, at the same time as its delivery of the relevant Product Purchase Proposal.

(iii)

Macquarie will consider any request to enter into an Included Product Purchase Transaction in good faith and in a commercially reasonable manner and will seek to accommodate such request to the extent it is able to do so in accordance with Macquarie’s Policies and Procedures but subject always to the requirements set out below. The Company and Macquarie acknowledge and agree that (x) Macquarie shall be under no obligation to enter into an Included Product Purchase Transaction unless Macquarie determines, in good faith and in a commercially reasonable manner, that the Commitment Requirements are met in relation to any request to enter into a Included Product Purchase Transaction and accordingly, Macquarie may reject a request to enter into an Included Product Purchase Transaction if it determines, in good faith and in a commercially reasonable manner, that such Commitment Requirements are not met in relation to that Included Product Purchase Transaction; (y) the entry into each Included Product Purchase Transaction shall constitute an extension of credit and a “financial accommodation” to or for the benefit of the Company within the meaning of Section 365(c)(2) and 365(e)(2) of the Bankruptcy Code; and (z) if Macquarie determines that the Commitment Requirements are met in relation to a request to enter into an Included Product Purchase Transaction, the provisions of this Section 8.1(b) shall apply.

(iv)

Macquarie shall as soon as is reasonably practicable and in any event within two (2) Business Days of receipt of a Product Purchase Proposal pursuant to Section 8.1(b)(ii)(A) above, notify the Company and the relevant Product Supplier whether or not Macquarie is willing and able to enter into the proposed Included Product Purchase Transaction on the terms set out in the relevant trade recap (provided that if the Company indicates together with the relevant Product Purchase Proposal that greater urgency is required setting out a target time for response then Macquarie shall use commercially reasonable efforts to respond by the target time so notified) and shall advise (x) the Company whether any amendments are required to the terms of the Product Purchase Proposal; and (y) the Company and the relevant Product Supplier whether any amendments are required to the relevant trade recap and corresponding Included Product Purchase Transaction, in each case, in order to incorporate all MENAT Required Terms. Issues in respect of which Macquarie may determine that it or an Affiliate is unable to enter into the contract include (1) the application of Macquarie’s Policies and Procedures; (2) that such trade recap and corresponding Product Purchase Proposal do not contain (in form and substance satisfactory to Macquarie) the inclusion of the MENAT Required Terms; or (3) Macquarie determines, in good faith and in a commercially reasonable manner that the Commitment Requirements are not met with respect to such Product Purchase Proposal. If Macquarie determines that it or an Affiliate is unwilling or unable to enter into the contract, Macquarie shall, subject to confidentiality and compliance with its internal policies and procedures of general application and consistently applied, provide a reasonably detailed explanation for its rejection of such Product Purchase Proposal and corresponding Included Product Purchase Transaction, to the extent possible but shall be under no obligation to disclose any information that Macquarie determines, in good faith and in a commercially reasonable manner, to be confidential or proprietary information and Macquarie and the Company shall consult in relation to the same to determine if there are consequential steps mutually agreeable to both such Parties that might operate to alleviate the relevant issue such that Macquarie is able to enter into the relevant contract.

(v)

If Macquarie notifies the Company pursuant to Section 8.1(b)(iii) that, subject to the terms of any Included Product Purchase Transaction being in form and substance acceptable to Macquarie (as determined in accordance with the requirements set out herein), it or an Affiliate is willing and able to enter into an Included Product Purchase Transaction to purchase the relevant quantity of Product on the terms set out in the Product Purchase Proposal, then the following process shall be followed with a view to completing all steps set out in sub-paragraphs (A) to (C) below, to the extent possible, within two (2) Business Days of receipt of the original Product Purchase Proposal delivered to Macquarie pursuant to Section 8.1(b)(i) above (provided that if the Company indicates together with the relevant Product Purchase Proposal that greater urgency is required setting out a target time for response then Macquarie shall use reasonable endeavors to respond by the target time so notified):

(A)

if Macquarie has advised the Company and the relevant Product Supplier that amendments are required to the terms of the proposed Included Product Purchase Transaction in order to incorporate all MENAT Required Terms, Macquarie and the Company shall negotiate the terms of any such Included Product Purchase Transaction with the Product Supplier to ensure that the Included Product Purchase Transaction contains the MENAT Required Terms (unless: (i) Macquarie has otherwise consented explicitly in writing to any specific amendments thereto; or (ii) Macquarie has notified the Company that Macquarie has previously agreed terms of sale with such Product Supplier which contain alternative sanctions and anti-corruption provisions, in which case such alternative provisions shall apply in respect of the Included Product Purchase Transaction);

(B)

once Macquarie, the Company and the Product Supplier have agreed the terms of the relevant trade recap, the Company shall amend the corresponding Product Purchase Proposal relating to that trade recap as soon as reasonably practicable thereafter to reflect the amendments made to the trade recap by Macquarie, the Company and the Product Supplier (such revised Transaction Supplement, the “Amended Product Purchase Proposal”) and shall deliver the Amended Product Purchase Proposal to Macquarie;

(C)

promptly following receipt of the Amended Product Purchase Proposal, Macquarie shall confirm to the Company whether it or an Affiliate is willing and able to enter into an Included Product Purchase Transaction with the relevant Product Supplier to purchase the relevant quantity of Product on the terms set out in such Amended Product Purchase Proposal; and

(D)

if Macquarie has notified the Company that it or an Affiliate is willing and able to enter into an Included Product Purchase Transaction on the terms set out in the relevant trade recap and Amended Product Purchase Proposal, Macquarie or the relevant Affiliate, as applicable, shall use commercially reasonable endeavors to enter into such Included Product Purchase Transaction with the Product Supplier for the purchase of the relevant quantity of Product (on the terms negotiated between Macquarie, the Company and the Product Supplier), provided that the quantities and specification of Product specified in the relevant Product Purchase Proposal remains available for purchase on the market under those same terms (or similar terms acceptable to the Company and Macquarie).

(vi)

Macquarie shall notify the Company promptly after entering into any Included Product Purchase Transaction pursuant to Section 8.1(b)(v)(D) (and, in any event, no later than one (1) Business Day after entering into the relevant Included Product Purchase Transaction).

(vii)

If Macquarie notifies the Company that it is unwilling or unable to enter into the relevant Included Product Purchase Transaction with a Product Supplier, the Company may instead purchase the relevant quantities and specification of Product specified in the relevant Product Purchase Proposal from the relevant Product Supplier and sell such quantities of Product to Macquarie in accordance with Section 8.1(c) below.

(c)

Refinery Procured Product Barrels. No later than the fifteenth (15^th) day of the month preceding a Delivery Month, the Company shall inform Macquarie whether the Company intends to purchase any Product (other than any Eligible Lien Product) that is being procured under a Refinery Product Contract for delivery during such Delivery Month (“Refinery Procured Product Barrels”) (such notification, a ““Refinery Procured Product Notification””). In connection with each such quantity of Refinery Procured Product Barrels, the Company shall provide to Macquarie a transaction supplement in substantially the form annexed hereto as Schedule L (Form of Transaction Supplement) stating the known or estimated quantity, grade and delivery terms of such Refinery Procured Product Barrels expected to be delivered to the Included Product Tanks or such other Included Product Location designated by the Company. Macquarie shall consider any such notification in its sole and absolute discretion and, subject to Section 5.2(g) shall notify the Company whether it is willing and able to purchase such Refinery Procured Product Barrels from the Company during such Delivery Month. Macquarie shall be under no obligation to consider any such Refinery Procured Product Notification unless it is satisfied that (i) no Relevant Default or Event of Default with respect to the Company has occurred and is then continuing; (ii) such Refinery Procured Product Barrels are of such grades as Macquarie has approved (including any of the grades specified in any Tripartite Products Offtake Agreement), would fall within an existing Product Group, and such quantity upon delivery does not exceed the maximum inventory level for such Products set forth on Schedule D; and (iii) the purchase by the Company of such Refinery Procured Product Barrels does not and would not cause the Company to breach the terms of any Intermediated Product Offtake Contract. If Macquarie accepts a Refinery Procured Product Notification, Macquarie shall purchase such quantity from the Company on a “DDP” (Incoterms 2010) basis (or such other basis as may be agreed between the Parties) at Current Month Pricing Benchmark(s), subject to the calculation of the Monthly True-Up Amounts as provided for in Schedule C, and title and risk of loss for such quantity shall pass to Macquarie as and when it passes the Products Intake Point free of Liens (other than Permitted S&O Liens). 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 Macquarie of such change. The Parties acknowledge that the consideration due from Macquarie to the Company for any Refinery Procured Product Barrels shall be paid for in accordance with Article 11.

8.2

Sale and Purchase of Products.

(a)

Sale of Products from the Company to Macquarie. Unless otherwise agreed by Macquarie, all Products output of the Refinery (other than Eligible Lien Products) that Macquarie has agreed to purchase pursuant to Section 8.1(a) above shall be delivered and sold by the Company to Macquarie at the Products Intake Point of the Included Product Tanks on a DDP (Incoterms 2010) basis (or such other basis as may be agreed between the Parties) at the Current Month Pricing Benchmark(s), subject to the calculation of the Monthly True-Up Amounts as provided for in Schedule C, free and clear of all Liens (other than Permitted S&O Liens), with the Company being responsible for ensuring transportation and delivery of such Product into the Included Product Tanks. Title and risk for loss shall transfer from the Company to Macquarie at the time of such sale.

(b)

Sale of Products by Macquarie to the Company. Provided no Relevant Default and/or Event of Default has occurred and is continuing, the Company shall be permitted to purchase Products from the Included Product Tanks and take delivery of such Products at any Products Delivery Point in accordance with ~~any accepted~~a Weekly Products Projection, or as otherwise mutually agreed to by the Parties. ~~Though not obligated to do so,~~ Macquarie shall, absent a Relevant Default or an Event of Default, use commercially reasonable efforts to sell Products to the Company before selling to another Person. The sale and delivery of any Products by Macquarie at the Products Delivery Point shall be on an “ex works” basis (EXW Incoterms 2010) at the Current Month Pricing Benchmark(s), subject to the calculation of the Monthly True-Up Amounts as provided for in Schedule C, and free of Liens, other than Permitted S&O Liens which are not Permitted Article 10 Liens. Title and risk of loss for such Products shall pass to the Company as such Products pass the applicable Products Delivery Point. The Company shall bear sole responsibility for the withdrawal of Products from the Included Product Tanks. The Company shall take all commercially reasonable actions necessary to maintain a connection with the Included Product Tanks to enable withdrawal and delivery of Products to be made as contemplated hereby.

(c)

Sale of Products by Macquarie to Third Party. Macquarie shall not be required to enter into any transactions involving the sale of Products to any third party other than ~~an offtaker~~a Third Party Offtaker included on the Third Party Offtaker List pursuant to a Tripartite Product Offtake Agreement (to the extent that such Included Sales Transaction is a term contract as opposed to a spot contract). Notwithstanding the foregoing the Company may from time to time propose to Macquarie that Macquarie enter into an Included Sales Transaction, which proposal must specify an ~~identified Customer~~Third Party Offtaker included on the Third Party Offtaker List and trade terms, including price, quantity, delivery period(s), product grade or other material terms (a “Third Party Product Sales Proposal”); provided, that the Company shall not have authority to bind Macquarie to, or enter into on Macquarie’s behalf, any Included Sales Transactions and the Company shall not represent to any Person that it has such authority. Macquarie shall consider any Third Party Product Sales Proposal in good faith and in a commercially reasonable manner and shall seek to accommodate any such Third Party Product Sales Proposal to the extent it is able to do so in accordance with Macquarie’s Policies and Procedures.

(d)

If, and only if, the Company and Macquarie agree on the terms for a potential Included Sales Transaction (each in their sole and absolute discretion). Macquarie shall use commercially reasonable efforts to promptly enter into a binding agreement with a potential ~~Customer~~Third Party Offtaker on pricing terms at least as favorable to the Company as those specified in the Third Party Product Sales Proposal, to the extent such terms were accepted by Macquarie. In the event that Macquarie identifies and enters into such an agreement with a ~~Customer~~Third Party Offtaker, Macquarie shall promptly finalize and confirm such Included Sales Transaction to the Company using its ordinary documentation and confirmation procedures. Macquarie shall use commercially reasonable efforts to obtain the consent of each ~~Customer~~Third Party Offtaker party to an Included Sales Transaction to Macquarie’s disclosing the applicable trade documents for such Included Sales Transaction to the Company. In addition, to the extent it is not prohibited from doing so, Macquarie shall endeavor to keep the Company apprised of, and consult with the Company regarding, the terms and conditions being incorporated into any Included Sales Transaction under negotiation with a customer. Macquarie shall notify the Company promptly after entering into any such Included Sales Transaction (and, in any event, no later than one (1) Business Day after entering into the relevant Included Sales Transaction).

8.3

Expected Yield and Estimated Output; Weekly Products Projection.

(a)

Estimated Yield.

(i)

From time to time, based on its then current operating forecast for the Refinery, the Company may provide to Macquarie a revised expected Product yield for the Refinery (each, a “Revised Estimated Yield” and, together with the Initial Estimated Yield, an “Estimated Yield”).

(ii)

By no later than the last Business Day of each month, the Company shall deliver to Macquarie, its expected Product yield for the Refinery for the next three calendar months (the “90-day Product Yield”).

(b)

Monthly Product Estimate.

(i)

No later than the twenty-fifth (25^th) day of the month preceding a Delivery Month, the Company shall, based on the then current Estimated Yield and such other operating factors as it deems relevant, prepare and provide to Macquarie an estimate in the form of Schedule T of the Product quantities it expects to deliver to Macquarie during such month (each, a “Monthly Product Estimate”).

(ii)

Macquarie shall have the right to reject any Monthly Product Estimate only if it determines that (i) a Relevant Default has occurred and is continuing in respect of the Company and/or an Event of Default has occurred and is continuing; or (ii) such Monthly Product Estimate is not consistent with the terms of any relevant Monthly Crude Purchase Offer ~~that Macquarie has accepted~~; provided, however, that in the event Macquarie does not reject the same within one (1) Business Day after receiving the Monthly Product Estimate, Macquarie shall be deemed to have accepted the same. In the event Macquarie timely rejects any Monthly Product Estimate, the Parties will meet not later than the following day to seek to agree upon a mutually agreeable alternative.

(c)

Weekly Product Projection. No later than 5:00 p.m., CT on Thursday of each week, the Company shall provide Macquarie with a written summary in the form of Schedule S of the Company’s projected Product purchases from Macquarie at the Included Product Tanks for the next immediately succeeding Projection Week (each, a “Weekly Product Projection”). Macquarie shall have the right to reject any Weekly Product Projection only if it determines that (i) a Relevant Default has occurred and is continuing in respect of the Company and/or an Event of Default has occurred and is continuing; or (ii) such Weekly Product Projection is not consistent with the quantities of Product expected to be stored in the Included Product Tanks on any day during the relevant Delivery Month, after taking into account any quantities of Product that Macquarie has notified the Company that it intends to withdraw from the Included Product Tanks on or prior to such date in accordance with the terms of the Storage Facilities Agreement. In the event Macquarie does not reject a Weekly Product Projection by 5:00 pm CT on the next succeeding Friday, Macquarie shall be deemed to have accepted the same. In the event Macquarie timely rejects any Weekly Product Projection, the Parties will meet not later than the following day to seek to agree upon a mutually agreeable alternative.

8.4

Delivered Quantities.

(a)

Readings. For each Delivery Date, the Company shall provide to Macquarie 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. The Company shall use commercially reasonable efforts to deliver such meter tickets and/or meter readings and tank gauge readings, by no later than 10:00 a.m. CT on the first Business Day following such Delivery Date but shall in any event deliver such meter tickets and/or meter readings and tank gauge readings by no later than 12:00 pm CT on such Business Day.

(b)

Correction of Readings. 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 shall provide to Macquarie such corrected meter tickets and/or meter readings and tank gauge readings by no later than 10:00 a.m. CT on the third (3^rd) Business Day following the date on which such determination is made.

8.5

Product Specifications. The Company agrees that all Products sold to Macquarie hereunder shall conform to the respective specifications set forth on Schedule B or to such other specifications as are from time to time agreed upon by the Parties, provided that Products that do not conform to specifications shall be subject to mutual agreement between the Parties, each acting in good faith and in a commercially reasonable manner, as to a product differential to reflect such difference in values. The sale of any Products by the Company to Macquarie that do not conform to the respective specifications set forth on Schedule B or to such other specifications as are from time to time agreed upon by the Parties shall not constitute an Event of Default in respect of the Company.

8.6

Purchase Price of Products. The per Barrel purchase price for the Daily Product Sales and Daily Product Purchases for each type of Product Group bought or sold hereunder shall equal the Current Month Pricing Benchmark specified for such Product Group, subject to the calculation of the Monthly True-Up Amount provided for on Schedule C.

8.7

Storage of Products. Macquarie shall have the exclusive right (to the extent that such exclusive right can be granted, and except to the extent otherwise expressly contemplated in Section 7.8) to inject into, store in and withdraw Products from the Included Product Tanks as provided under the Storage Facilities Agreement and, if hereafter entered into, any Required Storage and Transportation Arrangements; provided, however, that the Company shall be permitted to withdraw, transfer and inject Products to facilitate the transactions contemplated by this Agreement and as otherwise permitted by the terms of the Storage Facilities Agreement and the other Transactions Documents.

8.8

Material Product Grade Changes. If either the Company or Macquarie 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 in accordance with Accepted Industry Practice, then the Company and Macquarie shall 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.

8.9

Product Purchase and Product Sale Adjustments.

(a)

Product Sale Adjustment. For each day during the Term and for each Product Group, Macquarie shall determine whether an amount is due by one Party to the other in relation to Included Sales Transactions in accordance with the following terms and conditions:

(i)

In respect of each Product Group and all related Included Sales Transactions entered into on that day, Macquarie shall provide interim invoice statements to the Company during each day for a provisional amount equal to the aggregate sum of the products in relation to each relevant Included Sales Transactions of (A) the quantity of Barrels of such Product Group sold pursuant to such Included Sales Transaction on such day; and (B) the applicable Provisional Contract Price (such aggregate sum, the “Aggregate Product Sale Amount”);

(ii)

If, for any Product Group and relevant day, (i) the Aggregate Product Sale Amount exceeds the Index Product Sale Value, then the Product Sale Adjustment for that Product Group shall equal such excess and shall be due to the Company or (ii) the Index Product Sale Value exceeds the Aggregate Product Sale Amount, then the “Product Sale Adjustment” for that Product Group shall equal such excess and shall be due to Macquarie, in each case within two Business Days; and

(iii)

Once the final price is known for the relevant delivery of Product by Macquarie to a Customer, a further true-up shall be determined and incorporated as a component of the next Monthly True-Up Amount in accordance with Schedule C.

(b)

Product Purchase Adjustment. For each day during the Term and for each Product Group, Macquarie shall determine whether an amount is due by one Party to the other in relation to Included Product Purchase Transaction in accordance with the following terms and conditions:

(i)

In respect of each Product Group and all related Included Product Purchase Transactions entered into on a day, Macquarie shall provide interim invoice statements to the Company during each day for a provisional amount equal to the aggregate sum of the products in relation to each Included Product Purchase Transaction of (A) the quantity of Barrels of such Product Group purchased by Macquarie pursuant to such Included Product Purchase Transaction; and (B) the applicable Provisional Contract Price (such amount being, the “Aggregate Product Purchase Amount” in respect of that day);

(ii)

If, for any Product Group and day, (i) the Aggregate Product Purchase Amounts exceeds the Index Product Purchase Value, then the Product Purchase Adjustment for that Product Group shall equal such excess and shall be due to Macquarie or (ii) the Index Product Purchase Value exceeds the Aggregate Product Purchase Amounts, then the “Product Purchase Adjustment” for that Product Group shall equal such excess and shall be due to the Company, in each case within two Business Day; and

(iii)

Once the final price is known for the relevant purchase of Product by Macquarie from a Products Supplier, a further true-up shall be determined and incorporated as a component of the next Monthly True-Up Amount in accordance with Schedule C.

