FRAMEWORK AGREEMENT
Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Item 601(b)(10) of Regulation S-K. Such excluded information is both not material and is the type that the registrant treats as private or confidential.
FRAMEWORK AGREEMENT
BY AND BETWEEN
HOBO RENEWABLE DIESEL LLC
AND
EVOLVE TRANSITION INFRASTRUCTURE LP
Dated as of November 3, 2021
EXHIBITS
Exhibit AForm of Limited Liability Company Agreement
Exhibit BForm of Contribution Agreement
Exhibit C | PM Agreement Term Sheet |
Exhibit D | O&M Agreement Term Sheet |
SCHEDULES
Schedule INecessary Consents
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This Framework Agreement (this “Agreement”) is made and entered into as of November 3, 2021 by and between HOBO Renewable Diesel LLC, a Delaware limited liability company (“HOBO”), and Evolve Transition Infrastructure LP, a Delaware limited partnership (“Evolve”). Each of HOBO and Evolve are sometimes referred to herein individually as a “Party” and, together, the “Parties”.
RECITALS
WHEREAS, HOBO is in the business of developing, constructing, owning and operating renewable fuels facilities (each, a “Project”), and Evolve is in the business of acquiring, developing and owning infrastructure critical to the transition of energy supply to lower carbon sources;
WHEREAS, HOBO has identified an initial Project to be a 9,000 barrel a day (120 million gallons annually) renewable diesel production facility located in [***] (the “Initial Project”);
WHEREAS, subject to the conditions set forth herein, Evolve is willing to fund certain development expenses of HOBO as it seeks to develop the Initial Project in a manner that would satisfy certain conditions described herein and, following the satisfaction of such conditions, Evolve would form a Delaware limited liability company to hold a Project Company which would in turn develop, construct, own and operate the Initial Project;
WHEREAS, subject to the conditions set forth herein, Evolve would form Delaware limited liability companies to each hold a Project Company which would in turn develop, construct, own and operate Subsequent Projects; and
WHEREAS, the Parties desire, by entering into this Agreement, to set forth the terms pursuant to which HOBO would seek to develop the Initial Project and Subsequent Projects and Evolve would invest therein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of where are hereby acknowledged, the Parties hereby agree as follows:
“AAA” has the meaning set forth in Section 8.1(a).
“Acceptance Notice” has the meaning set forth in Section 3.1(b).
“Accounting Expert” has the meaning set forth in Section 8.2(b).
“Affiliate” means, with respect to a Person, any other Person controlling, controlled by or under common control with the first Person. As used in this definition, the term “control,” “controlling” or “controlled by” shall mean the possession, directly or indirectly, of the power either to (a) vote more than 50% or more of the securities or interests having ordinary voting power for the election of directors (or
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other comparable controlling body) of such Person or (b) direct or cause the direction of the actions, management or policies of such Person, in each case, whether through the ownership of voting securities or interests, by contract or otherwise.
“Agreement” has the meaning set forth in the first paragraph hereof and includes all Schedules and Exhibits attached hereto.
“Arbitration Parties” has the meaning set forth in Section 8.1(a).
“Bolt-On” has the meaning set forth in Section 2.8(b).
“Business Day” has the meaning set forth in the Form LLC Agreement
“Class A Member” has the meaning set forth in the Form LLC Agreement.
“Class A Units” has the meaning set forth in the Form LLC Agreement.
“Class B Member” has the meaning set forth in the Form LLC Agreement.
“Class B Units” has the meaning set forth in the Form LLC Agreement.
“Commercial Operation” means, with respect to a Project, the Project has achieved a stage of completion such that:
“Conditions Precedent” means the following conditions:
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“Construction Contract” means, with respect to a Project, an agreement between the Project Company and one or more Construction Counterparties pursuant to which such Construction Counterparties agree to provide engineering, procurement and/or construction services with respect to such Project.
“Construction Counterparty” means, with respect to a Construction Contract, any one or more Persons party to such Construction Contract that agree thereunder to provide the engineering, procurement and/or construction services contemplated thereunder. For the avoidance of doubt, the engineering, procurement and/or construction services may be provided by multiple Construction Counterparties, including HOBO.
“Contribution Agreement” has the meaning set forth in Section 2.4(e).
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“Development Cost Reimbursement” shall be each of (a) the Initial Development Payment, (b) the Interim Development Payment and (c) the Final Development Payment.
“Dispute” has the meaning set forth in Section 8.1(a).
“Dragged Company” has the meaning in Section 4.5(a).
“Equity Financing” means, with respect to a Project, equity capital contributions in an amount, when taking into account the projected amount of the Project Financing, as are reasonably expected to be sufficient to build, complete and achieve Commercial Operation of such Project.
“Evolve” has the meaning set forth in the first paragraph hereof.
“Evolve Approval” has the meaning set forth in clause (i) of the definition of “Conditions Precedent”.
“Excluded Entities” has the meaning set forth in Section 5.5.
“Final Development Payment” has the meaning in Section 2.6(b).
“Final Qualified Project Model” means the Qualified Project Model mutually agreed between the Parties and prepared at the time of (or shortly before) the satisfaction of the last of the other Conditions Precedent.
“Financial Close” means, with respect to any Project, the day on which the Conditions Precedent have been satisfied or waived by Evolve; provided that, if (a) the Initial Development Payment has been made, (b) Evolve has not conveyed the Project Company to HOBO following HOBO’s exercise of its right to such conveyance pursuant to Section 2.7, (c) an official “notice to proceed” is issued by the Project Company and (d) construction of the Project has commenced, then Financial Close shall be deemed to have been achieved.
“Form LLC Agreement” means the limited liability company agreement to be entered into between the Parties in the form of Exhibit A attached hereto, as provided in Section 2.4(b) and Section 3.1(c)(ii).
“Funding Termination Notice” means a written notice from Evolve delivered to HOBO electing to terminate Evolve’s commitment to reimburse Qualified Development Costs from and after the date of such notice.
“Governmental Authority” means any (a) national, federal, provincial, territorial, state, regional, municipal, local or other government, (b) governmental or public department, court, tribunal, arbitral body, statutory body, commission, board, bureau or agency, (c) self-regulatory organization, regulatory authority, administrative tribunal or authority, (d) subdivision, agent, commission, board or authority of any of the foregoing or (e) quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the foregoing.
“HOBO” has the meaning set forth in the recitals hereto.
“Incentive Development Fee” has the meaning set forth in Section 2.8(a).
“Independent Engineer” means an independent engineer mutually acceptable to HOBO and Evolve.
“Initial Development Payment” has the meaning set forth in Section 2.3(b).
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“Initial Project” has the meaning set forth in the Recitals.
“Initial Project Contribution Date” has the meaning set forth Section 2.4(c).
“Interim Development Payment” has the meaning set forth in Section 2.5(b).
“Investment Grade” means a credit rating of at least “BBB-” from S&P, and at least “Baa3” from Xxxxx’x.
“Law” means (a) all applicable laws, regulations, statutes, codes, rules, Permits, licenses, certifications, decrees or standards imposed by any Governmental Authority and (b) all applicable Orders, rulings, assessments, awards, subpoenas, verdicts, settlements or findings from any Governmental Authority.
“Material Permits” means, with respect to a Project, all material Permits reasonably required for the initial Commercial Operation of such Project, including those Permits needed to commence and conduct the construction of such Project, excluding those administrative Permits not customarily secured prior to the commencement of construction.
“O&M Agreement” has the meaning set forth in Section 2.6(d).
“Offtake Agreement” means, with respect to a Project, a binding agreement (or several related agreements) pursuant to which one or more Persons agree to purchase the renewable fuels (or the related “conversion services”) produced by such Project from the Project Company in a tolling structure or which otherwise results in a similar outcome as contemplated in the definition of “Offtake Condition”.
“Offtake Condition” means (a) the Project Company having entered into one or more Offtake Agreement(s) for the purchase of goods or services comprising (i) [***] of the Project’s estimated capacity subject to Offtake Agreement(s) with Person(s) with [***] credit rating or supported by comparable credit support and (ii) [***], in the aggregate, of the Project’s estimated capacity, in each case, at prices and for quantities materially consistent with the base case of the Qualified Project Model, and which are not subject to conditions precedent to the counterparties’ obligations thereunder other than conditions that would be satisfied by the satisfaction of the other Conditions Precedent and the achievement of Commercial Operation of the applicable Project, and (b) [***].
“Order” means any writ, judgment, decree, injunction or similar order of any Governmental Authority (in each such case whether preliminary or final).
“Party” has the meaning set forth in the first paragraph hereof.
“Payment Dispute” means a reasonable and good faith dispute by Evolve related to any costs or expenses set forth in an invoice.
“Permits” means all licenses, permits, Orders, consents, approvals, registrations, authorizations, qualifications, plans, and filings required under or issued pursuant to any Law or by any Governmental Authority or non-governmental self-regulatory organizations.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity or status recognized, under Law, as a separate legal person.
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“PM Agreement” has the meaning set forth in Section 2.4(f).
“Project” has the meaning set forth in the Recitals.
“Project Company” means a special purpose entity that owns a Project and all associated assets and rights and no unrelated assets, rights or liabilities.
“Project Documents” means the PM Agreement and the O&M Agreement.
“Project Financing” has the meaning set forth in clause (f) of the definition of “Conditions Precedent”.
“Project HoldCo” means a Delaware limited liability company to be formed as contemplated by Section 2.4(a).
“Project Proposal” has the meaning set forth in Section 3.1(a).
“Project Terms” means, with respect to any Project, the financial and operating attributes of such Project, including, with respect to such Project, an estimated timeline for achieving each of the Conditions Precedent for such Project, a detailed monthly budget, including a good faith estimate of the costs and expenses of development, construction, operation and maintenance, th
e contemplated Project Financing, the material financial terms of an investment in a Project, including the cost and rates of return, and such other information as Evolve may reasonably request.
“Qualified Development Cost” means, with respect to a Project, the documented internal and third-party costs and expenses incurred on or prior to Financial Close (or, if applicable, on or prior to delivery of a Funding Termination Notice or termination of this Agreement), which shall, for the avoidance of doubt, include (i) general and administrative expenses of HOBO in an amount equal to $3,000,000 for employee salaries and benefits (including accrued salaries for the founders of HOBO), (ii) any transfer taxes required to be paid by HOBO pursuant to the Contribution Agreement in connection with the contribution of the Initial Project to a Project HoldCo thereunder and (iii) the fees and expenses of counsel incurred in connection with the negotiation and execution of this Agreement and the other transaction documents contemplated hereby, and that are either (a) reasonably incurred by HOBO in the development of the Project, (b) described in the financial models previously shared by HOBO with Evolve or (c) approved in writing by Evolve prior to their incurrence.
