credit_compare(base).txt

      “Material Adverse Effect” means with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, a material adverse effect on, or with respect to (a) the business, results of operations, financial condition, assets or liabilities of Loan Parties and their Restricted Subsidiaries taken as a whole, (b) the ability of Loan Parties and their Restricted Subsidiaries taken as a whole to perform their respective obligations under the Loan Documents, (c) the rights and remedies of Agent, Issuing Banks, Swing Lender, and Lenders under any of the Loan Documents or (d) the legality, validity or enforceability of any of the Loan Documents.

      “Permitted Liens” means:
      
      (a) Liens granted to, or for the benefit of, Agent to secure the Obligations, 

      (b) Liens for unpaid Taxes that either (i) are not yet delinquent, or (ii) are the subject of Permitted Protests.

       (c) judgment Liens arising solely as a result of the existence of judgments orders, requirements to pay issued by a Governmental Authority, or awards that do not constitute an Event of Default under Section 8.3 of this Agreement, and notices of lis pendens and associated rights related to litigation that is the subject of a Permitted Protest,
      (d) Liens set forth on Schedule P-2 to this Agreement; provided, that, to qualify as a Permitted Lien, any such Lien described on Schedule P-2 to this Agreement shall only secure the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect thereof.

      (e) the interests of lessors under operating leases and licensors under license agreements, in each case with respect only to the subject matter of such leases and licenses.

      (f) Liens securing Permitted Purchase Money Indebtedness; provided, that, any such Lien (i) covers only the assets acquired, constructed, installed or improved with such Indebtedness and related contracts, intangibles, and other assets that are incidental thereto (including improvements, accessions thereto and replacements thereof and proceeds and products thereto) and (ii) is created within 365 days of such acquisition, construction, installation or improvement.

      (g) Liens arising by operation of law in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, or other similar Liens arising by operation of law, in each case incurred in the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet delinquent, which are not overdue for a period of more than thirty (30) days, or (ii) are the subject of Permitted Protests.

      (h) Liens on amounts deposited in the ordinary course of business to secure Loan Parties’ and their Restricted Subsidiaries’ obligations in connection with worker’s compensation or other unemployment insurance or to secure public or statutory obligations, 
      (i) Liens on amounts deposited to secure Loan Parties’ and their Restricted Subsidiaries’ obligations in connection with the making or entering into of bids, tenders, contracts (other than contracts for the payment of Indebtedness), leases, or other similar obligations arising in the ordinary course of business.

      (j) Liens on amounts deposited to secure Loan Parties’ and their Restricted Subsidiaries’ reimbursement obligations with respect to surety, performance, release, appeal or similar bonds obtained in the ordinary course of business.

      (k) with respect to any Real Property, survey exceptions, defects in title, encumbrances, easements, rights of way, zoning restrictions and other restrictions that do not materially interfere with or impair the value, use or operation thereof.

      (l) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business.

      (m) Liens that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement Liens only encumber those assets that secured the original Indebtedness or under written agreements pursuant to which the original Liens arose, could have secured the original Indebtedness (plus improvements, accessions and replacements to such property or proceeds and products thereof).

      (n) rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such Deposit Accounts in the ordinary course of business.

      (o) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness.

      (p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods.

      (q) Liens solely on any cash earnest money deposits made by any Loan Party or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition.

      (r) Liens (i) assumed by any Loan Party or its Restricted Subsidiaries or on property of a Person acquired or merged with or into or consolidated with a Loan Party or its Restricted Subsidiaries, in each case, in connection with a Permitted Acquisition that secure Acquired Indebtedness or (ii) on property existing at the time of acquisition thereof by any Loan Party or its Restricted Subsidiaries or at the time the Person holding such Property is merged with or into or consolidated with any Loan Party or its Restricted Subsidiaries, so long as such Liens were not incurred in connection with, or in contemplation of such acquisition, and (iii) in the case of both of (i) and (ii), pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property acquired thereafter of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition and securing the obligations to which the original Liens relate.

