United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2011
or
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number: 000-50216
ADA-ES, Inc.
(Name of registrant as specified in its charter)
Colorado | 84-1457385 | |
(State of incorporation) |
(IRS Employer Identification No.) |
9135 South Ridgeline Boulevard, Suite 200, Highlands Ranch, Colorado 80129
(Address of principal executive offices) (Zip Code)
(Registrants telephone number, including area code): (303) 734-1727
Securities registered under Section 12(b) of the Act:
Title of each class |
Name of each exchange on which registered |
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Common Stock, no par value | NASDAQ Capital Market |
Securities registered under Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ¨ Yes x No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. ¨ Yes x No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes ¨ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). x Yes ¨ No
Indicate by check mark if disclosure of delinquent filers in response to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated filer | x | |||
Non-accelerated filer | ¨ | Smaller Reporting Company | x |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act.) ¨ Yes x No
The aggregate market value of the voting common stock held by non-affiliates as of June 30, 2011 was $106,666,000.
Indicate the number of shares outstanding of each of the registrants classes of common stock, as of the latest practicable date.
Class |
Outstanding at March 9, 2012 |
|
Common Stock, no par value | 10,001,809 |
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the Definitive Proxy Statement to be filed pursuant to Regulation 14A for ADA-ES, Inc.s annual shareholder meeting for 2012 are incorporated by reference into Part III of this Form 10-K.
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PART I
Item 1. Business
Abbreviations We Use in this Report
ADA, the Company, we, us, or our refer to ADA-ES, Inc., a Colorado corporation, and its consolidated subsidiaries.
Business Purpose and Strategy
Incorporated in Colorado in 1997, ADA develops, offers, and implements proprietary environmental technologies and provides equipment and specialty chemicals that enable coal-fueled power plants to meet emissions regulations by enhancing existing air pollution control equipment, maximizing capacity and improving operating efficiencies. ADA became a stand-alone public company through a spin-off from its parent company, Earth Sciences, Inc. in September 2003. We have three wholly-owned subsidiaries, which include Advanced Emissions Solutions, Inc., a Delaware corporation (ADES), ADA Intellectual Property, LLC, a Colorado limited liability company (ADA IP), and ADA Environmental Solutions, LLC, a Colorado limited liability company (ADA-ES). ADA holds a 42.5% controlling interest in Clean Coal Solutions, LLC, a Colorado limited liability company (Clean Coal).
Our approach to technology development, implementation and commercialization involves taking technology to full-scale as quickly as we can, and testing and improving the technology under actual power plant operating conditions. The most significant benefit of this method is that we begin working early and closely with power companies to optimize the technology to meet their specific needs. For example, while some other companies develop mercury control in the isolation of a laboratory without feedback from users, we work on slip stream and full scale systems that are installed on plants, including several operated by the largest power companies in the United States and Canada. We assist electric power generating companies to remain competitive while meeting environmental regulations. Additionally, many of our proprietary patented technologies and services provide a continual revenue stream for the Company.
Our major activities include:
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Development and marketing of our refined coal (RC) technologies, including leasing of RC facilities for control of nitrous oxides (NOx) and mercury, which also qualifies for certain tax credits, through our Clean Coal joint venture with NexGen Refined Coal, LLC, an affiliate of NexGen Resources Corporation (NexGen), and GSFS Investments I Corp. (GSFS), an affiliate of The Goldman Sachs Group, Inc. (GS), |
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Development and sale of systems, field testing, chemicals and services primarily related to control of emissions of mercury, acid gases, sulfur dioxide (SO 2 ) and particulate matter for coal and solid fuel fired boilers used in electric generation, |
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Research and development of carbon dioxide (CO 2 ) capture technology through contracts supported by the Department of Energy (DOE) and industry participants, and |
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Development of a technology that allows coal to be burned with lower mercury emissions. This technology has been licensed to Arch Coal, Inc. (Arch Coal) to enhance coal (Enhanced Coal) mined by Arch Coal at mines and sites located in the Powder River Basin (PRB). |
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Financial Information for Industry Segments
We have three reportable segments:
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Refined coal or RC, |
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Emission control, or EC , and |
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CO 2 capture or CC. |
Financial information concerning these reportable segments can be found in the Financial Statements filed as a part of this Report, in Footnotes 1 Summary of Nature of Operations and Significant Accounting Policies and 14 Business Segment Information and that information is incorporated by reference here.
Our Business in Detail
Market for Our Products and Services
The primary drivers for many of our products and services are environmental laws and regulations impacting the electric power generation industry. Environmental regulations, such as the 1990 Clean Air Act Amendments, the recent Mercury and Air Toxics Standards (MATS) regulations, various state regulations and permitting requirements for new coal-fired power plants are requiring electric power generators to reduce emissions of pollutants, such as particulate matter, SO 2 , NO x , mercury, and acid gases. We are a key supplier of mercury control equipment and services to the EC market whose commercial equipment component first began in 2005 when individual states began to require limits on mercury emissions. We also offer dry sorbent injection systems (DSI) to control SO 2 and acid gases. Through Clean Coal, we have constructed and leased two RC facilities and have constructed 26 additional RC facilities in 2011, for which we are working on obtaining permits for full-time operation, securing and negotiating necessary approvals from the various state Public Utility Commissions and negotiating necessary contracts with power plants and financing partners for permanent placement and operation.
Our business is based upon providing technology for the approximately 1,200 coal-burning plants that produce roughly 45% of electricity in the U.S. in addition to steam for industrial processes and heating. A 2007 National Coal Council report estimated that United States coal reserves will be capable of serving demand for the next 250 years. Currently, the nations existing coal-fired power plants emit approximately 48 tons of mercury per year, or approximately 50% of all human-caused mercury emissions in the U.S. Mercury, which is one of the most toxic substances known to humans, eventually finds its way into the water supply and into fish which, when ingested by humans, can cause severe neurological damage and even death, particularly in young children and developing fetuses. With enactment of the MATS rule described in more detail below, regulations now exist that will require all of the existing fleet and all new coal-fired plants to control mercury emissions.
Whether operating in a regulated or unregulated environment, power generating companies face competitive challenges requiring constant control of capital spending and operating costs. These cost control drivers increase the need for cost-effective retrofit technologies that can be used to enhance existing plant equipment to meet the more stringent emission limits while burning less expensive coals.
We participate in the emissions control market for coal-fired boilers with:
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Low CAPEX (capital expenditure) mercury control technologies that effectively reduce mercury emissions over a broad range of plant configurations and coal types, |
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Our proprietary flue gas chemical conditioner that improves the capture of particulate matter emissions by new or existing equipment and offers both technical and economic advantages over the hazardous chemicals that have been and continue to be in use, |
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Products, such as our CyClean TM and M-45 TM technologies, our proprietary pre-combustion coal treatment processes that provide electric power generators mercury emission control and flexibility in choosing the grade of fuel they can burn, |
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Licenses of proprietary technology, such as with Arch Coal, which we expect to enhance certain coals mined by Arch Coal to allow them to burn with reduced emissions, |
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Dry sorbent injection systems to reduce emissions of SO 2 and acid gases such as sulfur trioxide (SO 3 ) and hydrogen chloride (HCl), and |
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Research and development of technologies such as those aimed at the capture of CO 2 emissions. |
We have established ourselves as a leader in the mercury control market for electric power generators. Our systems and technologies have been demonstrated to be effective in mercury emissions control, even in difficult applications, and have also been shown to be cost effective and in many cases, actually reduce the costs associated with such control.
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The coal-fired power industry has been under increased scrutiny over environmental issues during the last several years, especially related to NO X , SO X , particulate matter, and mercury emissions, as well as the impact of CO 2 emissions on climate change. In response to concerns expressed by environmental groups and others, various state officials rejected a number of permits for new coal-fired plants in the past few years. These actions slowed the progress of new coal-fired plants. With new portfolio standards for increased use of renewable energy sources and potential requirements for reduction of greenhouse gases limiting the permitting of new coal-based plants, we believe the dependence on the existing fleet for base load power increases. To continue operating as environmental regulations become more stringent, these older plants will likely require the use of retrofit technologies to address conventional pollutants (such as SO 2 , NO X , and particulate matter and now for pollutants such as mercury, acid gases, and emissions such as CO 2 ) or face closure. Therefore, the current trend toward cleaner energy has created a growing market for ADAs existing and developing innovative technologies.
History of Relevant Environmental Legislation and Regulations
Mercury has been identified as a toxic substance and, pursuant to a court order, the U.S. Environmental Protection Agency (EPA) issued regulations for its control from power plants in March 2005, which was known as the Clean Air Mercury Rule or CAMR. CAMR was subject to significant challenges and was ultimately declared invalid. In April 2010, the U.S. District Court of Appeals of the District of Columbia approved the consent agreement reached between the EPA and a coalition of public health and environmental groups that sued in 2008 to force the agency to set tighter emission limits. That settlement required the EPA to issue a draft rule in March 2011 and a final rule requiring strict plant-specific controls for power plants toxic air pollutants no later than November 16, 2011. On March 16, 2011, the EPA issued the draft of the proposed MATS rule, a Maximum Achievable Control Technology (MACT)-based hazardous pollutant regulation applicable to coal and oil fired electric utility steam generating units, which provides for among other provisions, control of mercury and volatile metals such as arsenic, selenium and acid gases such as HCl and other Hazardous Air Pollutants (HAPs). On October 28, 2011, the EPA, with approval of the environmental groups who were parties to the Court of Appeals consent, extended the deadline and the final rule was issued on December 16, 2011, and is expected to take effect on April 16, 2012, which is 60 days after February 16, 2012, when the final rule was officially published in the Federal Register.
The final rule establishes standards for all HAPs emitted by coal and oil fired electric utility steam generating units (EGU) with a capacity of 25 megawatts or greater. The standards are based upon the average of the best performing 12% of existing applicable power plants. The MATS provides the option to use facility-wide averaging of 90 days to meet the limits for mercury. The MATS limits mercury emissions to 1.2 pounds per Trillion BTU (1.0 pound per Trillion BTU if 90 day averaging is used) and requires capture of up to 80-90% of the mercury in the coal burned in electric power generation boilers as measured at the exhaust stack outlet for most coals. The EPA estimates that there are approximately 1,200 coal-fired units and 300 oil-fired units affected by this action at about 600 power plants. Existing sources must comply to the standards within three years from the April 16, 2012 date to comply with the MATS. An authorized permitting authority has the ability to grant sources up to a one year extension, on a case by case basis, if such additional time is necessary for the installation of controls.
In addition to the electric power generators, the EPA has developed a MACT-based mercury emissions regulation for the Portland Cement Industry through amendments to the National Emission Standards for HAPs for the Portland Cement Manufacturing Industry (the Cement MACT). The Cement MACT regulation was finalized on August 6, 2010. On May 11, 2011, the EPA denied requests to issue an administrative stay on the Cement MACT and denied in part and granted in part various petitions to reconsider the final revised Cement MACT. We believe the EPA is not delaying the implementation of the Cement MACT and is only reconsidering various technical standards and issues contained in the final regulation, which we do not believe will have a material impact on the regulation and its eventual implementation. The standards for new kilns apply to facilities where construction, modification, or reconstruction commenced after May 6, 2009.
The Cement MACT requires cement plants to reduce HAPs by 2013 including 92% of mercury and 83% of hydrocarbons. This regulation could require activated carbon injection (ACI) systems on up to 90 cement kilns in the U.S., which are owned by approximately 15 companies. We have been engaged in several testing programs for cement companies to define their emissions and evaluate how ACI equipment and sorbents will work in that industry. The tests were designed to evaluate the effectiveness of collecting mercury and organics from cement kiln exhaust gas streams. While we have seen limited actual inquiries to date for ACI systems from cement companies, we believe the Cement MACT has the potential to increase the market for ACI systems once additional clarity is in place on the technical requirements of those rules.
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The EPA also issued a new MACT regulation for coal-fired boilers that provide mostly steam and/or electricity for small industrial and institutional power needs with no more than 25 MW of electricity sold to the grid (the Industrial Boiler MACT). The final regulation was released on February 23, 2011 and issued on March 21, 2011, with compliance deadlines originally scheduled for early 2014. On December 2, 2011, the EPA issued proposed reconsiderations of certain aspects of the Industrial Boiler MACT, including clarification of applicability and implementation issues. We believe the EPA intends to finalize these reconsiderations in May 2012.
The Industrial Boiler MACT could impact over 600 existing coal-fired industrial boilers. The final emission limit of 3.1 pounds of mercury per Trillion BTU for existing and .86 pounds per Trillion BTU for new coal-fired industrial boilers will on average require greater than 50% capture of mercury from coal-fired boilers burning various coals. We believe the final Industrial Boiler MACT could significantly increase the market for ACI systems when considering the requirement to control mercury emissions under this final rule that can be controlled by use of activated carbon injection.
The Clean Air Act requires that all emission control related regulations be met within three years from the final date the new rule is posted in the Federal Register, with the potential extension of one year granted by individual states on a case by case basis. We believe that substantial long-term growth of the EC market for the electric power generation industry will most likely depend on how industry chooses to respond to the pending and new federal regulations. In general, all three of these regulations are less stringent than originally expected, meaning more flexibility for subject units in choosing low capital expense control technologies and likely fewer forced retirements from having to install large capital emission control equipment, such as scrubbers and baghouses. We believe the final MATS will create a large market for our emission control and refined coal products beyond 2011. We expect that as many as 1,200 existing coal-fired boilers will be affected by such regulations, if and when they are fully implemented.
CSAPR, formerly known as the Transport Rule, was finalized by the EPA on July 6, 2011. CSAPR is intended to replace the EPAs 2005 Clean Air Interstate Rule and requires 27 states in the Midwest and eastern half of the United States and the District of Columbia to significantly improve air quality by reducing power plant SO 2 and nitrogen oxide emissions that contribute to ozone and fine particle pollution in other states. On December 30, 2011, the D.C. Circuit Court of Appeals issued a stay against implementation of the CSAPR in one of more than three dozen lawsuits challenging the CSAPR in order to hold a hearing on the issue of irreparable harm. Oral arguments in the case have been scheduled for April 13, 2012, and briefs were due on March 12, 2012. Although the court did not spell out its reasoning or address the underlying merits of the case, the plaintiffs had argued that the EPAs six-month compliance timeline imposes a substantial and imminent injury. Absent the stay, the rule would have become effective on January 1, 2012 for SO 2 and annual nitrogen oxide reductions and May 1, 2012 for ozone season nitrogen oxide reductions.
Many power companies recognize the urgency of these issued and pending regulations, and as a result are contracting with us to evaluate mercury and acid gas control options at a number of their plants. Utilities need to know as soon as possible whether their existing EC components are sufficient to meet the new emissions standards with the installation of low CAPEX systems such as ACI and DSI systems. If utilities need to upgrade their equipment with new large capital equipment such as fabric filters or SO 2 scrubbers, they need to quickly begin procurement of these systems due to long required lead times. As a result we expect additional near-term ACI and DSI demonstration revenue and further bidding on related ACI and DSI equipment.
Refined Coal
In 2006, we established Clean Coal with an affiliate of NexGen to commercialize our patented RC technology that reduces emissions of NO X and mercury from certain coals in cyclone boilers. We licensed the technology, including the claims contained in certain patents, to Clean Coal upon formation of this joint venture. Clean Coal supplies chemicals, additives, equipment and technical services to cyclone-fired boiler users, but its primary purpose is to qualify RC for tax credits that are available under Section 45 of the Internal Revenue Code (Section 45 tax credits), which amounts to an annually escalating $6.33 per ton (in 2011) of RC for a period of ten years.
Clean Coal placed two RC facilities in service prior to the initial placed in service deadline of January 1, 2010 and demonstrated the required emission reductions for their RC product to qualify for the Section 45 tax credits. Clean Coal signed agreements with a subsidiary of a large financial institution in June 2010 to lease these two RC facilities with initial two and one half year terms and annual renewals that were set to expire in 2019. In November and December 2011, Clean Coal and its related subsidiaries entered into transactions to exchange the leased RC facilities with newly constructed, redesigned RC facilities. We expect these new facilities will be eligible for the Section 45 tax credits for ten years from the new installation dates, rather than the initial installation dates. The two facilities are installed at two different power plants in the Midwest each of which operates two cyclone boilers burning PRB coal from Wyoming.
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In December 2010, the Tax Relief and Job Creation Act of 2010 extended the placed in service deadline for the Section 45 tax credits to January 1, 2012. In consideration of the extension, Clean Coal built and qualified an additional 26 RC facilities using a combination of the CyClean and M-45 technologies, which met the extended placed in service date. ADA expects several of these RC facilities to begin routine operations in 2012. Once the final utility site and financing partner have been determined, it takes an average of approximately six months to obtain environmental permits for full-time operation, secure necessary approvals from state Public Utility Commissions, negotiate and complete all necessary contracts and obtain private letter rulings (PLRs) from the IRS in some instances where plants blend different types of coal. Since the IRS did not provide explicit guidance on blending of coal to qualify for Section 45 tax credits, some of these facilities will likely require PLRs, which may take two to three months to obtain after formal contracts are completed. We have received $14.9 million from our first monetizer as initial deposits on 15 million tons of RC, which reserves its right to negotiate for specific RC facilities. We are currently in discussions with a number of other major financial institutions and corporate investors to reserve the right to negotiate on a number of the remaining facilities.
We expect that the transactions for the new leases of the new RC facilities over the next year will be structured similarly to the lease transactions previously entered into for the two initial RC facilities placed in service in June of 2010. As was the case in those transactions, generally the lease of the RC facilities and the monetization of the Section 45 tax credits involve a relationship between the utility, a financial institution and Clean Coal . By leasing the RC facility and producing RC, the financial institution receives the benefit of the annually escalating per ton Section 45 tax credit ($6.33 per ton in 2011) and is able to deduct depreciation. In return it pays, and may also deduct, a fee to the utility for land use to site the RC facility and operational costs. In addition, the financial institution pays a combination of fixed and contingent rents to Clean Coal for the lease of the RC facility. In addition to the site payment, the utility receives the benefit of the resulting mercury reductions which have an estimated value of between $1.00- $4.00 per ton. In some transactions, Clean Coal may choose to operate the facility in order to directly receive the benefit of the Section 45 tax credit.
In May 2011, ADA and NexGen entered into a transaction in which Clean Coal sold an effective 15% interest of its equity to an affiliate of GS for $60 million in cash pursuant to a Class B Unit Purchase Agreement (the Purchase Agreement). GSs interest in Clean Coal has certain preferences over ADA and NexGen as to liquidation and profit distribution. GS has no further capital call requirements and does not have a voting interest, but has veto power of certain corporate transactions. In conjunction with the closing of the Purchase Agreement, ADA, NexGen and GS entered into a Second Amended and Restated Operating Agreement (the Operating Agreement) and an Exclusive Right to Lease Agreement pursuant to which Clean Coal granted GS the exclusive right (but not the obligation) to lease facilities that will produce up to approximately 12 million tons of refined coal per year on pre-established lease terms similar to those currently in effect for Clean Coals two existing facilities. ADA and NexGen each received $30 million as a result of the sale.
In September 2011, we successfully demonstrated a new patent-pending technology for producing RC for use at coal-fired power plants. ADAs new technology, called M-45, complements and expands ADAs market for RC beyond its patented CyClean technology licensed to Clean Coal, which is limited to cyclone boilers. During full-scale tests the M-45 technology achieved greater than 20% reduction in emissions of NOx and greater than 40% reduction in mercury emissions, thus demonstrating that this new technology also meets the standards necessary to qualify for the Section 45 tax credits.
In November 2011, we signed a non-binding term sheet for an exclusive license of the new M-45 RC technology to Clean Coal in order to leverage Clean Coals operating expertise, to place as many facilities in service before the year-end placed in service deadline and to take advantage of the other synergies that can be obtained by Clean Coal having the ability to provide and use either the CyClean or M-45 technology. With this license, Clean Coal could provide customers with both the patent-pending M-45 technology and ADAs patented CyClean technology to produce RC that qualifies for Section 45 tax credits. This allows Clean Coal to potentially use some facilities placed in service using CyClean technology to treat larger annual volumes of coal if applied at a different plant using the M-45 technology.
We expect the license, which is subject to due diligence and negotiation and closing of definitive agreements, will provide ADA with a royalty based on a percent of operating income from future production of RC produced with the M-45 technology and prepaid royalties that included an initial refundable payment of $2 million paid to ADA upon signing of the term sheet with additional refundable payments of up to $8 million upon meeting certain milestones. The prepaid royalty payments are refundable via a withholding from 50% of future distributions or payments to ADA from Clean Coal if certain conditions are not satisfied.
To date, Clean Coal has installed and operated a total of 26 additional RC systems using a combination of the CyClean and M-45 technologies. We expect that each of these RC facilities satisfies the placed in service requirements from initial operations. If all planned RC systems become fully operational, after obtaining environmental permits for full-time operation and completing all necessary contracts, they could produce a total of more than 60 million tons of RC per year.
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Of the 26 new RC facilities, 15 are currently located at the plants that we anticipate will be their final homes where they will maintain full time operations. For 3 additional units, we believe we know where they will eventually be located. For the remaining 8 RC facilities, we are in discussions with 10 to 20 possible permanent location sites. Of the 15 new RC facilities located at their likely final homes:
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Two facilities began operating last October and November as replacement facilities at our existing RC sites and the older facilities that they replaced will likely be moved to new (lower priority) locations. |
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One facility has been in operation by Clean Coal since the end of last year at a plant where we intend to utilize the Section 45 tax credits ourselves. |
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We have completed contracts on two facilities, one of which is expected to begin operation in the next couple weeks and the second is waiting for the environmental permit, Public Utility Commission approval and a PLR. |
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Two other facilities have had the environmental permits approved before the contracts were completed. Clean Coal intends to begin operating these two facilities as soon as spring outages are over and to keep the Section 45 tax credits created by their operations for ourselves until the contracts with monetizers are completed. |
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We are also finalizing contracts for another facility where we expect to utilize the Section 45 tax credits and that facility should, start up operations in the next few months. |
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For the remaining 7 facilities, we are in various stages of contract negotiations and permitting. |
Based upon the progress with these first 15 facilities, we expect several to be in full time operation by the end of the second quarter of 2012. We expect to permanently place the remaining facilities in 2013. For these facilities, there are a number of possible locations all with different sizes and characteristics. As a result, it is difficult to provide explicit guidance at this point for their permanent placement. For example, we are holding five facilities in reserve for placement at five very large potential RC production sites. Each of these sites has its own unique set of circumstances and issues that will likely require some change in operation at the utility or in the agreements such as technology improvements, switch in coal rank, or PLR, in order for those facilities to begin full time operation.
Our RC business opportunities do not depend upon any new environmental or tax regulations. The current ten year Section 45 tax credits do not require any additional approval by Congress, which provides us with a high degree of confidence that Clean Coal and the M-45 technologies will generate long-term cash flows.
Emission Control
Activated Carbon Injection Systems
ACI systems are currently the dominant control technology to address mercury emissions and have been actively deployed to meet the previously existing state and new plant regulations and this demand will significantly increase to meet the new MATS rules. ACI controls have historically been extensively evaluated by the DOE National Energy Technology Laboratory over the course of its three-phase mercury control field testing program and have been demonstrated to reduce mercury emissions by up to 90% in many coal-fired power plants.
To date, we have obtained contracts for or are in the process of installing 50 ACI systems intended to control mercury emissions from 55 coal-fired EGU boilers. Bid activity picked up in the second half of 2011 on individual and fleet wide projects due to the anticipated release of the final MATS in December. We are responding to over 60 bids and requests for proposals for ACI and DSI systems with a combined value in excess of $90 million which represents an initial indication of increased activity in response to the final MATS rule. We anticipate the need for 400 to 600 ACI systems to be supplied between 2012 and 2015, which would be an overall market of approximately $500 to $600 million and would require rapid scale-up of our production capabilities to maintain our target and present 35% market share. For an average size EGU, the ACI equipment costs are between $600,000 and $1 million. We expect to continue to expand our sales staff as well as our pre-contract and post-contract engineering design group and fabrication alliances to meet this anticipated market. We are currently in discussions with several utilities about potential fleet-wide sales of ACI and DSI systems, for which a single fleet contract for ACI alone could exceed $10 million depending upon the final number and type of systems required. We believe several contracts for ACI and DSI systems will be awarded as early as the second quarter of this year and that MATS will generate up to $300 million in sales of both ACI and DSI systems for the Company.
Dry Sorbent Injection Systems
In addition to the mercury control applications described above for ACI systems, we have also developed and are offering commercial DSI systems to inject dry alkali sorbents for control of acid gases such as SO 3 and HCl as well as for control of the criteria pollutant SO 2 . These acid gas emissions are often the unintended result of the retrofit and operation of NO x control technology on medium to high sulfur coal-fired boilers. DSI systems, which cost approximately $2
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million to $3 million for an average size EGU, provide a low-capital CAPEX alternative to scrubbers for meeting certain provisions of the MATS and CSAPR. The EPA predicts the market opportunity to approximate 200 DSI systems. We conducted full-scale tests of the DSI equipment in 2010 and 2011 for the control of HCl, SO 2 and SO 3 on plants burning bituminous, PRB, and lignite coals. In early February, we were notified that our bid for a DSI system for a power generator was selected and we recently finalized the $2 million contract for this first commercial DSI system.
Enhanced Coal
Since 2004, we have been working with Arch Coal to explore certain unique characteristics of some types of coals mined by Arch Coal that allow them to be burned with lower emissions. We believe a technical breakthrough that involves the application of proprietary chemicals to coal mined by Arch Coal in the PRB likely reduces the combustion emissions of mercury and other metals when this enhanced PRB coal (Enhanced Coal) is eventually burned at power plants. On June 25, 2010, we entered into a Development and License Agreement (the License Agreement) with Arch Coal. Pursuant to the License Agreement, we provided Arch Coal with an exclusive, non-transferable license to use certain technology to produce Enhanced Coal by the application of ADAs proprietary coal treatment technology to Arch Coals PRB mined coal. We expect that use of this Enhanced Coal will help utilities meet the mercury emissions requirements in the MATS. Pursuant to the License Agreement, we are providing development services to Arch Coal aimed at applying the technology to the PRB coal. In addition, if we develop improvements to the technology that are related to the reduction of certain emissions from the burning of PRB coal, that technology will either be included in the license at no additional cost, or, under certain circumstances, we will negotiate with Arch Coal to determine if Arch Coal wants to use the additional improvements. We retain all right, title and interest, including all intellectual property rights, in and to any technology we license to Arch Coal. The initial demonstration of coal treated at the mine and shipped by rail to a power plant produced promising results.
In consideration for the development work and the license to Arch Coal, Arch Coal paid us an initial, non-refundable license and development fee in cash totaling $2 million in June 2010 and we have recognized this as revenue in 2010 and 2011. Under the License Agreement, we are entitled to royalties of as much as $1 per ton of a portion of the premium for Enhanced Coal sold by Arch Coal, depending upon the successful implementation of the technology and the premium Arch Coal is able to charge on future sales of the Enhanced Coal product. Arch Coal currently produces more than 100 million tons of PRB coal per year. Any royalty ultimately payable under the License Agreement will first be subject to credit to Arch Coal of an amount equal to the initial license fee, other development and operational costs paid by Arch Coal plus a rate of return on such payments.
We believe the Enhanced Coal product may provide a $1 to $4 per ton of coal benefit to power plants. The MATS will likely create a market for reduction in mercury emissions for a significant percentage of the greater than 100 million tons per year of PRB coal mined by Arch Coal. Because of our focus on placing in service additional RC facilities prior to the end of 2011, we decided to delay additional demonstrations of our Enhanced Coal product. We expect to resume these tests in 2012, which is expected to provide sufficient time to further develop the technology and grow this business as the national mercury control market expands through 2015.
As a part of entering into the License Agreement we agreed to negotiate and enter into a Supply Agreement under which Arch Coal will purchase the chemicals described in the License Agreement exclusively from us. We expect to finalize the terms of the Supply Agreement in 2012.
Flue Gas Chemicals and Services
We have developed and deployed technologies for conditioning flue gas streams from coal-fired combustion sources that allow existing air pollution control devices to operate more efficiently. Through various suppliers and contractors, we manufacture engineered units for each individual application. The units mix, pump and monitor the feed of proprietary chemical blends. The chemical blends are applied to the flue gas streams by a pressurized system of specially designed lances and nozzles. Such treatment of the flue gas stream allows for more effective collection of fly ash particles that would otherwise escape into the atmosphere.
Other Consulting Services
We also offer consulting services to assist electric power generators in planning and implementing strategies to meet the new and increasing government emission standards requiring reductions in SO 2 , NO x , particulates, acid gases and mercury. This includes demonstrations of our commercial products. We receive funding for consulting and a portion of our development and testing activities from industry partners that have a strategic interest in the technology.
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CO 2 Capture
Government and Industry-Supported Contracts
The DOE issues solicitations periodically for various research, development and demonstration (R&D) projects. DOE solicitations range in subject matter, and we submit proposals for those solicitations that fit our mission, strategic plan and capabilities. The bids include a proposed statement of work and cost estimates, and DOE then negotiates a final contract with the successful bidder to perform the specified work. The contracts with the DOE can be Grants or Cooperative Agreements and are considered financial assistance awards. Generally, the agreements cover the development and/or demonstration of air pollution control technologies for coal-fired power generating plants. The work may involve designing and fabricating equipment, installing the equipment at power plants, testing the equipment, preparing economic studies, and preparing various reports. The deliverables required by the agreements include various technical and financial reports that we submit on a prescribed schedule. The agreements require us to perform the negotiated scope of work in agreed phases, which includes testing/demonstrating various air pollution control technologies. The agreements with the DOE provide that any inventions we create as a result of the work become our property and we retain the rights to commercialize any products we develop under the contracts.
We participated in two such agreements in 2011 pursuant to which we are researching and developing a novel process to capture CO 2 from coal-fired power plants. We completed one project in 2011 and have completed the first phase of the second project. If, based on the result of the completed first phase, the DOE and our industry partners decide to continue with the remaining phases of the second project, we would expect it to be completed by the end of 2014. We expect the DOE to make their decision about continuation within the next few months.
Agreements with the DOE generally require industry cost share, which may take the form of cash contributions and/or in-kind contributions of material and services. The industry cost share percentages on the mercury control projects in which we have participated in the past have ranged from 25% to 50% of the total project costs. Typically, the electric power generator host site for the demonstration project provides a considerable amount of the cost share with other interested industry partners also providing funding, either individually or through the Electric Power Research Institute (EPRI). We expect that for 2012, contributions from the DOE, industry partners and EPRI will not fully cover the required project costs. As a result and to the extent that the required cost share is not provided by industry partners or EPRI, we would expect to provide the balance as a development investment by providing some cost sharing on our own in one form or another, which will negatively impact our margins on these projects.
Carbon Solutions and AC Production
On October 1, 2008, we entered into a Joint Development Agreement (the JDA) and formed a joint venture with Energy Capital Partners I, LP and its affiliates (together, ECP) known as ADA Carbon Solutions, LLC (Carbon Solutions). Carbon Solutions is principally engaged in the marketing and sale of activated carbon (AC) produced at an AC facility constructed in Red River Louisiana through a wholly owned subsidiary and development activities related to its AC business. ADA has included its share of Carbon Solutions losses under the equity method of accounting.
On November 28, 2011, ADA entered into an Indemnity Settlement Agreement with ECP and Carbon Solutions and certain of Carbon Solutions affiliates (together the AC JV Entities) pursuant to which the parties agreed to settle certain indemnity claims arising out of the litigation between Norit Americas, Inc. and Norit International N.V. f/k/a Norit N.V. (collectively Norit), ECP and the AC JV Entities in Texas and New Jersey and the related arbitration (collectively, the Norit Litigation) based on ADAs indemnity obligations under the JDA. The primary litigation took place before an arbitration panel, which rendered its Final Award in October 2011, confirming the prior settlement agreements reached with Norit.
Pursuant to the Indemnity Settlement Agreement, ADA agreed to settle certain indemnity claims asserted against the Company for legal fees, costs and expenses arising out of the Norit Litigation in the amount of approximately $33 million and certain other losses. To settle the claims, ADA paid certain AC JV Entities a cash payment of $2.1 million on November 28, 2011, agreed to $1.5 million in additional monthly payments of $100,000 beginning in December 2011, agreed to secure the payment of future royalty amounts due to Norit under the Final Award and settlement agreements with Norit through letters of credit and relinquished all of its equity interests in the AC JV Entities.
In the fourth quarter of 2011, ADA relinquished all of its equity interests in Carbon Solutions and recorded a gain of $20 million, and liabilities of $1.5 million as a result of the Indemnity Settlement Agreement.
As part of the Indemnity Settlement Agreement, ADA preserves the right for a 49.9% participation, on a passive basis, in certain AC production lines that Carbon Solutions may build in the future.
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Common Stock Offering
On October 28, 2011, ADA closed on a confidentially marketed underwritten public offering selling 2 million shares of common stock for $15.25 per share generating $28.4 million in net proceeds to ADA. In November 2011, the underwriters exercised their over-allotment option to purchase an additional 300,000 shares, generating an additional $4.3 million in net proceeds to ADA.
Formation of Advanced Emissions Solutions, Inc. and Proposed Reorganization
On March 14, 2011, we, ADES, and ADA Merger Corp., a Colorado corporation and wholly owned subsidiary of ADES (MergerCo), entered into an Agreement and Plan of Merger (the Reorganization Agreement), that provides for the merger (the Merger) of ADA with MergerCo, with ADA surviving the Merger as a wholly owned subsidiary of ADES, and the conversion of each share of common stock, no par value per share (ADA Common Stock), of ADA, issued and outstanding immediately prior to the effective time of the Merger (other than shares held in treasury, which will be cancelled), into one duly issued, fully paid and nonassessable share of common stock, par value $0.001 per share (ADES Common Stock), of ADES (the Reorganization). In addition, each outstanding option to purchase or other right to acquire shares of ADA Common Stock would automatically convert into an option to purchase or right to acquire, upon the same terms and conditions, an identical number of shares of ADES Common Stock. ADA terminated the Reorganization Agreement in April 2011 due to complexities arising out of the adverse ruling in the arbitration with Norit. ADA, MergerCo and ADES are planning to proceed with the Reorganization, subject to entering into and finalizing the related agreements including re-entering into the Reorganization Agreement.
Upon completion of the Reorganization, ADES will, in effect, replace ADA as the publicly held corporation. ADES and its subsidiaries, including ADA, will conduct all of the operations we currently conduct. We believe that implementing the holding company structure will provide us with strategic, operational and financing flexibility and incorporating the new holding company in Delaware will allow us to take advantage of the flexibility, predictability and responsiveness that Delaware corporate law provides. We expect that the ADES Common Stock will be traded on the NASDAQ Capital Market under the symbol ADES. Upon consummation of the Reorganization, the ADES board of directors will be the same as the directors elected by our shareholders at the Annual Meeting. ADES expects that its executive officers following the Reorganization will be the same as those of ADA immediately prior to the Reorganization.
The boards of directors of ADA, ADES and MergerCo unanimously approved and adopted the Reorganization Agreement and the transactions contemplated thereby. The Reorganization is subject to specified conditions, including approval by our shareholders at our 2012 Annual Meeting of Shareholders (the Annual Meeting), which is currently scheduled for June 6, 2012. If approved by ADAs shareholders at the Annual Meeting and the other conditions are satisfied, it is currently expected that the Reorganization would be completed on or about July 1, 2012.
The Reorganization may be terminated and the transactions contemplated thereby may be abandoned at any time prior to the effective time of the merger by action of our board of directors if it should determine that for any reason the completion of the transactions provided for therein would be inadvisable or not in the best interest of ADA or its shareholders. The Reorganization is intended to be tax-free for ADA and our shareholders for U.S. federal income tax purposes.
The foregoing description of the Reorganization is not complete and is qualified in its entirety by reference to the Reorganization as described in the preliminary joint proxy statement/prospectus to be filed with the U.S. Securities and Exchange Commission (SEC) (subject to completion) as part of ADES Registration Statement on Form S-4 relating to the Reorganization Agreement and by any future filings ADES or the Company may make regarding the Reorganization. The preliminary joint proxy statement/prospectus and other filings related to the Reorganization will be available at the SECs website (http://www.sec.gov/). Among other things, the filing will state that the information in the preliminary joint proxy statement/prospectus is not complete and may be changed. Neither the SEC nor any state securities commission has approved or disapproved of the securities to be issued under the proxy statement/prospectus or determined if the proxy statement/prospectus is accurate or adequate. Any representation to the contrary is a criminal offense.
Competition
Through 2011, mercury control using ACI has been demonstrated at full scale at over 50 plants and we have contracts for ACI systems to control mercury emissions on 55 boilers to date, generally yielding up to 90% mercury control on many applications. This approach to mercury control is quite cost effective compared to competing technologies that require capital intensive equipment. We add significant value to our base offerings by having complementary products and
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services. Our expertise in conducting full-scale emissions control demonstrations reflects our understanding of the application of the control technologies that customers find invaluable. Our practice of providing users with performance guaranties on equipment, comprehensive testing services and overall compliance strategies enhances our competitive position in this market. The capital equipment we provide for the larger utility coal-boilers generally ranges from approximately $600,000 to $1 million per coal-fired boiler unit. We believe companies such as Norit Americas, Inc. (Norit), United Conveyor Corporation (UCC), The Babcock & Wilcox Company and Clyde Bergemann, Inc. have responded to requests for commercial bids for ACI systems, and are some of our principal competitors in the ACI market. Competition for ACI systems is based primarily on price, quality, performance and the ability to meet the requested schedule. Based on the contracts we were awarded since 2005, we believe we are one of the market leaders and that we currently have approximately 35% of the existing ACI market. As the MATS driven EC market matures, we expect competition to continue to increase. In addition, we believe companies such as Nol-Tec Systems, Inc., UCC, Nalco Mobotec and SPE AMEREX have responded to requests for commercial bids for DSI systems, and are some of our principal competitors in the emerging DSI market. Similar to ACI systems, competition for DSI systems is based primarily on price, quality, performance and the ability to meet the requested schedule.
With respect to our RC technology, the window is closed for new entrants as no new RC facilities can be built without a future extension of the placed in service requirement by Congress. One other company that has a limited number of RC facilities for sale is ChemMod, a subsidiary of Arthur J. Gallagher. We compete for capital with others who either produce tax credits or are involved in tax-leveraged transactions. The list of those who provide such investment opportunities is wide and varied among industries.
Patents
We have received 13 patents and have an additional 18 patent applications pending or filed relating to different aspects of our technology. Our existing patents have terms of 17 years measured from the application date, the earliest of which was in 1998. Although important as protection for certain aspects of our continuing business, we do not consider any of our patents or pending patents to be critical to the ongoing conduct of our business, with the exception of the patents and intellectual property rights licensed to Clean Coal and Arch Coal, as noted above.
Supply of Chemicals for Our Customers
We typically negotiate blending contracts that include secrecy agreements with chemical suppliers located near major customers. These arrangements minimize transportation costs while assuring continuous supply of our proprietary chemical blends. We have operated under these arrangements since the spring of 1999. They are generally renewed on an annual basis.
Raw Materials and Working Capital Practices
We purchase equipment from a variety of vendors for the engineered ACI and DSI systems, components and other equipment we manufacture or provide. Such equipment is available from numerous sources; however based on the system requested by the customer, we may determine that some sources are not suitable. We typically subcontract the major portion of the work associated with installation of such equipment from a variety of vendors, usually located near the work site. We purchase our proprietary chemicals through negotiated blending contracts with chemical suppliers generally located near each major customer. The chemicals used are readily available, and there are several chemical suppliers that can provide us with our requirements. We enhance coal through a propriety process and components of the enhancement are readily available. We do not provide any extended payment terms to our customers. We typically provide equipment warranties and performance guaranties related to our EC systems. (See Risk Factors and Footnote 9 Commitments and Contingencies in the Consolidated Financial Statements filed as a part of this Report).
Seasonality of Activities
The sale of chemicals and RC facility operations depend on the operations of the electric power generators to which the applicable equipment and products are provided. These customers routinely schedule maintenance outages in the spring or fall depending upon the operation of the boilers. During the period in which an outage may occur, which may range from one week to over a month, no chemicals are used or RC produced and purchases from us and related revenues are correspondingly reduced. The other aspects of our business are not seasonal in any material way.
Dependence on Major Customers
In 2011, we performed work on ACI systems to 8 customers. In 2011, through Clean Coal, we recognized 38% of our total revenue from GS RC Investments, LLC (GS Investments). In addition, we recognized 6% of our revenue from
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services provided under a contract with the DOE. (See Note 5 to the Consolidated Financial Statements included elsewhere in this Report). Our own sales staff markets our technology through trade shows, mailings and direct contact with potential customers.
Backlog Orders
As of December 31, 2011, we had contracts in progress for work related to our EC segment totaling approximately $736,000 which we expect to recognize in 2012. Our current DOE and industry funded R&D contract in progress, assuming no changes in funding, are expected to result in future revenues of $15.7 million, of which we expect to recognize approximately $5.6 million in 2012.
Research and Development Activities
In 2011, we were involved in several R&D contracts funded by DOE, industry groups and ourselves, primarily directed toward the control of mercury emissions, DSI, RC activities, Enhanced Coal activities and CO 2 capture. We participate in cost share arrangements in a few of those contracts. Our direct cost share for R&D under DOE related contracts in 2011 was $343,000. We spent $418,000 and $100,000 on our own behalf on research and development activities related to further development of our technologies during 2011 and 2010, respectively, exclusive of CO 2 capture related efforts.
Employees
As of December 31, 2011, we employed 83 full-time and part-time personnel, including eight Company executive officers. Seventy-seven people are employed at our offices in Colorado, and one each in Maryland, Alabama, Pennsylvania, Georgia, Utah and Illinois.
Copies of Reports
Our periodic and current reports are filed with the SEC pursuant to Section 13(a) of the Securities Exchange Act of 1934 and are available free of charge within 24 hours after they are filed with or furnished to the SEC at the Companys website at www.adaes.com .
Copies of Corporate Governance Documents
The following Company corporate governance documents are available free of charge at the Companys website at www.adaes.com and such information is available in print to any shareholder who requests it by contacting the Secretary of the Company at 9135 South Ridgeline Boulevard, Suite 200, Highlands Ranch, Colorado 80129.
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Audit Committee Charter |
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Compensation Committee Charter |
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Nominating and Governance Committee Charter |
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Code of Conduct |
Forward-Looking Statements Found in this Report
This Annual Report contains forward-looking statements within the meaning of Sections 21E of the Securities Exchange Act of 1934 and 27A of the Securities Act of 1933 that involve risks and uncertainties. In particular such forward-looking statements are found in this Part I and under the heading Managements Discussion and Analysis of Financial Condition and Results of Operation. Words or phrases such as anticipates, believes, hopes, expects, intends, plans, the negative expressions of such words, or similar expressions are used in this Report to identify forward-looking statements, and such forward-looking statements include, but are not limited to, statements or expectations regarding:
(a) | when mercury and other regulations or pollution control requirements will become effective and the scope and impact of such regulations and implementation of the final MATS; |
(b) | expected growth in our target markets; |
(c) | who are potential competitors are and who they will be in the future, expected levels of competition in our target markets and whether we have direct competition for our technology; |
(d) | expected supply and demand for our products and services; |
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continued funding by Congress of our DOE CO 2 projects, including industry cost share of such projects; |
(f) | the effectiveness of our technologies and the benefits they provide; |
(g) | expected timing of conducting additional demonstrations of our technology and completing a supply agreement with Arch Coal; |
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(h) | the timing of awards of, and work under, our contracts and agreements and their value and their availability; |
(i) | expected production levels at our RC facilities and expected use of the Section 45 tax credits generated by the RC facilities; |
(j) | our ability to develop and generate Section 45 tax credits and profitably sell, lease and/or operate additional RC facilities; |
(k) | timing and amounts of or changes in future revenues, funding for our business and projects, margins, expenses, earnings, dividends, tax rate, cash flow, working capital, liquidity and other financial and accounting measures; |
(l) | the materiality of any future adjustments to previously recorded revenue as a result of DOE audits; and |
(m) | the costs, benefits and results related to the Reorganization including the holding company structure and the impact of Delaware law; timing and completion of the Reorganization; the trading symbol of ADESs stock and on what exchange it will trade after the Reorganization; the effect of anti-takeover provisions in AESs organizational and governing documents; who the directors and executive officers of ADES and ADA will be after the Reorganization; and the tax implications of the Reorganization. |
Our expectations are based on certain assumptions, including without limitation, that:
(a) | coal will continue to be a major source of fuel for electrical generation in the United States; |
(b) | we will continue as a key supplier of equipment and services to the coal-fired power generation industry as it seeks to implement reduction of mercury emissions; |
(c) | contracts we have with the DOE will continue to be funded at expected levels and we will be chosen to participate in additional contracts of a similar nature; |
(d) | current environmental laws and regulations requiring reduction of mercury from coal-fired boiler flue gases will be expanded and strengthened as a result of the MACT process, and such laws and regulations will not be materially weakened or repealed by courts or legislation in the future; |
(e) | we will be able to meet any performance guaranties we make and continue meet our other obligations under contracts; |
(f) | we will be able to obtain adequate capital and personnel resources to meet our operating needs and to fund anticipated growth and our indemnity obligations; |
(g) | we will be able to establish and retain key business relationships with other companies; |
(h) | orders we anticipate receiving will in fact be received; |
(i) | governmental audits of our cost incurred under DOE contracts will not result in material adjustments to amounts we have previously received under those contracts; |
(j) | we will be able to formulate new chemicals and blends, including those for Enhanced Coal, that will be useful to, and accepted by, the coal-fired boiler power generation business; |
(k) | we will be able effectively to compete against others; |
(l) | we will be able to meet any technical requirements of projects we undertake; |
(m) | Clean Coal will be able to monetize new RC facilities or use the Section 45 tax credits generated by their operation, and |
(n) | our Annual Meeting will occur on June 6, 2012, shareholders will approve the Reorganization and we will be able to obtain the expected benefits of the Reorganization. |
The forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from the anticipated results we discuss in this Report. Although forward-looking statements provide additional information about us, investors should keep in mind that forward-looking statements are only predictions, at a point in time, and are inherently less reliable than historical information. We do not guarantee future results, levels of activity, performance or achievements and we do not assume responsibility for the accuracy and completeness of these statements. You are cautioned not to place undue reliance on the forward-looking statements made in this Annual Report, and to consult any later filings we may make with the Securities and Exchange Commission for additional risks and uncertainties that may apply to our business and the ownership of our securities. The forward-looking statements contained in this Annual Report on Form 10-K are made and based on information as of the date of this Report. We assume no obligation to update any of these statements based on information after the date of this Report. In evaluating these statements, you should specifically consider the risks discussed in greater detail under the caption Risk Factors in Item 1A below. These risk factors may cause our actual results to differ materially from any forward-looking statement.
Item 1A. Risk Factors.
RISKS RELATING TO OUR BUSINESS
The following risks relate to our business as of the date of this Report. This list of risks is not intended to be exhaustive, but reflects what we believe are the material risks inherent in our business and the ownership of our securities as of the date of this Report. A statement to the effect that the happening of a specified event may have a
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negative impact on our business, results of operations, profitability, financial condition, or the like, is intended to reflect the fact that such an event would be likely to have a negative impact on your investment in the Company, but should not imply the likelihood of the occurrence of such specified event. The order in which the following risk factors are presented is not intended as an indication of the relative seriousness of any given risk.
DEMAND FOR OUR PRODUCTS AND SERVICES DEPENDS SIGNIFICANTLY ON ENVIRONMENTAL LAWS AND REGULATIONS; UNCERTAINTY AS TO THE FUTURE OF SUCH LAWS AND REGULATIONS, AS WELL AS CHANGES TO SUCH LAWS AND REGULATIONS, HAS HAD AND WILL LIKELY CONTINUE TO HAVE A MATERIAL EFFECT ON OUR BUSINESS.
A significant market driver for our existing products and services, and those planned in the future, are present and expected environmental laws and regulations that limit mercury emissions from coal-fired power plants and other environmental laws. If such laws and regulations were rescinded or substantially changed to increase acceptable emission limits, our business would be adversely affected by declining demand for such products and services. For example:
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The invalidation of CAMR in February 2008 resulted in a wait and see approach by our customers, which we saw in delays in orders and deliveries of previously placed orders, cancellations or delays in planned product demonstrations and decreased sales to coal-fired electric generating utilities. Such uncertainty also caused delays in purchasing decisions for EC equipment, especially for those utilities who were considering multi-pollution control solutions. |
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Although the MATS regulation was published in the Federal Register and is expected to become effective on April 16, 2012, the implementation of other environmental regulations such as the CSAPR and the Industrial Boiler MACT continues to be delayed. The lack of final comprehensive emission regulations until then will likely continue the uncertainty among independent power producers and utilities as to what will be required of them. This uncertainty is and will likely continue to negatively impact our business, results of operations and financial condition until the federal regulations are finalized, which will then mandate how industry must respond to the new federal regulations or state laws, including those that are presently in various stages of enactment, for pollution control and permitting requirements for new coal-fired plants. |
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Rescission of Canadian or U.S. state mercury control legislation or permitting requirements would likely cause an adverse effect on our business and financial condition. |
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To the extent federal, state and local legislation mandating that electric power generating companies serving a state or region purchase a minimum amount of power from renewable energy sources such as wind, hydroelectric, solar and geothermal, and such amount lessens demand for electricity from coal-fired plants, those mandates would likely reduce demand for our products and services. |
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Enactment of laws or passage of regulations regarding emissions from the combustion of coal by the U.S. or some of its states or by other countries, or other actions to limit such emissions including public opposition to new coal power plants, has caused and could continue to cause electricity generators to transition from coal to other fuel and power sources, such as natural gas, wind, hydroelectric and solar. The potential financial impact on us of future laws or regulations or public pressure will depend upon the degree to which electricity generators diminish their reliance on coal as a fuel source. That, in turn, will depend on a number of factors, including the specific requirements imposed by any such laws or regulations, the periods over which those laws or regulations would be phased in, amount of public opposition and the state of commercial development and cost of related technologies and processes. In addition, Public Utility Commissions may not allow utilities to charge consumers for and pass on the cost of emission control technologies without federal or state mandate. In view of the significant uncertainty surrounding each of these factors, we cannot reasonably predict the impact that any such laws or regulations or public opposition may have on our results of operations, financial condition or cash flows. |
THE ABILITY OF CLEAN COAL TO MONETIZE SECTION 45 TAX CREDITS FROM THE SALE OR LEASE OF ADDITIONAL RC FACILITIES IS NOT ASSURED, AND THE INABILITY TO SELL AND OPERATE RC FACILITIES TO GENERATE SECTION 45 TAX CREDITS COULD ADVERSELY AFFECT OUR FUTURE GROWTH AND PROFITABILITY.
As a result of the extension of the placed in service deadlines for facilities eligible for Section 45 tax credits to January 1, 2012, Clean Coal placed 26 additional RC facilities in service and is attempting to sell or lease these additional facilities and monetize the Section 45 tax credits resulting from the sale of refined coal from these facilities, but has not yet finalized any agreements with any third parties to do so. The inability of Clean Coal to successfully sell additional facilities and monetize the Section 45 tax credits that it expects to generate from those facilities would likely have an adverse effect on future growth and profitability.
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Furthermore, if in the future electric power generators decide to limit generation from their facilities for economic reasons and/or not to burn and use RC and instead switch to another power or fuel source, Clean Coal would likely be unable to fully monetize the Section 45 tax credits potentially available from RC facilities over the anticipated term of the Section 45 tax credits. In addition, pursuant to Clean Coals Operating Agreement, if Clean Coal is unable to generate enough revenue through the monetization of RC facilities over the next ten years to return GSs initial investment of $60 million, plus a 15% return thereon, then GS may require Clean Coal to redeem its interest in Clean Coal for any deficit of such amount not distributed to GS.
WE ARE PRESENTLY RELIANT UPON ONE CUSTOMER AT CLEAN COALS EXISTING RC FACILITIES FOR A SUBSTANTIAL PORTION OF OUR REVENUES AND ANY LOSS OF THIS CUSTOMER OR ANY FAILURE TO CONTINUE TO PRODUCE RC AT THESE FACILITIES COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS.
Clean Coal placed two RC facilities into operation prior to January 1, 2010, the initial required date for doing so under Internal Revenue Code provisions for Section 45 tax credits for RC to be produced by the facilities, and has leased the facilities to GS Investments in exchange for rent payments based on the availability of Section 45 tax credits to the lessee. In 2011, through Clean Coal, we recognized 38% of our total revenue from GS Investments for the lease of these two RC facilities in the mid-west. If GS Investments terminated the agreements for these two RC facilities or if the utility customer reduces its use of RC at the four furnaces that these RC facilities feed, this could have a material adverse effect on our business, results of operations or financial condition.
TECHNICAL OR OPERATIONAL PROBLEMS WITH LONG-TERM OPERATION OF OUR RC FACILITIES COULD RESULT IN ADDITIONAL COSTS AND DELAYS THAT ADVERSELY AFFECT OUR FINANCIAL CONDITION.
Clean Coal placed its first two RC facilities into operation in June 2010 and is attempting to sell or lease additional facilities. Clean Coal is continuing to evaluate the likelihood for technical or operational problems with its RC facilities from long-term operations, but cannot be certain that such problems will not arise. Any such problems could result in decreased production of RC at such facilities and delays in, or postponement or cancellation of, expected installations at potential facilities and would likely have a material adverse effect on our business and financial condition.
OUR DEPENDENCE ON THIRD PARTIES FOR MANUFACTURING KEY COMPONENTS OF OUR SYSTEMS MAY CAUSE DELAYS IN ASSEMBLY AND INCREASED COSTS TO US.
We do not have our own manufacturing or assembly facility for our ACI systems, our DSI systems or other components that we sell in our business. Like most of our competitors, we rely upon third parties for the manufacture, assembly and some of the testing of key components and facilities. Delays and difficulties in the manufacturing or assembly of our products and facilities could substantially harm our business and financial condition.
There may be limited sources of acceptable supply for some key ACI and DSI system components. Business disruptions, financial difficulties of the manufacturers or suppliers of these components and facilities or raw material shortages could increase the cost of our goods sold or reduce the availability of these components. If orders of ACI and DSI systems accelerate as we anticipate, we will likely experience a rapid and substantial increase in our need for components and facilities. If we are unable to obtain a sufficient supply of required components, we could experience significant delays in manufacturing, which could result in the loss of orders and customers or liability for liquidated damages under delivery contracts. This could materially and adversely affect our business, financial condition and results of operations.
Although we may purchase inventories of strategic components, some parts of the ACI systems (such as silos), and DSI systems may require custom fabrication and may not be amenable to being stocked as part of standard inventory. Alternative sources may be difficult to locate if we experience delays in obtaining them from our usual suppliers. If the cost of components increases, we may not be able to pass on price increases to our customers if we are to remain competitive. The occurrence of any of these difficulties would likely have an adverse effect on our business and financial condition.
FAILURE TO PROTECT OUR INTELLECTUAL PROPERTY OR INFRINGEMENT OF OUR INTELLECTUAL PROPERTY BY A THIRD PARTY COULD HAVE AN ADVERSE IMPACT ON OUR FINANCIAL CONDITION.
We rely on a combination of patent, copyright and trademark laws, trade secrets, confidentiality procedures and contractual provisions to protect our proprietary rights. Such means of protecting our proprietary rights may not be adequate because they provide only limited protection. We also enter into confidentiality and non-disclosure of
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intellectual property agreements with our employees, consultants and many of our vendors and generally control access to and distribution of our proprietary information. Notwithstanding these precautions, a third party could copy or otherwise obtain and use our proprietary information without authorization. We cannot assure you that the steps taken by us will prevent misappropriation of our technology and intellectual property, which could result in injury to our business and financial condition. In addition, such actions would divert the attention of our management from the operation of our business.
WE MAY BE SUBJECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS FROM THIRD PARTIES THAT ARE COSTLY TO DEFEND AND THAT MAY LIMIT OUR ABILITY TO USE THE DISPUTED TECHNOLOGIES.
Companies in the business of developing technology face the risk of being subject to intellectual property infringement claims that are costly to defend. As a clean-tech company developing new technologies, we may be subject to intellectual property infringement claims from third parties, the defense of which would likely be costly in terms of monetary expenses and management demands. If our technologies infringe the intellectual property rights of others, we may be prevented from continuing sales of existing products or services and from pursuing research, development or commercialization of new products or services. Further, we may be required to obtain licenses to third party intellectual property, or be forced to develop or obtain alternative technologies. Our failure to obtain a license to any technology that we may require or to develop or obtain alternative technologies could significantly and negatively affect our business.
THE USE OF ALTERNATIVE ENERGY SOURCES FOR POWER GENERATION COULD REDUCE COAL CONSUMPTION BY U.S. ELECTRIC POWER GENERATORS, WHICH COULD RESULT IN LESS DEMAND FOR OUR PRODUCTS AND SERVICES. IF UTILITIES SWITCH TO NATURAL GAS OR OTHER FUEL SOURCES THIS COULD REDUCE OUR REVENUES AND MATERIALLY AND ADVERSELY AFFECT OUR BUSINESS AND RESULTS OF OPERATIONS.
The amount of coal consumed for U.S. electric power generation is affected by, among other things (1) the location, availability, quality and price of alternative energy sources for power generation, such as natural gas, fuel oil, nuclear, hydroelectric, wind, biomass and solar power; and (2) technological developments, including those related to alternative energy sources.
Gas-fueled generation has the potential to displace coal-fueled generation, particularly from older, less efficient coal-powered generators. We expect that many of the new power plants needed to meet increasing demand for electricity generation will be fueled by natural gas because the price of natural gas has been declining, gas-fired plants are cheaper to construct and permits to construct these plants are easier to obtain as natural gas is seen as having a lower environmental impact than coal-fueled generators. Possible advances in technologies and incentives, such as tax credits, to enhance the economics of renewable energy sources could make these sources more competitive with coal. Any reduction in the amount of coal consumed by domestic electric power generators could reduce the demand for our products and services, thereby reducing our revenues and materially and adversely affecting our business and results of operations.
IF WE ARE UNABLE TO COMPETE WITH OTHER INDUSTRY PARTICIPANTS, WE WOULD SUFFER ADVERSE EFFECTS TO OUR BUSINESS AND FINANCIAL CONDITION.
We face competition in all aspects of our operations, including competition from both domestic and foreign suppliers. In North America, our competitors consist of large national and international companies and local and regional companies of varying sizes and financial resources. Certain of our competitors have advantages over us, including substantially greater financial and other resources. We may not be able to successfully compete with them. In some past years, we have seen our market share for ACI systems decline due to pricing pressures from increased competition. If we are unable to maintain a significant market share for our systems, our financial prospects would be adversely affected. In addition, competitors may reduce their prices to attract or retain customers, which may result in an adverse impact to our market share, margins, revenues and business.
IF THE QUALITY AND EFFECTIVENESS OF OUR ACI AND DSI SYSTEMS AND RELATED TECHNOLOGIES AND PRODUCTS DOES NOT MEET OUR CUSTOMERS EXPECTATIONS, THEN OUR SALES AND OPERATING EARNINGS, AND ULTIMATELY OUR REPUTATION, COULD BE NEGATIVELY IMPACTED.
If flaws in the design, production, assembly or testing of our ACI and DSI systems and related technologies and products (by us or our suppliers) were to occur, we could experience substantial repair, replacement or service costs and potential damage to our reputation. In addition, we have issued mercury control performance guarantees for ACI systems and are responsible for any repair or replacement costs if those systems do not perform as promised. Continued improvement in
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manufacturing capabilities, technological development, control of material and manufacturing quality and costs and testing are critical factors in our future growth and meeting our customers expectations. Our efforts to monitor, develop, modify and implement appropriate test and manufacturing processes for our EC systems and processes may not be sufficient to avoid failures in our EC systems and related technologies that result in significant repair or replacement costs or potential damage to our reputation, any of which could have a material adverse effect on our business, results of operations or financial condition.
WE HAVE AGREEMENTS TO INDEMNIFY THIRD PARTIES AGAINST INTELLECTUAL PROPERTY CLAIMS CONCERNING LICENSED TECHNOLOGY THAT COULD BE SIGNIFICANT.
We have agreed to indemnify Clean Coal, NexGen, GS, Clean Coals sublicensees and Arch Coal, and may enter into additional license agreements with others under which we agree to indemnify and hold the licensee harmless from and against losses it may incur as a result of the infringement of third party rights by use of our patents or other intellectual property. Infringement claims, which are at the very least expensive and time-consuming to defend, could have a material adverse effect on our business, operating results and financial condition, even if we are successful in defending ourselves (and indemnified parties) against them.
WE ARE UNABLE TO PREDICT THE IMPACT OF RECENT (AND CONTINUING) ECONOMIC FACTORS ON OUR BUSINESS.
The United States and global economies are currently experiencing a period of substantial economic uncertainty with wide-ranging effects, including:
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Disruption in global financial markets that has reduced the liquidity available to us, our customers and suppliers; |
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a substantially weakened banking and financial system with increasing risk and exposure to the impact of non-performance by banks committed to provide financing, hedging counterparties, insurers, customers and suppliers; |
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Extreme volatility in commodity prices; |
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Increasing risk, uncertainty and costs related to possible periods of significant or prolonged inflation or deflation; |
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Increasing risk that customers and suppliers may liquidate or seek protection under federal bankruptcy laws and reject existing contractual commitments; and |
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The inability to predict with any certainty the effectiveness and long-term impact of economic stimulus plans and any cessation thereof. |
We are unable to predict the impact, severity and duration of these events, any of which could have a material adverse impact on our financial position, results of operations and cash flows.
OUR SUCCESS DEPENDS IN PART ON OUR ONGOING DEVELOPMENT OF INTELLECTUAL PROPERTY AND THE INTRODUCTION OF NEW PRODUCTS AND TECHNOLOGIES TO SERVICE OUR DIFFERENT BUSINESS SEGMENTS AND OUR RESULTS CAN BE IMPACTED BY THE EFFECTIVENESS OF OUR SIGNIFICANT INVESTMENTS IN NEW PRODUCTS AND TECHNOLOGIES.
The process of developing and enhancing products, systems, services and solutions for our different customers in the RC, EC and carbon capture markets is complex, costly and uncertain, and any failure by us to anticipate customers changing needs, emerging trends and new regulations accurately could significantly harm our future market share and results of operations. Our approach to technology development, implementation and commercialization involves taking technology to full-scale as quickly as we can, and testing and improving the technology under actual power plant operating conditions. We may focus our resources on technologies that eventually do not become widely accepted or are not commercially viable. This involves a significant up-front investment of our resources. Our results are subject to risks related to our significant investment in developing and introducing new technologies and EC systems and products. If we are unable to develop and scale up new technologies, systems and services to meet the needs of our customers, our financial results could be adversely affected.
WE MANAGE SOME OF OUR BUSINESS VIA JOINT VENTURE OPERATING AGREEMENTS AND HAVE IMPLEMENTED SIGNIFICANT OVERSIGHT PROCEDURES WITH REGARD TO THEM BUT THE NATURE OF JOINT MANAGEMENT IS THAT WE DO NOT CONTROL THE DECISION MAKING PROCESS SO WE CANNOT MANDATE DECISIONS OR ENSURE OUTCOMES.
ADA oversees its joint ventures via operating agreements and by participating in the following activities: (1) representation on the Board, (2) design and implementation of financial and operational controls and reporting (3) hiring,
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(4) design, construction and operation of RC facilities, and (5) other regular and routine involvement with our joint venture partners. Notwithstanding this regular participation and oversight, our joint venture partners also participate in the management of these businesses and they may have business or economic interests that divert their attention from the joint venture or they may prefer to invest resources in a manner that is contrary to ADAs preferences. Since business decisions must be made jointly with our joint venture partners, ADA cannot mandate decisions or ensure outcomes.
ANY DISRUPTIONS IN OUR INFORMATION TECHNOLOGY SYSTEMS COULD NEGATIVELY IMPACT OUR ABILITY TO CONDUCT NORMAL BUSINESS OPERATIONS.
We rely on our information technology systems to coordinate and execute our business operations and communicate with our customers. Any disruption or failure of our information technology system could cause delays in providing services or performing other critical functions to service our customers. If we are unable to effectively and efficiently communicate internally with our employees and externally with our customers this could result in a failure to meet project deadlines or customer expectations and negatively impact our reputation and the results of our operations, all of which could have a material adverse impact on ADA.
AN INJURY OR DEATH TO ONE OF OUR EMPLOYEES COULD RESULT IN MATERIAL LIABILITIES TO THE COMPANY.
The industrial activities conducted at our and our customers facilities present significant risk of serious injury or death to our employees, customers or other visitors to our operations, notwithstanding our safety precautions, including our material compliance with Federal, state and local employee health and safety regulations. While we have in place policies and procedures to minimize those risks, we may be unable to avoid material liabilities for an injury or death. Even though we maintain workers compensation insurance to address the risk of incurring material liabilities for injury or death, the insurance coverage may not be adequate or may not continue to be available on the terms acceptable to us, or at all, which could result in material liabilities to us for an injury or death.
OUR EXPECTED PROFITABILITY COULD BE ADVERSELY AFFECTED BY INCREASES IN THE COST OF RAW MATERIALS AND FREIGHT.
The prices of commodities that we require in our operations, including steel for silos, iron waste products and other chemicals, are subject to price fluctuations, and the timing of changes in the market prices for these commodities is largely unpredictable. We may not be able to pass on all cost increases to our customers or offset fully the effects of higher costs for raw materials or freight through the use of surcharges and other measures, which may negatively impact profitability. There is also the possibility of potential time lag between increases in prices for raw materials under our purchase contracts and the point when we can implement corresponding increase in price under our sales contracts with customers. As a result, we may be exposed to fluctuations in raw material prices, including steel, since during the time lag we may have to bear the additional cost of the price increase under our purchase contracts. If these events were to occur, beyond the price validity time period we have obtained from our suppliers, they could have a material adverse effect on our financial position, results of operations and cash flows.
THE EFFECT OF ISSUING PERFORMANCE GUARANTIES FOR COMMERCIAL ACI AND DSI SYSTEMS AND ISSUING PAYMENT AND PERFORMANCE GUARANTIES FOR CLEAN COALS RC FACILITIES IS UNKNOWN AND COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION.
Performance and payment guaranties have been and may likely continue to be an integral part of successful sales of our products and services. Guaranties with respect to our ACI systems typically require levels of mercury removal efficiency based on stated injection rates of a specified or approved AC given other operating parameters, including the nature of the coal burned. Provisions of such guaranties generally require us to spend amounts up to the value of the sales contract to make right the performance of the ACI or DSI system if the guaranteed level of performance is not achieved. In addition, we, NexGen and two entities affiliated with NexGen have provided Clean Coals sublessee with joint and several guaranties guaranteeing any payments and performance that might be due the lessee under the various agreements Clean Coal executed. Any substantial payments under such guaranties would have a material adverse effect on our financial position, results of operations and cash flows.
WE DEPEND ON KEY PERSONNEL.
We depend on the performance of our senior management team and their direct reports and other key employees, particularly highly skilled engineers. Our success depends on our ability to attract, retain and motivate these individuals. We do not have any binding agreements with any of our employees that prevent them from leaving our Company at any time without any restrictions on their competing against us after their employment terminates. We compete heavily for
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these types of personnel. In addition, although we maintain key person life insurance on certain of our executives, the loss of the services of any of our key employees or our failure to attract, retain and motivate key employees could harm our business.
WE DEPEND SUBSTANTIALLY ON EMPLOYEES OF CLEAN COAL FOR OUR CLEAN COAL BUSINESS, AND THE LOSS OF THEIR SERVICES COULD HAVE AN ADVERSE EFFECT ON THAT BUSINESS.
Clean Coal depends on several key employees to operate the RC business. If Clean Coal were to lose the services of these key employees, especially to a competitor, this could have a material adverse effect on the business of Clean Coal and our results of operation. It might be difficult to timely replace such key employees on reasonable terms, and our business could be harmed if any those employees were to engage in activities competitive with one of our businesses or areas of interest.
MATERIAL ADJUSTMENTS PURSUANT TO DOE AUDITS OF OUR PAST PERFORMANCE COULD HAVE A DETRIMENTAL IMPACT ON OUR BUSINESS.
Fourteen of our completed and current contracts awarded by the DOE and related industry participants remain subject to adjustments as a result of future government audits. Our historical experience with these audits has not resulted in significant adverse adjustments to amounts previously received; however the audits for the years 2004 and later have not been finalized. Revenues recognized from 2004 through 2011 that are subject to government audit totaled $32 million. In addition, we had $15.7 million of remaining unearned amounts under contracts subject to audit as of December 31, 2011. If audits for open years were to require us to repay material amounts, our results of operations and business would likely suffer material adverse impacts.
CHANGES IN TAXATION RULES OR FINANCIAL ACCOUNTING STANDARDS COULD ADVERSELY AFFECT OUR RESULTS OF OPERATIONS OR FINANCIAL CONDITION.
Changes in taxation rules and accounting pronouncements (and changes in interpretations of accounting pronouncements) have occurred and may occur in the future. A change in existing taxation rules or accounting standards could have an adverse effect on our reported or future results of operations or financial condition.
THE FAILURE OF ANY BANK IN WHICH WE DEPOSIT OUR FUNDS COULD REDUCE THE AMOUNT OF CASH WE HAVE AVAILABLE FOR OPERATIONS AND ADDITIONAL INVESTMENTS IN OUR BUSINESSES.
The Federal Deposit Insurance Corporation, or FDIC, only insures amounts up to $250,000 per depositor per insured bank. We currently have cash and cash equivalents and restricted cash deposited in certain financial institutions significantly in excess of federally insured levels. If any of the banking institutions in which we have deposited funds ultimately fails, we may lose our deposits over $250,000. The loss of our deposits would reduce the amount of cash we have available for operations and would have a material adverse effect on our financial condition.
RISKS RELATED TO PROPOSED REORGANIZATION INTO A DELAWARE HOLDING COMPANY
OUR BOARD OF DIRECTORS MAY CHOOSE TO DEFER OR ABANDON THE REORGANIZATION.
Completion of the Reorganization may be deferred or abandoned, at any time, by action of our board of directors, whether before or after the Annual Meeting. While we currently expect the Reorganization to take place on or about July 1, 2012, assuming that the Reorganization proposal is approved at the Annual Meeting, ADAs board may defer completion or may abandon the Reorganization because of any determination by our board of directors that the Reorganization would not be in the best interests of ADA or its shareholders or that the Reorganization would have material adverse consequences to ADA or its shareholders.
WE MAY NOT OBTAIN THE EXPECTED BENEFITS OF OUR REORGANIZATION INTO A HOLDING COMPANY.
We believe our Reorganization into a holding company will provide us with benefits in the future. These expected benefits may not be obtained if market conditions or other circumstances prevent us from taking advantage of the strategic, business and financing flexibility that we believe it will afford us. As a result, we may incur the costs of creating the holding company without realizing the possible benefits.
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AS A HOLDING COMPANY, ADES WILL DEPEND IN LARGE PART ON DIVIDENDS FROM ITS OPERATING SUBSIDIARIES TO SATISFY ITS OBLIGATIONS.
After the completion of the Reorganization, ADES will be a holding company with no business operations of its own. Its only significant assets will be the outstanding capital stock of its subsidiaries, which will initially be ADA and its subsidiaries. As a result, ADES will rely on funds from ADA and any subsidiaries that it may form in the future to meet its obligations.
THE MARKET FOR ADES SHARES MAY DIFFER FROM THE MARKET FOR ADA SHARES.
Although it is anticipated that the ADES common shares will be authorized for listing on the NASDAQ Capital Market, the market prices, trading volume and volatility of the ADES shares could be different from those of the ADA shares.
ANTI-TAKEOVER PROVISIONS IN ADESS CERTIFICATE OF INCORPORATION AND BYLAWS MAY DELAY OR PREVENT A THIRD PARTY ACQUISITION OF ADES, WHICH COULD DECREASE THE VALUE OF ADESS COMMON STOCK.
The certificate of incorporation and bylaws of ADES contain provisions that could make it more difficult for a third party to acquire it without the consent of its board of directors. These provisions, the first three of which are currently in effect with respect to ADA, will:
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Limit the business at special meetings to the purpose stated in the notice of the meeting; |
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authorize the issuance of blank check preferred stock, which is preferred stock with voting or other rights or preferences that could impede a takeover attempt and that the board of directors can create and issue without prior stockholder approval; |
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Establish advance notice requirements for submitting nominations for election to the board of directors and for proposing matters that can be acted upon by stockholders at a meeting; and |
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Require the affirmative vote of the disinterested holders of a majority of our common stock to approve certain business combinations involving an interested stockholder or its affiliates, unless either minimum price criteria or procedural requirements are met, or the transaction is approved by a majority of our continuing directors (known as fair price provisions). |
Although we believe all of these provisions will make a higher third-party bid more likely by requiring potential acquirors to negotiate with the board of directors, these provisions will apply even if an initial offer may be considered beneficial by some stockholders and therefore could delay and/or prevent a deemed beneficial offer from being considered.
RIGHTS AFTER THE REORGANIZATION WILL BE DIFFERENT FROM, AND MAY BE LESS FAVORABLE THAN, ADAS SHAREHOLDERS CURRENT RIGHTS AS A SHAREHOLDER OF A COLORADO CORPORATION.
After the completion of the Reorganization, each ADA shareholder will become a stockholder of a public company incorporated in Delaware instead of Colorado. As a result, each ADAs shareholders rights as a stockholder will be governed by Delaware corporate law as opposed to Colorado corporate law. Because they are separate bodies of law, Delaware corporate law will be different from Colorado corporate law. Although many of these differences will not have a significant impact on the rights of stockholders, some of these differences may be more or less favorable to stockholders. Some of the differences between Delaware and Colorado corporate law that may be less favorable to stockholders after the completion of the reorganization include the following:
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Under Delaware corporate law, fewer corporate transactions give rise to dissenters rights than under Colorado corporate law; and |
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Under Delaware corporate law and ADESs bylaws, holders of 20% of the voting shares of ADES will have the right to call a special meeting of stockholders, as opposed to Colorado corporate law, which gives holders of 10% of the voting shares the right to call a special meeting. |
These differences may limit the significance of an ADA shareholders rights as a stockholder in these contexts.
THE PROPOSED REORGANIZATION INTO A HOLDING COMPANY MAY RESULT IN SUBSTANTIAL ADDITIONAL DIRECT AND INDIRECT COSTS WHETHER OR NOT COMPLETED.
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The Reorganization resulted in substantial direct costs when it was first proposed last year. As a result, a substantial portion of the costs associated with the Reorganization, including the related SEC filing fees, were already incurred last year before ADA terminated the Reorganization Agreement in April 2011 due to the adverse ruling in the arbitration with Norit. However, to complete the Reorganization this year, ADA will continue to incur additional costs and expenses, which are expected to consist primarily of attorneys fees, accountants fees, and financial printing expenses and which will be substantially incurred prior to the vote of our shareholders at the Annual Meeting. The Reorganization may also result in certain indirect costs by diverting the attention of our management and employees from our business and by increasing our administrative costs and expenses. These administrative costs and expenses will include keeping separate records and in some cases making separate regulatory filings for each of ADES and ADA. The Reorganization may also result in certain state sales taxes and other transfer taxes.
RISKS RELATING TO OUR COMMON STOCK
A SIGNIFICANT PORTION OF OUR OUTSTANDING SHARES OF COMMON STOCK MAY BE SOLD IN THE PUBLIC MARKET, WHICH COULD LOWER THE MARKET PRICE OF OUR STOCK.
As of March 9, 2012, we had 10,001,809 shares of common stock issued and outstanding. Sales of our common stock, or the perception that such sales might occur, have had and may continue to have a material adverse effect on our stock price.
THE ISSUANCE OF ADDITIONAL SECURITIES COULD DECREASE THE VALUE OF THE OUTSTANDING SHARES OF OUR COMMON STOCK.
On January 28, 2011, we filed a shelf registration to raise $140 million in connection with our fundraising efforts by which we may issue additional shares of common stock or convertible securities with preferences and priorities over those of our common stock. The issuance of any additional securities could dilute the percentage interests and per share book value of existing shareholders and have a detrimental impact on the market for our common stock. For example, in connection with the public offering conducted in October and November of 2011, ADA issued a total of 2.3 million shares of common stock in connection with this public offering, generating total net proceeds of approximately $32.7 million.
THE VOLATILITY OF OUR STOCK PRICE COULD SUBJECT US TO SECURITIES CLASS ACTION LITIGATION.
The market price of our common stock fluctuates significantly. The market price of our common stock may be affected by numerous factors, including:
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Actual or anticipated fluctuations in our operating results and financial condition; |
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Changes in laws or regulations and court rulings; |
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Our ability to permanently place and monetize our RC facilities; |
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Changes in government funding and industry cost share of our projects; |
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Announcements of sales awards; |
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Conditions and trends in our industry; |
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Changes in supply and demand of key equipment and raw materials; |
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Adoption of new accounting standards affecting our industry; |
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Changes in financial estimates by securities analysts; |
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Perceptions of the value of corporate transactions; and |
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The degree of trading liquidity in our common stock and general market conditions. |
From December 31, 2010 to December 31, 2011, the closing price of our common stock ranged from $7.58 to 24.92 per share. Significant declines in the price of our common stock could impede our ability to obtain additional capital, attract and retain qualified employees and reduce the liquidity of our common stock.
In addition, the stock market has from time to time experienced significant price and volume fluctuations that have particularly affected the market prices for the common stock of similarly staged companies. These broad market fluctuations may adversely affect the market price of our common stock. In the past, following periods of volatility in the market price of a particular companys securities, shareholders have often brought class action securities litigation against that company. If class action securities litigation were brought against the Company, such litigation could result in substantial costs and a diversion of managements attention and resources.
OUR ARTICLES OF INCORPORATION AND BYLAWS CONTAIN PROVISIONS THAT MAY DELAY OR PREVENT AN OTHERWISE BENEFICIAL TAKEOVER ATTEMPT OF OUR COMPANY.
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Certain provisions of our articles of incorporation and bylaws could make it more difficult for a third party to acquire us, even if doing so would be beneficial to our shareholders. These include provisions:
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Establishing advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted upon at shareholders meetings; and |
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Allowing our board of directors to issue shares of preferred stock without shareholder approval. |
These provisions, alone or in combination with each other, may discourage transactions involving actual or potential changes of control, including transactions that otherwise could involve payment of a premium over prevailing market prices to holders of our common stock, or could limit the ability of our shareholders to approve transactions that they may deem to be in their best interest.
LACK OF DIVIDENDS MAY MAKE OUR STOCK LESS ATTRACTIVE AS AN INVESTMENT.
We intend to retain all future earnings for our businesses and do not anticipate paying any cash dividends on our common stock for the foreseeable future. Generally, stocks that pay regular dividends command higher market trading prices, and our stock price may therefore be lower as a result of our dividend policy.
WE ARE EXPOSED TO RISKS RELATING TO EVALUATIONS OF CONTROLS REQUIRED BY SECTION 404 OF THE SARBANES-OXLEY ACT OF 2002.
We are required to comply with Section 404 of the Sarbanes-Oxley Act of 2002. While we concluded that at December 31, 2011, we had no material weaknesses in our internal controls over financial reporting, we cannot assure you that we will not have a material weakness in the future. A material weakness is a control deficiency, or combination of significant deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. If we fail to maintain a system of internal controls over financial reporting that meets the requirements of Section 404, we might be subject to sanctions or investigation by regulatory authorities such as the Securities and Exchange Commission or by the NASDAQ Stock Market. Additionally, failure to comply with Section 404 or the report by us of a material weakness may cause investors to lose confidence in our financial statements and our stock price may be adversely affected. If we fail to remedy any material weakness, our financial statements may be inaccurate, we may be subject to shareholder litigation and increases in insurance costs, we may not have access to the capital markets, and our stock price may be adversely affected.
Item 1B. Unresolved Staff Comments.
None.
Item 2. Properties.
Office Leases
ADA currently leases its office facilities and warehouse space in Littleton, Colorado, a suburb of Denver and the term of certain leases runs through August 31, 2012. In October 2011, ADA entered into an Office Building Lease Agreement (the Lease Agreement) with Ridgeline Technology Center, LLC for our lease of approximately 30,000 square feet in the Ridgeline Technology Center B in Highlands Ranch, Colorado. We intend to move our office facilities to this new location in April 2012 and let the other leases described above expire in August 2012.
The term of the Lease Agreement is for 84 months commencing on March 1, 2012. We have two options to extend the term of the Lease Agreement for an additional 60 months each at prevailing fair market rental rates at the times of the extensions. Initial rent will be approximately $27,000 per month, with annual escalations of 2.5% per year. The Lease Agreement is a triple net lease, meaning we will pay our pro rata share of property expenses, taxes, insurance and other costs. The landlord has agreed to provide us with a one-time tenant improvement allowance in an amount up to $478,000 and certain rent abatements as incentives to lease. In the near-term, we believe that sufficient space is available at reasonable rates in areas where we do business.
In February 2012, ADA entered into a new lease agreement covering approximately 15,000 square feet of warehouse space in Highlands Ranch, Colorado, near the new offices. The lease covers five suites in the building with rent for the first two suites beginning in April 2012, an additional two suites beginning in May 2012, and the last suite beginning in September 2012. The lease expires in February 2019 and includes the option to renew for two additional five-year periods. The lease is a triple net lease and also includes a one-time tenant improvement allowance of $150,000. Initial rent will be approximately $9,000 per month once all five suites are occupied.
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Clean Coal Leases
Clean Coal leased two RC Facilities in June 2010 to an independent third party with initial two and one half year terms and annual renewals that were set to expire in 2019. In November and December 2011, Clean Coal entered into transactions to exchange the leased RC facilities with newly constructed, redesigned RC facilities. The leases have initial terms that run through December 31, 2012 and automatically renew for annual terms through 2021, subject to a number of termination clauses. Clean Coal receives fixed and contingent rent payments as defined in the lease agreements. Future minimum fixed rent payments through 2021 total $161 million and do not include contingent rental payments which are based on the production of RC. Clean Coal intends to take possession of the RC facilities upon termination of the leases.
Item 3. Legal Proceedings.
Settlement of Litigation with Norit Americas, Inc. and Norit International N.V. f/k/a Norit N.V. (Norit International) and Issuance of Stipulated Final Awards
As we have previously reported in our Annual Reports on Form 10-K for the years ended December 31, 2010 and 2009, our Quarterly Reports on Form 10-Q filed in 2011 and on Form 8-K filed on August 30, 2011, on August 29, 2011, we and Norit Americas, Inc. and Norit International (collectively Norit) entered into a Settlement Agreement (the ADA Settlement Agreement) pursuant to which we settled all ongoing litigation with Norit to which we and Norit were parties (the Norit Litigation), and Norit entered into a separate settlement agreement (the ECP Settlement Agreement, and together with the ADA Settlement Agreement, the Settlement Agreements) with ECP, Carbon Solutions and certain other subsidiaries of Carbon Solutions (collectively the AC JV Entities) as to the Norit Litigation and other litigation and claims among Norit, ECP and the AC JV Entities.
On October 18, 2011, the panel of three arbitrators overseeing the related arbitration among the parties endorsed and confirmed the terms of the Settlement Agreements and issued confidential, final, confirmable awards (the Stipulated Final Awards) resolving the Norit Litigation.
Background
As previously reported, Norit, which is an AC manufacturer with whom we have previously done business, filed a lawsuit against us, ADA Environmental Solutions LLC, certain AC JV Entities and two employees of Carbon Solutions (who were former employees of Norit) (collectively the ADA Defendants) on August 4, 2008, asserting that the ADA Defendants misappropriated Norits trade secrets related to AC manufacturing, and other claims. The original case, captioned Norit Americas, Inc. v. ADA-ES, Inc., ADA Environmental Solutions, LLC, John Rectenwald, Stephen D. Young, Crowfoot Development, LLC, Red River Environmental Products, LLC, Underwood Environmental Products, LLC, Morton Environmental Products, LLC f/k/a Bowman Environmental Products, LLC, Cause No. 08-0673, was filed in the 71st Judicial District Court for Harrison County, Texas. Norit was seeking monetary damages under various legal theories, attorneys fees, and injunctive relief to prevent us or any related entity or third party from using Norits alleged trade secrets or other Norit intellectual property related to AC manufacturing. As previously reported, after more than a year of litigation in Texas and the filing of cross motions to compel arbitration of all or some of the claims pending between the parties, the parties agreed to resolve all claims between them in an arbitration in Atlanta, Georgia before a panel of three arbitrators (the Panel) under the rules of the American Arbitration Association. In the course of the arbitration, the ADA Defendants and Norit filed statements of claims which added additional claims against each other arising out of their former business relationship including a claim by Norit against ADA for breach of a non-solicitation provision in a Market Development Agreement (MDA), to which ADA and Norit were parties from 2001 until 2006.
On April 8, 2011, the Panel issued an interim award holding ADA liable for approximately $37.9 million in damages for breach of the non-solicitation provision of the MDA (the Non-Solicitation Award), and further holding ADA jointly and severally liable together with other ADA Defendants for payment of a royalty of 10.5% of Gross Revenues (as defined) for the three years beginning in mid-2010, and then 7% of Gross Revenues (as defined) for the following five years (the Running Royalty Award) on certain sales of AC from the production facility owned by Red River. The Running Royalty Award does not require payment of royalties on the sales of AC described in the Non-Solicitation Award. Norit and the ADA Defendants had disputed whether the Running Royalty Award set forth in the Interim Award would apply to AC treated, but not manufactured, using certain of Norits trade secrets (the Treated AC).
Following issuance of the interim award, Norit submitted a claim to the Panel to recover approximately $13 million in attorneys fees and costs allegedly incurred on claims on which Norit had prevailed (Norits Cost Claims). Norit also requested that the Panel impose restrictions on the use and disclosure of its alleged trade secrets, as well as restraints on the disposition of the ADA Defendants assets both to secure the payment of obligations imposed by a final award, and to
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restrain the disposition of the ADA Defendants and ECPs interests in the AC production facilities incorporating Norits trade secrets. The ADA Defendants contested Norits Cost Claims and the additional restrictions and restraints sought by Norit.
In addition, in December 2009, Norit International, the Dutch parent of Norit, filed a petition with the Almelo District Court in the Netherlands requesting that the court conduct preliminary witness examinations into possible breaches of a confidentiality agreement we signed with Norit International in 2005 as part of due diligence for a potential acquisition of Norits AC business (the Netherlands Action). These alleged breaches of the 2005 confidentiality agreement were also the subject of the arbitration.
Norit also had claims pending against ECP in a lawsuit filed in New Jersey Superior Court arising out of ECPs involvement and ownership in the AC JV Entities (the New Jersey Action).
Settlement Terms
The Settlement Agreements settled the Norit Litigation, including the Non-Solicitation Award, administrative aspects of the Running Royalty Award, Norits Cost Claims, the New Jersey Action and the Netherlands Action. The ADA Settlement Agreement provides for the following payments:
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A lump-sum payment of $33 million to Norit which ADA made on August 30, 2011 (the Initial Settlement Payment ) ; and |
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Payment to Norit by ADA of the sum of $7.5 million (the Final Damage Award) over the three-year period commencing on August 29, 2012, payable in three installments without interest of $2.5 million. To secure our obligation to pay this sum, Norit obtained a stipulated judgment in Colorado District Court, and we and Norit entered into a Forbearance Agreement pursuant to which Norit agreed to forbear from collecting on the judgment so long as we timely make the payments on the Final Damage Award. |
Pursuant to the Settlement Agreements, the parties have resolved their dispute regarding royalties payable on Treated AC voluntarily and asked the Panel to amend the Running Royalty Award to require ADA and other ADA Defendants to pay a royalty of 7% for the first three years and 5% for the following five years on Gross Revenues (as defined) for such Treated AC, in addition to the Running Royalty Award percentages described above. The obligation to pay Norit the running royalties pursuant to the Running Royalty Award is a joint and several obligation among ADA and certain AC JV Entities. ADA recorded $1.5 million for royalties with respect to all sales of AC from commencement of operations through December 31, 2011. Amounts due under the Running Royalty Award for each quarter are payable three months after such quarter ends.
The Settlement Agreements include full and complete mutual releases and bars to any claims and potential claims, past, present or future, known or unknown, that the parties or any related person, employee or agent brought or could have brought as part of the Norit Litigation, other than claims that may occur in the future for breach of the Settlement Agreements or the Stipulated Final Awards and claims between ADA, on the one hand, and the AC JV Entities and ECP, on the other hand.
The Stipulated Final Awards issued by the Panel on October 18, 2011 endorse and affirm the Settlement Agreements as outlined above. The appropriate parties filed papers with each court or body in which actions comprising the Norit Litigation were ongoing, and the court has entered stipulations and orders of dismissal.
Item 4. Mine Safety Disclosures
Not applicable.
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PART II
Item 5. Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information
Our common stock currently trades on the NASDAQ Capital Market under the symbol ADES. The table below sets forth the price range of our common stock for each quarter of 2011 and 2010:
2011 | 2010 | |||||||||||||||
High | Low | High | Low | |||||||||||||
1st Quarter |
$ | 24.92 | $ | 10.53 | $ | 9.50 | $ | 4.72 | ||||||||
2nd Quarter |
$ | 24.75 | $ | 7.58 | $ | 8.31 | $ | 5.00 | ||||||||
3rd Quarter |
$ | 19.37 | $ | 13.26 | $ | 7.17 | $ | 4.72 | ||||||||
4th Quarter |
$ | 23.41 | $ | 13.52 | $ | 11.70 | $ | 4.54 |
Holders
The number of record holders of our common stock as of March 9, 2012 was approximately 1,500. The approximate number of beneficial shareholders is estimated at 3,300.
Dividends
We have not paid dividends since inception. We currently have no plans to pay dividends in the foreseeable future.
Securities authorized for issuance under equity compensation plans
The disclosure required by this Item is included under Item 12 of this Report.
Purchases of Equity Securities by the Company and Affiliated Purchasers
Neither we nor any affiliated purchaser, as defined in SEC Rule 10b-18(a)(3), purchased any of our equity securities during the quarter ended December 31, 2011.
Item 6. Selected Financial Data.
FIVE-YEAR SUMMARY OF SELECTED FINANCIAL DATA
00000000 | 00000000 | 00000000 | 00000000 | 00000000 | ||||||||||||||||
(Amounts in thousands, except per share data) | Years Ended December 31, | |||||||||||||||||||
Income Statement Data |
2011 | 2010 | 2009 | 2008 | 2007 | |||||||||||||||
Revenues |
$ | 53,316 | $ | 22,281 | $ | 20,061 | $ | 16,193 | $ | 19,248 | ||||||||||
Net income (loss) |
$ | (19,851 | ) | $ | (15,470 | ) | $ | (8,771 | ) | $ | (4,106 | ) | $ | 247 | ||||||
Net income (loss), per common share, basic and diluted |
$ | (2.48 | ) | $ | (2.09 | ) | $ | (1.26 | ) | $ | (0.67 | ) | $ | 0.05 | ||||||
Dividends declared per common share |
$ | | $ | | $ | | $ | | $ | | ||||||||||
As of December 31, | ||||||||||||||||||||
Balance Sheet Data |
2011 | 2010 | 2009 | 2008 | 2007 | |||||||||||||||
Total assets |
$ | 106,099 | $ | 56,668 | $ | 40,967 | $ | 75,142 | $ | 34,906 | ||||||||||
Long-term debt |
$ | 3,624 | $ | | $ | | $ | | $ | | ||||||||||
Stockholders equity |
$ | 49,179 | $ | 13,444 | $ | 24,351 | $ | 56,987 | $ | 28,552 |
See the audited financial statements attached hereto under Item 8 for additional information.
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QUARTERLY FINANCIAL DATA UNAUDITED
2011 | 2010 | |||||||||||||||||||||||||||||||
1st
Quarter |
2nd
Quarter |
3rd
Quarter |
4th
Quarter |
1st
Quarter |
2nd
Quarter |
3rd
Quarter |
4th
Quarter |
|||||||||||||||||||||||||
(Amounts in thousands, except per share data) | ||||||||||||||||||||||||||||||||
Revenues |
$ | 8,467 | $ | 7,026 | $ | 13,232 | $ | 24,591 | $ | 3,867 | $ | 1,937 | $ | 7,509 | $ | 8,968 | ||||||||||||||||
Gross margin |
$ | 7,173 | $ | 5,369 | $ | 7,154 | $ | 4,656 | $ | 1,355 | $ | 8 | $ | 5,826 | $ | 6,479 | ||||||||||||||||
Net income (loss) |
$ | (27,542 | ) | $ | (2,251 | ) | $ | (3,811 | ) | $ | 13,753 | $ | (2,820 | ) | $ | (3,710 | ) | $ | (5,823 | ) | $ | (3,117 | ) | |||||||||
Common Stock Data |
||||||||||||||||||||||||||||||||
Basic net income (loss) per share |
$ | (3.63 | ) | $ | (0.30 | ) | $ | (0.50 | ) | $ | 1.56 | $ | (0.39 | ) | $ | (0.50 | ) | $ | (0.78 | ) | $ | (0.42 | ) | |||||||||
Diluted net income (loss) per share |
$ | (3.63 | ) | $ | (0.30 | ) | $ | (0.50 | ) | $ | 1.53 | $ | (0.39 | ) | $ | (0.50 | ) | $ | (0.78 | ) | $ | (0.42 | ) |
Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operation.
Overview
We develop, offer and implement proprietary environmental technology and market equipment and specialty chemicals to the coal-burning electric power generating industry, to the Portland cement industry and to industrial boiler operators. We have three operating segments: RC (refined coal), EC (emission control) and CC (CO 2 capture). The RC segment includes revenues from the leasing of two RC facilities and coal sales which approximates the cost of coal acquired to demonstrate new RC facilities placed in service. The EC segment includes revenue from the supply of emissions control systems including powdered activated carbon injection systems (ACI), dry sorbent injection systems (DSI) to control SO 2 and other acid gases and the sale of specialty chemicals, equipment and services for flue gas conditioning projects, the licensing of certain technology, consulting services related to such matters and other applications. The CC segment includes revenue from projects relating to the CO 2 capture and control market, including projects co-funded by government agencies, such as the Department of Energy (DOE) and industry supported contracts.
We conduct research and development efforts in CO 2 capture and control from coal-fired boilers. In September 2010, we signed our second significant contract related to CO 2 capture with the DOE, which is scheduled to continue through the end of 2014. We are marketing our RC facilities through our interest in our Clean Coal joint venture with NexGen, an affiliate of NexGen Resources Corporation.
Refined Coal
Environmental Legislation and Regulations
Clean Coals primary opportunity is based on certain tax credits that are available under Section 45 of the Internal Revenue Code (Section 45 tax credits), as it was amended by the American Jobs Creation Act of 2004, the Emergency Economic Stabilization Act of 2008, the American Recovery and Reinvestment Act of 2009 for qualifying RC and the Tax Relief and Job Creation Act of 2010. In December 2009, the IRS issued the anticipated guidance as to the specifics concerning how the emissions reductions are to be measured and certified to demonstrate compliance necessary to qualify for the Section 45 tax credits. Clean Coal placed two RC facilities in service prior to January 1, 2010 and demonstrated the required emission reductions for their RC product to qualify for the Section 45 tax credits. In December 2010, the Tax Relief and Job Creation Act of 2010 extended the placed in service deadline for the Section 45 tax credits to January 1, 2012. The tax credits amount to an annually escalating $6.33 per ton (in 2011) of RC for a period of ten years.
Clean Coal
On June 29, 2010, Clean Coal executed contracts in which the two RC facilities were leased by Clean Coals wholly owned subsidiaries AEC-TH, LLC and AEC-NM, LLC (the Lessors) to GS RC Investment, LLC (the Lessee), with initial two and one half year terms and annual renewals that were set to expire in 2019. The two facilities are installed at two different power plants in the Midwest each of which operates two cyclone boilers burning PRB coal from Wyoming.
On November 21 and December 15, 2011, Clean Coal, the Lessors and the Lessee entered into two Exchange Agreements (each agreement related to the facility owned by each Lessor) pursuant to which the parties agreed to exchange the leased RC facilities at each power plant with newly constructed, redesigned RC facilities which resulted in termination of the
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original leases and issuance of new lease agreements (the Exchange Transactions). The new leases carry over many of the substantive terms and conditions of the initial leases, have initial terms that run through December 31, 2012 (the Initial Term) and automatically renew for annual terms through 2021.
Each lease may be terminated by the Lessee for various reasons, the most significant of which are:
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For any reason as of the end of the Initial Term by giving notice by no later than July 1, 2012. |
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If the Total Operating Expenses (as defined in each lease) paid by the Lessee for two consecutive quarters exceed 140% of the projected operating costs for the RC facility. |
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If any of Lessors representations or warranties were breached as of the date made and such breach is not cured within 30 days after notice. |
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If a change of law, or certain other specified events affecting the availability of the Section 45 tax credits, occurs. |
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Upon the occurrence of a governmental regulatory event that would make the contemplated transaction impermissible. |
In June 2010, the Lessee entered into supply agreements for each RC facility pursuant to which it continues to supply RC to the applicable power plant owner. Clean Coal Solution Services (CCSS), a Colorado limited liability company owned 50% by us and 50% by NexGen, will (subject to oversight by the Lessee) continue to operate and maintain the RC facilities under two Operating and Maintenance Agreements entered into with the Lessee in June 2010. CCSS also arranges for the purchase and delivery of certain chemical additives necessary for Lessees production of RC under two supply agreements entered into with the Lessee as part of the original transaction. The term of each supply agreement runs coincident with the leases.
We control and consolidate the results of Clean Coal in our financial statements, but do not consolidate the results of CCSS because NexGen controls the entity pursuant to the operating agreement of the entity. Historically, the utilities at which the facilities operate have used over six million tons of coal per year, which amount can vary based on several factors. The total annual contribution to our operating income will ultimately depend on the utilities use of coal in the generation of electricity, which use will likely fluctuate over the term of the Section 45 tax credits. In order to maintain our interest in Clean Coal, we are obligated to fund half of its operating costs and capital expenditures.
We, Clean Coal and the Lessee also entered into a technology sublicense, as amended pursuant to two amendments entered into as part of the Exchange Transactions (the Technology Sublicense). Pursuant to the Technology Sublicense, we licensed and Clean Coal sublicensed to the Lessee certain technology required to operate each RC facility and to produce RC. The Technology Sublicense parallels the license previously granted by us to Clean Coal and requires that we stand behind Clean Coal if it fails to perform its obligations under the sublicense, other than as a result of a default by Lessee. The Technology Sublicense contains representations and warranties customary for such agreements regarding intellectual property, and, subject to certain liability limits, requires us to indemnify the Lessee in the event of certain infringement claims by a third party. We are also obligated to actively prosecute infringement of the technology by third parties, or to cooperate with the Lessee if it does so, in which case any award would go to the Lessee and any other sublicensee who prosecutes the infringement. The annual license fee payable to Clean Coal for the sublicense is $10,000 per year, but this amount is deductible from the amount the Lessee pays in rent under the leases.
In addition, pursuant to the Exchange Transactions, we, NexGen and two entities affiliated with NexGen have provided the Lessee with new joint and several guaranties (the CCS Guaranties) guaranteeing all payments and performance due under the agreements described above. We also entered into a contribution agreement (the Contribution Agreement) with NexGen under which any party called upon to pay on a CCS Guaranty is entitled to receive contribution from the other party equal to 50% of the amount paid. The parent of Lessee provided Clean Coal with a guaranty as to the payment only of all fixed rent payments under the leases, which, although terminable at any time, cannot be terminated without the substitution of such guaranty with another guaranty on similar terms from a creditworthy guarantor
In December 2010, the Tax Relief and Job Creation Act of 2010 extended the placed in service deadline for the Section 45 tax credits to January 1, 2012. In consideration of the extension, Clean Coal built and qualified an additional 26 RC facilities using a combination of the CyClean and M-45 technologies, which met the extended placed in service date. ADA expects several of these RC facilities to begin routine operations in 2012. Once the final utility site and financing partner have been determined, it takes an average of approximately six months to obtain environmental permits for full-time operation, secure necessary approvals from state Public Utility Commissions, negotiate and complete all necessary contracts and obtain private letter rulings (PLRs) from the IRS in some instances where plants blend different types of coal. Since the IRS did not provide explicit guidance on blending of coal to qualify for Section 45 tax credits, some of these facilities will likely require PLRs, which may take two to three months to obtain after formal contracts are completed. Clean Coal has received $14.9 million from our first monetizer as initial deposits on 15 million tons of RC, which reserves its right to negotiate for specific RC facilities. We are currently in discussions with a number of other major financial institutions and corporate investors to reserve the right to negotiate on a number of the remaining facilities.
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We expect that the transactions for the new leases of the new RC facilities over the next year will be structured similarly to the lease transactions previously entered into for the two initial RC facilities placed in service in June of 2010. As was the case in those transactions, generally the lease of the RC facilities and the monetization of the Section 45 tax credits involve a relationship between the utility, a financial institution and Clean Coal. By leasing the RC facility and producing RC, the financial institution receives the benefit of the annually escalating per ton Section 45 tax credit ($6.33 per ton in 2011) and is able to deduct depreciation. In return it pays, and may also deduct, a fee to the utility for land use to site the RC facility and operational costs. In addition, the financial institution pays a combination of fixed and contingent rents to Clean Coal for the lease of the RC facility. In addition to the site payment, the utility receives the benefit of the resulting mercury reductions which have an estimated value of between $1.00- $4.00 per ton. In some transactions, Clean Coal may choose to operate the facility in order to directly receive the benefit of the Section 45 tax credit.
In May 2011, ADA and NexGen entered into a transaction in which Clean Coal sold an effective 15% interest of its equity, equal to approximately 15.8 units of non-voting Class B membership interests, to an affiliate of GS for $60 million in cash (the Purchase Price) pursuant to a Class B Unit Purchase Agreement (the Purchase Agreement). In conjunction with the closing of the Purchase Agreement, we, NexGen and GS entered into a Second Amended and Restated Operating Agreement for Clean Coal (the Restated Operating Agreement) and an Exclusive Right to Lease Agreement (the Lease Agreement). Pursuant to the Restated Operating Agreement, we and NexGen each exchanged 50 units of membership interests in Clean Coal for approximately 42.1 voting Class A Units in Clean Coal, representing a total of approximately 84.2% of the equity interests in Clean Coal following the transaction. ADA and NexGen each received $30 million as a result of the sale, and subsequent to the transaction with GS, NexGen paid the Company the remaining balance due of $1.8 million as payment in full of the amount owing by NexGen to maintain its interest in Clean Coal, including payment in full of all other amounts owing to us totaling $480,000 under certain previously issued tonnage notes.
Pursuant to the transaction with GS, we and NexGen provided GS with joint and several guarantees (the Limited Guarantees) guaranteeing the performance by Clean Coal of its obligation to indemnify GS against certain losses it may suffer as a result of inaccuracies or breaches of the representations and warranties made by Clean Coal in the Purchase Agreement or the Lease Agreement, or if Clean Coal breaches its covenants in the Purchase Agreement or the Lease Agreement. Clean Coals indemnification obligations for breaches of representations, warranties and covenants, other than for breaches of the representations involving organization, subsidiaries, capitalization and voting rights, authority and non-contravention and valid issuance, are subject to a non-recoverable deductible of $500,000 and a cap of the Purchase Price. We also entered into a contribution agreement with NexGen under which any party called upon to pay on a Limited Guaranty is entitled to receive contribution from the other party equal to 50% of the amount paid.
The rights and obligations of the parties are set forth in detail in the Restated Operating Agreement, which provides, among other related terms and conditions, that prior to April 1, 2012, Distributable Cash (as defined in the Restated Operating Agreement) will be distributable approximately 84.2% to us and NexGen as holders of the Class A Units and approximately 15.8% to GS as the holder of the Class B Units. Given the 2.5% direct interest both we and NexGen retain in subsidiaries of Clean Coal previously formed to operate any RC facilities, the effective sharing ratio of net cash generated by all expected refined coal operations is 15% to GS and 85% to us and NexGen. Beginning with distributions made after December 31, 2012, Clean Coal must distribute no less than 70% of Distributable Cash, at least annually. Within 10 days of April 1, 2012, Clean Coal must calculate a Projected Distributable Value, which is defined in the Restated Operating Agreement as an estimated amount equal to the net present value, using a 15% discount rate, that Clean Coal projects it will receive through the end of the term of all effective (i.e., contractually committed) RC facilities. For distributions occurring after April 1, 2012, if 15.8% of the Projected Distributable Value is equal to or greater than GS Unrecovered Investment Balance (which is the dollar amount necessary, at any given time, to return GS at least its $60 million investment, plus a 15% return thereon, taking into account all prior distributions to GS), GS is entitled to receive 15.8% of each distribution. If the Projected Investment Value (which is 15.8% of the Projected Distributable Value) is less than the Unrecovered Investment Balance as of the time for any given distribution, then an adjustment will be made to the distribution ratios to compensate GS for this deficiency. This adjustment is to be updated from time to time over the life of the investment, and at any time when Projected Investment Value becomes equal to or greater than GS Unrecovered Investment Balance, the amount payable to GS again becomes 15.8% of the distribution (or a lesser amount if amounts previously distributed have resulted in overpayments to GS). Clean Coal may make greater distributions to GS than required at any given time in order to shorten the time in which the Unrecovered Investment Balance will be reduced to $0.
In addition, the Restated Operating Agreement provides that upon the occurrence of a Liquidation Event (as defined in the Restated Operating Agreement), GS will be entitled to receive the greater of (A) a liquidation preference in an amount equal to the Unrecovered Investment Balance as of the date of such Liquidation Event (the Liquidation Preference) or (B) GS pro rata share of the proceeds from such Liquidation Event.
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Furthermore, the Restated Operating Agreement states that on or after the earlier of (i) a breach of any material provision of the Purchase Agreement or Clean Coals organizational documents that is not cured in accordance with the Restated Operating Agreement and that results in damages to GS of at least $10 million or (ii) the ten year anniversary of the date the last refined coal facility owned by Clean Coal or one of its subsidiaries is placed in service (but in no event later than December 31, 2021), and if the Unrecovered Investment Balance has not been reduced to zero, GS may require its Class B Units to be redeemed by Clean Coal for an amount equal to its Unrecovered Investment Balance, payable within 180 days of the notice of redemption. In addition, the Restated Operating Agreement contains provisions in regard to GS right to a board observer, each parties rights and obligations with respect to capital calls, preemptive rights, approval of certain transactions, drag-along and tag-along rights, a covenant not to compete, an obligation for us to present certain related business opportunities to Clean Coal for its consideration and related matters.
Pursuant to the Lease Agreement, Clean Coal granted GS the exclusive right (but not the obligation) to lease facilities that will produce up to approximately 12 million tons (+/- 10%) (the Target Tons) of refined coal per year on pre-established lease terms similar to those currently in effect for Clean Coals two existing facilities, but which are more economically favorable to Clean Coal than the rates in the present leases for the existing refined coal facilities that Clean Coal leased to another GS affiliate in June 2010. Clean Coal is required to submit a package to GS with respect to each RC facility it proposes that GS consider for leasing (being all RC facilities developed by Clean Coal until the Target Tons are met), and upon certification and acceptance of the certification for a given RC facility by GS, GS is required to pay Clean Coal, as a deposit, an agreed amount for each 1 million tons of projected annual refined coal production. Upon closing of a lease of a RC facility from Clean Coal, GS is required to pay Clean Coal an additional amount per 1 million tons of projected annual refined coal production. These payments are paid as advance rent, and actual amounts due under the leases (with true-ups) will be paid in accordance with the operative lease and related agreements, which will be based on the forms of documents that were used in the transactions for the existing RC facilities leased to the Lessee and will include guaranties by us and NexGen. The initial lease terms will be five years, with annual renewals for five successive one-year periods. If GS determines that it wishes not to lease a RC facility after it has paid the deposit, it can demand the return of the deposit paid for that RC facility, and the deposit must be paid within 30 days of the end of the quarter in which the demand is made. The amount of any deposit will earn interest from the date of demand until the deposit is paid.
In connection with the transaction, including the entry into the Lease Agreement, Clean Coal and the Lessee agreed to cancel the existing first right of refusal that was previously granted to the Lessee under the existing agreement to lease in connection with the leasing by the Lessee of two existing RC facilities. Under the cancelled first right of refusal the Lessee had the first right to lease RC facilities with up to 14 million tons of refined coal production per year.
In September 2011, ADA, NexGen, and GS entered into a First Amendment to the Restated Operating Agreement pursuant to which we and NexGen each transferred our 2.5% member interests in each of Clean Coals subsidiaries back to Clean Coal in return for an increase in our interest in Clean Coal to 42.5% from 42.1%. This restructuring of ownership interests did not change the financial relationships of the parties.
In September 2011, we successfully demonstrated a new patent-pending technology for producing RC for use at coal-fired power plants. ADAs new technology, called M-45, complements and expands ADAs market for RC beyond its patented CyClean technology licensed to Clean Coal, which is limited to cyclone boilers. During full-scale tests the M-45 technology achieved greater than 20% reduction in emissions of NOx and greater than 40% reduction in mercury emissions, thus demonstrating that this new technology also meets the standards necessary to qualify for IRS Section 45 tax credits.
In November 2011, we signed a non-binding term sheet for an exclusive license of the new M-45 RC technology to Clean Coal in order to leverage Clean Coals operating expertise, to place as many facilities in service before the year-end placed in service deadline and to take advantage of the other synergies that can be obtained by Clean Coal having the ability to provide and use either the CyClean or M-45 technology. With this license, Clean Coal could provide customers with both the patent-pending M-45 technology and ADAs patented CyClean technology to produce RC that qualifies for Section 45 tax credits. This allows Clean Coal to potentially use some facilities placed in service using CyClean technology to treat larger annual volumes of coal if applied at a different plant using the M-45 technology.
We expect the license, which is subject to due diligence and negotiation and closing of definitive agreements, will provide ADA with a royalty based on a percent of operating income from future production of RC produced with the M-45 technology and prepaid royalties that included an initial refundable payment of $2 million, which was eliminated in the consolidation, paid to ADA upon signing of the term sheet with additional refundable payments of up to $8 million upon meeting certain milestones. The prepaid royalty payments are refundable via a withholding from 50% of future distributions or payments to ADA from Clean Coal if certain conditions are not satisfied.
To date, Clean Coal has installed and operated a total of 26 additional RC systems using a combination of the CyClean and M-45 technologies. We expect that each of these RC facilities satisfies the placed in service requirements from initial operations. If all planned RC systems become fully operational, after obtaining environmental permits for full-time operation and completing all necessary contracts, they could produce a total of more than 60 million tons of RC per year.
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Our RC business opportunities do not depend upon any new environmental or tax regulations. The current ten year tax credits do not require any additional approval by Congress, which provides us with a high degree of confidence that Clean Coal and the M-45 technologies will generate long-term cash flows.
