LOAN GUARANTEE AGREEMENT dated as of January 10, 2025 among Montana Renewables, LLC, as Borrower, and as Guarantor and Loan Servicer Project Montana Great Falls, Montana, USA Loan No. EIR0015
EXHIBIT 10.1
This document and the contents herein are confidential and shall not be revealed to any party without a need to know the contents for the purpose of negotiating and approving a potential financing from FFB and DOE.
dated as of January 10, 2025
among
Montana Renewables, LLC,
as Borrower,
and
U.S. DEPARTMENT OF ENERGY,
as Guarantor and Loan Servicer
Project Montana
Great Falls, Montana, USA
Loan No. EIR0015
CONTENTS
Page
Annexes, Schedules and exhibits
Exhibits
Exhibit AForm of Advance Request
Exhibit BForm of Drawstop Notice
Exhibit CForm of Officer’s Certificate
Exhibit DForm of Closing Certificate
Exhibit EForm of Tax Certificate
Exhibit FForm of Construction Budget
Exhibit GDavis Bacon Act Contract Provisions
Exhibit HForm of Secured Party Advisor Report Bring Down Certificate
Exhibit IForm of Compliance Certificate
Exhibit JForm of Annual Certificate
Exhibit KForm of Quarterly Certificate
Exhibit LForm of Construction Workforce Report
Exhibit MForm of Operations and Maintenance Workforce Report
Exhibit NForm of Community Benefits Plan and Justice40 Annual Report
Exhibit OForm of Monthly Certificate
Exhibit PForm of Monthly Construction Progress Report
Exhibit QForm of Restricted Payment Certificate
Exhibit RForm of O&M Budget
Exhibit SForm of Intercreditor Agreement
Exhibit TForm of Physical Completion Date Certificate
Exhibit UForm of Project Completion Date Certificate
Schedules
Schedule 3.02Amortization Schedule
Schedule 5.01(d)(ii)-1Project Documents
Schedule 5.01(d)(ii)-2Major Project Documents; Specified Major Project Participant; Feedstock Supplier
Schedule 5.01(j)Project Milestone Schedule
Schedule 5.01(t)Required Approvals Schedule
Schedule 5.03(s)List of Assets
Schedule 5.03(t)Mechanic’s Lien
Schedule 6.01Existing Credit Facilities
Schedule 6.08Litigation
Schedule 6.13(e)Affiliate Transactions
Schedule 6.15-1Phase 1 Project Site
Schedule 6.15-2Project Site
Schedule 6.17(a)Intellectual Property
Schedule 6.26(b)▇▇▇▇▇-▇▇▇▇▇ Act Covered Contracts
Schedule 7.03Required Insurance
Schedule 8.02(a)Sales and Marketing Plan
Schedule 11.04Notices
Schedule RForm of Safety Report
LOAN GUARANTEE AGREEMENT, dated January 10, 2025 (this "Agreement"), between the UNITED STATES DEPARTMENT OF ENERGY, an agency of the United States of America ("DOE") and Montana Renewables, LLC, a limited liability company organized and existing under the laws of the state of Delaware (the "Borrower").
PRELIMINARY STATEMENTS
| (A) | DOE has been authorized to issue a guarantee for FFB to make loans for the Project pursuant to Title XVII of the Energy Policy Act of 2005, Pub. L. 109 58, as amended by Section 406 of Div. A of Title IV of Pub. L. 111 5, and as further amended from time to time (“Title XVII”). |
| (B) | Borrower has undertaken the development, engineering, procurement, construction, operation, ownership, and maintenance of a biorefinery facility called “Montana Renewables” located in Great Falls, Montana, which converts fats, oils, and greases into renewable diesel (“RD”), sustainable aviation fuel (“SAF”), and renewable naphtha, including the currently operational portion of the facility (“Phase 1”) and the proposed expansion of such facility to increase the production of RD, SAF and renewable naphtha, including wastewater treatment upgrades and infrastructure updates, including rail and tankage (“Phase 2” and collectively with Phase 1, the “Project”), which is anticipated to operate at maximum SAF production and cogenerate to produce steam and power from renewable naphtha. |
| (C) | As of the date of this Agreement, Montana Renewables Holdings LLC, (the “Direct Parent”) a limited liability company organized in the State of Delaware, which is owned 14.2045% by WPGG 14 United Aggregator, L.P., (“Warburg Pincus”), 0.0858% by Montana Renewables Holdings, Inc., a corporation incorporated in the State of Delaware (“MRH Inc.”) and 85.7097% by Calumet Montana Refining, LLC, a limited liability company organized in the State of Delaware (“CMR”), owns 100% of the Borrower; |
| (D) | The Borrower submitted an application for the issuance by DOE of a guarantee of a multi-draw construction and term loan facility to be authorized and approved by DOE under Title XVII, subject to the requirements of Section 1706 and the Applicable Regulations (the "Application"). |
| (E) | The Borrower and DOE entered into a Conditional Commitment Letter dated October 16, 2024 (the “Conditional Commitment Letter”), pursuant to which DOE agreed to arrange for FFB to purchase the FFB Note from the Borrower and to make Advances from time to time thereunder, in each case, upon the terms and subject to the conditions of this Agreement and the other Financing Documents. |
| (F) | Subject to the terms and conditions hereof, DOE will, in connection with arranging financing for the Borrower from FFB, issue and deliver to FFB a loan guarantee (the “DOE Guarantee”) pursuant to which it will guarantee the Borrower’s repayment of principal and interest on the Advances as and when required pursuant to the FFB Note and any other liabilities, losses, costs or expenses incurred by FFB from time to time with respect to the FFB Note or the related FFB Note Purchase Agreement. |
| (G) | The execution of this Agreement is a condition precedent to DOE’s issuance of the DOE Guarantee, and FFB’s receipt of the DOE Guarantee is a condition precedent to FFB’s execution of the FFB Documents. |
| (H) | The Borrower's obligations to DOE and FFB will be secured by the Liens granted under the Security Documents, to the extent provided therein. |
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| (I) | The parties hereto desire: (a) to specify, among other things, the terms and conditions for: (i) the delivery by DOE of the Principal Instruments required for FFB to purchase the FFB Note pursuant to the FFB Note Purchase Agreement; (ii) the delivery by DOE of Advance Request Approval Notices; and (iii) certain indemnity and reimbursement obligations of the Borrower to DOE; and (b) to provide for certain other matters related thereto. |
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
Definitions and Other Rules of Construction
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then-outstanding under all Tranches and any capitalized interest thereon shall not exceed the Maximum Guaranteed Loan Amount and shall otherwise comply with the Debt Sizing Parameters.
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The entries made in the internal records maintained by or on behalf of DOE, respectively, evidencing the amounts from time to time: (i) advanced by FFB under the FFB Note Purchase Agreement and the FFB Note; or (ii) paid by or on behalf of the Borrower from time to time in respect thereof, shall constitute, absent manifest error, evidence of the existence and amount of the FFB Note Obligations of the Borrower as therein recorded.
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in each case of clauses (A) and (B), no Default or Event of Default has occurred and is continuing, or could reasonably be expected to occur as a result of such prepayment.
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Any Mandatory Prepayments shall be made on the Intended Prepayment Date set forth in the relevant Prepayment Election Notice delivered pursuant to this Section 3.05 (Prepayments), which Intended Prepayment Dates shall be the date required for such Mandatory Prepayment pursuant to this Section 3.05(c) (Mandatory Prepayments) but in no event later than fifteen (15) Business Days after the occurrence of such Mandatory Prepayment Event (unless DOE otherwise consents).
Reimbursement and Other Payment Obligations
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ABA No. [***]
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exist with respect to the Project under the laws of the State of Montana or any subdivision or local jurisdiction thereof.
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provided, however, that with respect to any Sponsor that is a publicly-traded company, DOE shall only require information that is publicly available.
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of Secured Party Advisor Report Bring-Down Certificate) and addressing such other matters as DOE may request and, to the extent required, an updated copy of the report delivered as of the Execution Date:
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true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by "materiality," "material adverse effect" or a similar qualifier, in which case it is true and correct in all respects) as of such date, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty is true and correct as of such date or time).
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Project Accounts. (i) All Project Accounts (including all Reserve Accounts) shall have been funded in full to the then-applicable funding requirement as of the date of such Advance pursuant to the Accounts Agreement; and (ii) the Borrower has had at least $80 million in cash on deposit in the Base Cash Equity Reserve Account at the close of any business day during the previous 90 calendar days.
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provided, that on a future date following the delivery of the Phase 2 Equity Instrument, upon the delivery by the Borrower to DOE of a certificate (which shall be delivered within 30 days following a Calculation Date) demonstrating, to the satisfaction of DOE, that the Phase 2 Equity Cap, if it were calculated on such future date, would be less than the Phase 2 Equity Cap under the as-delivered Phase 2 Equity Instrument, the Phase 2 Equity Cap shall be reduced by an amount equal to 10% of the difference between the Phase 2 Equity Cap under the as-delivered Phase 2 Equity Instrument and the calculation of the Phase 2 Equity Cap on such future date.1
1 For the avoidance of doubt, below is an illustrative example.
If:
(1) [***] in total capex (without contingency) to reach COD;
(2) DOE Advances are [***] (calculated for this example as 55% of total capex costs, not including DSRA funding or contingency);
(3) total forecasted equity required to reach COD is [***];
(4) cash on hand is $[***].
Then the Phase 2 Equity Cap would equal [***].
If on a future date the calculation of the Phase 2 Equity Cap would be equal to [***], then the Phase 2 Equity Cap would be decreased by the product of [***] (the difference between the Phase 2 Equity Cap as originally calculated and the calculation of the Phase 2 Equity Cap on such future date) and 10%.
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do not exceed the Maximum Guaranteed Loan Amount or the Maximum Tranche Amount for the Tranche under which such Advance is being made.
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provided, that if the amount of the Advance requested to be made on such Requested Advance Date is less than the total amount to be deducted on such Requested Advance Date, the Borrower shall deduct an amount equal to the total amount of the Advance requested to be made on such date, and the remaining shortfall shall be deducted by the Borrower from Advances requested in future Advance Requests made on future Requested Advance Dates until such amount has been deducted in full.
Representations and Warranties
To induce DOE to enter into this Agreement and to arrange for FFB to purchase the FFB Note and offer extensions of credit thereunder, the Borrower makes each of the following representations and warranties to and in favor of DOE and FFB as of: (a) the Execution Date; (b) each Advance Date (both immediately before and immediately after giving effect to the Advances, if any, being made on such date); (c) the Project Completion Date, except as such representations and warranties are expressly made as to an earlier date, in which case such representations and warranties will be true as of such earlier date:
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that (i) (excluding any Adverse Proceeding contemplated under clause (a) or (b) above) either individually or in the aggregate has, or could reasonably be expected to have a Material Adverse Effect or (ii) has had or could reasonably be expected to have a value greater than one million Dollars ($1,000,000), individually, or five million Dollars ($5,000,000), in the aggregate.
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The Borrower hereby agrees that, until the Release Date:
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describing the purpose of such amendment and certifying that such amendment is reasonably necessary or advisable for the operation and maintenance of the Project. Such proposed amendment shall become effective on the date approved by DOE and, until such proposed amendment is approved, the Borrower shall comply with the approved O&M Budget (subject to the allowance provisions of this Section 7.28 (O&M Budget)) until the proposed amendment is approved by DOE.