8.10

Upon reasonable request by the Company, Macquarie shall provide such information from Macquarie’s settlement model as the Company may reasonably request regarding the accounting for and settlement of transactions, movements and other costs and amounts under the Transaction Documents.

ANCILLARY COSTS and MONTH END INVENTORY

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.

(b)

Without limiting the foregoing, the Company agrees to reimburse Macquarie for all Ancillary Costs incurred by Macquarie. Such reimbursement shall occur from time to time upon demand of Macquarie to the Company and shall be invoiced to the Company in accordance with Article 11 below. When making such demand, Macquarie shall promptly provide the Company with copies of any relevant trade tickets, invoices or other supporting documentation for Ancillary Costs incurred by Macquarie and shall consult with the Company, in good faith and in a commercially reasonable manner to the extent that any such Ancillary Costs are disputed or relate to a claim that has been made against Macquarie prior to settling any such Ancillary Costs.

(c)

To the extent the Company has not paid or reimbursed Macquarie 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, Macquarie 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.

9.2

Month End Inventory.

(a)

Ending Inventory.

(i)

On the first Business Day of any Delivery Month, the Company, using Best Available Inventory Data, provided that if such inventory data is not available, using the last day for which such data is available, shall report to Macquarie the following: (i) the aggregate volume of Crude Oil held in the Crude Storage Tanks at that time (the “Ending In-Tank Crude Inventory”), (ii) for each Product, the aggregate volume of such Product held in the Included Product Locations at that time (each, an “Ending In-Tank Product Inventory”), and (iii) for each Product, the aggregate volume of such Product held in the Company Storage Locations at that time (each, an “Ending Company Product Inventory”). The Company shall use commercially reasonable efforts to deliver the Ending In-Tank Crude Inventory, the Ending In-Tank Product Inventory, and the Ending Company Product Inventory by 10:00 a.m. CT on the relevant Business Day, but shall in any event deliver the same by no later than 12:00 pm CT on such Business Day.

(ii)

As of 11:59 p.m., CT, on the last day of each month, the Company shall apply the Volume Determination Procedures to the Included Storage Locations, and Company Storage Locations and based thereon shall determine for such month (i) the aggregate volume of Crude Oil held in the Included Storage Locations at that time, (ii) for each Product, the aggregate volume of such Product held in the Included Product Locations at that time and (iii) for each Product, the aggregate volume of such Product held in the Company Storage Locations at that time. The Company shall notify Macquarie of such volumes by no later than 5:00 p.m., CT on the fifth Business 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 Macquarie by the fifteenth (15th) day after the end of such month.

(b)

Inspection of Volume Determination Procedures. Macquarie may, or may have Macquarie’s Inspector, at Macquarie’s sole cost and expense, witness all or any aspects of the Refinery Facilities or any Included Storage Location or Company Storage Location as Macquarie shall direct. If, in the reasonable judgment of Macquarie or Macquarie’s Inspector, the Volume Determination Procedures have not been applied correctly, then the Company shall cooperate with Macquarie, or Macquarie’s Inspector, to ensure the correct application of the Volume Determination Procedures, including making such revisions to the Ending In-Tank Crude Inventory, any Ending In-Tank Product Inventory and any Ending Company Product Inventory as may be necessary to correct any such errors.

(c)

Records Related to Volume Determination. The Company agrees that in addition to reporting to Macquarie the volume determinations made by the Company pursuant to Section 6.4(b), the Company shall provide to Macquarie copies of all volume reports and statements related to Crude Oil or Products held at any Included Storage Locations or Company Storage 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.

Pledge over MacquArie’s Property

Notwithstanding anything to the contrary contained in any agreement or in any Transaction Document or otherwise in effect, the Company hereby acknowledges and agrees that, Macquarie may, and shall have the right to (i), pledge and grant a security interest, in favor of any lender to Macquarie from time to time (a “Macquarie Lender”), in and to Macquarie’s Property (and for the avoidance of doubt, Macquarie’s Property does not include the assets or rights of the Company) that is subject to this Agreement (including, without limitation, Crude Oil and Products to which Macquarie holds title while located in Crude Storage Tanks and Included Product Locations); and (ii) grant a security interest in favor of any Macquarie Lender over its rights under the Storage Facilities Agreement and the Plains Storage Rights Agreement, in each case, as collateral security for any and all obligations due and owing by Macquarie or its Affiliates to any such Person, without the need for any consent or approval of, or any further action taken by, the Company or any of the Company’s Affiliates. In consideration of the foregoing, Macquarie shall procure that any such liens and security interests shall be terminated and extinguished automatically at such time as this Supply and Offtake Agreement is terminated (other than with respect to any provisions or obligations, including indemnity obligations, as applicable, that survive such termination pursuant to the terms of the Transaction Documents) and the Company has performed all of its payment obligations under Article 20 and Article 21 of this Agreement.

PAYMENT PROVISIONS

11.1

Interim Payments.

(a)

Macquarie Interim Payments. For each Delivery Date, Macquarie shall calculate a provisional payment (each a “Macquarie Interim Payment”) by applying the applicable Daily Prices to the Daily Crude Purchases and Daily Product Purchases for that day.

(b)

Company Interim Payments. For each day, Macquarie shall calculate a provisional payment (each a “Company Interim Payment”) by applying the applicable Daily Prices to the Daily Crude Sales for that day and Daily Product Sales for that day (or, in either case, in relation to any volumes of Crude Oil and/or Products which the Company is required to prepay for). If, in accordance with the terms of this Agreement, the Company is required to prepay for any volume of Crude Oil and/or Products, the applicable Daily Price shall be determined as of the date falling two (2) Business Days prior to the relevant Delivery Date and shall be paid by no later than 5:00 p.m. CT on the date falling one (1) Business Day prior to the relevant Delivery Date.

(c)

Macquarie shall determine the Macquarie Interim payments and Company Interim Payments using Best Available Inventory Data; provided that if inventory data have not been reported on any day within a two (2) Business Day period, Macquarie shall use the inventory data for the day occurring during the thirty (30) day period preceding such day that results in the largest Daily Crude Sales, in any case resulting in an amount equal to the highest daily amount that would be payable to Macquarie (or lowest amount payable by Macquarie); provided further that, if Macquarie determines (including without limitation upon Macquarie’s receipt of updated Best Available Inventory Data) that any inventory data or assumption or estimate it has used in such determination was inaccurate, then Macquarie shall adjust future Company Interim Payments or Macquarie Interim Payments, as applicable, to take account of any corrected or updated inventory data, and Macquarie shall notify the Company of such adjustment when made.

(d)

The Company shall, at the end of each day, provide to Macquarie inventory reports in the form set forth on Schedule F, showing the quantity of (i) Crude Oil held in the Crude Storage Tanks, (ii) Products held in the Included Product Locations and (iii) Products that are Company Product Inventory.

(e)

Invoices for Interim Payments. For any Business Day, the Interim Payments and the Party responsible for such Interim Payments shall be determined by Macquarie for all Delivery Dates since the prior Business Day and Macquarie shall advise the Company of the amount of Interim Payments via invoice. Each invoice will contain a breakdown of the applicable Product Groups.

(f)

Payment Due Dates of Interim Payments. The Interim Payment shall be made by the responsible Party on the Business Day that follows the day Macquarie issues the applicable invoice. unless such Interim Payment arises during the period from (and including) the Petition Date to (but including) the Restructuring Effective Date, in which case, such Interim Payment shall be deferred until the date falling one (1) Business Day after the Restructuring Effective Date.

11.2

Monthly True-Up Amount.

(a)

Macquarie shall 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 20.1, a calculation and appropriate documentation to support the calculations for such month contemplated in the Transaction Documents for the Monthly True-Up Amount as set forth in Schedule C. Macquarie may from time to time during a month, if it determines that the Company is not or will not be in compliance with the Minimum Liquidity Requirement, calculate and invoice the Company for a provisional Monthly True-Up Amount based on all applicable data available to it at the time.

(b)

If the final or provisional Monthly True-Up Amount is a negative number, then the absolute value of such number shall be the amount due from Macquarie to the Company, and if the final or provisional Monthly True-Up Amount is a positive number, such amount shall be due from the Company to Macquarie. The Company shall pay any final or provisional Monthly True-Up Amount due to Macquarie no later than the two (2) Business Days after the Company’s receipt of the relevant invoice and all related documentation supporting the invoiced amount or such earlier date as may be required by Macquarie if it determines that the Minimum Liquidity Requirement has been breached on or prior to such date and such breach is continuing at the time the payment is due. Macquarie shall pay any final or provisional Monthly True-up Amount due to the Company no later than two (2) Business Days after making its definitive determination of such amount.

(c)

Macquarie may, upon reasonable request from the Company, provide the Company with a good faith estimate of the expected quantum of any provisional Monthly True-Up Amount that would be payable by the Company if the Company were to breach the Minimum Liquidity Requirement.

11.3

Maximum Inventory Levels. Notwithstanding any transfer of title to Macquarie to any Crude Oil or Products or the quantity of any Eligible Hydrocarbon Inventory in a Company Storage Location, Macquarie shall not be obligated at any time to pay for any quantity of Crude Oil or Product under Section (k) or (b) or otherwise hereunder to the extent such payment would relate to an aggregate quantity of Products in the Included Storage Locations in excess of the then applicable maximum inventory level as set forth on Schedule D or as may have been temporarily adjusted under Section (i).

11.4

Invoices.

(a)

Invoices shall be provided to the Company by Macquarie not later than 5:00 pm CT on a Business Day (and if delivered thereafter shall be deemed delivered on the next succeeding Business Day).

(b)

If the Company in good faith disputes the amount of any invoice issued by Macquarie relating to any amount payable hereunder (including Interim Payments, Monthly True-Up Amounts or Ancillary Costs), the Company shall pay Macquarie the undisputed amount of such invoice by the due date and inform Macquarie in writing of the portion of the invoice with which it disagrees and why; the Company 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 owe some or all of the disputed amount or as may be determined by a court pursuant to Article 26, the Company shall pay such amount to Macquarie, together with interest at a rate equal to SOFR plus 350 basis points from the date such amount was originally due, 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, Macquarie shall issue a corrected invoice and any residual payment that would be required thereby shall be made by the appropriate Party within two (2) Business Days or, to the extent the payment is due from the Company, such earlier date after delivery of such invoice as Macquarie may require by specifying therein if it determines that the Minimum Liquidity Requirement has been breached on or prior to such date and that such breach is continuing at such time as such invoice is delivered.

11.5

Payment Netting. All payments owing under each Crude Transaction and each Product Transaction (each individually referred to as a “Transaction” and collectively, “Transactions”) shall be net such that all amounts owing on a particular day shall result in a single net payment by the owing Party to the owed Party. The Parties agree that if on any date amounts are due and payable by each Party to the other, then, on such date, each Party’s obligation to make payment of any such amounts will be automatically satisfied and discharged by netting the aggregate amount payable by one Party against the aggregate amount payable by the other Party and replacing those payment obligations with a single payment obligation (such obligation, a “Net Payment Amount”) of the Party owing the larger such aggregate amount to pay the net difference between such aggregate amounts to the other Party on the applicable payment date by wire transfer of immediately available funds. The Parties shall cooperate to calculate the aggregate mutual amounts due and payable to or from each Party by examining the payments due on each applicable payment date and determining which Party is the net payer and which is the net receiver.

11.6

Other Feedstocks. If Macquarie 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 Section (k) and (b) above.

11.7

Interest. Interest shall accrue on late payments under this Agreement at the Default Interest Rate from the date that payment is due until the date that payment is actually received by Macquarie.

11.8

Payment in Full in Same Day Funds. All payments to be made under this Agreement shall be made by wire transfer of same day funds in U.S. dollars to such bank account at such bank as the payee shall designate in writing to the payor from time to time and, in respect of payments to be made to the Company by Macquarie, by no later than 5:00 p.m. (CT).

11.9

Shipments from ~~Blakely~~Blakeley Island: Any sales of Product by Macquarie to the Company for onward delivery by the Company to any of the Company’s customers by way of a vessel loading at ~~Blakely~~Blakeley Island must be prepaid by the Company prior to any removal from the Included Product Locations or any delivery or transfer of title to such Product.

11.10

Minimum Liquidity Requirement: If, at any time, Macquarie determines that the Company and Vertex Renewables have failed to maintain Unrestricted Cash in compliance with the requirements of Section 19.5, then, without prejudice to any of Macquarie’s rights or remedies under any Transaction Documents or otherwise, Macquarie may require that (i) to the extent that the Company is purchasing Product from Macquarie pursuant to Section 8.2(b) above, that the Company prepay the amount payable to Macquarie prior to any removal from the Included Product Locations or any delivery or transfer of title to such Product; and (ii) accelerate the timing for any other payments due from the Company to Macquarie in accordance with the terms of this Agreement.

Eligible Hydrocarbon Inventory

12.1

Eligible Hydrocarbon Inventory Reporting.

(a)

For each day during the Term, the Company shall provide to Macquarie on the first Business Day following such day, via email, a report in form and substance reasonably satisfactory to Macquarie as illustrated in Schedule F (the “Inventory Report”) showing the inventory quantities that then constitute Eligible Hydrocarbon Inventory, including the quantity and location of each type of inventory. The Company shall use commercially reasonable efforts to deliver the Inventory Report by 10:00 a.m. CT on the relevant Business Day but shall in any event deliver such Inventory Reports by no later than 12:00 pm CT on such Business Day.

(b)

By delivering an Inventory Report, the Company shall be deemed to represent and warrant to Macquarie (to the same extent as if set forth in this Agreement) that all Hydrocarbons identified as Eligible Hydrocarbon Inventory in such report meet all the requirements of Eligible Hydrocarbon Inventory set forth in this Agreement.

INDEPENDENT INSPECTORS; STANDARDS OF MEASUREMENT

13.1

Macquarie shall be entitled to have Macquarie’s Inspector, at Macquarie’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. The foregoing notwithstanding, the reasonable out of pocket costs, of the initial surveying by an independent inspector of the Company’s facilities, shall be paid by the Company.

13.2

In addition to its rights under Section (c), Macquarie may, from time to time during the Term of this Agreement, upon reasonable prior notice to the Company, have Macquarie’s Inspector conduct surveys and inspections of any of the Included Tanks or observe any Crude Oil or Product transmission, handling, metering or other activities being conducted at such Included Tanks or any delivery or offtake point; provided that such surveys, inspections and observations shall not materially interfere with the ordinary course of business being conducted at such Included Tanks or the Refinery. The Company shall cover the reasonable costs of no more than any one such inspection per calendar quarter, which shall constitute Ancillary Costs for the purposes of this Agreement and accordingly, shall be invoiced to the Company no more frequently than once per quarter and shall be payable in accordance with Article 11. The Company acknowledges and agrees that, subject to the provision of reasonable prior notice to the Company, Macquarie shall not be prevent from conducting inspections more than once per calendar month if it considers it necessary or appropriate to do so.

13.3

In the event that recalibration of meters, gauges or other measurement equipment is requested by Macquarie 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 Macquarie.

13.4

Standards of Measurement. All quantity determinations herein shall 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 Crude Oil and Table 6B of ASTM-IP for Products).

FINANCIAL INFORMATION; CREDIT SUPPORT

14.1

Provision of Financial Information. The Company shall provide Macquarie:

(a)

as soon as available, but in any event within the earlier of (x) within one hundred twenty (120) days following the end of each of its fiscal years; and, in the case of sub-paragraph (i) below, (y) the date on which the Parent delivered to the SEC the Parent’s consolidated financial statements:

(i)

a copy of the Parent’s annual report, containing audited consolidated financial statements of the Parent and its consolidated subsidiaries for such fiscal year certified by independent certified public accountants; and

(ii)

the balance sheet, statement of income and statement of cash flow of the Company, Vertex Renewables and the Parent for such fiscal year, as reviewed by the Parent’s independent certified public accountants;

(iii)

a copy of the Company’s and Vertex Renewables’ unaudited financial statement for such fiscal year;

(b)

as soon as available, but in any event, within the earlier of (x) sixty (60) days after the end of its first three fiscal quarters of each of its fiscal years; and, in the case of sub-paragraph (i) below, (y) the date on which the Parent delivered to the SEC the Parent’s unaudited consolidated financial statements:

(i)

a copy of the Parent’s quarterly report, containing unaudited consolidated financial statements of the Parent and its consolidated subsidiaries for such fiscal quarter; and

(ii)

each of the Company’s and Vertex Renewables’ quarterly report, containing unaudited financial statements of the Company for such fiscal quarter;

(c)

if a Default or Event of Default has occurred and is continuing in respect of the Company, as soon as available, but in any event within thirty (30) days after the end of each calendar month (in form and substance satisfactory to Macquarie), the Parent’s consolidated financial statements including a cash flow statement, income statement and balance sheet for the period reported, and certified by a Responsible Officer of the Parent; and

(d)

if a Default or Event of Default has occurred and is continuing in respect of the Company, as soon as available, but in any event within ninety (90) days after the end of the Parent’s fiscal year, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal year, presented in a quarterly format reasonably acceptable to the Macquarie,

provided that so long as the Parent 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 shall not be required to provide the Parent’s annual or quarterly reports to Macquarie.

14.2

Additional Information.

(a)

The Company shall promptly provide Macquarie with copies of any notices sent or received by the Company in relation to the Shell Crude Supply Agreement, any Macquarie Crude Procurement Contract or Intermediated Product Offtake Contract;

(b)

The Company shall promptly provide Macquarie with copies of any notices sent or received by the Company in relation to ~~the~~any Third Party Terminalling Agreement;

(c)

Upon reasonable notice, the Company shall provide to Macquarie such additional information as Macquarie may reasonably request to enable it to ascertain the current financial condition of the Company, including product reports in the form of Schedule N; and

(d)

From time to time, upon reasonable request by Macquarie, the Company shall obtain and provide to Macquarie additional information regarding third party arrangements relating to the operation of the Refinery or any Crude Oil and/or Product, if any, but only to the extent the Company may contractually disclose such arrangements to Macquarie.

(e)

Any notices of default or acceleration and any other information which is material or would have a material adverse effect on the ability of the Company to comply with its obligations under the Transaction Documents from time to time delivered to the Company or its Affiliates by lenders, agents, noteholders, trustees or other creditors under the outstanding Financing Agreements shall be promptly delivered to Macquarie.

(f)

Any notices, requests for amendments or waivers and any other information which is material or would have a material adverse effect on the ability of the Company to comply with its obligations under the Transaction Documents from time to time and which are delivered by the Company or its Affiliates to lenders, agents, noteholders, trustees or other creditors under the outstanding Financing Agreements shall be promptly delivered to Macquarie.

(g)

Within ten (10) days of any amendments being made to the plan of reorganization supported under the RSA as of the Restructuring Effective Date, the Company shall deliver to Macquarie an updated plan of reorganization, which describes Macquarie’s and the Company’s claims and the treatment thereof to the satisfaction of Macquarie.

