Common use of Eligible Hydrocarbon Inventory Clause in Contracts

Eligible Hydrocarbon Inventory. On any date of determination of the Borrowing Base, all of the Inventory that constitutes ABL/SOA Priority Collateral owned by the Borrower and reflected in the most recent Borrowing Base Certificate delivered by the Borrower to the Administrative Agent and Collateral Agent shall, subject to the last sentence of this clause (b), be “Eligible Hydrocarbon Inventory” for the purposes of this Agreement, except any Inventory to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Agent shall have the right from time to time to establish, modify or eliminate Reserves against ABL/SOA Priority Collateral. Eligible Hydrocarbon Inventory shall not include any hydrocarbon Inventory that: (i) the Collateral Agent, on behalf of Secured Parties, does not have a perfected, first priority Lien (save for any Permitted Prior Liens which may be senior thereto); (ii) is subject to a Lien, other than (x) Permitted Prior Liens, or (y) Permitted Liens (other than Permitted Prior Liens) that are junior to the Lien of the Collateral Agent on terms reasonably satisfactory to the Administrative Agent; (iii) is not owned by the Borrower; (iv) is stored at facilities that are not (x) Required Infrastructure owned by the Borrower or (y) subject to an effective Third Party Consent Agreement; (v) is placed on consignment, unless a valid consignment agreement which is reasonably satisfactory to Administrative Agent is in place with respect to such hydrocarbon Inventory; (vi) is not located in the United States or is in transit (provided, that inventory in transit which is being transported by the Borrower between premises constituting Required Infrastructure through facilities which are likewise Required Infrastructure and for which a reserve has been taken for any freight costs, storage fees and/or insurance costs necessary (as reasonably determined by the Administrative Agent) to obtain possession of such inventory may be deemed “Eligible Inventory”); (vii) is covered by a negotiable document of title, unless such document has been delivered to the Administrative Agent with all necessary endorsements, free and clear of all Liens except those in favor of the Collateral Agent and landlords, carriers, bailees and warehousemen if clause (iv) above has been complied with; (viii) is to be returned to suppliers; (ix) is tank heel, line fill, unmerchantable, obsolete, unsalable, shopworn, damaged or unfit for sale; (x) is not of a type held for sale in the ordinary course of the Borrower’s business (other than to the extent constituting work-in-process Intermediate Products); (xi) is located at a retail facility; (xii) breaches any of the representations or warranties pertaining to hydrocarbon Inventory set forth in the Loan Documents; (xiii) is subject to any licensing arrangement the effect of which would prohibit or materially restrict the Collateral Agent, or any person selling the hydrocarbon Inventory on behalf of the Collateral Agent, from selling such hydrocarbon Inventory in enforcement of the Collateral Agent’s Liens, without further consent or payment (other than ordinary course royalty payments or other similar payments) to the licensor or other person, unless such consent has been obtained; or (xiv) is not covered by casualty insurance maintained as required by Section 5.04. For the avoidance of doubt, “Eligible Hydrocarbon Inventory” shall not include MLC Separate Assets and Collateral. Notwithstanding anything to the contrary contained herein, it is understood and agreed that (a) as of the Effective Date, there is no Eligible Hydrocarbon Inventory, (b) the Intercreditor Agreement, as in effect on the Effective Date, does not permit there to be any Eligible Hydrocarbon Inventory and (c) after the Effective Date, Eligible Hydrocarbon Inventory, if any, shall not be included in the calculation of the Borrowing Base without the consent of the Administrative Agent, such consent not to be unreasonably withheld.