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in each case, before any such Offtake Contract automatically renews. Following the delivery of any such notice and prior to the applicable Termination Date, DOE and Borrower shall confer on the Borrower’s strategy for Offtake Contracts generally and such Offtake Contract specifically. Thereafter, if DOE so instructs in writing at least five (5) Business Days prior to any Termination Date, the Borrower shall provide notice of non-renewal for the applicable Offtake Contract on or prior to the applicable Termination Date. For the avoidance of doubt, nothing in this provision shall impair or limit the restrictions on the Borrower and DOE’s consent rights set forth in Section 9.01 including, without limitation, restrictions on amending, modifying, supplementing, further renewing or extending the term of, or consenting to or waiving any right with respect to such Offtake Contract or entering into additional Offtake Contracts, in each case, without DOE’s prior written consent.
The Borrower hereby agrees that until the Release Date:
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The Borrower hereby agrees that until the Release Date:
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in each case without the prior written consent of DOE.
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provided that, prior to the first anniversary of the Project Completion Date, the Borrower may make a Restricted Payment in connection with a Permitted Tax Distribution without complying with Sections 9.04(a) and (b) above in an aggregate amount not to exceed $[***] in any twelve- (12) month period.
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Events of Default and Remedies
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such amount is due, and such failure to pay shall continue unremedied for a period of five (5) Business Days after the date on which such amount was due.
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or maintenance of the Project; or (iii) any proceedings shall be commenced by or before any Governmental Authority for the purposes of rescinding, terminating, suspending, modifying, withdrawing or withholding any such Required Approval and such proceeding is not: (A) dismissed within sixty (60) days of institution, including as a result of satisfaction of any judgment or settlement of any claim that does not otherwise separately result in an Event of Default hereunder; and (B) diligently contested or appealed by any Borrower Entity.
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(i) Any Adverse Proceeding alleging violation of any Environmental Law or asserting any Environmental Claim has been threatened in writing or instituted against any Borrower Entity or in relation to the Project, or (ii) any Governmental Judgment imposing a penalty, monetary damages, remediation requirements or restrictions of construction or operations of the Project is issued relating to any violation of Environmental Law, violation of the terms or conditions or any Required Approval issued under any Environmental Law or restricting the use of any such Required Approval in any material respect, and such Adverse Proceeding or Governmental Judgment is not (A) dismissed within sixty (60) days of institution, including as a result of satisfaction of any judgment or settlement of any claim that does not otherwise result in an Event of Default hereunder; or (B) subject to a limit of one hundred and eighty (180) days of institution, diligently contested or appealed by the applicable Borrower Entity in accordance with Permitted Contest Conditions; provided, that, to benefit from the cure periods described above, in either case, the Borrower shall have timely notified DOE of the Adverse Proceeding or Governmental Judgment and consulted in good faith with DOE with respect to its intended response.
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For the avoidance of doubt, each clause of this Section 10.01 (Events of Default) shall op-erate independently, and the occurrence of any such event shall constitute an Event of Default.
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understandings of the parties to this Agreement in respect to the subject matter of this Agreement made prior to the date hereof.
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other fees and expenses in connection with or arising from the ownership, operation or occupancy of the Project or any other assets and to perform all obligations under the agreements and contracts relating to the Project or any other assets shall be the sole responsibility of the Borrower.
[NO FURTHER TEXT ON THIS PAGE; SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of the day and year first above mentioned.
MONTANA RENEWABLES, LLC, |
a Delaware limited liability company, |
as Borrower |
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇: Chief Executive Officer - Montana Renewables, LLC |
[Signature Page to Loan Arrangement and Reimbursement Agreement]
an agency of the Federal Government of the United States of America, in its own capacity and in its capacity as Loan Servicer |
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By: /s/ ▇▇▇▇▇▇ ▇. Cortes Name: ▇▇▇▇▇▇ ▇. Cortes Title: Director, Loan Origination Division, Loans Program Office |
"Acceptable Bank" means a bank or financial institution or branch office thereof in New York, New York organized under or licensed as a branch under the laws of the United States or any state thereof, which has a rating for its long-term unsecured and unguaranteed Indebtedness of "A-"/Stable outlook or higher by S&P or Fitch or A3 or higher by Moody's, using the lowest rating of the aforementioned three rating firms.
"Acceptable Delivery Method" means, with respect to any certificate, document or other item required to be delivered by an Acceptable Delivery Method hereunder:
"Accounts Agreement" means the Collateral Agency and Accounts Agreement entered into as of the First Advance Date under Tranche 1 by and among the Borrower, DOE, the Collateral Agent and the Depositary Bank.
"Additional Equity Contributions" has the meaning given to such term in the Sponsor Support Agreement.
“Additional Major Project Document” means any Additional Project Document under which (i) the Borrower is reasonably expected to have aggregate obligations or liabilities in excess of five million Dollars ($5,000,000) (as such amount shall be adjusted by inflation) over any rolling twelve (12) month period during its term; or (ii) the breach, non-performance, cancellation or early termination of which has, or could reasonably be expected to materially and adversely affect the Borrower or the Project or otherwise have a Material Adverse Effect.
"Additional Project Document" means any contract entered into by the Borrower subsequent to the Execution Date that is necessary for or material to the construction and operation of the Project.
“Additional Sponsor” means any Person who becomes a beneficial owner of more than 10% economic or voting securities in Direct Parent; provided that such Person(s) (x) is not a Prohibited Person, (y) DOE has received all documentation and other information requested by DOE related to “know your customer” and other requirements (including, the Anti-Money Laundering Laws) and (z) DOE, in its sole discretion, has approved in writing of such Person(s) becoming an Additional Sponsor.
"Advance" means, with respect to any Tranche, an advance of funds by FFB to the Borrower under the FFB Note as may be requested by the Borrower from time to time during the applicable Availability Period.
"Advance Date" means the date on which FFB makes any Advance to the Borrower.
"Advance Request" has the meaning given to such term in Section 2.03(a) (Advance Requests).
"Advance Request Approval Notice" means the written notice from DOE located at the end of an FFB Advance Request advising FFB that such FFB Advance Request has been approved by or on behalf of DOE.
"Adverse Proceeding" means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration at law or in equity, or before or by any Governmental Authority, domestic or foreign or other regulatory body or any arbitrator.
"Affiliate" means, as applied to any Person, (a) any other Person directly or indirectly controlling, controlled by, or under common control with, that Person; and (b) in addition, in the case of any Person that is an individual, each member of such Person's immediate family, any trusts or other entities established for the benefit of such Person or any member of such Person's immediate family and any other Person controlled by any of the foregoing. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors of such Person; or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
"Affiliated Major Project Participant" has the meaning given to such term in the definition of “Borrower Entity.”
"Agent Fees" has the meaning given to such term in the Accounts Agreement.
"Agents" has the meaning given to such term in the Accounts Agreement.
“Aggregate Capitalized Interest” means, with respect to any requested Advance, the aggregate amount of interest that has been capitalized and will be capitalized on all Advances then made to the Borrower under all FFB Notes outstanding (including, for the avoidance of doubt, such requested Advance) as determined in accordance with the FFB Notes.
"Agreed-Upon Procedures Report" means a report, in substantially the form of the document titled "Agreed-Upon Procedures Report, " prepared by the Borrower’s Accountant, as such form may be revised from time to time by the Borrower and the Borrower’s Accountant with the consent of DOE, which consent shall not be unreasonably withheld.
"Agreement" has the meaning given to such term in the preamble hereto.
"ALTA" means the American Land Title Association headquartered in Washington D.C.
"ALTA Mortgage Loan Policy" means the policy of title insurance to be issued by the Title Company, in form and substance satisfactory to DOE, with such co-insurers or reinsurers as may be reasonably acceptable to DOE.
"Annual Reporting Date" has the meaning given to such term in Section 8.02(a) (Annual Reports).
"Anti-Corruption Laws" means all laws concerning or relating to anti-bribery, anti-corruption, and anti-kickback matters in the public or private sector, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, or any similar laws.
"Anti-Money Laundering Laws" means the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act, the Anti-Money Laundering Act of 2020, the Money Laundering Control Act, the rules and regulations thereunder and any similar Applicable Laws relating to money laundering, terrorist financing, or financial recordkeeping and recording requirements administered or enforced by any United States of America governmental agency, or any other jurisdiction in which the Borrower operates or conducts business.
"Applicable Law" means, with respect to any Person, any constitution, statute, law, rule, regulation, code, ordinance, treaty, judgment, order or any published directive, guideline, requirement or other governmental rule or restriction which has the force of law, by or from a court, arbitrator or other Governmental Authority having jurisdiction over such Person or any of its properties, whether in effect as of the date of this Agreement or as of any date hereafter.
"Applicable Regulations" means the final regulations with respect to Title XVII at 10 CFR Part 609 (2024), and any other applicable regulations from time to time promulgated to implement Title XVII.
" Applicant" has the meaning given to such term in the Applicable Regulations.
"Application" has the meaning given to such term in the preliminary statements.
"Approved Construction Changes" means:
"Authorized Transmitter" means, with respect to delivery of documentation: (a) by any Borrower Entity to DOE, the list of individuals designated as Authorized Transmitters set forth in the relevant certificate delivered pursuant to Sections 5.01(f) (Organizational Documents), 5.01(d) (Transaction
Documents) 5.03(aa) (IE’s Certificate), 5.04(u) (IE’s Certificate) and 5.05(y) (IE’s Certificate), as applicable, delivered by such Borrower Entity or the Independent Engineer, as applicable, to DOE prior to the Execution Date, as updated or modified, with the consent of DOE, from time to time; and (b) to FFB, each of the individuals listed on the certificate specifying authorized Borrower Officials.
"Availability Period" means with respect to each Tranche (unless limited expressly to a Tranche), the period commencing on the Execution Date until and including the earliest of:
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq, as amended.
"Base Case Financial Model" means a mechanically sound financial model prepared by the Borrower in good faith, showing financial projections and underlying assumptions for the Project believed by the Borrower to be reasonable, in Excel form and otherwise in accordance with the Transaction Documents, that are set forth on a quarterly basis, for the period from the Execution Date to a date falling no sooner than twelve (12) months after the Maturity Date, which projections: (a) are consistent with the Construction Budget and Project Milestone Schedule; and (b) are designed to demonstrate, among other things, compliance with the Debt Sizing Parameters and all other financial covenants in the Financing Documents. References to "Base Case Financial Model" refer to the Original Base Case Financial Model, the Execution Date Base Case Financial Model, the Project Completion Date Base Case Financial Model or any updated Base Case Financial Model approved by DOE in accordance with the Financing Documents.
“Base Cash Equity Reserve Account” has the meaning given to such term in the Accounts Agreement.
"Base DSRA Amount" for any date of determination means the Account Funding Requirement applicable to the Debt Service Reserve Account on such date.
"Base Equity Commitment" has the meaning given to such term in the Sponsor Support Agreement.
"Base Equity Contribution" has the meaning given to such term in the Sponsor Support Agreement.
“BNSF Consent” means a Consent to Collateral Assignment pursuant to which BNSF Railway Company, a Delaware corporation, has consented to the Borrower granting to the Collateral Agent a collateral interest in the BNSF Sublease.
“BNSF Property” means that certain real property described in Exhibit A to the BNSF Sublease.
“BNSF Site Map” has the meaning given to such term in Section 5.04(q)(B)(3).
"BNSF Sublease” means that certain Sublease Agreement dated as of December 17, 2021, by and between CMR and the Borrower, as evidenced by that certain Memorandum of Sublease, dated as of December 17, 2021, recorded on December 17, 2021 as Document Number R0422853 of the Official Public Records of Cascade County, Montana.