(h)

The Company shall promptly provide (or procure that such information is provided) to Macquarie such information as Macquarie may reasonably request with respect to the progress of the Chapter 11 Cases, any plan of reorganization or any sale pursuant to Section 363 of the Bankruptcy Code.

(i)

The Company shall:

(i)

procure that Alvarez & Marsal promptly provide to Macquarie (x) on every fourth Thursday following the Petition Date; and (y) at such other times as may be required to ensure that Macquarie is able to accept a Monthly Crude Purchase Offer, a Monthly Crude Confirmation (if any), a Transaction Supplement in respect of a proposed Macquarie Crude Procurement Contract or a Product Purchase Proposal, a projected statement of sources and uses of cash for the Company for the current and following 13 calendar weeks (but not any preceding weeks), including the anticipated uses of the proceeds of any loans for each week during such period (the “Cashflow Forecast”). As used herein, “Cashflow Forecast” shall initially refer to the 13-week cash flow forecast most recently delivered on or prior to the Restructuring Effective Date and, thereafter, the most recent Cashflow Forecast delivered by the Company in accordance with Section 14.2); and

(ii)

~~(g) The Company shall~~ promptly provide to ~~the~~ Macquarie:

(A)

copies of each Weekly Variance Report delivered under the Post-Petition Financing Agreement at the same time that such Weekly Variance Report is required to be delivered to the Term Loan Agent under and in accordance with the terms of the Post-Petition Financing Agreement; and

(B)

by no later than 10 a.m. CT on each Business Day during the Term, its end-of-day cash balance for the immediately preceding Business Day; and

~~(i) on the Wednesday of each week during the Term:~~

(A) a cashflow forecast and projected financials report for the immediately succeeding week, which, amongst other matters, specifies the amount of Unrestricted Cash that the Company and Vertex Renewables expects to have on their balance sheets for the immediately succeeding week, in the form agreed between the Company and Macquarie for such purposes and as may be appended to this Agreement on or after the Commencement Date (the “Cashflow Forecast”); and

(B) confirmation from two directors of the Company that (1) the Cashflow Forecast for the immediately succeeding week represents the good faith and reasonable expectations of the Company and Vertex Renewables in respect of the relevant period; and (2) the Company and Vertex Renewables have complied with the requirements of Section 19.5 (Negative Covenants) for the immediately preceding week; and

(C)

~~(ii)~~ at any other time upon reasonable request by Macquarie, such other information as Macquarie may require for the purpose of determining whether the Minimum Liquidity Requirement ~~have~~has been breached.

14.3

Notification of Certain Events. The Company shall notify Macquarie (i) of the matters set forth in Section (ii) (as and to the extent set forth therein), and (ii) within four (4) Business Days after learning of any of the following events:

(a)

The Parent’s, Vertex Renewables’, the Company’s or any of their respective Subsidiaries binding written agreement to sell, lease, sublease, transfer or otherwise dispose of, or grant any Person 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 or the occurrence of any “event of default” under any Base Agreement, if any;

(d)

An early termination of or any notice of or the occurrence of an “event of default” under any Financing Agreement;

(e)

Any Master Agreement Termination Event;

(f)

An early termination of or any notice of or the occurrence of an “event of default” under a Guaranty;

(g)

Any default of a material obligation under, or termination or revocation, of any Third Party Storage Agreements;

(h)

An amendment to any Financing Agreement; provided that the Company shall notify Macquarie at least ten (10) Business Days prior to entering into any new Financing Agreement; and

(i)

The execution of any agreement or other instrument or the announcement of any transaction or proposed transaction that contemplates or results in a Change of Control or Specified Event.

14.4

Credit Support.

(a)

Guaranties. As a condition to Macquarie’s entering into this Agreement, the Company agreed to provide the Parent Guaranty and as a condition to Macquarie entering into the Vertex Renewables SOA with Vertex Renewables and effecting the consequential amendments to be made to this Agreement as a result of the entry into the Vertex Renewables SOA, the Company agreed to provide the VR Guaranty, in each case, as credit support for the prompt and complete performance and payment of all of the Company’s obligations hereunder and under the other Transaction Documents.

(b)

Lien Documents. 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 Macquarie in maintaining any UCC financing statements or other filings necessary to preserve Macquarie’s Liens pursuant to the Lien Documents.

(c)

Independent Amount.

(i)

As security for the prompt and complete payment of all amounts due or that may become due from the Company, to Macquarie, and the performance by the Company of all covenants and obligations to be performed by it for Macquarie pursuant to this Agreement and all other Transaction Documents and all outstanding transactions hereunder and thereunder, inclusive of all of the Company’s aggregate obligations under Transactions (collectively, the “Obligations”), the Company hereby pledges, assigns, conveys and transfers to Macquarie as margin, and hereby grants to Macquarie a present and continuing security interest in and to, and a general first lien upon and right of set off against, the amount of U.S. dollars constituting the Independent 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 Independent Amount as and when required under Section (i) hereof and (ii) once the full amount (or any subsequent additional portions thereof) of the Independent Amount has been so pledged, assigned, conveyed and transferred, the Company agrees that for the duration of the Term, it shall maintain such pledge, assignment, conveyance and transfer (subject to permitted reductions in the amount of such Independent Amount as set forth in the Independent Amount Letter) and take such action as Macquarie reasonably requests, including providing Macquarie with possession of an amount of immediately available funds necessary to satisfy the then prevailing required Independent Amount, as applicable, in order to perfect Macquarie’s continuing security interest in, and lien on (and right of setoff against), such amount. Notwithstanding the provisions of Applicable Law, at all times even if no Event of Default has occurred and is continuing with respect to Macquarie, then Macquarie shall have the right to sell, pledge, rehypothecate, assign, invest, use, commingle or otherwise use in its business all or any portion of the Independent 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 20.3 shall limit any rights of Macquarie under any other provision of this Agreement or any other Transaction Documents, including without limitation, under Section C or Article 20 below. The Company acknowledges and agrees that, as provided in the Master Agreement, the Independent Amount constitutes credit support for the Company’s obligations under the Master Agreement in accordance with the terms thereof. Macquarie shall exercise reasonable care to assure the safe custody of the Independent Amount to the extent required by Applicable Law.

(d)

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 Macquarie in maintaining any UCC financing statements or other filings necessary to preserve Macquarie’s Liens pursuant to the Lien Documents.

REFINERY TURNAROUND, MAINTENANCE AND CLOSURE

15.1

As between Macquarie and the Company, the Company shall be responsible for all operations and maintenance of Included Storage Locations which are, directly or indirectly, owned by the Company. The Company shall promptly notify Macquarie in writing of the date for which any inspection, maintenance, restart or turnaround at the Included Storage Locations, Refinery or the Refinery Facilities has been scheduled, or any revision to previously scheduled inspection, maintenance, restart or turnaround, which may materially affect receipts of Crude Oil at the Refinery, the Included Tanks, the processing of Crude Oil in the Refinery or the delivery of Products to Macquarie or by Macquarie to the Company or any third parties, it being acknowledged that any turnaround shall be considered material for these purposes; provided that, (i) promptly after the Company completes its annual business plan with respect to any year, it shall notify Macquarie of any such inspection, maintenance, restart or turnaround contemplated with respect to such year and (ii) the Company shall give Macquarie at least two (2) months’ prior written notice of the commencement of any such scheduled restart or turnaround or any inspection or maintenance which would be reasonably expected to have a material impact on the Refinery’s operations.

15.2

Promptly upon Macquarie’s reasonable request ~~by Macquarie, acting reasonably~~, and in any event no later than five (5) Business Days following the end of each Delivery Month and to the extent it is permitted to do so contractually and is not otherwise subject to any confidentiality restrictions, the Company shall use commercially reasonable efforts to promptly deliver to Macquarie information relating to the partial conversion of the Refinery for the production of Products constituting renewable diesel including costs incurred to date and projected further costs, staffing requirements, projected downtime, changes to the expected consumption of Crude Oil or any other feedstocks, negotiations with suppliers, and such other information that Macquarie may reasonably request.

15.3

The Company shall (i) promptly notify Macquarie of any discharge into the environment of any Hydrocarbons, in a manner contrary to Applicable Law, which discharge would reasonably be expected to result in a Material Adverse Change, and (ii) use commercially reasonable efforts to notify Macquarie promptly of the suspension, for a period in excess of twenty-four (24) hours, of more than 50% of the applicable daily forecasted production of all Products (taken as a whole) at the Refinery as set forth in the Weekly Product Projection; provided that, in each case, such notice must first be delivered orally and followed by prompt written notice.

15.4

In the event of a scheduled shutdown of the Refinery, the Company shall, to the extent feasible and commercially reasonable (as determined in accordance with Accepted Industry Practice), complete processing of all Crude Oil being charged to, processed at or consumed in the Refinery at that time.

15.5

(a)

Subject to Section 8.9(a)(ii) below, if at any time Macquarie determines that the maintenance and operation of all or any portion of the facilities constituting an Included Storage Location (in each case, “Identified Facilities”) in accordance with the Company’s policies and procedures would fail to satisfy Macquarie’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 (“Macquarie’s Policies and Procedures”), and without limiting any other rights and remedies available to Macquarie hereunder or under any other Transaction Document, Macquarie may provide the Company notice of such failure so long as such failure is continuing and, if Macquarie provides such notice, the following provisions shall be applicable:

(i)

in the case of any Identified Facilities that are subject to the Storage Facilities Agreement, upon such date as Macquarie shall specify, but not less than two hundred seventy (270) days after the date such notice is delivered to the Company (so as to allow to the Company time to remedy the non-compliance or other failure or to find substitute financial arrangements), such Identified Facilities shall cease to constitute an Included Storage Location (or part of an Included Storage Location) for purposes hereof and any payment to Macquarie in respect of any Crude Oil or Products held in such Identified Facilities shall, unless such failure has been cured to the reasonable satisfaction of Macquarie, become due in accordance with the provisions of Article 11 hereof; and

(ii)

in the case of any Identified Facilities that are subject to a Required Storage and Transportation Arrangement, the Parties shall endeavor, within not more than two hundred seventy (270) days after the date such notice is delivered to the Company (so as to allow to the Company time to remedy the non-compliance or other failure or to find substitute financial arrangements), to execute such rights, provide such notices, negotiate such reassignments or terminations and/or take such further actions as Macquarie deems necessary or appropriate to terminate Macquarie’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 Storage Location (or part of an Included Storage Location) for purposes hereof and any payment to Macquarie in respect of any Crude Oil or Products held in such Identified Facilities shall become due in accordance with the provisions of Article 11 hereof.

(b)

Macquarie’s rights under Section A above are subject to the following additional terms and conditions:

(i)

Macquarie shall apply Macquarie’s Policies and Procedures with respect to the Included Storage Locations in a non-discriminatory manner as compared with other similar storage tanks and pipeline facilities utilized by Macquarie in a similar manner;

(ii)

If the failure of any Identified Facilities to satisfy Macquarie’s Policies and Procedures is a result of Macquarie’s Policies and Procedures exceeding the standards or requirements imposed under Applicable Law or good and prudent industry practice, then (1) Macquarie shall not require the removal of such Identified Facilities as Included Storage Locations until the 270^th day after giving the Company written notice of such failure, (2) during such 270 day period, Macquarie shall consult with the Company in good faith to determine whether based on further information provided by the Company such Identified Facilities comply with Macquarie’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 Macquarie’s Policies and Procedures, and (3) if it is determined that such Identified Facilities do comply with Macquarie’s Policies and Procedures or, as a result of such additional actions or procedures, such Identified Facilities become so compliant within such 270 day period, then such Identified Facilities shall not cease to be Included Storage Locations based on the noncompliance stated in Macquarie’s notice to the Company;

(iii)

If within the 270 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 Macquarie’s Policies and Procedures, but such implementation cannot through commercially reasonable efforts be completed within such 270 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, Macquarie shall extend such 270 day period up for up to an additional ninety (90) 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 90 day period (or such longer period as the Parties may mutually agree), then such Identified Facilities shall not cease to be Included Storage Locations based on the noncompliance stated in Macquarie’s notice to the Company; and

(iv)

If any Identified Facilities cease to be Included Storage Locations pursuant to Section A above and thereafter Macquarie determines, in its reasonable good faith judgment, that such Identified Facilities have become compliant with Macquarie’s Policies and Procedures, then Macquarie shall promptly cooperate with the Company to re-establish such Identified Facilities as Included Storage Locations hereunder.

TAXES

16.1

(a)

The Company shall pay and indemnify and hold Macquarie harmless against, the amount of all sales, use, value added, transfer, stamp, property, duties, ad valorem, or other similar taxes, (but excluding all taxes imposed on or measured by net income or profits, all franchise taxes, all branch profits taxes, and all U.S. federal withholding taxes, including U.S. federal withholding tax imposed pursuant to FATCA), howsoever designated regardless of the taxing authority, and all penalties and interest thereon, paid, owing, asserted against, or incurred by Macquarie 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, except to the extent any such taxes, penalties, or interest are due to the gross negligence or willful misconduct of Macquarie or breach of the terms hereof by Macquarie (each indemnifiable tax is a “Tax” and collectively are “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 Macquarie. To the extent Macquarie 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 Macquarie with a certificate of exemption, and Macquarie shall timely pay the full amount of such Taxes to the applicable taxing authority in accordance with applicable law. Any refund or credit with respect to any Taxes paid or indemnified by the Company hereunder shall belong to the Company and Macquarie shall promptly remit any such amounts that it receives to the Company. For the avoidance of doubt, Macquarie shall be responsible for all taxes imposed on or measured by Macquarie’s net or gross (or any derivative thereof) income, and the Company shall be responsible for all taxes imposed on or measured by the Company’s net or gross (or any derivative thereof) income.

(b)

In addition to paragraph (a) above, the Company shall complete and file all necessary property tax returns on Macquarie’s behalf with respect to Crude Oil and Products, regardless of whether property tax laws place the obligation to do so upon Macquarie or the Company, disclose Macquarie’s ownership interest therein, and pay such amounts as due. Provided that the Company pays (or indemnifies Macquarie for) all such property Taxes, the Company shall have the first right to claim income tax credits or deductions for such property Taxes paid and shall be solely responsible for the extent to which such credits or deductions are available to or realized by the Company.

16.2

If the Company disagrees with Macquarie’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 Macquarie for the entire amount of such contested Tax should such Tax be deemed applicable. Macquarie agrees to reasonably cooperate with the Company, in the event the Company determines to contest any such Taxes. Company shall be responsible for all reasonable out of pocket costs and expenses incurred by Company or Macquarie in the event Company decides to seek an administrative determination from the applicable taxing authority or to contest any such Taxes. The Company and Macquarie agree to act reasonably in cooperating with each other to claim any refund or drawback of such Taxes at the time or times reasonably requested by the other Party.

16.3

(a)

The Company and Macquarie 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 Macquarie with respect to such asserted liability shall be under Macquarie’s direction but the Company shall be kept reasonably informed and consulted by Macquarie, provided that so long as the Company has sufficient available liquidity (as reasonably determined by Macquarie), then the Company shall have the option to assume the control and direction of any such legal proceedings or actions. Any legal proceedings or any other action against the Company with respect to such asserted liability shall be under the Company’s direction but Macquarie shall be consulted. In any event, the Company and Macquarie shall fully cooperate with each other as to the asserted liability. Each Party shall bear all the reasonable out of pocket costs of any action undertaken by the other Party pursuant to this Section 16.3(a) at that other Party’s request.

(b)

In addition to paragraph (a) above and other information sharing requirements applicable to Macquarie and the Company, Macquarie and the Company shall annually 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 file tax returns (including without limitation any returns referred to in Section 16.1(a))), 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.

16.4

On or prior to the date of this Agreement (and from time to time thereafter upon the reasonable request of the Company), Macquarie shall deliver to the Company an executed original of IRS Form W-8 or W-9, as applicable, certifying that Macquarie is exempt from U.S. federal backup withholding tax, and if such form expires or becomes obsolete in any respect, Macquarie shall provide an updated form certifying that it is exempt from U.S. federal backup withholding tax.

16.5

Any other provision of this Agreement to the contrary notwithstanding, this Article 16 shall survive until ninety (90) days after the expiration of the statute of limitations for the assessment, collection, and levy of any Tax.

INSURANCE

17.1

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- by A.M. Best Company, or otherwise equivalent in respect of the Company’s properties and operations consistent with or exceeding, the insurance coverage that the Company maintains as of the date of this Agreement.

(a)

Property damage including business interruption coverage on an “all risk” basis, including but not limited to flood, earthquake, windstorm, and tsunami, covering damage to the Refinery Facilities and the Included Storage Locations on a repair or replacement cost basis in an amount sufficient to repair major components of such Included Storage Locations. Business interruption and extra expense coverage shall include at least 18 months indemnity period and shall be in an amount equal to the projected net income and costs that would necessarily continue from such Refinery Facilities based upon the Company’s reasonable estimate thereof. The property damage and business interruption premium must be maintained with a minimum amount of $850,000,000 per occurrence with sub-limits in a minimum amount of $200,000,000 for earthquake, flood and windstorm, each peril separately.

(b)

Inventory coverage on an “all risk” basis, including but not limited to flood, earthquake, windstorm, and tsunami, covering the loss, damage, destruction and/or theft of the Refinery’s Crude Oil and Products in an amount equal to the market value or potential full replacement cost. Such coverage may be incorporated into the property insurance required in Section B.

(c)

Commercial general liability coverage which includes bodily injury, broad form property damage and contractual liability, cross suit liability, products and completed operations liability, and sudden and accidental pollution liability, in a minimum amount of $1,000,000 per occurrence and $2,000,000 in the aggregate.

(d)

(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.

(e)

Commercial automobile liability insurance in a minimum amount of $1,000,000 per accident, or as required by Applicable Law.

(f)

Umbrella/excess liability coverage providing coverage with respect to the coverage required under Sections 32.10, Section 17.1(d)(ii) and Section 25 in a minimum amount of $500,000,000 per occurrence and in the aggregate.

17.2

Additional Insurance Requirements.

(a)

The foregoing policies in Section 17.1, in each case, shall include or provide that the underwriters waive all rights of subrogation against Macquarie and the insurance is primary without contribution from Macquarie’s insurance. The foregoing policies in Section 17.1 shall, in each case, include (i) Macquarie as additional insured and (ii) Macquarie as loss payee under Sections 17.1(b) only.

(b)

The Company shall cause its insurance carriers or its authorized insurance broker to furnish Macquarie with insurance certificates, in Acord form or equivalent, evidencing the existence of the coverages and the endorsements required above. The Company shall provide thirty (30) days’ written notice prior to cancellation or material modification of insurance 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 17.1.

17.3

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.

17.4

Macquarie Insurance. Macquarie shall maintain its own insurance in relation to any Crude Oil or Products owned by it and any Eligible Hydrocarbon Inventory, and such insurance shall be the primary policy in respect of such Crude Oil or Products. To the extent that any insurance procured by Macquarie is duplicative with insurance procured by the Company, the insurance procured by the Company shall the secondary policy in respect of such Crude Oil or Products.

FORCE MAJEURE

18.1

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 prevented or materially hindered, in whole or in part, 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 under this Agreement has been suspended by reason of an event of Force Majeure, the other Party (the “Non-Affected Party”) may suspend the performance of all or a part of its obligations hereunder (except for any payment and indemnification obligations) to the extent that such suspension is commercially reasonable in respect of such event of Force Majeure and which obligations of the Affected Party are suspended as a result thereof, except for any payment and indemnification obligations. The Parties acknowledge that if, as a result of an event of Force Majeure, the Company were to suspend its receipt and/or processing of Crude Oil, then Macquarie would be entitled to suspend, to a comparable extent, its purchasing of Products.