Eligible Hydrocarbon Inventory. On any date of determination of the Borrowing Base, all of the hydrocarbon Inventory that constitutes ABL/SOA Priority Collateral owned by the Borrower Borrowers and reflected in the most recent Borrowing Base Certificate delivered by the Administrative Borrower to the Administrative Agent and Collateral Agent shall, subject to the last sentence of this clause (b), shall be “Eligible Hydrocarbon Inventory” for the purposes of this Agreement, except any hydrocarbon Inventory to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Collateral Agent shall have the right from time to time to establish, modify or eliminate Reserves and Hedging Reserves (without duplication) against ABL/SOA Priority Collateralhydrocarbon Inventory. Eligible Hydrocarbon Inventory shall not include any hydrocarbon Inventory that: (i) the Collateral Administrative Agent, on behalf of Secured Parties, does not have a perfected, first priority Lien upon (save for any subject to Permitted Prior Liens which may be senior theretoLiens); (ii) any Inventory that is subject not owned by a Borrower; (a) is stored at a leased location where the aggregate value of hydrocarbon Inventory exceeds $15,000,000 (unless the Administrative Agent shall have given its prior consent to a Lien, other than higher amount and unless either (x) Permitted Prior Liensa reasonably satisfactory Landlord Access Agreement has been delivered to the Collateral Agent, or (y) Permitted Liens (other than Permitted Prior Liens) that are junior to the Lien of the Collateral Agent on terms Reserves reasonably satisfactory to the Administrative Agent; Collateral Agent (iiinot to exceed three (3) months of periodic rent) have been established with respect thereto), or (b) is not owned stored with a bailee or warehouseman where the aggregate value of hydrocarbon Inventory exceeds $15,000,000 unless either (x) a reasonably satisfactory, acknowledged bailee waiver letter has been received by the BorrowerCollateral Agent or (y) Reserves reasonably satisfactory to the Collateral Agent (not to exceed three (3) months of periodic rent) have been established with respect thereto, or (c) is stored at a location where the aggregate value of hydrocarbon Inventory is less than $500,000; (iv) is stored at facilities that are not (x) Required Infrastructure owned by the Borrower or (y) subject to an effective Third Party Consent Agreement; (v) is placed on consignment, unless a valid consignment agreement which is reasonably satisfactory to Administrative Agent is in place with respect to such hydrocarbon Inventory; (viv) is (a) not located in the United States or is Canada or (b) in transit (outside the United States or Canada on the high seas; provided, that inventory any such hydrocarbon Inventory in transit which on the high seas outside the United States or Canada shall constitute Eligible Hydrocarbon Inventory in an amount on any date of determination not to exceed 50.0% of the total amount of the Borrowing Base as of such time only if such hydrocarbon Inventory is being transported by the Borrower between premises constituting Required Infrastructure through facilities which are likewise Required Infrastructure and for which not within a reserve has been taken for any freight costs, storage fees and/or insurance costs necessary High Risk Area (as determined on the date of the relevant Borrowing Base Certificate delivered pursuant to Section 5.15(a)) and so long as (I) such hydrocarbon Inventory does not constitute an Account (except to the extent the Administrative Agent holds a perfected Lien on such Account at such time), (II) if purchased with a letter of credit, such letter of credit shall be issued by an Issuing Bank hereunder, (III) such hydrocarbon Inventory is covered by insurance in form and substance reasonably determined by acceptable to the Administrative Agent, provided, it being understood and agreed that the insurance described on Xxxxx XXX shall be acceptable to the Administrative Agent and (IV) all applicable documents of title (including electronic copies thereof) relating to obtain possession of such inventory may be deemed “Eligible Inventory”); (vii) is covered by a negotiable document of title, unless such document has hydrocarbon Inventory shall have been delivered to the Administrative Agent with all necessary endorsements(or a designee (including, free and clear of all Liens except those in favor of if so designated by the Collateral Agent and landlords, carriers, bailees and warehousemen if clause (iv) above has been complied with; (viii) is to be returned to suppliers; (ix) is tank heel, line fill, unmerchantable, obsolete, unsalable, shopworn, damaged or unfit for sale; (x) is not of a type held for sale in the ordinary course of the Borrower’s business (other than to the extent constituting work-in-process Intermediate Products); (xi) is located at a retail facility; (xii) breaches any of the representations or warranties pertaining to hydrocarbon Inventory set forth in the Loan Documents; (xiii) is subject to any licensing arrangement the effect of which would prohibit or materially restrict the Collateral Administrative Agent, or any person selling the hydrocarbon Inventory on behalf of the Collateral Agent, from selling such hydrocarbon Inventory in enforcement of the Collateral Agent’s Liens, without further consent or payment (other than ordinary course royalty payments a Borrower or other similar paymentsLoan Party) to the licensor or other person, unless such consent has been obtained; or (xiv) is not covered by casualty insurance maintained as required by Section 5.04. For the avoidance of doubt, “Eligible Hydrocarbon Inventory” shall not include MLC Separate Assets and Collateral. Notwithstanding anything to the contrary contained herein, it is understood and agreed that (a) as of the Effective Date, there is no Eligible Hydrocarbon Inventory, (b) the Intercreditor Agreement, as in effect on the Effective Date, does not permit there to be any Eligible Hydrocarbon Inventory and (c) after the Effective Date, Eligible Hydrocarbon Inventory, if any, shall not be included in the calculation of the Borrowing Base without the consent of the Administrative Agent) within five (5) Business Days (or two (2) Business Days in the case of electronic copies) of receipt by the Borrowers thereof; provided, further, that, at any time when Excess Availability is less than or equal to, for a period of three (3) consecutive Business Days, 20% of the Line Cap (the “Title Document Threshold”), and continuing until Excess Availability is greater than the Title Document Threshold for sixty (60) consecutive days (or such consent not shorter period as the Administrative Agent may agree to), the Borrowers shall (x) ensure that all such hydrocarbon Inventory is covered by bills of lading in the original paper form which are delivered to be unreasonably withheld.Borrowers and that upon receipt of each such paper original bill of lading, the Borrowers shall have promptly delivered it to the Administrative Agent or its designee and (y) provide the Administrative Agent’s employees or designees such direct access to the Borrowers’ bills of lading systems and related information and procedures as the Administrative Agent may reasonably require;