“Qualified Project Model” means a financial model in Excel to be provided to Evolve under Section 2.3(a), Section 3.1(a) and Section 5.3(b), as applicable, prepared by HOBO in good faith and based on reasonable assumptions reflecting all projected costs and revenues of the development (after the first funding of development costs by Evolve), construction and operation of such Project through the term of the executed Offtake Agreements, and reflecting a pre-tax internal rate of return (using the XIRR function in Excel) which is materially consistent in form and content with the model provided by HOBO to Evolve prior to the date hereof.
“Stonepeak” means Stonepeak Partners LP, a Delaware limited partnership, or an Affiliate thereof.
“Subsequent Project” has the meaning set forth in Section 3.1(b).
“Target Company” has the meaning in Section 4.5(a).
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“Term” means the period from the date hereof to and including the date on which this Agreement is terminated in accordance with Section 7.1(a).
“Third Party” means any Person other than Evolve, HOBO and their respective Affiliates.
“Transfer” has the meaning set forth in the Form LLC Agreement.
“Unit” has the meaning set forth in the Form LLC Agreement.
Unless otherwise expressly specified in this Agreement, the provisions of this Article II shall apply only to the Initial Project.
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satisfy its obligations under this Section 2.1, Evolve’s sole remedy with respect thereto shall be limited to the termination of this Agreement and Evolve shall have no right to any damages or claims with respect thereto.
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Initial Project, Evolve shall deliver to the applicable Project Company or Project HoldCo a commercially reasonable equity commitment letter, in customary form for a private equity contribution commitment, pursuant to which Evolve will commit to contribute equity capital to such Project Company in accordance with and subject to the achievement of the Conditions Precedent and other applicable provisions of this Agreement.
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information is required to be disclosed. Furthermore, the Parties acknowledge that Evolve’s, Stonepeak’s and their respective Affiliates’ employees, directors, officers and principals serve, or may in the future serve, as directors of direct or indirect portfolio companies (which will be deemed to include entities in which Evolve, Stonepeak or their respective Affiliates own equity interests) of investment funds advised or managed by Evolve, Stonepeak or any of their respective Affiliates or any of their respective direct or indirect investors (collectively, the “Excluded Entities”), and that such employees, directors, officers, principals and Excluded Entities will not be deemed to have used confidential information solely due to the dual roles of any such employee, director, officer or principal or the use by such employee, director, officer or principal of general industry information that is confidential information.
Each Party hereby represents and warrants to such other Party, as of the date hereof, as follows:
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such Party from performing its obligations hereunder or that would otherwise conflict with this Agreement and (b) have not disclosed to the other Party or such other Party’s Affiliates any confidential information of others (including any previous employer), regardless of whether such Party or such individual is prohibited from doing so by any other agreement with any Third Party.
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If to HOBO, to:
HOBO Renewable Diesel LLC
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Title: President
Email: xxxxxx@xxxxxx.xxx
with a copy to (which shall not constitute notice):
King & Spalding LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Email: xxxxxxx@xxxxx.xxx
If to Evolve, to:
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Evolve Transition Infrastructure LP
c/o Stonepeak Infrastructure Partners
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Email: Xxxxxx@xxxxxxxxxxxxxxxxx.xxx
with a copy to:
Stonepeak Partners LP
55 Xxxxxx Yards
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxx
Email: xxxxxxx@xxxxxxxxxxxxxxxxx.xxx; xxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
with a copy to (which shall not constitute notice):
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
Any Party from time to time may change its address or other information for the purpose of notices to that Party by giving notice specifying such change to the other Party.
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for any obligations or liabilities of any Party under this Agreement or for any claim based on, in respect of or by reason of the transactions contemplated hereby or thereby. Without limiting the foregoing, to the extent permitted by Law, (a) each Party hereby waives and releases all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of any Party or otherwise impose liability of any Party on any other Person, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Party disclaims any reliance upon any other Person not party hereto with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officer of each Party as of the date first above written.
HOBO:
HOBO RENEWABLE DIESEL LLC
By:/s/ Xxxxxxx Xxxxx
Name:Xxxxxxx Xxxxx
Title:Chief Executive Officer
EVOLVE:
EVOLVE TRANSITION INFRASTRUCTURE LP
By:/s/ Xxxxxxx Xxxx
Name:Xxxxxxx Xxxx
Title:Chief Financial Officer
Signature Page to Framework Agreement
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TABLE OF CONTENTS
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TABLE OF CONTENTS
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Article VIII TAXES | 46 |
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TABLE OF CONTENTS
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Schedule 1 Members, Classes, Capital Contributions and Units
Schedule 2 Initial Managers
Schedule 3 Officers
Exhibit AForm of Adoption Agreement
Exhibit B Form of Release
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LIMITED LIABILITY COMPANY AGREEMENT
OF
[●]
This Limited Liability Company Agreement (this “Agreement”) of [●], a Delaware limited liability company (the “Company”), is made and entered into as of [●] (the “Effective Date”) by and among HOBO Renewable Diesel, LLC, a Delaware limited liability company (“HOBO”), and Evolve Transition Infrastructure LP, a Delaware limited partnership (“Evolve”).
RECITALS
WHEREAS, Evolve and HOBO have entered into that certain Framework Agreement, dated as of November 3, 2021 (as amended, modified or supplemented from time to time, the “Framework Agreement”);
WHEREAS, pursuant to the Framework Agreement, [upon payment of the Initial Development Payment (as defined in the Framework Agreement) and]1 in connection with entering into this Agreement, Evolve and HOBO made or shall be deemed to have made Capital Contributions to the Company on or before the Effective Date in the amounts described in this Agreement in exchange for certain Class A Units;
WHEREAS, after giving effect to the foregoing, as of the Effective Date, Evolve and HOBO own the number of Units set forth opposite their names on Schedule 1; and
WHEREAS, as of the Effective Date, Evolve and HOBO desire to set forth the agreement of the Members with respect to the governance of the Company and the other matters set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
“AAA” has the meaning set forth in Section 10.9(a).
“Accredited Investor” has the meaning set forth in Regulation D promulgated under the Securities Act.
“Adjusted Capital Account” means, with respect to any Member, the balance, if any, in such Member’s Capital Account as of the end of the relevant Tax Year or other period, after giving effect to the following adjustments:
1 To be deleted in respect of any Subsequent Project.
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This definition is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and will be interpreted consistently therewith.
“Adoption Agreement” means an Adoption Agreement substantially in the form of Exhibit A.
“Affiliate” means, with respect to a Person, any other Person Controlling, Controlled by or under common Control with the first Person. As used in this definition, the term “Control,” “Controlling” or “Controlled by” shall mean the possession, directly or indirectly, of the power either to (a) vote more than 50% or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such Person or (b) direct or cause the direction of the actions, management or policies of such Person, in each case, whether through the ownership of voting securities or interests, by contract or otherwise. For purposes of this Agreement, (i) the Members and their respective Affiliates (other than the Company Group) shall be deemed not to be Affiliates of the Company Group, (ii) each Company Group member shall be deemed not to be an Affiliate of any Member or its Affiliates (other than the Company Group); provided that, for purposes of Section 6.3, Evolve and its Affiliates shall be deemed to be Affiliates of the Company Group, and (iii) no Class B Member shall be considered an Affiliate of Evolve or Stonepeak or any of their respective Affiliates.
“Affiliate Contract” has the meaning set forth in Section 6.3.
“Affiliate Transaction” has the meaning set forth in Section 6.3.
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Arbitration Parties” has the meaning set forth in Section 10.9(a).
“Assumed Tax Liability” means an amount, as determined in good faith by the Board, for each Member that is equal to the excess, if any, of (a) the cumulative amounts of U.S. federal, state and local tax due from such Member with respect to such Member’s allocable share of Company items of income, gain, loss deduction and credit (including remedial items under Treasury Regulations Section 1.704-3(d)) pursuant to Section 5.3(c) as determined for the most recently completed Quarterly Estimated Tax Period of the current Tax Year and all prior Quarterly Estimated Tax Periods of such Tax Year and all prior Tax Years, assuming that the applicable tax rate is the highest combined marginal income tax rate (taking into account losses from prior periods that may be utilized to offset income and items, if any, determined at the owner-level with respect to properties owned by the Company) that the Board estimates in good faith would be applicable to an individual resident in New York, New York or a U.S. corporation doing business in New York, New York, whichever is greater, over (b) the cumulative actual cash distributions made to such Member pursuant to Section 5.1 during the most recently completed Quarterly Estimated Tax Period, all prior Quarterly Estimated Tax Periods of the current Tax Year and all prior Tax Years plus the cumulative actual cash distributions made to such Member pursuant to Section 5.2 with respect to all prior periods (without duplication).
“Available Cash” means, at any time, cash and cash equivalents of the Company Group on hand at such time after provision for reserves for payment of costs and expenses, including capital costs and
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expenses, operating costs and expenses, administrative costs and expenses, Taxes, future acquisitions, debt service and contingencies, as determined by the Board in good faith.
“Board” has the meaning set forth in Section 6.1.
“Breaching Member” has the meaning set forth in Section 3.3(c)(i).
“Business” means the development, construction, ownership and operation of the Project, including any related assets or developments.
“Business Day” means any day other than a Saturday, Sunday or legal holiday on which banks in New York City, New York or Houston, Texas are authorized or obligated by Law to close.
“Cancellation Event” means, with respect to any Member, any of the following, as applicable:
“Capital Account” means an account maintained for each Member on the Company’s books and records in accordance with the following terms:
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The foregoing terms and the other terms of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2 (including with respect to the issuance of any Class A Units to a Member who exercises its right to make additional Capital Contributions in exchange for additional Class A Units pursuant to Section 3.3(b), pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(s)) and will be interpreted and applied consistently therewith. If the Board determines that it is prudent to modify the manner in which the Capital Accounts, or any additions or subtractions thereto, are computed to comply with such Treasury Regulations, then the Board may make such modification so long as it is not likely to have a material effect on the amounts distributable to any Member pursuant to Article IX upon the Company’s dissolution.