18.2

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.

18.3

In the event the Affected Party’s performance is suspended due to an event of Force Majeure in excess of sixty (60) consecutive days after the date that notice of such event is given pursuant to Section 18.2 above, 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 21. Without limiting any rights of any Non-Affected Party under this Article 18, the parties agree that following notice of an event of Force Majeure, they shall consult in good faith to assess potential actions or steps with respect thereto.

18.4

If any Affected Obligation has been suspended but has not been terminated pursuant to this Article 18 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.

18.5

The Parties acknowledge and agree that the right of Macquarie to declare a Force Majeure based upon any failure by a Third Party Supplier to deliver Crude Oil under a Macquarie Crude Procurement Contract or Products under an Included Product Purchase Transaction is solely for purposes of determining the respective rights and obligations as between Macquarie and the Company with respect to any Crude Oil or Products delivery affected thereby, and any such declaration shall not excuse the default of such Third Party Supplier under one or more Macquarie Crude Procurement Contracts or Included Product Purchase Transactions. Any claims that Macquarie 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.

18.6

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 Product Pipelines or Included Product Tanks cease, in whole or in part, to be available to Macquarie 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 Product Pipelines or Included Product 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 use commercially reasonable efforts to promptly establish for Macquarie’s benefit alternative and/or replacement storage and transportation arrangements no less favorable to Macquarie (in Macquarie’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 Macquarie 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 becomes Bankrupt (other than any such Included Storage Location owned and/or operated by a Vertex Party, in which case, the provisions of the Assurance Agreement, including section 5 of the Assurance Agreement, shall apply). If any such storage facility is an Included Storage Location then Macquarie may, in its discretion, elect upon written notice to the Company that such storage facility shall cease to be an Included Storage Location as of a date specified in such written notice in which case any Crude Oil or Product held by Macquarie therein shall be purchased by the Company in accordance with the applicable provisions of Sections (k) and (b) hereof.

REPRESENTATIONS, WARRANTIES AND COVENANTS

19.1

Mutual Representations. Each Party represents and warrants to the other Party as of the Effective Date, the Restructuring Effective Date and each sale of Crude Oil hereunder, that:

(a)

It is an “Eligible Contract Participant,” as defined in Section 1a(18) of the Commodity Exchange Act, as amended.

(b)

It is a “forward contract merchant” in respect of 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.

(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 to which it is a party 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 to which it is a party and the performance of its obligations thereunder and the consummation of the transactions contemplated thereby do not violate any Applicable Law (to its knowledge), 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, except for such of the foregoing the absence or failure of which would not result in a Material Adverse Change.

(g)

Its obligations under the Transaction Documents to which it is a party 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)

NoOther than in connection with the commencement of the Chapter 11 Cases and except as contemplated by section 5 of the Assurance Agreement, 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 (disregarding for these purposes, any Event of Default or Default as contemplated by, as between the Parties hereto, section 5 of the Assurance Agreement).

(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 the Transaction Documents 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 or the other Transaction Documents.

(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.

(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 be violated by the 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 or purchase 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 shall receive any commission, fee, rebate, gift or entertainment of significant value in connection with this Agreement.

19.2

Company’s Representations. The Company represents and warrants as follows:

(a)

~~Each Vertex Party, individually and collectively, is not Insolvent~~[Reserved].

(b)

No representation, warranty or other statement made by any Vertex Party in any Transaction Document, certificate or written statement furnished to Macquarie, taken together with all such certificates, Transaction Documents and written statements, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in such Transaction Documents, certificates or statements not misleading (other than by reason of the commencement of the Chapter 11 Cases or otherwise as contemplated by section 5 of the Assurance Agreement), it being recognized by Macquarie that the projections and forecasts provided by each Vertex Party in good faith and based upon reasonable assumptions are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ from the projected or forecasted results.

(c)

As of the Commencement Date, Macquarie has received the Current Financial Statements of the Parent. The Current Financial Statements fairly present in all material respects Parent’s consolidated financial condition as of the dates thereof and consolidated results of operations for the periods then ended, subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnote disclosures. On the Commencement Date, there has not been a Material Adverse Change in the financial condition of Vertex Parties or any of their respective Subsidiaries, taken as a whole, since the date of the most recent of such Current Financial Statements.

(d)

No Vertex Party nor any of their respective Subsidiaries, and to its Knowledge, any of their directors, officers, agents, employees or Affiliates is, or is owned or controlled (as such terms are defined in the applicable Sanctions Laws) by Persons that are, currently subject to or the target of any Sanctions Laws, or is a Sanctions Target, or is located, organized or resident in a country or territory that is the subject of Sanctions. The Company will not Knowingly directly or indirectly use the proceeds of any payment made to it by Macquarie or otherwise make available such proceeds to any Person, for the purpose of materially financing the activities of any Person that is currently a Sanctions Target.

(e)

To the Knowledge of the Company, neither the entry into any of the Transaction Documents nor the use of any payments received thereunder will materially violate (i) the United States Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) executive order relating thereto, (iii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Terrorism Order”), (iv) USA PATRIOT ACT, or (v) USA FREEDOM ACT. No part of any payment made to the Company under and in accordance with the terms of this Agreement will be Knowingly used, directly or indirectly, for any material 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 United States Foreign Corrupt Practices Act of 1977, as amended.

(f)

To the Knowledge of the Company, neither it, nor any other Vertex Party, (i) is or will become a ““blocked person”” as described in Section 1.01 of the Terrorism Order or (ii) engages or will engage in any dealings or transactions, or is otherwise associated, with any such blocked person.

(g)

To the Knowledge of the Company, it, each other Vertex Party, and their respective Affiliates are in compliance, in all material respects, with the USA PATRIOT ACT and the USA FREEDOM ACT.

(h)

To the Knowledge of the Company, the agents of the Company, are in material compliance with all applicable Sanctions and all Anti-Corruption Laws and Anti-Money Laundering Laws. Each Vertex Party has instituted and maintain policies and procedures designed to ensure continued compliance with applicable Sanctions Laws and Anti-Corruption Laws and Anti-Money Laundering Laws.

(i)

The Transaction Documents, taken together with the Intermediation Orders and the DIP Orders are effective to create in favour of Macquarie, legal, valid, enforceable and continuing first priority Liens on, and security interests in, the Credit Support (other than, with respect to priority, the DIP Collateral (as defined in the Interim DIP Order) in respect of which Macquarie has a second priority Lien) pledged thereunder, in each case, subject to no Liens other than with respect to Permitted S&O Liens. Pursuant to the terms of the Interim Intermediation Order and/or Final Intermediation Order, no filing or other action will be necessary to perfect or protect such Liens and security interests. Pursuant to and to the extent provided in the Interim Intermediation Order and the Final Intermediation Order, the obligations of the Vertex Parties under the Transaction Documents will be granted superpriority administrative expense status in the Chapter 11 Cases under Section 364(c)(1) of the Bankruptcy Code, having priority over all administrative expense claims and unsecured claims against such Vertex Parties now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expense claims of the kind specified in Sections 503(b) and 507(b) of the Bankruptcy Code and all super-priority administrative expense claims granted to any other Person, subject only to the Carve Out (as defined in the Interim DIP Order).

(j)

Each of the Interim Intermediation Order (to the extent necessary, with respect to the period prior to the entry of the Final Intermediation Order) or the Final Intermediation Order (from and after the date the Final Intermediation Order is entered) is in full force and effect and has not been vacated, reversed or rescinded or, without the prior written consent of Macquarie, in its sole discretion, amended or modified and no appeal of such order has been timely filed or, if timely filed, no stay pending such appeal is currently effective.

19.3

Company Covenants. The Company represents, warrants and covenants to Macquarie as follows:

(a)

The Company shall deliver true and complete copies of the Base Agreements and all amendments thereto to Macquarie 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 of 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, except where the failure to do so would not result in a Material Adverse Change.

(d)

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 Macquarie; provided, however, that if the Company provides Macquarie with prior written notice of such modifications, amendments or waivers, the Company may make such modifications or amendments and grant such waivers, including extensions or elections under any of the foregoing, that do not materially and adversely affect Macquarie’s rights hereunder, degrade, reduce or limit the standards applicable to the operator thereunder or otherwise interfere with Macquarie’s rights to use the Included Product Pipelines and Included Product Tanks subject thereto.

(e)

The Company shall not cause or permit any of the Crude Oil or Products held at the Included Storage Locations to become subject to any Liens, except for Permitted S&O Liens.

(f)

The Company represents and warrants that the Company Storage Locations and Included Storage Locations, to the extent owned or operated by or with the assistance of the Company, have been maintained, repaired, inspected and serviced in accordance with Accepted Industry Practice and Applicable Law and are in good working order and repair in all material respects.

(g)

In the event the Company becomes Bankrupt, and to the extent permitted by Applicable Law, the Company intends that (i) Macquarie’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) Macquarie 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.

(h)

In connection with Macquarie’s procurement of Crude Oil or Products, whether from the Company or any third party and whether under a Macquarie Crude Procurement Contract or an Included Product Purchase Transaction (each a “Sourcing Transaction”), the Company covenants and agrees that any out of pocket costs, losses or damages that Macquarie may incur as a result of such Sourcing Transaction, including due to failure by the Company or any such third party to deliver the Crude Oil or Products subject to such Sourcing Transaction, shall constitute, without duplication, Ancillary Costs and be for the account of the Company and claims arising in connection therewith shall be subject to Section 5.9 hereof, except to the extent that such out of pocket costs, losses or damages have been incurred by Macquarie as a result of its gross negligence, willful misconduct or intentional default.

(i)

This Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby do not and shall not violate any terms and conditions of any Existing Financing Agreement or other Financing Agreement that is hereafter entered into by the Company.

(j)

The Company shall not modify or amend (including any extensions of or elections under), or waive any arising under, any Financing Agreement without the prior written consent of Macquarie, if doing so would (i) adversely affect in any respect any of Macquarie’s rights or remedies under this Agreement or the other Transaction Documents or (ii) cause any Existing Financing Agreement to no longer satisfy the conditions set forth in Section 1.1(e) above (which, for these purposes, shall be deemed to refer to the Intercreditor Agreement and the Orders collectively but shall disregard junior liens on the Hydrocarbon Credit Support to the extent permitted by the Orders), including, without limitation, the recognition that Macquarie 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; provided however, that Macquarie will not charge a fee to the Company for any written acknowledgment that any such amendment of a Financing Agreement does not adversely affect in any material respect any of Macquarie’s rights or remedies hereunder.

(k)

The Company shall not, from and after the Effective Date, enter into any Financing Agreement (an “Additional Financing Agreement”) that would cause its aggregate Specified Indebtedness (excluding, for these purposes, the Existing Financing Agreements) to exceed USD 10,000,000 without the prior written consent of Macquarie (such consent not to be unreasonably withheld, conditioned or delayed) unless such Additional Financing Agreement, at the time it is entered into, does not adversely affect in any respect (i) any of Macquarie’s rights or remedies under this Agreement or the other Transaction Documents or (ii) Macquarie’s status as 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, in which case, the Company shall notify Macquarie of such Additional Financing Agreement by no later than the date on which Additional Financing Agreement is entered into. The Company shall not 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 Macquarie, if doing so would adversely affect in any respect any of Macquarie’s rights or remedies under this Agreement or the other Transaction Documents including, without limitation, Macquarie’s status as 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.

(l)

Except as otherwise provided herein or approved by Macquarie, the Company shall not use any cash or the proceeds of any transactions hereunder in a manner or for a purpose inconsistent with this Agreement, the other Transaction Documents and the Orders.

19.4

Affirmative Covenants. The Company shall, and shall cause each of its Subsidiaries to:

(a)

Preservation of Existence, Etc. (i) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Applicable Laws of the jurisdiction of its organization except in a transaction permitted by the Existing Financing Agreements with prior notice to Macquarie and provided that all required actions are taken, or caused to be taken, so to preserve the perfection of liens in favor of Macquarie created in connection herewith on or before the consummation of any such transaction; (ii) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Change; and (iii) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to result in a Material Adverse Change.

(b)

Maintenance of Properties. (i) Maintain, preserve and protect all of its material properties and equipment necessary in conduct of its business and operation in accordance with Accepted Industry Practice, ordinary wear and tear excepted; and (ii) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to result in a Material Adverse Change.

(c)

Compliance with Laws. Comply in all respects with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to the conduct of its business, operations or property, except in such instances in which (i) such requirement of Applicable Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (ii) the failure to comply therewith could not reasonably be expected to result in a Material Adverse Change.

(d)

Books and Records. (i) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP in all material respects and consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company; and (ii) maintain such books of record and account in conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company, except where the failure to do so would not result in a Material Adverse Change. To the extent permitted by GAAP, the Company shall reflect the buy/sell transactions contemplated hereby as buy/sell transactions on its books and records and will not list as assets in its books and records any Crude Oil or Product agreed hereunder to be owned by Macquarie. To the extent permitted by GAAP, the Company shall not reflect amounts owed to Macquarie hereunder as indebtedness for borrowed money, but will reflect them as trade payables.

(e)

Additional Inspection Rights. In addition to the inspection rights of Macquarie set forth elsewhere in this Agreement or any other Transaction Document, all of which rights shall continue in full force and effect, and notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document, upon providing commercially reasonable notice and during normal business hours, permit Macquarie (or any representative of Macquarie) to visit and inspect any of the Company’s properties, to examine the Company’s corporate, financial and operating records with respect to the Transaction Documents, and make copies thereof or abstracts therefrom, and to discuss the Company’s affairs, finances and accounts with any of the Company’s directors (or equivalent), or officers and, if requested by the Company, in the presence of an officer of the Company, in each case, as often as reasonably may be desired by Macquarie, all at the sole cost and expense of the Company.

(f)

Further Assurances.

(i)

To the extent deemed necessary or appropriate by Macquarie, the Company shall cause to be filed acknowledgements and/or releases (including without limitation, amendments or terminations of UCC financing statements), in form and substance reasonably satisfactory to Macquarie, confirming the release of any Lien in favor of any 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 Macquarie is the owner as contemplated by this Agreement and the other Transaction Documents and recognition of Macquarie’s first priority Lien with respect to the Hydrocarbon Credit Support granted to Macquarie under the Lien Documents, and agrees to use commercially reasonable efforts to provide Macquarie with such further documentation as it may reasonably request in order to confirm the foregoing.

(ii)

The Company agrees that it shall not have any interest in or the right to dispose of (other than as set forth in the Transaction Documents) (but shall have the right to purchase contemplated herein), and shall not permit the creation of, or suffer to exist, any security interest, lien, mortgage, encumbrance, charge or other claim of any nature (collectively, “Liens”), other than Permitted S&O Liens, with respect to, any quantities of Crude Oil or Products that are owned by Macquarie from time to time pursuant to the Transaction Documents and held in the Included Storage Locations (collectively, “Macquarie’s Property”). The Company authorizes Macquarie to file at any time and from time to time any UCC financing statements describing the quantities of Macquarie’s Property subject to this Agreement and Macquarie’s ownership thereof and title thereto, as well as any inventory or other Credit Support on which the Company, as applicable, or has granted to Macquarie a first priority Lien pursuant to the Lien Documents, and the Company shall execute and deliver to Macquarie, and the Company hereby authorizes Macquarie to file (with or without such 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 Macquarie, as Macquarie may reasonably request, to provide public notice of Macquarie’s ownership of and title to the quantities of Macquarie’s Property subject to this Agreement and to otherwise protect Macquarie’s interest therein and provide notice of Macquarie’s Liens on any property covered thereby.

19.5

Negative Covenants. The Company covenants and agrees that it shall not (and shall procure that Vertex Renewables shall not), at any time, permit the Unrestricted Cash of the Company and Vertex Renewables (together with any undrawn commitments under the Post-Petition Financing Agreement) to be less than $~~25,000,000~~15,000,000 in the aggregate for any period of more than three (3) consecutive Business Days (the “Minimum Liquidity Requirement”).

19.6

Additional Covenants.

(a)

Subject to Section 19.3(j), the Company will provide prior written notice to Macquarie of any amendments, restatements, supplements or other material modifications of or to any Financing Agreement prior to the effectiveness of same, provided however, that the Company shall not be required hereby to provide notice of (i) supplements to any indenture if such supplement either (a) does not change a material term thereof or (b) adds a guarantor or pledger thereunder, (ii) changes to any hedging contract, forward purchase agreement or swap agreement, (iii) the addition or release of any collateral (so long as such collateral does not constitute the Company’s Hydrocarbons) with respect to any Financing Agreement.

(b)

In all respects subject to the Bankruptcy Code and applicable confidentiality arrangements, prior to (x) submitting a motion to reject within the meaning of Section 365(a) of the Bankruptcy Code; or (y) exercising any right it may have to terminate, the Shell Crude Supply Agreement, the Tripartite Crude Supply Agreement related thereto, any Intermediated Product Offtake Contract or corresponding Tripartite Product Offtake Agreement, the Company shall notify Macquarie in advance on a confidential basis (a “Supply/Offtake Consultation Notice”). As soon as reasonably practicable following receipt of a Supply/Offtake Consultation Notice and subject in all respects to the other terms and conditions under this Agreement and the Intermediation Orders, the Parties shall consult (i) with a view to ensuring that, to the extent that the Company intends to request that Macquarie enter into Macquarie Crude Procurement Contracts, Included Product Purchase Transactions, Included Sales Transactions or Included Crude Sales Transactions in lieu of obtaining supply or offtake from the Permitted Supplier, Product Supplier or Third Party Offtaker, there are sufficient arrangements in place between Macquarie and the Company such that (and subject to the provisions of this Agreement), Macquarie and the Company are operationally ready (to the extent feasible in advance) to facilitate the entry into of Macquarie Crude Procurement Contracts, Included Product Purchase Transactions, Included Crude Sales Transactions or Included Sales Transactions (if applicable); and (ii) with respect to any anticipated effects on the next upcoming Cashflow Forecast.

19.7

Acknowledgment. The Company acknowledges and agrees that (1) Macquarie 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 Macquarie’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) Macquarie 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 Macquarie may, in its discretion, determine not to pursue such transaction or to pursue such transaction in connection with another aspect of Macquarie’s business and Macquarie shall have no liability of any nature to the Company as a result of any such determination, (3) Macquarie has no fiduciary duties or trust obligations of any nature with respect to the Refinery or the Company or any of its Affiliates, (4) Macquarie 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 Macquarie, 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.