ADA expects to generate pre-tax income of greater than $1.00 per ton of RC produced per year for facilities leased to others after payments to its joint venture partners of Clean Coal for the ten year life of the tax credits. From RC facilities leased to others, ADA expects revenue and earnings before interest and taxes (EBIT) of approximately $100 million and $50 million per year, respectively, by the end of 2012, with the potential to double the revenue and EBIT figures by the end of 2013. During 2012, new facilities are also expected to generate greater than $70 million in cash receipts from prepaid rent for Clean Coal. Clean Coal is also evaluating plans to keep as much as 20% of the RC volume to offset federal tax obligations. For the RC production that Clean Coal retains, in addition to operating costs, Clean Coal will record coal sales and costs of coal that may be significant, which will result in increased revenues (over and above the revenue increases from the monetized RC facilities) and expenses, and will likely keep margin dollars similar to levels as if the RC was not retained. As a result, we expect that ADAs corporate tax rate will decrease to approximately 10%.
Emission Control
Many power companies recognize the urgency of the issued and pending environmental regulations, and as a result are contracting with us to evaluate mercury and acid gas control options at a number of their plants. Utilities need to know as soon as possible whether their existing EC components are sufficient to meet the new emissions standards with the installation of low capital systems such as ACI and DSI systems. If utilities need to upgrade their equipment with new large capital equipment such as fabric filters or SO 2 scrubbers, they need to quickly begin procurement of these systems due to long required lead times. As a result we expect additional near-term ACI and DSI demonstration revenue and further bidding on related ACI and DSI equipment.
Activated Carbon Injection and Dry Sorbent Injection Systems
To date, we have obtained contracts for or are in the process of installing 50 ACI systems intended to control mercury emissions from 55 coal-fired EGU boilers. Some market demand continues in 19 states and six Canadian provinces that either have passed their own mercury control regulations or have entered agreements with power plants to reduce mercury emissions for new power plants. We remain active in the bid and proposal process and bid activity picked up in the second half of 2011 on individual and fleet wide projects due to the anticipated release of the final MATS that occurred in December. We anticipate the need for 400 to 600 ACI systems to be supplied between 2012 and 2015, which would require rapid scale-up of our production capabilities to maintain our target and present 35% market share. For an average size EGU, the ACI equipment costs are between $600,000 and $ 1 million.
In addition to the mercury control applications for ACI systems, we have also developed and are offering commercial DSI systems to inject dry alkali sorbents for control of acid gases such as SO 3 and HCl as well as for control of the criteria pollutant SO 2 . DSI systems, which cost approximately $2 million to $3 million for an average size EGU, provide a low CAPEX alternative to scrubbers for meeting certain provisions of the MATS and CSAPR. We conducted full-scale tests of the DSI equipment in 2010 and 2011 for the control of HCl, SO 2 and SO 3 on plants burning bituminous, PRB, and lignite coals. We believe several contracts for ACI and DSI systems will be awarded this year and that MATS will generate up to $300 million in sales of both ACI and DSI systems for the Company.
Enhanced Coal
Since 2004, we have been working with Arch Coal to explore certain unique characteristics of some types of coals mined by Arch Coal that allow them to be burned with lower emissions. We believe a technical breakthrough that involves the application of proprietary chemicals to coal mined by Arch Coal in the PRB likely reduces emissions of mercury and other metals when this enhanced PRB coal (Enhanced Coal) is eventually burned at power plants. As a result, on June 25, 2010, we entered into a Development and License Agreement (the License Agreement) with Arch Coal. Pursuant to the License Agreement, we provided Arch Coal with an exclusive, non-transferable license to use certain technology to produce Enhanced Coal by the application of ADAs proprietary coal treatment technology to Arch Coals PRB mined coal. We expect that use of this Enhanced Coal will help utilities meet the mercury emissions requirements in the MATS. Pursuant to the License Agreement, we are providing development services to Arch Coal aimed at applying the technology to the PRB coal. In addition, if we develop improvements to the technology that are related to the reduction of certain emissions from the burning of PRB coal, that technology will either be included in the license at no additional cost, or, under certain circumstances, we will negotiate with Arch Coal to determine if Arch Coal wants to
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use the additional improvements. We retain all right, title and interest, including all intellectual property rights, in and to any technology we license to Arch Coal. The initial demonstration of coal treated at the mine and shipped by rail to a power plant produced promising results.
In consideration for the development work and the license to Arch Coal, Arch Coal paid us an initial, non-refundable license and development fee in cash totaling $2 million in June 2010 and we recognized $1.3 million as revenue in 2011 and $.7 million in 2010. Under the License Agreement, we are entitled to royalties of as much as $1 per ton of a portion of the premium for Enhanced Coal sold by Arch Coal, depending upon the successful implementation of the technology and the premium Arch Coal is able to charge on future sales of the Enhanced Coal product. Any royalty ultimately payable under the License Agreement will first be subject to credit to Arch Coal of an amount equal to the initial license fee, other development and operational costs paid by Arch Coal plus a rate of return on such payments.
We believe the Enhanced Coal product may provide a $1 to $4 per ton of coal benefit to power plants. The MATS will likely create a market for reduction in mercury emissions for a significant percentage of the greater than 100 million tons per year of PRB coal mined by Arch Coal. Because of our focus on placing in service additional RC facilities prior to the end of 2011, we decided to delay additional demonstrations of our Enhanced Coal product. We expect to resume these tests in 2012, which is expected to provide sufficient time to further develop the technology and grow this business as the national mercury control market expands through 2015.
As a part of entering into the License Agreement we agreed to negotiate and enter into a Supply Agreement under which Arch Coal will purchase the additives described in the License Agreement exclusively from us, and we will supply Arch Coal with the additives it needs. We expect to finalize the terms of the Supply Agreement in 2012.
CO 2 Capture
In addition to our two key growth areas, RC and emission control, we continue to demonstrate our position as a premier developer of innovative clean energy technologies. We expect that CO 2 capture technologies will be required to control CO 2 emissions from coal-fired power plants in the future as a result of the impact of CO 2 emissions on climate change. A number of permits for new coal-fired plants were rejected by various state officials in response to protests by environmental groups. We see this as an opportunity and continue to develop technologies to address the long-term needs of our customers to reduce CO 2 from their existing and new plants.
On December 15, 2009, EPA issued an endangerment finding that triggered a Clean Air Act requirement that the agency regulate CO 2 emissions from stationary sources such as power plants. Industry and states have filed an extensive consolidated litigation before the U.S. Court of Appeals for the District of Columbia Circuit challenging numerous aspects of EPAs Greenhouse Gas (GHG) rules. The U.S. Court of Appeals for the D.C. Circuit is considering arguments regarding EPAs guidance memo on the timing of GHG regulations, such as when GHGs become a regulated pollutant under the Clean Air Act and thus New Source Review (NSR) and Prevention of Significant Deterioration (PSD) regulations apply.
EPA anticipates proposing its first new source performance standards (NSPS) for CO 2 emissions from new power plants within the next few months as a result of a separate settlement with states and environmental groups in 2010.
DOE is funding CO 2 control projects and in September 2010, we signed a contract with DOE to continue development of clean coal technology to capture CO 2 from coal-fired power plants and other industrial sources of CO 2 emissions. The agreements with the DOE provide that any inventions we create as a result of the work become our property and we retain the rights to commercialize any products we develop under the contracts. We participated in two such agreements in 2011 pursuant to which we are researching and developing a novel process to capture CO 2 from coal-fired power plants.
In 2010 we began the first field tests of our CO 2 control technology on a $3.8 million program co-funded by DOE, as well as several major forward-thinking utility companies. The initial results at a plant confirmed the promising performance we had demonstrated in our laboratory. The pilot plant was moved to another plant for additional testing. Once captured, the CO 2 could be either stored underground (sequestration) or beneficially used in processes such as enhanced oil recovery. This technology appears to offer potential cost and energy advantages over competing liquid-solvent-based technologies.
In October 2010, we began work on a second major CO 2 project, which is expected to run for a total of 51 months to scale-up the technology to the one-megawatt level, which is a key step in the technology development process. We are the prime contractor for the approximately $19 million project administered by DOEs National Energy Technology Laboratory which is providing $15 million of the funding. The project provides funding to advance our commercialization plan for regenerable solid-sorbent technology, which is designed to capture CO 2 generated by coal-fired power plants.
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We have completed the first budget period of the 51-month DOE project. Continued project funding is dependent on approval of the DOE and our industry partners. We anticipate the DOE will make a positive decision about continuation within the next few months.
We anticipate that DOE funded CO 2 programs will continue to represent an important component of the revenue stream of the Company over the next several years as we position ourselves for the market growth for ACI systems, enhanced coal additives and related technology with Arch Coal and other technologies for emissions control.
Results of Operations 2011 versus 2010
Revenues totaled $53.3 million for 2011 versus $22.3 million in 2010, representing an increase of 139%. The change is due primarily to revenues from operations at the RC facilities we leased to a third party and coal sales for new RC placed in service facilities plus a 49% increase in our CC segment revenues. We expect overall revenues for 2012 to be significantly higher than those reported for 2011.
Cost of revenues increased by $20.3 million or 236% in 2011 from 2010 primarily as a result of costs of coal incurred related to demonstration and testing by Clean Coal of new RC facilities. In addition, costs increased in the CC segment due to the increased activity in this segment and in the EC segment due to the hiring of additional staff required to meet expected growth in this segment. Gross margins were 46% for the year compared to 61% in 2010. The decrease primarily reflects such increased costs. For the near term, we expect the RC segment to represent an increasing source of revenues, for which the anticipated gross margins are higher than our EC and CC segments. As a result, we expect the gross margin for fiscal year 2012 to be higher than the overall margin realized in 2011.
Refined Coal
Revenues in our RC segment totaled $40.3 million in 2011 compared to $10.4 million in 2010, representing an increase of 288%. The two operating RC facilities were placed into routine operations during the second quarter of 2010 and were in operation throughout 2011. In addition to recognition of rental income totaling $20.1 million from the two operating facilities, the current year includes sales of RC totaling $20 million as a result of demonstrating and placing additional RC facilities into service. We expect our quarterly revenues to continue to fluctuate based on seasonal variations in electricity demand as well as planned and unplanned outages required by the power plants for equipment repair and maintenance. On an ongoing basis, we expect the two RC facilities to process approximately 6 million tons of RC annually, qualifying for the present $6.33 per ton Section 45 tax credit through 2021.
Cost of revenues for the RC segment increased by $18.8 million or 1303% for 2011 from 2010. Costs increased in 2011 due primarily to the cost of coal acquired to test new RC facilities which costs approximate the revenues realized on its sale noted above, due to the RC facilities being in operation for a full year, and an increase in activities undertaken to place additional facilities into service. We expect future RC margins irrespective of coal purchases and sales to be at a level near 90%.
RC segment profits increased by $10.1 million or 129% for 2011 compared to 2010 as the two facilities were leased for the full year in 2011 and placed in routine operation in the middle of 2010. These amounts are prior to the allocation of such profits to the non-controlling interest of Clean Coal.
Emission Control
Revenues in our EC segment totaled $10 million in 2011 compared to $9.8 million in 2010, representing an increase of 1%. The amounts reported for 2011 and 2010 excludes the work ADA has conducted for Clean Coal, as further described below, which was eliminated in our consolidation. Revenues from the EC segment for the year ended December 31, 2011 were comprised of sales of ACI systems and services (42%), flue gas chemicals and services (9%) and other services (49%), compared to 56%, 6%, and 38%, respectively, in 2010. For the near term, we expect the consulting services in our EC segment to increase as a percentage of EC revenues as the industry seeks to analyze and evaluate the MATS. We expect our EC segment revenues related to ACI systems to start growing in 2012 when we expect utilities, cement plants and industrial boilers to start reacting to the MATS and other MACT regulations. We expect overall gross margin dollars for the EC segment for 2012 to be higher than amounts achieved in 2011 due to increased equipment sales and consulting activity.
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Our consulting revenues increased $1.3 million during 2011 compared to 2010 as a result of continued demonstrations and other work related to recent changes with the MATS and included revenues totaling $1.3 million from our Arch Coal non-refundable license. Our consulting revenues contributed $4.9 million during 2011 and we expect our consulting revenue to increase for the next year as several customers are seeking advice on how best to comply with the MATS.
As of December 31, 2011, we had contracts in progress for work related to our EC segment totaling $736,000 which we expect to recognize as revenue in 2012. Our ACI systems revenues totaled $4.1 million for 2011, representing a decrease of 25% compared to 2010. In the EC segment, we performed work related to RC systems provided to Clean Coal valued at $8.3 million and $3.7 million for the years ended December 31, 2011 and 2010, respectively, which would otherwise be recognized as revenue but was eliminated in the consolidation of Clean Coal. The amounts for 2010 include our participation in the construction and installation of the initial RC facilities. In 2011, Clean Coal utilized a number of third-party resources to construct and install the new RC facilities. However, we provided services toward the construction and installation of 26 facilities in 2011 as compared to 2 facilities in 2010.
Cost of revenues for the EC segment increased by $732,000 or 12% in 2011 from 2010, primarily as a result of increased costs related to our ACI systems activities including hiring additional staff required for expected growth. Gross margin for the EC segment was 31% for 2011 compared to 38% for 2010. The decrease in gross margin from the prior year is primarily a result of the increase in costs related to our ACI systems.
EC segment profits decreased by $764,000 or 36% for 2011 compared to 2010. The decrease was primarily a result of costs associated with hiring additional staff required for expected growth in future ACI systems sales.
CO 2 Capture
Revenues in our CC segment totaled $3.1 million in 2011 compared to $2.1 million in 2010 representing an increase of 49%. We had outstanding DOE contracts, including anticipated industry cost share in progress totaling $15.7 million as of December 31, 2011. We expect to recognize approximately $5.6 million from these contracts in 2012 including participation by other industry partners. As discussed above, back on September 30, 2010 we signed a contract on a DOE project totaling approximately $19 million (including expected contributions by other industry partners).
Cost of revenues for the CC segment increased by $858,000 or 80% for 2011 from 2010, primarily from increased activities related to our development of CO 2 capture technology. Gross margin for this segment was 38% in 2011 compared to 49% in 2010. The decrease in gross margin from 2011 to 2010 is due primarily to greater use of subcontractors for which our margins are lower under these projects. Lower cost share participation from third parties also contributed to higher costs and lower margins. We expect overall gross margins for the CC segment for 2012 to be lower than the levels achieved in 2011, due to our likely share of costs and the mixture of direct costs (labor versus equipment) associated with this segment.
CC segment profits decreased by $654,000 or 73% for 2011 compared to 2010. As discussed above, the decrease was primarily the result of greater use of subcontractors and lower cost share participation by others.
Our contracts with the government are subject to audit by the federal government, which could result in adjustments to previously recognized revenue. Our historical experience with these audits has not resulted in significant adverse adjustments to amounts previously received; however the audits for the years 2004 and later have not been finalized. Revenues recognized from 2005 through 2011 that are subject to government audit totaled approximately $32 million. In addition, we had $15.7 million of remaining unearned amounts under contracts subject to audit as of December 31, 2011. We believe, however, that we have complied with all requirements of the contracts and future adjustments, if any, will likely not be material. In addition, the federal government must appropriate funds on an annual basis to support DOE contracts, and funding is always subject to unknown and uncontrollable contingencies.
Other Items
General and administrative expenses decreased by $15.3 million or 47% to $17.5 million in 2011. Legal costs decreased $20.4 million or 83% in 2011 primarily due to a decrease in non-routine expenses associated with litigation and settlements which totaled $24.5 million in 2010. We believe our legal expenses have now returned to more routine levels. This decrease was offset by increases in compensation costs and other general and administrative costs totaling $1.5 million and $3.6 million, respectively, from 2010 which are primarily due to a 46% increase in staff in anticipation of increased business. We expect general and administrative expenses to increase as we continue to add additional resources to prepare for increased business opportunities over that time. We expect general and administrative expenses to be approximately $4 million per quarter for ADA and as much as $1 million per quarter for CCS in 2012.
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We incur research and development (R&D) expenses not only on direct activities that we conduct but also by sharing a portion of the costs in the government and industry programs in which we participate. Total R&D expense increased by $1.4 million or 151% in 2011 compared to 2010 as a result of increases in RC and CC activities. We incurred $343,000 for direct cost share for R&D under DOE related contracts in 2011. We had no significant direct cost share for R&D under DOE related contracts in 2010. The increase in total R&D is related to preparing for growth in the delivery of our ACI systems, as well as our RC activities. Future consolidated research and development expenses, except for those anticipated to be funded by the DOE contracts and others that may be awarded, are expected to be higher in 2012 compared to 2011. We continue to anticipate that our future R&D expenses will grow in direct proportion to DOE funded CO 2 work we perform for the next several years and other technology development we choose to pursue.
We had net other income including interest of $2.2 million in 2011 compared to $2.5 million in 2010 related primarily to interest on notes receivable and other amounts received from NexGen. We had interest expense of $1.6 million in 2011 related to the line of credit and deferred gain for income tax purposes on the Clean Coal lease transactions. There was $16,000 in interest expense in 2010. We recognized $42 million in expenses in 2011 related to the Norit matter, and a $20 million gain from the settlement with Carbon Solutions/ECP as discussed below. We recognized a net $6.1 million gain in 2010 related to the settlement with our damage claim against Calgon Carbon Corporation (Calgon) also as discussed below.
In November 2011, an Indemnity Settlement Agreement was entered into whereby ADA agreed to settle certain indemnity obligations asserted against ADA and relinquished all of its interest in the Carbon Solutions joint venture with ECP. The interest in Carbon Solutions was accounted for under the equity method of accounting and considerable losses had been recorded since its inception in 2008. We recorded the transactions resulting from the Indemnity Settlement Agreement for the satisfaction of the indemnity obligations and the relinquishment of ADAs interest which resulted in a gain of $20 million which is included other income (loss) in the consolidated statements of operations.
ADAs equity in the net loss of Carbon Solutions for 2011 and 2010 totaled $7.2 million and $8.2 million, respectively and is included in other income (expense) in the consolidated statement of operations. The amount is reported net of our equity in the net income of CCSS which amounted to $189,000 and $118,000 for 2011 and 2010, respectively.
The income tax provisions for 2011 and 2010 represent an effective tax benefit rate of approximately 53% and 42%, respectively, for the years ended December 31, 2011 and 2010. No unrecognized tax benefits were recorded as of December 31, 2011. The primary jurisdictions in which we file income tax returns are the U.S. federal government and State of Colorado. We are no longer subject to U.S. federal examinations by tax authorities for years before 2008 and Colorado state examinations for years before 2007. Our income tax rate does not include any material amount of Section 45 tax credits from Clean Coal as those tax benefits will primarily be realized by the Lessee under the RC facilities leases.
The net operating loss from continuing operations before income tax benefit and non-controlling interest was $25.2 million in 2011 compared to a net operating loss of $20.4 million in 2010. The net operating loss is due in large part to the costs associated with our settlement of litigation involving Norit and our equity in the losses incurred by Carbon Solutions.
Results of Operations 2010 versus 2009
Revenues totaled $22.3 million for 2010 versus $20.1 million in 2009, representing an increase of 11%. The change is due primarily to initiation of revenues from operations at the RC facilities we leased to a third party offset by the decrease in our EC segment revenues.
Cost of revenues decreased by $5.3 million or 38% in 2010 from 2009 primarily as a result of decreased revenues in our EC segment and lower RC segment costs described below. Gross margin was 61% for the year compared to 31% in 2009. The increase primarily reflects the increased RC margins and revenues as described below.
Refined Coal
Revenues in our RC segment totaled $10.4 million in 2010 versus $2.6 million in 2009, representing an increase of 301%, as the leased RC facilities initiated routine operations. As discussed above, in June 2010 we leased the two RC facilities and earn related rent revenues, which began in July 2010.
Cost of revenues for the RC segment decreased by $1.9 million or 57% for 2010 from 2009, primarily due to the two RC facilities ramping up production levels in the fourth quarter of 2010. In 2009, we recorded the sales of RC which were made essentially on a cost basis with no margin.
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RC segment profits increased by $9.2 million or 697% for 2010 compared to 2009 as the two facilities were leased and placed in routine operation in the middle of 2010.
Emission Control
Revenues in our EC segment totaled $9.8 million in 2010 versus $15.9 million in 2009, representing a decrease of 38%. The amounts reported for 2010 and 2009 excludes the work ADA conducted for Clean Coal, as further described below, which was eliminated in our consolidation. Revenues from the EC segment for the year ended December 31, 2010 were comprised of sales of ACI systems and services (56%), flue gas chemicals and services (6%) and other services (38%), compared to 66%, 2%, and 32%, respectively, in 2009.
Our consulting revenues decreased $1.3 million during 2010 compared to 2009 as we completed nearly all of our mercury control demonstrations and analysis. Such decline is offset by our Arch Coal non-refundable license revenue. Our consulting revenues contributed $3.6 million during 2010.
As of December 31, 2010, we had contracts in progress for work related to our EC segment totaling approximately $2.9 million. Our ACI systems revenues totaled $5.5 million for 2010, representing a decrease of 48% compared to 2009. In the EC segment, we performed work related to RC systems provided to Clean Coal valued at $3.7 million and $1.3 million for the years ended December 31, 2010 and 2009, respectively, which would otherwise be recognized as revenue but was eliminated in the consolidation of Clean Coal.
Cost of revenues for the EC segment decreased by $3.4 million or 36% in 2010 from 2009, primarily as a result of the decreased revenue-generating activities from our ACI system sales. Gross margins for this segment were 38% in 2010 compared to 40% for 2009. The decrease in gross margins from the prior year is primarily a result of the impact of our consulting and ACI system margins.
EC segment profits decreased by $3.2 million or 60% for 2010 compared to 2009. The decrease was primarily a result of decreased ACI systems sales.
CO 2 Capture
Revenues in our CC segment totaled $2.1 million versus $1.5 million for 2009 representing an increase of 36%. As discussed above, on September 30, 2010 we signed a contract on a DOE project totaling approximately $19 million (including expected contributions by other industry partners) with work ramping up in the fourth quarter of 2010.
Cost of revenues for the CC segment increased by $97,000 or 10% for 2010 from 2009, primarily from increased activities related to our development of CO 2 capture technology. Gross margins for this segment were 49% for 2010 compared to 37% for 2009. The increase in gross margins from 2010 to 2009 is due primarily to the increased work being performed under these projects.
CC segment profits increased by $546,000 or 156% for 2010 compared to 2009. The increase was primarily the result of increased activities related to our development of CO 2 capture technology, which ramped up significantly in 2010.
Other Items
General and administrative expenses increased by $16 million or 96% to $32.8 million in 2010. The dollar increase for 2010 resulted primarily from legal costs related to our legal proceedings with Norit and Calgon, which comprised approximately 75% of the overall general and administrative expense for 2010.
We incur R&D expenses not only on direct activities we conduct but also by sharing a portion of the costs in the government and industry programs in which we participate. Total R&D expense increased by $202,000 or 28% in 2010 compared to 2009 as a result of increases in RC and CC activities. We had no significant direct cost share for R&D under DOE related contracts in either 2010 or 2009. The increase in total R&D is related to preparing for growth in the delivery of our ACI systems, as well as our RC activities.
We had net interest and other income of $8.6 million in 2010 compared to $34,000 for 2009. In December 2010, we accepted a $7.2 million payment (recognized a net of $6.1 million after payment of certain contingent legal fees) and recognized income related to the settlement of our damage claim against Calgon. In addition, during the second quarter of 2010, we recognized approximately $1.8 million related to the notes payable delivered by NexGen, by which NexGen paid us as a portion of the amounts required to maintain its interest in Clean Coal. Such payments were recorded as other income. During the second half of 2010, we recognized approximately $200,000 in interest and other income related to the notes receivable and other amounts due from NexGen.
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The income tax provisions for 2010 and 2009 represent an effective tax rate benefit of approximately 42% and 37%, respectively, for the years ended December 31, 2010 and 2009. No unrecognized tax benefits were recorded as of December 31, 2010. Our income tax rate does not include any material amount of Section 45 tax credits from Clean Coal as those tax benefits will primarily be realized by the Lessee under the RC facilities leases.
In June 2009, our partner in the Carbon Solutions joint venture, ECP, converted a portion of its preferred equity contributions in Carbon Solutions to ordinary capital contributions thereby reducing our ownership interest below 50%. Accordingly, we deconsolidated Carbon Solutions in June 2009 as we no longer held a controlling interest and began to account for our investment in Carbon Solutions under the equity method of accounting. Additional preferred equity contributions were converted and common equity contributions were made by ECP since that time and our interest in Carbon Solutions decreased to 25.9% as of December 31, 2010. Our net investment of $13.6 million as of December 31, 2010 in Carbon Solutions was accounted for under the equity method of accounting. Accordingly, our equity in the net loss of Carbon Solutions for the year ended December 31, 2010 is recognized in other income (expense) in the consolidated statement of operations and our investment in Carbon Solutions was reduced by our respective share of such loss. For 2010, we recorded a loss of $8.0 million, which represents our share of Carbon Solutions net loss for the year. The amount is reported net of our equity in the net income of CCSS which amounted to $118,000 for the year.
The net operating loss from continuing operations attributable to ADA was $20.4 million in 2010 compared to a net operating loss of $15 million in 2009. The net operating loss is due in large part to the costs associated with our litigation matters involving Norit and Calgon and the losses incurred by Carbon Solutions. We would have a net income after tax of approximately $5.1 million or $0.69 per share for the year excluding the non-routine legal expenses related to the Calgon and Norit matters and disregarding the non-cash loss from Carbon Solutions.
Liquidity and Capital Resources
Our principal sources of liquidity are our anticipated cash flows from RC activities and other operations and net proceeds of $32.7 million from the sale of 2.3 million shares of our common stock that occurred in October and November of 2011. We had consolidated cash and cash equivalents totaling $40.9 million at December 31, 2011 compared to consolidated cash and cash equivalents of $9.7 million at December 31, 2010.
At December 31, 2011, we had working capital of $3.8 million compared to $10.1 million at December 31, 2010. We have recorded long-term liabilities of $5 million related to the final settlement obligations related to the Norit matter, and $200,000 related to the Carbon Solutions/ECP settlement as of December 31, 2011. We have additional long-term liabilities of $3.6 million for the long-term portion of the CCS line of credit, and $632,000 for accrued warranty and other liabilities as of December 31, 2011.
Decreases in working capital during 2011 resulted primarily from:
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$33 million payment and $2.5 million accrual related to the Norit matter, |
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$2.2 million in payments and $1.4 million accrual related to the Carbon Solutions/ECP settlement, and |
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$33.7 million in capital expenditures including amounts to construct, install and place in service 26 additional RC facilities. |
The above were offset by increases in cash and cash equivalents which included:
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$32.7 million from the public sale of 2.3 million shares of our common stock, |
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$30 million from the sale of an effective 15% interest in the equity of Clean Coal to GS, |
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$3 million from NexGen on notes receivable and other payments to maintain its interest in Clean Coal, |
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$14.5 million for net borrowings under the Clean Coal line of credit, and |
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Prepaid deposits for new systems placed in service and rents received related to the lease of Clean Coals RC facilities, net of current deferred revenues. |
Our stockholders equity was $49.2 million as of December 31, 2011 compared to $13.4 million as of December 31, 2010. The increase is primarily due to the sale of equity in Clean Coal to GS, net of taxes, the sale of common stock in November and December of 2011 and the gain from the Carbon Solutions/ECP settlement offset by the settlement payment and expenses related to the Norit matter.
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Our ability to maintain the financial liquidity required to meet ongoing operational needs will likely depend upon several factors, including our ability to maintain a significant share of the market for emissions control equipment, Clean Coals continued operation of the two RC facilities placed in service and success in monetizing Section 45 tax credits through the sale or lease a portion of the additional 26 facilities placed in service in 2011 to third party investors.
Clean Coal Related Items
Clean Coal, our joint venture with NexGen, placed two RC production facilities into service in 2010 (which were exchanged for two newly constructed, redesigned RC facilities in November and December 2011), which are leased to a third party. Based on the amount of RC that we expect will be produced from these RC facilities, we expect to recognize pre-tax tax cash flows between $7 to $10 million per year through 2021, the expected period for which Section 45 tax credits are available for these facilities.
NexGen elected to retain its interest in Clean Coal by paying us $4 million plus interest. In addition, we, NexGen and two entities affiliated with NexGen have provided Clean Coals sublessee with joint and several guaranties guaranteeing any payments and performance due the lessee under the various agreements Clean Coal executed in the lease of the RC facilities.
Other Liquidity and Capital Resource Items
Our trade receivables balance is comprised of both amounts billed to customers as well as unbilled revenues that have been recognized. As of December 31, 2011 our trade receivables balance was $5.9 million, which was offset by billings in excess of recognized income of $173,000 or a net of $5.7 million compared to $8.6 million at December 31, 2010. Our trade receivables balance was lower at December 31, 2011 compared to 2010 primarily due to the nature and timing of our billing milestones for our ACI systems contracts and the significant level of work performed for Clean Coal in the fourth quarter of 2011, the receivables for which are eliminated in consolidation.
Under our defined contribution and 401(k) retirement plan, in 2011 and 2010 we matched up to 7% of limited salary amounts deferred by employees in the Plan. During 2011 and 2010, we recognized $349,000 and $282,000, respectively, of matching expense which payment was made with our stock. In 2011, we made a discretionary contribution in the form of our stock and recorded $220,000 of expense related thereto. We did not make any such discretionary contributions in 2010. Our matching expense is expected to amount to $460,000 for 2012 depending on employee participation in the plan.
We had recorded net current deferred tax assets of $2.4 million and long-term deferred tax assets of $16.2 million as of December 31, 2011 compared to net current deferred tax asset of $188,000 and net long-term deferred tax assets of $15.4 million as of December 31, 2010. We believe that it is more likely than not that our deferred tax assets will be realized in the future. The change is largely a result of our loss and tax credits generated in 2011.
Cash flows used in operations totaled $8 million for 2011 compared to cash provided by operations of $11.7 million in 2010. The decrease in operating cash flows primarily resulted from increases in prepaid and other assets of $1.3 million, accounts payable and other liabilities of $7.1 million, deposits of $14.9 million and obligations related to Norit and the Carbon Solutions/ECP settlement of $8.3 million. These increases were offset by decreases in our accounts receivable of $3.2 million and deferred revenue and other liabilities of $4.6 million. These changes in our operating assets and liabilities correspond to the nature and timing of our procurement and billing cycle and development activities. In addition, adjustments related to our net loss of $19.9 million for non-cash operating activities, which included expenses paid with stock and restricted stock of $1.1 million, depreciation and amortization of $1.6 million, non-controlling interest in Clean Coal of $8 million and our net equity in the net income/loss of unconsolidated entities of $7 million, offset by the gain on relinquishment of our interest in Carbon Solutions of $20 million, all of which increased our cash flow during 2011, and were partially offset by an increase in recorded deferred tax benefits of $13.4 million.
Net cash used by investing activities was $2.2 million for 2011 compared to $3.1 million for 2010. The cash used consisted primarily of purchases of equipment and costs to build the 26 additional RC facilities of $33.8 million. Offsetting cash provided by investing activities were payments received from NexGen related to their note receivable of $1.6 million and cash received from GS for purchase of their interest in Clean Coal of $30 million.
Cash provided by financing activities was $41.4 million in 2011 compared to cash used in financing activities of $356,000 in 2010. Cash provided during 2011 consisted of advances on the line of credit of $14.5 million, $250,000 in capital contributions by the non-controlling interest in Clean Coal and the sale of stock for proceeds totaling $35.1 million and the exercise of stock options totaling $106,000. Uses of cash consisted of the distribution by Clean Coal to the non-controlling interest of $6.2 million and stock issuance and registration costs of $2.4 million.
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We had the following contractual commitments as of December 31, 2011:
Payment Due by Period | ||||||||||||||||||||
Total | 2012 |
2013 and
2014 |
2015 and
2016 |
2017 and
Beyond |
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(in thousands) | ||||||||||||||||||||
Purchase obligations |
$ | 410 | $ | 410 | $ | | $ | | $ | | ||||||||||
Operating lease obligations |
3,044 | 214 | 690 | 999 | 1,141 | |||||||||||||||
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Total |
$ | 3,044 | $ | 214 | $ | 690 | $ | 999 | $ | 1,141 | ||||||||||
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Off-Balance Sheet Arrangements
We do not have any significant off-balance sheet arrangements except for the operating leases disclosed above and the commitments and contingencies disclosed in Note 9 of our consolidated financial statements contained in Item 8 of this Annual Report.
Critical Accounting Policies and Estimates
Revenue Recognition We follow the percentage of completion method of accounting for all significant contracts excluding RC leases, government contracts, coal and chemical sales and technology license royalties. The percentage of completion method of reporting income takes into account the estimated costs to complete and estimated gross margin for contracts in progress. RC base rents, which are fixed, are recognized over the life of the lease. RC contingent rents are recognized as they are earned. We recognize revenue on government contracts generally based on the time and expenses incurred to date. Royalties from technology licenses are recognized when earned.
Significant estimates are used in preparation of our financial statements and include:
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our allowance for doubtful accounts, which is based on historical experience; |
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our warranty costs; |
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our expectation that it is more likely than not that our deferred tax assets will be realized in the future; |
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our percentage of completion method of accounting for significant long-term contracts, which is based on estimates of gross margins and of the costs to complete such contracts; and |
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the period over which we estimate we will earn up-front license payments. |
In addition, amounts invoiced for government contracts are subject to change based on the results of future audits by the federal government. We have not experienced significant adjustments in the past, and we do not expect significant adjustments will be required in the future. We also use our judgment to support the current net book value of goodwill and other intangible assets of $789,000 on the consolidated balance sheets. Management believes the value of other recorded intangibles is not impaired, although market demand for our products and services could change in the future, which would require a write-down in recorded values. As with all estimates, the amounts described above are subject to change as additional information becomes available, although we are not aware of anything that would cause us to believe that any material changes will be required in the near term.
Under certain contracts we may grant performance guaranties or equipment warranties for a specified period and the achievement of certain plant operating conditions. In the event the equipment fails to perform as specified, we are obligated to correct or replace the equipment. Estimated warranty costs are recorded at the time of sale based on current industry factors. The amount of the warranty liability accrued reflects our best estimate of expected future costs of honoring our obligations under the warranty section of each contract. We believe the accounting estimate related to warranty costs is a critical accounting estimate because changes in it can materially affect net income, it requires us to forecast the amount of equipment that might fail to perform in the future, and it requires a large degree of judgment.
Income taxes are accounted for under the asset and liability approach. Under this method, deferred tax assets and liabilities are recognized for the expected future tax consequences of differences between the carrying amounts of assets and liabilities and their respective tax bases using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period when the change is enacted. Deferred tax assets may be reduced by a valuation allowance if and when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. The change in laws can have a material effect on the amount of income tax we are subject to. We are not aware of anything that would cause us to believe that any material changes will be required in the near term.
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We recognize all share-based payments, including grants of stock options, restricted stock units and employee stock purchase rights in our financial statements based upon their respective grant date fair values. Under this standard, the fair value of each employee stock option and employee stock purchase right is estimated on the date of grant using an option pricing model that meets certain requirements. We currently use the Black-Scholes option pricing model to estimate the fair value of our stock options and stock purchase rights. The Black-Scholes model meets the requirements of FASB Topic 718 but the fair values generated by the model may not be indicative of the actual fair values of our equity awards, as it does not consider certain factors important to those awards to employees, such as continued employment and periodic vesting requirements. The determination of the fair value of share-based payment awards utilizing the Black-Scholes model is affected by our stock price and a number of assumptions, including expected volatility, expected life and risk-free interest rate. We use a historical volatility rate on our stock options. The fair value of our restricted stock is based on the closing market price of our Common Stock on the date of grant. If there are any modifications or cancellations of the underlying securities, we may be required to accelerate, increase or cancel any remaining unearned stock-based compensation expense. To the extent that we grant additional equity securities to employees or we assume unvested securities in connection with any acquisitions, our stock-based compensation expense will be increased by the additional unearned compensation resulting from those additional grants or acquisitions.
Consolidation of Subsidiaries Our equity partner in Clean Coal, NexGen, paid us $4 million to maintain its interest in Clean Coal. We believe our 42.5% interest and other elements of our participation constitutes control of Clean Coal and, therefore, have consolidated its accounts with ours.
We hold a 50% interest in CCSS. However, we control only two of the five seats on the board of managers and our equity partner controls the other three seats. Therefore, we believe our 50% interest does not constitute control of CCSS and we have recorded our interest under the equity method.
Recently Issued Accounting Policies
In September 2011, the Financial Accounting Standards Board issued updated guidance allowing the use of a qualitative approach to test goodwill for impairment. The updated guidance would permit the Company to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of one of its reporting units is less than its carrying value. If the Company concluded that this is the case, it is then necessary for the Company to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. The updated guidance is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011 with early adoption permitted. The Company is currently evaluating the impact of our pending adoption of this update.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Commodity Price Risk
In the normal course of our business, we are exposed to market risk or price fluctuations related to the goods and services we procure related to our revenue-producing activities. Components of ACI and DSI systems and consulting services, which are or may be significant to such revenue producing activities, have market prices that fluctuate regularly, but not widely. In most cases we can pass such price fluctuations on to our customers. Based on the 2011 procurement of ACI and DSI components and consulting services, a hypothetical 10% increase (or decrease) in the price of such components and consulting services, if such fluctuations could not be passed on to our customers, would result in a pretax loss or gain of $235,000.
Interest Rate Risk
As of December 31, 2011, approximately $31 million of the cash and cash equivalents and investments in certificates of deposit were invested in interest-bearing accounts. Clean Coal has a line of credit of approximately $14.5 million as of December 31, 2011 that bears interest at the higher of the prime rate (as defined in the credit agreement) or 5% per annum. The effective interest rate was 5% as of December 31, 2011. A hypothetical change of 10% in the Companys effective interest rate from the year end 2011 rate would not have materially affected our financial statements.
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Item 8. Financial Statements and Supplementary Data.
Our Financial Statements can be found at pages F-1 through F-26 of this report.
Index to Financial Statements |
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F-2 | ||||
Financial Statements: |
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ADA-ES, Inc. and Subsidiaries |
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F-4 | ||||
Consolidated Statements of Operations, For the Years Ended December 31, 2011, 2010 and 2009 |
F-5 | |||
F-6 | ||||
Consolidated Statements of Cash Flows, For the Years Ended December 31, 2011, 2010 and 2009 |
F-7 | |||
F-8 |
Item 9. Changes In and Disagreements With Accountants on Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
We conducted an evaluation under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. The term disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by the company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commissions rules and forms. Disclosure controls and procedures also include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the companys management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded as of December 31, 2011 that our disclosure controls and procedures are effective.
Managements Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining effective internal control over financial reporting. Internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) is defined as a process designed by, or under the supervision of, a companys principal executive and financial officers, or persons performing similar functions, and effected by a companys board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external reporting purposes in accordance with generally acceptable accounting principles and includes those policies and procedures that: (a) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (b) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (c) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the companys assets that could have a material effect on the financial statements.
A material weakness is a control deficiency, or combination of control deficiencies, that result in more than a remote likelihood that a material misstatement of annual or interim financial statements will not be prevented or detected. Our management assessed our internal control over financial reporting as of December 31, 2011. Management based its assessment on criteria set forth in the framework in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on our assessments, we believe that, as of December 31, 2011, our internal control over financial reporting is effective based on those criteria.
Ehrhardt Keefe Steiner & Hottman PC, an independent registered public accounting firm, has audited our Consolidated Financial Statements included in this Form 10-K, and as part of the audit, has issued a report, included herein, on the effectiveness of our internal control over financial reporting as of December 31, 2011.
40
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting during the most recently completed fiscal quarter that have materially affected, or are likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information.
None
PART III
Item 10. Directors, Executive Officers, and Corporate Governance.
The information required by this item is incorporated by reference from the information contained under the captions Election of Directors, Experience and Qualifications of Director Nominees, Corporate GovernanceDirector Independence, Corporate GovernanceBoard Meetings and Committees, Corporate GovernanceAudit Committee, Corporate GovernanceNominating and Governance Committee, Executive Officers, Corporate GovernanceCode of Ethics and Executive CompensationSection 16(a) Beneficial Ownership Reporting Compliance in our definitive Proxy Statement for the 2012 Annual Meeting of Shareholders (2012 Proxy Statement) to be filed within 120 days after the end of our fiscal year ended December 31, 2011.
Item 11. Executive Compensation.
The information required by this item is incorporated by reference from the information contained under the captions Corporate GovernanceCompensation Committee, Executive Compensation, Director Compensation and Stock Incentive Plans in our 2012 Proxy Statement.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by this item is incorporated by reference from the information contained under the caption Security Ownership of Principal Shareholders and Management and Related Stockholder Matters and Equity Compensation Plan Information in our 2012 Proxy Statement.
Item 13. Certain Relationships and Related Transactions and Director Independence.
The information required by this item is incorporated by reference from the information contained under the captions Certain Relationships and Related Transactions, Election of Directors and Director Independence in our 2012 Proxy Statement.
Item 14. Principal Accountant Fees and Services.
The information required by this item is incorporated by reference from the information contained under the captions Relationship with Independent Certified Public Accountants and Audit Committee Approval of Services in our 2012 Proxy Statement.
41
PART IV
Item 15. Exhibits and Financial Statement Schedules.
(a) | The following documents are filed as part of this Annual Report on Form 10-K: |
(1) | Financial Statements see Part II, Item 8, which is incorporated herein by this reference; |
(2) | Financial Statement Schedules None required or applicable; and |
(3) | Exhibits as described in the following index. |
Index to Exhibits
42
43
10.53 | Amendment No. 1 to the ADA-ES 2007 Equity and Incentive Plan*,** | |
21.1 | Subsidiaries of ADA-ES, Inc.* | |
23.1 | Consent of Ehrhardt Keefe Steiner & Hottman PC* | |
31.1 | Certification of Chief Executive Officer of ADA-ES, Inc. Pursuant to 17 CFR 240.13a-14(a) or 17 CFR 240.15d-14(a)* | |
31.2 | Certification of Chief Financial Officer of ADA-ES, Inc. Pursuant to 17 CFR 240.13a-14(a) or 17 CFR 240.15d-14(a)* | |
32.1 | Certification of Chief Executive Officer of ADA-ES, Inc. Pursuant to 18 U.S.C Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002* | |
32.2 | Certification of Chief Financial Officer of ADA-ES, Inc. Pursuant to 18 U.S.C Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002* | |
101 | The following financial statements, formatted in XBRL: (i) Consolidated Balance Sheets as of December 31, 2011 and 2010, (ii) Consolidated Statements of Operations for the years ended December 31, 2011, 2010 and 2009, (iii) Consolidated Statements of Changes in Stockholders Equity for the years ended December 31, 2011, 2010 and 2009, (iv) Consolidated Statements of Cash Flows for the years ended December 31, 2011, 2010 and 2009; and (v) Notes to the Consolidated Financial Statements, tagged as blocks of text. The information in Exhibit 101 is furnished and not filed as provided in Rule 401 of Regulation S-T. |
Notes:
* | Filed herewith. |
** | Management contract or compensatory plan or arrangement. |
*** | Portions of this exhibit have been omitted pursuant to a request for confidential treatment. The non-public information has been separately filed with the Securities and Exchange Commission. |
(1) | Incorporated by reference to Exhibit 3.1 to the Form 10-QSB for the quarter ended September 30, 2005 filed on November 10, 2005 (File No. 000-50216). |
(2) | Incorporated by reference to Exhibit 3.2 to the Form 10-Q for the quarter ended September 30, 2010 filed on November 12, 2010 (File No. 000-50216). |
(3) | Incorporated by reference to Exhibit 4.1 to the Form 8-K dated October 21, 2005 filed on October 26, 2005 (File No. 000-50216). |
(4) | Incorporated by reference to Exhibit 10.1 to the Form 8-K dated October 21, 2005 filed on October 26, 2005 (File No. 000-50216). |
(5) | Incorporated by reference to the same numbered Exhibit to the Form 10-KSB for the year ended December 31, 2005 filed on March 30, 2006 (File No. 000-50216). |
(6) | Incorporated by reference to Exhibit A to Exhibit 10.1 to the Form S-3 filed on October 18, 2004 (File No. 333-119795). |
(7) | Incorporated by reference to the same numbered Exhibit to the Form 10-Q for the quarter ended September 30, 2008 filed on November 07, 2008 (File No. 000-50216). |
(8) | Incorporated by reference to Exhibit 4.1 to the form S-8 filed on June 3, 2009 (File No. 333-159715). |
(9) | Incorporated by reference to Exhibit 4.1 to the form S-8 filed on June 3, 2009 (File No. 333-159715). |
(10) | Incorporated by reference to Exhibit 4.2 to the form S-8 filed on June 3, 2009 (File No. 333-159715). |
(11) | Incorporated by reference to Exhibit 4.9 to the Form 10-K for the year ended December 31, 2010 filed on March 28, 2011 (File No. 000-50216). |
(12) | Incorporated by reference to Exhibit 4.4 to the form S-8 filed on June 3, 2009 (File No. 333-159715). |
(13) | Incorporated by reference to Exhibit 4.1 to the Form 10-Q for the quarter ended March 31, 2010 filed on May 13, 2010 (File No. 000-50216). |
(14) | Incorporated by reference to Exhibit 4.12 to the Form 8-K dated September 9, 2011 filed on September 14, 2011 (File No. 000-50216). |
(15) | Incorporated by reference to Exhibit 4.13 to the Form 8-K dated September 9, 2011 filed on September 14, 2011 (File No. 000-50216). |
(16) | Incorporated by reference to Exhibit 4.1 to the Form 10-Q for the quarter ended March 31, 2010 filed on May 13, 2010 (File No. 000-50216). |
(17) | Incorporated by reference to Exhibit 10.2 to the Form 10-KSB for the year ended December 31, 2005 filed on March 30, 2006 (File No. 000-50216). |
(18) | Incorporated by reference to Exhibit 99.2 to the Form S-8 filed on November 14, 2003 (File No. 333-110479). |
(19) | Incorporated by reference to Exhibit 99.1 to the Form S-8 filed on February 6, 2004 (File No. 333-112587). |
(20) | Incorporated by reference to Exhibit 99.3 to the Form S-8 filed on December 14, 2004 (File No. 333-121234). |
(21) | Incorporated by reference to Exhibit 10.23 to the Form 10-KSB for the year ended December 31, 2004 filed on March 30, 2005 (File No. 000-50216). |
(22) | Incorporated by reference to Exhibit 10.24 to the Form 10-KSB for the year ended December 31, 2004 filed on March 30, 2005 (File No. 000-50216). |
44
(23) | Incorporated by reference to Exhibit 10.25 to the Form 10-KSB for the year ended December 31, 2004 filed on March 30, 2005 (File No. 000-50216). |
(24) | Incorporated by reference to Exhibit 10.26 to the Form 10-KSB for the year ended December 31, 2004 filed on March 30, 2005 (File No. 000-50216). |
(25) | Incorporated by reference to Exhibit 99.1 to the Form S-8 filed on April 16, 2004 (File No. 333-114546). |
(26) | Incorporated by reference to Exhibit 10.29 to the Form 10-KSB for the year ended December 31, 2005 filed on March 30, 2006 (File No. 000-50216). |
(27) | Incorporated by reference to Exhibit 10.2 to the Form 10-Q for the quarter ended September 30, 2006 filed on November 8, 2006 (File No. 000-50216). |
(28) | Incorporated by reference to Exhibit 10.3 to the Form 10-Q for the quarter ended September 30, 2006 filed on November 8, 2006 (File No. 000-50216). |
(29) | Incorporated by reference to Exhibit 10.33 to the Form 10-Q/A for the quarter ended June 30, 2010 filed on September 28, 2011 (File No. 000-50216). |
(30) | Incorporated by reference to Exhibit 10.34 to the Form 10-K for the year ended December 31, 2006 filed on March 27, 2007 (File No. 000-50216). |
(31) | Incorporated by reference to Exhibit 10.35 to the Form 10-K for the year ended December 31, 2006 filed on March 27, 2007 (File No. 000-50216). |
(32) | Incorporated by reference to Exhibit 10.79 to the Form 10-Q for the quarter ended September 30, 2010 filed on November 12, 2010 (File No. 000-50216). |
(33) | Incorporated by reference to Exhibit 10.39 to the Form 10-K for the year ended December 31, 2007 filed on March 14, 2008 (File No. 000-50216). |
(34) | Incorporated by reference to Exhibit 10.43 to the Form 10-K for the year ended December 31, 2007 filed on March 14, 2008 (File No. 000-50216). |
(35) | Incorporated by reference to Exhibit 10.56 to the Form 10-Q for the quarter ended September 30, 2008 filed on November 07, 2008 (File No. 000-50216). |
(36) | Incorporated by reference to Exhibit 10.64 to Form 10-K for the year ended December 31, 2009 filed on March 29, 2010 (File No. 000-50216). |
(37) | Incorporated by reference to Exhibit 10.66 to Form 10-K for the year ended December 31, 2009 filed on March 29, 2010 (File No. 000-50216). |
(38) | Incorporated by reference to Exhibit 10.71 to the Form 10-Q for the quarter ended June 30, 2010 filed on August 16, 2010 (File No. 000-50216). |
(39) | Incorporated by reference to Exhibit 10.74 to the Form 10-Q for the quarter ended June 30, 2010 filed on August 16, 2010 (File No. 000-50216). |
(40) | Incorporated by reference to Exhibit 10.76 to the Form 10-Q for the quarter ended June 30, 2010 filed on August 16, 2010 (File No. 000-50216). |
(41) | Incorporated by reference to Exhibit 10.77 to the Form 10-Q for the quarter ended June 30, 2010 filed on August 16, 2010 (File No. 000-50216). |
(42) | Incorporated by reference to Exhibit 10.78 to the Form 10-Q for the quarter ended June 30, 2010 filed on August 16, 2010 (File No. 000-50216). |
(43) | Incorporated by reference to Exhibit 10.80 to the Form 10-Q for the quarter ended September 30, 2010 filed on November 12, 2010 (File No. 000-50216). |
(44) | Incorporated by reference to Exhibit 10.81 to the Form 10-K for the year ended December 31, 2010 filed on March 28, 2011 (File No. 000-50216). |
(45) | Incorporated by reference to Exhibit 10.83 to the Form 10-Q for the quarter ended March 31, 2011 filed on May 13, 2011 (File No. 000-50216). |
(46) | Incorporated by reference to Exhibit 10.84 to the Form 10-Q/A for the quarter ended June 30, 2011 filed on September 28, 2011 (File No. 000-50216). |
(47) | Incorporated by reference to Exhibit 10.85 to the Form 10-Q/A for the quarter ended June 30, 2011 filed on September 28, 2011 (File No. 000-50216). |
(48) | Incorporated by reference to Exhibit 10.86 to the Form 10-Q for the quarter ended June 30, 2011 filed on August 12, 2011 (File No. 000-50216). |
(49) | Incorporated by reference to Exhibit 10.87 to the Form 10-Q for the quarter ended June 30, 2011 filed on August 12, 2011 (File No. 000-50216). |
(50) | Incorporated by reference to Exhibit 10.88 to the Form 10-Q for the quarter ended September 30, 2011 filed on November 14, 2011 (File No. 000-50216). |
(51) | Incorporated by reference to Exhibit 10.89 to the Form 10-Q for the quarter ended September 30, 2011 filed on November 14, 2011 (File No. 000-50216). |
(52) | Incorporated by reference to Exhibit 10.90 to the Form 10-Q for the quarter ended September 30, 2011 filed on November 14, 2011 (File No. 000-50216). |
(53) | Incorporated by reference to Exhibit 10.91 to the Form 8-K dated November 21, 2011 filed November 22, 2011 (File No. 000-50216). |
45
(b) | See (a)(3) above. |
(c) | See (a)(2) above. |
46
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Exchange Act, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
ADA-ES, Inc. | ||||
(Registrant) | ||||
By |
/s/ Mark H. McKinnies |
/s/ Michael D. Durham |
||
Mark H. McKinnies, Senior Vice | Michael D. Durham | |||
President and Chief Financial Officer | President (Chief Executive Officer) | |||
(Principal Financial and Accounting Officer) | ||||
Date: March 15, 2012 | Date: March 15, 2012 |
Pursuant to the requirements of the Exchange Act, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
/s/ Robert E. Shanklin |
/s/ Walter P. Marcum |
|
Robert E. Shanklin, Director | Walter P. Marcum, Director | |
Date: March 15, 2012 | Date: March 15, 2012 | |
/s/ Jeffrey C. Smith |
/s/ Michael D. Durham |
|
Jeffrey C. Smith, Director | Michael D. Durham, Director | |
Date: March 15, 2012 | Date: March 15, 2012 | |
/s/ Mark H. McKinnies |
/s/ Ronald B. Johnson |
|
Mark H. McKinnies, Director | Ronald B. Johnson, Director | |
Date: March 15, 2012 | Date: March 15, 2012 | |
/s/ Robert N. Caruso |
/s/ Richard Swanson |
|
Robert N. Caruso, Director | Richard Swanson, Director | |
Date: March 15, 2012 | Date: March 15, 2012 | |
/s/ Derek C. Johnson |
||
Derek C. Johnson, Director | ||
Date: March 15, 2012 |
47
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
ADA-ES, Inc. and Subsidiaries
Littleton, Colorado
We have audited the accompanying consolidated balance sheets of ADA-ES, Inc. and Subsidiaries (collectively, the Company) as of December 31, 2011 and 2010 and the related consolidated statements of operations, changes in stockholders equity, and cash flows for each of the three years in the period ended December 31, 2011. We also have audited the Companys internal control over financial reporting as of December 31, 2011, based upon the criteria established in Internal Control Integrated Framework , issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company was not required to have, nor were we engaged to perform, an audit of the Companys internal control over financial reporting as of December 31, 2010. Accordingly, we express no such opinion as of December 31, 2010. The Companys management is responsible for these financial statements and for maintaining effective internal control over financial reporting, included in the accompanying Management Report on Internal Control over Financial Reporting included in Item 9A. Our responsibility is to express an opinion on these consolidated financial statements and an opinion on the Companys internal control over financial reporting based on our audits.
We conducted our audits in accordance with standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform our audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the consolidated financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control, based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinion.
F-2
Board of Directors and Stockholders of
ADA-ES, Inc. and Subsidiaries
Page Two
A companys internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A companys internal control over financial reporting includes those policies and procedures that: 1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; 2) provide reasonable assurance that transactions are recorded as necessary to permit accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and 3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the Companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the accompanying consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of ADA-ES, Inc. and Subsidiaries as of December 31, 2011 and 2010 and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2011, in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, ADA-ES, Inc. and Subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December 31, 2011 based on criteria established in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
/s/ Ehrhardt Keefe Steiner & Hottman PC
March 15, 2012
Denver, Colorado
F-3
Consolidated Balance Sheets
December 31, 2011 and 2010
( Amounts in thousands, except share data )
2011 | 2010 | |||||||
ASSETS | ||||||||
Current Assets : |
||||||||
Cash and cash equivalents |
$ | 40,879 | $ | 9,696 | ||||
Receivables, net of allowance for doubtful accounts |
5,914 | 9,066 | ||||||
Investment in securities |
508 | 505 | ||||||
Notes receivable |
| 1,580 | ||||||
Prepaid expenses and other assets |
3,924 | 603 | ||||||
|
|
|
|
|||||
Total current assets |
51,225 | 21,450 | ||||||
|
|
|
|
|||||
Property and Equipment , at cost |
41,771 | 8,041 | ||||||
Less accumulated depreciation and amortization |
(4,651 | ) | (3,235 | ) | ||||
|
|
|
|
|||||
Net property and equipment |
37,120 | 4,806 | ||||||
|
|
|
|
|||||
Intangible assets, net of amortization |
354 | 260 | ||||||
Goodwill, net of amortization |
435 | 435 | ||||||
Investment in unconsolidated entities |
590 | 14,021 | ||||||
Deferred taxes and other assets |
16,375 | 15,696 | ||||||
|
|
|
|
|||||
Total other assets |
17,754 | 30,412 | ||||||
|
|
|
|
|||||
Total Assets |
$ | 106,099 | $ | 56,668 | ||||
|
|
|
|
|||||
LIABILITIES AND STOCKHOLDERS EQUITY | ||||||||
Current Liabilities : |
||||||||
Accounts payable |
$ | 8,849 | $ | 3,441 | ||||
Accounts payable - related parties |
1,209 | 205 | ||||||
Accrued payroll and related liabilities |
2,545 | 1,852 | ||||||
Line of credit |
10,873 | | ||||||
Deposits |
14,900 | | ||||||
Deferred revenues and other liabilities |
5,105 | 5,883 | ||||||
Settlement awards and related accrued liabilities |
3,983 | | ||||||
|
|
|
|
|||||
Total current liabilities |
47,464 | 11,381 | ||||||
|
|
|
|
|||||
Long-term Liabilities : |
||||||||
Line of credit |
3,624 | | ||||||
Settlement awards and indemnity liability |
5,200 | 27,411 | ||||||
Accrued warranty and other liabilities |
632 | 4,432 | ||||||
|
|
|
|
|||||
Total long-term liabilities |
9,456 | 31,843 | ||||||
|
|
|
|
|||||
Total liabilities |
56,920 | 43,224 | ||||||
|
|
|
|
|||||
Commitments and Contingencies ( Note 9 ) |
||||||||
Stockholders Equity : |
||||||||
ADA-ES, Inc. stockholders equity |
||||||||
Preferred stock: 50,000,000 shares authorized, none outstanding |
| | ||||||
Common stock: no par value, 50,000,000 shares authorized, 9,996,144 and 7,538,861 shares issued and outstanding, respectively |
93,184 | 39,627 | ||||||
Accumulated deficit |
(48,069 | ) | (28,218 | ) | ||||
|
|
|
|
|||||
Total ADA-ES, Inc. stockholders equity |
45,115 | 11,409 | ||||||
Non-controlling interest |
4,064 | 2,035 | ||||||
|
|
|
|
|||||
Total Stockholders Equity |
49,179 | 13,444 | ||||||
|
|
|
|
|||||
Total Liabilities and Stockholders Equity |
$ | 106,099 | $ | 56,668 | ||||
|
|
|
|
See accompanying notes.
F-4
Consolidated Statements of Operations
For the Years Ended December 31, 2011, 2010 and 2009
( Amounts in thousands, except per share data )
2011 | 2010 | 2009 | ||||||||||
Revenue: |
||||||||||||
Refined coal |
$ | 40,253 | $ | 10,383 | $ | 2,588 | ||||||
Emission control |
9,967 | 9,825 | 15,947 | |||||||||
CO 2 capture |
3,096 | 2,073 | 1,526 | |||||||||
|
|
|
|
|
|
|||||||
Total revenues |
53,316 | 22,281 | 20,061 | |||||||||
Cost of Revenues: |
||||||||||||
Refined coal |
20,201 | 1,440 | 3,357 | |||||||||
Emission control |
6,839 | 6,107 | 9,544 | |||||||||
CO 2 capture |
1,924 | 1,066 | 969 | |||||||||
|
|
|
|
|
|
|||||||
Total cost of revenues |
28,964 | 8,613 | 13,870 | |||||||||
|
|
|
|
|
|
|||||||
Gross Margin |
24,352 | 13,668 | 6,191 | |||||||||
Other Costs and Expenses : |
||||||||||||
General and administrative |
17,468 | 32,790 | 16,745 | |||||||||
Research and development |
2,289 | 911 | 709 | |||||||||
Depreciation and amortization |
1,568 | 917 | 577 | |||||||||
|
|
|
|
|
|
|||||||
Total expenses |
21,325 | 34,618 | 18,031 | |||||||||
|
|
|
|
|
|
|||||||
Operating Income (Loss) |
3,027 | (20,950 | ) | (11,840 | ) | |||||||
Other Income (Expense): |
||||||||||||
Net equity in net income (loss) from unconsolidated entities |
(6,967 | ) | (8,037 | ) | (3,243 | ) | ||||||
Other income including interest |
2,218 | 2,510 | 34 | |||||||||
Interest expense |
(1,584 | ) | (16 | ) | | |||||||
Settlement of litigation and arbitration award, net |
(21,932 | ) | 6,072 | | ||||||||
|
|
|
|
|
|
|||||||
Total other income (expense) |
(28,265 | ) | 529 | (3,209 | ) | |||||||
|
|
|
|
|
|
|||||||
Loss from Continuing Operations Before Income Tax Benefit and Non-controlling Interest |
(25,238 | ) | (20,421 | ) | (15,049 | ) | ||||||
Income Tax Benefit |
13,368 | 8,564 | 5,546 | |||||||||
|
|
|
|
|
|
|||||||
Net Loss Before Non-controlling Interest |
(11,870 | ) | (11,857 | ) | (9,503 | ) | ||||||
Non-controlling Interes t |
(7,981 | ) | (3,613 | ) | 732 | |||||||
|
|
|
|
|
|
|||||||
Net Loss Attributable to ADA-ES, Inc. |
$ | (19,851 | ) | $ | (15,470 | ) | $ | (8,771 | ) | |||
|
|
|
|
|
|
|||||||
Net Loss Per Common Share Basic and Diluted Attributable to ADA-ES, Inc. |
$ | (2.48 | ) | $ | (2.09 | ) | $ | (1.26 | ) | |||
|
|
|
|
|
|
|||||||
Weighted Average Common Shares Outstanding |
8,020 | 7,393 | 6,973 | |||||||||
|
|
|
|
|
|
|||||||
Weighted Average Diluted Common Shares Outstanding |
8,020 | 7,393 | 6,973 | |||||||||
|
|
|
|
|
|
See accompanying notes.
F-5
Consolidated Statements of Changes in Stockholders Equity
For the Years Ended December 31, 2011, 2010 and 2009
(Amounts in thousands, except share data)
Common Stock | (Accumulated |
Total ADA-ES Stockholders |
Non- controlling |
Total | ||||||||||||||||||||
Shares | Amount | Deficit) | Equity | Interest | Equity | |||||||||||||||||||
Balances , December 31, 2008 |
6,755,932 | $ | 35,812 | $ | (3,977 | ) | $ | 31,835 | $ | 25,152 | $ | 56,987 | ||||||||||||
Stock-based compensation |
265,649 | 997 | | 997 | | 997 | ||||||||||||||||||
Issuance of stock to 401(k) plan |
71,100 | 204 | | 204 | | 204 | ||||||||||||||||||
Issuance of stock on exercise of options |
1,250 | 4 | | 4 | | 4 | ||||||||||||||||||
Equity contributions by non-controlling interest |
| | | | 738 | 738 | ||||||||||||||||||
Deconsolidation of ADA Carbon Solutions, LLC |
| | | | (25,059 | ) | (25,059 | ) | ||||||||||||||||
Expense of stock issuance and registration |
| (17 | ) | | (17 | ) | | (17 | ) | |||||||||||||||
Net loss |
| | (8,771 | ) | (8,771 | ) | (732 | ) | (9,503 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balances , December 31, 2009 |
7,093,931 | $ | 37,000 | $ | (12,748 | ) | $ | 24,252 | $ | 99 | $ | 24,351 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Stock-based compensation |
214,089 | 1,024 | | 1,024 | | 1,024 | ||||||||||||||||||
Issuance of stock to 401(k) plan |
45,106 | 282 | | 282 | | 282 | ||||||||||||||||||
Issuance of stock for cash |
143,885 | 1,000 | | 1,000 | | 1,000 | ||||||||||||||||||
Issuance of stock on exercise of options |
41,850 | 347 | | 347 | | 347 | ||||||||||||||||||
Equity contributions by non-controlling interest |
| | | | 2,090 | 2,090 | ||||||||||||||||||
Distributions to non-controlling interest |
| | | | (3,767 | ) | (3,767 | ) | ||||||||||||||||
Expense of stock issuance and registration |
| (26 | ) | | (26 | ) | | (26 | ) | |||||||||||||||
Net income (loss) |
| | (15,470 | ) | (15,470 | ) | 3,613 | (11,857 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balances , December 31, 2010 |
7,538,861 | $ | 39,627 | $ | (28,218 | ) | $ | 11,409 | $ | 2,035 | $ | 13,444 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Stock-based compensation |
114,582 | 786 | | 786 | | 786 | ||||||||||||||||||
Issuance of stock to 401(k) plan |
27,769 | 349 | | 349 | | 349 | ||||||||||||||||||
Issuance of stock for cash |
2,300,000 | 35,075 | 35,075 | 35,075 | ||||||||||||||||||||
Issuance of stock on exercise of options |
14,932 | 106 | | 106 | | 106 | ||||||||||||||||||
Equity contribution from sale of interest in joint venture net of income taxes |
| 19,600 | | 19,600 | | 19,600 | ||||||||||||||||||
Equity contributions by non-controlling interest |
| | | | 250 | 250 | ||||||||||||||||||
Distributions to non-controlling interest |
| | | | (6,202 | ) | (6,202 | ) | ||||||||||||||||
Expense of stock issuance and registration |
| (2,359 | ) | | (2,359 | ) | | (2,359 | ) | |||||||||||||||
Net income (loss) |
| | (19,851 | ) | (19,851 | ) | 7,981 | (11,870 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balances , December 31, 2011 |
9,996,144 | $ | 93,184 | $ | (48,069 | ) | $ | 45,115 | $ | 4,064 | $ | 49,179 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
F-6
Consolidated Statements of Cash Flows
Years Ended December 31, 2011, 2010 and 2009
(Amounts in thousands)
2011 | 2010 | 2009 | ||||||||||
Cash Flows from Operating Activities: |
||||||||||||
Net loss |
$ | (19,851 | ) | $ | (15,470 | ) | $ | (8,771 | ) | |||
Adjustments to reconcile net loss to net cash provided by (used in) operating activities: |
||||||||||||
Depreciation and amortization |
1,568 | 917 | 577 | |||||||||
Deferred tax benefit |
(13,368 | ) | (8,563 | ) | (5,555 | ) | ||||||
Loss on disposal of assets |
37 | | 17 | |||||||||
Provision for doubtful accounts |
| (7 | ) | | ||||||||
Expenses paid with stock, restricted stock and stock options |
1,135 | 1,306 | 1,201 | |||||||||
Net equity in net (income) loss from unconsolidated entities |
6,967 | 8,037 | 3,243 | |||||||||
Non-cash gain from joint venture partner |
| (1,768 | ) | | ||||||||
Non-cash gain from indemnity claim settlement |
(20,034 | ) | | | ||||||||
Non-controlling interest in income (loss) from subsidiaries |
7,981 | 3,613 | (732 | ) | ||||||||
Changes in operating assets and liabilities: |
||||||||||||
Receivables, net |
3,152 | (3,247 | ) | 282 | ||||||||
Assets held for resale and inventory |
| | (2,056 | ) | ||||||||
Prepaid expenses and other assets |
(1,258 | ) | 288 | (155 | ) | |||||||
Accounts payable |
6,412 | (1,666 | ) | 2,567 | ||||||||
Accrued payroll, expenses and other related liabilities |
693 | 1,274 | (407 | ) | ||||||||
Deposits |
14,900 | | | |||||||||
Deferred revenues and other liabilities |
(4,578 | ) | 6,412 | 1,364 | ||||||||
Settlement awards and related accrued liabilities |
3,983 | | | |||||||||
Accrued indemnity liabilities |
4,288 | 20,589 | 6,822 | |||||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) operating activities |
(7,973 | ) | 11,715 | (1,603 | ) | |||||||
|
|
|
|
|
|
|||||||
Cash Flows from Investing Activities : |
||||||||||||
Investment in securities |
(3 | ) | (105 | ) | (400 | ) | ||||||
Cash balance held in deconsolidated entity |
| | (25,171 | ) | ||||||||
Principal payments received on notes receivable |
1,580 | 188 | | |||||||||
Equity contribution from sale of interest in joint venture |
30,000 | | | |||||||||
Capital expenditures for equipment, patents and development projects |
(33,788 | ) | (2,919 | ) | (296 | ) | ||||||
Cash paid for equity contributions to unconsolidated entity |
| (283 | ) | | ||||||||
|
|
|
|
|
|
|||||||
Net cash used in investing activities |
(2,211 | ) | (3,119 | ) | (25,867 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash Flows from Financing Activities : |
||||||||||||
Net borrowings under line of credit |
14,497 | | | |||||||||
Non-controlling interest equity contributions |
250 | 2,090 | 738 | |||||||||
Distributions to non-controlling interest |
(6,202 | ) | (3,767 | ) | | |||||||
Exercise of stock options |
106 | 347 | 4 | |||||||||
Issuance of common stock |
35,075 | 1,000 | | |||||||||
Stock issuance and registration costs |
(2,359 | ) | (26 | ) | (17 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
41,367 | (356 | ) | 725 | ||||||||
|
|
|
|
|
|
|||||||
Increase (decrease) in Cash and Cash Equivalents |
31,183 | 8,240 | (26,745 | ) | ||||||||
Cash and Cash Equivalents , beginning of period |
9,696 | 1,456 | 28,201 | |||||||||
|
|
|
|
|
|
|||||||
Cash and Cash Equivalents , end of period |
$ | 40,879 | $ | 9,696 | $ | 1,456 | ||||||
|
|
|
|
|
|
|||||||
Supplemental Schedule of Non-Cash Flow Financing Activities : |
||||||||||||
Stock and stock options issued for services |
$ | 1,135 | $ | 1,306 | $ | 1,201 | ||||||
|
|
|
|
|
|
|||||||
Cash paid for interest |
$ | 1,311 | $ | 24 | $ | | ||||||
|
|
|
|
|
|
See accompanying notes.
F-7
1. | S UMMARY OF N ATURE OF O PERATIONS AND S IGNIFICANT A CCOUNTING P OLICIES |
Nature of Operations ADA-ES, Inc. (ADA), its wholly-owned subsidiaries, Advanced Emissions Solutions, Inc., a Delaware corporation (ADES) and ADA Intellectual Property, LLC, a Colorado limited liability company (ADA IP) both of which had no activity in 2011, and ADA Environmental Solutions, LLC, a Colorado limited liability company (ADA LLC), and ADAs joint venture interest in Clean Coal Solutions, LLC (Clean Coal) are collectively referred to as the Company. The Company is principally engaged in providing environmental technologies and specialty chemicals to the coal-burning electric power generation industry. The Company generates a substantial part of its revenue from the sale of refined coal (RC), Activated Carbon Injection (ACI) systems, contracts co-funded by the government and industry, and development and lease of equipment for the RC market. The Companys sales occur principally throughout the United States.
Principles of Consolidation The consolidated financial statements include the accounts of ADES, ADA IP, ADA LLC and Clean Coal and its wholly owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.
Cash and Cash Equivalents The Company considers all highly liquid debt instruments with purchased maturities of three months or less to be cash equivalents. The Company maintains the majority of its cash in certificates of deposit and money market accounts. The amount on deposit at December 31, 2011 was held in one commercial bank and deposits were in excess of the insurance limits of the Federal Deposit Insurance Corporation.
Receivables and Credit Policies Trade receivables are uncollateralized customer obligations due under normal trade terms requiring payment within 30 days from the invoice date. Management reviews trade receivables periodically and reduces the carrying amount by a valuation allowance that reflects managements best estimate of the amount that may not be collectible. The balance was as follows:
As of December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Receivables balance |
$ | 4,919 | $ | 8,239 | ||||
Unbilled revenues balance |
995 | 827 | ||||||
|
|
|
|
|||||
Total |
$ | 5,914 | $ | 9,066 | ||||
|
|
|
|
Intangible Assets Intangible assets principally consist of patents.
As of December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Cost of patents |
$ | 436 | $ | 331 | ||||
Less accumulated amortization |
(82 | ) | (71 | ) | ||||
|
|
|
|
|||||
Total |
$ | 354 | $ | 260 | ||||
|
|
|
|
Year ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Amortization expense of intangible assets for the year |
$ | 11,000 | $ | 10,000 | $ | 12,000 | ||||||
Amortization life in years of patents |
17 | 17 | 17 | |||||||||
Anticipated annual amortization expense over the next five years |
$ | 11,000 | $ | 15,000 | $ | 13,000 | ||||||
Weighted average amortization period in years |
11 | 14 | 13 |
F-8
Goodwill The Company reviews the recoverability of goodwill at least annually as of December 31 and any time business conditions indicate a potential change in recoverability. During 2011 and 2010, we did not recognize any goodwill impairment charges.
Investments Investments in securities represent certificates of deposit which are recorded at fair value.
Investment in Unconsolidated Entities On January 20, 2010, the Company, together with NexGen Resources Corporation (NexGen), formed Clean Coal Solutions Services, LLC (CCSS) for the purpose of operating the RC facilities leased to third parties. The Company has a 50% ownership interest in CCSS (but does not control it) and accordingly has accounted for the investment under the equity method of accounting. The Company evaluates this investment annually for other than temporary declines in value. At December 31, 2011and 2010, no such declines existed on this investment.
On November 28, 2011, the Company relinquished all of its interest in ADA Carbon Solutions, LLC (Carbon Solutions) (See Notes 6 and 9). As of December 31, 2010, ADA owned a 25.9% interest in Carbon Solutions and our net investment in Carbon Solutions of $13.6 million was being accounted for under the equity method of accounting. Our respective share of Carbon Solutions income and losses for the years ended December 31, 2011, 2010 and 2009 has been recognized in the consolidated statements of operations.
Property and Equipment Property and equipment is stated at cost. Depreciation on assets is provided using the straight-line method based on estimated useful lives ranging from 3 to 10 years. Maintenance and repairs are charged to operations as incurred and maintenance and repair of the leased RC facilities are the responsibility of CCSS under agreements with the lessee of the facilities. When assets are retired, or otherwise disposed of, the property accounts are relieved of costs and accumulated depreciation and any resulting gain or loss is credited or charged to income.
Leasehold Improvements Leasehold improvements are recorded at cost and included with property and equipment. Amortization expense is computed using the straight-line method over the shorter of the estimated useful lives of the assets or the period of the related lease.
Warranty Costs Under certain ACI and DSI systems contracts, the Company may grant performance guaranties for a specified period and the achievement of a certain system operating conditions. In the event the equipment fails to perform as specified, the Company is obligated to correct or replace the equipment. Estimated warranty costs are recorded at the time of sale based on current experience factors.
Impairment of Long-Lived Assets (other than Goodwill) The Company routinely performs an evaluation of the recoverability of the carrying value of its long-lived assets to determine if facts and circumstances indicate that the carrying value of assets or intangible assets may be impaired and if any adjustment is warranted. Based on the Companys evaluation as of December 31, 2011 and 2010, no impairment of value existed for long-lived assets.
Fair Value of Financial Instruments The carrying amounts of financial instruments, including cash, cash equivalents, accounts receivable, line of credit, accounts payable and accrued expenses approximate fair value due to the short maturity of these instruments.
Revenue Recognition ADA follows the percentage of completion method of accounting for all significant contracts which have a fixed contract price excluding government contracts and coal and chemical sales. The percentage of completion method of reporting income takes into account the percent of work completed and overall revenue for contracts in progress. The Company recognizes revenue on government contracts based on the time and expenses incurred to date.
F-9
As of December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Costs in excess of billings included in accounts receivable, net |
$ | 452 | $ | 602 | ||||
Billings in excess of recognized income included in deferred revenue |
$ | 173 | $ | 452 |
RC revenues are recognized when RC production and coal sales occur. Chemical sales are recognized when products are shipped to customers. Based upon historical trends no reserve has been established for any returns. RC is typically produced by adding proprietary chemicals to coal at the customers site and title passes to the customer when the production process is complete. Chemicals are shipped FOB shipping point and title passes to the customer when the chemicals are shipped. The Companys sales agreements for chemicals do not contain a right of inspection or acceptance provision and products are generally received by customers within one day of shipment. The Company has had no significant history of non-acceptance, or of replacing goods damaged or lost in transit.
Consulting revenue is recognized as services are performed and collection is assured.
Cost of Revenues Costs of revenues include all labor, fringe benefits, subcontract labor, chemical and coal costs, materials, equipment, supplies and travel costs directly related to the Companys production of revenue.
General and Administrative General and administrative costs include personnel related fringe benefits, sales and administrative staff labor costs, legal expenses, facility costs and other general costs of conducting business.
Penalties and Interest Costs Under certain circumstances, the Company might have a penalty or interest charge that is classified as an expense and is shown in our general and administrative costs. The cost is charged in the period the Company was notified of the charge.
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Penalty and interest costs |
$ | 35 | $ | 1 | $ | 6 |
Research and Development Costs Research and development costs are charged to operations in the period incurred.
Income Taxes The Company accounts for income taxes under the liability method whereby deferred tax assets and liabilities are determined based on tax rates and laws enacted as of the date of the consolidated balance sheets. A valuation allowance is provided if and when deferred tax assets are not expected to be realized. Clean Coal is a flow-through tax entity and therefore the owners are taxed or receive tax benefits based on their respective ownership interests.
Net Loss Per Share Basic EPS is calculated by dividing the income or (loss) available to common stockholders by the weighted average number of common shares outstanding for the period. Diluted EPS is calculated using the same numerator as basic EPS and further reflects the potential dilution that could occur if outstanding stock options were exercised. No stock options were included in the calculations for 2011, 2010 or 2009 as their inclusion would be anti-dilutive due to the Companys net losses per share for those periods.
F-10
Stock-Based Compensation The Company records equity compensation to employees at estimated fair value.
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Stock based compensation before tax |
$ | 1,135 | $ | 1,306 | $ | 1,201 | ||||||
Stock based compensation after tax |
714 | 833 | 720 | |||||||||
Basic and diluted loss per share |
(0.09 | ) | (0.11 | ) | (0.11 | ) |
Use of Estimates The preparation of the Companys consolidated financial statements in conformity with generally accepted accounting principles requires the Companys management to make estimates and assumptions that affect the amounts reported in these financial statements and accompanying notes. Actual results could differ from those estimates.
The Company makes significant assumptions concerning:
|
the impairment of and the remaining realizability of its long-lived assets including equity method investments, goodwill and intangibles; |
|
estimates of certain overhead and other rates on research contracts with the U.S. Government, which are subject to future audits; |
|
fair value of stock options; |
|
warranty costs; |
|
the allowance for doubtful accounts, which is based on historical experience; |
|
the percentage of completion method of accounting for significant long-term fixed price contracts, which is based on estimates of gross margins and of the costs to complete such contracts; |
|
the deferred tax assets expected to be realized in future periods; and |
|
the period over which we estimate we will earn up front license payments. |
Segment Information The Company follows established standards on the way that public companies report financial information about operating segments in annual financial statements and required reporting of selected information about operating segments in interim financial statements issued to the public. These standards provide for disclosures regarding products and services, geographic areas, and major customers. These standards also define operating segments as components of a company about which discrete financial information is available that is evaluated regularly by the chief operating decision makers in deciding how to allocate resources and in assessing performance.
In applying these standards, the Company has defined its components as three reportable segments:
|
Refined coal (RC), |
|
Emission control (EC), and |
|
CO 2 Capture (CC). |
Reclassification Certain amounts in the 2010 and 2009 consolidated financial statements have been reclassified to conform to the 2011 presentation. Such reclassification had no effect on net income.
Recently Issued or Newly Adopted Accounting Standards In September 2011, the Financial Accounting Standards Board issued updated guidance allowing the use of a qualitative approach to test goodwill for impairment. The updated guidance would permit the Company to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of one of its reporting units is less than its carrying value. If concluded that this is the case, it is then necessary for the Company to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. The updated guidance is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011 with early adoption permitted. The Company is currently evaluating the impact of our pending adoption of this update.
F-11
2. | N OTES R ECEIVABLE |
NexGen Refined Coal, LLC (NexGen), the Companys partner in Clean Coal, was required to pay the Company up to $4 million in order to maintain its 50% interest in Clean Coal. In June 2010, NexGen executed notes payable to the Company for approximately $1.8 million with a due date of June 2012. During the second quarter of 2011, NexGen paid the notes receivable and the entire remaining balance due to maintain its interest in Clean Coal.
The outstanding balance of the notes receivable at December 31, 2010 totaled approximately $1.6 million. During the second quarter of 2010, the Company recognized a non-operating gain of $1.8 million as a result of these notes, which is included in interest and other income including interest on the consolidated statements of operations.
3. | P ROPERTY AND E QUIPMENT |
Property and equipment consisted of the following at the dates indicated:
Life in | As of December 31, | |||||||||
Years | 2011 | 2010 | ||||||||
(in thousands) | ||||||||||
Machinery and equipment |
3-10 | $ | 3,937 | $ | 2,497 | |||||
Leasehold improvements |
2-5 | 624 | 535 | |||||||
Furniture and fixtures |
3-7 | 281 | 284 | |||||||
RC assets placed in service |
10 | 33,800 | | |||||||
RC assets under lease (See Note 10) |
10 | 3,129 | 4,725 | |||||||
|
|
|
|
|||||||
41,771 | 8,041 | |||||||||
Less accumulated depreciation and amortization |
(4,651 | ) | (3,235 | ) | ||||||
|
|
|
|
|||||||
Total property and equipment, net |
$ | 37,120 | $ | 4,806 | ||||||
|
|
|
|
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Depreciation and amortization |
$ | 1,568 | $ | 906 | $ | 565 |
4. | D EFERRED R EVENUES AND D EPOSITS |
Deferred revenues consist of:
|
billings in excess of costs and earnings on uncompleted contracts; |
|
unearned revenues on licensing of the Companys intellectual property to Arch Coal, Inc. (Arch) (as discussed further below); and |
|
deferred rent revenue related to Clean Coals lease of its RC facilities (also as discussed further below). |
F-12
Arch Coal In June 2010, the Company entered into a Development and License Agreement with Arch in which the Company licensed, on an exclusive non-transferable basis, the use of certain of its technology to enhance coal by a proprietary treatment process and received a non-refundable license fee of $2 million in cash. Revenues of $1.3 million and $700,000 related to this agreement were recognized in 2011 and 2010, respectively. As part of the agreement, Arch is required to purchase from the Company the chemicals required to enhance the coal.
Clean Coal In June 2010, Clean Coal executed agreements to lease two RC facilities. These agreements provided for, among other things, a prepaid rent payment of $9 million for both facilities that was received before June 30, 2010. In November and December 2011, Clean Coal entered into transactions to exchange the existing facilities (See Notes 7 and 10). There was no change to the prepaid rent payment or amortization period as a result of the exchanges.
During 2011 and 2010, the Company recognized $20.1 million and $10.4 million in total rent revenues, respectively, related to these RC facilities which includes $3.6 million and $1.8 million from amortization of the initial prepaid rent payment for the years ended December 31, 2011 and 2010, respectively. Future revenues expected to be recognized with respect to the prepaid rent paid totaling $3.6 million are included in deferred revenues and other liabilities on the consolidated balance sheets as of December 31, 2011.
During 2011, Clean Coal received deposits of $14.9 million towards RC facilities which may be leased upon attainment of certain milestones. Such amount is included in deposits on the consolidated balance sheets.
5. | G OVERNMENT AND I NDUSTRY F UNDED C ONTRACTS |
The Company has participated in several contracts awarded by the Department of Energy (the DOE). The Company typically invoices the DOE and industry cost-share partners monthly for labor and expenditures plus estimated overhead factors, less any cost share amounts. The contracts under which the Company has performed are subject to audit and future appropriation of funds by Congress. The Company has not experienced adverse adjustments as a result of government audits, however, the government audits for years ended 2004 through 2011 have not yet been finalized.
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Revenue recognized related to CC segment |
$ | 3,096 | $ | 2,073 | $ | 1,526 | ||||||
Unearned contract amount |
$ | 15,706 | $ | 18,800 | $ | 1,600 | ||||||
Expected revenue in 2012 |
$ | 5,579 |
F-13
6. | I NVESTMENTS IN UNCONSOLIDATED E NTITIES |
Clean Coal Solutions Services As discussed in Note 1 above, on January 20, 2010, the Company, together with NexGen, formed CCSS. The Companys investment includes its share of CCSS income since its formation, which has been accounted for under the equity method of accounting. Following is unaudited summarized information as to assets, liabilities and results of operations of CCSS:
During 2011 and 2010, the Company recorded revenues of $131,000 and $272,000, respectively, for management fees provided to CCSS. This management fee arrangement was terminated in May 2011. During 2011 and 2010, the Company recorded $3.4 million and $64,000, respectively, for development and operating costs. At December 31, 2011 and 2010, the amount due to CCSS totaled $1.2 million and $105,000, respectively, and is included in accounts payable to related parties on the consolidated balance sheets.
Carbon Solutions On October 1, 2008, ADA entered into a Joint Development Agreement (JDA), a Limited Liability Company Agreement (LLC Agreement), and other related agreements with Energy Capital Partners I, LP and its affiliated funds (ECP) and formed Carbon Solutions for the purposes of funding and constructing the activated carbon (AC) manufacturing facility in Red River Parish, Louisiana and similar projects. In November 2011, ADA relinquished all of its interest in Carbon Solutions. The Company had been accounting for the investment in Carbon Solutions under the equity method and recorded $7.2 million as its share of Carbon Solutions losses for 2011.
Under the terms of the JDA, ADA was required to indemnify ECP and Carbon Solutions for certain damages and expenses they had incurred with respect to ADAs litigation with Norit Americas, Inc. (Norit) which was settled in August 2011. On November 28, 2011, an Indemnity Settlement Agreement was entered into whereby ADA agreed to settle the indemnity obligations asserted against ADA and relinquish all of its interest in Carbon Solutions (See Note 9). As of December 31, 2010, the Company recorded a long-term liability to Carbon Solutions of approximately $27.4 million related to such damages and expenses paid by Carbon Solutions.
During the fourth quarter of 2011, we recorded the transactions resulting from the Indemnity Settlement Agreement for the satisfaction of the indemnity obligations and the relinquishment of ADAs interest which resulted in other income of $20 million.
The Company has the following related agreements with Carbon Solutions:
Master Services Agreement Pursuant to a Master Services Agreement (MSA), the Company provides certain accounting, administrative, oversight, and other services to Carbon Solutions at agreed-upon rates.
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Service revenue included in EC segment |
$ | 63 | $ | 293 | $ | 1,100 |
F-14
Intellectual Property License Pursuant to an Intellectual Property License Agreement (as amended in November 2011 pursuant to the Indemnity Settlement Agreement discussed above), the Company has licensed to Carbon Solutions all intellectual property relating primarily to the manufacture of AC (that was not transferred to Carbon Solutions under the JDA) or any application or use of AC competitive with the control of mercury emissions from coal-fired power plants (the Field) on an exclusive, perpetual, royalty-free basis and has provided certain rights of first refusal to Carbon Solutions with respect to intellectual property relating to the Field the Company may develop in the future.
7. | J OINT V ENTURE INVESTMENT IN CLEAN COAL |
In November 2006, the Company sold a 50% interest in its RC technology to a joint venture called Clean Coal Solutions, LLC, which was formed in 2006 with NexGen, to market RC technology. Clean Coals function is to supply chemicals, additives, equipment and technical services to cyclone-fired and other boiler users, but Clean Coals primary purpose is to put into operation facilities that produce RC that qualifies for tax credits that are available under Section 45 of the Internal Revenue Code (Section 45 tax credits). Clean Coal qualified two facilities in 2009 for such purposes and leased those facilities to a third party. The operating agreement of Clean Coal required NexGen and ADA to each pay 50% of the costs of operating Clean Coal and specified certain duties that both parties were obligated to perform.
In May 2011, ADA entered into a transaction in which Clean Coal sold an effective 15% interest of the equity in Clean Coal to an affiliate of The Goldman Sachs Group, Inc. (GS). GSs interest has certain preferences over ADA and NexGen as to liquidation and profit distribution. GS has no further capital call requirements and does not have a voting interest but does have approval rights over certain corporate transactions. In conjunction with the closing of the purchase agreement, ADA, NexGen and GS entered into a Second Amended and Restated Operating Agreement and an Exclusive Right to Lease Agreement pursuant to which Clean Coal granted GS the exclusive right (but not the obligation) to lease facilities that will produce up to approximately 12 million tons of refined coal per year on pre-established lease terms similar to those currently in effect for Clean Coals first two facilities.
In September 2011, ADA, NexGen, and GS entered into a First Amendment to Second Amended and Restated Operating Agreement pursuant to which ADA and NexGen each transferred our 2.5% member interests in each of Clean Coals subsidiaries back to Clean Coal in return for an increase in our interest in Clean Coal to 42.5% from 42.1%. This restructuring of ownership interests did not change the financial relationships of the parties. Since its inception, ADA has been considered the primary beneficiary of this joint venture and has consolidated the accounts of Clean Coal.
In November and December 2011, ADA entered into transactions with Clean Coal to exchange the two leased RC facilities with newly constructed, redesigned RC facilities (See Note 10).
F-15
Following is summarized information as to assets, liabilities and results of operations of Clean Coal:
As of December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Primary assets |
||||||||
Cash and cash equivalents |
$ | 8,804 | $ | 1,335 | ||||
Accounts receivable, net |
3,177 | 4,835 | ||||||
Prepaid expenses and other assets |
3,028 | 19 | ||||||
Property, plant and equipment including assets under lease and assets placed in service |
36,751 | 5,066 | ||||||
Development costs |
| 215 | ||||||
Primary liabilities |
||||||||
Accounts payable and accrued liabilities |
$ | 10,526 | $ | 157 | ||||
Accounts payable, related parties |
1,209 | 205 | ||||||
Line of credit |
14,497 | | ||||||
Deferred revenue, current and deposits |
18,500 | 3,600 | ||||||
Deferred revenue, long-term |
| 3,600 |
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Net revenue |
$ | 40,253 | $ | 10,378 | $ | 2,588 | ||||||
Net income (loss) |
$ | 13,658 | $ | 6,873 | $ | (1,406 | ) |
During 2011 and 2010, the Company recorded $2.6 million and $687,000, respectively, for management fees and labor costs provided by NexGen related to capital improvements for assets under lease and placed in service. At December 31, 2011 and 2010, the amount payable to NexGen was $138,000 and $55,000, respectively, and is included in accounts payable and accrued liabilities on the consolidated balance sheets.
8. | S TOCKHOLDERS E QUITY |
On October 28, 2011, ADA closed on an underwritten public offering selling 2 million shares of common stock for $15.25 per share generating $28.4 million in net proceeds to ADA. In November 2011, the underwriters exercised their over-allotment option to purchase an additional 300,000 shares, generating an additional $4.3 million in net proceeds to ADA.
As described in Note 7, in May 2011, Clean Coal entered into a transaction in which it sold an effective 15% interest of its equity to GS. Approximately 15.8 units of non-voting Class B membership interests were issued to GS for $60 million in cash. ADA and NexGen each received $30 million as a result of the sale. In conjunction with the closing of the purchase agreement, ADA, NexGen and GS entered into a Second Amended and Restated Operating Agreement and ADA and NexGen each exchanged 50 units of membership interests for approximately 42.1 voting Class A units in Clean Coal (each of which represents a 50% voting interest). Since the transaction did not result in a change in control of Clean Coal, the amount received from this transaction was recorded to common stock, net of the tax effect of approximately $11 million.
For the years ended December 31, 2011 and 2010, the non-controlling interest portion of stockholders equity includes a non-controlling interest related to Clean Coal.
Pursuant to certain agreements, on March 23, 2010, ADA issued 143,885 shares of its common stock to Arch and received proceeds, net of issuance costs, totaling $974,000. ADA filed a registration statement, which was effective September 1, 2010, to register these shares in accordance with provisions of the registration rights agreement, which was executed at the time of the stock subscription agreement.
F-16
Since 2003, ADA has had several stock and option plans, including the Amended and Restated 2007 Equity Incentive Plan dated as of August 31, 2010 (the 2007 Plan) and the ADA-ES, Inc. Profit Sharing Retirement Plan, which is a plan qualified under Section 401(k) of the Internal Revenue Code (the 401(k) Plan) described below. These plans allow ADA to issue stock or options for shares of common stock to employees, Board of Directors and non-employees.
Following is a table summarizing the option activity for the two years ended December 31, 2011 and 2010:
Employee and
Director Options |
Non-Employee
Options |
Weighted
Average Exercise Price |
||||||||||
Options outstanding, December 31, 2009 |
270,265 | 9,000 | $ | 10.23 | ||||||||
Options granted |
| | ||||||||||
Options expired |
(14,495 | ) | (9,000 | ) | 14.11 | |||||||
Options exercised |
(41,850 | ) | 8.60 | |||||||||
|
|
|
|
|
|
|||||||
Options outstanding, December 31, 2010 |
213,920 | | $ | 10.18 | ||||||||
Options granted |
| | | |||||||||
Options expired |
(15,000 | ) | | 15.20 | ||||||||
Options exercised |
(15,978 | ) | | 8.18 | ||||||||
|
|
|
|
|
|
|||||||
Options outstanding, December 31, 2011 |
182,942 | | $ | 9.95 | ||||||||
|
|
|
|
|
|
Following is a table of aggregate intrinsic value of options exercised and exercisable for the two years ended December 31, 2011 and 2010:
Value |
Average
Market Price |
|||||||
Exercised, December 31, 2011 |
$ | 140,155 | $ | 15.38 | ||||
Exercised, December 31, 2010 |
$ | (86,000 | ) | $ | 6.23 |
Value |
Market
Price |
|||||||
Exercisable, December 31, 2011 |
$ | 2,322,000 | $ | 22.64 | ||||
Exercisable, December 31, 2010 |
$ | 209,000 | $ | 11.16 |
Stock options outstanding and exercisable at December 31, 2011 are summarized in the table below:
Range of Exercise Prices |
Number of
Options Outstanding and Exercisable |
Weighted
Average Exercise Price |
Weighted
Average Remaining Contractual Lives |
|||||||||
$8.60 - $10.20 |
143,743 | $ | 8.66 | 3.9 | ||||||||
$13.80 - $15.20 |
39,199 | $ | 14.68 | 3.5 | ||||||||
|
|
|||||||||||
182,942 | $ | 9.95 | 3.8 | |||||||||
|
|
No stock options were granted and/or vested during the year ended December 31, 2011.
F-17
Although ADA adopted the 2007 Plan in 2007, it was further amended and restated as of August 31, 2010 to make non-material changes to assure Internal Revenue Code Section 409A compliance and to increase the non-management director annual grant limit to 15,000 shares of common stock from 10,000 shares. The 2007 Plan authorizes the issuance to employees, directors and non-employees of up to 1 million shares of common stock, either as restricted stock grants or to underlie options to purchase shares of ADAs common stock.
In 2009, ADA revised its 401(k) Plan. The revision permits ADA to issue shares of its common stock to employees to satisfy its obligation to match employee contributions under the terms of the plan in lieu of matching contributions in cash. ADA reserved 300,000 shares of its common stock for this purpose. The value of common stock issued as matching contributions under the plan is determined based on the per share market value of ADAs common stock on the authorization date.
Following is a table summarizing the activity under various stock issuance plans for the two years ended December 31, 2011 and 2010:
Stock Issuance Plans |
||||||||||||
2007 Plan | 401(k) Plan |
Other
Stock Plans |
||||||||||
Balance available, December 31, 2009 |
267,232 | 228,900 | 19,065 | |||||||||
Evergreen addition |
33,800 | |||||||||||
Restricted stock issued to new and anniversary employees |
(34,175 | ) | ||||||||||
Restricted stock repurchased |
4,918 | |||||||||||
Stock issued based on incentive and matching programs to employees |
(51,345 | ) | (45,106 | ) | ||||||||
Stock issued to executives, directors and non-employees |
(126,487 | ) | (7,000 | ) | ||||||||
|
|
|
|
|
|
|||||||
Balance available, December 31, 2010 |
93,943 | 183,794 | 12,065 | |||||||||
Evergreen addition |
44,593 | |||||||||||
Restricted stock issued to new and anniversary employees |
(21,477 | ) | ||||||||||
Stock issued based on incentive and matching programs to employees |
(35,825 | ) | (27,769 | ) | ||||||||
Stock issued to executives, directors and non-employees |
(50,280 | ) | (7,000 | ) | ||||||||
|
|
|
|
|
|
|||||||
Balance available, December 31, 2011 |
30,954 | 156,025 | 5,065 | |||||||||
|
|
|
|
|
|
Expense recognized under the different plans for the three years ended:
(in thousands) |
||||||||||||
December 31, 2011 |
$ | 747 | $ | 349 | $ | 39 | ||||||
December 31, 2010 |
$ | 983 | $ | 282 | $ | 41 | ||||||
December 31, 2009 |
$ | 954 | $ | 204 | $ | 43 |
Unrecognized expense under the different plans for the three years ended:
(in thousands) | ||||||||||||
December 31, 2011 |
$ | 512 | $ | | $ | | ||||||
December 31, 2010 |
$ | 341 | $ | | $ | | ||||||
December 31, 2009 |
$ | 363 | $ | | $ | |
F-18
A summary of the status of the non-vested shares for the two years ended December 31, 2011 and 2010 is presented below:
Shares |
Weighted
Average Grant Date Fair Value |
|||||||
Non-vested at December 31, 2009 |
116,313 | $ | 6.65 | |||||
Granted |
34,175 | 5.94 | ||||||
Vested |
(52,634 | ) | 8.06 | |||||
Forfeited |
(4,918 | ) | 5.55 | |||||
|
|
|
|
|||||
Non-vested at December 31, 2010 |
92,936 | $ | 5.46 | |||||
Granted |
22,849 | 14.95 | ||||||
Vested |
(6,422 | ) | 10.38 | |||||
Forfeited |
(1,372 | ) | 7.48 | |||||
|
|
|
|
|||||
Non-vested at December 31, 2011 |
107,991 | $ | 6.98 | |||||
|
|
|
|
9. | C OMMITMENTS AND CONTINGENCIES |
Line of Credit Clean Coal has available a revolving line of credit with a bank that is secured by substantially all assets of Clean Coal (including its subsidiaries). The line of credit expires in March 2013 and requires four equal quarterly installments of principal (plus all accrued interest at such time) to be paid beginning June 30, 2012. Borrowings under the line of credit bear interest at the higher of the Prime Rate (as defined in the related credit agreement) plus one percent (1%) or 5% per annum. The original line of credit limit of $10 million was amended in September 2011 to $15 million. At December 31, 2011, the outstanding balance on the line of credit was $14.5 million and the effective interest rate was 5% per annum. Borrowings under the line of credit are subject to certain financial covenants applicable to Clean Coal.
Retirement Plan The Company assumed the 401(k) plan covering all eligible employees as of January 1, 2003 which was revised in 2009, and makes matching contributions to the plan in the form of cash and its common stock. Such contributions are as follows:
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Matching contributions in stock |
$ | 349 | $ | 282 | $ | 204 | ||||||
Matching contributions in cash |
| | 63 | |||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 349 | $ | 282 | $ | 267 | ||||||
|
|
|
|
|
|
F-19
Performance Guarantee on AC Injection Systems Under certain contracts to supply ACI systems, the Company may guarantee the performance of the associated equipment for a specified period to the owner of the power plant. The Company may also guarantee the achievement of a certain level of mercury removal based upon the injection of a specified quantity of a qualified AC at a specified rate given other plant operating conditions. In the event the equipment fails to perform as specified, the Company may have an obligation to correct or replace the equipment. In the event the level of mercury removal is not achieved, the Company may have a make right obligation within the contract limits. The Company assesses the risks inherent in each applicable contract and accrues an amount that is based on estimated costs that may be incurred over the performance period of the contract. Such costs are included in the Companys accrued warranty and other liabilities in the accompanying consolidated balance sheets. Any warranty costs paid out in the future will be charged against the accrual. The adequacy of warranty accrual balance is assessed at least quarterly based on the then current facts and circumstances and adjustments are made as needed. The changes in the carrying amount of the Companys performance guaranties are as follows:
As of December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Beginning balance |
$ | 612 | $ | 604 | ||||
Performance guaranties accrued |
88 | 74 | ||||||
Expenses paid |
(153 | ) | (66 | ) | ||||
|
|
|
|
|||||
Ending balance |
$ | 547 | $ | 612 | ||||
|
|
|
|
In some cases, a performance bond may be purchased and held for the period of the warranty that can be used to satisfy the obligation.
Purchase Obligations As of December 31, 2011, the Company expects to pay purchase obligations totaling approximately $410,000 primarily for the purchase of components and services related to our Emission Control Segment in 2011.
Operating Lease Obligations ADA leases office and warehouse facilities under non-cancellable operating lease agreements. Our facilities leases generally provide for periodic rent increases and renewal options. ADAs lease for the majority of the current facilities covering approximately 26,000 square feet of combined office and warehouse space in Littleton, Colorado expires in August 2012.
In October 2011, ADA entered into a new lease agreement covering approximately 30,000 square feet of office space in Highlands Ranch, Colorado. The lease term began in March 2012 and expires in February 2019 with the option to renew for two additional five-year periods. The lease includes abatement of base rent and operating expenses for the first six months and abatement of base rent for an additional thirteen months. In addition, ADA has temporarily leased approximately 2,700 square feet in this property complex until such time as the relocation is complete.
The lease also includes a one-time tenant improvement allowance in an amount up to approximately $480,000. ADA plans to move its headquarters to the new offices once construction and improvements are completed and is considering renewing a portion of the existing leased facilities for additional office and warehouse space.
In February 2012, ADA entered into a new lease agreement covering approximately 15,000 square feet of warehouse space in Highlands Ranch, Colorado. The lease covers five suites in the building with rent for the first two suites beginning in April 2012, an additional two suites beginning in May 2012, and the last suite beginning in September 2012. The lease expires in February 2019 and includes the option to renew for two additional five-year periods. The lease also includes a one-time tenant improvement allowance of approximately $150,000.
F-20
Annual minimum commitments under the leases are as follows:
Years Ending December 31, |
Operating
Lease Commitments (in thousands) |
|||
2012 |
$ | 214 | ||
2013 |
210 | |||
2014 |
480 | |||
2015 |
493 | |||
2016 |
506 | |||
Thereafter |
1,141 | |||
|
|
|||
Total |
$ | 3,044 | ||
|
|
Rental expense incurred for the years ended December 31, is as follows:
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Rent expense |
$ | 395 | $ | 339 | $ | 259 |
Clean Coal The Company also has certain guaranties and obligations in connection with the activities of Clean Coal. The Company, NexGen and two entities affiliated with NexGen have provided the lessee of its RC facilities and GS with joint and several guaranties (the CCS Party Guaranties) guaranteeing all payments and performance due under the related transaction agreements. The Company also entered into a contribution agreement with NexGen under which any party called upon to pay on a CCS Party Guaranty is entitled to receive contribution from the other party equal to 50% of the amount paid. The parent of the lessee in the RC facilities lease transactions has provided Clean Coal with a guaranty as to the payment only of all the initial term fixed rent payments and the renewal term fixed rent payments under the related leases, which, although terminable at any time, cannot be terminated without the substitution of such guaranty with another guaranty on similar terms from a creditworthy guarantor.
Carbon Solutions/ECP Indemnity Liability Settlement As discussed above in Note 6, in November 2011, ADA entered into an Indemnity Settlement Agreement whereby ADA agreed to settle certain indemnity obligations asserted against the Company related to the Norit litigation. Under the terms of the Indemnity Settlement Agreement, ADA paid Carbon Solutions a $2 million payment on November 28, 2011 and agreed to make 16 additional monthly payments of $100,000 with the first one paid on November 28, 2011, and the remaining 15 payments commencing on December 1, 2011, relinquished all of its equity interest in Carbon Solutions to Carbon Solutions and amended the Intellectual Property License Agreement dated October 1, 2008 between ADA and Carbon Solutions.
The Company has accrued a current liability of $1.2 million which is included in settlement awards and related accrued liabilities and a long-term liability of $200,000 which is included in settlement awards and indemnity liability on the consolidated balance sheets related to this agreement.
Litigation As previously reported in various filings, the Company had been engaged in litigation with Norit. The Norit lawsuit initially filed in Texas was moved to arbitration, and on April 8, 2011, the arbitration panel issued an interim award holding ADA liable for approximately $37.9 million for a non-solicitation breach of contract claim and held ADA and certain other defendants liable for royalties of 10.5% for the first three years beginning in mid-2010 and 7% for the following five years based on adjusted sales of AC from the Red River plant.
F-21
On August 29, 2011, ADA and Norit entered into a settlement agreement whereby the Company paid a lump-sum payment to Norit totaling $33 million on August 30, 2011. In addition, the Company agreed to pay an additional $7.5 million over a three-year period commencing on August 29, 2012, payable in three installments without interest of $2.5 million. Under the terms of the settlement agreement, ADA is also required to pay the royalty noted above and a lesser royalty on certain treated activated carbons. Payments of amounts due under the royalty award for each quarter are payable three months after such quarter ends. On October 18, 2011, the arbitration panel endorsed and confirmed the terms of the settlement agreement.
The Company has accrued a current liability of $2.8 million which is included in settlement awards and related accrued liabilities and a long-term liability of $5 million which is included in settlement awards and indemnity liability on the consolidated balance sheets related to this agreement.
10. | C LEAN C OAL L EASING A CTIVITIES |
Clean Coal leased two RC Facilities in June 2010 to an independent third party. The leases had initial terms that ran through December 31, 2012 and automatically renewed for annual terms through the end of 2019. As discussed in Note 7 above, in November and December 2011, ADA entered into Exchange Agreements with Clean Coal to exchange the two leased RC facilities with newly constructed, redesigned RC facilities which resulted in termination of the original leases and issuance of new lease agreements. The new leases carry over many of the substantive terms and conditions of the initial leases, have initial terms that run through December 31, 2012 and automatically renew for annual terms through 2021, subject to a number of termination clauses.
Clean Coal receives fixed and contingent rent payments as defined in the lease agreements. In addition, the lessee paid $9 million at the inception of the leases, which was recorded as deferred revenue and is being amortized into revenue under the straight-line method over the initial term of the leases through December 31, 2012. During the years ended December 31, 2011 and 2010, $3.6 million and $1.8 million, respectively, of deferred revenue was recognized. Contingent rental income received during 2011 and 2010 totaled $8.6 million and $6 million, respectively. Future minimum lease payments shown below do not include contingent rentals, which are based on the production of RC.
F-22
The following is a schedule, by year, of total fixed lease payments to be received, if all term extension options are exercised, through December 31, 2021.
Years Ending December 31, |
Lease Payments
Expected (in thousands) |
|||
2012 |
$ | 10,352 | ||
2013 |
14,196 | |||
2014 |
14,744 | |||
2015 |
15,332 | |||
2016 |
15,857 | |||
Thereafter |
90,027 | |||
|
|
|||
Total minimum lease payments |
$ | 160,508 | ||
|
|
11. | M AJOR C USTOMERS |
Sales to unaffiliated customers who represent 10% or more of the Companys sales were as follows:
As of December 31, | ||||||||
Customer |
2011 | 2010 | ||||||
A |
38 | % | 47 | % |
The Companys receivables were as follows:
Receivables as of: |
Number of
Customers That Make up Percentage of Balance |
Percentage
of Balance |
||||||
December 31, 2011 |
2 | 63 | % | |||||
December 31, 2010 |
1 | 67 | % |
12. | I NCOME T AXES |
The Companys income tax expense (benefit) from continuing operations consists of the following:
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Current |
$ | | $ | (1 | ) | $ | 9 | |||||
Deferred |
$ | (13,368 | ) | $ | (8,563 | ) | $ | (5,555 | ) | |||
|
|
|
|
|
|
|||||||
Income tax expense (benefit) |
$ | (13,368 | ) | $ | (8,564 | ) | $ | (5,546 | ) | |||
|
|
|
|
|
|
F-23
The following lists the Companys deferred tax assets and liabilities, of which $2.4 million and $188,000 are included in prepaid expenses and other assets as of December 31 2011 and 2010, respectively, and $16.2 million and $15.4 million are included in deferred taxes and other assets as of December 31, 2011 and 2010, respectively, in the accompanying consolidated balance sheets:
As of December 31, | ||||||||
2011 | 2010 | |||||||
(in thousands) | ||||||||
Deferred tax assets |
||||||||
Deferred warranty, settlements and other |
$ | 3,439 | $ | 223 | ||||
Allowance for doubtful accounts |
4 | 4 | ||||||
Property and equipment |
48 | | ||||||
Deferred revenues, compensation and other |
1,174 | 306 | ||||||
Net equity in net loss of unconsolidated entities |
| 459 | ||||||
Net operating loss carryforward |
13,947 | 14,072 | ||||||
Tax credits |
2,210 | 753 | ||||||
|
|
|
|
|||||
Total tax assets |
20,822 | 15,817 | ||||||
|
|
|
|
|||||
Deferred tax liabilities |
||||||||
Prepaid expenses |
129 | 122 | ||||||
Intangible assets and other |
21 | 38 | ||||||
Net equity in net loss of unconsolidated entities |
2,044 | | ||||||
|
|
|
|
|||||
Total tax liabilities |
2,194 | 160 | ||||||
|
|
|
|
|||||
Net deferred tax assets |
$ | 18,628 | $ | 15,657 | ||||
|
|
|
|
No valuation allowance has been recorded as the Company believes that it is more likely than not that its deferred tax assets will be realized in the future.
A reconciliation of expected federal income taxes on income from operations at statutory rates with the expense (benefit) for income taxes follows:
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(percent) | ||||||||||||
Expected income tax rate |
34 | 34 | 34 | |||||||||
Non-controlling interest |
11 | 6 | | |||||||||
Permanent differences |
<1 | <1 | <1 | |||||||||
Tax credits |
6 | 1 | 2 | |||||||||
State income taxes |
2 | 2 | 4 | |||||||||
Other |
| (1 | ) | (3 | ) | |||||||
|
|
|
|
|
|
|||||||
Actual effective income tax rate |
53 | 42 | 37 | |||||||||
|
|
|
|
|
|
The Company did not have any unrecognized tax benefits in 2011 and 2010. The primary jurisdictions in which the Company files income tax returns are the U.S. federal government and State of Colorado. The Company is no longer subject to U.S. federal examinations by tax authorities for years before 2008 and Colorado state examinations for years before 2007.
The Company has a federal net operating loss carryforward of approximately $38.1 million that will expire in the years ranging from 2029 to 2031 and a state net operating loss carryforward of approximately $27.3 million that will expire in years ranging from 2016 to 2031. The Company has federal tax credit carryforwards of approximately $2.2 million that will expire in the years ranging from 2025 to 2031.
F-24
13. | R ELATED P ARTY T RANSACTIONS |
As discussed above in Note 4 and Note 8, the Company entered into a Development and License Agreement and executed a Securities Subscription and Investment Agreement with Arch in 2010.
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Revenues recognized from activities with Arch |
$ | 1,402 | $ | 784 | $ | 30 |
John Eaves is the President and Chief Operating Officer and a director of Arch and was one of the members of the Companys Board of Directors (the Board) until November 10, 2011 when he resigned from the Board. Robert E. Shanklin, Vice President Coal Technology of Arch was appointed to the Board in place of Mr. Eaves. The initial appointment of Mr. Eaves, and subsequent appointment of Mr. Shanklin, to the Board was made pursuant to a 2003 Subscription and Investment Agreement with Arch whereby the Companys management agreed to make available one seat on our Board for an Arch designee and to vote all shares and proxies they are entitled to vote in favor of such designee for so long as Arch continues to hold at least 100,000 shares of our common stock. Mr. Eaves abstained from voting on the above-described transactions. In addition, as required by our related-party transaction policy, the transactions were approved by the Companys audit committee before being recommended to the Board for approval and were then approved by the disinterested members of the Board.