“Capital Contribution” means any amount of cash and property (based on the Fair Market Value thereof, net of any liabilities assumed or taken subject to by the Company) contributed or deemed contributed to the Company by a Member pursuant to this Agreement; provided that indemnity payments by a Member to the Company pursuant to Section 8.3(c), whether or not treated as a Capital Contribution for federal income tax purposes, shall not be treated as a Capital Contribution for purposes of calculating Return Threshold 1.
“Cause Event” means a Project Document is terminated by Evolve (a) due to the actual fraud, willful misconduct or acts of dishonesty by HOBO or its Affiliates after giving effect to any notice and cure provisions therein or (b) in the event any two of Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx or Xxxx Xxxxx cease to provide services to HOBO in support of HOBO’s obligations under the Project Documents other than due to the death or disability of such Person.
“Certificate” has the meaning set forth in Section 2.1.
“Class A Member” means any Member owning Class A Units, in such capacity.
“Class A Units” means Class A Units issued to those Persons listed as Class A Members on Schedule 1 as of the Effective Date and any other Units issued after the Effective Date and designated by the Board as Class A Units.
“Class B Member” means any Member holding Class B Units, in such capacity.
“Class B Units” means the Class B Units issued to HOBO as of the Effective Date as set forth on Schedule 1 and any other Units issued after the Effective Date and designated by the Board as Class B Units.
“Class Sharing Percentage” means, at any time, (a) with respect to a particular class (or subdivided class) of Units (other than Class B Units), a fraction (expressed as a percentage), the numerator of which is the total number of Units of such class held by the applicable Member at such time and the denominator of which is the total number of Units of such class (or subdivided class) held by all Members at such time, and (b) with respect to any Class B Units, a fraction (expressed as a percentage), the numerator of which is the total number of Class B Units held by the applicable Class B Member at such time and the denominator of which is the total number of Class B Units held by all Class B Members at such time.
“Code” means the Internal Revenue Code of 1986.
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“Company” has the meaning set forth in the introductory paragraph hereof.
“Company Group” means the Company and any Entity which is Controlled by the Company in accordance with clause (a) of the definition of Control.
“Company Minimum Gain” has the meaning set forth in Treasury Regulations Sections 1.704-2(b)(2) and 1.704-2(d)(1) for the phrase “partnership minimum gain.”
“Company Related Party” means any member of the Company Group or any of their respective Affiliates, former or current members, agents, employees, managers, officers, directors or representatives.
“Company Sale” has the meaning set forth in Section 4.4(a).
[“Contribution Agreement” means that certain Contribution Agreement, dated as of the date hereof, by and between HOBO and the Company.]2
“Control” as to any Entity means (a) the possession, directly or indirectly, of the right to more than 50% of the distributions therefrom (including liquidating distributions) or (b) the power or authority, directly or indirectly, through ownership of voting securities, by contract or otherwise, to direct the management, activities or policies of such Entity.
“Default Contribution Amount” has the meaning set forth in Section 3.3(c)(ii).
“Delaware LLC Act” means the Delaware Limited Liability Company Act.
“Depreciation” means, for each Tax Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such Tax Year or other period, except that (a) with respect to any property the Gross Asset Value of which differs from its adjusted tax basis for federal income tax purposes and which difference is being eliminated by use of the “remedial method” pursuant to Treasury Regulations Section 1.704-3(d), Depreciation for such Tax Year or other period will be the amount of book basis recovered for such Tax Year or other period under the rules prescribed by Treasury Regulations Section 1.704-3(d)(2) and (b) with respect to any other property the Gross Asset Value of which differs from its adjusted basis for federal income tax purposes at the beginning of such Tax Year or other period, Depreciation for such Tax Year or other period will be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such Tax Year or other period bears to such beginning adjusted tax basis. Notwithstanding the foregoing, if the federal income tax depreciation, amortization or other cost recovery deduction for such Tax Year or other period is zero, then, for the purposes of clause (b) above, Depreciation will be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.
“Designated Evolve Manager” has the meaning set forth in Section 6.2(a).
“Designated Individual” means any individual meeting the requirements of Treasury Regulation Section 301.6223-1(b)(2) that is appointed as the sole individual through whom the Tax Representative will act for purposes of subchapter C of chapter 63 of the Code, as provided in proposed Treasury Regulation Section 301.6223-1(b)(3).
2 To be deleted in respect of any Subsequent Project.
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“Discretionary Capital Contributions” has the meaning set forth in Section 3.3(b)(ii).
“Dispute” has the meaning set forth in Section 10.9(a).
“Drag Sale” has the meaning set forth in Section 4.2(a).
“Effective Date” has the meaning set forth in the introductory paragraph hereof.
“Entity” means any corporation, limited liability company, general partnership, limited partnership, venture, trust, business trust, plan, unincorporated association, estate or other entity.
“Equity Financing” has the meaning set forth in the Framework Agreement.
“Evolve” has the meaning set forth in the introductory paragraph hereof.
“Evolve Credit Agreement” means that Third Amended and Restated Credit Agreement, dated as of March 31, 2015, by and among Evolve, Royal Bank of Canada, RBC Capital Markets and the lenders party thereto, as amended, modified or supplemented from time to time.
“Evolve Managers” has the meaning set forth in Section 6.2(a).
“Excluded Entities” has the meaning set forth in Section 7.3.
“Fair Market Value” means the value of any specified interest or property, which shall not in any event be less than zero, that would be obtained in an arm’s length transaction for cash between an informed and willing buyer and an informed and willing seller, neither of whom is under any compulsion to purchase or sell, respectively, and without regard to the particular circumstances of the buyer or seller, and determined without giving effect to any discount for minority interest, any lack of liquidity or any special governance rights, as reasonably determined in good faith by the Board.
“Financial Close” has the meaning set forth in the Framework Agreement.
“Framework Agreement” has the meaning set forth in the Recitals.
“Governmental Authority” means any (a) national, federal, provincial, territorial, state, regional, municipal, local or other government, (b) governmental or public department, court, tribunal, arbitral body, statutory body, commission, board, bureau or agency, (c) self-regulatory organization, regulatory authority, administrative tribunal or authority, (d) subdivision, agent, commission, board or authority of any of the foregoing or (e) quasi-governmental or private body exercising any regulatory, expropriation or Taxing authority under or for the account of any of the foregoing.
“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:
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“Gross Liability Value” means, with respect to any Company liability described in Treasury Regulations Section 1.752-7(b)(3)(i), and subject to the provisions of Treasury Regulations Section 1.752-7(c), the amount of cash that a willing assignor would pay to a willing assignee to assume such liability in an arms’-length transaction, as determined by the Board. The Gross Liability Value of each such Company liability described in Treasury Regulations Section 1.752-7(b)(3)(i) shall be adjusted at such times as provided in this Agreement for an adjustment to Gross Asset Values.
“HOBO” has the meaning set forth in the introductory paragraph hereof.
“HOBO Managers” has the meaning set forth in Section 6.2(a).
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“Imputed Underpayment” has the meaning set forth in Section 8.3(d).
“Indemnified Losses” has the meaning set forth in Section 6.6(c).
“Indemnitee” has the meaning set forth in Section 6.6(c).
“Internal Restructure” means, with respect to the Company Group, any re-formation, conversion, transfer of assets, Transfer by Members of their Units, merger, incorporation, liquidation, recapitalization, reorganization, contribution and exchange of Units into other equity interests or other transaction in connection with tax, the Investment Company Act of 1940 or other regulatory or other reasons, in each case undertaken (a) in connection with a Public Offering in accordance with this Agreement or (b) as Evolve reasonably determines appropriate to comply with changes in Law, in each case, in a manner that does not materially and disproportionately adversely affect any Member or class of Units as compared to the effect on any other Member or class of Units.
“Law” means (a) all applicable laws, regulations, statutes, codes, rules, permits, licenses, certifications, decrees or standards imposed by any Governmental Authority and (b) all applicable orders, injunctions, judgments, decrees, rulings, writs, assessments, awards, subpoenas, verdicts, settlements or findings from any Governmental Authority.
“Managers” has the meaning set forth in Section 6.2(a).
“Mandatory Capital Contributions” means, collectively, the Capital Contributions described in Section 3.3(b)(i) and those Discretionary Capital Contributions that, pursuant to Section 3.3(b)(v), are deemed Mandatory Capital Contributions.
“Member” means any Person owning Units as permitted under this Agreement.
“Member in Default” has the meaning set forth in Section 3.3(c)(i).
“Member Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i) with respect to “partner minimum gain.”
“Member Nonrecourse Debt” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(4) for the phrase “partner nonrecourse debt.”
“Member Nonrecourse Deductions” has the meaning set forth in Treasury Regulations Section 1.704-2(i) for the phrase “partner nonrecourse deductions.”
“Membership Interest” means with respect to any Member at any time, the entire equity interest (or “limited liability company interest” as that term is used in the Delaware LLC Act) of such Member in the Company and all rights and liabilities associated therewith, including the Member’s Units.
“Monetary Default” has the meaning set forth in Section 3.3(c)(i).
“Non-Contributing Member” has the meaning set forth in Section 3.3(c)(ii).
“Non-Default Members” has the meaning set forth in Section 3.3(c)(ii).
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“Nonrecourse Deductions” has the meaning set forth in Treasury Regulations Sections 1.704-2(b)(1) and 1.704-2(c).
“Nonrecourse Liability” has the meaning set forth in Treasury Regulations Sections 1.704-2(b)(3) and 1.752-1(a)(2).
“Other Indemnitor” has the meaning set forth in Section 6.7(a).
“Partially Adjusted Capital Account” means, with respect to each Tax Year or other period and with respect to each Person who was a Member during such Tax Year or other period, the Capital Account balance of such Person at the beginning of such Tax Year or other period, adjusted as set forth in the definition of Capital Account for all contributions and distributions during such Tax Year or other period, all special allocations pursuant to Section 5.3(b) made to such Person for such Tax Year or other period, but before giving effect to any allocations of Profits or Losses (or items thereof).
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of Entity or status recognized, under Law, as a separate legal person.
“Profits” and “Losses” means, for each Tax Year or other period, an amount equal to the Company’s Taxable income or loss for such year or period determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, deduction or credit required to be stated separately pursuant to Code Section 703(a)(1) will be included in Taxable income or loss), with the following adjustments:
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“Project” means [insert description of specific renewable fuels facility].
“Project Document” has the meaning set forth in the Framework Agreement.