DEFAULT AND TERMINATION

20.1

Events of Default. Notwithstanding any other provision of this Agreement, the occurrence of (x) any of the following events (other than sub-paragraph (d) or (f) below) with respect to a Vertex Party shall constitute an “Event of Default” with respect to ~~such Party~~the Company and; (y) any of the following events set out in sub-paragraph (a), (c), (d), (e) and (f) shall constitute an “Event of Default” with respect to Macquarie:

(a)

Failure to Pay. Either Party fails to make payment when due under any Transaction Document within one (1) Business Day after delivery of a written notice from the other Party of such failure to pay; or

(b)

Material Obligations. Other than a default described in Section 20.1(a), 20.1(c), 20.1(e), or 20.1(p), the Company fails to:

(i)

comply with the ~~requirements of~~Minimum Liquidity Requirement set out in Section 19.5 (Negative Covenants); or

(ii)

perform any Material Obligation ~~(other than as described in sub-paragraph (i) above)~~ 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 two Business Days after the date that such Party receives written notice that such obligation or covenant has not been performed; (or such longer grace period as provided under the applicable Transaction Document) or

(c)

Misrepresentation. Either Party (or, if applicable, any Affiliate of such Party that is party to a Transaction Document, including, without limitation, Vertex Renewables) breaches any material representation or material warranty made or repeated or deemed to have been made or repeated by the Party (or any such Affiliate of such 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 such longer grace period as provided under the applicable Transaction Document) or

(d)

Bankruptcy. ~~Either Party~~Macquarie becomes Bankrupt; or

(e)

Default under Specified Transaction. Either Party or any of its Affiliates (1) defaults on payment obligations under any Specified Transaction, or (2) defaults on posting required collateral or credit support in connection with any Specified Transaction and such breach is not cured to the reasonable satisfaction of the other Party within two (2) Business Days after the date that such Party receives notice that corrective action is needed; or

(f)

Master Agreement. A Master Agreement Termination Event occurs with respect to ~~either Party~~Macquarie; or

(g)

Change of Control or Specified Event. A Change of Control or Specified Event occurs; or

(h)

Material Agreement. 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)

Disposals. The Company, Vertex Renewables or any of its Subsidiaries sells, leases, subleases, transfers or otherwise disposes of, in one transaction or a series of related transactions (other than an Acceptable Plan or Sale), all or substantially all of the assets that constitute the Refinery; or

(j)

Merger. ~~The~~Other than an Acceptable Plan or Sale, 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 Macquarie, all of the Company’s obligations hereunder and under the other Transaction Documents, or (B) in the reasonable judgment of Macquarie, 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)

Breach of covenant. The Company fails to perform or observe any covenant, affirmative or negative, set forth herein or in any other Transaction Document (other than any such covenant specified in any other sub-section of this Section 20.1 or any contemplated by, as between the Parties hereto, section 5 of the Assurance Agreement) and the Company fails to cure, correct or eliminate such failure or non-compliance within five (5) Business Days after receipt from Macquarie of written notice of such failure; provided further that no Event of Default shall occur pursuant to this sub-section (k) if (1) an administrative, technical or unintentional error is identified in a report delivered to Macquarie by the Company pursuant to this Agreement and the Parties have agreed to correct any such error; or (2) a default or termination occurs under a Transaction Document that is a Third Party Supply/Offtake Agreement (other than any breach of any exclusivity provisions set out in such agreements) (and without limiting any other right that Macquarie may have under this Section 20.1 or otherwise in connection with such default or termination).

(l)

Cross Default. ~~There~~Other than in connection with the commencement of the Chapter 11 Cases, 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 or any of its Guarantors under one or more agreements or instruments relating to Specified Indebtedness (other than any Financing Agreement) in an aggregate amount of not less than ($20,000,000) which has resulted in such Specified 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 or any of its Guarantors in making one or more payments on the due date thereof in an aggregate amount of not less than ($20,000,000) under such agreements or instruments (after giving effect to any applicable notice requirement or grace period); or (C) an event or default or termination event (including an additional termination event) occurs in respect of which the Company is the defaulting party or an affected party under the MBL Secured ISDA; or

(m)

Financing Agreement. Any indebtedness of the Company or any of its Guarantors pursuant to a Financing Agreement is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of the occurrence of an event of default (howsoever described) under any of the Financing Agreements; or

(n)

Repudiation. A Vertex Party disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenge the validity of this Agreement or the Guaranty to which it is a party; or

(o)

Guarantor. Any of the following: (i) a Guarantor or a Vertex Renewables Guarantor fails to perform or otherwise defaults in any payment obligation under the Guaranty or Vertex Renewables SOA Guaranty to which it is a party, (ii) ~~a Guarantor becomes Bankrupt, (iii) any~~any Guaranty or any Vertex Renewables SOA Guaranty expires (other than in accordance with its terms or pursuant to any mutually agreed termination arrangement) or terminates or ceases to be in full force and effect prior to (x) in the case of the Guaranties, the satisfaction of all obligations of the Company to Macquarie under this Agreement and the other Transaction Documents; or (~~iv) a~~y) in the case of the Vertex Renewables Guaranties, Macquarie determining that there are no further actual or potential liabilities of Vertex Renewables to Macquarie that could arise after the termination of the Vertex Renewables SOA, or (iii) a Guarantor or a Vertex Renewables Guarantor disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of the Guaranty or Vertex Renewables SOA Guaranty to which it is a party or any of the Intercreditor Provisions (as defined below); or

(p)

Security Instruments. (i) Macquarie fails to have a valid perfected security interest in any portion of the Credit Support (other than Credit Support released in accordance with the Transaction Documents) or (ii) any Lien Document shall at any time and for any reason (other than solely with respect to any action or inaction of Macquarie) cease to create a security interest on the Credit Support purported to be subject to such instrument in accordance with the terms of such instrument, or cease to be in full force and effect (except to the extent that the Interim Intermediation Order is replaced by the Final Intermediation Order or the Interim DIP Order is replaced by the Final DIP Order, once entered by the Bankruptcy Court); or

(q)

Compliance with Governmental Authority. A Vertex Party fails to comply in any respect with the order, regulation or directive of any Governmental Authority pertaining in any way to such person, the transactions contemplated by the Transaction Documents or the Credit Support, except for such failure to comply as would not result in a Material Adverse Change; or

(r)

Judgments Against Company. ~~There~~Other than in connection with the commencement of the Chapter 11 Cases, there is entered against the Company (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding $20,000,000 (to the extent not covered by independent third-party insurance) which is not paid when due in accordance with its terms, or (ii) one or more non-monetary final orders of a court of competent jurisdiction that have, or would reasonably be expected to result in, individually or in the aggregate, a Material Adverse Change; or

(s)

Judgments Against a Guarantor. ~~There~~Other than in connection with the commencement of the Chapter 11 Cases, there is entered against a Guarantor (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding $ 20,000,000 (to the extent not covered by independent third-party insurance) which is not paid when due in accordance with its terms, or (ii) one or more non-monetary final orders of a court of competent jurisdiction that have, or would reasonably be expected to result in, individually or in the aggregate, a Material Adverse Change; or

(t)

Intercreditor Agreement.

(i)

any of the intercreditor, subordination, standstill, payover and insolvency related provisions of the Intercreditor Agreement (except to the extent superseded by an Intermediation Order), the Intermediation Orders or, solely as they relate to Macquarie or the Intermediation Facility Priority Collateral (as defined in the Interim Intermediation Order), the other Orders (“Intercreditor Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable indebtedness (other than pursuant to an Approved Bankruptcy Court Order); or

(ii)

the Company shall, directly or indirectly, disavow or contest in any manner the effectiveness, validity or enforceability of any of the Intercreditor Provisions; or

~~(u) Vertex Renewables SOA. There shall occur an “Event of Default” (as defined in the Vertex Renewables SOA) in respect of Vertex Renewables under the Vertex Renewables SOA.~~

(iii)

the Term Loan Agent on behalf of itself and other DIP Loan Secured Parties contests, protest or objects to, or supports any other person in contesting, protesting or objecting to, Macquarie’s title to or ownership of all or any part of the Macquarie Owned Inventory (as defined below).

(u)

Bankruptcy Proceedings.

(i)

the Interim DIP Order, in form and substance reasonably acceptable to Macquarie, is not entered by the Bankruptcy Court by the date falling three (3) days after the Petition Date; provided, that the form of the proposed Interim DIP Order filed on the docket is deemed to be in form and substance reasonably acceptable to Macquarie;

(ii)

the Post-Petition Financing Agreement has not been funded in the amount of at least US$39,390,204.38 by September 27, 2024 and thereafter, in accordance with the Approved Budget (as defined in the Post-Petition Financing Agreement);

(iii)

the Final Intermediation Order, in form and substance reasonably acceptable to Macquarie is not entered by the date falling thirty (30) days after the Petition Date;

(iv)

a final order that approves the Post-Petition Financing Agreement and that is in form and substance reasonably acceptable to Macquarie (the “Final DIP Order”), is not entered by the Bankruptcy Court, within thirty (30) days following the Petition Date;

(v)

failure to consummate or confirm, as applicable, an Acceptable Plan or Sale by the Expiration Date;

(vi)

the Vertex Parties fail to satisfy any of their material obligations (including credit support obligations and any exclusivity requirement) under the Transaction Documents (in each case, other than under a Transaction Document that is a Third Party Supply/Offtake Agreement unless the relevant failure to comply relates to a breach of any exclusivity requirement, and without limiting any other right Macquarie may have under this Section 20.1 or otherwise), the Assurance Agreement, the Interim Intermediation Order or, following its entry, the Final Intermediation Order;

(vii)

(1) a Vertex Party moves to reject an Intermediation Contract (as defined in the Interim Intermediation Order) or such Intermediation Contract is rejected under section 365(a) of the Bankruptcy Code; or (2) a Vertex Party moves to reject a Third Party Supply/Offtake Agreement other than in compliance with Section 19.6(b);

(viii)

any Vertex Party declares itself to be, or is found by the Bankruptcy Court to be, administratively insolvent, or any Vertex Party declares that it does not intend to pay allowed administrative expense claims in full;

(ix)

any Vertex Party moves or supports a motion seeking to convert any Vertex Party’s bankruptcy case to a case under Chapter 7 of the Bankruptcy Code or dismissing any Vertex Party’s bankruptcy case;

(x)

the Bankruptcy Court enters an order converting any Vertex Party’s bankruptcy case to a case under Chapter 7 of the Bankruptcy Code or dismissing any Vertex Party’s bankruptcy case;

(xi)

the Bankruptcy Court enters an order, or any Vertex Party files or supports an application, motion, or request for an order directing the appointment under section 1104 of the Bankruptcy Code of (1) a trustee or (2) an examiner or any other person with enlarged powers relating to the operation of the business of any Vertex Party (i.e., powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code);

(xii)

any debtor-in-possession financing facility under which any Debtor is obligated to perform is accelerated by the lender or the lender’s agent or otherwise matures and remains unpaid;

(xiii)

any Vertex Party has a receiver, custodian, trustee or liquidator appointed over all or a substantial portion of its assets or is subject to such an appointment or to any similar proceeding under the laws of any jurisdiction;

(xiv)

any Vertex Party files or supports a motion, proposed plan or other pleading, or any order is entered in the bankruptcy case that in any material way affects, impairs, or limits (including the imposition of any stay or injunction) Macquarie’s rights or the Vertex Parties’ obligations under the Transaction Documents (other than under a Transaction Document that is a Third Party Supply/Offtake Agreement and without limitation any right Macquarie may have under this Section 20.1 or otherwise in connection herewith), the Assurance Agreement, the Interim Intermediation Order or the Final Intermediation Order or the validity, priority or enforceability of any security interests or claims granted to Macquarie pursuant to the Interim Intermediation Order, the Interim DIP Order, the Final DIP Order or the Final Intermediation Order;

(xv)

the Interim Intermediation Order or, following its entry, the Final Intermediation Order, shall cease to be in full force and effect, in each case as determined by Macquarie in its commercially reasonable discretion;

(xvi)

the Interim Intermediation Order, or, following its entry, the Final Intermediation Order:

(A)

shall have been, directly or indirectly, affected, impaired, limited reversed, stayed, vacated or subjected to a stay pending appeal or otherwise modified in any way materially adverse to the protections afforded to Macquarie under the Interim Intermediation Order or, when entered into, the Final Intermediation Order, in either case, without the prior written consent of Macquarie; or

(B)

are modified or amended in any way that affects any termination rights available to the Macquarie Bank Limited (in its capacity as hedge provider) (the “Hedge Provider”) under the MBL Secured ISDA, as amended in the manner described in the Interim Intermediation Order, or that is otherwise materially adverse to the protections afforded to the Hedge Provider under the Interim Intermediation Order and/or the Final Intermediation Order, without the prior written consent of the Hedge Provider;

(xvii)

an order is entered by the Bankruptcy Court requiring the avoidance of any payment received by Macquarie under any Transaction Document or any Vertex Party moves for the avoidance of any payment received by Macquarie under any Transaction Document, whether such payment is received prior to, on or after the Petition Date;

(xviii)

any Transaction Document shall be assigned by any Vertex Party to any third party without the prior written consent of the other party or parties, as applicable, to such Transaction Document;

(xix)

any motion or other pleading is filed by a Vertex Party proposing a transaction (other than the transactions expressly contemplated by the Acceptable Plan (as defined in the Interim DIP Order)) for the sale of the Refinery (through a sale of assets, sale of substantially all assets, merger, reorganization or otherwise) that is not also an Acceptable Plan or Sale;

(xx)

the Bankruptcy Court enters an order or orders granting relief from the automatic stay under section 362 of the Bankruptcy Code with regard to any assets of the Vertex Parties and such relief would have or could reasonably be expected to have a material adverse effect; or

(xxi)

noncompliance by any Vertex Party with any of the material terms of the Interim Intermediation Order or the Final Intermediation Order.

20.2

Change in Law.

(a)

If, due to a Change in Law after the date of this Agreement:

(i)

it becomes:

(A)

unlawful or otherwise prohibited on any day, or it would become unlawful or otherwise prohibited if the relevant payment, delivery or compliance were required on that day, for a Party (the “CL Affected Party”) to perform any absolute or contingent obligation to make a payment or delivery or to receive a payment or delivery under this Agreement or to comply with any other material provision of this Agreement or any other Transaction Document; or

(B)

unlawful for any Affiliate of the CL Affected Party, for the CL Affected Party to do the acts described at Section 20.2(a)(i) above; or

(ii)

if the CL Affected Party is Macquarie, it would be or is likely to be subject to additional or increased burdens or costs if it were to continue to hold Crude Oil and Product in the manner contemplated by this Agreement,

then:

(A)

the CL Affected Party shall promptly notify the other Party (the “Non-CL Affected Party”) upon becoming aware of that event; and

(B)

without prejudice to Section 20.2(c) below, the relevant right, obligation or other provision shall be suspended to the extent required to avoid any breach of the matter which is the subject of the Change in Law or any other unlawfulness on the part of the CL Affected Party.

(b)

The obligations of the Non-CL Affected Party under this Agreement shall be suspended to the same extent as those of the CL Affected Party.

(c)

If either:

(i)

at any time it is not possible by virtue of the suspension described in Section 20.2(a)(ii) (B) above to avoid the breach or other unlawfulness on the part of the CL Affected Party described in Section 20.2(a)(ii); or

(ii)

it is so possible but the Parties have been unable to agree, each acting in good faith and in a commercially reasonable manner, consequential amendments to be made to the Transactions that may be substituted for any such invalid, illegal or unenforceable provision and which, as nearly as is practicable in all the circumstances, preserve the commercial intention of the Parties and the intended economic effect of the transactions contemplated by the Transaction Documents,

in either such case by the date falling 10 (ten) Business Days after the date of the notice described in Clause 20.2(a) (or, if earlier, the date specified by the CL Affected Party in the notice described in Clause 20.2(a) as the last day of any applicable grace period permitted by Applicable Law), the CL Affected Party shall be entitled to terminate this Agreement by notice to the Non-CL Affected Party (an “Illegality Termination Notice”).

(d)

An Illegality Termination Notice shall specify the termination date which shall not be earlier than:

(i)

where it has not been possible to avoid the breach or unlawfulness described in Section 20.2(a), the date of the Illegality Termination Notice; or

(ii)

otherwise, 30 (thirty) days after the date of the Illegality Termination Notice.

20.3

Termination Event.

(a)

The occurrence of any of the following events shall constitute a “Termination Event” for the purposes of this Agreement:

(i)

Illegality Termination Notice. An Illegality Termination Notice is delivered by the CL Affected Party to the Non-CL Affected Party pursuant to Section 20.2(c).

(ii)

Invalidity. Any material obligation(s) of the Company or Macquarie under any Transaction Document between the Company and Macquarie are not or cease to be legal, valid, binding or enforceable.

~~(iii) Termination of certain agreements: An Intermediated Product Offtake Contract, the Shell Crude Supply Agreement or the Tripartite Crude Supply Agreement is terminated by any party thereto.~~

~~(iv) Vertex Renewables SOA. There shall occur a “Termination Event” (as defined in the Vertex Renewables SOA) under the Vertex Renewables SOA.~~

(b)

Following the occurrence of a Termination Event, either Party may, by notice in writing to the other Party, elect to terminate this Agreement (a “Termination Notice”). A Termination Notice must specify the date on which the Agreement shall terminate, which shall be a date no earlier than the date of that notice and, in the case of a Termination Event pursuant to sub-paragraph 20.3(a)(i) above, shall be a date no earlier than the date determined in accordance with Section 20.2(d) above. Once a Termination Notice has been validly given, the Agreement shall terminate on the date specified in that Termination Notice.

(c)

Following termination of this Agreement pursuant to this Section 20.3, the provisions of Article 21 shall apply unless, following the occurrence of a Change in Law, the CL Affected Party determines that compliance with Article 21 would be contrary to Applicable Law, in which case, Section 20.4 (other than Section 20.4(a)) shall apply.

20.4

Remedies.

(a)

Acceleration. Notwithstanding any other provision of this Agreement, if any Event of Default with respect to the Company, on the one hand, or Macquarie, on the other hand (such defaulting Party, the “Defaulting Party”) has occurred and is continuing, Macquarie (where the Company is the Defaulting Party) or the Company (where Macquarie is the Defaulting Party) (such non-defaulting Party or Parties, the “Non-Defaulting Party”) may, upon notice to the Defaulting Party (an “Acceleration Notice”), (i) designate a date not earlier than the date of the Acceleration Notice as the date on which this Agreement shall terminate and declare all of the Defaulting Party’s obligations under this Agreement to be 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 and/or (ii) subject to Section 20.4(d), exercise any rights and remedies provided or available to the Non-Defaulting Party under this Agreement, the other Transaction Documents or at law or equity, including all remedies provided under the UCC and as provided under this Section 20.4.

(b)

Termination/Settlement Amount. 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, to terminate the Agreement (and any other contract or agreement that may then be outstanding between the Parties that relates specifically to this Agreement, including any Transaction Document) on a date no earlier than the date specified in the Acceleration Notice or, to the extent that the provisions of this Section 20.4 apply following the occurrence of a Change in Law, the relevant Termination Date, and, subject to Section 20.4(d), to liquidate and terminate any or all rights and obligations under this Agreement and such other Transaction Documents; provided that, in the event Macquarie is the Non-Defaulting Party, this Agreement shall not be deemed to have terminated in full until Macquarie shall have disposed of all Crude Oil and Products owned or maintained by Macquarie in which Macquarie has lien or other rights in connection herewith and exercised in full all of its rights and remedies with respect to the Hydrocarbon Credit Support.

(c)

Settlement Amount. The Settlement Amount (as defined below) payable upon the early termination of this Agreement pursuant to Section 20.3(c) or Section 20.4(a) 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 the amount, expressed in U.S. dollars, of losses and out of pocket costs that are or would be incurred by (i) Macquarie, if the Agreement is terminated pursuant to Section 20.3(c) and the provisions of this Section 20.4 apply; or (ii) the Non-Defaulting Party (each, the “Determining Party”) (expressed as a positive number) or gains that are or would be realized by the Determining 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. The determination of the Settlement Amount shall include (without duplication): (w) if Macquarie is the Determining Party, the losses and out of pocket costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by Macquarie in accordance with the Unwind Procedures, (x) the losses and out of pocket costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by the Determining Party in terminating, transferring, redeploying or otherwise modifying any outstanding Macquarie Crude Procurement Contracts, (y) the losses and out of pocket costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by the Determining Party in terminating and liquidating any transactions subject hereto, including but not limited to, any unpaid amounts owed pursuant to Section (k) and Section (b) herein and (z) all breakage costs, losses and out of pocket costs (or gains) incurred or realized by the Determining Party, as a result of the Determining Party’s terminating, liquidating, maintaining, obtaining or re-establishing any Related Hedges (including, if Macquarie is the Determining Party, all hedging transactions relating to the roll procedures set forth in the Fee Letter).