Eligible Hydrocarbon Inventory. On any date of determination of the Borrowing Base, all of the Inventory that constitutes ABL/SOA Priority Collateral owned by the Borrower and reflected in the most recent Borrowing Base Certificate delivered by the Borrower to the Administrative Agent and Collateral Agent shall, subject to the last sentence of this clause (b), be “Eligible Hydrocarbon Inventory” for the purposes of this Agreement, except any Inventory to which any of the exclusionary criteria set forth below applies. In additionA) By no later than 4:00 p.m. ET on each Business Day, the Administrative Agent Company shall have provide to Xxxx, via email (i) a report in form and substance reasonably satisfactory to Xxxx as illustrated in Schedule W-1 (the right “Feedstock Inventory Report”) showing the inventory quantities of all Feedstock from time to time to establish, modify or eliminate Reserves against ABL/SOA Priority Collateral. the immediately previous Business Day (and any other prior day subsequent thereto that was not a Business Day) that then constituted Eligible Hydrocarbon Inventory shall or Eligible In-Transit Inventory, including the quantity or volume, grade and location of each type of such inventory, and (ii) a report in form and substance reasonably satisfactory to Xxxx as illustrated in Schedule W-1 (the “Products Inventory Report”) showing the inventory quantities of all Products from the immediately previous Business Day (and any other prior day subsequent thereto that was not include a Business Day) that then constituted Eligible Hydrocarbon Inventory or Eligible In-Transit Inventory. (B) Xxxx may also exclude from either report any hydrocarbon Hydrocarbons that Xxxx, in its reasonable judgment, determines in good faith do not constitute Eligible Hydrocarbon Inventory that:or Eligible In-Transit Inventory. (C) Each Transaction Party (i) by the Collateral AgentCompany delivering a Feedstock Inventory Report, on behalf shall be deemed to represent and warrant to Xxxx (to the same 4161-8074-0173.23 ​ ​ ​ extent as if set forth in this Agreement) that all Feedstock identified as Eligible Hydrocarbon Inventory or Eligible In-Transit Inventory in such report meet all the requirements of Secured PartiesEligible Hydrocarbon Inventory or Eligible In-Transit Inventory, does not have a perfectedas applicable and in each case, first priority Lien (save for any Permitted Prior Liens which may be senior thereto); set forth in this Agreement and the other Transaction Documents and (ii) is subject by the Company delivering a Products Inventory Report, shall be deemed to a Lien, other than represent and warrant to Xxxx (x) Permitted Prior Liens, or (y) Permitted Liens (other than Permitted Prior Liens) that are junior to the Lien of the Collateral Agent on terms reasonably satisfactory to the Administrative Agent; (iii) is not owned by the Borrower; (iv) is stored at facilities that are not (x) Required Infrastructure owned by the Borrower or (y) subject to an effective Third Party Consent Agreement; (v) is placed on consignment, unless a valid consignment agreement which is reasonably satisfactory to Administrative Agent is in place with respect to such hydrocarbon Inventory; (vi) is not located in the United States or is in transit (provided, that inventory in transit which is being transported by the Borrower between premises constituting Required Infrastructure through facilities which are likewise Required Infrastructure and for which a reserve has been taken for any freight costs, storage fees and/or insurance costs necessary (same extent as reasonably determined by the Administrative Agent) to obtain possession of such inventory may be deemed “Eligible Inventory”); (vii) is covered by a negotiable document of title, unless such document has been delivered to the Administrative Agent with all necessary endorsements, free and clear of all Liens except those in favor of the Collateral Agent and landlords, carriers, bailees and warehousemen if clause (iv) above has been complied with; (viii) is to be returned to suppliers; (ix) is tank heel, line fill, unmerchantable, obsolete, unsalable, shopworn, damaged or unfit for sale; (x) is not of a type held for sale in the ordinary course of the Borrower’s business (other than to the extent constituting work-in-process Intermediate Products); (xi) is located at a retail facility; (xii) breaches any of the representations or warranties pertaining to hydrocarbon Inventory set forth in the Loan Documents; (xiiithis Agreement) is subject to any licensing arrangement the effect of which would prohibit or materially restrict the Collateral Agent, or any person selling the hydrocarbon Inventory on behalf of the Collateral Agent, from selling such hydrocarbon Inventory in enforcement of the Collateral Agent’s Liens, without further consent or payment (other than ordinary course royalty payments or other similar payments) to the licensor or other person, unless such consent has been obtained; or (xiv) is not covered by casualty insurance maintained that all Products identified as required by Section 5.04. For the avoidance of doubt, “Eligible Hydrocarbon Inventory” shall not include MLC Separate Assets and Collateral. Notwithstanding anything to the contrary contained herein, it is understood and agreed that (a) as of the Effective Date, there is no Eligible Hydrocarbon Inventory, (b) the Intercreditor Agreement, as in effect on the Effective Date, does not permit there to be any Eligible Hydrocarbon Inventory and (c) after in such report meet all the Effective Date, requirements of Eligible Hydrocarbon Inventory or Eligible In-Transit Inventory, if anyas applicable and in each case, shall not be included set forth in this Agreement and the calculation of the Borrowing Base without the consent of the Administrative Agent, such consent not to be unreasonably withheldother Transaction Documents.