“Public Offering” means any sale in a (a) firm underwritten public offering registered under the Securities Act of any class of equity securities of the Company (or any successor thereto), or (b) a two-step transaction in which any class of equity securities of the Company (or any successor thereto) is issued in a private placement effected pursuant to an exemption from the registration requirements of the Securities Act coupled with a subsequent public offering registered under the Securities Act of any class of equity securities of the Company (or any successor thereto).
“Quarterly Estimated Tax Period” means the four payment periods designated by the Internal Revenue Service for calculating estimated tax payments for individual taxpayers, currently consisting under current Law of the three-month period January 1 through March 31, the two-month period April 1 through May 31, the three-month period June 1 through August 31, and the four-month period September 1 through December 31.
“Restricted Member” has the meaning set forth in Section 3.4.
“Return Threshold 1” means, as of the date of determination, Total Distributions pursuant to Section 5.1 (including pursuant to Section 9.2) that have been distributed to all holders of Class A Units are such as result in an internal rate of return of 8% on the aggregate Capital Contributions associated with such Class A Units, with such internal rate of return being the actual annual pre-tax rate of return (specified as a percentage) calculated using the “XIRR” function of Microsoft Excel® or, if Microsoft Excel® is no longer supported by Microsoft Corporation, by a similar function to which the Members reasonably agree.
“Return Threshold 2” means, as of the date of determination, Total Distributions pursuant to Section 5.1 (including pursuant to Section 9.2) that have been distributed to all holders of Class A Units (a) are such as result in an internal rate of return of 8% on the aggregate Capital Contributions associated with such Class A Units, with such internal rate of return being the actual annual pre-tax rate of return (specified as a percentage) calculated using the “XIRR” function of Microsoft Excel® or, if Microsoft Excel® is no longer supported by Microsoft Corporation, by a similar function to which the Members reasonably agree, and (b) equal 2.0 times the aggregate Capital Contributions associated with such Class A Units.
“Return Threshold 3” means, as of the date of determination, Total Distributions pursuant to Section 5.1 (including pursuant to Section 9.2) that have been distributed to all holders of Class A Units (a) are such as result in an internal rate of return of 8% on the aggregate Capital Contributions associated with
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such Class A Units, with such internal rate of return being the actual annual pre-tax rate of return (specified as a percentage) calculated using the “XIRR” function of Microsoft Excel® or, if Microsoft Excel® is no longer supported by Microsoft Corporation, by a similar function to which the Members reasonably agree, and (b) equal 3.0 times the aggregate Capital Contributions associated with such Class A Units.
“Securities Act” means the Securities Act of 1933.
“Stonepeak” means Stonepeak Partners LP, a Delaware limited partnership, and its Affiliates.
“Tag Sale” has the meaning set forth in Section 4.3(a).
“Tag Sale Notice” has the meaning set forth in Section 4.3(a).
“Target Capital Account” means, with respect to each Tax Year or other period and with respect to each Person who was a Member during such Tax Year or other period, the amount (which may be either a positive or a deficit balance) equal to the difference between (a) the amount of the hypothetical distribution (if any) that such Person would receive if, on the last day of such Tax Year or other period, (i) all Company assets, including cash, were sold for cash equal to their Gross Asset Values, taking into account any adjustments thereto for such Tax Year or other period, (ii) all Company liabilities were satisfied in cash according to their terms (limited, with respect to each Nonrecourse Liability or Member Nonrecourse Debt, to the Gross Asset Values of the assets securing such liability) and (iii) the net proceeds thereof (after satisfaction of such liabilities) were distributed in full pursuant to Section 9.2(c)(iii) treating any unvested Units as fully vested and (b) the sum of (i) the amount, if any, without duplication, that such Person would be obligated to contribute to the Company’s capital pursuant to this Agreement, if applicable, computed immediately after the hypothetical sale described in clause (a) above, (ii) such Person’s share of Company Minimum Gain determined pursuant to Treasury Regulations Section 1.704-2(g) and (iii) such Person’s share of Member Minimum Gain determined pursuant to Treasury Regulations Section 1.704-2(i)(5), clauses (ii) and (iii) to be computed immediately prior to the hypothetical sale described in clause (a) above.
“Tax” means any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profit, environmental, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing.
“Tax Distribution Date” means (a) with respect to a Quarterly Estimated Tax Period ending on March 31, April 15, (b) with respect to a Quarterly Estimated Tax Period ending on May 31, June 15, (c) with respect to a Quarterly Estimated Tax Period ending on August 31, September 15, and (d) with respect to a Quarterly Estimated Tax Period ending on December 31, January 15.
“Tax Distributions” has the meaning set forth in Section 5.2.
“Tax Representative” has the meaning set forth in Section 8.3(a).
“Tax Year” has the meaning set forth in Section 2.6.
“Total Distributions” means, with respect to any Member at any time, the sum of the total amount of cash and the Fair Market Value (as of the date of actual distribution) of all property distributed by the Company as of such date to such Member pursuant to Section 5.1 (including pursuant to Section 9.2). Notwithstanding any provision to the contrary in this Agreement, for purposes of determining a Member’s
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Total Distributions, (a) any amounts withheld or paid pursuant to Section 5.4 will be treated as having been distributed to such Member pursuant to Section 5.1, (b) solely for the purposes of calculating Return Threshold 1, Tax Distributions will not be treated as having been distributed to such Member pursuant to Section 5.1, and (c) any amounts paid to Evolve pursuant to Section 8.2(e) will not be treated as a distribution to Evolve pursuant to Section 5.1.
“Transfer” means, with respect to a Person, a direct or indirect disposition, sale, assignment, transfer, gift, surrender for cancellation, exchange, pledge or grant of a security interest, in each case whether voluntary or involuntary, including the issuance of equity interests in any such Person that is an Entity or by way of a merger or consolidation or division; provided, however, that (a) (i) changes in the direct or indirect ownership of Evolve will not be deemed to be a Transfer unless the value of the Company comprises more than 50% of Evolve’s total value and (ii) pledges or grants of a security interest in the Units held by Evolve will not be deemed a Transfer to the extent such pledges or grants are required by any secured debt financing of Evolve, including the Evolve Credit Agreement, to secure the obligations of Evolve thereunder and (b) changes in the direct or indirect ownership of HOBO will not be deemed to be a Transfer so long as (i) HOBO remains under the Control of some combination of Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx or Xxxx Xxxxx and (ii)(A) in respect of any transfers in the equity interests in HOBO, such transfers are only to (1) employees of (or service providers to) HOBO or its Affiliates or (2) the family members of or trusts established by such employees for estate or other similar planning purposes, (B) in respect of any pledge or grant of a security interest in such equity interests, such pledge or grant of a security interest secures loans obtained by individual members of HOBO (subject to the condition that such pledge or grant of a security interest is limited to the economic interests in HOBO in the event of any foreclosure), or (C) in respect of any issuance of new shares in HOBO, any proceeds of such issuance are used by HOBO for business purposes and are not used to facilitate a distribution to any direct or indirect equity holders (provided, however, that no changes in the direct or indirect ownership in HOBO will be considered a Transfer for purposes of this Agreement following the third anniversary of Financial Close of the Project).
“Treasury Regulations” means temporary and final Treasury Regulations promulgated under the Code.
“Units” means units representing the Membership Interests in the Company, including the Class A Units, the Class B Units and any other class or series of units or other equity securities of the Company issued after the Effective Date.
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the execution, delivery and filing of, any amendments or restatements of the Certificate and any other certificates, notices, statements or other instruments (and any amendments or restatements thereof) necessary or advisable for the Company’s formation or operation in all jurisdictions where the Company may elect to do business.
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Upon the occurrence of a Cause Event, any Class B Units that are then unvested shall be forfeited by the Class B Members to the Company and, for the avoidance of doubt, may be reallocated by the Company to any Person other than Evolve, Stonepeak or any of their respective Affiliates. Notwithstanding the foregoing, upon a sale of (1) all of the Units or (2) all of the equity interests of Evolve, in either case, to a third party, all previously unvested Class B Units of such Class B Member shall be deemed irrevocably vested. The Board shall have the right to accelerate the date that any Class B Unit becomes vested or to waive any vesting requirements in respect of any Class B Unit, in whole or in part, for any reason or no reason.
3 To be deleted in respect of any Subsequent Project.
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4 To be deleted in respect of any Subsequent Project.
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are not issued with respect to a Public Offering pursuant to an effective registration statement under the Securities Act or (b) such transaction would otherwise require under securities Law the registration of the offer and sale of any equity securities, then such Class B Member shall not have a right to participate in such transaction. In such case, if the acquirer or surviving Entity in such transaction, as applicable, desires to pay cash equal to the Fair Market Value of such Member’s Units, then such Member shall accept the cash payment in exchange for his Units.
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Section 4.9 is a special power of attorney, is coupled with an interest, is irrevocable and shall survive the bankruptcy, insolvency, dissolution or cessation of existence of the applicable Member.
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provided, however, that notwithstanding the foregoing, distributions pursuant to this Agreement shall be modified in accordance with the provisions of Sections 4.5 and 4.6 of the Framework Agreement (or in the case of any future amendment of the Framework Agreement by the parties thereto, the appropriate successor provision), to the extent applicable.
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permitted pursuant to the terms of a separate agreement between the Company Group, on the one hand, and such Member, on the other; provided, however, that Evolve may disclose any of the above confidential information to Stonepeak and its and their potential and actual Transferees, lenders, and investors and their respective employees, agents and representatives. The obligations of the Members hereunder will not apply to the extent that the disclosure of information otherwise determined to be confidential is required by Law; provided that prior to disclosing such confidential information, to the extent practicable a Member must notify the Company thereof, which notice will include the basis upon which such Member believes the information is required to be disclosed. Each Member agrees that it will not use any such confidential information for any purpose except (a) in connection with its investment in the Company, including a potential sale or acquisition of its Units, (b) in a manner that is not reasonably expected to be adverse to the Company in any material manner, and (c) to enforce its rights hereunder. Furthermore, Members and the Company acknowledge that Evolve’s and its Affiliates’ employees, directors, officers and principals serve, or may in the future serve, as directors of direct or indirect portfolio companies (which will be deemed to include entities in which Evolve or its Affiliates own equity interests) of investment funds advised or managed by Evolve or any of its Affiliates or any of their respective direct or indirect investors (collectively, the “Excluded Entities”), and that such employees, directors, officers, principals and Excluded Entities will not be deemed to have used confidential information solely due to the dual roles of any such employee, director, officer or principal or the use by such employee, director, officer or principal of general industry information that is confidential information.