"Board" means the Board of Governors of the Federal Reserve System of the United States (or any successor).
"Borrower" has the meaning given to such term in the preamble hereto.
"Borrower Advance Date Certificate" has the meaning given to such term in Schedule 3 to Exhibit A (Form of Advance Request).
"Borrower Entity" means each of:
"Borrower Instruments" has the meaning given to such term in Section 3.2 of the FFB Note Purchase Agreement.
"Borrower's Accountant" means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such other firm of independent certified public accountants of nationally recognized standing as may be appointed by the Borrower from time to time with the prior written approval of DOE.
"Borrower Entity’s Accountant" means, with respect to each Borrower Entity (other than the Borrower), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP or such other firm of independent certified public accountants of nationally recognized standing as may be appointed by such Borrower Entity from time to time with the prior written approval of DOE.
"Broker's Letter of Undertaking" means each letter delivered or to be delivered by the Borrower's insurance broker to DOE, substantially in the form set out in Annex A (Form of Broker's Letter of Undertaking) to Schedule 7.03 (Required Insurance) or any other form acceptable to DOE.
"Budgeted Contingency" means the line items for allocated and unallocated contingencies included in the Construction Budget.
"Business Day" means any day on which FFB and the Federal Reserve Bank of New York are both open for business.
"Calculation Date" means March 31, June 30, September 30 and December 31 of each calendar year.
"Calumet Parent" means Calumet, Inc. a publicly traded corporation incorporated in the State of Delaware.
"Capital Expenditures" means all expenditures that should be capitalized in accordance with the Designated Standards.
"Capital Lease" means, for any Person, any lease of (or other agreement conveying the right to use) any property of such Person that would be required, in accordance with the Designated Standards, to be capitalized and accounted for as a capital lease on a balance sheet of such Person.
"Capital Lease Obligations" means, with respect to any Person, 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 the Designated Standard, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with the Designated Standard.
"Cash Equivalents" means any of the following, to the extent owned by the Borrower free and clear of all Liens (other than Liens created under the Security Documents):
any Advances, loans or extensions of credit or any stock, bonds, notes, debentures or other securities as DOE may from time to time approve.
"Cash Flow Available for Debt Service" means for any period, the sum determined in accordance with the Borrower's Designated Standard for such period of Project revenue (excluding non-cash items and extraordinary revenues received during such period for an event that occurred during such period) received during such period, minus: (a) cash operating and maintenance expenses; (b) increases in working capital; (c) Taxes related to the ownership or use of property paid with cash; (d) Capital Expenditures; (e) the Maintenance Fee and ongoing maintenance fees of DOE’s independent consultants; and (f) required periodic decommissioning or restoration contributions paid or payable as required under the Financing Documents.
"Cash Sweep Mandatory Prepayment" has the meaning given to such term in Section 3.05(c)(i)(H) (Mandatory Prepayments).
"Certificate Specifying Authorized Borrower Officials" has the meaning given to such term in the FFB Note Purchase Agreement.
"Change of Control" means:
"Change Order" means any change order or variation order, amendment, supplement or modification in respect of any Construction Contract.
"Closing Certificate" has the meaning given to such term in Section 5.01(g)(i) (Execution Date Certificates) and Exhibit D (Form of Closing Certificate).
“Closing Letter” has the meaning given to such term in Section 5.03(u)(ii).
"Code" means the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"Collateral" means (a) all real property of the Borrower (including a mortgage or deed of trust on all easements, leasehold and fee interests of the Borrower); (b) all feedstock, inventory and all other personal property and other tangible assets of the Borrower (including all Project Documents and Required Approvals); (c) all intangible assets and intellectual property of the Borrower, including licenses therefor; (d) all cash and investments of the Borrower, whether or not in controlled accounts, including the Project Accounts; (e) all other assets of the Borrower; (f) all equity interests of the Borrower; (which are owned by Direct Parent); (g) all Project assets (e.g., shares in the Project, accounts, inventories, insurance proceeds, key agreements, etc.); and (h) other collateral designated as such by the Borrower and agreed to by DOE.
"Collateral Agent" means Citibank, N.A., acting through its Agency and Trust business in its capacity as collateral agent for the benefit of the Secured Parties, or any successor collateral agent appointed from time to time pursuant to the Accounts Agreement.
"Commercial Operations Date" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Commissioning" has the meaning given to such term in Schedule 5.01(j)(Project Milestone Schedule).
"Commissioning Plan" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Community Benefits Plan and Justice40 Annual Report" has the meaning given to such term in Section 8.02(c)(C) (Labor Reporting and Justice40 Initiative Reporting Requirements).
"Company Account" has the meaning given to such term in the Accounts Agreement.
"Compliance Certificate" has the meaning given to such term in Section 8.01(c) (Compliance Certificates).
"Comptroller General" means Comptroller General of the United States.
“Conditional Commitment Letter” has the meaning given to such term in the preliminary statements.
"Construction Budget" means the Initial Construction Budget, as updated, amended or supplemented from time to time pursuant to the terms hereof.
"Construction Change" has the meaning given to such term in Section 9.07(a) (Approved Construction Changes; Project Milestone Schedule; Budgets).
"Construction Contract" means, each of:
"Construction Contractor" means any party to any Construction Contract, excluding the Borrower.
"Construction Management Contract" means a construction management agreement to be entered into between the construction management contractor and the Borrower pursuant to which the construction management contractor agrees to provide construction management services to the Borrower to coordinate all construction activities in accordance with the terms of the Construction Contracts, Required Approvals, Applicable Law and Prudent Industry Practice.
"Construction Progress Report" means a monthly summary construction report, certified by the Borrower and the Independent Engineer as correct and not misleading in any material respect, which shall include:
"Contest Claim" means any Tax or any Lien or other claim or payment of any nature.
“Contingent Equity Commitment” has the meaning given to such term in the Sponsor Support Agreement.
"Contingent Obligations" means, as to any Person, any obligation of such Person with respect to any Indebtedness ("primary obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including any obligation of such Person, whether or not contingent, as a guarantee or otherwise:
provided, that, (i) the term "Contingent Obligation" shall not include endorsements of instruments for deposit or collection in the Ordinary Course of Business; and (ii) the amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
"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 power, directly or indirectly, to direct or cause the direction of the management or business or policies of a Person (whether through the ownership of voting securities or partnership or other ownership interests, by contract, or otherwise); and the words "Controlling," "Controlled," and similar constructions shall have corresponding meanings.
"Copyrights" means any and all (a) copyright rights in any work subject to copyright laws of the United States or any other jurisdiction, whether as author, assignee, transferee or otherwise, including Mask Works (as defined under 17 U.S.C. § 901 of the U.S. Copyright Act)(in each case, whether registered or unregistered); (b) registrations and applications for registration of any such copyrights, including registrations, extensions, renewals recordings, supplemental registrations and pending applications for registration in the United States Copyright Office or any foreign equivalent office; and (c) other Copyrights as set out in Schedule A of the IP Security Agreement.
"Cost Overrun" means any actual aggregate costs of achieving Substantial Completion in excess of the total amount of Project Costs set forth in the Construction Budget delivered as of the Execution Date (excluding any costs incurred and paid for prior to the start date of the Construction Budget and not counted
towards the Base Equity Commitment), including (a) any liquidated damages payable by the Borrower under any Project Document; (b) any Debt Service and other costs and expenses under the Financing Documents; and (c) all other costs, expenses and liabilities incurred as a result of any delay in achieving Substantial Completion.
"CPA Goods" means any equipment, materials or commodities procured, contracted or obtained for the Project, the cost of which has been or is projected to be paid or reimbursed with proceeds of any Advance, and that may be transported by ocean vessel.
"Credit Subsidy Cost" means the "cost of a direct loan," as defined in Section 502(5)(B) of FCRA.
"Currency of Denomination" has the meaning given to such term in Section 11.06 (Judgment Currency).
"Data Protection Laws" means any and all foreign or domestic (including U.S. federal, state and local) Applicable Laws relating to the privacy, security, notification of breaches, Processing of any data or information that identifies or can be used to identify an individual, household or device, whether directly or indirectly, in each case, in any manner applicable to any Borrower Entity or any of its Subsidiaries.
"▇▇▇▇▇-▇▇▇▇▇ Act" means Subchapter IV of Chapter 31 of Part A of Subtitle II of Title 40 of the United States Code, including and as implemented by the regulations set forth in Parts 1, 3 and 5 of title 29 of the Code of Federal Regulations.
"▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract" means any contract, agreement or other arrangement for the construction, alteration or repair (within the meaning of Section 276a of the ▇▇▇▇▇-▇▇▇▇▇ Act and 29 C.F.R. 5.2) of all or any portion of the Project.
"▇▇▇▇▇-▇▇▇▇▇ Act Requirements" the requirement that all laborers and mechanics employed by contractors and subcontractors in the performance of construction work financed in whole or in part by the Guaranteed Loan shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the ▇▇▇▇▇-▇▇▇▇▇ Act, and all regulations related thereto, including those set forth in 29 CFR 5.5, and all notice, reporting and other obligations related thereto as required by DOE, including the obligations under Section 8.02(b)(vi) (Labor Reporting and Justice40 Initiative Reporting Requirements) and the inclusion of the provisions in Exhibit G (▇▇▇▇▇-▇▇▇▇▇ Act Contract Provisions) and the appropriate wage determination(s) of the Secretary of Labor in each ▇▇▇▇▇-▇▇▇▇▇ Act Covered.
"DBA Compliance Matter" means any deviation from compliance with the applicable ▇▇▇▇▇-▇▇▇▇▇ Act Requirements.
"DBA Compliance Matter Contractor" means the DBA Contract Party that is party to the ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract giving rise to the DBA Compliance Matter.
"DBA Contract Party" means any contractor, subcontractor (including any lower tier subcontractor) or other Person (other than any Borrower Entity) that is party to a ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract.
"DBA Holdback Account" has the meaning given to such term in the Accounts Agreement.
"DBA Holdback Amount" means the sum of (a) the aggregate amount of back wages determined from time to time by DOL, or any office thereof, as being due and payable to any employees of DBA Contract Parties as a result of any violation of the ▇▇▇▇▇-▇▇▇▇▇ Act Requirements, whether or not such determination has become final, and which back wages have not been paid in full to such employees or determined by a final action of DOL to not be payable to such employees; and (b) any other amount otherwise required to be withheld in accordance with Exhibit G (▇▇▇▇▇-▇▇▇▇▇ Act Contract Provisions).
"Debarment Regulations" means all of the following: (a) Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the Federal Acquisition Regulations, 48 C.F.R. 9.400–9.409; and (b) the Government-wide Debarment and Suspension (Non-procurement) regulations (Common Rule), 2 C.F.R. 200.214 implementing Executive Orders 12549 and 12689, and 2 C.F.R. Part 180, as supplemented by 2 C.F.R. Part 901.
"Debt Service" means, with respect to any period, the sum of (a) principal, interest, fees and other amounts paid or to be paid under the Financing Documents and (b) all other payments made or to be made with respect to other Indebtedness for Borrowed Money of the Borrower.
"Debt Service Coverage Ratio" means (a) the Historical Debt Service Coverage Ratio; or (b) the Projected Debt Service Coverage Ratio, as applicable.
"Debt Service Reserve Account" has the meaning given to such term in the Accounts Agreement.
"Debt Sizing Parameters" has the meaning as set out in Section 2.07(a)(v) (Determination of Advance Amounts).