14. | B USINESS S EGMENT I NFORMATION |
The following information relates to the Companys three reportable segments: Emissions control (EC), CO 2 capture (CC) and Refined coal (RC). All assets are located in the U.S. and are not evaluated by management on a segment basis. All significant customers are U.S. companies and the U.S. Government.
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Revenue |
||||||||||||
RC |
$ | 40,253 | $ | 10,383 | $ | 2,588 | ||||||
EC |
9,967 | 9,825 | 15,947 | |||||||||
CC |
3,096 | 2,073 | 1,526 | |||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 53,316 | $ | 22,281 | $ | 20,061 | ||||||
|
|
|
|
|
|
|||||||
Segment profit (loss) |
||||||||||||
RC |
$ | 17,984 | $ | 7,842 | $ | (1,313 | ) | |||||
EC |
1,350 | 2,114 | 5,326 | |||||||||
CC |
241 | 895 | 349 | |||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 19,575 | $ | 10,851 | $ | 4,362 | ||||||
|
|
|
|
|
|
F-25
A reconciliation of the reported total segment profit to net income for the periods shown above is as follows:
Years Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
(in thousands) | ||||||||||||
Total segment profit |
$ | 19,575 | $ | 10,851 | $ | 4,362 | ||||||
Non-allocated general and administrative expenses |
(14,980 | ) | (30,884 | ) | (15,625 | ) | ||||||
Depreciation and amortization |
(1,568 | ) | (917 | ) | (577 | ) | ||||||
Interest and other income |
2,218 | 2,510 | 34 | |||||||||
Interest expense |
(1,584 | ) | (16 | ) | | |||||||
Settlement of litigation and arbitration award, net |
(21,932 | ) | 6,072 | | ||||||||
Net equity in net income (loss) of unconsolidated entities |
(6,967 | ) | (8,037 | ) | (3,243 | ) | ||||||
Deferred income tax benefit |
13,368 | 8,564 | 5,546 | |||||||||
Net (income) loss attributable non-controlling interest |
(7,981 | ) | (3,613 | ) | 732 | |||||||
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Net loss attributable to ADA-ES, Inc. |
$ | (19,851 | ) | $ | (15,470 | ) | $ | (8,771 | ) | |||
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Non-allocated general and administrative expenses include costs that benefit the business as a whole and are not directly related to one of our segments. Such costs include but are not limited to accounting and human resources staff, information systems costs, legal fees, facility costs, audit fees and corporate governance expenses.
F-26
Exhibit 10.31
ADA-ES, INC.
AMENDED AND RESTATED 2010 NON-MANAGEMENT COMPENSATION AND
INCENTIVE PLAN
1. Purposes of the Plan . The purposes of this Plan are to attract and retain the best available personnel, to provide additional incentives to Employees and Consultants and to promote the success of the Companys business.
2. Definitions . As used herein, the following definitions shall apply:
(a) Administrator means the Board or any of the Committees appointed to administer the Plan.
(b) Affiliate and Associate shall have the respective meanings ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.
(c) Applicable Laws means the legal requirements relating to the administration of stock incentive plans, if any, under applicable provisions of federal securities laws, state corporate and securities laws, the Code, the rules of any applicable stock exchange or national market system and the rules of any foreign jurisdiction applicable to Awards granted to residents therein.
(d) Assumed means that (i) pursuant to a Corporate Transaction defined in Section 2(q)(i), 2(q)(ii) or 2(q)(iii), the contractual obligations represented by the Award are expressly assumed (and not simply by operation of law) by the successor entity or its Parent in connection with the Corporate Transaction with appropriate adjustments to the number and type of securities of the successor entity or its Parent subject to the Award and the purchase price thereof which preserves the compensation element of the Award existing at the time of the Corporate Transaction as determined in accordance with the instruments evidencing the agreement to assume the Award or (ii) pursuant to a Corporate Transaction defined in Section 2(q)(iv) or 2(q)(v), the Award is expressly affirmed by the Company.
(e) Award means the grant of Shares, Restricted Stock Purchase Rights, Restricted Stock Bonuses or other rights or benefits under the Plan.
(f) Award Agreement means the written or electronic agreement evidencing the grant of an Award executed by the Company and the Grantee, including any amendments thereto.
(g) Board means the Board of Directors of the Company.
(h) Cause means, with respect to the termination by the Company or a Related Entity of the Grantees Continuous Service, that such termination is for Cause as such term is expressly defined in a then-effective written agreement between the Grantee and the Company or such Related Entity, or in the absence of such then-effective written agreement and definition, is based on, in the determination of the Administrator, the Grantees: (i) performance of any act or failure to perform any act in bad faith and to the detriment of the Company or a Related Entity; (ii) dishonesty, intentional misconduct or material breach of any agreement with the Company or a Related Entity; or (iii) commission of a crime involving dishonesty, breach of trust or physical or emotional harm to any person.
(i) Change in Control means a change in ownership or control of the Company effected through any of the following transactions:
(i) the direct or indirect acquisition by any person or related group of persons (Person) (other than an acquisition from or by the Company or by a Company-sponsored employee benefit plan or by a Person that directly or indirectly controls, is controlled by or is under common control with, the Company) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the
ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan
Companys outstanding securities pursuant to a tender or exchange offer made directly to the Companys shareholders which a majority of the Continuing Directors who are not Affiliates or Associates of the offeror do not recommend such shareholders accept;
(ii) a change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purposes of this clause (ii), if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control; or
(iii) a change in the ownership of a substantial portion of the Companys assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to or more than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this subsection (iii), the following will not constitute a change in the ownership of a substantial portion of the Companys assets: (A) a transfer to an entity that is controlled by the Companys stockholders immediately after the transfer, or (B) a transfer of assets by the Company to: (1) a stockholder of the Company (immediately before the asset transfer) in exchange for or with respect to the Companys stock, (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by the Company, (3) a Person, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Company, or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a Person described in this subsection (iii)(B)(3). For purposes of this subsection (iii), gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. For purposes of this Section 2(iii), persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company.
Notwithstanding anything herein to the contrary, with respect to any amounts that constitute deferred compensation under Code Section 409A, to the extent required to avoid accelerated taxation or penalties, no Change in Control will be deemed to have occurred unless such Change in Control also constitutes a change in control in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the Companys assets under Code Section 409A.
(j) Code means the Internal Revenue Code of 1986, as amended.
(k) Committee means any committee composed of Directors of the Board appointed by the Board to administer the Plan.
(l) Common Stock means the Companys Common Stock, no par value per share.
(m) Company means ADA-ES, Inc., a Colorado corporation and any successor corporation thereto.
(n) Consultant means any person (other than an Employee or a Director, solely with respect to rendering services in such persons capacity as a Director) who is engaged by the Company or any Related Entity to render consulting or advisory services to the Company or such Related Entity, provided that the identity of such person, the nature of such services or the entity to which such services are provided would not preclude the Company from offering or selling securities to such person pursuant to the Plan in reliance on registration on Form S-8 under the Securities Act.
(o) Continuing Directors means members of the Board who either (i) have been Board members continuously for a period of at least thirty-six (36) months or (ii) have been Board members for less than
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thirty-six (36) months and were elected or nominated for election as Board members by at least a majority of the Board members described in clause (i) who were still in office at the time such election or nomination was approved by the Board.
(p) Continuous Service means that the provision of services to the Company or a Related Entity in any capacity of Employee, Director or Consultant is not interrupted or terminated. In jurisdictions requiring notice in advance of an effective termination as an Employee, Director or Consultant, Continuous Service shall be deemed terminated upon the actual cessation of providing services to the Company or a Related Entity notwithstanding any required notice period that must be fulfilled before a termination as an Employee, Director or Consultant can be effective under Applicable Laws. Continuous Service shall not be considered interrupted in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related Entity or any successor in any capacity of Employee, Director or Consultant or (iii) any change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity of Employee, Director or Consultant (except as otherwise provided in the Award Agreement). An approved leave of absence shall include sick leave, military leave or any other authorized personal leave for a period not to exceed six months, provided , however , that absences of six months or more shall continue to be an approved leave of absence if the Employee or Consultant has a contractual or statutory right to re-employment .
(q) Corporate Transaction means any of the following transactions:
(i) a merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the Company is incorporated;
(ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company;
(iii) the complete liquidation or dissolution of the Company;
(iv) any reverse merger or series of related transactions culminating in a reverse merger (including, but not limited to, a tender offer followed by a reverse merger) in which the Company is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of the Companys outstanding securities are transferred to a person or persons different from those who held such securities immediately prior to such merger but excluding any such transaction or series of related transactions that the Administrator determines shall not be a Corporate Transaction; or
(v) acquisition in a single or series of related transactions by any person or related group of persons (other than the Company or by a Company-sponsored employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Companys outstanding securities but excluding any such transaction or series of related transactions that the Administrator determines shall not be a Corporate Transaction.
(r) Covered Employee means an Employee who is a covered employee under Section 162(m)(3) of the Code.
(s) Director means a member of the Board or the board of directors of any Related Entity.
(t) Disability means, with respect to a Grantee, the inability of such Grantee to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months, as provided in Sections 22(e)(3) and 409A(a)(2)(c)(i) of the Code, and shall be determined by the Board on the basis of such medical evidence as the Board deems warranted under the circumstances.
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-3-
(u) Employee means any person other than an Officer or Director, who is in the employ of the Company or any Related Entity, subject to the control and direction of the Company or any Related Entity as to both the work to be performed and the manner and method of performance.
(v) Exchange Act means the Securities Exchange Act of 1934, as amended.
(w) Fair Market Value means, as of any date, the value of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation, any of the markets operated by or for NASDAQ, its Fair Market Value shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the date of determination (or, if no closing sales price or closing bid was reported on that date, as applicable, on the last trading date such closing sales price or closing bid was reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted on an automated quotation system (including the OTC Bulletin Board) or by a recognized securities dealer, but selling prices are not reported, the Fair Market Value of a share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the date of determination (or, if no such prices were reported on that date, on the last date such prices were reported), as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or
(iii) In the absence of an established market for the Common Stock of the type described in (i) and (ii), above, the Fair Market Value thereof shall be determined by the Administrator in good faith, and in a manner that comports with the requirements of Section 409A and 422 of the Code and any Applicable Law.
(x) Good Reason means the occurrence after a Corporate Transaction or Change in Control of any of the following events or conditions unless consented to by the Grantee (and the Grantee shall be deemed to have consented to any such event or condition unless the Grantee provides written notice of the Grantees non-acquiescence within 90 days of the effective time of such event or condition and the Company cannot cure any such event or condition within 30 days upon such notice);
(i) a change in the Grantees responsibilities or duties which represents a material and substantial diminution in the Grantees responsibilities or duties as in effect immediately preceding the consummation of a Corporate Transaction or Change in Control;
(ii) a reduction in the Grantees base salary to a level below that in effect at any time within six (6) months preceding the consummation of a Corporate Transaction or Change in Control or at any time thereafter; or
(iii) requiring the Grantee to be based at any place outside a 50-mile radius from the Grantees job location or residence prior to the Corporate Transaction or Change in Control except for reasonably required travel on business which is not materially greater than such travel requirements prior to the Corporate Transaction or Change in Control.
(y) Grantee means an Employee or Consultant who receives an Award under the Plan.
(z) Immediate Family means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships, any person sharing the Grantees household (other than a tenant or employee), a trust in which these persons (or the Grantee) have more than fifty percent (50%) of the beneficial interest, a foundation in which these persons (or the Grantee) control the management of assets, and any other entity in which these persons (or the Grantee) own more than fifty percent (50%) of the voting interests.
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(aa) Officer means a person who is an officer of the Company or a Related Entity within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
(bb) Parent means a parent corporation, whether now or hereafter existing, as defined in Section 424(e) of the Code.
(cc) Performance-Based Compensation means compensation qualifying as performance-based compensation under Section 162(m) of the Code.
(dd) Plan means this Amended and Restated 2010 Non-Management Compensation and Incentive Plan.
(ee) Related Entity means any Parent or Subsidiary of the Company and any business, corporation, partnership, limited liability company or other entity in which the Company or a Parent or a Subsidiary of the Company holds a substantial ownership interest, directly or indirectly.
(ff) Replaced means that (i) pursuant to a Corporate Transaction defined in Section 2(q)(i), 2(q)(ii) or 2(q)(iii), the Award is replaced with a comparable stock award or a cash incentive program of the successor entity or Parent thereof which preserves the compensation element of such Award existing at the time of the Corporate Transaction and provides for subsequent payout in accordance with the same vesting schedule or a vesting schedule more favorable to the Grantee applicable to such Award or (ii) pursuant to a Corporate Transaction defined in Section 2(q)(iv) or 2(q)(v), the Award is replaced with a comparable stock award or a cash incentive program of the Company or Parent thereof which preserves the compensation element of such Award existing at the time of the Corporate Transaction and provides for subsequent payout in accordance with the same vesting schedule or a vesting schedule more favorable to the Grantee applicable to such Award. The determination of Award comparability shall be made by the Administrator and its determination shall be final, binding and conclusive.
(gg) Restricted Stock means Shares issued under the Plan to the Grantee for such consideration, if any, and subject to such restrictions on transfer, rights of first refusal, repurchase provisions, forfeiture provisions and other terms and conditions as established by the Administrator, as set forth in a Restricted Stock Agreement that is issued in connection with such Award.
(hh) Restricted Stock Award means an Award of a Restricted Stock Bonus or Restricted Stock Purchase Right.
(ii) Restricted Stock Bonus means Shares of Restricted Stock granted to a Grantee pursuant to this Plan.
(jj) Restricted Stock Purchase Right means a right to purchase Shares of Restricted Stock granted to a Grantee pursuant to this Plan.
(kk) Rule 16b-3 means Rule 16b-3 promulgated under the Exchange Act or any successor thereto.
(ll) Share means a share of the Common Stock.
(mm) Subsidiary means a subsidiary corporation, whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan .
(a) Subject to the provisions of Section 10 below, the stock subject to this Plan shall be the Common Stock presently authorized but unissued or subsequently acquired by the Company. Subject to adjustment as provided in Section 10 hereof, the aggregate amount of Common Stock to be delivered upon the purchase of Shares pursuant to all Awards granted under this Plan shall not exceed three hundred thousand (300,000) shares as such Common Stock was constituted on the effective date of this Plan.
ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan
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(b) Any Shares covered by an Award (or portion of an Award) which are forfeited, canceled or expire (whether voluntarily or involuntarily) shall be deemed not to have been issued for purposes of determining the maximum aggregate number of Shares which may be issued under the Plan. Shares that actually have been issued under the Plan pursuant to an Award shall not be returned to the Plan and shall not become available for future issuance under the Plan, except that if unvested Shares are forfeited or repurchased by the Company, such Shares shall become available for future grant under the Plan.
4. Administration of the Plan .
(a) Plan Administrator.
(i) Administration With Respect to Consultants and Other Employees . With respect to grants of Awards to Employees or Consultants, the Plan shall be administered by (A) the Board or (B) a Committee designated by the Board, which Committee shall be constituted in such a manner as to satisfy the Applicable Laws. Once appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board.
(ii) Administration With Respect to Covered Employees . Notwithstanding the foregoing, as of and after the date that the exemption for the Plan under Section 162(m) of the Code expires, as set forth in Section 18 below, grants of Awards to any Covered Employee intended to qualify as Performance-Based Compensation shall be made only by a Committee (or subcommittee of a Committee) which is comprised solely of two or more Directors eligible to serve on a committee making Awards qualifying as Performance-Based Compensation. In the case of such Awards granted to Covered Employees, references to the Administrator or to a Committee shall be deemed to be references to such Committee or subcommittee.
(b) Multiple Administrative Bodies . The Plan may be administered by different bodies with respect to Consultants, Employees and Covered Employees.
(c) Powers of the Administrator . Subject to Applicable Laws and the provisions of the Plan (including any other powers given to the Administrator hereunder), and except as otherwise provided by the Board, the Administrator shall have the authority, in its discretion:
(i) to select the Employees and Consultants to whom Awards may be granted from time to time hereunder;
(ii) to determine whether and to what extent Awards are granted hereunder;
(iii) to determine the number of Shares or the amount of other consideration to be covered by each Award granted hereunder;
(iv) to approve forms of Award Agreements for use under the Plan;
(v) to determine the terms and conditions of any Award granted hereunder;
(vi) to establish additional terms, conditions, rules or procedures to accommodate the rules or laws of applicable foreign jurisdictions and to afford Grantees favorable treatment under such rules or laws; provided, however, that no Award shall be granted under any such additional terms, conditions, rules or procedures with terms or conditions which are inconsistent with the provisions of the Plan;
(vii) to amend the terms of any outstanding Award granted under the Plan, provided that any amendment that would adversely affect the Grantees rights under an outstanding Award shall not be made without the Grantees written consent;
(viii) to construe and interpret the terms of the Plan and Awards, including without limitation, any notice of award or Award Agreement, granted pursuant to the Plan; and
ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan
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(ix) to take such other action, not inconsistent with the terms of the Plan, as the Administrator deems appropriate.
5. Eligibility . Awards may be granted to Employees and Consultants. An Employee or Consultant who has been granted an Award may, if otherwise eligible, be granted additional Awards. Awards may be granted to such Employees or Consultants who are residing in foreign jurisdictions as the Administrator may determine from time to time.
6. Terms and Conditions of Awards .
(a) Designation of Award . Each Award shall be designated in the Award Agreement as an Award of Shares, Restricted Stock Bonus, Restricted Stock Purchase Right or other Award.
(b) Conditions of Award . Subject to the terms of the Plan, the Administrator shall determine the provisions, terms and conditions of each Award including, but not limited to, the Award vesting schedule, repurchase provisions, rights of first refusal, forfeiture provisions, purchase price, if any, form of payment (cash, Shares, or other consideration) for Shares issued in connection with the Award, payment contingencies and satisfaction of any performance criteria. The performance criteria established by the Administrator may be based on any one of, or combination of, increase in share price, earnings per share, total shareholder return, return on equity, return on assets, return on investment, net operating income, cash flow, revenue, economic value added, personal management objectives or other measure of performance selected by the Administrator. Partial achievement of the specified criteria may result in a payment or vesting corresponding to the degree of achievement as specified in the Award Agreement.
(c) Acquisitions and Other Transactions . The Administrator may issue Awards under the Plan in settlement, assumption or substitution for outstanding awards or obligations to grant future awards in connection with the Company or a Related Entity acquiring another entity, an interest in another entity or an additional interest in a Related Entity whether by merger, stock purchase, asset purchase or other form of transaction.
(d) Deferral of Award Payment . The Administrator may establish one or more programs under the Plan to permit selected Grantees the opportunity to elect to defer receipt of an Award, satisfaction of performance criteria or other event that absent the election would entitle the Grantee to payment or receipt of Shares or other consideration under an Award (but only to the extent that such deferral programs would not result in an accounting compensation charge unless otherwise determined and specifically agreed to by the Administrator). The Administrator may establish the election procedures, the timing of such elections, the mechanisms for payments of and accrual of interest or other earnings, if any, on amounts, Shares or other consideration so deferred and such other terms, conditions, rules and procedures that the Administrator deems advisable for the administration of any such deferral program. Irrespective of the rights of the Administrator to allow for the deferral of consideration hereunder, no such deferral shall be effective if it would result in the deferral constituting nonqualified deferred compensation within the meaning of Code Section 409A, unless such deferral has been approved by the Board and agreed to by the Grantee.
(e) Separate Programs . The Administrator may establish one or more separate programs under the Plan for the purpose of issuing particular forms of Awards to one or more classes of Grantees on such terms and conditions as determined by the Administrator from time to time.
(f) Term of Award . The term of each Award shall be the term stated in the Award Agreement.
(g) Transferability of Awards . Awards may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution or to the extent and in the manner authorized by the Administrator, by gift to members of the Grantees Immediate Family. The Administrator may impose such additional restrictions on Shares issued in connection with an Award as it may deem advisable, including, without limitation, minimum holding period requirements, restrictions
ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan
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under applicable federal securities laws, under the requirements of any stock exchange or market upon which such Shares are then listed or traded or under any state securities laws or foreign law as applicable to such Shares.
(h) Time of Granting Awards . The date of grant of an Award shall for all purposes be the date on which the Administrator makes the determination to grant such Award or such other date as is determined by the Administrator.
7. Award Purchase Price, Consideration and Taxes .
(a) Purchase Price . The purchase price, if any, for an Award shall be as determined by the Administrator, except that in the case of Awards intended to qualify as Performance-Based Compensation, the purchase price shall be not less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. No monetary payment (other than applicable tax withholding) shall be required as a condition of receiving an Award of Shares or Shares pursuant to a Restricted Stock Bonus, the consideration for which shall be services actually rendered to the Company or a Related Entity or for the Companys or a Related Entitys benefit. Notwithstanding the foregoing, if required by applicable state corporate law, the Grantee shall furnish consideration in the form of cash or past services rendered to the Company or a Related Entity or for the Companys or a Related Entitys benefit having a value not less than the 100% of the Fair Market Value of the Shares subject to an Award of Shares or Restricted Stock Award. Notwithstanding the foregoing provisions of this Section 7(a), in the case of an Award issued pursuant to Section6 (c), above, the purchase price for the Award shall be determined in accordance with the provisions of the relevant instrument evidencing the agreement to issue such Award.
(b) Consideration . Subject to Applicable Laws, the consideration, if any, to be paid for the Shares to be issued upon purchase of an Award, including the method of payment, shall be determined by the Administrator. In addition to any other types of consideration the Administrator may determine, the Administrator is authorized to accept as consideration for Shares issued under the Plan the following:
(i) cash;
(ii) check;
(iii) services performed for the Company or a Related Entity or for the Companys or a Related Entitys benefit;
(iv) delivery of Grantees promissory note with such recourse, interest, security and redemption provisions as the Administrator determines as appropriate (but only to the extent that the acceptance or terms of the promissory note would not violate an Applicable Law and would not result in an accounting compensation charge with respect to the use of such promissory note to pay the purchase price unless otherwise determined by the Administrator);
(v) surrender of Shares or delivery of a properly executed form of attestation of ownership of Shares as the Administrator may require which have a Fair Market Value on the date of surrender or attestation equal to the aggregate purchase price of the Shares as to which said Award relates (but only to the extent that such exercise of the Award would not result in an accounting compensation charge with respect to the Shares used to pay the purchase price unless otherwise determined by the Administrator; generally an accounting charge will result if the Shares used to pay the purchase price were acquired less than six months before the exercise); or
(vi) any combination of the foregoing methods of payment.
(c) Taxes . No Shares shall be delivered under the Plan to any Grantee or other person until such Grantee or other person has made arrangements acceptable to the Administrator for the satisfaction of any foreign, federal, state or local income and employment tax withholding obligations, including, without limitation, obligations incident to the receipt of Shares.
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8. Procedure for Exercise; Rights as a Shareholder .
(a) A Restricted Stock Purchase Right granted hereunder shall be exercisable at such times and under such conditions as determined by the Administrator under the terms of the Plan and specified in the Award Agreement except that the Restricted Stock Purchase Right must be exercised no later than thirty (30) days from the effective date of the grant.
(b) An Award of Shares shall be deemed to be accepted, and a Restricted Stock Purchase Right shall be deemed to be exercised, when the Grantee executes or electronically accepts the Award Agreement and full payment, if any, for the Shares with respect to which the Award is exercised has been made. Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to Shares subject to an Award, notwithstanding the acceptance of an Award of Shares or exercise of a Restricted Stock Purchase Right. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in the Award Agreement or Section 11 below. The Company shall not be required to issue fractional shares upon the exercise or settlement of any Award.
9. Conditions Upon Issuance of Shares . Shares shall not be issued unless the issuance and delivery of such Shares pursuant thereto comply with all Applicable Laws. Compliance with all Applicable Laws shall be determined by counsel for the Company.
10. Adjustments Upon Changes in Capitalization . Subject to any required action by the shareholders of the Company, the number of Shares covered by each outstanding Award, the number of Shares which have been authorized for issuance under the Plan but as to which no Awards have yet been granted or which have been returned to the Plan, the purchase price of each such outstanding Award as well as any other terms that the Administrator determines require adjustment shall be proportionately adjusted for (i) any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Shares or similar transaction affecting the Shares, (ii) any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company and (iii) as the Administrator may determine in its discretion, any other transaction with respect to Common Stock including a corporate merger, consolidation, acquisition of property or stock, separation (including a spin-off or other distribution of stock or property), reorganization, liquidation (whether partial or complete) or any similar transaction; provided, however that conversion of any convertible securities of the Company shall not be deemed to have been effected without receipt of consideration. Such adjustment shall be made by the Administrator, and its determination shall be final, binding and conclusive. Except as the Administrator determines, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason hereof shall be made with respect to, the number or price of Shares subject to an Award.
11. Corporate Transactions and Changes in Control .
(a) Termination of Award to Extent Not Assumed in Corporate Transaction . Effective upon the consummation of a Corporate Transaction, all outstanding Awards under the Plan shall terminate. However, all such Awards shall not terminate to the extent they are Assumed in connection with the Corporate Transaction.
(b) Acceleration of Award Upon Corporate Transaction or Change in Control .
(i) Corporate Transaction . Except as provided otherwise in an individual Award Agreement, in the event of a Corporate Transaction and:
(A) for the portion of each Award that is Assumed or Replaced, then such Award (if Assumed), the replacement Award (if Replaced) or the cash incentive program (if Replaced)
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automatically shall become fully vested, exercisable and payable and be released from any repurchase or forfeiture rights (other than repurchase rights exercisable at Fair Market Value) for all of the Shares at the time represented by such Assumed or Replaced portion of the Award, immediately upon termination of the Grantees Continuous Service if such Continuous Service is terminated by the successor company or the Company without Cause or voluntarily by the Grantee with Good Reason within twelve (12) months after the Corporate Transaction; and
(B) for the portion of each Award that is neither Assumed nor Replaced, such portion of the Award shall automatically become fully vested and exercisable and be released from any repurchase or forfeiture rights (other than repurchase rights exercisable at Fair Market Value) for all of the Shares at the time represented by such portion of the Award, immediately prior to the specified effective date of such Corporate Transaction.
(ii) Change in Control . Except as provided otherwise in an individual Award Agreement, following a Change in Control (other than a Change in Control which also is a Corporate Transaction) and upon the termination of the Continuous Service of a Grantee if such Continuous Service is terminated by the Company or Related Entity without Cause or voluntarily by the Grantee with Good Reason within twelve (12) months after a Change in Control, each Award of such Grantee which is at the time outstanding under the Plan automatically shall become fully vested and exercisable and be released from any repurchase or forfeiture rights (other than repurchase rights exercisable at Fair Market Value), immediately upon the termination of such Continuous Service.
12. Effective Date and Term of Plan . The Plan shall become effective upon its adoption by the Board and its approval by the shareholders of the Company. It shall continue in effect for a term of ten (10) years unless sooner terminated.
13. Amendment, Suspension or Termination of the Plan; Code Section 409A Considerations .
(a) The Board may at any time amend, suspend or terminate the Plan. To the extent necessary to comply with Applicable Laws, the Company shall obtain shareholder approval of any Plan amendment in such a manner and to such a degree as required.
(b) No Award may be granted during any suspension of the Plan or after termination of the Plan.
(c) No suspension or termination of the Plan shall adversely affect any rights under Awards already granted to a Grantee.
(d) Any amendment of the Plan may be accomplished in a manner calculated to cause such amendment not to constitute an extension, renewal or modification (each within the meaning of Code Section 409A) of any Awards that would cause such Awards to be considered nonqualified deferred compensation (within the meaning of Code Section 409A). Notwithstanding the foregoing, if at any time the Board or the Administrator determines that any Award may be subject to Code Section 409A, the Board or the Administrator may, in its sole discretion, and without a Grantees prior consent, amend the Plan or any Award as it may determine is necessary or desirable either for the Plan and Awards to be exempt from the application of Code Section 409A or to satisfy the requirements of Code Section 409A, including by adding conditions with respect to the vesting and/or the payment of Awards.
14. Reservation of Shares .
(a) The Company, during the term of the Plan, will at all times reserve and keep available such number of Shares as are sufficient to satisfy the requirements of the Plan.
(b) The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Companys counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority is not obtained.
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15. No Effect on Terms of Employment/Consulting Relationship . The Plan shall not confer upon any Grantee any right with respect to the Grantees Continuous Service and shall not interfere in any way with his or her right or the right of the Company or any Related Entity to terminate the Grantees Continuous Service at any time, with or without Cause and with or without notice. The ability of the Company or any Related Entity to terminate the employment of a Grantee who is employed at will is in no way affected by its determination that the Grantees Continuous Service has been terminated for Cause for the purposes of this Plan.
16. No Effect on Retirement and Other Benefit Plans . Except as specifically provided in a retirement or other benefit plan of the Company or a Related Entity, Awards shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or a Related Entity, and shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted under which the availability or amount of benefits is related to level of compensation. The Plan is not a Retirement Plan or Welfare Plan under the Employee Retirement Income Security Act of 1974, as amended.
17. Shareholder Approval . The grant of Awards under the Plan , shall be subject to approval of the Plan by the shareholders of the Company. Such stockholder approval shall be obtained in the degree and manner required under Applicable Laws.
18. Effect of Section 162(m) of the Code . At any time while the Company is subject to the reporting obligations of Section 12 of the Exchange Act, the Plan and all Awards (except Restricted Stock Awards that vest over time) issued thereunder are intended to be exempt from the application of Section 162(m) of the Code, which restricts under certain circumstances the Federal income tax deduction for compensation paid by a public company to named executives in excess of $1 million per year. The exemption is based on Treasury Regulation Section 1.162-27(f), in the form existing on the effective date of the Plan, with the understanding that such regulation generally exempts from the application of Section 162(m) of the Code compensation paid pursuant to a plan that existed before a company becomes publicly held. Under such Treasury Regulation, this exemption is available to the Plan for the duration of the period that lasts until the earliest of (i) the expiration of the Plan, (ii) the material modification of the Plan, (iii) the exhaustion of the maximum number of shares of Common Stock available for Awards under the Plan, as set forth in Section 3(a), (iv) the first meeting of shareholders at which directors are to be elected that occurs after the close of the third calendar year following the calendar year in which the Company first becomes subject to the reporting obligations of Section 12 of the Exchange Act, or (v) such other date required by Section 162(m) of the Code and the rules and regulations promulgated thereunder. To the extent that the Administrator determines as of the date of grant of an Award that (i) the Award is intended to qualify as Performance-Based Compensation and (ii) the exemption described above is no longer available with respect to such Award, such Award shall not be effective until any shareholder approval required under Section 162(m) of the Code has been obtained.
19. Code Section 409A Matters . Except as may be expressly provided with respect to any Award granted under the Plan, the Plan and the Awards are not intended to constitute a nonqualified deferred compensation plan within the meaning of Code Section 409A, but rather are intended to be exempt from the application of Code Section 409A. To the extent that the Plan and/or Awards are nevertheless deemed to be subject to Code Section 409A, the Plan and Awards shall be interpreted in accordance with Code Section 409A and any applicable Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the grant of any Award. Notwithstanding any provision of the Plan or any Award to the contrary, if the Administrator determines that any Award may be or become subject to Code Section 409A, the Administrator may adopt such amendments to the Plan and the affected Award (as described above) or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Administrator determines are necessary or appropriate (a) to exempt the Plan and any Award from the application of Code Section 409A and/or preserve the intended tax treatment of the benefits provided with respect to the Award or (b) to comply with
ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan
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the requirements of Code Section 409A, or (b) to comply with the requirements of Code Section 409A. Any such action may include, but is not limited to, delaying payment, to the extent required in order to avoid accelerated taxation and/or tax penalties under Code Section 409A, to a Grantee who is a specified employee within the meaning of Code Section 409A to the first day following the six-month period (or, if earlier, the date of the Grantees death) on the date of the Grantees separation of service as defined in Code Section 409A. The Company shall use commercially reasonable efforts to implement the provisions of this Section 19 in good faith; provided that neither the Company, the Administrator nor any Employee, Director or representative of the Company or of any of its Affiliates shall have any liability to with respect to this Section 19.
20. Qualified Domestic Relations Orders .
(a) Anything in the Plan to the contrary notwithstanding, rights under Awards may be assigned to an Alternate Payee to the extent that a QDRO so provides. (The terms Alternate Payee and QDRO are defined in paragraph 20(c) below.) The assignment of an Award to an Alternate Payee pursuant to a QDRO shall not be treated as having caused a new grant. If an Award is assigned to an Alternate Payee, the Alternate Payee generally shall have the same rights as the grantee under the terms of the Plan; provided however, that (i) the Award shall be subject to the same vesting terms and exercise period as if the Award were still held by the grantee and (ii) an Alternate Payee may not transfer an Award.
(b) In the event of the Administrators receipt of a domestic relations order or other notice of adverse claim by an Alternate Payee of a grantee of an Award, transfer of the proceeds of the exercise of such Award, whether in the form of cash, stock or other property, may be suspended. Such proceeds shall thereafter be transferred pursuant to the terms of a QDRO or other agreement between the Grantee and Alternate Payee. A Grantees ability to exercise an Award may be barred if the Administrator receives a court order directing the Plan administrator not to permit exercise.
(c) The word QDRO as used in the Plan shall mean a court order (i) that creates or recognizes the right of the spouse, former spouse or child (an Alternate Payee) of an individual who is granted an Award to an interest in such Award relating to marital property rights or support obligations and (ii) that the administrator of the Plan determines would be a qualified domestic relations order, as that term is defined in section 414(p) of the Code and section 206(d) of the Employee Retirement Income Security Act (ERISA), but for the fact that the Plan is not a plan described in section 3(3) of ERISA.
21. No Constraint on Corporate Action . Nothing in this Plan shall be construed to: (a) limit, impair, or otherwise affect the Companys or a Related Entitys right or power to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or any part of its business or assets; or (b) limit the right or power of the Company or a Related Entity to take any action which such entity deems to be necessary or appropriate.
22. Unfunded Obligation . Grantees shall have the status of general unsecured creditors of the Company. Any amounts payable to Participants pursuant to the Plan shall be considered unfunded and unsecured obligations for all purposes, including, without limitation, Title I of the Employee Retirement Income Security Act of 1974. Neither the Company nor any Related Entity shall be required to segregate any monies from its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Grantee account shall not create or constitute a trust or fiduciary relationship between the Administrator, the Company or any Related Entity and a Grantee, or otherwise create any vested or beneficial interest in any Grantee or the Grantees creditors in any assets of the Company or any Related Entity. The Grantees shall have no claim against the Company or any Related Entity for any changes in the value of any assets which may be invested or reinvested by the Company with respect to the Plan.
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23. Provision of Information . Each Grantee shall be given access to information concerning the Company equivalent to that information generally made available to the Companys common shareholders.
The undersigned, being the Senior Vice President and Chief Financial Officer of ADA-ES, Inc. hereby certifies that the foregoing is a true and correct copy of the ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan, as adopted by the Board of Directors on January 22, 2010 and as amended February 24, 2012, and as adopted by the shareholders on , 2011.
ADA-ES, Inc. | ||
By: | ||
Mark H. McKinnies, | ||
Senior Vice President and Chief Financial Officer |
ADA-ES, Inc. Amended and Restated 2010 Non-Management Compensation and Incentive Plan
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Exhibit 10.41
EXCHANGE AGREEMENT
(New Madrid)
dated as of
November 21, 2011
by and among
CLEAN COAL SOLUTIONS, LLC,
AEC-NM, LLC
and
GS RC INVESTMENTS LLC
* | Indicates portions of the exhibit that have been omitted pursuant to a request for confidential treatment. The non-public information has been separately filed with the Securities and Exchange Commission. |
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS |
1 | |||||
Section 1.1 |
Defined Terms | 1 | ||||
Section 1.2 |
Construction of Certain Terms and Phrases | 10 | ||||
ARTICLE II EXCHANGE OF FACILITY |
11 | |||||
Section 2.1 |
New Facility Installation, Testing and Acceptance | 11 | ||||
Section 2.2 |
Execution of New Lease | 11 | ||||
Section 2.3 |
Termination of Existing Equipment Lease and the Existing Guaranties | 11 | ||||
Section 2.4 |
Amendments to Certain Documents | 11 | ||||
ARTICLE III REPRESENTATIONS AND WARRANTIES |
12 | |||||
Section 3.1 |
Representations and Warranties of the CCS Parties | 12 | ||||
Section 3.2 |
Representations and Warranties of Lessee | 16 | ||||
Section 3.3 |
Survival of Representations and Warranties | 17 | ||||
ARTICLE IV TAX MATTERS |
18 | |||||
Section 4.1 |
Tax Treatment of the Transaction | 18 | ||||
Section 4.2 |
Transaction Taxes | 19 | ||||
Section 4.3 |
Property Taxes | 19 | ||||
Section 4.4 |
Tax Return Information and Tax Proceedings | 20 | ||||
ARTICLE V CLOSING CONDITIONS |
20 | |||||
Section 5.1 |
Lessees Conditions to Closing | 20 | ||||
Section 5.2 |
CCS Parties Conditions to Closing | 21 | ||||
ARTICLE VI CLOSING |
21 | |||||
Section 6.1 |
Closing | 21 | ||||
Section 6.2 |
Closing Deliverables | 21 | ||||
ARTICLE VII INDEMNIFICATION |
22 | |||||
Section 7.1 |
Indemnification of Lessee | 22 | ||||
Section 7.2 |
Indemnification of CCS Parties | 24 | ||||
Section 7.3 |
Notification of Claims | 24 | ||||
Section 7.4 |
Defense of Third-Party Claims | 25 | ||||
Section 7.5 |
Other Claims | 25 | ||||
Section 7.6 |
Payment | 25 | ||||
Section 7.7 |
No Duplication | 25 |
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Section 7.8 |
Sole Remedy | 26 | ||||
Section 7.9 |
General Limitation of Damages | 26 | ||||
Section 7.10 |
After-Tax Basis | 26 | ||||
Section 7.11 |
No Double Recovery | 26 | ||||
ARTICLE VIII TERMINATION; EFFECT OF TERMINATION |
27 | |||||
Section 8.1 |
Termination | 27 | ||||
Section 8.2 |
Effect of Termination | 28 | ||||
ARTICLE IX GENERAL PROVISIONS |
28 | |||||
Section 9.1 |
Confidentiality | 28 | ||||
Section 9.2 |
Further Actions | 29 | ||||
Section 9.3 |
Amendment, Modification and Waiver | 29 | ||||
Section 9.4 |
Severability | 29 | ||||
Section 9.5 |
Expenses and Obligations | 30 | ||||
Section 9.6 |
Binding Effect; Third Parties | 30 | ||||
Section 9.7 |
Notices | 30 | ||||
Section 9.8 |
Knowledge | 31 | ||||
Section 9.9 |
Counterparts | 31 | ||||
Section 9.10 |
Entire Agreement | 32 | ||||
Section 9.11 |
Governing Law; Choice of Forum; Waiver of Jury Trial | 32 | ||||
Section 9.12 |
Private Letter Ruling | 32 | ||||
Section 9.13 |
Publicity | 32 | ||||
Section 9.14 |
Assignment | 33 | ||||
Section 9.15 |
Appendices, Schedules and Exhibits | 33 |
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Exhibits and Schedules:
Exhibits | ||
Exhibit A | Description of the Existing Facility | |
Exhibit B | Description of the New Facility | |
Exhibit C | Form of New Equipment Lease | |
Exhibit D | Form of Omnibus Amendment | |
Exhibit E | Form of Technology Sub-License Amendment | |
Exhibit F | Certification | |
Exhibit G | Due Diligence Request Lists | |
Schedules | ||
Schedule 3.1(c) | Conflicts and Consents | |
Schedule 3.1(d) | Litigation | |
Schedule 3.1(e) | Compliance with Applicable Laws; Permits | |
Schedule 3.1(f) | Insurance | |
Schedule 3.1(g) | Liens | |
Schedule 3.1(i) | Environmental | |
Schedule 3.1(j) | Taxes | |
Schedule 3.1(k) | Intellectual Property | |
Schedule 3.1(l) | Material Contracts | |
Schedule 3.1(m) | Employee Matters | |
Schedule 3.2(f) | Lessee Taxes | |
Schedule 9.8 | Knowledge of CCS Parties |
iii
EXCHANGE AGREEMENT
(New Madrid)
This EXCHANGE AGREEMENT (this Agreement ), dated as of November 21, 2011 (the Effective Date ), is entered into by and among Clean Coal Solutions, LLC, a Colorado limited liability company ( CCS ), AEC-NM, LLC, a Colorado limited liability company ( Lessor ), and GS RC Investments LLC, a Delaware limited liability company ( Lessee ). CCS and Lessor may be referred to herein individually as a CCS Party and collectively as the CCS Parties . CCS, Lessor and Lessee may each be referred to herein individually as a Party and collectively as the Parties .
RECITALS
A. Lessor and Lessee entered into that certain Equipment Lease dated as of June 29, 2010 (the Existing Equipment Lease ), whereby Lessor leased to Lessee a refined coal production facility as described on Exhibit A (the Existing Facility ).
B. Lessee desires to enter into a new agreement to lease a redesigned refined coal production facility, as described on Exhibit B , newly constructed and owned by Lessor (the New Facility ) and terminate the Existing Equipment Lease.
C. The Parties intend that the transfer will take place in a transaction that qualifies as a like-kind exchange for nonrecognition of taxable income under Section 1031 of the Code, and the Parties are willing to take such steps as are commercially reasonable and necessary to enable the transactions contemplated hereby to so qualify.
NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms . The following terms and expressions shall have the meanings set forth in this Section 1.1 :
Acceptance has the meaning set forth in Section 5.1(b) .
ADA-ES means ADA-ES, Inc., a Colorado corporation.
ADA-ES Guaranty means the Guaranty provided by ADA-ES in favor of Lessee, dated as of the Closing Date.
Affiliate means, with respect to any Person, any other Person controlling, controlled by or under common control with such first Person. For purposes of this definition and the Agreement, the term control (and correlative terms) means (a) the ownership of fifty percent (50%) or more of the equity interest in a Person, or (b) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of a Person. For the purposes of this definition, each of ADA-ES, NexGen LLC, NexGen, Republic
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and CCS are Affiliates of Lessor. For the purposes of this definition, the parent of Lessee and any member of the federal income Tax consolidated group of which such parent is a member are Affiliates of Lessee.
After Tax Basis means, with respect to any amount payable in respect of a Loss (the Base Amount ), the Base Amount supplemented by an additional amount (the Gross-Up ) to reflect all U.S. federal, state and local Taxes (net of any deductions or credits realized by the payee arising from the receipt or accrual of the Gross-Up) imposed on the receipt or accrual of the Base Amount and the Gross-Up so that after reduction for the payment of all such Taxes the recipient would retain an amount equal to the Base Amount, provided that the Gross-Up amount shall be calculated based upon the assumption that the Indemnified Party is subject to corporate income Tax at the maximum federal corporate income Tax rate in effect at the time of calculation plus six percent (6%); and provided further that the amount of any Loss will take into account the value of any Tax deduction that would be allowed to the Indemnified Party with respect thereto assuming that such Indemnified Party is able to use such deduction and is subject to corporate income Tax at the maximum federal corporate income Tax rate in effect at the time of calculation plus six percent (6%).
Agreement has the meaning set forth in the introductory paragraph.
Agreement to Lease means that certain Agreement to Lease, dated as of June 29, 2010, by and among CCS, Lessor, AEC-TH, LLC and Lessee.
Books and Records means all financial, engineering, operating, accounting, Tax, business, environmental, legal, marketing and other data, files, documents, instruments, notes, papers, books and records of any CCS Party, its respective members and Affiliates of its respective members that relate materially to any CCS Party, including financial statements, budgets, ledgers, journals, deeds, property records, title policies, drawings, records, maps, charts, surveys, prints, franchises, customer lists, supplier lists, sales and sales promotional data, advertising materials, cost and pricing information, corporate records, permits, certificates, governmental filings, Tax Returns and reports, whether in existence on the date of this Agreement or created after the date of this Agreement.
Business Day means any calendar day other than (a) a Saturday or Sunday or (b) a calendar day on which commercial banks in New York, New York are authorized or required to be closed.
CCS has the meaning set forth in the introductory paragraph.
CCS Basket Amount has the meaning set forth in Section 7.1(b)(i) .
CCS Deliverables has the meaning set forth in Section 6.2(b) .
CCS First Cap Amount has the meaning set forth in Section 7.1(c)(ii) .
CCS Indemnified Costs means any and all Losses incurred by the CCS Indemnified Parties resulting from or relating to any breach or default by Lessee of any representation or warranty (whether on the date hereof or on the Closing Date, as though such representation or warranty was being made as of the Closing Date), covenant, indemnity or agreement under this Agreement or any other Transaction Document.
2
CCS Indemnified Parties means (a) CCS; (b) Lessor; (c) each Lessor Guarantor, (d) any member of Lessor, its successor and assigns; (e) the Affiliates of each Person described in the foregoing clause (a), (b), (c) and (d); (f) the successors, assigns and Representatives of each Person described in the foregoing clauses (a), (b), (c), (d) and (e).
CCS Party or CCS Parties has the meaning set forth in the introductory paragraph.
CCS Second Cap Amount has the meaning set forth in Section 7.1(c)(iii) .
CCSS means Clean Coal Solutions Services, LLC, a Colorado limited liability company.
Certification has the meaning set forth in Section 5.1(b) .
Chemical Additive Supply Agency Agreement means that certain Chemical Additive Supply Agency Agreement, dated as of June 29, 2010, by and between CCS and Lessee, as such agreement may be amended, supplemented or modified.
Claim means a demand, claim, complaint, cross-demand, cross-claim, counterclaim, cross-complaint, summons, notice of violation, arbitration notice or other notice, communication or action pursuant to which a Person (including a Governmental Authority) (a) notifies another Person that the first Person has suffered or incurred Losses for which the second Person may be liable or responsible; (b) alleges that such second Person has violated a Law or is otherwise liable or responsible for Losses arising under a Law; (c) asserts legal, equitable, contractual or other rights or remedies against such second Person; (d) proposes an adjustment to a Tax Return of such second Person; (e) institutes or commences a Proceeding against such second Person; (f) otherwise makes any demand or claim on such second Person; or (g) threatens to do any of the foregoing.
Claims Notice has the meaning set forth in Section 7.3 .
Closing has the meaning set forth in Section 6.1 .
Closing Date has the meaning set forth in Section 6.1 .
Code means the Internal Revenue Code of 1986, as amended.
Contingent Rent Payments has the meaning set forth in the New Equipment Lease.
Due Diligence Materials has the meaning set forth in Section 3.1(o) .
Due Diligence Request Lists means the request lists for due diligence with respect to CCS and Lessor, as applicable, and the New Facility submitted by Lessee to CCS and Lessor, attached as Exhibit G .
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Draft Allocation has the meaning set forth in Section 4.1(b) .
Effective Date has the meaning set forth in the introductory paragraph.
Emission Testing means continuous emission monitoring system ( CEMS ) field testing that meets the requirements set forth in Section 6.03(1) of IRS Notice 2010-54, or such other testing method established by the IRS, to establish the amount of the reduction of nitrogen oxide and mercury emissions released when burning Refined Coal compared to the emissions released when burning feedstock coal.
Environmental Costs or Liabilities means any Losses, claims, demands, settlements and obligations (including costs relating to personal injury, death or property damage, reasonable fees, disbursements and expenses of legal counsel, experts, engineers and consultants, and the costs of investigation or feasibility studies and performance of corrective, remedial or removal actions and cleanup or monitoring activities) arising from, under or in connection with (a) any violation of or liability under any Environmental Laws, (b) any remedial or corrective action obligation under or relating to any Environmental Laws or (c) any liability or Claim relating to the release of, presence of or exposure to, any Hazardous Substance.
Environmental Laws means all applicable Laws and rules of common Law pertaining to the protection of the environment, natural resources, workplace health and safety, the prevention of pollution or the remediation of contamination, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Emergency Planning and Community Right to Know Act and the Superfund Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Resource Conservation and Recovery Act of 1976, the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42 U.S.C. § 7401 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Federal Water Pollution Control Act, the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Safe Drinking Water Act, the Occupational Safety and Health Act of 1970 (42 U.S.C. § 11001 et seq.), the Oil Pollution Act of 1990, the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.) the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 801 et seq.), and any similar or analogous statutes, regulations and decisional Law of any Governmental Authority, as each of the foregoing may have been or are in the future amended or supplemented, in each case to the extent applicable with respect to the property or operation to which application of the term Environmental Laws relates.
Existing Equipment Lease has the meaning set forth in the recitals.
Existing Facility has the meaning set forth in the recitals.
Existing Guaranties means, collectively, the Guaranty, dated June 29, 2010, issued by Goldman Sachs Group, Inc. in favor of Lessor and AEC-TH, LLC, the Limited Guaranty, dated June 29, 2010, issued by NexGen in favor of Lessee, the Limited Guaranty, dated June 29, 2010, issued by NexGen LLC in favor of Lessee, the Limited Guaranty, dated June 29, 2010, issued by Republic in favor of Lessee and the Limited Guaranty, dated June 29, 2010, issued by ADA-ES in favor of Lessee.
4
Federal Tax Rule means any regulation, rule, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or interpretative or advisory opinion or letter by any Federal Tax Authority with respect to federal Tax matters, including (a) regulations of the Treasury Department, (b) judgments and decisions of the United States Tax Court, the United States Board of Tax Appeals and any other court of the United States in connection with its exercise of original, trial or appellate jurisdiction over any case involving federal Tax matters, (c) IRS and Treasury Department materials such as revenue rulings, revenue procedures, Treasury decisions, technical memoranda, technical advice memoranda, PLRs, determination letters, Chief Counsels advice, field service advice, general counsel memoranda, office memoranda, technical information releases, delegation orders, Executive Orders, Treasury Department orders, notices, announcements and news releases and (d) a Pre-Filing Agreement.
Final Allocation has the meaning set forth in Section 4.1(b) .
Final Disposition means the final resolution of any liability for any Tax for any taxable period by or as a result of: (a) a final and unappealable decision, judgment, decree or other order by any court of competent jurisdiction; (b) a final binding written settlement with the IRS relating to the Section 45 Credits, a signed closing agreement or accepted offer in compromise under Code Sections 7121 or 7122, or a comparable arrangement under the Laws of another jurisdiction; (c) any allowance of a refund in respect of an overpayment of Tax, but only after the expiration of all periods during which such amount may be recovered by the Governmental Authority imposing the Tax; or (d) any other final resolution, including by reason of the expiration of the applicable statute of limitations.
Governmental Authority means any governmental department, commission, board, bureau, agency, court or other instrumentality of any country, state, province, county, parish or municipality, jurisdiction or other political subdivision thereof.
Group means, with respect to any Party, such Party and (a) the Affiliates of such Party; (b) each guarantor of such Party; (c) any other members, shareholders, partners or other equity owners of such Party or any of its Affiliates (other than holders of publicly-traded units of such Party or of any of its Affiliates, except any such holder that controls such Party), and (d) the respective successors, assigns and Representatives of each Person described in the foregoing clause (a), (b) or (c), but shall in no event include the other Parties respective Groups.
GS means The Goldman Sachs Group, Inc., a Delaware corporation.
Hazardous Substances means (a) any hazardous materials, hazardous wastes, hazardous substances, toxic wastes, solid wastes and toxic substances as those or similar terms are defined under any Environmental Laws; (b) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable; (c) polychlorinated biphenyls ( PCBs ), or PCB-containing materials, or fluids; (d) radon; (e) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, contaminant, constituent or solid, liquid or gaseous waste; (f) any petroleum, petroleum hydrocarbons, petroleum products, crude oil and any fractions or derivatives thereof, and any natural gas, synthetic gas and any mixtures thereof; and (g) any substance that, whether by its nature or its use, is subject to regulation under any Environmental Laws or with respect to which any Environmental Laws or Governmental Authority requires environmental investigation, monitoring or remediation.
5
Initial Term has the meaning set forth in the New Equipment Lease.
Indemnified Party means any Person seeking indemnification from another Person pursuant to Article VII .
Indemnifying Party means any Person against whom a claim for indemnification is asserted by another Person pursuant to Article VII .
Independent Accountant has the meaning set forth in Section 4.1(b) .
Investment Grade has the meaning set forth in the Operating and Maintenance Agreement.
IRS means the United States Internal Revenue Service, and any successor thereto.
IRS Guidance has the meaning set forth in Section 9.12 .
Law means any applicable constitutional provision, statute, act, code (including the Code), law, regulation, rule, ordinance, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or interpretative or advisory opinion or letter of a Governmental Authority having valid jurisdiction.
Lessee has the meaning set forth in the introductory paragraph.
Lessee Basket Amount has the meaning set forth in Section 7.2(b)(i) .
Lessee Cap Amount has the meaning set forth in Section 7.2(b)(iii) .
Lessee Deliverables has the meaning set forth in Section 6.2(a) .
Lessee Indemnified Costs means any and all Losses incurred by any of the Lessee Indemnified Parties resulting from or relating to (a) any Lessor and/or any CCS Partys ownership, operation or control of all or any part of the New Facility that in each case is based on any event, condition, fact, circumstance, action or omission that occurred or existed prior to the Closing, including the installation of the New Facility at the Site and any and all Environmental Costs or Liabilities; (b) the removal of the Existing Facility from the Site and any re-installation of the Existing Facility pursuant to Section 8.2(b) ; and (c) any breach or default by any CCS Party of any representation or warranty (whether on the date hereof or on the Closing Date, as though such representation or warranty was being made as of the Closing Date), covenant, indemnity or agreement under this Agreement or any other Transaction Document.
Lessee Indemnified Parties means (a) Lessee; (b) any member of Lessee, its successor and assigns; (c) the shareholders and members of each Person described in the foregoing clause (b); (d) the Affiliates of each Person described in the foregoing clause (a), (b) and (c); (e) the successors, assigns and Representatives of each Person described in the foregoing clauses (a), (b), (c), and (d); and (f) any company that joins with another Person that would be a Lessee Indemnified Party in filed consolidated or combined Tax Returns.
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Lessee Parent Guaranty means the Guaranty provided by GS in favor of Lessor, dated as of the Closing Date.
Lessor has the meaning set forth in the introductory paragraph.
Lessor Guarantors means, collectively, ADA-ES, NexGen LLC, NexGen and Republic.
Lessor Parent Guaranties means, collectively, the ADA-ES Guaranty, the NexGen LLC Guaranty, the NexGen Guaranty and the Republic Guaranty, each dated as of the Closing Date.
Lien means all burdens, encumbrances and defects affecting the ownership of an asset, including (a) liens, security interests, mortgages, deeds of trust, pledges, conditional sale or trust receipt arrangement, consignment or bailment for security purposes, finance lease, or other encumbrances of any nature whatsoever securing any obligation, whether such interest is based on common Law, statute or contract; (b) any rights of first refusal or any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership; and (c) any other reservations, exceptions, covenants, conditions, restrictions, leases, subleases, licenses, easements, servitudes, occupancy agreements, equities, charges, assessments, defects in title, liabilities, claims, agreements, obligations, encroachments and other burdens, and other title exceptions and encumbrances affecting property of any nature, whether accrued or unaccrued, absolute or contingent, legal or equitable, real or personal or otherwise.
Loss or Losses means losses, lost Section 45 Credits (but only to the extent such Section 45 Credits relate to Refined Coal actually produced by the New Facility), liabilities, causes of action, assessments, cleanup, removal, remediation and restoration obligations, judgments, awards, damages, natural resource damages, contribution, cost-recovery and compensation obligations, fines, fees, penalties and costs and expenses (including litigation costs and reasonable attorneys and experts fees and expenses).
Material Adverse Effect means a material adverse effect on the business, financial condition, results of operations, assets, liabilities, operations or properties of Lessee, the transactions contemplated by this Agreement or the Section 45 Credits available to Lessee from the operation of the New Facility, excluding effects resulting from general economic conditions or changes or conditions that effect the coal industry generally.
Material Contracts has the meaning set forth in Section 3.1(l) .
Omnibus Amendment has the meaning set forth in Section 2.4 .
Operating and Maintenance Agreement means that certain Operating and Maintenance Agreement, dated as of June 29, 2010, by and between CCS and Lessee, as such agreement may be amended, supplemented or modified.
New Equipment Lease has the meaning set forth in Section 2.2 .
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New Facility has the meaning set forth in the recitals.
NexGen means NexGen Investments, LLLP, a Colorado limited liability limited partnership.
NexGen Guaranty means the Guaranty provided by NexGen in favor of Lessee, dated as of the Closing Date.
NexGen LLC means NexGen Refined Coal, LLC, a Wyoming limited liability company.
NexGen LLC Guaranty means the Guaranty provided by NexGen LLC in favor of Lessee, dated as of the Closing Date.
Party or Parties has the meaning set forth in the introductory paragraph.
Person means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other entity.
Permit means any permit, certificate, license, franchise, authorization, variance, exemption, concession, lease, instrument, order, consent, authorization or approval of any Governmental Authority.
Permitted Liens means (a) the rights of the Parties pursuant to the Transaction Documents, (b) Liens for Taxes of Lessor not yet due and (c) materialmens, mechanics, workers, repairmens, employees or other like Liens, arising in the ordinary course of business for amounts not yet delinquent or being contested in good faith by appropriate proceedings, so long as such proceedings do not involve any material danger of the sale, forfeiture or loss of any material part of the New Facility or Lessees inventory of Refined Coal (or the proceeds thereof) or any title or interest in and to the foregoing.
PLR means a private letter ruling from the IRS.
Power Plant means the New Madrid Power Plant near Marston, Missouri, owned and operated by Utility.
Pre-Filing Agreement means an LSMB pre-filing arrangement (as described in IRS Revenue Procedure 2009-14 or any supplement or successor thereto) between Lessee and the IRS.
Proceeding means a judicial, administrative or arbitral proceeding (including a lawsuit or an investigation by a Governmental Authority), commencing with the institution of such proceeding through the issuance, service or delivery of the applicable Claim or other applicable event.
Refined Coal means refined coal produced from coal at the New Facility.
Renewal Term has the meaning set forth in the New Equipment Lease.
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Representative means, with respect to any Person, each manager, director, officer, employee, agent, consultant (including consulting engineers), advisor (including counsel and accountants) and other representative of such Person.
Republic means Republic Financial Corporation, a Colorado corporation.
Republic Guaranty means the Guaranty provided by Republic in favor of Lessee, dated as of the Closing Date.
Section 45 Change means the occurrence of any of the following events on or after the date hereof, insofar as such event relates to the Section 45 Credit, unless the New Facility and the sale of Refined Coal therefrom by Lessee are grandfathered or otherwise exempted from the effect thereof:
(a) any total repeal of Section 45 of the Code; or
(b) any of the following events, to the extent that such event materially adversely affects, or has a material likelihood of adversely affecting, the amount, availability or value of Section 45 Credits that Lessee may claim for Refined Coal produced from the New Facility and sold to an Unrelated Person:
(i) an amendment to or partial repeal of Section 45 of the Code;
(ii) an amendment of a section of the Code that is expressly referred to in Section 45 of the Code or affects the ability of taxpayers to claim the Section 45 Credit; or
(iii) the adoption of a Federal Tax Rule that regulates, interprets, construes, limits, restricts, unwinds, modifies or otherwise affects (A) Section 45(c)(7), 45(d)(8) or 45(e)(8) of the Code or (B) a section of the Code, including in other parts of Section 45, that is expressly referred to in Section 45(c)(7), 45(d)(8) or 45(e)(8) of the Code.
Section 45 Credit means the credit allowed by Section 45 of the Code for the production and sale of Refined Coal produced from coal to an Unrelated Person.
Site has the meaning set forth in Section 2.1(a) .
Tax or Taxes means any taxes, assessments, fees and other governmental charges imposed by any Governmental Authority, including profits, gross receipts, net proceeds, alternative or add-on minimum, ad valorem, value added, turnover, sales, use, property, personal property (tangible and intangible), environmental, stamp, leasing, lease, user, excise, duty, franchise, capital stock, transfer, registration, license, withholding, social security (or similar), unemployment, disability, payroll, employment, fuel, excess profits, occupational, premium, windfall profit, severance, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not.
Tax Proceeding has the meaning set forth in Section 4.4(a) .
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Tax Return means any return, statement information return or other document (including amendments thereto and supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or the administration of any Laws relating to any Taxes.
Technology Sub-License means that certain Technology Sub-License, dated as of June 29, 2010, by and between ADA-ES, CCS and Lessee, as such agreement may be amended, supplemented or modified.
Technology Sub-License Amendment has the meaning set forth in Section 2.4 .
Test or Testing has the meaning set forth in Section 2.1(b) .
Third Party means, with respect to a Party, any Person other than such Party, its Affiliates and its Representatives, and excluding any Governmental Authority.
Third Party Claim has the meaning set forth in Section 7.4 .
Transaction Documents means this Agreement, the New Equipment Lease, the Omnibus Amendment, the Technology Sub-License Amendment, the Lessee Parent Guaranty and the Lessor Parent Guaranties.
Unrelated Person means, with respect to any Person, any other Person that is not related to such Person within the meaning of Section 45(e)(4) of the Code.
Utility means Associated Electric Cooperative, Inc., a Missouri cooperative, non-profit, membership corporation.
Section 1.2 Construction of Certain Terms and Phrases . Titles appearing at the beginning of any Articles, Sections, subsections or other subdivisions of this Agreement are for convenience only, do not constitute any part of such Articles, Sections, subsections or other subdivisions, and shall be disregarded in construing the language contained therein. The words this Agreement, herein, hereby, hereunder, and hereof, and words of similar import, refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The words this Section, this subsection, and words of similar import, refer only to the Sections or subsections hereof in which such words occur. The word or is not exclusive, and the word including (in its various forms) means including without limitation. Pronouns in masculine, feminine or neuter genders shall be construed to state and include any other gender and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, unless the context otherwise expressly requires. Unless the context otherwise requires, all defined terms contained herein shall include the singular and plural and the conjunctive and disjunctive forms of such defined terms, and the term Annex, Exhibit or Schedule shall refer to an Annex, Exhibit or Schedule attached to this Agreement. All references to the Code, U.S. Treasury regulations or other governmental pronouncements shall be deemed to include references to any applicable successor statute, regulations or amending pronouncement.
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ARTICLE II
EXCHANGE OF FACILITY
Section 2.1 New Facility Installation, Testing and Acceptance .
(a) Removal of Existing Facility and Installation of New Facility . Prior to the Closing, the CCS Parties shall cause the Existing Facility to be removed from its current location at the Power Plant, as shown on Exhibit B (the Site ) and the CCS Parties shall cause the New Facility shall be installed at the Site.
(b) Testing of New Facility . Upon installation of the New Facility at the Site, the CCS Parties shall cause testing, including Emission Testing ( Testing ), to be conducted on the New Facility consistent with best industry practice and, to the extent relevant, in accordance with Section 45 of the Code and the IRS Guidance. The CCS Parties shall cause Emission Testing to be conducted at the Power Plant using Refined Coal produced at the New Facility. Upon commencement of Testing of the New Facility, the CCS Parties shall permit Lessee and its Affiliates and its and their employees, agents, contractors and consultants to observe such Tests and to undertake any additional diligence with respect to such Testing as Lessee in its sole discretion elects.
Section 2.2 Execution of New Lease . Subject to the terms and conditions of this Agreement, on the Closing Date Lessor and Lessee will enter into an Equipment Lease, substantially in the form attached as Exhibit C (the New Equipment Lease ), pursuant to which Lessee will lease the New Facility from Lessor.
Section 2.3 Termination of Existing Equipment Lease and the Existing Guaranties . On the Closing Date the Existing Lease, together with all amendments and modifications thereto, shall terminate. Each of Lessor and Lessee for itself, its Affiliates and its and their successors and assigns agrees that the termination of the Existing Lease shall be treated as a termination by agreement without fault or breach on the part of either Lessor or Lessee and the terms of Section 3.2 of the Existing Equipment Lease shall apply to such termination provisions; provided that Section 3.2(c) shall be inapplicable and excluded in all respects for the purposes of such termination. On the Closing Date the Existing Guaranties, together with all amendments and modifications thereto, shall terminate with respect to the guaranteed obligations arising out of or under the Agreement to Lease, the Existing Lease, the Chemical Additive Supply Agreement, the Operating and Maintenance Agreement and the Technology Sublicense.
Section 2.4 Amendments to Certain Documents . In connection with the exchange of the Existing Facility for the New Facility and in furtherance of the transactions contemplated by this Agreement, on the Closing Date the Parties will have executed (or will cause to have executed): (a) an amendment to the Operating and Maintenance Agreement and the Chemical Additive Supply Agency Agreement, substantially in the form of Exhibit D (the Omnibus Amendment ); and (b) an amendment to the Technology Sub-License Agreement, substantially in the form of Exhibit E (the Technology Sub-License Amendment ).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the CCS Parties . Each CCS Party represents and warrants to Lessee, as of the date of this Agreement and as of the Closing Date, as follows (with the understanding that Lessee is relying on such representations and warranties in entering into and performing this Agreement and each of the other Transaction Documents):
(a) Organization, Good Standing, Etc . Each CCS Party is a limited liability company duly formed, validly existing and in good standing under the Laws of the state of its formation, and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each CCS Party is qualified to do business and is in good standing under the Laws of the jurisdictions in which the character of the properties owned or leased by such CCS Party or the nature of the activities conducted by such CCS Party in operating its business make such qualification necessary under applicable Laws.
(b) Authority . Each CCS Party has all requisite limited liability company power and authority to enter into this Agreement and each of the other Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by each CCS Party of this Agreement and each of the other Transaction Documents to which it is a party, the performance by it of its obligations hereunder and thereunder and the consummation by it of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of such CCS Party. This Agreement has been duly executed and delivered by each CCS Party, and upon the execution and delivery by each CCS Party of each of the other Transaction Documents to which it is a party, such Transaction Documents will be duly executed and delivered by each CCS Party. This Agreement constitutes, and upon execution and delivery by each CCS Party of each of the other Transaction Documents to which it is a party, such Transaction Documents will constitute, the valid and binding obligations of such CCS Party, enforceable against such CCS Party in accordance with their terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting enforcement of creditors rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity).
(c) No Conflict; Required Filings and Consents . Except as set forth in Schedule 3.1(c) , the execution and delivery by each CCS Party of this Agreement and each of the other Transaction Documents to which it is a party do not, and the performance by it of its obligations hereunder and thereunder and the consummation by it of the transactions contemplated hereby and thereby, will not (i) violate, conflict with or result in any breach of any provision of its limited liability company agreement or other organizational documents, (ii) violate, conflict with or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under, or permit the termination of, or result in the acceleration of, or entitle any Person to accelerate any obligation, or result in the loss of any benefit, or give any Person the right to require any security to be repurchased, or give rise to the creation of any Lien upon the New Facility, or affect its rights under any of the terms, conditions
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or provisions of any loan or credit agreement, note, bond, mortgage, indenture or deed of trust, or any license, lease, agreement or other instrument or obligation to which such entity is a party or by which or to which such entity or any of its assets or the New Facility may be bound or subject, or (iii) violate any applicable Law. Except as disclosed on Schedule 3.1(c) , no Consent of any Governmental Authority or other Person is necessary or required or has not been obtained as of the Closing Date with respect to each CCS Party in connection with the execution and delivery by each CCS Party of this Agreement and the other Transaction Documents to which it is a party, the performance by it of its obligations hereunder and thereunder or the consummation by it of the transactions contemplated hereby and thereby.
(d) Absence of Litigation . Except as set forth in Schedule 3.1(d) , there are no Proceedings pending or, to the knowledge of each CCS Party, threatened against any CCS Party or relating to the New Facility or any CCS Partys execution, delivery or performance of this Agreement and the other Transaction Documents to which it is a party. No CCS Party has received any Claim that may give rise to any such Proceedings which could reasonably be expected to have a Material Adverse Effect. No CCS Party has knowledge that there is a valid basis for any such Claims or Proceedings. No CCS Party is the subject of any order, judgment, decree, injunction or stipulation of any Governmental Authority that would affect its ability to consummate the transactions contemplated by this Agreement and the other Transaction Documents.
(e) Compliance with Applicable Laws; Permits . Each CCS Party is in compliance with, and the New Facility as of the Closing Date is in compliance with, all applicable Laws, in each case other than as listed or described on Schedule 3.1(e) , or in each case where the failure to be in compliance with such Laws could reasonably be expected to have a Material Adverse Effect. There are no Permits required to be obtained or filed by any CCS Party under any applicable Law either to conduct the business of any CCS Party or otherwise to own or operate the New Facility, other than those listed or described on Schedule 3.1(e) , or where the failure to obtain or file such Permits could reasonably be expected to have a Material Adverse Effect.
(f) Insurance . Schedule 3.1(f) sets forth a list of all fire, general liability, theft and other forms of insurance and all fidelity and surety bonds held by or applicable to each CCS Party or the New Facility, and except as disclosed on such Schedule 3.1(f) , there is no Claim by any CCS Party pending under any such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds.
(g) Title . Except as set forth in Schedule 3.1(g) , Lessor has, and at the Closing will convey to Lessee, good and marketable leasehold title to and possession of the New Facility, free and clear of all Liens, except Permitted Liens.
(h) Condition of New Facility; Adequacy . As of the Closing Date, all of the equipment, machinery and facilities that are included in the New Facility are in good and merchantable condition and have been maintained in accordance with good operating practices, including the manufacturers recommendations. The equipment, machinery and facilities that are in the New Facility are fully functional and constitute all equipment, machinery and facilities currently needed to produce Refined Coal. The New Facility is capable of producing in the
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aggregate 4,200,000 Tons of Refined Coal per year that are eligible for the Section 45 Credit when the New Facility is used in connection with the Power Plant and associated equipment, although actual production levels will be determined by a variety of factors including decisions of Lessee, Utility demand and proper operation and functioning of the Power Plant. No warranty Claim has been made by any CCS Party on the equipment, machinery and facilities that are included in the New Facility.
(i) Environmental Matters . The New Facility has been owned, operated and maintained in compliance with all Environmental Laws and, to the knowledge of the CCS Parties, the New Facility is capable of operating in compliance with all Environmental Laws during the term of this Agreement, as such Environmental Laws exist or are in effect as of the Closing Date, without material modification or capital investment. There are no existing, or to the knowledge of the CCS Parties, threatened Proceedings, and no CCS Party has received any Claim, relating to violations of, or Losses under, Environmental Laws or to the presence, release or discharge of any Hazardous Substances, in each case with respect to the New Facility or to the ownership, operation or maintenance thereof. No Hazardous Substances exist in or on the New Facility, except as set forth in Schedule 3.1(i) . No CCS Party has received any notice from any Governmental Authority or any other Person alleging any violation of any Environmental Laws with respect to the ownership, operation or maintenance of the New Facility, except as is set forth on Schedule 3.1(i) . The CCS Parties have obtained, maintained and complied in all material respects with the terms of Permits required in connection with the ownership, operation and maintenance of the New Facility. No Hazardous Substances have been generated by, or released or discharged from, the New Facility at the Site where such release or discharge could reasonably be expected to result in a Claim or Proceeding pursuant to Environmental Laws. Except as set forth in Schedule 3.1(i) , there are no Hazardous Substances at the Site whose presence or existence is attributable to the New Facility or to the ownership, operation or maintenance thereof, or that would adversely affect the continued operation of the New Facility at the Site. Any chemical additives in the New Facility as of the date hereof and any chemical additives currently proposed to be supplied under the Chemical Additive Supply Agency Agreement do not contain Hazardous Substances in quantities that require special permits, handling or reporting.
(j) Taxes . Except as set forth in Schedule 3.1(j) , all Tax Returns required to be filed by each CCS Party with respect to the New Facility have been duly and timely filed and all information required to be included in each such Tax Return has been so included and all other information provided in each such Tax Return is true, correct, accurate and complete. All Taxes owed by each CCS Party shown on such Tax Returns and all Taxes owed by CCS Party with respect to the New Facility have been paid in full and CCS Party covenants that it will continue to pay all Taxes imposed in respect of the New Facility for all periods ending on or prior to the Closing (and for those periods that include the Closing but do not end on the Closing, Lessor will pay its pro rata share of such Taxes). No CCS Party has received any written notice of deficiency or assessment from any taxing authority with respect to liabilities for Taxes relating to the New Facility, which have not been fully paid or finally settled. There are no outstanding agreements or waivers extending the applicable statutory periods of limitation for or relating to the New Facility for any period. There are no liens for Taxes on the New Facility, except for Taxes not yet due. To the extent required by local Law, the New Facility has been properly listed and described on the property Tax rolls for the taxing units in which the New Facility is located and no portion of the New Facility constitutes omitted property for property Tax purposes.
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(k) Intellectual Property . Except as is set forth on Schedule 3.1(k) , neither the ownership or operation of the New Facility, nor the manufacture, use or sale (including offering for sale and other marketing activities) of the Refined Coal produced from the New Facility, infringes, misappropriates or violates any U.S. patent, trademark, service mark, trade name or copyright, trade secret, obligation of confidence or other proprietary, contract or intellectual property right of any Person.
(l) Contracts . Schedule 3.1(l) sets forth all of the material contracts or material agreements (the Material Contracts ) to which any CCS Party is a party relating to the New Facility or to which the New Facility is bound at the time of the execution of this Agreement. Except as is set forth on Schedule 3.1(l) , the CCS Parties have provided Lessee, including by way of access to an electronic dataroom, a true, correct, accurate and complete copy of each Material Contract. No CCS Party is in default, or has been notified that it is in default, under any Material Contract, and to the CCS Parties knowledge, no other party is in default under any Material Contract where either such default would result in a Material Adverse Effect.
(m) Employee Matters . Except as set forth in Schedule 3.1(m) :
(i) Lessor has no employees;
(ii) Lessor is not a party to any collective bargaining agreement;
(iii) Lessor has not agreed to recognize or bargain with any labor organization, union or other collective bargaining representative;
(iv) No labor organization, union or other collective bargaining representative has been certified as the exclusive bargaining representative of any employees in connection with the New Facility;
(v) No labor organization, union or representative thereof claims to or is seeking to represent employees in connection with the New Facility;
(vi) There is no labor strike or labor dispute, slowdown, work stoppage or lockout pending or threatened against or affecting Lessor; and
(vii) Lessor has not experienced any labor strike or labor dispute, slowdown, work stoppage or lockout in connection with the New Facility.
(n) Certification . As of the Closing Date, the representations and warranties made by CCS to Lessee in the Certification shall be true and correct in all respects.
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(o) Due Diligence Materials . As of the Closing Date, the CCS Parties have provided Lessee, including by way of access to an electronic dataroom, a true, correct, accurate and complete copy of all material responsive to the Due Diligence Request Lists in the possession or control of the CCS Parties or of which the CCS Parties are aware (including responses provided by the CCS Parties in writing to Lessee in connection with the requests made pursuant to the Due Diligence Request Lists), but excluding any materials to which Lessee or any of its affiliates are a party or by which they are bound (such materials, the Due Diligence Materials ).
Section 3.2 Representations and Warranties of Lessee . Lessee represents and warrants to each CCS Party as follows (with the understanding that each CCS Party is relying on such representations and warranties in entering into and performing this Agreement and each of the other Transaction Documents):
(a) Organization; Good Standing; Etc . Lessee is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
(b) Authority . Lessee has all requisite limited liability company power and authority to enter into this Agreement and each of the other Transaction Documents, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Lessee of this Agreement and each of the other Transaction Documents, the performance by it of its obligations hereunder and thereunder and the consummation by Lessee of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of Lessee. This Agreement has been duly executed and delivered by Lessee, and upon execution and delivery by Lessee of each of the other Transaction Documents, such Transaction Documents will be duly executed and delivered by Lessee. This Agreement constitutes, and upon execution and delivery by Lessee of each of the other Transaction Documents, such other Transaction Documents will constitute, the valid and binding obligations of Lessee, enforceable against it in accordance with their terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting enforcement of creditors rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity).
(c) No Conflict; Required Filings and Consents . The execution and delivery by Lessee of this Agreement and each of the other Transaction Documents do not, and the performance by it of its obligations hereunder and thereunder and the consummation by Lessee of the transactions contemplated hereby and thereby will not (i) violate, conflict with, or result in any breach of any provisions of its limited liability company agreement or other organizational documents, (ii) violate, conflict with or result in a violation or breach of or constitute a default (with or without due notice or lapse of time or both) under, or permit the termination of, or result in the acceleration of, or entitle any Person to accelerate any obligation, or result in the loss of any benefit, or give any Person the right to require any security to be repurchased, or give rise to the creation of any Lien upon any of its assets or affect any of its rights under, any of the terms, conditions or provisions of any loan or credit agreement, note, bond, mortgage, indenture or deed
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of trust, or any license, lease, agreement or other instrument or obligation to which Lessee is a party or by which or to which it or any of its assets may be bound or subject, or (iii) violate any applicable Law. No Consent of any Governmental Authority or other Person is necessary or required by or with respect to Lessee in connection with the execution and delivery by Lessee of this Agreement or any of the other Transaction Documents, the performance by Lessee of its obligations hereunder and thereunder or the consummation by Lessee of the transactions contemplated hereby and thereby.
(d) Absence of Litigation . There are no Proceedings pending or, to the knowledge of Lessee, threatened against Lessee or any of its Affiliates that seeks to restrain, prohibit or otherwise enjoin this Agreement or the consummation of the transactions contemplated hereby. Lessee is not the subject of any order, judgment, decree, injunction or stipulation of any Governmental Authority that would affect its ability to consummate the transactions contemplated by this Agreement and the other Transaction Documents.
(e) Brokers Fee . No agent, broker, investment banker or other Person engaged by Lessee is or will be entitled to any brokers or finders fee or any other commission or similar fee payable by any CCS Party in connection with any of the transactions contemplated by this Agreement or the other Transaction Documents.
(f) Taxes. Except as set forth in Schedule 3.2(f) , all Tax Returns required to be filed by the Lessee with respect to the Existing Facility have been duly and timely filed and all information required to be included in each such Tax Return has been so included and all other information provided in each such Tax Return is true, correct, accurate and complete. All Taxes owed by the Lessee shown on such Tax Returns and all Taxes owed by the Lessee y with respect to the Existing Facility have been paid in full and the Lessee covenants that it will continue to pay all Taxes imposed in respect of the Existing Facility for all periods ending on or prior to the Closing (and for those periods that include the Closing but do not end on the Closing, Lessee will pay its pro rata share of such Taxes). The Lessee has not received any written notice of deficiency or assessment from any taxing authority with respect to liabilities for Taxes relating to the Existing Facility, which have not been fully paid or finally settled. There are no outstanding agreements or waivers extending the applicable statutory periods of limitation for or relating to the Existing Facility for any period. There are no liens for Taxes on the Existing Facility, except for Taxes not yet due. To the extent required by local Law, the Existing Facility has been properly listed and described on the property Tax rolls for the taxing units in which the Existing Facility is located and no portion of the Existing Facility constitutes omitted property for property Tax purposes.
Section 3.3 Survival of Representations and Warranties .
(a) All representations and warranties made by a Party in this Agreement or in any Transaction Document, have been relied upon by the other Parties and shall survive the Closing hereunder as set forth in this Section 3.3 , and shall not merge in the performance of any obligation by any Party hereto.
(b) All claims by a Lessee Indemnified Party for indemnification pursuant to Article VII resulting from breaches of representations or warranties shall be forever barred
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unless the CCS Parties are notified: (i) in the case of a claim based upon fraud or a breach of a representation or warranty set forth in Section 3.1(i) , within thirty (30) days after the expiration of the statutory period of limitations applicable to such claim, (ii) in the case of a claim based upon a breach of a representation or warranty in Sections 3.1(g) , (j) , (n) and (o) , within thirty (30) days after the expiration of the relevant statutory period of limitations, including extensions, applicable to the federal income tax obligations of Lessee; (iii) in the case of a claim based upon a breach of a representation or warranty in Sections 3.1(a) , (b) and (c) within three (3) years after the Closing Date; or (iv) in all other cases, within the Initial Term; provided , that, if written notice for a claim of indemnification has been given by such Lessee Indemnified Party on or prior to the last day of the applicable period, then the obligation of the CCS Parties to indemnify such Lessee Indemnified Party pursuant to Article VII shall survive with respect to such claim until such claim is finally resolved.
(c) All claims by a CCS Indemnified Party for indemnification pursuant to Article VII resulting from breaches of representations or warranties shall be forever barred unless Lessee is notified: (i) in the case of claim based upon fraud, within thirty (30) days of the expiration of the statutory period of limitations applicable to such claim; (ii) in the case of a claim based upon a breach of a representation or warranty in Sections 3.2(a) , (b) , and (c) , within three (3) years after the Closing Date or (iii) in all other cases within the Initial Term; provided, that, if written notice for a claim of indemnification has been given by such CCS Indemnified Party on or prior to the last day of the applicable period, then the obligation of Lessee to indemnify such CCS Indemnified Party pursuant to Article VII shall survive with respect to such claim until such claim is finally resolved.
ARTICLE IV
TAX MATTERS
Section 4.1 Tax Treatment of the Transaction .
(a) The Parties agree that for federal income Tax purposes, (i) the transactions described in the Existing Lease shall be considered as a taxable installment sale of the Existing Facility, (b) the transactions described in this Agreement and in the New Equipment Lease shall be treated as a like-kind exchange under Section 1031 of the Code of the facility leased pursuant to the Existing Lease for the New Facility, and (c) the Tax treatment of Contingent Rent Payments made by Lessee to Lessor under the terms of New Equipment Lease will be governed by the principles of Treasury Regulation section 1.1275-4(c). Each Party agrees to report the transaction consistently with such characterization. Lessee will provide Lessor with an allocation of the fixed payments under the Initial Term of the New Equipment Lease between interest and principal components within ninety (90) days after the Closing Date. Lessee will provide Lessor with an allocation of the fixed payments due under each Renewal Term of the New Equipment Lease between interest and principal components within ninety (90) days of the start of each Renewal Term. Lessee will provide an allocation of each contingent payment under the New Equipment Lease between interest and principal components within forty-five (45) days after such payment is made. Lessor shall provide any objections to Lessee within thirty (30) days after the receipt thereof. If Lessor raises objections, the Parties will apply the procedures set forth in Section 4.1(b) to resolve such objections.
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(b) All rent payments under the New Equipment Lease shall be allocated to the New Facility in accordance with Section 1060 of the Code. Each CCS Party shall provide Lessee with any information reasonably requested and required to complete IRS Form 8594. Lessee shall complete Form 8594 and furnish each CCS Party with a copy (the Draft Allocation ) within one hundred twenty (120) days from the Closing Date. Each CCS Party shall review the Draft Allocation and provide any objections to Lessee within thirty (30) days after the receipt thereof. In the event no CCS Party objects to Lessees Draft Allocation, such Draft Allocation shall be final (the Final Allocation ) and the Parties shall report such Final Allocation for Tax purposes and file Tax Returns (including Form 8824 under Section 1031 of the Code and Form 8594 under Section 1060 of the Code) in a manner consistent with such mutually agreed Final Allocation. If any CCS Party raises objections to the Draft Allocation, the Parties will negotiate in good faith to resolve such objection(s). If the Parties are unable to agree on the Draft Allocation within fourteen (14) days after such CCS Party raises such objections, the Parties shall refer such dispute to an independent nationally recognized accounting firm (the Independent Accountant ), which Independent Accountant shall make a final and binding determination as to all matters in dispute with respect to the Draft Allocation (and only such matters) within thirty (30) days and promptly shall notify the Parties in writing of its resolution. Each Party shall bear and pay one-half of the fees and other costs charged by the Independent Accountant.
(c) No Party shall have any liability or obligation to the other for any failure of the exchange of the Existing Facility and New Facility hereunder to qualify as a like-kind exchange as to Lessee under Section 1031 of the Code.
Section 4.2 Transaction Taxes . Any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax or other similar Tax, including any penalties, interest and additions to Tax, imposed by reason of any of the transactions (including the rescission rights) contemplated by this Agreement shall be shared equally by Lessor and Lessee.
Section 4.3 Property Taxes .
(a) Any property Taxes imposed on or with respect to the New Facility for the taxable period (for purposes of this section, taxable period means the period beginning on the assessment date for property Taxes through the day before the next assessment date for such Taxes) that contains the Closing Date shall be prorated based on the relative number of days prior to the Closing Date and on and after the Closing Date during the taxable period, with Lessor being responsible for ad valorem property Taxes allocable to the taxable period ending prior to the Closing Date and Lessee being responsible for ad valorem property Taxes with respect to the New Facility allocable to the taxable period beginning on the Closing Date.
(b) The amount of any refunds of property Taxes shall be equitably apportioned between Lessor and Lessee. Each Party shall forward, and shall cause its Affiliates to forward, to the Party entitled to receive a refund of property Tax, the amount of such refund within thirty (30) days after such refund is received, net any costs or expenses incurred by such Party in procuring such refund.
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(c) Lessor shall file in a timely manner annual Missouri personal property Tax returns with respect to the New Facility.
Section 4.4 Tax Return Information and Tax Proceedings .
(a) Lessor and Lessee shall cooperate fully as and to the extent reasonably requested by the other Party, in connection with the preparation and filing of Tax Returns and any audit, litigation or other proceeding (each a Tax Proceeding ) with respect to Taxes imposed on or with respect to the New Facility; provided that Lessee will control the conduct of any Tax Proceeding if Lessee will bear the liability for any additional Taxes imposed on or with respect to the New Facility as a result of such Tax Proceeding and Lessor will control the conduct of any Tax Proceeding if Lessor will bear the liability for any additional Taxes imposed on or with respect to the New Facility as a result of such Tax Proceeding. Such cooperation shall include the retention and (upon the other Partys request) the provision of Books and Records and information which are reasonably relevant to any such Tax Return or Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and consent to attendance by the other Party in any third-party interview, deposition or other discovery process relating to such Taxes. For the avoidance of doubt, for purposes of this Section 4.4 , Taxes imposed on or with respect to the New Facility do not include Taxes imposed on income or Section 45 Credits arising from the production of Refined Coal by the New Facility.
(b) Lessor shall retain all Tax Returns and related work papers, and all Books and Records relevant to the business of, and Taxes and Tax Returns with respect to, the New Facility until a Final Disposition has occurred with respect to all Tax periods for which Lessee claims Section 45 Credits with respect to Refined Coal produced by the New Facility. If Lessor wishes to dispose of Books and Records at any time, Lessor shall provide written notice to Lessee describing the Books and Records to be disposed of ninety (90) days prior to taking such action. Lessee may arrange to take delivery of the Books and Records described in such notice at its own expense during such ninety (90)-day period.
ARTICLE V
CLOSING CONDITIONS
Section 5.1 Lessees Conditions to Closing . The obligations of Lessee to consummate the transactions provided for in this Agreement are subject to the satisfaction (or waiver by Lessee) on or prior to the Closing of each of the following conditions precedent (except for those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction of such conditions):
(a) The representations and warranties of each CCS Party set forth in Section 3.1 shall be true and correct in all respects (other than any representations and warranties of each CCS Party that are qualified by a Material Adverse Effect, which, to the extent so qualified, shall be true and correct in all respects) at and as of the Closing.
(b) CCS shall provide to Lessee a written certification, substantially in the form of Exhibit F (the Certification ), with respect to the New Facility once CCS believes the
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New Facility has passed all Tests and has been placed in service within the meaning of Section 45(d)(8) of the Code and Lessee shall have delivered to CCS its written acceptance of the Certification (the Acceptance ), which Lessee may withhold in its sole discretion.
(c) The CCS Parties shall provide to Lessee the opportunity to conduct due diligence with respect to the New Facility as Lessee deems appropriate, and shall at a minimum provide Lessee with the Due Diligence Materials.
(d) Each of the CCS Parties shall have performed or complied with in all material respects the obligations, agreements and covenants of each CCS Party contained in this Agreement as to which performance or compliance by such CCS Party is required prior to or on the Closing Date.
(e) The CCS Parties shall have delivered to Lessee the CCS Deliverables.
Section 5.2 CCS Parties Conditions to Closing . The obligations of the CCS Parties to consummate the transactions provided for in this Agreement are subject to the satisfaction (or waiver by the CCS Parties) on or prior to the Closing of each of the following conditions precedent (except for those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction of such conditions):
(a) The representations and warranties of Lessee set forth in Section 3.2 shall be true and correct in all respects at and as of the Closing.
(b) Lessee shall have performed or complied with in all material respects the obligations, agreements and covenants of Lessee contained in this Agreement as to which performance or compliance by Lessee is required prior to or on the Closing Date.
(c) Lessee shall have delivered to the CCS Parties the Lessee Deliverables.
ARTICLE VI
CLOSING
Section 6.1 Closing . Subject to the satisfaction or waiver of the conditions precedent set forth in Article V , the closing (the Closing) will take place at 4:00 p.m., eastern time on the Effective Date or such other time and date as may be agreed upon by the Parties (the Closing Date ).
Section 6.2 Closing Deliverables.
(a) At the Closing, Lessee shall deliver, or cause to be delivered, to the CCS Parties the following (collectively, the Lessee Deliverables ):
(i) New Equipment Lease . A counterpart of the New Equipment Lease executed by Lessee;
(ii) Omnibus Amendment . A counterpart of the Omnibus Amendment executed by Lessee;
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(iii) Technology Sub-License Amendment . A counterpart of the Technology Sub-License Amendment executed by Lessee; and
(iv) Lessee Parent Guaranty . A counterpart of the Lessee Parent Guaranty executed by GS.
(b) At the Closing, the CCS Parties shall deliver, or cause to be delivered, to Lessee the following (collectively, the CCS Deliverables ):
(i) New Equipment Lease . A counterpart of the New Equipment Lease executed by Lessor;
(ii) Omnibus Amendment . A counterpart of the Omnibus Amendment executed by CCSS;
(iii) Technology Sub-License Amendment . A counterpart of the Technology Sub-License Amendment executed by ADA-ES and CCS; and
(iv) Lessor Parent Guaranties . A counterpart of each of the Lessor Parent Guaranties executed by ADA-ES, NexGen LLC, NexGen and Republic, as applicable.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification of Lessee .
(a) The CCS Parties jointly and severally shall indemnify, defend and hold harmless the Lessee Indemnified Parties from and against any and all Lessee Indemnified Costs.
(b) The obligations of the CCS Parties under Section 7.1(a) shall be subject to the following limitations:
(i) The CCS Parties shall not have any liability for Lessee Indemnified Costs for any breach by the CCS Parties of any representations or warranties in Section 3.1 unless and until the aggregate of all Lessee Indemnified Costs relating thereto for which the CCS Parties would, but for this clause (i) , be required to indemnify Lessee exceeds on a cumulative basis an amount (the CCS Basket Amount ) equal to $500,000, in which case, subject to clause (ii) of this subsection (b) , the CCS Parties shall be liable for the Lessee Indemnified Costs incurred by the Lessee Indemnified Parties but only to the extent such Lessee Indemnified Costs exceed the CCS Basket Amount;
(ii) Except with respect to the matter disclosed on Schedule 3.1(d) (the disclosure on such Schedule 3.1(d) and Lessees actual knowledge of which the Parties acknowledge and agree shall not affect the CCS Parties liability to the Lessee Indemnified Parties for any Lessee Indemnified Costs associated therewith or the ability of any such Lessee Indemnified Costs to be aggregated for the purposes of Section 7.1(b)(i) ), the CCS Parties shall not have any liability for Lessee Indemnified
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Costs for any breach by the CCS Parties of any representation and warranty in Section 3.1 if Lessee had actual knowledge that such representation and warranty was not true and correct in any material respect at the time of the Closing, and no Lessee Indemnified Costs related thereto shall be aggregated for the purpose of Section 7.1(b)(i) ;
(iii) The CCS Parties shall not have any liability for Lessee Indemnified Costs for breach of representations and warranties in excess of the amounts specified in Section 7.1(c) ;
(iv) The obligations to indemnify and hold Lessee harmless pursuant to Section 7.1(a) with respect to breaches of representations and warranties shall be subject to the limitations in Section 3.3 ; and
(v) The liability of the CCS Parties for Lessee Indemnified Costs arising from Losses that are assessed against Lessee arising out of any failure of the CCS Parties to obtain or file any Permit that was required to be obtained or filed by the CCS Parties prior to the Closing either to conduct the business of the CCS Parties in Missouri or to own or operate the New Facility in Missouri shall not be limited to that portion of such Loss attributable to the time period prior to Closing.
(c) The obligations of the CCS Parties under Section 7.1(a) shall be subject to the following limitations:
(i) The CCS Parties shall not have any liability for lost or disallowed Section 45 Credits relating to Refined Coal actually produced at the New Facility except for and to the extent that breaches of the representations and warranties in Sections 3.1(a) , (b) , (c) , (e) , (g) , (j) , (n) and (o) give rise to such lost or disallowed credits;
(ii) Except as otherwise provided in Section 7.1(c)(iii) , the CCS Parties shall not have any liability for Lessee Indemnified Costs for breaches of the representations and warranties in Sections 3.1(a) , (b) , (c) , (e) , (g) , (j) , (n) and (o) to the extent the aggregate amount of such Losses exceeds the sum of six million dollars ($6,000,000) plus the Initial Term Fixed Rent Payments, Renewal Term Fixed Rent Payments and Contingent Rent Payments (as such terms are defined in the New Equipment Lease) paid under the New Equipment Lease as of the relevant time of determination (the CCS First Cap Amount );
(iii) Except as otherwise provided in Section 7.1(c)(iv) , the CCS Parties shall not have any liability for Lessee Indemnified Costs for breaches of the representations and warranties in this Agreement (other than those in Sections 3.1(a) , (b) , (c) , (e) , (g) , (j) , (n) and (o) of this Agreement) to the extent the aggregate amount of such Losses exceed six million dollars ($6,000,000) (the CCS Second Cap Amount ); and
(iv) The limitations of the CCS First Cap Amount and the CCS Second Cap Amount shall not apply to Lessee Indemnified Costs resulting from (A) a breach of any representation or warranty contained in Section 3.1(i) , (B) or any gross negligence, fraud or willful misconduct of any CCS Party or (C) any Third Party Claim.
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Section 7.2 Indemnification of CCS Parties .
(a) Lessee shall indemnify, defend and hold harmless the CCS Indemnified Parties from and against any and all CCS Indemnified Costs.
(b) Lessees obligations under Section 7.2(a) shall be subject to the following limitations:
(i) Lessee shall not have any liability for CCS Indemnified Costs for any breach by Lessee of any representations or warranties in Section 3.2 unless and until the aggregate of all CCS Indemnified Costs relating thereto for which Lessee would, but for this clause (i) , be required to indemnify the CCS Indemnified Parties exceeds on a cumulative basis an amount (the Lessee Basket Amount ) equal to $500,000, in which case, subject to clause (ii) of this subsection (b) , Lessee shall be liable for the CCS Indemnified Costs incurred by the CCS Indemnified Parties, but only to the extent such CCS Indemnified Costs exceed the Lessee Basket Amount;
(ii) Lessee shall not have any liability for CCS Indemnified Costs for any breach of any representation and warranty in Section 3.2 if any CCS Party had actual knowledge that such representation and warranty was not true and correct in any material respect at the time of the Closing and no CCS Indemnified Costs related thereto shall be aggregated for the purpose of Section 7.2(b)(i) ;
(iii) Lessee shall not have any liability for CCS Indemnified Costs for any breach of any representations and warranties to the extent the aggregate amount of all CCS Indemnified Costs for breaches of representations and warranties for which Lessee would otherwise be liable exceeds six million dollars ($6,000,000) (the Lessee Cap Amount ); provided, however , that the limitation of the Lessee Cap Amount shall not apply to any CCS Indemnified Costs resulting from (A) any gross negligence, fraud or willful misconduct of Lessee or (B) any Third Party Claim; and
(iv) The obligations to indemnify and hold the CCS Indemnified Parties harmless pursuant to Section 7.2(a) with respect to breaches of representations and warranties shall be subject to the limitations in Section 3.3 .
Section 7.3 Notification of Claims . In the event that any Third Party Claim is hereafter asserted against an Indemnified Party as to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall notify the Indemnifying Party promptly and in writing after (a) receipt of notice of commencement of any third-party litigation against such Indemnified Party, (b) receipt by such Indemnified Party of written notice of any Third-Party Claim pursuant to an invoice, notice of claim or assessment, against such Indemnified Party, or (c) such Indemnified Party becomes aware of the existence of any other event in respect of which Indemnification may be sought from the Indemnifying Party (such a notice, being a Claims Notice ). The Claims Notice shall describe the Claim and the specific facts and circumstances in reasonable detail, shall include a copy of the notice referred to in (a) and (b), above, and shall indicate the amount, if known, or an estimate, if possible, of Losses that have been or may be incurred or suffered.
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Section 7.4 Defense of Third-Party Claims . If an Indemnified Partys claim for indemnification under Section 7.1 or Section 7.2 is based on a Claim brought by a Third Party (a Third Party Claim ), the Indemnifying Party shall have the right, at its sole cost and expense, to defend such Third Party Claim in the name or on behalf of the Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall have the right (following notice to the Indemnifying Party) to retain its own counsel and control its defense of any such Third Party Claim, with the reasonable fees and expenses to be paid by the Indemnifying Party if (a) representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate because of actual or potential differing interests between such Indemnified Party and the Indemnifying Party; (b) the Indemnifying Party shall have failed to employ counsel to defend such Proceeding or otherwise failed to prosecute such defense with reasonable diligence; or (c) the Indemnified Party shall have been advised by counsel chosen by it that there may be one or more legal defenses or counterclaims available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party in such Proceeding. If the immediately-preceding sentence is inapplicable (or if the Indemnified Party waives its right hereunder to defend such Third Party Claim), the Indemnified Party shall have the right to employ separate counsel at its own cost and expense in the Proceeding and, in such event, shall and shall have the right to, consult with the Indemnifying Party regarding the defense thereof; provided that, except as otherwise provided herein, the Indemnifying Party shall at all times control such defense of such Proceeding. If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party may not settle or compromise the claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the settlement or compromise includes a full release of all of the Indemnified Parties. The Indemnifying Party shall pay to or for the benefit of the Indemnified Parties in cash the amount for which such Indemnified Parties are entitled to be indemnified within thirty (30) days after the settlement or compromise of such Third Party Claim or the final non-appealable judgment of a court of competent jurisdiction. An Indemnifying Party shall not be liable for any settlement or compromise of any Third Party Claim without its consent.
Section 7.5 Other Claims . Any Indemnified Party that seeks indemnification under Section 7.1 or Section 7.2 for Losses that are not attributable to a Third Party Claim shall notify the Indemnifying Party, stating the nature and basis of the Losses and, to the extent known, the actual or estimated amount thereof. The Indemnifying Party shall pay the amount of such Losses, as specified in such notice, in the manner described in Section 7.6 .
Section 7.6 Payment . Upon a determination that an Indemnifying Party is liable for indemnification under Section 7.1 or Section 7.2 (by admission of the Indemnifying Party, agreement of the Indemnifying Party and Indemnified Party, or final determination by a court of competent jurisdiction not subject to appeal), the Indemnifying Party shall pay to the Indemnified Party, within thirty (30) days after such determination, the amount of the Loss indemnified thereby. Upon the payment in full of any such Loss, the Indemnifying Party making such payment shall be subrogated to the rights of the Indemnified Party against any other Person with respect to the subject matter of such Loss and of any claim or Proceeding relating thereto.
Section 7.7 No Duplication . Any liability for indemnification under this Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
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Section 7.8 Sole Remedy . Except with respect to the remedies permitted under the other Transaction Documents, the Parties agree that the sole and exclusive remedy of any Party hereto with respect to this Agreement, or any other claims relating to the New Facility or the events giving rise to this Agreement and the transactions provided for herein or contemplated hereby, shall be limited to (a) the right to seek injunctive relief, rescission (only in the case of fraud or otherwise as provided herein), or specific performance of or as to any obligations under this Agreement, and (b) the indemnification provisions set forth in this Article VII and, in furtherance of the foregoing, each Party hereby waives and releases the other Party from, to the fullest extent permitted under any applicable Law, any and all rights, claims and causes of action it may have against the other Party except as provided in this Section 7.8 ; provided that no Party shall be entitled to receive a duplicate amount for any claim submitted both under this Agreement and under any other Transaction Document.
Section 7.9 General Limitation of Damages . IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY LOST BUSINESS OPPORTUNITIES OR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES INCURRED OR SUFFERED BY AN INDEMNIFIED PERSON; provided, however , that this Section 7.9 shall not limit an Indemnified Persons right to indemnification pursuant to Section 7.1 or Section 7.2 for any such Losses (a) that the Indemnified Person is legally required to pay to another Person as a result of a Claim or Proceeding (including Losses resulting from Third Party Claims), or (b) that constitute lost Section 45 Credits, but only to the extent provided by and subject to the limitations of this Agreement.
Section 7.10 After-Tax Basis . All indemnification payments made pursuant to this Article VII shall be treated as an adjustment to the price paid under the taxable installment sale, unless an independent tax counsel selected jointly by the Parties advises that such treatment is more likely than not incorrect. In such a case, all indemnification payments made pursuant to this Article VII will be calculated and paid on an After-Tax Basis.
Section 7.11 No Double Recovery . Notwithstanding anything contained in this Agreement, the Agreement to Lease, the Existing Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense, the Existing Guaranties or any other Transaction Document to the contrary, no Lessee Indemnified Party or CCS Indemnified Party shall be entitled to indemnification or reimbursement under this Agreement for any amounts (including Losses) if such Lessee Indemnified Party or CCS Indemnified Party, as applicable, has made a claim for indemnification or reimbursement under the Agreement to Lease, the Existing Equipment Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense, the Existing Guaranties or any other Transaction Document (other than this Agreement) with respect to the same subject matter or breach giving rise to such claim, whether such claim resulted from an obligation to indemnify or an obligation to pay damages (including any liquidated damages). For the avoidance of doubt, any amounts received by a Lessee Indemnified Party or CCS Indemnified Party, as applicable, from a party under the Agreement to Lease, the Existing Lease,
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the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense, the Existing Guaranties or any other Transaction Document (other than this Agreement) that a Party is obligated to pay under this Agreement, shall be deducted from amounts owed to such Lessee Indemnified Party or CCS Indemnified Party, as applicable, pursuant to this Agreement to the extent such amount relates to a claim that arose from the same subject matter or breach giving rise to such claim.
ARTICLE VIII
TERMINATION; EFFECT OF TERMINATION
Section 8.1 Termination . This Agreement may be terminated prior to the Closing only as follows:
(a) by mutual written consent of the Parties; or
(b) by either Party by delivering written notice to the other Party:
(i) if (A) any Law shall make the consummation of the transactions contemplated hereby illegal or otherwise prohibited; or (B) a court of competent jurisdiction or other Governmental Authority shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the Parties shall use their reasonable efforts to lift or vacate), in each case permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and the other Transaction Documents, and such order, decree, ruling or other action shall have become final and non-appealable;
(ii) if a Section 45 Change occurs; or
(iii) if all conditions precedent to the Closing under Article V shall not have been satisfied (or waived by the applicable Party) by 5:00 p.m., local Houston, Texas time, on December 31, 2011; provided, however , that the right to terminate this Agreement under this clause (iii) shall not be available to any Party that (A) proximately contributed to the occurrence of the failure to satisfy such conditions precedent by such date and time, or (B) failed to use all reasonable efforts to satisfy such conditions precedent; provided further, however , that Lessees refusal to deliver the Acceptance in accordance with Section 2.1(c) shall not affect Lessees right to terminate this Agreement.
The right of any Party to terminate this Agreement pursuant to this Section 8.1 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Party hereto, any Person controlling any such Party or any of their Representatives whether prior to or after the execution of this Agreement. Notwithstanding anything in this Section 8.1 to the contrary, no Party that is in material breach of this Agreement shall be entitled to terminate this Agreement except with the written consent of the other Party.
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Section 8.2 Effect of Termination . In the event of termination of this Agreement pursuant to Section 8.1 :
(a) This Agreement shall become null and void and of no further effect and there shall be no liability or obligation hereunder on the part of the CCS Parties or Lessee, except (i) any Party nevertheless shall be entitled to seek any remedy to which it may be entitled at Law or in equity for the violation or breach by any other Party of any agreement or covenant (but not any representation or warranty) contained in this Agreement that occurs prior to the termination; (ii) the provisions of this Section 8.2 , Article VII and Article IX (and all associated defined terms) shall survive any such termination; and (iii) each Party shall within five (5) days after such termination redeliver all documents, work papers and other materials of the other Parties relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the Party furnishing the same;
(b) If the New Facility has been installed at the Site prior to termination of this Agreement pursuant to Section 8.1 , the CCS Parties shall cause the New Facility to be removed from the Site and shall cause the Existing Facility to be re-installed at the Site in the same configuration as it existed immediately prior to its removal from the Site;
(c) Unless otherwise terminated pursuant to its terms, the Existing Equipment Lease shall continue in its full force and effect; and
(d) The CCS Parties shall be entitled to use, operate, sell, lease, transfer or otherwise dispose of the New Facility, at such other location as the CCS Parties may determine, all in their sole and absolute discretion.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Confidentiality .
(a) Each Party shall maintain the terms of this Agreement in confidence and shall not disclose any information concerning the terms, performance or administration of this Agreement to any other Person; provided that a Party may disclose such information: (i) to any of such Partys Group, (ii) to any prospective member of such Partys Group, (iii) to any actual or prospective purchaser of all or a portion of such Partys interest in the New Facility and (iv) to any Person providing or evaluating a proposal to provide financing to the recipient Party or any direct or indirect owner of such Party; provided in each case that the recipient Party shall provide to each Person to which disclosure is made a copy of this Section 9.1 and direct such Person to treat such information confidentially, and the recipient Party shall be liable for any breach of the terms of this Section 9.1 by such Persons to which it makes any such disclosure. The foregoing restrictions will not apply (A) to information that is or becomes generally available to the public otherwise than as a result of disclosure by the recipient Party, (B) to information that is already in, or subsequently comes into, the recipient Partys possession, provided that the source of such information was not, to the recipient Partys knowledge, obligated to keep such information confidential, (C) to information that is required to be disclosed pursuant to Law or stock exchange rules and regulations or is otherwise subject to legal, judicial, regulatory or self-regulatory requests for information or documents or (D) subject to Section 9.1(b) below, to the Tax structure or Tax treatment of the transactions under this Agreement.
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(b) Each Party may disclose to any and all Persons, without limitation of any kind, the Tax treatment and Tax structure of the transactions under this Agreement; provided, however , that any such information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The Tax structure and Tax treatment of the transaction includes only those facts that may be relevant to understanding the purported or claimed U.S. federal and state income Tax treatment or Tax structure of the transactions under this Agreement and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any parties involved in any of the Transactions contemplated by this Agreement or the other Transaction Documents.
(c) If any Party is required to disclose any information required by this Section 9.1 to be maintained as confidential in a judicial, administrative or governmental proceeding, such Party shall give the other Party at least ten (10) days prior written notice (unless less time is permitted by the applicable proceeding) before disclosing any such information in any said proceeding and, in making such disclosure, the Party required to disclose the information shall disclose only that portion thereof required to be disclosed and shall cooperate with the other Party in the other Partys attempts to seek to preserve the confidentiality thereof, including if such Party seeks to obtain protective orders and/or any intervention.
Section 9.2 Further Actions . After the Closing Date, each of the Parties shall execute and deliver such other certificates, agreements, conveyances and other documents, and take such other action, as may be reasonably requested by the other Party in order to (a) transfer and assign to, and vest in, Lessee a valid leasehold interest in the New Facility pursuant to the terms of this Agreement or (b) otherwise carry out the intent and purpose of this Agreement and the other Transaction Documents.
Section 9.3 Amendment, Modification and Waiver . This Agreement may not be amended or modified except by an instrument in writing signed by each of the Parties. Any failure of a Party to comply with any obligation, covenant, agreement or condition of such Party contained herein may be waived only if set forth in an instrument in writing signed by the Party to be bound thereby, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any other failure.
Section 9.4 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
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Section 9.5 Expenses and Obligations . Except as otherwise expressly provided in this Agreement, all costs and expenses incurred by the Parties in connection with this Agreement and the consummation of the transactions contemplated hereby shall be borne solely and entirely by the Party which has incurred such expenses.
Section 9.6 Binding Effect; Third Parties . This Agreement shall be binding upon and, except as provided below, inure solely to the benefit of each Party and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other Person (other than the Lessee Indemnified Parties and CCS Indemnified Parties as provided in Article VII ) any rights or remedies of any nature whatsoever under or by reason of this Agreement).
Section 9.7 Notices . All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, by a nationally recognized overnight courier, by facsimile or mailed by registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):
If to Lessee, to:
GS RC Investments LLC
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Attention: Michael Feldman
Fax: (212) 428-3868
Email: michael.feldman@gs.com
With a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Attention: F. B Cochran III
Fax: (713) 615-5368
Email: fcochran@velaw.com
30
If to the CCS Parties, to:
Clean Coal Solutions, LLC
Woods Mill Point, Suite 250
425 S. Woods Mill Road
Town and Country, MO 63017
Attention: Jerry Daseler
Fax: (636) 681-1884
Email: jdaseler@sbcglobal.net
With copies to (which shall not constitute notice):
Hogan Lovells US LLP
1200 Seventeenth Street, Suite 1500
Denver, CO 80202
Attention: Tyler Harvey
Fax: (303) 899-7333
Email: tyler.harvey@hoganlovells.com
and
Clean Coal Solutions, LLC
3300 South Parker Road, Suite 310
Aurora, CO 80014
Attention: Brian Humphrey
Fax: (303) 751-9210
Email: bhumphrey@nexgen-group.com
All notices and other communications given in accordance herewith shall be deemed given (a) on the date of delivery, if hand delivered, (b) on the date of receipt, if faxed (provided a hard copy of such transmission is dispatched by first class mail within forty-eight (48) hours), (c) three (3) Business Days after the date of mailing, if mailed by registered or certified mail, return receipt requested, and (d) one (1) Business Day after the date of sending, if sent by a nationally recognized overnight courier; provided , however , that a notice given in accordance with this Section 9.7 but received on any day other than a Business Day or after business hours in the place of receipt, will be deemed given on the next Business Day in that place.
Section 9.8 Knowledge . The term knowledge when used in the phrases to the knowledge of the CCS Parties or the CCS Parties have no knowledge or words of similar import shall mean, and shall be limited to, the actual knowledge of the individuals listed on Schedule 9.8 after reasonable investigation and due inquiry.
Section 9.9 Counterparts . This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.
31
Section 9.10 Entire Agreement . This Agreement, the Agreement to Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense and the other Transaction Documents shall constitute the entire agreement between the Parties hereto relating to the subject matter hereof and in this Agreement, the Agreement to Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense and the other Transaction Documents. No modification of this Agreement or waiver of any provision hereof shall be binding unless the modification or waiver shall be in writing and signed by the Parties hereto.
