Contract
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Exhibit 10.2 13585990v13 SUPPLY AND OFFTAKE AGREEMENT dated as of November 2, 0000 xxxxxxx XXXXXXXXX XXXXXX XXXXX XXXXXXX TRADING INC. and MONTANA RENEWABLES, LLC
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iv 13585990v13 Schedule Description Schedule N [Reserved] Schedule O [Reserved] Schedule P Permitted Feedstock; Macquarie Permitted Feedstock Procurement Contracts; Permitted Suppliers Schedule Q Form of Trade Sheet Schedule R Form of Step-Out Inventory Sales Agreement Schedule S Form of RD Refinery Production Volume Report Schedule T [Reserved] Schedule U Included Permitted Feedstock Pipelines and Included Renewable Product Pipelines Schedule Z Form of Target Monthly Permitted Feedstock and Renewable Product Forecast Schedule AA Form of Monthly Permitted Feedstock Forecast Schedule BB Form of Daily Environmental Attributes Report Schedule CC [Reserved] Schedule DD Form of Monthly Renewable Product Estimate
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1 13585990v13 SUPPLY AND OFFTAKE AGREEMENT This Supply and Offtake Agreement (this “Agreement”) is made as of November 2, 2022 (the “Effective Date”), between Macquarie Energy North America Trading Inc. (“Macquarie”), a Delaware corporation, located at 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000, and Montana Renewables, LLC (the “Company”), a Delaware limited liability company, located at 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (each referred to individually as a “Party” or collectively as the “Parties”). RECITALS: WHEREAS, the Company owns or leases and operates a certain Refinery located in Great Falls, Montana, which Refinery facilitates, or upon the Renewable Diesel Conversion is to facilitate, the processing and refining of various Permitted Feedstock for the production of Renewable Product and associated Environmental Attributes as such terms are defined below; WHEREAS, reference is made to the Stonebriar Sale and Leaseback Agreements defined below pursuant to which the Company sold to and leases back from Stonebriar Commercial Finance LLC, a Delaware limited liability company (“Stonebriar”), the Refinery; WHEREAS, reference is made to the Xxxxx Fargo Credit Agreement defined below pursuant to which the Company entered into a credit facility with Xxxxx Fargo Bank, National Association with respect to its accounts receivables; WHEREAS, the Company intends, for completion after the Effective Date, (a) to undertake the “MHC conversion to RDU”, which will convert the existing oversized Mild Hydrocracker (MHC) into a renewable diesel unit (RDU), (b) to convert the refining capacity and capabilities of the Refinery to process a mix of Permitted Feedstock to produce certain Renewable Product and (c) to undertake other associated works required for the operation of such Refinery as such (the “Renewable Diesel Conversion”, and the completed project, the “Renewable Diesel Project”); WHEREAS, reference is made to that certain Asset Purchase Agreement dated November 18, 2021 between Calumet Montana Refining, LLC, a Delaware limited liability company (“Calumet Montana”), as seller, and the Company, as buyer (together with all schedules, exhibits and annexes thereto, the “Sale Agreement”), pursuant to which Calumet Montana sold and the Company purchased such Refinery, as more particularly described therein; WHEREAS, reference is made to that certain Ground Lease dated November 18, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Montana Renewables Lease”) between Calumet Montana and the Company, pursuant to which Calumet Montana leases to the Company the land on which the Refinery is located; WHEREAS, reference is made to that certain Master Services Agreement dated as of November 18, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Montana Renewables Services Agreement”) between Calumet Montana and the Company, pursuant to which Calumet Montana, among other things, provides certain services to the
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3 13585990v13 “Accounts” has the meaning assigned to such term in the Uniform Commercial Code of the State of New York as in effect from time to time. “Acknowledgment Agreement” means the Acknowledgment Agreement dated as of the Effective Date by and among Macquarie, the Administrative Agent under the Xxxxx Fargo Credit Agreement and the Company, pursuant to which the parties thereto acknowledge the terms hereof and related matters. “Additional Financing Agreement” has the meaning specified in Section 18.2(j). “Additional Renewable Product Transaction” has the meaning specified in the Marketing and Sales Agreement. “Affected Obligations” has the meaning specified in Section 17.3. “Affected Party” has the meaning specified in Section 17.1. “Affiliate” means, in relation to any Person, any entity controlled, directly or indirectly, by such Person, any entity that controls, directly or indirectly, such Person, or any entity directly or indirectly under common control with such Person. For this purpose, “control” of any entity or Person means ownership of a majority of the issued shares or voting power or control in fact of the entity or Person. “Aggregate Monthly Renewable Product Sales Fee” has the meaning specified in Section 8.12. “Aggregate Permitted Feedstock Sale Receipt” means the sum of the actual aggregate purchase value paid to Macquarie for all quantities of Permitted Feedstock that Macquarie delivered during such period under Counterparty Permitted Feedstock Sales with third parties. “Aggregate Renewable Product Purchase Proceeds” means for any Renewable Product Group and relevant period, the sum of the actual aggregate purchase value paid by Macquarie for all quantities of such Renewable Product Group that Macquarie purchased during such period under Included Renewable Product Purchase Transactions with a Renewable Product Supplier. “Aggregate Renewable Product Sale Receipt” means for any Renewable Product Group and relevant period, the sum of the actual aggregate purchase values paid to Macquarie for all quantities of such Renewable Product Group that Macquarie delivered during such period under Included Sales Transactions with Customers. “Aggregate Third Party Permitted Feedstock Sale Receipt” means the sum of the actual aggregate purchase price paid to Macquarie for all quantities of Permitted Feedstock that Macquarie delivered during such period at the Permitted Feedstock Delivery Point to a third party at the direction of the Company. “Agreement” has the meaning specified in the introductory paragraph of this Agreement. “Ancillary Contract” has the meaning specified in Section 20.1(c).
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4 13585990v13 “Ancillary Costs” means, to the extent reasonably demonstrated by Macquarie by trade ticket, invoice or other supporting documentation, all freight, pipeline, transportation, storage, tariffs and other out of pocket costs and expenses incurred as a result of the purchase, movement and storage of Permitted Feedstock or Renewable Products undertaken in connection with or required for purposes of this Agreement (whether or not arising under Macquarie Permitted Feedstock Procurement Contracts and regardless of the point at which or terms upon which delivery is made under any such Macquarie Permitted Feedstock Procurement Contract), including, fees and expenses, broker’s and agent’s fees, pipeline transportation costs, pipeline transfer and pumpover fees, pipeline throughput and scheduling charges (including any fees and charges resulting from changes in nominations undertaken to satisfy delivery requirements under this Agreement), pipeline and other common carrier tariffs, blending, tankage, linefill and throughput charges, pipeline demurrage, superfund and other comparable fees, processing fees (including fees for water or sediment removal or feedstock decontamination), merchandise processing costs and fees, any charges imposed by any Governmental Authority, user fees, fees and costs for any credit support provided to any third party with respect to any transactions contemplated by this Agreement, any pipeline compensation or reimbursement payments that are not timely paid by the pipeline to Macquarie and any and all fees, costs and expenses related to railcars, including demurrage and detention fees. Ancillary Costs will also include, without duplication, out of pocket expenses associated with the cost of operation of transportation, storage or other facilities assigned hereunder to Macquarie by the Company, third-party out of pocket legal fees, tax advisory fees, and out of pocket expenses incurred in connection with any of the Transaction Documents. Notwithstanding the foregoing, the following shall not be considered Ancillary Costs: (a) Macquarie’s hedging costs in connection with this Agreement or the transactions contemplated hereby (but such exclusion shall not (A) change or be deemed to change the manner in which Related Xxxxxx, including Permitted Feedstock Xxxxxx, are addressed under Articles 19 and 20 below, or (B) include the Transaction Costs, it being the Parties’ intention to include the items listed in this clause (B) as Ancillary Costs), (b) any costs for which Macquarie has otherwise been compensated under this Agreement and the Transaction Documents by the inclusion of the full amount thereof in any other payment made hereunder, including pursuant to any true-up, adjustment, or netting mechanism provided for thereunder, or (c) any costs which Macquarie has agreed, in accordance with the express terms hereof, shall be solely for Macquarie’s own account. In no event shall “Ancillary Costs” include (i) any costs or expenses that are not paid or payable out of pocket by Macquarie, (ii) any overhead allocations or other internal costs, and (iii) any taxes. “Applicable Law” means (a) any law, statute, regulation, code, ordinance, license, decision, order, writ, injunction, decision, directive, judgment, policy, decree and any judicial or administrative interpretations thereof, (b) any agreement, concession or arrangement with any Governmental Authority and (c) any license, permit or compliance requirement, including Environmental Law, in each case as may be applicable to either Party or the subject matter of this Agreement. “Arrangement Fee” has the meaning assigned to such term in the Fees and Adjustments Letter.
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5 13585990v13 “Available Deferred Payment Amount” means on any given day the balance of the Deferred Payment Amount that has not been used to defer Company Interim Tank Permitted Feedstock Payments. “Bailee Letter” means the Stonebriar Letter Agreement and any other bailee letter or lien acknowledgment letter in respect of one or more Specified Company Locations or Included Locations, as applicable, among Macquarie, the Company and an applicable third party from time to time, in each case, as amended, restated, supplemented or otherwise modified from time to time. “Bank Holiday” means any day (other than a Saturday or Sunday) on which banks are authorized or required to close in the State of New York. “Bankrupt” means a Person that (i) is dissolved, other than pursuant to a consolidation, amalgamation or merger, (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due, (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors as a group, (iv) institutes a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, (v) has a resolution passed for its winding-up or liquidation, other than pursuant to a consolidation, amalgamation or merger, (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for all or substantially all of its assets, (vii) has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets, (viii) files an answer or other pleading admitting or failing to contest the allegations of a petition filed against it in any proceeding of the foregoing nature, (ix) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy under any bankruptcy or insolvency law or other similar law affecting creditors’ rights and such proceeding is not dismissed within sixty (60) days or (x) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing events. “Bankruptcy Code” means chapter 11 of Title 11, U.S. Code. “Bankruptcy Law” means the Bankruptcy Code, as amended from time to time, or any similar federal or state law for the relief of debtors. “Barrel” means forty-two (42) net U.S. gallons, measured at sixty (60) degrees Fahrenheit. “Base Agreements” means (a) any agreements hereafter entered into between the Company and a third party pursuant to which the Company acquires any rights to use Included Permitted Feedstock Storage Tanks, Included Permitted Feedstock Pipelines, Included Renewable Product Tanks, Included Renewable Product Pipelines or Specified Company Locations, (b) the Montana Renewables Services Agreement, (c) the Montana Renewables Lease, and (d) any other agreement entered into by the Company or any of its Affiliates relating to the Refinery, including any related agreements related to Permitted Feedstock and Renewable Products in connection with the Refinery.
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6 13585990v13 “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” have correlative meanings. “Best Available Inventory Data” means daily inventory reports produced by the Company or third parties in respect of the Included Permitted Feedstock Storage Tanks, Included Renewable Product Tanks, Included Permitted Feedstock Pipelines, Included Renewable Product Pipelines and Specified Company Locations, in the form specified in Schedule H. “Board of Directors” means: (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; (2) with respect to a partnership, the board of directors or board of managers of the general partner of the partnership or, if such general partner is itself a limited partnership, then the board of directors or board of managers of its general partner; (3) with respect to a limited liability company, the board of managers or directors, the managing member or members or any controlling committee of managing members thereof; and (4) with respect to any other Person, the board or committee of such Person serving a similar function. “Business Day” means any day that is not a Saturday, Sunday, or Bank Holiday. “Calumet Montana” has the meaning set forth in the recitals of this Agreement. “Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. “Change of Control” means the occurrence of any of the following: (a) the direct sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the properties or assets of the Company taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act); (b) the adoption of a plan relating to the liquidation or dissolution of the Company; (c) (i) the consummation of any transaction (including, without limitation, any merger or consolidation), in one or a series of related transactions, the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), (other than Sponsor or any wholly owned Subsidiary of Sponsor), becomes the Beneficial Owner, directly or indirectly, of more than fifty percent (50%) of the Capital Stock of Parent, (ii)
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7 13585990v13 Sponsor (or any wholly owned Subsidiary of Sponsor) ceases to manage the day to day operations of Parent, the Company, the Refinery or, to the extent required to operate the Refinery, the related refining assets located in Great Falls, Montana owned indirectly by Sponsor on the date of this agreement, or (iii) Sponsor ceases to directly or indirectly own at least fifty percent (50%) of the Capital Stock of Parent; (d) Parent ceases to directly own one hundred percent (100%) of the Capital Stock of the Company; or (e) The occurrence of a “Change of Control” or “Change in Control” event (howsoever defined or referred to) under any outstanding Financing Agreement. Notwithstanding the preceding, a conversion of the Parent or the Company from a limited partnership, corporation, limited liability company or other form of entity to a limited liability company, corporation, limited partnership or other form of entity or an exchange of all of the outstanding Equity Interests in one form of entity for Equity Interests in another form of entity shall not constitute a Change of Control, so long as following such conversion or exchange the “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) who (x) Beneficially Owned the Capital Stock of the Parent immediately prior to such transactions continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity or (y) Beneficially Owned the Capital Stock of the Company immediately prior to such transactions continue to Beneficially Own in the aggregate 100% of the Voting Stock of such entity, or, in each case, continue to Beneficially Own sufficient Equity Interests in such entity to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity for such entity, and, in either case no “person,” other than a Qualifying Owner, Beneficially Owns more than 50% of the Voting Stock of the Company. “Code” means the Internal Revenue Code of 1986, as amended. “Commencement Date” has the meaning specified in Section 2.3(a). “Company” has the meaning specified in the introductory paragraph of this Agreement. “Company Agreement” means agreements (whether one or more), between the Company and another Person pursuant to which the Company agrees to sell to any such Person one or more Renewable Products. “Company Deferred Deficit” means the dollar amount by which the Company Interim Tank Permitted Feedstock Payments that Company has not yet paid exceeds the Available Deferred Payment Amount. “Company Early Termination Date” has the meaning specified in Section 3.2(b). “Company Interim Procurement Contract Permitted Feedstock Payment” has the meaning set forth in Section 10.1(b)(i)(A).
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8 13585990v13 “Company Interim Renewable Product Payment” has the meaning set forth in Section 10.1(b)(ii). “Company Interim Tank Permitted Feedstock Payment” has the meaning set forth in Section 10.1(b)(i)(B). “Company Owned Location” means a Specified Company Location that is owned or leased and operated by the Company or any of its Affiliates. “Company Permitted Feedstock Inventory” means, as of any day, the volume of Eligible Renewables Inventory consisting of Permitted Feedstock that is then held at a Specified Company Location. “Company Permitted Feedstock Inventory Value” equals, as of any day, the volume of Company Permitted Feedstock Inventory multiplied by the applicable Current Month Pricing Benchmark(s). “Company Renewable Product Inventory” means, as of any day, the volume of Eligible Renewables Inventory consisting of Renewable Products that are then held at a Specified Company Location. “Company Renewable Product Inventory Value” equals, as of any day, the volume of Company Renewable Product Inventory multiplied by the applicable Current Month Pricing Benchmark(s). “Company Sourcing Transaction” has the meaning specified in Section 18.2(h). “Contract Nominations” has the meaning specified in Section 5.3(b). “Conversion Completion” means the satisfaction of each of the following conditions: (a) all material facilities that comprise the Renewable Diesel Conversion have been installed and constructed and are in proper working order; (b) the Renewable Diesel Project has satisfied any applicable performance guarantees and regulatory and permitting requirements; (c) during testing, the Renewable Diesel Project continues to satisfy the performance levels required pursuant to the requirements in clauses (a) and (b) above for no less than fourteen (14) consecutive days; (d) the Company has all authorizations necessary for the operation of the Renewable Diesel Project and all insurance policies relating to the operation of the Renewable Diesel Project and copies of the same have been provided to Macquarie; and (e) the Company shall have delivered to Macquarie a certificate of an Authorized Representative certifying the satisfaction of each of the above conditions in form and substance satisfactory to Macquarie. “Costs” has the meaning set forth in the definition of “Liabilities”.