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Agreement or the transactions contemplated herein or Evolve without the prior consent of Evolve; provided, that the Company Group or such Member, as applicable, shall provide the other Members an advance opportunity to review and comment upon such proposed press release, interview, article or other public announcement or media release; consider in good faith the comments of the other Member; and provide the other Members with final copies thereof;
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If to HOBO, to:
HOBO Renewable Diesel LLC
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Title: President
Email: xxxxxx@xxxxxx.xxx
with a copy to (which shall not constitute notice):
King & Spalding LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Email: xxxxxxx@xxxxx.xxx
If to Evolve, to:
Evolve Transition Infrastructure LP
c/o Stonepeak Infrastructure Partners
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Email: Xxxxxx@xxxxxxxxxxxxxxxxx.xxx
with a copy to:
Stonepeak Partners LP
55 Xxxxxx Yards
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxx
Email: xxxxxxx@xxxxxxxxxxxxxxxxx.xxx; xxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
with a copy to (which shall not constitute notice):
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0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
Any Member from time to time may change its address or other information for the purpose of notices to that party by giving notice specifying such change to the other Member(s).
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hereto, and then only with respect to the specific obligations set forth herein or therein with respect to such Persons. For further clarity, no past, present or future director, officer, employee, incorporator, manager, member, partner, equityholder, Affiliate, agent, attorney or other representative (in each case, in their capacities as such) of any Person party hereto, including Stonepeak, or of any Affiliate of any Person party hereto, or any of their successors or permitted assigns, shall have any liability for any obligations or liabilities of any Member under this Agreement or for any claim based on, in respect of or by reason of the transactions contemplated hereby or thereby. Without limiting the foregoing, to the extent permitted by Law, (a) each Person party hereto hereby waives and releases all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the Entity form of any Person party hereto or otherwise impose liability of any Person party hereto on any other Person, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Person party hereto disclaims any reliance upon any other Person not party hereto with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned Members have executed this Agreement effective as of the Effective Date.
CLASS A MEMBERS:
EVOLVE TRANSITION INFRASTRUCTURE LP
By: [●]
By:
Name:[●]
Title:[●]
HOBO RENEWABLE DIESEL, LLC
By:
Name:[●]
Title:[●]
CLASS B MEMBERS:
HOBO RENEWABLE DIESEL, LLC
By:
Name:[●]
Title:[●]
Signature Page to
Limited Liability Company Agreement of
[●]
Members, Classes, Capital Contributions and Units
Name and Address | Initial Capital Contribution | Additional Capital Contribution | Total Capital Contributions | Units |
|---|---|---|---|---|
Class A Members: | | | | Class A |
Evolve Transition Infrastructure LP With a copy to (which shall not constitute notice): Sidley Austin LLP | $[●] | $0 | $[●] | [●] |
HOBO Renewable Diesel, XXX 0000 Xxxx Xxx Xxxx., Xxxxx 0000 Xxxxxxx, Xxxxx 77056 Attention: Xxxx Xxxxx Title: President Email: xxxxxx@xxxxxx.xxx | $[●] | $0 | $[●] | [●] |
Class B Members: | | | | Class B Units |
HOBO Renewable Diesel, XXX 0000 Xxxx Xxx Xxxx., Xxxxx 0000 Xxxxxxx, Xxxxx 77056 Attention: Xxxx Xxxxx Title: President Email: xxxxxx@xxxxxx.xxx | – | $0 | – | 1000 |
Schedule 1
Initial Managers
Name | Position |
[●] | Evolve Manager (Designated Evolve Manager) |
[●] | Evolve Manager |
[●] | Evolve Manager |
[●] | HOBO Manager |
[●] | HOBO Manager |
Schedule 2
Officers
Name | Position |
|---|---|
[●] | Chief Executive Officer |
[●] | President |
[●] | Chief Financial Officer and Executive Vice President |
Schedule 3
Form of Adoption Agreement
This adoption agreement (this “Adoption Agreement”) is executed as of [●] pursuant to the terms of the limited liability company agreement of [●] dated [●], and the Schedules and Exhibits thereto, as amended or restated from time to time, a copy of which is attached hereto (the “LLC Agreement”), by the transferee (“Transferee”) executing this Adoption Agreement. Initially capitalized terms not defined herein shall have the meanings assigned to such terms in the LLC Agreement. By the execution of this Adoption Agreement, the Transferee agrees as follows:
1.Acknowledgment. Transferee acknowledges that Transferee is acquiring [●] [Class A/Class B] Units, subject to the terms of the LLC Agreement. Transferee further acknowledges that until Transferee is admitted to the Company as a Member that Transferee has only the rights described in the LLC Agreement pertaining to Transferees.
2.Agreement. Transferee (a) agrees that the [●] [Class A/Class B] Units acquired by Transferee shall be bound by and subject to the terms of the LLC Agreement and (b) hereby joins in, and agrees to be bound by, the LLC Agreement (including the Exhibits and Schedules) with the same force and effect as if the Transferee were originally a party thereto.
3.Notice. Any notice required by the LLC Agreement shall be given to Transferee at the address listed below Transferee’s signature below.
4.Joinder. The spouse of the undersigned Transferee, if applicable, executes this Adoption Agreement to acknowledge that he/she is fully aware of, understands, and consents, for himself/herself and his/her heirs, assigns and legal representatives, to the terms of the LLC Agreement, as amended from time to time in accordance with its terms, and its binding effect upon any community property interest or marital settlement awards he/she may now or hereafter own or receive, and agrees that the termination of his/her marital relationship with such Transferee for any reason shall not have the effect of removing any Unit in the Company subject to the LLC Agreement from the coverage thereof and that his/her awareness, understanding, consent, and agreement is evidenced by his/her signature below.
TRANSFEREE:
By:
Name:
Information for Notices:
Fax:
SPOUSE:
By:
Name:
Exhibit A - 1
Form of Release
This confidential mutual release agreement (this “Agreement”) is made effective as of [●] (the “Effective Date”) among [●], a Delaware limited liability company (the “Member”), [●], a Delaware limited liability company (the “Company”) and [●], a Delaware limited liability company (the “Project Company” and together with the Company, the “Company Group”). Each of the Member, the Company and the Project Company is referred to individually as a “Party” and collectively as the “Parties”.
WHEREAS, the Member and the other parties named therein are parties to the Limited Liability Company Agreement of the Company, dated as of [●], as the same may be amended from time to time, (the “LLC Agreement”);
WHEREAS, pursuant to the LLC Agreement, as a condition to the receipt of consideration from any Drag Sale, Tag Sale or Company Sale (each, as used herein, as defined in the LLC Agreement), the Member shall provide the Company Group with a release of claims such Member has or may have against the Company Group, and in consideration thereof such Member shall receive from the Company Group, a release of claims the Company Group has or may have against the Member; and
WHEREAS, the Company has consummated a [Drag Sale / Tag Sale / Company Sale] and intends to distribute the consideration from such [Drag Sale / Tag Sale / Company Sale].
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and covenants set out in this Agreement, the Parties agree as follows:
0.Xxxxx Distribution. In accordance with the LLC Agreement, as a final distribution of proceeds from the [Drag Sale / Tag Sale / Company Sale], the Member will receive a distribution of $[●] plus, to the extent applicable, its pro rata portion of any subsequent proceeds in connection with any purchase price adjustments related thereto.
0.Xxxxxx Releases.
(a)Release by Member. The Member, on behalf of itself, its heirs, executors, successors, administrators and assigns (collectively, the “Member Release Group”), does hereby knowingly and voluntarily fully settle, release, and forever discharge, as permitted by law, the Company and the Project Company and their respective owners, partners, officers, managers, administrators, employees, directors, attorneys, affiliates, subsidiaries, parent companies, successors and assigns (collectively, the “Company Release Group”) from, and covenants not to xxx the Company Release Group for, any claims, causes of action or promises of any and every kind, whether known or unknown, that exist or have existed at any time on or prior to the Effective Date, except for the Excluded Member Claims (as defined below), including the following: (i) any contractual claims, including any claims related to, regarding or arising from any aspects or terms of the LLC Agreement occurring through the Effective Date; (ii) any statutory claims; (iii) any tort claims, including claims for negligence; and (iv) any claims, matters, or actions related to the Member’s employment and/or affiliation with, or separation from, any member of the Company Release Group. Notwithstanding the above, the Member may make any claims against the Company Release Group in connection with any breach by the Company Release Group of this Agreement. “Excluded Member Claims” means all (A) claims to indemnification under the LLC Agreement, (B) claims under the Company Group’s manager and officer liability insurance policy; (C) claims that arise following the Effective Date, including, without limitation, any such claims under an employment or separation agreement existing after the Effective Date between the Member, on the one hand, and the Company or the Project Company, on the other hand, or (D) claims against the Company Group relating to unpaid compensation or unreimbursed
Exhibit B-1
expenses or otherwise arising under an employment agreement between the Member, on the one hand, and the Company or the Project Company, on the other hand.
(b)Release by Company Release Group. Each member of the Company Release Group does hereby knowingly and voluntarily fully settle, release, and forever discharge, as permitted by law, the Member Release Group from, and covenants not to xxx the Member Release Group for, all claims, causes of action or promises of any and every kind, whether known or unknown, that are based upon facts occurring or existing at any time on or prior to the Effective Date, except for the Excluded Company Claims (as defined below), including the following: (i) any contractual claims, including any claims related to, regarding or arising from any aspects or terms of the LLC Agreement occurring through the Effective Date; (ii) any statutory claims; (iii) all tort claims, including claims for negligence; and (iv) any claims, matters, or actions related to the Member’s employment and/or affiliation with, or separation from, any member of the Company Release Group. Notwithstanding the above, the Company Release Group may make any claims against the Member Release Group in connection with any breach by the Member Release Group of this Agreement. “Excluded Company Claims” means all (A) claims to indemnification under any employment or separation agreement existing as of the Effective Date between Member, on the one hand, and the Company Group, on the other hand, (B) claims that arise following the Effective Date, or (C) claims that arise prior to, on or following the Effective Date under an employment agreement, separation agreement, grant agreement or other similar agreement existing prior to, on or following the Effective Date between the Member, on the one hand, and the Company, the Project Company, or, in each case an affiliate thereof, on the other hand[, including, for the avoidance of doubt that certain [Executive Services Agreement dated [•], 2021 by and between Member, on the one hand, and Evolve Transition Infrastructure GP LLC, on the other hand.5]
3.Certain Acknowledgements. Each Party acknowledges that it has read and understands this Agreement, has, to the extent such party so desired, consulted with legal counsel, is fully aware of its legal effect and has entered into this Agreement freely based on its own judgment with the advice of legal counsel and such other advisers as such party has deemed necessary or advisable.