Section 9.11 Governing Law; Choice of Forum; Waiver of Jury Trial . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
Section 9.12 Private Letter Ruling . If Lessee or any of its Affiliates decides to pursue a request for a PLR, determination letter, Pre-Filing Agreement or other written guidance from the IRS (the IRS Guidance ) with respect to any aspect of the transactions contemplated by this Agreement or any of the other Transaction Documents or in relation to the New Facility, the Parties shall consider in good faith and make such amendments to this Agreement as may be necessary to permit Lessee to obtain the IRS Guidance. Neither Party shall be required to agree to any such amendment that it reasonably determines, in good faith, is adverse to such Party in any material respect; provided that Lessor shall not withhold its agreement to any such amendment if Lessee has agreed to fully compensate Lessor for any adverse economic effect on Lessor resulting from such amendment and such amendment would not cause any material adverse effect on Lessor for which it cannot adequately be compensated by Lessee; and provided further , that if Lessee requests a PLR from the IRS with respect to the New Facility before the date that is ninety (90) days after the Closing Date and Lessee thereafter receives a PLR from the IRS with respect to the Existing Facility but is unable to obtain a PLR from the IRS with respect to the New Facility, the New Facility will be exchanged for the Existing Facility, the provisions of Section 8.2 shall apply, the Existing Equipment Lease shall be reinstated and the Parties shall execute and deliver all other agreements and documents necessary or desirable to effectuate re-installation, operation and use of the Existing Facility in accordance with the terms of the Existing Equipment Lease.
Section 9.13 Publicity . Lessor agrees that it will not, without the prior written consent of Lessee, (a) use in advertising, publicity or otherwise the name of GS, or any Affiliate thereof (including Lessee), or any partner or employee of GS, or any Affiliate thereof (including Lessee), or any trade name, trademark, trade device, service mark, symbol or any abbreviation,
32
contraction or simulation thereof owned by GS, or any Affiliate thereof (including Lessee), or (b) represent, directly or indirectly, that any product or any service provided by Lessor has been approved or endorsed by GS, or any Affiliate thereof (including Lessee). No public announcement of any kind regarding the existence or terms of this Agreement shall be made without the prior written consent of the Parties. For the avoidance of doubt, nothing in this Section 9.13 shall limit Lessors obligation to disclose information pursuant to Section 9.1 .
Section 9.14 Assignment . No Party shall assign or otherwise transfer this Agreement or any of its rights hereunder without the prior written consent of the other Parties, and any purported Assignment made without such prior written consent shall be void. Notwithstanding the foregoing:
(a) Any Party may, without the need for consent from the other Parties, make an assignment of this Agreement to an Affiliate of such Party; provided that such Affiliate assumes all of the obligations of the Party making the Assignment and the Lessor Parent Guaranties or the Lessee Parent Guaranty remain in effect, as applicable, with respect to the obligations of such Affiliate, and in such event the assigning Party shall be released from its obligations under this Agreement, except for those obligations that arose prior to such assignment;
(b) Lessee may, without the need for consent from either of the CCS Parties, make an Assignment of this Agreement to any Person (i) succeeding to all or substantially all of its assets, provided such Person has, or its obligations under this Agreement are guaranteed by a Person who has, an Investment Grade rating, or (ii) after December 31, 2019 if the Section 45 Credit for Refined Coal produced by the New Facility has been extended beyond such date; and
(c) Lessor may, with the prior written consent of Lessee, make an assignment of this Agreement to any Person succeeding to all or substantially all of its assets; provided that (i) the acquiring Person assumes all obligations of Lessor hereunder, and (ii) either (A) the Lessor Parent Guaranties remain in full force and effect with respect to the Person succeeding to all or substantially all of Lessors assets, or (B) the Lessor Parent Guaranties are replaced by a new guaranty or guaranties on the same terms as the Lessor Parent Guaranties covering such assumed obligations from a Person having an Investment Grade rating, and in such event Lessor shall be released from its obligations under this Agreement, except for those obligations that arose prior to such assignment.
Section 9.15 Appendices, Schedules and Exhibits . All Appendices, Schedules and Exhibits hereto which are referred to herein are hereby made a part hereof and incorporated herein by such reference.
[Signature page follows.]
33
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed on its behalf as of on the day and year first above written.
CLEAN COAL SOLUTIONS, LLC |
||
By: |
/s/ Brian Humphrey | |
Name: |
Brian Humphrey | |
Title: |
Manger |
AEC-NM, LLC |
||
By: Clean Coal Solutions, LLC, its managing member |
||
By: |
/s/ Brian Humphrey | |
Name: |
Brian Humphrey | |
Title: |
Manager |
GS RC INVESTMENTS LLC |
||
By: |
/s/ Michael Feldman | |
Name: |
Michael Feldman | |
Title: |
Authorized Signatory |
Signature Page to
Exchange Agreement (New Madrid)
EXHIBIT A
DESCRIPTION OF THE EXISTING FACILITY
All fixtures, equipment, machinery, parts and software and other property constituting the refined coal production facility, consisting specifically of the following components: a CyClean A hopper feeder system; a CyClean B liquid tote, chemical pumps and heated transfer hoses; transfer belt conveyors; weigh belt conveyors; motor control center; programmable logic control system; and all associated valves, fittings, control systems and related components and any associated replacement parts or equipment, and located at the New Madrid Power Plant owned by Associated Electric Cooperative, Inc. and located at 41 St. Jude Road, New Madrid, Missouri 63869 including, without limitation, the equipment, parts, and other materials set forth below.
AEC-NM, LLC
Refined Coal Production Facility d
TAG NUMBER |
DESCRIPTION |
LOCATION | MANUFACTURER | MODEL NUMBER | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | ||||||
* |
* | * | * | NA | ||||
* |
* | * | ||||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | NA | ||||
* |
* | * | ||||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | ||||||
* |
* | * | * | * | ||||
CONTROL BUILDING | * | N/A | ||||||
N/A |
* | * | N/A | N/A | ||||
N/A |
* | * | * | * | ||||
N/A |
* | * | * | * | ||||
N/A |
* | * | * |
Exhibit A
EXHIBIT B
DESCRIPTION OF THE NEW FACILITY
All fixtures, equipment, machinery, parts and software, and other property constituting the refined coal production facility, consisting of the following components: a CyClean A granular material feed hopper system including weigh belt conveyors; the CyClean A equipment support and enclosure; a CyClean B liquid tote and containment; chemical pumps and associated chemical delivery system plumbing; motor control center; programmable logic control system; and all associated valves, fittings, equipment; located at the New Madrid Power Plant owned by Associated Electric Cooperative, Inc. and located at 41 St. Jude Road, New Madrid, Missouri 63869 including, without limitation, the equipment, parts, and other materials set forth below:
TAG NO. | EQUIPMENT NAME | Manufacturer | Model Number | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
N/A |
* | * | N/A |
Exhibit B
EXHIBIT C
FORM OF NEW EQUIPMENT LEASE
Filed as Exhibit 10.42 to this Report on Form 10-K
EXHIBIT D
FORM OF OMNIBUS AMENDMENT
OMNIBUS AMENDMENT #2
TO TRANSACTION DOCUMENTS
OMNIBUS AMENDMENT #2
TO TRANSACTION DOCUMENTS
THIS OMNIBUS AMENDMENT #2 (this Amendment ) is dated as of November 21, 2011 (the Effective Date ) and made by and between Clean Coal Solutions Services, LLC, a Colorado limited liability company ( Clean Coal ), and GS RC Investments LLC ( GS RC ), a Delaware limited liability company.
RECITALS:
WHEREAS , GS RC and Clean Coal have previously entered into each of the following agreements: (i) that certain Operating and Maintenance Agreement for the New Madrid facility dated as of June 29, 2010 (the New Madrid O&M Agreement ), and (ii) that certain Chemical Additives Supply Agency Agreement for the New Madrid facility, dated as of June 29, 2010 (the NM Chemical Supply Agreement , and together with the New Madrid O&M Agreement, collectively, the Transaction Documents ).
WHEREAS , GS RC and AEC-NM, LLC ( AEC-NM ) have previously entered into that certain Equipment Lease dated as of June 29, 2010 (the Existing NM Equipment Lease ) whereby AEC-NM leased to GS RC a refined coal production facility (the Existing NM Facility ).
WHEREAS , simultaneously with the execution of this Amendment, GS RC and AEC-NM are entering into an agreement for the lease of a redesigned refined coal production facility, newly constructed and owned by AEC-NM (the New NM Facility ) and the termination of the Existing NM Equipment Lease.
WHEREAS , GS RC and Clean Coal desire to amend each of the Transaction Documents as set forth herein.
NOW, THEREFORE , in consideration of the foregoing recitals, the promises and agreements set forth in this Amendment, and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), GS RC and Clean Coal agree as follows:
ARTICLE I
AMENDMENTS TO TRANSACTION DOCUMENTS
Section 1.1 Amendments to New Madrid O&M Agreement .
(a) The following new definitions are added to Annex I of the New Madrid O&M Agreement:
Placed-in-Service Date means the placed-in-service date of the Refined Coal Plant within the meaning of the Refined Coal Guidance.
Equipment Lease means the Equipment Lease, dated as of November 21, 2011, between Lessor and Lessee.
(b) Section 3.1 shall be deleted in its entirety and replaced with the following provision:
3.1 Term . Unless sooner terminated pursuant to the terms of this Agreement, (a) the initial term of this Agreement (the Initial Term ) shall commence on the Effective Date and shall end on December 31, 2012, or any earlier date on which the Section 45 Credit expires, and (b) this Agreement shall automatically renew at the end of the Initial Term for successive annual terms until the date that is ten years after the Placed-in-Service Date, and (c) provided that if the Section 45 Credit for Refined Coal produced at the Refined Coal Plant has been extended beyond ten years from the Placed-in-Service Date, Lessee shall be entitled in its sole discretion to terminate this Agreement. If Lessee does not elect to exercise its termination right, this Agreement shall continue to renew automatically annually until the Section 45 Credit expires with respect to Refined Coal produced in the Refined Coal Plant.
(c) Exhibit B to the New Madrid O&M Agreement is hereby deleted in its entirety and replaced with Exhibit A, attached hereto.
(d) Exhibit A to Exhibit E of the New Madrid O&M Agreement is hereby deleted in its entirety and replaced with Exhibit B attached hereto.
(e) Section A.1. of Exhibit G to the New Madrid O&M Agreement is hereby deleted in its entirety and replaced with the following:
All Risks Property Damage Insurance . All Risks Property Damage Insurance in an amount sufficient to cover 100% of the replacement cost of the Refined Coal Plant and, at Lessees election and cost, Business Interruption Coverage. Such insurance shall include coverage for physical loss and/or damage to Lessees coal, while in stockpiles and/or on the premises of the Refined Coal Plant, up to the full market value, at specific maximum per location limits to be mutually agreed to in writing no less than annually.
Section 1.3 Amendments to NM Chemical Supply Agreement
(a) The following new definitions are added to Annex I of the NM Chemical Supply Agreement:
Placed-in-Service Date means the placed-in-service date of the Refined Coal Plant within the meaning of the Refined Coal Guidance.
Equipment Lease means the Equipment Lease, dated as of November 21, 2011, between Lessor and Lessee.
(b) Section 3.1(a) of the NM Chemical Supply Agreement shall be deleted in its entirety and replaced with the following provision:
(a) Base Term . Unless sooner terminated pursuant to the terms of this Agreement, (a) the initial term of this Agreement (the Initial Term ) shall commence on the Effective Date and shall end on December 31, 2012, or any earlier date on which the Section 45 Credit expires, and (b) this Agreement shall automatically renew at the end of the Initial Term for successive annual terms until the date that is ten years after the Placed-in-Service Date, and (c) provided that if the Section 45 Credit for Refined Coal produced at the Refined Coal Plant has been extended beyond ten years from the Placed-in-Service Date, Lessee shall be entitled in its sole discretion to terminate this Agreement. If Lessee does not elect to exercise its termination right, this Agreement shall continue to renew automatically annually until the Section 45 Credit expires with respect to Refined Coal produced in the Refined Coal Plant.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 Effectiveness and Ratification . All of the provisions of this Amendment shall be effective as of the Effective Date. Except as specifically provided for in this Amendment, the terms of each of the Transaction Documents shall remain in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Transaction Documents, the terms of this Amendment shall prevail and govern.
Section 2.2 Entire Agreement . This document contains the entire agreement between the parties hereto with respect to the subject matter hereof. There are no oral agreements between the parties hereto with respect to the subject matter hereof.
Section 2.3 Governing Law . This Amendment shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law principles of such state.
Section 2.4 Counterparts . This Amendment may be signed in two counterparts, each of which taken together shall constitute one instrument, and each of the parties hereto may execute this Amendment by signing either such counterpart. This Amendment shall become effective upon execution by both of the parties hereto. A facsimile copy will be deemed an original.
[Signature page follows.]
IN WITNESS WHEREOF, Clean Coal and GS RC have caused this Amendment to be executed and delivered as of the Effective Date.
CLEAN COAL SOLUTIONS SERVICES, LLC | ||
By: | ||
Name: | ||
Title: |
GS RC INVESTMENTS LLC | ||
By: | ||
Name: | ||
Title: |
EXHIBIT A
EXHIBIT B
OPERATOR PERMITS
New Madrid Power Plant
Authority for CyClean Process |
||||||||||||||
Media |
Regulatory
Program |
Existing Permit | New Permit | No Permit | Permit ID | Issuer |
Determination Factors |
|||||||
Air | NSR/PSD | X | 122009-001 | MDNR | Missouri Rule 10 CSR 10-6060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. | |||||||||
Air | NSR/PSD | X | 122010-012 | MDNR | Missouri Rule 10 CSR 10-6060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. This permit addresses the option under 1.F.2) of construction permit 122009007 (above) and r | |||||||||
Air | Title V | X | OP2010-116 | MDNR | This permit replaces the former Title V permit (0P2001-003A) and includes the conditions of NSR permit 122009-001. This permit will be amended to replace the conditions of 122009-001 with those of 122010-012 according to an application dated May | |||||||||
Water | NPDES | X | MO-0001171 | MDNR | Activity is allowed under provision of the existing permit. G8 has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Waste | Solid Waste | X | 0914301 | MDNR | Activity is allowed under provision of the existing permit. G8 has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Spill
Protection |
SPCC | X | N/A | N/A | New Madrid has an approved SPCC plan. G8 has supplied a SPCC plan for the CyClean B liquid additive. This plan has been incorporated into the plant SPCC plan. | |||||||||
Land |
Land
Disturbance |
X | MDNR | Area of concern is less than one acre. No permit required. | ||||||||||
Zoning |
County or
Local Zoning Requirement |
X | N/A | N/A | No permit is required from a county or local entity. | |||||||||
Building
Permits |
Permits
Required by local/county statute |
X | N/A | N/A | No permit is required from a county or local entity. |
EXHIBIT B
Filed as Exhibit B to this Exhibit 10.41 to this Report on Form 10-K
EXHIBIT E
FORM OF TECHNOLOGY SUB-LICENSE AMENDMENT
Filed as Exhibit 10.43 to this Report on Form 10-K
EXHIBIT F
CERTIFICATION
[CCS letterhead]
[DATE]
GSFS Investments I Corp.
c/o Goldman Sachs & Co.
200 West Street
New York,
New York 10282
Re: Certificate of Completion of Refined Coal Facility Testing
Dear Sirs:
Reference is made to that certain Exchange Agreement (the Agreement ), dated as of November 21, 2011, by and between GS RC Investments LLC, a Delaware limited liability company ( GS RC ), Clean Coal Solutions, LLC, a Colorado limited liability company (the Company ), and AEC-NM, a Colorado limited liability company. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
Pursuant to the terms of the Agreement, we hereby certify, represent and warrant as follows:
1. | The testing of the refined coal production facility owned by the Company or one of its subsidiaries, identified by serial numbers [ ] (the Facility ) presently located at the New Madrid Power Plant near Marston, Missouri, owned and operated by Associated Electric Cooperative, Inc. (the Utility ), pursuant to the terms of that certain Demonstration Agreement, dated as of , 201__, by and between the Utility and the Company, was completed on [ , 201__] (the Testing Completion Date ). |
2. | No grants described in Section 45(b)(3)(A)(i) of the Code have been provided by the United States, a state, or a political subdivision of a state for use in connection with all or part of the Facility within the meaning of such section. |
3. | No proceeds of any issue of a state or local government obligation described in Section 45(b)(3)(A)(ii) of the Code have or will be used to provide financing for all or part of the Facility within the meaning of such section. |
4. | No subsidized energy financing (within the meaning of Section 45(b)(3)(A)(iii) of the Code) has been or will be provided in connection with all or part of the Facility within the meaning of such section. |
Exhibit F
5. | No other federal tax credit has been or is allowed or allowable with respect to all or part of the Facility within the meaning of Section 45(b)(3)(iv) of the Code. |
6. | On or prior to the Testing Completion Date: |
a. | the Company (or an Affiliate thereof) completed all testing of the Facility necessary, in the reasonable judgment of Company, to establish that the Facility was operational; |
b. | the Company obtained, or third parties obtained for the benefit of the Company, all permits necessary to operate the Facility; |
c. | the Facility was being operated and controlled by the Company or an Affiliate thereof; |
d. | the Company or an Affiliate thereof had legal ownership of the Facility; and |
e. | the Facility was operational and producing Refined Coal in the quantities described in Exhibit A hereto. A copy of a verification statement verifying the output of Refined Coal is attached hereto as Exhibit B . |
7. | The owner of the Facility has conducted all necessary pre-operational testing, including emissions testing conducted using CEMS field testing (as defined in Section 6.03(1) of the Internal Revenue Service Notice 2010-54) or such other testing method as agreed between Company and GS, and the results have been verified in accordance with section 6.03(1)(c) of Notice 2010-54. A copy of such verification is attached hereto as Exhibit C . |
8. | The owner of the Facility intends to claim the Section 45 Credit on its federal income Tax Return for the 2011 taxable year with respect to all Refined Coal produced from the Facility that the owner of the Facility has sold to Unrelated Persons. The members of the owner of the Facility intend to claim on their federal income Tax Returns for the 2011 taxable year their allocable shares of all Section 45 Credits claimed by the owner of the Facility to the extent permitted by Section 45 of the Code. |
9. | Neither the owner of the Facility, nor any member of the owner of the Facility nor any Affiliate of any member thereof, intends to or has (A) taken any position in any federal, state or local income Tax Return or filing that is inconsistent with any of the statements in this Certification; (B) filed Form 8275, Form 8275-R or any similar form described in Treasury Regulation §§ 1.6662-3(c) or 1.6662-4(f) in connection with the Section 45 Credit claimed by the owner of the Facility, any member of the owner of the Facility or any Affiliate of any owner of the Facility or any member of any owner of the Facility with respect to Refined Coal produced from the Facility that the owner of the Facility sold to Unrelated Persons; or (C) filed Form 8886 or similar form described in Treasury Regulation § 1.6011-4(c)(6) or participated in a reportable transaction as defined in Treasury Regulation § 1.6011-4 involving the Facility. |
Exhibit F
10. | Attached to this certificate as Exhibit D are all capital expenditures made with respect to the Facility, (A) on or before the Testing Completion Date, and (B) after the Testing Completion Date (if any). |
11. | Attached to this certificate as Exhibit E are the original cost and fair market value, as of the date of this Certificate, of any used equipment incorporated into the Facility. |
This certificate is executed and delivered on behalf of the Company by a duly authorized signatory of the Company as of the date first above written.
CLEAN COAL SOLUTIONS, LLC
By:
Name:
Title:
Exhibit F
Exhibit A
To Certification
Refined Coal Production
Date |
Refined Coal Production (Tons) |
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Exhibit A to Exhibit F
Exhibit B
To Certification
Certificate of Refined Coal Production
[CCS letterhead]
[DATE]
GSFS Investments I Corp.
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Re: Verification of Refined Coal Production
Dear Sirs:
Reference is made to that certain Certificate of Completion of Refined Coal Facility Testing (the Certificate ) dated as of , 2011, given by Clean Coal Solutions, LLC, a Colorado limited liability company (the Company ) to GS RC Investments, LLC, a Delaware corporation ( GS RC ).
In accordance with the Certificate, we hereby verify the refined coal production on Exhibit A to the Certificate.
This Certificate is executed and delivered on behalf of the Company by a duly authorized signatory of the Company as of the date first above written.
CLEAN COAL SOLUTIONS, LLC
By:
Name:
Title:
Exhibit B to Exhibit F
Exhibit C
To Certification
Verification of Emissions Testing Results
This letter provides verification of the testing witnessed by [VERIFIER] ( Verifier ) for Clean Coal Solutions, LLC ( CCS ) as an independent professional engineering service regarding the refined coal production facility installed at [SITE] located at [ADDRESS] owned by Associated Electric Cooperative, Inc. (the Utility ). The tests were conducted during the period from [DATE] to [DATE] ( Testing Period ). This verification is in accordance with IRS Notice 2010-54.
At the time of the testing the Facility was operated on a contract basis by Clean Coal Solutions Services, LLC, a Colorado limited liability company ( CCSS ) on behalf of CCS and [AEC-TH, LLC or AEC-NM, LLC].
During the Testing Period, the Owner, by itself and through its contractors, operated the Facility on a daily, continuous basis for purposes of producing refined coal meeting the requirements of Section 45(c)(7) of the Internal Revenue Code of 1986, as amended (the Code), and meeting the requirements and specifications set forth in this certificate, in part, through the application of CyCleanTM, which consists of a solid additive ( CyClean A ) and a liquid additive ( CyClean B ), to coal feedstock consisting of Powder River Basin sub-bituminous coal (the Feedstock Coal ).
During the operating period, the Owner and its contractors were in charge of emissions testing performed in accordance with an established operating process. Verifier observed the testing as an independent professional engineer to witness the results. The Owner and its contractors were responsible for establishing plant operating conditions with Feedstock Coal and Refined Coal (defined below) and verifying nitrogen oxide ( NOx ) and mercury emission reductions achieved during the Testing Period as a result of burning the Refined Coal.
Verifier was physically present at the site from [DATE] to [DATE] and ensured that the reported data is representative of the data observed during the tests. During this time, CCSS staff worked with the Utility to establish baseline NOx and mercury emissions on [DATE] and to establish similar conditions to measure NOx and mercury emissions while burning CyCleanTM refined coal during the Test Period on [DATE]. Boiler performance and operability were monitored carefully during the emissions test to assure that the emission reductions did not cause other system problems.
Based upon the foregoing, Verifier hereby certifies the following during the Testing Period:
1. | The Facility produced a solid fuel from the Feedstock Coal (the Refined Coal ). |
Exhibit C to Exhibit F
2. | The Refined Coal demonstrated a reduction of greater than 20 percent of the emissions of NOx and greater than 40 percent reduction of the emissions of mercury (collectively, the Emission Reductions ) released when burning the Refined Coal (excluding any dilution caused by materials combined or added during the production process), as compared to the emissions released when burning the Feedstock Coal. Actual emission reductions for NOx were measured at approximately [__] percent below the baseline. Actual emissions of mercury were measured at [__] percent below the baseline measurements. |
3. | The Emission Reductions were determined by comparing the emissions that resulted when the Feedstock Coal and the Refined Coal were used to produce the same amounts of useful thermal energy. The CyCleanTM A and CyCleanTM B additives do not contain organic material, and therefore, the CyClean additives do not increase the thermal energy of the Feedstock Coal. |
4. | The Emission Reductions were determined in accordance with the provisions of Sections 6.01 and 6.02 of Notice 2010-54 during field testing using a continuous emission monitoring system ( CEMS ), meeting the requirements of Section 6.03(1)(a)(i) through (iv) and (b) of Notice 2010-54, specifically to the following requirements: |
(a) | the boiler used to conduct the emissions testing was coal-fired and steam-producing and is of a size ([__] MW) and type commonly used in commercial electric power generation operations; |
(b) | emissions were measured using mercury and NOx CEMS; |
(c) | the CEMS conformed to applicable United States Environmental Protection Agency ( EPA ) standards; |
(d) | Other than operating conditions that are directly attributable to changing from feedstock coal to refined coal such as adjustments to primary and secondary air, that are consistent with good pollution control practices, emissions from the boiler using both the Feedstock Coal and the Refined Coal were measured at the same operating conditions and over a period of at least 3 hours during which the boiler was operating at a steady state and at least 90 percent of full load; |
(e) | emissions of mercury were measured upstream of any SO2 scrubber or mercury control device, or, if mercury emissions were measured downstream of any SO2 scrubber, then the SO2 scrubber was operated under the same operating conditions throughout the Testing Period, and downstream of the electrostatic precipitator, which was operated under the same operating conditions throughout the Testing Period (see operating data attached as Exhibit A to this verification statement showing continuous secondary voltage and current and number of fields in operation); and |
(f) | emissions of NOx were measured upstream of post-combustion NOx controls. |
5. | I have no direct or indirect ownership interest in CCS or CCSS. |
Exhibit C to Exhibit F
6. | [NAME] witnessed the emissions testing on site. I have reviewed the emissions test data and verified with [NAME] the results as reported. |
7. | I am a licensed professional engineer, registered in the State of [STATE]. |
8. | I have extensive experience in combustion and environmental engineering and I have the qualifications required by Section 6.03(1) of Notice 2010-54 to perform this verification. |
I understand and agree that this Verification of Emission Testing Results for the Facility located at [POWER PLANT] may be relied upon by CCS, the Owner and their respective members, managers, successors, and assigns.
Under penalties of perjury, I declare that I have examined this verification statement and, to the best of my knowledge and belief, it is true, correct and complete.
Dated: [DATE]
[NOTARIZED SIGNATURE]
Exhibit C to Exhibit F
Exhibit D
To Certification
Capital Expenditures
Exhibit D to Exhibit F
Exhibit E
To Certification
Used Equipment Incorporated into the Facility
Exhibit E to Exhibit F
EXHIBIT G
DUE DILIGENCE REQUEST LISTS
Due Diligence Request List for Refined Coal Projects
Purpose:
The purpose of this document is to describe the key areas of due diligence and the items requested for review of Clean Coal Solutions, LLC ( Clean Coal Solutions ) and its affiliates in connection with two refined coal projects (Thomas Hill and New Madrid) (the projects ) and the entities associated therewith. The checklist is divided into various disciplines. Please provide the names of key contact persons from Clean Coal Solutions for each discipline.
Section 1. Financial Materials:
1. | Audited Financial Statements Provide all income statements and balance sheets (quarterly and annual statements) for the project entities, if any. |
2. | Project Financials Provide each projects income statement and balance sheet, if any. |
a. | Revenue breakdown |
b. | Expenses breakdownO&M, major maintenance / capex expenses, license fees, etc. |
c. | Other expensesRoyalties, property tax, , insurance, other expenses |
3. | Budgets Provide copies of all construction, maintenance, capital expenditure, operating and other budgets for the projects. |
4. | Guaranties Provide copies of all guaranties, keep wells and other agreements evidencing support for any debt. |
5. | Pro Forma Copy of full pro forma financial models for the projects. |
Section 2. Project Documents:
1. | Latest drafts of all agreements with Associated Electric Cooperative, Inc. or its affiliates (collectively, AECI ) this includes the Demonstration Agreement and any related correspondence. |
2. | Leases Provide copies of all equipment or land leases and easements. |
3. | O&M and Services Agreements Provide copies of all operation and maintenance agreements, if any. |
4. | Construction/Procurement Provide all contracts and subcontracts related to the construction of the projects and any related procurement, engineering or services agreements. Please confirm that all construction-related agreements are set forth in data room. |
5. | Other Project Agreements Provide copies of all other material project agreements for the projects. Please provide or confirm that all other material project agreements have been received. |
6. | Assignment of all equipment warranties/obligation to submit warranty claims with respect to both facilities. |
7. | The purchase orders with contractors for each of the projects, including any Lien Release and Waiver forms that are not executed. |
Exhibit G
Section 3. Energy Regulation:
1. | Regulatory Approvals Provide a list of all current and pending energy regulatory permits, licenses and other approvals for the projects, and copies of all such approvals, including approvals related to the projects status. |
2. | Disputes Provide a description of all previous, current and pending disputes with governmental agencies or others related to energy regulatory matters with respect to the projects, and copies of all associated documentation. |
Section 4. Environmental Matters:
1. | Regulatory Agencies Provide a list of all environmental regulatory agencies and other entities that currently regulate the projects with respect to environmental matters. |
2. | NOVs Provide copies of all notices of violation, requests for information and similar notices received from governmental agencies or others alleging violation of or potential non-compliance with environmental laws or regulations by the projects. |
3. | Project site Provide copies of documents identifying environmental conditions affecting the project sites, including any subsurface contamination or environmental problems at the host facility that could affect the project sites. |
4. | Correspondence Provide copies of all material correspondence with, notices and reports received from or provided to, filings with and other materials received from or provided to environmental regulatory agencies related to the projects. |
5. | Hazardous Materials Provide a description of all hazardous materials (as defined in applicable environmental laws) used in connection with the operation of the projects. |
6. | Wastes Provide information on all wastes generated by the projects and a description regarding how such wastes are handled, including a description of any waste recycling or disposal arrangements. |
7. | Reports Provide copies of all environmental reports prepared for the projects or addressing environmental conditions relating to the project sites. |
8. | Other Materials Provide copies of any other material documents related to environmental matters for the projects, including air quality, water withdrawal, wastewater, solid waste disposal and other permits, as well as any agreements with the host facility or other parties that may impose environmental obligations with respect to the projects. |
9. | Provide Material Safety Data Sheets (MSDS) for CyClean A and CyClean B. |
10. | Provide copies of the permit applications for and material correspondence with the applicable regulatory agency related to the Permits to Construct authorizing construction of and air emissions from the projects. |
11. | Provide copies of the NPDES Permits for each of the projects. |
12. | Provide copies of the Title V Operating Permits for each of the projects. |
Section 5. Insurance:
1. | Policies Provide copies of all policies, binders and certificates evidencing the insurance coverage for the projects. |
2. | Claims Provide a description of all claims made under the insurance policies for the projects, and provide copies of all associated documentation. |
3. | Reports Provide copies of all insurance consultants reports and other reports analyzing the insurance coverage for the projects. |
4. | Insurer Agreements Provide copies of all agreements entered into with the projects insurance providers. |
Section 7. Title
1. | Provide mortgages, security agreements, financing statements and other documents creating liens or security interests that burden the projects. |
2. | Provide documents granting an option, right of first refusal, preferential purchase right, right of first offer or other preferential right to purchase (or offer to purchase) the projects. |
3. | Provide information regarding adverse title claims to the projects or defects in the title. |
Exhibit G
Section 9. Project Facility Startup and Emission Testing
1. | Items Listed in Right to Lease Agreement |
a. | All contracts for materials and services relating to construction of facility |
b. | Demonstration and site use agreements |
c. | Purchase orders (with terms and conditions) and any change orders for the facility |
d. | All permits and licenses, including |
1. | Environmental permits |
2. | Permits to conduct business |
3. | Occupancy or operating permits |
e. | Environmental permit applications |
2. | Other Items |
f. | Test plans Placed-in-service certificates |
1. | Certificates of work completion from construction contractors |
2. | Environmental permit certificate |
3. | Certificate of independent engineer |
4. | Certificate of CCSS |
5. | Emission testing report and certificate |
6. | Videotape(s) of facility operation |
7. | Complete set of facility drawings |
8. | Process flow diagram |
9. | Equipment list (including serial numbers, where applicable) |
g. | Complete set of facility drawings |
h. | Process flow diagram |
i. | Equipment list (including serial numbers, where applicable) |
j. | Calibration records for scales used to determine rate of Cyclean addition |
k. | Demonstration Plan |
Section 10. Other Matters:
1. | Litigation Provide a description of all current and pending litigation, arbitration, investigations and other proceedings related to or affecting the projects, and copies of all associated documentation. |
2. | Judgments Provide a description of any outstanding judgments, consent decrees, settlement agreements or orders related to or affecting the projects, and copies of all associated documentation. |
3. | Threatened Litigation and Unasserted Claims Provide a description of all threatened litigation, unasserted claims and other disputes related to or affecting the projects, and copies of all associated documentation. |
Exhibit G
CLEAN COAL SOLUTIONS, LLC
AEC-NM, LLC
DISCLOSURE SCHEDULE 1
delivered in connection with the
Exchange Agreement
(the Agreement )
dated as of
November 21, 2011
among
Clean Coal Solutions, LLC,
AEC-NM, LLC,
and
GS RC INVESTMENTS LLC
1 |
Capitalized terms used herein shall have the respective meanings ascribed thereto in the Agreement unless otherwise defined herein. This Disclosure Schedule and all attachments hereto subject to the Agreement, including without limitation Section 9.15 of the Agreement. The information disclosed herein is disclosed subject to the terms of the Confidentiality Agreement, dated as of July 13, 2009, between Clean Coal Solutions, LLC and Goldman Sachs & Co. and should not be used for any purpose other than those contemplated by the Agreement. |
The disclosure or inclusion of information herein shall not be deemed as an acknowledgement or admission that any such matter or item is required to be disclosed or is material for purposes of the representations, warranties or covenants set forth in the Agreement or that the subject matter of such disclosure may have a Material Adverse Effect on Lessee. |
Disclosure Schedules, page 1
Schedule 3.1(c)
Conflicts and Consents
Pursuant to the terms of the Credit Agreement, dated as of March 31, 2011, and amended and reaffirmed on September 8, 2011 (the CoBiz Credit Facility ) by and between CCS and CoBiz Bank, a bank doing business in the State of Colorado as Colorado Business Bank ( CoBiz ) and related agreements and instruments, CCS has pledged to CoBiz the membership interests in AEC-NM, LLC, among other entities, to secure CCSs obligations under the CoBiz Credit Facility and CCS is required by the terms of the CoBiz Credit Facility to make repayments of the funds loaned thereunder, in part, from the revenues generated from the Facility.
The disclosures set forth in Schedule 3.1(g) hereof are hereby incorporated herein in their entirety by this reference.
Disclosure Schedules, page 2
Schedule 3.1(d)
Litigation
*
Disclosure Schedules, page 3
*
Disclosure Schedules, page 4
Schedule 3.1(e)
Compliance with Applicable Laws; Permits
The CCS Parties are required to file annual reports with the Secretary of State of the State of Colorado.
AEC-NM, LLC is required to obtain and maintain a Certificate of Registration Foreign Limited Liability Company in the State of Missouri.
A summary of applicable permits for the Facility is given in the tables below:
New Madrid Power Plant
Regulatory Program |
Authority for CyClean Process |
|||||||||||||
Media |
Existing Permit | New Permit | No Permit | Permit ID | Issuer |
Determination Factors |
||||||||
Air |
NSR/PSD | X | 122009-001 | MDNR | Missouri Rule 10 CSR 10-6060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. | |||||||||
Air |
NSR/PSD | X | 122010-012 | MDNR | Missouri Rule 10 CSR 10-6060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. This permit addresses the option under 1.F.2) of construction permit 122009001 (above) and r | |||||||||
Air |
Title V | X | OP2010-116 | MDNR | This permit replaces the former Title V permit (0P2001-003A) and includes the conditions of NSR permit 122009-001. This permit will be amended to replace the conditions of 122009-001 with those of 122010-012 according to an application dated May 79.201 | |||||||||
Water |
NPDES | X | MO-0001171 | MDNR | Activity is allowed under provision of the existing permit. G8 has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Waste |
Solid Waste | X | 0914901 | MDNR | Activity is allowed under provision of the existing permit. G8 has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Spill Protection |
SPCC | X | N/A | N/A | New Madrid has an approved SPCC plan. G8 has supplied a SPCC plan for the CyClean B liquid additive. This plan has been incorporated into the plant SPCC plan. | |||||||||
Land |
Land Disturbance |
X | MDNR | Area of concern is less than one acre. No permit required. | ||||||||||
Zoning |
County or Local Zoning Requirement |
X | N/A | N/A | No permit is required from a county or local entity. | |||||||||
Building Permits |
Permits Required by locallcounty statute |
X | N/A | N/A | No permit is required from a county or local entity. |
Disclosure Schedules, page 5
Schedule 3.1(f)
Insurance
Disclosure Schedules, page 6
Schedule 3.1(g)
Title
No exceptions.
Disclosure Schedules, page 7
Schedule 3.1(i)
Environmental
The following Hazardous Substances are at the Existing Sites:
Substance |
Approximate Quantity |
Notes |
||
Diesel Fuel |
540 gallons | 500 gallon storage tank | ||
Gear Oil |
15 gallons | Includes lubricants in gear boxes, grease cartridges and mobile equipment. | ||
Paint |
5 gallons | Not lead-based | ||
Hydraulic Oil |
60 gallons | Both in Facility and some on shelf for topping off | ||
Antifreeze |
20 gallons | Both in Facility and some on shelf for topping off | ||
Engine Oil |
15 gallons | Both in Facility and some on shelf for topping off |
Additionally, at the Site there will be a refrigerant (R410A) used in each of the three air conditioning units located in the MCC building, the pump room and the office trailer.
Approved specifications for CyClean A includes 0.5% maximum oil/grease.
The Material Safety Data Sheets for CyClean A and CyClean B are as follows:
Disclosure Schedules, page 8
MATERIAL SAFETY DATA SHEET
CyClean Tm Coal Additive A
1. CHEMICAL PRODUCT AND COMPANY IDENTIFICATION
ADA Environmental Solutions. Inc. 8100
SouthPark Way, Unit B
Littleton, Colorado 80120
Tel: 303-734-1727 Fax: 303-734-0330
Product Name: CyClean Tm A
Issue Date: 6/15/2011
Revision: 4 (supersedes all previous)
Product Description: Proprietary chemical additive to reduce mercury & NOx emissions from cyclone boilers.
Emergency Telephone Number: For emergency assistance involving chemicals please call CHEMTREC 800-424-930a
2. COMPOSITION INFORMATION ON INGREDIENTS (dry basis)
Component |
CAS No., | |
* |
* | |
* |
* | |
* |
* | |
* |
* | |
* |
* | |
* |
* | |
* |
* |
3. HAZARDS IDENTIFICATION
Routes of Entry: |
Skin contact, eye, ingestion, inhalation | |||
Health Effects: |
||||
ACUTE: |
||||
Eyes: |
May cause irritation and/or conjunctivitis. | |||
Skin: |
May cause irritation to the contacted tissue(s). | |||
Ingestion: |
Not expected to be acutely toxic via ingestion. Extremely large oral doses may produce gastrointestinal disturbances_ | |||
Inhalation: |
May cause irritation to the respiratory tract. |
Page 1 |
CyClean Tm A |
Disclosure Schedules, page 9
CHRONIC: |
Chronic inhalation of dust may cause shortness of breath and nervous system effects. | |
HMIS Rating: |
Health = 2 Fire = 0 Physical = | |
NFPA Rating: |
Health = 2 Fire = 0 Reactivity = 0 |
4. FIRST AID MEASURES
Emergency and First Aid Procedure
Eyes: |
Flush eyes with large amounts of water. Seek medical attention if irritation develops or persists or if visual changes occur. | |
Skin: |
Remove contaminated clothing and shoes; scrub affected areas with soap and water. Seek medical attention if irritation develops or persists_ | |
Inhalation: |
Move to fresh air if symptoms of respiratory distress occurs. Obtain medical assistance if breathing difficulty persists. | |
Ingestion: |
If appreciable quantities are ingested, seek medical attention. Wash hands and face before consuming food products_ |
5. FIREFIGHTING MEASURES
Flash Point: |
Not applicable | |
Explosive Limit: |
Not explosive_ | |
Flammable Limits: |
Not applicable | |
Extinguishing Media: |
Use media appropriate for surrounding material. |
Hazardous Products of Combustion: Will not support combustion_
Special Firefighters Procedure: Use self-contained breathing apparatus for protection against the degradation products of surrounding materials.
6. ACCIDENTAL RELEASE MEASURES
Steps to be taken in case material is released: Clean up spill in a manner that does not disperse dust into the air. Wear protective clothing as described in Section a and avoid unnecessary exposure_ If possible, recover spilled product for reuse_
Waste disposal method: Collect material in appropriate container for recycling or disposal. Disposal should be done in accordance with federal, state, and local regulations.
Precautions to be taken in handling and storing: Use procedures to minimize contact and to prevent material from becoming airborne_
Page 2 |
CyClean Tm A |
Disclosure Schedules, page 10
7. HANDLING AND STORAGE
Store in a cool, dry and well-ventilated area preferably above freezing temperature. Do not store near strong oxidizers. Follow good handling procedures to minimize spills, airborne dust and accumulation of dusts on exposed surfaces.
8. EXPOSURE CONTROLS AND PRESONAL PROTECTIVE MEASURES
Exposure Limits: |
OSHA PEL (TWA) 15 mg/m 3 total dust, 5 mg/m 3 respirable fraction ACGIH TLV (TWA) 10 mg.1m 3 total dust; 5 mg/m 3 * | |
Respiratory Protection: |
Normally not required. Use MSHA/NIOSH approved respiratory protection if atmospheric levels of dust will exceed prescribed limits_ | |
Eye Protection: |
Persons working with this product should wear safety glasses. | |
Skin: |
Persons handling this product should wear long sleeves and cloth gloves. Avoid skin contact | |
Ventilation: |
Exhaust, handling, ventilation, or containment systems may be required if atmospheric levels of contaminants exceed prescribed limits_ |
9. PHYSICAL DATA
Appearance |
* | |
Odor |
Odorless | |
Solubility |
Not soluble in water | |
Moisture Content |
3 8% by wt. | |
Density, lbs/ft2 |
* | |
% Volatile by Volume |
less than 1% | |
Vapor Pressure |
N/A | |
Vapor Density |
N/A | |
Freezing Point |
N/A | |
Boiling Point |
N/A | |
Melting Point |
N/A |
10. STABILITY AND REACTIVITY
Stability: |
Stable under normal handling and storage conditions_ | |
Hazardous Polymerization: |
None. | |
Incompatibility: |
Strong acids, bases and oxidizers. Reacts with strong acids to form hydrogen gas. | |
Hazardous Decomposition Products: |
None | |
Conditions to Avoid: |
No information |
Page 3 |
CyClean Tm A |
Disclosure Schedules, page 11
11. TOXICOLOGICAL INFORMATION
No product specific toxicity test data found.
The primary component of this material is * in the form of various *. Penetration of * particulates in the skin or eye may cause an exogenous or ocular siderosis. Ingestion overexposures to * may affect the gastrointestinal, nervous and hematopoietic system and the liver. Chronic inhalation of dust may cause pneumoconiosis.
Chronic inhalation of * can cause a nervous system disorder known as *. Symptoms of * may include disorientation, impairment of memory and judgment, anxiety and compulsive behavior_
12. ECOLOGICAL INFORMATION
No product specific information found. DO not release to surface waters.
13. DISPOSAL CONSIDERATIONS
This material is not considered a hazardous waste under RCRA 40 CFR 261. Collect material in appropriate container for recycling or disposal. Any spilled material that cannot be saved for recovery or recycling may be disposed of as an industrial waste in a facility permitted for non-hazardous wastes. Disposal should be done in accordance with federal, state, and local regulations.
14. TRANSPORTATION INFORMATION
DOT Class: Not regulated for transportation
Shipping Name: |
Not required | |||
Hazard Class: |
N/A | |||
Packaging Group: |
N/A | |||
Reportable Quantity (RO): |
N/A | |||
Labels Required: |
None | |||
Placard: |
None |
15. REGULATORY INFORMATION
CERCLA Hazardous Substance (40 CFR 302.4): |
NA | |
RCRA Hazardous Waste (40 CFR 261.33): |
NA | |
TSCA Status: |
Component materials are listed in the TSCA inventory | |
SARA Section 302/355: |
NA | |
SARA Section 313 Toxic Chemical List: |
* | |
SARA Hazard Categories: |
Acute, Chronic |
Page 4 |
CyClean Tm A |
Disclosure Schedules, page 12
16. OTHER INFORMATION
For Industrial Use Only
Emergency Assistance: For Emergency Assistance Involving Chemicals Call CHEMTREC 800-424-9300_
NOTICE
The information contained herein is the best available to CCS and ADA-ES as of this date. To the best of CCSs and ADA-ES knowledge the information contained herein is reliable and accurate as of this date, however accuracy, suitability or completeness is not guaranteed. Users are responsible to verify this data for their own particular use and they assume all risks of their reliance upon information contained herein. This information relates only to the product designated herein and does not relate to its use in combination with any other material or in any other process_ Neither CCS nor ADA-ES, Inc. shall under any circumstances be liable for incidental or consequential damages as a result of reliance upon information contained herein.
NO WARRANTY: NEITHER CCS NOR ADA-ES MAKES ANY WARRANTY OF MERCHANTABILITY OR OF ANY OTHER KIND WITH RESPECT TO INFORMATION CONTAINED HEREIN, EITHER EXPRESS OR IMPLIED. NEITHER CCS NOR ADA-ES ASSUMES ANY LIABILITY WITH RESPECT TO THE USE OF INFORMATION CONTAINED HEREIN.
LIMIT OF LIABILITY: Neither CCS nor ADA-ES shall be liable for, and Buyer assumes responsibility for personal injury and property damage resulting from the handling, possession, use, storage or resale of the product. whether used alone or in combination.
Disclosure Schedules, page 13
MATERIAL SAFETY DATA SHEET
CyClean Coal Additive B
1. CHEMICAL PRODUCT AND COMPANY IDENTIFICATION
ADA Environmental Solutions, Inc.
8100 SouthPark Way, Unit B
Littleton, Colorado 80120
Tel: 303-734-1727 Fax: 303-734-0330
Product Name: CyClean Tm B
Issue Date: 6/ 5/2011
Revision: 4 (supersedes all previous)
Product Description: Proprietary chemical additive to reduce mercury & NOx emissions from cyclone boilers.
Emergency Telephone Number: For emergency assistance involving chemicals please
call CHEMTREC 800424-9300.
2. COMPOSITION INFORMATION ON INGREDIENTS (dry basis)
* |
3. HAZARDS IDENTIFICATION
Routes of Entry |
Eye or skin contact, ingestion (swallowing). | |
Health Effects: |
||
ACUTE: |
||
Eyes: |
May cause irritation, redness and pain. | |
Skin: |
May cause skin imitation, redness and pain. | |
Inhalation: |
May cause irritation to the respiratory tract. Symptoms may include coughing and shortness of breath. | |
Ingestion: |
May cause irritation to the gastrointestinal tract, nausea, vomiting and abdominal pain. Symptoms may include headaches, blurred vision, fatigue, drowsiness and nervous system depression. | |
CHRONIC: |
Repeated or prolonged exposure may cause skin rash and irritation of mucous membranes. Repeated ingestion may cause central nervous system deer ion, irritability and headache. |
Page 1 |
CyClean Tm B |
Disclosure Schedules, page 14
Medical Conditions Aggravated by Exposure:
Persons suffering from depression, alcoholism, neurological or psychological | ||
disorders may be more susceptible to the effects of the substance. | ||
11F PA Rating: |
Health = 2: Flammability = 0: Instability = 0 | |
(Rating is for dry material, no information on blended solution). |
4. FIRST AID MEASURES
Emergency and First Aid Procedure
Eyes: |
Immediately flush eyes with plenty of water for at least 15 minutes, lifting | |
lower and upper eyelids occasionally. Get medical attention. | ||
Skin: |
Wash exposed areas with water for at least 15 minutes. Remove contaminated clothing. Wash clothing before reuse. | |
Inhalation: |
Remove to fresh air. If not breathing, give artificial respiration. If breathing is Difficult, give oxygen. Get medical attention. | |
Ingestion: |
Induce vomiting immediately as directed by medical personnel. Never give anything by mouth to an unconscious person. |
5. FIRE- FIGHTING MEASURES
Fire: |
Not considered to be a fire hazard. | |
Flash Point: |
Non-flammable | |
Explosive Limit: |
Not considered to be an explosion hazard. | |
Flammable limits: |
Not applicable | |
Extinguishing Media: |
Use media appropriate for surrounding material. |
Hazardous Products of Combustion: Will not support combustion. However. if involved in a fire may decompose to *.
Special Firefighters Procedure: Use NIOSH approved self-contained breathing apparatus with full face piece operated in the pressure demand- mode.
6. ACCIDENTAL RELEASE MEASURES
Ventilate area of leak or spill. Keep unnecessary and unprotected people away from area of spill. Wear protective clothing. as described in Section 8. Contain spill with dike to prevent entry into sewers and waterways. Re-cover liquid for reuse if possible_
Page 2 |
CyClean Tm B |
Disclosure Schedules, page 15
To the best knowledge of ADA-ES, this material is not regulated by CERCLA/RCRA. Therefore, it may be disposed of as an industrial waste. Disposal should be done in accordance with federal, state, and local regulations.
7. HANDLING AND STORAGE
Keep in a tightly closed container and store in a cool, dry and well-ventilated area. Maintain product temperature above 1C1C (5cr a F). Donut allow contact with concentrated acids or strong oxidizers.
8. EXPOSURE CONTROLS AND PERSONAL PROTECTIVE MEASURES
Exposure Limits |
ACGIH TLV Not established OSHA PEL Not established |
|
Respiratory Protection: |
None required under normal conditions. | |
Eye/Face Protection: |
Use tight-fitting chemical safety goggles to protect the eyes when handling or during spill cleanup. | |
Resistant to chemical penetration. | ||
Protective Gloves: |
Wear impervious protective clothing when solution is handled. Wash contaminated clothing and dry before reuse. | |
Other Protective Equipment: |
Eyewash station in work area is recommended. | |
Not required. |
9. PHYSICAL DATA
Freezing Point ( ° C/ ° F) |
Not available | |
Boiling Point ( ° C/ ° F, 760 mm Hg |
>100 ° C/212 ° F | |
Specific Gravity @ 20 ° C |
* | |
Density, lbs/gallon @ 20 ° C |
11.5 12.8 | |
Solubility in Water, % by wt. |
100% | |
Evaporation Rate (Butyl Acetate=1) |
N/A | |
Vapor Density |
>1.0 | |
Percent Volatile |
Not volatile | |
Vapor Pressure |
Water vapor pressure only | |
PFI |
7- 9 |
10. STABILITY AND REACTIVITY
Stability: |
Stable under normal handling and storage conditions | |
Hazardous polymerization: |
Will not occur | |
Incompatibility: |
* |
Page 3 |
CyClean Tm B |
Disclosure Schedules, page 16
Hazardous combustion products: * fumes may evolve.
Thermal decomposition temp.: * Conditions to avoid
when stored: Heat. incompatibles.
11. TOXICOLOGICAL INFORMATION
Toxicological Data: |
||
Carcinogenicity. | Not listed by ACGIH, IARC, NTP, or CA Prop 65. | |
Epidemiology. | No information available. | |
Teratogenicity | Components of this product have been trines gated as a mutagen, reproductive effector. | |
Reproductive Effects: | Adverse reproductive effects have occurred in experimental animals. | |
Mutagenicity: | No information available. | |
Neurotoxicity: | No information available. |
12. ECOLOGICAL INFORMATION
Some of the components of this product may be environmentally toxic is in concentrated form. Do not release to surface waters.
13. DISPOPSAL CONSIDERATIONS
Collect material in appropriate container for recycling or disposal. Processing, use or contamination of the product may change the waste management options. Disposal should be done in accordance with federal, state, and local regulations.
14. TRANSPORTATION INFORMATION
DOT Class: Not regulated for transportation
Shipping Name: |
Not required | |||
Hazard Class: |
N/A | |||
Packaging Group: |
N/A | |||
Reportable Quantity (RQ): |
N/A | |||
Labels Required: |
None | |||
Placard: |
None |
15. REGULATORY INFORMATION
TSCA Inventory |
Component chemicals are listed on the TSCA inventory. | |
CERCLA. |
None of the chemicals in this material have an RQ | |
SARA Section 302 |
None of the chemicals in this product have a TPQ. |
Page 4 |
CyClean Tm B |
Disclosure Schedules, page 17
SARA Section 3111312 Hazard Categories | ||||
Health |
Immediate (acute) | Yes | ||
Health |
Delayed (chronic) | Yes | ||
Physical |
Fire | No | ||
Physical |
Sudden Release of Pre m ... 0 re | No | ||
Physical |
Reactive | No | ||
Nuisance Mist/Dust Only | No | |||
No chemicals reportable under Section 313. | ||||
SARA Section 31.3 |
16. OTHER BIFORMATION
For Industrial Use Only
Emergency Assistance: For Emergency Assistance Involving Chemicals CaEl CH EMTR.EC 424-9300.
NOTICE
The information contained herein is the best available to CCS and ADA-ES as of this date_ To the best of CCSs and ADA-ES knowledge the information contained herein is reliable and accurate as of this date, however accuracy, suitability or completeness is not guaranteed. Users are responsible to verify this data for their own particular use and they assume all risks of their-reliance upon information contained herein. This information relates only to the product designated herein and does not relate to its use in combination with any other material or in any other process. Neither CCS nor ADA-ES, Inc. shall under any circumstances be liable for incidental or- consequential damages as a result of reliance upon information contained herein.
NO WARRANTY: NEITHER CCS NOR ADA-ES MAKES ANY WARRANTY OF MERCHANTABILITY OR OF ANY OTHER KIND WIHT RESPECT TO INFORMATION CONTAINED HEREIN, EITHER EXPRESS OR IMPLIED. NEITHER CCS NOR ADA-ES ASSUMES ANY LIABILLTY WITH RESPECT TO THE USE OF INFORMATION CONTAINED HEREIN.
LIMIT OF LIABILITY: Neither CCS nor ADA-ES shall be liable for, and Buyer assumes responsibility for personal injury and property damage resulting from the handing, possession, use, storage or resale of the product, whether used alone or in combination
Disclosure Schedules, page 18
Schedule 3.1(j)
Taxes
No exceptions
Disclosure Schedules, page 19
Schedule 3.1(K)
Intellectual Property
No exceptions
Disclosure Schedules, page 20
Schedule 3.1(l)
Material Contracts
All of the Transaction Documents
Equipment Agreement, dated as of February 11, 2011, by and between CCS and *
Master Services Agreement, dated as of May 20, 2011, by and between CCS and *
Equipment Agreement, dated as of May 20, 2011, by and between CCS and *
Contribution Agreement, dated as of November 4, 2011, by and between Clean Coal Solutions, LLC and AEC-NM, LLC
Bill of Sale, dated as of November 4, 2011, by and between Clean Coal Solutions, LLC and AEC-NM, LLC
Assignment of Warranties, dated as of November 4, 2011, by and between Clean Coal Solutions, LLC and AEC-NM, LLC
Amended and Restated Operating Agreement of AEC-NM, LLC, effective as of July 31, 2011
Contribution Agreement, dated as of September 8, 2011, by and among ADA-ES, Inc., NexGen Refined Coal, LLC, GSFS Investments I Corp., and Clean Coal Solutions, LLC
Amended and Restated License Agreement, effective as of October 30, 2009, by and between ADA-ES, Inc. and CCS
First Amendment to Amended and Restated License Agreement, effective August 4, 2010, by and among ADA-ES, Inc. and CCS
Second Amended and Restated Operating Agreement, dated as of May 27, 2011, of Clean Coal Solutions, LLC, as amended on September 8, 2011
Credit Agreement, dated as of March 30, 2011, and amended and reaffirmed on September 8, 2011 by and between CCS and CoBiz Bank, a bank doing business in the State of Colorado as Colorado Business Bank, and related agreements and instruments.
Exclusive Agent Agreement, dated as of February 12, 2010, by and among Elcan Partners, LLC, CCS, NexGen Refined Coal, LLC and ADA-ES, Inc.
Confidentiality Agreement, dated October 19, 2009, by and between CCS and Associated Electric Cooperative, Inc.
Disclosure Schedules, page 21
The following purchase orders related to the Facility:
DATE |
P.O. |
VENDOR | ||
5/23/2011 |
CCS11-10.01 | * | ||
7/14/2011 |
CCS11-9.02 | * | ||
9/26/2011 |
CCS11-9.02 Rev 1 | * | ||
10/11/2011 |
CCS11-9.04 | * | ||
7/6/2011 |
CCS11-9.05 | ADA-ES, Inc. | ||
7/19/2011 |
CCS11-9.06 | ADA-ES, Inc. | ||
7/20/2011 |
CCS11-9.07 | ADA-ES, Inc. | ||
10/21/2011 |
CCS11-9.08 | ADA-ES, Inc. | ||
10/28/2011 |
CCS11-9.09 | * | ||
11/1/2011 |
CCS11-9.10 | * | ||
11/4/2011 |
CCS11-9.11 | Clean Coal Solutions Services, LLC |
Installment Sale Contract (Security Agreement), dated as of June 9, 2010, by and between Clean Coal Solutions Services, LLC and *, and related terms and conditions, and Guaranty of Payment Installment Sale Contract (Security Agreement), dated as of June 9, 2010, given by Clean Coal Solutions, LLC to *
Installment Sale Contract (Security Agreement), dated as of June 9, 2010, by and between Clean Coal Solutions Services, LLC and *.
Installment Sale Contract (Security Agreement), dated as of June 9, 2010, by and between Clean Coal Solutions Services, LLC and *.
Disclosure Schedules, page 22
Schedule 3.1(m)
Employee Matters
The IBEW union represents collectively bargained employees of Clean Coal Solutions Services, LLC on the Site.
Disclosure Schedules, page 23
Schedule 9.8
Knowledge of CCS Parties
Dr. Nina B. French
Charles S. McNeil
Brian C. Humphrey
Dr. Mike Durham
Thomas McCarthy
Disclosure Schedules, page 24
Exhibit 10.42
EQUIPMENT LEASE
(New Madrid)
This EQUIPMENT LEASE (this Lease ), dated as of November 21, 2011 (the Effective Date ), is entered into by and between AEC-NM, LLC, a Colorado limited liability company ( Lessor ) and GS RC INVESTMENTS LLC, a Delaware limited liability company ( Lessee ). Lessor and Lessee may be referred to herein individually as a Party , and collectively as the Parties .
R E C I T A L S
A. Clean Coal Solutions, LLC, AEC-TH, LLC, Lessor and Lessee have previously entered into that certain Agreement to Lease dated as of June 29, 2010, as amended from time to time under which Lessor agreed to lease a refined coal production facility to Lessee pursuant to the Existing Lease (as hereinafter defined).
B. Pursuant to that certain Exchange Agreement, dated as of November 21, 2011, among Clean Coal Solutions, LLC, Lessor and Lessee (the Exchange Agreement ), the Parties desire to terminate the Existing Lease and to enter into this Lease to lease the refined coal production facility, as described on Exhibit A hereto (the Facility ).
A G R E E M E N T S
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. Capitalized terms used but not defined herein shall have the meanings associated with such terms in the Exchange Agreement. The following terms shall have the following meanings as used herein:
Applicable Section 45 Credits means with respect to any Quarter, the Section 45 Credits to which Lessee is entitled as a result of the sale during such Quarter to an Unrelated Person of Refined Coal produced in the Facility based on the Monthly Operating Reports for each Month during such Quarter.
Assignment has the meaning set forth in Section 6.12.
Business Day means any Day other than (i) a Saturday or Sunday or (ii) a Day on which commercial banks in New York, New York are authorized or required to be closed.
Casualty has the meaning set forth in Section 2.7.
Code means the Internal Revenue Code of 1986, as amended.
Contingent Rent Payment has the meaning set forth in Section 2.2.
* Indicates portions of the exhibit that have been omitted pursuant to a request for confidential treatment. The non-public information has been separately filed with the Securities and Exchange Commission.
Contingent Rent Payment Date means the twentieth (20th) Day of the Month immediately following the end of the applicable Quarter (or if such Day is not a Business Day, by the first Business Day following such Day).
Contingent Rent Tax Event means the events described in clauses (a) (but only to the extent of an actual reduction of Section 45 Credits), and (d) of the definition of the term Tax Event.
Day means a calendar day.
Draft Allocation has the meaning set forth in Section 2.3
Exchange Agreement has the meaning set forth in the Recitals.
Existing Lease means that certain Equipment Lease (New Madrid) entered into between Lessor and Lessee dated June 29, 2010.
Facility has the meaning set forth in the Recitals.
Final Allocation has the meaning set forth in Section 2.3.
Federal Tax Rule means any regulation, rule, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or interpretative or advisory opinion or letter by any Federal Tax Authority with respect to federal tax matters, including (a) regulations of the Treasury Department, (b) IRS and Treasury Department materials such as Revenue Rulings, Revenue Procedures, Treasury Decisions, PLRs, Technical Memoranda, Technical Advice Memoranda, Chief Counsel Advice, Field Service Advice, General Counsel Memoranda, Office Memoranda, Technical Information Releases, Delegation Orders, Executive Orders, Treasury Department Orders, Notices, Announcements and News Releases, (c) judgments and decisions of the United States Tax Court, the United States Board of Tax Appeals and any other court of the United States in connection with its exercise of original, trial or appellate jurisdiction over any case involving federal tax matters and (d) a Pre-Filing Agreement.
Fixed Rent Payments means the Initial Term Fixed Rent Payments and the Renewal Term Fixed Rent Payments.
Force Majeure has the meaning set forth in Section 4.1.
GS means The Goldman Sachs Group, Inc., a Delaware corporation.
Independent Accountant has the meaning set forth in Section 2.3.
Initial Term has the meaning set forth in Section 3.1.
Initial Term Fixed Rent Payments has the meaning set forth in Section 2.2.
Interest Rate means the lesser of (i) the Prime Rate plus two percent (2%), and (ii) the highest rate permitted by applicable Law.
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Investment Grade has the meaning set forth in the Operating and Maintenance Agreement.
IRS means the United States Internal Revenue Service or any successor thereto.
IRS Guidance has the meaning set forth in Section 6.13.
Lease has the meaning set forth in the preamble.
Lessee has the meaning set forth in the preamble.
Lessor has the meaning set forth in the preamble.
Monthly Operating Reports means the reports provided by Operator to Lessee pursuant to Section 2.14 of the applicable Operating and Maintenance Agreement or similar reports provided by any successor operator.
Party or Parties has the meanings set forth in the preamble.
Person means an individual, group, partnership, corporation, limited liability company, trust or other entity.
Placed-in-Service Date means the date the Facility is placed in service within the meaning of the Refined Coal Guidance.
Pre-Filing Agreement means an LSMB pre-filing arrangement (as described in IRS Revenue Procedure 2009-14 or any supplement or successor thereto) between Lessee and the IRS.
Prime Rate means the rate of interest publicly announced from time to time by Citibank, N.A., New York branch, as its prime or base lending rate.
Quarter means each calendar quarter ending on March 31, June 30, September 30 and December 31 of each year.
Refined Coal means refined coal produced at the Facility from coal.
Refined Coal Guidance means IRS Notice 2010-54 and such other guidance issued by the IRS supplementing, amending or superseding IRS Notice 2010-54.
Refined Coal Sale Agreement means that certain Refined Coal Sale Agreement (New Madrid) between Lessee and Utility.
Regulatory Event means the adoption, promulgation, change, repeal, or change in the interpretation, administration or application of any Law, or any other action of any Governmental Authority, in each case after the Effective Date (other than Force Majeure or a Tax Event) that results directly or indirectly in (a) it being unlawful for the Lessee to lease, operate or have operated the Facility, (b) Lessee being obligated or compelled to divest or materially limit any of its or its Affiliates businesses or the activities thereof wherein such
3
divestiture or limitation affects or would affect Lessees ability to perform its obligations under this Lease, (c) the imposition of a material penalty, fee or other cost, in each case in light of the overall economics of the transactions contemplated in the Transaction Documents, to be paid by Lessee or any of its Affiliates with respect to the Facility or arising out of this Lease that was not otherwise payable before the Effective Date or (d) a Material Adverse Effect.
Renewal Term has the meaning set forth in Section 3.1.
Renewal Term Fixed Rent Payments has the meaning set forth in Section 2.2.
Rent means Initial Term Fixed Rent Payments, Renewal Term Fixed Rent Payments, and Contingent Rent Payments.
Section 45 Credit means the credit allowed by Section 45 of the Code for the production and sale of refined coal produced from coal to an Unrelated Person.
Services Agreement means that certain Coal Yard Services Agreement dated as of June 29, 2010 by and between Lessee and Utility.
Site License means that certain Production Facility and Coal Yard Site License dated as of June 29, 2010 by and between Lessee and Utility.
Tax Event means (a) the issuance to Lessee, or any Affiliate of Lessee, by the IRS of a (i) Notice of Proposed Adjustment (Form 5701); (ii) technical advice memorandum; (iii) private letter ruling, (iv) determination letter, (v) 60-day letter containing an examination report; (vi) 30-day letter containing an examination report; or (vii) any other written document that reduces or proposes the reduction of the Section 45 Credits for the taxable period(s) under examination, or examined, by the IRS, by 20 percent or more; (b) the issuance, publication, announcement or other public dissemination of any statement or writing by the chairperson of the Ways and Means Committee of the U.S. House of Representatives or the Finance Committee of the U.S. Senate (including through a colloquy reported in the Congressional Record), if such statement or writing proposes, advocates or supports the enactment of federal legislation, or the adoption of a Federal Tax Rule, that would disallow some or all of the Section 45 Credits; (c) the passage by any of the Ways and Means Committee of the U.S. House of Representatives, the Finance Committee of the U.S. Senate, the U.S. House of Representatives or the U.S. Senate of a bill or resolution that, if enacted or adopted, would disallow some or all of the Section 45 Credits or (d) any adoption of a Federal Tax Rule the effect of which is the disallowance of 20 percent or more of the Section 45 Credits.
Term has the meaning set forth in Section 3.1.
Total Fixed Payments means, with respect to any Quarter in the Initial Term, the sum of the Initial Term Fixed Rent Payments for such Quarter indicated on Schedule 1, and with respect to any Quarter in the Renewal Term, the Renewal Term Fixed Rent Payments for such Quarter.
Total Operating Expenses means, with respect to any Quarter, the total of all actual costs and expenses, including budget overruns, incurred and paid by Lessee in connection with
4
the operation of the Facility during such Quarter for the production of Refined Coal, including without limitation (a) the costs of electrical power, water and other utilities and services consumed in the operation of the Facility paid by Lessee; (b) fees and expenses paid to the Operator under the applicable Operating and Maintenance Agreement or any subsequent operator of the Facility (though Total Operating Expenses shall not include any subsequent operator fees and expenses that are unreasonable); (c) costs of routine preventive maintenance of the Facility; (d) the cost of all materials and supplies necessary for the operation of the Facility, other than coal; (e) the cost of all overhauls, major and minor repairs and replacements of the Facility; (f) the cost of all mobile equipment, lubricants, chemicals (including Chemical Additives as defined in the Chemical Additive Supply Agency Agreement), fluids, oils, supplies, filters, fittings, connectors, seals, gaskets, hardware, wires and other similar consumable materials and supplies used in connection with the operation, overhaul, repair or replacement of the Facility; (g) all fines, penalties, and costs of complying with injunctive relief relating to operation and maintenance of the Facility with applicable Laws except to the extent caused by Lessee; (h) the costs of procuring, maintaining and complying with all Permits, including all related engineering costs; (i) the insurance coverages described in Section 3.13 of the applicable Operating and Maintenance Agreement; (j) taxes, administrative costs and all other assessments related to the operation of the Facility; (k) site rent paid by the Lessee to Utility under the Site License or under any other lease or license of a site on which the Facility is located during the Term; (l) the coal yard and coal handling services fee paid by Lessee to Utility under the Services Agreement or under any other coal yard and coal handling services agreement; (m) the costs of treating, managing, transporting and disposing of solid waste, sludges, trash, wastewater, leachate, and Hazardous Substances generated or used in the operation of the Facility, including all such materials arising from the operation of the Facility; and (n) the costs of coal sampling and emissions testing, provided that the Total Operating Expenses shall not include (i) the cost of coal, (ii) any costs or expenses incurred by Operator and reimbursed by Lessee under Section 2.10(c) of the applicable Operating and Maintenance Agreement or otherwise in connection with complying with any Extended Production Suspension Plan (as such term is defined in the applicable Operating and Maintenance Agreement) or any recommencement of operations of the Refined Coal Plant following an Extended Production Suspension Plan, (iii) the costs and expenses of any Decommissioning and Relocation Services (as such term is defined in the applicable Operating and Maintenance Agreement) incurred by Operator and reimbursed by Lessee under Section 3.10 of the applicable Operating and Maintenance Agreement or (iv) the costs or expenses of any substantially similar services to those services described in (ii) and (iii) above provided by a Person other than Operator.
Unrelated Person means, with respect to any Person, any other Person that is not related to such Person within the meaning of Section 45(e)(4) of the Code.
ARTICLE II
LEASE
2.1 Lease of Facility.
(a) Subject to the terms and conditions hereof and of the Exchange Agreement, from the Effective Date, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Facility for the uses set forth in Section 2.11 below.
5
(b) Upon the occurrence of the Effective Date, the Existing Lease, together with all amendments and modifications thereto, shall terminate. Each Party for itself, its Affiliates and its and their successors and assigns agrees that (i) the termination of the Existing Lease shall be treated as a termination by agreement without fault or breach on the part of either Party and (ii) the terms of Section 3.2 of the Existing Lease shall apply to such termination, provided that Sections 3.2(c) and (e) of the Existing Lease shall be inapplicable and excluded in all respects for the purposes of such termination and Lessee shall (following such termination) have no further obligations to make additional payments pursuant to Sections 3.2(c) and (e) of the Existing Lease.
2.2 Rent.
(a) During the Initial Term, Lessee will pay to Lessor on the last Business Day of each Quarter the fixed payment set forth on Schedule 1 for such Quarter (the Initial Term Fixed Rent Payments ). The Initial Term Fixed Rent Payments shall be payable through the end of the Initial Term notwithstanding any termination of this Lease (and the obligation to make all such Initial Term Fixed Rent Payments will be treated as having been incurred at the inception of the Initial Term), except for a termination pursuant to Section 3.1(e). In the event that this Lease is terminated pursuant to Section 3.1(e) prior to the end of the Initial Term, no further Initial Term Fixed Rent Payments shall be due, though the Lessee will pay to the Lessor a pro-rated amount of the Initial Term Fixed Rent Payment due with respect to the Quarter in which this Lease is terminated.
(b) During each Renewal Term, Lessee will pay to Lessor on the last Business Day of each Quarter the fixed payment set forth on Schedule 1 for such Quarter (the Renewal Term Fixed Rent Payments ). The Renewal Term Fixed Rent Payments shall be payable through the end of the applicable Renewal Term notwithstanding any termination of this Lease (and the obligation to make all such Renewal Term Fixed Rent Payments will be treated as having been incurred at the inception of the Renewal Term), except for a termination pursuant to Section 3.1(e). In the event that this Lease is terminated pursuant to Section 3.1(e) prior to the end of the applicable Renewal Term, no further Renewal Term Fixed Rent Payments shall be due, though the Lessee will pay to the Lessor a pro-rated amount of the Renewal Term Fixed Rent Payment due with respect to the Quarter in which this Lease is terminated.
During the Term and subject to receipt of satisfactory redeterminations of qualified emissions reductions in accordance with the Refined Coal Guidance in effect at the time of such redetermination (it being understood that redeterminations are currently required to be performed on a semi-annual basis and thus may not be required for each Quarter), Lessee will pay to Lessor quarterly on the Contingent Rent Payment Date for each Quarter the Contingent Rent Payment for such Quarter and provide Lessor the calculation of such Contingent Rent Payment. The Contingent Rent Payment with respect to each Quarter shall equal *. If a Contingent Rent Payment for any Quarter is reduced on account of the limitation in Section 2.2(d), the reduced amount will be carried forward to succeeding Quarters in the same Term, beginning with the next Quarter, and added to the Contingent Rent Payment (subject to the limitation in Section 2.2(d)) until the reduction has been offset by additional Contingent Rent Payments.
6
(c) The Contingent Rent Payments shall be determined after taking into account any phase-out of such credits under Section 45(b)(1) of the Code and any applicable inflation adjustment under Section 45(b)(2) of the Code as provided herein, but shall be determined without regard to limitations on Lessees use of the Section 45 Credits imposed by Section 38(c) of the Code and without regard to whether Lessee actually utilizes such Section 45 Credits. In the event that any Contingent Rent Payment is due prior to the date that the IRS publishes the U.S. dollar amount of the Applicable Section 45 Credits with respect to such calendar year, the U.S. dollar amount of the Applicable Section 45 Credits for the prior year shall be used until the IRS publishes the U.S. dollar amount of the Applicable Section 45 Credits for the current year. Once the IRS publishes this figure, the Lessee will adjust the next due Contingent Rent Payment to reflect any change that should be made to prior Contingent Rent Payments made during the current calendar year to take the new published figure into account. Within 90 Days after the end of each calendar year during the Term, Lessee shall recalculate all Contingent Rent Payments that have been made with respect to such calendar year based upon (i) the Section 45 Credit applicable to such calendar year, (ii) the actual amount of Refined Coal sales from the Facility in each Quarter of such calendar year and (iii) the actual Total Operating Expenses for each Quarter paid by Lessee in such calendar year. Upon completion of such recalculation, Lessee shall promptly notify Lessor of such recalculation and provide Lessor a statement of such recalculation. Within 30 Days following such notice, Lessor or Lessee, as appropriate, shall make an adjustment payment to the other Party to reflect such recalculation, though such other Party may raise a good faith dispute to the adjustment payment.
(d) Notwithstanding anything to the contrary herein, (i) the aggregate Contingent Rent Payments during the Initial Term plus the contingent payments made pursuant to the Existing Lease shall not exceed the present value, as of the effective date of the Existing Lease, calculated using *discount rate, of (A) the aggregate projected Initial Term Fixed Rent Payments for the Initial Term, plus (B) the aggregate fixed rental payments (including all prepayment of rent) paid by Lessee pursuant to the Existing Lease and (ii) the aggregate Contingent Rent Payments during any Renewal Term shall not exceed the present value, as of the Effective Date, calculated using * discount rate, of the aggregate projected Renewal Term Fixed Rent Payments for such Renewal Term. To the extent Lessee pays Lessor any Contingent Rent Payments in excess of the amounts set forth in this subsection in the Initial Term or any Renewal Term on a cumulative basis since the Effective Date, Lessor shall reimburse Lessee within five Days after notice by Lessee of such excess payment.
(e) Lessee shall make the Fixed Rent Payments and the Contingent Rent Payments in immediately available funds to an account in the United States of America designated from time to time to Lessee in writing by Lessor. The initial nominated account of Lessor is:
Colorado Business Bank
ABA #: 102003206
Account Name: AEC-NM, LLC
Account #: 3286363
(f) Any Rent required to be paid under this Section 2.2 that is not so paid (unless subject to a good faith dispute) will bear interest from the date on which Rent was
7
required to be paid to the date such Rent is actually received by Lessor at an effective annual rate equal to the Interest Rate. In the event of a dispute with respect to any Rent pursuant to this Section 2.2, the Parties shall continue to perform their obligations as required hereunder. Upon resolution of such dispute, the Rent, if any, determined to be owing by Lessee to Lessor (by agreement of the Parties or final determination of a court of competent jurisdiction) shall be paid within five Business Days following such resolution, together with interest (using the interest rate described above) from the date Lessee was required to pay the disputed amount.
(g) Attached hereto as Exhibit C is an illustration of how any payments to be made under this Section 2 would be made under certain circumstances.
2.3 Tax Ownership . The Parties agree that for federal income tax purposes, (a) the transactions described in the Existing Lease shall be considered as a taxable installment sale of the Facility, (b) the transactions described in the Exchange Agreement and in this Lease shall be treated as a like-kind exchange under Section 1031 of the Code of the facility leased pursuant to the Existing Lease for the New Facility, and (c) the tax treatment of Contingent Rent Payments made by Lessee to Lessor under the terms of this Lease will be governed by the principles of Treasury Regulation section 1.1275-4(c). The Parties to agree to report the transactions consistently with such characterization. Lessee will provide Lessor with (i) an allocation of the Initial Term Fixed Rent Payments under this Lease between interest and principal components and Lessee shall complete Form 8594 and furnish Lessor with a copy within 120 Days after the Effective Date, (ii) an allocation of the Renewal Term Fixed Rent Payments under any Renewal Term within 90 Days after the commencement of such Renewal Term, and (iii) an allocation of each Contingent Rent Payment between interest and principal components within 45 Days after such payment is made (each such allocation, a Draft Allocation ). Lessor shall review the Draft Allocation and provide any objections to Lessee within 30 Days after the receipt thereof. In the event Lessor does not object to Lessees Draft Allocation, such Draft Allocation shall be final (the Final Allocation ) and the Parties shall report such Final Allocation for tax purposes and file tax returns in a manner consistent with such mutually agreed Final Allocation. If Lessor raises objections to the Draft Allocation, the Parties will negotiate in good faith to resolve such objection(s). If the Parties are unable to agree on the Draft Allocation within 14 Days after Lessor raises such objections, the Parties shall refer such dispute to an independent nationally recognized accounting firm (the Independent Accountant ), which Independent Accountant shall make a final and binding determination as to all matters in dispute with respect to the Draft Allocation (and only such matters) within 30 Days and promptly shall notify the Parties in writing of its resolution. Each Party shall bear and pay one-half of the fees and other costs charged by the Independent Accountant.
2.4 Title to Facility. Title to the Facility leased herein shall be and at all times during the Term remain in Lessor. During the Term, Lessee shall neither remove nor permit removal of any serial number, model, number, name, or any other identification of ownership from the Facility.
2.5 Maintenance. During the Term, Lessee agrees, at its own cost and expense, to keep the Facility in good repair, condition, and working order, will furnish all parts, mechanisms, devices, and labor required to keep the Facility in such condition, normal wear and tear excepted, and will pay all costs of the Facilitys operation.
8
2.6 Insurance. Lessor has obtained and shall maintain during the Term such insurance (including the coverages, limits, deductibles, and retentions) as set forth in Exhibit B hereto and shall provide certificates evidencing the existence of such policies of insurance to Lessee within 10 Days after the Effective Date.
2.7 Loss and Damage; Casualty. Lessee hereby assumes and will bear the entire risk of loss of, theft of, requisition of, damage to or destruction of an item (collectively, a Casualty ) comprising the Facility from any cause whatsoever. In the event of a Casualty, Lessee shall at its option either (a) repair or replace the damaged or destroyed portion of the Facility at its own expense in which event Lessor shall assign to Lessee all property damage insurance proceeds received by Lessor or to which Lessor is entitled arising out of such Casualty, or (b) terminate the Lease.
2.8 Taxes. Lessee shall at all times during the Term pay all property taxes that are imposed upon the Facility or Lessees use thereof.
2.9 Personal Property . The Facility herein leased is, and shall at all times during the term hereof remain, personal property, notwithstanding that the Facility, or any part of it, may now be or hereafter become in any manner attached to, embedded in, or permanently resting on real property or any building or improvement thereon, or attached in any manner to what is permanent, as by means of cement, plaster, nails, bolts, screws, or the like.
2.10 Lessees Right to Possession. During the Term, Lessee shall have the right to retain possession of the Facility herein leased at the power plant known as the New Madrid Power Plant located near Marston, Missouri or at any other location Lessee may choose to place the Facility.
2.11 Permitted Uses. Lessee shall only use the Facility for the production of Refined Coal.
2.12 Location. Lessee shall have the right from time to time during the Term to relocate the Facility at Lessees expense to such other site as may be selected by Lessee.
2.13 Assignment of Warranties. Lessor hereby assigns to Lessee all warranties to which Lessor may have rights applicable to the Facility or any portion thereof provided by any manufacturers, designers, and constructors of the Facility or any portion thereof. Lessor agrees to take such other action as may be necessary to effectuate the assignment granted to Lessee pursuant to this Section 2.13.
ARTICLE III
TERM
3.1 Term.
(a) The Term of this Lease (the Term ) will consist of: (i) the Initial Term and (ii) the Renewal Terms, if any. The Initial Term shall commence on the Effective Date and, unless sooner terminated pursuant to any of the terms hereof, end on December 31, 2012.
9
(b) Unless sooner terminated in accordance with any of the terms hereof, the Term shall automatically renew for successive one year terms after the expiration of the Initial Term (each, a Renewal Term ) until the date that is ten (10) years after the Placed-in-Service Date (with the final Renewal Term for a pro rata year). Thereafter, if the Section 45 Credit for Refined Coal produced by the Facility is extended, Lessee shall be entitled in its sole discretion to terminate this Lease. If Lessee does not elect to exercise its termination right, a Renewal Term shall automatically commence and this Lease shall continue to renew for successive Renewal Terms thereafter until the termination of the Section 45 Credit for Refined Coal produced by the Facility.
(c) Lessee may terminate this Lease on June 29, 2020 by providing three (3) months prior written notice to Lessor.
(d) Lessee may terminate this Lease by written notice effective immediately to Lessor if the Total Operating Expenses paid by Lessee with respect to any two consecutive Quarters exceed 140% of the projected operating costs of the Facility for such two consecutive Quarters as set forth on Schedule 2.
(e) Lessee may terminate this Lease by written notice to Lessor if a Tax Event occurs, though not during the Initial Term in the case of a Tax Event described in clauses (a)(iii) and (a)(iv) of the definition of Tax Event.
(f) Lessee may terminate this Lease by notice to Lessor if (i) any of the representations and warranties of Lessor contained in the Exchange Agreement are not true in all material respects as of the date made, and such representations and warranties are not made true by Lessor within 30 Days after notice from Lessee, or (ii) Lessor fails to perform in any material respect any its obligations hereunder or under the Exchange Agreement and such failure is not cured within 30 Days after notice from Lessee.
(g) Lessee may terminate this Lease by notice to Lessor if the Refined Coal Sale Agreement or the Technology Sub-License terminates or is terminated or if any Lessor Guaranty ceases to be in full force and effect or any Lessor Guarantor shall so assert in writing.
(h) Lessor may terminate this Lease by notice to Lessee if (i) any of the representations and warranties of Lessee contained in the Exchange Agreement are not true in all material respects as of the date made, and such representations and warranties are not made true by Lessee within 30 Days after notice from Lessor, (ii) Lessee fails to pay any undisputed installment of Rent due hereunder and such failure is not cured within 15 Business Days after notice from Lessor, (iii) the Lessee Guaranty is terminated without being replaced by a new guaranty on substantially similar terms as the Lessee Guaranty from a Person having an Investment Grade rating or (iv) Lessee otherwise fails to perform in any material respect any of its obligations hereunder or under the Exchange Agreement and such failure is not cured within 30 Days after notice from Lessor.
(i) Lessee may terminate this Lease if, in the good faith judgment of Lessee, (i) equipment at the Facility requires replacement or modification or if the Facility needs to be relocated and (ii) the anticipated cost of such replacement, modification or relocation would result in the Facility having a new placed-in-service date.
10
(j) Lessee may terminate this Lease as of the end of the Initial Term by providing notice of such termination to Lessor on or before July 1, 2012.
(k) Lessee may terminate this Lease by notice to Lessor if the sale to Unrelated Persons of Refined Coal produced in the Facility for any two consecutive Months (excluding any period of Force Majeure) fails to generate Section 45 Credits or if the amount of allowable Section 45 Credits is reduced under Section 45(e)(8)(B) of the Code * of the amount of Section 45 Credits that would have been available if there had been no such reduction.
(l) Lessee may terminate this Lease by notice to Lessor if a Regulatory Event occurs.
(m) Lessee may terminate this Lease by notice to Lessor if, for reasons other than Force Majeure, Refined Coal produced in the Facility fails to satisfy the emissions reduction requirements set forth in Code Section 45(c)(7)(B) or the Refined Coal Guidance, resulting in, or likely to result in, a material loss of Section 45 Credits by Lessee and, despite the use by Lessee of reasonable efforts, the problem causing such production of Refined Coal to fail to satisfy the emissions reduction requirements set forth in Code Section 45(c)(7)(B) or the Refined Coal Guidance is not cured within 14 Days after Lessee becomes aware of such problem (or in the event such problem is not curable within 14 Days, within such additional period (not to exceed 14 Days) as is reasonably necessary to cure such problem if such violation is curable but cannot be reasonably cured within such 14 Day period, and if Lessee uses reasonable efforts to pursue such cure during such 14 Day period).
3.2 Effect of Expiration or Termination. Upon expiration or termination of this Lease pursuant to Section 3.1 above, there will be no liability or obligation on the part of Lessee or Lessor (or any of their respective Affiliates or Representatives), except that (a) each Party shall continue to be liable for any breach of this Lease by it occurring prior to such termination, (b) each Party shall pay any amounts outstanding and payable by it hereunder as of the date of termination, (c) Lessee shall continue to pay the Initial Term Fixed Rent Payments pursuant to the terms of Section 2.2(b) and any Renewal Term Fixed Rent Payments pursuant to the terms of Section 2.2(c), (d) the Parties will be subject to the indemnity obligations set forth in Article 5, and (e) the provisions of Sections 2.2(b), (c), and (d) shall continue to apply. Upon the expiration or the termination of this Lease for any reason, Lessee will discontinue all use of the Facilities.
3.3 Lessees Duty to Surrender. At the expiration or earlier termination of the Term, Lessee shall surrender to Lessor the possession of the Facility leased hereunder.
11
ARTICLE IV
FORCE MAJEURE
4.1 Force Majeure.
(a) If Lessee is rendered unable by Force Majeure to carry out, in whole or part, its obligations (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) under this Lease, Lessee shall give notice orally to Lessor as soon as reasonably practicable, followed within five Business Days thereafter by a written notice setting forth, in reasonable detail, the cause or causes constituting such Force Majeure. The obligations of Lessee (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) shall be suspended to the extent made necessary, and for no longer than is required, by the cause or causes constituting such Force Majeure.
(b) The term Force Majeure means any event that is beyond the reasonable control and occurs without the fault or negligence of Lessee, that by the exercise of reasonable diligence or the incurrence of reasonable expense Lessee is unable to prevent or overcome, and that wholly or partly prevents the performance of any of the obligations of Lessee (other than the obligation to make payments then due or becoming due with respect to performance prior to the event). Force Majeure includes the following events to the extent they present the characteristics described in the preceding sentence: acts of God or of the public enemy; interruptions in or failure of transportation of coal or Refined Coal or other materials by third parties; fire, flood, explosion or other serious casualty; severe weather; war (whether declared or not); mobilization, revolution, riot, or civil commotion; legal intervention; regulation or order of Governmental Authority; changes in Permit requirements that prevent the Parties from operating the Facility; inability to obtain any Permit notwithstanding commercially reasonable efforts to obtain such Permit; strike; and lock-out or other labor disputes. A lack or unavailability of money shall not constitute Force Majeure.
(c) Lessee shall initiate and continue commercially reasonable good faith efforts to remedy the Force Majeure with all reasonable dispatch; provided, however , that the settlement of strikes, lockouts, or other labor disputes shall be totally within the discretion of Lessee.
ARTICLE V
INDEMNIFICATION, LIMITATION OF LIABILITY AND REMEDIES
5.1 Lessees Right to Indemnification. Lessor shall indemnify the Lessee Indemnified Parties in accordance with, and subject to, the terms of the Exchange Agreement from and against any and all Losses incurred by the Lessee Indemnified Parties to the extent arising out of or caused by any breach of this Lease by Lessor.
5.2 Lessors Right to Indemnification. Lessee shall indemnify the CCS Indemnified Parties in accordance with, and subject to, the terms of the Exchange Agreement from and against any and all Losses incurred by the CCS Indemnified Parties to the extent arising out of or caused by any breach of this Lease by Lessee.
5.3 Claims Procedures and Limitations. All claims for indemnification shall be subject to the procedures and limitations set forth in the Exchange Agreement.
12
ARTICLE VI
MISCELLANEOUS
6.1 Confidentiality.
(a) Each Party shall maintain the terms of this Lease in confidence and shall not disclose any information concerning the terms, performance or administration of this Lease to any other Person; provided that a Party may disclose such information: (i) to any of such Partys Group, (ii) to any prospective member of such Partys Group, (iii) to any actual or prospective purchaser of all or a portion of such Partys interest in the Facility and (iv) to any Person providing or evaluating a proposal to provide financing to the recipient Party or any direct or indirect owner of such Party; provided in each case that the recipient Party shall provide to each Person to which disclosure is made a copy of this Section 6.1 and direct such Person to treat such information confidentially, and the recipient Party shall be liable for any breach of the terms of this Section 6.1 by such Persons to which it makes any such disclosure. The foregoing restrictions will not apply (A) to information that is or becomes generally available to the public otherwise than as a result of disclosure by the recipient Party, (B) to information that is already in, or subsequently comes into, the recipient Partys possession, provided that the source of such information was not, to the recipient Partys knowledge, obligated to keep such information confidential, (C) to information that is required to be disclosed pursuant to Law or stock exchange rules and regulations or is otherwise subject to legal, judicial, regulatory or self-regulatory requests for information or documents or (D) subject to Section 6.1(b) below, to the tax structure or tax treatment of the transaction.
(b) Each Party may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transaction, provided, however, that any such information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The tax structure and tax treatment of the transaction includes only those facts that may be relevant to understanding the purported or claimed U.S. federal and state income tax treatment or tax structure of the transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any parties involved in any of the transactions contemplated by this Lease or the documents to be delivered in connection herewith.
(c) If any Party is required to disclose any information required by this Section 6.1 to be maintained as confidential in a judicial, administrative or governmental proceeding, such Party shall give the other Party at least 10 Days prior written notice (unless less time is permitted by the applicable proceeding) before disclosing any such information in any said proceeding and, in making such disclosure, the Party required to disclose the information shall disclose only that portion thereof required to be disclosed and shall cooperate with the other Party in the other Partys attempts to seek to preserve the confidentiality thereof, including if such Party seeks to obtain protective orders and/or any intervention.
6.2 Tax Return Information and Tax Proceedings . The provisions of Section 4.4 of the Exchange Agreement shall apply to this Lease.
13
6.3 Amendment, Modification and Waiver. This Lease may not be amended or modified except by an instrument in writing signed by each of the Parties. Any failure of a Party to comply with any obligation, covenant, agreement, or condition contained herein may be waived only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any other failure.
6.4 Severability. If any term or other provision of this Lease is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other conditions and provisions of this Lease shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Lease so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
6.5 Expenses and Obligations. Except as otherwise expressly provided in this Lease, all costs and expenses incurred by the Parties in connection with this Lease and the consummation of the transactions contemplated hereby shall be borne solely and entirely by the Party which has incurred such expenses.
6.6 Parties in Interest. This Lease shall be binding upon and, except as provided below, inure solely to the benefit of each Party and its successors and permitted assigns, and nothing in this Lease, express or implied, is intended to confer upon any other Person (other than the Lessee Indemnified Parties and CCS Indemnified Parties as provided in Article 5) any rights or remedies of any nature whatsoever under or by reason of this Lease).
6.7 Notices. All notices and other communications hereunder shall be in writing, unless otherwise specified, and shall be deemed given if delivered personally, by a nationally recognized overnight courier, by facsimile or electronic mail, or mailed by registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):
(a) If to Lessee, to:
GS RC Investments LLC
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Attention: Michael Feldman
Fax: (212) 428-3868
Email: Michael.Feldman@gs.com
14
With a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Attention: F. B Cochran III
Fax: (713) 615-5368
Email: fcochran@velaw.com
If to Lessor, to:
AEC-NM, LLC
3300 South Parker Road, Suite 310
Aurora, CO 80014
Attention: Charles S. McNeil
Fax: (303) 751-9210
Email: cmcneil@nexgen-group.com
With copies (which shall not constitute notice) to:
Hogan Lovells US LLP
1200 Seventeenth Street, Suite 1500
Denver, CO 80202
Attention: Tyler Harvey
Fax: (303) 899-7333
Email: tyler.harvey@hoganlovells.com
Clean Coal Solutions, LLC
3300 South Parker Road, Suite 310
Aurora, CO 80014
Attention: Brian Humphrey
Fax: (303 751-9210
Email: bhumphrey@nexgen-group.com
All notices and other communications given in accordance herewith shall be deemed given (i) on the date of delivery, if hand delivered, (ii) on the date of receipt, if faxed or emailed (provided a hard copy of such transmission is dispatched by first class mail within 48 hours), (iii) three Business Days after the date of mailing, if mailed by registered or certified mail, return receipt requested, and (iv) one Business Day after the date of sending, if sent by a nationally recognized overnight courier; provided, however, that a notice given in accordance with this Section 6.7 but received on any Day other than a Business Day or after business hours in the place of receipt, will be deemed given on the next Business Day in that place.
6.8 Counterparts. This Lease may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.
15
6.9 Entire Agreement. This Lease (which term shall be deemed to include the Exhibits and Schedules hereto) constitutes the entire agreement of the Parties and supersedes all prior agreements, letters of intent and understandings, both written and oral, among the Parties with respect to the subject matter hereof. There are no representations or warranties, agreements, or covenants other than those expressly set forth in this Lease.
6.10 Governing Law; Choice of Forum; Waiver of Jury Trial. THIS LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE ARISING OUT OF OR RELATING TO THIS LEASE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
6.11 Publicity. Lessor agrees that it will not, without the prior written consent of Lessee, in each instance, (a) use in advertising, publicity, or otherwise the name of GS, or any Affiliate thereof (including Lessee), or any partner or employee of GS, or any Affiliate thereof (including Lessee), nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by GS, or any Affiliate thereof (including Lessee), or (b) represent, directly or indirectly, that any product or any service provided by Lessor has been approved or endorsed by GS, or any Affiliate thereof (including Lessee). No public announcement of any kind regarding the existence or terms of this Lease shall be made without the prior written consent of the Parties. For the avoidance of doubt, nothing in this Section 6.11 shall limit Lessors obligation to disclose information pursuant to Section 6.1.
6.12 Assignment. Neither Party shall assign, sublease or otherwise transfer (collectively, an Assignment ) this Lease or any of its rights hereunder without the prior written consent of the other Party, and any purported Assignment made without such prior written consent shall be void. Notwithstanding the foregoing:
(a) either Party may, without the need for consent from the other Party, make an Assignment of this Lease to an Affiliate of such Party provided that such Affiliate assumes all of the obligations of the Party making the Assignment and the Lessor Guarantees or the Lessee Guaranty remain in effect, as applicable, with respect to the obligations of such Affiliate, and in such event the assigning Party shall be released from its obligations under this Lease, except for those obligations that arose prior to such Assignment;
16
(b) Lessee may, without the need for consent from Lessor, make an Assignment of this Lease to any Person (i) succeeding to all or substantially all of its assets, provided such Person has, or its obligations under this Lease are guaranteed by a Person who has, an Investment Grade rating, or (ii) after the date that is ten (10) years after the Effective Date if the Section 45 Credit for Refined Coal produced by the Facility has been extended beyond such date; and
(c) Lessor may, with the prior written consent of Lessee, make an Assignment of this Lease to any Person succeeding to all or substantially all of its assets provided that (i) the acquiring Person assumes all obligations of Lessor hereunder, and (ii) either (A) the Lessor Guarantees remain in full force and effect with respect to the Person succeeding to all or substantially all of Lessors assets, or (B) the Lessor Guarantees are replaced by a new guaranty or guarantees on the same terms as the Lessor Guarantees covering such assumed obligations from a Person having an Investment Grade rating, and in such event Lessor shall be released from its obligations under this Lease, except for those obligations that arose prior to such Assignment.
6.13 Private Letter Ruling. If Lessee or any of its Affiliates decides to pursue a request for a PLR, determination letter, Pre-Filing Agreement or other written guidance from the IRS (the IRS Guidance ) with respect to any aspect of the transactions contemplated by this Agreement or any of the other Transaction Documents or in relation to the New Facility, the Parties shall consider in good faith and make such amendments to this Agreement as may be necessary to permit Lessee to obtain the IRS Guidance. Neither Party shall be required to agree to any such amendment that it reasonably determines, in good faith, is adverse to such Party in any material respect; provided that Lessor shall not withhold its agreement to any such amendment if Lessee has agreed to fully compensate Lessor for any adverse economic effect on Lessor resulting from such amendment and such amendment would not cause any material adverse effect on Lessor for which it cannot adequately be compensated by Lessee.
[Signature page follows.]
17
IN WITNESS WHEREOF, each Party has caused this Lease to be executed on its behalf as of on the day and year first above written.
AEC-NM, LLC | ||
By: |
Clean Coal Solutions, LLC, its managing member |
By: | /s/ Brian Humphrey | |||
Name: |
Brian Humphrey |
|||
Title: |
Manager |
GS RC INVESTMENTS LLC |
By: |
/s/ Michael Feldman |
|||
Name: |
Michael Feldman |
|||
Title: |
Authorized Signatory |
Signature Page to Equipment Lease (New Madrid)
SCHEDULE 1
[See Attached]
Schedule 1
New Madrid |
||||||||||||||||||||
9/30/2010 |
12/31/2010 |
3/31/2011 |
6/30/2011 |
9/30/2011 |
12/31/2011 |
3/31/2012 |
6/30/2012 |
9/30/2012 |
12/31/2012 |
|||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||
3/31/2013 |
6/30/2013 |
9/30/2013 |
12/31/2013 |
3/31/2014 |
6/30/2014 |
9/30/2014 |
12/31/2014 |
3/31/2015 |
6/30/2015 |
|||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||
9/30/2015 |
12/31/2015 |
3/31/2016 |
6/30/2016 |
9/30/2016 |
12/31/2016 |
3/31/2017 |
6/30/2017 |
9/30/2017 |
12/31/2017 |
|||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||
3/31/2018 |
6/30/2018 |
9/30/2018 |
12/31/2018 |
3/31/2019 |
6/30/2019 |
9/30/2019 |
12/31/2019 |
3/31/2020 |
6/30/2020 |
|||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||
9/30/2020 |
12/31/2020 |
3/31/2021 |
6/30/2021 |
9/30/2021 |
11/9/2021 |
|
|
|
|
|||||||||||
Fixed Rent |
* | * | * | * | * | * | ||||||||||||||
Total: |
* |
Schedule 1
SCHEDULE 2
[See Attached]
Schedule 2
New Madrid |
||||||||||||||||||||
9/30/2010 |
12/31/2010 |
3/31/2011 |
6/30/2011 |
9/30/2011 |
12/31/2011 |
3/31/2012 |
6/30/2012 |
9/30/2012 |
12/31/2012 |
|||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||
3/31/2013 |
6/30/2013 |
9/30/2013 |
12/31/2013 |
3/31/2014 |
6/30/2014 |
9/30/2014 |
12/31/2014 |
3/31/2015 |
6/30/2015 |
|||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||
9/30/2015 |
12/31/2015 |
3/31/2016 |
6/30/2016 |
9/30/2016 |
12/31/2016 |
3/31/2017 |
6/30/2017 |
9/30/2017 |
12/31/2017 |
|||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||
3/31/2018 |
6/30/2018 |
9/30/2018 |
12/31/2018 |
3/31/2019 |
6/30/2019 |
9/30/2019 |
12/31/2019 |
3/31/2020 |
6/30/2020 |
|||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||
9/30/2020 |
12/31/2020 |
3/31/2021 |
6/30/2021 |
9/30/2021 |
11/9/2021 |
|||||||||||||||
Total Operating Expenses |
* | * | * | * | * | * | ||||||||||||||
Total: |
* |
Schedule 2
New Madrid |
||||||||||||||||||||||||||||||||||||||
9/30/2010 |
12/31/2010 | 3/31/2011 | 6/30/2011 | 9/30/2011 | 12/31/2011 | 3/31/2012 | 6/30/2012 | 9/30/2012 | 12/31/2012 | |||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Facility maintenance, parts, |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Total Wheel Wader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
* | * | * | * | ||||||||||||||||||||||||||||||||||
Additional start-up operating |
* | * | * | * | ||||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/31/2013 |
6/30/2013 | 9/30/2013 | 12/31/2013 | 3/31/2014 | 6/30/2014 | 9/30/2014 | 12/31/2014 | 3/31/2015 | 6/30/2015 | |||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Facility maintenance, parts, |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Total Wheel Wader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
* | * | * | * | ||||||||||||||||||||||||||||||||||
Additional start-up operating |
||||||||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2015 |
12/31/2015 | 3/31/2016 | 6/30/2016 | 9/30/2016 | 12/31/2016 | 3/31/2017 | 6/30/2017 | 9/30/2017 | 12/31/2017 | |||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Facility maintenance, parts, |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Total Wheel Wader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
| | | | * | * | * | * | ||||||||||||||||||||||||||||||
Additional start-up operating |
||||||||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/31/2018 |
6/30/2018 | 9/30/2018 | 12/31/2018 | 3/31/2019 | 6/30/2019 | 9/30/2019 | 12/31/2019 | 3/31/2020 | 6/30/2020 | |||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Facility maintenance, parts, |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
* | * | ||||||||||||||||||||||||||||||||||||
Additional start-up operating |
||||||||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||||
Total Operating Expenses/Budget * |
* | * | * | * | * | * | * | * | * | |||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2020 |
12/31/2020 | 3/31/2021 | 6/30/021 | 9/30/2021 | 11/9/2021 | |||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | ||||||||||||||||
Labor |
* | * | * | * | * | * | ||||||||||||||||
Facility maintenance, parts, |
* | * | * | * | * | * | ||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | ||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | ||||||||||||||||
Insurance |
* | * | * | * | * | * | ||||||||||||||||
Property Tax |
* | * | * | * | * | * | ||||||||||||||||
Administrative support |
* | * | * | * | * | * | ||||||||||||||||
Technical support |
* | * | * | * | * | * | ||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | ||||||||||||||||
Audit |
* | * | * | * | * | * | ||||||||||||||||
Contingency |
* | * | * | * | * | * | ||||||||||||||||
3-Year Term Insurance Expenses |
* | * | ||||||||||||||||||||
Additional start-up operating |
||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | ||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | ||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | ||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | ||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | ||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Total: |
* |
EXHIBIT A
FACILITY
All fixtures, equipment, machinery, parts and software, and other property constituting the refined coal production facility, consisting of the following components: a CyClean A granular material feed hopper system including weigh belt conveyors; the CyClean A equipment support and enclosure; a CyClean B liquid tote and containment; chemical pumps and associated chemical delivery system plumbing; motor control center; programmable logic control system; and all associated valves, fittings, equipment; located at the New Madrid Power Plant owned by Associated Electric Cooperative, Inc. and located at 41 St. Jude Road, New Madrid, Missouri 63869 including, without limitation, the equipment, parts, and other materials set forth below:
TAG NO. | EQUIPMENT NAME | Manufacturer | Model Number | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
N/A |
* | * | N/A |
Exhibit A
EXHIBIT B
LESSOR INSURANCE
A. | Lessor shall carry and maintain (or cause to be carried and maintained) the following insurance coverages, or their equivalent in scope and amount. Each policy shall list the following as additional insureds (collectively, the Additional Insureds ): Lessee, all direct owners of Lessee and any Person owning a direct or indirect interest in any direct owner of Lessee, the site and the Utility, as their interests may appear. Lessor shall pay (or cause to be paid) the premiums required to maintain these policies in effect, unless otherwise stated. |
All Risks Property Damage Insurance . All Risks Property Damage Insurance in an amount sufficient to cover 100% of the replacement cost of the Facility.
Umbrella Liability Coverage . Insurance with limits of not less than $50,000,000 if available on a commercially reasonable basis, but in any event limits of not less than $25,000,000. At a minimum to provide umbrella limits over commercial liability, employers liability, and auto liability. Such coverage may be on a claims-made basis. Lessor shall immediately notify Lessee of any material dilution in the limit on such policy or policies, whether under this Lease or in connection with any other facility or underlying property.
Contractors Pollution Liability or Pollution Legal Liability . Insurance with limits of $10,000,000. Such insurance shall be obtained by Lessor at Lessees expense. Lessor shall immediately notify Lessee of any material dilution in the limit on such policy or policies, whether under this Lease or in connection with any other facility or underlying property.
B. | The insurance policies maintained pursuant hereto may be subject to such retentions and deductibles as are usual and customary for the risks involved under policies with limits described above. |
C. | Each insurance policy covering Lessors obligations under this Lease, or any other insurance in force for the personal property, fixtures or equipment of Lessor used in connection with this Lease, shall provide for a waiver of subrogation by the insurer in favor of the Additional Insureds. Such insurance provided to Additional Insureds shall apply on a primary basis not as excess of or contributing with any other insurance. |
D. |
All insurance policies shall be in a form reasonably acceptable to Lessee and shall be issued by an approved insurance company licensed and authorized to do business in the state of operation, and rated in Bests Insurance Reports (or similar publication of comparable standing) as A-VIII or better (or the then equivalent of such rating) or as approved by Lessee. As soon as practicable upon execution of this Lease and before commencing any performance hereunder, Lessor shall submit to Lessee certificates of insurance evidencing the existence of the insurance required hereunder. Certificates of renewal or replacement policies shall be delivered to Lessee within 10 Business Days |
Exhibit B-1
after the date of expiration or termination of the expired or replaced insurance policy. If requested by Lessee, Lessor shall provide Lessee an original or certified copy of any insurance policy maintained by Lessor pursuant to the terms hereof.
E. | All primary and umbrella liability policies shall contain the following clause: |
Thirty days written notice of cancellation, material change deemed adverse to Lessees interest or nonrenewal shall be given to Lessee before any cancellation, material change or nonrenewal of this policy will be effected, except ten days will apply for cancellation due to nonpayment of premium.
F. | Lessor and its Representatives shall cooperate with Lessee in connection with the collection of any insurance monies that may be due Lessee in the event of loss, and Lessor and its Representatives shall execute and deliver all such instruments that may be required for the purpose of obtaining the recovery of any such insurance monies. |
G. | Lessor shall maintain the insurance described herein until expiration of the Term or termination of this Lease and the issuance of a final certificate of insurance. |
H. | The following provisions shall apply with respect to the insurance coverages required in this Lease: |
1. | Lessor will not intentionally do, allow or permit anything to be done during the performance of Lessors obligations under this Lease that will affect, impair or contravene any policies of insurance that may be carried on the Facilities, or any part thereof, or the use thereof, against loss, damage or destruction by fire, casualty, public liability, or otherwise. |
2. | Compliance with any of the insurance requirements stipulated in this Lease will not in itself be construed to be limitation of liability of Lessor or its representatives. |
I. | In the event Lessor fails to effect, maintain or renew any of the insurance required hereunder in the required amounts, or to pay the premiums therefor, or to deliver to Lessee any evidence of such insurance or payment therefor as required hereunder, then in any such events Lessee at its option, but without obligation so to do, may procure such insurance. Any sums expended by Lessee to procure any such insurance shall be payable by Lessor on demand, together with interest at the interest rate thereon from the date such sums were expended; provided, however, it is expressly understood that procurement by Lessee of any such insurance shall not be deemed to waive or release the default of Lessor, or the right of Lessee at its option, to exercise the remedies set forth in this Lease upon the occurrence of a default. Unless otherwise specified, Lessee shall not be responsible for obtaining or maintaining any insurance required to be obtained or maintained by Lessor, and shall not, by reason of accepting, rejecting, approving or obtaining any such insurance, incur any liability for the existence, nonexistence, form or legal sufficiency thereof, the solvency of any insurer or the payment of any losses, and Lessor hereby expressly assumes full responsibility therefor and liability, if any, thereunder. |
Exhibit B-2
J. | In addition to the above, Lessor shall maintain all insurance and surety bonds for any other risks or hazard that now or hereafter are customarily insured against by Lessor of like size and type in the locality of the site as Lessor deems appropriate. |
K. | All claims-made liability coverages shall remain in full force and effect for three years after the end of the Term. All other liability coverages shall remain in full force and effect until the end of the Term. |
Exhibit B-3
EXHIBIT C
SECTION 2 PAYMENTS
New Madrid Sample Period Payments (Q2 2012)
Expected Annual Production Output (in MMs of Tons) |
* | * | * | |||||||
Quarterly Production Output (in MM of Tons) |
* | * | * | |||||||
* | * | * | ||||||||
Payment | Sample | Sample | Sample | |||||||
Frequency | Period | Period | Period | Notes | ||||||
Production Costs |
||||||||||
Facility Operating Costs |
Monthly | * | * | * | Actual costs incurred are reimbursable to CCSS | |||||
Operating Fee |
Monthly | * | * | * | * /ton of refined coal produced paid to CCSS | |||||
Chemical Agency Fee |
Monthly | * | * | * | * of chemicals purchased paid to CCSS | |||||
Chemical Additive |
Monthly | * | * | * | Actual costs incurred paid direct to vendors | |||||
Coal Handling |
Quarterly | * | * | * | * of refined coal produced paid to AECI | |||||
Site License |
Quarterly | * | * | * | Variable $/ton of refined coal produced paid to AECI | |||||
Technology Sublicense Fee |
Annual | * | * | * | Paid to CCS | |||||
Rent Payments |
* | |||||||||
Fixed Rent |
Quarterly | * | * | * | Based upon set fixed payment schedule; paid to AEC-NM | |||||
Contingent Rent Currently Payable |
Quarterly | * | * | * | See calculation below; paid to AEC-NM | |||||
Assumptions |
||||||||||
Quarterly Facility Operating Costs (including insurance and start-up) |
* | * | * | |||||||
Operating Fee/ton Produced |
* | * | * | |||||||
Chemical Agency Fee |
* | * | * | |||||||
Chemical Additive Cost/ton Produced |
* | * | * | |||||||
Coal Handling/ton Produced |
* | * | * | |||||||
Site License Fee/ton Produced |
* | * | * | |||||||
Technology Sublicense Fee |
* | * | * | |||||||
Contingent Rent Payment Calculation |
||||||||||
Quarterly Tons Produced |
* | * | * | |||||||
Value of Tax Credit (2012) |
* | * | * | |||||||
|
|
|
||||||||
Production Tax Credits |
* | * | * | |||||||
Monetization Rate |
* | * | * | |||||||
|
|
|
||||||||
Amount Paid |
* | * | * | |||||||
Less: |
||||||||||
Production Costs |
* | * | * | |||||||
Fixed Rent |
* | * | * | |||||||
Amortization of Fixed Rent |
||||||||||
|
|
|
||||||||
Calculated Contingent Rent |
* | * | * |
Exhibit C
Exhibit 10.43
AMENDMENT
TO
TECHNOLOGY SUBLICENSE AGREEMENT
This AMENDMENT TO TECHNOLOGY SUBLICENSE AGREEMENT (this Amendment ) is dated as of November 21, 2011 (the Effective Date ) and made by and among GS RC Investments LLC, a Delaware limited liability company ( Sublicensee ), Clean Coal Solutions, LLC (f/k/a ADA-NexCoal, LLC), a Colorado limited liability company ( Sublicensor ), and ADA-ES INC., a Colorado corporation ( Licensor ). Sublicensee, Sublicensor, and Licensor are sometimes hereinafter individually referred to as a Party and collectively as the Parties .
RECITALS:
WHEREAS , the Parties have previously entered into that certain Technology Sublicense Agreement (the Sublicense Agreement ), dated as of June 29, 2010.
WHEREAS , Sublicensee and AEC-NM, LLC ( AEC-NM ) have previously entered into that certain Equipment Lease, dated as of June 29, 2010 (the Existing NM Equipment Lease ), whereby AEC-NM leased to Sublicensee a refined coal production facility (the Existing NM Facility ).
WHEREAS , simultaneously with the execution of this Amendment, Sublicensee, Sublicensor and AEC-NM are entering into an agreement for the lease of a redesigned refined coal production facility, newly constructed and owned by AEC-NM (the New NM Facility ) and the termination of the Existing NM Equipment Lease.
WHEREAS , the Parties desire to amend the Sublicense Agreement as set forth herein.
NOW, THEREFORE , in consideration of the foregoing recitals, the promises and agreements set forth in this Amendment, and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties agree as follows:
ARTICLE I
AMENDMENTS TO SUBLICENSE AGREEMENT
Section 1.1 Amendments to Article I .