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9 13585990v13 “Counterparty Permitted Feedstock Sales” means all sales of Barrels of Permitted Feedstock during any month under Macquarie Permitted Feedstock Procurement Contracts made by Macquarie to a counterparty other than the Company under this Agreement. “Counterparty Permitted Feedstock Sales Fee” means, with respect to any month, the sum of all Permitted Feedstock Sales Fees relating to all Counterparty Permitted Feedstock Sales. “Credit Agreement Documents” means the Xxxxx Fargo Credit Agreement and the Loan Documents (as defined in the Xxxxx Fargo Credit Agreement) and each of the other agreements, documents and instruments providing for or evidencing any other Credit Agreement Obligations, and any other document or instrument executed or delivered at any time in connection therewith, including any intercreditor or joinder agreement among holders of Credit Agreement Obligations, to the extent such are effective at the relevant time, as each may be amended or modified from time to time. “Credit Agreement Obligations” means all Obligations (as defined in the Xxxxx Fargo Credit Agreement). “Credit Support” means “Collateral” as defined in the Pledge and Security Agreement, including, for the avoidance of doubt, Renewables Credit Support, Environmental Attributes and such other collateral as further described in the Lien Documents. “Creditor Acknowledgment” means, (a) with respect to the Xxxxx Fargo Credit Agreement and any Financing Agreement which constitutes a replacement or refinancing thereof, the Acknowledgment Agreement, (b) with respect to the Stonebriar Sale and Leaseback Agreements, the Stonebriar Letter Agreement, and (c) with respect to any other Financing Agreement, other than an indenture governing one or more series of publicly traded notes, an acknowledgment agreement, recognition agreement or other form of intercreditor agreement, in form and substance satisfactory to Macquarie, pursuant to which the creditors under such Financing Agreement (or their agent or trustee, as the case may be) (i) acknowledge and recognize Xxxxxxxxx’s ownership of all Permitted Feedstock and Renewable Products held at Included Locations and Xxxxxxxxx’s perfected first priority Lien on all (x) Permitted Feedstock and Renewable Products held at Specified Company Locations and (y) Environmental Attributes, as applicable, (ii) agree that they hold no lien against or other claim to any of such Permitted Feedstock and Renewable Products and Environmental Attributes and, to the extent necessary, confirming their release of any liens that such creditors may have had on such Permitted Feedstock and Renewable Products and Environmental Attributes, (iii) agree not to interfere with Xxxxxxxxx’s exercise of its rights (whether as owner or lienholder) with respect thereto, (iv) agree to take such further actions as Macquarie may reasonably request to implement the intent of the foregoing, including (without limitation) filing amendments or termination of UCC financing statements and (v) agree that they shall permit and not interfere with the removal by Macquarie of its Permitted Feedstock and Renewable Products held at Included Locations upon the occurrence and during the continuance of an Event of Default hereunder or otherwise. “Current Month Pricing Benchmark(s)” means, (a) for any month and with respect to a particular Pricing Group, (1) the pricing index, formula or benchmark plus or minus (2) the applicable Differential (if any) set forth on and determined in accordance with Schedule B for such
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10 13585990v13 month, plus (b) for any day and with respect to Renewable Products only, the applicable Environmental Attribute Price for such day determined on a daily basis as set forth on and determined in accordance with Schedule B. “Customer” has the meaning specified in the Marketing and Sales Agreement. “Daily Environmental Attribute Pricing Adjustment” has the meaning specified in Schedule C-3. “Daily Permitted Feedstock Procurement Contract Sales” means on any Delivery Date the volume of Macquarie Procurement Barrels sold by Macquarie to Company. “Daily Permitted Feedstock Purchases” means for any day Xxxxxxxxx’s estimate of the aggregate volume of Permitted Feedstock purchased by Macquarie from Company at any Permitted Feedstock Intake Point. “Daily Permitted Feedstock Tanks Sales” means on any Delivery Date the volume of Permitted Feedstock sold at the Permitted Feedstock Delivery Point by Macquarie to Company. “Daily Prices” means, with respect to a particular Pricing Group, the Current Month Pricing Benchmark applicable to such Pricing Group on any Delivery Date. “Daily Renewable Product Purchases” means, for any day and Renewable Product Group, Macquarie’s estimate of the aggregate volume of such Renewable Product purchased by Macquarie from the Company during such day pursuant to (i) Section 8.1(a) or (ii) Section 8.1(c). “Daily Renewable Product Sales” means, for any day and Renewable Product Group, Macquarie’s estimate of the aggregate sales volume of such Renewable Product sold by Macquarie during such day to Company. “Daily SOFR” means, on any day, overnight SOFR on the day that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided that if as of 5:00 p.m. (New York City time) on any such day such rate has not been published by the Term SOFR Administrator, then Daily SOFR will be overnight SOFR as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such rate was published by the Term SOFR Administrator. “Default” means any event that, with notice or the passage of time, would constitute an Event of Default. “Default Interest Rate” means the lesser of (i) Daily SOFR plus four and three-quarters percent (4.75%) per annum and (ii) the maximum rate of interest permitted by Applicable Law. “Defaulting Party” has the meaning specified in Section 19.2(a). “Deferred Payment Amount” means the sum of (i) Company Permitted Feedstock Inventory Value (of Company Permitted Feedstock Inventory up to the total maximum inventory levels set forth in Schedule D) calculated daily, multiplied by 0.80, plus (ii) Company Renewable
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11 13585990v13 Product Inventory Value (of Company Renewable Product Inventory up to the total maximum inventory levels set forth in Schedule D) calculated daily, multiplied by 0.90, plus (iii) any additional deferred amount (if any) extended by Macquarie to Company, in writing, under this Agreement, at Xxxxxxxxx’s sole and absolute discretion. “Deferred Payment Amount Fee” has the meaning specified in the Fees and Adjustments Letter. “Definitive Effective Date Value” has the meaning specified in the Inventory Sales Agreement. “Definitive Effective Date Volume” has the meaning specified in the Inventory Sales Agreement. “Delivery Date” means any day that deliveries are made of Permitted Feedstock or Renewable Products. “Delivery Month” means, with respect to Permitted Feedstock, the calendar month in which Permitted Feedstock is to be delivered into one or more Included Permitted Feedstock Storage Tanks or a Specified Company Location and, with respect to Renewable Products, the month in which Renewable Product is to be delivered into an Included Renewable Product Location or a Specified Company Location. “Derivative Transaction” means any obligation in respect of any transaction in the nature of a transaction as described in (a)(i) and (ii), (b) and (c) of the definition of Specified Transaction. “Designated Affiliate” means, in the case of Macquarie, Macquarie Bank Limited, a company organized under the laws of Australia, and Macquarie Energy Canada Ltd., and, in the case of the Company, the Parent and any Subsidiary of the Company. “Differential” means, for each Current Month Pricing Benchmark, the amount added to or subtracted from the applicable pricing index, formula or benchmark set forth on Schedule B to determine such Current Month Pricing Benchmark. The Differentials applicable during the Term, shall be as set forth on Schedule B and as may be adjusted from time to time pursuant to Section 7.4. “Differential Adjustment Month” means each calendar month. “Disposed Quantity” has the meaning specified in Section 9.4(a). “Disposition Amount” has the meaning specified in Section 9.4(a). “Effective Date” has the meaning specified in the introductory paragraph of this Agreement. “Effective Date Purchase Value” means, with respect to the Definitive Effective Date Volume, initially the Estimated Effective Date Value until the Definitive Effective Date Value has been determined and thereafter the Definitive Effective Date Value.
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12 13585990v13 “Eligible Renewables Inventory” means, as of any day, the Renewables owned by the Company and held for sale or that consists of raw materials and that are subject to a valid, first priority perfected Lien and security interest in favor of Macquarie, including, without limitation, at any time and with respect to any such Renewables, the aggregate volume of such Renewables constituting linefill; provided that, unless Macquarie shall otherwise elect in its reasonable discretion, Eligible Renewables Inventory shall not include any Renewable: (a) that is held on consignment or not otherwise owned by the Company; (b) that is unmerchantable or damaged Renewable Product or constitutes Renewable Product that is permanently off-spec or that does not meet either the Renewable Fuel Standard or the Low Carbon Fuel Standard, including as relates to and as applicable to the relevant Environmental Attribute; (c) that is subject to any other Lien whatsoever (other than Permitted S&O Liens); (d) that consists solely of chemicals (other than commodity chemicals maintained in bulk), samples, prototypes, supplies, or packing and shipping materials; (e) that has been sold to a customer of the Company; (f) that is not located at a Specified Company Location; (g) that is not currently either usable or salable, at market price, in the normal course of the Company’s business or that has no commercial value; (h) that consists of industrial waste; or (i) that is not identified on Schedule A, unless otherwise mutually agreed by the Parties; provided that, in no event shall any Related Xxxxxx or the marked-to-market value thereof be considered in determining any Eligible Renewables Inventory. “Ending Company Permitted Feedstock Inventory” has the meaning specified in Section 9.2(a). “Ending Company Renewable Product Inventory” has the meaning specified in Section 9.2(a). “Ending In-Tank Permitted Feedstock Inventory” has the meaning specified in Section 9.2(a). “Ending In-Tank Renewable Product Inventory” has the meaning specified in Section 9.2(a).
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13 13585990v13 “Environmental Attribute Value Capital Fee” has the meaning specified in and shall be calculated in accordance with the Fees and Adjustments Letter. “Environmental Law” means any existing or past Applicable Law, policy, judicial or administrative interpretation thereof or any legally binding requirement that governs or purports to govern the protection of persons, natural resources or the environment (including the protection of ambient air, surface water, groundwater, land surface or subsurface strata, endangered species or wetlands), occupational health and safety and the manufacture, processing, distribution, use, generation, handling, treatment, storage, disposal, transportation, release or management of industrial waste or hazardous substances or materials. “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. “EST” means the prevailing time in the Eastern time zone of the United States of America. “Estimated Effective Date Value” has the meaning specified in the Inventory Sales Agreement. “Estimated Termination Amount” has the meaning specified in Section 20.2(b). “Estimated Yield” has the meaning specified in Section 8.3(a). “Event of Default” means an occurrence and continuation of any one or more of the events or circumstances described in Section 19.1. “Excess Inventory Level” has the meaning specified in Section 7.9. “Excess Quantity” has the meaning specified in Section 7.10(a). “Exchange Act” means the Securities Exchange Act of 1934. “Existing Financing Agreements” means the Financing Agreements listed on Schedule L. “Expiration Date” has the meaning specified in Section 3.1. “Facilities Operator Affiliates” means any Affiliate of Company that operates any Refinery Facilities, including, for avoidance of doubt, Calumet Montana pursuant to the Montana Renewables Services Agreement or such other agreements.
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14 13585990v13 “FATCA” mean Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement. “Fed Funds Rate” means the rate set forth in H.15(519) or in H.15 Daily Update for the most recently preceding Business Day under the caption “Federal funds (effective)”; provided that if no such rate is so published for any of the immediately preceding three (3) Business Days, then such rate shall be the arithmetic mean of the rates for the last transaction in overnight Federal funds arranged by each of three leading brokers of U.S. dollar Federal funds transactions prior to 9:00 a.m., EST, on that day, which brokers shall be selected by Macquarie in a commercially reasonable manner. For purposes hereof, “H.15(519)” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the Federal Reserve System, available through the worldwide website of the Board of Governors of the Federal Reserve System at xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/x00/, or any successor site or publication and “H.15 Daily Update” means the daily update of H.15(519), available through the worldwide website of the Board of Governors of the Federal Reserve System at xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/x00/xxxxxx/, or any successor site or publication. “Fees and Adjustments Letter” means that certain letter from Macquarie to the Company, executed on or before the Effective Date and as from time to time thereafter amended, restated, supplemented or otherwise modified from time to time, which identifies itself as the “Fees and Adjustments Letter” for purposes hereof, and pursuant to which the Parties have set forth the amounts for and other terms relating to certain fees payable hereunder and other amounts determined for purposes hereof. “Financing Agreement” means any credit agreement, term loan, sale-leaseback, indenture or other financing agreement (including, without limitation, the Stonebriar Sale and Leaseback Agreements, the Xxxxx Fargo Credit Agreement and the other Credit Agreement Documents) and any and all other loan and/or transaction documents and agreements related to any of the foregoing under which the Company may incur or become liable for indebtedness for borrowed money (including capitalized lease obligations and reimbursement obligations with respect to letters of credit), and any replacements or refinancings of any of the foregoing, in each case, in excess of $10,000,000, as any of the foregoing may be amended, restated, supplemented or otherwise modified from time to time, but only if the covenants thereunder limit or otherwise apply to any of the business, assets or operations of the Company and/or any of its Restricted Subsidiaries. “Force Majeure” means any cause or event reasonably beyond the control of a Party, including fires, earthquakes, lightning, floods, explosions, storms, adverse weather, landslides and other acts of natural calamity or acts of God; navigational accidents or maritime peril; vessel damage or loss; strikes, grievances, actions by or among workers or lock-outs (whether or not such labor difficulty could be settled by acceding to any demands of any such labor group of individuals and whether or not involving employees of the Company or Macquarie); accidents at, closing of, or restrictions upon the use of mooring facilities, docks, ports, pipelines, harbors, railroads or other navigational or transportation mechanisms; disruption or breakdown of, explosions or accidents to xxxxx, storage plants, refineries, terminals, machinery or other facilities; acts of war, hostilities
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15 13585990v13 (whether declared or undeclared), civil commotion, embargoes, blockades, terrorism, sabotage or acts of the public enemy; any act or omission of any Governmental Authority; good faith compliance with any order, request or directive of any Governmental Authority; curtailment, interference, failure or cessation of supplies reasonably beyond the control of a Party; or any other cause reasonably beyond the control of a Party, whether similar or dissimilar to those above and whether foreseeable or unforeseeable, which, by the exercise of due diligence, such Party could not have been able to avoid or overcome. Solely for purposes of this definition, the failure of any Third Party Supplier to deliver Permitted Feedstock pursuant to any Macquarie Permitted Feedstock Procurement Contract, whether as a result of Force Majeure as defined above, “force majeure” as defined in such Macquarie Permitted Feedstock Procurement Contract, breach of contract by such Third Party Supplier or any other reason, shall constitute an event of Force Majeure for Macquarie under this Agreement with respect to the quantity of Permitted Feedstock subject to that Macquarie Permitted Feedstock Procurement Contract. “GAAP” means generally accepted accounting principles in the U.S. set out in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Financial Accounting Standards Board as in effect from time to time. “Governmental Authority” means any federal, state, regional, local, or municipal governmental body, agency, instrumentality, authority or entity established or controlled by a government or subdivision thereof, including any legislative, administrative or judicial body, or any person purporting to act therefor. “Hazardous Substances” means any explosive or radioactive substances or wastes and any toxic or hazardous substances, materials, wastes, contaminants or pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances defined or listed as “hazardous substances,” “hazardous materials,” “hazardous wastes” or “toxic substances” (or similarly identified), regulated under or forming the basis for liability under any applicable Environmental Law. “Identified Facilities” has the meaning specified in Section 14.4(a). “Included Locations” means, collectively, the Included Permitted Feedstock Locations and the Included Renewable Product Locations, and for purposes of this definition: (1) “Included Permitted Feedstock Locations” means, collectively, the Included Permitted Feedstock Storage Tanks and the Included Permitted Feedstock Pipelines, and for purposes of this definition: (a) “Included Permitted Feedstock Storage Tanks” means any of the tanks at the Refinery listed on Schedule E that store Permitted Feedstock, including, as applicable, any related facilities or pipelines owned or leased by the Company and used in connection with such tanks. (b) “Included Permitted Feedstock Pipelines” means the Permitted Feedstock pipelines or sections thereof owned or leased by the Company or by a third party
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16 13585990v13 that is listed on Schedule U, as such schedule may from time to time be amended by the Parties. (2) “Included Renewable Product Locations” means, collectively, the Included Renewable Product Tanks and the Included Renewable Product Pipelines, and for purposes of this definition: (a) “Included Renewable Product Tanks” means the Renewable Product storage tanks owned or leased and operated by the Company or by third parties as further identified and described on Schedule E, including, as applicable with respect to the inventory report provided by any such third party, any related facilities or pipelines used in connection with such tanks. (b) “Included Renewable Product Pipelines” means the Renewable Product pipelines or sections thereof owned or leased by the Company or by a third party that is listed on Schedule U, as such schedule may from time to time be amended by the Parties. “Included Renewable Product Purchase Transaction” means an agreement entered into by Macquarie at the request of the Company under Section 2.3 of the Marketing and Sales Agreement, pursuant to which Macquarie purchases a quantity of Renewable Products from a Renewable Product Supplier. “Included Sales Transaction” has the meaning specified in the Marketing and Sales Agreement. “Included Tanks” means the Included Permitted Feedstock Storage Tanks and Included Renewable Product Tanks, as more particularly described on Schedule E. “Independent Amount” has the meaning assigned to such term in the Fees and Adjustments Letter. “Independent Inspection Company” has the meaning specified in Section 12.3. “Index Permitted Feedstock Sale Value” means (i) the sum of the aggregate quantity of Barrels of Permitted Feedstock sold during such period under Counterparty Permitted Feedstock Sales with third parties, multiplied by (ii) the Current Month Pricing Benchmark for Permitted Feedstock during that period. “Index Renewable Product Purchase Value” means, for any Renewable Product Group and relevant period, the product of (i) the sum of the aggregate quantity of Barrels of such Renewable Product Group purchased during such period under Included Renewable Product Purchase Transactions, multiplied by (ii) the Current Month Pricing Benchmark for that Renewable Product Group and period. “Index Renewable Product Sale Value” means, for any Renewable Product Group and relevant period, the product of (i) the sum of the aggregate quantity of Barrels of such Renewable
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17 13585990v13 Product Group sold during such period under Included Sales Transactions, multiplied by (ii) the Current Month Pricing Benchmark for that Renewable Product Group and period. “Index Third Party Permitted Feedstock Sale Value” means (i) the sum of the aggregate quantity of Barrels of Permitted Feedstock sold during such period to third parties at the Permitted Feedstock Delivery Point at the direction of the Company, multiplied by (ii) the Current Month Pricing Benchmark for Permitted Feedstock during that period. “Initial Estimated Yield” has the meaning specified in Section 2.3(b)(iv). “Initial Independent Amount” has the meaning assigned to such term in the Fees and Adjustments Letter. “Insolvency or Liquidation Proceeding” means: (1) any case commenced by or against any Person under any Bankruptcy Law for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of any Person, any receivership or assignment for the benefit of all or substantially all creditors relating to any Person or any similar case or proceeding relative to any Person or all or substantially all of its creditors, as such, in each case whether or not voluntary; or (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to any Person, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency, except for any liquidation or dissolution permitted under the Transaction Documents. “Interim Payment” means a net payable amount determined by netting all of the Macquarie Interim Payment, Company Interim Procurement Contract Permitted Feedstock Payment, Company Interim Tank Permitted Feedstock Payments, Company Interim Renewable Product Payment, and the Daily Environmental Attribute Pricing Adjustment. “Inventory” has the meaning assigned to such term in the Uniform Commercial Code of the State of New York as in effect from time to time. “Inventory Capital Fee” has the meaning assigned to such term in the Fees and Adjustments Letter. “Inventory Report” has the meaning as specified in Section 11.1(a). “Inventory Sales Agreement” means the purchase and sale agreement, in form and in substance mutually agreeable to the Parties, dated as of the Effective Date, pursuant to which the Company is selling and transferring to Macquarie the Definitive Effective Date Volume then owned by the Company for the Effective Date Purchase Value related thereto, free and clear of all liens, claims and encumbrances of any kind, other than Permitted S&O Liens. “Latest Commencement Date” has the meaning specified in Section 2.3(a).
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18 13585990v13 “Liabilities” means any losses, liabilities, charges, damages, deficiencies, assessments, interests, fines, penalties, costs and expenses (collectively, “Costs”) of any kind (including reasonable attorneys’ fees and other fees, court costs and other disbursements), including any Costs directly or indirectly arising out of or related to any suit, proceeding, judgment, settlement or judicial or administrative order and any Costs arising from compliance or non-compliance with Environmental Law. “Lien Documents” means the Pledge and Security Agreement and any other instruments, documents and agreements delivered by or on behalf of the Company and its Subsidiaries in order to grant to and perfect in favor of Macquarie a security interest in and lien on the Renewables Credit Support and the other Credit Support, respectively, as security for the obligations of the Company pursuant to this Agreement and the other Transaction Documents. “Liens” has the meaning specified in Section 18.3(f)(ii). “Liquidated Amount” has the meaning specified in Section 19.2(f). “Liquidity” means, at any time, the total of (a) Unrestricted Cash maintained by the Company plus (b) amounts available for drawing under the Xxxxx Fargo Credit Facility or other revolving lines of credit available from time to time. “Macquarie” has the meaning specified in the introductory paragraph of this Agreement. “Macquarie Delivery Point” means the point of delivery agreed to by the Parties for Macquarie Procurement Barrels in the U.S., including the Included Permitted Feedstock Storage Tanks. “Macquarie Early Termination Notice Date” has the meaning specified in Section 3.2(a). “Macquarie Interim Payment” has the meaning specified in Section 10.1(a). “Macquarie’s Inspector” means any Person selected by Macquarie in a commercially reasonable manner that is acting as an agent for Macquarie or that (1) is a licensed Person who performs sampling, quality analysis and quantity determination of the Permitted Feedstock and Renewable Products purchased and sold hereunder, (2) is not an Affiliate of any Party and (3) in the reasonable judgment of Macquarie, is qualified and reputed to perform its services in accordance with Applicable Law and industry practice, to perform any and all inspections required by Macquarie. “Macquarie Permitted Feedstock Procurement Contract” means a procurement contract, on industry customary terms and conditions and otherwise reasonably satisfactory to Macquarie and the Company, entered into by Macquarie or Macquarie Energy Canada Ltd., as applicable, and a Permitted Supplier from time to time at the request of Company under this Agreement for the purchase of Permitted Feedstock within the U.S. or Canada, as applicable, to be sold and delivered to the Company at the Macquarie Delivery Point, all as more particularly described on Schedule P, as such schedule is amended and supplemented from time to time by mutual agreement of the Parties.