4.Non-Admission. This Agreement is not an admission by any Party of any wrongdoing or liability whatsoever, and any wrongdoing or liability is denied by any such Party.
5.Confidentiality. The Member represents and agrees that he shall keep the terms, amount, and facts of this Agreement completely confidential and that he shall not hereafter disclose, directly or indirectly, any information concerning this Agreement to anyone, except his attorney(s), tax advisor(s), or spouse, or except as may be required by any federal or state agency or court, or as otherwise required by law. The Member shall affirmatively instruct his attorney(s), tax advisor(s) and spouse to abide strictly by the confidentiality requirement imposed in this Agreement.
| Dispute Resolution. |
5 Bracketed language or substantially similar language to be included depending on the facts.
Exhibit A - 2
| 8. | Consent to Jurisdiction; Waiver of Jury Trial. |
Exhibit A - 3
Exhibit A - 4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
MEMBER:
[●]
By: ________
Name: ________
Title: ________
COMPANY:
[●]
By: ________
Name: ________
Title: ________
PROJECT COMPANY:
[●]
By: ________
Name: ________
Title: ________
Exhibit A - 5
FORM OF
CONTRIBUTION AGREEMENT
BETWEEN
HOBO RENEWABLE DIESEL LLC,
as Contributor,
AND
[PROJECT HOLDCO],
as Project HoldCo
Dated as of [●]
Exhibit B - 2
EXHIBITS
Exhibit AForm of Assignment Agreement
SCHEDULES
Schedule 1.1-PL | Permitted Liens |
Schedule 3.2(a) | Ownership of Acquired Company Interests |
Schedule 3.4 | Financial Statements |
Schedule 3.5 | Absence of Changes |
Schedule 3.6(a) | Compliance with Law |
Schedule 3.6(b) | Material Permits |
Schedule 3.6(c) | Required Permits |
Schedule 3.7(b) | Licenses of Intellectual Property |
Schedule 3.8 | Litigation |
Schedule 3.9 | Insurance |
Schedule 3.10(a) | Real Property – Fee Title Ownership |
Schedule 3.10(b) | Real Property – Leases |
Schedule 3.10(c) | Real Property – Easements |
Schedule 3.10(d) | Real Property – ROFRs, Options and Other Similar Rights |
Schedule 3.11 | Personal Property |
Schedule 3.12 | Environmental Matters |
Schedule 3.13 | Taxes |
Schedule 3.14(a) | Project Contracts |
Schedule 3.17 | Affiliate Transactions |
Schedule 3.18 | Bank Accounts |
Schedule 3.21-CS | Credit Support |
Schedule 3.21-I | Indebtedness |
Schedule 3.21-P | Payables |
Schedule 4.4 | Contributor Approvals |
Schedule 4.5 | Broker’s Commissions |
Schedule 5.6 | Broker’s Commissions |
CONTRIBUTION AGREEMENT
This Contribution Agreement (this “Agreement”) is made and entered into as of [_______ __, 202_] by and between HOBO Renewable Diesel, LLC, a Delaware limited liability company (“Contributor”), and [insert reference to Project HoldCo], a Delaware limited liability company (“Project HoldCo”). Each of Contributor and Project HoldCo are sometimes referred to herein individually as a “Party” and, together, the “Parties.”
RECITALS
WHEREAS, Evolve Transition Infrastructure LP, a Delaware limited partnership (“Evolve”), and Contributor have entered into that certain Framework Agreement dated as of November 3, 2021 (as amended, modified or supplemented from time to time, the “Framework Agreement”);
WHEREAS, pursuant to the Framework Agreement, following the satisfaction of the Offtake Condition (as defined therein) and the payment of the Initial Development Payment (as defined therein), the Initial Project (as defined in the Framework Agreement) is intended by Evolve and Contributor to be contributed to a holding company;
WHEREAS, the Acquired Company (as defined below) owns all of the assets and interests relating to the Project (as defined below), which is a “Project” contemplated by the Framework Agreement to be contributed to Project HoldCo, and Evolve and Contributor have agreed that all of the Acquired Company Interests (as defined below) should be contributed by Contributor to Project HoldCo pursuant to this Agreement, in exchange for the issuance by Project HoldCo of the New Units (as defined below) on the terms and subject to the conditions set forth herein; and
WHEREAS, Project HoldCo is a wholly-owned subsidiary of Evolve, and Project HoldCo, as of the date of this Agreement, is governed by that certain Amended and Restated Limited Liability Company Agreement of Project HoldCo dated as of the date of this Agreement (as amended, modified or supplemented from time to time, the “LLCA”).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
“Acquired Company” means [●].
“Acquired Company Interests” means Contributor’s 100% membership interest in the Acquired Company.
“Affiliate” has the meaning set forth in the Framework Agreement.
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Anti-Corruption Law” means the U.S. Foreign Corrupt Practices Act of 1977, as amended, and all other applicable Law related to bribery or corruption.
“Asserted Liability” has the meaning set forth in Section 7.5(a).
“Assets” of any Person means all properties of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible and wherever situated), including the goodwill related thereto, operated, owned or leased by such Person, including Equity Interests and Real Property, easements, servitudes and similar non-possessory interests.
“Assignment Agreement” has the meaning set forth in Section 2.4(a).
“Business” means the early stage development of a renewable diesel and sustainable aviation fuel production facility.
“Business Day” means any day other than a Saturday, Sunday or legal holiday on which banks in New York City, New York are authorized or obligated by Law to close.
“Charter Documents” means, with respect to any Person that is not a natural person, the articles of incorporation or organization, memorandum of association, articles of association and by-laws, the limited partnership agreement, the partnership agreement or the limited liability company agreement or such other organizational documents of such Person which establish the legal personality of such Person.
“Claim” means any demand, claim, action, investigation or Proceeding.
“Claims Notice” has the meaning set forth in Section 7.5(a).
“Closing” has the meaning set forth in Section 2.3.
“Closing Date” means the date of this Agreement.
“Code” means the Internal Revenue Code of 1986.
“Commercial Operation” has the meaning set forth in the Framework Agreement.
“Commission” means the United States Securities and Exchange Commission.
“Consolidated Group” means any affiliated, combined, consolidated, unitary or similar group with respect to any Tax, including any affiliated group within the meaning of Section 1504 of the Code electing to file consolidated federal income Tax Returns and any similar group under foreign, state or local law.
“Contract” means any legally binding contract, commitment, agreement, lease, license, evidence of indebtedness, mortgage, indenture, purchase order, binding bid, letter of credit, security agreement, or other arrangement, in each case, whether written or oral.
“Contributor” has the meaning set forth in the introductory paragraph of this Agreement.
“Contributor Approvals” has the meaning set forth in Section 4.4(b).
“Contributor Payment Obligation” has the meaning set forth in Section 7.10.
“Contributor Taxes” means any and all Taxes (a) imposed on the Acquired Company or with respect to the Project or for which the Acquired Company may otherwise be liable for any Tax period or the portion of a Straddle Period ending on or before the Closing Date, as determined pursuant to Section 6.2(b); (b) for which the Acquired Company is liable by reason of being or having been a member of any Consolidated Group (other than Taxes attributable to an Acquired Company) prior to the Closing; (c) of any other Person for which the Acquired Company is or has been liable as a transferee or successor or by Contract (other than a Contract entered into in the ordinary course of the Business and the primary subject of which is not Taxes), resulting from events, transactions or relationships occurring or existing prior to the Closing; and (d) Taxes allocable to Contributor pursuant to Section 6.2(c).
“Contributor Warranty Breach” has the meaning set forth in Section 7.2(a).
“Delaware LLC Act” means the Delaware Limited Liability Company Act.
“Dispute” has the meaning set forth in Section 7.8(a).
“Employee Benefit Plan” means the following, whether written or oral: (a) any nonqualified deferred compensation or retirement plan or arrangement that is an Employee Pension Benefit Plan; (b) any qualified defined contribution retirement plan or arrangement that is an Employee Pension Benefit Plan; (c) any qualified defined benefit retirement plan or arrangement that is an Employee Pension Benefit Plan; (d) any Employee Welfare Benefit Plan or material fringe benefit plan or program; (e) any profit sharing, bonus, phantom stock, stock bonus, stock appreciation right, stock option, stock purchase, consulting, retention, employment, change in control, severance or incentive plan, agreement or arrangement; or (f) any material plan, agreement or arrangement providing benefits related to clubs, vacation, childcare, parenting, sabbatical or sick leave.
“Employee Pension Benefit Plan” has the meaning set forth in Section 3(2) of ERISA and includes any such plan, such as foreign plans and plans for directors, that is not subject to ERISA.
“Employee Welfare Benefit Plan” has the meaning set forth in Section 3(1) of ERISA and includes any such plan, such as foreign plans and plans for directors, that is not subject to ERISA.
“Environmental Law” means any and all Laws pertaining to pollution or protection of the environment, natural resources), pipeline safety, or human health and safety or relating to the use, treatment, storage, transportation, handling, disposal or Release of, or exposure to, Hazardous Material, including the Clean Air Act, the Federal Water Pollution Control Act, the Oil Pollution Act of 1990, the Rivers and Harbors Act of 1899, the Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the Hazardous and Solid Waste Amendments Act of 1984, the Emergency Planning and Community Right-to-Know Act, the Toxic Substances Control Act, the National Environmental Policy Act, the Hazardous Materials Transportation Act, the Endangered Species Act, the Occupational Safety and Health Act and comparable tribal, state and local counterparts.
“Environmental Permits” means any Permit required under or issued pursuant to Environmental Law.
“Equity Interests” means capital stock, partnership or membership interests or units (whether general or limited), and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing entity, including any interests convertible into, or exchangeable or exercisable for, any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any entity, trade or business that is under common control with the Acquired Company within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA, or that is a member of the same “controlled group” as the Acquired Company pursuant to Section 4001(a)(14) of ERISA.
“Evolve” has the meaning set forth in the recitals.
“Excluded Entities” has the meaning set forth in Section 6.3.