(a) The definition of Equipment Leases in Article I of the Sublicense Agreement shall hereby be deleted in its entirety and replaced by the following definition:
Equipment Leases means, collectively (a) that certain Equipment Lease dated as of November 21, 2011, between AEC-NM, LLC and Sublicensee and (b) that certain Equipment Lease dated as of June 29, 2010, between AEC-TH, LLC and Sublicensee.
* | Indicates portions of the exhibit that have been omitted pursuant to a request for confidential treatment. The non-public information has been separately filed with the Securities and Exchange Commission. |
(b) The following new definitions shall hereby be added to Article I of the Sublicense Agreement:
Claims Notice has the meaning set forth in Section 8.7.
Indemnified Party means any Person seeking indemnification from another Person pursuant to Article VIII.
Indemnifying Party means any Person against whom a claim for indemnification is asserted by another Person pursuant to Article VIII.
Third Party Claim has the meaning set forth in Section 8.7.
Third Party Rights Holder has the meaning set forth in Section 8.2.
Section 1.2 The following new Section 5.4 shall hereby be added to the Sublicense Agreement:
5.4 *. The Licensor, Sublicensor and Sublicensee acknowledge a letter informing the parties of the *. Licensor acknowledges: (i) the receipt of an oral notice from * regarding the subject matter *, to which the Licensors * responded in writing, *; and (ii) that the *.
Section 1.3 Amendment to Section 8.2 . Section 8.2 of the Sublicense Agreement shall hereby be deleted in its entirety and replaced with the following:
8.2 Indemnity by Licensor . Licensor shall defend, indemnify and hold harmless Sublicensor, Sublicensee and each of their respective Affiliates, and each of their respective members, managers, stockholders, officers, employees, agents, representatives and attorneys against any Loss (including without limitation any Loss first suffered by a customer of an Indemnified Party for which the Indemnified Party becomes responsible) arising from or in connection with (i) any claim that the Licensed Property, the Know-How, or the manufacture, sale, or use of Refined Coal produced using the Technology, infringes or misappropriates, directly or indirectly, a patent, trade secret, copyright, trademark or other intellectual property right of any third party (a Third Party Rights Holder ); (ii) any challenge to the validity of any of the Patents or the rights granted to Sublicensee; and (iii) any breach by Licensor of the representations and warranties in Section 5.2 or any covenant or agreement by Licensor in this Agreement. Notwithstanding the foregoing, Licensor will not indemnify any Loss to the extent based upon: (1) an infringement or misappropriation of an intellectual property right of a Third Party Holder that would not exist but for (aa) the addition, use, or presence of any material, chemical, or other type of additives that is not: (xx) included as an element of the Refined Coal produced using the Technology as introduced into the cyclone boiler (excluding any element present in the coal prior to such coal being converted to Refined Coal, such as bromine); or (yy) present and inherent as the result of the conventional combustion of the Refined Coal in a cyclone boiler (e.g., oxygen or other constituents inherently produced in the combustion process); or (bb) the use of a
2
process step or equipment in conjunction with the operation of the cyclone boiler that is unconventional or unique to the operator of the cyclone boiler; or (2) the use of the Licensed Property, Know-How or Technology after Licensor has provided the Indemnified Party with replacement for or a modification of the Licensed Property, Know-How or Technology if the alleged infringement or misappropriation would have been avoided by implementation of such replacement or modification and such replacement or modification does not adversely affect the emissions control functionality of the Refined Coal in a cyclone boiler. If any portion of the Licensed Property, Know-How or Technology becomes, or in Licensors opinion is likely to become, the subject of a Loss arising from this Section 8.2, then Licensor may, at its sole option and expense, either procure the right to continue using the Licensed Property, Know-How or Technology or replace or modify the Licensed Property, Know-How or Technology so it becomes noninfringing.
Section 1.4 The following new Section 8.7 shall hereby be added to the Sublicense Agreement:
8.7 Defense of Third-Party Claims . If an Indemnified Partys claim for indemnification under Section 8.2, Section 8.3 or Section 8.4 is based on a claim brought by a Third Party (including without limitation a customer of the Indemnified Party with respect to a claim brought against such customer by a Third Party Rights Holder) (a Third Party Claim ), the Indemnifying Party shall have the right, at its sole cost and expense, to defend such Third Party Claim in the name or on behalf of the Indemnified Party. The Indemnified Party will give the Indemnifying Party prompt written notice of any such Third Party Claim (a Claims Notice) and reasonably cooperate with the Indemnifying Party in the defense and settlement of the Third Party Claim. The Indemnified Partys failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any obligation which Licensor would otherwise have pursuant to this Agreement except to the extent that the Indemnifying Party has been materially prejudiced by such failure to so notify. Notwithstanding the foregoing, an Indemnified Party shall have the right (following notice to the Indemnifying Party) to retain its own counsel (which counsel is reasonably acceptable to the Indemnifying Party) and control its defense of any such Third Party Claim, with the reasonable fees and expenses to be paid by the Indemnifying Party if the Indemnifying Party shall have failed promptly to employ counsel to defend such proceeding or otherwise failed to prosecute such defense with reasonable diligence. The Indemnified Party and Indemnifying Party will enter into a joint representation agreement with counsel reasonably acceptable to both parties, specifying that the Indemnifying Party shall at all times control the defense, unless the Indemnified Party agrees otherwise, in writing, that the Indemnifying Party shall have sole authority to settle or compromise the Third Party Claim, and the reasonable fees and expenses for such counsel to be paid by the Indemnifying Party; provided, however, in the event it is not legally possible for the same counsel to represent both the Indemnified Party and the Indemnifying Party because of conflicts of interest (e.g., the conflict of interest is non-waivable), then the Indemnifying Party shall pay the reasonable fees and expenses of both counsels to the extent such fees and expenses are directly related to defending the claims for which the Indemnifying Party is responsible. The Indemnified Party shall have the right to employ separate
3
counsel at its own cost and expense in the proceeding and, in such event, shall and shall have the right to, consult with the Indemnifying Party regarding the defense thereof; provided that, except as otherwise provided herein, the Indemnifying Party shall at all times control such defense of such proceeding. The Indemnifying Party may not settle or compromise the claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the settlement or compromise includes a full release of all of the Indemnified Parties. The Indemnifying Party shall pay to or for the benefit of the Indemnified Parties in cash the amount for which such Indemnified Parties are entitled to be indemnified within thirty (30) days after the settlement or compromise of such Third Party Claim or the final non-appealable judgment of a court of competent jurisdiction. An Indemnifying Party shall not be liable for any settlement or compromise of any Third Party Claim without its consent.
Section 1.5 The following new Section 8.8 shall hereby be added to the Sublicense Agreement:
8.8 Sublicensee Customers . If a customer of Sublicensee is contacted *, Sublicensee shall give Licensor and Sublicensor prompt written notice that its customer has been so contacted. Licensor shall promptly discuss with the Sublicensees customer the nature and purpose of the claim or contact and negotiate with Sublicensees customer, in good faith, the terms under which Licensor would undertake the defense and indemnity of the matter on Sublicensees customers behalf, including, but not limited to, terms similar to those set forth in Sections 8.2 and 8.7 of this Agreement.
Section 1.6 Amendment to Exhibit B . The description of the Existing NM Facility on Exhibit B shall be deleted in its entirety and replaced with the description of the New NM Facility, attached as Exhibit A hereto.
Section 1.7 A new Schedule 5.4 shall hereby be added to the Technology Sublicense, attached as Schedule 1.7 hereto.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 Effectiveness and Ratification . All of the provisions of this Amendment shall be effective as of the Effective Date. Except as specifically provided for in this Amendment, the terms of the Sublicense Agreement shall remain in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Sublicense Agreement, the terms of this Amendment shall prevail and govern.
Section 2.2 Amendment; Entire Agreement . This document contains the entire agreement between the parties hereto with respect to the subject matter hereof. There are no oral agreements between the parties hereto with respect to the subject matter hereof.
Section 2.3 Governing Law . This Amendment shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law principles of such state.
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Section 2.4 Counterparts . This Amendment may be signed in two counterparts, each of which taken together shall constitute one instrument, and each of the parties hereto may execute this Amendment by signing either such counterpart. This Amendment shall become effective upon execution by both of the parties hereto. A facsimile copy will be deemed an original.
[Signature page follows.]
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IN WITNESS WHEREOF , the Parties have caused this Amendment to be executed and delivered as of the Effective Date.
ADA-ES, INC. | ||
By: | /s/ Mark H. McKinnies | |
Name: | Mark H. McKinnies | |
Title: | Senior Vice President and CFO |
CLEAN COAL SOLUTIONS, LLC |
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By: | /s/ Brian Humphrey | |
Name: | Brian Humphrey | |
Title: | Manger |
GS RC INVESTMENTS LLC |
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By: | /s/ Michael Feldman | |
Name: | Michael Feldman | |
Title: | Authorized Signatory |
Signature Page to
Amendment to Technology Sublicense Agreement
EXHIBIT A
Filed as Exhibit B to Exhibit 10.41 to this Report on Form 10-K
SCHEDULE 1.7
Filed as Schedule 3.1(d) to Exhibit 10.41 to this Report on Form 10-K
Schedule 1.7
Exhibit 10.44
LIMITED GUARANTY
LIMITED GUARANTY (this Guaranty ) dated as of November 21, 2011 by ADA-ES, Inc., a Colorado corporation (the Guarantor ), in favor of GS RC INVESTMENTS LLC, a Delaware limited liability company (the Guaranteed Party ). The Guarantor and the Guaranteed Party may hereinafter be referred to individually as a Party or collectively as the Parties .
PRELIMINARY STATEMENTS
A. Clean Coal Solutions, LLC, a Colorado limited liability company ( CCS ), desires to have the Guaranteed Party enter into certain Transaction Documents (as defined below) with AEC-NM, LLC, a Colorado limited liability company ( AEC-NM ), Clean Coal Solutions Services, LLC, a Colorado limited liability company ( CCSS ) and CCS (CCS, together with AEC-NM and CCSS, the Companies and each, individually, a Company ).
B. The Guaranteed Party is willing to enter into the Transaction Documents with the Companies only on the condition, among others, that certain of the Companies obligations under such Transaction Documents are guaranteed by the Guarantor, on the terms set forth in this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the Guaranteed Party to enter into the Transaction Documents, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows:
1. Definitions .
1.1 Defined Terms . As used in this Guaranty, the capitalized terms defined in the preamble, preliminary statements and other sections of this Guaranty shall have the respective meanings specified therein; capitalized terms not defined in this Guaranty shall have the meanings given to such terms in the Exchange Agreement, dated as of the date hereof, among CCS, AEC-NM, and the Guaranteed Party (the Exchange Agreement ), and the following terms shall have the following meanings:
Obligations shall mean, without duplication, (i) the performance by the Companies of their respective obligations as set forth in the Transaction Documents and (ii) the payment of all payment obligations of the Companies to the Guaranteed Party, whether direct or indirect, absolute or contingent, due or to become due, which may arise under or in connection with the Transaction Documents (including, without limitation, interest or other charges as would have accrued on any portion of the payment obligations but for the commencement of any bankruptcy or insolvency proceedings.
Transaction Documents shall mean (i) the Equipment Lease, dated as of the date hereof by and between AEC-NM and the Guaranteed Party, (ii) the Operation and Maintenance Agreement (New Madrid), dated as of June 29, 2010, by and between the Guaranteed Party and CCSS, as amended by that certain Omnibus Amendment #2 to Transaction Documents, dated as of the date hereof, (iii) the Exchange Agreement, (iv) the Chemical Additives Supply Agency Agreement (New Madrid), dated as of June 29, 2010, by and between CCSS and the Guaranteed Party, as amended by that certain Omnibus Amendment #2 to Transaction Documents, dated as of the date hereof, (v) the Technology Sublicense Agreement, dated as of June 29, 2010, among the ADA-ES, Inc., a Colorado corporation, the Guaranteed Party, and CCS, as amended by that certain Omnibus Amendment, dated, August 10, 2010 and as further amended by that certain Amendment to Technology Sublicense, dated as of the date hereof and (vi) Agreement to Lease, dated as of June 29, 2010, among CCS, AEC-NM, AEC-TH, LLC and the Guaranteed Party as amended by that certain Omnibus Amendment, dated, August 10, 2010.
1.2 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be modified by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument of other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with the provisions hereof and thereof; (b) any reference herein to any person shall be construed to include such persons successors and permitted assigns; (c) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Guaranty in its entirety and not to any particular provision of this Guaranty; and (d) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Article and section headings used herein are for convenience of reference only, are not part of this Guaranty and shall not affect the construction of, or be taken into consideration in interpreting, this Guaranty.
2. Guaranty .
2.1 Irrevocable Guaranty .
(a) The Guarantor hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, to the Guaranteed Party and its successors, permitted indorsees, permitted transferees and permitted assigns that, upon written demand of payment made by the Guaranteed Party to the Guarantor, (i) all payment Obligations will be promptly paid in full, in United States dollars, when due in accordance with the provisions of the Transaction Documents and (ii) all performance Obligations will be promptly and fully performed when due or required in accordance with the terms of the Transaction Documents.
(b) If legal action is instituted, the Guarantor agrees to reimburse the Guaranteed Party on written demand for all reasonable attorneys fees and disbursements and all other reasonable costs and expenses incurred by the Guaranteed Party in successfully enforcing its rights under this Guaranty. Notwithstanding the foregoing, the Guarantor shall have no obligation to pay any such costs or expenses if, in any action or proceeding brought by the Guaranteed Party giving rise to a demand for payment of such costs or expenses, it is finally adjudicated by a court of competent jurisdiction that the Guarantor is not liable to make payment or obligated to perform any further obligations under Section 2.1(a) of this Guaranty to the Guaranteed Party hereunder.
(c) Each payment under this Guaranty shall be made in United States dollars.
Notwithstanding anything in this Section 2.1 , the Guarantors liability to guarantee a Companys Obligations shall not exceed the liability of such Company with respect to its Obligations under the terms of the Transaction Documents; provided, that, notwithstanding the foregoing provisions of this paragraph, or any other provisions hereof to the contrary, (a) the Guarantors liability for the Obligations shall not be reduced by the amount of any costs and expenses recovered or recoverable by the Guaranteed Party under Section 2.1(b) , and (b) if a Companys liability in respect of its Obligations is reduced due to any defense described in clauses (1) through (3) of the final paragraph of Section 2.3 hereof, the amount of such reduction shall not reduce the Guarantors liability for such Companys Obligations hereunder.
2.2 No Subrogation . The Guarantor will not exercise any rights that it may acquire by way of subrogation or a right of contribution from the Company under this Guaranty, by any payment made hereunder or otherwise, until all of the Obligations shall have been indefeasibly paid in full. If any
amount shall be paid to the Guarantor on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Party to whom such Obligations are payable and shall forthwith be paid to the Guaranteed Party to be credited and applied to such Obligations, whether matured or unmatured, in accordance with the terms of the applicable Transaction Document. If (i) the Guarantor shall make payment to the Guaranteed Party of all or any part of the Obligations and (ii) all of the Obligations shall be indefeasibly paid in full, the Guaranteed Party will, at the Guarantors request and expense, execute and deliver to the Guarantor appropriate documents in form and substance reasonably satisfactory to the Guaranteed Party, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment by the Guarantor.
2.3 No Effect on Guaranty . The obligations of the Guarantor under this Guaranty shall not be altered, limited, impaired or otherwise affected by:
(a) any rescission of any demand for payment or performance of any of the Obligations or any failure by the Guaranteed Party to make any such demand on a Company or any other guarantor or to collect any payments from a Company or any other guarantor or any release of a Company or any other guarantor;
(b) any renewal, extension, modification, amendment, acceleration, compromise, waiver, indulgence, rescission, discharge, surrender or release, in whole or in part, or any assignment or transfer, of any of the Transaction Documents or the Obligations or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Obligations, or the liability of any party to any of the foregoing or for any part thereof;
(c) any act or omission of the Guaranteed Party relating in any way to the Obligations or to a Company, including any failure to bring an action against any party liable on the Obligations, or any party liable on any other guaranty of the Obligations;
(d) any proceeding, voluntary or involuntary, involving bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of a Company or any other guarantor or any defense which a Company or any other guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding; and
(e) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or that may or might otherwise operate as a discharge of the Guarantor as a matter of law or equity, other than (1) the indefeasible payment in full in United States dollars of all the Obligations, and (2) as set forth in the next sentence.
Notwithstanding the foregoing, the Guarantor shall be entitled to assert any defense which a Company may have under the Transaction Documents to performance of any of its respective Obligations, other than defenses based upon (1) lack of authority, capacity, legal right or power of such Company to enter into and/or perform its obligations under the Transaction Documents, (2) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or similar proceeding with respect to such Company or (3) the nonexistence, invalid formation, dissolution, merger or termination of such Company.
2.4 Continuing Guaranty; Termination . This Guaranty shall be construed as a continuing, absolute and unconditional guaranty of payment and performance when due, and not of collection only, and the obligations of the Guarantor hereunder shall not be conditioned or contingent upon the pursuit by the Guaranteed Party at any time of any right or remedy against a Company or against any other person which may be or become liable in respect of all or any part of the Obligations.
2.5 Reinstatement of Guaranty . This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is avoided, rescinded or must otherwise be restored or returned by the Guaranteed Party to a Company or its representative or to any other guarantor for any reason including as a result of any insolvency, bankruptcy or reorganization proceeding with respect to a Company or the Guarantor, all as though such payment had not been made.
2.6 No Consequential Damages . In no event shall Guarantor be subject to any consequential, exemplary, equitable, loss of profits, punitive, tort or other similar damages.
3. Representations and Warranties of the Guarantor . The Guarantor hereby represents and warrants to the Guaranteed Party, as follows:
(a) The Guarantor is a corporation, validly existing and in good standing under laws of the State of Colorado.
(b) The Guarantor has full power, authority and legal right to execute and deliver this Guaranty and to perform its obligations hereunder.
(c) The execution, delivery and performance of this Guaranty have been duly authorized by all necessary corporate action on the part of the Guarantor.
(d) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors rights generally or by general principles of equity.
(e) All consents, authorizations, approvals and clearances (including, without limitation, any necessary exchange control approval) and notifications, reports and registrations requisite for its due execution, delivery and performance of this Guaranty have been obtained from or, as the case may be, filed with the relevant Governmental Authorities having jurisdiction and remain in full force and effect and all conditions thereof have been duly complied with and no other action by, and no notice to or filing with, any Governmental Authority having jurisdiction is required for such execution, delivery or performance.
(f) The execution and delivery by the Guarantor of this Guaranty do not and the performance by Guarantor of its obligations hereunder will not, (i) violate or require any filing or notice under any Law applicable to Guarantor (other than the filing of this Guaranty with the United States Securities and Exchange Commission under the federal securities laws applicable to U.S. public companies), (ii) conflict with or cause a breach of any provision in the certificate of incorporation, by-laws or other organizational document of Guarantor, or (iii) cause a breach of, constitute a default under, cause the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any authorization, consent, waiver or approval under any contract, license, instrument, decree, judgment or other arrangement to which Guarantor is a party or under which it is bound or to which any of its assets are subject (or result in the imposition of a Lien, other than Permitted Liens, upon any such assets) except (in the case of this clause (iii)) for any that would not reasonably be expected to have a Material Adverse Effect.
4. Election of Remedies . Each and every right, power and remedy herein given to the Guaranteed Party, or otherwise existing, shall be cumulative and not exclusive, and be in addition to all other rights, powers and remedies now or hereafter granted or otherwise existing. Each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised, from time to time and as often and in such order as may be deemed expedient by the Guaranteed Party.
5. Effect of Delay or Omission to Pursue Remedy . No waiver by the Guaranteed Party of any right, power or remedy, or delay or omission by the Guaranteed Party in the exercise of any right, power or remedy which they may have shall impair any such right, power or remedy or operate as a waiver as to any other right, power or remedy then or thereafter existing. Any waiver given by the Guaranteed Party of any right, power or remedy in any one instance shall only be effective in that specific instance and only for the purpose for which given, and will not be construed as a waiver of any right, power or remedy on any future occasion.
6. Guarantors Waivers . The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted, incurred, renewed, extended, amended or waived in reliance upon this Guaranty, and all dealings between the Guarantor and the Guaranteed Party shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives presentment, demand (other than demand delivered pursuant to Section 2.1(a) hereof), notice, and protest of all instruments included in or evidencing any of the Obligations and all other demands (other than any demand delivered pursuant to Section 2.1(a) hereof) and notices in connection with the delivery, acceptance, performance, default or enforcement of any such instrument or this Guaranty.
7. Amendment . This Guaranty may not be modified, amended, terminated or revoked, in whole or in part, except by an agreement in writing signed by the Guaranteed Party and the Guarantor. No waiver of any term, covenant or provision of this Guaranty, or consent given hereunder, shall be effective unless given in writing by the Guaranteed Party.
8. Notices . All notices and other communications under this Agreement shall be in writing and delivered (a) personally; (b) by registered or certified mail with postage prepaid, and return receipt requested; (c) by recognized overnight courier service with charges prepaid; or (d) by confirmed facsimile transmission, directed to the intended recipient as follows:
(a) If to the Guarantor:
ADA-ES, Inc.
8100 SouthPark Way, Unit B
Littleton, CO 80120
Attention: Mark H. McKinnies, Chief Financial Officer
Fax: (303) 734-0330
Email: MarkM@ADAES.com
(b) If to the Guaranteed Party:
GS RC INVESTMENTS LLC
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Attention: Michael Feldman
Fax: (212) 428-3868
Either Guarantor or Guaranteed Party may change the information to which notices and other communications hereunder can be delivered by giving the other Party notice in the manner herein set forth. A notice or other communication shall be deemed delivered on the earlier to occur of (i) its actual receipt; (ii) the date of signature acknowledging
receipt if sent by registered or certified mail, with postage prepaid, and return receipt requested; (iii) the first Business Day following its deposit with a recognized overnight courier service; or (iv) the Business Day it is sent by confirmed facsimile transmission (if sent before 5:00 p.m. local time of the receiving Party) or the next Business Day (if sent after 5:00 p.m. of such local time).
9. Successors and Assigns . This Guaranty shall be binding upon and shall inure to the benefit of the Guarantor and the Guaranteed Party and their respective successors and permitted assigns. The Guaranteed Party may assign this Guaranty without the prior written consent of the Guarantor to the extent the Guaranteed Party has assigned its interest in the payment or performance of any of the Obligations due under a Transaction Document pursuant to the terms of such Transaction Document. Any other assignment of this Guaranty by the Guaranteed Party without the prior written consent of the Guarantor, shall be void ab initio. The Guarantor may not assign this Guaranty without the prior written consent of the Guaranteed Party. Any assignment by the Guarantor without the prior written consent of the Guaranteed Party shall be void ab initio and shall have no effect on the Guaranteed Partys rights against the Guarantor hereunder.
10. Governing Law; Venue and Jurisdiction; Waiver of Jury Trial . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
11. Severability . If any term or other provision of this Agreement or of any of the instruments evidencing part or all of the Obligations is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Guarantor and Guaranteed Party shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Guarantor and Guaranteed Party as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
12. Superseding Guaranty . The Guarantor and the Guaranteed Party acknowledge the termination of that certain Limited Guaranty, dated as of June 29, 2010, issued by Guarantor in favor of the Guaranteed Party (the Prior Guaranty ) and the Guarantor and the Guaranteed Party agree that this Guaranty supersedes the Prior Guaranty in all respects.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered on its behalf as of the date first written above.
ADA-ES, INC. | ||
By: | /s/ Mark H. McKinnies | |
Name: Mark H. McKinnies | ||
Title: Senior Vice President and CFO |
Exhibit 10.45
EXECUTION VERSION
Settlement Agreement Regarding
ADA-ES Indemnity Obligations
This Settlement Agreement Regarding ADA-ES Indemnity Obligations (this Agreement ) is dated as of November 28, 2011 and is made by and among the Parties (as defined below). Unless otherwise noted, capitalized terms used, but not defined herein have the meanings ascribed to such terms in the Amended and Restated Limited Liability Company Agreement of ACS (the ACS LLC Agreement ).
Parties |
ADA : | |||
ADA-ES, Inc., a Colorado Corporation and ADA Environmental Solutions, LLC, a Colorado limited liability company (collectively, and including their respective successors and assigns, ADA ). |
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ECP Defendants : | ||||
Energy Capital Partners, LLC, a Delaware limited liability company; |
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Energy Capital Partners I, LP, a Delaware limited partnership; |
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Energy Capital Partners I-A, LP, a Delaware limited partnership; |
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Energy Capital Partners I-B IP, LP, a Delaware limited partnership; and |
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Energy Capital Partners I (Crowfoot IP), LP, a Delaware limited partnership (collectively, and including their respective successors and assigns, the ECP Defendants ). |
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AC Venture Defendants: | ||||
ADA Carbon Solutions, LLC (f/k/a Crowfoot Development, LLC), a Delaware limited liability company ( ACS ); |
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ADA Carbon Solutions (Red River), LLC (f/k/a Red River Environmental Products, LLC), a Delaware limited liability company ( RREP ); |
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Morton Environmental Products, LLC, a Delaware limited liability company; |
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Underwood Environmental Products, LLC, a Delaware limited liability company; |
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Crowfoot Supply Company, LLC, a Delaware limited liability company ( Crowfoot Supply ); and |
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Five Forks Mining, LLC, a Delaware limited liability company (collectively, and including their respective successors and assigns, the AC Venture Defendants ). |
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ADA, the ECP Defendants and the AC Venture Defendants may be individually referred to herein as a Party and collectively referred to herein as the Parties . |
Representations and Warranties |
Each Party represents and warrants to the other Parties that as of the date of this Agreement: | |
it has the power and authority to enter into this Agreement and to perform its obligations hereunder, and that the persons executing this Agreement on behalf of the Party are authorized to do so;
the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary actions of the Party;
this Agreement has been duly and validly executed and delivered by it and is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy laws and other laws affecting creditors rights generally, and general principles of equity that restrict the availability of equitable remedies; and
the execution and delivery of this Agreement and the performance by the Party of any of its obligations hereunder do not and will not:
Conflict with or result in a violation or breach of any of the terms, conditions or provisions of the incorporation or organization documents of the Party;
Conflict with or result in a violation or breach of any term or provision of any statute, decree, order, rule, or regulation of any court or governmental agency or body applicable to the Party or any of its assets and properties; and
(1) Conflict with or result in a material violation or breach of, (2) constitute (with or without notice or lapse of time or both) a material default or result in the imposition of any fees or penalties under, (3) give rise to any right of termination, amendment, acceleration or cancellation of, (4) require the Party to obtain any material consent, approval or action of, make any filing (other than ADAs obligation to file information with the Securities and Exchange Commission regarding this agreement) with or give any notice to any Person as a result or under the terms of, or (5) result in the creation or imposition of any material Lien upon the Party or any of its assets or properties under any contract, lease, mortgage, instrument or other document or agreement or authorization of a governmental agency or body to which the Party is a party or by which any of the Partys assets and properties are bound. |
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Indemnity Obligations |
Disputes have arisen between ADA, on the one hand, and the ECP Defendants and the AC Venture Defendants, on the other hand, regarding ADAs obligations to indemnify the ECP Defendants and the AC Venture Defendants against Losses (as defined in the Joint Development Agreement ( JDA ))resulting from, arising out of or relating to the following actions (collectively, and together with all Actions and Proceedings (as defined in the JDA) related thereto, the Norit Litigation ):
Texas Action : Norit Americas, Inc. ( Norit ) v. ADA-ES, Inc., No. 08-0673 (71st Dist. Ct., Harris County, Tex.) (the Texas Action );
Arbitration : American Arbitration Association arbitration Case No. 30-192-Y-00718-09 (the Arbitration Action ); and
New Jersey Action : Norit Americas Inc. v. Energy Capital Partners I, LP, No. ESX-C-304-09 (N.J. Super. Ct. Ch. Div.) (the New Jersey Action ).
In addition to the indemnification obligations of ADA in the section titled ADA Indemnification Obligations for Royalty Payments, ADA acknowledges and agrees that it shall indemnify the ECP Defendants and the AC Venture Defendants in respect of, and hold each of them harmless from and against any and all Losses (as defined in the JDA) suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to (1) any breach by ADA of the ADA/Norit Settlement Agreement, the Final Award (except with respect to breaches by ADA of its obligations pursuant to the Final Award to pay Norit any and all amount due with respect to the New Carbon Facilities) and the Other Awards and (2) this Agreement (collectively, the ADA Indemnity Obligations ).
ADA/Norit Settlement Agreement means that certain Settlement Agreement dated as of August 29, 2011 by and among ADA and Norit.
ACS/Norit Settlement Agreement means that certain Settlement Agreement dated as of August 29, 2011 by and among the AC Venture Defendants, the ECP Defendants and Norit (collectively with the ADA/Norit Settlement Agreement, the Settlement Agreements ).
Final Award means that certain Stipulated Partial Final Award regarding the Corporate Parties (as defined therein) dated October 18, 2011 entered in the Arbitration Action.
Other Awards means that certain Stipulated Partial Final Damages Award dated October 18, 2011 entered in the Arbitration Action and the certain Final Damages Award Against John Rectenwald and Stephen D. Young dated October 17, 2011 entered in the Arbitration Action. |
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Amount of Incurred Legal Fees and Expenses | As of the date hereof (the Legal Fee Settlement Date ) the ECP Defendants and the AC Venture Defendants have incurred an aggregate of approximately $33.1 million in legal fees, costs and expenses that the ECP Defendants and the AC Venture Defendants contend resulted from, arose out of or related to the Norit Litigation. These legal fees, costs and expenses, together with any other legal fees, costs and expenses incurred by the ECP Defendants and the AC Venture Defendants on or before the Legal Fee Settlement Date that resulted from, arose out of or related to the Norit Litigation, are collectively referred to herein as the Incurred Legal Fees . | |
Agreement Concerning Amount to be Paid for Incurred Legal Fees and Sufficiency of Other Consideration |
As a compromise and in order to resolve the dispute among the Parties related to ADAs obligation to indemnify the ECP Defendants and the AC Venture Defendants for the Incurred Legal Fees the ECP Defendants and the AC Venture Defendants agree to accept, and ADA agrees that it is liable for and shall pay, as full and final settlement, the amount of $29,163,273 provided that such amount is paid as provided in the section titled Payment of Settlement Fee Amount below (the Settlement Fee Amount ).
In consideration of the promises and mutual agreements contained in this Agreement, and for other good and valuable consideration (including the Settlement Fee Amount), the receipt and sufficiency of which is hereby acknowledged, the Parties agree to be bound by the other provisions of this Agreement. |
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ADA Capital Contributions to ACS |
As of the date hereof, ADA has made, in the aggregate, Capital Contributions to ACS in the amount of $25,563,273 (the Contribution Amount ). | |
Payment of Settlement Fee Amount |
ADA shall pay or provide the Settlement Fee Amount as follows:
Cash Payment to ACS : ADA shall pay in the aggregate $2.0 million in immediately available funds to ACS on the business day immediately following the date of this Agreement to an account specified in writing by ACS (the Cash Payment ) in partial satisfaction of the Incurred Legal Fees.
Periodic Cash Payments : In addition, on the business day immediately following the date of this Agreement and then again on the first business day of each month for an aggregate total of sixteen (16) installments, ADA shall pay to ACS to an account specified in writing by ACS $100,000 per installment in partial satisfaction of the Incurred Legal Fees, one-third of which shall be deemed to be owed to each of ACS, RREP and Crowfoot Supply.
Relinquishment of Equity Interests : Effective upon the execution of this Agreement by the Parties, ADA shall relinquish all of its Equity Interests in ACS (which shall collectively be valued at the Contribution Amount) to ACS in partial satisfaction of the Incurred Legal Fees. ADA shall take all actions and to do, or cause to be done, all things necessary, proper or advisable to effect such relinquishment. |
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pursuant to the paragraph below titled Good Faith Forecast of Periodic Royalty Amount during the pendency of the Norit Matters shall include an additional amount equal to the difference between (1) the amount of Royalty Payments that would be made pursuant to the Final Award during the period provided for in such paragraph and (2) the amount of Royalty Payments that would be required to be made during the period provided for in such paragraph if Norit is granted the relief it is requesting in such Norit Matters or if such Norit Matters are otherwise decided in Norits favor, and such amount shall be added as a separate item in the Royalty Notice. In no event shall the subsequent Litigation Postings include amounts duplicative with the initial Litigation Posting provided for in the immediately preceding paragraph. Any amounts included in the Royalty Notice on account of the Norit Matters shall be clearly set out in the Royalty Notice as amounts to secure a disputed liability and such amounts shall be added to the Periodic LC (the terms of which are set forth below in section titled Prepayment of Periodic Royalty Amounts).
If within five business after the Notification Date, (1) ADA fails to reply regarding whether it consents to the proposed settlement or (2) ADA notifies the ECP Defendants and the AC Venture Defendants that it does not consent to the settlement, but fails to make the Litigation Posting within five business days after the Notification Date, then ADA shall automatically be deemed to have consented to the settlement.
If (1) within five business day after the Notification Date ADA notifies the ECP Defendants and the AC Venture Defendants that it does not consent to the settlement and (2) within five business days after the Notification Date ADA makes the Litigation Posting, then the ECP Defendants and the AC Venture Defendants shall, within five business days of the later of such notification or posting, notify ADA if (A) they elect to continue to control the Norit Matters to which the settlement relates on their behalf (and not on behalf of ADA), in which case the ECP Defendants and/or the AC Venture Defendants shall continue to pay all the legal fees, costs and expenses they incur in connection with such Norit Matters or (B) they elect to allow ADA to assume control of such Norit Matters on behalf of the ECP Defendants and/or the AC Venture Defendants with counsel of ADAs choosing, in which case ADA shall pay all of the legal fees, costs and expenses ADA incurs on behalf of the ECP Defendants and the AC Venture Defendants in connection with such Norit Matters.
To the extent that the ECP Defendants and/or the AC Venture Defendants elect to continue to control any such Norit Matters on |
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their own behalf after ADA has withheld consent to a settlement, the ECP Defendants and/or the AC Venture Defendants shall have sole authority over the conduct of their prosecution or defense of such Norit Matters on their own behalf, and ADA shall be from that point solely responsible for its prosecution or defense of such Norit Matters on its own behalf and ADA shall pay all the legal fees, costs and expenses it incurs in connection with such Norit Matters. All parties shall be free in such case to settle such Norit Matters on its own behalf without prejudice to the other parties.
To the extent that the ECP Defendants or the AC Venture Defendants do not elect to exercise their Control Option at the initiation of a particular Norit Matter, ADA may, but shall not be obligated to, elect to control such Norit Matter, which control shall include full authority to settle such Norit Matter. Any Party not controlling such Norit Matter may at any time retain separate counsel to represent it at its sole cost and expense. The obligation of ADA to indemnify the ECP Defendants and the AC Venture Defendants pursuant to the section titled ADA Indemnification Obligations for Royalty Payments shall not be altered in any manner as a result of any such Norit Matter (1) including if no Party elects to control or otherwise defend such Norit Matter (in which case such indemnification obligations shall include any default judgment or similar award entered in such Norit Matter), (2) regardless of which Party, if any, controls any such Norit Matter and (3) regardless of the outcome, including, without limitation, the terms of any settlement (including, without limitation, settlements that ADA is deemed to have automatically consented to pursuant to the provisions of this section) of any such Norit Matter. |
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Losses Arising from Royalty Payments |
ADA Indemnification Obligations for Royalty Payments : ADA agrees that, notwithstanding the joint and several obligations of ADA, ACS and RREP set forth in Sections 2 (Scope of Royalty), 3 (Royalty Terms and Rates), 4 (Payment), 6.d (Audit Costs and Variances) and 7 (Late Payments) in the Final Award, as between ADA on the one hand, and ACS and RREP on the other hand, ADA is obligated to (1) pay Norit any and all amounts due pursuant to such sections of the Final Award with respect to the existing activated carbon manufacturing facility located in Coushatta, Louisiana consisting of four contiguous multi-hearth furnaces and the related equipment (the Red River Plant ) and the existing Natchitoches facility (together with the Red River Plant, the Existing Carbon Facilitie s) (the Royalty Payments ) and (2) indemnify the ECP Defendants and the AC Venture Defendants against all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to ADAs failure to make the Royalty Payments, all of which shall constitute Losses (as defined in the JDA). The Parties further agree that in the event any additional carbon production facilities are constructed or operated by the AC Venture Defendants, or any Affiliates or Subsidiaries thereof, after the date of this Agreement (hereinafter New Carbon Facilities ), and |
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notwithstanding the joint and several obligations of ADA, ACS and RREP set forth in Sections 2 (Scope of Royalty), 3 (Royalty Terms and Rates), 4 (Payment), 6.d (Audit Costs and Variances) and 7 (Late Payments) in the Final Award, as between ADA on the one hand, and ACS and RREP on the other hand, ACS and RREP (1) are obligated to pay Norit any and all amounts due pursuant to such sections of the Final Award with respect to the New Carbon Facilities and (2) ADA shall have no liability for, and no indemnity obligation with respect to, any and all amounts due to Norit pursuant to such sections of the Final Award with respect to the New Carbon Facilities. | ||
Good Faith Forecast of Periodic Royalty Amounts : On the fifth business day after the end of each calendar quarter the AC Venture Defendants shall in good faith prepare an estimate (based upon projected or actual customer shipments and deliveries for then-existing contracts of the AC Venture Defendants and spot sales) of the amount of the Royalty Payments related to the quarter just ended and shall deliver written notice (each, a Royalty Notice ) to ADA setting forth in reasonable detail the amount and the basis for the forecast of the Royalty Payments (each, and as adjusted by the true up mechanism detailed below, a Periodic Royalty Amount ). On the first business day of a month during which a Royalty Payment is due to Norit, the AC Venture Defendants shall in good faith prepare a final statement of the amount of such Royalty Payment (the Final Quarterly Royalty Amount ) and shall deliver written notice to ADA setting forth in reasonable detail the basis for the Final Quarterly Royalty Amount and ADA shall pay such amount to Norit pursuant to Section 4 of the Final Award. | ||
The AC Venture Defendants shall provide to ADA the royalty reports provided to Norit pursuant to Section 5 of the Final Award substantially concurrently with when such reports are provided to Norit. The AC Venture Defendants shall also provide to ADA and ADA shall provide to the ECP Defendants and the AC Venture Defendants all documents and information they exchange with Norit concerning or relating in any manner to the Norit Litigation, including, but not limited to, the documents and information exchanged relating to Norits exercise of its audit rights under the Final Award. Such documents and information shall be provided substantially concurrently with when such documents and information are exchanged with Norit. Information that would otherwise be provided directly to ADA, the ECP Defendants and the AC Venture Defendants, as applicable, pursuant to this paragraph may be designated as highly confidential by ADA, the AC Venture Defendants and/or the ECP Defendants, as applicable, and such highly confidential information shall be disclosed in the case of ADA only to the Auditing Accountant and outside counsel for ADA and in the case of the ECP Defendants and the AC Venture Defendants only to their outside counsel and any outside audit firm retained by them. The Auditing Accountant, such outside audit firm and such outside counsel shall agree not to provide such information |
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to ADA, the ECP Defendants and the AC Venture Defendants, as applicable, their respective Subsidiaries and other Affiliates and their respective directors, officers, employees, servants, agents, trustees, insurers, co-insurers, reinsurers, and shareholders. (i.e., attorneys eyes only), except as such disclosure may be required by applicable law, in which case ADA, the ECP Defendants and the AC Venture Defendants, as applicable, shall inform the other parties of the disclosure. | ||
If requested by ADA, the AC Venture Defendants shall meet and confer with ADA, the Auditing Accountant and/or outside counsel, as applicable, regarding the method and approach used by the AC Venture Defendants to calculate the Royalty Payments in the statements and reports prepared in accordance with the preceding two paragraphs. If ADA disagrees with any such method or approach after meeting and conferring with the AC Venture Defendants, ADA shall have the option, but not the obligation, to raise, at its sole cost and expense, its objection to such calculation with any arbitration panel empowered in the Arbitration Action to enforce the Final Award, and all Parties shall be bound by any final determination of the amount of the Royalty Payments due pursuant to the procedures set forth in the Final Award or as otherwise determined by any panel in the Arbitration Action. Nothing in this paragraph shall relieve ADA of its obligations pursuant to any provision of this Agreement, including, without limitation, the obligation to fund the Periodic LC with the Periodic Royalty Amount as detailed on the Royalty Notice delivered by the AC Venture Defendants or to pay the Final Quarterly Royalty Amount as determined by the AC Venture Defendants. | ||
Prepayment of Periodic Royalty Amounts : Within five(5) business days after receipt of a Royalty Notice, ADA shall prepay the Periodic Royalty Amount and any Litigation Posting by delivering (or revising an outstanding Periodic LC amount) to the AC Venture Defendants an irrevocable standby letter of credit (the Periodic LC ) containing the following terms:
Stated Amount : Not less than the Periodic Royalty Amount (including the amount of all Litigation Postings).
Beneficiaries : The AC Venture Defendants obligated to make Royalty Payments, and, in the event of any Litigation Posting, the ECP Defendants and the AC Venture Defendants that are parties to the particular Norit Matters for which a Litigation Posting was made.
Issuing Institution : An Approved Institution (as herein defined).
Drawing : The beneficiaries may draw upon the letter of credit 8 business days prior to the due date of any Royalty Payment not previously paid by |
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ADA and may draw the full amount of such letter of credit at any time between the 29th day prior to the expiration of the letter of credit and the date of the expiration of the letter of credit if a new letter of credit has not been provided with terms no less favorable than the existing letter of credit and, in the event of any Litigation Posting, the beneficiaries may draw upon the letter of credit upon the failure by ADA to pay any amounts due pursuant to this Agreement related to the particular Norit Matters for which the Litigation Posting was made. |
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Term : The Periodic LC delivered to the AC Venture Defendants as prepayment of the Periodic Royalty Amount must be Continually in Place until the later of (1) at least 120 days after the date the corresponding Royalty Payment is due to Norit and (2) at least 30 days after the performance of all actions or obligations of ADA, the AC Venture Defendants and the ECP Defendants related to the particular Norit Matters for which the Litigation Posting was made. Amounts in the Periodic LC attributable to the Periodic Royalty Amount shall remain a part of the Periodic LC until 120 days after the date the corresponding Royalty Payment is due to Norit and amounts in the Periodic LC attributable to a Litigation Posting shall remain part of the Periodic LC until 30 days after the performance of all actions or obligations of ADA, the AC Venture Defendants and the ECP Defendants related to the particular Norit Matters for which the Litigation Posting was made.
Prepayment : ADA may pay to the AC Venture Defendants and/or Norit any Final Quarterly Royalty Amount at least 10 business days prior to its due date in lieu of having the letter of credit drawn down, in which case the letter of credit will roll over for subsequent Periodic Royalty Amounts. |
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The Security LC and Periodic LC (including Litigation Postings) may, at ADAs discretion, be incorporated into a single letter of credit with a single bank provided that all conditions of both the Security LC and the Periodic LC are complied with and the necessary sums are aggregated in the stated amount. | ||
Any letter of credit provided by ADA pursuant to this Agreement may expire at any time, but will be deemed to be Continually in Place only if such letter of credit is renewed or replaced on terms no less favorable than the existing letter of credit at least thirty days prior to the expiration date of the existing letter of credit.
Approved Institution means a (1) financial institution of national |
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reputation and reasonably satisfactory to the AC Venture Defendants or (2) the Bank of the West in Denver, Colorado; provided, that if the financial institution issuing the letter of credit(s) suffers an Adverse Rating Event, then within 10 business days of such Adverse Rating Event, ADA shall cause a new Approved Institution selected in accordance with clause (1) to issue the applicable letter of credit(s). | ||
Adverse Rating Event means that the first to occur of (1) a downgrade in the rating accorded to the financial institution or the financial institutions debt securities or long-term debt by any nationally recognized statistical rating organization(as defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2) under the Securities Act of 1933, as amended) or (2) any such organization publicly announces that it has under surveillance or review, with possible negative implications, its rating of the financial institution or the financial institutions debt securities or long-term debt. | ||
Initial Royalty Payment and Good Faith Estimate : Before the date of this Agreement ADA paid Norit for all royalties past due pursuant to Section 4 of the Final Award, which is through June 30, 2011. The parties have agreed upon a written good faith forecast of the Periodic Royalty Amount related to the third quarter of 2011, which shall be deemed the initial Periodic Royalty Amount. No later than five business days after the execution of this Agreement, ADA shall cause the stated amount of the Periodic LC to be no less than the initial Periodic Royalty Amount. | ||
Audit Election : Upon reasonable prior notice, but in any event no more than once in any calendar year, until December 31, 2019, ADA may elect, at its sole costs and expense, to have a nationally or regionally recognized U.S. independent public accountant reasonably satisfactory to the ECP Defendants and the AC Venture Defendants (the Auditing Accountant ) conduct an audit to verify that the payments and reports made by ADA or the AC Venture Defendants pursuant to the Final Award are accurate, complete, and in compliance with the terms and conditions of the Final Award, and that, when applicable, royalties have been paid on Gross Revenues (as defined in the Final Award) for activated carbon in accordance with the terms of the Final Award (in all cases, solely to determine the accuracy of the amount of such payments related to the Existing Carbon Facilities and the division of such payments between the Existing Carbon Facilities and the New Carbon Facilities). Such examination shall occur at a location or locations on the AC Venture Defendants premises reasonably designated by the AC Venture Defendants and shall not unreasonably interfere with the normal business operations of the AC Venture Defendants. The AC Venture Defendants shall provide the Auditing Accountant with access to all relevant information reasonably requested to conduct the audit. Information received by the Auditing Accountant pursuant to this paragraph may be designated as highly |
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confidential by the AC Venture Defendants and/or the ECP Defendants and such highly confidential information shall be disclosed only to the Auditing Accountant and outside counsel for ADA and the Auditing Accountant and outside counsel shall agree not to provide such information to ADA, its Subsidiaries and other Affiliates and their respective directors, officers, employees, servants, agents, trustees, insurers, co-insurers, reinsurers, and shareholders., i.e., attorneys eyes only. | ||
Auditing Accountant Selection : To maintain the independence of the audit and the confidentiality of the AC Venture Defendants information subject to such audit, the Auditing Accountant selected by ADA (and any persons working for such accountant) shall be bound to keep confidential the details of the AC Venture Defendants operations (including, but not limited to, their confidential information and trade secrets) subject to the audit and to limit the disclosure of the results of any audit to ADA solely to the amount, if any, of a payment adjustment that should be made and whether the adjustment is required due to technical or financial concerns. Any Auditing Accountant selected by ADA (and any persons working on the audit) shall not have worked for ADA or any Affiliate of ADA other than as an Auditing Accountant (or as a person working for such accountant) under this Agreement for at least 3 years and shall not work for ADA or any Affiliate of ADA for at least 3 years after such audit is completed. | ||
Audit Variances and Misallocations : No action shall be taken unless the audit identifies a variance with respect to an amount due to Norit or a misallocation of the royalties paid pursuant to the Final Award between the Existing Carbon Facilities and the New Carbon Facilities, in both cases, of more than 5% of a Royalty Payment(s) made to Norit. In the event that an audit identifies a variance of an amount due to Norit of greater than 5%, ADA shall have the right, but not the obligation, to conduct an additional audit pursuant to the procedures in the paragraph titled Audit Election in the calendar year in which the discrepancy was discovered. In the event that the (1) variance resulted from a purely arithmetic error by the AC Venture Defendants in calculating the amount of a Royalty Payment(s) due to Norit (as reasonably agreed by ADA and the AC Venture Defendants) or (2) the AC Venture Defendants misallocated such royalty payment(s) to the Existing Carbon Facilities, in either case, by more than 5%, the AC Venture Defendants shall pay the amount of such arithmetic error or misallocation and interest on such amount at the Interest Rate and any related collection efforts within 10 business days of agreement on such amount or an adjudication thereof. The Interest Rat e, for purposes of this Agreement, means the rate per annum equal to the lesser of (1) the prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H. 15 or any publication that may supersede it on the day that interest begins to accrue, plus 2 1 / 2 %, and (2) the maximum rate permitted by applicable law. In the event that the AC Venture Defendants misallocated such royalty payments to |
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the New Carbon Facilities by more than 5%, ADA shall pay the amount of such misallocation and interest on such amount at the Interest Rate and any related collection efforts within 10 business days of agreement on such amount or an adjudication thereof. Notwithstanding the foregoing, if ADA is not current with respect to its monetary obligations pursuant to this Agreement, including to pay the Royalty Payments and with respect to the amount of the Periodic LC (including, without limitation, all Litigation Postings) and the Security LC, then any amounts due by the AC Venture Defendants to ADA pursuant to this paragraph shall not be paid to ADA and shall instead be off-set against such ADA obligations until the full amount of such ADA obligations are satisfied.
In the event that there is a dispute with Norit concerning the royalty amounts due under the Final Award, and notwithstanding the results of any audit undertaken pursuant to this Agreement, the Parties shall be bound by any final determination of the amount of the Royalty Payments due pursuant to the procedures set forth in the Final Award or as otherwise determined by any panel in the Arbitration Action. |
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If the audit identifies any variances other than those resulting from purely arithmetic errors with respect to the amount of royalty payments due to Norit pursuant to the Final Award resulting from, arising out of or relating to the Existing Carbon Facilities, ADA may, but shall not be obligated, to present the results of such audit to Norit and request that an adjustment be made to the payments made pursuant to the Final Award. The AC Venture Defendants subject to the royalty payments in the Final Award shall provide reasonable cooperation to ADA in presenting audit results to Norit and subsequently the panel in the Arbitration Action if ADA cannot reach agreement with Norit and decides to pursue the issue with such panel (which cooperation shall not require such AC Venture Defendants to incur any out of pocket expenses). If ADA is current with respect to its monetary obligations pursuant to this Agreement, including to pay the Royalty Payments and with respect to the amount of the Periodic LC (including, without limitation, all Litigation Postings) and the Security LC, any amounts received from Norit as a result of such adjustment shall be paid to ADA. If ADA is not so current, such amounts shall first be paid to the AC Venture Defendants to cure all such deficiencies and then the remaining amount, if any, shall be paid to ADA.
Notwithstanding the results or pendency of any (1) audit, (2) proceeding with or decision by the panel in the Arbitration Action regarding a dispute over the amount of royalty payments due to Norit pursuant to the Final Award or (3) the adjudication of any miscalculation or misallocation, the Parties shall continue to perform all their respective obligations pursuant to this Agreement, including ADAs obligations with respect to the Royalty Payments, the Periodic LC (including, without limitation, all Litigation Postings) and the Security LC. |
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Date | Amount | |||
September 30, 2012 | $ | 1,000,000 | ||
March 31, 2013 | $ | 1,500,000 | ||
September 30, 2013 | $ | 2,000,000 | ||
March 31, 2014 | $ | 2,500,000 | ||
September 30, 2014 | $ | 3,500,000 | ||
March 31, 2015 | $ | 4,500,000 | ||
September 30, 2015 | $ | 5,000,000 | ||
March 31, 2017 | $ | 3,500,000 | ||
September 30, 2017 | $ | 2,500,000 |
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At any time when the stated amount of the Security LC exceeds $5,000,000, the stated amount of the Security LC may be reduced by the amount, if any, of the New Investment Security Amount; provided that in no event shall such reduction cause the stated amount of the Security LC to be less than $5,000,000. By way of example, if the stated amount of the Security LC equals $6,000,000 and ADA makes a Passive Investment such that the New Investment Security Amount is $2,000,000, ADA may, at its election, reduce the stated amount of the Security LC to $5,000,000 for so long as the New Investment Security Amount equals or exceeds $1,000,000. The foregoing notwithstanding, if at any date the amount of the Periodic LC and the Security LC when combined exceeds the Remaining Royalty Estimate, ADA may cause the amount of the Security LC to be reduced such that the amount of the Periodic LC and the Security LC when combined equals or exceeds the Remaining Royalty Estimate.
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2. Special Proceeds . Sales of equity in ADA are expressly excluded from this section and Special Proceeds as defined below. Subject to the foregoing exclusion and in addition to the above Minimum Security LC Amounts set forth in paragraph 1, within two (2) business days of receipt by ADA of any net cash and cash equivalent proceeds from (1) the sale, assignment, transfer, conveyance lease, or other disposal (each, a Sale Transaction ) of any interest in the Refined Coal Business, (2) any distributions or portion of distributions from the Refined Coal Business resulting from a Sales Transaction of any asset or assets of the Refined Coal Business in one or a series of related transactions for an amount in excess of $500,000 other than in the ordinary course of business (for purposes of this item (2),ordinary course of business shall include the sale or lease of equipment in the Refined Coal Business) and (3) any Sales Transaction of any asset or assets (including equity interests in any direct or indirect subsidiary, other than the Refined Coal Business, which is addressed in clause (1) above) in one or a series of related transactions for an amount in excess of $1,000,000 other than in the ordinary course of business, ADA shall apply any and all such net amounts (collectively, the Special Proceeds ) as follows: |
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(A) first, 100% to the AC Venture Defendants until the AC Venture Defendants have been reimbursed for the aggregate amount of all Royalty Payments funded out of pocket by any of them, or on behalf of any of them, through the date of such allocation (other than via draws upon the Periodic LC or the Security LC provided by ADA under this Agreement) plus interest on each such payment made by the AC Venture Defendants at the Interest Rate; |
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(B) second, 100% to fund the Periodic LC (including, without limitation, all Litigation Postings) to the then- required amount to the extent not yet funded as required by this Agreement; |
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(C) third, 100% to fund/replenish the Security LC to the then-required amount to the extent not yet funded as required by this Agreement;
(D) fourth, 50% to increase the stated amount of the Security LC until the aggregate total of all contributions pursuant to this subparagraph (D) equals $10,000,000 or, at any time when the stated amount of the Security LC exceeds $5,000,000, $10,000,000 minus the New Investment Security Amount (by way of example, if on a certain date, the stated amount of the Security LC equals $6,000,000 and the New Investment Security Amount is $1,000,000, then the Special Proceeds shall be applied pursuant to this subpart (D) until the aggregate total of all contributions pursuant to this subparagraph (D) equals $9,000,000); provided, that if such increase would cause the stated amount of the Periodic LC and the Security LC when combined to exceed the Remaining Royalty Estimate, only such portion of such increase shall be made as is necessary to cause such stated aggregate amount to equal the Remaining Royalty Estimate; and
(F) fifth, any remaining Special Proceeds shall be retained 100% by ADA to be used in its sole discretion. |
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Notwithstanding the foregoing, if any Special Proceeds are derived from the sale of a portion (but not all) of the equity interests in any direct or indirect subsidiary of ADA pursuant to clause (3) above up to a maximum of $5,000,000 and such amounts are retained in such direct or indirect subsidiary of ADA to capitalize such joint venture between ADA and one or more third parties and such amounts are retained in such entity to further the business of such entity, subparagraph (D) shall not apply with respect to such Special Proceeds. For the avoidance of doubt, to the extent the amount of such Special Proceeds exceeds $5,000,000, subparagraph (D) shall still apply with respect to the amount of such Special Proceeds in excess of $5,000,000. | ||
3. Supplemental Security LC Increases Arising from Cash Distributions and Profits of ADA. In the event that ADA declares or otherwise issues a dividend to any or all of its shareholders or repurchases any equity security from any or all of its shareholders prior to January 1, 2018 (other than repurchases of common stock under employee stock plans), ADA shall, within two business days of such dividend or repurchase, make a supplemental increase in the stated Security LC amount in an amount equal to 50% of the aggregate fair market value of such dividends or amount spent to repurchase such equity securities (the Cash Distribution LC Amount ), such Cash Distribution LC Amount not to exceed |
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$7,500,000 in the aggregate. Further, the first time that ADA achieves in a fiscal year ending prior to January 1, 2018 total earnings in excess of $20,000,000 as reported in its audited year end financial report, ADA shall, within 48 hours of the public disclosure of such earnings, make a one time supplemental increase in the stated Security LC amount of $5,000,000 (the Profit LC Amount ); provided, however, that in no event shall the aggregate increase of the stated Security LC amount from all Cash Distribution LC Amount increases and the Profit LC Amount exceed $7,500,000; provided, further, that if any increase in the Security LC amount provided under this paragraph 3 would cause the aggregate stated amount of the Periodic LC and the Security LC when combined to exceed the Remaining Royalty Estimate, only such portion of such increase to the Security LC shall be made as is necessary to cause such stated aggregate amount to equal the Remaining Royalty Estimate. For the avoidance of doubt, the aggregate maximum amount of the Security LC is $22,500,000, comprised of the maximum of $5,000,000 required under paragraph 1 as of August 31, 2015, plus the maximum Security LC increase of $10,000,000 in connection with Special Proceeds increases, plus the maximum increase of $7,500,000 required under this paragraph. | ||
4. New Investment Security . If ADA makes a Passive Investment in any New Investment, ADA (1) shall grant the AC Venture Defendants a lien and security interest on, and shall pledge to the AC Venture Defendants all right, title and interest, whether then owned or thereafter acquired in, to and under, whatever interests ADA receives in connection with such Passive Investment in such New Investment as additional security for the prompt and complete payment and performance when due of the Royalty Payments, provided that such lien and security shall be released within 10 days after receipt by the AC Venture Defendants of a written request by ADA, which written request shall be delivered to the AC Venture Defendants no earlier than the date on which the amount of the Periodic LC and the Security LC when combined first equals or exceeds the Remaining Royalty Estimate and (2) the agreements or other documents governing such Passive Investment in such New Investment shall (A) provide that whenever ADA is to be paid any sum with respect to such Passive Investment in such New Investment, any amounts owed by ADA to the AC Venture Defendants pursuant to this Agreement shall be deducted from that sum before payment and (B) include a provision substantively similar to Section 12.2(f) (Remedies Upon Indemnity Default) of the ACS LLC Agreement as it exists as of the date of this Agreement. |
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5. Drawings on the Security LC. The AC Venture Defendants shall only draw on the Security LC to make Royalty Payments due that have not been made by ADA. Within 10 business days of any drawing on the Security LC by any AC Venture |
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Defendant, ADA shall immediately use its best efforts to replenish such security; provided, however, if the aggregate amount available to the AC Venture Defendants pursuant to the combined Periodic LC and the Security LC stated amounts after such drawing exceeds the aggregate amount of all Royalty Payments to be paid pursuant to the Final Award in the next 12 months, as reasonably estimated by the AC Venture Defendants, then ADA shall have no less than 120 days to replenish the Security LC.
6. Nothing in this Section shall relieve ADA of its obligations pursuant to any other provision of this Agreement or any other agreement or limit the remedies available to the AC Venture Defendants or the ECP Defendants pursuant to any other provision of this Agreement or any other agreement. New Investment Security Amount means an amount equal to (1) 50% times (2) the aggregate amount of all Passive Investments in New Investments owned by ADA on a particular date. Remaining Royalty Estimate means the aggregate amount of all Royalty Payments remaining to be paid pursuant to the Final Award, as reasonably estimated by the AC Venture Defendants to be provided by ACS to ADA when reasonably requested on no more than a quarterly basis. Refined Coal Business means the development, sale, lease or operation of equipment for the control of mercury and NOx in cyclone boilers that qualifies for section 45 tax credits as the business is currently conducted by, or as may be conducted by, Clean Coal Solutions, LLC. |
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Extraordinary Transactions | Extraordinary Transactions : In the event that ADA (or any of its successors, assigns or direct or indirect subsidiaries in which ADA holds directly or indirectly at least a fifty percent equity interest (collectively, Related Parties )) (1) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, (2) enters into a Sales Transaction for all or substantially all of its assets with any Person or Persons acting together or constituting a group under Section 13(d) of the Exchange Act (a Group ), (3) enters into a Sale Transaction for a material portion of its assets with any Person or Group under direct or indirect common control with ADA or any Related Party or (4) undertakes any reorganization, consolidation, restructuring, recapitalization or other change in its ownership whereby a Person or Group controls more than 50% of ADAs or any Related Partys voting securities then, and in each such case, such Related Parties (and their respective successors, assigns and direct and indirect subsidiaries) shall deliver to the ECP Defendants and the AC Venture Defendants a duly executed joinder or similar binding written undertaking to assume, on a joint and several basis with ADA and any other such Related Party (and their respective successors, assigns and direct and indirect subsidiaries), the obligations of ADA and the applicable Related Parties under this Agreement. |
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Release of Certain Known Claims Related to the Existing Actions | ECP/ACS Release : In consideration of ADAs promises in this Agreement, effective immediately, the ECP Defendants and the AC Venture Defendants, each on their own behalf and on behalf of their predecessors, successors, assigns, parent entities, Subsidiaries, and Affiliates, and each of its past and present directors, officers, partners, members, employees, servants, agents, trustees, insurers, co-insurers, reinsurers, attorneys, and shareholders (collectively and individually the ECP/ACS Releasors ) releases, waives, and forever discharges ADA and each of their predecessors, successors, assigns, parent companies, Subsidiaries, and Affiliates, and each of their past and present directors, officers, partners, members, employees, servants, agents, trustees, insurers, co-insurers, reinsurers, attorneys, and shareholders (collectively, the ADA Releasees ) from and against all actions, causes of action, suits, debts, dues, sums of money, accounts, controversies, agreements, promises, injunctive relief, fees, variances, trespasses, damages, judgments, abstracts of judgments, liens, extents, executions, claims, demands, liabilities, costs, expenses, obligations, contracts, rights to subrogation, rights to contribution, and remedies of any nature whatsoever, in law, admiralty, or equity, in any kind of forum, whether sounding in contract, tort, or otherwise, that are known or reasonably should have been known by them (collectively, Claims ), which Claims any or all of the ECP/ACS Releasors ever had, now have or that reasonably should have been known by them (but specifically excluding those actions, causes of action, suits, debts, dues, sums of money, accounts, controversies, agreements, promises, injunctive relief, fees, variances, trespasses, damages, judgments, abstracts of judgments, liens, extents, executions, claims, demands, liabilities, costs, expenses, obligations, contracts, rights to subrogation, rights to contribution, and remedies of any nature whatsoever, in law, admiralty, or equity, in any kind of forum, whether sounding in contract, tort, or otherwise, that were not known or that may not reasonably have been known by them (collectively, Unknown Claims )) against any or all of the ADA Releasees, from the beginning of the world until the date of this Agreement, arising from the Texas Action, the Arbitration Action and the New Jersey Action; provided, however, that the ECP/ACS Releasors do not release ADA from any Claim resulting from, arising out of or relating to (1) the ADA Indemnity Obligations or (2) any obligation ADA or its Affiliates has pursuant to the ADA/Norit Settlement Agreement, the Final Award (except with respect to breaches by ADA of its obligations pursuant to the Final Award to pay Norit any and all amount due with respect to the New Carbon Facilities, which shall be ECP/ACS Release Claims Released Claims), the Other Awards or this Agreement (collectively, the ECP/ACS Released Claims ). Nothing herein shall release or discharge any Claims that any Party may have in the future for |
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failure to comply with this Agreement. Notwithstanding the foregoing paragraph and the section titled Additional Legal Fees, automatically upon the breach and failure to cure within two business days by ADA of its obligations pursuant to this Agreement with respect (1) to making the Royalty Payments or (2) to funding the Security LC or the Periodic LC (including, without limitation, all Litigation Postings), the ECP Defendants and the AC Venture Defendants may bring Claims pursuant to the terms of the JDA and this Agreement for Losses (as defined in the JDA) (including, without limitation, any indirect, incidental, punitive, special or consequential damages whatsoever which in any way arise out of, relate to or are a consequence of such breach by ADA) suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to such breach by ADA regardless of when such Losses first arose and the foregoing release shall be deemed null and void ab initio with respect to such Losses (collectively, Breach Claims ). | ||
ADA Release: In consideration of the ECP Defendants and the AC Venture Defendants promises in this Agreement, effective immediately, ADA, on its own behalf and on behalf of its predecessors, successors, assigns, parent entities, Subsidiaries, and Affiliates, and each of its past and present directors, officers, partners, members, employees, servants, agents, trustees, insurers, co-insurers, reinsurers, attorneys, and shareholders (collectively and individually the ADA Releasors ) releases, waives, and forever discharges the ECP Defendants and the AC Venture Defendants and each of their predecessors, successors, assigns, parent companies, Subsidiaries, and Affiliates, and each of their past and present directors, officers, partners, members, employees, servants, agents, trustees, insurers, co-insurers, reinsurers, attorneys, and shareholders (collectively, the ECP/ACS Releasees ) from and against all Claims, which Claims any or all of the ADA Releasors ever had, now have or reasonably should have known they had (but specifically excluding the Unknown Claims) against any or all of the ECP/ACS Releasees, from the beginning of the world until the date of this Agreement, arising from the Texas Action, the Arbitration Action and the New Jersey Action; provided, however, that the ADA Releasors do not release the ECP Defendants or the AC Venture Defendants from any obligation the ECP Defendants, the AC Venture Defendants and their respective Affiliates has pursuant to the ACS/Norit Settlement Agreement, the Final Award (except with respect to breaches by ACS or RREP of their obligations pursuant to the Final Award to pay Norit any and all amount due with respect to the Existing Carbon Facilities, which shall be ADA Released Claims) or this Agreement (collectively, the ADA Released Claims ). Nothing herein shall release or discharge any Claims and any Party may have in the future for failure to comply with this Agreement. |
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Bar : (1) The ECP/ACS Releasors agree, effective immediately, to |
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forever waive and forego any right to commence, prosecute, or assert, on their own behalf or on behalf of another, any claims, cross-claims, or counterclaims in any court or other forum in the United States or elsewhere, against the ADA Releasors, whether arising under state, federal, or foreign law, arising from the ECP/ACS Released Claims and (2) the ADA Releasors agree, effective immediately, to forever waive and forego any right to commence, prosecute, or assert, on their own behalf or on behalf of another, any claims, cross-claims, or counterclaims in any court or other forum in the United States or elsewhere, against the ADA Releasors, whether arising under state, federal, or foreign law, arising from the ADA Released Claims; provided, however, in the case of both clause (1) and (2) above, the ECP/ACS Releasors and the ADA Releasors (collectively, the Releasors ) do not waive and forego any right to commence, prosecute, or assert any claim, cross-claims, or counter-claims in any court or other forum in the United States or elsewhere, on their own behalf or on behalf of another, whether arising under state, federal, or foreign law, relating to or arising from this Agreement or any other agreement among any of the Releasors. The Releasors agree that this provision may be enforced by injunction (including an antisuit injunction) by any ECP/ACS Releasee or ADA Releasee, that the damage caused by such unauthorized claims are incapable of being calculated with certainty, and thus appropriate for injunctive relief. If any court or regulatory body fails to dismiss the actions or enter the consent judgments as contemplated herein or otherwise modifies the orders of dismissal or consent judgments attached hereto in a manner that changes the legal rights and obligations of the Parties, the release and bar provided for herein shall operate so as to only permit the Parties to pursue their rights and obligations consistent with this Agreement.
Other Losses: Except as expressly set forth in this Agreement regarding Breach Claims, (1) this Agreement supersedes and completely replaces the Parties respective rights and obligations with respect to Losses incurred and indemnification regarding the Norit Litigation under the JDA and the LLC Agreement and (2) nothing in this Agreement shall expand or limit the Parties respective indemnification rights and obligations pursuant to the JDA or the ACS LLC Agreement for matters other than the Norit Litigation. |
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Tolling Arrangement | Tolling of Limitations Periods : Any and all statutes of limitations, statutes of repose, contractual time limitations, and any other limitations related to the passage of time, including, without limitation, laches, estoppel and waiver, applicable to any Breach Claims under common law or under federal, state and/or local statutory law shall be tolled for a period of time commencing on the date hereof and ending on the expiration of the one year anniversary of the obligations to pay Norit royalties pursuant to the Final Award (the Tolling Period ). The running of any period of time under any applicable statute of limitations or any other time-related |
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defense applicable to any Breach Claims shall commence again after the end of the Tolling Period, unless there is an extension of the Tolling Period executed in writing by and on behalf of the Parties. The Tolling Period shall not be considered in computing any period of time under any applicable statute of limitations or any other time-related defense. The Parties shall not to assert any defense under any applicable statute of limitations or any other time-related defense except to the extent that such defense is based on periods of time that are not tolled pursuant to this Agreement or any previous tolling agreement among any of the Parties. ADA shall not assert that the failure of the ECP Defendants or the AC Venture Defendants to commence a proceeding during the Tolling Period gives it any additional grounds for any defense or avoidance with respect to any Breach Claims. By entering into this Agreement, none of the Parties makes any admissions or representations with regard to the date or dates on which any applicable statute of limitations or other time-related defense may expire or may have expired. This paragraph may not be used as evidence in any proceeding for any purpose other than to prove that the Parties agreed to a tolling of time-based defenses, as provided herein. Nothing herein does or shall be deemed to preclude the ECP Defendants or the AC Venture Defendants from taking any action with respect to the Norit Litigation, including, without limitation, the defense and settlement thereof. | ||||
Option to Participate in New Projects and Investments |
Notice of New Project or Investment: If the ECP Defendants, the AC Venture Defendants or their respective Affiliates and Subsidiaries seek to pursue any new Project (as defined in the JDA) or other investment in which all or a substantial portion of the revenues are derived from the manufacture and sale of activated carbon (a New Investment ), such Person shall present such proposed New Investment to ADA, including a reasonable description of the proposed New Investment and the amount of the proposed investment for an equity or other interest in such New Investment. ADA shall have the option to make a passive investment in such New Investment as provided below.
ADA Option for Passive Investment: ADA shall have the option to elect, by written notice to the Person proposing such New Investment delivered no more than 30 days from the date on which the proposed New Investment was first presented to ADA to make (directly or through a wholly-owned subsidiary) a corresponding passive investment on an economic 49.9%/50.1% (with ADA having the minority interest) basis and in the same form (e.g., common stock, preferred equity or convertible debt) except with respect to voting, control or similar rights, or in such lesser amount determined by ADA, but in any event not less than 25% of the total economic investment to be made by the Person proposing the proposed New Investment (a Passive Investment ). For the avoidance of doubt, ADA shall not obtain any voting, control or similar rights in the proposed New Investment but shall have the option to participate oneconomic terms proportional to the Person proposing the investment. |
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Failure to Respond: If ADA fails to affirmatively elect to invest in such proposed New Investment within such 30-day period, ADA shall be deemed to have affirmatively declined to participate in such New Investment and the presenting Person shall be free to pursue such proposed New Investment independently or with any other Person. | ||
Exclusions from Option: This option and the notice provisions of this section shall not apply to the first facility associated with the Vortex Project. | ||
Option is Non-Transferable: ADA shall not assign the option to make a passive investment in a New Investment and any attempt to do so shall be void ab initio. | ||
Termination of Option: ADAs option to make a passive investment in New Investments shall expire upon the earliest to occur of (the Expiration Date ): | ||
October 1, 2015; |
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A Change of Control of ACS; and |
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A Change of Control of ADA. |
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In addition, ADAs option to make a passive investment in New Investments shall expire upon the earliest to occur of a Bankruptcy Event or a Failure to Pay occurring prior to the Expiration Date; provided, however, that within 60 days of the occurrence of any Failure to Pay, ADAs option shall be reinstated if ADA fulfills its obligations that resulted in the Failure to Pay within 60 days of the occurrence of any Failure to Pay. | ||
Change of Control means, with respect to any Person, (a) the sale of all or substantially all of such Persons assets in one transaction or series of related transactions, (b) a merger, consolidation, refinancing or recapitalization as a result of which the holders of such Persons issued and outstanding voting securities immediately before such transaction own or control less than a majority of the voting securities of the continuing or surviving entity immediately after such transaction and/or (c) the acquisition (in one or more transactions) by any Person or Persons acting together or constituting a group under Section 13(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act ) together with any Affiliates thereof (other than equity holders of such Person as of the date hereof and their respective Affiliates) of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) or control, directly or indirectly, of at least a majority of the total voting power of all classes of securities entitled to vote generally in the election of such Persons board of directors or similar governing body. | ||
Bankruptcy Event means, with respect to ADA, the occurrence of one or more of the following events: (a) ADA (i) admits in |
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writing its inability to pay its debts as they become due, (ii) files, or consents or acquiesces by answer or otherwise to the filing against it of, a petition for relief or reorganization or rearrangement, readjustment or similar relief or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, dissolution, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as bankrupt or as insolvent or to be liquidated, (vi) gives notice to any governmental authority of insolvency or pending insolvency, or (vii) takes corporate action for the purpose of any of the foregoing; or (b) a court of competent jurisdiction enters an order appointing, without consent by ADA, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of ADA, or any such petition shall be filed against ADA and is not dismissed within 60 days.
Failure to Pay means, with respect to ADA, the failure to pay any payment or provide any indemnification required pursuant to this Agreement, including, without limitation, any Royalty Payment, when due or the failure to post or replenish any letter of credit required pursuant to this Agreement when due, provided that a Failure to Pay shall not occur if ADA makes such payment, provides such indemnification or posts or replenishes such letter of credit within 30 days of any such failure. |
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Drag-Along /Tag-Along Rights |
Drag-Along and Tag-Along Rights: ADAs passive investment in any New Investment shall be subject to and shall benefit from drag-along and tag-along rights and obligations (including indemnification) substantially similar to the rights and obligations of Carbon Solutions Management, LLC as of the date of this Agreement in the ACS LLC Agreement; provided that ADA shall be obligated to make representations and warranties in any transaction subject to the drag-along and tag-along rights only to the extent commensurate with ADAs level of economic interest in and knowledge of a particular investment. These rights and obligations shall also apply if there is a Change in Control of ACS. | |
Structure of New Projects and Investments |
Special Purpose Entity: A special purpose entity, which may, but need not, be a Subsidiary of ACS, shall be formed for each New Investment. ADAs passive economic participation for each New Investment shall be limited to the special purpose entity formed for the particular New Investment.
Relationship Among Projects: The ECP Defendants and the AC Venture Defendants, at their sole discretion, shall determine from |
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time to time and at any time which Project, including, without limitation, New Investments, shall be utilized to fulfill particular offtake or other similar supply contracts and ADA waives any and all claims it may have with respect to such decisions and the operations of the AC Venture Defendants and any special purpose entity formed as a result of a New Investment; provided that the limited liability company agreement or similar document of such special purpose entity shall not be amended without ADAs consent in a manner that:
Modifies the limited liability of ADA;
Disproportionately and adversely affects the economic interest of ADA in such entity; or
Increases ADAs obligation to commit capital to such entity beyond the commitment ADA undertakes pursuant to the option provided in this Agreement.
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Non-Compete Obligations |
ADA Non-Compete Obligations : Until the Expiration Date, ADA shall not:
Compete with the AC Venture Defendants and their Affiliates by selling activated carbon (other than in conjunction with the AC Venture Defendants and their Affiliates);
Other than to Alstom, Siemens or their successors and assigns, sell activated carbon injection ( ACI ) equipment and systems to any Person that manufactures, produces or supplies activated carbon to third Persons;
In connection with selling ACI equipment and systems, enter into any agreement, arrangement or understanding, including, without limitation, any joint marketing agreement, license or similar agreement with any Person whereby ADA or such Person markets or sells such Persons activated carbon;
Sell, exchange, lease, license, assign, transfer or otherwise provide any Intellectual Property of ADA or any of its Affiliates to any Person (other than to ACS and its Affiliates) to be used in connection with the manufacture, production, processing and/or supply of activated carbon;
Except as expressly provided in this Agreement, make any new debt, equity or other investment in an activated carbon production or supply Project, venture or company or undertake an investment opportunity in which all or a substantial portion of the revenues are derived from the manufacture, processing or sale of activated carbon; and
Provide consulting or other services to any Person (other than the AC Venture Defendants and their Affiliates) relating to the manufacture, production, processing and/or supply of activated carbon. |
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Limitation of ADA Non-Compete Obligations : The foregoing notwithstanding, unless expressly provided below, the non-compete obligations shall not: | ||
Prohibit ADA from selling its ACI equipment and other emission control systems (as opposed to manufacturing, producing, processing and/or supplying activated carbon) in transactions not involving the sale or supply of activated carbon, including, without limitation, to other equipment or systems suppliers. Notwithstanding the foregoing, the restrictions in the second bullet under the heading Non-Compete Obligations shall still apply. |
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Prohibit ADA from providing consulting services to any end user of ACI or other emissions control equipment or systems (other than such end users that manufacture, produce, process and/or supply activated carbon) relating to the manufacture, production, processing and/or supply of activated carbon. |
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Prohibit ADA from developing technology primarily for injection of activated carbon (as opposed to manufacturing, producing, processing and/or supplying activated carbon) for ADAs ongoing ACI business; |
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Prohibit ADA from processing activated carbon provided by a Person who acquired an ACI system from ADA or otherwise retained the services of ADA at such Persons facility; provided that ADA receives no compensation from any Person related to the supply of such activated carbon; |
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Limit or restrict in any manner ADAs right to develop new technologies for applications other than mercury control, including, without limitation, development of CO2 sequestration technologies that use activated carbon; and |
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In connection with selling ACI equipment and systems, prohibit ADA from: |
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on any individual project where activated carbon and ACI equipment or systems are being jointly solicited by a customer, bidding on such equipment or system project alongside a bid by the AC Venture Defendants and their Affiliates to supply the activated carbon for such project; or
purchasing and providing activated carbon to an ADA customer as a backup for a performance guarantee or otherwise in connection with the sale of an ADA mercury removal technology other than injection of activated carbon (e.g., sale of CyClean technology); provided that |
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if the AC Venture Defendants and their Affiliates have not committed to sell 85% of |
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their then existing capacity, ADA shall purchase and provide such carbon from the AC Venture Defendants and their Affiliates and the AC Venture Defendants and their Affiliates agree to quote ADA the lowest price and best terms they have quoted any customer for comparable activated carbon within the previous 6 months; or |
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if the AC Venture Defendants and their Affiliates have committed to sell 85% of their then-existing capacity, ADA may, at its option (i) accept prices and terms from the AC Venture Defendants and their Affiliates determined in accordance with the immediately preceding bullet or (ii) obtain a quote on price and terms from another activated carbon supplier and present that quote to the AC Venture Defendants and their Affiliates which will have 10 business days to match such quote whereupon ADA shall be obligated to purchase such carbon from the AC Venture Defendants and their Affiliates, or, if the AC Venture Defendants and their Affiliates do not match such quote, ADA may purchase such carbon from such other supplier on the prices and terms in such other suppliers quote. |
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Joint Marketing Efforts and AC Venture Defendants Non-Compete Obligations: Until the earlier of (1) the six month anniversary of the date of this Agreement and (2) the occurrence of any Bankruptcy Event or Failure to Pay (a) the AC Venture Defendants shall work with ADA and vice versa to jointly market ACI equipment and systems and activated carbon in the North American coal-fired utility market and (b) the AC Venture Defendants shall not, in connection with selling activated carbon, enter into any agreement, arrangement or understanding, including, without limitation, any joint marketing agreement, license or similar agreement with any Person whereby the AC Venture Defendants or such Person markets or sells such Persons ACI equipment and systems to any customer in the North American coal-fired utility market. | ||
The foregoing notwithstanding, the AC Venture Defendants Non-Compete Obligations shall not: |
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Prohibit the AC Venture Defendants from entering into any agreement, arrangement or understanding, including, without limitation, any joint marketing agreement, license or similar agreement with any Person whereby the AC Venture Defendants or such Person markets or sells such Persons ACI equipment and systems to customers outside of the North American coal-fired utility market, including without limitation, the industrial boiler market (including any such facilities that are used to generate electricity). |
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Prohibit the AC Venture Defendants from entering into any agreement, arrangement or understanding, including, without limitation, any joint marketing agreement, license or similar agreement with any Person whereby the AC Venture Defendants or such Person markets or sells such Persons ACI equipment and systems to a customer in the North American coal-fired utility market if such customer specifies the ACI equipment and systems of such Person to the exclusion of ADA ACI equipment and systems.
Prohibit the AC Venture Defendants from selling activated carbon in transactions not involving the sale or supply of ACI equipment and other emission control systems, including, without limitation, to other activated carbon manufactures. |
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Non-Disparagement |
Until the Expiration Date, no Party shall take any action which is intended, or would reasonably be expected, to harm any other Partys reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to such Party provided that nothing herein shall prevent any Party from testifying truthfully in connection with any litigation, arbitration or administrative proceeding when compelled by subpoena, regulation or court order to do so or from asserting any right that any Party may have against any other Party in any litigation, arbitration or administrative proceeding or making any assertion with respect to any other Party in the Norit Litigation. | |
Intellectual Property License Agreement Amendment |
Concurrently with the execution of this Agreement, ADA and ACS shall execute an amendment to the Intellectual Property License Agreement in substantially the form attached hereto as Exhibit A . | |
Confidentiality |
Confidentiality Obligations : Each Party (as the Receiving Party ) agrees that any Confidential Information of the other Party (as the Disclosing Party ) received or otherwise obtained in the course of performance under this Agreement shall be kept strictly confidential by the Receiving Party and only disclosed (1) to those employees of the Receiving Party who have a need to know in order to perform the Receiving Partys obligations hereunder, except that the Receiving Party may disclose the Disclosing Partys Confidential Information to any Affiliate of the Receiving Party for the sole purpose of performing the Receiving Partys obligations hereunder and administering and enforcing this Agreement, (2) to the Parties respective attorneys, accountants, professional advisers, lendors, potential lendors, insurers, trustees and/or other agents who are required to know of the Settlement Agreement or its terms to carry on the Parties business affairs, including, without limitation, any litigation or other actions concerning this Agreement (3) solely with respect to the terms and conditions of this Agreement, to the limited partners and prospective investors and purchasers of ADA, the ECP |
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Defendants or the AC Venture Defendants or their respective subsidiaries or affiliates and (4) as necessary to comply with any Partys obligation for public disclosure as a public company; provided that in all cases of (1), (2) and (3), the Parties shall ensure that any such person is bound by duties or written obligations of confidentiality. The obligation to maintain the confidence of Confidential Information shall last for 3 years from the date such information was provided to the receiving party except with respect to trade secrets of the disclosing party (which trade secrets will be clearly identified as such), which obligation shall remain in effect for so long as such information constitutes a trade secret under applicable law. The Receiving Party shall be responsible for any of its Affiliates maintaining (or any failure to maintain) the confidentiality of such Confidential Information of the Disclosing Party. The Receiving Party further agrees to take the same care with the Disclosing Partys Confidential Information as it does with its own. Notwithstanding any of the foregoing, the Disclosing Partys Confidential Information does not include information that the Receiving Party shows: (x) is or becomes public knowledge without any action by, or involvement of, the Receiving Party or its Affiliates or agents; (y) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented or (z) is obtained by the Receiving Party without restrictions on use or disclosure from a third party who did not receive it, directly or indirectly, from the Disclosing Party. If the Receiving Party is requested to disclose any of the Disclosing Partys Confidential Information pursuant to any judicial or governmental order, the Receiving Party will promptly notify the Disclosing Party (unless such notice is prohibited under applicable law or order) of such order so that the Disclosing Party, in its sole discretion, may seek an appropriate protective order and/or take any other action to prevent or minimize the breadth of such disclosure; provided that if the Disclosing Party is not successful in precluding the requesting legal body from requiring the disclosure of such Confidential Information, the Receiving Party will furnish only that portion of such Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. Further, the Receiving Party will provide the Disclosing Party with reasonable cooperation and assistance in the Disclosing Partys pursuit of a protective order or other actions to minimize the breadth of such disclosure. | ||
Confidential Information means (1) all non-public information and material of any Person, including all trade secrets, confidential information, business and financial information (including pricing information, business and marketing plans and proposals, forecasts, revenues, expenses, earnings projections, customer and supplier lists and information, and sales data), know-how (including manufacturing and production processes and techniques), research and development information (including discoveries, ideas, | ||
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inventions, processes, test data, layouts, designs, tools, samples, formulae, methods, schematics, plans, drawings, data reports, compositions and research records) and (2) the terms and conditions of this Agreement. | ||
Press Releases : Notwithstanding the confidentiality obligations in this Section, upon the execution of this agreement ADA may issue the press release attached hereto as Exhibit B . |
Miscellaneous
Notices . All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, or if mailed (first class postage prepaid) or deposited with a reputable overnight courier for next day delivery, to the Parties at the following addresses or facsimile numbers:
If to ADA-ES, to:
ADA-ES, Inc.
8100 SouthPark Way
Unit B
Littleton, Colorado 80120
Facsimile No.: (303) 734-0330
Attn: President
CC: Corporate Counsel
with a copy (which shall not constitute notice to ADA-ES), to:
Fox Rothschild LLP
997 Lenox Drive
Building 3
Lawrenceville, New Jersey 08543-5231
Facsimile No.: (609) 896-1469
Attn: Jonathan R. Lagarenne
If to any ECP Defendant, to:
Energy Capital Partners, LLC
51 John F. Kennedy Parkway
Suite 200
Short Hills, New Jersey 07078
Facsimile No.: (973) 671-6101
Attn: Tyler Reeder, Vice President
CC: General Counsel
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with a copy (which shall not constitute notice to the ECP Party), to:
Latham & Watkins LLP
885 Third Avenue
Suite 1000
New York, New York 10022-4834
Facsimile No.: (212) 751-4864
Attn: David A. Kurzweil & David B. Rogers
If to any AC Venture Defendant, to:
ADA Carbon Solutions, LLC
8100 SouthPark Way
Unit A-2
Littleton, Colorado 80120
Facsimile No.: (303) 734-0330
Attn: General Counsel
with a copy (which shall not constitute notice to the ECP Party), to:
Latham & Watkins LLP
885 Third Avenue
Suite 1000
New York, New York 10022-4834
Facsimile No.: (212) 751-4864
Attn: David A. Kurzweil & David B. Rogers
All such notices, requests and other communications will (i) if delivered personally to the address as provided in this paragraph, be deemed given upon delivery, (ii) if delivered by facsimile transmission to the facsimile number as provided in this paragraph, be deemed given upon receipt and (iii) if delivered by mail or reputable overnight courier in the manner described above to the address as provided in this paragraph, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice, request or other communication is to be delivered pursuant to this paragraph). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice specifying such change to the other Parties hereto.
Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative.
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Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each of the Parties.
Specific Performance. Notwithstanding anything contained herein to the contrary, each Party to this Agreement acknowledges and agrees that the other Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each Party to this Agreement agrees that the other Parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the Parties and the matter in addition to any other remedy to which it may be entitled, at law or in equity.
No Third Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of the Parties hereto and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person other than any Person entitled to indemnification pursuant to this Agreement.
No Assignment; Binding Effect. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party hereto without the prior written consent of the other Parties hereto and any attempt to do so will be void, except (i) for assignments and transfers by operation of law and (ii) a Party may assign any or all of its rights, interests and obligations hereunder to a wholly-owned Subsidiary, provided that any such Subsidiary agrees in writing to be bound by all of the terms, conditions and provisions contained herein, but no such assignment referred to in clause (ii) shall relieve such Party of its obligations hereunder. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties hereto and their respective successors and assigns.
Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
Mutual Drafting. The Parties are sophisticated and have been represented by attorneys throughout the transactions contemplated hereby who have carefully negotiated the provisions hereof. As a consequence, the Parties do not intend that the presumptions of laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement or any agreement or instrument executed in connection herewith, and therefore waive their effects.
Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles (whether of the State of Delaware or otherwise) that would result in the application of the laws of any other jurisdiction.
Consent to Jurisdiction and Service of Process; Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO THE JURISDICTION OF ANY UNITED STATES DISTRICT COURT OR THE STATE COURTS OF DELAWARE LOCATED IN WILMINGTON, DELAWARE AND IRREVOCABLY
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AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER SUCH ACTIONS OR PROCEEDINGS ARE BASED IN STATUTE, TORT, CONTRACT OR OTHERWISE), SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY (1) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR SUCH ACTIONS OR PROCEEDINGS, (2) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT AND (3) AGREES THAT IT WILL NOT BRING ANY SUCH ACTION OR PROCEEDING IN ANY COURT OTHER THAN SUCH COURTS. EACH PARTY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE AND IRREVOCABLE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTIONS OR PROCEEDINGS. A COPY OF ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A SETTLEMENT, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
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THE TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Limitation on Damages. EXCEPT AS PROVIDED IN THE SECTION TITLED RELEASE OF CERTAIN KNOWN CLAIMS RELATED TO THE EXISTING ACTIONS, NO PARTY SHALL BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER WHICH IN ANY WAY ARISE OUT OF, RELATE TO OR ARE A CONSEQUENCE OF, THE PERFORMANCE OR NONPERFORMANCE BY SUCH PARTY UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT IN THE CASE OF FRAUD OR TO THE EXTENT SUCH DAMAGES WERE AWARDED TO ANY THIRD PARTY IN CONNECTION WITH A THIRD PARTY CLAIM.
Counterparts. This Agreement may be executed in any number of counterparts, any of which may be delivered via facsimile or PDF, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
[Separate Signature Page Attached]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by a duly authorized signature of each Party as of the date first above written.
ADA-ES, INC. | ADA ENVIRONMENTAL SOLUTIONS, LLC | |||||||
By: | /s/ C. Jean Bustard | By: | /s/ C. Jean Bustard | |||||
Name: | C. Jean Bustard | Name: | C. Jean Bustard | |||||
Title: | Chief Operating Officer | Title: | Chief Operating Officer |
ENERGY CAPITAL PARTNERS, LLC | ||
By: | ||
Name: | Peter Labbat | |
Title: | Managing Member |
ENERGY CAPITAL PARTNERS I, LP | ENERGY CAPITAL PARTNERS I (CROWFOOT IP), LP | |||||||
By: | Energy Capital Partners GP I, LLC, its general partner | By: | Energy Capital Partners GP I, LLC, its general partner | |||||
By: | Energy Capital Partners, LLC, its managing member | By: | Energy Capital Partners, LLC, its managing member | |||||
By: | By: | |||||||
Name: | Peter Labbat | Name: | Peter Labbat | |||||
Title: | Managing Member | Title: | Managing Member |
ENERGY CAPITAL PARTNERS I-A, LP | ENERGY CAPITAL PARTNERS I-B IP, LP | |||||||
By: | Energy Capital Partners GP I, LLC, its general partner | By: | Energy Capital Partners GP I, LLC, its general partner | |||||
By: | Energy Capital Partners, LLC, its managing member | By: | Energy Capital Partners, LLC, its managing member | |||||
By: | By: | |||||||
Name: | Peter Labbat | Name: | Peter Labbat | |||||
Title: | Managing Member | Title: | Managing Member |
ADA CARBON SOLUTIONS, LLC | ADA CARBON SOLUTIONS (RED RIVER), LLC | |||||||
By: | ADA Carbon Solutions, LLC, its sole member | |||||||
By: | By: | |||||||
Name: | Peter O. Hansen | Name: | Peter O. Hansen | |||||
Title: | General Counsel | Title: | General Counsel |
[Signature Page to Settlement Agreement Regarding
ADA-ES Indemnity Obligations]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by a duly authorized signature of each Party as of the date first above written.
ADA-ES, INC. | ADA ENVIRONMENTAL SOLUTIONS, LLC | |||||||
By: | By: | |||||||
Name: | Name: | |||||||
Title: |
Title: |
ENERGY CAPITAL PARTNERS, LLC | ||
By: | /s/ Peter Labbat | |
Name: | Peter Labbat | |
Title: | Managing Member |
ENERGY CAPITAL PARTNERS I, LP | ENERGY CAPITAL PARTNERS I (CROWFOOT IP), LP | |||||||
By: | Energy Capital Partners GP I, LLC, its general partner | By: | Energy Capital Partners GP I, LLC, its general partner | |||||
By: | Energy Capital Partners, LLC, its managing member | By: | Energy Capital Partners, LLC, its managing member | |||||
By: | /s/ Peter Labbat | By: | /s/ Peter Labbat | |||||
Name: | Peter Labbat | Name: | Peter Labbat | |||||
Title: | Managing Member | Title: | Managing Member |
ENERGY CAPITAL PARTNERS I-A, LP | ENERGY CAPITAL PARTNERS I-B IP, LP | |||||||
By: | Energy Capital Partners GP I, LLC, its general partner | By: | Energy Capital Partners GP I, LLC, its general partner | |||||
By: | Energy Capital Partners, LLC, its managing member | By: | Energy Capital Partners, LLC, its managing member | |||||
By | /s/ Peter Labbat | By: | /s/ Peter Labbat | |||||
Name: | Peter Labbat | Name: | Peter Labbat | |||||
Title | Managing Member | Title | Managing Member |
ADA CARBON SOLUTIONS, LLC | ADA CARBON SOLUTIONS (RED RIVER), LLC | |||||||
By: | ADA Carbon Solutions, LLC, its sole member | |||||||
By: | By: | |||||||
Name: | Peter O. Hansen | Name: | Peter O. Hansen | |||||
Title: | General Counsel | Title: | General Counsel |
[Signature Page to Settlement Agreement Regarding ADA-ES Indemnity Obligations]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by a duly authorized signature of each Party as of the date first above written.
ADA-ES, INC. | ADA ENVIRONMENTAL SOLUTIONS, LLC | |||||||
By: | By: | |||||||
Name: | Name: | |||||||
Title: |
Title: |
ENERGY CAPITAL PARTNERS, LLC | ||
By: | ||
Name: | Peter Labbat | |
Title: | Managing Member |
ENERGY CAPITAL PARTNERS I, LP | ENERGY CAPITAL PARTNERS I (CROWFOOT IP), LP | |||||||
By: | Energy Capital Partners GP I, LLC, its general partner | By: | Energy Capital Partners GP I, LLC, its general partner | |||||
By: | Energy Capital Partners, LLC, its managing member | By: | Energy Capital Partners, LLC, its managing member | |||||
By: | By: | |||||||
Name: | Peter Labbat | Name: | Peter Labbat | |||||
Title: | Managing Member | Title: | Managing Member |
ENERGY CAPITAL PARTNERS I-A, LP | ENERGY CAPITAL PARTNERS I-B IP, LP | |||||||
By: | Energy Capital Partners GP I, LLC, its general partner | By: | Energy Capital Partners GP I, LLC, its general partner | |||||
By: | Energy Capital Partners, LLC, its managing member | By: | Energy Capital Partners, LLC, its managing member | |||||
By: | By: | |||||||
Name: | Peter Labbat | Name: | Peter Labbat | |||||
Title: | Managing Member | Title: | Managing Member |
ADA CARBON SOLUTIONS, LLC | ADA CARBON SOLUTIONS (RED RIVER), LLC | |||||||
By: | ADA Carbon Solutions, LLC, its sole member | |||||||
By: | /s/ Peter O. Hansen | By: | /s/ Peter O. Hansen | |||||
Name: | Peter O. Hansen | Name: | Peter O. Hansen | |||||
Title: | General Counsel | Title: | General Counsel |
[Signature Page to Settlement Agreement Regarding
ADA-ES Indemnity Obligations]
MORTON ENVIRONMENTAL PRODUCTS, LLC | UNDERWOOD ENVIRONMENTAL PRODUCTS, LLC | |||||||
By: | ADA Carbon Solutions, LLC, its sole member | By: | ADA Carbon Solutions, LLC, its sole member | |||||
By: | /s/ Peter O. Hansen | By: | /s/ Peter O. Hansen | |||||
Name: | Peter O. Hansen | Name: | Peter O. Hansen | |||||
Title: | General Counsel | Title: | General Counsel |
CROWFOOT SUPPLY COMPANY, LLC | FIVE FORKS MINING, LLC | |||||||
By: | ADA Carbon Solutions, LLC, its sole member | By: | ADA Carbon Solutions, LLC, its sole member | |||||
By: | /s/ Peter O. Hansen | By: | /s/ Peter O. Hansen | |||||
Name: | Peter O. Hansen | Name: | Peter O. Hansen | |||||
Title: | General Counsel | Title: | General Counsel |
[Signature Page to Settlement Agreement Regarding
ADA-ES Indemnity Obligations]
Exhibit A
Amendment No. 1 to Intellectual Property License Agreement
(see attached)
A - 1
EXECUTION VERSION
AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICENSE AGREEMENT
THIS AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICENSE AGREEMENT (this Amendment ), entered into this 28th day of November, 2011, is made by and between the undersigned and amends that certain Intellectual Property License Agreement, dated as of October 1, 2008 (the License Agreement ), by and between ADA-ES, Inc. and ADA Carbon Solutions, LLC (f/k/a Crowfoot Development Company, LLC) (individually, a Party , and, collectively, the Parties ). Capitalized terms used and not otherwise defined in this Amendment will have the meanings set forth in the License Agreement, including as incorporated by reference therein.
R ECITALS
WHEREAS, the Parties have heretofore entered into the License Agreement and desire to amend the License Agreement in accordance with Section 7.3 thereof as more fully set forth herein.
A GREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Amendments . The License Agreement is hereby amended as follows:
(a) Section 1.1 of the License Agreement is hereby amended by adding the following definitions such that the new definitions are incorporated in alphabetical order:
Expanded Field means the manufacture, production or formulation of (i) activated carbon or (ii) any activated carbon/additive mixture, in the case of (i) and (ii), for any market other than the Field.
New Expanded Field IP means the Intellectual Property of Licensor and its Affiliates other than Excluded Affiliates acquired or developed during the Future Licensing Period that (i) could have been used, (ii) was used or (iii) based on any future change in circumstance (such as a technological improvement), could have been used if such change in circumstance was in existence during the Future Licensing Period, in the case of (i), (ii) and (iii), in the Expanded Field. For the avoidance of doubt, the New Expanded Field IP expressly excludes any technology of Licensor for treating coal with additives prior to or in a combustion chamber for the purpose of reducing mercury emissions or other pollutant emissions from the combustion of the coal.
(b) Section 1.1 of the License Agreement is hereby amended by amending and restating the following definitions to read in their entirety as follows:
Excluded Affiliates means any Affiliate that is (i) a natural person, (ii) an upstream Affiliate of Licensor that holds directly or indirectly less than Fifty
Percent, or (iii) a downstream Affiliate of Licensor of which Licensor holds directly or indirectly less than Fifty Percent, including Clean Coal Solutions, LLC and its subsidiaries. Fifty Percent means 50% of the total number of outstanding common or other equity interests (however denominated) of such Person, 50% of the total voting power of all outstanding equity interests of such Person which are entitled to vote in the election of directors, managers or other persons performing similar functions for and on behalf of such Person, 50% of the dividends paid and other distributions made by such Person prior to liquidation or 50% of the assets of such Person or proceeds from the sale thereof upon liquidation.
Future Licensing Period means the period commencing after the Closing and ending on November 28, 2011.
Licensed Intellectual Property means (i) the Intellectual Property of Licensor and its Affiliates as of the Closing used or held for use in connection with the Business or otherwise relating to the ADA-ES Contributed Assets and/or the Underlying Assets, including (x) the Intellectual Property listed on Schedule A attached hereto, and (y) After-Filed Patents, (ii) the New IP and (iii) the New Expanded Field IP; provided , however, that Licensed Intellectual Property shall not include any (A) Transferred Intellectual Property, or (B) any Trademarks.
None of the definitions in paragraphs (a) or (b) of this Amendment shall be relied upon by any Party to this Amendment or the License Agreement to construe or otherwise interpret any other definition in the License Agreement.
(c) Section 2.1 of the License Agreement is hereby amended and restated in its entirety to read as follows:
Effective as of the Closing, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, exclusive license to use the Licensed Intellectual Property (other than the New IP and the New Expanded Field IP) in the Field. Effective as of the Closing, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, non-exclusive license to use the Licensed Intellectual Property (other than the New IP and the New Expanded Field IP) in the Expanded Field. Effective as of the date of acquisition or development of any New IP, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, exclusive license to use such New IP in connection with the Field. Effective as of the date of acquisition or development of any New IP or New Expanded Field IP, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, non-exclusive license to use such New IP and New Expanded Field IP in connection with the Field and the Expanded Field. The foregoing licenses include the right (a) to make, have made, use, import, export, distribute, offer to sell and sell products
2
under the Licensed Intellectual Property, and (b) to publish, display, reproduce, copy, modify, improve, create derivative works of, enhance, and otherwise exploit such Licensed Intellectual Property. Licensee and its Affiliates may sublicense the Licensed Intellectual Property (x) to any Person owning a Project (each, a Project Company ) and (y) solely as is reasonably necessary in connection with (A) the receipt of goods and services by, or (B) the use of activated carbon sold or otherwise transferred by, Licensee, any of its Affiliates and/or any Project Company, but are not otherwise sublicensable. Licensor shall promptly advise Licensee in writing of any acquisition or development of any New IP. For the avoidance of doubt, nothing in this Agreement shall prohibit Licensor from using the Licensed Intellectual Property for applications or other uses that are outside the Field.
(d) Section 2.2 of the License Agreement is hereby amended by deleting the last sentence of such section and replacing it with the following:
Licensee shall have the right to commence, on or prior to November 28, 2012, upon reasonable notice to Licensor and during normal business hours, a confidential audit and inspection of the books and records of Licensor and its Affiliates (other than Excluded Affiliates) (and to make confidential copies thereof) relating to the acquisition and development of New IP, Additional IP and New Expanded Field IP, and, in connection therewith, shall be provided on a confidential basis (at Licensees option, either in electronic (to the extent available) or hard copy) (i) copies of all documentation that is in Licensors or any of its Affiliates (other than Excluded Affiliates) possession or control and constitutes such Licensed Intellectual Property and/or is reasonably necessary for the use of such Licensed Intellectual Property and (ii) tangible embodiments of such Licensed Intellectual Property (including copies of all Software included in such Licensed Intellectual Property) that is in Licensors or any of its Affiliates (other than Excluded Affiliates) possession or control; provided , however, that if any Member of Licensee is a Competitor, no such right of audit shall apply. For the avoidance of doubt, any confidential information provided to Licensee pursuant to this Section 2.2 shall be subject to Article V and may be provided to Licensees Affiliates, directors, officers, employees, agents, auditors, consultants, financial advisors, financing sources (whether actual or potential) and permitted sublicensees, in each case, subject to Article V .
(e) Section 2.3(a) of the License Agreement is hereby amended by deleting the words last sentence from the last sentence of such subsection and adding the following sentence to the end of such subsection:
For the avoidance of doubt, any confidential information provided to Licensee pursuant to this Section 2.3(a) shall be subject to Article V and may be provided to Licensees Affiliates, directors, officers, employees, agents, auditors, consultants, financial advisors, financing sources (whether actual or potential) and permitted sublicensees, in each case, subject to Article V .
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(f) Section 2.3 of the License Agreement is hereby amended by adding the following subsection (d):
(d) The Parties agree that, notwithstanding anything to the contrary in this Section 2.3 , any license to use Additional IP entered into between the Parties pursuant to this Section 2.3 will provide that the Licensee and its Affiliates may sublicense the Licensed Intellectual Property (x) to any Project Company and (y) solely as reasonably necessary in connection with (A) the receipt of goods and services by, or (B) the use of activated carbon sold or otherwise transferred by, Licensee, any of its Affiliates and/or any Project Company, but is not otherwise sublicensable.
(g) A new Section 2.4 of the License Agreement is hereby added as follows:
Section 2.4 No Alteration of Rights . The license granted with respect to the New Expanded Field IP pursuant to Section 2. 1 in no way expands, limits or otherwise alters the rights and obligations of the Parties pursuant to Section 2.3 .
(h) Section 6.1 of the License Agreement is hereby amended by deleting the heading and the first sentence of such section and replacing it with the following:
Section 6.1 Warranties and Excluded Warranties. LICENSOR WARRANTS THAT: (A) IT HAS THE RIGHT TO GRANT THE LICENSES AND RIGHTS GRANTED HEREIN AND TO ENTER INTO THIS AGREEMENT; (B) THAT DURING THE FUTURE LICENSING PERIOD IT HAS NOT SOLD, ASSIGNED OR TRANSFERRED ANY LICENSED INTELLECTUAL PROPERTY TO AN EXCLUDED AFFILIATE OTHER THAN LICENSEE; AND (C) ITS ONLY DOWNSTREAM EXCLUDED AFFILIATES DURING THE FUTURE LICENSING PERIOD ARE CLEAN COAL SOLUTIONS, LLC, CLEAN COAL SOLUTIONS SERVICES, LLC, LICENSEE AND EACH OF THEIR RESPECTIVE DIRECT AND INDIRECT SUBSIDIARIES.
The remainder of Section 6.1 is unchanged.
(i) Section 7.13 of the License Agreement is hereby amended and restated in its entirety to read as follows:
Section 7.13 Binding on Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and Licensees Affiliates and permitted sublicensees, and their respective successors and permitted assigns including, without limitation, an Excluded Affiliate if, and to the extent, it succeeds to Licensors ownership rights in or to use any Licensed Intellectual Property; .
(j) The address of Licensee in Section 7.1 of the License Agreement is hereby amended and restated in its entirety to read as follows:
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ADA Carbon Solutions, LLC
8100 SouthPark Way
Unit A-2
Littleton, Colorado 80120
Facsimile No.: (303) 734-0330
Attention: General Counsel
and concurrently to:
ADA Carbon Solutions, LLC
c/o Energy Capital Partners, LLC
51 John F. Kennedy Parkway
Suite 200
Short Hills, New Jersey 07078
Facsimile No.: (973) 671-6101
Attn: Tyler Reeder, Vice President
CC: General Counsel
with a copy (which shall not constitute notice to Licensee), to:
Fox Rothschild LLP
997 Lenox Drive
Building 3
Lawrenceville, New Jersey 08543-5231
Facsimile No.: (609) 896-1469
Attn: Jonathan R. Lagarenne
with a copy (which shall not constitute notice to Licensee), to:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022-4834
Facsimile No.: (212) 751-4864
Attn: David B. Rogers & David A. Kurzweil
(k) Article VII of the License Agreement is hereby amended by adding the following Section 7.14:
Section 7.14 Licensed Rights . The Parties acknowledge and agree that any and all rights licensed pursuant to this Agreement shall be deemed to be a license of rights to intellectual property as defined under §101 of the U.S. Bankruptcy Code and, in connection therewith, §365(n) of the U.S. Bankruptcy Code shall be implicated by any rejection or proposed rejection of this Agreement in any bankruptcy proceeding.
2. Effectiveness of this Amendment . This Amendment is effective immediately; provided , however , that if that certain Settlement Agreement executed substantially concurrently
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with this Amendment by and among certain parties to American Arbitration Association arbitration Case No. 30-192-Y-00718-09 is rendered null and void ab initio pursuant to Section 9(a) thereof, this Amendment shall be null and void ab initio , no Party shall have any rights or obligations hereunder and the License Agreement shall be deemed to have never been amended and shall remain in full force and effect.
3. Miscellaneous .
(a) Except as specifically amended by this Amendment, the terms and conditions of the License Agreement shall remain in full force and effect.
(b) This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware applicable to a contract executed and performed in such State, without giving effect to conflicts of laws principles (whether of the State of Delaware or otherwise) that would result in the application of the laws of any other state.
. (c) This Amendment may be executed in any number of counterparts, any of which may be delivered via facsimile or PDF, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one instrument.
(d) Each Party hereto agrees to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other actions as may be reasonably necessary to consummate the transactions contemplated by this Amendment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment, effective as of the date first written above.
ADA-ES, INC. | ||
By: | ||
Name: | ||
Title: |
ADA CARBON SOLUTIONS, LLC | ||
By: | ||
Name: | Peter O. Hansen | |
Title: | General Counsel |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICNESE AGREEMENT]
Exhibit B
ADA Press Release
(see attached)
B1
FOR IMMEDIATE RELEASE
ADA-ES ANNOUNCES SETTLEMENT WITH ENERGY CAPITAL PARTNERS
Company Relinquished Equity in Activated Carbon Plant and Will Make Cash Payments of $3.6 Million
to Satisfy Over $30 Million in Claimed Indemnity Obligations
Littleton, CONovember 28, 2011ADA-ES, Inc. (NASDAQ:ADES) (ADA or Company) today announced that it has entered into an Indemnity Settlement Agreement with Energy Capital Partners LP and its affiliates (ECP) and ADA Carbon Solutions, LLC (ACS) and certain of ACS affiliates (together the AC JV Entities) pursuant to which the parties have agreed to settle certain indemnity claims arising out of the litigation between Norit Americas, Inc. and Norit International N.V. f/k/a Norit N.V. (collectively Norit), ECP and the AC JV Entities in Texas and New Jersey and the related arbitration (collectively, the Norit Litigation) based on ADAs indemnity obligations under the Joint Development Agreement between ADA and ECP dated as of October 1, 2008. The primary litigation took place before an arbitration panel, which rendered its Final Award in October 2011, confirming the prior settlement agreements reached with Norit.
Pursuant to the Indemnity Settlement Agreement, ADA agreed to settle certain indemnity claims asserted against the Company for legal fees, costs and expenses arising out of the Norit Litigation in the amount of approximately $33 million and certain other losses. To settle the claims, ADA paid certain AC JV Entities a cash payment of $2.1 million on November 28, 2011, agreed to $1.5 million in additional payments, agreed to secure the payment of future royalty amounts due to Norit under the Final Award and settlement agreements with Norit through letters of credit and relinquished all of its 21.3% equity interests in the AC JV Entities which operate an activated carbon (AC) plant located in Red River, Louisiana.
In its Form 10-Q for the quarter ended September 30, 2011, ADA reported a net investment in ACS of $7.7 million as of that date and equity interest in ACS net loss for the nine months then ended totaling $5.9 million. ADA expects to record in the fourth quarter of 2011 the transactions resulting from the Indemnity Settlement Agreement for the satisfaction of the indemnity obligations and the relinquishment of its interest in ACS, which will result in other income of approximately $18.7 million.
As part of the agreement, ADA preserves the right for a 49.9% participation, on a passive basis, in AC production lines that ACS may build in the future. The Company believes that the new Federal regulations to limit mercury emissions from coal-fired boilers, which are scheduled to be made final in December of this year, will create a significant market for additional AC production lines.
Dr. Michael D. Durham, President and CEO of ADA, commented, We are pleased with the results of this settlement agreement as it allows us to focus our efforts on the exciting opportunities we have with two different Refined Coal technologies and rapidly developing new markets for our emissions control systems. In response to new and pending regulations, we are submitting a number of bids for AC injection systems and dry sorbent injection (DSI) equipment. In addition, the option to participate in future AC production plants with ACS and ECP creates an opportunity to further profit from our position in the mercury control market.
ADA-ES News Release
November 28, 2011
About ADA-ES
ADA-ES is a leader in clean coal technology and the associated specialty chemicals, serving the coal-fueled power plant industry. Our proprietary environmental technologies and specialty chemicals enable power plants to enhance existing air pollution control equipment, minimize mercury, CO 2 and other emissions, maximize capacity, and improve operating efficiencies, to meet the challenges of existing and pending emission control regulations.
With respect to mercury emissions:
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We supply activated carbon (AC) injection systems, mercury measurement instrumentation, and related services. |
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Under an exclusive development and licensing agreement with Arch Coal, we are developing and commercializing an enhanced Powder River Basin (PRB) coal with reduced emissions of mercury and other metals. |
|
Through our consolidated subsidiary, Clean Coal Solutions, LLC (CCS), we provide our patented refined coal technology, CyClean, to enhance combustion of and reduce emissions from burning PRB coals in cyclone boilers and expect to provide our patent pending refined coal technology M-45 which both reduce emissions of NOx and mercury in coal fired boilers. |
In addition, we are developing CO 2 emissions technologies under projects funded by the U.S. Department of Energy (DOE) and industry participants.