      (s) Liens (i) incurred in connection with ordinary course refurbishments or exchanges of catalysts, including platinum or similar precious metals and related products, necessary or useful for the operation of the Refineries, or (ii) on metals and the right to receive metals arising out of a sale-leaseback of a catalyst necessary or useful for the operation of refinery assets of Administrative Borrower and its Restricted Subsidiaries, securing obligations of Administrative Borrower or a Restricted Subsidiary in respect of such sale-leaseback transaction, provided, that, such Liens do not encumber any assets other than the catalyst and the related metals and proceeds of the foregoing; provided, further, that, such sale-leaseback of a catalyst shall be entered into in the ordinary course of business, consistent with past practices and not for speculative purposes.

      (t) (i) Liens in favor of Term Agent to secure the obligations under the Term Loan Documents, subject to the terms of the ABL Intercreditor Agreement, and Liens securing Incremental Equivalent Debt, Permitted First Priority Refinancing Debt, or Permitted Second Priority Refinancing Debt (in each case, as defined in the Term Loan Agreement as in effect as of the date hereof) and Refinancing Indebtedness (including, without limitation, any Incremental Equivalent Debt described in clause (jj) of the definition of “Permitted Indebtedness”) of any of the foregoing; provided, that, the holders of each such Indebtedness or the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained (if not Term Agent pursuant to the Term Loan Documents), as the case may be, on such holders’ behalf becomes party to the ABL Intercreditor Agreement; and (ii) Liens in favor of the holders of Indebtedness described in clause (jj) of the definition of “Permitted Indebtedness”; provided, that, the holders of any of the Indebtedness under clauses (i) or (ii) above of this clause (t), or the trustee, administrative agent, collateral agent, 

agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, on such holders’ behalf becomes party to an intercreditor agreement on substantially the same terms as the ABL Intercreditor Agreement or otherwise in form and substance reasonably satisfactory to Agent.

      (u) statutory Liens securing First Purchaser Crude Payables arising in the ordinary course of business which are not overdue.

      (v) Liens on cash and Cash Equivalents securing Indebtedness described in clause (j) of the definition of “Permitted Indebtedness”.

      (w) Liens consisting of the pledge by DM&S of the Holdings Note as security for the Indebtedness described in clause (b)(ii) of the definition of “Permitted Indebtedness”,
      (x) Liens in favor of any Loan Party.

      (y) Liens securing Intermediation Facilities otherwise permitted by this Agreement, so long as such Liens solely extend to Intermediation Collateral.

      (z) Liens arising from precautionary UCC financing statements regarding operating leases or consignments and “protective” Liens granted in connection with sales permitted hereunder that are intended to be “true sales”, or bailment, storage or similar arrangements in which a counterparty holds title to the assets that are the subject of such transaction, including liens granted by the Borrower or a Restricted Subsidiary to the counterparty in Intermediation Facilities, which Liens are intended to protect such counterparty in the event that such transaction is re-characterized as a secured financing and attach only to the assets that are subject of such transaction.

      (aa) Liens on the Equity Interests of Unrestricted Subsidiaries or Permitted JVs,

      (bb)    Liens reserved in oil and gas mineral leases for bonus or rental payments and for compliance with the terms of such leases, and Liens arising under, and reserved in rights pursuant to, partnership agreements, oil and gas leases, farm-out agreements, division orders, contracts for the sale, purchase, exchange, transportation or processing of oil, gas or other hydrocarbons, unitization and pooling declarations and agreements, development agreements, operating agreements, area of mutual interest agreements, and other agreements which are customary in any business in which the Borrower and its Restricted Subsidiaries are permitted to engage in pursuant to this Agreement.
      
      (cc) Liens on the assets of any Restricted Subsidiary that is not a Loan Party securing Indebtedness or other obligations of such Restricted Subsidiary that were permitted by the terms of this Agreement to be incurred.

      (dd) Liens not on Revolving Priority Collateral securing Indebtedness permitted to be incurred pursuant to clause (z) of the definition of “Permitted Indebtedness”, and any guarantees of such Indebtedness.

      (ee)    Liens of any Governmental Authority on any trust account established for the benefit of an environmental agency or department to the extent required under Applicable Law, 
      (ff) Liens not on Revolving Priority Collateral in favor of franchisors in the ordinary course of business securing obligations arising under franchise arrangements (and not, for the avoidance of doubt, any Indebtedness).

      (gg) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1,000,000.

      Notwithstanding the foregoing, all Liens incurred under the Loan Documents will be deemed to have been incurred in reliance only on clause (a) above, and all Liens incurred under the Term Loan Documents will be deemed to have been incurred in reliance only on clause (t) above.