“Expiration Time” has the meaning set forth in Section 7.1.
“Framework Agreement” has the meaning set forth in the recitals.
“Fundamental Representations” has the meaning set forth in Section 7.1.
“GAAP” means generally accepted accounting principles in the United States, applied on a consistent basis.
“Governmental Authority” means any (a) national, federal, provincial, territorial, state, regional, municipal, local or other government, (b) governmental or public department, court, tribunal, arbitral body, statutory body, commission, board, bureau or agency, (c) self-regulatory organization, regulatory authority, administrative tribunal or authority, (d) subdivision, agent, commission, board or authority of any of the foregoing or (e) quasi-governmental or private body exercising any regulatory, expropriation or Taxing authority under or for the account of any of the foregoing.
“Hazardous Material” (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is defined, designated, identified or classified as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under, or for which liability or standards of care are imposed by, any Environmental Law; and (b) any petroleum, petroleum distillate or petroleum-derived products, natural gas, natural gas liquids, radioactive materials or wastes, per- and polyfluoroalkyl substances, asbestos or asbestos-containing materials and polychlorinated biphenyls.
“Indebtedness” means, with respect to any Person, at any date, without duplication, (a) all obligations of such Person for borrowed money, including all principal, interest, premiums, fees, expenses, overdrafts and, to the extent required to be carried on a balance sheet prepared in accordance with GAAP penalties with respect thereto, whether short-term or long-term, and whether secured or unsecured, or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or debt securities, (c) all obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit or bankers’ acceptances or similar instruments, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (e) all guarantees, whether direct or indirect, by such Person of indebtedness of others or indebtedness of any other Person secured by any assets of such Person, and (f) all other obligations of a Person which would be required to be shown as indebtedness on a balance sheet of such Person prepared in accordance with GAAP.
“Intellectual Property Rights” means material rights in any of the following to the extent subject to protection under applicable Law: (a) trademarks, service marks and trade names; (b) patents; (c) copyrights;
(d) internet domain names; (e) trade secrets and other proprietary and confidential information; and (f) any registrations or applications for registration for any of the foregoing.
“Knowledge” when used in a particular representation or warranty in this Agreement (a) with respect to Contributor, means the actual knowledge, following reasonable inquiry, of Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx and Xxxx Xxxxx, and (b) with respect to Project HoldCo, means the actual knowledge, following reasonable inquiry, of [●] and [●].
“Law” means (a) all applicable laws, regulations, statutes, codes, rules, permits, licenses, certifications, decrees or standards imposed by any Governmental Authority and (b) all applicable orders, injunctions, judgments, decrees, rulings, writs, assessments, awards, subpoenas, verdicts, settlements or findings from any Governmental Authority.
“Lien” means any mortgage, pledge, hypothecation, deed of trust, assessment, security interest, charge, lien (statutory or otherwise), encumbrance, option, warranty, purchase right, preferential arrangement, easement, servitude, claim, restriction, lease or other similar property interest or encumbrance.
“LLCA” has the meaning set forth in the recitals.
“Loss” means any and all judgments, losses, liabilities, amounts paid in settlement, Taxes, damages, fines, penalties, deficiencies, expenses (including interest, court costs, reasonable fees of attorneys, accountants and other experts or other reasonable expenses of litigation or other Proceedings or of any Claim, default or assessment). For all purposes in this Agreement the term “Losses” shall not include any Non-Reimbursable Damages.
“Material Permits” has the meaning set forth in Section 3.6.
“New Units” has the meaning set forth in Section 2.2.
“Non-Reimbursable Damages” has the meaning set forth in Section 7.7(b).
“Party” and “Parties” each has the meaning set forth in the introductory paragraph hereof.
“Permits” means all permits, licenses, registrations, certifications, approvals, consents, exemptions, waivers, franchises or other authorizations issued by or obtained from any Governmental Authority.
“Permitted Lien” means (a) solely to the extent set forth on Schedule 1.1-PL, any Lien for Taxes not yet due or delinquent or being contested in good faith by appropriate proceedings, (b) solely to the extent set forth on Schedule 1.1-PL, any Lien arising in the ordinary course of business by operation of Law with respect to a liability that is not yet due or delinquent or which is being contested in good faith by or on behalf of an Acquired Company, (c) all matters that are disclosed in the deed or instrument conveying such property that have been made available to Project HoldCo and Evolve by Contributor, (d) any other imperfection or irregularity of title or other Lien that could not reasonably be expected to interfere with the conduct of the Business, (e) zoning, planning and other similar limitations and restrictions and all rights of any Governmental Authority to regulate a property, (f) the terms and conditions of the Permits or the Contracts of the Acquired Company, (g) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security Law and (h) the other matters identified on Schedule 1.1-PL.
“Permitted Equity Liens” means Liens that may arise pursuant to (i) this Agreement, but only those Liens in favor of Project HoldCo, (ii) the Charter Documents of the Acquired Company or (iii) applicable securities laws.
“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company, unlimited liability corporation, proprietorship, other business organization, trust, union, association or Governmental Authority.
“Personal Property” has the meaning set forth in Section 3.11.
“Proceeding” means any complaint, lawsuit, action, appeal, review, investigation, suit, arbitration or other proceeding at Law or in equity or order or ruling, in each case by or before any Governmental Authority or arbitral tribunal.
“Project” means [●].
“Project Assets” means [●].
“Project Contracts” has the meaning given to it in Section 3.14(a).
“Project HoldCo” has the meaning given to it in the introductory paragraph of this Agreement.
“Project HoldCo Warranty Breach” has the meaning set forth in Section 7.3(a).
“Public Official” means (a) any officer, employee or representative of any regional, federal, state, provincial, county or municipal government or government department, agency, or other division, (b) any officer, employee or representative of any commercial enterprise that is owned or controlled by a government, (c) any officer, employee or representative of any public international organization, (d) any person acting in an official capacity for any government or government entity, enterprise, or organization identified above and (e) any political party, party official or candidate for political office.
“Qualified Project Model” has the meaning set forth in the Framework Agreement.
“Real Property” means the real property owned in fee or leased, used or held for use by the Acquired Company.
“Records” means all books and records relating to the Project or to the ownership, development and design of any of the Project Assets.
“Release” means any release, spill, emission, leaking, pumping, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into or through the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Materials through or in the air, soil, surface water, or groundwater.
“Representatives” means, as to any Person, its officers, directors, employees, managers, members, partners, shareholders, owners, counsel, accountants, financial advisers and consultants.
“Securities Act” means the Securities Act of 1933, and the rules and regulations of the Commission promulgated thereunder.
“Stonepeak” means Stonepeak Partners LP, a Delaware limited partnership.
“Straddle Period” means any Tax period beginning on or before and ending after the Closing Date.
“Subsidiary” means, as to any Person, any corporation or other entity of which: (a) such Person or a Subsidiary of such Person is a general partner or, in the case of a limited liability company, the managing member or manager thereof; or (b) Equity Interests are at the time directly or indirectly owned or controlled by such Person or one or more of its Subsidiaries.
“Taxes” means (a) all taxes, charges, fees, imposts, levies or other assessments or fees of any kind, including income, corporate, capital, excise, property, sales, use, turnover, unemployment, social security, disability, withholding, real property, personal property, environmental (including any tax imposed by Section 59A of the Code), transfer, registration, value added and franchise taxes, deductions, withholdings and customs duties, imposed by any Governmental Authority, and including any interest or penalty imposed with respect thereto; and (b) any liability for the payment of any amounts of the type described in clause (a) as a result of the operation of Law or any express or implied obligation to indemnify any other Person, including as a successor or by Contract.
“Tax Claim” means any action, suit, arbitration, investigation, inquiry, hearing, request for information or filing, audit, examination, claim, demand, dispute, assessment, proposed adjustment or proceeding (whether administrative, regulatory or otherwise, or whether oral or in writing) with respect to Taxes or any Tax Returns.
“Tax Return” means any return, report, rendition, claim for refund, statement, information return or other document (including any related or supporting information or Schedule attached thereto, or amendment thereof) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Tax or the administration of any Law relating to any Tax.
“Taxing Authority” means, with respect to any Tax, the Governmental Authority or political subdivision thereof that imposes such Tax, and the agency (if any) charged with collection of such Tax for such entity or subdivision.
“Warranty Breach” means any Project HoldCo Warranty Breach or Contributor Warranty Breach.
herein, or unless the context requires otherwise, any time period within which a payment is to be made or any other action is to be taken under this Agreement shall be calculated excluding the day on which the period commences and including the day on which the period ends. Unless otherwise specified herein, all references to any currency or $ are to United States dollars.
Contributor hereby represents and warrants to Project HoldCo, as of the date hereof, as follows:
Statements have been prepared in good faith based upon the Records and reflect the financial position of the Project and the Acquired Company.
assumptions set forth in the Qualified Project Model. To the Knowledge of Contributor, Schedule 3.6(c) sets forth all material Permits relating to the Project that have not yet been obtained by the Acquired Company.
matured or unmatured, determined or determinable or otherwise), other than pursuant to the Project Contracts or as set forth on Schedule 3.21-I. The Acquired Company has no outstanding accounts payable or trade payables, in each case, other than as set forth on Schedule 3.21-P. A true and complete list of all Indebtedness of the Acquired Company is set forth Schedule 3.21-I. Schedule 3.21-CS sets forth a true and complete list of all bonds, letters of credit, guarantees or other credit support posted or entered into in connection with the Project or the Project Assets or the ownership, development, design, construction, ownership, installation, operation or maintenance thereof.
Contributor hereby represents and warrants to Project HoldCo as to itself, as of the date hereof, as follows:
Project HoldCo hereby represents and warrants to Contributor, as of the date hereof, as follows:
provided, however, that Taxes shall be treated as due for the period during which the base of such Taxes are determined without regard to whether the payment of such Taxes provides the right to business or other benefits for another period.
provided that for purposes of determining Losses under subsection (a) above and determining whether or not any Contributor Warranty Breach has occurred, any qualification or exception contained therein relating to materiality shall be disregarded; provided further that in no event shall the aggregate amount of all Losses for which Contributor is obligated to indemnify Project HoldCo and its Affiliates pursuant to this Section 7.3 exceed the Fair Market Value (as defined in the LLCA) of the New Units issued to Contributor in consideration for the contribution of the Acquired Company Interests in accordance with this Agreement.
provided that for purposes of determining Losses under subsection (a) above and determining whether or not any Project HoldCo Warranty Breach has occurred, any qualification or exception contained therein relating to materiality shall be disregarded.