This press release includes forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, which provides a safe harbor for such statements in certain circumstances. The forward-looking statements include statements or expectations regarding the creation of additional markets for AC through Federal regulation, timing of finalization of the Federal regulations to limit mercury emissions from coal-fired boilers, expected accounting treatment of the settlement and the opportunity for future profits from participation in future AC production plants and our position in the mercury control market. Actual events or results could differ materially from those discussed in the forward-looking statements as a result of various factors, including but not limited to, changes in laws and regulations, availability of government funding, prices, economic conditions and market demand, timing and impact of new and pending laws and regulations and any legal challenges to them, the impact of competition, availability, cost of and demand for alternative energy sources and other technologies, technical, start-up and operational difficulties, inability to commercialize our technologies on favorable terms; our inability to ramp up our operations to effectively address expected growth in our target markets, availability of raw materials and equipment for our businesses; loss of key personnel, intellectual property infringement claims from third parties; and other factors that we discuss in greater detail in our filings with the Securities and Exchange Commission (SEC). You are cautioned not to place undue reliance on our forward-looking statements and to consult filings we make with the SEC for additional risks and uncertainties that may apply to our business and the ownership of our securities. Our forward-looking statements are presented as of the date made, and we disclaim any duty to update such statements unless required by law to do so.
Contacts: | ||
ADA-ES, Inc. | Investor Relations Counsel | |
Michael D. Durham, Ph.D., MBA, President & CEO | The Equity Group Inc. | |
Mark H. McKinnies, CFO | www.theequitygroup.com | |
(303)734-1727 | Devin Sullivan | |
www.adaes.com | (212)836-9608 | |
DSullivan@equityny.com |
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Exhibit 10.46
OFFICE BUILDING LEASE
RIDGELINE TECHNOLOGY CENTER, LLC,
a Colorado limited liability company
(Landlord)
and
ADA-ES, INC.,
a Colorado corporation
(Tenant)
TABLE OF CONTENTS
Page | ||||||
1. | DEFINITIONS | 1 | ||||
2. | GRANT & TERM | 3 | ||||
3. | RENT | 3 | ||||
4. | ESTIMATED DELIVERY DATE; COMPLETION OR REMODELING OF THE | |||||
PREMISES; EARLY OCCUPANCY; DELAY IN COMMENCEMENT DATE | 3 | |||||
5. | OPERATING EXPENSES | 5 | ||||
6. | SERVICES AND SIGNAGE | 12 | ||||
7. | QUIET ENJOYMENT | 16 | ||||
8. | SECURITY DEPOSIT | 16 | ||||
9. | CHARACTER OF OCCUPANCY | 17 | ||||
10. | MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD | 17 | ||||
11. | ALTERATIONS AND REPAIRS BY TENANT | 18 | ||||
12. | MECHANICS LIENS | 20 | ||||
13. | SUBLETTING AND ASSIGNMENT | 21 | ||||
14. | DAMAGE TO PROPERTY | 23 | ||||
15. | INDEMNITY | 24 | ||||
16. | SURRENDER AND NOTICE | 25 | ||||
17. | INSURANCE | 25 | ||||
18. | CASUALTY AND RESTORATION OF PREMISES | 26 | ||||
19. | CONDEMNATION | 28 | ||||
20. | DEFAULT BY TENANT | 28 | ||||
21. | DEFAULT BY LANDLORD | 32 | ||||
22. | SUBORDINATION AND ATTORNMENT | 33 | ||||
23. | HOLDING OVER: TENANCY MONTH-TO-MONTH | 34 | ||||
24. | PAYMENTS AFTER TERMINATION | 34 | ||||
25. | ESTOPPEL/STATEMENT OF PERFORMANCE | 34 | ||||
26. | HAZARDOUS SUBSTANCES | 35 | ||||
27. | MISCELLANEOUS | 36 | ||||
28. | AUTHORITIES FOR ACTION AND NOTICE | 40 | ||||
29. | RULES AND REGULATIONS | 41 | ||||
30. | BROKERAGE | 41 | ||||
31. | SUBSTITUTE PREMISES | 41 | ||||
32. | TIME OF ESSENCE | 41 | ||||
33. | PARKING | 41 | ||||
34. | EXHIBITS | 41 | ||||
35. | LIMITED LIABILITY OF LANDLORD | 41 | ||||
36. | FINANCIAL INFORMATION | 42 | ||||
37. | OFAC | 42 | ||||
38. | ROOF EQUIPMENT | 42 | ||||
39. | BACK UP GENERATOR | 43 | ||||
40. | LANDLORD REPRESENTATIONS | 44 | ||||
41. | EXPANSION OPTION | 45 | ||||
42. | RIGHT OF FIRST REFUSAL | 46 |
43. | TENANTS LIMITED OPTION TO CONTRACT | 47 | ||||
44. | EXTENSION OPTION | 48 |
EXHIBIT A |
Premises Depiction | A-1 | ||||
EXHIBIT B |
Legal Description of Real Property | B-1 | ||||
EXHIBIT C |
Work Letter | C-1 | ||||
EXHIBIT D |
Parking License | D-1 | ||||
EXHIBIT E |
Commencement Date Certificate | E-1 | ||||
EXHIBIT F |
Rules and Regulations | F-1 | ||||
EXHIBIT F |
Form of Estoppel Certificate | G-1 |
OFFICE BUILDING LEASE
THIS OFFICE BUILDING LEASE (Lease) is made as of the day of October, 2011 (the Effective Date), between RIDGELINE TECHNOLOGY CENTER, LLC, a Colorado limited liability company (Landlord), and ADA-ES, INC., a Colorado corporation (Tenant).
WITNESSETH:
1. DEFINITIONS.
In addition to other terms which are defined elsewhere in this Lease, the capitalized terms used below shall have the meanings set forth below whenever used in this Lease.
A. Base Rent shall mean annual rental for each year of the Primary Lease Term in the amounts set forth in the schedule below payable in equal monthly installments as set forth in the schedule below.
Time Period |
Annual Rent | Monthly Rent |
Rent Per Square
Foot |
|||||||||
03/01/12-2/28-13* |
$ | 328,801.00 | * | $ | 27,400.08 | * | $ | 11.00 | ||||
03/01/13-2/28-14* |
$ | 337,170.48 | * | $ | 28,097.54 | * | $ | 11.28 | ||||
03/01/14-2/28-15 |
$ | 345,539.96 | $ | 28,795.00 | $ | 11.56 | ||||||
03/01/15-2/29-16 |
$ | 354,208.35 | $ | 29,517.36 | $ | 11.85 | ||||||
03/01/16-2/28-17 |
$ | 362,876.74 | $ | 30,239.73 | $ | 12.14 | ||||||
03/01/17-2/28-18 |
$ | 372,142.95 | $ | 31,011.91 | $ | 12.45 | ||||||
03/01/18-2/28-19 |
$ | 381,409.16 | $ | 31,784.10 | $ | 12.76 |
* | Landlord hereby abates (a) Base Rent and Additional Rent for the Premises for Months 1-6 of the Primary Lease Term, and (b) Base Rent (but not Additional Rent) for the Premises from Months 7-19 of the Primary Lease Term. In the event Tenant defaults under this Lease beyond any applicable period of notice and cure, such abatement shall cease as of the date of such default and Tenant shall immediately pay to Landlord all sums previously abated hereunder. |
B. Building shall mean the building known as Building One located at 9135 Ridgeline Boulevard, Highlands Ranch, CO 80129.
C. Building Complex shall mean the Building, the Real Property, plazas, Common Areas, and other areas and appurtenances.
D. Common Areas shall mean portions of the Building and Building Complex which are made available on a non-exclusive basis for general use in common of tenants, their employees, agents and invitees and which are not included as part of the Rentable Area or the Premises. Landlord shall have the right from time to time to change the location or character of and to make alterations of, additions to or removals from the Common Areas, and to repair and reconstruct the Common Areas so long as Landlord does not materially and adversely alter Tenants access to the Building Complex or the character and use of the Building or the Building Complex.
E. Estimated Operating Expenses shall mean an estimate of the Operating Expenses specified in Section 5 below, to be paid by Tenant in accordance with the provisions hereof, and which estimate is equal to $7.29 per annum for the calendar year 2012 multiplied by the total number of square feet of Rentable Area.
F. Landlords Notice Address shall mean 6380 S. Fiddlers Green Circle, Suite 400, Greenwood Village, CO 80111, Attention: Property Manager, or such other address as Landlord may from time to time designate.
G. Lease Year shall mean each twelve 12- month period beginning with the date the Primary Lease Term commences, or any anniversary thereof, and ending on the preceding date one year later.
H. Premises shall mean those certain premises consisting of the entire 2 nd floor of the Building known as Suite 200 and containing approximately 29,891 rentable square feet of space, excluding Common Areas, as more particularly depicted on Exhibit A .
I. Primary Lease Term shall mean a term of 84 months.
J. Real Property shall mean the real property described on Exhibit B .
K. Rentable Area shall mean approximately 136,493 rentable square feet of space which is all the rentable space in the Building Complex and excluding Common Areas. If there is a significant change in aggregate Rentable Area as a result of an addition to the Building Complex, partial destruction thereof, modification to the design of any building in the Building Complex, or similar cause which causes a reduction or increase thereto on a permanent basis, Landlord shall make such adjustment in the computation as shall be necessary to provide for any such change. Tenant agrees that the Rentable Area may be recalculated in the event that any building in the Building Complex is remeasured.
L. Security Deposit shall mean the sum of $45,558.87, subject to adjustment in accordance with Section 45 below.
M. Tenants Notice Address shall mean the Premises.
N. Tenants Permitted Use shall mean general business office use, and for no other purpose. Landlord agrees that all tenants in the Building shall be bound by similar permitted use restrictions.
O. Tenants Pro Rata Share shall mean 21.90%, calculated by dividing the rentable square feet comprising the Premises by the Rentable Area. If at any time during the Primary Lease Term, or any extensions thereof, any space is added to or subtracted from the Premises, Tenants Pro Rata Share shall be recomputed by dividing the total rentable square footage of space then being leased by Tenant (including any additional space) by the Rentable Area and the resulting percentage shall become Tenants Pro Rata Share. In the event that
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Tenants Pro Rata Share shall increase due to unilateral actions by Landlord such that it is more than 23%, Tenant shall be permitted to terminate this Lease without penalty, by providing Landlord with thirty (30) days written notice, and upon such termination, both parties shall have no further rights or liabilities hereunder, except for those which expressly survive termination of this Lease.
2. GRANT & TERM.
A. In consideration of the payment of rent and the keeping and performance of the covenants and agreements by Tenant, as hereinafter set forth, Landlord hereby leases and demises unto Tenant the Premises, together with a non-exclusive right, subject to the provisions hereof, to use all appurtenances thereto, including, but not limited to, any plazas, easement areas, Common Areas (including parking areas), or other areas on the Real Property or in the Building Complex designated by Landlord for the exclusive or non-exclusive use of the tenants of the Building or Building Complex. No easement or license for light, view, or air is created by this Lease.
B. The Primary Lease Term shall commence at 9:00 a.m. (Denver, Colorado time) on March 1, 2012 (Commencement Date) and shall terminate at 5:00 p.m. (Denver, Colorado time) on February 28, 2019 (Termination Date).
3. RENT.
Tenant shall begin to pay the Base Rent on the Commencement Date (subject to the abatement described herein), and shall continue to pay Base Rent on the first day of each month thereafter during the term hereof in accordance with the rent schedule set forth in the definition of Base Rent. All rents shall be paid in advance, without notice, set off (except as provided herein), abatement (except the abatement set forth in Section 1.A. above), counterclaim, deduction or diminution, at Landlords Notice Address, or at such place as Landlord from time to time designates in writing. In addition, Tenant shall pay to Landlord Tenants Pro Rata Share of Operating Expenses as provided herein and such other charges as are required by the terms of this Lease to be paid by Tenant which shall be referred to herein as Additional Rent. Landlord shall have the same rights as to the Additional Rent as it has in the payment of Base Rent. Tenant shall pay the monthly installment of Base Rent for month 7 of the Primary Lease Term on the Commencement Date. The Base Rent, Additional Rent and all other amounts due to be paid under this Lease may be referred to herein collectively as Rent.
4. ESTIMATED DELIVERY DATE; COMPLETION OR REMODELING OF THE PREMISES; EARLY OCCUPANCY; DELAY IN COMMENCEMENT DATE.
A. Landlord estimates that it will deliver possession of the Premises to Tenant promptly following the Effective Date, and the date on which Landlord actually delivers possession of the Premises to Tenant shall be referred to herein as the Delivery Date. Promptly following the Delivery Date, Tenant shall perform its obligations under the Work Letter attached hereto as Exhibit C (Work Letter) with respect to the design and construction of the Tenants Work (as defined in the Work Letter).
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B. Landlord agrees to deliver the Premises in as-is and where-is condition with no obligation to alter, remodel, improve, repair or decorate any part of the Premises, except as may be expressly set forth in this Lease and the Work Letter; provided, however, Landlord shall be responsible to deliver the Building structural systems; roof system; plumbing systems (to include all connections and distribution of plumbing to internal appliances); window systems; window covering; elevator systems; restrooms; the base building HVAC mechanical systems; the base building electrical systems (which shall be no less than five watts per square foot); the fire and life safety systems; the floor and the ceiling free from latent and structural defects, in good and proper working order and in full compliance with all Applicable Laws (as defined in Section 9 below) which govern the use and occupancy of the Building Complex. Tenant agrees to perform Tenants Work at Tenants cost, subject to the Tenant Improvement Allowance described in the Work Letter and in accordance with the provisions contained in the Work Letter. Landlord agrees that no oversight or management fee shall be charged by Landlord in connection with Tenants construction of Tenants Work, and Landlord shall not charge Tenant for any parking, hoisting charges, electrical services, water or use of the freight elevators during Tenants construction of Tenants Work prior to the Commencement Date. In addition, Landlord agrees to provide adequate construction parking spaces for use by Tenant and its agents and contractors during construction of the Tenants Work.
C. If Tenants Work is completed prior to the Commencement Date, Landlord agrees that Tenant may occupy the Premises for a period commencing on the date of completion of Tenants Work and continuing until the Commencement Date (the Move-In Period), for the sole purpose of installation of Tenants furniture, fixtures, phones, cabling and equipment, and operating Tenants business therein. During the Move-In Period, the obligation to pay Base Rent shall be abated, but all other terms of this Lease (including but not limited to the obligation to carry the insurance required in this Lease and to pay Tenants Pro Rata Share of Operating Expenses) shall be in effect during such Move-In Period. Any entry upon or occupancy of the Premises by Tenant prior to the Commencement Date, even though Base Rent free, shall be at Tenants sole risk and shall in all respects be the same as that of the Tenant under this Lease. Landlord shall not be responsible nor have any liability whatsoever at any time for loss or damage to the furniture, fixtures, phone, cabling or equipment or other property of Tenant installed or placed by Tenant on the Premises, unless such loss or damage is caused by the gross negligence or willful misconduct of Landlord or its employees, agents or contractors. On the Commencement Date, Tenant acknowledges and agrees that it has been given the opportunity to fully investigate the condition of the Premises and has performed such investigation (or waived its right to so do) and is fully familiar with the physical condition of the Premises and every part thereof and Tenant accepts the same in its as is condition. Tenants taking possession of the Premises shall be conclusive evidence against Tenant that the Premises as of the date of taking possession were in the condition agreed upon between Landlord and Tenant.
D. Notwithstanding any provision to the contrary contained herein, if Landlord fails to deliver the Premises to Tenant on or before October 31, 2011, due to Landlord delays (but not Tenant delays), the Commencement Date and Tenants obligation to pay Base Rent and Additional Rent (subject to the abatement provided herein) shall be delayed on a day-for-day basis for each day that Landlord so fails to deliver the Premises; provided, however, this Lease and all of the covenants, conditions and agreements herein contained other than Tenants
4
obligation to pay Base Rent and Additional Rent as provided herein shall be in full force and effect. The delay of the Commencement Date and Tenants obligation to pay Base Rent and Additional Rent shall be in full satisfaction of any claims Tenant might otherwise have as a result of such delay; provided, however, in the event Landlord fails to deliver the Premises to Tenant on or before December 31, 2011, Tenant shall have the right to terminate this Lease without penalty by delivering written notice thereof to Landlord, and upon such termination, Tenant shall be entitled to recover all amounts paid to Landlord under this Lease prior to the date of termination. If in accordance with the foregoing provisions, the Commencement Date would occur on other than the first day of a calendar month, the Primary Lease Term shall be measured from the first day of the first calendar month immediately after the Commencement Date. For any partial month period from the Commencement Date until the commencement of the Primary Lease Term, all terms and provisions set forth in this Lease, including, but not limited to, Tenants obligations to pay Base Rent (which shall be calculated based upon the amount of Base Rent payable in the first month of the Primary Lease Term and pro-rated for such partial month) and Additional Rent shall commence on the Commencement Date. In order to place in writing the exact dates of commencement and termination of the Primary Lease Term, Landlord may deliver to Tenant a commencement date certificate substantially in the form of Commencement Date Certificate attached hereto as Exhibit E and incorporated herein by this reference, which Tenant shall promptly execute and return to Landlord within 15 days after receipt of the same. If Tenant fails to return the Commencement Date Certificate to Landlord within such 15-day period, Tenant shall conclusively be deemed to have approved the contents of the Commencement Date Certificate, including the date specified therein.
5. OPERATING EXPENSES.
A. Operating Expenses shall mean all operating expenses of any kind or nature which, according to generally acceptable accounting principles consistently applied, are properly chargeable to the ownership, operation and maintenance (which excludes structural repairs and roof replacement (but not ordinary repairs or maintenance)) of the Building and the Building Complex as reasonably determined by Landlord or Landlords Accountants (as defined in paragraph K below) and which Landlord has an obligation to actively manage, control and limit in accordance with this lease. Landlords obligation to actively manage Operating Expenses shall include, but not be limited to, (i) a requirement to rebid or protest any work, fees, taxes or assessments included as Operating Expenses which increase by more than 3% per annum and (ii) an obligation to investigate if one of the other tenants in the Building or Building Complex is excessively using common services such as but not limited to, electricity, and require such tenant to separately monitor or meter such usage. Operating Expenses shall include, but not be limited to:
(i) All taxes and assessments (whether general, special, ordinary, extraordinary, foreseen or unforeseen) assessed, levied or otherwise imposed against the Premises, Building Complex or any personal property owned by Landlord (which is permanently installed and/or located at the Building Complex) related to the foregoing by any governmental or quasi-governmental authority, including, without limitation, any taxes, assessments, charges, surcharges, or service or other fees of a nature not presently in effect which shall hereafter be levied on the Premises, Building Complex, or such personal property of Landlord related to the foregoing as a result of the use, ownership, or operation of the Building Complex or for any
5
other reason, whether in lieu of or in addition to, any current taxes and assessments. In no event shall the term taxes and assessments, as used herein, include any net federal or state income taxes levied or assessed on Landlord, unless such taxes are a specific substitute for taxes or assessments included herein. The term taxes and assessments shall, however, include, to the extent related to or levied specifically against the Building Complex, any (a) ad valorem taxes related to the Premises, Building Complex, or personal property of Landlord as specified above related to the foregoing, (b), (c) commercially reasonable cost or expense incurred by Landlord for tax consultants and in contesting the amount or validity of any such taxes or assessments, (d) so-called special assessments, (e) license taxes, (f) business license fees, (g) business license taxes, and (h) imposed by any authority having the direct power to tax, including any city, county, state or federal government, or any school, agricultural, lighting, water, drainage or other improvement or mall district or special district thereof, against the Premises, the Building Complex, any personal property of Landlord as specified above related to the foregoing or any legal or equitable interest of Landlord therein. For the purposes of this Lease, any special assessments shall be deemed payable, and therefore included in the calculation of Tenants Pro Rata Share of Operating Expenses, in such number of installments as permitted by law, whether or not actually so paid and shall include any applicable interest on such installments.
Notwithstanding anything to the contrary herein, Tenant shall pay before delinquency any and all taxes, assessments, license taxes and other charges levied, assessed or imposed and which become payable by Tenant during the Primary Lease Term (and any partial month occurring before the Primary Lease Term) and any extension thereof upon Tenants operations at, occupancy of, or conduct of business at the Premises or upon equipment, furniture, appliances, trade fixtures and other personal property of any kind installed or located at the Premises. If Tenant shall install or cause Landlord to install special tenant improvements such as, but not limited to, private elevators, escalators, interior staircases or other fixtures and fittings which caused an increase in the assessed value of the Building, then Tenant shall also pay as Additional Rent all of the taxes reasonably allocated to such extraordinary improvements.
(ii) Costs of supplies, including, but not limited to, the cost of revamping and replacing ballast in all Building standard tenant lighting as the same may be required from time to time;
(iii) Costs incurred in connection with obtaining and providing energy for the Building and the Building Complex, including, but not limited to, costs of propane, butane, natural gas, steam, electricity, solar energy and fuel oils, coal or any other energy sources;
(iv) Costs of water and sanitary and storm drainage services;
(v) Cost of janitorial and security services;
(vi) Costs of general maintenance and repairs, including costs under HVAC and other mechanical maintenance contracts; and repairs and replacement of parts used in connection with such maintenance and repair work;
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(vii) Costs of maintenance to keep landscaping in substantially the same condition as it exists on the Commencement Date;
(viii) Insurance premiums, including fire and all-risk or multi-peril coverage, together with loss of rent endorsement, if applicable; the part of any claim required to be paid under the deductible portion of any insurance policy carried by Landlord in connection with the Building Complex (where Landlord is unable to obtain insurance without such deductible from a major insurance carrier at reasonable rates); public liability insurance; and any other insurance carried by Landlord on the Building Complex or any component parts thereof (all such insurance shall be in such amounts as may be required by any Mortgagee (as defined in Section 21 hereof) or as Landlord may reasonably determine);
(ix) The Buildings pro-rata share of labor costs, including wages and other payments, costs to Landlord of workmens compensation and disability insurance, payroll taxes and welfare fringe benefits for those of Landlords laborers that are exclusively providing labor for the Building Complex;
(x) Commercially reasonable building management fees, commensurate with management fees charged for similarly situated Building Complexes in the same geographic area, that are related to the management of the Building Complex only;
(xi) Reasonable legal, accounting, inspection, and other consultation fees to the extent such fees are directly related to issues associated with the Building Complex (including, without limitation, fees charged by consultants retained by Landlord for services that are designed to produce a reduction in Operating Expenses or to reasonably improve the operation, maintenance or state of repair of the Building and/or Building Complex);
(xii) The costs of capital improvements, structural repairs and replacements made in or to the Building or the Building Complex which are designed to reduce Operating Expenses (but only to the extent of the actual reduction) and those made to keep the Building in compliance with Applicable Laws enacted subsequent to the Effective Date and applicable from time to time (Included Capital Items), which costs shall be amortized at a market rate of return over the useful life of the applicable improvement, repair or replacement (as determined in accordance with generally accepted accounting principles);
(xiii) Reasonable costs incurred by Landlords Accountant in engaging experts or other consultants to assist them in making the computations required hereunder;
(xiv) Costs incurred by Landlord to operate, maintain, and repair dressing room facilities and/or fitness facilities, if any;
(xv) Costs incurred by Landlord from easement agreements benefiting or burdening the Building Complex, or incurred in connection with any other easement, lien or encumbrance, or claims thereof, which are shown by the public records for the Real Property and/or the Building Complex; and
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B. Operating Expenses shall not include:
(i) costs of work, including painting and decorating and tenant change work which Landlord performs for any tenant or any tenants space in the Building Complex;
(ii) costs of repairs or other work occasioned by fire, wind storm or other insured casualty to the extent of insurance proceeds received;
(iii) leasing commissions, advertising expenses, and other costs incurred in leasing space in the Building Complex;
(iv) costs of repairs or rebuilding necessitated by condemnation to the extent of condemnation proceeds received;
(v) costs of capital improvements other than Included Capital Items;
(vi) any interest on borrowed money or debt amortization, penalties and charges incurred as a result of Landlords late payment under such mortgages, deeds of trust or ground Leases;
(vii) depreciation on the Building and/or Building Complex (except on any Included Capital Items determined in accordance with generally accepted accounting principles);
(viii) any cost or expenditure for which Landlord is reimbursed (except by Additional Rent), including, without limitation, by insurance or condemnation proceeds, or amounts specifically billed to or payable by an individual tenant in the Building (other than as part of that tenants pro rata share of Operating Expenses) or otherwise;
(ix) fines, penalties and interest incurred due to violations by Landlord of any Applicable Law, or any costs incurred by Landlord to keep the Building or Building Complex in compliance with Applicable Laws that are in effect as of the Effective Date;
(x) costs or expenses in connection with negotiations or disputes with present or prospective tenants or occupants of the Building or Building Complex or associated with the enforcement of any other leases or defense of Landlords title to or interest in the Building or Building Complex or any part thereof;
(xi) costs to remedy defects (latent or otherwise) in the original design and/or construction of the Building or Building Complex or to comply with Applicable Laws (including but not limited to The Americans With Disabilities Act of 1990 (ADA) and any amendments thereto) in effect prior to the Effective Date;
(xii) reserves for replacements and/or repairs;
(xiii) charitable or political contributions;
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(xiv) income and franchise taxes of Landlord;
(xv) Operating Expenses which are the individual responsibility of Tenant or of other tenants;
(xvi) costs associated with the operation of the business of the legal entity which constitutes Landlord or persons or entities which constitute or are affiliated with Landlord or its partners or members, as such costs are separate and apart from costs associated with the operation of the Property or any part thereof, including legal entity formation, internal entity accounting, and internal legal matters;
(xvii) expenses for which Landlord has received a credit, refund or rebate from any party (other than by virtue of a tenant paying its pro rata share of Operating Expenses );
(xviii) costs or expenses incurred that are subject to reimbursement by tenants (including, without limitation, Tenant) or third parties (including, without limitation, insurers), including but not limited to Landlords cost of electricity and other services sold separately to tenants for which Landlord is entitled to be reimbursed by such tenants as an additional charge over and above the base rent and Operating Costs;
(xix) expenses in connection with services or other benefits of a type which Tenant is not entitled to receive under the Lease but which are provided to another tenant or occupant or which are provided to one or more, but not all, tenants of the Building Complex;
(xx) overhead and profit paid to subsidiaries or affiliates of Landlord for services on or to the Building Complex and/or Premises, to the extent only that the costs of such services exceed competitive costs for such services were they not so rendered by a subsidiary or affiliate; and
(xxi) costs or allocations that cannot be documented by Landlord, property manager, or their representatives.
C. Tenant shall pay to Landlord Tenants Pro Rata Share of Operating Expenses during each calendar year of the Primary Lease Term and any extension thereof. Beginning with the first month of the Primary Lease Term (or any partial month occurring before the commencement of the Primary Lease Term as determined under Section 4.C.) and continuing each month thereafter during the Primary Lease Term, or any extension thereof, Tenant shall pay to Landlord, at the same time as the Base Rent is paid, an amount equal to one-twelfth (1/12) of Landlords estimate (as reasonably determined by Landlords Accountants) of Tenants Pro Rata Share of the Operating Expenses for the particular calendar year, with a final adjustment to be made between the parties at a later date for said calendar year.
D. By May 1, of each calendar year during the Primary Lease Term, or any extension thereof, including the first calendar year, Landlord shall submit to Tenant a statement prepared by a representative of Landlord setting forth the exact amount of Tenants Pro Rata Share of the Operating Expenses for the calendar year just completed. Said statement, shall also set forth the difference, if any, between the actual amount of Tenants Pro Rata Share of the
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Operating Expenses for such calendar year just completed and the actual amount of Tenants Pro Rata Share of such Operating Expenses paid by Tenant based on the estimate previously provided by Landlord for such particular calendar year. Each such statement shall also set forth the projected increase, if any, in Operating Expenses for the new calendar year over the Operating Expenses for the prior year and the corresponding increase or decrease in Tenants Pro Rata Share of Operating Expenses for such new calendar year above or below the amount paid by Tenant for the immediately preceding calendar year computed in accordance with the foregoing provisions. To the extent that Tenants Pro Rata Share of Operating Expenses for the period covered by such statement is more than the actual amount paid by Tenant during the calendar year just completed, Tenant shall pay to Landlord the difference in immediately available funds within 30 days following receipt by Tenant of such statement from Landlord. If Tenants Pro Rata Share of Operating Expenses for the period covered by such statement is less than the actual amount paid by Tenant during the calendar year just completed, Tenant shall receive a credit on the next months Rent owing hereunder or, if the Lease Term has expired, Landlord shall refund such amount to Tenant within 30 days of delivery of the statement to Tenant. Until Tenant receives such statement, Tenants Pro Rata Share of Operating Expenses for the new calendar year shall continue to be paid at the rate paid for the particular calendar year just completed, but Tenant shall commence payment to Landlord of the monthly installments of Tenants Pro Rata Share of Operating Expenses on the basis of such statement beginning on the first day of the month following the month in which Tenant receives such statement. Moreover, Tenant shall pay to Landlord or deduct from the Rent, as the case may be, on the date required for the first payment of Rent, as adjusted, the difference, if any, between the monthly installments of Tenants Pro Rata Share of Operating Expenses so adjusted for the new calendar year and the monthly installments of Tenants Pro Rata Share of Operating Expenses actually paid during the new calendar year.
E. In addition to the above, if, during any particular calendar year, there is a change in the information on which Landlords Accountants based the estimate upon which Tenant is then making its estimated payments of Tenants Pro Rata Share of Operating Expenses so that such estimate furnished to Tenant is no longer accurate, Landlord shall be permitted to revise such estimate by notifying Tenant and there shall be such adjustments made to Tenants Pro Rata Share of Operating Expenses on the first day of the month following the serving of such revised estimate as shall be necessary by either increasing or decreasing, as the case may be, the amount of Tenants Pro Rata Share of Operating Expenses then being paid by Tenant for the balance of the calendar year (but in no event shall any decrease result in a reduction of the Rent below the Base Rent as adjusted for such calendar year).
F. Intentionally deleted.
G. If the calendar year is not concurrent with the Lease Year, Landlord shall, at any time during the Primary Lease Term, or any extension thereof, make all adjustments provided for in this Section 5 with an appropriate proration for the Lease Year in which the Primary Lease Term or any extension begins or ends. In addition, Landlord may elect at any time during the Primary Lease Term or any extensions thereof to make all adjustments provided for in this Section 5 on a Fiscal Year basis with an appropriate proration for the calendar year in which such conversion is made and in which the term ends and all references in this Lease to calendar year shall thereafter be deemed to refer to Fiscal Year.
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H. Landlords and Tenants responsibilities with respect to the Operating Expense adjustment described herein shall survive the expiration or early termination of this Lease.
I. Landlord shall maintain books and records reflecting the Operating Expenses in accordance with sound accounting and management practices. Tenant and its certified public accountant or other qualified professional consultant retained by Tenant and approved by Landlord in its reasonable discretion shall have the right to inspect Landlords records at Landlords office upon at least 72 hours prior notice during Ordinary Business Hours (as defined in Section 6.A. below) during the 60 days following the delivery of the statement described in paragraph D. above. If Tenant shall dispute any amount set forth in the statement, Tenant shall give Landlord written notice of such objection within such 60-day period. If Tenant does not give Landlord such written notice within such time, Tenant shall have waived its right to dispute the amounts so determined. If Tenant timely objects, Tenant shall have the right to engage its own certified public accountants (Tenants Accountants) for the purpose of auditing Landlords books and records and verifying the accuracy of the amounts set forth in the statement, which audit must be completed within six months of Tenants receipt of the statement for the prior calendar year. Tenant shall not hire Tenants Accountants on a contingency fee basis. All costs incurred by Tenant in obtaining Tenants Accountants shall be paid for by Tenant unless Tenants Accountants disclose an error, acknowledged by Landlords Accountants (or found to have occurred in a judicial action), of more than five percent (5%) in the computation of the total amount of Operating Expenses as set forth in the statement which is challenged, in which event Landlord shall pay the reasonable costs incurred by Tenant in obtaining such audit. Notwithstanding the pendency of any dispute over any particular statement, Tenant shall continue to pay Landlord the amount of the adjusted monthly installments of Tenants Pro Rata Share of Operating Expenses then in effect pursuant to Landlords most recent estimate until the adjustment has been determined to be incorrect as aforesaid. If it shall be determined that Tenant overpaid any portion of the Operating Expenses, then Landlord shall promptly credit such overpayment credit against the next months Rent owing hereunder or, if the Lease Term has expired, Landlord shall refund such amount to Tenant within 30 days of final determination including interest on such refunded amount at the rate of eight percent (8%) per annum. Delay by Landlord or Landlords Accountants in submitting any statement contemplated herein for any calendar year shall not affect the provisions of this Section 5 or constitute a waiver of Landlords rights as set forth herein for said calendar year or any subsequent calendar years during the Primary Lease Term and any extensions thereof. Tenant acknowledges and agrees that any records reviewed under this Section 5 constitute confidential information of Landlord, which shall not be disclosed to anyone other than Tenants Accountants, Tenants attorneys and other consultants and the principals of Tenant who receive the results of the review. In the event any error is discovered which was also applicable to prior years in the Lease Term, appropriate adjustments to the prior years shall also be made.
J. Notwithstanding anything contained herein to the contrary, if any lease entered into by Landlord with any tenant in the Building is on a so-called net basis, or provides for a separate basis of computation for any Operating Expenses with respect to its leased premises, then, to the extent that Landlords Accountants reasonably determine that an adjustment should be made in making the computations herein provided for, Landlords Accountants, shall be permitted upon written notice to Tenant, together with support
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documentation to modify the computation of Rentable Area and Operating Expenses for a particular calendar year in order to eliminate or otherwise modify any such expenses which are paid for in whole or in part by such tenant; provided, however, in no event will such modification increase the amount Tenant is obligated to pay hereunder. Furthermore, in making any computations contemplated hereby, Landlords Accountants shall also be permitted to make such adjustments and modifications to the provisions of this Section 5 as shall be reasonably necessary to achieve the intention of the parties hereto.
K. Landlords Accountants shall mean that individual or firm employed by Landlord from time to time to keep the books and records for the Building and the Building Complex and/or to prepare the federal and state income tax returns for Landlord with respect to the Building and the Building Complex, all of which books and records shall be certified to by an appropriate representative of Landlord.
6. SERVICES AND SIGNAGE.
A. Subject to the provisions of Section 6.D. below, Landlord, without charge, except as provided herein, and in accordance with standards from time to time prevailing for the Building, agrees to: (i) furnish running water and electricity at those points of supply for general use of tenants of the Building; (ii) furnish to public areas of the Building heated or cooled air (as applicable), electrical current to a minimum standard of not less than five watts per square foot of the Premises, janitorial services, and maintenance as required by this Lease; (iii) furnish, during Ordinary Business Hours (as hereinafter defined), such heated or cooled air to the Premises as may, in the judgment of Landlord, be reasonably required for the comfortable use and occupancy of the Premises (which the parties agree shall be 72°F +/- 2°F), provided that (a) the recommendations of Landlords engineer regarding occupancy and use of the Premises are complied with by Tenant, (b) with respect to cooled air, provided the same is used only for standard office use, and (c) Tenant hereby acknowledges that on certain days Tenant may experience discomfort with the heating and air conditioning cycle, and Landlord shall have no responsibility or liability therefor, unless as a result of the negligence or willful misconduct of Landlord; (iv) provide, during Ordinary Business Hours, the general use of passenger elevators for ingress and egress to and from the Premises (except in the case of emergencies or repair); and (v) provide janitorial services for the Premises to the extent of the Building standard tenant finish work items contained therein (including such window washing of the outside of exterior windows as may, in the judgment of Landlord, be reasonably required), but unless and until the Building standard changes, such janitorial services shall be provided after Ordinary Business Hours on Monday through Friday only, except for Legal Holidays. Ordinary Business Hours, as used herein, shall mean and refer to 8:00 a.m. to 6:00 p.m. Monday through Friday, and 8:00 a.m. to 12:00 p.m. on Saturdays, Sundays and Legal Holidays excepted. Legal Holidays, as used herein, shall mean New Years Day, Martin Luther King Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and such other national holidays as may be hereafter established by the United States Government. Landlord represents that the Building systems (including HVAC, electrical and plumbing) of the Effective Date are in good working order and condition.
B. Excess Usage shall be defined as any service usage which exceeds five watts per square foot and which is incurred (i) during other than Ordinary Business Hours; (ii)
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for Special Equipment; and (iii) for standard HVAC services during other than Ordinary Business Hours, except that it shall not include Tenants use of electrical outlets and lights, except after 10:00 p.m. Special Equipment, as used herein, shall mean (a) any equipment consuming more than 0.5 kilowatts at rated capacity; (b) any equipment requiring a voltage other than 120 volts, single phase; (c) equipment that requires the use of self-contained HVAC units, special ventilation or separate generators; and (d) equipment other than current everyday office equipment, both in size of the equipment and number of units utilized within the Premises, for office tenants in buildings of comparable age and quality in the South Metro Area of Denver, Colorado. Tenant shall reimburse Landlord for reasonable costs incurred by Landlord in providing services for Excess Usage, which costs are subject to change from time to time. Such costs will include Landlords costs for materials, additional wear and tear on equipment, utilities and labor (including fringe and overhead costs). Computation of Landlords cost for providing such services will be made by Landlords engineer. Tenant shall also reimburse Landlord for all costs of supplementing the Building HVAC System and/or extending or supplementing any electrical service, as Landlord may determine is reasonably necessary, as a result of Tenants Excess Usage or operation of the Premises for extended hours on an ongoing basis, Tenant shall notify Landlord of such intended installation or use and obtain Landlords consent therefor. In addition to the foregoing, Landlord, at its option or upon written request of Tenant, may install, at Tenants sole cost and expense a check meter and/or flow meter to assist in determining the cost to Landlord of Tenants Excess Usage. In the event the meter readings determine that Tenant does not have Excess Usage, Landlord shall reimburse Tenant for the cost of the meter. If Tenant desires electrical current and/or heated or cooled air to the Premises during periods other than Ordinary Business Hours, Landlord will use reasonable efforts to supply the same, but at the expense of Tenant at Landlords actual cost thereof with no additional markup. Not less than 12 hours prior notice shall be given by Tenant to Landlord of Tenants desire for such services. It is also understood and agreed that Tenant shall pay the cost of replacing light bulbs and/or tubes and ballast used in all lighting in the Premises other than Building standard lighting.
C. If Tenant requires janitorial services other than those provided to other tenants of the Building generally, Tenant shall separately pay for such services monthly within 30 days of billing by Landlord, or Tenant shall, at Landlords option, separately contract for such services with the same company furnishing janitorial services to Landlord.
D. Tenant agrees that Landlord shall not be liable for failure to supply any such heating, air conditioning, elevator, electrical, janitorial, lighting or other services (the Services) for the reasons set forth in this Section 6.D., or during any period Landlord is required to reduce or curtail such Services pursuant to any Applicable Laws, it being understood that Landlord may discontinue, reduce, or curtail such Services, or any of them (either temporarily or permanently), at such times as it may be necessary by reason of accident, emergency repairs, public utility strikes, lockouts, riots, acts of God, application of Applicable Laws or due to any other happenings beyond the reasonable control of Landlord. Except in the event of an Emergency (as hereinafter defined), in which case Landlord agrees to give Tenant as much notice as is reasonably possible, in the event Landlord intends to make repairs or improvements that will disrupt any Services, Landlord shall use commercially reasonable efforts to provide Tenant with 36 hours prior notice of such disruption. In the event of any interruption, reduction, or discontinuance of Landlords Services (either temporary or permanent) for the reasons specified herein, Landlord shall not be liable for damages to person or property as a
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result thereof nor shall the occurrence of any such event in any way be construed as an eviction of Tenant; or cause or permit an abatement, reduction or setoff of Rent (except Operating Expenses not actually incurred because such Services were not being provided); or operate to release Tenant from any of Tenants obligations hereunder, except that in the event of any interruption, reduction or discontinuance lasting more than one business day and caused by the negligence or willful misconduct of Landlord, its employees, agents or contractors, that renders the Premises unusable by Tenant for normal business operations, Tenant shall be entitled to an abatement of Rent commencing on the date of the event until such interruption, reduction or discontinuance is remedied. In addition to the foregoing, in the event that Landlord fails to provide any Services required to be provided hereunder and such failure is within Landlords reasonable control or caused by the negligence or willful misconduct of Landlord and such interruption causes the Premises to be unusable for Tenants normal business operations and continues for a period of 5 business days (an Unauthorized Interruption) following Landlords receipt of written notice from Tenant of such Unauthorized Interruption (except in the event of Emergency, in which no notice or opportunity to cure shall be required), Tenant may, after delivery of email correspondence or other written notice to Landlord that it intends to exercise its right of self-help (but shall not be obligated to), make such repairs (in such manner as to not void applicable warranties), provide Services or pay such bills as are reasonably required to restore such Services, and Landlord shall reimburse Tenant within 30 days of receipt of Tenants invoice the full amount of such reasonable out-of-pocket cost and expense incurred by Tenant. If Landlord does not reimburse Tenant within such 30 day period, Tenant shall be entitled to offset any unpaid amount from Base Rent. If any such repairs will affect the base HVAC, plumbing, electrical, mechanical or life safety systems of the Building (collectively, the Building Systems), the structural integrity of the Building, or the exterior appearance of the Building, Tenant shall, except in the event of Emergency, use only those contractors used by Landlord in the Building for work on the Building Systems, or its structure, and Landlord shall provide Tenant (upon Tenants request) with notice identifying such contractors and any changes to the list of such contractors, unless such contractors are unwilling or unable to perform such work or the cost of such work is not competitive, in which event Tenant may utilize the services of any other qualified contractors which normally and regularly performs similar work on comparable buildings. Subject to the provisions set forth earlier in this Section 6.D. with regard to the abatement of Rent as the result of Services having been interrupted, reduced or discontinued, to the extent any sum thus reimbursed to Tenant by Landlord represents an amount that would have been included in the Operating Expenses of the Building if paid by Landlord to perform the obligation in question, Landlord shall be entitled to include in Operating Expenses the applicable portion of such sum reimbursed to Tenant. Emergency means an imminent threat to human life or safety or an imminent threat of substantial property damage to personal property located within the Building Complex.
E. Tenant agrees to notify promptly Landlord or its representative of any accidents or defects in the Building of which Tenant becomes aware including defects in pipes, electric wiring and HVAC equipment. In addition, Tenant shall provide Landlord with prompt notification of any matter or condition which may cause injury or damage to the Building or any person or property therein.
F. If permitted by Applicable Law, Landlord shall have the right at any time and from time to time during the Primary Lease Term, and any extensions thereof, to contract for
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utilities servicing the Building Complex (including without limitation, electricity) from any utility provider chosen by Landlord, in its sole discretion, if due to low quality of service or, if for another reason, then so long as such costs are competitive in the market in which the Building is located. Tenant shall cooperate with Landlord and such utility providers as reasonably necessary (including providing access to the Premises) for purposes related to the providing of such services.
G. In the event that Tenant wishes to utilize the services of a telephone, telecommunications, or other utility provider that is not providing service to the Building Complex as of the date of Tenants execution of this Lease (ASP), no such ASP shall be permitted to provide services to Tenant or install lines or other equipment to or within the Building Complex without the prior written consent of Landlord, which consent may be withheld in Landlords reasonable discretion. If Landlord consents to the ASP providing services to the Building Complex, Landlord shall incur no expense whatsoever with respect to any aspect of the ASPs provision of its services, including without limitation, the costs of installation, materials, and service. Tenant acknowledges and agrees that all telephone, telecommunications and other services desired by Tenant from an ASP shall be at Tenants sole cost and expense, subject to the Tenant Improvement Allowance (as defined in the Work Letter). Tenant agrees that Landlord shall have no obligation or liability in the event any service by the ASP is interrupted, curtailed, or discontinued, unless caused by the negligence or willful misconduct of Landlord, and it shall be the sole obligation of Tenant at its expense to obtain substitute service. The provisions of this Section may be enforced solely by Tenant and Landlord, and are not for the benefit of any other party (including, without limitation, any telephone or telecommunications provider) and no party shall be deemed a third party beneficiary hereof.
H. Landlord shall provide access to the Premises and the Building 24 hours per day, seven days per week, subject to such security card system as Landlord may establish from time to time.
I. Landlord agrees that Tenant shall be entitled to one directory strip for Tenants name on the Building directory board in the lobby of the Building and Building Standard suite entry signage at each entrance to the Premises, at Landlords cost and expense (Landlord-Installed Signage). In addition, Tenant shall be entitled to install, at its sole cost and expense, one sign on the exterior of the Building in the location currently occupied by the Shea Homes sign, which Shea Homes sign shall be removed by Landlord at Landlords sole cost within 30 days after satisfaction or waiver of the Termination Contingency (as defined in Section 45 below). If the event a monument sign is constructed for the Building Complex, Tenant shall have the right to install signage on such monument sign at its sole cost and expense, in a location mutually acceptable to the parties. All exterior Building signage and monument signage shall be subject to all Applicable Laws, approval by applicable governmental authorities, the Highlands Ranch Business Park Architectural Review Committee (ARC) and Landlord, and any sign criteria promulgated by Landlord. All signage, other than the Landlord-Installed Signage, shall be at the sole cost and expense of Tenant, and Tenant shall pay all costs of causing its signs to be erected and maintained. Upon expiration or earlier termination of this Lease, Tenant shall remove all signage other than the Landlord-Installed Signage and repair any damage to the Building and monument sign resulting from the installation or removal of Tenants signs.
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7. QUIET ENJOYMENT.
So long as Tenant complies with the provisions hereof, Tenant shall be entitled to the quiet enjoyment and peaceful possession of the Premises subject to the terms and provisions of this Lease.
8. SECURITY DEPOSIT.
It is agreed that, concurrently with the execution of this Lease, Tenant has deposited with Landlord and will keep on deposit at all times during the term of this Lease, the Security Deposit, the receipt of which is hereby acknowledged, as security for the payment by Tenant of all Rent and other amounts herein agreed to be paid and for the faithful performance of all the terms, conditions, and covenants of this Lease. Landlords acceptance of the Security Deposit shall not render this Lease effective unless and until Landlord shall have executed and delivered to Tenant a fully executed copy of this Lease. If, at any time during the term of this Lease, an Event of Default on the part of Tenant under this Lease shall occur, Landlord shall have the right to use the Security Deposit, or so much thereof as necessary, in payment of any Rent or other amount in default, in reimbursement of any reasonable expenses incurred by Landlord, and in payment of any provable damages incurred by Landlord solely by reason of Tenants default. In such event, Tenant shall, on written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore the Security Deposit to an amount equal to the initial Security Deposit. In the event the Security Deposit has not been utilized as aforesaid, the Security Deposit, or as much thereof as not utilized for such purposes, shall be refunded to Tenant or to whomever is then the holder of Tenants interest in this Lease, without interest, 30 days after full performance of this Lease by Tenant. Landlord shall have the right to commingle the Security Deposit with other funds of Landlord, but must maintain adequate books and records to establish the amount and nature Tenants interest in the Security Deposit . At Landlords election, Landlord may elect to have the Security Deposit held by Landlords manager in a separate security deposit trust, trustee or escrow account established and maintained by such manager with respect to certain security deposits of tenants within the Building. Unless Tenant is so notified, (i) Landlord will hold the Security Deposit and be responsible for its return; (ii) Tenant may request return of the Security Deposit by giving Landlord written notice in accordance with the provisions of the Lease, addressed to Landlord as provided in this Lease; and (iii) Landlords manager, if there is one, agrees that in the event of a dispute over the ownership of the Security Deposit, the manager will not wrongfully withhold Landlords true name and current mailing address from Tenant. Upon providing Tenant with written notice of the transfer of the Security Deposit to a third party, Landlord may deliver the funds deposited herein by Tenant to the purchaser of Landlords interest in the Premises in the event such interest be sold and, thereupon, Landlord shall be discharged from further liability with respect to such deposit. In the event that Landlord does not return the entire balance of the Security Deposit to Tenant, Landlord shall provide Tenant with an accounting of the actual expenditures made by Tenant and deducted from the Security Deposit. Tenant agrees that if claims of Landlord exceed the Security Deposit, Tenant shall remain liable for the balance of such claims that can be documented. The Security Deposit is not an advance payment of Rent or any other amount due under this Lease.
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9. CHARACTER OF OCCUPANCY.
Tenant covenants and agrees to occupy the Premises for Tenants Permitted Use and for no other purpose, and to use them in a careful, safe and proper manner; to pay on demand for any actual damage to the Premises caused solely by misuse or abuse thereof by Tenant, Tenants agents or employees, or of any other person entering upon the Premises under express or implied invitation of Tenant. Tenant, at Tenants expense, shall comply with all laws, codes, ordinances, rules, regulations and statutes of the United States, the State of Colorado, or any applicable municipality, governmental or quasi-governmental entity, or set forth in any document of record in the real property records of Douglas County, Colorado affecting Tenants use of the Building Complex, including, without limitation, those related to pollution, air quality, hazardous and toxic material control, and or environmental contamination (collectively, Applicable Laws) now in effect, or which may hereafter be in effect, (a) which shall impose any duty upon Tenant with respect to the occupation or alteration of the Premises; (b) regarding the physical condition of the Premises for those conditions which are the responsibility of Tenant under this Lease; or (c) that do not relate to the physical condition of the Premises but relate to the lawful use of the Premises and with which only the occupant can comply, such as laws governing maximum occupancy. Tenant shall not commit waste or suffer or permit waste to be committed or permit any nuisance on or in the Premises. Tenant, its agents, employees, contractors or invitees shall not store, keep, use, sell dispose of or offer for sale in, upon or from the Premises any article or substance which may be prohibited by any insurance policy purchased by Tenant which is in force from time to time covering the Building. Landlord agrees to comply with all Applicable Laws with respect to its ownership, financing, use, repair, maintenance or operation of the Building and the Building Complex.
10. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
A. Unless otherwise expressly provided herein, Landlord shall not be required to make any improvements or repairs of any kind or character to the Premises during the Primary Lease Term, or any extension thereof, except: (i) such repairs to the structure of the Building (including the roof), and HVAC, mechanical, life safety and electrical systems in the Premises (to the extent such systems are Building standard) as may be deemed necessary by Landlord for normal maintenance operations of the Building and/or Building Complex; and (ii) upkeep, maintenance and repairs to all Common Areas in the Building and/or Building Complex, including the parking areas, so long as the need for any such repair is not the result of Tenants negligence.
B. So long as Landlords exercise of such rights does not unreasonably interfere with Tenants use of or access to the Premises, Tenant covenants and agrees to permit Landlord, upon 24 hours prior notice (except in the event of an Emergency, in which case no notice shall be required), to enter the Premises to examine and inspect the same or, if Landlord so elects, to perform any obligations of Tenant hereunder which Tenant has failed to perform after any applicable period of notice and cure, or to perform such cleaning, maintenance, janitorial services, repairs, additions, or alterations as Landlord may deem necessary or proper for the safety, improvement, or preservation of the Premises or of other portions of the Building and/or Building Complex or as may be required by governmental authorities pursuant to any Applicable Law. Any such reentry shall not constitute an eviction or entitle Tenant to abatement
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of Rent. Furthermore, Landlord shall at all times have the right at Landlords election to make such alterations or change in other portions of the Building and/or Building Complex as Landlord may from time to time deem necessary and desirable as long as such alterations and changes do not unreasonably interfere with Tenants use and occupancy of the access to the Premises. Landlord may use one or more of the street entrances to the Building Complex and such public areas thereof as may be necessary, in Landlords determination to complete such alterations or changes.
C. Notwithstanding anything to the contrary set forth herein, Landlord shall be responsible for compliance or correcting non-compliance with the ADA in accordance with the provisions of the ADA and related governmental regulations, as amended from time to time, pertaining to the use, occupation or alteration of the Building (excluding the Premises) and the Common Areas. Landlords costs of compliance or correcting noncompliance as to conditions in the Building and Common Areas under the ADA and regulations in effect as of the Effective Date shall not be included in Operating Expenses. Landlords costs of compliance as to conditions in the Building and Common Areas required as a result of changes in the ADA and its regulations following the Commencement Date shall be borne by Landlord, but shall be included in Operating Expenses. Tenant shall be responsible for compliance or correcting non-compliance with the ADA in accordance with the provisions of the ADA and related governmental regulations, as amended from time to time, pertaining to the use, occupation or alteration of the Premises. Landlords consent to any Alterations (as defined in Section 11 below) by Tenant or Landlords approval of plans, specifications and working drawings for Tenants Alterations shall create no responsibility or liability on the part of Landlord for their completeness, design sufficiency, or compliance with all Applicable Laws, including, but not limited to the ADA. If applicable, Tenant shall provide a certificate from Tenants architect evidencing that any plans and specifications for Tenants Alterations have been prepared in accordance with the ADA and, upon completion, that the Alterations have been constructed in accordance with the ADA, as evidenced by the applicable as built drawings.
11. ALTERATIONS AND REPAIRS BY TENANT.
A. Tenant covenants and agrees not to make any alterations in or additions to the Premises (subsequent to Tenants Work), including installation of any equipment or machinery therein which requires modification of or additions to any existing electrical outlets or which would increase Tenants usage of electricity beyond Tenants standard electrical usage (all such alterations, together with the Tenants Work, are referred to herein collectively as Alterations) without in each such instance first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding any provision to the contrary contained in this Lease, Tenant may, without Landlords consent, at its own cost and expense and in a good and workmanlike manner and in accordance with all Applicable Laws, make interior, cosmetic Alterations not exceeding $25,000.00 per project per floor of the Premises that are not visible from the exterior of the Building and that do not affect the structural portions of the Building or the Building systems of the Premises or Building. In no event shall Tenant be permitted to make any Alterations to any portion of the Building or Building Complex other than within the Premises. Any Alterations performed by Tenant which is approved by Landlord shall be subject to Landlords reasonable requirements in effect at such time. In the event Landlord requires that Tenant submit plans and specifications for an
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Alteration in connection with Landlords approval of the same, Landlords consent to any Alterations by Tenant or Landlords approval of the plans, specifications and working drawings for Tenants Alterations shall create no responsibility or liability on the part of Landlord for their completeness, design sufficiency, or compliance with all Applicable Laws now in effect or which may hereafter be in effect. Tenant, at its expense, shall (i) pay all engineering and design costs incurred by Landlord attributable to the Alterations, (ii) pay all of Landlords costs necessitated by Tenants Alterations, including without limitation, all costs for modifications and additions to the Building Complex, including without limitation, the Building systems (which Landlord shall indicate as part of any approval of Tenants plans), and (iii) obtain all necessary governmental permits and certificates required for any Alterations to which Landlord has consented, and cause such Alterations to be completed in compliance therewith and with all Applicable Laws and all applicable requirements of Landlords insurance carriers. All Alterations which Tenant are permitted to make shall be performed in a good and workmanlike manner, using materials and equipment at least equal in quality to the original installations in the Premises. All repair and maintenance work required to be performed by Tenant pursuant to the provisions of this Section 11 and any Alterations permitted by Landlord pursuant to the provisions hereof, shall be done at Tenants expense by persons requested by Tenant and reasonably authorized in writing by Landlord. If Landlord authorizes persons requested by Tenant to perform such Alterations, prior to the commencement of any such Alterations, Tenant shall deliver to Landlord certificates issued by insurance companies qualified to do business in the State of Colorado, evidencing that workmens compensation, public liability insurance, and property damage insurance, all in the amounts, with companies and on forms satisfactory to Landlord, are in force and effect and maintained by all contractors and subcontractors engaged by Tenant to perform such work. All such policies shall name Landlord and any Mortgagee as an additional insured. Each such certificate shall provide that the same may not be canceled or modified without 30 days prior written notice to Landlord and such Mortgagee. Further, Landlord and such Mortgagee shall have the right to post notices in the Premises in locations which will be visible by parties performing any work on the Premises stating that Landlord is not responsible for the payment for such work and setting forth such other information as Landlord may deem necessary. Alterations, repair and maintenance work shall be performed in a manner which will not unreasonably interfere with, delay, or impose any additional expense upon Landlord in the maintenance or operation of the Building or upon other tenants use of their premises in the Building Complex.
B. Tenant shall keep the Premises in as good order, condition, and repair and in an orderly state, as when they were entered upon, loss by fire or other casualty, condemnation, Landlords obligations or commercially reasonable wear and tear excepted. Subject to Landlords obligation to make repairs in the event of certain casualties, as set forth in Section 18 below, Landlord shall have no obligation for the repair or replacement of any portion of the interior of the Premises which is damaged or wears out during the Lease Term regardless of the cause therefor, including but not limited to, carpeting, draperies, window coverings, wall coverings, painting or any of Tenants property or improvements in the Premises, but shall have an obligation to repair, maintain and replace Building systems whether or not in the Premises, in accordance with Section 10 above.
C. All Alterations and permanent fixtures installed in the Premises, including, by way of illustration and not by limitation, all partitions, paneling, carpeting, drapes or other
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window coverings, and light fixtures (but not including movable office furniture not attached to the Building), shall be deemed a part of the real estate and the property of Landlord and shall remain upon and be surrendered with the Premises as part thereof without molestation, disturbance or injury at the end of the Primary Lease Term, or any extension thereof, whether by lapse of time or otherwise, unless Landlord by written notice given to Tenant at the time of approval of such Alteration, or in the event it is an Alteration for which no approval was required, no later than 15 days prior to the Expiration Date, shall elect to have Tenant remove all or any of the Alterations (including, without limitation, Tenants Work), and in such event, Tenant shall promptly remove on or before the expiration date of this Lease, at Tenants expense, the Alterations specified by Landlord and restore the Premises to their condition prior to the make of the same, reasonable wear and tear excepted.
D. All Alterations which Landlord has required Tenant remove at expiration of this Lease, and all movable furniture and personal effects of Tenant not removed from the Premises upon the vacation or abandonment thereof or upon the expiration or termination of this Lease for any cause whatsoever shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice to Tenant or any other person and without obligation to account therefor and Tenant shall pay Landlord all reasonable expenses incurred in connection with the removal or disposition of such property, including, but not limited to, the cost of repairing any damage to the Premises caused by the removal of such property. Tenants obligations hereunder shall survive the expiration or other termination of this Lease.
12. MECHANICS LIENS.
Tenant shall pay or cause to be paid all costs for all Tenants Work, other Alterations or other work done by Tenant or caused to be done by Tenant on the Premises (including work performed by Landlord or its contractor at Tenants request following the commencement of the Primary Lease Term) of a character which will or may result in liens on Landlords interest therein, and Tenant will keep the Premises free and clear of all mechanics liens, and other liens on account of work done for Tenant or person claiming under it. Tenant hereby agrees to indemnify and defend Landlord, and save Landlord harmless of and from, all liability, loss, damage, costs, or expenses, including reasonable attorneys fees, on account of any claims of any nature whatsoever including claims or liens of laborers or materialmen or others for work performed or for materials or supplies furnished to Tenant or persons claiming under Tenant. Should Tenant receive any notice of intent to file a lien, Tenant shall deliver a copy of such notice to Landlord and shall promptly resolve the claim. Should any liens be filed or recorded against the Premises or any action affecting the title thereto be commenced as a result of such work (which term includes the supplying of materials), Tenant shall cause such liens to be removed from record within 30 days after it receives notice of the filing or recording of such liens. If Tenant desires to contest any claims of lien, Tenant shall furnish to Landlord adequate security of at least 125% of the amount of the claim, or at Tenants option, file a bond with the appropriate court and obtain a release of the lien pursuant to Applicable Law. If a final judgment (after exhaustion of appeal) establishing the validity or existence of any lien for any amount is entered, Tenant shall pay and satisfy the same at once. If Tenant shall be in default in paying any charge for which a mechanics lien or suit to foreclose the lien has been recorded or filed and shall not have given Landlord security as aforesaid, Landlord may (but without being required to
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do so) pay such lien or claim and any costs, and the amount so paid, together with reasonable attorneys fees incurred in connection therewith, shall be immediately due from Tenant to Landlord.
13. SUBLETTING AND ASSIGNMENT.
A. Tenant shall neither sublet any part of the Premises nor assign this Lease or any interest herein without the written consent of Landlord first being obtained, which consent shall not be unreasonably withheld, conditioned or delayed, provided that: (i) Tenant has complied with the provisions of Section 13.C. below and Landlord has declined to exercise its rights thereunder; (ii) the proposed subtenant or assignee is engaged in a business and the Premises will be used in a manner which is in keeping with Landlords commercially reasonable standards of the Building and does not conflict with any exclusive use rights granted to any other tenant in the Building Complex; (iii) the proposed subtenant or assignee has reasonable financial worth in light of the responsibilities involved and Tenant shall have provided Landlord with reasonable evidence thereof; (iv) an uncured Event of Default on the part of Tenant is not then existing at the time it makes its request for such consent, unless subletting or assigning all or part of the Premises is the method by which Tenant proposes to cure an Event of Default; or (v) the proposed subtenant or assignee is not a tenant under, or is not currently negotiating, a lease with Landlord in any building in the Building Complex. Notwithstanding anything contained herein to the contrary, Tenant acknowledges that if the use of the Premises by any proposed subtenant or assignee would require compliance by Landlord and the Building with any current or future Applicable Laws to a greater extent than that required prior to the proposed occupancy by such subtenant or assignee, Landlord, at its sole option, may refuse to grant such consent, unless, as an express condition thereof, Tenant and/or such assignee or subtenant bears the entire cost of such greater compliance.
B. Notwithstanding paragraph A. above, Tenant may assign this Lease or sublet any portion of the Premises without Landlords consent to any affiliate of Tenant (a Permitted Transfer). For purposes of this Section 13, affiliate shall mean any entity which, directly or indirectly, controls or is controlled by or is under common control with Tenant, or a successor entity to Tenant by virtue of merger, consolidation, or nonbankruptcy reorganization or the sale of all or substantially all of the assets of Tenant; provided, however, that such affiliate must either (i) have a net worth substantially similar to or greater than Tenants net worth as of the Effective Date, or (ii) in Landlords commercially reasonable opinion, have sufficient assets to perform its obligations (monetary or otherwise) under this Lease. For purpose of the definition of affiliate, the word control (including controlled by and under common control with), as used with respect to any corporation, partnership, or association, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policy of a particular corporation, partnership or association, whether through the ownership of voting securities or by contract or otherwise. Tenants right hereunder are further conditioned on: (1) Tenant shall remain primarily liable for all of its obligations under this Lease; (2) any such subtenant and/or assignee shall assume and be bound by all obligations of Tenant for payment of all amounts of rental and other sums (relative to its pro rata share) and the performance of all covenants required by Tenant pursuant to this Lease; (3) any such subtenant and/or assignee intends to operate the Premises in accordance with the usage restrictions of this Lease; and (4) not less than 15 days prior to the effective date of such sublease
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or assignment, Tenant shall provide Landlord with notice of such transaction and copies of the documents evidencing such transaction and such other evidence as Landlord may reasonably require to establish that such transaction falls within the terms and provisions of this Section. Notwithstanding the foregoing, in the event a transferee assuming this Lease pursuant to a Permitted Transfer is, in Landlords reasonable opinion, in a similar financial condition as Tenant as of the Effective Date such that the transferee has the ability to pay the Rent and meet the obligations of this Lease, Tenant shall be released from all liabilities hereunder from and after the date of such assignment and assumption, so long as the transferee has agreed in writing to assume all obligations and liabilities of Tenant under this Lease.
C. If this Lease is assigned, Landlord shall collect the Rent due under this Lease from the assignee and apply the net amount collected to the Rent herein reserved. If the Premises or any part thereof is sublet or occupied by anybody other than Tenant (other than pursuant to a Permitted Transfer), Landlord may, after an Event of Default on the part of Tenant, collect the rent from the subtenant or occupant and apply the net amount collected to the Rent herein reserved. No such assignment, subletting, occupancy, or collection shall be deemed an acceptance of the assignee, subtenant, or occupant as the tenant hereof or a release of Tenant from further performance by Tenant of covenants on the part of Tenant herein contained. Consent by Landlord to any one assignment or sublease shall not in any way be construed as relieving Tenant from obtaining Landlords express written consent to any further assignment or sublease. Except as specified in Section 13.B. above, notwithstanding the consent of Landlord to any sublease or assignment, Tenant shall not be relieved from its primary obligations hereunder to Landlord, including, but not limited to the payment of all Base Rent and Tenants Pro Rata Share of Operating Expenses. Landlords consent to any requested sublease or assignment shall not waive Landlords right to refuse to consent to any other such request or to terminate this Lease if such request is made, all as provided herein. Except in the case of a Permitted Transfer, if Landlord or Tenant collects any rental or other amounts from an assignee or subtenant in excess of the Base Rent and the Tenants Pro Rata Share of Operating Expenses for any monthly period, Landlord shall be entitled to 50% of such excess (net of all costs incurred by Tenant in connection therewith, including, without limitation, tenant improvements, broker commissions and reasonable attorneys fees, but excluding vacancy costs) and Tenant shall pay to Landlord such amount on a monthly basis, as and when Tenant receives the same.
D. Except in the case of a Permitted Transfer, Tenant agrees that in the event it desires to sublease all or any portion of the Premises or assign this Lease to any party, in whole or in part, Tenant shall notify Landlord in writing not less than 30 days prior to the date Tenant desires to sublease such portion of the Premises or assign this Lease (Tenants Transfer Notice). Tenants Transfer Notice shall set forth the description of the portion of the Premises to be so sublet or assigned and the terms and conditions on which Tenant desires to sublet the Premises or assign this Lease. In the event of a proposed assignment of this Lease (but not any sublease, which shall not be subject to Landlords rights pursuant to paragraph E. below), Landlord shall have 30 days following receipt of Tenants Transfer Notice within which to exercise Landlords rights pursuant to paragraph E. below. If Landlord consents to such sublease or assignment and if for any reason Tenant is unable to sublet said portion of the Premises or assign its interest in this Lease on the terms and conditions contained in Tenants Transfer Notice within 180 days following the delivery of Tenants Transfer Notice to Landlord, Tenant agrees to re-offer the Premises to Landlord in accordance with the provisions hereof prior to subleasing any portion of the Premises or assigning this Lease to any third party.
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E. Notwithstanding anything contained in this Section 13 to the contrary, in the event Tenant requests Landlords consent to sublet all or a portion of the Premises or to assign its interest in this Lease, Landlord shall have the right to: (i) consent to such sublease or assignment; (ii) refuse to grant such consent in Landlords reasonable discretion (which reasons will be specified in Landlords notice of refusal) or (iii) refuse to grant such consent and terminate this Lease as to the portion of the Premises with respect to which such consent was requested; provided, however, if Landlord refuses to grant such consent and elects to terminate the Lease as to such portion of the Premises, Tenant shall have the right within 15 days after notice of Landlords exercise of its right to terminate to withdraw Tenants request for such consent and remain in possession of the Premises under the terms and conditions hereof. In the event the Lease is terminated as set forth herein, such termination shall be effective as of the date set forth in a written notice from Landlord to Tenant, which date shall in no event be more than 30 days following such notice. Notwithstanding anything to the contrary contained herein, Landlord agrees that it will not enter into a direct lease of space in the Building with any person or entity within six months after Landlords refusal to grant consent to a sublease or assignment by Tenant to the same person or entity, so long as Tenant would have been able to provide the same amount of space in the Building as Landlord offers for lease to such person or entity.
F. All documents utilized by Tenant to evidence any subletting or assignment to which Landlord has the right to consent shall be subject to prior approval by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant shall pay on demand all of Landlords actual, out-of-pocket costs and expenses, including reasonable attorneys fees, incurred in determining whether or not to consent to any requested sublease or assignment and in reviewing and approving such documentation, up to a maximum of $1,000.00.
G. Landlord and Tenant understand that notwithstanding certain provisions to the contrary contained herein, a trustee or debtor in possession under the Bankruptcy Code of the United Sates may have certain rights to assume or assign this Lease. Landlord and Tenant further understand that in any event Landlord is entitled under the Bankruptcy Code to Adequate Assurance of future performance of the terms and provisions of this Lease. For purposes of any such assumption or assignment, the parties hereto agree that the term Adequate Assurance shall include at least the following: (i) in order to assure Landlord that the proposed assignee will have the resources with which to pay the rent called for herein, any proposed assignee must have demonstrated to Landlords satisfaction a net worth (as defined in accordance with generally accepted accounting principles consistently applied) at least as great as the net worth of Tenant on the Effective Date. The financial condition and resources of Tenant were a material inducement to Landlord in entering into this Lease; and (ii) any proposed assignee of this Lease must assume in writing and agree to be personally bound by the terms, provisions, and covenants of this Lease.
14. DAMAGE TO PROPERTY.
Except as a result of the negligent acts or omissions of Landlord, its employees, agents or contractors, Tenant shall neither hold or attempt to hold Landlord liable for any injury or
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damage, either proximate or removed, occurring through or caused by fire, water, steam, or any injury, accident, or any other cause to the Premises, to any furniture, fixtures, tenant improvements (including Tenants Work), or other personal property of Tenant kept or stored in the Premises, or in other parts of the Building and/or the Building Complex not herein demised, whether by reason of the negligence or default of the owners or occupants thereof or any other person or otherwise, and, except as provided above, the keeping or storing of all property of Tenant in the Building, the Building Complex and/or Premises shall be at the sole risk of Tenant.
15. INDEMNITY.
A. Tenant hereby agrees to indemnify and defend Landlord, its officers, directors, members, managers, agents and employees, and save Landlord, its officer, directors, members, managers, agents and employees harmless of and from, all claims, liabilities, losses, damages, costs, or expenses, including reasonable attorneys fees, fines, penalties, judgments, or obligations (collectively, Claims) that Landlord may sustain to the extent arising out of any injury to any person or damage to or loss of any property occurring (i) in the Premises or in the Building Complex (including the Surface Lots, as defined in Exhibit D ) and arising from the use of the Premises by Tenant, its employees, agents, contractors, licensees, subtenants or other invitees, except to the extent either of the foregoing are caused by the negligence or willful misconduct of Landlord; (ii) any act or omission or negligence of Tenant or any of Tenants employees, agents or contractors in or on the Premises or the Building Complex; and (iii) any breach or default by Tenant in the performance of its obligations and covenants under this Lease beyond applicable notice and cure periods.
B. Except to the extent Tenant is obligated to indemnify Landlord above, Landlord hereby agrees to indemnify and defend Tenant, its officers, directors, agents and employees, and save Tenant, its officers, directors, agents and employees, harmless of and from, all Claims that Tenant may sustain to the extent arising out of any injury to any person or damage to or loss of any property (i) suffered or claimed by any person and resulting from the negligence or willful misconduct of Landlord or any of Landlords, employees, agents or contractors; or (ii) any breach or default by Landlord in the performance of its obligations and covenants under this Lease beyond applicable notice and cure period.
C. Any party requesting indemnification pursuant to the provisions contained in this Lease shall (1) give the indemnifying party prompt written notice of any Claims for which it is requesting indemnification; (2) mutually agree with the other party as to defense counsel, which counsel shall also be reasonably acceptable to the partys insurance carriers, if applicable; (3) give the indemnifying party reasonable authority and control of the defense and settlement of the Claims, subject to reasonable approval by the indemnitee of any settlement that assesses any proportionate liability to the indemnitee or potentially imposes any obligations on the indemnitee. The indemnitee may, at its election, obtain separate counsel and participate in the proceedings at its own expense. In addition, at the indemnifying partys reasonable request, the indemnitee shall reasonably cooperate in the defense and settlement of any Claims at no out-of-pocket cost to the indemnitee.
D. In no event will either party be responsible for any consequential damages incurred by the other party as a result of any default or breach of the terms of this Lease, including, but not limited to, lost profits or interruption of business which result of any alleged breach or default hereunder.
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E. All provisions of this Section 15 shall survive termination or expiration of this Lease.
16. SURRENDER AND NOTICE.
Upon the expiration or other termination of this Lease, Tenant shall promptly quit and surrender to Landlord the Premises broom clean, in good order and condition, ordinary wear and tear and loss by fire or other casualty covered by insurance excepted, and Tenant shall remove all of its movable furniture and other effect and such Alterations as Landlord shall require Tenant to remove as described in Sections 11 hereof. In the event Tenant fails to vacate the Premises on a timely basis as required, Tenant shall be responsible to Landlord for all reasonable costs incurred by Landlord as a result of such failure, including, but not limited to, any reasonable amounts required to be paid to third parties who were to have occupied the Premises.
17. INSURANCE.
A. Subject to reimbursement as provided in Section 5 herein, Landlord shall maintain Special Form property insurance on the Building in the amount of full replacement cost (without regard to depreciation) as well as loss of rent protection insurance, from such companies, and on such terms and conditions, including loss of rental insurance for such period of time as Landlord deems reasonably appropriate, from time to time.
B. Tenant shall obtain and maintain throughout the term of this Lease the following insurance:
(i) Special Form property insurance on and for the full cost of replacement of all Tenants property and improvements in the Premises, including, without limitation Tenants Work and all furniture, fixtures, personal property and all tenant finish in excess of Building standard items. In no event shall the deductible for such insurance be more than $5,000.00.
(ii) Commercial general liability insurance, on a occurrence form, with (1) contractual liability coverage including the indemnification provisions contained in this Lease, (2) a severability of interest endorsement, (3) limits of not less than $2,000,000.00 combined single limit per occurrence and not less than $2,000,000.00 in the aggregate for bodily injury, sickness or death, and property damage, and umbrella coverage of not less than $4,000,000.00. All such policies shall name Landlord and any Mortgagee as additional insured.
(iii) Business interruption insurance in such amounts as will reimburse Tenant for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent tenants or attributable to prevention of access to the Premises or to the Building as a result of such perils.
(iv) Workers Compensation Insurance and Employers liability insurance as required by Applicable Law.
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C. All insurance policies set forth in this Section 17 shall be issued by an insurance company qualified to do business in the State of Colorado and reasonably acceptable to Landlord. All such insurance policies shall provide that the same may not be canceled or modified without at least 30 days prior written notice to Landlord and any Mortgagee. Tenant shall notify Landlord promptly in the event any insurance policy of Tenant required hereunder is cancelled or not renewed.
D. Prior to occupancy of the Premises, and thereafter from time to time (but nor more often than once per calendar year), Tenant shall deliver certificates evidencing that all insurance required under this Section 17 is in force and effect. In addition, Tenant shall deliver to Landlord, upon Landlords request (not more than once per calendar year), copies of all insurance policies maintained hereunder along with all endorsements thereto certified as true and correct by the issuing insurance company and Tenant. The limits of said insurance shall not, under any circumstances, limit the liability of Tenant hereunder.
E. Notwithstanding anything to the contrary contained herein, Landlord and Tenant hereby mutually waive and release their respective rights of recovery against each other, their officers, directors, members, managers, agents and employees occurring as a result of the use and occupancy of the Premises for: (i) any loss of its property capable of being insured against by Special Form insurance coverage whether carried or not, excluding from such waiver, the deductible amounts under any applicable Special Form insurance; and (ii) all loss, cost, damage, or expense arising out of or due to any interruption of business (regardless of the cause therefor), increased or additional costs of operation or business or other costs or expenses whether similar or dissimilar which are capable of being insured against under business interruption or loss of rents insurance whether or not carried. Each party shall apply to its insurers to obtain such waivers, shall obtain any special endorsements, if required by their insurance, to evidence compliance with the aforementioned waiver, and shall bear the cost therefor.
18. CASUALTY AND RESTORATION OF PREMISES.
A. If the Premises or the Building shall be so damaged by fire or other casualty as to render the Premises wholly untenantable and if such damage shall be so great that a competent architect, in good standing, selected by Landlord shall certify in writing to Landlord and Tenant within 45 days of said casualty that the Premises, with the exercise of reasonable diligence, cannot be made fit for occupancy within 180 calendar days from the date of casualty (subject to Force Majeure Delays, as defined below), then either party shall have the right to terminate this Lease by delivering written notice of its election to terminate to the other party within 30 days after receipt of the architect certification, and upon such delivery, this Lease shall terminate, Tenant shall thereupon surrender to Landlord the Premises and all interest therein under this Lease or otherwise and Landlord may reenter and take possession of the Premises and remove Tenant therefrom, and both parties hereto shall be freed and discharged of all further obligations hereunder, except for those that expressly survive termination of this Lease. Tenant shall pay Rent, duly apportioned, up to the time of such termination of this Lease, subject to the provisions of paragraph D. below. If, however, the damage shall be such that said architect shall certify within said 45-day period that the Premises can be made tenantable within said 180-day period (subject to Force Majeure Delays), then, except as hereinafter provided, Landlord shall
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repair the damage so done to the Building (including Tenants Work in an amount not to exceed $100,000.00) but not any equipment, trade fixtures or other personal property of Tenant) with all reasonable speed.
B. If the Premises shall be slightly damaged by fire or other casualty, but not so as to render the same wholly untenantable or to require a repair period in excess of 180 days (subject to Force Majeure Delays), then, Landlord, after receiving notice in writing of the occurrence of the casualty, except as hereafter provided, shall cause the same to be repaired to the extent of the tenant finish existing in the Premises as of the Commencement Date and insured by Landlord (as opposed to any above-standard tenant finish or portion of the tenant finish insured by Tenant) with reasonable promptness. If the estimated repair period as established in accordance with the provisions of Section 18.A. above exceeds 180 days (subject to Force Majeure Delays), then Tenant shall have the right to terminate this Lease upon written notice to Landlord delivered after such 180-day period and prior to Landlords completion of the repairs.
C. In case the Building throughout shall be so injured or damaged, whether by fire or otherwise (though said Premises may not be affected, or if affected, can be repaired within said 180 days (subject to Force Majeure Delays)), that, within 30 days after the receipt of the architects certification described in paragraph A. above, Landlord shall decide not to reconstruct or rebuild said Building, then, notwithstanding anything contained herein to the contrary, upon notice in writing to that effect given by Landlord to Tenant within said 30 days, Tenant shall pay the Rent, properly apportioned up to such date (subject to the provisions of paragraph D. below), this Lease shall terminate from the date of delivery of said written notice, and both parties hereto shall be freed and discharged of all further obligations hereunder, except for those that expressly survive termination of this Lease.
D. Provided that the casualty is not the fault of Tenant, Tenants agents, employees, or contractors Tenants Rent shall abate during any such period of repair or restoration in the same proportion that the part of the Premises rendered untenantable bears to the whole.
E. For purposes of this Section 18, the term Force Majeure Delays shall mean delays caused by an inability of either party to perform any of its obligations hereunder on account of any energy shortage, governmental pre-emption or prescription, national emergency, act of God or any other cause of any kind beyond the reasonable control of Landlord or Tenant or that could not be mitigated with reasonable efforts, but specifically excluding the failure to pay any monetary obligations.
F. Notwithstanding any provision to the contrary contained in this Section 18, in the event Landlord is required to repair and restore within 180 days (subject to Force Majeure Delays) pursuant to paragraph B. above, and such repair or restoration is not completed within 210 days (subject to Force Majeure Delays), then commencing on the 211th day, Tenant shall be entitled to two days of Base Rent abatement for each day such repair or restoration is not completed, until such time as such repair or restoration is substantially completed and Tenant can commence normal business operations therein.
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19. CONDEMNATION.
If the entire Premises or more than 25% of the Premises or any portion of the Building which shall render the Premises untenantable shall be taken by right of eminent domain or by condemnation or shall be conveyed in lieu of any such taking, then this Lease, at the option of either Landlord or Tenant exercised by either party giving written notice to the other of such termination within 30 days after such taking or conveyance, shall forthwith cease and terminate and all Rent shall be duly apportioned as of the date of such taking or conveyance. Tenant thereupon shall surrender the Premises and all interest therein under this Lease or otherwise to Landlord and Landlord may reenter and take possession of the Premises or remove Tenant therefrom, and both parties hereto shall be freed and discharged of all further obligations hereunder, except for those that expressly survive termination of this Lease. In the event less than 25% of the Premises shall be taken by such proceeding or conveyance, Landlord shall promptly repair the Premises as nearly as possible to its condition immediately prior to said taking or conveyance, unless Landlord elects not to reconstruct or rebuild as described in Section 18.C. above. In the event of any such taking or conveyance, Landlord shall receive the entire award or consideration for the portion of the Building so taken whether the award is compensation for diminution in value for the leasehold, for the taking of the fee, or as severance, damage or otherwise; provided, however, if this Lease is terminated as a result of the condemnation or conveyance, and as long as Tenants award does not reduce Landlords award or compensation, then Tenant shall be entitled to a separate award for loss or damage to Tenants trade fixtures which it cannot remove, relocation and removal expenses and any other damages which Tenant may claim pursuant to Applicable Law.
20. DEFAULT BY TENANT.
A. Each one of the following events is herein referred to as an Event of Default:
(i) Any failure by Tenant to pay Rent or any other monetary sums required to be paid hereunder on the date such sums are due, unless the failure is cured within 10 business days after written notice by Landlord; however, Tenant is not entitled to more than three notices of delinquent payments of Rent during any Lease Year and, if thereafter during that Lease Year any Rent is not paid when due, an Event of Default shall automatically occur;
(ii) Intentionally deleted;
(iii) This Lease or the estate of Tenant hereunder shall be transferred to or shall pass to or devolve upon any other person or party except in the manner set forth in Section 13 above;
(iv) This Lease or the Premises or any part thereof shall be taken upon execution or by other final process of law directed against Tenant or shall be lawfully taken upon or subject to any attachment at the instance of any creditor of or claimant against Tenant and said attachment shall not have been discharged or disposed of within 45 days after the levy thereof;
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(v) The filing of any petition or the commencement of any case or proceeding by Tenant under any provision or chapter of the Federal Bankruptcy Act, the Federal Bankruptcy Code, or any other federal or state law relating to insolvency, bankruptcy, or reorganization or the adjudication that Tenant is insolvent or bankrupt or the entry of an order for relief under the Federal Bankruptcy Code with respect to Tenant;
(vi) The filing of any petition or the commencement of any case or proceeding described in Section 20.A.(v) above against Tenant, unless such petition and all proceedings initiated thereby are dismissed within 60 days from the date of such filing; the filing of an answer by Tenant admitting the allegations of any such petition; the appointment of or taking possession by a custodian, trustee or receiver for all or any assets of Tenant, unless such appointment is vacated or dismissed within 60 days from the date of such appointment;
(vii) The insolvency of Tenant or the execution by Tenant of an assignment for the benefit of creditors; the convening by Tenant of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Tenant generally to pay its debts as they mature;
(viii) Intentionally deleted;
(ix) Intentionally deleted; and
(x) Tenant shall fail to perform any of the other agreements, terms, covenants, or conditions hereof on Tenants part to be performed and such non-performance is not a result of a Force Majeure event and shall continue for a period of 30 days after written notice thereof by Landlord to Tenant or, if such performance cannot be reasonably had within such 30-day period, Tenant shall not in good faith have commenced such performance within such 30-day period and shall not diligently proceed therewith.
B. If any one or more Event of Default shall happen and is not cured within any applicable cure period, then Landlord shall have the right, which right shall be exercised in accordance with Applicable Laws, at Landlords election, after expiration of any applicable cure period, or at any time thereafter, either:
(i) After providing not less than five days written notice to Tenant, to reenter and take possession of the Premises or any part thereof and repossess the same as of Landlords former estate and expel Tenant and those claiming through or under Tenant and remove the effects of both or either, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants or conditions. Should Landlord elect to reenter, as provided in this Section 20.B.(i), or should Landlord take possession pursuant to legal proceeding or pursuant to any notice provided for by Applicable Law, Landlord, may relet the Premises or any part thereof, either alone or in conjunction with other portions of the Building of which the Premises are a part, in Landlords or Tenants name but for the account of Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions and upon such other terms (which may include concessions of free rent and alteration and repair of the Premises) as Landlord, in its absolute discretion, may
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determine and Landlord may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises, or any part thereof, or for any failure to collect any rent due upon such reletting, provided, however, Landlord shall use commercially reasonable efforts to relet the Premises. No such reentry or taking possession of the Premises by Landlord shall be construed as an election on Landlords part to terminate this Lease unless a written notice of such intention be given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such reentry and/or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in which event the Lease will terminate as specified in said notice. Notwithstanding the foregoing, upon Landlord taking possession of the Premises, regardless of whether Landlord relets the Premises, Tenant (being no longer in possession of the Premises) shall be relieved of all obligations under this Lease except the obligation to pay Rent and other amounts and/or damages owed in accordance with this Lease as a result of any Event of Default or otherwise obligated to pay in accordance with the provisions of this Section 20, it being the intent of the parties that Tenant shall not be responsible for on-going maintenance or repair obligations with respect to the Premises or the actions of any other party to which Landlord relets the Premises;
If Landlord elects to take possession of the Premises as provided in this Section 20.B.(i), Tenant shall pay to Landlord (a) the rent and other sums as herein provided, which would be payable hereunder if such repossession had not occurred, less (b) the net proceeds, if any, of any reletting of the Premises after deducting all of Landlords reasonable expenses incurred in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys fees, expenses of employees, alterations, remodeling, and repair costs and expenses of preparation for such reletting. If, in connection with any reletting, the new lease term extends beyond the existing term or the premises covered thereby include other premises not part of the Premises, a fair apportionment of the rent received from such reletting and expenses incurred in connection therewith, as provided aforesaid, will be made in determining the net proceeds received from such reletting, any rent concessions will be apportioned over the term of the new lease. Tenant shall pay such amounts to Landlord monthly on the days on which the Rent and all other amounts owing hereunder would have been payable if possession had not been retaken and Landlord shall be entitled to receive the same from Tenant on each such day;
(ii) Give Tenant written notice of Landlords intention to terminate this Lease on the date of such given notice or on any later date specified therein and, on the date specified in such notice, Tenants right to possession of the Premises shall cease and the Lease shall thereupon be terminated, except as to Tenants liability hereunder as hereinafter provided, as if the expiration of the term fixed in such notice were the end of the term herein originally demised. In the event this Lease is terminated pursuant to the provisions of this Section 20.B.(ii), Tenant shall remain liable to Landlord for all Rent due prior to the date of termination and damages in an amount equal to the rent and other sums which would have been owing by Tenant hereunder for the balance of the Term had this Lease not been terminated less the net proceeds, if any, of reletting of the Premises by Landlord subsequent to such termination, after deducting all of Landlords reasonable expenses in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys
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fees, expenses of employees, alterations, remodeling and repair costs and expenses of preparation for such reletting. Upon the occurrence of an uncured Event of Default, Landlord agrees to use commercially reasonable efforts to mitigate its damages. Landlord shall be entitled to collect such damages from Tenant monthly on the days on which rent and other amounts would have been payable hereunder if this Lease had not been terminated and Landlord shall be entitled to receive the same from Tenant on each such day. Alternatively, at the option of Landlord, in the event this Lease is terminated, Landlord shall be entitled to recover forthwith against Tenant any damages for loss of the bargain and not as a penalty an amount equal to the worth at the time of termination of the excess, if any, of the amount of rent reserved in this Lease for the balance of the Term hereof over the amount of rental which Landlord can reasonably obtain as rent for the remaining balance of the Term, discounted to present value at the rate of 5% per annum, plus all out-of-pocket amounts incurred by Landlord in order to obtain possession of the Premises and relet the same, including attorneys fees, reletting expenses, alterations and repair costs, brokerage commissions and all other like amounts; or
(iii) If Tenant shall fail to make any payment or cure any Event of Default hereunder within the time herein permitted, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the account of Tenant (and enter the Premises for such purpose), and thereupon Tenant shall be obligated, and hereby agrees, to pay Landlord upon demand all costs, expenses and disbursements, including reasonable attorneys fees incurred by Landlord in taking such remedial action.
C. Suit for the recovery of Rent and other amounts and damages set forth hereinabove may be brought by Landlord, at Landlords election, and nothing herein shall be deemed to require Landlord to await the date whereon this Lease or the term hereof would have expired had there been no such default by Tenant or no such termination, as the case may be. Each right and remedy provided for in this Lease shall be cumulative and shall be in additional to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, including, but not limited to, suits for injunctive relief and specific performance, except, however, that for the same Event of Default, Landlord shall bring all claims for such Event of Default at one time. The exercise or beginning of the exercise by Landlord of any one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise with regard to a different Event of Default. Unless specifically stated otherwise in this Lease, each right and remedy of Landlord shall be considered cumulative and non-exclusive. All reasonable out-of-pocket costs incurred by Landlord in connection with collecting any rent or other amount and damages owing by Tenant pursuant to the provisions of this Lease, or to enforce any provision of this Lease, shall also be recoverable by Landlord from Tenant.
D. No failure by either Landlord or Tenant to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of such agreement, term, covenant, or condition. No agreement, term, covenant or condition hereof to be performed or complied with by Landlord and Tenant and no breach thereof shall be waived,
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altered, or modified, except by written instrument executed by the other party. No waiver of any breach shall affect or alter either partys rights or obligations under this Lease, including a subsequent breach thereof. Notwithstanding any termination of this Lease, the same shall continue in full force and effect as to any provisions which require observance or performance by Landlord or Tenant subsequent to such termination.
E. Nothing contained in this Section 20 shall limit or prejudice the right of either party to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding an amount equal to the maximum allowed by any Applicable Law governing such a proceeding and in effect at the time when such damages are to be proven, whether or not such amount be greater, equal to, or less than the amounts recoverable, either as damages or rent, referred to in any of the preceding provisions of this Section. Notwithstanding anything contained in this Section to the contrary, any such proceeding or action involving bankruptcy, insolvency, reorganization, arrangement, assignment for the benefit of creditors, or appointment of a receiver or trustee, as set forth above, shall be considered to be an Event of Default only when such proceeding, action, or remedy shall be taken or brought by or against the then holder of the leasehold estate under this Lease.
F. Any Rent or other amounts owing hereunder which are not paid within five days after delivery of written notice to Tenant that such amounts are past due shall thereafter bear interest at the rate of eight percent (8%) per annum until paid. Further, in the event any Rent or other amounts owing hereunder are not paid within five days after due, Landlord and Tenant agree that Landlord will incur additional administrative expenses, the amount of which will be difficult if not impossible to determine. Accordingly, Tenant shall pay to Landlord an additional one-time late charge for any such late payment in the amount of $200.00. Any amounts paid by Landlord to cure any Event of Default by Tenant hereunder, which Landlord shall have the right but not the obligation to do, shall, if not repaid by Tenant within ten (10) days of demand by Landlord, thereafter bear interest at an annual rate of interest equal to eight percent (8%) per annum until paid.
G. If any action is brought by either party in order to enforce or interpret the terms and provisions of this Lease, the prevailing party in such action shall be entitled to recover from the other party any and all reasonable out-of-pocket attorneys fees incurred by such prevailing party in connection with such action.
21. DEFAULT BY LANDLORD.
A. In the event of any alleged default on the part of Landlord hereunder, Tenant shall give written notice to Landlord of such default and Landlord shall have 30 days to cure such default, or if it cannot be cured within 30 days, then so long as Landlord continues to diligently attempt to cure such default, such additional time as is necessary to cure such default, not to exceed 60 days. Notice to Landlord of any such alleged default shall be ineffective unless notice is simultaneously delivered to any holder of a mortgage or deed of trust, or the ground lessor under any ground lease affecting all or any portion of the Building Complex (Mortgagees), provided that prior to such notice Tenant has been notified, in writing, (by way of Section 28.B. herein or notice of Assignment of Rents and Leases, or otherwise), of the address of such Mortgagees and such information remains current.
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B. Except for the payment of money, whenever and to the extent that Landlord or Tenant shall be unable to fulfill, or shall be delayed or restricted in the fulfillment of any obligation hereunder in respect to the supply of or provision for, any service or utility or the doing of any work or the making of any repairs by reason of being unable to obtain the material, goods, equipment, service, utility or labor required to enable it to fulfill such obligation or by reason of any Applicable Law passed or made pursuant thereto or by reason of the order or direction of any administrator, controller or board, or any governmental department or officer or other authority, or by reason of not being able to obtain any permission or authority required thereby, or by reason of any other cause beyond such partys control or which cannot be reasonably mitigated, whether of the foregoing character or not, Landlord or Tenant, as the case may be, shall be entitled to extend the time for fulfillment of such obligation by a time equal to the duration of such delay or restriction.
22. SUBORDINATION AND ATTORNMENT.
A. So long as Tenant is provided with a commercially reasonable form of nondisturbance agreement for Landlords current and any future lender or ground lessor (Mortgagee) providing that so long as Tenant is not in default under this Lease beyond any applicable period of notice and cure Tenants possession of the Premises and rights hereunder shall not be disturbed (SNDA), this Lease shall be subordinate to (i) any mortgage, deed of trust or ground lease (now existing or hereafter placed upon the Building and/or Building Complex, or any portion thereof), including any amendment, modification, or restatement of any of such documents, (ii) any and all advances made under any mortgage or deed of trust, and (iii) all renewals, modifications, consolidations, replacements, and extensions of any such mortgage, deed of trust or ground lease. No subordination shall permit material interference with Tenants rights hereunder, and any ground lessor or Mortgagee shall recognize Tenant and its permitted successors and assigns as the tenant of the Premises and shall not disturb Tenants right to quiet possession of the Premises during the Term so long as no Event of Default has occurred and is continuing under this Lease.
B. If any Mortgagee shall elect to have this Lease superior to the lien of the applicable mortgage, deed of trust or ground lease, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage, deed of trust or ground lease or the date of recording thereof.
C. In confirmation of such subordination or superior position, as the case may be, Tenant agrees, so long as it receives a commercially reasonable SNDA, to execute such documents as may be required by Landlord or any Mortgagee to evidence the subordination of its interest herein to any of the documents described above, or to evidence that this Lease is prior to the lien of any mortgage or deed of trust or any ground lease, as the case may be. Failure to do so within 10 business days after written demand therefore shall constitute Tenants acceptance of the subordination of its interest.
D. Tenant hereby agrees to attorn to all successor owners of the Building, whether or not such ownership is acquired as a result of a sale, through foreclosure of a deed of trust or mortgage, or otherwise so long as the provisions of this Section 22 are met.
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23. HOLDING OVER: TENANCY MONTH-TO-MONTH.
If, after the expiration of this Lease, Tenant desires to remain in possession of the Premises and continue to pay rent, it will request Landlords consent to holdover and upon Landlords agreement in writing or by accepting such rent, then such holding over shall be deemed and taken to be a holding upon a tenancy from month-to-month, subject to all the terms and conditions thereof on the part of Tenant to be observed and performed and at a monthly rent equivalent to (a) 100% of the monthly installments of Base Rent and Additional Rent paid by Tenant during the last month of the Lease Term, for the first two months of the holdover, and (b) 150% of the monthly installments of Base Rent and Additional Rent paid by Tenant during the last month of the Lease Term, from and after the third month of the holdover. All such rent shall be payable in advance on the same day of each calendar month. Such month-to-month tenancy may be terminated by either party by not less than 10 days notice prior to the end of such monthly period. Nothing contained herein shall be construed as obligating Landlord to accept any holdover period or as relieving Tenant of its liability pursuant to Section 16 if no holdover of the Premises has been agreed. Any holdover without Landlords consent shall be deemed an Event of Default entitling Landlord to all of its rights and remedies set forth in Section 20 above.
24. PAYMENTS AFTER TERMINATION.
No payments of money by Tenant to Landlord after the effective date of any termination of this Lease in any manner in accordance with this Lease, shall reinstate, continue, or extend the term of this Lease or affect any notice given to Tenant prior to the payment of such money, it being agreed that after the service of notice or other final judgment granting Landlord possession of the Premises, Landlord may receive and collect any sums of rent due or any other sums of money due under the terms of this Lease or otherwise exercise Landlords rights and remedies hereunder and the payment of such sums of money, whether as rent or otherwise, shall not waive said notice or in any manner affect any pending suit or judgment theretofore obtained.
25. ESTOPPEL/STATEMENT OF PERFORMANCE.
Tenant agrees at any time and from time to time, upon not less than 15 business days prior written request by Landlord, to execute, acknowledge, and deliver to Landlord an estoppel certificate in substantially the form attached hereto as Exhibit G . It is intended that any such estoppel certificate delivered pursuant to this Section may be relied upon by Landlord, any mortgagee or prospective mortgagee, or any prospective purchaser of all or any portion of Landlords interest in the Building Complex. Tenant acknowledges that it may be difficult, if not impossible, for Landlord to sell or finance the Building without such an estoppel certificate from Tenant, and that Landlord would not enter into this Lease without Tenants agreement to provide such an estoppel certificate. In the event Tenant fails to deliver such estoppel certificate to Landlord within such 15-business day period, Landlord shall provide a second notice to Tenant, via certified mail, signature and return receipt requested, stating that a failure to return the estoppel certificate within 10 days of receipt of the second notice shall be deemed an Event of Default under this Lease. Tenants failure to deliver the estoppel certificate within such 10-day period shall constitute an Event of Default hereunder, and Tenant agrees to pay to Landlord, as liquidated damages, an amount equal to 12 months of Base Rent then in effect. Further, upon reasonable request, Tenant will supply to Landlord a corporate, partnership, limited liability
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company, or other similar resolution, as the case may be, certifying that the party signing said statement of Tenant is properly authorized to do so. Notwithstanding anything to the contrary contained herein, any notice delivered to Tenant requesting the execution of an estoppel certificate shall, in addition to the notice address for Tenant specified in Section 28 below, be individually delivered (either personally or via certified mail) to the following individuals at the addresses indicated: _ADA-ES, Inc. CFO (at Premises address); ADA-ES, Inc. Corporate Counsel (at the notice address for Tenant specified in Section 28); Counsel for ADA-ES, Inc. at Schuchat, Herzog & Brenman, LLC., 1900 Wazee Street, Suite 300; Denver, Colorado 80202. .
26. HAZARDOUS SUBSTANCES.
A. Tenant shall not cause or permit any Hazardous Substance (as defined below) to be used, stored, generated, or disposed of on, in or about the Premises, the Building, or the Building Complex by Tenant, or any of its agents, employees, representatives, contractors, suppliers, customers, subtenants, licensees, or invitees (a Tenant Party) unless Tenant shall have received Landlords prior written consent, which Landlord may withhold or at any time revoke in its sole discretion.
B. Notwithstanding the foregoing, Tenant may store, use and dispose of de minimis amounts of office and cleaning products in the normal course of general office use in accordance with all Applicable Laws.
C. Tenant shall indemnify and defend Landlord, its officers, directors, managers, members, employees and agents (a Landlord Indemnified Party), and hold the same harmless, from and against any and all finally awarded claims, damages, fines, judgments, penalties, costs, expenses, liabilities, or losses to the extent relating to any violation by Tenant or a Tenant Party of any Environmental Law (as hereinafter defined) or of this Section 26 (including, without limitation, a material decrease in value of the Premises, direct damages caused by loss or restriction of rentable or usable space, and any and all sums finally awarded for settlement of claims, attorneys fees, consultant fees, and expert fees) incurred by or asserted against Landlord arising during or after the Lease Term as a result thereof (Environmental Claims). A Landlord Indemnified Party shall meet the provisions of Section 15.C. with regard to Environmental Claims. As part of its indemnification obligation, Tenant shall be responsible to conduct and pay for any investigation of the site or any cleanup, removal, testing, or restoration mandated or conducted by or on behalf of any federal, state, or local agency or political subdivision. Without limitation of the foregoing, to the extent Tenant causes or permits the presence of any Hazardous Substance in the Premises, the Building, or the Building Complex that results in any contamination, Tenant shall promptly, at its sole expense, take any and all necessary or appropriate actions to return the Premises, the Building, and the Building Complex to the condition existing prior to the presence of any such Hazardous Substance. Tenant shall first obtain Landlords written approval for any such remedial action. The indemnification obligations in this Section shall survive any termination of this Lease.
D. Hazardous Substance means any substance that is regulated by any local government, the State of Colorado, the United States government, or any agency, authority and/or instrumentality thereof and includes any and all materials or substances that are defined as
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hazardous waste, extremely hazardous waste, or a hazardous substance pursuant to any Environmental Law. Hazardous Substance includes but is not restricted to petroleum and petroleum byproducts, asbestos, explosives, polychlorinated biphenyls (PCBs) and infectious waste.
E. Environmental Laws means all federal, state and local laws, including statutes, regulations, and requirements, relating to the discharge of air pollutants, water pollutants or process waste water or otherwise relating to the environment or Hazardous Substances, including, but not limited to, the Federal Clean Water Act, the Federal Resource Conservation and Recovery Act of 1976, the Federal Comprehensive Environmental Responsibility Cleanup and Liability Act of 1980, regulations of the Environmental Protection Agency, regulations of the Nuclear Regulatory Agency, and regulations of any state department of natural resources or state environmental protection agency, as amended or supplemented from time to time, now or at any time hereafter in effect.
F. To the extent any Hazardous Substances are present in, at, on or about the Premises, the Building or the Building Complex, as of the Effective Date, or which are introduced to the Premises, the Building or the Building Complex during the term of this Lease through no fault of Tenant or any Tenant Parties, Landlord shall be responsible for removing or otherwise remediating such Hazardous Substances as required by, and in full compliance with, all Applicable Laws at no cost to Tenant. Landlord hereby indemnifies and holds Tenant and its officers, directors, employees and agents (a Tenant Indemnified Party) harmless from and against all Environmental Claims (including reasonable attorneys fees) incurred by Tenant or a Tenant Indemnified Party as a result of any adverse effect which results from the manufacturing, generating, processing, distributing, using, producing, treating, storing (above or below ground level), disposing of, transportation, emission, discharge, release, threatened release or allowing to be present of any Hazardous Substance from, in, or about the Premises, the Building or the Building Complex by Landlord or its employees, agents or contractors. The indemnification obligations in this Section shall survive any termination of this Lease.
27. MISCELLANEOUS.
A. The term Landlord as used in this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be limited to mean and include only the entity named on this Lease or any person or entity to which the Lease has been validly assigned with the assignee assuming all obligations and responsibilities of the Landlord under the Lease. In the event of any transfer or transfers of the title of the Building , Landlord herein named (and in the case of any subsequent transfers or conveyances, the then grantor) shall be released, from and after the date of such transfer or conveyance, of all liability as respects the performance of any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed after the effective date of the assignment of the Lease, provided that any funds in the hands of Landlord or the then grantor at the time of such transfer in which Tenant has an interest shall be turned over to the grantee and any amount then due and payable to Tenant by Landlord or the then grantor under any provisions of this Lease shall be paid to Tenant.
B. The termination or mutual cancellation of this Lease shall not work a merger, and such termination or mutual cancellation shall, at the option of Landlord, either terminate all subleases and subtenancies or operate as an assignment to Landlord of any and all such subleases or subtenancies.
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C. Tenant agrees that, for the purposes of completing or making repairs or alterations in any portion of the Building, Landlord may use one or more of the street entrances, the halls, passageways, and elevators of the Building, so long as Tenants access to the Building is not materially and adversely affected.
D. This Lease shall be construed as though the covenants herein between Landlord and Tenant are independent and not dependent and Tenant shall not be entitled to any setoff of the rent or other amounts owing hereunder against Landlord if Landlord fails to perform its obligations set forth herein; provided, however, the foregoing shall in no way impair the right of Tenant to commence a separate action against Landlord for any violation by Landlord of the provisions hereof so long as notice is first given to Landlord and any holder of a mortgage or deed of trust covering the Building and/or Building Complex or any portion thereof or any ground lessor for the Building and/or Building Complex or any portion thereof as provided in Section 21 above.
E. If any clause or provision of this Lease is illegal, invalid, or unenforceable under present or future laws effective during the term of this Lease, then and in that event it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid, or unenforceable there be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable.
F. The caption of each Section is added as a matter of convenience only and shall be considered of no effect in the construction of any provision or provisions of this Lease.
G. Except are herein specifically set forth, all terms, conditions, and covenants to be observed and performed by the parties hereto shall be applicable to and binding upon their respective heirs, administrators, executors, and assigns. The terms, conditions, and covenants hereof shall also be considered to be covenants running with the land to the fullest extent permitted by law.
H. Landlord and Tenant represent that the party executing this Lease on behalf of such party is authorized to do so by requisite action of the board or directors or partners, members or managers of such party, as the case may be, and agree, upon request, to deliver to the other party a resolution or similar document to that effect.
I. Intentionally deleted.
J. No act or thing done by Landlord or Landlords agent during the term hereof, including, but not limited to, any agreement to accept surrender of the Premises or to amend or modify this Lease, shall be deemed to be binding on Landlord, unless such act or thing shall be by a partner or officer of Landlord, as the case may be, or a party designated in writing by Landlord as so authorized to act. The delivery of keys to Landlord, or Landlords agents, employees, or officers shall not operate as a termination of this Lease or a surrender of the
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Premises. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent and all other amounts owing, as herein stipulated, shall be deemed to be other than on account of the earliest stipulated rent or other amounts nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction that Landlord may accept such check or payment without prejudice to Landlords right to recover the balance of such rent or pursue any other remedy available to Landlord.
K. Landlord shall have the right at any time to change the name of the Building and/or Building Complex (so long as it is not named after another tenant in the Building), to increase the size of the Building and/or Building Complex by adding additional real property thereto, to construct other buildings or improvements on any portion of the Building and/or Building Complex or to change the location and/or character of or to make alterations of or additions to the Building and/or Building Complex, so long as Tenants rights and obligations under this Lease (including the obligation to pay Rent) are not materially and adversely affected. In the event any such additional buildings are constructed or Landlord increases the size of the Building and/or Building Complex, Landlord shall minimize any interference with the operations of the Building (including the parking areas), and Landlord and Tenant shall execute an amendment to this Lease which incorporates such modifications, additions, and adjustments to Tenants Pro Rata Share, if necessary. Tenant shall not use the Buildings and/or Building Complexs name for any purpose other than as a part of its business address. Landlord shall send Tenant a written cease and desist notice if Tenant uses such name improperly. If Tenant does not cease such improper use of such name in the designation of Tenants business within 30 days after receiving such cease and desist notice, such use shall constitute an Event of Default.
L. Tenant covenants and agrees that no diminution of light, air, or view of or from the Building, or any other building (whether or not constructed or owned by Landlord) shall entitle Tenant to any reduction of rent or other charges under this Lease, result in any liability of Landlord to Tenant, or in any way affect this Lease or Tenants obligations hereunder.
M. Each party acknowledges and agrees that it has not relied upon any statements, representations, agreements, or warranties by the other party, its agents or employees, except such as are expressed herein and that no amendment or modification of this Lease shall be valid or binding unless expressed in writing and executed by the parties hereto in the same manner as the execution of this Lease.
N. Tenant agrees to make such modification and amendments of this Lease as may hereafter be required to conform to any lenders requirements, so long as such modifications or amendment will not increase Tenants obligations hereunder or materially alter its rights as set forth herein.
O. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or an option for lease, and it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.
P. This Lease shall be governed and interpreted in accordance with the laws of the State of Colorado.
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Q. As part of the services Landlord provides hereunder, Landlord may elect to provide a concierge or security guard for more efficient operation of the Building, and the cost therefor shall be included as an Operating Expense. Landlord is not obligated to provide such services at any time or for any length of time. Tenant expressly acknowledges that Landlord has not represented to Tenant that the Building is a secure building. Landlord shall not be responsible for the quality of concierge or security service which may be provided hereunder or for damage or injury to Tenant, its agents, employees, invitees or others or its improvements contained in the Building and/or Building Complex or the Premises due to the failure, action or interaction of such persons, unless caused by the negligence or willful misconduct of Landlord.
R. Tenant shall not record this Lease or a memorandum hereof. It the event that Tenant violates this provision, this Lease shall be null and void and of no further force and effect, at Landlords option.
S. Except as permitted by Section 6.I herein, no sign, advertisement or notice shall be inscribed, painted or affixed on any part of the inside or outside of the Building unless such color, size and style and in such place upon or in the Building as shall be first designated by Landlord in writing, but there shall be no obligation or duty on Landlord to allow any sign, advertisement or notice to be inscribed, painted or affixed on any part of the inside or outside of the Building. Notwithstanding the foregoing, Tenant shall be allowed one line on a Building directory in a conspicuous place to be provided by Landlord and one Building standard sign near the exterior door of the Premises with Tenants name.
T. Landlord has made available space in the Building for a dressing room and shower facility which, subject to the following, is available for the use by Tenant and its employees and independent contractors working in the Premises, other tenants of the Building and their employees. The facility is considered part of the Common Area of the Building and all costs associated therewith are Operating Expenses of the Building. Use of the facility shall be subject to availability and to the reasonable rules and regulations imposed by Landlord from time to time. Landlord reserves the right to discontinue the availability of the facilities temporarily or permanently. Landlords inability to make such facility available at any time during the Term of the Lease shall not be deemed a breach by Landlord of any of its obligations hereunder. Tenant and its employees understand that using the facilities are at their sole risk and any injuries resulting therefrom including injuries resulting from the negligence and carelessness of other users are at Tenants and its employees sole risk. The facilities will not be supervised and, absent Landlord or Landlords employees or agents negligence or willful misconduct, neither Landlord nor its agents or employees shall be liable for any injury, damage, fire, theft or loss to persons or property while using the facilities no matter what the cause. Tenant and its employees and independent contractors working in the Premises shall be prohibited from allowing any other person to enter or use the facility without the express consent of Landlord.
U. Landlord and Tenant understand, agree and acknowledge that (i) this Lease has been freely negotiated by both parties, (ii) both Landlord and Tenant have been represented by legal counsel of their own choosing (or have chosen not to be represented by legal counsel), and (iii) in any controversy, dispute, or contest over the meaning, interpretation, validity, or enforceability of this Lease or any of its terms and conditions, there shall be no inference, presumption or conclusion drawn whatsoever against either party by virtue of that party having drafted this Lease or any portion hereof.
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V. This Lease may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute collectively but one agreement.
28. AUTHORITIES FOR ACTION AND NOTICE.
A. Except as herein otherwise provided, Landlord may act in any manner provided for herein by and through Landlords building manager or any other person who shall from time to time be designated in writing.
B. All notices, demands, statements or communications required or permitted to be given to Landlord hereunder shall be in writing and shall be deemed duly served when delivered personally to any officer of Landlord (or a partner of Landlord if Landlord is a partnership or to Landlord individually if Landlord is a sole proprietor), or when deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed to Landlords Notice Address or at the address below or most recent address of which Landlord has notified Tenant in writing. All notices, demands, statement or communications required to be given to Tenant hereunder shall be in writing and shall be deemed duly served when delivered personally to any officer of Tenant if such persons office is in the Building, when deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed to Tenants President and Corporate Counsel at the Premises, or, prior to Tenants taking possession of the Premises, to the address below which is Tenants current principal office address. Either party shall have the right to designate in writing, served as above provided, a different address to which notice is to be mailed. The foregoing shall in no event prohibit notice from being given as provided in Rule 4 of Colorado Rules of Civil Procedure, as the same may be amended from time to time.
Landlords Notice Address: as specified in Section 1.F.
Landlords Mortgagees Notice Address:
State Farm Life Insurance Company
One State Farm Plaza A-3
Bloomington, IL 61710-0001
Corporate Law-Investments
Attn: Robert B. ODell
Tenants Notice Address:
8100 Southpark Way, Unit B
Littleton, CO 80120
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29. RULES AND REGULATIONS.