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19 13585990v13 “Macquarie Procurement Barrels” means barrels of Permitted Feedstock purchased by Macquarie under a Macquarie Permitted Feedstock Procurement Contract. “Macquarie Procurement Barrels Price” means with respect to the Macquarie Procurement Barrels purchased under any Macquarie Permitted Feedstock Procurement Contract, a pricing index, formula or benchmark, plus or minus a differential, that is mutually agreeable to the Parties. “Macquarie’s Policies and Procedures” has the meaning specified in Section 14.4(a). “Macquarie’s Property” has the meaning specified in Section 18.3(f)(ii). “Marketing and Sales Agreement” means the marketing and sales agreement, dated as of the Effective Date, between the Company and Macquarie pursuant to which the Renewable Product purchased by Macquarie hereunder shall from time to time be marketed and sold by the Company for Macquarie’s account or otherwise, as amended, supplemented, restated or otherwise modified from time to time. “Master Agreement” means the Master Permitted Feedstock and Renewable Products Purchase and Sale Agreement, dated as of the Effective Date, between the Company and Macquarie. “Master Agreement Termination Event” means, with respect to a party, any “Event of Default” under the Master Agreement with respect to such party or otherwise any breach or violation of any term or condition of the Master Agreement after giving effect to any applicable notice requirement or grace period. “Material Adverse Change” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Company, the Parent or any other Subsidiary of Parent to perform its obligations under any of the Transaction Documents to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Company, the Parent or any other Subsidiary of the Parent of any Transaction Document to which it is a party. “Measured Permitted Feedstock Quantity” means, for any Delivery Date, the total quantity of Permitted Feedstock that, during such Delivery Date, was withdrawn and lifted by and delivered to the Company at the Permitted Feedstock Delivery Point, as evidenced by either (i) meter readings and meter tickets for that Delivery Date or (ii) tank gaugings conducted at the beginning and end of such Delivery Date. “Measured Renewable Product Quantity” means, for any Delivery Date, the total quantity of a particular Renewable Product that, during such Delivery Date, was delivered by the Company to Macquarie at the Renewable Product Intake Point, as evidenced by either (i) meter readings and meter tickets for that Delivery Date or (ii) tank gaugings conducted at the beginning and end of such Delivery Date. “Montana Renewables Lease” has the meaning set forth in the recitals of this Agreement.
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20 13585990v13 “Montana Renewables Services Agreement” has the meaning set forth in the recitals of this Agreement. “Monthly Intermediation Fee” has the meaning specified in the Fees and Adjustments Letter. “Monthly Permitted Feedstock Forecast” has the meaning specified in Section 5.1(b). “Monthly Permitted Feedstock Sale Adjustment” has the meaning specified in Section 6.7. “Monthly Permitted Feedstock Cover Costs” has the meaning specified in Section 7.7(b). “Monthly Renewable Product Cover Costs” has the meaning specified in Section 7.7(b). “Monthly Renewable Product Estimate” has the meaning specified in Section 8.3(b). “Monthly Renewable Product Purchase Adjustment” has the meaning specified in Section 8.11(b). “Monthly Renewable Product Sale Adjustment” has the meaning specified in Section 8.11(a). “Monthly Services Fee” has the meaning assigned to such term in the Fees and Adjustments Letter. “Monthly Third Party Permitted Feedstock Sale Adjustment” has the meaning specified in Section 6.8. “Monthly True-Up Amount” has the meaning specified in Schedule C-2. “Net Storage Volume” means, with respect to any measurement of volume, the total liquid volume, excluding sediment and water, corrected for the observed temperature to 60° F. “Nomination Cutoff Date” means, with respect to any Macquarie Permitted Feedstock Procurement Contract, the date and time (if any) by which Macquarie is required to provide its nominations to the Third Party Supplier thereunder for the next delivery for which nominations are then due or can then be made. “Non-Affected Party” has the meaning specified in Section 17.1. “Non-Defaulting Party” has the meaning specified in Section 19.2(a). “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Operational Volume Range” means the range of operational volumes for any given set of associated Included Permitted Feedstock Storage Tanks for each type of Permitted Feedstock and for any given set of associated Included Renewable Product Locations for each group of
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21 13585990v13 Renewable Products, between the minimum volume and the maximum volume, as set forth on Schedule D. “Other Barrels” means Refinery Procured Permitted Feedstock Barrels, other than Macquarie Procurement Barrels. “Parent” means Montana Renewables Holdings LLC, a limited partnership organized under the laws of the State of Delaware. “Party” or “Parties” has the meaning specified in the preamble to this Agreement. “Patriot Act” means The USA Patriot Act. “Permitted Feedstock” means one or more renewable biomass feedstocks used for the production of Renewable Fuels, as set forth on Schedule P, as such schedule is amended and supplemented from time to time by mutual agreement of the Parties, but excluding for all purposes any and all industrial waste and any feedstocks that are non-merchantable, have no commercial value or do not otherwise meet either the Renewable Fuel Standard or the Low Carbon Fuel Standard, including as relates to and as applicable to the relevant Environmental Attribute. “Permitted Feedstock Delivery Point” means the outlet flange of the Included Permitted Feedstock Storage Tanks. “Permitted Feedstock Xxxxxx” has the meaning specified in Schedule C-1. “Permitted Feedstock Intake Point” means the inlet flange of the Included Permitted Feedstock Storage Tanks. “Permitted Feedstock or Renewable Product Differential” means any Differential applicable to a Current Month Pricing Benchmark as shall be set forth on Schedule B and as may be adjusted from time to time pursuant to Section 7.4. “Permitted Feedstock Sales Fee” means, for any month, the number of Barrels sold by Macquarie in connection with any Counterparty Permitted Feedstock Sale multiplied by the Permitted Feedstock Sales Fee Rate for such Counterparty Permitted Feedstock Sale. “Permitted Feedstock Sales Fee Rate” means, with respect to any Counterparty Permitted Feedstock Sale under which Macquarie is seller, the fee per Barrel agreed to by Macquarie and the Company in connection with such Counterparty Permitted Feedstock Sale that shall be due from the Company to Macquarie with respect to each Barrel sold thereunder. “Permitted Intermediated Feedstock Inventory Valuation Adjustment” has the meaning specified in the Fees and Adjustments Letter. “Permitted Purchaser” has the meaning specified in Section 33.1. “Permitted S&O Liens” means: (a) Xxxxx created in favor of Macquarie under the Lien Documents, (b) Liens for taxes, assessments, judgments, governmental charges or levies, or claims
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22 13585990v13 not yet delinquent or the non-payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been made; (c) Liens of mechanics, laborers, non-commodity suppliers, workers, materialmen, and other similar liens incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith, if such reserve or appropriate provision, if any, as shall be required by GAAP shall have been made therefor (but not including any such Liens in favor of the Company or any of its Affiliates); (d) except to the extent released in any “bailee letter” or such similar documents, Liens securing rental, storage, throughput, transportation, handling or other similar fees or charges owing from time to time to carriers, bailees, transporters or warehousemen, solely to the extent of such fees or charges (but not including any such Liens in favor of the Company or any of its Affiliates); and (e) Liens (1) incurred in the ordinary course of business (a) except to the extent released in any “bailee letter” or such similar documents, in connection with the purchase or shipping of goods or assets (or the related assets and proceeds thereof), which Liens arise by operation of law in favor of the seller or shipper of such goods or assets, which attach to such goods or assets and cease to be in effect upon payment in full of the purchase price for or for shipping of such goods or assets, and (b) to the extent available under Applicable Law, arising upon the purchase of oil or gas from the first producer thereof, which attach to such goods and cease to be in effect upon payment in full of the purchase price for such goods and (2) in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods. “Permitted Suppliers” means (a) any supplier of Permitted Feedstock approved by Macquarie and set forth on Schedule P, as such schedule is amended and supplemented from time to time by mutual agreement of the Parties, and (b) any other Permitted Feedstock vendor with whom Macquarie or Macquarie Energy Canada Ltd., as applicable, has an effective Macquarie Permitted Feedstock Procurement Contract pursuant to Article 5. “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization, joint stock company or any other private entity or organization, Governmental Authority, court or any other legal entity, whether acting in an individual, fiduciary or other capacity. “Pledge and Security Agreement” means individually and collectively (a) the Pledge and Security Agreement (Feedstock and Products) and (b) the Pledge and Security Agreement (RINs). “Pledge and Security Agreement (Feedstock and Products)” means that certain Pledge and Security Agreement (Feedstock and Products) by and between the Company and Macquarie, dated as of the Effective Date, regarding Renewables as further described therein, as may be amended, restated, supplemented or modified from time to time. “Pledge and Security Agreement (RINs)” means that certain Pledge and Security Agreement (RINs) by and between the Company and Macquarie, dated as of the Commencement Date, regarding certain Environmental Attributes as further described therein, as may be amended, restated, supplemented or modified from time to time. “Pricing Group” means any of the Renewable Product Groups listed as a pricing group on Schedule B.
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23 13585990v13 “Procurement Contract” means any Macquarie Permitted Feedstock Procurement Contract or Refinery Permitted Feedstock Procurement Contract or such other contract to the extent the Parties mutually deem such contract to be a Procurement Contract for purposes hereof. “Projection Week” means Monday through Sunday. “Projected Monthly Run Volume” has the meaning specified in Section 7.2(a). “Qualifying Owners” means, in the case of the Company, the Parent, as the direct owner of the Equity Interests of the Company, and Calumet Specialty Products Partners, L.P., which Beneficially Owns the Equity Interests of the Company, in each case, as of the Effective Date. “Refinery” means that certain refinery and related facilities located or to be located at 0000 0xx Xxxxxx XX, Xxxxx Xxxxx, Xxxxxxx 00000 owned or leased and operated by the Company consisting of a converted existing oversized Mild Hydrocracker (MHC) into a renewable diesel unit (RDU), the related West rail rack, a hydrogen plant, sour water stripper, certain storage tanks, including the Included Tanks listed on Schedule E from time to time, processing units, internal pipe systems and loading racks, all as further described on Schedule 1 attached hereto. “Refinery Facilities” means (i) all the facilities located at the Refinery, and (ii) any associated or adjacent facility used by the Company or any Facilities Operator Affiliates to carry out the terms of this Agreement, excluding Included Permitted Feedstock Storage Tanks and Included Renewable Product Tanks. “Refinery Permitted Feedstock Procurement Contract” means a procurement contract entered into by the Company with any Third Party Supplier for the purchase by the Company of Permitted Feedstock, which Permitted Feedstock is to be resold by the Company to Macquarie at the time such Permitted Feedstock passes any Permitted Feedstock Intake Point. “Refinery Procured Permitted Feedstock Barrels” means barrels of Permitted Feedstock sold by the Company to Macquarie at any Permitted Feedstock Intake Point. “Refinery Procured Renewable Product Barrels” has the meaning specified in Section 8.1(c). “Refinery Renewable Product Contract” means a procurement contract entered into by the Company for the purchase by the Company of Renewable Product, which Renewable Product is to be resold by the Company to Macquarie at the time such Renewable Product passes the Renewable Product Intake Point. “Refinery Renewable Product Storage Tanks” means the Included Renewable Product Tanks that are owned by the Company or its Affiliates, located adjacent to the Refinery, and used for the storage of Renewable Products, as identified on Schedule E. “Regulatory Event” has the meaning specified in Section 9.6. “Related Xxxxxx” means any transactions from time to time entered into by Macquarie with third parties unrelated to Macquarie or its Affiliates to hedge Macquarie’s exposure resulting
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24 13585990v13 from this Agreement or any other Transaction Document and Macquarie’s rights and obligations hereunder or thereunder. “Renewable Diesel Conversion” has the meaning set forth in the recitals of this Agreement. “Renewable Diesel Project” has the meaning set forth in the recitals of this Agreement. “Renewable Product Delivery Point” means, with respect to any delivery of Renewable Product from an Included Location, the outlet flange of the Included Renewable Product Tank or Included Renewable Product Pipeline at such Included Renewable Product Location, as applicable. “Renewable Product Group” means Permitted Feedstock or a group of Renewable Products as specified on Schedule A. “Renewable Product Intake Point” means (i) in the case of the Refinery Renewable Product Storage Tanks, the inlet flange of the Refinery Renewable Product Storage Tanks and (ii) in the case of any Included Renewable Product Location other than the Refinery Renewable Product Storage Tanks, the inlet flange of the Included Renewable Product Tanks at such Included Renewable Product Location. “Renewable Product Linefill” means, at any time and for any grade of Renewable Product, the aggregate volume of linefill of that Renewable Product on the Included Renewable Product Pipelines for which Macquarie is treated as the exclusive owner by the Included Renewable Product Pipelines; provided that such volume shall be determined by using the volumes reported on the monthly or daily statements, as applicable, from the Included Renewable Product Pipelines. “Renewable Product Sales Fee” has the meaning specified in the Marketing and Sales Agreement. “Renewable Product Supplier” means, generally, a third-party seller of Renewable Products and is more fully defined in the Marketing and Sales Agreement. “Renewables” means Permitted Feedstock, Renewable Product and other blendstocks (including, for the avoidance of doubt, additives) and finished and unfinished Renewable Product and Renewable Fuels. “Renewables Credit Support” means, as of any time, all Inventory constituting or consisting of Renewables and other goods used in the production of Renewable Product, including blendstocks and additives, then owned or at any time hereafter acquired by the Company that is located at a Specified Company Location or at an Included Location or, to the extent applicable, in transit to any such location. “Required Storage and Transportation Arrangements” means such designations and other binding contractual arrangements hereafter entered into, in form and substance reasonably satisfactory to Macquarie, pursuant to which the Company (or its Affiliates) hereafter shall provide Macquarie with the Company’s (or its Affiliates’) full right to use the third party Included Renewable Product Pipelines and third party Included Renewable Product Tanks, pursuant to the
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25 13585990v13 terms and conditions of the Base Agreements or such other agreements creating the Company’s rights in and to such facilities and the rights of existing third parties. “Revised Estimated Yield” has the meaning specified in Section 8.3(a). “Sale Agreement” has the meaning set forth in the recitals of this Agreement. “SEC” means the U.S. Securities and Exchange Commission. “Settlement Amount” has the meaning specified in Section 19.2(b). “Shipment Notification” has the meaning specified in Section 5.3(a). “Side Letter” means that certain letter agreement dated as of May 10, 2022 among Macquarie, Calumet Montana and the other parties thereto regarding, among other things, the intermediation of Permitted Feedstock. “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “Sourcing Transaction” has the meaning specified in Section 18.2(i). “Specified Company Location” means the storage tanks, pipelines, rails and trucks identified on Schedule 1.1(A) hereto as “company locations” and further identified as either (i) a Company Owned Location or (ii) a Third Party Location. “Specified Indebtedness” means any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) in respect of a repurchase transaction, money borrowed or raised, any finance lease, redeemable preference share, letter of credit, futures contract, guarantee, indemnity, or any Derivative Transaction. “Specified Termination Amount” has the meaning assigned to such term in the Fees and Adjustments Letter. “Specified Termination Date” has the meaning specified in Section 3.3(a). “Specified Transaction” means (a) any transaction (including an agreement with respect thereto) now existing or hereafter entered into between Macquarie (or any of its Designated Affiliates) and the Company (or any of its Designated Affiliates other than a Qualified Owner) (i) which is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, commodity spot transaction, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, weather swap, weather derivative, weather option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap,
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26 13585990v13 credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions) or (ii) which is a type of transaction that is similar to any transaction referred to in clause (i) that is currently, or in the future becomes, recurrently entered into the financial markets (including terms and conditions incorporated by reference in such agreement) and that is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, or economic indices or measures of economic risk or value, (b) any combination of these transactions, (c) any other transaction identified as a Specified Transaction in this agreement or the relevant confirmation, and (d) any transaction now existing or hereafter entered into between (x) Macquarie and a Permitted Supplier and/or (y) Macquarie Energy Canada Ltd. and a Permitted Supplier, in each case, for the benefit of the Company and governed by any applicable Macquarie Permitted Feedstock Procurement Contract. “Sponsor” means Calumet Specialty Products Partners, L.P. “Step-Out Inventory Sales Agreement” means the purchase and sale agreement, in the form provided on Schedule R, to be dated as of the Termination Date, if elected by Macquarie, pursuant to which the Company shall buy Permitted Feedstock and Renewable Products from Macquarie subject to the provisions of this Agreement and any other terms agreed to by the Parties thereto. “Stonebriar” has the meaning set forth in the recitals of this Agreement. “Stonebriar Letter Agreement” means that certain letter agreement dated as of the Effective Date among Macquarie, the Company and Stonebriar, regarding certain agreements with respect to the Refinery and the Included Tanks and the operations thereof, as more fully described therein, as amended, restated, supplemented or otherwise modified from time to time. “Stonebriar Sale and Leaseback Agreements” means that certain (a) Interim Funding Agreement (Master Lease Agreement) regarding the pre-treatment unit, dated as of August 5, 2022, (b) Interim Funding Agreement (Master Lease Agreement) regarding the hydrogen plant, dated as of December 31, 2021, as amended by that certain Amendment, dated as of August 5, 2022, (c) Equipment Schedule No. 2 dated as of August 5, 2022 regarding the design and construction of a renewable diesel unit and (d) Master Lease Agreement, dated as of December 31, 2021, each between Stonebriar, as lessor, and the Company, as lessee, pursuant to which, collectively, the Company is either (i) selling and will continue to sell to Stonebriar and lease back from Stonebriar, or (ii) granting Liens over to secure advances, certain assets substantially constituting the Refinery, for an aggregate purchase price and/or loans of up to and not to exceed $400,000,000, as any of the foregoing may be amended, restated, supplemented or otherwise modified from time to time. “Storage Facilities Agreement” means the storage facilities agreement, in form and substance mutually agreeable to the Parties, to be dated as of the Effective Date, between the Company and Macquarie, pursuant to which the Company has granted to Macquarie the exclusive right to use the Included Permitted Feedstock Storage Tanks for the storage of Permitted Feedstock
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27 13585990v13 and Included Renewable Product Tanks for the storage of Renewable Products (to the extent that such exclusive right can be granted) in connection with this Agreement. “Subsidiaries” means, with respect to any Person (the “parent”), any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. “Tank Maintenance” has the meaning specified in Section 9.5(c). “Target Month-End Permitted Feedstock Volume” means the Target Month-End Permitted Feedstock Inventory Volume and Target Month-End Specified Company Locations Permitted Feedstock Volume, collectively, and for purposes of this definition: (1) “Target Month-End Permitted Feedstock Inventory Volume” means the commercially reasonably projected volume for Permitted Feedstock in the Included Permitted Feedstock Storage Tanks at the end of the Delivery Month set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Permitted Feedstock purchases, run rates and sales for the applicable period. (2) “Target Month-End Specified Company Locations Permitted Feedstock Volume” means the commercially reasonably projected volume for Permitted Feedstock in the Specified Company Locations at the end of the Delivery Month set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Permitted Feedstock purchases, run rates and sales for the applicable period. “Target Month-End Renewable Product Volume” means the Target Month-End Renewable Product Inventory Volume and Target Month-End Specified Company Locations Renewable Product Volume, collectively, and for purposes of this definition: (1) “Target Month-End Renewable Product Inventory Volume” means the commercially reasonably projected volume for Renewable Product in the Included Renewable Product Locations at the end of the Delivery Month set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Renewable Product purchases, run rates and sales for the applicable period. (2) “Target Month-End Specified Company Locations Renewable Product Volume” means the commercially reasonably projected volume for Renewable Product in the Specified Company Locations at the end of the Delivery Month set forth in a report provided monthly by the Company in a form acceptable to Macquarie, and reconciling to Renewable Product purchases, run rates and sales for the applicable period.