(d)

Determination of Settlement Amount. The Settlement Amount shall be determined by the Determining Party, acting in good faith, in a commercially reasonable manner. The Determining Party shall determine the 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 Determining Party is not required to effect such terminations and/or determine the Settlement Amount on a single day, but rather may effect such terminations and determine the 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: to the extent the Determining Party deems it commercially reasonable to do so, it may in referencing prices in the futures, forward, swap and options markets for purposes of calculating various elements of the Settlement Amount endeavor to align the dates as of which such reference prices are determined. In calculating the Settlement Amount, the Determining Party shall discount to present value (in any commercially reasonable manner based on London interbank rates for the applicable period and currency) 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.

(e)

Additional Rights of Macquarie. Without limiting any other rights or remedies hereunder, if an Event of Default has occurred and is continuing and Macquarie is the Non-Defaulting Party, Macquarie may, in its discretion, (i) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement or any other Transaction Documents, (ii) withdraw from storage any and all of the Crude Oil and/or Products then in the Included Storage Locations, (iii) otherwise arrange for the disposition of any Crude Oil and/or Products subject to any outstanding Macquarie Crude Procurement Contract or Included Product Purchase Transaction and/or the modification, settlement or termination of such outstanding Macquarie Crude Procurement Contract or Included Product Purchase Transaction in such manner as it elects, (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 or any of its Affiliates, to Macquarie or any of its Affiliates, (including without limitation the Independent Amount), (v) foreclose any lien or security interest, and (vi) exercise its rights in respect of any agreement or assignment of rights from a third party in respect of the transportation or storage of the Company Product Inventory. Macquarie 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 Macquarie for any amount payable by the Company in respect of any of its obligations remaining unpaid after any such liquidation, application and set off and, to the extent that the disposition or any Crude Oil and/or Products, the liquidation of any applicable credit support, margin or collateral or the exercise of any of its other rights or remedies hereunder results in Macquarie receiving amounts in excess of the amount owed to it by the Company, the amount of such excess shall be for the account of the Company.

(f)

Company’s Rights. Without limiting any other rights or remedies hereunder or under any other Transaction Document and notwithstanding anything to the contrary specified herein or therein, 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 (ii) otherwise provide for the settlement or termination of the Parties’ outstanding commitments hereunder, (iii) arrange for the sale in a commercially reasonable manner of Crude Oil and/or Product hereunder for Macquarie’s account with the prior written consent of Macquarie (such consent not to be unreasonably withheld, conditioned or delayed), and the replacement of the intermediation, supply and offtake transactions contemplated hereby with such alternative arrangements as it may procure, and the consolidation of Macquarie’s Property into a subset of Included Storage Locations without loss to or commingling of Macquarie’s Property; provided that if the Company recovers any amount(s) in excess of the amount that would be payable to Macquarie if such sale were to the Company under the Step-Out Inventory Sales Agreement on the relevant delivery date, then such excess shall be for the account of the Company to the extent not otherwise accounted for in the Settlement Amount; or (iv) elect, at any time following the occurrence of an Event of Default in respect of Macquarie and, from time to time thereafter, to purchase, in one or more transactions, all or any portion of the volumes of Crude Oil and Products at the Included Storage Locations (upon discharge therefrom or, with respect to a purchase of all Crude Oil and Products, in situ), in each case, at the applicable Current Month Pricing Benchmark(s) in effect as of the date of such purchase; provided that, for these purposes, no payment shall be due from the Company until the date on which it is due to receive payment for such quantities of Product from an offtaker pursuant to a Tripartite Product Offtake Agreement or such other customer.

(g)

Net Liquidated Amount. The Determining Party shall set off (i) the Settlement Amount (if due to the other Party), plus any performance security (including any other margin or collateral) then held by the Determining Party pursuant to the Transaction Documents, plus (at the Determining Party’s election) any or all other amounts due to the other Party hereunder (including under Article 11), against (ii) the Settlement Amount (if due to the Determining Party), plus any performance security (including any other margin or collateral) then held by the other Party, plus (at the Determining Party’s election) any or all other amounts due to the Determining Party hereunder (including under Article 11), so that all such amounts (including, for the avoidance of doubt, the amount of any Independent Amount held by Macquarie) 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.

(h)

No Abandonment of Rights. No delay or failure on the part of the Determining Party in exercising any right or remedy to which it may be entitled on account of any Event of Default or a Change in Law shall constitute an abandonment of any such right, and the Non-Defaulting Party or Non-CL Affected Party shall be entitled to exercise such right or remedy at any time during the continuance of an Event of Default or, as applicable, at any time following the occurrence of the Change in Law.

(i)

Rights Cumulative. The Non-Defaulting Party’s rights under this Section 20.4 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 or at law or in equity. The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all reasonable out of pocket costs and expenses, including reasonable attorney fees, incurred in the exercise of any remedies hereunder, as and to the extent provided in Article 22 hereof, and subject to the limitations set forth therein.

(j)

Setoff. If an Event of Default has occurred and is continuing or a Change in Law has occurred and an Illegality Notice has been delivered to the Non-CL Affected Party by the CL Affected Party, the Determining Party may, without limitation on its rights under this Section 20.4, set off amounts which the other Party owes to it against any amounts which it owes to the other Party (whether hereunder, under any other contract or agreement or otherwise and whether or not then due).

(k)

Master Netting Agreement. 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 20.4, 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.”

(l)

Additional Master Netting and Setoff. The Parties acknowledge and agree that the Non-Defaulting Party or Non-CL Affected Party has such additional netting and setoff rights as are provided in any master netting agreement executed in connection herewith and expressly referencing this Agreement.

20.5

Unwind Procedures.

(a)

The Parties acknowledge and agree that, the provisions set out in these Sections 20.5 to ~~20.10~~20.9 are intended to establish an orderly arrangement promptly following the delivery by Macquarie of an Acceleration Notice (or such other time as may be agreed between the Parties):

(i)

for the processing, sale, transfer and/or evacuation of all Crude Oil and Products owned by Macquarie; and

(ii)

for the enforcement and realization of Macquarie’s Security Interest (as defined in the Lien Documents) over its Collateral (as defined in the Lien Documents) pursuant to the Pledge and Security Agreement,

and that by establishing this orderly arrangement, (i) the processing, sale, transfer and/or evacuating of all Crude Oil and Products owned by Macquarie and (ii) the enforcement and realization of Macquarie’s Security Interest over the Collateral following the delivery by Macquarie of an Acceleration Notice will take less time than the arrangements set out in the other Transaction Documents and Macquarie’s losses, costs and expenses will be lower (thereby enabling a greater amount of Independent Amount to be returned to the Company by Macquarie pursuant to the terms of the Independent Amount Letter and the other Transaction Documents or resulting in a smaller net amount to be payable by the Company than would otherwise be the case).

(b)

The Company shall cooperate with Macquarie to process, sell or otherwise evacuate (i) Crude Oil and Products to which Macquarie has title pursuant to the Transaction Documents (“Macquarie Owned Inventory”); and (ii) Eligible ~~Lien Products~~Hyrdrocarbon Inventory, in each case, in accordance with the terms of this Agreement, the Storage Facilities Agreement and the Lien Documents, including in respect of the engagement with third parties in connection with third party rights over and obligations to the Company and/or Company owned or operated assets which may impact Macquarie Owned Inventory whether pursuant to the terms of the Intercreditor Agreement, the Intermediation Orders or otherwise under and in accordance with such agreements.

(c)

The Parties shall work together and use commercially reasonable efforts to expeditiously effect the intent of these Sections 20.5 to ~~20.10~~20.9 (inclusive) in respect of all Macquarie Owned Inventory and Eligible ~~Lien Products~~Hydrocarbon Inventory.

20.6

Company Sales

(a)

If there are, on any date during the Unwind Period (for the purposes of this Section 20.6 a “Relevant Date”):

(i)

any amounts due from the Company to Macquarie under the Transaction Documents (including, to the extent such amount has been calculated by Macquarie on or prior to such date, the Settlement Amount) which remain unpaid as at the Relevant Date; or

(ii)

any amounts due in respect of transactions pursuant to the Transaction Documents where title to the relevant Inventory has been transferred to the Company on or prior to the Relevant Date, but either the due date for payment has not yet occurred as at the Relevant Date or the relevant transaction has not yet been priced under the Transaction Documents as at the Relevant Date,

then in furtherance of the intent of these Sections 20.5 to ~~20.10~~20.9 (inclusive) Macquarie may, notwithstanding any other provision in the Transaction Documents, calculate the amounts due (including estimating the pricing of such transactions as of the Relevant Date in a commercially reasonable manner) (such amounts, the ““Company Due Amounts”” as of the Relevant Date), and (but without prejudice to the other rights of Macquarie in respect of such amounts under the Transaction Documents and this Agreement):

(A)

Macquarie may by written notice (substantially in the form set out in ~~Schedule U~~Schedule U (Form of Company Due Amount Inventory Swap Notice)) to the Company require that any part of the Company Product Inventory of a value reasonably estimated by Macquarie to be equivalent to or exceeding the Company Due Amounts be sold at the delivery date specified in such notice, which shall be a date selected by Macquarie as being as soon as reasonably practicable following the date of the Company Due Amount Inventory Swap Amount (the “CDA Swap Delivery Date”) to Macquarie upon such pricing and such other terms as Macquarie may determine, in good faith and in a commercially reasonable manner, after taking into account the then prevailing circumstances, in accordance with the provisions of this Agreement, and title shall pass from the Company to Macquarie in situ on the CDA Swap Delivery Date specified in such notice;

(B)

the parties agree that the final pricing applicable to any Company Product Inventory the subject of a notice pursuant to paragraph (A) above shall be determined as of the CDA Swap Delivery Date specified in such notice, or, if the CDA Swap Delivery Date is not a Business Day, the Business Day immediately following the CDA Swap Delivery Date (the “CDA Swap Pricing Date”);

(C)

the amount payable by Macquarie for any such Company Product Inventory shall be payable by Macquarie to the Company on the CDA Swap Pricing Date, and Article 11 shall apply to such amount payable by Macquarie and the Company Due Amounts;

(D)

if, on or following the CDA Swap Pricing Date, Macquarie determines that the amount that would otherwise be payable by Macquarie on the CDA Swap Pricing Date exceeds the amount of the Company Due Amount specified in the notice provided pursuant to paragraph (A) above, the parties agree (i) that the amount so payable by Macquarie shall be equal to that Company Due Amount and (ii) that the volumes of each type of Product and/or grade of Crude Oil sold and in respect of which title shall pass on the CDA Swap Delivery Date, shall be reduced pro rata such that their aggregate value, determined by Macquarie in accordance with this Agreement described above, is equal to that Company Due Amount; and

(E)

if Macquarie determines (acting in good faith) that the Company did not have the right to sell the full volumes of the relevant Products and/or Crude Oil intended to be sold hereunder on the relevant CDA Swap Delivery Date, Macquarie shall in good faith and in a commercially reasonable manner (retrospectively if necessary) adjust the volumes of Products and/or Crude Oil which are the subject of the relevant sale in order to ensure that the Company was able to comply with its delivery obligation, and the amount payable by Macquarie shall be adjusted accordingly, and the Company acknowledges and agrees to any such adjustments and/or reductions; provided that no such adjustments may be made retroactively in respect of any Crude Oil and/or Product no longer stored in an Included Storage Location or otherwise at the Refinery. Macquarie shall provide the Company with an amended notice reflecting any such adjustments and/or reductions.

~~20.7 Inventory Swap Election.~~

(a) During the Unwind Period and in furtherance of the intent of these Sections 20.5 to 20.10 (inclusive), Macquarie may, from time to time by sending the Company written notice (substantially in the form set out in Schedule V (Form of Inventory Swap Election)) require that the Company purchase a specified grade or volume of Macquarie Owned Inventory and sell to Macquarie Company Product Inventory having an equal value (an “Inventory Swap Election”), and the Company hereby agrees to any such sale and purchase pursuant to the terms of this Agreement.

~~(b) In respect of the sales and purchases pursuant to Section 00 above:~~

(i) the delivery date (the “Inventory Swap Delivery Date”) shall be as specified by Macquarie under the Inventory Swap Election (which shall be a date determined by Macquarie as being as soon as reasonably practicable on or following the date of the Inventory Swap Election);

~~(ii) Macquarie shall specify the inventory it wishes to buy from or sell to the Company in the Inventory Swap Election;~~

(iii) the aggregate purchase amount for the sale of Company Product Inventory by the Company to Macquarie in any Inventory Swap Election (the “Macquarie Swap Payment Amount”) and for the sale of Macquarie Owned Inventory by Macquarie to the Company in any Inventory Swap Election (the “Company Swap Payment Amount” together with the Macquarie Swap Payment Amount, the “Swap Payment Amount”) which shall be as close as reasonably practicable to the Macquarie Swap Payment Amount, specified (including any differentials) shall be determined by Macquarie in good faith and in a commercially reasonable manner, taking into account the then prevailing circumstances, where the date of fixing the relevant pricing shall be the Inventory Swap Delivery Date, or, if the Inventory Swap Delivery Date is not a Business Day, the Business Day immediately following the Inventory Swap Delivery Date;

(iv) subject to sub-paragraph (d) below, the Company Product Inventory to be purchased by Macquarie (or Macquarie Owned Inventory to be sold by Macquarie) shall be determined by Macquarie and notified to the Company as soon as reasonably practicable following determination by Macquarie of the Swap Payment Amount such that the Macquarie Swap Payment Amount shall be as close as reasonably possible to the Company Swap Payment Amount;

(v) in respect of the Crude Oil or Product purchased by Macquarie, Macquarie shall pay to the Company the Macquarie Swap Payment Amount and title shall pass from the Company to Macquarie in situ, in each case on the specified Inventory Swap Delivery Date; and

(vi) in respect of the Crude Oil or Product purchased by the Company, the Company shall pay to Macquarie, the Company Swap Payment Amount and title shall pass to the Company from Macquarie in situ, in each case on the specified Inventory Swap Delivery Date,

~~irrespective whether any invoice or self-invoice has been issued in respect of such sales and purchases.~~

(c) If Macquarie subsequently determines (acting in good faith) that either Macquarie or the Company did not have the right to sell the full volumes of the relevant grades Crude Oil and/or types of Products as specified in the notice from Macquarie intended to be sold hereunder as a result of any Inventory Swap Election on the relevant Inventory Swap Delivery Date, Macquarie shall (retrospectively if necessary) adjust the volumes of Crude Oil and/or Product which are the subject of such Inventory Swap Election in order to ensure that each Party was able to comply with its delivery obligations and such that the Swap Payment Amount due from each Party on the relevant Inventory Swap Delivery Date would be equal and the Company acknowledges and agrees to any such adjustment(s) to the relevant volumes of Crude Oil and/or Product and the relevant Swap Payment Amounts; provided that no such adjustments shall be made retrospectively in respect of Product or Crude Oil which has been moved or sold after the relevant Inventory Swap Delivery Date.

(d) If, on or following the pricing date specified in Section 0 above, Macquarie determines that the Company Swap Payment Amount would otherwise be greater than the Macquarie Swap Payment Amount, the parties agree (i) that the Company Swap Payment Amount shall be reduced so as to be equal to the Macquarie Swap Payment Amount and (ii) that the volumes of each type of Product or grade of Crude Oil sold by Macquarie, and in respect of which title passed on the relevant Inventory Swap Delivery Date, shall be reduced pro rata such that their aggregate value, determined by Macquarie described above, is equal to the Macquarie Swap Payment Amount.

~~(e) Macquarie shall provide the Company with an amended Inventory Swap Election reflecting any adjustments and/or reductions made in reliance on Sections 20.70 or 0.~~

20.7

~~20.8~~ Put Option. At any time during the Unwind Period, Macquarie may by notice to the Company transfer to the Company (for delivery at such date as specified in the notice) title to any specified Macquarie Owned Inventory located at the Included Storage Locations and the Refinery Facilities in situ at zero cost (or if specified by Macquarie in its notice for an amount not more than the Settlement Amount for the Macquarie Owned Inventory) with the Settlement Amount calculated by Macquarie as if such date of transfer was the Macquarie Unwind Termination Date, and the Company shall pay such amount, if any, to Macquarie and title and risk to the Macquarie Owned Inventory shall pass on payment (or, if no payment is required, the Company shall accept delivery of and title and risk to the Macquarie Owned Inventory on the relevant delivery date notified by Macquarie to the Company).

20.8

~~20.9~~ Processing and Other Activities

(a)

At any time during the Unwind Period in furtherance of the intent of these Sections 20.5 to ~~20.10~~20.9 (inclusive) Macquarie may by written notice require the Company to take any of the following actions and the Company hereby agrees to take such actions unless any such actions would breach an Overriding Obligation:

(i)

refine, blend or otherwise process any of the Macquarie Owned Inventory or related materials provided hereunder to Macquarie’s reasonable specifications, determined in accordance with the historic operations of the Refinery; provided that for any Crude Oil so processed, an amount equal to the difference between (i) the price that would have been payable by the Company for such Crude Oil in accordance with this Agreement if no Acceleration Notice had been delivered by Macquarie; and (ii) the price at which Macquarie sells the resulting Product to a third party, shall be credited against the Settlement Amount for the Company’s account;

(ii)

provide advice and input into the potential blends and yields achievable in respect of the Macquarie Owned Inventory and related materials, including providing Macquarie with reasonable access to the Company’s linear programming model (and its inputs and outputs accordingly), production planning staff and other modelling tools except where such access is limited by statutory or contractual confidentiality requirements;

(iii)

to the extent not otherwise readily available to Macquarie, sell or provide to Macquarie (priced in accordance with the terms of this Agreement or, if no such pricing mechanism exists for the relevant materials, at cost for any fixed price component and in accordance with the relevant pricing benchmark(s) for any floating price component priced on the date of delivery to Macquarie, or, if such date is not a Business Day, the following Business Day) such additives, components or other materials, utilities or services as the Company owns or is able to source or provide where such additives, components or other materials, utilities or services would promote the aims of these Unwind Procedures (except that any branded additives shall only be made available to Macquarie for the purpose of the relevant Product being sold to the third party customer whom such branded additives relates);

(iv)

agree to work with such Macquarie personnel or representatives in respect of this Agreement (which may include the secondment of Macquarie personnel to the Company at no additional cost to the Company), including but not limited to on issues of linear programming management, economics, planning, logistics, tax, environmental and compliance, in each case, as may be necessary or appropriate to ensure the implementation of this Agreement;

(v)

provide Macquarie with any certificates of quality in respect of Crude Oil or Product or other documents that Macquarie may require and which the Company prepares in the ordinary course of its business;

(vi)

provide Macquarie with any unused storage capacity in the Included Storage Locations and the Refinery Facilities for any other Macquarie Owned Inventory that Macquarie determines is reasonably likely to promote the aims of these Unwind Procedures;

(b)

The Company may at any time during the Unwind Period suggest the blending or processing of Macquarie Owned Inventory for the purpose of promoting the aims these Unwind Procedures and Macquarie shall consider such suggestions (which may require Macquarie to amend such requests as it deems necessary or appropriate in its sole discretion to take into account such suggestions).