"Debt to Equity Ratio" has the meaning set out in Section 5.04(pp) (Debt to Equity Ratio).
"Default" means any event or circumstance that with the giving of notice, the lapse of time, or both would become an Event of Default.
"Depositary Bank" means Citibank, N.A., acting through its Agency and Trust business in its capacity as depositary bank, or any successor account bank appointed from to time to time pursuant to the Accounts Agreement.
"Designated Standard" means:
"Direct Agreement" means each direct agreement entered into between a Major Project Participant and the Collateral Agent in respect of each Major Project Document, in form and substance acceptable to DOE.
"Direct Parent" has the meaning given to such term in the preamble hereto.
"Disclosure Form to Report Lobbying" has the meaning given to such term in Section 5.01(ee) (Lobbying Certification).
"Disposition" means, with respect to any property or assets, any single or series of related sales, transfers, conveyances, leases, licenses or other dispositions thereof, and the terms "Dispose" and "Disposed of" shall have correlative meanings; provided, that the term "Disposition" shall not include the creation or existence of any Permitted Lien, so long as no ownership is transferred to any party pursuant thereto.
"DOE" has the meaning given to such term in the preamble hereto.
"DOE Default Interest Rate" has the meaning given to such term in Section 4.01(e) (Reimbursement and Other Payment Obligations).
"DOE Extraordinary Expenses" means, in connection with any technical, financial, legal or other difficulty experienced by the Project (e.g. engineering failure or financial workouts) that requires DOE to incur time or expenses (including third party expenses) beyond standard monitoring and administration of the Financing Documents, the amounts that DOE determines are required to: (a) reimburse DOE's additional internal administrative costs (including any costs to determine whether an amendment or modification would be required that could constitute a "modification" (as defined in Section 502(9) of FCRA)); and (b) any related fees and expenses of the Secured Party Advisors to the extent not paid directly by on or behalf of the Borrower.
“DOE Guarantee” has the meaning given to such term in the preamble hereto.
"DOE Guarantee Payment" has the meaning given to such term in Section 4.01(c) (Reimbursement and Other Payment Obligations).
"DOL" means the United States Department of Labor.
"Dollars" or "USD" or "$" means the lawful currency of the United States.
"Drawstop Notice" has the meaning given to such term in Section 2.04(c) (Drawstop Notices) and Exhibit B (Form of Drawstop Notice).
"EBITDA" means, for any period, (a) Net Income (before extraordinary or other nonrecurring items) for such period, plus (b) to the extent deducted in determining Net Income for such period, the sum of (i) Interest Expense, plus (ii) Taxes, plus (iii) depreciation and amortization.
“Electronic Certified Payroll System” means any electronic certified payroll reporting software that is compliant with the certified payroll requirements outlined in 29 CFR 5.5(a)(3)(ii).
"Electronic Format" means an unalterable electronic format (including Portable Document Format (.pdf)) with a reproduction of signatures where required or such other format as shall be mutually agreed between the Borrower and DOE.
"Electronic Signature" has the meaning given to such term in Section 11.18 (Counterparts; Electronic Signature).
"Eligible Project" has the meaning given to such term in the Applicable Regulations.
"Eligible Project Costs" means Project Costs that satisfy each of the following conditions: (a) DOE has determined the Project Costs to be "eligible costs" in accordance with Section 609.2 and 609.10 of the Applicable Regulations; (b) the Project Costs have not been paid and are not expected to be paid any time after the First Advance Date with (i) any federal grants, assistance, or loans (excluding the Guaranteed Loan); or (ii) other funds guaranteed by the Federal Government; (c) the Project Costs are identified in the Construction Budget; and (d) the Project Costs do not constitute Cost Overruns. For the avoidance of doubt, (x) costs incurred in preparation of the Project Site and construction of the external shells of building infrastructure and (y) the initial funding of any Project Account (other than the Debt Service Reserve Account) to its Account Funding Requirement as set forth in the Accounts Agreement) shall in each case shall not constitute Eligible Project Costs.
"Emergency" means an unforeseeable event, circumstance or condition (including as a result of an Event of Loss), that in the good faith judgment of the Borrower (and subsequently confirmed by the Independent Engineer using information and facts that were available to the Borrower at the time that the applicable mitigation measures were implemented) necessitates the taking of immediate measures to prevent or mitigate: (a) a life threatening situation, safety, environmental or regulatory non-compliance concern, including breach of any Applicable Law; or (b) to prevent or mitigate an event or circumstance not known or reasonably foreseeable prior to the preparation of the O&M Budget.
"Emergency Operating Costs" means those amounts required to be expended in order to prevent or mitigate an Emergency; provided, that such expenditures are either: (a) payable under an insurance policy (in an aggregate amount not to exceed five million Dollars ($5,000,000) in any twelve (12) month period); (b) payable by insurance or a warranty provided under any Project Document (in an aggregate amount not to exceed five million Dollars ($5,000,000) in any twelve (12) month period); or (c) in an amount that does not exceed five million Dollars ($5,000,000) in any twelve (12) month period.
"Employee Benefit Plan" means, collectively, (a) all "employee benefit plans" (as defined in Section 3(3) of ERISA) including any Multiemployer Plans which are or at any time have been maintained or sponsored by any Borrower Entity or ERISA Affiliate or to which any Borrower Entity or ERISA Affiliate has ever made, or been obligated to make, contributions or with respect to which any Borrower Entity or ERISA Affiliate has incurred or is likely to incur any liability or obligation, and (b) all Pension Plans.
"Environmental Assessment" means the environmental review completed under the NEPA for this Agreement.
"Environmental Claim" means any and all obligations, liabilities, losses, abatements, administrative, regulatory or judicial actions, suits, demands, decrees, claims, liens, judgments, notices of noncompliance or violation, investigations, proceedings, clean-up, removal or remedial actions or orders, or damages (foreseeable and unforeseeable, including consequential and punitive damages) or penalties relating in any way to any Environmental Law or any Governmental Approval issued under any such Environmental Law, including (a) any and all Indemnity Claims by any Governmental Authority for enforcement, clean-up, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Indemnity Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Substances, the violation or alleged violation of any Environmental Law or the violation or alleged violation of any Governmental Approval issued thereunder, or arising from alleged injury or threat of injury to human health, safety or the environment.
"Environmental Consultant" means ERM, ▇▇▇▇▇▇▇▇▇▇▇, ICF, or such other Person appointed from time to time by DOE to act as environmental consultant in connection with the Project.
"Environmental Laws" means any and all foreign, Federal, state, provincial, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Applicable Law (including common law) regulating, relating or imposing liability or standards of conduct concerning (i) protection of human health or safety (as it relates to exposure to Hazardous Substances), the environment or natural resources; or (ii) the presence, Release or threatened Release, generation, use, management, handling, transportation, treatment, storage, or disposal of Hazardous Substances, in each case of clause (i) and (ii) as now or may at any time hereafter be in effect.
"EPC Contract" means a single agreement with a contractor or multiple agreements with contractors responsible for the engineering, procurement, and construction activities required for the Project.
"Equipment Supplier" shall have the meaning given to such term in the Security Agreement.
"Equipment Supply Contract" means an agreement outlining the delivery of equipment required for the project as outlined in the EPC contracts.
"Equity Contribution" has the meaning given to such term in the Sponsor Support Agreement.
"Equity Contribution Account" has the meaning given to such term in the Accounts Agreement.
"Equity Document" means each of:
"Equity Interests" means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests, including partnership interests, limited liability interests and trust beneficial interests, in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing and all rights (including, but not limited to, voting rights), and interests with respect to or derived from such equity interest.
"Equity Owner" means, with respect to any Person, another Person holding Equity Interests in such first Person.
"Equity Pledge Agreement" means the Equity Pledge Agreement entered into as of the First Advance Date under Tranche 1 between the Direct Parent and the Collateral Agent in respect of the Direct Parent’s Equity Interests in the Borrower.
"ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any person, trade or business (whether or not incorporated) that would be deemed at any relevant time to be: (a) a single employer with a Borrower Entity under Section 414(b), (c), (m) or (o) of the Code; or (b) under common control with a Borrower Entity under Section 4001 of ERISA.
"ERISA Event" means:
"Event of Default" has the meaning given to such term in Section 10.01 (Events of Default).
"Event of Force Majeure" means an event or circumstance beyond the reasonable control of, and not the result of the fault or negligence of, the Borrower, and that could not have been prevented by the exercise of reasonable diligence by the Borrower, including any act of God, fire, flood, severe weather, epidemic, equipment failure, failure or delay in issuance of Governmental Approvals (but which Governmental Approval Borrower must be using commercially reasonable efforts to obtain) or other acts or inaction of Governmental Authorities (but which act or inaction the Borrower must be using commercially reasonable efforts to contest or reverse), change in Applicable Law, default by suppliers or contractors, quarantine restriction, explosion, sabotage, strike or other material labor disruption, act of war, act or threat of terrorism or riot or civil commotion.
"Event of Loss" means any condemnation, expropriation or taking (including by any Governmental Authority) of any portion of the Project or Collateral, or any other event that causes any portion of the Project or the Collateral to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, including through a failure of title (or defect therein) or any damage, destruction or loss of such property.
"Excess Advance Amount" means, on any date of determination with respect to any Advance under the FFB Note, an amount equal to the total proceeds of such Advance that were (a) applied by the Borrower to reimburse itself for applicable Project Costs incurred and paid but which did not constitute
Eligible Project Costs relating to the FFB Note for which such Advance was sought; or (b) not applied by the Borrower to pay Eligible Project Costs incurred and invoiced relating to the FFB Notes for which such Advance was sought.
"Excess Guaranteed Loan Amount" means, with respect to each Tranche, the amount by which the aggregate principal amount of all Advances made under the FFB Note applicable to such Tranche exceeds the applicable Maximum Tranche Amount, the aggregate capitalized interest under the FFB Note exceeds the Maximum Capitalized Interest Amount or the aggregate amount of each Advance otherwise exceeds the Debt Sizing Parameters.
"Execution Date" means the date on which all of the conditions precedent set out in Section 5.01 (Conditions Precedent to the Execution Date) have been satisfied or waived and the Guaranteed Loan is fully executed and delivered by all parties thereto.
"Execution Date Base Case Financial Model" has the meaning given to such term in Section 5.01(i)(ii) (Base Case Financial Model).
“Existing Credit Facility” means each of the agreements listed in Schedule 6.01 (Existing Credit Facilities).
"Extraordinary Amount" means any cash or other amounts or receipts received by, on behalf of or on account of the Borrower or, to the extent received in connection with the Project, any Borrower Entity, not in the Ordinary Course of Business, including (a) indemnification payments; (b) any cash or other receipts in the nature of indemnification payments under or in respect of any acquisition documentation or any related documentation; and (c) any judgment or settlement proceeds, or other consideration of any kind received in connection with any cause of action or proceeding, other than, in each case, cash or other amounts or receipts received in connection with the proceedings set forth on Schedule 6.08. To the extent any such cash, amounts or receipts are received by any other Borrower Entity in connection with the Project, the Borrower shall cause such cash, amounts or receipts to be transmitted to the Borrower and applied as Extraordinary Amounts hereunder.
"Facility Fee" means a facility fee equal to eight million six hundred thirty-nine thousand eight hundred sixteen Dollars and fifty four cents ($8,639,816.54), to be paid by the Borrower to DOE on the Execution Date.