It is further agreed that the rules and regulations set forth on Exhibit F attached hereto shall be and are hereby made a part of this Lease and Tenant agrees that Tenant, its employees, agents and any other permitted by Tenant to occupy or enter the Premises will at all times abide by said rules and regulations. A material breach of any of such rules or regulations that remains uncured for 30 days after notice of the breach shall be deemed an Event of Default under Section 20.A.(x) of this Lease.
30. BROKERAGE.
Tenant hereby represents and warrants that Tenant has not employed any broker in regard to this Lease and that Tenant has no knowledge of any broker being instrumental in bringing about this lease transaction, except CB Richard Ellis, who has acted as Landlords leasing agent, and Cresa-Partners-Denver, Inc., who has acted as Tenants leasing agent (collectively, Brokers). Landlord and Tenant agree to indemnify the other against any expenses incurred by the indemnified party as a result of any claim for brokerage or other commissions made by any broker, finder, or agent (other than Brokers), whether or not meritorious, employed by the indemnifying party or claiming by, through or under the indemnifying party. Tenant acknowledges that Landlord shall not be liable for any representations by such brokers regarding the Premises, Building, Building Complex, or this Lease. Landlord shall pay a commission to Brokers pursuant to a separate written agreement.
31. SUBSTITUTE PREMISES.
Intentionally deleted.
32. TIME OF ESSENCE.
Intentionally deleted.
33. PARKING.
Tenant shall be allowed to park in the Building Complex without additional charge, in accordance with the Parking License attached hereto as Exhibit D .
34. EXHIBITS.
All exhibits attached hereto are made a part hereof and are incorporated herein by this reference.
35. LIMITED LIABILITY OF LANDLORD.
Anything contained in this Lease to the contrary notwithstanding, Tenant agrees that Tenant shall look solely to Landlords interest in the Building Complex (including any proceeds from a sale of the Building Complex and/or Landlords insurance policies, if applicable), for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord in the event of any default or breach by Landlord with respect to any of the terms and
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provisions of this Lease to be observed or performed by Landlord and no assets of Landlords partners, agents, employees, officers, or the employees or officers of any of its partners shall be subject to levy, execution or other judicial process for the satisfaction of Tenants claim.
36. FINANCIAL INFORMATION.
Tenant shall, from time to time at reasonable intervals (but no more than once per calendar year) upon Landlords request, make available to Landlord a copy of (a) Tenants most recent annual financial statements, which financial statements shall be prepared by Tenants accountant each year during the term of this Lease in accordance with generally accepted accounting principals and shall be certified as true and correct by Tenant, and (b) any 10Qs or 10Ks when issued, if any.
37. OFAC.
Pursuant to United States Presidential Executive Order 13224 (Executive Order) and related regulations of the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, U.S. persons and entities are prohibited from transacting business with persons or entities who, from time to time, are determined to have committed, or to pose a risk of committing or supporting terrorist acts, narcotics trafficking, money laundering and related crimes. Those persons and entities are identified on a list of Specially Designated Nationals and Blocked Persons (the List), published and regulated by OFAC. The names, including aliases, of those persons or entities on the List (Blocked Persons) are updated frequently. In addition, OFAC enforces other Executive Orders which, from time to time, impose restrictions on transactions with, or involving certain countries. Tenant represents and warrants that neither Tenant, nor to Tenants knowledge, any of Tenants respective officers, directors or shareholders, and no other direct or indirect holder of any equity interest in Tenant, is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, a Blocked Person, or other banned or blocked person, group, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by OFAC and that it is not engaged in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of any such person, group, entity, or nation. Landlord represents and warrants that neither Landlord, nor to Landlords knowledge, any of Landlords respective officers, directors, shareholders, partners, members or associates, and no other direct or indirect holder of any equity interest in Landlord, is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, a Blocked Person, or other banned or blocked person, group, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by OFAC and that it is not engaged in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of any such person, group, entity, or nation.
38. ROOF EQUIPMENT.
During the Lease Term, Tenant shall have the non-exclusive right at its sole cost to install, maintain, and from time to time replace one or more satellite dishes and/or an antennae
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on the roof of the Building with necessary cabling and wiring connecting it to the Premises (such dish, antenna, cabling and wiring and other equipment being collectively referred to as the Roof Equipment) for purposes of facilitating wireless communications or expanding phone, computer or television services of Tenant to and from the Premises, provided that (a) Tenant shall obtain Landlords prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed, of the proposed size, weight, location and aesthetic impact of the Roof Equipment and the method for fastening the Roof Equipment to the Building, (b) Tenant shall obtain approval from the ARC, (c) Tenant will at its sole cost comply with (i) all Applicable Laws, (ii) Landlords reasonable requirements from time to time, and (iii) the conditions of any bond or warranty maintained by Landlord on the roof, (d) the Roof Equipment shall not interfere, electronically or otherwise, with the equipment, facilities, use or operations of Landlord or of other preexisting (as of the date of installation of the Roof Equipment) licensees or tenants of Landlord in the Building Complex, and (e) Tenant shall use reasonable efforts to avoid interference by the Roof Equipment with any later-installed roof equipment and wireless communications of such other parties. Landlord may supervise any roof penetration. Landlord shall not charge any rental fee for the Roof Equipment. In no event shall Landlords approval of plans for the Roof Equipment or supervision of roof penetration be deemed a representation that the Roof Equipment will not cause, or be subject to, interference or that such plans will comply with Applicable Laws, future requirements of Landlord, or the condition of any bond or warranty maintained by Landlord on the roof. Tenant shall repair any damage to the Building caused by the installation, maintenance, replacement, use or removal of the Roof Equipment. The Roof Equipment shall remain the property of Tenant. Tenant may remove or modify the Roof Equipment at its sole cost during the term of this Lease, and Tenant shall remove the Roof Equipment at its sole cost upon expiration or earlier termination of the Lease. Landlord agrees, with respect to any equipment or other roof rights or licenses granted by Landlord to other tenants or occupants of the Building or to telecommunications service providers after installation of Tenants Roof Equipment, Landlord shall require such tenants, occupants or providers to agree that they will not interfere with any preexisting equipment of other tenants of the Building (including of Tenant) and Landlord shall use commercially reasonable efforts to enforce such provisions. Not more than once during the Primary Lease Term and only if such relocation is necessary in order for Landlord to perform repairs or replacement of the roof of the Building, Landlord shall have the right to require Tenant, at Landlords sole cost, to relocate all or any part of the Roof Equipment to another location on the roof of the Building mutually agreed upon by Landlord and Tenant, provided that such relocation does not diminish Tenants use of the Roof Equipment in any material manner. Subject to the provisions of Section 15 herein, Tenant shall protect, defend, indemnify and hold harmless Landlord from and against all claims, damages, liabilities, costs and expenses of every kind and nature, including reasonable attorneys fees, incurred by Landlord arising out of Tenants installation, maintenance, replacement, use or removal of the Roof Equipment.
39. BACK UP GENERATOR.
During the Lease Term, Tenant shall have the right, free of charge, to use designated areas adjacent to or near the Building in a location mutually acceptable to Landlord and Tenant (collectively, the Generator Pad License Area), for the installation and use by Tenant during the Lease Term of a back-up generator (the Generator); provided, however, that (i) Tenant shall obtain all required approvals from the ARC (if any) with respect to the Generator, (ii)
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Tenant shall obtain Landlords prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed, of the proposed size, location and aesthetic impact of the Generator, (iii) Tenant will at its sole cost comply with (1) all Applicable Laws, and (2) Landlords reasonable requirements from time to time, in any way relating to the Generator, and (iv) in the event the Generator Pad License Area is located in the Surface Lots (as defined in Exhibit D attached hereto) and any Parking Spaces are lost as a result of the installation of the Generator, such lost Parking Spaces shall be deducted from the number of Parking Spaces available to Tenant pursuant to Exhibit D . If, and only if, Landlord has notified Tenant, in writing, at the time Landlord initially approves the Generator that Landlord will require removal upon the expiration or earlier termination of this Lease, then Tenant shall, at Tenants sole cost and expense, remove the Generator upon the expiration or earlier termination of this Lease (which removal shall include restoration of the Generator Pad License Area to the condition it was in prior to the installation of the same); provided, however, even if Landlord does not require removal, Tenant shall have the right, at its sole cost and expense, to remove the Generator upon the expiration or earlier termination of this Lease (which removal shall include restoration of the Generator Pad License Area to the condition it was in prior to the installation of the same). In the event Landlord does require removal of the Generator and Tenant fails to remove the same upon expiration or earlier termination of this Lease, Landlord may remove and dispose of the same and all costs incurred by Landlord in connection with such removal shall be payable by Tenant to Landlord on demand as Additional Rent. In the event Landlord does not require removal of the Generator and Tenant fails to remove the same upon expiration or earlier termination of this Lease, the Generator shall become the sole property of Landlord and Tenant shall have no further claim thereto. Tenant shall be solely responsible for the costs of the design, installation, operation, repair, maintenance and removal of the Generator, shall install, operate, repair and maintain the Generator in accordance with all Applicable Laws and shall obtain any approvals or permits from governmental authorities and the ARC required in connection therewith. The Generator shall be installed by and remain the property of Tenant during the Lease Term. Subject to the provisions of Section 15 herein, Tenant shall protect, defend, indemnify and hold harmless Landlord from and against all claims, liabilities, losses, damages, costs, or expenses, including reasonable attorneys fees, fines, penalties, judgments, or obligations incurred by Landlord arising out of the design, or Tenants installation, operation, repair, maintenance or removal, of the Generator. Landlord shall reasonably cooperate with Tenant in connection with the design, installation, operation, repair, maintenance and/or removal of the Generator at no out-of-pocket cost to Landlord, including entering into any agreements with third party providers in forms reasonable acceptable to Landlord.
40. LANDLORD REPRESENTATIONS.
Landlord represents and warrants to Tenant that, as of the Effective Date, to Landlords actual knowledge, (a) all Building systems serving the Premises (including structural systems, the roof system, plumbing systems, window systems, elevator systems, base Building HVAC and electrical systems, and fire and life safety systems), window coverings in the Premises and the floors and ceilings of the Premises are in good working order and in compliance with Applicable Laws, (b) Landlord has not received any notice from any governmental authority of any violations of any Applicable Laws (including the ADA and any applicable state or local laws relating to access by disabled or handicapped persons) affecting the Building, and (c) there are no Hazardous Substances located in the Building.
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41. EXPANSION OPTION.
From and after the Effective Date and continuing through the Primary Lease Term (the Expansion Period), and subject to any existing renewal, expansion, right of first refusal, right of first offer, or other rights of current tenants in the Building, Landlord hereby grants to Tenant an ongoing option to expand in the Building (the Expansion Option) for up to 10,000 rentable square feet of space in the Building Complex (the Expansion Space), to be exercised in accordance with this Section. This Expansion Option shall automatically terminate upon expiration of the Expansion Period.
A. If Tenant wishes to lease any Expansion Space during the Expansion Period, Tenant shall so notify Landlord in writing (Tenants Expansion Notice) identifying the square footage (and, to the extent identified, the location) of Expansion Space it wishes to lease (the Subject Expansion Space). Tenants Expansion Notice may be given to Landlord on any Subject Expansion Space at any time during the Expansion Period. Tenant shall continue to have the Expansion Right during the Expansion Period as to any Subject Expansion Space not identified in Tenants Expansion Notice. If Tenant does provide Tenants Expansion Notice to Landlord during the Expansion Period and such Subject Expansion Space has not been leased by Landlord to another tenant or is space for which Landlord is not then actively negotiating either a letter of intent or a lease with a prospective tenant, the Subject Expansion Space identified therein shall be added to the Premises for all purposes of this Lease on the following terms and conditions: (i) the term of any such lease of Subject Expansion Space shall be co-terminous with the Lease Term; (ii) the Base Rent shall be Market Rent (as defined in Section 44 below) based on a five year lease term as reasonably determined by Landlord; and (iii) Rent shall commence for the Subject Expansion Space on the date the Subject Expansion Space is delivered to Tenant. Any improvements or Alterations in the Subject Expansion Space constructed by Tenant shall be constructed in accordance with and subject to all of the terms and conditions of this Lease. Notwithstanding the foregoing, in the event Tenant leases any Subject Expansion Space during the last 24 months of the Primary Lease Term, Tenant shall be required to extend the lease of the Premises then being leased by Tenant in accordance with Section 44 below.
B. Tenants Expansion Option is subject to the conditions that: (i) on the date that Tenant delivers Tenants Expansion Notice, an uncured Event of Default does not then exist, and (ii) Tenant shall not have assigned this Lease, or sublet all or any portion of the Premises under a sublease which is in effect at any time during the period commencing with Tenants delivery of its notice and ending on the date the Subject Expansion Space is added to the Premises, to any person or entity other than in connection with a Permitted Transfer. If Tenant so exercises its Expansion Option, then within 30 days thereafter, Landlord and Tenant shall execute an amendment to this Lease to add the Subject Expansion Space to the Premises as of the date possession of the same is delivered to Tenant, and with an appropriate adjustment to Base Rent, Tenants Pro Rata Share and any other provisions that are affected by the rentable square footage of the Premises and, if applicable, such amendment shall include an extension of the Primary Lease Term for the Premises leased by Tenant prior to the addition of the Subject Expansion Space. All other terms and conditions of this Lease shall be applicable to the Subject Expansion Space and Tenants occupancy thereof from and after the time that Tenant takes occupancy thereof.
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42. RIGHT OF FIRST REFUSAL.
A. From and after the Effective Date and continuing throughout the Primary Lease Term, and subject to the terms and conditions of this Section 41 and also subject to any renewal, expansion, right of first refusal, right of first offer or other rights of existing tenants in the Building, Landlord hereby grants to Tenant a continuing right of first refusal to lease Suite 100 in the Building consisting of approximately 3,643 rentable square feet, and/or Suite 120 in the Building consisting of approximately 2,722 rentable square feet and for which Landlord receives a third-party offer to lease, that Landlord desires to accept (the Applicable ROFR Space). In such event, Landlord shall notify Tenant of the terms of the third-party offer for the Applicable ROFR Space, including, without limitation, economic terms such as Base Rent, rent abatements, tenant improvement allowances and similar terms (ROFR Space Terms). Tenant will have the right, but not the obligation, to elect to lease the Applicable ROFR Space on the ROFR Space Terms by delivering to Landlord notice of its election to exercise this option within five days after the date Landlords notice of ROFR Space Terms is received by Tenant (Right of First Refusal). Time is of the essence under this provision. The Applicable ROFR Space shall be delivered by Landlord to Tenant free of any previously occupying tenant, in its then as is condition (subject to the ROFR Space Terms), as of the date for Tenant to take possession as set forth in Landlords notice of ROFR Space Terms; provided, however, in the event Tenant elects to lease the Applicable ROFR Space and such election is made during the last 24 months of the Primary Lease Term, Tenant shall be required to extend the lease of the Premises then being leased by Tenant so that such lease is co-terminous with the term of the lease of the Applicable ROFR Space as specified in the ROFR Space Terms, if such term extends beyond the Primary Lease Term. If Tenant fails to exercise the Right of First Refusal, Tenants Right of First Refusal on such Applicable ROFR Space shall automatically expire for that particular offer, and Landlord shall have the right to lease (including entering into a letter of intent) the Applicable ROFR Space to such third-party or to any other Person upon substantially the same terms contained in the ROFR Space Terms. In the event that Landlord does not execute a lease with that particular third-party, Tenants right of first refusal with respect to that Applicable ROFR Space shall be reinstated.
B. Tenants Right of First Refusal is subject to the conditions that: (i) on the date that Tenant delivers any notice exercising its Right of First Refusal, an uncured Event of Default does not then exist, and (ii) Tenant shall not have assigned this Lease, or sublet all or any portion of the Premises under a sublease which is in effect at any time during the period commencing with Tenants delivery of its notice and ending on the date the Applicable ROFR Space is added to the Premises, to any Person other than in connection with a Permitted Transfer. If Tenant so exercises the Right of First Refusal, then within 30 days thereafter, Landlord and Tenant shall execute an amendment to this Lease to add the Applicable ROFR Space to the Premises as of the date specified in the ROFR Space Terms, on the terms set forth in the ROFR Space Terms, and with an appropriate adjustment to Base Rent, Tenants Pro Rata Share and any other provisions that are affected by the rentable square footage of the Premises and, if applicable, such amendment shall include an extension of the Primary Lease Term for the Premises leased by Tenant prior to the addition of the Applicable ROFR Space. All other terms and conditions of this Lease not in conflict with the ROFR Space Terms shall be applicable to the Applicable ROFR Space and Tenants occupancy thereof from and after the time that Tenant takes occupancy thereof.
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43. TENANTS LIMITED OPTION TO CONTRACT.
A. From and after the Effective Date and continuing throughout the Primary Lease Term, subject to the terms and conditions of this Section 42, Landlord hereby grants Tenant a one-time right to cancel this Lease solely as to the Contraction Space, as hereinafter defined (the Contraction Option), by delivering written notice to Landlord of its election to cancel this Lease with respect to the Contraction Space (Tenants Election Notice) not less than six months prior to effective date of the cancellation specified in Tenants Election Notice (the Contraction Space Cancellation Date). For purposes of this Section, the term Contraction Space shall mean any portion of the Premises then leased by Tenant on a floor other than the second floor of the Building as designated by Tenant in Tenants Election Notice as space it no longer wishes to lease from Landlord, the location of which shall be subject to Landlords reasonable approval, and which shall, to the fullest extent practicable, consist of contiguous, marketable space in the Building. As a condition to Tenants election, Tenant shall, at least 30 days prior to the date it delivers Tenants Election Notice, deliver to Landlord a written notice requesting (a) Landlords approval of the location of the proposed Contraction Space, and (b) that Landlord provide to Tenant a notice containing the amount of the Cancellation Fee (as hereinafter defined) required to be paid by Tenant in connection with the exercise of its Contraction Option. So long as Landlord has provided Tenant with notice of the amount of the Cancellation Fee within 30 days after receipt of Tenants request therefor, then as a further condition to Tenants election, Tenant shall deliver to Landlord concurrently with Tenants Election Notice, a cancellation fee, in bank funds or by company check, in an amount equal to the sum of Landlords unamortized transaction costs, including, without limitation, leasing commissions, any tenant improvement allowance actually paid for by Landlord and free rent, all of which shall be at nine percent (9%) per annum over the Primary Lease Term or the then current Term for such Contraction Space, as applicable, and will be calculated as of the Contraction Space Cancellation Date (collectively, the Cancellation Fee). In the event Landlord fails to provide Tenant with notice of the amount of the Cancellation Fee within the required 30-day period, Tenant shall pay the Cancellation Fee to Landlord within 10 days after receipt of such notice.
B. Tenants Contraction Option is subject to the conditions that: (i) on the date that Tenant delivers Tenants Election Notice, an uncured Event of Default does not then exist, and (b) Tenant shall not have assigned this Lease, or sublet all or any portion of the Premises under a sublease which is in effect at any time during the period commencing with Tenants delivery of its notice and ending on the date the Contraction Space is added to the Premises, to any person or entity other than in connection with a Permitted Transfer. If Tenant so exercises the Contraction Option, then within 30 days thereafter, Landlord and Tenant shall execute an amendment to this Lease to remove the Contraction Space from the Premises as of the Contraction Space Cancellation Date, and with an appropriate adjustment to Base Rent, Tenants Pro Rata Share and any other provisions that are affected by the rentable square footage of the Premises.
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44. EXTENSION OPTION.
Provided that an uncured Event of Default on the part of Tenant does not then exist, Tenant shall have the option to renew the Primary Lease Term for two additional five-year periods (each, a Renewal Term). There shall be no additional renewal term beyond the Renewal Terms set forth herein. Tenant must exercise its option to renew this Lease by giving Landlord written notice of such exercise (Exercise Notice) no later than 180 days, and no more than one year, prior to the Termination Date, or the expiration date of the first Renewal Term, as applicable. Any Exercise Notice not given in a timely manner shall be void, and Tenant shall be deemed to have waived its right to renew. Upon timely giving of such notice, the Lease Term shall be deemed renewed without the need for further action by either party.
A. Each Renewal Term shall be on all of the terms and conditions of this Lease, except for this Section 44 and Exhibit C to this Lease, and except that Landlord shall have no additional obligation for abatement of Rent, leasehold improvements or for any other tenant inducements for any Renewal Term, unless otherwise provided in the determination of Market Rent as specified in paragraph B. below, and Base Rent for the applicable Renewal Term shall be Market Rent (as defined below).
B. Market Rent shall be the then prevailing market rate for a comparable term commencing on the first day of the applicable Renewal Term for tenants of comparable size for comparable space in the Building Complex (including escalations, rental concessions and allowances, and brokerage commissions) based on lease agreements entered into by Landlord within six months prior to the date Tenant delivers its Exercise Notice. If there are no such comparable lease agreements, then Market Rent shall be based upon the then prevailing market rate for a comparable term commencing on the first day of the applicable Renewal Term for tenants of comparable size for comparable space in other first class office buildings in the vicinity of the Building Complex as reasonably determined by Landlord (including escalations, rental concessions and allowances and brokerage commissions).
C. Within 30 days after receiving Tenants timely Exercise Notice, Landlord shall notify Tenant of Landlords determination of Market Rent. If Tenant does not agree with such determination, Tenant shall give Landlord written notice of such disagreement within 14 days of receipt of Landlords determination and the parties shall commence negotiations to agree upon the Market Rent. If Tenant fails to timely reject Landlords determination of Market Rent it will be deemed to have accepted such calculation. If Landlord and Tenant are unable to reach agreement on Market Rent within 14 days after Landlords receipt of Tenant notice of disagreement, then Market Rent shall be determined in accordance with paragraph D. below.
D. Within seven days after the expiration of the 14-day period described in paragraph C. above, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope their good faith estimate of Market Rent. If the higher of such estimates is not more than 105% of the lower, then Market Rent shall be the average of the two. Otherwise, the dispute shall be resolved by arbitration as follows: Within seven days after the exchange of estimates, the parties shall select as an arbitrator a commercial real estate broker with at least 10 years of experience in leasing office space in the metropolitan area in which the Building Complex is located (a Qualified Broker). If the parties cannot agree on a Qualified Broker,
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then within a second period of seven days, each shall select a Qualified Broker and within 10 days thereafter the two appointed Qualified Brokers shall select a third Qualified Broker and the third Qualified Broker shall be the sole arbitrator. If one party shall fail to select a Qualified Broker within the second 7-day period, then the Qualified Broker chosen by the other party shall be the sole arbitrator. Within 15 days after submission of the matter to the sole arbitrator, the arbitrator shall determine the Market Rent by choosing whichever of the estimates submitted by Landlord and Tenant the arbitrator judges to be more accurate. The arbitrator shall notify Landlord and Tenant of its decision, which shall be final and binding. If the arbitrator believes that expert advice would materially assist in its determination, the arbitrator may retain one or more qualified persons to provide expert advice. The fees of the arbitrator and the expenses of the arbitration proceeding, shall be split equally between the parties. Each party shall pay the fees of its respective counsel.
E. Tenants option to extend this Lease is subject to the conditions that: (i) on the date that Tenant delivers its binding notice exercising an option to extend and again on the date any Renewal Term is to commence, an uncured Event of Default does not then exist, and (ii) Tenant shall not have assigned this Lease, or sublet all or any portion of the Premises under a sublease which is in effect at any time during the final 12 months of the Primary Lease Term or the first Renewal Term, as applicable, to any person or entity other than in connection with a Permitted Transfer. If Tenant so exercises the its option to extend, then within 30 days thereafter, Landlord and Tenant shall execute an amendment to this Lease to reflecting the extension of the Primary Lease Term or first Renewal Term, as applicable, and setting forth the Market Rent for the applicable Renewal Term.
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F. Notwithstanding anything to the contrary contained in paragraph A. above, in no event shall the timely exercise of Tenants option for the first Renewal Term in any way extinguish, or prohibit Tenant from timely exercising, Tenants option for the second Renewal Term.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed the day and year first above written.
LANDLORD:
RIDGELINE TECHNOLOGY CENTER, LLC a Colorado limited liability company |
||||
By: | SHEA PROPERTIES MANAGEMENT COMPANY, INC., a Delaware corporation, its manager | |||
By: | /s/ Peter A. Culshaw | |||
Name: Peter A. Culshaw | ||||
Title: Assistant Secretary | ||||
By: | /s/ Gilbert L. Neilson | |||
Name: Gilbert L. Neilson | ||||
Title: Assistant Secretary | ||||
TENANT:
ADA-ES, INC., a Colorado corporation | ||
By: | /s/ Mark H. McKinnies | |
Name: Mark H. McKinnies | ||
Title: SVP and CFO |
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EXHIBIT A
Premises Depiction
A-1
EXHIBIT B
Legal Description of Real Property
HIGHLANDS RANCHFILING NO. 20, 16 TH AMENDMENT, A PORTION OF PLANNING AREAS 78 AND 80, A VACATION AND REPLAT OF LOTS 2A-1 & 2A-2, HIGHLANDS RANCHFILING NO. 20, 13 TH AMENDMENT, RECORDED AT RECEPTION NO. 98102868, ALSO BEING A PORTION OF THE NE 1/4 OF SECTION 9 & THE NW 1/4 OF SECTION 10, TOWNSHIP 6 SOUTH, RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN, AND A MINOR DEVELOPMENT OF A PORTION OF THE NE 1/4 OF SECTION 9, TOWNSHIP 6 SOUTH, RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF DOUGLAS, STATE OF COLORADO, 10.978 ACRES, 3 NON-RESIDENTIAL LOTS SB 00-010.
B-1
EXHIBIT C
Work Letter
This Work Letter is a part of the Lease entered into by and between RIDGELINE TECHNOLOGY CENTER, LLC, a Colorado limited liability company, as Landlord, and ADA-ES, INC., a Colorado corporation, as Tenant, pertaining to the lease of space in Ridgeline Technology Center and located at 9135 South Ridgeline Boulevard, Highlands Ranch, Colorado 80129 (the Lease). Except as expressly provided to the contrary herein, all initially capitalized terms used in this Work Letter shall have the same meaning as set forth in the Lease to which this EXHIBIT C is attached.
1. Delivery of the Premises . Landlord shall deliver the Premises to Tenant on the Delivery Date in its then current, AS-IS condition in accordance with Section 4(B) of the Lease.
2. Space Plans . Landlord has contracted with, or shall contract with, and pay to, Tenants architect, David Wince Architecture (Tenants Architect), a fee not to exceed $0.15 per rentable square foot of space contained in the Premises (which amount shall not be deducted from the Tenant Improvement Allowance defined below), for preparation of the necessary test fit in order to analyze Tenants space needs and prepare a space plan and pricing plan mutually acceptable to the parties (the Space Plan) which will depict the leasehold improvements and all other items to be completed in the Premises which are necessary or desirable in connection with Tenants occupancy and use of the Premises (Tenants Work). The parties shall endeavor to agree upon the final Space Plan within 15 days after the Effective Date.
3. General Contractor; Tenants CM . Tenant or Tenants CM (as hereinafter defined) shall select a general contractor to perform the construction of the Tenants Work in the Premises, which contractor shall be approved by Landlord in its reasonable discretion to act as Tenants general contractor for the purpose of construction of Tenants Work (Tenants Contractor). In addition, Tenant agrees to include Landlords base building mechanical and electrical contractors in the bid process. Tenant shall supervise the Tenants Work and, in connection therewith, shall select and use its own construction manager. Landlord hereby approves CresaPartners to act as Tenants construction manager (Tenants CM), which Tenants CM shall act on Tenants behalf with respect to: (a) working with Landlord in connection with overseeing Tenants Contractors construction of the Tenants Work pursuant to the construction contract entered into by and between Tenant and Tenants Contractor (the TI Construction Contract), and (b) the construction of the Tenants Work in the Premises. In such capacity, Tenants CM will oversee preparation of the Space Plan, the Construction Drawings (as defined below) and change orders, and ensure conformity of the construction to the Space Plan and Construction Drawings, and manage Tenants subcontractors and specialty contractors. The cost of Tenants CM shall be an Improvement Allowance Item. Tenants CM shall have the obligation to review, monitor, and approve all plans and materials involved in the Tenants Work throughout the entire construction process, and shall at all times comply with the rules and regulations set forth on Exhibit F to the Lease.
4. Construction of Tenants Work . Tenant or Tenants CM shall cause Tenants Architect and engineer(s) designated by Tenant or Tenants CM and approved by Landlord, with
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such approval not to be unreasonably withheld, conditioned or delayed, to prepare construction drawings and specifications (the Construction Drawings) for Tenants Work, based strictly on the Space Plans, and shall cause Tenants Work to be constructed in the Premises by Tenants Contractor in accordance with the Construction Drawings. Prior to the commencement of any construction, Landlord shall be given an opportunity to review the Construction Drawings to confirm that they conform to the Space Plans, and to approve the same. Landlord may withhold approval of the Construction Drawings if the proposed Tenants Work as reflected in the Construction Drawings (a) does not conform to the Space Plans, (b) would adversely affect the Building structure and/or systems (including, without limitation, HVAC, mechanical, electrical and plumbing), (c) does not comply with Applicable Laws, (d) would affect the exterior appearance of the Building (other than the Backup Generator permitted under the Lease), or (e) would unreasonably interfere with the normal and customary business operations of other tenants in the Building or Building Complex (each, a Design Problem). In the event of any Design Problem reflected by the Construction Drawings, Landlord shall provide written notice of the same to Tenant within five business days after receipt. Tenant shall then have seven business days to provide Landlord with revised Construction Drawings reflecting a cure of the Design Problem. This process shall be repeated until such Construction Drawings are approved by Landlord. If Landlord fails to timely object to the Construction Drawings (or any subsequent revisions), Tenant may give Landlord notice of such failure (Failure to Respond Notice), and if Landlord still fails to respond within three business days after such Failure to Respond Notice, Landlord will be deemed to have approved the same. Any Failure to Respond Notice sent pursuant to this EXHIBIT C must be entitled LANDLORD FAILURE TO RESPOND NOTICE in all capital letters and in 18-point bold type, and must specifically state the fact that if Landlord fails to respond within the additional 3-business-day period, Landlord shall be deemed to have approved the referenced item.
If after commencement of the construction of Tenants Work, Tenant wants to change the Construction Drawings or scope of Tenants Work in any material respect, Tenant shall notify Landlord and provide information about the proposed change. Within five business days after receipt of that notification, Landlord shall provide any comments it may have on the proposed change to Tenant. If any element of the proposed change reflects a Design Problem, Landlord shall inform Tenant of the same and thereafter Landlord and Tenant shall work together diligently and in good faith to agree upon modifications to the Construction Drawings that will cure such Design Problem. All work performed in the Premises (including, without limitation, Tenants Work) by or at the request of Tenant shall be constructed in accordance with all Applicable Laws.
5. Cost of Tenants Work and Tenant Improvement Allowance.
(a) Landlord shall provide to Tenant a one-time tenant improvement allowance (the Tenant Improvement Allowance) in an amount up to $478,256.00 (based upon $16.00 per rentable square foot of space in the Premises) to be applied toward the Improvement Allowance Items (as defined in paragraph (b) below). Any cost of the Tenants Work (including, without limitation, the cost of Space Plans, the Construction Drawings, construction costs, contractor fees and construction management fees) over and above the Tenant Improvement Allowance, and the cost of any additional work required by Tenant, if any, shall be paid by Tenant.
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(b) Improvement Allowance Items . Except as otherwise set forth in this Work Letter, the Tenant Improvement Allowance shall be disbursed by Landlord only for the following items and costs (collectively the Improvement Allowance Items):
i Payment of the fees of Tenants Architect and the engineers, including, without limitation, the cost of preparation of the Space Plan and Construction Drawings and all other space planning fees and costs for the Premises actually paid by Tenant (as documented by invoices), but not including the amount required to be paid by Landlord pursuant to Section 2 above, which shall not be deducted from the Tenant Improvement Allowance;
ii The payment of plan check, permit and license fees relating to the performance of the Tenants Work;
iii The cost of performing the Tenants Work, including all costs payable under the construction contract between Tenant and Tenants Contractor;
iv The cost of any changes to the base shell or core of the Premises or the Building required by the approved Construction Drawings, including all direct architectural and/or engineering fees and expenses incurred in connection therewith;
v The cost of any changes to the approved Construction Drawings or the Tenants Work required by all Applicable Laws, including, without limitation, building codes;
vi The payment of sales and use taxes;
vii The costs of any consultants and advisors retained by Tenant, including, without limitation, Tenants CM;
viii The costs incurred in connection with Tenants telecommunications, voice and data equipment, wiring, and installation; and/or
ix The costs incurred in connection with installation of Tenants furniture, fixtures and security system, if any.
(c) Landlord shall disburse the Tenant Improvement Allowance according to the Escrow Agreement attached to the Lease as Exhibit H (Escrow Agreement) and the Tenant Improvement Allowance will be disbursed from the escrow account in accordance with Section 5(f) below and the following procedure: Landlord shall make payments with respect to the Tenant Improvement Allowance, not more frequently than once per month, to the extent of the amounts properly billed by Tenants Contractor for construction/installation of Tenants Work and/or for amounts paid by Tenant for other Improvement Allowance Items, up to the maximum amount of the Tenant Improvement Allowance. Each month, Tenant shall submit to Landlord an application for payment (Application) for Tenants Work completed and/or costs incurred in connection with the Improvement Allowance Items, as of the end of the prior month, reflecting, as applicable, the amounts properly billed by Tenants Contractor for that purpose, and/or billed in connection with other Improvement Allowance Items. With each Application, Tenant shall present to Landlord: (i) evidence reasonably satisfactory to Landlord that the work for which
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payment has been requested has been completed in a satisfactory manner, (ii) statutory conditional lien waivers (in form acceptable to Landlord in its reasonable discretion), and (iii) copies of all applicable invoices, purchase agreements, work agreements or related documents evidencing the services rendered or products purchased. Within 30 days following receipt of each Application, at Tenants direction, Landlord shall either pay directly to Tenants Contractor the entire amount of the payment requested by Tenants Contractor and approved pursuant to the process described above, or shall pay to Tenant the amount requested in the Application, or both, until the Tenant Improvement Allowance has been paid in full. After Landlord has disbursed the entire Tenant Improvement Allowance in that manner and all amounts remaining to be paid to complete Tenants Work are the responsibility of Tenant, Tenant shall pay all of those costs in a timely manner and shall obtain appropriate statutory conditional and final lien waivers, in form reasonably acceptable to Landlord in its reasonable discretion, concurrent with and/or as a condition to making such payments.
(d) Any portion of the Tenant Improvement Allowance that has not been incurred by Tenant and paid by Landlord to Tenant within one year from the Commencement Date, and such nonpayment was not due to Landlords default in its obligation to advance the Tenant Improvement Allowance or applicable portion thereof to Tenant within such one-year period pursuant to the terms of this Work Letter, shall be deemed to have been forfeited by the Tenant and shall become the sole property of Landlord. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to pay any Tenant Improvement Allowance to Tenant in the event all or part of the Premises are damaged or destroyed by fire or other casualty and not covered by Landlords insurance policy, which must be in effect in compliance with the requirements set forth in the Lease.
(e) Upon the installation and/or completion thereof, all Tenants Work (other than Tenants trade fixtures, furniture, moveable equipment and other personal property) shall become the property of Landlord and shall remain in the Premises at all times during the Lease Term.
(f) Notwithstanding any provision to the contrary contained herein, Landlord agrees that it shall deposit the Tenant Improvement Allowance into an escrow account, from which the Tenant Improvement Allowance shall be disbursed, pursuant to the terms and conditions contained in Section 5(c) above and the Escrow Agreement, which Escrow Agreement shall be executed by Landlord and Tenant concurrently with the Lease.
6. Governmental Approvals . Tenant shall be responsible for obtaining, from all governmental agencies having jurisdiction, (a) all approvals required for the Construction Drawings, (b) all building permits necessary to construct the Tenants Work, (c) all inspections of the Tenants Work during and after completion of the construction process, and (d) the Certificate of Occupancy for the Premises that will be available after construction of all of the Tenants Work is completed in accordance with all applicable governmental requirements. Landlord shall cooperate with Tenant in obtaining all such approvals, permits and inspections and the Certificate of Occupancy.
7. General . Any approval by Landlord or Landlords architects or engineers of any of Tenants drawings, plans or specifications prepared in connection with construction of
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improvements in the Premises shall not in any way constitute a representation or warranty of Landlord as to the adequacy or sufficiency of the drawings, plans or specifications, or the improvements to which they relate, for any use, purpose or condition, but this approval shall merely be the consent of Landlord to Tenants construction of improvements in the Premises in accordance with those drawings, plans or specifications.
8. No Fees . No construction management fee, coordination or oversight fee, or other mark ups shall be charged by Landlord in connection with the Tenants Work.
LANDLORD:
RIDGELINE TECHNOLOGY CENTER, LLC a Colorado limited liability company |
||||
By: | SHEA PROPERTIES MANAGEMENT COMPANY, INC., a Delaware corporation, its manager | |||
By: | /s/ Peter A. Culshaw | |||
Name: | Peter A. Culshaw | |||
Title: | Assistant Secretary | |||
By: | /s/ Gilbert L. Neilson | |||
Name: | Gilbert L. Neilson | |||
Title: | Assistant Secretary | |||
TENANT:
ADA-ES, INC., a Colorado corporation |
||
By: | /s/ Christine B. Amrhein | |
Name: | Christine B. Amrhein | |
Title: | Corporate Counsel and VP |
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EXHIBIT D
Parking License
1. Provided an uncured Event of Default is not existing, Landlord shall provide and Tenant, its employees, agents, invitees, and contractors (Licensees) may use up to 150 in and out non-assigned standard sized passenger vehicle surface parking spaces (Parking Spaces) in surface parking lots adjacent to the Building Complex designated by Landlord as parking for the Building Complex (Surface Lots) at no charge during the Primary Lease Term. The number of Parking Spaces shall be increased at a rate of 5 Parking Spaces per 1,000 square feet of the Premises upon the addition of any Expansion Space and/or Applicable ROFR Space. Tenant acknowledges and agrees that (a) the right to use the Parking Spaces and the Surface Lots is on a non-exclusive basis, (b) the Parking Spaces will not be individually designated or reserved for use by Licensees, (c) Licensees will use the Parking Spaces and the Surface Lots in common with all persons to whom or which Landlord grants the right to use the Parking Spaces or Surface Lots on a first-come, first-served basis, and (d) Landlord shall be entitled to assign designated areas of the Surface Lots for use by particular persons or groups of persons and Licensees shall refrain from parking in such areas, so long as it does not decrease the number of Parking Spaces to which Licensees are entitled to use.
2. The right granted to Licensees herein to use the Parking Spaces shall be deemed a license only and Landlords failure to make such spaces available at any time during the term of the Lease shall not be deemed a material breach by Landlord of any of its obligations under the Lease unless such Parking Spaces are not available for more than three business days and suitable alternative spaces are not provided. Licensees license to use the Parking Spaces shall automatically terminate on the expiration of the Primary Lease Term (or any extension thereof), the earlier termination of the Lease, or Tenants vacating or abandoning the Premises.
3. No Licensee shall be permitted to assign or sublicense the Parking Spaces or any interest herein or permit any Parking Spaces or any part thereof to be used by persons other than by Licensees without the prior written consent of Landlord, which consent may be granted or withheld in Landlords sole discretion; provided, however, this restriction shall not apply to any assignment or sublease approved by Landlord, or otherwise permitted, in accordance with Section 13 of the Lease. Licensees shall remain primarily liable for the performance of the obligations of Licensees hereunder notwithstanding any assignment, sublicense or occupancy arrangement permitted or consented to by Landlord.
4. If any portion of the Surface Lots shall be damaged by fire or other casualty or shall be taken by right of eminent domain or by condemnation or shall be conveyed in lieu of any such taking, the license granted herein shall automatically cease and terminate as to the portion so damaged, taken or conveyed. Licensees thereupon shall surrender to Landlord the Parking Spaces and all interest therein, and Landlord may re-enter and take possession of the Parking Spaces. Notwithstanding the foregoing, in the event Licensees are permanently prohibited from using more than 20% of the Parking Spaces to which they are entitled to use hereunder, Tenant shall have the right to claim damages as the result of Landlords material breach of the Lease, or terminate this Lease by providing written notice of such termination to Landlord, in which event Tenant shall promptly vacate and surrender possession of the Premises to Landlord in accordance with the provisions of the Lease, and the parties shall be released from all further obligations and liabilities thereunder, except those which expressly survive such termination.
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5. Absent negligence or willful misconduct, neither Landlord or its agents or employees shall be liable for any damage, fire, theft or loss to vehicles or other properties or persons while in the Surface Lots or otherwise located on or within the Building Complex, whether caused by theft, collision, moving vehicles, explosion, fire, or any other activity or occurrence.
6. Landlord shall have the right at any time upon providing 30 days prior written notice to Tenant, to change the arrangement or location of or to regulate the use of Parking Spaces (including, without limitation, requiring stickers or other identification materials to be placed on or in the vehicles parking on the Surface Lots) without incurring any liability to Licensees.
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EXHIBIT E
Commencement Date Certificate
LANDLORD: | RIDGELINE TECHNOLOGY CENTER, LLC, |
a Colorado limited liability company
TENANT: | ADA-ES, INC., a Colorado corporation |
This Commencement Date Certificate is made by Landlord and Tenant pursuant to that certain Office Building Lease (the Lease) entered into as of , 2011, for the premises known as Suite 200, in the Building known as Ridgeline Technology Center and located at 9135 Ridgeline Boulevard, Highlands Ranch, Colorado 80129 (the Premises). This constitutes a Commencement Date Certificate as contemplated by Section 4.D. of Lease.
1. Commencement Date . Landlord and Tenant acknowledge and agree that the Commencement Date is , 201__, and the Expiration Date is , 20 . Tenants obligation to pay Rent under the Lease began on , 201__, subject to the abatement described in the Lease. All covenants in the Lease contemplated to begin on the Commencement Date commenced as of the Commencement Date.
2. Acceptance of Premises . Tenant has inspected and examined the Premises, and Tenant finds the Premises acceptable and satisfactory in all respects in their current condition, and accepts them in their as is condition.
3. Incorporation in Lease . This Certificate is incorporated into the Lease, and forms a supplementary and integral part of it. This Certificate shall be construed and interpreted in accordance with all other terms and provisions of the Lease for all purposes; provided, however, in the event of any conflict between the terms of this Certificate and the terms of the Lease, the terms of this Certificate shall control.
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4. Definitions . All capitalized terms not defined herein shall have the meanings given to such terms in the Lease.
LANDLORD:
RIDGELINE TECHNOLOGY CENTER, LLC | ||
a Colorado limited liability company | ||
By: | SHEA PROPERTIES MANAGEMENT COMPANY, INC., | |
a Delaware corporation, its manager |
By: | ||||
Name: | ||||
Title: |
By: | ||||
Name: | ||||
Title: |
TENANT:
ADA-ES, INC., | ||
a Colorado corporation | ||
By: | ||
Name: | ||
Title: |
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EXHIBIT F
Rules and Regulations
The following rules and regulations shall be and are hereby made a part of the Lease and Tenant agrees that Tenants employees and agents or any others permitted by Tenant to occupy or enter the Premises will at all times abide by said rules and regulations.
1. Tenant shall not obstruct the sidewalks, entries, passages, corridors, stairways, and elevators of the Building Complex or interfere with the rights of other tenants of the Building Complex, or of persons having business in the Building Complex or in any way injure or annoy such tenants or persons. Tenant shall not disturb the other occupants of the Building Complex or adjoining buildings or premises by the use of any radio, sound equipment, or musical instrument or by the making of loud or improper noises.
2. Tenant shall not commit any act or permit anything in or about the Building Complex which shall or might subject Landlord to any liability or responsibility for injury to any person or property by reason of any business or operation being carried on in or about the Building Complex or for any other reason.
3. Tenant shall not use the Building for lodging, sleeping, or for any illegal purposes or for any purpose that will damage the Building Complex, or the reputation thereof, or for any purposes other than those specified in the Lease.
4. Canvassing, soliciting, and peddling in the Building Complex are prohibited, and Tenant shall cooperate to prevent such activities. Tenant shall not grant any concessions, licenses or permission for the sale or taking orders for food or services or merchandise on the Premises, nor install or permit the installation or use of any machinery or equipment for dispensing goods or foods or beverages in the Building Complex, except vending machines intended for the use only by Tenants employees, nor permit the preparation, serving, distribution or delivery of food or beverages in the Premises, except for the warming of pre-prepared food by Tenants employees in microwave ovens, without the approval of Landlord not to be unreasonably withheld, conditioned or delayed and in compliance with the Lease and arrangements prescribed by Landlord. Only persons approved by Landlord shall be permitted to serve, distribute, or deliver food and beverages within the Building Complex, or to use the elevators or public areas of the Building Complex for that purpose.
5. Tenant shall not bring or keep within the Building or in any Common Area (as hereinafter defined) any motorcycle or animal except helping animals allowed by law.
6. Tenant shall not conduct mechanical or manufacturing operations, or place or use any flammable, combustible, explosive or hazardous fluid, chemical, device, substance or material in or about the Building Complex without the prior written consent of Landlord, except as associated with Tenants Permitted Use. Tenant shall comply with the statutes, ordinances, rules, orders, regulations or requirements imposed by governmental or quasi-governmental authorities in connection with fire and panic safety and fire prevention, and shall not commit any act or permit any object to be brought or kept in the Building Complex which shall result in a
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change of the rating of the Building Complex by the insurance underwriters. Tenant shall not commit any act or permit any object to be brought or kept in the Building Complex which shall increase the rate of fire insurance on the Building Complex or on property located herein, constitute a nuisance or waste, or conflict with any of the rules or ordinances of the Department of Health of the City and County where the Building is located.
7. Tenant shall move all freight, supplies, furniture, fixtures, and other personal property into, within and out of the Building Complex only at such times and through such entrances as may be designated by Landlord, and such movements of such items shall be under the supervision of Landlord. Landlord reserves the right to approve or disapprove the movers or moving company employed by Tenant, to inspect all such freight, supplies, furniture, fixtures and other personal property, to be brought into the Building and to exclude from the Building all such objects which violate any of these rules and regulations or the provisions of the Lease. Tenant shall not move or install such objects in or about the Building Complex in such a fashion as to unreasonably obstruct the activities of the other tenants, and all such moving shall be at the sole expense, risk and responsibility of Tenant. Tenant shall not use in the delivery, receipt or other movement of freight, supplies, furniture, fixtures, and other personal property to, from, or within the Building Complex, any hand trucks other than those equipped with rubber tires and side guards. In the event Tenant or Tenants movers damage the elevator or any part of the Building Complex, Tenant shall forthwith pay to Landlord the amount required to repair said damage.
8. Tenant shall not place within the Building any safes, copying machines, computer equipment or other objects of unusual size or weight, nor shall Tenant place within the Building Complex any objects which exceed the floor weight specifications of the Building without the express prior written consent of Landlord, not to be unreasonably withheld, conditioned or delayed. Tenant agrees that it is fully liable for any damages to the Building Complex or losses sustained by Landlord by reason of the placing within the Premises or equipment or property in excess of the floor weight specifications of the Building Complex either with or without the consent of Landlord. The placement and positioning of all such objects within the Building Complex shall be prescribed by Landlord and such objects shall, in all cases, be placed upon plates or footings of such size as shall be prescribed by Landlord.
9. Tenant shall not deposit any trash, refuse, cigarettes, or other substances of any kind within or out of the Building Complex except in refuse containers. Tenant shall exercise its reasonable efforts to keep the sidewalks, entrances, passages, courts, lobby areas, parking areas, vestibules, public corridors and halls in and about the Building Complex (hereinafter Common Areas) clean and free from rubbish. Tenant shall not allow anything to be placed on the outside of the Building, nor shall anything be thrown by Tenant out of the windows or doors or down the corridors, elevator shafts or ventilation ducts or shafts of the Building.
10. Tenant shall use the Common Areas only as a means of ingress and egress and other designed purposes, and Tenant shall permit no loitering by any of Tenants employees upon Common Areas or elsewhere within the Building Complex. The Common Areas and roof of the Building are not for the use of the general public, and Landlord shall in all cases, retain the right to control or prevent access thereto by all persons whose presence in the reasonable judgment of Landlord, shall be prejudicial to the safety, character, reputation or interests of the Building Complex and its Tenants. Tenant shall not go upon the roof of the Building without the prior written consent of Landlord.
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11. Landlord reserves the right to exclude or expel from the Building Complex any person who, in the reasonable judgment of Landlord, is intoxicated or under the influence of liquor or drugs or who shall in any manner act in violation of the rules and regulations of the Building Complex.
12. Tenant shall not use the washrooms, restrooms and plumbing fixtures of the Building, and appurtenances thereto, for any other purposes than the purposes for which they were construed, and Tenant shall not deposit any sweepings, rubbish, rags or improper substances therein. Tenant shall not waste water by interfering or tampering with the faucets or otherwise. If Tenant or Tenants servants, employees, contractors, jobbers, agents, licensees, invitees, guests or visitors, cause any damage to such washrooms, restrooms, plumbing fixture or appurtenances, such damage shall be repaired at Tenants expense, and Landlord shall not be responsible therefor.
13. Tenant shall not mark, paint, drill into, cut, string wire within, or in any way deface any part of the Building Complex without the express prior written consent of Landlord, and any defacement, damage or injury caused by Tenant or Tenants agents or employees shall be paid for by Tenant. Upon removal of any wall decorations or installations or floor coverings by Tenant, any damage to walls or floors shall be repaired by Tenant at Tenants sole cost and expense.
14. No blinds, drapes or other window coverings shall be detached from or installed in the Building without the express prior written consent of Landlord, In the event of the violation of any of the foregoing by Tenant, Landlord may remove the articles constituting the violation without any liability and Tenant shall reimburse Landlord for the expense incurred in such removal upon demand as additional rent under the Lease.
15. Tenant shall not use the name of the Building or the name of Landlord in its business name, trademarks, signs, advertisements, descriptive material, letterhead, insignia or any other similar item without Landlords express prior written consent.
16. Subject to applicable fire or other safely regulations, all doors opening into Common Areas and all doors upon the perimeter of the Premises shall be kept closed and, during non-business hours, locked, except when in use for ingress or egress. If Tenant uses the Premises after regular business hours or non-business days, Tenant shall lock any entrance doors to the Building or to the Premises used by Tenant immediately after using such doors.
17. All keys and access cards to the exterior doors of the Premises and interior suite doors shall be obtained by Tenant from Landlord at no charge at the beginning of the Lease Term, subject to the provisions below relating to lost keys/access cards, but Tenant shall pay to Landlord a reasonable deposit determined by Landlord from time to time for such keys/access cards. Tenant shall not make duplicate copies of such keys or access cards. Tenant shall not install additional locks or bolts of any kind upon any of the doors or windows of, or within the Building, nor shall Tenant make any changes in existing locks or the mechanisms thereof.
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Tenant shall, upon the termination of its tenancy, provide Landlord with the combinations to all combination locks on safes, safe cabinets, and vaults and deliver interior doors, cabinets, and other key-controlled mechanisms therein, whether or not such keys were furnished to Tenant by Landlord. In the event of the loss of any key or access card initially furnished to Tenant by Landlord, Tenant shall pay to Landlord the cost of replacing the same or of changing the lock or locks opened by such lost key if Landlord shall deem it necessary to make such a change. Landlord and/or Landlords agent shall at all times keep a passkey to the Premises.
18. Access may be had by Tenant to the Premises during hours of operation agreed upon by Landlord and Tenant. At other times access to the Building may be refused unless the person seeking admission has an access card or a pass if a watchman is present. Tenant shall be responsible for all persons for whom Tenant requests passes, and shall be liable to Landlord for all acts of such persons. Landlord shall in no case be liable for damages for the admission or exclusion of any person from the Building. In case of invasion, mob, riot, public excitement, or other commotion, Landlord reserves the right to prevent access to the Building Complex for the safety of tenants and protection of property in the Building Complex.
19. Except as otherwise provided in the Lease, Landlord shall not be responsible for, any liability in connection with the loss, theft, misappropriation or other disappearance of furniture, furnishings, fixtures, machinery, equipment, money, jewelry or other items or personal property from the Premises or other parts of the Building regardless of whether the Premises or Building are locked at the time of such loss.
20. Purposefully omitted.
21. Absent the negligence or willful misconduct of Landlord, Landlord shall be in no way responsible to Tenant for any loss of property from the Premises, however occurring, or for any damage done to Tenants furniture or equipment by the janitor or any of the janitors staff or by any other person or persons whomsoever.
22. Tenant, by execution of this Lease and occupancy of the Premises, agrees to comply with any encumbrances, covenants, restrictions and conditions in effect (Covenants), as heretofore and hereafter amended, as applicable to Tenants use and enjoyment of the Premises and Building Complex. In addition to all rights available to Landlord hereunder, in the event Landlord is required to pay to any association any fines, assessments, charges or other amounts on account of any act or omission of Tenant, its agents, employees or invitees, Tenant shall, upon demand, reimburse Landlord for such amounts, together with interest thereon at the rate of eight percent (8%) per annum.
23. No signs, awnings, showcases, advertising devices or other projections or obstructions shall be attached to the outside walls of the Building Complex or attached or placed upon any Common Areas without the express prior written consent of Landlord. No blinds, drapes or other window coverings shall be installed in the Building without the express prior written consent of Landlord. No sign, picture, advertisement, window display or other public display or notice shall be inscribed, exhibited, painted or affixed by Tenant upon or within any part of the Premises in such a fashion as to be seen from the outside of the Premises or the Building without the express prior written consent of Landlord. In the event of the violation of
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any of the foregoing by Tenant, Landlord may within 15 business days of written notice to Tenant during which period Tenant may repair same, remove the articles constituting the violation without any liability unless a loss, other then said removal, arises from Landlords willful or negligent acts or omissions, and Tenant shall reimburse Landlord for the reasonable expenses incurred in such removal upon demand and upon submission of applicable bills as additional rent under the Lease. Interior signs on doors and upon the Building directory shall be subject to the express prior written approval of Landlord and shall be inscribed, painted, or affixed by Landlord at the reasonable expense of Tenant upon submission of applicable bills to Tenant.
24. Tenant shall cooperate with Landlord in obtaining maximum effectiveness of the cooling system of the Building by closing drapes and other window coverings when the suns rays fall upon windows of the Premises. Tenant shall not obstruct, alter or in any way impair the efficient operation of Landlords heating, ventilating, air conditioning, electrical, fire, safety, or lighting systems.
25. Except for areas specifically designated by Landlord in its sole discretion, no smoking is permitted by any person, including employees of Tenant, in on or about the Building Complex, including the lobby, the stairwells, parking areas, landscaped areas and Building entrances.
26. Tenant shall, at its sole cost and expense, comply with all present and future laws, orders, and regulations of all state, federal, municipal, and local governments, departments, commissions, and boards and regarding the collection, sorting, separation, and recycling of waste products, garbage, refuse, and trash. In addition, Tenant shall, at its sole cost and expense, comply with all reasonable recycling programs for the Building established by Landlord.
27. For purposes hereof, the terms Landlord, Tenant, Building, and Premises are defined as those terms are defined in the Lease to which these Rules and Regulations area attached. Wherever Tenant is obligated under these Rules and Regulations to do or refrain from doing an act or thing, such obligation shall include the exercise by Tenant of its reasonable efforts to secure compliance with such obligation by the servants, employees, contractors, jobbers, agents, invitees, licensees, guests and visitors of Tenant. The term Building and the Building Complex shall include the Premises, and any obligations of tenant hereunder with regard to the Building and the Building Complex shall apply with equal force to the Premises and to other part of the Building Complex.
28. Tenant agrees that Landlord may amend, modify, delete or add new and additional reasonable rules and regulations of the use and care of the Premises and the Building Complex so long as Tenants obligations under this Lease are not materially altered. Tenant agrees to comply with all such modified rules and regulations within 30 days after notice to Tenant from Landlord thereof. In the event of any breach of any of the rules and regulations herein set forth or any amendments, modifications, or additions thereto, Landlord shall have all remedies in the Lease provided for uncured Event of Default by Tenant.
In the event of any conflict of these Rules and Regulations with the Terms of the Lease, the Lease shall control.
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EXHIBIT G
Form of Estoppel Certificate
State Farm
One State Farm Plaza
Bloomington, Illinois 61710-0001
Corporate Law Investments
Attn: (Name of Attorney)
Re:
Name of Landlord (as of the date hereof): |
||
Name of Tenant: |
||
Name of Lease Guarantor (if any): |
||
Date of Office Building Lease: |
||
Title and Date(s) of Amendments and Modifications to Lease (if any): |
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Address of Premises (including suite number, if any) (the Premises): |
||
Square Footage of Premises: |
Collectively, the foregoing instrument is hereinafter referred to as the Lease.
Dear Sir or Madam:
Tenant is the tenant under that certain Lease described above and provides this Tenant Estoppel Certificate to State Farm (State Farm) as conclusive evidence of the matters set forth herein concerning the Lease and the Premises.
As of the date hereof, the undersigned hereby certifies the following:
1. | The Lease supersedes, in all respects, all prior written or oral agreements between Landlord and Tenant with respect to the Premises and there are no agreements, understandings, warranties or representations between Landlord and Tenant with respect to the Lease or the Premises, except as expressly set forth in the Lease. |
2. | As of the date hereof, the Lease has not been amended, modified, supplemented or superseded, except pursuant to the amendments or modifications referenced above. |
3. | The Lease remains in full force and effect and there are no known existing defaults by Tenant under the Lease, except as follows (if blank, none): |
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4. | The improvements and space required by the Lease to be delivered to Tenant have been satisfactorily completed and delivered by Landlord and have been accepted by the Tenant except as follows (if blank, none): |
5. | The Premises are currently occupied and open for the use by Tenant and its customers, employees and invitees. |
6. | Tenants interest in the Lease and the Premises demised therein, or any part thereof, has not been sublet, transferred or assigned except as follows (if blank, none): |
7. | All duties of an inducement nature required of the Landlord under the Lease have been fulfilled by Landlord and Tenant is fully obligated to pay rent and all other charges coming due under the Lease except as follows (if blank, none): |
8. | The Commencement Date of the Lease was , and the Expiration Date of the Lease is , 20 . |
9. | The last monthly payment of rent in the amount of $ was made by Tenant on , 20 . No monthly rental has been prepaid nor has Tenant been given any free rent, partial rent, rebates, rent rebates or concessions. Tenant has no claims, defenses or offsets against any rents payable under the Lease, except as follows (if blank, none): |
10. | A security deposit in the amount of $ has been deposited with Landlord. Tenant agrees to look solely to the Landlord for return of the security deposit unless the Landlord has deposited the security deposit with State Farm. |
11. | To the best of Tenants knowledge, Landlord has fully performed all of its obligations under the Lease and there are no known circumstances existing under which Landlord may be deemed in default merely upon the service of notice or passage of time, or both, except as follows (if blank, none): |
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12. | Landlord has not given its consent to Tenant to take any action which, pursuant to the Lease, requires Landlords consent except as follows (if blank, none): |
13. | Tenant has not received any notice of a prior sale, transfer, assignment, pledge or other hypothecation of the Premises, the Lease or of the rents provided for therein. |
14. | Tenant has not filed, and is not currently the subject of any filing, voluntary or involuntary, for bankruptcy or reorganization under any applicable bankruptcy or creditors rights laws. |
15. | Tenant is a duly organized, validly existing and in good standing under the law of . |
In issuing this Estoppel Certificate, Tenant understands that State Farm will rely thereon in funding a $ mortgage loan to Landlord secured by certain real estate which includes the Premises. Tenant acknowledges that State Farm may rely upon a facsimile of this Estoppel Certificate signed by Tenant with the same effect as if State Farm had received an Estoppel Certificate bearing Tenants original signature.
[NAME OF TENANT] | ||
By: | ||
Name: | ||
Title: | ||
Date: |
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EXHIBIT H
Form of Escrow Agreement
ESCROW AGREEMENT
This Escrow Agreement (this Agreement ) is made and entered into as of this day of October, 2011, by and between RIDGELINE TECHNOLOGY CENTER, LLC, a Colorado limited liability company ( Ridgeline ), ADA-ES, INC. , a Colorado corporation ( ADA-ES ), and FIDELITY NATIONAL TITLE INSURANCE COMPANY , as escrow agent (the Escrow Agent ).
Recitals
A. Ridgeline and ADA-ES are parties to that certain Office Building Lease dated October , 2011 (the Lease ), pursuant to which Ridgeline, as Landlord, leased to ADA-ES, as Tenant, certain premises consisting of approximately 29,891 rentable square feet of space in Building One of the office building complex known as Ridgeline Technology Center and located at 9135 Ridgeline Boulevard, Highlands Ranch, Colorado 80129 (the Premises ).
B. In accordance with Section 5 of the Work Letter attached as Exhibit C to the Lease (the Work Letter ), Ridgeline is obligated to deliver $478,256.00 (the Funds ) to Escrow Agent to secure the obligation of Ridgeline to pay the Allowance (as hereinafter defined) to ADA-ES. All of the Funds delivered by Ridgeline to Escrow Agent pursuant to this Agreement, together with any interest thereon, shall be collectively referred to herein as the Escrowed Funds .
C. Pursuant to Section 5 of the Work Letter, Ridgeline is required to pay a Tenant Improvement Allowance equal to $16.00 per rentable square foot of space contained in the Premises ( Allowance ) to ADA-ES in progress payments not later than 30 days after receipt by Ridgeline from ADA-ES of the documentation specified by Section 5(c) of the Work Letter (collectively, the Payment Documentation ).
D. The parties now wish to enter into this Agreement to set forth the terms and conditions upon which the Escrowed Funds will be (i) deposited into escrow by Ridgeline, and (ii) disbursed by Escrow Agent.
Agreement
NOW, THEREFORE, for good and valuable consideration received by them, the receipt and sufficiency of which are hereby acknowledged, the parties covenant and agree as follows:
1. Definitions . All capitalized terms used but not defined in this Agreement will have the meanings set forth for such terms in the Lease.
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2. Escrowed Funds . Within 10 days after Tenant provides Landlord with notice that Tenant has obtained all building permits necessary to construction the Tenants Work, Ridgeline will deliver the Funds to Escrow Agent. The Escrowed Funds will be deposited by Escrow Agent in one or more interest bearing accounts, and all interest earned thereon will remain in escrow and constitute a part of the Escrowed Funds, but shall be returned to Ridgeline upon disbursement in full of the Allowance to ADA-ES.
3. Disbursement of Escrowed Funds .
(a) Disbursement to ADA-ES . Tenant shall deliver to both Ridgeline and Escrow Agent simultaneously, but not more often than once per month, a written application for payment containing a request for delivery of a portion of the Escrowed Funds in an amount equal to the requested progress payment covering Tenants Work (as defined in the Work Letter) completed and/or costs incurred in connection with the Improvement Allowance Items (as defined in the Work Letter) as of the end of the prior month, reflecting, as applicable, the amounts properly billed by ADA-ESs Contractor for that purpose, and/or billed in connection with other Improvement Allowance Items, together with the required Payment Documentation (an ADA-ES Disbursement Request ). Each ADA-ES Disbursement Request shall be in the form attached hereto as Exhibit A . 30 days after receipt of the ADA-ES Disbursement Request (including the required Payment Documentation), Escrow Agent shall disburse to ADA-ES (or to ADA-ESs Contractor, if so instructed by ADA-ES in the applicable ADA-ES Disbursement Request) the progress payment then being requested in the applicable ADA-ES Disbursement Request, unless Ridgeline makes a timely objection pursuant to paragraph (b) below. In accordance with Section 5(c) of the Work Letter, after disbursement of the entire Allowance such that all amounts remaining to be paid are the responsibility of ADA-ES, ADA-ES shall pay all of those costs in a timely manner and shall obtain appropriate statutory conditional and final lien waivers, in form reasonably acceptable to Ridgeline in its reasonable discretion.
(b) Objection by Ridgeline . Ridgeline will have a period of 15 days after receipt of an ADA-ES Disbursement Request to reasonably object thereto. If Escrow Agent does not receive an objection from Ridgeline within such 15-day period, Escrow Agent will disburse the requested portion of the Escrowed Funds to ADA-ES, in accordance with paragraph (a) above. Escrow Agent may not disburse more than the amount specified in the ADA-ES Disbursement Request, and supported by the Payment Documentation. If Ridgeline objects within such 15-day period, then Escrow Agent will not disburse any Escrowed Funds unless and until Ridgeline and ADA-ES deliver joint written disbursement instructions. Ridgeline and ADA-ES shall thereafter work together diligently and in good faith to reasonably resolve the issues raised by Ridgeline in its written objection to disbursement with the objective of resolving any such objections within fifteen (15) business days.
4. Escrow Fee . Ridgeline will pay Escrow Agent a fee not to exceed $500.00, which has been collected in connection with the execution of this Agreement.
5. Disbursement of Remaining Escrowed Funds; Termination of Escrow . In the event (a) any Escrowed Funds remain on deposit in escrow after payment of the final ADA-ES Disbursement Request by Escrow Agent, such remaining Escrowed Funds shall promptly be returned to Ridgeline, or (b) Escrow Agent has disbursed all of the Escrowed Funds, then in
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either event, the escrow accounts shall be closed, this Agreement shall terminate, and Escrow Agent shall be released from all obligations under this Agreement. If Escrow Agent has not disbursed all of the Funds in accordance with this Agreement by one year and thirty (30) days after the Commencement Date, Escrow Agent shall deposit all of the Funds with the District Court of Douglas County, Colorado and proceed to close the escrow.
6. Disputes . In the event of a dispute between any of the parties hereto as to their respective rights and interests hereunder, Escrow Agent shall be entitled to hold the Escrowed Funds until such dispute shall have been resolved by the parties in dispute and Escrow Agent shall have been notified by instrument jointly signed by all of the parties in dispute, or until such dispute shall have been finally adjudicated by a court of competent jurisdiction. If Escrow Agent reasonably determines there is a dispute relating to this Agreement, and that as a consequence of such dispute compliance with the terms of this Agreement will result in additional liability to it, Escrow Agent may deposit the Escrowed Funds and all documents delivered to Escrow Agent with the District Court of Douglas County, Colorado, interplead all the interested parties in such action, and thereafter be released from any further obligations with respect to these items other than complying with any validly issued order of such Court. The parties hereby consent to the venue and jurisdiction of such court.
7. Liability of Escrow Agent . Escrow Agent hereby consents and agrees to all of the provisions hereof, and agrees to accept, as Escrow Agent hereunder, all Escrowed Funds, and agrees to hold and dispose of the Escrowed Funds in accordance with the terms and provisions hereof. It is agreed that Escrow Agent shall have no obligation or liability hereunder except as a depositary to retain the Escrowed Funds and to dispose of the same in accordance with the terms hereof. Escrow Agent has no duty or obligation to independently verify use of the disbursed Escrowed Funds. Escrow Agent shall be entitled to rely and act upon any written instrument received by it, and if from a corporation or other entity, purporting to be executed by an officer, member, manager or authorized representative thereof and shall not be required to inquire into the authority of such officer, member, manager or representative or the correctness of the facts stated in said instrument. By executing this Agreement, Escrow Agent agrees to act in good faith in the performance of any of its obligations and duties under this Agreement and shall incur no liability to any person for its acts or omissions hereunder, except for those acts or omissions which may result from its gross negligence or willful misconduct. Upon disposition by Escrow Agent, in accordance with the terms hereof, of the Escrowed Funds, Escrow Agent shall be fully and finally released and discharged from any and all duties, obligations, and liabilities hereunder.
8. Attorneys Fees . In the event any litigation arises out of this Agreement between Ridgeline and ADA-ES, or the alleged breach of any term or provision hereof, the court in any such litigation will award to the prevailing party all costs and expenses, including reasonable attorneys fees, incurred by the prevailing party in the litigation.
9. Severability . Any provision of this Agreement which is declared by a court of competent jurisdiction to be illegal, invalid, prohibited or unenforceable will be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating the remaining provisions hereof.
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10. Notices . Any notice required or permitted to be sent pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or three (3) days after having been deposited in a U.S. Postal Service depository and sent by registered or certified mail, return receipt requested, with all required postage prepaid, or one (1) day after having been deposited with Federal Express or another comparable national overnight delivery service with next-business-day delivery service prepaid, and in any case, addressed to:
RIDGELINE: | Ridgeline Technology Center, LLC | |||
6380 S. Fiddlers Green Circle, Suite 400 | ||||
Greenwood Village, Colorado 80111 | ||||
Attn: Property Manager | ||||
with a copy to: | Holland & Hart LLP | |||
555 17th Street, Suite 3200 | ||||
Denver, Colorado 80202 | ||||
Attn: Berkeley I. Brandes, Esq. | ||||
ADA-ES: | ADA-ES, Inc. | |||
At the Premises Address and | ||||
8100 SouthPark Way, Unit B, Littleton, CO 80120: | ||||
Attention: CFO | ||||
with a copy to: | Schuchat, Herzog & Brenman, LLC | |||
1900 Wazee Street, Suite 300 | ||||
Denver,Colorado 80202 | ||||
Attention: Julie Herzog | ||||
ESCROW AGENT: | Fidelity National Title Insurance Company | |||
4643 S. Ulster, Suite 500 | ||||
Denver, Colorado 80237 | ||||
Attn: Darren Hone |
11. Governing Law . This Agreement shall be governed by the laws of the State of Colorado, and venue shall lie exclusively in the County of Douglas, State of Colorado.
12. Modification . This Agreement may only be modified or supplemented by an instrument in writing executed by duly authorized representatives of Ridgeline, ADA-ES and Escrow Agent.
13. Captions . All captions, headings, titles, numerical references are for convenience only and shall have no effect on the interpretation of this Agreement.
14. Binding Effect . This Agreement will inure to the benefit of and be binding upon each of the parties hereto and their respective successors and assigns.
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15. Counterparts . This Agreement may be executed in counterparts, each of which will constitute an original, but all of which, when taken together, will constitute but one agreement. Executed copies hereof may be delivered by telecopier, email or other electronic means and upon receipt will be deemed originals and binding upon the parties hereto, regardless of whether originals are delivered thereafter.
IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow Agreement as of the date first set forth above.
RIDGELINE: | ||||
RIDGELINE TECHNOLOGY CENTER, LLC | ||||
a Colorado limited liability company | ||||
By: Shea Properties Management Company, Inc., a Delaware corporation, its Manager |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
ADA-ES: | ||||
ADA-ES, INC., a Colorado corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||
ESCROW AGENT: | ||||
FIDELITY NATIONAL TITLE INSURANCE COMPANY | ||||
By: | ||||
Name: | ||||
Title: |
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EXHIBIT A
Form of Disbursement Request
Fidelity National Title Insurance Company
4643 S. Ulster, Suite 500
Denver, CO 80237
Attention: Darren Hone
Ridgeline Technology Center, LLC
6380 S. Fiddlers Green Circle, Suite 400
Greenwood Village, CO 80111
Attention:
Re: Disbursement Request
Dear Sir or Madam:
Reference is made to the Escrow Agreement, dated October , 2011, among Ridgeline Technology Center, LLC, a Colorado limited liability company, ADA-ES, Inc., a Colorado corporation, and Fidelity National Title Insurance Company, as escrow agent. Initially capitalized terms used but not otherwise defined herein have the meanings given them in the Escrow Agreement.
Attached hereto are the following documents:
[List of required documentation]
ADA-ES requests disbursement from the Escrowed Funds in the amount of $ which should be sent to[ ADA-ES/Contractor] at the following address:
Attention:
Sincerely,
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Exhibit 10.47
EXCHANGE AGREEMENT
(Thomas Hill)
dated as of
December 15, 2011
by and among
CLEAN COAL SOLUTIONS, LLC,
AEC-TH, LLC
and
GS RC INVESTMENTS LLC
* | Indicates portions of the exhibit that have been omitted pursuant to a request for confidential treatment. The non-public information has been separately filed with the Securities and Exchange Commission. |
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS |
1 | |||||
Section 1.1 | Defined Terms | 1 | ||||
Section 1.2 | Construction of Certain Terms and Phrases | 10 | ||||
ARTICLE II EXCHANGE OF FACILITY |
11 | |||||
Section 2.1 | New Facility Installation, Testing and Acceptance | 11 | ||||
Section 2.2 | Execution of New Lease | 11 | ||||
Section 2.3 | Termination of Existing Equipment Lease and the Existing Guaranties | 11 | ||||
Section 2.4 | Amendments to Certain Documents | 11 | ||||
ARTICLE III REPRESENTATIONS AND WARRANTIES |
12 | |||||
Section 3.1 | Representations and Warranties of the CCS Parties | 12 | ||||
Section 3.2 | Representations and Warranties of Lessee | 16 | ||||
Section 3.3 | Survival of Representations and Warranties | 17 | ||||
ARTICLE IV TAX MATTERS |
18 | |||||
Section 4.1 | Tax Treatment of the Transaction | 18 | ||||
Section 4.2 | Transaction Taxes | 19 | ||||
Section 4.3 | Property Taxes | 19 | ||||
Section 4.4 | Tax Return Information and Tax Proceedings | 20 | ||||
ARTICLE V CLOSING CONDITIONS |
20 | |||||
Section 5.1 | Lessees Conditions to Closing | 20 | ||||
Section 5.2 | CCS Parties Conditions to Closing | 21 | ||||
ARTICLE VI CLOSING |
21 | |||||
Section 6.1 | Closing | 21 | ||||
Section 6.2 | Closing Deliverables | 21 | ||||
ARTICLE VII INDEMNIFICATION |
22 | |||||
Section 7.1 | Indemnification of Lessee | 22 | ||||
Section 7.2 | Indemnification of CCS Parties | 24 | ||||
Section 7.3 | Notification of Claims | 24 | ||||
Section 7.4 | Defense of Third-Party Claims | 25 | ||||
Section 7.5 | Other Claims | 25 | ||||
Section 7.6 | Payment | 25 | ||||
Section 7.7 | No Duplication | 25 | ||||
Section 7.8 | Sole Remedy | 26 |
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Section 7.9 | General Limitation of Damages | 26 | ||||
Section 7.10 | After-Tax Basis | 26 | ||||
Section 7.11 | No Double Recovery | 26 | ||||
ARTICLE VIII TERMINATION; EFFECT OF TERMINATION |
27 | |||||
Section 8.1 | Termination | 27 | ||||
Section 8.2 | Effect of Termination | 28 | ||||
ARTICLE IX GENERAL PROVISIONS |
28 | |||||
Section 9.1 | Confidentiality | 28 | ||||
Section 9.2 | Further Actions | 29 | ||||
Section 9.3 | Amendment, Modification and Waiver | 29 | ||||
Section 9.4 | Severability | 29 | ||||
Section 9.5 | Expenses and Obligations | 30 | ||||
Section 9.6 | Binding Effect; Third Parties | 30 | ||||
Section 9.7 | Notices | 30 | ||||
Section 9.8 | Knowledge | 31 | ||||
Section 9.9 | Counterparts | 31 | ||||
Section 9.10 | Entire Agreement | 32 | ||||
Section 9.11 | Governing Law; Choice of Forum; Waiver of Jury Trial | 32 | ||||
Section 9.12 | Private Letter Ruling | 32 | ||||
Section 9.13 | Publicity | 32 | ||||
Section 9.14 | Assignment | 33 | ||||
Section 9.15 | Appendices, Schedules and Exhibits | 33 |
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Exhibits and Schedules:
Exhibits | ||
Exhibit A | Description of the Existing Facility | |
Exhibit B | Description of the New Facility | |
Exhibit C | Form of New Equipment Lease | |
Exhibit D | Form of Omnibus Amendment | |
Exhibit E | Form of Technology Sub-License Amendment | |
Exhibit F | Certification | |
Exhibit G | Due Diligence Request Lists | |
Schedules | ||
Schedule 3.1(c) | Conflicts and Consents | |
Schedule 3.1(d) | Litigation | |
Schedule 3.1(e) | Compliance with Applicable Laws; Permits | |
Schedule 3.1(f) | Insurance | |
Schedule 3.1(g) | Liens | |
Schedule 3.1(i) | Environmental | |
Schedule 3.1(j) | Taxes | |
Schedule 3.1(k) | Intellectual Property | |
Schedule 3.1(l) | Material Contracts | |
Schedule 3.1(m) | Employee Matters | |
Schedule 3.2(f) | Lessee Taxes | |
Schedule 9.8 | Knowledge of CCS Parties |
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EXCHANGE AGREEMENT
(Thomas Hill)
This EXCHANGE AGREEMENT (this Agreement ), dated as of December 14, 2011 (the Effective Date ), is entered into by and among Clean Coal Solutions, LLC, a Colorado limited liability company ( CCS ), AEC-TH, LLC, a Colorado limited liability company ( Lessor ), and GS RC Investments LLC, a Delaware limited liability company ( Lessee ). CCS and Lessor may be referred to herein individually as a CCS Party and collectively as the CCS Parties . CCS, Lessor and Lessee may each be referred to herein individually as a Party and collectively as the Parties .
RECITALS
A. Lessor and Lessee entered into that certain Equipment Lease dated as of June 29, 2010 (the Existing Equipment Lease ), whereby Lessor leased to Lessee a refined coal production facility as described on Exhibit A (the Existing Facility ).
B. Lessee desires to enter into a new agreement to lease a redesigned refined coal production facility, as described on Exhibit B , newly constructed and owned by Lessor (the New Facility ) and terminate the Existing Equipment Lease.
C. The Parties intend that the transfer will take place in a transaction that qualifies as a like-kind exchange for nonrecognition of taxable income under Section 1031 of the Code, and the Parties are willing to take such steps as are commercially reasonable and necessary to enable the transactions contemplated hereby to so qualify.
NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms . The following terms and expressions shall have the meanings set forth in this Section 1.1 :
Acceptance has the meaning set forth in Section 5.1(b) .
ADA-ES means ADA-ES, Inc., a Colorado corporation.
ADA-ES Guaranty means the Guaranty provided by ADA-ES in favor of Lessee, dated as of the Closing Date.
Affiliate means, with respect to any Person, any other Person controlling, controlled by or under common control with such first Person. For purposes of this definition and the Agreement, the term control (and correlative terms) means (a) the ownership of fifty percent (50%) or more of the equity interest in a Person, or (b) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of a Person. For the purposes of this definition, each of ADA-ES, NexGen LLC, NexGen, Republic
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and CCS are Affiliates of Lessor. For the purposes of this definition, the parent of Lessee and any member of the federal income Tax consolidated group of which such parent is a member are Affiliates of Lessee.
After Tax Basis means, with respect to any amount payable in respect of a Loss (the Base Amount ), the Base Amount supplemented by an additional amount (the Gross-Up ) to reflect all U.S. federal, state and local Taxes (net of any deductions or credits realized by the payee arising from the receipt or accrual of the Gross-Up) imposed on the receipt or accrual of the Base Amount and the Gross-Up so that after reduction for the payment of all such Taxes the recipient would retain an amount equal to the Base Amount, provided that the Gross-Up amount shall be calculated based upon the assumption that the Indemnified Party is subject to corporate income Tax at the maximum federal corporate income Tax rate in effect at the time of calculation plus six percent (6%); and provided further that the amount of any Loss will take into account the value of any Tax deduction that would be allowed to the Indemnified Party with respect thereto assuming that such Indemnified Party is able to use such deduction and is subject to corporate income Tax at the maximum federal corporate income Tax rate in effect at the time of calculation plus six percent (6%).
Agreement has the meaning set forth in the introductory paragraph.
Agreement to Lease means that certain Agreement to Lease, dated as of June 29, 2010, by and among CCS, Lessor, AEC-NM, LLC and Lessee.
Books and Records means all financial, engineering, operating, accounting, Tax, business, environmental, legal, marketing and other data, files, documents, instruments, notes, papers, books and records of any CCS Party, its respective members and Affiliates of its respective members that relate materially to any CCS Party, including financial statements, budgets, ledgers, journals, deeds, property records, title policies, drawings, records, maps, charts, surveys, prints, franchises, customer lists, supplier lists, sales and sales promotional data, advertising materials, cost and pricing information, corporate records, permits, certificates, governmental filings, Tax Returns and reports, whether in existence on the date of this Agreement or created after the date of this Agreement.
Business Day means any calendar day other than (a) a Saturday or Sunday or (b) a calendar day on which commercial banks in New York, New York are authorized or required to be closed.
CCS has the meaning set forth in the introductory paragraph.
CCS Basket Amount has the meaning set forth in Section 7.1(b)(i) .
CCS Deliverables has the meaning set forth in Section 6.2(b) .
CCS First Cap Amount has the meaning set forth in Section 7.1(c)(ii) .
CCS Indemnified Costs means any and all Losses incurred by the CCS Indemnified Parties resulting from or relating to any breach or default by Lessee of any representation or warranty (whether on the date hereof or on the Closing Date, as though such representation or warranty was being made as of the Closing Date), covenant, indemnity or agreement under this Agreement or any other Transaction Document.
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CCS Indemnified Parties means (a) CCS; (b) Lessor; (c) each Lessor Guarantor, (d) any member of Lessor, its successor and assigns; (e) the Affiliates of each Person described in the foregoing clause (a), (b), (c) and (d); (f) the successors, assigns and Representatives of each Person described in the foregoing clauses (a), (b), (c), (d) and (e).
CCS Party or CCS Parties has the meaning set forth in the introductory paragraph.
CCS Second Cap Amount has the meaning set forth in Section 7.1(c)(iii) .
CCSS means Clean Coal Solutions Services, LLC, a Colorado limited liability company.
Certification has the meaning set forth in Section 5.1(b) .
Chemical Additive Supply Agency Agreement means that certain Chemical Additive Supply Agency Agreement, dated as of June 29, 2010, by and between CCS and Lessee, as such agreement may be amended, supplemented or modified.
Claim means a demand, claim, complaint, cross-demand, cross-claim, counterclaim, cross-complaint, summons, notice of violation, arbitration notice or other notice, communication or action pursuant to which a Person (including a Governmental Authority) (a) notifies another Person that the first Person has suffered or incurred Losses for which the second Person may be liable or responsible; (b) alleges that such second Person has violated a Law or is otherwise liable or responsible for Losses arising under a Law; (c) asserts legal, equitable, contractual or other rights or remedies against such second Person; (d) proposes an adjustment to a Tax Return of such second Person; (e) institutes or commences a Proceeding against such second Person; (f) otherwise makes any demand or claim on such second Person; or (g) threatens to do any of the foregoing.
Claims Notice has the meaning set forth in Section 7.3 .
Closing has the meaning set forth in Section 6.1 .
Closing Date has the meaning set forth in Section 6.1 .
Code means the Internal Revenue Code of 1986, as amended.
Contingent Rent Payments has the meaning set forth in the New Equipment Lease.
Due Diligence Materials has the meaning set forth in Section 3.1(o) .
Due Diligence Request Lists means the request lists for due diligence with respect to CCS and Lessor, as applicable, and the New Facility submitted by Lessee to CCS and Lessor, attached as Exhibit G .
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Draft Allocation has the meaning set forth in Section 4.1(b) .
Effective Date has the meaning set forth in the introductory paragraph.
Emission Testing means continuous emission monitoring system ( CEMS ) field testing that meets the requirements set forth in Section 6.03(1) of IRS Notice 2010-54, or such other testing method established by the IRS, to establish the amount of the reduction of nitrogen oxide and mercury emissions released when burning Refined Coal compared to the emissions released when burning feedstock coal.
Environmental Costs or Liabilities means any Losses, claims, demands, settlements and obligations (including costs relating to personal injury, death or property damage, reasonable fees, disbursements and expenses of legal counsel, experts, engineers and consultants, and the costs of investigation or feasibility studies and performance of corrective, remedial or removal actions and cleanup or monitoring activities) arising from, under or in connection with (a) any violation of or liability under any Environmental Laws, (b) any remedial or corrective action obligation under or relating to any Environmental Laws or (c) any liability or Claim relating to the release of, presence of or exposure to, any Hazardous Substance.
Environmental Laws means all applicable Laws and rules of common Law pertaining to the protection of the environment, natural resources, workplace health and safety, the prevention of pollution or the remediation of contamination, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Emergency Planning and Community Right to Know Act and the Superfund Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Resource Conservation and Recovery Act of 1976, the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42 U.S.C. § 7401 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Federal Water Pollution Control Act, the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Safe Drinking Water Act, the Occupational Safety and Health Act of 1970 (42 U.S.C. § 11001 et seq.), the Oil Pollution Act of 1990, the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.) the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 801 et seq.), and any similar or analogous statutes, regulations and decisional Law of any Governmental Authority, as each of the foregoing may have been or are in the future amended or supplemented, in each case to the extent applicable with respect to the property or operation to which application of the term Environmental Laws relates.
Existing Equipment Lease has the meaning set forth in the recitals.
Existing Facility has the meaning set forth in the recitals.
Existing Guaranties means, collectively, the Guaranty, dated November 21, 2011, issued by Goldman Sachs Group, Inc. in favor of Lessor and AEC-NM, LLC, the Limited Guaranty, dated June 29, 2010, issued by NexGen in favor of Lessee, the Limited Guaranty, dated June 29, 2010, issued by NexGen LLC in favor of Lessee, the Limited Guaranty, dated June 29, 2010, issued by Republic in favor of Lessee and the Limited Guaranty, dated June 29, 2010, issued by ADA-ES in favor of Lessee.
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Federal Tax Rule means any regulation, rule, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or interpretative or advisory opinion or letter by any Federal Tax Authority with respect to federal Tax matters, including (a) regulations of the Treasury Department, (b) judgments and decisions of the United States Tax Court, the United States Board of Tax Appeals and any other court of the United States in connection with its exercise of original, trial or appellate jurisdiction over any case involving federal Tax matters, (c) IRS and Treasury Department materials such as revenue rulings, revenue procedures, Treasury decisions, technical memoranda, technical advice memoranda, PLRs, determination letters, Chief Counsels advice, field service advice, general counsel memoranda, office memoranda, technical information releases, delegation orders, Executive Orders, Treasury Department orders, notices, announcements and news releases and (d) a Pre-Filing Agreement.
Final Allocation has the meaning set forth in Section 4.1(b) .
Final Disposition means the final resolution of any liability for any Tax for any taxable period by or as a result of: (a) a final and unappealable decision, judgment, decree or other order by any court of competent jurisdiction; (b) a final binding written settlement with the IRS relating to the Section 45 Credits, a signed closing agreement or accepted offer in compromise under Code Sections 7121 or 7122, or a comparable arrangement under the Laws of another jurisdiction; (c) any allowance of a refund in respect of an overpayment of Tax, but only after the expiration of all periods during which such amount may be recovered by the Governmental Authority imposing the Tax; or (d) any other final resolution, including by reason of the expiration of the applicable statute of limitations.
Governmental Authority means any governmental department, commission, board, bureau, agency, court or other instrumentality of any country, state, province, county, parish or municipality, jurisdiction or other political subdivision thereof.
Group means, with respect to any Party, such Party and (a) the Affiliates of such Party; (b) each guarantor of such Party; (c) any other members, shareholders, partners or other equity owners of such Party or any of its Affiliates (other than holders of publicly-traded units of such Party or of any of its Affiliates, except any such holder that controls such Party), and (d) the respective successors, assigns and Representatives of each Person described in the foregoing clause (a), (b) or (c), but shall in no event include the other Parties respective Groups.
GS means The Goldman Sachs Group, Inc., a Delaware corporation.
Hazardous Substances means (a) any hazardous materials, hazardous wastes, hazardous substances, toxic wastes, solid wastes and toxic substances as those or similar terms are defined under any Environmental Laws; (b) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable; (c) polychlorinated biphenyls ( PCBs ), or PCB-containing materials, or fluids; (d) radon; (e) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, contaminant, constituent or solid, liquid or gaseous waste; (f) any petroleum, petroleum hydrocarbons, petroleum products, crude oil and any fractions or derivatives thereof, and any natural gas, synthetic gas and any mixtures thereof; and (g) any substance that, whether by its nature or its use, is subject to regulation under any Environmental Laws or with respect to which any Environmental Laws or Governmental Authority requires environmental investigation, monitoring or remediation.
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Initial Term has the meaning set forth in the New Equipment Lease.
Indemnified Party means any Person seeking indemnification from another Person pursuant to Article VII .
Indemnifying Party means any Person against whom a claim for indemnification is asserted by another Person pursuant to Article VII .
Independent Accountant has the meaning set forth in Section 4.1(b) .
Investment Grade has the meaning set forth in the Operating and Maintenance Agreement.
IRS means the United States Internal Revenue Service, and any successor thereto.
IRS Guidance has the meaning set forth in Section 9.12 .
Law means any applicable constitutional provision, statute, act, code (including the Code), law, regulation, rule, ordinance, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or interpretative or advisory opinion or letter of a Governmental Authority having valid jurisdiction.
Lessee has the meaning set forth in the introductory paragraph.
Lessee Basket Amount has the meaning set forth in Section 7.2(b)(i) .
Lessee Cap Amount has the meaning set forth in Section 7.2(b)(iii) .
Lessee Deliverables has the meaning set forth in Section 6.2(a) .
Lessee Indemnified Costs means any and all Losses incurred by any of the Lessee Indemnified Parties resulting from or relating to (a) any Lessor and/or any CCS Partys ownership, operation or control of all or any part of the New Facility that in each case is based on any event, condition, fact, circumstance, action or omission that occurred or existed prior to the Closing, including the installation of the New Facility at the Site and any and all Environmental Costs or Liabilities; (b) the removal of the Existing Facility from the Site and any re-installation of the Existing Facility pursuant to Section 8.2(b) ; and (c) any breach or default by any CCS Party of any representation or warranty (whether on the date hereof or on the Closing Date, as though such representation or warranty was being made as of the Closing Date), covenant, indemnity or agreement under this Agreement or any other Transaction Document.
Lessee Indemnified Parties means (a) Lessee; (b) any member of Lessee, its successor and assigns; (c) the shareholders and members of each Person described in the foregoing clause (b); (d) the Affiliates of each Person described in the foregoing clause (a), (b) and (c); (e) the successors, assigns and Representatives of each Person described in the foregoing clauses (a), (b), (c), and (d); and (f) any company that joins with another Person that would be a Lessee Indemnified Party in filed consolidated or combined Tax Returns.
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Lessee Parent Guaranty means the Guaranty provided by GS in favor of Lessor, dated as of the Closing Date.
Lessor has the meaning set forth in the introductory paragraph.
Lessor Guarantors means, collectively, ADA-ES, NexGen LLC, NexGen and Republic.
Lessor Parent Guaranties means, collectively, the ADA-ES Guaranty, the NexGen LLC Guaranty, the NexGen Guaranty and the Republic Guaranty, each dated as of the Closing Date.
Lien means all burdens, encumbrances and defects affecting the ownership of an asset, including (a) liens, security interests, mortgages, deeds of trust, pledges, conditional sale or trust receipt arrangement, consignment or bailment for security purposes, finance lease, or other encumbrances of any nature whatsoever securing any obligation, whether such interest is based on common Law, statute or contract; (b) any rights of first refusal or any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership; and (c) any other reservations, exceptions, covenants, conditions, restrictions, leases, subleases, licenses, easements, servitudes, occupancy agreements, equities, charges, assessments, defects in title, liabilities, claims, agreements, obligations, encroachments and other burdens, and other title exceptions and encumbrances affecting property of any nature, whether accrued or unaccrued, absolute or contingent, legal or equitable, real or personal or otherwise.
Loss or Losses means losses, lost Section 45 Credits (but only to the extent such Section 45 Credits relate to Refined Coal actually produced by the New Facility), liabilities, causes of action, assessments, cleanup, removal, remediation and restoration obligations, judgments, awards, damages, natural resource damages, contribution, cost-recovery and compensation obligations, fines, fees, penalties and costs and expenses (including litigation costs and reasonable attorneys and experts fees and expenses).
Material Adverse Effect means a material adverse effect on the business, financial condition, results of operations, assets, liabilities, operations or properties of Lessee, the transactions contemplated by this Agreement or the Section 45 Credits available to Lessee from the operation of the New Facility, excluding effects resulting from general economic conditions or changes or conditions that effect the coal industry generally.
Material Contracts has the meaning set forth in Section 3.1(l) .
Omnibus Amendment has the meaning set forth in Section 2.4 .
Operating and Maintenance Agreement means that certain Operating and Maintenance Agreement, dated as of June 29, 2010, by and between CCS and Lessee, as such agreement may be amended, supplemented or modified.
New Equipment Lease has the meaning set forth in Section 2.2 .
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New Facility has the meaning set forth in the recitals.
NexGen means NexGen Investments, LLLP, a Colorado limited liability limited partnership.
NexGen Guaranty means the Guaranty provided by NexGen in favor of Lessee, dated as of the Closing Date.
NexGen LLC means NexGen Refined Coal, LLC, a Wyoming limited liability company.
NexGen LLC Guaranty means the Guaranty provided by NexGen LLC in favor of Lessee, dated as of the Closing Date.
Party or Parties has the meaning set forth in the introductory paragraph.
Person means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other entity.
Permit means any permit, certificate, license, franchise, authorization, variance, exemption, concession, lease, instrument, order, consent, authorization or approval of any Governmental Authority.
Permitted Liens means (a) the rights of the Parties pursuant to the Transaction Documents, (b) Liens for Taxes of Lessor not yet due and (c) materialmens, mechanics, workers, repairmens, employees or other like Liens, arising in the ordinary course of business for amounts not yet delinquent or being contested in good faith by appropriate proceedings, so long as such proceedings do not involve any material danger of the sale, forfeiture or loss of any material part of the New Facility or Lessees inventory of Refined Coal (or the proceeds thereof) or any title or interest in and to the foregoing.
PLR means a private letter ruling from the IRS.
Power Plant means the Thomas Hill Energy Center near Clifton Hill, Missouri, owned and operated by Utility.
Pre-Filing Agreement means an LSMB pre-filing arrangement (as described in IRS Revenue Procedure 2009-14 or any supplement or successor thereto) between Lessee and the IRS.
Proceeding means a judicial, administrative or arbitral proceeding (including a lawsuit or an investigation by a Governmental Authority), commencing with the institution of such proceeding through the issuance, service or delivery of the applicable Claim or other applicable event.
Refined Coal means refined coal produced from coal at the New Facility.
Renewal Term has the meaning set forth in the New Equipment Lease.
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Representative means, with respect to any Person, each manager, director, officer, employee, agent, consultant (including consulting engineers), advisor (including counsel and accountants) and other representative of such Person.
Republic means Republic Financial Corporation, a Colorado corporation.
Republic Guaranty means the Guaranty provided by Republic in favor of Lessee, dated as of the Closing Date.
Section 45 Change means the occurrence of any of the following events on or after the date hereof, insofar as such event relates to the Section 45 Credit, unless the New Facility and the sale of Refined Coal therefrom by Lessee are grandfathered or otherwise exempted from the effect thereof:
(a) any total repeal of Section 45 of the Code; or
(b) any of the following events, to the extent that such event materially adversely affects, or has a material likelihood of adversely affecting, the amount, availability or value of Section 45 Credits that Lessee may claim for Refined Coal produced from the New Facility and sold to an Unrelated Person:
(i) an amendment to or partial repeal of Section 45 of the Code;
(ii) an amendment of a section of the Code that is expressly referred to in Section 45 of the Code or affects the ability of taxpayers to claim the Section 45 Credit; or
(iii) the adoption of a Federal Tax Rule that regulates, interprets, construes, limits, restricts, unwinds, modifies or otherwise affects (A) Section 45(c)(7), 45(d)(8) or 45(e)(8) of the Code or (B) a section of the Code, including in other parts of Section 45, that is expressly referred to in Section 45(c)(7), 45(d)(8) or 45(e)(8) of the Code.
Section 45 Credit means the credit allowed by Section 45 of the Code for the production and sale of Refined Coal produced from coal to an Unrelated Person.
Site has the meaning set forth in Section 2.1(a) .
Tax or Taxes means any taxes, assessments, fees and other governmental charges imposed by any Governmental Authority, including profits, gross receipts, net proceeds, alternative or add-on minimum, ad valorem, value added, turnover, sales, use, property, personal property (tangible and intangible), environmental, stamp, leasing, lease, user, excise, duty, franchise, capital stock, transfer, registration, license, withholding, social security (or similar), unemployment, disability, payroll, employment, fuel, excess profits, occupational, premium, windfall profit, severance, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not.
Tax Proceeding has the meaning set forth in Section 4.4(a) .
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Tax Return means any return, statement information return or other document (including amendments thereto and supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or the administration of any Laws relating to any Taxes.
Technology Sub-License means that certain Technology Sub-License, dated as of June 29, 2010, by and between ADA-ES, CCS and Lessee, as such agreement may be amended, supplemented or modified.
Technology Sub-License Amendment has the meaning set forth in Section 2.4 .
Test or Testing has the meaning set forth in Section 2.1(b) .
Third Party means, with respect to a Party, any Person other than such Party, its Affiliates and its Representatives, and excluding any Governmental Authority.
Third Party Claim has the meaning set forth in Section 7.4 .
Transaction Documents means this Agreement, the New Equipment Lease, the Omnibus Amendment, the Technology Sub-License Amendment, the Lessee Parent Guaranty and the Lessor Parent Guaranties.
Unrelated Person means, with respect to any Person, any other Person that is not related to such Person within the meaning of Section 45(e)(4) of the Code.
Utility means Associated Electric Cooperative, Inc., a Missouri cooperative, non-profit, membership corporation.
Section 1.2 Construction of Certain Terms and Phrases . Titles appearing at the beginning of any Articles, Sections, subsections or other subdivisions of this Agreement are for convenience only, do not constitute any part of such Articles, Sections, subsections or other subdivisions, and shall be disregarded in construing the language contained therein. The words this Agreement, herein, hereby, hereunder, and hereof, and words of similar import, refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The words this Section, this subsection, and words of similar import, refer only to the Sections or subsections hereof in which such words occur. The word or is not exclusive, and the word including (in its various forms) means including without limitation. Pronouns in masculine, feminine or neuter genders shall be construed to state and include any other gender and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, unless the context otherwise expressly requires. Unless the context otherwise requires, all defined terms contained herein shall include the singular and plural and the conjunctive and disjunctive forms of such defined terms, and the term Annex, Exhibit or Schedule shall refer to an Annex, Exhibit or Schedule attached to this Agreement. All references to the Code, U.S. Treasury regulations or other governmental pronouncements shall be deemed to include references to any applicable successor statute, regulations or amending pronouncement.
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ARTICLE II
EXCHANGE OF FACILITY
Section 2.1 New Facility Installation, Testing and Acceptance .
(a) Removal of Existing Facility and Installation of New Facility . Prior to the Closing, the CCS Parties shall cause the Existing Facility to be removed from its current location at the Power Plant, as shown on Exhibit B (the Site ) and the CCS Parties shall cause the New Facility shall be installed at the Site.
(b) Testing of New Facility . Upon installation of the New Facility at the Site, the CCS Parties shall cause testing, including Emission Testing ( Testing ), to be conducted on the New Facility consistent with best industry practice and, to the extent relevant, in accordance with Section 45 of the Code and the IRS Guidance. The CCS Parties shall cause Emission Testing to be conducted at the Power Plant using Refined Coal produced at the New Facility. Upon commencement of Testing of the New Facility, the CCS Parties shall permit Lessee and its Affiliates and its and their employees, agents, contractors and consultants to observe such Tests and to undertake any additional diligence with respect to such Testing as Lessee in its sole discretion elects.
Section 2.2 Execution of New Lease . Subject to the terms and conditions of this Agreement, on the Closing Date Lessor and Lessee will enter into an Equipment Lease, substantially in the form attached as Exhibit C (the New Equipment Lease ), pursuant to which Lessee will lease the New Facility from Lessor.
Section 2.3 Termination of Existing Equipment Lease and the Existing Guaranties . On the Closing Date the Existing Lease, together with all amendments and modifications thereto, shall terminate. Each of Lessor and Lessee for itself, its Affiliates and its and their successors and assigns agrees that the termination of the Existing Lease shall be treated as a termination by agreement without fault or breach on the part of either Lessor or Lessee and the terms of Section 3.2 of the Existing Equipment Lease shall apply to such termination provisions; provided that Section 3.2(c) shall be inapplicable and excluded in all respects for the purposes of such termination. On the Closing Date the Existing Guaranties, together with all amendments and modifications thereto, shall terminate with respect to the guaranteed obligations arising out of or under the Agreement to Lease, the Existing Lease, the Chemical Additive Supply Agreement, the Operating and Maintenance Agreement and the Technology Sublicense.
Section 2.4 Amendments to Certain Documents . In connection with the exchange of the Existing Facility for the New Facility and in furtherance of the transactions contemplated by this Agreement, on the Closing Date the Parties will have executed (or will cause to have executed): (a) an amendment to the Operating and Maintenance Agreement and the Chemical Additive Supply Agency Agreement, substantially in the form of Exhibit D (the Omnibus Amendment ); and (b) an amendment to the Technology Sub-License Agreement, substantially in the form of Exhibit E (the Technology Sub-License Amendment ).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the CCS Parties . Each CCS Party represents and warrants to Lessee, as of the date of this Agreement and as of the Closing Date, as follows (with the understanding that Lessee is relying on such representations and warranties in entering into and performing this Agreement and each of the other Transaction Documents):
(a) Organization, Good Standing, Etc . Each CCS Party is a limited liability company duly formed, validly existing and in good standing under the Laws of the state of its formation, and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each CCS Party is qualified to do business and is in good standing under the Laws of the jurisdictions in which the character of the properties owned or leased by such CCS Party or the nature of the activities conducted by such CCS Party in operating its business make such qualification necessary under applicable Laws.
(b) Authority . Each CCS Party has all requisite limited liability company power and authority to enter into this Agreement and each of the other Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by each CCS Party of this Agreement and each of the other Transaction Documents to which it is a party, the performance by it of its obligations hereunder and thereunder and the consummation by it of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of such CCS Party. This Agreement has been duly executed and delivered by each CCS Party, and upon the execution and delivery by each CCS Party of each of the other Transaction Documents to which it is a party, such Transaction Documents will be duly executed and delivered by each CCS Party. This Agreement constitutes, and upon execution and delivery by each CCS Party of each of the other Transaction Documents to which it is a party, such Transaction Documents will constitute, the valid and binding obligations of such CCS Party, enforceable against such CCS Party in accordance with their terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting enforcement of creditors rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity).
(c) No Conflict; Required Filings and Consents . Except as set forth in Schedule 3.1(c) , the execution and delivery by each CCS Party of this Agreement and each of the other Transaction Documents to which it is a party do not, and the performance by it of its obligations hereunder and thereunder and the consummation by it of the transactions contemplated hereby and thereby, will not (i) violate, conflict with or result in any breach of any provision of its limited liability company agreement or other organizational documents, (ii) violate, conflict with or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under, or permit the termination of, or result in the acceleration of, or entitle any Person to accelerate any obligation, or result in the loss of any benefit, or give any Person the right to require any security to be repurchased, or give rise to the creation of any Lien upon the New Facility, or affect its rights under any of the terms, conditions
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or provisions of any loan or credit agreement, note, bond, mortgage, indenture or deed of trust, or any license, lease, agreement or other instrument or obligation to which such entity is a party or by which or to which such entity or any of its assets or the New Facility may be bound or subject, or (iii) violate any applicable Law. Except as disclosed on Schedule 3.1(c) , no Consent of any Governmental Authority or other Person is necessary or required or has not been obtained as of the Closing Date with respect to each CCS Party in connection with the execution and delivery by each CCS Party of this Agreement and the other Transaction Documents to which it is a party, the performance by it of its obligations hereunder and thereunder or the consummation by it of the transactions contemplated hereby and thereby.
(d) Absence of Litigation . Except as set forth in Schedule 3.1(d) , there are no Proceedings pending or, to the knowledge of each CCS Party, threatened against any CCS Party or relating to the New Facility or any CCS Partys execution, delivery or performance of this Agreement and the other Transaction Documents to which it is a party. No CCS Party has received any Claim that may give rise to any such Proceedings which could reasonably be expected to have a Material Adverse Effect. No CCS Party has knowledge that there is a valid basis for any such Claims or Proceedings. No CCS Party is the subject of any order, judgment, decree, injunction or stipulation of any Governmental Authority that would affect its ability to consummate the transactions contemplated by this Agreement and the other Transaction Documents.
(e) Compliance with Applicable Laws; Permits . Each CCS Party is in compliance with, and the New Facility as of the Closing Date is in compliance with, all applicable Laws, in each case other than as listed or described on Schedule 3.1(e) , or in each case where the failure to be in compliance with such Laws could reasonably be expected to have a Material Adverse Effect. There are no Permits required to be obtained or filed by any CCS Party under any applicable Law either to conduct the business of any CCS Party or otherwise to own or operate the New Facility, other than those listed or described on Schedule 3.1(e) , or where the failure to obtain or file such Permits could reasonably be expected to have a Material Adverse Effect.
(f) Insurance . Schedule 3.1(f) sets forth a list of all fire, general liability, theft and other forms of insurance and all fidelity and surety bonds held by or applicable to each CCS Party or the New Facility, and except as disclosed on such Schedule 3.1(f) , there is no Claim by any CCS Party pending under any such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds.
(g) Title . Except as set forth in Schedule 3.1(g) , Lessor has, and at the Closing will convey to Lessee, good and marketable leasehold title to and possession of the New Facility, free and clear of all Liens, except Permitted Liens.
(h) Condition of New Facility; Adequacy . As of the Closing Date, all of the equipment, machinery and facilities that are included in the New Facility are in good and merchantable condition and have been maintained in accordance with good operating practices, including the manufacturers recommendations. The equipment, machinery and facilities that are in the New Facility are fully functional and constitute all equipment, machinery and facilities currently needed to produce Refined Coal. The New Facility is capable of producing in the
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aggregate 2,000,000 Tons of Refined Coal per year that are eligible for the Section 45 Credit when the New Facility is used in connection with the Power Plant and associated equipment, although actual production levels will be determined by a variety of factors including decisions of Lessee, Utility demand and proper operation and functioning of the Power Plant. No warranty Claim has been made by any CCS Party on the equipment, machinery and facilities that are included in the New Facility.
(i) Environmental Matters . The New Facility has been owned, operated and maintained in compliance with all Environmental Laws and, to the knowledge of the CCS Parties, the New Facility is capable of operating in compliance with all Environmental Laws during the term of this Agreement, as such Environmental Laws exist or are in effect as of the Closing Date, without material modification or capital investment. There are no existing, or to the knowledge of the CCS Parties, threatened Proceedings, and no CCS Party has received any Claim, relating to violations of, or Losses under, Environmental Laws or to the presence, release or discharge of any Hazardous Substances, in each case with respect to the New Facility or to the ownership, operation or maintenance thereof. No Hazardous Substances exist in or on the New Facility, except as set forth in Schedule 3.1(i) . No CCS Party has received any notice from any Governmental Authority or any other Person alleging any violation of any Environmental Laws with respect to the ownership, operation or maintenance of the New Facility, except as is set forth on Schedule 3.1(i) . The CCS Parties have obtained, maintained and complied in all material respects with the terms of Permits required in connection with the ownership, operation and maintenance of the New Facility. No Hazardous Substances have been generated by, or released or discharged from, the New Facility at the Site where such release or discharge could reasonably be expected to result in a Claim or Proceeding pursuant to Environmental Laws. Except as set forth in Schedule 3.1(i) , there are no Hazardous Substances at the Site whose presence or existence is attributable to the New Facility or to the ownership, operation or maintenance thereof, or that would adversely affect the continued operation of the New Facility at the Site. Any chemical additives in the New Facility as of the date hereof and any chemical additives currently proposed to be supplied under the Chemical Additive Supply Agency Agreement do not contain Hazardous Substances in quantities that require special permits, handling or reporting.
(j) Taxes . Except as set forth in Schedule 3.1(j) , all Tax Returns required to be filed by each CCS Party with respect to the New Facility have been duly and timely filed and all information required to be included in each such Tax Return has been so included and all other information provided in each such Tax Return is true, correct, accurate and complete. All Taxes owed by each CCS Party shown on such Tax Returns and all Taxes owed by CCS Party with respect to the New Facility have been paid in full and CCS Party covenants that it will continue to pay all Taxes imposed in respect of the New Facility for all periods ending on or prior to the Closing (and for those periods that include the Closing but do not end on the Closing, Lessor will pay its pro rata share of such Taxes). No CCS Party has received any written notice of deficiency or assessment from any taxing authority with respect to liabilities for Taxes relating to the New Facility, which have not been fully paid or finally settled. There are no outstanding agreements or waivers extending the applicable statutory periods of limitation for or relating to the New Facility for any period. There are no liens for Taxes on the New Facility, except for Taxes not yet due. To the extent required by local Law, the New Facility has been properly listed and described on the property Tax rolls for the taxing units in which the New Facility is located and no portion of the New Facility constitutes omitted property for property Tax purposes.
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(k) Intellectual Property . Except as is set forth on Schedule 3.1(k) , neither the ownership or operation of the New Facility, nor the manufacture, use or sale (including offering for sale and other marketing activities) of the Refined Coal produced from the New Facility, infringes, misappropriates or violates any U.S. patent, trademark, service mark, trade name or copyright, trade secret, obligation of confidence or other proprietary, contract or intellectual property right of any Person.
(l) Contracts . Schedule 3.1(l) sets forth all of the material contracts or material agreements (the Material Contracts ) to which any CCS Party is a party relating to the New Facility or to which the New Facility is bound at the time of the execution of this Agreement. Except as is set forth on Schedule 3.1(l) , the CCS Parties have provided Lessee, including by way of access to an electronic dataroom, a true, correct, accurate and complete copy of each Material Contract. No CCS Party is in default, or has been notified that it is in default, under any Material Contract, and to the CCS Parties knowledge, no other party is in default under any Material Contract where either such default would result in a Material Adverse Effect.
(m) Employee Matters . Except as set forth in Schedule 3.1(m) :
(i) Lessor has no employees;
(ii) Lessor is not a party to any collective bargaining agreement;
(iii) Lessor has not agreed to recognize or bargain with any labor organization, union or other collective bargaining representative;
(iv) No labor organization, union or other collective bargaining representative has been certified as the exclusive bargaining representative of any employees in connection with the New Facility;
(v) No labor organization, union or representative thereof claims to or is seeking to represent employees in connection with the New Facility;
(vi) There is no labor strike or labor dispute, slowdown, work stoppage or lockout pending or threatened against or affecting Lessor; and
(vii) Lessor has not experienced any labor strike or labor dispute, slowdown, work stoppage or lockout in connection with the New Facility.
(n) Certification . As of the Closing Date, the representations and warranties made by CCS to Lessee in the Certification shall be true and correct in all respects.
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(o) Due Diligence Materials . As of the Closing Date, the CCS Parties have provided Lessee, including by way of access to an electronic dataroom, a true, correct, accurate and complete copy of all material responsive to the Due Diligence Request Lists in the possession or control of the CCS Parties or of which the CCS Parties are aware (including responses provided by the CCS Parties in writing to Lessee in connection with the requests made pursuant to the Due Diligence Request Lists), but excluding any materials to which Lessee or any of its affiliates are a party or by which they are bound (such materials, the Due Diligence Materials ).