(c)

The Company shall at all times during the Unwind Period:

(i)

use reasonable efforts to utilize the Refinery, the Included Storage Locations, the Refinery Facilities and their surrounding infrastructure (whether owned by the Company or otherwise) in a manner which promotes the aims of these Unwind Procedures, which shall include using reasonable efforts to reduce costs (including but not limited to demurrage, terminal costs, liabilities to third party service providers and the costs of hiring equipment) subject to operational feasibility and its Overriding Obligations;

(ii)

secure and maintain all necessary environmental and/or operational consents, permits and Authorizations so as to enable the fulfilment of this Agreement;

(iii)

comply in all material respects with all Applicable Laws;

(iv)

ensure it obtains and/or (as applicable) maintains the level of access to, and enforces its rights as appropriate over, all infrastructure surrounding the Refinery, as may be necessary to give effect to the aims of these Unwind Procedures subject to operational feasibility and its Overriding Obligations;

(v)

work with all tax authorities and use all reasonable efforts to maintain its tax warehouse status and deferral accounts as at the date of this Agreement;

(vi)

cooperate with Macquarie to use such deferral accounts and other similar arrangements to promote the aims of these Unwind Procedures; and

(vii)

immediately notify Macquarie if:

(A)

any such tax warehouse status or deferral account is terminated or amended; or

(B)

any tax authority requests for any additional requirements to maintain such tax warehouse status or deferral accounts,

and, in each case, provide all details of such as Macquarie may reasonably request and cooperate with Macquarie to minimize the impact of such termination, amendment or request on this Agreement.

20.9

~~20.10~~ Notwithstanding anything to the contrary in this Agreement or the other Transaction Documents:

(a)

Macquarie shall not be obliged to remove Macquarie Owned Inventory from the Included Storage Locations and the Refinery Facilities (including any deadstock) or other substances utilized for the purposes of this Agreement (including water or nitrogen); and

(b)

the Company shall be responsible for all such materials (including the costs of cleaning or similar maintenance associated with such materials) remaining in the Included Storage Locations and the Refinery Facilities following the Macquarie Unwind Termination Date.

(c)

if Macquarie effects any in-situ sales or transfers during the Unwind Period pursuant to this Article 22 and, as a result of such sale or transfer, Macquarie Owned Inventory is commingled with Company Product Inventory or such commingling becomes necessary for the continued operation of the Refinery in the ordinary course, the Company shall not be liable for any breach of any provision of a Transaction Document that may occur as a result of such commingling.

SETTLEMENT AT TERMINATION

21.1

Procedures for Settlement at Termination. Upon expiration or termination of this Agreement for any reason other than as a result of an Event of Default or, if applicable, a Change in Law in respect of which Section 20.4 applies (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, the Termination Date shall occur on the immediately preceding Business Day), the Parties covenant and agree to proceed as provided in this Article 21; provided that (x) this Agreement shall continue in effect following the Termination Date until all obligations are finally settled as contemplated by this Article 21 and (y) the provisions of this Article 21 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 20 above or otherwise:

(a)

Macquarie Contracts. If any Macquarie Crude Procurement Contract, Included Product Purchase Transaction, Included Sales Transaction or Included Crude Sales Transaction 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 Macquarie 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 and Customers, 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 Macquarie Crude Procurement Contract, Included Product Purchase Transaction, Included Sales Transaction or Included Crude Sales Transaction shall be assigned to the Company or shall be terminated, (x) all rights and obligations of Macquarie under each of the then outstanding Macquarie Crude Procurement Contract, Included Product Purchase Transaction, Included Sales Transaction or Included Crude Sales Transactions 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) Macquarie shall be released by such Third Party Suppliers, Customers and the Company from any further obligations thereunder. In connection with the assignment or reassignment of any Macquarie Crude Procurement Contract, Included Product Purchase Transaction, Included Sales Transaction or Included Crude Sales Transaction, 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 Macquarie Crude Procurement Contract, Included Product Purchase Transaction, Included Sales Transaction or Included Crude Sales Transaction so as to prevent any material disruption thereunder.

(b)

Tripartite Agreements. If, pursuant to any Tripartite Crude Supply Agreement or Tripartite Product Offtake 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 purchase or sales commitment shall be assigned (or reassigned) to the Company or shall be terminated, (ii) all rights and obligations of Macquarie with respect to each then outstanding purchase or 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) Macquarie shall be released by the purchasers or sellers thereunder and the Company from any further obligations with respect to such sales commitments. In connection with the assignment or reassignment of any Tripartite Crude Supply Agreement or Tripartite Product Offtake Agreement or transaction thereunder, the Parties shall use commercially reasonable efforts to facilitate the transitioning so as to prevent any material disruption in the receipt of Crude Oil at and distribution of Products from the Refinery.

(c)

Purchase and Transfer of Crude and Products. The volume of Crude Oil and Products at the Included Storage Locations, ~~at Macquarie’s election (i)~~unless otherwise mutually agreed, shall be purchased and transferred as contemplated in the Step-Out Inventory Sales Agreement, (ii) at Macquarie’s cost, but with the mutual agreement of both Parties (each in its sole discretion), including the use of any Base Contracts, shall be taken and accepted in kind satisfaction of obligations hereunder or (iii) at Macquarie’s cost, but with Company’s reasonable assistance, including the use of any Base Contracts, shall be sold in its entirety or in parts to Customers of Macquarie’s choosing but with withdrawal from the Included Storage Locations in connection therewith promptly; provided that in connection with an Acceptable Plan or Sale and the amount payable for such volumes of Crude Oil and Products shall be calculated by Macquarie ~~shall~~, in good faith and in a commercially reasonable manner, consider any request by the Company to facilitate a sale of Crude Oil and/or Products then stored in an Included Storage Location to the Company or to ausing the methodology (including, without limitation and notwithstanding the terms of the Step-Out Inventory Sales Agreement, with respect to pricing measurements and calculations) mutually agreed between the Parties and, where relevant, any replacement intermediation provider at the relevant time. The Crude Oil volumes measured by Macquarie’s Inspector at the Termination Date and recorded in Macquarie’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 Macquarie’s Inspector at the Termination Date and recorded in Macquarie’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.”

(d)

Determination of Termination Amount. Macquarie shall promptly reconcile and determine the Termination Amount pursuant to Section 21.2. The Parties shall promptly exchange all information necessary to determine the estimates and final calculations contemplated by Section 21.2.

(e)

No Further Obligations. Macquarie 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 Macquarie to fulfil its obligations hereunder until the Termination Date or during any obligatory notice period pursuant to any Macquarie Crude Procurement Contract, Macquarie shall not be obligated to purchase, take title to or pay for any Crude Oil or Products on or 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 or its designee. Notwithstanding anything to the contrary herein, no Delivery Date shall occur later than the day immediately preceding the Termination Date.

(f)

Counterparty Designee. If, contemporaneously with the Termination Date, it is anticipated that the effective date of an Acceptable Plan or Sale will occur and/or a replacement intermediation or other working capital transaction is scheduled to close, then for the purposes of this Article 21, the Company may request that any or all of the purchases, assignments, novations and other obligations contemplated by this Article 21 be performed by one or more designees. Macquarie will use good faith, commercially reasonable efforts to accommodate any such request to the extent it is able to do so in accordance with Macquarie’s Policies and Procedures, at the Company’s request and subject always to compliance with Applicable Law, Macquarie’s “know your customer” requirements, Macquarie’s onboarding requirements as consistently and non-discriminatorily applied, and Macquarie’s Policies and Procedures.

21.2

Termination Amount.

(a)

The “Termination Amount” shall equal:

(i)

Any unpaid amounts owed by the Company to Macquarie pursuant to the Step-Out Inventory Sales Agreement and, without duplication, in respect of Crude Oil delivered on or prior to the Termination Date but not otherwise accounted for in the Step-Out Inventory Sales Agreement; minus

(ii)

to the extent ~~Macquarie has elected to sell the~~ Crude Oil or Product at the Included Storage Locations are sold by Macquarie to one or more third parties pursuant to Section 21.1(c), an amount equal to the positive difference, if any, between the sale price paid by such third parties and the price the Company would have paid for such Crude Oil pursuant to Article 6 of this Agreement or such Product pursuant to Article 8 of this Agreement; plus

(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 Macquarie as the breakage costs it incurred directly in connection with the termination, unwinding or redeploying of all Related Hedges as a result of such early termination, including all hedging transactions relating to the roll procedures set forth in the Fee Letter; plus

(v)

the aggregate amount due under Section 11.2(b), 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 11.2(b) is due to Macquarie, then such amount shall be included in this Termination Amount as a positive number and if such amount under Section 11.2(a) is due to the Company, then such amount shall be included in this Termination Amount as a negative number; plus

(vi)

all unpaid amounts payable hereunder by Macquarie to the Company in respect of Product delivered on or prior to the Termination Date.

All of the foregoing amounts shall be aggregated or netted to a single liquidation amount owing from one Party to the other. If the Termination Amount is a positive number, it shall be due to Macquarie and if it is a negative number, the absolute value thereof shall be due to the Company.

(b)

The Parties acknowledge that one or more of the components of the Termination Amount may not be capable of definitive determination by the Termination Date and therefore agree that Macquarie 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 Macquarie shall apply the Independent Amount against the Estimated Termination Amount and shall not wait until final settlement is completed pursuant to Section 21.2(c). Without limiting the generality of the foregoing, the Parties agree that the amount due under Section 21.2(a)(i) above shall be estimated by Macquarie in the same manner and using the same methodology as it used in preparing the Estimated Commencement Date Value, but applying the then Current Month Benchmark Price(s) (the “Step-Out Prices”) and other price terms provided for herein with respect to the purchase of the Termination Date Volumes. Macquarie shall use 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, Macquarie shall endeavor to update its calculation of the Estimated Termination Amount by no later than 12:00 p.m. CT on the Business Day prior to the Termination Date. If Macquarie 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., CT 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 Macquarie and if it is a negative number, the absolute value thereof shall be due to the Company. Substantially concurrently with Macquarie’s receiving (or making) payment of the Estimated Termination Amount upon request by (and at the sole cost and expense of) the Company, Macquarie shall (i) cause any filing or recording of any UCC financing statements filed by Macquarie in respect of the Transaction Obligations and Macquarie’s Property to be terminated, (ii) release and terminate all Lien Documents pursuant to one or more instruments mutually acceptable to the Parties and release or cause to be released all Permitted Article 10 Liens on Macquarie Property and (iii) deliver, re-assign, re-convey and transfer, as applicable, to the Company any other Collateral or credit support held or maintained by Macquarie; provided that Macquarie may retain such portion of the Independent Amount as Macquarie determines in a commercially reasonable manner is appropriate to secure potential obligations of the Company in respect of amounts which may remain to be paid by the Company pursuant to the Termination Reconciliation Statement until such statement is finalized and, if any such amounts are due from the Company, until such amounts are paid.

(c)

On or before ten (10) Business Days following the Termination Date, Macquarie 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 21.2(b) and the Independent 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 shall make any and all payments required pursuant thereto. Promptly after receiving such payment (but in any event within five (5) Business Days of such receipt), Macquarie 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, re-convey and transfer, as applicable, to the Company any other Credit Support or credit support held or maintained by Macquarie (including, without limitation, the remaining balance, if any, of the Independent Amount after giving effect to this Article 21).

(d)

Notwithstanding anything herein to the contrary, Macquarie shall not have any obligation to make any payment contemplated by this Section 21.2, transfer title to Crude Oil or Products or to otherwise cooperate in the transition matters described in Section 21.1 unless (i) the Company shall have performed its obligations under the Step-Out Inventory Sales Agreement and this Section 21.2 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.

21.3

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.

INDEMNIFICATION; EXPENSES

22.1

To the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in the Transaction Documents, Macquarie 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

(a)

any breach by Macquarie of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of Macquarie made herein or in connection herewith proving to be false or misleading or incorrect in any material respect,

(b)

any failure by Macquarie to comply with or observe any Applicable Law,

(c)

Macquarie’s negligence or willful misconduct, or

(d)

injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by Macquarie 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 indemnified Liability arising under this Section 22.1 has resulted from (A) the negligence or willful misconduct on the part of the Company, its Affiliates or any of their respective employees, representatives, agents or contractors or (B) the breach by the Company of its obligations hereunder.

22.2

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 Macquarie, its Affiliates, and their directors, officers, employees, representatives, agents and contractors from and against any Liabilities directly or indirectly arising out of

(a)

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 or incorrect in any material respect, including, without limitation the Company’s obligation for payment of taxes pursuant to Section 16.1,

(b)

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 Macquarie under the Required Storage and Transportation Arrangements,

(c)

the Company’s failure to comply with its obligations under the terminalling, pipeline and lease agreements underlying the Required Storage and Transportation Arrangements,

(d)

the Company’s negligence or willful misconduct,

(e)

any failure by the Company to comply with or observe any Applicable Law,

(f)

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,

(g)

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 or

(h)

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 Macquarie is a party thereto,

except to the extent that any Liability arising under this Section 22.2 has resulted from (A) the negligence or willful misconduct on the part of Macquarie, its Affiliates or any of their respective employees, representatives, agents or contractors, or (B) the breach by Macquarie of its obligations hereunder.

22.3

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 (except as expressly provided for in this Article 22), nor shall they be considered an admission of liability or responsibility for any purposes other than those enumerated in the Transaction Documents.

22.4

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.

22.5

The Company shall pay (i) all reasonable and documented out-of-pocket expenses incurred by Macquarie and its Affiliates (including the reasonable fees, charges and disbursements of counsel and tax consultants for Macquarie) 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 reasonable and documented out-of-pocket expenses incurred by Macquarie and its Affiliates in connection with the enforcement or protection of Macquarie’s rights under or in connection with this Agreement and the other Transaction Documents.

LIMITATION ON DAMAGES

23.1

LIMITED RIGHT TO DAMAGES.TO 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 20) 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 THE FORGOING IS NOT (AND IS NOT INTENDED TO BE AND SHALL NOT BE DEEMED TO CONSTITUTE) A WAIVER BY A PARTY OF ANY RIGHT TO RECOVER COMPENSATORY DAMAGES SUFFERED BY A PARTY THAT ARE OR COULD HAVE BEEN REASONABLY FORESEEABLE AS A RESULT OF ANY BREACH OF ARTICLE 25 (EVEN IF SUCH COMPENSATORY DAMAGES COULD BE CHARACTERIZED AS INDIRECT, CONTINGENT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES); AND PROVIDED FURTHER THAT SUCH LIMITATION SHALL NOT APPLY WITH RESPECT TO ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE UNDER THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THE DUTY TO MITIGATE DAMAGES HEREUNDER.

RECORDS AND INSPECTION THEREOF

During the Term of this Agreement each Party and its duly Authorized Representative 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 use commercially reasonable efforts to 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.

CONFIDENTIALITY

25.1

In addition to the Company’s confidentiality obligations under the Transaction Documents and as set forth in Section 32.10, 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 Macquarie under this Agreement and all information received by Macquarie 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 (including without limitation as may be required by any applicable federal or state securities laws), (ii) as requested by a Governmental Authority, (iii) 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 (iv) 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 (iv), such insurance providers shall have agreed in writing to keep confidential any information or document subject to this Section 25.1.

25.2

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 (including, without limitation), the right to seek injunctive relief.

25.3

In the case of disclosure covered by clause (i) of Section 25.1, 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.

25.4

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.

100

GOVERNING LAW

26.1

26.2

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~~THE BANKRUPTCY COURT, (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 28. 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.

26.3

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.

ASSIGNMENT

27.1

This Agreement shall inure to the benefit of and be binding upon the Parties hereto, their respective successors and permitted assigns.

27.2

Neither Party shall 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 consent of the other Party. Notwithstanding the foregoing, Macquarie may, without the Company’s consent, assign and delegate all of Macquarie’s rights and obligations hereunder to (i) any Affiliate of Macquarie, provided it is no worse a credit counterparty and would not result in any adverse tax consequences to the Company and all Company’s costs, if any, are covered—just as provided above for a Company transfer or (ii) any non-Affiliate Person that succeeds to all or substantially all of its assets and business and assumes Macquarie’s obligations hereunder, whether by contract, operation of law or otherwise, provided that (i) the creditworthiness of such successor entity is equal or superior to the creditworthiness of Macquarie (taking into account any credit support for Macquarie) immediately prior to such assignment, and (ii) such successor assumes all of the obligations of Macquarie under the Transaction Documents.

27.3

Any attempted assignment in violation of this Article 27 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.

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 K, or on the following Business Day if sent by nationally recognized overnight courier to the other Party’s address set forth in Schedule K 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.

NO WAIVER, CUMULATIVE REMEDIES

29.1

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.

29.2

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.

101

NATURE OF THE TRANSACTION AND RELATIONSHIP OF PARTIES

30.1

No Partnership or Joint Venture. 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.

30.2

No Authority to Contract. 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.

30.3

No Indebtedness. The transactions contemplated hereunder are intended to be construed and characterized as sales and purchases of commodities and the Lien Documents, the Independent Amount and any other security posted in connection with this Agreement is to be construed as security for the performance by the Company of its obligations expressly set out in this Agreement. The Company will account for transactions arising hereunder in accordance with GAAP however.

Amendments and Modifications

31.1

The Parties may, from time to time, by written agreement amend of modify any provision of this Agreement. Notwithstanding the foregoing, if an amendment is required to be made to an Operational Schedule, the Parties may evidence their agreement to the amendment of such Operational Schedule by an exchange of e-mails between Authorized Representatives of the Parties.

MISCELLANEOUS

32.1

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.

32.2

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.

32.3

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.

32.4

Time is of the essence with respect to all aspects of each Party’s performance of any obligations under this Agreement.

32.5

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.

32.6

All audit rights, payment, confidentiality and indemnification obligations and obligations under this Agreement shall survive for the time periods specified herein.

32.7

This Agreement may be executed by the Parties in separate counterparts and initially delivered by facsimile transmission, pdf or otherwise, with original signature pages to follow, and all such counterparts shall together constitute one and the same instrument.

32.8

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.

102

32.9

In the event of a conflict between any of the Transaction Documents and this Agreement, the term and conditions contained in this Agreement shall control (except solely with respect to any fees, amounts, transfers and payments set forth in the Fee Letter and/or the Independent Amount Letter).

32.10

Macquarie and the Company shall consult with each other with regard to all press releases or other announcements to the general public issued or made at or prior to the Commencement Date concerning this Agreement or the transactions contemplated herein, and, except as may be required by Applicable Laws, neither Company nor Macquarie shall issue any such press release or other announcement to the general public without the prior written consent of the other Party, which consent shall not be unreasonably withheld. The Parties shall be obligated to hold all specific terms and provisions of this Agreement strictly confidential until the expiration of two years following the Termination Date under this Agreement. Nothing contained in this Section 32.10 shall prohibit, limit or restrict disclosures by the Company or Macquarie that are (i) required by Applicable Laws, including any federal or state securities laws, (ii) any court order, judgment or decree, or (iii) ordered, directed, required or suggested by any Governmental Authority.