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28 13585990v13 “Tax” or “Taxes” has the meaning specified in Section 15.1(a). “Term” has the meaning specified in Section 3.1. “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Daily SOFR Reference Rate). “Termination Amount” means, without duplication, the total net amount owed by one Party to the other Party upon termination of this Agreement under Section 20.2(a). “Termination Date” has the meaning specified in Section 20.1. “Termination Date Permitted Feedstock Volumes” has the meaning specified in Section 20.1(d). “Termination Date Renewable Product Volumes” has the meaning specified in Section 20.1(d). “Termination Date Volumes” has the meaning specified in Section 20.1(d). “Termination Reconciliation Statement” has the meaning specified in Section 20.2(c). “Third Party Location” means a Specified Company Location that is not a Company Owned Location and that is owned and operated by a third party. “Third Party Supplier” means any seller of Permitted Feedstock under a Procurement Contract (other than the Company or any Affiliate of the Company), but, in the case of any Macquarie Permitted Feedstock Procurement Contract, limited solely to Permitted Suppliers. “Transaction Costs” has the meaning in Schedule C-2. “Transaction Document” means any of this Agreement, the Marketing and Sales Agreement, Inventory Sales Agreement, the Storage Facilities Agreement, the Step-Out Inventory Sales Agreement, the Required Storage and Transportation Arrangements, the Fees and Adjustments Letter, the Lien Documents, any Creditor Acknowledgments, the Master Agreement, any Bailee Letter, and any other agreement or instrument contemplated hereby or executed in connection herewith, including any guarantees or other credit support documents as may be from time to time provided by the Company and/or its Subsidiaries. “Transaction Obligations” means all obligations due and owing or that may become due and owing and any and all performance obligations, including in respect of covenants and obligations to be performed pursuant to this Agreement and all other Transaction Documents, in each case, from time to time by the Company and any of its Subsidiaries, including, without limitation, Designated Affiliates, to Macquarie or any of its Affiliates, including, without limitation, Designated Affiliates, pursuant to this Agreement or any other Transaction Document and all outstanding transactions hereunder and thereunder, and shall further include, without limitation, (a) all principal, premium, if any, reimbursement obligations, interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding,
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29 13585990v13 accrue) in accordance with the relevant Transaction Document, (b) all fees, costs, expenses, indemnifications, damages, guarantees, and charges and other liabilities or amounts incurred in connection with any of the Transaction Documents and provided for thereunder, and (c) all of the Company’s aggregate obligations under Transactions entered into under and in respect of the Master Agreement and/or any Macquarie Permitted Feedstock Procurement Contract, in each foregoing case, whether before or after commencement of an Insolvency or Liquidation Proceeding and irrespective of whether any claim for such interest, fees, costs, expenses, indemnifications, damages, guarantees, charges or other liabilities or amounts is allowed as a claim in such Insolvency or Liquidation Proceeding. “Transactions” means one or more transactions entered into under and governed by the Master Agreement and/or any Macquarie Permitted Feedstock Procurement Contract pursuant to one or more confirmations thereunder from time to time. “U.S.” means the United States of America. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York. “Unrestricted Cash” means cash and Cash Equivalents (as defined in the Xxxxx Fargo Credit Agreement in effect on the Effective Date) of the Company that would not appear as “restricted” on a consolidated balance sheet of the Company or Parent. “Volume Determination Procedures” means (a) in respect of determining the Net Storage Volume of Permitted Feedstock in the Included Permitted Feedstock Storage Tanks or Renewable Products in the Included Renewable Product Tanks, the Company’s ordinary daily and month - end procedures, which include manually gauging each Included Permitted Feedstock Storage Tank or Included Renewable Product Tank owned by Company on the last day of the month to ensure that the automated tank level readings are accurate to within a tolerance of two inches; provided that if the automated reading cannot be calibrated to be within such tolerance, “Volume Determination Procedures” shall include the manual gauge reading in the Company’s calculation of month -end inventory; (b) in respect of determining the Net Storage Volume of Renewable Products in the Included Renewable Product Tanks owned by any third party, using the volumes reported on the most recently available daily reports or monthly statements in respect of such tanks; (c) in respect of the linefill in the Included Permitted Feedstock Pipelines, such pipelines shall be deemed full, except when Renewable Products owned by third parties are flowing through such pipelines, and (d) in respect to linefill or stored barrels in an Included Permitted Feedstock Pipelines owned by third parties, the most recently available daily storage reports or monthly statements indicating the amount of Permitted Feedstock in respect of such pipelines, adjusted for best available information for daily injections and receipts since the last storage report date.
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31 13585990v13 “GHG Attribute” means (i) any certificates issued in relation to the Biomethane under a biofuel certification program; (ii) any avoided emissions of carbon dioxide (CO2), methane (CH4), and other Greenhouse Gases attributable to the destruction of methane or the Biomethane that have been determined by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere, including all offset credits or other benefits issued, generated or retired in respect of such avoided emissions and including Lifecycle Greenhouse Gas Emissions; and (iii) the reporting rights to the foregoing attributes. “Greenhouse Gas” means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydroflourocarbons, perfluorocarbons, sulphur hexafluoride, or any other substance or combination of substances that may become regulated or designated as Greenhouse Gases under any federal, state or local law or regulation, or any emission reduction registry, trading system, or reporting or reduction program for Greenhouse Gas emission reductions that is established, certified, maintained, or recognized by any international, governmental (including U.N., U.S. federal, state, or local agencies), or non-governmental agency from time to time, in each case measured in increments of one metric tonne of carbon dioxide equivalent. “LCFS Account” means an account showing the LCFS Credits generated or transferred, purchased or acquired by Company, and as established with CARB or another governmental authority pursuant to the LCFS. “LCFS Credits” means credits generated and traded under the Low Carbon Fuel Standard, with each credit equal to one (1) metric tonne of carbon dioxide reduction as compared to the baseline CO2 emissions under the LCFS. “LCFS Pathway” means a CARB-approved fuel pathway pursuant to the LCFS as necessary for the creation and the receipt of LCFS Credits associated with the use of such Biogas (as applicable). “LCFS at Rack” means the cost of compliance with California Low Carbon Fuel Standard, as standardized and quoted on a daily basis in the West Coast Report published by OPIS. “Lifecycle Greenhouse Gas Emissions” means the aggregate quantity of Greenhouse Gas emissions (including direct emissions and significant indirect emissions from land use changes), as determined under an Applicable Program, related to the full fuel lifecycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all Greenhouse Gases are adjusted to account for their relative global warming potential. “Low Carbon Fuel Standard” or “LCFS” means the regulations, orders, decrees and standards issued by CARB or other applicable governmental authority implementing or otherwise applicable to the Low Carbon Fuel Standard set forth in the California Code of Regulations at Title 17, §§ 95480 et seq., and each successor regulation, as may be subsequently amended, supplemented or restated from time to time. “Pathways” means the LCFS Pathway, the RFS Pathway and any other applicable pathway under an Applicable Program.
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33 13585990v13 (b) Unless otherwise specified, all references to an “Article,” “Section,” or Schedule” are to an Article or Section hereof or a Schedule attached hereto. (c) All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Agreement. (d) Unless expressly provided otherwise, the word “including” as used herein does not limit the preceding words or terms and shall be read to be followed by the words “without limitation” or words having similar import. (e) Unless expressly provided otherwise, all references to days, weeks, months and quarters mean calendar days, weeks, months and quarters, respectively. (f) Unless expressly provided otherwise, references herein to “consent” mean the prior written consent of the Party at issue, which shall not be unreasonably withheld, delayed or conditioned. (g) A reference to any Party to this Agreement or another agreement or document includes the Party’s permitted successors and assigns. (h) Unless the contrary clearly appears from the context, for purposes of this Agreement, the singular number includes the plural number and vice versa; and each gender includes the other gender. (i) Except where specifically stated otherwise, any reference to any Applicable Law or agreement shall be a reference to the same as amended, supplemented or re-enacted from time to time. (j) Unless otherwise expressly stated herein, any reference to “volume” shall be deemed to refer to actual Net Storage Volume, unless such volume has not been yet been determined, in which case, volume shall be an estimated net volume determined in accordance with the terms hereof. (k) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. (l) All references herein to “estimates” or “projections” are intended to be references to good faith statements with respect to future events, and are not to be construed as guarantees of future performance. (m) Unless otherwise expressly stated herein, all references to “Schedules” shall mean and include such Schedules as they may be amended, revised or updated from time to time, as evidenced by written agreement of the Parties evidencing such revision, amendment or update (it being acknowledged hereby that the foregoing does not require any Party hereto to revise, amend or update any such Schedule).
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35 13585990v13 (g) Macquarie and the Company shall have confirmed to their satisfaction that, as of the Effective Date, (i) each Existing Financing Agreement or any related Creditor Acknowledgment contains provisions (including through amendments thereto and other ancillary documents such as lien releases, in each case in form and substance satisfactory to Macquarie) that confirm that this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby do not and shall not conflict with or violate any terms and conditions of such Existing Financing Agreement and (ii) each Existing Financing Agreement is subject to a Creditor Acknowledgment, including the Acknowledgment Agreement and the Stonebriar Letter Agreement; (h) The Company shall have provided Macquarie with evidence, in a form reasonably satisfactory to Macquarie, that the Definitive Effective Date Volume shall be sold to Macquarie within one (1) Business Day of the Effective Date free and clear of any Liens, other than Permitted S&O Liens; (i) The Company shall have duly executed and delivered the Lien Documents (other than the Pledge and Security Agreement (RINs) and any UCC financing statements related thereto) granting and perfecting in favor of Xxxxxxxxx the security interest and lien contemplated thereby and all actions necessary to perfect the Liens granted thereunder shall have been completed, including the filing of UCC financing statements; (j) The Company shall have duly executed and delivered the Fees and Adjustments Letter and performed all terms and conditions thereof to be performed by the Company on or before the Effective Date; (k) The Company shall have duly executed and delivered the Master Agreement in form and in substance satisfactory to Macquarie; (l) The Stonebriar Sale and Leaseback Agreements shall be in full force and effect and no Event of Default shall exist thereunder, and the Company shall have delivered executed copies of any amendments or supplements thereto since August 5, 2022; (m) The Company shall have delivered evidence satisfactory to Macquarie that the Montana Renewables Services Agreement is in full force and effect together with any and all amendments thereto; (n) That certain Storage Facilities Agreement (Top Lease) dated as of November 18, 2021 between the Company and Calumet Montana shall have terminated in accordance with its terms; (o) That certain bailee letter agreement dated as of November 18, 2021 among Macquarie, Calumet Montana and the Company shall have terminated in accordance with its terms; (p) That certain Acknowledgment Agreement dated as of August 5, 2022 by and among Macquarie, Stonebriar and the other parties thereto shall have terminated in accordance with its terms;
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36 13585990v13 (q) The Company shall have delivered to Macquarie a certificate signed by an appropriate officer of the Company certifying as to incumbency, charter documents, good standing, due authorization, board approval and resolutions of such person; (r) The Company shall have delivered to Macquarie an opinion of counsel, in form and substance satisfactory to Macquarie, covering such matters as Macquarie shall reasonably request, including: good standing; existence and due qualification; power and authority; due authorization and execution; enforceability of the Transaction Documents; no breach or violation of the Existing Financing Agreements; and the validity and perfection of Macquarie’s lien on the Renewables Credit Support and the other Credit Support under the Lien Documents (other than the Pledge and Security Agreement (RINs) and any UCC financing statements related thereto); (s) No action or proceeding shall have been instituted nor shall any action by a Governmental Authority be threatened, nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority as of the Effective Date to set aside, restrain, enjoin or prevent the transactions and performance of the obligations contemplated by this Agreement; (t) Neither the Refinery nor any of the Included Locations shall have been affected adversely or threatened to be affected adversely by any loss or damage, whether or not covered by insurance, unless such loss or damages would not have a material adverse effect on the usual, regular and ordinary operations of the Refinery or the Included Locations; (u) The Company shall have delivered to Macquarie insurance certificates evidencing the effectiveness of the insurance policies and endorsements required by Article 16 below; (v) The Company shall have complied with all covenants and agreements hereunder that it is required to comply with on or before the Effective Date; (w) All representations and warranties of the Company and its Subsidiaries contained in the Transaction Documents shall be true and correct on and as of the Effective Date, except for such representations and warranties that are expressly limited to another date; (x) The Company shall have delivered to Macquarie such other certificates, documents and instruments as may be reasonably necessary to consummate the transactions contemplated herein; (y) Macquarie shall have received necessary evidence that any prior applicable UCC filings, in favor of existing secured creditors, have been terminated or amended to confirm that the Renewables Credit Support and the other Credit Support is not included in the collateral covered by such UCC filings; (z) Macquarie shall have received payment of any amounts due and payable within one (1) Business Day of the Effective Date under the Side Letter;
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39 13585990v13 in this Section 2.3, the “Commencement Date” shall be a Business Day mutually agreed to by the Parties on or after the Effective Date and on or prior to December 31, 2022 or such later date as the Parties shall agree (the “Latest Commencement Date”). (b) Conditions to Effectiveness of the Commencement Date. The effectiveness of the Commencement Date shall be subject to satisfaction of the following conditions precedent: (i) The Company shall have delivered evidence reasonably satisfactory to Macquarie that demonstrates the Company has successfully achieved Conversion Completion with respect to the Renewable Diesel Project; (ii) Macquarie or its representatives shall have conducted an inspection of the Refinery and the other Refinery Facilities and the operations thereof and shall have completed all necessary due diligence (including with respect to such matters listed in Section 2.1(hh)), all on terms and conditions reasonably satisfactory to Macquarie; (iii) Each of the Transaction Documents, the Base Agreements and the Financing Agreements shall be in full force and effect as of the Commencement Date and no defaults exist thereunder; (iv) Prior to the Commencement Date, the Company shall have provided to Macquarie an expected Renewable Product yield for the Refinery based on its then current operating forecast for the Refinery (the “Initial Estimated Yield”); (v) The Company shall have delivered to Macquarie executed copies of any amendments, supplements or modifications to the Montana Renewables Services Agreement, if any, entered into by the Company and Calumet Montana since the Effective Date; (vi) All representations and warranties of the Company and its Subsidiaries contained in the Transaction Documents shall be true and correct on and as of the Commencement Date, except for such representations and warranties that are expressly limited to another date; (vii) The Company shall have complied with all covenants and agreements hereunder that it is required to comply with on or before the Commencement Date; (viii) No action or proceeding shall have been instituted nor shall any action by a Governmental Authority be threatened, nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority as of the Commencement Date to set aside, restrain, enjoin or prevent the ongoing transactions and performance of the obligations contemplated by this Agreement; (ix) Neither the Refinery nor any of the Included Locations shall have been affected adversely or threatened to be affected adversely by any loss or
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40 13585990v13 damage, whether or not covered by insurance, unless such loss or damages would not have a material adverse effect on the usual, regular and ordinary operations of the Refinery or the Included Locations, and no material portion of the Permitted Feedstock shall have been affected adversely by any loss or damage, rotted or otherwise become off-specification; (x) The Company shall have provided Macquarie Schedule BB in form and in substance satisfactory to Macquarie; (xi) The Company shall have duly executed and delivered the Pledge and Security Agreement (RINs) granting and perfecting in favor of Xxxxxxxxx the security interest and lien contemplated thereby and all actions necessary to perfect the Liens granted thereunder shall have been completed, including the filing of UCC financing statements; (xii) The Company shall have delivered to Macquarie an opinion of counsel, in form and substance satisfactory to Macquarie, covering such matters as Macquarie shall reasonably request, including: good standing; existence and due qualification; power and authority; due authorization and execution; enforceability of the Pledge and Security Agreement (RINs); no breach or violation of the Existing Financing Agreements; and the validity and perfection of Macquarie’s lien on applicable Credit Support under the Pledge and Security Agreement (RINs) and any UCC financing statements related thereto. (xiii) The Company shall have delivered to Macquarie such other certificates, documents and instruments as may be reasonably necessary to consummate the ongoing transactions contemplated herein as of the Commencement Date; (xiv) Macquarie shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Commencement Date required to be reimbursed or paid by the Company hereunder, under the Fees and Adjustments Letter or any other Transaction Document on or prior to such date; and (xv) A Material Adverse Change shall not have occurred since the Effective Date. (c) If the Commencement Date has not occurred on or before the Latest Commencement Date, this Agreement shall terminate on the first Business Day following the Latest Commencement Date. In such case, all obligations of the Parties hereunder shall terminate, except for the obligations set forth in Article 2, Article 21, Article 22 and Article 24 and any obligation under the last sentence of this Section 2.3(c); provided, however, that nothing herein shall relieve any Party from liability for the breach of any of its representations, warranties, covenants or agreements set forth in this Agreement. Without limiting the foregoing, if the failure of the Commencement Date to occur on or before the Latest Commencement Date is due to (i) any breach by the Company of its obligations hereunder, including its obligations under clause (d) below or (ii) the failure of any of the