"FCRA" means the Federal Credit Reform Act of 1990, P.L. 101-508, 104 Stat. 1388-609 (1990), as amended by P.L. 105-33, 111 Stat. 692 (1997).
"Federal Funding" means any funds obtained from the United States or any agency or instrumentality thereof, including funding under any other loan program.
"Feedstock" means fats, oils, and greases in a form and amount that can be processed by the Project.
"Feedstock Supplier" means (a) each entity listed on Part C of Schedule 5.01(d)(ii)-2 (Major Project Documents; Specified Major Project Participant; Feedstock Supplier) or other feedstock provider approved by DOE prior to the Effective Date, or (b) with respect to any feedstock agreement entered into by the Borrower following the Effective Date, any feedstock provider in accordance with a feedstock plan or other criteria to be agreed in the Financing Documents or otherwise approved by DOE.
"Feedstock Supply Contract" means each feedstock supply arrangement entered into by the Borrower and a Feedstock Supplier.
"FFB" means the Federal Financing Bank, an instrumentality of the United States government created by the Federal Financing Bank Act of 1973 that is under the general supervision of the Secretary of the Treasury.
“FFB Advance Request” means the request for Advances required to be delivered pursuant to the terms of the FFB Note, which shall be substantially in the form of Exhibit A (Form of FFB Advance Request) to the FFB Note Purchase Agreement.
"FFB Commitment" means the commitment of FFB to make FFB Advances to the Borrower pursuant to the terms of the FFB Note Purchase Agreement in an aggregate principal amount not to exceed $1,439,969,423.18.
"FFB Document" means each of:
“FFB Note" means each promissory note to be issued by the Borrower in favor of FFB in accordance with other FFB Documents to induce FFB to advance funds thereunder to the Borrower, as such note may be amended, supplemented, substituted and restated from time to time in accordance with its terms.
"FFB Note Obligations" means, collectively, the unpaid principal of and interest on Advances made under the FFB Note, the FFB Note Reimbursement Obligations and all other obligations and liabilities of the Borrower (including interest accruing at the then applicable rate provided in the FFB Documents after maturity of the relevant Advances and FFB Note Reimbursement Obligations and Post-Petition Interest) to DOE or FFB or any subsequent holder or holders of such FFB Note (on any portion thereof), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the FFB Note, the FFB Note Purchase Agreement, the Program Financing Agreement, the Security Documents, or any other document made, delivered or given in connection with any of the foregoing, in each case, whether on account of principal, interest, charges, expenses, fees, attorneys' or other Secured Party Advisors' fees and disbursements, reimbursement obligations, prepayment premiums, indemnities, costs, or otherwise (including all fees and Advances made with respect to the FFB Note of DOE or FFB or any subsequent holder or holders of such FFB Note (or any portion thereof) that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).
"FFB Note Purchase Agreement" means the FFB Note Purchase Agreement entered into between the Borrower, the Secretary of Energy and FFB prior to the Execution Date.
"FFB Note Reimbursement Obligations" means any reimbursement obligations of the Borrower to DOE arising under, out of, pursuant to or in connection with the FFB Note.
"Financial Advisor" means Global Project Finance Advisory Council.
"Financial Officer" means, with respect to any Person, the general manager, any director, the chief financial officer, the controller, the treasurer or any assistant treasurer, any vice president of finance or any assistant vice president of finance or any other vice president or assistant vice president with significant responsibility for the financial affairs of such Person.
"Financial Statements" means, with respect to any Person, for any period, the balance sheet of such Person as at the end of such period and the related statements of income, stockholders' equity and cash flows for such period and for the period from the beginning of the then-current Fiscal Year to the end of such period, together with all notes thereto and except in the case of the Borrower's Historical Financial Statements, with comparable figures for the corresponding period of the previous Fiscal Year, each prepared (except where otherwise noted herein) in accordance with the Designated Standard.
"Financing Document" means each of:
"Financing Document Amounts" means any amounts payable or allegedly payable by the Borrower to FFB under any provision of any Financing Document, other than Section 4.01 (Reimbursement and Other Payment Obligations).
"First Advance" means, with respect to each Tranche, the first advance under such Tranche occurring on the relevant First Advance Date.
"First Advance Date" means, with respect to each Tranche, the date on which the first Advance under such Tranche has been made in accordance with this Agreement.
"First Advance Longstop Date" means, with respect to:
"First Interest Payment Date" means, with respect to each Tranche, the earlier to occur of (a) the date that the aggregate amount of capitalized interest on all outstanding Advances for such Tranche exceeds the Maximum Capitalized Interest Amount for such Tranche; and (b) the sum of (i) the outstanding principal amount of each Advance under such Tranche; and (ii) aggregated amount of capitalized interest on all outstanding Advances under such Tranche, exceeds the Maximum Guaranteed Loan Amount for such Tranche.
"First Principal Payment Date" means, March 31, 2029.
"First Priority" means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien:
"Fiscal Quarter" means the three (3)-month periods ending on March 31, June 30, September 30 and December 31 of each Fiscal Year.
"Fiscal Year" means with respect to:
"Fitch means Fitch Ratings Ltd.
"Foreign Asset Control Regulations" means the United States Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended), or any ruling issued thereunder or any enabling legislation or Presidential Executive Order granting authority.
"Foreign Plan" means any employee benefit plan, program, policy, arrangement or agreement not subject to ERISA or Section 4975 of the Code, including any defined benefit pension plan maintained, contributed to or sponsored by the Borrower or any of its Subsidiaries for the benefit of employees employed outside the United States, other than any such plan, program, policy, arrangement or agreement that is funded through a trust or funding vehicle maintained exclusively by a Governmental Authority.
"Foreign Plan Event" means, with respect to any Foreign Plan:
"Form of Advance Request" has the meaning given to such term in Section 2.03(a) (Advance Requests).
"Form of O&M Budget" means the form of O&M Budget set out in Exhibit R (Form of O&M Budget).
"Funds Withdrawal/Transfer Certificate" has the meaning given to such term in the Accounts Agreement.
"GAAP" means generally accepted accounting principles in the United States as in effect from time to time.
"Governmental Approval" means any approval, consent, authorization, license, permit, order, certificate, qualification, waiver, exemption, or variance, or any other action of a similar nature, of or by a Governmental Authority, including any of the foregoing that are or may be deemed given or withheld by failure to act within a specified time period.
"Governmental Authority" means any federal, state, county, municipal, or regional authority, or any other entity of a similar nature, exercising any executive, legislative, judicial, regulatory, or administrative function of government.
"Governmental Judgment" means, with respect to any Person, any judgment, order, decision or decree, or any action of a similar nature, of or by a Governmental Authority having jurisdiction over such Person or any of its properties.
"Guarantee" means, as to any Person, obligations, contingent or otherwise (including a Contingent Obligation), guaranteeing or having the economic effect of guaranteeing any Indebtedness of another Person in any manner, whether directly or indirectly, and including any obligation:
except that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course of Business.
"Guaranteed Loan" has the meaning given to such term in Section 2.01 (Guaranteed Loan Purchase of the FFB Notes).
"Hazardous Substance" means any substances, chemicals, materials or wastes defined, listed, classified or regulated as hazardous, toxic or a pollutant or contaminant in, or for which standards are imposed by any Governmental Authority or under, any applicable Environmental Laws, including (a) any petroleum or petroleum by-products (including gasoline, crude oil or any fraction thereof), flammable explosives, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, per- and polyfluoroalkyl substances, and polychlorinated biphenyls, noise, odor, and vibration; and (b) any other chemical, material or substance of which the import, storage, transport, use, Release, or disposal of, or exposure to, is prohibited, limited or otherwise regulated under any Environmental Law.
"Hedging Agreement" means any agreement or instrument (including a cap, swap, collar, option, forward purchase agreement or other similar derivative instrument) relating to the hedging of any interest under any Indebtedness, including any foreign currency trading or other speculative transactions.
"Historical Debt Service Coverage Ratio" means, as of any Calculation Date, the ratio of (a) actual Cash Flow Available for Debt Service for the immediately preceding twelve (12) month period, to (b) aggregate Debt Service payable during such period.
"Historical Financial Statements" means as of the Execution Date, with respect to:
"IFRS" means the International Financial Reporting Standards, adopted by the International Accounting Standards Board, as in effect from time to time.
"Indebtedness" means, with respect to any Person, without duplication:
provided, that the Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor, and provided further, that for the avoidance of doubt, “Indebtedness” does not include any obligations in respect of any preferred stock in the Direct Parent outstanding on the Execution Date;
provided further, that, for the avoidance of doubt, the WP Preferred Interest shall not be considered Indebtedness.
"Indebtedness for Borrowed Money" means, as to any Person, without duplication, (a) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services (other than any deferral (i) in connection with the provision of credit in the Ordinary Course of Business by any trade creditor or utility, or (ii) of any amounts payable under the Project Documents); or (b) the aggregate amount required to be capitalized under any Capital Lease under which such Person is the lessee.
"Indemnified Liability" has the meaning given to such term in Section 11.07 (Indemnification).
"Indemnified Party" has the meaning given to such term in Section 11.07 (Indemnification).
"Indemnity Claims" has the meaning given to such term in Section 11.07 (Indemnification).
"Independent Auditor" means has the meaning given to such term in Section 5.01(y)(i) (Authorization to Borrower's Accountant).
"Independent Engineer" means ▇▇▇▇▇▇▇▇▇, or such other Person appointed from time to time by DOE to act as technical advisor engineer in connection with the Project.
"Ineligible Project Costs" means Project Costs that do not constitute Eligible Project Costs. For the avoidance of doubt, Ineligible Project Costs shall include those costs set forth in Section 609.10(d) of the Applicable Regulations.
"Insolvency Proceeding" means any one or more of the following under any Applicable Law, in any jurisdiction and whether voluntary or involuntary:
"Insurance Consultant" means WTW, or such other Person appointed from time to time by DOE to act as insurance consultant in connection with the Project.
“Integrated Schedule and Spending Plan” has the meaning given to such term in Section 5.01(h)(2) (Project Milestone Schedule; Integrated Schedule and Spending Plan).
"Intellectual Property" means any and all rights, priorities and privileges with respect to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including any and all of the following, as they exist anywhere in the world, whether registered or unregistered and including all registrations, issuances and applications therefor (whether or not any such applications are modified, withdrawn, abandoned or resubmitted) and all extensions and renewals thereof:
"Intended Prepayment Date" means the date identified in the Prepayment Election Notice as the particular date on which the Borrower intends to make the prepayment specified therein, which date must be a Business Day and shall not be on a Payment Date or the last day of any Fiscal Quarter.
“Intercreditor Agreement” means an Intercreditor Agreement substantially in the form attached hereto as Exhibit S (Form of Intercreditor Agreement).
"Interest Expense" means, for any period, total interest expense (including that attributable to Capital Leases) net of total interest income of the Borrower on a consolidated basis for such period with respect to all outstanding Indebtedness of the Borrower (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Hedging Agreements in respect of interest rates to the extent that such net costs are allocable to such period).
"International Compliance Directives" means all:
"Investment" means, for any Person:
"Investment Company Act" means the United States Investment Company Act of 1940.
"IP Collateral" means all (a) existing and after-acquired rights, title and interests of the Borrower in or to the Intellectual Property, including all of the Borrower’s rights, title and interests in or to the Project IP, the Project IP Agreements and other licensing agreements or similar arrangements in and to Patents, Copyrights, Trademarks, Trade Secrets or Software; (b) rights to sue or otherwise recover for past, present and future infringements or other violations of the foregoing; and (c) income, royalties, damages, claims,
and payments now or hereafter due or payable under and with respect to any of the foregoing, including damages and payments for such infringements and other violations.