[Remainder of Page Intentionally Left Blank]

103

Schedule 3

Amended and restated STORAGE FACILITIES AGREEMENT

Schedule 4

Amended and restated FEE LETTER

Schedule 5

amended and restated INDEPENDENT AMOUNT LETTER

Schedule 6

FORM OF Intermediation ORDER

EXECUTION PAGES

Executed by MACQUARIE ENERGY NORTH AMERICA TRADING INC. acting by:

	and
/s/ Brian Houstoun		/s/ Travis McCullough
Name: Brian Houstoun		Name: Travis McCullough

Title: Senior Managing Director		Title: Division Director

[Signature Page to the Assurance and Amendment and Restatement Agreement]

EXECUTION PAGES

Executed by VERTEX REFINING ALABAMA LLC acting by:

/s/ Benjamin P. Cowart

Name:	Benjamin P. Cowart

Title:	President and Chief Executive Officer

Executed by VERTEX RENEWABLES ALABAMA LLC acting by:

/s/ Benjamin P. Cowart

Name:	Benjamin P. Cowart

Title:	President and Chief Executive Officer

Executed by VERTEX ENERGY, INC. acting by:

/s/ Benjamin P. Cowart

Name:	Benjamin P. Cowart

Title:	President and Chief Executive Officer

[Signature Page to the Assurance and Amendment and Restatement Agreement]

VERTEX ENERGY, INC. 8-K

Exhibit 10.3

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE OR CONFIDENTIAL.

AMENDMENT AGREEMENT

dated as of September 25, 2024

[to the

ISDA 2002 Master Agreement

deemed entered into as of March 31, 2022

between

MACQUARIE BANK LIMITED (ABN

46 008 583 542)

and

VERTEX REFINING ALABAMA LLC

(Party A)

(Party B)

WHEREAS, the parties hereto have previously entered into an agreement in the form of an ISDA 2002 Master Agreement deemed entered into between Party A and Party B on March 31, 2022 (such ISDA 2002 Master Agreement, together with any schedules, trade confirmations, credit support and other annexes, and exhibits (including any of the foregoing that are expressly incorporated by reference therein), the “Agreement”), such Agreement as amended, supplemented and/or restated from time to time;

WHEREAS, on or around September 24, 2024, Party B and certain of its respective affiliates filed voluntary petitions for relief commencing cases under Chapter 11 of the Bankruptcy Code captioned In re Vertex Energy, Inc. et al. (the “Chapter 11 Cases”) in the United States Bankruptcy Court for the Southern District of Texas, Houston division (such court, or another federal court exercising jurisdiction over the Chapter 11 Cases, the “Bankruptcy Court”);

WHEREAS, in connection with the Chapter 11 Cases, Party A and Party B wish to amend the Agreement, on the terms set forth in this Amendment Agreement, with effect from (and including) the Effective Date (as defined below);

WHEREAS, it is the intention of Party B to confirm that all obligations of Party B under the Agreement, as amended, amended and restated, supplemented, refinance or otherwise modified hereby on or as of the date hereof shall continue in effect from and after the Effective Date, subject to the terms and conditions set forth in this Amendment Agreement, including the entry by the Bankruptcy Court of the Interim Intermediation Order and the Final Intermediation Order (as such terms are defined below) within the time periods set forth herein;

NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby agree as follows:

Definitions and Interpretation

1.1

Definitions

In this Amendment Agreement:

“Assurance Agreement” means that certain Assurance and Amendment and Restatement Agreement dated on or around September 24, 2024 by and among Macquarie Energy North America Trading Inc. (“Macquarie”), Party B, Vertex Renewables Alabama LLC, and Vertex Energy, Inc., as amended, restated, supplemented or otherwise modified from time to time.

“Effective Date” means the date on which the Effective Time (as defined in the Assurance Agreement) occurs.

“Interim DIP Order” has the meaning given to that term in the Assurance Agreement.

“Interim Intermediation Order” has the meaning given to that term in the Assurance Agreement.

1.2

Incorporation of Defined Terms

Capitalized terms used and not otherwise defined in this Amendment Agreement have the meanings given to them in the Agreement or the SOA, as applicable.

Deferral and Delay of Enforcement, Termination or Certain Rights

2.1

Delay and Deferral Period

(a)

For the period of time following the commencement of the Chapter 11 Cases through the entry of the Interim Intermediation Order (provided such Interim Intermediation Order is entered within three (3) days following the time of filing of the petition commencing the Chapter 11 Cases), and for the period of time that the Interim Intermediation Order is in full force and effect (but not to exceed the earlier of thirty (30) days after the Petition Date), the “Delay and Deferral Period”), Party A expressly agrees to defer and delay (but does not waive) the utilization or enforcement of any contractual right to: liquidate, terminate or accelerate a commodity contract or forward contract as such terms are used in section 556 of the Bankruptcy Code; liquidate, terminate or accelerate a swap agreement as such terms are used in section 560 of the Bankruptcy Code; and/or terminate, liquidate, accelerate or offset under a master netting agreement as such terms are used in section 561 of the Bankruptcy Code; liquidate, terminate or accelerate any other transaction (including, without limitation, any Transaction entered into by Party A and Party B under the Agreement); each because of a condition of the kind specified in section 365(e)(1) of the Bankruptcy Code (the “Delayed Remedies”). For the avoidance of doubt and without limitation, the Delayed Remedies shall apply to the following types of provisions: cross-default, cross acceleration, adequate assurance, ratings triggers, bankruptcy default, and no contemplation of bankruptcy representations.

(b)

If the Final Intermediation Order is entered within the Delay and Deferral Period, the Party A expressly agrees to waive any further utilization and enforcement of the Delayed Remedies during the continuation of the Chapter 11 Cases. For the avoidance of doubt, this waiver shall apply only in connection with the Chapter 11 Cases and only with respect to rights and remedies that could otherwise have been exercised based on the commencement of the Chapter 11 Cases and shall not apply to any exercise of any such rights or remedies in, based on or with respect to any other or future bankruptcy case or any other event.

(c)

Nothing in Section 2.1(a) or 2.1(b) shall be construed to suggest that Party A shall suspend and/or temporarily waive its right to exercise any remedies arising from a Default or Event of Default (other than the commencement of the Chapter 11 Cases) occurring under the Agreement after the commencement of the Chapter 11 Cases in accordance with the terms of the Agreement, and the Interim Intermediation Order and the Final Intermediation Orders.

2.2

Effectiveness of Amendments

If the Interim Intermediation Order is not entered within three (3) days following the Petition Date (or such other time period as may be agreed by Macquarie, in its sole discretion), then the amendments to the Agreement as set forth in this Amendment shall not take effect.

Amendment of the Agreement

The Agreement shall be amended on and after the Effective Date as follows:

(a)

Part 1(g) (Additional Termination Event) of the Schedule to the Agreement is hereby amended by deleting the Additional Termination Event specified in sub-paragraph (1) of the Schedule to the Agreement and replacing it with the following:

“(1)

If at any time Party B’s obligations under this Agreement fail or cease to be secured with the ranking and order of priority of security and claims specified in Exhibit 2 (Relative Lien Priorities on Collateral) and Exhibit 3 (Relative Claim Priorities) to the Interim Intermediation Order;”.

(b)

Part 4(h) (Governing Law) of the Schedule to the Agreement is hereby amended by adding the following:

“Jurisdiction. WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (“PROCEEDINGS”), EACH PARTY IRREVOCABLY:

(i)

SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT; AND

(ii)

WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDINGS BROUGHT IN SUCH COURT, WAIVES ANY CLAIM THAT SUCH PROCEEDINGS HAVE BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS, THAT SUCH COURT DOES NOT HAVE ANY JURISDICTION OVER SUCH PARTY. 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.”.

(c)

Part 5(f) (Additional Covenant) of the Schedule to the Agreement is hereby deleted in its entirety and replaced with the following:

[***]

(d)

Part 5(s) (Other Provisions) of the Schedule to the Agreement is amended by adding the following after the words “Event of Default” in the sixth line thereto:

“provided, that the foregoing shall not apply upon the occurrence and during the continuation of the Delay and Deferral Period.”

(e)

Part 5 (Other Provisions) of the Schedule to the Agreement is amended by adding a new clause (t) as follows:

“(t) Additional Definitions. Section 14 of the Agreement is amended by adding the following new defined terms in alphabetical order:

““Acceptable Plan or Sale” means a plan of reorganization or sale under Section 363 of the Bankruptcy Code reasonably acceptable to Party A provided that a sale or plan of reorganization will be deemed to be acceptable to Party A if it provides for (x) to the extent the Transactions hereunder are terminated or expire in connection with such plan or sale, payment in full in cash of all amounts owed to Party A under the Agreement or cash collateralization of all actual or contingent obligations (other than inchoate indemnity obligations) owed to Party A under the Agreement that may arise on or after the termination or expiration date of such terminated Transactions; (y) with respect to a plan of reorganization, Party A will receive releases as a “Released Party” and provide releases as a “Releasing Party”, in each case, under and as defined in such plan (provided that such releases will not apply to any obligations owing with respect to any Transactions under this Agreement; and (z) to the extent such plan or sale requires that the Party A continue to transact with Party B under the Agreement after the effective date of such plan or sale, Party A determines, in good faith and in a commercially reasonable manner and in accordance with its internal policies and procedures (including, without limitation, those related to ‘know-your customer’’ requirements) that it is able to continue transacting with Party A on or after the effective date of such plan of reorganization or sale under Section 363 of the Bankruptcy Code.”

““Assurance Agreement” means the Assurance and Amendment and Restatement Agreement dated on or around September 24, 2024 by and among MENAT, Party B, Vertex Renewables Alabama LLC, and Vertex Energy, Inc.”

““Bankruptcy Code” means Title 11, U.S. Code.”

““Bankruptcy Court” has the meaning given to such term in the SOA.”

““Chapter 11 Cases” means the cases under Chapter 11 of the Bankruptcy Code captioned In re Vertex Energy, Inc. et al. commenced via Party B and certain of its respective affiliates filing voluntary petitions for relief in the United States Bankruptcy Court for the Southern District of Texas, Houston division on or around September 24, 2024.”

““Debtor” has the meaning given to such term in the Interim Intermediation Order.”

““Delay and Deferral Period” means the period of time following the commencement of the Chapter 11 Cases through the entry of the Interim Intermediation Order (provided such Interim Intermediation Order is entered within three (3) days following the time of filing of the petition commencing the Chapter 11 Cases), and for the period of time that the Interim Intermediation Order is in full force and effect (but not to exceed thirty (30) days after the Petition Date).”

““Effective Date” has the meaning given to such term in the amendment agreement entered into between Party A and Party B on or around September 24, 2024 in relation to the Agreement (the “Amendment Agreement”).

““Final Intermediation Order” means a final order of the Bankruptcy Court granted the relief provided for in the Interim Intermediation Order on a final basis.”

““Interim DIP Order” has the meaning given to such term in the Interim Intermediation Order.”

““Interim Intermediation Order” has the meaning given to such term in the Assurance Agreement.”

““MENAT” means Macquarie Energy North America Trading Inc.”

““Petition Date” has the meaning given to such term in the Interim DIP Order.”

““Post-Petition Financing Agreement” means that certain Senior Secured Super-Priority Debtor-in-Possession Loan and Security Agreement dated on or around September 24, 2024 by and among the Party B, as borrower, the other parties party thereto from time to time as guarantors, Cantor Fitzgerald Securities, as agent for the lenders and the lenders party thereto from time to time.”

““Refinery” has the meaning given to such in the Interim Intermediation Order.”

““RSA” means the restructuring support agreement (including, without limitation, all term sheets attached thereto and commitment letters entered into in connection therewith) entered into among Party B, and the Consenting Term Loan Lenders (as defined therein), dated on or before the Effective Date, in form and substance satisfactory to Party A, acting reasonably.’’”

(f)

Part 5 (Other Provisions) of the Schedule to the Agreement is amended by adding a new clause (u) as follows:

“(u) Interpretation. Section 14 of the Agreement is amended by adding the following language to the end of the Section:

“The terms defined in this Section 14 and elsewhere in this Master Agreement will have the meanings therein specified for the purpose of this Master Agreement. Any capitalized terms not otherwise defined in this Agreement shall have the meanings given to them in the SOA, as amended and restated pursuant to the Assurance Agreement.”

(g)

Part 5 (Other Provisions) of the Schedule to the Agreement is amended by adding a new clause (v) as follows:

“(v) Amendment to Events of Default. Solely with respect to Party B only, Section 5(a)(vii) of the Agreement shall be deleted in its entirety and replaced with the following:

“(vii) Bankruptcy. The following occurs with respect to the party, any Credit Support Provider of such party or any applicable Specified Entity of such party:-

(i) the Interim DIP Order, in form and substance reasonably acceptable to Party A, is not entered by the Bankruptcy Court by the date falling three (3) days after the Petition Date; provided, that the form of the proposed Interim DIP Order filed on the docket is deemed to be in form and substance reasonably acceptable to Party A;

(ii) the Post-Petition Financing Agreement has not been funded in the aggregate amount of at least US$39,390,204.38 (before taking into account any holdbacks or funding date payments) by September 27, 2024 and thereafter, in accordance with the Approved Budget (as defined in the Post-Petition Financing Agreement);

(iii) the Final Intermediation Order, in form and substance reasonably acceptable to Party A, is not entered by the date falling 30 days after the Petition Date;

(iv) a final order that approves the Post-Petition Financing Agreement and that is in form and substance reasonably acceptable to Party A (the “Final DIP Order”), is not entered by the Bankruptcy Court, within 30 days following the Petition Date;

(v) failure to consummate or confirm, as applicable, an Acceptable Plan or Sale by the date falling four (4) calendar months or, but only if the Term has been extended under and as defined in the SOA, five (5) or six (6) calendar months, after the Petition Date;

(vi) the Debtors fail to satisfy any of their material obligations (including credit support obligations) under the Agreement, the Amendment Agreement, the Interim Intermediation Order or, following its entry, the Final Intermediation Order;

(vii) the Debtors move to reject the Agreement or the Agreement is rejected under section 365(a) of the Bankruptcy Code;

(viii) any Debtor declares itself to be, or is found by the Bankruptcy Court to be, administratively insolvent, or any Debtor declares that it does not intend to pay allowed administrative expense claims in full;

(ix) any Debtor moves or supports a motion seeking to convert any Debtor’s bankruptcy case to a case under Chapter 7 of the Bankruptcy Code or dismissing any Debtor’s bankruptcy case;

(x) the Bankruptcy Court enters an order converting any Debtor’s bankruptcy case to a case under Chapter 7 of the Bankruptcy Code or dismissing any Debtor’s bankruptcy case;

(xi) the Bankruptcy Court enters an order, or any Debtor files or supports an application, motion, or request for an order directing the appointment under section 1104 of the Bankruptcy Code of (1) a trustee or (2) an examiner or any other person with enlarged powers relating to the operation of the business of any Debtor (i.e., powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code);

(xii) any debtor-in-possession financing facility under which any Debtor is obligated to perform is accelerated by the lender or the lender’s agent or otherwise matures and remains unpaid;

(xiii) any Debtor has a receiver, custodian, trustee or liquidator appointed over all or a substantial portion of its assets or is subject to such an appointment or to any similar proceeding under the laws of any jurisdiction;

(xiv) any Debtor files or supports a motion, proposes a plan or other pleading, or any order is entered by the Bankruptcy Court that in any material way affects, impairs, or limits (including the imposition of any stay or injunction), Party A’s rights or Party B’s obligations under the Agreement, the Interim Intermediation Order or the Final Intermediation Order or the validity, priority or enforceability of any security interests or claims granted to Party A pursuant to the Interim Intermediation Order, the Interim DIP Order, the Final Intermediation Order or the Final DIP Order;

(xv) the Interim Intermediation Order or, following its entry, the Final Intermediation Order, shall cease to be in full force and effect, in each case as determined by Party A in its commercially reasonable discretion;

(xvi) the Interim Intermediation Order, or, following its entry, the Final Intermediation Order: (A) shall have been directly affected, impaired, limited reversed, stayed, vacated or subjected to a stay pending appeal or otherwise modified in any way materially adverse to the protections afforded to Party A under the Interim Intermediation Order or, when entered into, the Final Intermediation Order, in either case, without the prior written consent of Party A; or (B) are modified or amended in any way that affects any termination rights available to Party A under the ISDA, as amended in the manner described in the Interim Intermediation Order, , or that is otherwise materially adverse to the protections afforded to Party A (in its capacity as hedge provider) under the Interim Intermediation Order and/or the Final Intermediation Order, without the prior written consent of Party A;

(xvii) an order is entered by the Bankruptcy Court requiring the avoidance of any payment received by Party A under the Agreement or any Debtor moves for the avoidance of any payment received by Party A under the Agreement, whether such payment is received prior to, on or after the Petition Date;

(xviii) the Agreement is assigned by Party B to any third party without the prior written consent of Party A;

(xix) any motion or other pleading is filed by a Debtor proposing a transaction (other than the transactions expressly contemplated by the Acceptable Plan (as defined in the Interim DIP Order)) for the sale of the Refinery (through a sale of assets, sale of substantially all assets, merger, reorganization or otherwise) that is not also an Acceptable Plan or Sale;

(xx) the Bankruptcy Court enters an order or orders granting relief from the automatic stay under section 362 of the Bankruptcy Code with regard to any assets of the Debtors and such relief would have or could reasonably be expected to have a material adverse effect;

(xxi) noncompliance by any Debtor with any of the material terms of the Interim Intermediation Order or the Final Intermediation Order; or”.

Representations

Each party represents to the other party that all representations contained in the Agreement are true and accurate as of the date of this Amendment Agreement (except, with respect to representations given by Party B, to the extent that such representations would not be true and accurate as a result of, or in connection with, the commencement of the Chapter 11 Cases) and that all such representations are deemed to be given or repeated by each party, as the case may be, on the date of this Amendment Agreement and the Effective Date, except that Party B shall not be required to repeat any representations that it is not able to give as a result of, or in connection with, the commencement of the Chapter 11 Cases.

Miscellaneous

(a)

Definitions. As used in the Agreement (including any Confirmation relating thereto), as amended by this Amendment Agreement, the terms ‘ISDA 2002 Master Agreement’’, ‘this Master Agreement’’, ‘Agreement’’, ‘this Agreement’’, ‘herein’’, ‘hereinafter’’, ‘hereof’’, ‘hereto’’ and other words of similar import shall mean the Agreement as amended hereby, unless the context otherwise specifically requires.

(b)

Entire Agreement. This Amendment Agreement and the Agreement shall constitute the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings (except as otherwise provided herein) with respect thereto. Except as specifically amended hereby, all other provisions of the Agreement, as amended and supplemented, shall continue in full force and effect.

(c)

Amendments. No amendment, modification or waiver in respect of the matters contemplated by this Amendment Agreement will be effective unless made in accordance with the terms of the Agreement.

(d)

Counterparts. This Amendment Agreement may be executed and delivered in counterparts, each of which will be deemed an original.

(e)

Headings. The headings used in this Amendment Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Amendment Agreement.

(f)

Governing Law and Jurisdiction.

(i)

(ii)

(iii)

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.

IN WITNESS WHEREOF the parties have executed this Amendment Agreement with effect from the date of this Amendment Agreement.

MACQUARIE BANK LIMITED

By:	/s/ Miria Torres	By:	/s/ Teah Seymour-Sloan

Name:	Miria Torres	Name:	Teah Seymour-Sloan

Title:	Executive Director	Title:	Associate Director

VERTEX REFINING ALABAMA LLC

By:	/s/ Benjamin P. Cowart

Name:	Benjamin P. Cowart

Title:	President and Chief Executive Officer

Cover	Sep. 25, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Sep. 25, 2024
Entity File Number	001-11476
Entity Registrant Name	VERTEX ENERGY, INC.
Entity Central Index Key	0000890447
Entity Tax Identification Number	94-3439569
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	1331 Gemini Street
Entity Address, Address Line Two	Suite 250
Entity Address, City or Town	Houston
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	77058
City Area Code	(866)
Local Phone Number	660-8156
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	VTNR
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

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