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43 13585990v13 (a) At least forty-five (45) days prior to the occurrence of a Change of Control, the Company shall provide written notice to Macquarie that such event is to occur and that, as a result, the Company has elected to terminate the Agreement on a date specified in such notice (the “Specified Termination Date”), which date shall (x) occur at least forty-five (45) days after such notice is given and (y) occur on the date that such Change of Control occurs; (b) The Specified Termination Date shall constitute a “Termination Date” for purposes of Article 20 hereof; (c) For purposes of determining the Termination Amount under Section 20.2 with respect to the Specified Termination Date: (i) if the Company exercises its early termination right under this Section 3.3 with a Specified Termination Date on or before October 31, 2023, such Termination Amount shall include the Specified Termination Amount; otherwise, if the Specified Termination Date occurs after October 31, 2023, such Termination Amount shall not include any Specified Termination Amount; (ii) all calculations incorporated into the Termination Amount with respect to volumes in excess of any minimum inventory level shall be made using the same pricing and methodology that would have applied if the Termination Date were not a Specified Termination Date; and (iii) Anything contained in this Section 3.3 or Section 20.2(a) notwithstanding, no Specified Termination Amount shall be due, owing or paid by the Company or its Affiliates, and the Specified Termination Amount shall be deemed to be zero, if a buyer of the Equity Interests of the Company or of all or substantially all of the assets constituting the Refinery assumes all of the obligations of the Company under the Transaction Documents under such documentation as is satisfactory to Macquarie, and such buyer is of acceptable credit quality to Macquarie. (d) In the event that the Company determines that the Change of Control is unlikely to or cannot occur as planned following the delivery of a termination notice under Section 3.3(a), or will be delayed from the date specified in such notice, the Company shall promptly deliver notice to Macquarie of such circumstance and the newly-anticipated date of the Change of Control, if applicable, and this Agreement shall continue in effect in accordance with its terms (i) if the Change of Control is not expected to occur, as if the termination notice under Section 3.3(a) had never been delivered, or (ii) if the Change of Control is delayed, until the occurrence of the Change of Control, provided, however, that (i) the Parties shall use commercially reasonable efforts to resume normal operations hereunder as promptly as possible after delivery of the notice contemplated in this Section 3.3(a); and (ii) Macquarie shall be promptly reimbursed by the Company (A) for any and all costs and reasonable expenses arising from or attributable to Macquarie’s preparations for the occurrence of such Specified Termination Date, and (B) for any and all costs and reasonable expenses incurred by Macquarie in keeping this Agreement in full force and
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45 13585990v13 (i) No later than the fifteenth (15th) day of the month preceding a Delivery Month, the Company shall provide Macquarie with a written forecast for the next two succeeding full Delivery Months in the form of Schedule AA, setting forth the Refinery’s anticipated Permitted Feedstock requirements (each, a “Monthly Permitted Feedstock Forecast”). The Monthly Permitted Feedstock Forecast will include the quantity, grade and schedule of Refinery Procured Permitted Feedstock Barrels expected to be delivered, if any, for each Delivery Month included in such forecast. (ii) Macquarie shall have the right to reject any Monthly Permitted Feedstock Forecast; provided, however, that in the event Macquarie does not reject the same within one (1) Business Day after receiving the Monthly Permitted Feedstock Forecast, Macquarie shall be deemed to have accepted the same. In the event Macquarie timely rejects any Monthly Permitted Feedstock Forecast, the Parties will meet (including by telephone or internet) not later than the following Business Day to agree upon a mutually agreeable alternative. (iii) If thereafter any change occurs outside of customary refinery operations affecting the quantity, grade or schedule of the Refinery Procured Permitted Feedstock Barrels that the Company expects to procure for delivery during such Delivery Month, the Company shall promptly advise Macquarie of such change and resolve and agree upon any needed changes in Target Month-End Permitted Feedstock Volumes. (c) Weekly Permitted Feedstock Projection. No later than 5:00 p.m., EST on Thursday of each week, the Company shall provide Macquarie with a written summary in the form of Schedule G of the Refinery’s projected Permitted Feedstock runs for the next immediately succeeding Projection Week (each, a “Weekly Permitted Feedstock Projection”). Macquarie shall have the right to reject any Weekly Permitted Feedstock Projection; provided, however, that in the event Xxxxxxxxx does not reject a Weekly Permitted Feedstock Projection by Friday at 5:00 pm EST, Macquarie shall be deemed to have accepted the same. In the event Macquarie timely rejects any Weekly Permitted Feedstock Projection, the Parties will meet (including by telephone or internet) not later than the following Business Day to agree upon a mutually agreeable alternative. (d) Change in Weekly Permitted Feedstock Projection. The Company shall promptly notify Macquarie in writing upon learning of any material change in any Weekly Permitted Feedstock Projection or if it is necessary to delay any previously scheduled pipeline nominations. (e) Responsibility of Company for Forecast and Projections. The Parties acknowledge that the Company is solely responsible for providing the Monthly Permitted Feedstock Forecast and the Weekly Permitted Feedstock Projection and for making any adjustments thereto, and the Company agrees that all such forecasts and projections shall be prepared in good faith, with due regard to all available and reliable historical information and the Company’s then-current business prospects, and in accordance with such standards of care as are generally applicable in the U.S. Renewable Fuels industry; provided,
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47 13585990v13 any additional Macquarie Permitted Feedstock Procurement Contract, and the Company shall not represent to any third party that it has such authority. If the Company has negotiated an offer from a Third Party Supplier for an additional Macquarie Permitted Feedstock Procurement Contract that the Company wishes to be executed, the Company shall apprise Macquarie in writing, using the applicable trade sheet included in Schedule Q, of the terms of such offer, and Macquarie shall promptly, but no later than two (2) Business Days after the Company’s delivery of such applicable trade sheet, determine and advise the Company as to whether Macquarie desires to accept such offer. If Macquarie indicates its desire to accept such offer, then Macquarie shall promptly endeavor to formally communicate its acceptance of such offer to the Company and such Third Party Supplier so that the Third Party Supplier and Macquarie may enter into a binding additional Macquarie Permitted Feedstock Procurement Contract on terms agreeable to Macquarie. In the event Macquarie does not respond within such two (2) Business Days, Macquarie shall be deemed to have declined to enter into such Macquarie Permitted Feedstock Procurement Contract. If any Macquarie Permitted Feedstock Procurement Contract is a term contract pursuant to which Macquarie may, from time to time, nominate a shipment by a Nomination Cutoff Date for expected delivery during a designated month, Macquarie shall apprise the Company of such timing requirements relating to such Nomination Cutoff Date. (c) Macquarie’s Right to Reject Macquarie Permitted Feedstock Procurement Contracts. Macquarie may, in its discretion elect to reject any such offer to enter into an Macquarie Permitted Feedstock Procurement Contract, provided that from time to time during the Term hereof Macquarie shall, upon the reasonable request of the Company, consult with the Company regarding those counterparties that Macquarie would be prepared to trade with as of the time of such consultation upon review of acceptable documentation as further contemplated herein. Xxxxxxxxx’s decision to reject any such offer shall be based on such factors and considerations as Macquarie deems relevant, which may include (without limitation) the proposed commercial terms, credit considerations (including credit quality and credit limits), reputational considerations, prior or current interactions between Macquarie and the proposed Third Party Supplier, the presence or absence of trading documentation between Macquarie and the proposed Third Party Supplier, the presence or absence of a pre-existing trading relationship with the proposed Third Party Supplier or the suitability of the proposed Third Party Supplier for such transaction. Without limiting the foregoing, any proposed Third Party Supplier shall be required to satisfy Macquarie’s internal requirements and policies as they relate to any applicable “know-your-customer” rules, anti-money laundering policies and procedures, laws, rules and regulations (including without limitation, the Patriot Act, and rules and regulations of OFAC) and other similar client identification and business conduct standards and dealing policies and procedures (including reputational considerations), in each case, as consistently applied by Macquarie and to have provided to Macquarie all material documentation and other information required by such policies and procedures and applicable regulatory authorities. Notwithstanding the foregoing, Macquarie shall not reject any such offer to enter into a Macquarie Permitted Feedstock Procurement Contract with any counterparty based solely on the fact that such offer was presented to it by the Company hereunder where, at such time, Macquarie would otherwise have transacted with such counterparty on such terms and under all other applicable policies and limitations.
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56 13585990v13 inventory levels set forth in Schedule D for each Pricing Group, which minimum inventory levels shall be satisfied by the procurement of Permitted Feedstock and Renewable Products in accordance with the terms hereof. The Company represents and warrants that the respective Target Month-End Permitted Feedstock Volumes and Target Month-End Renewable Product Volumes that the Company sets for each month during the Term hereof shall be the Company’s good faith estimate (which is not a guarantee of actual performance), at the time it sets such targets, of the Ending In-Tank Permitted Feedstock Inventory and the Ending In-Tank Renewable Product Inventory at the end of such month. 7.2 Target Month-End Permitted Feedstock Volume. (a) Projected Monthly Run Volume. By no later than the fifteenth (15th) day of the month preceding each Delivery Month, the Company shall notify Macquarie of the aggregate quantity of Permitted Feedstock that the Company expects to run at the Refinery during such Delivery Month (the “Projected Monthly Run Volume”). Macquarie shall have the right to reject any Projected Monthly Run Volume; provided, however, that in the event Xxxxxxxxx does not reject the same within one (1) Business Day after receiving the Projected Monthly Run Volume, Macquarie shall be deemed to have accepted the same. In the event Macquarie timely rejects any Projected Monthly Run Volume, the Parties will meet not later than the following Business Day to agree upon a mutually agreeable alternative. (b) Constraints on Target Month-End Permitted Feedstock Volume. In establishing a Target Month-End Permitted Feedstock Volume, the Parties acknowledge that any increase in a Target Month-End Permitted Feedstock Volume is constrained to the extent that (i) the Permitted Feedstock available for delivery under the Macquarie Permitted Feedstock Procurement Contracts with Third Party Suppliers, plus (ii) Other Barrels available for delivery during such month are not intended to be greater than the Company’s Permitted Feedstock requirements for the Refinery for the month related to such Target Month-End Permitted Feedstock Volume. (c) Adjustments to Target Month-End Permitted Feedstock Volume. The Parties may, by mutual agreement, adjust the Target Month-End Permitted Feedstock Volume for any month. Any change to a Target Month-End Permitted Feedstock Volume shall affect only the subject month and does not impact the calculation of the Target Month- End Permitted Feedstock Volume in subsequent months. 7.3 Target Month-End Renewable Product Volume. (a) [Reserved] (b) Target Month-End Renewable Product Volume; Applicable Range. Subject to events of Force Majeure, facility turnarounds, the performance of any third parties (including purchasers of Renewable Products under the Marketing and Sales Agreement), the Company shall, in establishing each Target Month-End Renewable Product Volume, use commercially reasonable efforts to cause such Target Month-End Renewable Product
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60 13585990v13 such Excess Quantity. Within three (3) Business Days after such notice is given, Macquarie shall advise the Company as to whether Macquarie accepts such Excess Quantity (in which case Section 7.10(b) shall apply) or rejects such Excess Quantity (in which case Section 7.10(c) shall apply). (b) Response for Excess Quantity. If Macquarie accepts an Excess Quantity then, for all purposes of this Agreement, such Excess Quantity shall constitute the maximum Excess Inventory Level for the relevant Renewable Product Group for the Included Locations or the Specified Company Locations (as the case may be) for the balance of the month in which such Excess Quantity was first identified and, at Macquarie’s option, for such additional month or months as Macquarie may specify; provided that if Macquarie does not accept such Excess Quantity for any additional month or months, such Excess Quantity shall only be in effect for the then current month and if such Excess Quantity remains after the end of such current month, the provisions of this Section 7.10 shall apply anew as of the beginning the following month. (c) Disposal of Excess Quantity. If Macquarie rejects an Excess Quantity then, for purposes of determining amounts due under Sections 10.1 and 10.2 of this Agreement, such Excess Quantity shall not be counted as Permitted Feedstock or Renewable Products being held at an Included Location or Specified Company Location. In such case, if the Company is able to segregate in one or more Included Tanks or tanks at Specified Company Locations a quantity of the relevant Renewable Product Group at least equal to such Excess Quantity, the Company may, at its option, elect to designate such Included Tanks or other tanks and purchase from Macquarie the segregated quantity of such Renewable Product Group held in such designated Included Tanks so that the quantity of such Renewable Product Group owned by Macquarie (in the case of an Excess Quantity relating to the Included Location) would not exceed the applicable maximum inventory level set forth on Schedule D for the relevant Renewable Product Group for the Included Locations or the Specified Company Locations (as the case may be) after giving effect to such purchase or removal, at a price or value determined pursuant to the applicable provisions of Article 10. After settlement of such purchase or removal, such Included Tanks shall no longer constitute Included Locations or such other tanks shall no longer constitute Specified Company Locations for purposes hereof unless and until Macquarie determines, in its reasonable discretion, that Macquarie’s ownership of the quantities held in such tanks would not result, as of the time of such determination, in the aggregate quantity of the relevant Renewable Product Group owned by Macquarie exceeding the applicable maximum inventory level set forth on Schedule D. If and when such determination is made, the Parties shall confirm the sale by the Company to Macquarie of the quantities held in such Included Tanks at the prices or values that would then apply to additional volumes under Article 10 hereof and upon the settlement of such purchase or inclusion, such Included Tanks or other tanks shall thereafter again constitute Included Locations or Specified Company Locations for all purposes hereof.
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67 13585990v13 (c) To the extent the Company has not paid or reimbursed Macquarie for any Ancillary Costs then outstanding and payable with respect to any month or any adjustments or refunds have occurred with respect to any Ancillary Costs previously paid or reimbursed, Macquarie may include in the Monthly True-Up Amount for such month as a separate line item on the applicable Monthly True-Up Amount invoice an amount to compensate the Parties, as appropriate, for such items. (d) From time to time upon the reasonable request of either Party, the Parties shall consult to assess whether (i) Ancillary Costs actually being incurred are consistent with the expectations of the Parties and the terms of this Agreement, (ii) procedures for paying, handling or otherwise dealing with Ancillary Costs can be improved or should be modified, (iii) documentation relating to substantiation of Ancillary Costs is sufficient and (iv) in any other respect the processing of Ancillary Costs hereunder can or improved or modified. 9.2 Month-End Inventory. (a) Ending Inventory. (i) By 12:00 p.m. EST on the first Business day of any Delivery Month, the Company, using Best Available Inventory Data, provided that if such inventory data is not available, using the last day for which such data is available, shall report to Macquarie the following: (i) the aggregate volume of Permitted Feedstock held in the Included Permitted Feedstock Storage Tanks at that time (the “Ending In- Tank Permitted Feedstock Inventory”), (ii) the aggregate amount of Permitted Feedstock held in Specified Company Locations at that time (the “Ending Specified Company Locations Permitted Feedstock Inventory”), (iii) for each Renewable Product, the aggregate volume of such Renewable Product held in the Included Renewable Product Locations at that time (each, an “Ending In-Tank Renewable Product Inventory”) and (iv) for each Renewable Product, the aggregate volume of such Renewable Product held in the Specified Company Locations at that time (each, an “Ending Specified Company Locations Renewable Product Inventory”). (ii) As of 11:59:59 p.m., EST, on the last day of each month, the Company shall apply the Volume Determination Procedures to the Included Locations, and based thereon shall determine for such month (i) the aggregate volume of Permitted Feedstock held in the Included Permitted Feedstock Storage Tanks at that time, (ii) the aggregate amount of Permitted Feedstock held in Specified Company Locations at that time, (iii) for each Renewable Product, the aggregate volume of such Renewable Product held in the Included Renewable Product Locations at that time and (iv) for each Renewable Product, the aggregate volume of such Renewable Product held in the Specified Company Locations at that time. The Company shall notify Macquarie of such volumes by no later than 5:00 p.m., EST on the fifth Business Day thereafter, except that with respect to volume information provided by third parties, the Company shall endeavor to cause third parties to provide such information to Macquarie by the fifteenth (15th) day after the end of such month.