If to Contributor, to:
HOBO Renewable Diesel LLC
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Email: xxxxxx@xxxxxx.xxx
With a copy to (which shall not constitute notice):
King & Spalding LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Email: xxxxxxx@xxxxx.xxx
If to Project HoldCo, to:
[insert legal name of Project HoldCo]
0000 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: [●]
Email: [●]
With a copy to:
Evolve Transition Infrastructure LP
c/o Stonepeak Infrastructure Partners
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Email: Xxxxxx@xxxxxxxxxxxxxxxxx.xxx
With an additional copy to:
Stonepeak Partners LP
55 Xxxxxx Yards
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxx
Email: xxxxxxx@xxxxxxxxxxxxxxxxx.xxx; xxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
With an additional copy to (which shall not constitute notice):
Sidley Austin LLP
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
hereby waives and releases all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of any Person party hereto or otherwise impose liability of any Person party hereto on any other Person, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Person party hereto disclaims any reliance upon any other Person not party hereto with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement.
[Signatures appear on the following pages.]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officer of each Party as of the date first above written.
CONTRIBUTOR:
HOBO RENEWABLE DIESEL, LLC
Name:[●]
Title:[●]
Signature Page to Contribution Agreement
PROJECT HOLDCO:
[PROJECT HOLDCO]
Name:[●]
Title:[●]
Signature Page to Contribution Agreement
Exhibit A
Form of Assignment Agreement
ASSIGNMENT AGREEMENT
This Assignment Agreement (this “Assignment”), dated as of [_______ __, 202_], is made and entered into by and between HOBO Renewable Diesel, LLC, a Delaware limited liability company (“Assignor”), and [insert reference to Project HoldCo], a Delaware limited liability company (“Assignee”). Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution Agreement (defined below).
WHEREAS, Assignor owns all of the Acquired Company Interests;
WHEREAS, pursuant to the terms of that certain Contribution Agreement dated [_______ __, 202_] (the “Contribution Agreement”) between Assignor and Assignee, Assignor has agreed to contribute, assign, transfer and convey to Assignee the Acquired Company Interests free and clear of all Liens other than Permitted Equity Liens;
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereby agree as follows:
Exhibit A-1
IN WITNESS WHEREOF, this Assignment is executed and delivered as of the date first above written.
ASSIGNOR:
HOBO RENEWABLE DIESEL, LLC
By:
Name:
Title:
Acknowledged and Agreed as of [_______ __, 202_]:
ASSIGNEE:
[INSERT REFERENCE TO PROJECT HOLDCO]
By:
Name:
Title:
Exhibit A-2
PM Agreement Term Sheet
Parties: | HOBO, or one of its Affiliates, as the “PM Manager” and a Project Company, for such Project. |
Term: | As to each Project, until 60 days after the date of Commercial Operation for such Project, and in general for the period that any Projects are being developed under the Framework Agreement and the applicable Project HoldCo’s limited liability company agreement. |
Termination | Typical termination rights for a material breach of covenant or representation and warranty (in each case, subject to standard grace and cure periods) and a termination right for the Project Company (a) due to the actual fraud, willful misconduct or acts of dishonesty by the PM Manager after giving effect to any notice and cure provisions or (b) if at least two of Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx or Xxxx Xxxxx cease to provide services to HOBO in support of HOBO’s obligations as PM Manager for any reason, including death or disability of such members of management. |
Services: | HOBO shall provide all project management services that would customarily be provided by the development team of the knowledgeable and prudent owner of a Project as to the development and construction thereof from Financial Close through 60 days after Commercial Operation, including: The agreement would contain a more fulsome list, but would include the following with respect to a Project: - Obtaining all Project Permits to be obtained in the name of the applicable Project Company not obtained by Financial Close, and monitoring compliance with all Permits, including those obtained in the name of any Construction Counterparty for such Project. - Acting as the applicable Project Company’s representative in performing all contract supervision of the performance of the Construction Counterparties and vendors, including all contract communications and attending all field and factory testing, and all performance testing of the applicable Project. - Coordinating the performance of all activities of the applicable Project Company under its contractual arrangements, including (i) timely verifying the appropriateness, milestones and amounts of all invoices from contract counterparties, (ii) disputing amounts thereunder as appropriate and as directed by such Project Company, (iii) processing for payment the undisputed invoice amounts for payment by such Project Company. - Processing change order requests. |
Exhibit C-1
- Preserving all claim opportunities for the applicable Project Company. - Subject to the overall authority of the applicable Project Company, preparing all cash calls of equity and draw requests under the Project Financing, to support the payment on or before due of all Project costs. - Monitoring and performing the reporting and other actions (other than payment) necessary to keep the applicable Project Company and any Affiliate in compliance with Law and the Project Company contracts, including the Project Financing. - Performing such other project management and supervision tasks reasonably requested by the applicable Project Company. | |
Development Costs | For all Projects after the Initial Project, the applicable Project Company will provide all development costs, and HOBO shall not be obligated to advance any such amounts. At any time prior to Financial Close of a Subsequent Project, Evolve can elect to terminate its commitment to provide additional development costs by delivering written notice to such effect to HOBO, in which case no additional notices shall be required to be delivered by HOBO with respect to such Subsequent Project and the sole and exclusive remedy of HOBO in such event shall be (i) the termination of exclusivity under Section 4.2 of the Framework Agreement and (ii) the right to the Transfer of the membership interest in the applicable Project Company if HOBO (or any of its Affiliates) thereafter obtains direct or indirect debt or equity financing from a Third Party for such Subsequent Project upon payment in full of the reimbursement of all such development costs plus interest on such amounts, accruing in each case at a per annum rate equal to eight percent (compounding quarterly) since the date paid, which reimbursement shall be made by HOBO no later than 30 days after the first funding provided by a Third Party. |
Services Fee: | A fixed fee for each Project determined by the applicable Project Company and HOBO to represent a reasonable allocation of the salary and benefits of the HOBO team providing the “Services” for such Project based on time spent on such Project, the costs of required insurance, and a reasonable allocation of the corporate overhead costs for HOBO, in each case, allocated over the various Projects on a basis agreed by HOBO and the applicable Project Companies, but without providing any profits for HOBO. |
Standard of Care: | The standard of HOBO providing the Services shall be as a reasonably prudent developer for similar projects in the United States, and such Services shall be provided in accordance with Law and in compliance with the terms of the material contracts of the applicable Project Company. The individuals of HOBO performing the Services shall not, unless approved by the applicable |
Exhibit C-2
Exhibit C-3
O&M Agreement Term Sheet
Parties: | The Project Company for the Project and HOBO or one of its Affiliates, as the “O&M Provider”. |
Term: | 15 Years |
Termination | Typical termination rights for a material breach of covenant or representation and warranty (in each case, subject to standard grace and cure periods) and a termination right for the Project Company (a) due to the actual fraud, willful misconduct or acts of dishonesty by the O&M Provider after giving effect to any notice and cure provisions or (b) if at least two of Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx or Xxxx Xxxxx cease to provide services to HOBO in support of HOBO’s obligations as O&M Provider for any reason, including death or disability of such members of management. |
Services: | HOBO shall provide all operation and maintenance services required for the Project as would customarily be provided by a third-party operation and maintenance provider, including: The agreement would contain a more fulsome list, but would include the following: - Providing the on-site operations and maintenance personnel to operate and maintain the Project, including all on-site spare parts for the Project. - Monitoring and maintaining compliance with all Permits. - Acting as the Project Company’s representative in performing all contract supervision of the performance of all service providers and vendors to the Project, including all contract communications. - Coordinating the performance of all activities of the Project Company under its contractual arrangements, including (i) timely verifying all invoices from contract counterparties, (ii) disputing amounts thereunder as appropriate and as directed by the applicable Project Company, (iii) processing for payment the undisputed invoice amounts for payment by the Project Company. - Preserving all claim opportunities for the Project Company. - Preparing maintenance and capital expenditure budgets for the approval by the Project Company. - Providing all Project level cost accounting for the Project and preparing any necessary cash calls of equity and draw requests under |
Exhibit D-1
the Project Financing, to support the payment on or before due of all Project costs. - Monitoring and performing the reporting and other actions (other than payment) necessary to keep the Project and the Project in compliance with Law and the Project Company contracts, including the Project Financing. - Performing such other operating and maintenance tasks as are reasonably requested by the Project Company. | |
Fee: | The fee for each Project shall be a fixed fee determined by the applicable Project Company and HOBO to represent a reasonable allocation of the salary and benefits of the HOBO team providing the “Services” for such Project based on time spent on such Project, the costs of required insurance, and a reasonable allocation of the corporate overhead costs for HOBO, but without providing any profits for HOBO; provided that Evolve shall have a right to review the books and records of HOBO related to such allocations. The fee shall not commence to be earned or paid until the fee to the PM Manager ceases to be paid. |
Standard of Care: | The standard of HOBO providing the Services shall be as a reasonably prudent operations and maintenance service provider for similar projects in the United States, and such Services shall be provided in accordance with Law and in compliance with the terms of the material contracts of the Project Company. The individuals of HOBO performing the Services shall not, unless approved by the applicable Project Company, manage or undertake the development, project management or operations and maintenance services for any other Project. |
Accounts: | At or near the beginning of each month, the Project Company would advance to an account of the Project Company (the “Project Account”) as to which the O&M Provider shall have access, the amounts required for Project Costs for such ensuing month. “Project Costs” shall be the third-party costs of operating and maintaining the Project and shall not include any HOBO internal costs. The O&M Provider shall not have access to any other bank account of the Project Company and the revenues of the Project Company shall not be deposited into the Project Account or paid through the O&M Provider. |
Limit on Authority: | The agreement would contain a more fulsome list, but the O&M Provider would not have the right to: |
Exhibit D-2
approved by the Project Company, (ii) $250,000 individually or (iii) during any fiscal year, $1,000,000 in the aggregate. - Waive any claims of the Project Company, settle any claims of or against the Project Company or admitting any default or failure of the Project Company. | |
Liability: | So long as O&M Provider fulfills the standard of care, the Project Company would indemnify the PM Manager for claims by a Third Party arising from the Services unless caused by the gross negligence or willful misconduct of the O&M Provider. |
The O&M Provider would be required to maintain a customary level of liability insurance and workers compensation coverage. | |
Governing Law: | Delaware |
Exhibit D-3