"IP Security Agreement" means:
"Issuance Proceeds" means any proceeds from (a) any incurrence or issuance of any Indebtedness (other than Permitted Indebtedness); and (b) any issuance or granting of Equity Interests of the Borrower (except as expressly contemplated by the Sponsor Support Agreement).
"IT Systems" has the meaning given to such term in Section 6.40 (Information Technology; Cyber Security).
"Judgment Currency" has the meaning given to such term in Section 11.06 (Judgment Currency).
"Justice40 Initiative Guidance" means that certain General Guidance for Justice40 Implementation by DOE to the Justice40 Initiative established pursuant to Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, issued on January 27, 2021, as amended, modified or supplemented from time to time.
"Knowledge" means, with respect to:
"KYC Parties" has the meaning given to such term in Section 5.01(b)(ii) (KYC Requirements).
"Late Charge" has the meaning given to such term in the FFB Note.
"Late Charge Rate" has the meaning given to such term in the FFB Note.
"Lease" means any agreement that would be characterized in the Designated Standards as an operating lease.
“Leasehold Mortgage” has the meaning given to such term in Section 5.03(w)(ii) (Real Estate).
“Leasehold Policy” has the meaning given to such term in Section 5.03(w)(v) (Real Estate).
"Lender Force Majeure Event" means any act, event or circumstance that is beyond the control of any Secured Party or such party's respective agents, including any act or provision of any present or future law or regulation of any Governmental Authority (other than FFB or DOE, unless DOE or FFB, as
the case may be, is issuing such regulation in compliance with Applicable Law), any act of God, fire, flood, severe weather, epidemic, quarantine restriction, explosion, sabotage, strike or other material labor disruption, act of war, act of terrorism, riot, civil commotion, lapse of the statutory authority of the United States Department of the Treasury to raise cash through the issuance of Treasury debt instruments, the unavailability of the Federal Reserve Bank wire, disruption or failure of the Treasury Financial Communications System or facsimile or other wire or communication facility, closure of the federal government, unforeseen or unscheduled closure or evacuation of such Secured Party's office or any other similar event.
"Lien" means, with respect to any asset:
"Loan Commitment Amount" means, as the context requires, the amount of the Guaranteed Loan committed under the FFB Note, as such amount may be reduced or cancelled from time to time in accordance with this Agreement.
“Loan Guarantee” has the meaning given to such term in the preliminary statements.
"Loan Servicer" means the United States Department of Energy.
"Loss Account" has the meaning given to such term in the Accounts Agreement.
"Loss Proceeds" means all proceeds (other than any proceeds of business interruption insurance and proceeds covering liability of the Borrower to third parties) resulting from an Event of Loss.
"Loss Proceeds Account" has the meaning given to such term in the Accounts Agreement.
"Maintenance Fee" means (A) an initial maintenance fee payable on the Execution Date of four hundred eighty-seven thousand six hundred seventy-one Dollars and twenty-three cents ($487,671.23) and (B) an annual maintenance fee equal to five hundred thousand Dollars ($500,000) per year, to be paid by the Borrower to DOE in accordance with Section 4.01(b) (Reimbursement and Other Payment Obligations).
“Major Construction Contract” means each agreement listed on Part A of Schedule 5.01(d)(ii)-2 (Major Project Documents; Specified Major Project Participant; Feedstock Supplier) underneath the heading “Major Construction Contract”.
“Major Engineering Contract” means each agreement listed on Part A of Schedule 5.01(d)(ii)-2 (Major Project Documents; Specified Major Project Participant; Feedstock Supplier) underneath the heading “Major Engineering Contract”.
“Major Feedstock Supply Agreement” means each agreement listed on Part A of Schedule 5.01(d)(ii)-2 (Major Project Documents; Specified Major Project Participant; Feedstock Supplier) underneath the heading “Major Feedstock Supply Agreement”.
"Major Maintenance Plan" means a plan setting out the Borrower's strategy and approach for major maintenance for the Project delivered to DOE as of the Execution Date, as such plan is updated by the Borrower from time to time in accordance with this Agreement.
“Major Procurement Contract” means each agreement listed on Part A of Schedule 5.01(d)(ii)-2 (Major Project Documents; Specified Major Project Participant; Feedstock Supplier) underneath the heading “Major Procurement Contract”.
"Major Project Document" means each of:
"Major Project Participants" means each party (other than the Borrower) to any Major Project Document.
"Mandatory Prepayment Amounts" has the meaning given to such term in Section 3.05(c)(i) (Mandatory Prepayments).
"Mandatory Prepayment Event" has the meaning given to such term in Section 3.05(c)(i) (Mandatory Prepayments).
"Mandatory Prepayment" means the prepayment of the outstanding Guaranteed Loans, in whole or in part, pursuant to Section 3.05(c) (Mandatory Prepayments).
"Market Consultant" means Argus Media Inc., or such other Person appointed from time to time by DOE to act as market insurance consultant in connection with the Project.
"Material Adverse Effect" means, as determined by DOE as of any date, a material and adverse effect on:
“Maturity Date” means the earlier of (a) December 31, 2039 and (b) such earlier date on which the entire outstanding principal balance of the Guaranteed Loan, together with all unpaid interest, fees, charges and costs, become due and payable under this Agreement.
"Maximum Capitalized Interest Amount" has the meaning given to such term in the FFB Note.
"Maximum Guaranteed Loan Amount" has the meaning given to such term in Section 2.01 (Guaranteed Loan Purchase of the FFB Notes).
"Maximum Principal Amount" means the amount set forth under the heading "Maximum Principal Amount" on the FFB Note.
"Maximum Tranche Amount" means with respect to:
as such amounts may be adjusted pursuant to Section 2.07 (Determination of Advance Amounts).
"Mechanic’s Lien" means the Lien set forth on Part A of Schedule 5.03(t) (Mechanic’s Lien).
"Mechanical Completion" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
“Mitigation Action Plan” has the meaning given to it in Appendix C of the Environmental Assessment signed and published on December 16, 2024.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means the Leasehold and Easement Construction Mortgage with Power of Sale, Assignment of Leases and Rents, Security Agreement and Fixture Filing by the Borrower in favor of the Collateral Agent on behalf the Secured Parties.
“MRH LLC Agreement” means that certain third amended and restated limited liability company agreement of Montana Renewables Holdings, LLC, dated as of August 5, 2022 (as amended, amended and restated, supplemented or modified from time to time).
“MSA” means that certain Master Services Agreement dated as of November 18, 2021 between Borrower and Calumet Montana Refining, LLC.
"Multiemployer Plan" means a "multiemployer plan" (within the meaning of Section 3(37) of ERISA) that is subject to Title IV of ERISA which any Borrower Entity or ERISA Affiliate contributes to or participates in, or with respect to which any Borrower Entity or ERISA Affiliate has or in the past has had any liability or other obligation (whether accrued, absolute, contingent or otherwise).
"NEPA" means the National Environmental Policy Act, 42 U.S.C. 4321 et seq. and all regulations and publicly available determinations promulgated thereunder, as either amended or modified from time to time.
"Net Amount" means, with respect to any proceeds received by the Borrower, the total amount of such proceeds minus (a) any Taxes paid or payable in connection with such proceeds; and (b) any external legal fees and filing fees incurred to obtain such proceeds (and excluding any amount paid or payable to any Affiliate of the Borrower).
"Net Income" means, for any period, the net income (or loss) of the Borrower; as determined in accordance with Designated Standard.
"Non-Appealable" means, with respect to any Required Approval, unless otherwise agreed by DOE, (a) such Required Approval is free from unduly burdensome conditions and is not subject to any pending or threatened claim, action, appeal, intervention or similar proceeding or any unsatisfied condition which may result in modification, suspension, termination or revocation, and (b) all applicable appeal periods have expired (except for any Required Approval which does not have any limit on an appeal period under Applicable Law).
"O&M Budget" means, initially, the O&M budget delivered in connection with the Execution Date, and thereafter for any Fiscal Year, the current monthly O&M budget delivered and approved pursuant to Section 7.27 (Operating Plan; Operations) and substantially in the form of the Form of O&M Budget and in each case, which shall include the Operating Forecast and the Operating Plan for the relevant period.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Officer's Certificate" has the meaning given to such term in Section 5.01(f) (Organizational Documents) and Exhibit C (Form of Officer’s Certificate).
"Offtake Contracts" means each sale, distribution, prepayment or offtake agreement for the Products entered into by the Borrower or any Sponsor (and assigned to the Borrower) and the relevant offtaker/purchaser in accordance with the Offtake Plan.
"Offtake Plan" means a plan setting out the Borrower’s strategy for offtake sales and contracting for the Project, as such plan is updated by the Borrower from time to time in accordance with this Agreement.
“Offtaker” means each counterparty to an Offtake Contract including each counterparty that will purchase output of the Project.
"OMB" means the Office of Management and Budget of the Executive Office of the President of the United States.
"Omnibus Annual Report" means has the meaning given to such term in Section 8.02(a) (Annual Reports).
"Operating Costs" means for any period with respect to which such Operating Costs are being calculated, all amounts paid (or projected to be paid) by the Borrower for the administration, management and operation and maintenance of the Project.
"Operating Forecast" means a periodic forecast prepared by the Borrower (on an annual and month-by-month basis) in connection with the operation of the Project and which shall:
"Operating Plan" means the periodic operating plan for the Project prepared by the Borrower in connection with the operation of the Project and included in the O&M Budget, and that shall:
"Operating Revenues" means all cash receipts (or projected receipts) of the Borrower deposited in the Project Accounts, including revenues from:
provided, that, Operating Revenues shall not include proceeds (i) from casualty and Event of Loss insurance; or (ii) that are subject to a Mandatory Prepayment pursuant to Section 3.05(c) (Mandatory Prepayments).
"Opinion of ▇▇▇▇▇▇▇▇'s Counsel re: Borrower Instruments" has the meaning given to such term in the FFB Note Purchase Agreement.
"Ordinary Course of Business" means, in respect of any transaction involving any Person, the ordinary course of such Person’s business, as conducted by any such Person in accordance with past practice (or as contemplated by such Person’s business plan) and undertaken by such Person in good faith and not for purposes of evading any covenant or restriction in any Financing Document.
"Organizational Documents" means, with respect to:
"Original Base Case Financial Model" means the Base Case Financial Model delivered by the Borrower, and approved by DOE, in connection with the Term Sheet.
"Overdue Amount" means any amount owing under the FFB Note that is not paid when and as due. For the avoidance of any doubt, no interest payment prior to the First Interest Payment Date constitutes an “Overdue Amount”.
"Passive Sponsor" means any Sponsor that both (i) owns less than 20% of the equity interest in the Borrower, directly or indirectly and (ii) does not provide the Phase 2 Equity Instrument or other guarantee of the obligations of the Borrower.
"Patents" means any and all (a) patents, certificates of invention, and other patent or similar industrial property rights, all registrations and recordings thereof, and all applications for patents of the United States or any other jurisdiction, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any foreign equivalent office; (b) reissues, reexaminations, continuations, divisionals, continuations-in-part, renewals, interferences or extensions thereof, and the inventions or designs disclosed or claimed therein (including the right to make, use, offer to sell, sell and/or import such inventions or designs); and (c) other patents as set out in Schedule A of the IP Security Agreement.
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. 107-56).