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70 13585990v13 or in the administration, interpretation or application thereof by any Governmental Authority, (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority or (iv) any interpretation of or proposal to implement any of the foregoing (each, a “Regulatory Event”), Macquarie is or would (A) not be permitted to hold or own all or certain types of Permitted Feedstock and/or Renewable Products, (B) be unable to perform in any material respect its obligations under this Agreement and/or the other Transaction Documents or (C) were it to continue to hold or own such Permitted Feedstock and/or Renewable Product or perform such obligations, be or likely to be subject to additional or increased burdens or costs, then it shall notify the Company in writing of such determination and the Parties shall promptly consult in good faith to determine and assess what actions or steps, if any, either Party or both Parties could implement to alleviate, minimize and/or mitigate the effect of any such Regulatory Event. If the Parties identify actions or steps that, in Macquarie’s reasonable judgment, can be implemented without resulting in Macquarie incurring any additional costs, expenses hereunder or under the other Transaction Documents while preserving the economic terms and conditions of this Agreement and the other Transaction Documents (including economic benefits, risk allocation, costs and liabilities), then the Parties shall, in good faith and in a commercially reasonable manner, endeavor to implement such actions and steps. If the Parties are unable to identify such actions or steps or are unable to implement any actions and steps that have been so identified, then Macquarie may, so long as such Regulatory Event continues, by written notice to the Company, elect to terminate this Agreement in the manner provided for in Article 20 on such date Macquarie shall specify in such notice, which date shall constitute a Termination Date for purposes of Article 20; provided however, that (unless such Regulatory Event has or is expected to become mandatorily effective at an earlier date, in which event termination shall be effective at such earlier date) the date specified in such notice shall occur at least 120 days after the date such notice is delivered to the Company and if practicable on the last day of a month. (b) Without limiting the generality of the foregoing, following the occurrence of a Regulatory Event Macquarie may, in its sole discretion, elect to propose to modify this Agreement, the other Transaction Documents and the transactions subject hereto and thereto so that Macquarie shall not be the owner of any Renewables held at Included Locations and that instead all Renewables held at Included Locations shall constitute Renewables Credit Support and all Included Locations shall constitute Specified Company Locations, and if Macquarie makes such election, then the Company shall (and shall cause its Affiliates (other than Qualified Owners) and third parties to) execute such amendments and modifications to the Transaction Documents, take such other actions and execute and deliver such ancillary documents (including acknowledgments, consents and waivers) as are necessary and appropriate in Macquarie’s judgment to implement such alternative structure; provided however, that (i) the Company shall not be obligated to execute such amendments and modifications and to take such actions unless such alternative structure as implemented preserves, in all material respects, the economic terms in effect prior to the execution of such implementation, including the pricing and minimum inventory levels applicable to those new Specified Company Locations that were previously Included Locations, and (ii) the Company may elect, in response to Macquarie’s proposed election to convert to an all Renewables Credit Support transaction (with no owned Renewables)
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79 13585990v13 any other provision of this Agreement or any other Transaction Documents, including without limitation, under Section 13.4(a) or Article 19 below. For the avoidance of doubt, the Company acknowledges and agrees that the Independent Amount constitutes credit support for the Transaction Obligations, including as provided in the Master Agreement. Macquarie shall exercise reasonable care to assure the safe custody of the Independent Amount to the extent required by Applicable Law. (c) As further security for the prompt and complete payment of all amounts due or that may become due hereunder, the Company shall grant the Liens contemplated by, comply with the terms of and maintain in full force and effect the Lien Documents and assist Macquarie in maintaining any UCC financing statements or other filings necessary to preserve Macquarie’s Liens pursuant to the Lien Documents. REFINERY TURNAROUND, MAINTENANCE AND CLOSURE 14.1 The Company shall be responsible for all operations and maintenance of Included Locations which are, directly or indirectly, owned by the Company (whether performing such operations and maintenance itself or contracting with a third-party to perform such obligations). The Company shall promptly notify Macquarie in writing of the date for which any inspection, maintenance, restart or turnaround at the Included Locations, the Refinery or the Refinery Facilities has been scheduled, or any revision to previously scheduled inspection, maintenance, restart or turnaround, which may affect receipts of Permitted Feedstock at the Refinery, the Included Tanks, the processing of Permitted Feedstock in the Refinery or the delivery of Renewable Products to Macquarie or by Macquarie to the Company or any third parties; provided that, (i) promptly after the Company completes its annual business plan with respect to any year, it shall notify Macquarie of any such inspection, maintenance, restart or turnaround contemplated with respect to such year and (ii) the Company shall give Macquarie at least two (2) months’ prior written notice of the commencement of any such scheduled inspection, maintenance, restart or turnaround. 14.2 The Company shall promptly notify Macquarie orally (followed by prompt written notice) of (i) any discharge into the environment of any Renewables, in a manner contrary to Applicable Law, which discharge would reasonably be expected to result in a Material Adverse Change, and (ii) the suspension, for a period in excess of twenty-four (24) hours, of more than 50% of the applicable daily forecasted production of all Renewable Products (taken as a whole) at the Refinery. 14.3 In the event of a scheduled shutdown of the Refinery, the Company shall, to the extent feasible, complete processing of all Permitted Feedstock being charged to, processed at or consumed in the Refinery at that time. 14.4 (a) Subject to Section 14.4(b) below, if at any time Macquarie determines that all or any portion of the facilities constituting an Included Location (in each case, “Identified Facilities”) fail to satisfy Macquarie’s then applicable policies and procedures
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80 13585990v13 (such policies and procedures to be in reasonable accordance with and not to exceed industry, regulatory and customary practices) relating to the prudent maintenance and operation of storage tanks, pipeline facilities, vessels and other infrastructure used to store or transport Permitted Feedstock and/or Renewable Products (“Macquarie’s Policies and Procedures”), and without limiting any other rights and remedies available to Macquarie hereunder or under any other Transaction Document, Macquarie may provide the Company notice of such failure so long as such failure is continuing and, if Macquarie provides such notice, the following provisions shall be applicable: (i) in the case of any Identified Facilities that are subject to the Storage Facility Agreement, upon such date as Macquarie shall specify, but not less than two hundred seventy (270) days after the date such notice is delivered to the Company (so as to allow to the Company time to remedy the non-compliance or other failure or to find substitute financial arrangements), such Identified Facilities shall cease to constitute an Included Location (or part of an Included Location) for purposes hereof and any payment to Macquarie in respect of any Permitted Feedstock or Renewable Products held in such Identified Facilities shall, unless such failure has been cured to the reasonable satisfaction of Macquarie, become due in accordance with the provisions of Article 10 hereof; and (ii) in the case of any Identified Facilities that are subject to a Required Storage and Transportation Arrangement, the Parties shall endeavor, within not more than two hundred seventy (270) days after the date such notice is delivered to the Company (so as to allow to the Company time to remedy the non-compliance or other failure or to find substitute financial arrangements), to execute such rights, provide such notices, negotiate such reassignments or terminations and/or take such further actions as Macquarie deems necessary or appropriate to terminate Macquarie’s status as the party entitled to use and/or hold Permitted Feedstock or Renewable Products at such Identified Facilities and, concurrently with effecting the termination of such status, such Identified Facilities shall cease to constitute an Included Location (or part of an Included Location) for purposes hereof and any payment to Macquarie in respect of any Permitted Feedstock or Renewable Products held in such Identified Facilities shall become due in accordance with the provisions of Article 10 hereof. (b) Macquarie’s rights under Section 14.4(a) above are subject to the following additional terms and conditions: (i) Macquarie shall apply Macquarie’s Policies and Procedures with respect to the Included Locations in a non-discriminatory manner as compared with other similar storage tanks and pipeline facilities utilized by Macquarie in a similar manner; (ii) If the failure of any Identified Facilities to satisfy Macquarie’s Policies and Procedures is a result of Macquarie’s Policies and Procedures exceeding the standards or requirements imposed under Applicable Law or good and prudent industry practice, then (1) Macquarie shall not require the removal of
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81 13585990v13 such Identified Facilities as Included Locations until the 270th day after giving the Company written notice of such failure, (2) during such 270 day period, Macquarie shall consult with the Company in good faith to determine whether based on further information provided by the Company such Identified Facilities comply with Xxxxxxxxx’s Policies and Procedures and/or whether additional actions or procedures can be taken or implemented so that, as a result, such Identified Facilities would comply with Xxxxxxxxx’s Policies and Procedures, and (3) if it is determined that such Identified Facilities do comply with Macquarie’s Policies and Procedures or, as a result of such additional actions or procedures, such Identified Facilities become so compliant within such 270 day period, then such Identified Facilities shall not cease to be Included Locations based on the noncompliance stated in Xxxxxxxxx’s notice to the Company; (iii) If within the 270 day period referred to in clause (ii)(2) above, the Company has identified and diligently commenced the implementation of additional actions or procedures that are intended to result in such Identified Facilities becoming compliant with Macquarie’s Policies and Procedures, but such implementation cannot through commercially reasonable efforts be completed within such 270 day period, then so long as the Company continues to diligently and in a commercially reasonable manner pursue the implementation of such additional actions and procedures, Macquarie shall extend such 270 day period up for up to an additional ninety (90) days (or such longer period as the Parties may mutually agree) to allow for such implementation to be completed and if such implementation is completed within such additional 90 day period (or such longer period as the Parties may mutually agree), then such Identified Facilities shall not cease to be Included Locations based on the noncompliance stated in Macquarie’s notice to the Company; and (iv) If any Identified Facilities cease to be Included Locations pursuant to Section 14.4(a) above and thereafter Macquarie determines, in its reasonable good faith judgment, that such Identified Facilities have become compliant with Macquarie’s Policies and Procedures, then Macquarie shall promptly cooperate with the Company to reestablish such Identified Facilities as Included Locations hereunder. TAXES 15.1 (a) The Company shall pay and indemnify and hold Macquarie harmless against, the amount of all sales, use, value added, transfer, stamp, property, duties, ad valorem, or other similar taxes, (but excluding all taxes imposed on or measured by net income or profits, all franchise taxes, all branch profits taxes, and all U.S. federal withholding taxes, including U.S. federal withholding tax imposed pursuant to FATCA), howsoever designated regardless of the taxing authority, and all penalties and interest thereon, paid, owing, asserted against, or incurred by Macquarie directly or indirectly with respect to the Permitted Feedstock procured and sold to Company hereunder, and the Renewable Products purchased and resold to Company hereunder, , except to the extent any such taxes, penalties, or interest are due to the gross negligence or willful
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82 13585990v13 misconduct of Macquarie or breach of the terms hereof by Macquarie (each indemnifiable tax is a “Tax” and collectively are “Taxes”). The Company shall pay when due such Taxes unless there is an applicable exemption from such Taxes, in which case the Company shall provide written confirmation of such Tax exemption or an exemption certificate to Macquarie. To the extent Macquarie is required by law to collect such Taxes from the Company, one hundred percent (100%) of such Taxes shall be added to invoices as separately stated charges and paid in full by the Company in accordance with this Agreement, unless the Company is exempt from such Taxes and furnishes Macquarie with a certificate of exemption, and Macquarie shall timely pay the full amount of such Taxes to the applicable taxing authority in accordance with applicable law. Any refund or credit with respect to any Taxes paid or indemnified by the Company hereunder shall belong to the Company, and Macquarie shall promptly remit any such amounts that it receives to the Company. For the avoidance of doubt, Macquarie shall be responsible for all taxes imposed on or measured by Macquarie’s net or gross (or any derivative thereof) income, and the Company shall be responsible for all taxes imposed on or measured by the Company’s net or gross (or any derivative thereof) income. (b) In addition to paragraph (a), the Company shall complete and file all necessary property tax returns on Macquarie’s behalf with respect to Permitted Feedstock and Renewable Products that are the subject of this Agreement, regardless of whether property tax laws place the obligation to do so upon Macquarie or the Company, disclose Macquarie’s ownership interest therein, and pay such amounts as due. Provided that the Company pays (or indemnifies Macquarie for) all such property Taxes, the Company shall have the first right to claim income tax credits or deductions for such property Taxes paid and shall be solely responsible for the extent to which such credits or deductions are available to or realized by the Company. 15.2 If the Company disagrees with Xxxxxxxxx’s determination that any Tax is due with respect to transactions under this Agreement, the Company shall have the right to seek an administrative determination from the applicable taxing authority, or, alternatively, the Company shall have the right to contest any asserted claim for such Taxes, subject to its agreeing to indemnify Macquarie for the entire amount of such contested Tax should such Tax be deemed applicable. Macquarie agrees to reasonably cooperate with the Company, in the event the Company determines to contest any such Taxes. Company shall be responsible for all reasonable out of pocket costs and expenses incurred by Company or Macquarie in the event Company decides to seek an administrative determination from the applicable taxing authority or to contest any such Taxes. 15.3 (a)The Company and Macquarie shall promptly inform each other in writing of any assertion by a taxing authority of additional liability for Taxes in respect of the transactions under this Agreement. Any legal proceedings or any other action against Macquarie with respect to such asserted liability shall be under Macquarie’s direction but the Company shall be kept reasonably informed and consulted by Macquarie, provided that so long as the Company has sufficient available liquidity (as reasonably determined by Macquarie), then the Company shall have the option to assume the control and direction of any such legal proceedings or actions. Any legal proceedings or any other action against the Company with respect to such asserted liability for Taxes shall be under the Company’s direction but Macquarie shall be consulted. In any event, the Company and Macquarie shall reasonably cooperate with each other in connection with any
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83 13585990v13 asserted liability for Taxes by a taxing authority. Each Party shall bear all the reasonable out of pocket costs of any action undertaken by the other pursuant to this Section 15.3(a) at the Party’s request. (b) In addition to Section 15.3(a) and other information sharing requirements applicable to Macquarie and the Company, Macquarie and the Company shall annually and from time to time as is otherwise reasonable exchange and share information with each other as necessary to properly report, defend, challenge, and pay Taxes (including but not limited to sales taxes and file tax returns (including without limitation any returns referred to in Section 15.1(b)), including information that supports and demonstrates total sales, sales that are exempt from Tax, and sales that are subject to Tax at a reduced rate. 15.4 On or prior to the date of this Agreement (and from time to time thereafter upon the reasonable request of the Company), Macquarie shall deliver to the Company an executed original of IRS Form W-9 certifying that Macquarie is exempt from U.S. federal backup withholding tax, and if such form expires or becomes obsolete in any respect, Macquarie shall provide an updated form certifying that it is exempt from U.S. federal backup withholding tax. 15.5 Any other provision of this Agreement to the contrary notwithstanding, this Article 15 shall survive until ninety (90) days after the expiration of the statute of limitations for the assessment, collection, and levy of any Tax. INSURANCE 16.1 Insurance Coverages. The Company shall procure and maintain in full force and effect throughout the Term of this Agreement insurance coverages of the following types and amounts and with insurance companies rated not less than A- by A.M. Best Company, or otherwise equivalent in respect of the Company’s properties and operations consistent with, but not exceeding, the insurance coverage that the Company maintains as of the date of this Agreement. (a) Property damage including business interruption coverage on an “all risk” basis, including but not limited to flood, earthquake, windstorm, and tsunami, covering damage to the Refinery Facilities and the Storage Facilities on a repair or replacement cost basis in an amount sufficient to repair major components of such facilities. Business interruption and extra expense coverage shall include at least 18 months indemnity period and shall be in an amount equal to the projected net income plus costs that would necessarily continue from such facilities based upon the Company’s reasonable estimate thereof. (b) Inventory coverage on an “all risk” basis, including but not limited to flood, earthquake, windstorm, and tsunami, covering the loss, damage, destruction and/or theft of Permitted Feedstock and the Refinery’s Renewable Products in an amount equal to the market value or potential full replacement cost. Such coverage may be incorporated into the property insurance required in Section 16.1(a). (c) Commercial general liability coverage which includes bodily injury, broad form property damage and contractual liability, cross suit liability, Renewable Products
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86 13585990v13 processing of Permitted Feedstock, then Macquarie would be entitled to suspend, to a comparable extent, its purchasing of Renewable Products. 17.2 The Affected Party shall give prompt oral notice to the Non-Affected Party of its declaration of an event of Force Majeure, to be followed by written notice within twenty-four (24) hours after receiving such oral notice of the occurrence of a Force Majeure event, including, to the extent feasible, the details and the expected duration of the Force Majeure event and the volume of Permitted Feedstock or Renewable Products affected. The Affected Party also shall promptly notify the Non-Affected Party when the event of Force Majeure is terminated. However, the failure or inability of the Affected Party to provide such notice within the time periods specified above shall not preclude it from declaring an event of Force Majeure. 17.3 In the event the Affected Party’s performance is suspended due to an event of Force Majeure in excess of thirty (30) consecutive days after the date that notice of such event is given, and so long as such event is continuing, the Non-Affected Party, in its sole discretion, may terminate or curtail its obligations under this Agreement affected by such event of Force Majeure (the “Affected Obligations”) by giving notice of such termination or curtailment to the Affected Party, and neither Party shall have any further liability to the other in respect of such Affected Obligations to the extent terminated or curtailed, except for the rights and remedies previously accrued under this Agreement, any payment and indemnification obligations by either Party under this Agreement and the obligations set forth in Article 20. Without limiting any rights of any Non- Affected Party under this Article 17, the parties agree that following notice of an event of Force Majeure, they shall consult in good faith to assess potential actions or steps with respect thereto. 17.4 If any Affected Obligation is not terminated pursuant to this Article 17 or any other provision of this Agreement, performance shall resume to the extent made possible by the end or amelioration of the event of Force Majeure in accordance with the terms of this Agreement; provided, however, that the term of this Agreement shall not be extended. 17.5 The Parties acknowledge and agree that the right of Macquarie to declare a Force Majeure based upon any failure by a Third Party Supplier to deliver Permitted Feedstock under a Macquarie Permitted Feedstock Procurement Contract is solely for purposes of determining the respective rights and obligations as between Macquarie and the Company with respect to any Permitted Feedstock delivery affected thereby, and any such declaration shall not excuse the default of such Third Party Supplier under one or more Macquarie Permitted Feedstock Procurement Contracts. Any claims that Macquarie may have as a result of such Third Party Supplier’s failure shall be subject to Section 5.10 and any other applicable provisions of this Agreement relating to claims against third parties. 17.6 If at any time during the Term any of the Required Storage and Transportation Arrangements cease to be in effect (in whole or in part) or any of the applicable Included Renewable Product Pipelines or Included Renewable Product Tanks cease, in whole or in part, to be available to Macquarie pursuant to the Required Storage and Transportation Arrangements, and the foregoing is a result of or attributable to any owner or operator of such Included Renewable Product Pipelines or Included Renewable Product Tanks becoming Bankrupt or breaching or defaulting in any of its obligations relating to the Required Storage and Transportation Arrangements, then:
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88 13585990v13 knowledge), any provision of its constitutional documents, any order or judgment of any court or Governmental Authority applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets. (f) Except for the filing of UCC-1 or UCC-3 financing statements and the Lien Documents in applicable state and county filing offices, all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to the Transaction Documents have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with, except for such of the foregoing the absence or failure of which would not result in a Material Adverse Change. (g) Its obligations under the Transaction Documents to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law). (h) No Event of Default or Default has occurred and is continuing with respect to such Party, and no such event or circumstance would occur as a result of its entering into or performing its obligations under the Transaction Documents. (i) There is not pending or, to its knowledge, threatened against it or any of its Affiliates (other than Qualified Owners) any action, suit or proceeding at law or in equity or before any court, tribunal, Governmental Authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of the Transaction Documents or its ability to perform its obligations under the Transaction Documents. (j) It is not relying upon any representations of the other Party other than those expressly set forth in this Agreement or the other Transaction Documents. (k) It has entered into this Agreement as principal (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise), with a full understanding of the material terms and risks of the same, and is capable of assuming those risks. (l) It has made its trading and investment decisions (including their suitability) based upon its own judgment and any advice from its advisors as it has deemed necessary and not in reliance upon any view expressed by the other Party. (m) The other Party (i) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to this Agreement, (ii) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to this Agreement and (iii) has not given to it any assurance or guarantee as to the expected performance or result of this Agreement. (n) It is not bound by any agreement that would be violated by the execution, delivery or performance of this Agreement.
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90 13585990v13 (g) In the event the Company becomes Bankrupt, and to the extent permitted by Applicable Law, the Company intends that (i) Macquarie’s right to liquidate, collect, net and set off rights and obligations under this Agreement and liquidate and terminate this Agreement shall not be stayed, avoided, or otherwise limited by the Bankruptcy Code, including sections 362(a), 547, 548 or 553 thereof; (ii) Macquarie shall be entitled to the rights, remedies and protections afforded by and under, among other sections, sections 362(b)(6), 362(b)(17), 362((b)(27), 362(o), 546(e), 546(g), 546(j), 548(d), 553, 556, 560, 561 and 562 of the Bankruptcy Code; and (iii) any cash, securities or other property provided as performance assurance, credit support or collateral with respect to the transactions contemplated hereby shall constitute “margin payments” as defined in section 101(38) of the Bankruptcy Code and all payments for, under or in connection with the transactions contemplated hereby, shall constitute “settlement payments” as defined in section 101(51A) of the Bankruptcy Code. (h) If, in connection with the Company’s procurement of Permitted Feedstock or Renewable Products from any third party (a “Company Sourcing Transaction”), Macquarie enters into a Macquarie Permitted Feedstock Procurement Contract or an Included Renewable Product Purchase Transaction with the Company to purchase such Permitted Feedstock or Renewable Products from the Company and thereunder agrees to make a prepayment to the Company for such Permitted Feedstock or Renewable Products, then the Company covenants and agrees, with respect to such Company Sourcing Transaction, that: (i) the Company shall not request, make or agree to any modification to the bill of lading issued under any Company Sourcing Transaction (including without limitation any change to delivery location for the relevant shipment) without Macquarie’s prior written consent; and (ii) the funds prepaid by Macquarie to the Company under the related Macquarie Permitted Feedstock Procurement Contract or Included Renewable Product Purchase Transaction shall be used exclusively by the Company to make payment to the seller under such Company Sourcing Transaction and the date by which any prepayment from Macquarie is due to be made shall be fixed so that promptly after the Company’s receipt of such funds it shall be required to remit the same to the seller under such Company Sourcing Transaction or to post an irrevocable letter of credit issued to the seller under such Company Sourcing Transaction. (i) In connection with Macquarie’s procurement of Permitted Feedstock or Renewable Products, whether from the Company or any third party and whether under a Macquarie Permitted Feedstock Procurement Contract or an Included Renewable Product Purchase Transaction (each a “Sourcing Transaction”), the Company covenants and agrees that any out of pocket costs, losses or damages that Macquarie may incur as a result of such Sourcing Transaction, including due to failure by the Company or any such third party to deliver the Permitted Feedstock or Renewable Products subject to such Sourcing Transaction, shall constitute Ancillary Costs and be for the account of the Company and claims arising in connection therewith shall be subject to Section 5.10 hereof.
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91 13585990v13 (j) This Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby do not and shall not violate any terms and conditions of any Existing Financing Agreement or other Financing Agreement that is hereafter entered into; provided that that Company shall not, without the prior written consent of Macquarie, enter into any new Financing Agreement after the Effective Date (an “Additional Financing Agreement”) unless doing so would (i) not adversely affect in any respect any of Macquarie’s rights or remedies under this Agreement or the other Transaction Documents or Macquarie’s status as the owner of Permitted Feedstock and Renewable Products and, as applicable, RINs with respect to any such Renewable Product, in each case, to the extent contemplated hereby and by the other Transaction Documents, free and clear of any liens of any lender or other creditor that is party to such Additional Financing Agreement, other than Permitted S&O Liens and (ii) result in Company satisfying each of the conditions set forth in Section 2.1(g) above. (k) The Company shall not modify or amend (including any extensions of or elections under), or waive any rights arising under, any Financing Agreement without the prior written consent of Macquarie, if doing so would (i) adversely affect in any respect any of Macquarie’s rights or remedies under this Agreement or the other Transaction Documents or (ii) cause any Existing Financing Agreement to no longer satisfy the conditions set forth in Section 2.1(g) above, including, without limitation, the recognition that Macquarie is the owner of Permitted Feedstock and Renewable Products and, as applicable, RINs with respect to any such Renewable Product, in each case, to the extent contemplated hereby and by the other Transaction Documents, free and clear of any liens of any lender or other creditor that is party to such Financing Agreement, other than Permitted S&O Liens; provided however, that (A) Macquarie will not charge a fee to the Company for any written acknowledgment that any such amendment of a Financing Agreement does not adversely affect in any material respect any of Macquarie’s rights or remedies hereunder (as set forth above in clause (i)) and (B) Macquarie will use commercially reasonable efforts to administer such acknowledgments using in house legal counsel (subject to scheduling availability) rather than outside counsel. (l) The Company shall not modify or amend (including any extensions of or elections under), or waive any rights arising under, any Additional Financing Agreement without the prior written consent of Macquarie, if doing so would adversely affect in any respect any of Macquarie’s rights or remedies under this Agreement or the other Transaction Documents including, without limitation, Macquarie’s status as the owner of Permitted Feedstock and Renewable Products to the extent contemplated hereby and by the other Transaction Documents, free and clear of any liens of any lender or other creditor that is party to such Financing Agreement. (m) The Company shall provide a written update to Macquarie immediately upon obtaining knowledge thereof, and in any event within (i) one (1) Business Day in respect of (x) any breach or default that has occurred under any Financing Agreement or (y) any termination or cancellation of the Montana Renewables Services Agreement or the Montana Renewables Lease, and, in each case, the current status thereof, and (ii) within five (5) Business Days in respect of (A) subject to Section 18.2(d), any amendments, supplements or modifications that have been made to the Montana Renewables Services
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95 13585990v13 Renewable Products or any other commodity for its or their own account or for the account of others, whether prior to, simultaneously with or subsequent to any transaction under this Agreement. DEFAULT AND TERMINATION 19.1 Events of Default. Notwithstanding any other provision of this Agreement, the occurrence of any of the following shall constitute an “Event of Default”: (a) Either Party fails to make payment when due (i) under Article 10, Article 20 or any Company Bulk Purchase Agreement within one (1) Business Days after a written demand therefor or (ii) under any other provision hereof or any other Transaction Document within five (5) Business Days; or (b) Other than a default described in Section 19.1(a), 19.1(c), 19.1(e), 19.1(l) or 19.1(q) either Party (or, if applicable, any Affiliate of such Party that is party to a Transaction Document) fails to perform any material obligation or covenant to the other under this Agreement or any other Transaction Document, which is not cured to the reasonable satisfaction of the other Party (in its reasonable discretion) within ten (10) Business Days after the date that such Party receives written notice that such obligation or covenant has not been performed; or (c) Either Party (or, if applicable, any Affiliate of such Party that is party to a Transaction Document) breaches any material representation or material warranty made or repeated or deemed to have been made or repeated by the Party (or any Affiliate of such Party), or any warranty or representation proves to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated under any Transaction Document; provided, however, that if such breach is curable, such breach is not cured to the reasonable satisfaction of the other Party within ten (10) Business Days after the date that such Party receives notice that corrective action is needed; or (d) Either Party becomes Bankrupt; or (e) Either Party or any of its Designated Affiliates (1) defaults on payment obligations under any Specified Transaction, or (2) defaults on posting required collateral or credit support in connection with any Specified Transaction and such breach is not cured to the reasonable satisfaction of the other Party within two (2) Business Days after the date that such Party receives notice that corrective action is needed; or (f) A Master Agreement Termination Event occurs; or (g) The occurrence of any default or event of default or such similar occurrence under any Macquarie Permitted Feedstock Procurement Contract on the basis of which Macquarie has the right to terminate such Macquarie Permitted Feedstock Procurement Contract; or (h) A Change of Control; or
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96 13585990v13 (i) The Company fails, after giving effect to any applicable notice requirement or grace period, to perform its obligations under, comply with, or maintain in any material respect a Base Agreement or the Required Storage and Transportation Arrangements, if any; or (j) The Company or any of its Subsidiaries sells, leases, subleases, transfers or otherwise disposes of, in one transaction or a series of related transactions, all or substantially all of the assets that constitute the Refinery; or (k) The Company (i) consolidates or amalgamates with, merges with or into, or transfers all or substantially all of its assets to, another entity (including an Affiliate) or any such consolidation, amalgamation, merger or transfer is consummated, and (ii) (A) the successor entity resulting from any such consolidation, amalgamation or merger or the Person that otherwise acquires all or substantially all of the assets of the Company does not assume, in a manner reasonably satisfactory to Macquarie, all of the Company’s obligations hereunder and under the other Transaction Documents, or (B) in the reasonable judgment of Macquarie, the creditworthiness of the resulting, surviving or transferee entity, taking into account any guaranties, is materially weaker than the Company immediately prior to the consolidation, amalgamation, merger or transfer; or (l) The Company fails to perform or observe any covenant, affirmative or negative, set forth herein or in any other Transaction Document, and the Company fails to cure, correct or eliminate such failure or non-compliance within five (5) Business Days after receipt from Macquarie of written notice of such failure; or (m) There shall occur, after giving effect to any applicable notice requirement or grace period, either (A) a default, event of default or other similar condition or event (however described) in respect of the Company under one or more Financing Agreements or other agreements or instruments relating to Specified Indebtedness in an aggregate amount of not less than $25,000,000, which has resulted in any such Financing Agreements or Specified Indebtedness becoming due and payable under such agreements and instruments before it would have otherwise been due and payable or (B) a default by the Company in making one or more payments on the due date thereof in an aggregate amount of not less than $25,000,000 under any such foregoing agreements or instruments (after giving effect to any applicable notice requirement or grace period); or (n) Any of the parties under any of the Existing Financing Agreements or any other Financing Agreements shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of this Agreement; or (o) The Parent becomes Bankrupt; or (p) Transaction Documents. Any material provision of any Transaction Document ceases to be valid and binding on the Company or any Affiliate, or any such person contests the full force and effect or validity thereof, or any such person states so in writing; or
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99 13585990v13 (b) Termination/Settlement Amount. Notwithstanding any other provision of this Agreement, if an Event of Default has occurred and is continuing with respect to the Defaulting Party, the Non-Defaulting Party shall have the right, immediately and at any time(s) thereafter, to terminate this Agreement (and any other contract or agreement that may then be outstanding among the Parties that relates specifically to this Agreement, including any Transaction Document) and, subject to Section 19.2(c), to liquidate and terminate any or all rights and obligations under this Agreement and such other Transaction Documents; provided that, in the event Macquarie is the Non-Defaulting Party, this Agreement shall not be deemed to have terminated in full until Macquarie shall have (A) disposed of all Permitted Feedstock and Renewable Products owned or maintained by Macquarie in which Macquarie has lien or other rights in connection herewith, (B) exercised in full all of its rights and remedies with respect to the Renewables Credit Support and the other Credit Support and (C) received evidence satisfactory to Macquarie that the Company has met all of its obligations and requirements under Section 20.1(a) and such obligations and requirements shall have otherwise been satisfied in full; provided further that the parties agree that solely for purposes of this sub clause (C), any reference to “Termination Date” as set forth in Section 20.1(a) shall be a reference to any applicable date(s) with respect to the completion of such foregoing obligations and requirements under this Section 19.2(b). The Settlement Amount (as defined below) shall be calculated in a commercially reasonable manner based on such liquidated and terminated rights and obligations and shall be payable by one Party to the other. The “Settlement Amount” shall mean (1) the amount, expressed in U.S. dollars, of losses and out of pocket costs that are or would be incurred by the Non-Defaulting Party (expressed as a positive number) or gains that are or would be realized by the Non-Defaulting Party (expressed as a negative number) as a result of the liquidation and termination of all rights and obligations under this Agreement and such other Transaction Documents and (2) solely to the extent that the applicable Event of Default hereunder is due to a Change of Control that is not otherwise permitted under, or entered into in accordance with, Section 3.3, the Specified Termination Amount. The determination of the Settlement Amount shall include (without duplication): (x) the losses and out of pocket costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by the Non-Defaulting Party in terminating, transferring, redeploying or otherwise modifying any outstanding Procurement Contracts, (y) the losses and out of pocket costs (or gains) incurred or realized (and determined in a commercially reasonable manner) by the Non-Defaulting Party in terminating and liquidating any transactions subject hereto, including but not limited to, any unpaid amounts owed pursuant to Section 10.1 and Section 10.2 herein and (z) all breakage costs, losses and out of pocket costs (or gains) incurred or realized by the Non-Defaulting Party, as a result of the Non-Defaulting Party’s terminating, liquidating, maintaining, obtaining or reestablishing any Related Xxxxxx, including Permitted Feedstock Xxxxxx (including, if Macquarie is the Non-Defaulting Party, all hedging transactions relating to the inventory valuation adjustment procedures set forth in the Fees and Adjustments Letter); provided however, that (i) the determination of “Settlement Amount” shall not include (aa) future profits or losses on transactions not evidenced by a contractual obligation in existence on the date of determination of “Settlement Amount” to purchase or sell Renewables, and (bb) the Monthly Intermediation Fee, the Deferred Payment Amount Fee, the Inventory Capital Fee, the Monthly Services Fee, the Environmental Attribute Value Capital Fee and the
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100 13585990v13 “Monthly Facilities Fee” (as defined in the Storage Facilities Agreement) arising or accruing after the date of calculation of Settlement Amount, and (ii) the foregoing shall not exclude from “Settlement Amount” losses and out of pocket costs from Related Hedge, including Permitted Feedstock Xxxxxx, described in the foregoing clause (z). (c) Determination of Settlement Amount. The Settlement Amount shall be determined by the Non-Defaulting Party, acting in good faith, in a commercially reasonable manner. The Non-Defaulting Party shall determine the Settlement Amount commencing as of the date on which such termination occurs by reference to such futures, forward, swap and options markets as it shall select in its commercially reasonable judgment; provided that the Non-Defaulting Party is not required to effect such terminations and/or determine the Settlement Amount on a single day, but rather may effect such terminations and determine the Settlement Amount over a commercially reasonable period of time. Without limiting the generality of the foregoing, it is agreed that, for purposes of determining the Settlement Amount, to the extent the Non-Defaulting Party deems it commercially reasonable to do so, it may in referencing prices in the futures, forward, swap and options markets for purposes of calculating various elements of the Settlement Amount endeavor to align the dates as of which such reference prices are determined. In calculating the Settlement Amount, the Non-Defaulting Party shall discount to present value (in any commercially reasonable manner based on prevailing SOFR rates for the applicable period and currency) any amount which would be due at a later date and shall add interest (at a rate determined in the same manner) to any amount due prior to the date of the calculation. (d) Additional Rights of Macquarie. Without limiting any other rights or remedies hereunder, if an Event of Default has occurred and is continuing and Macquarie is the Non-Defaulting Party, Macquarie may, in its discretion, (i) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement or any other Transaction Documents, (ii) withdraw from storage any and all of the Permitted Feedstock and/or Renewable Products then in the Included Locations, (iii) otherwise arrange for the disposition of any Permitted Feedstock and/or Renewable Products subject to any outstanding Macquarie Permitted Feedstock Procurement Contract or Included Renewable Product Purchase Transaction and/or the modification, settlement or termination of such outstanding Macquarie Permitted Feedstock Procurement Contract or Included Renewable Product Purchase Transaction in such manner as it elects, (iv) liquidate in a commercially reasonable manner any credit support, margin or collateral, to the extent not already in the form of cash (including applying any other margin or collateral) and apply and set off such credit support, margin or collateral or the proceeds thereof against any obligation owing by the Company or any of its Affiliates, including, without limitation, Designated Affiliates, to Macquarie or any of its Affiliates, including, without limitation, Designated Affiliates, (including without limitation the Independent Amount), (v) foreclose any lien or security interest, and (vi) exercise its rights in respect of any agreement or assignment of rights from a third party in respect of the transportation or storage of the Company Renewable Product Inventory or the Company Permitted Feedstock Inventory. Macquarie shall be under no obligation to prioritize the order with respect to which it exercises any one or more rights and remedies available hereunder. The Company shall in all events remain liable to Macquarie for any amount payable by the
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101 13585990v13 Company in respect of any of its obligations remaining unpaid after any such liquidation, application and set off. (e) Company’s Rights. Without limiting any other rights or remedies hereunder, if an Event of Default has occurred and is continuing and the Company is the Non-Defaulting Party, the Company may, in its discretion, (i) withhold or suspend its obligations, including any of its delivery or payment obligations, under this Agreement and/or (ii) otherwise provide for the settlement or termination of the Parties’ outstanding commitments hereunder, the sale in a commercially reasonable manner of Permitted Feedstock and/or Renewable Product for Xxxxxxxxx’s account, and the replacement of the supply and offtake transaction contemplated hereby with such alternative arrangements as it may procure. (f) Net Liquidated Amount. The Non-Defaulting Party shall set off (i) the Settlement Amount (if due to the Defaulting Party), plus any performance security (including any other margin or collateral) then held by the Non-Defaulting Party pursuant to the Transaction Documents, plus (at the Non-Defaulting Party’s election) any or all other amounts due to the Defaulting Party hereunder (including under Article 10), against (ii) the Settlement Amount (if due to the Non-Defaulting Party), plus any performance security (including any other margin or collateral) then held by the Defaulting Party, plus (at the Non-Defaulting Party’s election) any or all other amounts due to the Non-Defaulting Party hereunder (including under Article 10), so that all such amounts (including, for the avoidance of doubt, the amount of any Independent Amount, inclusive of and giving effect to the Permitted Intermediated Feedstock Inventory Valuation Adjustment, held by Macquarie) shall be netted to a single liquidated amount payable by one Party to the other (the “Liquidated Amount”). The Party with the payment obligation shall pay the Liquidated Amount to the applicable other Parties within one (1) Business Day after such amount has been determined. In addition, the Parties acknowledge that, in connection with an Event of Default hereunder, the Step-out Inventory Sales Agreement may be terminated and with respect thereto any rights and remedies available hereunder, under any other agreement between the Parties hereto or the parties thereto, or at law or equity may be exercised. (g) No Abandonment of Rights. No delay or failure on the part of the Non- Defaulting Party in exercising any right or remedy to which it may be entitled on account of any Event of Default shall constitute an abandonment of any such right, and the Non- Defaulting Party shall be entitled to exercise such right or remedy at any time during the continuance of an Event of Default. (h) Rights Cumulative. The Non-Defaulting Party’s rights under this Section 19.2 shall be in addition to, and not in limitation or exclusion of, any other rights which the Non-Defaulting Party may have (whether by agreement, operation of law or otherwise), including any rights of recoupment, setoff, combination of accounts or other rights under any credit support that may from time to time be provided in connection with this Agreement or at law or in equity. The Defaulting Party shall indemnify and hold the Non-Defaulting Party harmless from all reasonable out of pocket costs and expenses, including reasonable attorney fees, incurred in the exercise of any remedies hereunder, as
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105 13585990v13 (iii) in the case of an early termination, the amount reasonably determined by Macquarie as the breakage costs it incurred directly in connection with the termination, unwinding or redeploying of all Related Xxxxxx, including Permitted Feedstock Xxxxxx, as a result of such early termination, including all hedging transactions relating to the inventory valuation adjustment procedures set forth in the Fees and Adjustments Letter, plus (iv) the aggregate amount due under Section 10.1(f) and Section 10.2(b), calculated as of the Termination Date with such date being the final day of the last monthly period for which such calculations are to be made under this Agreement; provided that, if such amount under Section 10.1(f) and Section 10.2(b) is due to Macquarie, then such amount shall be included in this Termination Amount as a positive number and if such amount under Section 10.1(f) and Section 10.2(a) is due to the Company, then such amount shall be included in this Termination Amount as a negative number, plus (v) all unpaid amounts payable hereunder by Xxxxxxxxx to the Company in respect of Renewable Product delivered on or prior to the Termination Date, minus (vi) all unpaid amounts payable under the Marketing and Sales Agreement by Macquarie to the Company for services provided up to the Termination Date. All of the foregoing amounts shall be aggregated or netted to a single liquidated amount owing from one Party to the other. If the Termination Amount is a positive number, it shall be due to Macquarie and if it is a negative number, the absolute value thereof shall be due to the Company. (b) The Parties acknowledge that one or more of the components of the Termination Amount may not be capable of definitive determination by the Termination Date and therefore agree that Macquarie shall, in a commercially reasonable manner, estimate in good faith each of such components and use such estimated components to determine an estimate of the Termination Amount (the “Estimated Termination Amount”); provided that the Parties agree that Macquarie shall apply the Independent Amount, and for purposes of this Section 20.2(b), inclusive of and giving effect to the Permitted Intermediated Feedstock Inventory Valuation Adjustment, against the Estimated Termination Amount and shall not wait until final settlement is completed pursuant to Section 20.2(c). Without limiting the generality of the foregoing, the Parties agree that the amount due under Section 20.2(a)(i) above shall be estimated by Xxxxxxxxx in the same manner and using the same methodology as it used in preparing the Estimated Effective Date Value, but applying the “Step-Out Prices” as indicated in Schedule B and other price terms provided for herein with respect to the purchase of the Termination Date Volumes. Macquarie shall use commercially reasonable efforts to prepare, and provide the Company with, an initial Estimated Termination Amount, together with appropriate supporting documentation, at least five (5) Business Days prior to the Termination Date. To the extent reasonably practicable, Macquarie shall endeavor to update its calculation of the Estimated