"Payment Date" means each March 31, June 30, September 30, and December 31, or, in each case, if such day is not a Business Day, the next Business Day.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means an “employee benefit plan” (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan that is or was:
"Performance Testing" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Performance Testing Plan" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Permitted Capital Expenditures" means:
"Permitted Contest Conditions" means a contest, pursued in good faith, challenging the enforceability, validity, interpretation, amount or application of any Applicable Law, Contest Claim, or other matter (legal, contractual or other) by appropriate proceedings timely instituted if (a) the applicable Borrower Entity diligently pursues such contest; (b) the applicable Borrower Entity establishes adequate reserves with respect to the contested claim to the extent required by the Designated Standard; and (c) such contest (i) could not reasonably be expected to have a Material Adverse Effect; (ii) does not involve any
material risk or danger of any criminal or unindemnified civil liability being incurred by any Secured Party; and (iii) does not involve the risk of foreclosure, sale, forfeiture or loss of, or imposition of a Lien (other than a Permitted Lien) on the Project, the Project Site or any other Collateral or the impairment of the use, operation or maintenance of the Project, the Project Site.
“Permitted Credit Facility” means (i) until First Advance under Tranche 1, the Existing Credit Facility and (ii) on and following the date of the first Advance under Tranche 1, a credit facility in form and substance acceptable to DOE with an aggregate amount of not more than $250,000,000 whose lenders have executed the intercreditor agreement attached hereto as Exhibit S (Form of Intercreditor Agreement).
"Permitted Disposition" means:
provided, that in each case: (A) such Dispositions are valued at not more than one million Dollars ($1,000,000) on an individual basis or five million Dollars ($5,000,000) on an aggregate basis in any twelve (12) month period; (B) the Borrower has received consideration in an amount equal to the value that would have been obtained in an arm's length transaction with an unaffiliated third party (unless such assets have only scrap value); and (C) the proceeds thereof are applied in accordance with Section 3.05(c)(i)(E) (Mandatory Prepayments); and
"Permitted Indebtedness" means:
"Permitted Investments" means any of the following, to the extent owned by the Borrower free and clear of all Liens (other than Liens created under the Security Documents):
"Permitted Leases" means leases of office space, office equipment or motor vehicles with respect to which the aggregate lease payments do not exceed one million Dollars ($1,000,000) per Fiscal Year.
"Permitted Liens" means:
provided, that, notwithstanding the foregoing, Permitted Liens shall not include any Lien on any Equity Interests of the Borrower (other than any Lien in favor of the Secured Parties).
"Permitted Subordinated Loans" means any subordinated loans made by, or on behalf of, the Sponsor to the Borrower in lieu of purchasing Equity Interests, on the terms and conditions set forth in the Sponsor Support Agreement.
“Permitted Tax Distribution” means with respect to any taxable period for which the Borrower is a flow through entity or a member of a consolidated, combined, unitary or similar income tax group for U.S. federal and/or applicable state and local tax purposes, distributions by the Borrower in the aggregate amount required to permit each direct or indirect equity holder (or its beneficial owners) of the Borrower to pay income taxes attributable to its direct or indirect ownership of the Borrower with respect to such taxable period; provided that such amount for any taxable period shall be determined hypothetically based on the product of (i) the Borrower’s net taxable income for such taxable period, multiplied by (ii) the highest effective combined U.S. federal, state and local income tax rate applicable to such equity holder, and provided further, that for the avoidance of any doubt, “Permitted Tax Distribution” shall include any payments or obligations required under the LLC Agreement of Direct Parent.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, trust company, unincorporated organization or Governmental Authority.
"Personal Information" means any data or information that is subject to (a) Data Protection Laws; or (b) any contractual obligations, or privacy notices or policies, binding on the Borrower relating to the Processing of any data or information that identifies or can be used to identify an individual, household or device, whether directly or indirectly.
“Phase 1” has the meaning given to such term in the preamble hereto.
“Phase 1 Project Site” means the Real Property on which Phase 1 is situated, as further described in Schedule 6.15-1 (Phase 1 Project Site).
"Phase 1 Required Approvals Schedules" means the Required Approvals Schedule related to the development, engineering, procurement, construction, completion, ownership, operation and maintenance of Phase 1.
"Phase 2" has the meaning given to such term in the preamble hereto.
"Phase 2 Equity Cap" has the meaning ascribed to such term in Section 5.04(cc)(ii).
"Phase 2 Equity Instrument" has the meaning ascribed to such term in Section 5.04(cc)(ii).
"Phase 2 Required Approvals Schedules" means the Required Approvals Schedule related to the development, engineering, procurement, construction, completion, ownership, operation and maintenance of Phase 2.
"Phase I or Phase II Environmental Assessment" means that certain Phase I or II Environmental Site Assessment for the Project Site dated not more than six (6) months prior to the Execution Date and satisfactory to DOE. Standards for Phase I and II Environmental Site Assessments are published by the American Society for Testing and Materials (ASTM) to include (a) ASTM E1527-21, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process; and (b) ASTM E1903-19, Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process.
"Physical Completion" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Physical Completion Date" means the date on which all such conditions precedent to Physical Completion of Phase 2 have been met and confirmed by ▇▇▇..
"Physical Completion Date Certificate" means a certificate executed by a Responsible Officer of the Borrower, substantially in the form attached as Exhibit T (Form of Physical Completion Date Certificate) hereto and otherwise in form and substance satisfactory to DOE.
"Physical Completion Longstop Date" means October 31, 2029.
"Post-Petition Interest" means all interest (or entitlement to fees or expenses or other charges) accruing or that would have accrued after the commencement of any Insolvency Proceeding, irrespective of whether a claim for post-filing or petition interest (or entitlement to fees or expenses or other charges) is allowed in any such Insolvency Proceeding.
"Practice" means to practice Intellectual Property in any way, including to use, reproduce, distribute, modify, improve, make, display, perform, create derivative works of, access and utilize.
"Prepayment Election Notice" has the meaning given to such term in the FFB Note.
"Prepayment Price" has the meaning given to such term in the FFB Note.
"Principal Instruments" means each of the documents or instruments required to be delivered by the Secretary of Energy pursuant to Section 4.2 of the FFB Note Purchase Agreement.
"Principal Persons" means any executive officer, director, or other Person with primary management or supervisory responsibilities with respect to any Borrower Entity or other Major Project Participant.
"Process" means any operation or set of operations that are performed on data or on sets of data, whether or not by automated means, including creation, receipt, maintenance, access, acquisition, use, disclosure, transmission, storage, retention, processing, destruction, modification or transfer (including cross-border transfer), and the words "Processing" and similar constructions shall have corresponding meanings.
"Product" means sustainable aviation fuel and renewable naphtha.
“Proforma” has the meaning given to such term in Section 5.03(u)(ii).
"Program Financing Agreement" means the Program Financing Agreement, dated as of September 16, 2009, and amended from time to time, between FFB and the Secretary of Energy.
"Program Requirements" means all of the following:
"Prohibited Jurisdiction" means any jurisdiction that:
"Prohibited Person" means any Person:
"Project" has the meaning given to such term in the preamble.
"Project Accounts" has the meaning given to such term in the Accounts Agreement.
"Project Completion" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Project Completion Date" means the date on which all requirements for Commercial Operations Date, Reliability Testing, and Project Completion for Phase 2 have been met and confirmed by DOE.
"Project Completion Date Base Case Financial Model" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Project Completion Date Certificate" means a certificate executed by a Responsible Officer of the Borrower, substantially in the form attached as Exhibit U (Form of Project Completion Date Certificate) hereto and otherwise in form and substance satisfactory to DOE.
"Project Completion Guarantee" has the meaning given to such term in the Sponsor Support Agreement.
"Project Completion Longstop Date" means October 31, 2030.
"Project Construction" means the financing acquisition, permitting, development, design, engineering, procurement, construction, construction management, testing, start up and commissioning of the Project from commencement of the Project by the Borrower through the Substantial Completion Date.
"Project Costs" means all costs incurred or are expected to be incurred in connection with Project Construction through the Substantial Completion Date, including:
but excluding (i) any Operating Costs and any Capital Expenditures for incurred after the Commercial Operation Date; and (ii) any costs related to technical product development, marketing, product qualification with potential customers, customer development and engagement with respect to the Product.
“Project Document” means each agreement necessary or appropriate for the design, engineering, procurement, development, construction, management, startup and commissioning, ownership, operation and maintenance of the Project, including each Additional Project Document and each agreement listed on Schedule 5.01(d)(ii)-1 (Project Documents).
"Project IP" means all Intellectual Property that at any relevant time is (a) used in, material or necessary for the development, design, engineering, procurement, construction, starting up, commissioning,
ownership, operation or maintenance of the Project, (b) necessary to complete the activities designated to be completed to achieve Project Completion; or (c) necessary to exercise the Borrower’s rights and perform its obligations under the Major Project Documents, as applicable, at the relevant time, but excluding any Software that: (i) has not been modified or customized for the Borrower; (ii) is readily commercially available; and (iii) is licensed under standard terms and conditions.
"Project IP Agreement" means each agreement granting or document evidencing the Borrower’s exclusive ownership of or rights to use all Project IP (including assignment agreements) or rights to use Project IP.
"Project Milestone" has the meaning given to such term in Section 5.01(j) (Project Milestone Schedule).
"Project Milestone Schedule" has the meaning given to such term in Section 5.01(j) (Project Milestone Schedule).
"Project Participant" means any party to any Project Document or any party to a Financing Document other than the Secured Parties.
“Project Ground Lease” means a lease by and between CMR and the Borrower, granting to the Borrower leasehold and easement interests, or irrevocable options to obtain such leasehold and easement interests, in the Project Site
"Project Site" means the Real Property on which the Project is or is intended to be situated, as further described in Schedule 6.15-2 (Project Site).
"Project Source Code" means Source Code that constitutes Project IP owned by, or (subject to the applicable third party license terms) licensed to, any Borrower Entity and included in the Collateral.
"Projected Debt Service Coverage Ratio" means, as of any date of determination, the ratio of (a) Cash Flow Available for Debt Service for the next succeeding twelve (12) month period to (b) aggregate Debt Service scheduled for such period, in each case based on amounts projected in the Base Case Financial Model, as adjusted for actual interest rates and any factors known as of the date of determination as agreed between the Borrower and DOE.
"Property" means any present or future right or interest in, to or under any assets, equipment, facilities, contracts, leaseholds, business, receivables, revenues, accounts, or other property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible(including Intellectual Property).
"Prudent Industry Practice" means those practices, methods, equipment, specifications, and standards of safety and performance, as are commonly accepted in the oil and gas refining industry as good, safe, prudent and commercial practices in connection with the design, construction, operation, maintenance, repair and use of the Project.
"Publicly Traded Company" means a corporation (a) listed on a major stock exchange; and (b) at least fifty percent (50%) of whose Equity Interests are Publicly Traded Securities.
"Publicly Traded Securities" means Equity Interests that are traded on a major stock exchange.
"Punch List Items" means items listed on the construction punch list that are certified in writing by the Borrower and agreed by ▇▇▇ (in consultation with the Independent Engineer).
"Qualified Investment Fund" has the meaning given to such term in the Sponsor Support Agreement.
"Qualified Plan" means an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is intended to be tax-qualified under Section 401(a) of the Code and which is or at any time was maintained or sponsored by any Borrower Entity or ERISA Affiliate or to which any Borrower Entity or ERISA Affiliate has ever made, or been obligated to make, contributions or with respect to which any Borrower Entity or ERISA Affiliate has incurred or is likely to incur any liability or obligation.