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107 13585990v13 (i) any breach by Macquarie of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of Macquarie made herein or in connection herewith proving to be false or misleading or incorrect in any material respect, (ii) any failure by Macquarie to comply with or observe any Applicable Law, (iii) Macquarie’s negligence or willful misconduct, or (iv) injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by Macquarie or its employees, representatives, agents or contractors in exercising any rights or performing any obligations hereunder or in connection herewith, except to the extent that any indemnified Liability arising under this Section 21.1 has resulted from (A) the negligence or willful misconduct on the part of the Company, its Affiliates or any of their respective employees, representatives, agents or contractors or (B) the breach by the Company of its obligations hereunder. 21.2 To the fullest extent permitted by Applicable Law and except as specified otherwise elsewhere in this Agreement, the Company shall defend, indemnify and hold harmless Macquarie, its Affiliates, and their directors, officers, employees, representatives, agents and contractors from and against any Liabilities directly or indirectly arising out of (i) any breach by the Company of any covenant or agreement contained herein or made in connection herewith or any representation or warranty of the Company made herein or in connection herewith proving to be false or misleading or incorrect in any material respect, including, without limitation the Company’s obligation for payment of taxes pursuant to Section 15.1, (ii) the Company’s transportation, handling, storage, refining or disposal of any Permitted Feedstock or the Renewable Products thereof, including any conduct by the Company on behalf of or as the agent of Macquarie under the Required Storage and Transportation Arrangements, (iii) the Company’s failure to comply with its obligations under the terminalling, pipeline and lease agreements underlying the Required Storage and Transportation Arrangements, (iv) the Company’s negligence or willful misconduct, (v) any failure by the Company to comply with or observe any Applicable Law, (vi) injury, disease, or death of any person or damage to or loss of any property, fine or penalty, any of which is caused by the Company or its employees,
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109 13585990v13 DIRECT, ACTUAL DAMAGES ONLY (WHICH INCLUDE ANY AMOUNTS DETERMINED UNDER ARTICLE 19) AND NEITHER PARTY SHALL BE LIABLE FOR SPECIFIC PERFORMANCE, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, IN TORT, CONTRACT OR OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PERFORMANCE, THE SUSPENSION OF PERFORMANCE, THE FAILURE TO PERFORM, OR THE TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT, SUCH LIMITATION SHALL NOT APPLY WITH RESPECT TO (I) ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE UNDER THIS AGREEMENT OR (II) ANY BREACH OF ARTICLE 24. EACH PARTY ACKNOWLEDGES THE DUTY TO MITIGATE DAMAGES HEREUNDER. RECORDS AND INSPECTION THEREOF During the Term of this Agreement each Party and its duly authorized representative upon reasonable notice, and during normal working hours, shall have access to the accounting records and other documents maintained by the other Party, or any of the other Party’s contractors and agents, which relate to this Agreement; provided that, neither this Section nor any other provision hereof shall entitle the Company to have access to any records concerning any xxxxxx or offsetting transactions or other trading positions or pricing information that may have been entered into with other parties or utilized in connection with any transactions contemplated hereby or by any other Transaction Document. The right to inspect or audit such records shall survive termination of this Agreement for a period of two (2) years following the Termination Date. Each Party shall preserve, and shall use commercially reasonable efforts to cause all contractors or agents to preserve, all of the aforesaid documents for a period of at least two (2) years from the Termination Date. CONFIDENTIALITY 24.1 In addition to the Company’s confidentiality obligations under the Transaction Documents, the Parties agree that the specific terms and conditions of this Agreement, including any list of counterparties, the Transaction Documents and the drafts of this Agreement exchanged by the Parties and any information exchanged between the Parties, including calculations of any fees or other amounts paid by the Company to Macquarie under this Agreement and all information received by Macquarie from the Company relating to the costs of operation, operating conditions, and other commercial information of the Company not made available to the public, are confidential and shall not be disclosed to any third party, except (i) as may be required by court order or Applicable Laws (including without limitation as may be required by any applicable federal or state securities laws), (ii) as requested by a Governmental Authority, (iii) to such Party’s or its Affiliates’ employees, directors, shareholders, auditors, consultants, banks, lenders, financial advisors and legal advisors for purposes of administering, negotiating, considering, processing or evaluating this Agreement and the other Transaction Documents or the transactions contemplated thereby, or (iv) to such Party’s insurance providers, solely for the purpose of procuring insurance coverage or confirming the extent of existing insurance coverage; provided that, prior to any disclosure permitted by this clause (iv), such insurance providers shall have agreed in writing to
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111 13585990v13 26.2 The Company shall not assign this Agreement or its rights or interests hereunder in whole or in part, or delegate its obligations hereunder in whole or in part, without the consent of Macquarie; provided that Company may, at any time, assign, transfer, mortgage, pledge, charge or otherwise encumber this Agreement and the other Transaction Documents and/or any or all of its rights and benefits under or pursuant hereto and thereto as collateral security to secure any financing arrangement with respect to the Refinery, including the Existing Financing Agreement(s), provided further that the obligations of the Company hereunder and thereunder shall survive any such assignment, transfer, mortgage, pledge, charge or encumbrance. Macquarie shall (a) provide reasonable cooperation and assistance to permit perfection of any such security, including by way of acknowledgment of any assignment and (b) at the request of the Company, without consideration, promptly execute and deliver, or cause to be executed and delivered, such assignments and consents to collateral assignment in connection with any collateral assignment in connection with any financing. Any such assignment, charge, transfer or encumbrance shall include the right to make second or subsequent assignments, charges transfers or encumbrances and the right to freely enforce the same by way of sale or otherwise. 26.3 Macquarie may, without the Company’s consent, assign and delegate all of Macquarie’s rights and obligations hereunder to (i) any Affiliate of Macquarie, provided it is no worse a credit counterparty and all Company’s costs, if any, are covered—just as provided above for a Company transfer or (ii) any non-Affiliate Person that succeeds to all or substantially all of its assets and business and assumes Macquarie’s obligations hereunder, whether by contract, operation of law or otherwise, provided that (i) the creditworthiness of such successor entity is equal or superior to the creditworthiness of Xxxxxxxxx (taking into account any credit support for Xxxxxxxxx) immediately prior to such assignment, and (ii) such successor assumes all of the obligations of Macquarie under the Transaction Documents. 26.4 Macquarie hereby notifies the Company and its Affiliates that Macquarie is required to pledge all of its rights in this Agreement and the other Transaction Documents, together with all Renewables titled in the name of and owned by Macquarie located at the Refinery, in favor of Standard Chartered Bank, as security agent (“SCB”) (or any successor thereto). Macquarie may, at any time, assign, transfer, mortgage, pledge, charge or otherwise encumber this Agreement and the other Transaction Documents and/or any or all of its rights and benefits under or pursuant hereto and thereto as collateral security to secure any financing arrangement, including in favor of SCB; provided further that the obligations of Macquarie hereunder shall survive any such assignment, transfer, mortgage, pledge, charge or encumbrance. The Company shall (a) provide reasonable cooperation and assistance to permit perfection of any such security, including by way of acknowledgment of any assignment and (b) at the request of Xxxxxxxxx, promptly execute and deliver, or cause to be executed and delivered, such assignments and consents to collateral assignment in connection with any collateral assignment in connection with any financing. Xxxxxxxxx shall promptly reimburse the Company for its reasonable and documented expenses incurred in connection with such cooperation, assistance, execution and delivery, and such cooperation, assistance, execution and delivery shall be otherwise without further consideration. Any such assignment, charge, transfer or encumbrance shall include the right to make second or subsequent assignments, charges transfers or encumbrances and the right to freely enforce the same by way of sale or otherwise. The Company acknowledges Macquarie’s rights and obligation to so pledge all of its rights in this Agreement, the other Transaction Documents and in its Renewables located at the Refinery to SCB (or any successor thereto) and acknowledges and
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115 13585990v13 LLC” and identifier is 1876. The Company will earn and hold RINs for its account from time to time with respect to sales of Renewable Product by the Company to third parties in its EMTS Account, which RINs are held, or imputed to be held or credited, for the account of the Company. At all times from and after the Commencement Date, all such RINs held by, or imputed to be held or credited for the account of, the Company shall be subject to a perfected Lien in favor of Macquarie, from and after the occurrence and during the continuance of an Event of Default, as further described in the Pledge and Security Agreement (RINs), pursuant to the Lien Documents to secure all of the Transaction Obligations. (b) Notwithstanding anything to the contrary in any Transaction Document, Macquarie and the Company agree that, upon the occurrence and during the continuance of an Event of Default, Macquarie may deliver to the Company written notice of such Event of Default and that Macquarie will take control of all Permitted Feedstock and Renewable Product located in Included Locations, together with all RINs related thereto. Upon receipt of such written notice, at Macquarie’s direction, the Company shall (i) undertake all commercially reasonable efforts to certify all RINs associated with such Renewable Product for the account of Macquarie (x) as and when produced upstream by the renewable diesel unit at the Refinery and (y) that had previously been produced and located in any Included Renewable Product Tank and (ii) otherwise cause Macquarie to realize the economic benefit of such RINs. It is understood and agreed that all such certified RINs will initially, upon certification, be held in and credited to the EMTS Account of the Company. On a continuing basis, as such certified RINs are created, the Company shall immediately transfer such RINs from the EMTS Account of the Company to the EMTS Account of Macquarie or to any other EMTS Account as directed by Macquarie. 31.6 Other Environmental Attributes. To the extent that the Company earns and/or holds for its account from time to time any other Environmental Attributes not covered by Sections 31.1, 31.2 and 31.3 above with respect to the production and/or sale of Renewable Products at the Refinery, such other Environmental Attributes shall from and after the Commencement Date be subject to a perfected Lien in favor of Macquarie pursuant to the Lien Documents to secure all of the Transaction Obligations. 31.7 Further Assurances; Notice. The Company shall take all commercially reasonable efforts pursuant to Section 18.3(f) or otherwise to assist and to confirm that Macquarie has all necessary information and documentation in order to make, to the extent applicable, all Environmental Attributes under this Article 31, from and after the Commencement Date, subject to a perfected Lien in favor of Macquarie pursuant to the Lien Documents to secure all of the Transaction Obligations. At the end of each day, the Company shall furnish Macquarie with a written report regarding Environmental Attributes acquired or created with respect to the production and/or sale of Renewable Products at the Refinery during each such day, including all relevant and necessary information with respect thereto.
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[Signature Page to Supply and Offtake Agreement] IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed by its duly authorized representative as of the date first above written. MACQUARIE ENERGY NORTH AMERICA TRADING INC. By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Executive Director By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Division Director MONTANA RENEWABLES, LLC By: /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Executive Vice President and Chief Financial Officer
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Schedule C-2 13585990v13 Schedule C-2 Monthly True-Up Amounts I. Definitions “Aggregate Intermediation Hedge True-Up Amount” has the meaning specified in Schedule C-1. “Aggregate Monthly Renewable Product Sales Fee” means the sum of the Renewable Product Sales Fees earned by Macquarie during a Delivery Month. “Applicable Index Value” means the Current Month Pricing Benchmark on any given Business Day for a Renewable Product Group. “Applicable True-Up Index Value” means, for any true up calculation for a calendar month, the spot price for the relevant index used to calculate the Current Month Pricing Benchmark for a Renewable Product Group on the first Business Day of the first Delivery Month after the calendar month for which a true up is to be calculated, plus or minus the Differential (if any) set forth and determined in accordance with Schedule B for such first Delivery Month. “Average Applicable Index Value” means the sum of the Applicable Index Values for each Business Day in a Delivery Month divided by the number of Business Days in the Delivery Month; provided, however, for the Delivery Month in which the Effective Date occurs and the last Delivery Month prior to termination, the ‘Average Applicable Index Value’ shall be calculated by taking into account only those Business Days during such Delivery Month on which this Agreement was in effect and the Applicable Index Prices on such Business Days (exclusive of the Effective Date and Termination Date, as applicable). “Deferred Payment Amount Fee” has the meaning specified in and shall be calculated in accordance with the Fees and Adjustments Letter. “Environmental Attribute Value Capital Fee” has the meaning specified in and shall be calculated in accordance with the Fees and Adjustments Letter. “Inventory Capital Fee” has the meaning specified in and shall be calculated in accordance with the Fees and Adjustments Letter. “Monthly Permitted Feedstock Cover Costs” has the meaning specified in and shall be calculated in accordance with Section 7.7(b) of the Supply and Offtake Agreement. “Monthly Permitted Feedstock Sale Adjustment” has the meaning specified in and shall be calculated in accordance with Section 6.7 of the Supply and Offtake Agreement. “Monthly Facilities Fee” has the meaning specified in and shall be calculated in accordance with Section 4 of the Storage Facilities Agreement. “Monthly Intermediation Fee” has the meaning specified in and shall be calculated in accordance with the Fees and Adjustments Letter.
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Schedule C-2 13585990v13 “Monthly Renewable Product Cover Costs” has the meaning specified in and shall be calculated in accordance with Section 7.7(a) of the Supply and Offtake Agreement. “Monthly Renewable Product Purchase Adjustment” has the meaning specified in and shall be calculated in accordance with Section 8.11(b) of the Supply and Offtake Agreement. “Monthly Renewable Product Sale Adjustment” has the meaning specified in and shall be calculated in accordance with Section 8.11(a) of the Supply and Offtake Agreement. “Monthly Services Fee” has the meaning specified in and shall be calculated in accordance with the Fees and Adjustments Letter. “Monthly Third Party Permitted Feedstock Sale Adjustment” has the meaning specified in and shall be calculated in accordance with Section 6.8 of the Supply and Offtake Agreement. “Renewable Product Sales Fee” has the meaning specified in and shall be calculated in accordance with Section 2.2(a) of the Marketing and Sales Agreement. “Total Inventory Valuation Adjustment” has the meaning specified in and shall be calculated in accordance with Schedule A to the Fees and Adjustments Letter. “Unpaid Ancillary Costs” means any Ancillary Costs (as defined in the SOA) that Company has not yet paid to Macquarie at the end of each Delivery Month in accordance with Section 9.1(c) of the Supply and Offtake Agreement. II. Calculation of Aggregate Monthly Settlement Amount “Aggregate Monthly Settlement Amount” means the sum total of the Monthly Settlement Amounts for each Renewable Product Group in any Delivery Month. “Monthly Settlement Amount” means for any Renewable Product Group in any Delivery Month (i) the (a) Target Inventory Settlement minus the (b) Total Daily Settlements, plus (ii) (c) the Variance True-Up Amount. (a) “Target Inventory Settlement” means the product of the Monthly Variance Volume, multiplied by the Average Applicable Index Value. “Monthly Variance Volume” means the Target Month-End Volume for the current Delivery Month minus the prior Month’s Ending In-Tank Inventory. o “Target Month-End Volume” means for each Renewable Product, the Target Month-End Renewable Product Inventory Volume for the applicable Renewable Product, and for Permitted Feedstock, the Target Month-End Permitted Feedstock Inventory Volume. o “Ending In-Tank Inventory” means for each Renewable Product, the Ending In- Tank Renewable Product Inventory for the applicable Renewable Product, and for Permitted Feedstock, the Ending In-Tank Permitted Feedstock Inventory.
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Schedule C-2 13585990v13 (b) “Total Daily Settlements” means for each Renewable Product Group, the Total Daily Renewable Product Settlements, and for Permitted Feedstock, the Total Daily Permitted Feedstock Settlements. “Total Daily Permitted Feedstock Settlements” means the total amount invoiced in a Delivery Month for the Company Interim Tank Permitted Feedstock Payments minus the total amount invoiced in a Delivery Month for the Macquarie Interim Permitted Feedstock Payments pursuant to Section 10.1 of the Supply and Offtake Agreement. o “Macquarie Interim Permitted Feedstock Payment” means the value of the Permitted Feedstock identified in the Macquarie Interim Payment invoice. o “Company Interim Tank Permitted Feedstock Payments” has the meaning specified in and shall be calculated in accordance with Section 10.1(b)(i)(B) in the Supply and Offtake Agreement. “Total Daily Renewable Product Settlements” means for each Renewable Product Group, the total amount invoiced in a Delivery Month for the Company Interim Renewable Product Payment minus the total amount invoiced in a Delivery Month for the for the Macquarie Interim Renewable Product Payment. o “Macquarie Interim Renewable Product Payment” means the value of the relevant Renewable Product Group identified in the Macquarie Interim Payment invoice. o “Company Interim Renewable Product Payment” has the meaning specified in and shall be calculated in accordance with Section 10.1(b)(ii) of the Supply and Offtake Agreement. (c) “Variance True-Up Amount” means the product of the True-Up Volume, multiplied by the Applicable True-Up Index Value on the first Business Day of the next Delivery Month. “True-Up Volume” means the Actual Inventory Change minus the Monthly Variance Volume. “Actual Inventory Change” means the Ending In-Tank Inventory of the then-current Delivery Month minus the Ending In-Tank Inventory of the immediately prior Delivery month. III. Calculation of Transaction Costs “Transaction Costs” means the sum of (i) the Target Inventory Transaction Costs and (ii) the True-Up Volume Transaction Costs. “Target Inventory Transaction Costs” means the product of the absolute value of the Monthly Variance Volume multiplied by $0.063/Barrel. “True-Up Volume Transaction Costs” means the product of the absolute value of the True-Up Volume multiplied by $0.063/Barrel.
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Schedule C-2 13585990v13 IV. Calculation of the Monthly True-Up Amount The Month True-Up Amount shall be equal to: (i) Aggregate Monthly Settlement Amount [Part II], plus (ii) Transaction Costs [Part III], plus (iii) Inventory Capital Fee [Fees and Adjustments Letter], plus (iv) Deferred Payment Amount Fee [Fees and Adjustments Letter], plus (v) Monthly Intermediation Fee [Fees and Adjustments Letter], plus (vi) Monthly Services Fee [Fees and Adjustments Letter], plus/minus (as the case may be) (vii) Total Inventory Valuation Adjustment [Fees and Adjustments Letter], minus (viii) Monthly Facilities Fee [Storage Facilities Agreement], plus (ix) Unpaid Ancillary Costs [9.1(c)], plus (x) Counterparty Permitted Feedstock Sales Fee [6.5], plus (xi) Aggregate Monthly Renewable Product Sales Fee [8.12], plus (xii) Monthly Permitted Feedstock Cover Costs [7.7(b)], plus (xiii) Monthly Renewable Product Cover Costs [7.7(a)], plus/minus (as the case may be) (xiv) Monthly Third Party Permitted Feedstock Sale Adjustment [6.8(c)], plus/minus (as the case may be) (xv) Monthly Permitted Feedstock Sale Adjustment [6.7(c)], plus/minus (as the case may be) (xvi) Monthly Renewable Product Sale Adjustment [8.11(a)], plus/minus (as the case may be) (xvii) Monthly Renewable Product Purchase Adjustment [8.11(b)], plus (xviii) Environmental Attribute Value Capital Fee [Fees and Adjustments Letter], plus/minus (as the case may be) (xix) Aggregate Intermediation Hedge True-Up Amount [Schedule C-1].
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Schedule L 13585990v13 Schedule L Existing Financing Agreements 1. Stonebriar Sale and Leaseback Agreements 2. Xxxxx Fargo Credit Agreement
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Schedule 1 to Supply and Offtake Agreement Page 1 13585990v13 Schedule 1 Refinery [Note: descriptions to be taken from the conveyance documents in respect of the Sale Agreement]
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Schedule 1 to Supply and Offtake Agreement Page 2 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 3 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 4 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 5 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 6 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 7 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 8 13585990v13 TANKS: Company: Service: Cap, bbls Work Cap, bbls Tk-029 MRL Rdiesel 19,724 15,779 Tk-050 MRL Rfeed 19,514 15,611 Tk-102 MRL Xxxxx 19,495 15,596 Tk-112 MRL Rslop 54,001 43,201 Tk-116 MRL Rdiesel 43,001 34,401 Tk-128 MRL Rdiesel 17,124 13,699 Tk-140 MRL Rfeed 109,573 87,658 Tk-301 MRL Rfeed 109,573 87,658 Tk-302 MRL Xxxxx 19,514 15,611 Tk-303 MRL Rfeed 20,000 16,000 Tk-304 MRL Rnaphtha 20,000 16,000 Tk-305 MRL Rdiesel 100,000 80,000 Tk-306 MRL Rkero 8,000 6,400 Tk-307 MRL Rkero 8,000 6,400 Tk-308 MRL Rkero 20,000 16,000
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Schedule 1 to Supply and Offtake Agreement Page 9 13585990v13
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Schedule 1 to Supply and Offtake Agreement Page 10 13585990v13
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Schedule 1.1(A) to Supply and Offtake Agreement 13585990v13 Schedule 1.1(A) Specified Company Locations Third Party Locations: (1) BNSF Railway Company rail yard located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 and in transit from such rail yard via the rail line to the Refinery in Great Falls, Montana owned or leased and operated by Montana Renewables, LLC, such rail line continuing inside the Refinery gate up to the Permitted Feedstock Intake Point, including via railcars operated by BNSF Railway Company or any other transportation entity or the Company Company Owned Locations: (1) Processing units, internal pipe systems, loading racks and certain tanks located at the Refinery owned or leased and operated by Montana Renewables, LLC, which Refinery is located at 0000 0xx Xxxxxx XX, Xxxxx Xxxxx, Xxxxxxx 00000 (2) Railcars located at the Refinery described above