"Qualified Public Company Shareholder" has the meaning given to such term in the Sponsor Support Agreement.
"Quality Control Plan" means the document to be provided by the Borrower in form and substance reasonably satisfactory to DOE (in consultation with the Independent Engineer) and designated as the "Quality Control Plan" which:
"Quarterly Certificate" has the meaning given to such term in Section 8.02(b) (Quarterly Certificate).
"Quarterly Reporting Date" has the meaning given to such term in Section 8.02(b) (Quarterly Certificate).
"Real Property" means, with respect to any Person, all right, title and interest of such Person in and to any and all parcels of real property owned, leased or encumbered by such Person, together with all improvements and appurtenant fixtures, equipment, easements and other real property and rights incidental to the ownership, lease or operation thereof, including the Project Site.
"Real Property Document" means each of:
"Reimbursement Amounts" has the meaning given to such term in Section 4.01(c)(i) (Reimbursement and Other Payment Obligations).
"Release" means, with respect to Hazardous Substances, any disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping, emptying, seeping, placing, or migrating into, through or upon the natural or man-made environment (including any land, water or air and the abandonment or discarding of barrels, containers, and other closed receptacles containing Hazardous Substances), and "Released" shall have a corresponding meaning.
"Release Date" means the date on which all of the Secured Obligations (other than inchoate indemnity obligations) have been paid in full and the Loan Commitment Amount has been reduced to zero Dollars ($0).
"Relevant Tranche" means, with respect to:
"Reliability Testing Plan" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Requested Advance Date" means, for any Advance Request, the date requested by the Borrower for FFB to make an Advance under the FFB Note.
"Required Approvals" means all Governmental Approvals and other environmental, regulatory, construction consents, permits and approvals of third parties necessary or required under Applicable Law or any contractual obligation for:
"Required Approvals Schedules" means the schedule attached hereto as Schedule 5.01(t) (Required Approvals), as updated or otherwise supplemented pursuant to Sections 5.01(u), 5.02(o), 5.03(k) and 5.04(o).
"Required Insurance" means each of the contracts of insurance taken out or maintained (or required to be taken out or maintained) in accordance with Schedule 7.03 (Required Insurance).
"Reserve Accounts" has the meaning given to such term in the Accounts Agreement.
"Responsible Officer" means:
"Restricted Payment Account" has the meaning given to such term in the Accounts Agreement.
"Restricted Payment Conditions" has the meaning given to such term in Section 9.04 (Restricted Payments).
"Restricted Payment Date" has the meaning given to such term in the Accounts Agreement.
"Restricted Payment Suspense Account" has the meaning given to such term in the Accounts Agreement.
"Restricted Payments" has the meaning given to such term in Section 9.04 (Restricted Payments).
"Revenue Account" has the meaning given to such term in the Accounts Agreement."
"SAF" has the meaning given to such term in the preamble hereto.
"▇▇▇" means the System for Award Management electronic database administered by the United States General Services Administration, found at ▇▇▇.▇▇▇.▇▇▇.
"Safety Audit" means a safety audit of the Project in a manner satisfactory to DOE that focuses on compliance with the regulations implementing the Occupational Safety and Health Act, and addresses the following general occupational safety and health compliance items: management commitment and employee involvement; worksite analysis; hazard prevention and control; training for employees, supervisors, and managers; incident reporting and information posting.
"Safety Report" means a written report, in form satisfactory to DOE, with respect to an annual Safety Audit that sets forth: (i) any deficiencies identified as a result of such Safety Audit; (ii) any recommendations for the operation and maintenance of the Project; (iii) compliance with the regulations implementing the Occupational Safety and Health Act; and (iv) any other items reasonably requested by DOE.
“Sales and Marketing Plan” has the meaning given to such term in Section 8.02(a)(i)(D) (Annual Reports) and Schedule 8.02(a) (Sales and Marketing Plan) .
"Sanctions" means the economic, financial, and trade sanctions laws and export controls, Applicable Laws, regulations, embargoes or restrictive measures administered or enforced by: (a) the United States government, including OFAC, and the U.S. Department of State, and the U.S. Department of Commerce; (b) the United Kingdom; (c) the European Union; (d) the United Nations; and (e) any multilateral economic or trade sanctions in which the United States participates.
"Secretary of Energy" means as of any date, the then-current secretary of the U.S. Department of Energy or, in their absence, the person discharging their duties or exercising their prerogatives in accordance with applicable law.
"Secretary of Labor" means as of any date, the then-current secretary of the U.S. Department of Labor or, in their absence, the person discharging their duties or exercising their prerogatives in accordance with applicable law.
"Secretary of Treasury" means as of any date, the then-current secretary of the U.S. Department of Treasury or, in their absence, the person discharging their duties or exercising their prerogatives in accordance with applicable law.
"Secretary's Instruments" has the meaning given to such term in the FFB Note Purchase Agreement.
"Secured Obligations" means, at any time, all FFB Note Obligations and all other amounts owed to DOE or any other Secured Party under the Financing Documents, including accrued interest thereon, fees, Secured Party Expenses, Agent Fees, penalties and indemnity obligations.
"Secured Parties' License" means the right for the Secured Parties to use and otherwise Practice and to assign or sublicense, in each case, for no additional consideration, the Borrower's rights in and to Project IP under a Project IP Agreement (effective as of the Execution Date or, if acquired later, upon such acquisition date, but enforceable: (a) during the continuance of an Event of Default; (b) upon an
enforcement and transfer of ownership in the Borrower; or (c) upon any bankruptcy or insolvency action involving the Borrower).
"Secured Party" means each of:
"Secured Party Advisor" means each of:
"Secured Party Expenses" means any out-of-pocket costs, expenses and other amounts paid or incurred by any Secured Party from time to time in connection with the due diligence of the Borrower, the other Borrower Entities or the Project and the preparation, execution, recording and performance of this Agreement, the other Transaction Documents and any other documents and instruments related to this Agreement or thereto (including legal opinions), including any of the following:
"Security Agreement" means the Pledge and Security Agreement entered into as of the First Advance Date under Tranche 1 between the Borrower in favor of the Collateral Agent for the benefit of the Secured Parties.
"Security Document" means each of:
"Sensitive Information" means (a) any information that is subject to Data Protection Laws; (b) any Trade Secrets or other information in which the Borrower Entities have confidential Intellectual Property rights (including any relevant Project IP owned by the Borrower Entities); and (c) any information with respect to which the Borrower Entities have contractual non-disclosure obligations.
"Share Capital" means shall mean, with respect to any Person, any and all shares, interests, quotas, participations or ownership or partnership interests or rights in or other equivalents of or in (however designated, whether voting or non-voting, ordinary or preferred) the equity or capital of such Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any thereof.
"Similar Law Plan" has the meaning given to such term in Section 6.27 (ERISA).
“Site Map” has the meaning given to such term in Section 5.03(u)(i).
"Software" means any and all (a) computer programs and software implementations of algorithms, models and methodologies, in each case, whether in source code, object code or any other form; (b) descriptions, flow charts and other work product used to design, plan, organize and develop any of the foregoing, firmware, development tools, configurations, interfaces, platforms and applications; (c) data, databases and compilations, and (d) documentation supporting or related to any of the foregoing (including training materials). Software shall include “software” as such term is defined in the UCC and computer
programs that may be construed as included in the definition of “goods” in the UCC, including any licensed rights to Software, and all media that may contain Software or recorded data of any kind.
“Specified AMPPs” means Direct Parent, Warburg Pincus, MRH Inc., CMR and Calumet Parent.
“Specified Major Project Participant” means:
"Source Code" means, with respect to any Software, the human-readable form of such Software.
"Sponsor" means Calumet Parent; Warburg Pincus and any Additional Sponsor .
"Sponsor Support Agreement" means the sponsor support, share retention and subordination agreement, dated as of the Execution Date, entered into by and among the Sponsors, the Direct Parent and DOE.
"Standard & Poor's" or "S&P" means S&P Global Ratings, a division of S&P Global Inc.
“Subleasehold Mortgage” has the meaning given to such term in Section 5.04(q)(B)(2).
“Subleasehold Policy” has the meaning given to such term in Section 5.04(q)(B)(4).
"Subordination Agreement" means the subordination agreement, if any, entered into, or to be entered into, between the Borrower, the Direct Parent, the Sponsors and DOE (or any agent satisfactory to DOE acting on its behalf), which shall be entered into only if required by DOE and then in form and substance satisfactory to DOE.
"Subsidiary" means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity the accounts of which would be consolidated with those of such Person in such Person's consolidated financial statements if such financial statements were prepared in accordance with the Designated Standard as of such date, as well as any other corporation, partnership, limited liability company, association, joint venture or other business entity of which more than fifty percent (50%) of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.
"Substantial Completion" has the meaning given to such term in Schedule 5.01(j) (Project Milestone Schedule).
"Substantial Completion Date" means the date on which all requirements for Mechanical Completion, Performance Testing, and Substantial Completion have been met and confirmed by DOE.
"Tax Certificate" has the meaning given to such term in Section 5.01(g)(ii) (Execution Date Certificates).
"Taxes" means all taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest, penalties or additions thereto imposed in respect thereof.
"Term Sheet" means the Summary Terms and Conditions for Guarantee applied for pursuant to Solicitation No. DE-SOL-0007154 and authorized under Title XVII, which is attached to the Conditional Commitment Letter., dated October 16, 2024.
"Threshold Event of Loss" has the meaning given to such term in Section 7.04(a) (Event of Loss).
"Title Company" means Fidelity National Title Insurance Company.
“Title XVII” has the meaning ascribed to such term in the preamble.
"Trade Secrets" has the meaning given to such term in the definition of "Intellectual Property".
"Trademarks" means any and all (a) trademarks, trade names, business names, trade styles, service marks, trade dress, designs, fictitious business names, logos and other source or business identifiers (in each case, whether registered or unregistered); (b) registrations and applications for registration in the United States Patent and Trademark Office or any similar offices in any State of the United States or any political subdivision thereof or any other jurisdiction, and recordations renewals and extensions thereof; and (c) other trademarks as set out in Schedule A of the IP Security Agreement, and in each case, together with all goodwill associated therewith and any other Trademarks as defined in the IP Security Agreement.
"Tranche" has the meaning given to such term in Section 2.01(b) (Guaranteed Loan Tranches).
"Tranche 1" means the Tranche to repay the Existing Credit Facilities and any other uses permitted under this Agreement.
"Tranche 2" means the Tranche to fund Phase 2.
"Transaction Document" means each Financing Document and each Project Document.
"Transmission Code" means the code delivered by DOE to each of the Authorized Transmitters of the Borrower.
"UCC" means the Uniform Commercial Code as adopted and in effect in the State of New York.
"Unfunded Pension Liabilities" means the excess of an Employee Benefit Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that plan's assets, determined in accordance with the assumptions used for funding the Employee Benefit Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Utility Contract" means a document evidencing the Borrower’s dedicated access to required infrastructure, including power, water and transportation infrastructure.
"Vendor Contract" means each contract pursuant to which Borrower procures equipment and technical services from third party vendors (excluding Construction Contracts) as required by Borrower to design, engineer, procure, startup, commission, operate and maintain the Project, including any grants of third party Intellectual Property therein or ancillary thereto that do not constitute Project IP Agreements.
“Warburg Pincus” has the meaning ascribed to such term in the preamble.
“WP Preferred Interest” means the class of Preferred Units owned by Warburg Pincus as defined in the MRH LLC Agreement as of the Execution Date.