Section 3.2 Representations and Warranties of Lessee . Lessee represents and warrants to each CCS Party as follows (with the understanding that each CCS Party is relying on such representations and warranties in entering into and performing this Agreement and each of the other Transaction Documents):
(a) Organization; Good Standing; Etc . Lessee is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
(b) Authority . Lessee has all requisite limited liability company power and authority to enter into this Agreement and each of the other Transaction Documents, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Lessee of this Agreement and each of the other Transaction Documents, the performance by it of its obligations hereunder and thereunder and the consummation by Lessee of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of Lessee. This Agreement has been duly executed and delivered by Lessee, and upon execution and delivery by Lessee of each of the other Transaction Documents, such Transaction Documents will be duly executed and delivered by Lessee. This Agreement constitutes, and upon execution and delivery by Lessee of each of the other Transaction Documents, such other Transaction Documents will constitute, the valid and binding obligations of Lessee, enforceable against it in accordance with their terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting enforcement of creditors rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity).
(c) No Conflict; Required Filings and Consents . The execution and delivery by Lessee of this Agreement and each of the other Transaction Documents do not, and the performance by it of its obligations hereunder and thereunder and the consummation by Lessee of the transactions contemplated hereby and thereby will not (i) violate, conflict with, or result in any breach of any provisions of its limited liability company agreement or other organizational documents, (ii) violate, conflict with or result in a violation or breach of or constitute a default (with or without due notice or lapse of time or both) under, or permit the termination of, or result in the acceleration of, or entitle any Person to accelerate any obligation, or result in the loss of any benefit, or give any Person the right to require any security to be repurchased, or give rise to the creation of any Lien upon any of its assets or affect any of its rights under, any of the terms, conditions or provisions of any loan or credit agreement, note, bond, mortgage, indenture or deed
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of trust, or any license, lease, agreement or other instrument or obligation to which Lessee is a party or by which or to which it or any of its assets may be bound or subject, or (iii) violate any applicable Law. No Consent of any Governmental Authority or other Person is necessary or required by or with respect to Lessee in connection with the execution and delivery by Lessee of this Agreement or any of the other Transaction Documents, the performance by Lessee of its obligations hereunder and thereunder or the consummation by Lessee of the transactions contemplated hereby and thereby.
(d) Absence of Litigation . There are no Proceedings pending or, to the knowledge of Lessee, threatened against Lessee or any of its Affiliates that seeks to restrain, prohibit or otherwise enjoin this Agreement or the consummation of the transactions contemplated hereby. Lessee is not the subject of any order, judgment, decree, injunction or stipulation of any Governmental Authority that would affect its ability to consummate the transactions contemplated by this Agreement and the other Transaction Documents.
(e) Brokers Fee . No agent, broker, investment banker or other Person engaged by Lessee is or will be entitled to any brokers or finders fee or any other commission or similar fee payable by any CCS Party in connection with any of the transactions contemplated by this Agreement or the other Transaction Documents.
(f) Taxes. Except as set forth in Schedule 3.2(f) , all Tax Returns required to be filed by the Lessee with respect to the Existing Facility have been duly and timely filed and all information required to be included in each such Tax Return has been so included and all other information provided in each such Tax Return is true, correct, accurate and complete. All Taxes owed by the Lessee shown on such Tax Returns and all Taxes owed by the Lessee y with respect to the Existing Facility have been paid in full and the Lessee covenants that it will continue to pay all Taxes imposed in respect of the Existing Facility for all periods ending on or prior to the Closing (and for those periods that include the Closing but do not end on the Closing, Lessee will pay its pro rata share of such Taxes). The Lessee has not received any written notice of deficiency or assessment from any taxing authority with respect to liabilities for Taxes relating to the Existing Facility, which have not been fully paid or finally settled. There are no outstanding agreements or waivers extending the applicable statutory periods of limitation for or relating to the Existing Facility for any period. There are no liens for Taxes on the Existing Facility, except for Taxes not yet due. To the extent required by local Law, the Existing Facility has been properly listed and described on the property Tax rolls for the taxing units in which the Existing Facility is located and no portion of the Existing Facility constitutes omitted property for property Tax purposes.
Section 3.3 Survival of Representations and Warranties .
(a) All representations and warranties made by a Party in this Agreement or in any Transaction Document, have been relied upon by the other Parties and shall survive the Closing hereunder as set forth in this Section 3.3 , and shall not merge in the performance of any obligation by any Party hereto.
(b) All claims by a Lessee Indemnified Party for indemnification pursuant to Article VII resulting from breaches of representations or warranties shall be forever barred
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unless the CCS Parties are notified: (i) in the case of a claim based upon fraud or a breach of a representation or warranty set forth in Section 3.1(i) , within thirty (30) days after the expiration of the statutory period of limitations applicable to such claim, (ii) in the case of a claim based upon a breach of a representation or warranty in Sections 3.1(g) , (j) , (n) and (o) , within thirty (30) days after the expiration of the relevant statutory period of limitations, including extensions, applicable to the federal income tax obligations of Lessee; (iii) in the case of a claim based upon a breach of a representation or warranty in Sections 3.1(a) , (b) and (c) within three (3) years after the Closing Date; or (iv) in all other cases, within the Initial Term; provided , that, if written notice for a claim of indemnification has been given by such Lessee Indemnified Party on or prior to the last day of the applicable period, then the obligation of the CCS Parties to indemnify such Lessee Indemnified Party pursuant to Article VII shall survive with respect to such claim until such claim is finally resolved.
(c) All claims by a CCS Indemnified Party for indemnification pursuant to Article VII resulting from breaches of representations or warranties shall be forever barred unless Lessee is notified: (i) in the case of claim based upon fraud, within thirty (30) days of the expiration of the statutory period of limitations applicable to such claim; (ii) in the case of a claim based upon a breach of a representation or warranty in Sections 3.2(a) , (b) , and (c) , within three (3) years after the Closing Date or (iii) in all other cases within the Initial Term; provided, that, if written notice for a claim of indemnification has been given by such CCS Indemnified Party on or prior to the last day of the applicable period, then the obligation of Lessee to indemnify such CCS Indemnified Party pursuant to Article VII shall survive with respect to such claim until such claim is finally resolved.
ARTICLE IV
TAX MATTERS
Section 4.1 Tax Treatment of the Transaction .
(a) The Parties agree that for federal income Tax purposes, (i) the transactions described in the Existing Lease shall be considered as a taxable installment sale of the Existing Facility, (b) the transactions described in this Agreement and in the New Equipment Lease shall be treated as a like-kind exchange under Section 1031 of the Code of the facility leased pursuant to the Existing Lease for the New Facility, and (c) the Tax treatment of Contingent Rent Payments made by Lessee to Lessor under the terms of New Equipment Lease will be governed by the principles of Treasury Regulation section 1.1275-4(c). Each Party agrees to report the transaction consistently with such characterization. Lessee will provide Lessor with an allocation of the fixed payments under the Initial Term of the New Equipment Lease between interest and principal components within ninety (90) days after the Closing Date. Lessee will provide Lessor with an allocation of the fixed payments due under each Renewal Term of the New Equipment Lease between interest and principal components within ninety (90) days of the start of each Renewal Term. Lessee will provide an allocation of each contingent payment under the New Equipment Lease between interest and principal components within forty-five (45) days after such payment is made. Lessor shall provide any objections to Lessee within thirty (30) days after the receipt thereof. If Lessor raises objections, the Parties will apply the procedures set forth in Section 4.1(b) to resolve such objections.
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(b) All rent payments under the New Equipment Lease shall be allocated to the New Facility in accordance with Section 1060 of the Code. Each CCS Party shall provide Lessee with any information reasonably requested and required to complete IRS Form 8594. Lessee shall complete Form 8594 and furnish each CCS Party with a copy (the Draft Allocation ) within one hundred twenty (120) days from the Closing Date. Each CCS Party shall review the Draft Allocation and provide any objections to Lessee within thirty (30) days after the receipt thereof. In the event no CCS Party objects to Lessees Draft Allocation, such Draft Allocation shall be final (the Final Allocation ) and the Parties shall report such Final Allocation for Tax purposes and file Tax Returns (including Form 8824 under Section 1031 of the Code and Form 8594 under Section 1060 of the Code) in a manner consistent with such mutually agreed Final Allocation. If any CCS Party raises objections to the Draft Allocation, the Parties will negotiate in good faith to resolve such objection(s). If the Parties are unable to agree on the Draft Allocation within fourteen (14) days after such CCS Party raises such objections, the Parties shall refer such dispute to an independent nationally recognized accounting firm (the Independent Accountant ), which Independent Accountant shall make a final and binding determination as to all matters in dispute with respect to the Draft Allocation (and only such matters) within thirty (30) days and promptly shall notify the Parties in writing of its resolution. Each Party shall bear and pay one-half of the fees and other costs charged by the Independent Accountant.
(c) No Party shall have any liability or obligation to the other for any failure of the exchange of the Existing Facility and New Facility hereunder to qualify as a like-kind exchange as to Lessee under Section 1031 of the Code.
Section 4.2 Transaction Taxes . Any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax or other similar Tax, including any penalties, interest and additions to Tax, imposed by reason of any of the transactions (including the rescission rights) contemplated by this Agreement shall be shared equally by Lessor and Lessee.
Section 4.3 Property Taxes .
(a) Any property Taxes imposed on or with respect to the New Facility for the taxable period (for purposes of this section, taxable period means the period beginning on the assessment date for property Taxes through the day before the next assessment date for such Taxes) that contains the Closing Date shall be prorated based on the relative number of days prior to the Closing Date and on and after the Closing Date during the taxable period, with Lessor being responsible for ad valorem property Taxes allocable to the taxable period ending prior to the Closing Date and Lessee being responsible for ad valorem property Taxes with respect to the New Facility allocable to the taxable period beginning on the Closing Date.
(b) The amount of any refunds of property Taxes shall be equitably apportioned between Lessor and Lessee. Each Party shall forward, and shall cause its Affiliates to forward, to the Party entitled to receive a refund of property Tax, the amount of such refund within thirty (30) days after such refund is received, net any costs or expenses incurred by such Party in procuring such refund.
(c) Lessor shall file in a timely manner annual Missouri personal property Tax returns with respect to the New Facility.
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Section 4.4 Tax Return Information and Tax Proceedings .
(a) Lessor and Lessee shall cooperate fully as and to the extent reasonably requested by the other Party, in connection with the preparation and filing of Tax Returns and any audit, litigation or other proceeding (each a Tax Proceeding ) with respect to Taxes imposed on or with respect to the New Facility; provided that Lessee will control the conduct of any Tax Proceeding if Lessee will bear the liability for any additional Taxes imposed on or with respect to the New Facility as a result of such Tax Proceeding and Lessor will control the conduct of any Tax Proceeding if Lessor will bear the liability for any additional Taxes imposed on or with respect to the New Facility as a result of such Tax Proceeding. Such cooperation shall include the retention and (upon the other Partys request) the provision of Books and Records and information which are reasonably relevant to any such Tax Return or Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and consent to attendance by the other Party in any third-party interview, deposition or other discovery process relating to such Taxes. For the avoidance of doubt, for purposes of this Section 4.4 , Taxes imposed on or with respect to the New Facility do not include Taxes imposed on income or Section 45 Credits arising from the production of Refined Coal by the New Facility.
(b) Lessor shall retain all Tax Returns and related work papers, and all Books and Records relevant to the business of, and Taxes and Tax Returns with respect to, the New Facility until a Final Disposition has occurred with respect to all Tax periods for which Lessee claims Section 45 Credits with respect to Refined Coal produced by the New Facility. If Lessor wishes to dispose of Books and Records at any time, Lessor shall provide written notice to Lessee describing the Books and Records to be disposed of ninety (90) days prior to taking such action. Lessee may arrange to take delivery of the Books and Records described in such notice at its own expense during such ninety (90)-day period.
ARTICLE V
CLOSING CONDITIONS
Section 5.1 Lessees Conditions to Closing . The obligations of Lessee to consummate the transactions provided for in this Agreement are subject to the satisfaction (or waiver by Lessee) on or prior to the Closing of each of the following conditions precedent (except for those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction of such conditions):
(a) The representations and warranties of each CCS Party set forth in Section 3.1 shall be true and correct in all respects (other than any representations and warranties of each CCS Party that are qualified by a Material Adverse Effect, which, to the extent so qualified, shall be true and correct in all respects) at and as of the Closing.
(b) CCS shall provide to Lessee a written certification, substantially in the form of Exhibit F (the Certification ), with respect to the New Facility once CCS believes the
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New Facility has passed all Tests and has been placed in service within the meaning of Section 45(d)(8) of the Code and Lessee shall have delivered to CCS its written acceptance of the Certification (the Acceptance ), which Lessee may withhold in its sole discretion.
(c) The CCS Parties shall provide to Lessee the opportunity to conduct due diligence with respect to the New Facility as Lessee deems appropriate, and shall at a minimum provide Lessee with the Due Diligence Materials.
(d) Each of the CCS Parties shall have performed or complied with in all material respects the obligations, agreements and covenants of each CCS Party contained in this Agreement as to which performance or compliance by such CCS Party is required prior to or on the Closing Date.
(e) The CCS Parties shall have delivered to Lessee the CCS Deliverables.
Section 5.2 CCS Parties Conditions to Closing . The obligations of the CCS Parties to consummate the transactions provided for in this Agreement are subject to the satisfaction (or waiver by the CCS Parties) on or prior to the Closing of each of the following conditions precedent (except for those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction of such conditions):
(a) The representations and warranties of Lessee set forth in Section 3.2 shall be true and correct in all respects at and as of the Closing.
(b) Lessee shall have performed or complied with in all material respects the obligations, agreements and covenants of Lessee contained in this Agreement as to which performance or compliance by Lessee is required prior to or on the Closing Date.
(c) Lessee shall have delivered to the CCS Parties the Lessee Deliverables.
ARTICLE VI
CLOSING
Section 6.1 Closing . Subject to the satisfaction or waiver of the conditions precedent set forth in Article V , the closing (the Closing ) will take place at 4:00 p.m., eastern time on the Effective Date or such other time and date as may be agreed upon by the Parties (the Closing Date ).
Section 6.2 Closing Deliverables .
(a) At the Closing, Lessee shall deliver, or cause to be delivered, to the CCS Parties the following (collectively, the Lessee Deliverables ):
(i) New Equipment Lease . A counterpart of the New Equipment Lease executed by Lessee;
(ii) Omnibus Amendment . A counterpart of the Omnibus Amendment executed by Lessee;
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(iii) Technology Sub-License Amendment . A counterpart of the Technology Sub-License Amendment executed by Lessee; and
(iv) Lessee Parent Guaranty . A counterpart of the Lessee Parent Guaranty executed by GS.
(b) At the Closing, the CCS Parties shall deliver, or cause to be delivered, to Lessee the following (collectively, the CCS Deliverables ):
(i) New Equipment Lease . A counterpart of the New Equipment Lease executed by Lessor;
(ii) Omnibus Amendment . A counterpart of the Omnibus Amendment executed by CCSS;
(iii) Technology Sub-License Amendment . A counterpart of the Technology Sub-License Amendment executed by ADA-ES and CCS; and
(iv) Lessor Parent Guaranties . A counterpart of each of the Lessor Parent Guaranties executed by ADA-ES, NexGen LLC, NexGen and Republic, as applicable.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification of Lessee .
(a) The CCS Parties jointly and severally shall indemnify, defend and hold harmless the Lessee Indemnified Parties from and against any and all Lessee Indemnified Costs.
(b) The obligations of the CCS Parties under Section 7.1(a) shall be subject to the following limitations:
(i) The CCS Parties shall not have any liability for Lessee Indemnified Costs for any breach by the CCS Parties of any representations or warranties in Section 3.1 unless and until the aggregate of all Lessee Indemnified Costs relating thereto for which the CCS Parties would, but for this clause (i) , be required to indemnify Lessee exceeds on a cumulative basis an amount (the CCS Basket Amount ) equal to $500,000, in which case, subject to clause (ii) of this subsection (b) , the CCS Parties shall be liable for the Lessee Indemnified Costs incurred by the Lessee Indemnified Parties but only to the extent such Lessee Indemnified Costs exceed the CCS Basket Amount;
(ii) Except with respect to the matter disclosed on Schedule 3.1(d) (the disclosure on such Schedule 3.1(d) and Lessees actual knowledge of which the Parties acknowledge and agree shall not affect the CCS Parties liability to the Lessee Indemnified Parties for any Lessee Indemnified Costs associated therewith or the ability of any such Lessee Indemnified Costs to be aggregated for the purposes of Section 7.1(b)(i) ), the CCS Parties shall not have any liability for Lessee Indemnified
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Costs for any breach by the CCS Parties of any representation and warranty in Section 3.1 if Lessee had actual knowledge that such representation and warranty was not true and correct in any material respect at the time of the Closing, and no Lessee Indemnified Costs related thereto shall be aggregated for the purpose of Section 7.1(b)(i) ;
(iii) The CCS Parties shall not have any liability for Lessee Indemnified Costs for breach of representations and warranties in excess of the amounts specified in Section 7.1(c) ;
(iv) The obligations to indemnify and hold Lessee harmless pursuant to Section 7.1(a) with respect to breaches of representations and warranties shall be subject to the limitations in Section 3.3 ; and
(v) The liability of the CCS Parties for Lessee Indemnified Costs arising from Losses that are assessed against Lessee arising out of any failure of the CCS Parties to obtain or file any Permit that was required to be obtained or filed by the CCS Parties prior to the Closing either to conduct the business of the CCS Parties in Missouri or to own or operate the New Facility in Missouri shall not be limited to that portion of such Loss attributable to the time period prior to Closing.
(c) The obligations of the CCS Parties under Section 7.1(a) shall be subject to the following limitations:
(i) The CCS Parties shall not have any liability for lost or disallowed Section 45 Credits relating to Refined Coal actually produced at the New Facility except for and to the extent that breaches of the representations and warranties in Sections 3.1(a) , (b) , (c) , (e) , (g) , (j) , (n) and (o) give rise to such lost or disallowed credits;
(ii) Except as otherwise provided in Section 7.1(c)(iii) , the CCS Parties shall not have any liability for Lessee Indemnified Costs for breaches of the representations and warranties in Sections 3.1(a) , (b) , (c) , (e) , (g) , (j) , (n) and (o) to the extent the aggregate amount of such Losses exceeds the sum of three million dollars ($3,000,000) plus the Initial Term Fixed Rent Payments, Renewal Term Fixed Rent Payments and Contingent Rent Payments (as such terms are defined in the New Equipment Lease) paid under the New Equipment Lease as of the relevant time of determination (the CCS First Cap Amount );
(iii) Except as otherwise provided in Section 7.1(c)(iv) , the CCS Parties shall not have any liability for Lessee Indemnified Costs for breaches of the representations and warranties in this Agreement (other than those in Sections 3.1(a) , (b) , (c) , (e) , (g) , (j) , (n) and (o) of this Agreement) to the extent the aggregate amount of such Losses exceed three million dollars ($3,000,000) (the CCS Second Cap Amount ); and
(iv) The limitations of the CCS First Cap Amount and the CCS Second Cap Amount shall not apply to Lessee Indemnified Costs resulting from (A) a breach of any representation or warranty contained in Section 3.1(i) , (B) or any gross negligence, fraud or willful misconduct of any CCS Party or (C) any Third Party Claim.
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Section 7.2 Indemnification of CCS Parties .
(a) Lessee shall indemnify, defend and hold harmless the CCS Indemnified Parties from and against any and all CCS Indemnified Costs.
(b) Lessees obligations under Section 7.2(a) shall be subject to the following limitations:
(i) Lessee shall not have any liability for CCS Indemnified Costs for any breach by Lessee of any representations or warranties in Section 3.2 unless and until the aggregate of all CCS Indemnified Costs relating thereto for which Lessee would, but for this clause (i) , be required to indemnify the CCS Indemnified Parties exceeds on a cumulative basis an amount (the Lessee Basket Amount ) equal to $500,000, in which case, subject to clause (ii) of this subsection (b) , Lessee shall be liable for the CCS Indemnified Costs incurred by the CCS Indemnified Parties, but only to the extent such CCS Indemnified Costs exceed the Lessee Basket Amount;
(ii) Lessee shall not have any liability for CCS Indemnified Costs for any breach of any representation and warranty in Section 3.2 if any CCS Party had actual knowledge that such representation and warranty was not true and correct in any material respect at the time of the Closing and no CCS Indemnified Costs related thereto shall be aggregated for the purpose of Section 7.2(b)(i) ;
(iii) Lessee shall not have any liability for CCS Indemnified Costs for any breach of any representations and warranties to the extent the aggregate amount of all CCS Indemnified Costs for breaches of representations and warranties for which Lessee would otherwise be liable exceeds three million dollars ($3,000,000) (the Lessee Cap Amount ); provided, however , that the limitation of the Lessee Cap Amount shall not apply to any CCS Indemnified Costs resulting from (A) any gross negligence, fraud or willful misconduct of Lessee or (B) any Third Party Claim; and
(iv) The obligations to indemnify and hold the CCS Indemnified Parties harmless pursuant to Section 7.2(a) with respect to breaches of representations and warranties shall be subject to the limitations in Section 3.3 .
Section 7.3 Notification of Claims . In the event that any Third Party Claim is hereafter asserted against an Indemnified Party as to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall notify the Indemnifying Party promptly and in writing after (a) receipt of notice of commencement of any third-party litigation against such Indemnified Party, (b) receipt by such Indemnified Party of written notice of any Third-Party Claim pursuant to an invoice, notice of claim or assessment, against such Indemnified Party, or (c) such Indemnified Party becomes aware of the existence of any other event in respect of which Indemnification may be sought from the Indemnifying Party (such a notice, being a Claims Notice ). The Claims Notice shall describe the Claim and the specific facts and circumstances in reasonable detail, shall include a copy of the notice referred to in (a) and (b), above, and shall indicate the amount, if known, or an estimate, if possible, of Losses that have been or may be incurred or suffered.
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Section 7.4 Defense of Third-Party Claims . If an Indemnified Partys claim for indemnification under Section 7.1 or Section 7.2 is based on a Claim brought by a Third Party (a Third Party Claim ), the Indemnifying Party shall have the right, at its sole cost and expense, to defend such Third Party Claim in the name or on behalf of the Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall have the right (following notice to the Indemnifying Party) to retain its own counsel and control its defense of any such Third Party Claim, with the reasonable fees and expenses to be paid by the Indemnifying Party if (a) representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate because of actual or potential differing interests between such Indemnified Party and the Indemnifying Party; (b) the Indemnifying Party shall have failed to employ counsel to defend such Proceeding or otherwise failed to prosecute such defense with reasonable diligence; or (c) the Indemnified Party shall have been advised by counsel chosen by it that there may be one or more legal defenses or counterclaims available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party in such Proceeding. If the immediately-preceding sentence is inapplicable (or if the Indemnified Party waives its right hereunder to defend such Third Party Claim), the Indemnified Party shall have the right to employ separate counsel at its own cost and expense in the Proceeding and, in such event, shall and shall have the right to, consult with the Indemnifying Party regarding the defense thereof; provided that, except as otherwise provided herein, the Indemnifying Party shall at all times control such defense of such Proceeding. If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party may not settle or compromise the claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the settlement or compromise includes a full release of all of the Indemnified Parties. The Indemnifying Party shall pay to or for the benefit of the Indemnified Parties in cash the amount for which such Indemnified Parties are entitled to be indemnified within thirty (30) days after the settlement or compromise of such Third Party Claim or the final non-appealable judgment of a court of competent jurisdiction. An Indemnifying Party shall not be liable for any settlement or compromise of any Third Party Claim without its consent.
Section 7.5 Other Claims . Any Indemnified Party that seeks indemnification under Section 7.1 or Section 7.2 for Losses that are not attributable to a Third Party Claim shall notify the Indemnifying Party, stating the nature and basis of the Losses and, to the extent known, the actual or estimated amount thereof. The Indemnifying Party shall pay the amount of such Losses, as specified in such notice, in the manner described in Section 7.6 .
Section 7.6 Payment . Upon a determination that an Indemnifying Party is liable for indemnification under Section 7.1 or Section 7.2 (by admission of the Indemnifying Party, agreement of the Indemnifying Party and Indemnified Party, or final determination by a court of competent jurisdiction not subject to appeal), the Indemnifying Party shall pay to the Indemnified Party, within thirty (30) days after such determination, the amount of the Loss indemnified thereby. Upon the payment in full of any such Loss, the Indemnifying Party making such payment shall be subrogated to the rights of the Indemnified Party against any other Person with respect to the subject matter of such Loss and of any claim or Proceeding relating thereto.
Section 7.7 No Duplication . Any liability for indemnification under this Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
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Section 7.8 Sole Remedy . Except with respect to the remedies permitted under the other Transaction Documents, the Parties agree that the sole and exclusive remedy of any Party hereto with respect to this Agreement, or any other claims relating to the New Facility or the events giving rise to this Agreement and the transactions provided for herein or contemplated hereby, shall be limited to (a) the right to seek injunctive relief, rescission (only in the case of fraud or otherwise as provided herein), or specific performance of or as to any obligations under this Agreement, and (b) the indemnification provisions set forth in this Article VII and, in furtherance of the foregoing, each Party hereby waives and releases the other Party from, to the fullest extent permitted under any applicable Law, any and all rights, claims and causes of action it may have against the other Party except as provided in this Section 7.8 ; provided that no Party shall be entitled to receive a duplicate amount for any claim submitted both under this Agreement and under any other Transaction Document.
Section 7.9 General Limitation of Damages . IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY LOST BUSINESS OPPORTUNITIES OR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES INCURRED OR SUFFERED BY AN INDEMNIFIED PERSON; provided, however , that this Section 7.9 shall not limit an Indemnified Persons right to indemnification pursuant to Section 7.1 or Section 7.2 for any such Losses (a) that the Indemnified Person is legally required to pay to another Person as a result of a Claim or Proceeding (including Losses resulting from Third Party Claims), or (b) that constitute lost Section 45 Credits, but only to the extent provided by and subject to the limitations of this Agreement.
Section 7.10 After-Tax Basis . All indemnification payments made pursuant to this Article VII shall be treated as an adjustment to the price paid under the taxable installment sale, unless an independent tax counsel selected jointly by the Parties advises that such treatment is more likely than not incorrect. In such a case, all indemnification payments made pursuant to this Article VII will be calculated and paid on an After-Tax Basis.
Section 7.11 No Double Recovery . Notwithstanding anything contained in this Agreement, the Agreement to Lease, the Existing Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense, the Existing Guaranties or any other Transaction Document to the contrary, no Lessee Indemnified Party or CCS Indemnified Party shall be entitled to indemnification or reimbursement under this Agreement for any amounts (including Losses) if such Lessee Indemnified Party or CCS Indemnified Party, as applicable, has made a claim for indemnification or reimbursement under the Agreement to Lease, the Existing Equipment Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense, the Existing Guaranties or any other Transaction Document (other than this Agreement) with respect to the same subject matter or breach giving rise to such claim, whether such claim resulted from an obligation to indemnify or an obligation to pay damages (including any liquidated damages). For the avoidance of doubt, any amounts received by a Lessee Indemnified Party or CCS Indemnified Party, as applicable, from a party under the Agreement to Lease, the Existing Lease,
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the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense, the Existing Guaranties or any other Transaction Document (other than this Agreement) that a Party is obligated to pay under this Agreement, shall be deducted from amounts owed to such Lessee Indemnified Party or CCS Indemnified Party, as applicable, pursuant to this Agreement to the extent such amount relates to a claim that arose from the same subject matter or breach giving rise to such claim.
ARTICLE VIII
TERMINATION; EFFECT OF TERMINATION
Section 8.1 Termination . This Agreement may be terminated prior to the Closing only as follows:
(a) by mutual written consent of the Parties; or
(b) by either Party by delivering written notice to the other Party:
(i) if (A) any Law shall make the consummation of the transactions contemplated hereby illegal or otherwise prohibited; or (B) a court of competent jurisdiction or other Governmental Authority shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the Parties shall use their reasonable efforts to lift or vacate), in each case permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and the other Transaction Documents, and such order, decree, ruling or other action shall have become final and non-appealable;
(ii) if a Section 45 Change occurs; or
(iii) if all conditions precedent to the Closing under Article V shall not have been satisfied (or waived by the applicable Party) by 5:00 p.m., local Houston, Texas time, on December 31, 2011; provided, however , that the right to terminate this Agreement under this clause (iii) shall not be available to any Party that (A) proximately contributed to the occurrence of the failure to satisfy such conditions precedent by such date and time, or (B) failed to use all reasonable efforts to satisfy such conditions precedent; provided further, however , that Lessees refusal to deliver the Acceptance in accordance with Section 2.1(c) shall not affect Lessees right to terminate this Agreement.
The right of any Party to terminate this Agreement pursuant to this Section 8.1 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Party hereto, any Person controlling any such Party or any of their Representatives whether prior to or after the execution of this Agreement. Notwithstanding anything in this Section 8.1 to the contrary, no Party that is in material breach of this Agreement shall be entitled to terminate this Agreement except with the written consent of the other Party.
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Section 8.2 Effect of Termination . In the event of termination of this Agreement pursuant to Section 8.1 :
(a) This Agreement shall become null and void and of no further effect and there shall be no liability or obligation hereunder on the part of the CCS Parties or Lessee, except (i) any Party nevertheless shall be entitled to seek any remedy to which it may be entitled at Law or in equity for the violation or breach by any other Party of any agreement or covenant (but not any representation or warranty) contained in this Agreement that occurs prior to the termination; (ii) the provisions of this Section 8.2 , Article VII and Article IX (and all associated defined terms) shall survive any such termination; and (iii) each Party shall within five (5) days after such termination redeliver all documents, work papers and other materials of the other Parties relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the Party furnishing the same;
(b) If the New Facility has been installed at the Site prior to termination of this Agreement pursuant to Section 8.1 , the CCS Parties shall cause the New Facility to be removed from the Site and shall cause the Existing Facility to be re-installed at the Site in the same configuration as it existed immediately prior to its removal from the Site;
(c) Unless otherwise terminated pursuant to its terms, the Existing Equipment Lease shall continue in its full force and effect; and
(d) The CCS Parties shall be entitled to use, operate, sell, lease, transfer or otherwise dispose of the New Facility, at such other location as the CCS Parties may determine, all in their sole and absolute discretion.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Confidentiality .
(a) Each Party shall maintain the terms of this Agreement in confidence and shall not disclose any information concerning the terms, performance or administration of this Agreement to any other Person; provided that a Party may disclose such information: (i) to any of such Partys Group, (ii) to any prospective member of such Partys Group, (iii) to any actual or prospective purchaser of all or a portion of such Partys interest in the New Facility and (iv) to any Person providing or evaluating a proposal to provide financing to the recipient Party or any direct or indirect owner of such Party; provided in each case that the recipient Party shall provide to each Person to which disclosure is made a copy of this Section 9.1 and direct such Person to treat such information confidentially, and the recipient Party shall be liable for any breach of the terms of this Section 9.1 by such Persons to which it makes any such disclosure. The foregoing restrictions will not apply (A) to information that is or becomes generally available to the public otherwise than as a result of disclosure by the recipient Party, (B) to information that is already in, or subsequently comes into, the recipient Partys possession, provided that the source of such information was not, to the recipient Partys knowledge, obligated to keep such information confidential, (C) to information that is required to be disclosed pursuant to Law or stock exchange rules and regulations or is otherwise subject to legal, judicial, regulatory or self-regulatory requests for information or documents or (D) subject to Section 9.1(b) below, to the Tax structure or Tax treatment of the transactions under this Agreement.
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(b) Each Party may disclose to any and all Persons, without limitation of any kind, the Tax treatment and Tax structure of the transactions under this Agreement; provided, however , that any such information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The Tax structure and Tax treatment of the transaction includes only those facts that may be relevant to understanding the purported or claimed U.S. federal and state income Tax treatment or Tax structure of the transactions under this Agreement and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any parties involved in any of the Transactions contemplated by this Agreement or the other Transaction Documents.
(c) If any Party is required to disclose any information required by this Section 9.1 to be maintained as confidential in a judicial, administrative or governmental proceeding, such Party shall give the other Party at least ten (10) days prior written notice (unless less time is permitted by the applicable proceeding) before disclosing any such information in any said proceeding and, in making such disclosure, the Party required to disclose the information shall disclose only that portion thereof required to be disclosed and shall cooperate with the other Party in the other Partys attempts to seek to preserve the confidentiality thereof, including if such Party seeks to obtain protective orders and/or any intervention.
Section 9.2 Further Actions . After the Closing Date, each of the Parties shall execute and deliver such other certificates, agreements, conveyances and other documents, and take such other action, as may be reasonably requested by the other Party in order to (a) transfer and assign to, and vest in, Lessee a valid leasehold interest in the New Facility pursuant to the terms of this Agreement or (b) otherwise carry out the intent and purpose of this Agreement and the other Transaction Documents.
Section 9.3 Amendment, Modification and Waiver . This Agreement may not be amended or modified except by an instrument in writing signed by each of the Parties. Any failure of a Party to comply with any obligation, covenant, agreement or condition of such Party contained herein may be waived only if set forth in an instrument in writing signed by the Party to be bound thereby, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any other failure.
Section 9.4 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
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Section 9.5 Expenses and Obligations . Except as otherwise expressly provided in this Agreement, all costs and expenses incurred by the Parties in connection with this Agreement and the consummation of the transactions contemplated hereby shall be borne solely and entirely by the Party which has incurred such expenses.
Section 9.6 Binding Effect; Third Parties . This Agreement shall be binding upon and, except as provided below, inure solely to the benefit of each Party and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other Person (other than the Lessee Indemnified Parties and CCS Indemnified Parties as provided in Article VII ) any rights or remedies of any nature whatsoever under or by reason of this Agreement).
Section 9.7 Notices . All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, by a nationally recognized overnight courier, by facsimile or mailed by registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):
If to Lessee, to:
GS RC Investments LLC
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Attention: Michael Feldman
Fax: (212) 428-3868
Email: michael.feldman@gs.com
With a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Attention: F. B Cochran III
Fax: (713) 615-5368
Email: fcochran@velaw.com
30
If to the CCS Parties, to:
Clean Coal Solutions, LLC
Woods Mill Point, Suite 250
425 S. Woods Mill Road
Town and Country, MO 63017
Attention: Jerry Daseler
Fax: (636) 681-1884
Email: jdaseler@sbcglobal.net
With copies to (which shall not constitute notice):
Hogan Lovells US LLP
1200 Seventeenth Street, Suite 1500
Denver, CO 80202
Attention: Tyler Harvey
Fax: (303) 899-7333
Email: tyler.harvey@hoganlovells.com
and
Clean Coal Solutions, LLC
3300 South Parker Road, Suite 310
Aurora, CO 80014
Attention: Brian Humphrey
Fax: (303) 751-9210
Email: bhumphrey@nexgen-group.com
All notices and other communications given in accordance herewith shall be deemed given (a) on the date of delivery, if hand delivered, (b) on the date of receipt, if faxed (provided a hard copy of such transmission is dispatched by first class mail within forty-eight (48) hours), (c) three (3) Business Days after the date of mailing, if mailed by registered or certified mail, return receipt requested, and (d) one (1) Business Day after the date of sending, if sent by a nationally recognized overnight courier; provided , however , that a notice given in accordance with this Section 9.7 but received on any day other than a Business Day or after business hours in the place of receipt, will be deemed given on the next Business Day in that place.
Section 9.8 Knowledge . The term knowledge when used in the phrases to the knowledge of the CCS Parties or the CCS Parties have no knowledge or words of similar import shall mean, and shall be limited to, the actual knowledge of the individuals listed on Schedule 9.8 after reasonable investigation and due inquiry.
Section 9.9 Counterparts . This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.
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Section 9.10 Entire Agreement . This Agreement, the Agreement to Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense and the other Transaction Documents shall constitute the entire agreement between the Parties hereto relating to the subject matter hereof and in this Agreement, the Agreement to Lease, the Operation and Maintenance Agreement, the Chemical Additive Supply Agency Agreement, the Technology Sublicense and the other Transaction Documents. No modification of this Agreement or waiver of any provision hereof shall be binding unless the modification or waiver shall be in writing and signed by the Parties hereto.
Section 9.11 Governing Law; Choice of Forum; Waiver of Jury Trial . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
Section 9.12 Private Letter Ruling . If Lessee or any of its Affiliates decides to pursue a request for a PLR, determination letter, Pre-Filing Agreement or other written guidance from the IRS (the IRS Guidance ) with respect to any aspect of the transactions contemplated by this Agreement or any of the other Transaction Documents or in relation to the New Facility, the Parties shall consider in good faith and make such amendments to this Agreement as may be necessary to permit Lessee to obtain the IRS Guidance. Neither Party shall be required to agree to any such amendment that it reasonably determines, in good faith, is adverse to such Party in any material respect; provided that Lessor shall not withhold its agreement to any such amendment if Lessee has agreed to fully compensate Lessor for any adverse economic effect on Lessor resulting from such amendment and such amendment would not cause any material adverse effect on Lessor for which it cannot adequately be compensated by Lessee; and provided further , that if Lessee requests a PLR from the IRS with respect to the New Facility before the date that is ninety (90) days after the Closing Date and Lessee thereafter receives a PLR from the IRS with respect to the Existing Facility but is unable to obtain a PLR from the IRS with respect to the New Facility, the New Facility will be exchanged for the Existing Facility, the provisions of Section 8.2 shall apply, the Existing Equipment Lease shall be reinstated and the Parties shall execute and deliver all other agreements and documents necessary or desirable to effectuate re-installation, operation and use of the Existing Facility in accordance with the terms of the Existing Equipment Lease.
Section 9.13 Publicity . Lessor agrees that it will not, without the prior written consent of Lessee, (a) use in advertising, publicity or otherwise the name of GS, or any Affiliate thereof (including Lessee), or any partner or employee of GS, or any Affiliate thereof (including Lessee), or any trade name, trademark, trade device, service mark, symbol or any abbreviation,
32
contraction or simulation thereof owned by GS, or any Affiliate thereof (including Lessee), or (b) represent, directly or indirectly, that any product or any service provided by Lessor has been approved or endorsed by GS, or any Affiliate thereof (including Lessee). No public announcement of any kind regarding the existence or terms of this Agreement shall be made without the prior written consent of the Parties. For the avoidance of doubt, nothing in this Section 9.13 shall limit Lessors obligation to disclose information pursuant to Section 9.1 .
Section 9.14 Assignment . No Party shall assign or otherwise transfer this Agreement or any of its rights hereunder without the prior written consent of the other Parties, and any purported Assignment made without such prior written consent shall be void. Notwithstanding the foregoing:
(a) Any Party may, without the need for consent from the other Parties, make an assignment of this Agreement to an Affiliate of such Party; provided that such Affiliate assumes all of the obligations of the Party making the Assignment and the Lessor Parent Guaranties or the Lessee Parent Guaranty remain in effect, as applicable, with respect to the obligations of such Affiliate, and in such event the assigning Party shall be released from its obligations under this Agreement, except for those obligations that arose prior to such assignment;
(b) Lessee may, without the need for consent from either of the CCS Parties, make an Assignment of this Agreement to any Person (i) succeeding to all or substantially all of its assets, provided such Person has, or its obligations under this Agreement are guaranteed by a Person who has, an Investment Grade rating, or (ii) after December 31, 2019 if the Section 45 Credit for Refined Coal produced by the New Facility has been extended beyond such date; and
(c) Lessor may, with the prior written consent of Lessee, make an assignment of this Agreement to any Person succeeding to all or substantially all of its assets; provided that (i) the acquiring Person assumes all obligations of Lessor hereunder, and (ii) either (A) the Lessor Parent Guaranties remain in full force and effect with respect to the Person succeeding to all or substantially all of Lessors assets, or (B) the Lessor Parent Guaranties are replaced by a new guaranty or guaranties on the same terms as the Lessor Parent Guaranties covering such assumed obligations from a Person having an Investment Grade rating, and in such event Lessor shall be released from its obligations under this Agreement, except for those obligations that arose prior to such assignment.
Section 9.15 Appendices, Schedules and Exhibits . All Appendices, Schedules and Exhibits hereto which are referred to herein are hereby made a part hereof and incorporated herein by such reference.
[Signature page follows.]
33
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed on its behalf as of on the day and year first above written.
CLEAN COAL SOLUTIONS, LLC | ||
By: | /s/ Clayt M. Reynolds | |
Name: | Clayt M. Reynolds | |
Title: | Authorized Signatory | |
AEC-TH, LLC | ||
By: |
Clean Coal Solutions, LLC, its managing member |
|
By: | /s/ Clayt M. Reynolds | |
Name: | Clayt M. Reynolds | |
Title: | Authorized Signatory | |
GS RC INVESTMENTS LLC | ||
By: | /s/ Michael Feldman | |
Name: | Michael Feldman | |
Title: | Authorized Signatory |
Signature Page to
Exchange Agreement (Thomas Hill)
EXHIBIT A
DESCRIPTION OF THE EXISTING FACILITY
All fixtures, equipment, machinery, parts and software and other property constituting the refined coal production facility, consisting specifically of the following components: a CyClean A hopper feeder system; a CyClean B liquid tote, chemical pumps and heated transfer hoses; bucket elevators; weigh belt conveyors; motor control center; programmable logic control system; and all associated valves, fittings, control systems and related components, and located at the Thomas Hill Energy Center owned by Associated Electric Cooperative, Inc. and located at 5693 Highway F, Clifton Hill, Missouri 65244 including, without limitation, the equipment, parts, and other materials set forth below.
AEC-TH, LLC
Refined Coal Production Facility
TAG NUMBER |
DESCRIPTION | LOCATION | MANUFACTURER | MODEL NUMBER | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | ||||||
* |
* | * | * | NA | ||||
* |
* | * | ||||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | NA | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | ||||||
* |
* | * | * | * | ||||
* |
* | * | * | * | ||||
* |
* | * | ||||||
* |
* | * | * | * | ||||
* | * | N/A | ||||||
N/A |
* | * | N/A | N/A | ||||
N/A |
* | * | * | * | ||||
N/A |
* | * | * | * | ||||
N/A |
* | * | * |
Exhibit A
EXHIBIT B
DESCRIPTION OF THE NEW FACILITY
All fixtures, equipment, machinery, parts and software, and other property constituting the refined coal production facility, consisting of the following components: a CyClean A granular material feed hopper system including weigh belt conveyors; the CyClean A equipment support and enclosure; a CyClean B liquid tote and containment; chemical pumps and associated chemical delivery system plumbing; motor control center; programmable logic control system; and all associated valves, fittings, equipment; located at the Thomas Hill Energy Center owned by Associated Electric Cooperative, Inc. and located at 5693 Highway F, Clifton Hill, Missouri 65244 including, without limitation, the equipment, parts, and other materials set forth below:
TAG NO. | EQUIPMENT NAME | Manufacturer | Model Number | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | N/A |
Exhibit B
EXHIBIT C
FORM OF NEW EQUIPMENT LEASE
Filed as Exhibit 10.48 to this Report on Form 10-K
EXHIBIT D
FORM OF OMNIBUS AMENDMENT
OMNIBUS AMENDMENT #3
TO TRANSACTION DOCUMENTS
THIS OMNIBUS AMENDMENT #3 (this Amendment ) is dated as of December 14, 2011 (the Effective Date ) and made by and between Clean Coal Solutions Services, LLC, a Colorado limited liability company ( Clean Coal ), and GS RC Investments LLC ( GS RC ), a Delaware limited liability company.
RECITALS:
WHEREAS , GS RC and Clean Coal have previously entered into each of the following agreements: (i) that certain Operating and Maintenance Agreement for the Thomas Hill facility dated as of June 29, 2010 (the Thomas Hill O&M Agreement ), and (ii) that certain Chemical Additives Supply Agency Agreement for the Thomas Hill facility, dated as of June 29, 2010 (the TH Chemical Supply Agreement , and together with the Thomas Hill O&M Agreement, collectively, the Transaction Documents ).
WHEREAS , GS RC and AEC-TH, LLC ( AEC-TH ) have previously entered into that certain Equipment Lease dated as of June 29, 2010 (the Existing TH Equipment Lease ) whereby AEC-TH leased to GS RC a refined coal production facility (the Existing TH Facility ).
WHEREAS , simultaneously with the execution of this Amendment, GS RC and AEC-TH are entering into an agreement for the lease of a redesigned refined coal production facility, newly constructed and owned by AEC-TH (the New TH Facility ) and the termination of the Existing TH Equipment Lease.
WHEREAS , GS RC and Clean Coal desire to amend each of the Transaction Documents as set forth herein.
NOW, THEREFORE , in consideration of the foregoing recitals, the promises and agreements set forth in this Amendment, and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), GS RC and Clean Coal agree as follows:
ARTICLE I
AMENDMENTS TO TRANSACTION DOCUMENTS
Section 1.1 Amendments to Thomas Hill O&M Agreement .
(a) The following new definitions are added to Annex I of the Thomas Hill O&M Agreement:
Placed-in-Service Date means the placed-in-service date of the Refined Coal Plant within the meaning of the Refined Coal Guidance.
Equipment Lease means the Equipment Lease, dated as of December 14, 2011, between Lessor and Lessee.
(b) Section 3.1 shall be deleted in its entirety and replaced with the following provision:
3.1 Term . Unless sooner terminated pursuant to the terms of this Agreement, (a) the initial term of this Agreement (the Initial Term ) shall commence on the Effective Date and shall end on December 31, 2012, or any earlier date on which the Section 45 Credit expires, and (b) this Agreement shall automatically renew at the end of the Initial Term for successive annual terms until the date that is ten years after the Placed-in-Service Date, and (c) provided that if the Section 45 Credit for Refined Coal produced at the Refined Coal Plant has been extended beyond ten years from the Placed-in-Service Date, Lessee shall be entitled in its sole discretion to terminate this Agreement. If Lessee does not elect to exercise its termination right, this Agreement shall continue to renew automatically annually until the Section 45 Credit expires with respect to Refined Coal produced in the Refined Coal Plant.
(c) Exhibit B to the Thomas Hill O&M Agreement is hereby deleted in its entirety and replaced with Exhibit A, attached hereto.
(d) Exhibit A to Exhibit E of the Thomas Hill O&M Agreement is hereby deleted in its entirety and replaced with Exhibit B attached hereto.
(e) Section A.1. of Exhibit G to the Thomas Hill O&M Agreement is hereby deleted in its entirety and replaced with the following:
All Risks Property Damage Insurance . All Risks Property Damage Insurance in an amount sufficient to cover 100% of the replacement cost of the Refined Coal Plant and, at Lessees election and cost, Business Interruption Coverage. Such insurance shall include coverage for physical loss and/or damage to Lessees coal, while in stockpiles and/or on the premises of the Refined Coal Plant, up to the full market value, at specific maximum per location limits to be mutually agreed to in writing no less than annually.
Section 1.3 Amendments to TH Chemical Supply Agreement
(a) The following new definitions are added to Annex I of the TH Chemical Supply Agreement:
Placed-in-Service Date means the placed-in-service date of the Refined Coal Plant within the meaning of the Refined Coal Guidance.
Equipment Lease means the Equipment Lease, dated as of December 14, 2011, between Lessor and Lessee.
(b) Section 3.1(a) of the TH Chemical Supply Agreement shall be deleted in its entirety and replaced with the following provision:
(a) Base Term . Unless sooner terminated pursuant to the terms of this Agreement, (a) the initial term of this Agreement (the Initial Term ) shall commence on the Effective Date and shall end on December 31, 2012, or any earlier date on which the Section 45 Credit expires, and (b) this Agreement shall automatically renew at the end of the Initial Term for successive annual terms until the date that is ten years after the Placed-in-Service Date, and (c) provided that if the Section 45 Credit for Refined Coal produced at the Refined Coal Plant has been extended beyond ten years from the Placed-in-Service Date, Lessee shall be entitled in its sole discretion to terminate this Agreement. If Lessee does not elect to exercise its termination right, this Agreement shall continue to renew automatically annually until the Section 45 Credit expires with respect to Refined Coal produced in the Refined Coal Plant.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 Effectiveness and Ratification . All of the provisions of this Amendment shall be effective as of the Effective Date. Except as specifically provided for in this Amendment, the terms of each of the Transaction Documents shall remain in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Transaction Documents, the terms of this Amendment shall prevail and govern.
Section 2.2 Entire Agreement . This document contains the entire agreement between the parties hereto with respect to the subject matter hereof. There are no oral agreements between the parties hereto with respect to the subject matter hereof.
Section 2.3 Governing Law . This Amendment shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law principles of such state.
Section 2.4 Counterparts . This Amendment may be signed in two counterparts, each of which taken together shall constitute one instrument, and each of the parties hereto may execute this Amendment by signing either such counterpart. This Amendment shall become effective upon execution by both of the parties hereto. A facsimile copy will be deemed an original.
[Signature page follows.]
IN WITNESS WHEREOF, Clean Coal and GS RC have caused this Amendment to be executed and delivered as of the Effective Date.
CLEAN COAL SOLUTIONS SERVICES, LLC | ||
By: | ||
Name: | ||
Title: | ||
GS RC INVESTMENTS LLC | ||
By: | ||
Name: | ||
Title: |
EXHIBIT A
EXHIBIT B
OPERATOR PERMITS
Thomas Hill Energy CenterPower Division
Authority for lean Process |
||||||||||||||
Media |
Regulatory Program |
Existing Permit |
New
|
No Permit |
Permit ID |
Issuer |
Determination Factors |
|||||||
Air |
NSR/PSD | X | 122009-002 | MDNR | Missouri Rule 10 CSR 10-6.060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. | |||||||||
Air |
NSR/PSD | X | 122010-011 | MDNR | Missouri Rule 10 CSR 10-6.060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. This permit addresses the option under 1.F.2) of construction permit 122009-002 (above) and r | |||||||||
Air |
Tide V | X | OP1999169 | MDNR |
This permit replaces the former Title V permit (0P1999169) and includes the conditions of NSR permit 122009-002. This permit will be amended to replace the conditions of 122009-001 with those of 122010-012 according to an application dated May 20 2011 |
|||||||||
Water |
NPDES | X | MO-007675 | MDNR | Activity is allowed under provision of the existing permit. GS has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Waste |
Solid Waste | X | 717502 | MDNR | Activity is allowed under provision of the existing permit. GS has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Spill
|
SPCC | X | NIA | NIA | Thomas Hill has an approved SPCC plan. GS has supplied a SPCC plan for the CyClean B liquid additive. This plan has been incorporated into the plant SPCC plan. | |||||||||
Land |
Land
Disturbance |
X | MDNR | Area of concern is less than one acre. No permit required. | ||||||||||
Zoning |
County or
Local Zoning Requirement |
X | NIA | NIA | No permit is required from a county or local entity. | |||||||||
Building Permits |
Permits Required by local/county statute |
X | NIA | NIA | No permit is required from a county or local entity. |
EXHIBIT B
Filed as Exhibit B to this Exhibit 10.47 to this Report on Form 10-K
EXHIBIT E
FORM OF TECHNOLOGY SUB-LICENSE AMENDMENT
Filed as Exhibit 10.49 to this Report on Form 10-K
EXHIBIT F
CERTIFICATION
[CCS letterhead]
[DATE]
GSFS Investments I Corp.
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Re: | Certificate of Completion of Refined Coal Facility Testing |
Dear Sirs:
Reference is made to that certain Exchange Agreement (the Agreement ), dated as of December 14, 2011, by and between GS RC Investments LLC, a Delaware limited liability company ( GS RC ), Clean Coal Solutions, LLC, a Colorado limited liability company (the Company ), and AEC-TH, a Colorado limited liability company. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
Pursuant to the terms of the Agreement, we hereby certify, represent and warrant as follows:
1. | The testing of the refined coal production facility owned by the Company or one of its subsidiaries, identified by serial numbers [ ] (the Facility ) presently located at the Thomas Hill Energy Center near Clifton Hill, Missouri, owned and operated by Associated Electric Cooperative, Inc. (the Utility ), pursuant to the terms of that certain Demonstration Agreement, dated as of , 201__, by and between the Utility and the Company, was completed on [ , 201__] (the Testing Completion Date ). |
2. | No grants described in Section 45(b)(3)(A)(i) of the Code have been provided by the United States, a state, or a political subdivision of a state for use in connection with all or part of the Facility within the meaning of such section. |
3. | No proceeds of any issue of a state or local government obligation described in Section 45(b)(3)(A)(ii) of the Code have or will be used to provide financing for all or part of the Facility within the meaning of such section. |
4. | No subsidized energy financing (within the meaning of Section 45(b)(3)(A)(iii) of the Code) has been or will be provided in connection with all or part of the Facility within the meaning of such section. |
5. | No other federal tax credit has been or is allowed or allowable with respect to all or part of the Facility within the meaning of Section 45(b)(3)(iv) of the Code. |
6. | On or prior to the Testing Completion Date: |
a. | the Company (or an Affiliate thereof) completed all testing of the Facility necessary, in the reasonable judgment of Company, to establish that the Facility was operational; |
b. | the Company obtained, or third parties obtained for the benefit of the Company, all permits necessary to operate the Facility; |
c. | the Facility was being operated and controlled by the Company or an Affiliate thereof; |
d. | the Company or an Affiliate thereof had legal ownership of the Facility; and |
e. | the Facility was operational and producing Refined Coal in the quantities described in Exhibit A hereto. A copy of a verification statement verifying the output of Refined Coal is attached hereto as Exhibit B . |
7. | The owner of the Facility has conducted all necessary pre-operational testing, including emissions testing conducted using CEMS field testing (as defined in Section 6.03(1) of the Internal Revenue Service Notice 2010-54) or such other testing method as agreed between Company and GS, and the results have been verified in accordance with section 6.03(1)(c) of Notice 2010-54. A copy of such verification is attached hereto as Exhibit C . |
8. | The owner of the Facility intends to claim the Section 45 Credit on its federal income Tax Return for the 2011 taxable year with respect to all Refined Coal produced from the Facility that the owner of the Facility has sold to Unrelated Persons. The members of the owner of the Facility intend to claim on their federal income Tax Returns for the 2011 taxable year their allocable shares of all Section 45 Credits claimed by the owner of the Facility to the extent permitted by Section 45 of the Code. |
9. | Neither the owner of the Facility, nor any member of the owner of the Facility nor any Affiliate of any member thereof, intends to or has (A) taken any position in any federal, state or local income Tax Return or filing that is inconsistent with any of the statements in this Certification; (B) filed Form 8275, Form 8275-R or any similar form described in Treasury Regulation §§ 1.6662-3(c) or 1.6662-4(f) in connection with the Section 45 Credit claimed by the owner of the Facility, any member of the owner of the Facility or any Affiliate of any owner of the Facility or any member of any owner of the Facility with respect to Refined Coal produced from the Facility that the owner of the Facility sold to Unrelated Persons; or (C) filed Form 8886 or similar form described in Treasury Regulation § 1.6011-4(c)(6) or participated in a reportable transaction as defined in Treasury Regulation § 1.6011-4 involving the Facility. |
10. | Attached to this certificate as Exhibit D are all capital expenditures made with respect to the Facility, (A) on or before the Testing Completion Date, and (B) after the Testing Completion Date (if any). |
11. | Attached to this certificate as Exhibit E are the original cost and fair market value, as of the date of this Certificate, of any used equipment incorporated into the Facility. |
This certificate is executed and delivered on behalf of the Company by a duly authorized signatory of the Company as of the date first above written.
CLEAN COAL SOLUTIONS, LLC | ||
By: | ||
Name: | ||
Title: |
Exhibit A
To Certification
Refined Coal Production
Date |
Refined Coal Production (Tons) |
|
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Exhibit A to Exhibit F
Exhibit B
To Certification
Certificate of Refined Coal Production
[CCS letterhead]
[DATE]
GSFS Investments I Corp.
c/o Goldman Sachs & Co.
200 West Street
New York, New York 10282
Re: | Verification of Refined Coal Production |
Dear Sirs:
Reference is made to that certain Certificate of Completion of Refined Coal Facility Testing (the Certificate ) dated as of December 14, 2011, given by Clean Coal Solutions, LLC, a Colorado limited liability company (the Company ) to GS RC Investments, LLC, a Delaware corporation ( GS RC ).
In accordance with the Certificate, we hereby verify the refined coal production on Exhibit A to the Certificate.
This Certificate is executed and delivered on behalf of the Company by a duly authorized signatory of the Company as of the date first above written.
CLEAN COAL SOLUTIONS, LLC | ||
By: | ||
Name: | ||
Title: |
Exhibit B to Exhibit F
Exhibit C
To Certification
Verification of Emissions Testing Results
This letter provides verification of the testing witnessed by [VERIFIER] ( Verifier ) for Clean Coal Solutions, LLC ( CCS ) as an independent professional engineering service regarding the refined coal production facility installed at [SITE] located at [ADDRESS] owned by Associated Electric Cooperative, Inc. (the Utility ). The tests were conducted during the period from [DATE] to [DATE] ( Testing Period ). This verification is in accordance with IRS Notice 2010-54.
At the time of the testing the Facility was operated on a contract basis by Clean Coal Solutions Services, LLC, a Colorado limited liability company ( CCSS ) on behalf of CCS and [AEC-TH, LLC or AEC-NM, LLC].
During the Testing Period, the Owner, by itself and through its contractors, operated the Facility on a daily, continuous basis for purposes of producing refined coal meeting the requirements of Section 45(c)(7) of the Internal Revenue Code of 1986, as amended (the Code), and meeting the requirements and specifications set forth in this certificate, in part, through the application of CyCleanTM, which consists of a solid additive ( CyClean A ) and a liquid additive ( CyClean B ), to coal feedstock consisting of Powder River Basin sub-bituminous coal (the Feedstock Coal ).
During the operating period, the Owner and its contractors were in charge of emissions testing performed in accordance with an established operating process. Verifier observed the testing as an independent professional engineer to witness the results. The Owner and its contractors were responsible for establishing plant operating conditions with Feedstock Coal and Refined Coal (defined below) and verifying nitrogen oxide ( NOx ) and mercury emission reductions achieved during the Testing Period as a result of burning the Refined Coal.
Verifier was physically present at the site from [DATE] to [DATE] and ensured that the reported data is representative of the data observed during the tests. During this time, CCSS staff worked with the Utility to establish baseline NOx and mercury emissions on [DATE] and to establish similar conditions to measure NOx and mercury emissions while burning CyCleanTM refined coal during the Test Period on [DATE]. Boiler performance and operability were monitored carefully during the emissions test to assure that the emission reductions did not cause other system problems.
Based upon the foregoing, Verifier hereby certifies the following during the Testing Period:
1. | The Facility produced a solid fuel from the Feedstock Coal (the Refined Coal ). |
Exhibit C to Exhibit F
2. | The Refined Coal demonstrated a reduction of greater than 20 percent of the emissions of NOx and greater than 40 percent reduction of the emissions of mercury (collectively, the Emission Reductions ) released when burning the Refined Coal (excluding any dilution caused by materials combined or added during the production process), as compared to the emissions released when burning the Feedstock Coal. Actual emission reductions for NOx were measured at approximately [__] percent below the baseline. Actual emissions of mercury were measured at [__] percent below the baseline measurements. |
3. | The Emission Reductions were determined by comparing the emissions that resulted when the Feedstock Coal and the Refined Coal were used to produce the same amounts of useful thermal energy. The CyCleanTM A and CyCleanTM B additives do not contain organic material, and therefore, the CyClean additives do not increase the thermal energy of the Feedstock Coal. |
4. | The Emission Reductions were determined in accordance with the provisions of Sections 6.01 and 6.02 of Notice 2010-54 during field testing using a continuous emission monitoring system ( CEMS ), meeting the requirements of Section 6.03(1)(a)(i) through (iv) and (b) of Notice 2010-54, specifically to the following requirements: |
(a) | the boiler used to conduct the emissions testing was coal-fired and steam-producing and is of a size ([__] MW) and type commonly used in commercial electric power generation operations; |
(b) | emissions were measured using mercury and NOx CEMS; |
(c) | the CEMS conformed to applicable United States Environmental Protection Agency ( EPA ) standards; |
(d) | Other than operating conditions that are directly attributable to changing from feedstock coal to refined coal such as adjustments to primary and secondary air, that are consistent with good pollution control practices, emissions from the boiler using both the Feedstock Coal and the Refined Coal were measured at the same operating conditions and over a period of at least 3 hours during which the boiler was operating at a steady state and at least 90 percent of full load; |
(e) | emissions of mercury were measured upstream of any SO2 scrubber or mercury control device, or, if mercury emissions were measured downstream of any SO2 scrubber, then the SO2 scrubber was operated under the same operating conditions throughout the Testing Period, and downstream of the electrostatic precipitator, which was operated under the same operating conditions throughout the Testing Period (see operating data attached as Exhibit A to this verification statement showing continuous secondary voltage and current and number of fields in operation); and |
(f) | emissions of NOx were measured upstream of post-combustion NOx controls. |
5. | I have no direct or indirect ownership interest in CCS or CCSS. |
Exhibit C to Exhibit F
6. | [NAME] witnessed the emissions testing on site. I have reviewed the emissions test data and verified with [NAME] the results as reported. |
7. | I am a licensed professional engineer, registered in the State of [STATE]. |
8. | I have extensive experience in combustion and environmental engineering and I have the qualifications required by Section 6.03(1) of Notice 2010-54 to perform this verification. |
I understand and agree that this Verification of Emission Testing Results for the Facility located at [POWER PLANT] may be relied upon by CCS, the Owner and their respective members, managers, successors, and assigns.
Under penalties of perjury, I declare that I have examined this verification statement and, to the best of my knowledge and belief, it is true, correct and complete.
Dated: [DATE]
[NOTARIZED SIGNATURE]
Exhibit C to Exhibit F
Exhibit D
To Certification
Capital Expenditures
Exhibit D to Exhibit F
Exhibit E
To Certification
Used Equipment Incorporated into the Facility
Exhibit E to Exhibit F
EXHIBIT G
DUE DILIGENCE REQUEST LISTS
Due Diligence Request List for Refined Coal Projects
Purpose:
The purpose of this document is to describe the key areas of due diligence and the items requested for review of Clean Coal Solutions, LLC ( Clean Coal Solutions ) and its affiliates in connection with two refined coal projects (Thomas Hill and New Madrid) (the projects ) and the entities associated therewith. The checklist is divided into various disciplines. Please provide the names of key contact persons from Clean Coal Solutions for each discipline.
Section 1. Financial Materials:
1. | Audited Financial StatementsProvide all income statements and balance sheets (quarterly and annual statements) for the project entities, if any. |
2. | Project FinancialsProvide each projects income statement and balance sheet, if any. |
a. | Revenue breakdown |
b. | Expenses breakdownO&M, major maintenance / capex expenses, license fees, etc. |
c. | Other expensesRoyalties, property tax, , insurance, other expenses |
3. | BudgetsProvide copies of all construction, maintenance, capital expenditure, operating and other budgets for the projects. |
4. | GuarantiesProvide copies of all guaranties, keep wells and other agreements evidencing support for any debt. |
5. | Pro FormaCopy of full pro forma financial models for the projects. |
Section 2. Project Documents:
1. | Latest drafts of all agreements with Associated Electric Cooperative, Inc. or its affiliates (collectively, AECI ) this includes the Demonstration Agreement and any related correspondence. |
2. | LeasesProvide copies of all equipment or land leases and easements. |
3. | O&M and Services AgreementsProvide copies of all operation and maintenance agreements, if any. |
4. | Construction/ProcurementProvide all contracts and subcontracts related to the construction of the projects and any related procurement, engineering or services agreements. Please confirm that all construction-related agreements are set forth in data room. |
5. | Other Project AgreementsProvide copies of all other material project agreements for the projects. Please provide or confirm that all other material project agreements have been received. |
6. | Assignment of all equipment warranties/obligation to submit warranty claims with respect to both facilities. |
7. | The purchase orders with contractors for each of the projects, including any Lien Release and Waiver forms that are not executed. |
Exhibit G
Section 3. Energy Regulation:
1. | Regulatory Approvals Provide a list of all current and pending energy regulatory permits, licenses and other approvals for the projects, and copies of all such approvals, including approvals related to the projects status. |
2. | Disputes Provide a description of all previous, current and pending disputes with governmental agencies or others related to energy regulatory matters with respect to the projects, and copies of all associated documentation. |
Section 4. Environmental Matters:
1. | Regulatory Agencies Provide a list of all environmental regulatory agencies and other entities that currently regulate the projects with respect to environmental matters. |
2. | NOVs Provide copies of all notices of violation, requests for information and similar notices received from governmental agencies or others alleging violation of or potential non-compliance with environmental laws or regulations by the projects. |
3. | Project site Provide copies of documents identifying environmental conditions affecting the project sites, including any subsurface contamination or environmental problems at the host facility that could affect the project sites. |
4. | Correspondence Provide copies of all material correspondence with, notices and reports received from or provided to, filings with and other materials received from or provided to environmental regulatory agencies related to the projects. |
5. | Hazardous Materials Provide a description of all hazardous materials (as defined in applicable environmental laws) used in connection with the operation of the projects. |
6. | Wastes Provide information on all wastes generated by the projects and a description regarding how such wastes are handled, including a description of any waste recycling or disposal arrangements. |
7. | Reports Provide copies of all environmental reports prepared for the projects or addressing environmental conditions relating to the project sites. |
8. | Other Materials Provide copies of any other material documents related to environmental matters for the projects, including air quality, water withdrawal, wastewater, solid waste disposal and other permits, as well as any agreements with the host facility or other parties that may impose environmental obligations with respect to the projects. |
9. | Provide Material Safety Data Sheets (MSDS) for CyClean A and CyClean B. |
10. | Provide copies of the permit applications for and material correspondence with the applicable regulatory agency related to the Permits to Construct authorizing construction of and air emissions from the projects. |
11. | Provide copies of the NPDES Permits for each of the projects. |
12. | Provide copies of the Title V Operating Permits for each of the projects. |
Section 5. Insurance:
1. | Policies Provide copies of all policies, binders and certificates evidencing the insurance coverage for the projects. |
2. | Claims Provide a description of all claims made under the insurance policies for the projects, and provide copies of all associated documentation. |
3. | Reports Provide copies of all insurance consultants reports and other reports analyzing the insurance coverage for the projects. |
4. | Insurer Agreements Provide copies of all agreements entered into with the projects insurance providers. |
Exhibit G
Section 7. Title
1. | Provide mortgages, security agreements, financing statements and other documents creating liens or security interests that burden the projects. |
2. | Provide documents granting an option, right of first refusal, preferential purchase right, right of first offer or other preferential right to purchase (or offer to purchase) the projects. |
3. | Provide information regarding adverse title claims to the projects or defects in the title. |
Section 9. Project Facility Startup and Emission Testing
1. | Items Listed in Right to Lease Agreement |
a. | All contracts for materials and services relating to construction of facility |
b. | Demonstration and site use agreements |
c. | Purchase orders (with terms and conditions) and any change orders for the facility |
d. | All permits and licenses, including |
1. | Environmental permits |
2. | Permits to conduct business |
3. | Occupancy or operating permits |
e. | Environmental permit applications |
2. | Other Items |
f. | Test plans Placed-in-service certificates |
1. | Certificates of work completion from construction contractors |
2. | Environmental permit certificate |
3. | Certificate of independent engineer |
4. | Certificate of CCSS |
5. | Emission testing report and certificate |
6. | Videotape(s) of facility operation |
7. | Complete set of facility drawings |
8. | Process flow diagram |
9. | Equipment list (including serial numbers, where applicable) |
g. | Complete set of facility drawings |
h. | Process flow diagram |
i. | Equipment list (including serial numbers, where applicable) |
j. | Calibration records for scales used to determine rate of Cyclean addition |
k. | Demonstration Plan |
Section 10. Other Matters:
1. | Litigation Provide a description of all current and pending litigation, arbitration, investigations and other proceedings related to or affecting the projects, and copies of all associated documentation. |
2. | Judgments Provide a description of any outstanding judgments, consent decrees, settlement agreements or orders related to or affecting the projects, and copies of all associated documentation. |
3. | Threatened Litigation and Unasserted Claims Provide a description of all threatened litigation, unasserted claims and other disputes related to or affecting the projects, and copies of all associated documentation. |
Exhibit G
CLEAN COAL SOLUTIONS, LLC
AEC-TH, LLC
DISCLOSURE SCHEDULE
delivered in connection with the
Exchange Agreement
(the Agreement)
dated as of
December 15, 2011
among
Clean Coal Solutions, LLC,
AEC-TH, LLC,
and
GS RC INVESTMENTS LLC
Capitalized terms used herein shall have the respective meanings ascribed thereto in the Agreement unless otherwise defined herein. This Disclosure Schedule and all attachments hereto subject to the Agreement, including without limitation Section 9.15 of the Agreement. The information disclosed herein is disclosed subject to the terms of the Confidentiality Agreement, dated as of July 13, 2009, between Clean Coal Solutions, LLC and Goldman Sachs & Co. and should not be used for any purpose other than those contemplated by the Agreement.
The disclosure or inclusion of information herein shall not be deemed as an acknowledgement or admission that any such matter or item is required to be disclosed or is material for purposes of the representations, warranties or covenants set forth in the Agreement or that the subject matter of such disclosure may have a Material Adverse Effect on Lessee.
Disclosure Schedules, page 1
Conflicts and Consents
Schedule 3.1(c)
Pursuant to the terms of the Credit Agreement, dated as of March 31, 2011, and amended and reaffirmed on September 8, 2011 (the CoBiz Credit Facility) by and between CCS and CoBiz Bank, a bank doing business in the State of Colorado as Colorado Business Bank (CoBiz) and related agreements and instruments, CCS has pledged to CoBiz the membership interests in AEC-TH, LLC, among other entities, to secure CCSs obligations under the CoBiz Credit Facility and CCS is required by the terms of the CoBiz Credit Facility to make repayments of the funds loaned thereunder, in part, from the revenues generated from the Facility.
The disclosures set forth in Schedule 3.1(g) hereof are hereby incorporated herein in their entirety by this reference.
Disclosure Schedules, page 2
Schedule 3.1(d)
Litigation
*
Disclosure Schedules, page 3
*
Disclosure Schedules, page 4
Schedule 3.1(e)
Compliance with Applicable Laws; Permits
The CCS Parties are required to file annual reports with the Secretary of State of the State of Colorado.
AEC-TH, LLC is required to obtain and maintain a Certificate of Registration Foreign Limited Liability Company in the State of Missouri.
AEC-TH, LLC has obtained a Randolph County Merchants License in order to do business in Randolph County, MO.
A summary of applicable permits for the Facility is given in the tables below:
Thomas Hill Energy CenterPower Division
Authority for lean Process |
||||||||||||||
Media |
Regulatory
|
Existing Permit |
New
|
No Permit |
Permit ID |
Issuer |
Determination Factors |
|||||||
Air | NSR/PSD | X | 122009-002 | MDNR | Missouri Rule 10 CSR 10-6.060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. | |||||||||
Air | NSR/PSD | X | 122010-011 | MDNR | Missouri Rule 10 CSR 10-6.060 requires facilities that are major emitters to obtain construction permits under the federally approved state implementation plan. This permit addresses the option under 1.F.2) of construction permit 122009- 002 (above) and r | |||||||||
Air | Tide V | X | OP1999169 | MDNR | This permit replaces the former Title V permit (0P1999169) and includes the conditions of NSR permit 122009-002. This permit will be amended to replace the conditions of 122009-001 with those of 122010-012 according to an application dated May 20 2011 | |||||||||
Water | NPDES | X | MO-007675 | MDNR | Activity is allowed under provision of the existing permit. GS has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Waste | Solid Waste | X | 717502 | MDNR | Activity is allowed under provision of the existing permit. GS has taken the necessary actions to prevent any violations. AECI will monitor to insure compliance. | |||||||||
Spill Protection | SPCC | X | NIA | NIA | Thomas Hill has an approved SPCC plan. GS has supplied a SPCC plan for the CyClean B liquid additive. This plan has been incorporated into the plant SPCC plan. | |||||||||
Land | Land Disturbance | X | MDNR | Area of concern is less than one acre. No permit required. | ||||||||||
Zoning |
County or Local Zoning Requirement |
X | NIA | NIA | No permit is required from a county or local entity. | |||||||||
Building Permits |
Permits Required by local/county statute |
X | NIA | NIA | No permit is required from a county or local entity. |
Disclosure Schedules, page 5
Schedule 3.1(f)
Insurance
Disclosure Schedules, page 6
Schedule 3.1(g)
Title
No exceptions.
Disclosure Schedules, page 7
Schedule 3.1(i)
Environmental
The following Hazardous Substances are at the Site:
Substance |
Approxima te Quantity |
Notes |
||
Diesel Fuel |
540 gallons | 500 gallon storage tank | ||
Gear Oil |
15 gallons | Includes lubricants in gear boxes, grease cartridges and mobile equipment. | ||
Paint |
5 gallons | Not lead-based | ||
Hydraulic Oil |
60 gallons | Both in Facility and some on shelf for topping off | ||
Antifreeze |
20 gallons | Both in Facility and some on shelf for topping off | ||
Engine Oil |
15 gallons | Both in Facility and some on shelf for topping off |
Additionally, at the Site there will be a refrigerant (R410A) used in each of the three air conditioning units located in the MCC building, the pump room and the office trailer.
Approved specifications for CyClean A includes 0.5% maximum oil/grease.
The Material Safety Data Sheets for CyClean A and CyClean B are as follows:
Disclosure Schedules, page 8
MATERIAL SAFETY DATA SHEET
CyCleanTM Coal Additive A
1. CHEMICAL PRODUCT AND COMPANY IDENTIFICATION
ADA Environmental Solutions. Inc.
8100 SouthPark Way, Unit B
Littleton, Colorado 80120
Tel: 303-734-1727 Fax: 303-734-0330
Product Name: CyClean TM A
Issue Date: 6/15/2011
Revision: 4 (supersedes all previous)
Product Description: Proprietary chemical additive to reduce mercury & NOx emissions from cyclone boilers.
Emergency Telephone Number : For emergency assistance involving chemicals please
call CHEMTREC 800-424-930a
2. COMPOSITION / INFORMATION ON INGREDIENTS (dry basis)
Component |
% wt (typical) |
CAS No., |
||
* |
* | * | ||
* |
* | * | ||
* |
* | * | ||
* |
* | * | ||
* |
* | * | ||
* |
* | * | ||
* |
* | * |
3. HAZARDS IDENTIFICATION
Routes of Entry: |
Skin contact, eye, ingestion, inhalation | |
Health Effects: |
||
ACUTE: |
Eyes: |
May cause irritation and/or conjunctivitis. | |
Skin: |
May cause irritation to the contacted tissue(s) | |
Ingestion: |
Not expected to be acutely toxic via ingestion. Extremely large oral doses may produce gastrointestinal disturbances_ | |
Inhalation: |
May cause irritation to the respiratory tract. |
Page 1 |
CyClean TM A |
Disclosure Schedules, page 10
CHRONIC: |
Chronic inhalation of dust may cause shortness of breath and nervous system effects. | |||
HMIS Rating: Health=2 Fire=0 Physical=0 |
||||
NFPA | ||||
Rating: Health=2 Fire=0 Reactivity=0 |
4. FIRST AID MEASURES
Emergency and First Aid Procedure
Eyes: |
Flush eyes with large amounts of water. Seek medical attention if irritation develops or persists or if visual changes occur. | |
Skin: |
Remove contaminated clothing and shoes; scrub affected areas with soap and water. Seek medical attention if irritation develops or persists_ | |
Inhalation: |
Move to fresh air if symptoms of respiratory distress occurs. Obtain medical assistance it breathing difficulty persists. | |
Ingestion: |
If appreciable quantities are ingested, seek medical attention. Wash hands and face before consuming food products_ |
5. FIRE-FIGHTING MEASURES
Flash Point: |
Not applicable | |
Explosive Limit: |
Not explosive_ | |
Flammable Limits: |
Not applicable | |
Extinguishing Media: |
Use media appropriate for surrounding material. |
Hazardous Products of Combustion: Will not support combustion_
Special Firefighters Procedure: Use self-contained breathing apparatus for protection against the degradation products of surrounding materials.
6. ACCIDENTAL RELEASE MEASURES
Steps to be taken in case material is released : Clean up spill in a manner that does not disperse dust into the air. Wear protective clothing as described in Section 8 and avoid unnecessary exposure_ If possible, recover spilled product for reuse_
Waste disposal method : Collect material in appropriate container for recycling or disposal. Disposal should be done in accordance with federal, state, and local regulations.
Precautions to be taken in handling and storing: Use procedures to minimize contact and to prevent material from becoming airborne_
Page 2 |
CyClean TM A |
Disclosure Schedules, page 10
7. HANDLING AND STORAGE
Store in a cool, dry and well-ventilated area preferably above freezing temperature. Do not store near strong oxidizers. Follow good handling procedures to minimize spills, airborne dust and accumulation of dusts on exposed surfaces.
8. EXPOSURE CONTROLS AND PRESONAL PROTECTIVE MEASURES
Exposure Limits: |
OSHA PEL (TWA) 15 mg/m 3 total dust, 5 mg/m 3 respirable fraction ACGIH TLV (TWA) 10 mg/m 3 total dust; 5 mg/m 3 * | |
Respiratory Protection: |
Normally not required. Use MSHA/NIOSH approved respiratory protection if atmospheric levels of dust will exceed prescribed limits_ | |
Eye Protection: |
Persons working with this product should wear safety glasses. | |
Skin: |
Persons handling this product should wear long sleeves and cloth gloves. Avoid skin contact | |
Ventilation: |
Exhaust, handling, ventilation, or containment systems may be required if atmospheric levels of contaminants exceed prescribed limits. |
9. PHYSICAL DATA
Appearance |
* | |
Odor |
Odorless | |
Solubility |
Not soluble in water | |
Moisture Content |
3 8% by wt. | |
Density, lbs/ft3 |
* | |
% Volatile by Volume |
less than 1% | |
Vapor Pressure |
N/A | |
Vapor Density |
N/A | |
Freezing Point |
N/A | |
Boiling Point |
N/A | |
Melting Point |
N/A |
10. STABILITY AND REACTIVITY
Stability: |
Stable under normal handling and storage conditions_ | |
Hazardous Polymerization: |
None. | |
Incompatibility: |
Strong adds, bases and oxidizers. Reacts with strong acids to form hydrogen gas. | |
Hazardous Decomposition Products: |
None | |
Conditions to Avoid: |
No information. |
Page 3 |
CyClean TM A |
Disclosure Schedules, page 11
11. TOXICOLOGICAL INFORMATION
No product specific toxicity test data found.
The primary component of this material is * in the form of various *. Penetration of * particulates in the skin or eye may cause an exogenous or ocular siderosis. Ingestion overexposures to * may affect the gastrointestinal, nervous and hematopoietic system and the liver. Chronic inhalation of dust may cause pneumoconiosis.
Chronic inhalation of * can cause a nervous system disorder known as *. Symptoms of * may include disorientation, impairment of memory and judgment, anxiety and compulsive behavior_
12. ECOLOGICAL INFORMATION
No product specific information found. Do not release to surface waters.
13. DISPOPSAL CONSIDERATIONS
This material is not considered a hazardous waste under RCRA 40 CFR 261. Collect material in appropriate container for recycling or disposal. Any spilled material that cannot be saved for recovery or recycling may be disposed of as an industrial waste in a facility permitted for non-hazardous wastes. Disposal should be done in accordance with federal, state, and local regulations.
14. TRANSPORTATION INFORMATION
DOT Class: Not regulated for transportation |
||
Shipping Name: |
Not required | |
Hazard Class: |
N/A | |
Packaging Group: |
N/A | |
Reportable Quantity (RO): |
N/A | |
Labels Required: |
None | |
Placard: |
None |
15. REGULATORY INFORMATION
CERCLA Hazardous Substance (40 CFR 302.4): |
NA | |
RCRA Hazardous Waste (40 CFR 261.33): |
NA | |
TSCA Status: |
Component materials are listed in the TSCA inventory | |
SARA Section 3021355: |
NA | |
SARA Section 313 Toxic Chemical List: |
* | |
SARA Hazard Categories: |
Acute, Chronic |
Page 4 |
CyClean TM A |
Disclosure Schedules, page 12
16. OTHER INFORMATION
For Industrial Use Only
Emergency Assistance: | For Emergency Assistance Involving Chemicals Call CH EMTREC 800-424-9300. |
NOTICE
The information contained herein is the best available to CCS and ADA-ES as of this date. To the best of GCSs and ADA-ES knowledge the information contained herein is reliable and accurate as of this date, however accuracy, suitability or completeness is not guaranteed. Users are responsible to verify this data for their own particular use and they assume all risks of their reliance upon information contained herein. This information relates only to the product designated herein and does not relate to its use in combination with any other material or in any other process_ Neither CCS nor ADA-ES, Inc. shall under any circumstances be liable for incidental or consequential damages as a result of reliance upon information contained herein.
NO WARRANTY: NEITHER CCS NOR ADA-ES MAKES ANY WARRANTY OF MERCHANTABILITY OR OF ANY OTHER KIND WITH RESPECT TO INFORMATION CONTAINED HEREIN, EITHER EXPRESS OR IMPLIED. NEITHER CCS NOR ADA-ES ASSUMES ANY LIABILITY WITH RESPECT TO THE USE OF INFORMATION CONTAINED HEREIN.
LIMIT OF LIABILITY: Neither GCS nor ADA-ES shall be liable for, and Buyer assumes responsibility for personal injury and property damage resulting from the handling, possession, use, storage or resale of the product. whether used alone or in combination.
Disclosure Schedules, page 13
MATERIAL SAFETY DATA SHEET
CyClean TM Coal Additive B
1. CHEMICAL PRODUCT AND COGWANY IDEPITIACATION
ADA Environmental Solutions, Inc.
8100 SouthPark Way, Unit El
Littleton, Colorado 80120
Tel: 303-734-1727 Fax: 303-734-0330
Product Name: CyClean T11 B
Issue Date: 6-115e2011
Revision: 4 {supersedes all previous)
Product Description: Proprietary chemical additive to reduce mercury NOx emissions from cyclone bailers.
Emergency Telephone Number: For emergency assistance Involving chemicals please call CHEMTREC 800-424-9300.
2. COMPOSITION / INFORMATION ON INGREDIENTS (dry basis)
*
3. HAZARDS IDENTIFICATION
Routes of Entry: |
Eye or skin contact, ingestion (swallowing). | |
Health Effects: |
||
ACUTE: |
Eyes: |
May cause irritation, redness and pain. | |
Skin: |
May cause skin irritation, redness and pain_ | |
Inhalation: |
May cause irritation to the respiratory tract. Symptoms may include coughing and shortness of breath. | |
May cause irritation to the gastrointestinal tract, nausea, vomiting and abdominal pain. Symptoms may include headaches. blurred vision, fatigue, drowsiness and nervous system depression. |
CHRONIC: |
Repeated or prolonged exposure may cause skin rasa and irritation of mucous membranes. Repeated ingestion may cause central nervous system depression, irritability and headache. |
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CyClean TM B |
Disclosure Schedules, page 14
Medical Conditions Aggravated by Exposure: |
||
Persons suffering from depression: alcoholism: neurological or psychological disorders may be more susceptible to the effects of the substance_ | ||
NFPA Rating: |
Health = 2: Flammability = 0: Instability = 0 | |
11FPA Rating: |
Health = 2: Flammability = 0: Instability = 0 | |
(Rating is for dry material, no information on blended solution). |
4. FIRST AID MEASURES
Emergency and First Aid Procedure
Eyes: |
Immediately flush eyes with plenty of water for at least 15 minutes, lifting lower and upper eyelids occasionally. Get medical attention_ | |
Skin: |
Wash exposed areas with water for at least 15 minutes. Remove contaminated clothing. Wash clothing before reuse_ | |
Inhalation: |
Remove to fresh air. If not breathing, give artificial respiration. If breathing is difficult give oxygen. Get medical attention. | |
Ingestion: |
Induce vomiting immediately as directed by medical personnel_ Never give anything by mouth to an unconscious person. |
5. FIRE FIGHTING MEASURES
Fire: |
Not considered to be a fire hazard_ | |
Flash Point: |
Non-flammable | |
Explosive Limit: |
Not considered to be an explosion hazard. | |
Flammable limits: |
Not applicable | |
Extinguishing Media: |
Use media appropriate for surrounding material. |
Hazardous Products of Combustion: Will not support combustion. However, if involved in a fire may decompose to *.
Special Firefighters Procedure: Use NIOSH approved self-contained breathing apparatus with full face piece operated in the pressure demand mode.
6. ACCIDENTAL RELEASE MEASURES
Ventilate area of leak or spill. keep unnecessary and unprotected people away turn area of spill. Wear protective clothing. as described in Section 8. Contain spill with dike to prevent entry., into sewers and waterways. Recover liquid for reuse if possible_
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CyClean TM B |
Disclosure Schedules, page 14
To the best knowledge of ADA-ES. this material is not regulated by CERCLA/RCRA.. Therefore, it may be disposed of as an industrial waste. Disposal should be done in accordance with federal, state, and local regulations.
7. HANDLING AND STORAGE
Keep in a lightly closed container and store in a cool, dry and well-ventilated area. Maintain product temperature above 10°C {50 F}. Do not allow contact with concentrated acids. or strong oxidizers.
8. EXPOSURE CONTROLS AND PERSONAL PROTECTIVE MEASURES
Exposure Limits: |
ACGIH TLV Not established | |
OSHA PEL Not established | ||
Respiratory Protection: |
None required under normal conditions. | |
Eye/Face Protection: |
Use tight-fitting chemical safety goggles to protect the eyes when handling or during spill cleanup_ | |
Protective Gloves: |
Resistant to chemical penetration. | |
Other Protective Equipment: |
Wear impervious protective clothing. when solution is handled. Wash contaminated clothing and dry before reuse. Eyewash station in work area is recommended. | |
Ventilation System: |
Not required. |
9. PHYSICAL DATA
Freezing Point ( ° C/ ° F) |
Not available | |
Boiling Point ( ° C/ ° F, 760 mm Hg) |
>100 ° C/212 ° F | |
Specific Gravity @ 20 ° C |
* | |
Density, lbs/gallon @ 20 °C |
11.5 12.8 | |
Solubility in Water, % by wt. |
100% | |
Evaporation Rate (Butyl Acetate=1) |
N/A | |
Vapor Density |
>1.0 | |
Percent Volatile |
Not volatile | |
Vapor Pressure |
Water vapor pressure only. | |
pH |
7 - 9 |
10. STABILITY AND REACTIVITY
Stability |
Stable under normal handling and storage conditions | |
Hazardous polymerization: |
Will not occur | |
Incompatibility: |
* |
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CyClean TM B |
Disclosure Schedules, page 14
Hazardous. combustion products: * fumes may evolve. Thermal
decomposition temp.: *
Conditions to avoid when stored: Heat. incompatibles.
11. TOXICOLOGICAL INFORMATION.
Toxicological Data:
Carcinogenicity |
Not listed by ACGIH. IARC, NTP, or CA Prop 65. | |
Epidemiology: |
No information available | |
Teratogenicity |
Components of this product have been investigated as a mutagen, reproductive effector | |
Reproductive Effects: |
Adverse reproductive effects have occurred in experimental animals. | |
Mutagenicity: |
No information available | |
Neurotoxicily: |
No information available |
12. ECOLOGICAL INFORMATION
Some of the components of this product may be environmentally toxic in concentrated form. Do not release to surface waters.
13. DISPOSAL CONSIDERATIONS
Collect material in appropriate container for recycling or disposal. Processing, use or contamination of the product may change the waste management options. Disposal should be done in accordance with federal, state, and local regulations.
14. TRANSPORTATION INFORMATION
DOT Class.: Not regulated for transportation
Shipping Name: |
Not required | |
Hazard Class: |
N/A | |
Packaging Group: |
N/A | |
Reportable Quantity (RQ): |
N/A | |
Labels Required: |
None | |
Placard: |
None |
15. REGULATORY INFORMATION
TSCA Inventory |
Component chemicals are listed on the TSCA inventory. | |
CERCLA |
None of the chemicals in this material have an RQ. | |
SARA Section 302 |
None of the chemicals in this product have a TPQ. |
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CyClean TM B |
Disclosure Schedules, page 14
SARA Section 311/312 Hazard Categories |
||||||
Health |
Immediate (acute) | Yes | ||||
Health |
Delayed (chronic) | Yes | ||||
Physical |
Fire | No | ||||
Physical |
Sudden Release of Pressure | No | ||||
Physical |
Reactive Nuisance Mist/Dust Only | No | ||||
SARA Section 313 |
No chemicals reportable under Section 313. |
16. OTHER INFORMATION
For Industrial Use Only
Emergency Assistance: |
For Emergency Assistance Involving Chemicals Call CHEMTREC 800- 424-9300. |
NOTICE
The information contained herein is the best available to CCS and ADA-ES as of this date. To the best of CCSs and ADA-ES knowledge the information contained herein is reliable and accurate as of this date, however accuracy. suitability or completeness is not guaranteed. Users are responsible to verify this data for their own particular use and they assume all risks of their reliance upon information contained herein. This information relates only to the product designated herein and does not relate to its use in combination with any other material or in any other process. Neither CCS nor ADA-ES, Inc. shall under any circumstances be liable for incidental or consequential damages as a result of reliance upon information contained herein.
NO WARRANTY: NEITHER CCS NOR ADA-ES MAKES ANY WARRANTY OF MERCHANTABILITY OR OF ANY OTHER KIND WITH RESPECT TO INFORMATION CONTAINED HEREIN, EITHER EXPRESS OR IMPLIED. NEITHER CCS NOR ADA-ES ASSUMES ANY LIABILITY WITH RESPECT TO THE USE OF INFORMATION CONTAINED HEREIN.
LIMIT OF LIABILITY: Neither CCS nor ADA-ES shall be liable for, and Buyer assumes responsibility for personal injury and property damage resulting from the handling, possession, use, storage or resale of the product, whether used alone or in combination.
Disclosure Schedules, page 18
Schedule 3.1(j)
Taxes
No exceptions.
Disclosure Schedules, page 19
Schedule 3.1 (k)
Intellectual Property
No exceptions.
Disclosure Schedules, page 20
Schedule 3.1(1)
Material Contracts
All of the Transaction Documents
Equipment Agreement, dated as of February 11, 2011, by and between CCS and *
Master Services Agreement, dated as of May 20, 2011, by and between CCS and *
Equipment Agreement, dated as of May 20, 2011, by and between CCS and *
Contribution Agreement, dated as of October 28, 2011, by and between Clean Coal Solutions, LLC and AEC-TH, LLC
Bill of Sale, dated as of October 28, 2011, by and between Clean Coal Solutions, LLC and AEC-TH, LLC
Assignment of Warranties, dated as of October 28, 2011, by and between Clean Coal Solutions, LLC and AEC-TH, LLC
Amended and Restated Operating Agreement of AEC-TH, LLC, effective as of July 31, 2011
Contribution Agreement, dated as of September 8, 2011, by and among ADA-ES, Inc., NexGen Refined Coal, LLC, GSFS Investments I Corp., and Clean Coal Solutions, LLC
Amended and Restated License Agreement, effective as of October 30, 2009, by and between ADA-ES, Inc. and CCS
First Amendment to Amended and Restated License Agreement, effective August 4, 2010, by and among ADA-ES, Inc. and CCS
Second Amended and Restated Operating Agreement, dated as of May 27, 2011, of Clean Coal Solutions, LLC, as amended on September 8, 2011
Credit Agreement, dated as of March 30, 2011, and amended and reaffirmed on September 8, 2011 by and between CCS and CoBiz Bank, a bank doing business in the State of Colorado as Colorado Business Bank, and related agreements and instruments.
Exclusive Agent Agreement, dated as of February 12, 2010, by and among Elcan Partners, LLC, CCS, NexGen Refined Coal, LLC and ADA-ES, Inc.
Confidentiality Agreement, dated October 19, 2009, by and between CCS and Associated Electric Cooperative, Inc.
Disclosure Schedules, page 21
The following purchase orders related to the Facility:
DATE |
P.O. |
VENDOR |
||
5/23/2011 |
CCS11-11.01 | * | ||
7/26/2011 |
CCS11-16.02 | * | ||
9/6/2011 |
CCS11-16.04 | * | ||
9/12/2011 |
CCS11-16.04 Rev 1 | * | ||
7/6/2011 |
CCS11-16.05 | ADA-ES. Inc. | ||
8/17/2011 |
CCS11-16.05 Rev 1 | ADA-ES. Inc. | ||
9/26/2011 |
CCS11-16.07 | * | ||
10/7/2011 |
CCS11-16.08 | * | ||
10/21/2011 |
CCS11-16.09 | ADA-ES. Inc. | ||
10/28/2011 |
CCS11-16.10 | * | ||
10/31/2011 |
CCS11-16.11 | * | ||
11/1/2011 |
CCS11-16.12 | Clean Coal Solutions Services, LLC | ||
11/9/2011 |
CCS11-16.13 | * | ||
11/8/2011 |
CCS11-16.14 | * |
Installment Sale Contract (Security Agreement), dated as of June 9, 2010, by and between Clean Coal Solutions Services, LLC and *, and related terms and conditions, and Guaranty of Payment Installment Sale Contract (Security Agreement), dated as of June 9, 2010, given by Clean Coal Solutions, LLC to *
Installment Sale Contract (Security Agreement), dated as of June 9, 2010, by and between Clean Coal Solutions Services, LLC and *
Installment Sale Contract (Security Agreement), dated as of June 9, 2010, by and between Clean Coal Solutions Services, LLC and *
Disclosure Schedules, page 22
Schedule 3.1 (m)
Employee Matters
The IBEW union represents collectively bargained employees of Clean Coal Solutions Services, LLC on the Site.
Disclosure Schedules, page 23
Schedule 9.8
Knowledge of CSS Parties
Dr. Nina B. French
Charles S. McNeil
Brian C. Humphrey
Dr. Mike Durham
Thomas McCarthy
Disclosure Schedules, page 22
Exhibit 10.48
EQUIPMENT LEASE
(Thomas Hill)
This EQUIPMENT LEASE (this Lease ), dated as of December 15, 2011 (the Effective Date ), is entered into by and between AEC-TH, LLC, a Colorado limited liability company ( Lessor ) and GS RC INVESTMENTS LLC, a Delaware limited liability company ( Lessee ). Lessor and Lessee may be referred to herein individually as a Party , and collectively as the Parties .
R E C I T A L S
A. Clean Coal Solutions, LLC, AEC-NM, LLC, Lessor and Lessee have previously entered into that certain Agreement to Lease dated as of June 29, 2010, as amended from time to time under which Lessor agreed to lease a refined coal production facility to Lessee pursuant to the Existing Lease (as hereinafter defined).
B. Pursuant to that certain Exchange Agreement, dated as of December 14, 2011, among Clean Coal Solutions, LLC, Lessor and Lessee (the Exchange Agreement ), the Parties desire to terminate the Existing Lease and to enter into this Lease to lease the refined coal production facility, as described on Exhibit A hereto (the Facility ).
A G R E E M E N T S
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Definitions . Capitalized terms used but not defined herein shall have the meanings associated with such terms in the Exchange Agreement. The following terms shall have the following meanings as used herein:
Applicable Section 45 Credits means with respect to any Quarter, the Section 45 Credits to which Lessee is entitled as a result of the sale during such Quarter to an Unrelated Person of Refined Coal produced in the Facility based on the Monthly Operating Reports for each Month during such Quarter.
Assignment has the meaning set forth in Section 6.12.
Business Day means any Day other than (i) a Saturday or Sunday or (ii) a Day on which commercial banks in New York, New York are authorized or required to be closed.
Casualty has the meaning set forth in Section 2.7.
Code means the Internal Revenue Code of 1986, as amended.
* | Indicates portions of the exhibit that have been omitted pursuant to a request for confidential treatment. The non-public information has been separately filed with the Securities and Exchange Commission. |
Contingent Rent Payment has the meaning set forth in Section 2.2.
Contingent Rent Payment Date means the twentieth (20th) Day of the Month immediately following the end of the applicable Quarter (or if such Day is not a Business Day, by the first Business Day following such Day).
Contingent Rent Tax Event means the events described in clauses (a) (but only to the extent of an actual reduction of Section 45 Credits), and (d) of the definition of the term Tax Event.
Day means a calendar day.
Draft Allocation has the meaning set forth in Section 2.3
Exchange Agreement has the meaning set forth in the Recitals.
Existing Lease means that certain Equipment Lease (Thomas Hill) entered into between Lessor and Lessee dated June 29, 2010.
Facility has the meaning set forth in the Recitals.
Final Allocation has the meaning set forth in Section 2.3.
Federal Tax Rule means any regulation, rule, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or interpretative or advisory opinion or letter by any Federal Tax Authority with respect to federal tax matters, including (a) regulations of the Treasury Department, (b) IRS and Treasury Department materials such as Revenue Rulings, Revenue Procedures, Treasury Decisions, PLRs, Technical Memoranda, Technical Advice Memoranda, Chief Counsel Advice, Field Service Advice, General Counsel Memoranda, Office Memoranda, Technical Information Releases, Delegation Orders, Executive Orders, Treasury Department Orders, Notices, Announcements and News Releases, (c) judgments and decisions of the United States Tax Court, the United States Board of Tax Appeals and any other court of the United States in connection with its exercise of original, trial or appellate jurisdiction over any case involving federal tax matters and (d) a Pre-Filing Agreement.
Fixed Rent Payments means the Initial Term Fixed Rent Payments and the Renewal Term Fixed Rent Payments.
Force Majeure has the meaning set forth in Section 4.1.
GS means The Goldman Sachs Group, Inc., a Delaware corporation.
Independent Accountant has the meaning set forth in Section 2.3.
Initial Term has the meaning set forth in Section 3.1.
Initial Term Fixed Rent Payments has the meaning set forth in Section 2.2.
2
Interest Rate means the lesser of (i) the Prime Rate plus two percent (2%), and (ii) the highest rate permitted by applicable Law.
Investment Grade has the meaning set forth in the Operating and Maintenance Agreement.
IRS means the United States Internal Revenue Service or any successor thereto.
IRS Guidance has the meaning set forth in Section 6.13.
Lease has the meaning set forth in the preamble.
Lessee has the meaning set forth in the preamble.
Lessor has the meaning set forth in the preamble.
Monthly Operating Reports means the reports provided by Operator to Lessee pursuant to Section 2.14 of the applicable Operating and Maintenance Agreement or similar reports provided by any successor operator.
Party or Parties has the meanings set forth in the preamble.
Person means an individual, group, partnership, corporation, limited liability company, trust or other entity.
Placed-in-Service Date means the date the Facility is placed in service within the meaning of the Refined Coal Guidance.
Pre-Filing Agreement means an LSMB pre-filing arrangement (as described in IRS Revenue Procedure 2009-14 or any supplement or successor thereto) between Lessee and the IRS.
Prime Rate means the rate of interest publicly announced from time to time by Citibank, N.A., New York branch, as its prime or base lending rate.
Quarter means each calendar quarter ending on March 31, June 30, September 30 and December 31 of each year.
Refined Coal means refined coal produced at the Facility from coal.
Refined Coal Guidance means IRS Notice 2010-54 and such other guidance issued by the IRS supplementing, amending or superseding IRS Notice 2010-54.
Refined Coal Sale Agreement means that certain Refined Coal Sale Agreement (Thomas Hill) between Lessee and Utility.
Regulatory Event means the adoption, promulgation, change, repeal, or change in the interpretation, administration or application of any Law, or any other action of any Governmental Authority, in each case after the Effective Date (other than Force Majeure or a
3
Tax Event) that results directly or indirectly in (a) it being unlawful for the Lessee to lease, operate or have operated the Facility, (b) Lessee being obligated or compelled to divest or materially limit any of its or its Affiliates businesses or the activities thereof wherein such divestiture or limitation affects or would affect Lessees ability to perform its obligations under this Lease, (c) the imposition of a material penalty, fee or other cost, in each case in light of the overall economics of the transactions contemplated in the Transaction Documents, to be paid by Lessee or any of its Affiliates with respect to the Facility or arising out of this Lease that was not otherwise payable before the Effective Date or (d) a Material Adverse Effect.
Renewal Term has the meaning set forth in Section 3.1.
Renewal Term Fixed Rent Payments has the meaning set forth in Section 2.2.
Rent means Initial Term Fixed Rent Payments, Renewal Term Fixed Rent Payments, and Contingent Rent Payments.
Section 45 Credit means the credit allowed by Section 45 of the Code for the production and sale of refined coal produced from coal to an Unrelated Person.
Services Agreement means that certain Coal Yard Services Agreement dated as of June 29, 2010 by and between Lessee and Utility.
Site License means that certain Production Facility and Coal Yard Site License dated as of June 29, 2010 by and between Lessee and Utility.
Tax Event means (a) the issuance to Lessee, or any Affiliate of Lessee, by the IRS of a (i) Notice of Proposed Adjustment (Form 5701); (ii) technical advice memorandum; (iii) private letter ruling, (iv) determination letter, (v) 60-day letter containing an examination report; (vi) 30-day letter containing an examination report; or (vii) any other written document that reduces or proposes the reduction of the Section 45 Credits for the taxable period(s) under examination, or examined, by the IRS, by 20 percent or more; (b) the issuance, publication, announcement or other public dissemination of any statement or writing by the chairperson of the Ways and Means Committee of the U.S. House of Representatives or the Finance Committee of the U.S. Senate (including through a colloquy reported in the Congressional Record), if such statement or writing proposes, advocates or supports the enactment of federal legislation, or the adoption of a Federal Tax Rule, that would disallow some or all of the Section 45 Credits; (c) the passage by any of the Ways and Means Committee of the U.S. House of Representatives, the Finance Committee of the U.S. Senate, the U.S. House of Representatives or the U.S. Senate of a bill or resolution that, if enacted or adopted, would disallow some or all of the Section 45 Credits or (d) any adoption of a Federal Tax Rule the effect of which is the disallowance of 20 percent or more of the Section 45 Credits.
Term has the meaning set forth in Section 3.1.
Total Fixed Payments means, with respect to any Quarter in the Initial Term, the sum of the Initial Term Fixed Rent Payments for such Quarter indicated on Schedule 1, and with respect to any Quarter in the Renewal Term, the Renewal Term Fixed Rent Payments for such Quarter.
4
Total Operating Expenses means, with respect to any Quarter, the total of all actual costs and expenses, including budget overruns, incurred and paid by Lessee in connection with the operation of the Facility during such Quarter for the production of Refined Coal, including without limitation (a) the costs of electrical power, water and other utilities and services consumed in the operation of the Facility paid by Lessee; (b) fees and expenses paid to the Operator under the applicable Operating and Maintenance Agreement or any subsequent operator of the Facility (though Total Operating Expenses shall not include any subsequent operator fees and expenses that are unreasonable); (c) costs of routine preventive maintenance of the Facility; (d) the cost of all materials and supplies necessary for the operation of the Facility, other than coal; (e) the cost of all overhauls, major and minor repairs and replacements of the Facility; (f) the cost of all mobile equipment, lubricants, chemicals (including Chemical Additives as defined in the Chemical Additive Supply Agency Agreement), fluids, oils, supplies, filters, fittings, connectors, seals, gaskets, hardware, wires and other similar consumable materials and supplies used in connection with the operation, overhaul, repair or replacement of the Facility; (g) all fines, penalties, and costs of complying with injunctive relief relating to operation and maintenance of the Facility with applicable Laws except to the extent caused by Lessee; (h) the costs of procuring, maintaining and complying with all Permits, including all related engineering costs; (i) the insurance coverages described in Section 3.13 of the applicable Operating and Maintenance Agreement; (j) taxes, administrative costs and all other assessments related to the operation of the Facility; (k) site rent paid by the Lessee to Utility under the Site License or under any other lease or license of a site on which the Facility is located during the Term; (l) the coal yard and coal handling services fee paid by Lessee to Utility under the Services Agreement or under any other coal yard and coal handling services agreement; (m) the costs of treating, managing, transporting and disposing of solid waste, sludges, trash, wastewater, leachate, and Hazardous Substances generated or used in the operation of the Facility, including all such materials arising from the operation of the Facility; and (n) the costs of coal sampling and emissions testing, provided that the Total Operating Expenses shall not include (i) the cost of coal, (ii) any costs or expenses incurred by Operator and reimbursed by Lessee under Section 2.10(c) of the applicable Operating and Maintenance Agreement or otherwise in connection with complying with any Extended Production Suspension Plan (as such term is defined in the applicable Operating and Maintenance Agreement) or any recommencement of operations of the Refined Coal Plant following an Extended Production Suspension Plan, (iii) the costs and expenses of any Decommissioning and Relocation Services (as such term is defined in the applicable Operating and Maintenance Agreement) incurred by Operator and reimbursed by Lessee under Section 3.10 of the applicable Operating and Maintenance Agreement or (iv) the costs or expenses of any substantially similar services to those services described in (ii) and (iii) above provided by a Person other than Operator.
Unrelated Person means, with respect to any Person, any other Person that is not related to such Person within the meaning of Section 45(e)(4) of the Code.
5
ARTICLE II
LEASE
2.1 Lease of Facility .
(a) Subject to the terms and conditions hereof and of the Exchange Agreement, from the Effective Date, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Facility for the uses set forth in Section 2.11 below.
(b) Upon the occurrence of the Effective Date, the Existing Lease, together with all amendments and modifications thereto, shall terminate. Each Party for itself, its Affiliates and its and their successors and assigns agrees that (i) the termination of the Existing Lease shall be treated as a termination by agreement without fault or breach on the part of either Party and (ii) the terms of Section 3.2 of the Existing Lease shall apply to such termination, provided that Sections 3.2(c) and (e) of the Existing Lease shall be inapplicable and excluded in all respects for the purposes of such termination and Lessee shall (following such termination) have no further obligations to make additional payments pursuant to Sections 3.2(c) and (e) of the Existing Lease.
2.2 Rent .
(a) During the Initial Term, Lessee will pay to Lessor on the last Business Day of each Quarter the fixed payment set forth on Schedule 1 for such Quarter (the Initial Term Fixed Rent Payments ). The Initial Term Fixed Rent Payments shall be payable through the end of the Initial Term notwithstanding any termination of this Lease (and the obligation to make all such Initial Term Fixed Rent Payments will be treated as having been incurred at the inception of the Initial Term), except for a termination pursuant to Section 3.1(e). In the event that this Lease is terminated pursuant to Section 3.1(e) prior to the end of the Initial Term, no further Initial Term Fixed Rent Payments shall be due, though the Lessee will pay to the Lessor a pro-rated amount of the Initial Term Fixed Rent Payment due with respect to the Quarter in which this Lease is terminated.
(b) During each Renewal Term, Lessee will pay to Lessor on the last Business Day of each Quarter the fixed payment set forth on Schedule 1 for such Quarter (the Renewal Term Fixed Rent Payments ). The Renewal Term Fixed Rent Payments shall be payable through the end of the applicable Renewal Term notwithstanding any termination of this Lease (and the obligation to make all such Renewal Term Fixed Rent Payments will be treated as having been incurred at the inception of the Renewal Term), except for a termination pursuant to Section 3.1(e). In the event that this Lease is terminated pursuant to Section 3.1(e) prior to the end of the applicable Renewal Term, no further Renewal Term Fixed Rent Payments shall be due, though the Lessee will pay to the Lessor a pro-rated amount of the Renewal Term Fixed Rent Payment due with respect to the Quarter in which this Lease is terminated.
During the Term and subject to receipt of satisfactory redeterminations of qualified emissions reductions in accordance with the Refined Coal Guidance in effect at the time of such redetermination (it being understood that redeterminations are currently required to be performed on a semi-annual basis and thus may not be required for each Quarter), Lessee will pay to Lessor
6
quarterly on the Contingent Rent Payment Date for each Quarter the Contingent Rent Payment for such Quarter and provide Lessor the calculation of such Contingent Rent Payment. The Contingent Rent Payment with respect to each Quarter shall equal *. If a Contingent Rent Payment for any Quarter is reduced on account of the limitation in Section 2.2(d), the reduced amount will be carried forward to succeeding Quarters in the same Term, beginning with the next Quarter, and added to the Contingent Rent Payment (subject to the limitation in Section 2.2(d)) until the reduction has been offset by additional Contingent Rent Payments.
(c) The Contingent Rent Payments shall be determined after taking into account any phase-out of such credits under Section 45(b)(1) of the Code and any applicable inflation adjustment under Section 45(b)(2) of the Code as provided herein, but shall be determined without regard to limitations on Lessees use of the Section 45 Credits imposed by Section 38(c) of the Code and without regard to whether Lessee actually utilizes such Section 45 Credits. In the event that any Contingent Rent Payment is due prior to the date that the IRS publishes the U.S. dollar amount of the Applicable Section 45 Credits with respect to such calendar year, the U.S. dollar amount of the Applicable Section 45 Credits for the prior year shall be used until the IRS publishes the U.S. dollar amount of the Applicable Section 45 Credits for the current year. Once the IRS publishes this figure, the Lessee will adjust the next due Contingent Rent Payment to reflect any change that should be made to prior Contingent Rent Payments made during the current calendar year to take the new published figure into account. Within 90 Days after the end of each calendar year during the Term, Lessee shall recalculate all Contingent Rent Payments that have been made with respect to such calendar year based upon (i) the Section 45 Credit applicable to such calendar year, (ii) the actual amount of Refined Coal sales from the Facility in each Quarter of such calendar year and (iii) the actual Total Operating Expenses for each Quarter paid by Lessee in such calendar year. Upon completion of such recalculation, Lessee shall promptly notify Lessor of such recalculation and provide Lessor a statement of such recalculation. Within 30 Days following such notice, Lessor or Lessee, as appropriate, shall make an adjustment payment to the other Party to reflect such recalculation, though such other Party may raise a good faith dispute to the adjustment payment.
(d) Notwithstanding anything to the contrary herein, (i) the aggregate Contingent Rent Payments during the Initial Term plus the contingent payments made pursuant to the Existing Lease shall not exceed the present value, as of the effective date of the Existing Lease, calculated using * discount rate, of (A) the aggregate projected Initial Term Fixed Rent Payments for the Initial Term, plus (B) the aggregate fixed rental payments (including all prepayment of rent) paid by Lessee pursuant to the Existing Lease and (ii) the aggregate Contingent Rent Payments during any Renewal Term shall not exceed the present value, as of the Effective Date, calculated using * discount rate, of the aggregate projected Renewal Term Fixed Rent Payments for such Renewal Term. To the extent Lessee pays Lessor any Contingent Rent Payments in excess of the amounts set forth in this subsection in the Initial Term or any Renewal Term on a cumulative basis since the Effective Date, Lessor shall reimburse Lessee within five Days after notice by Lessee of such excess payment.
(e) Lessee shall make the Fixed Rent Payments and the Contingent Rent Payments in immediately available funds to an account in the United States of America designated from time to time to Lessee in writing by Lessor. The initial nominated account of Lessor is:
7
Colorado Business Bank
ABA #: 102003206
Account Name: AEC-TH, LLC
Account #: 3286236
(f) Any Rent required to be paid under this Section 2.2 that is not so paid (unless subject to a good faith dispute) will bear interest from the date on which Rent was required to be paid to the date such Rent is actually received by Lessor at an effective annual rate equal to the Interest Rate. In the event of a dispute with respect to any Rent pursuant to this Section 2.2, the Parties shall continue to perform their obligations as required hereunder. Upon resolution of such dispute, the Rent, if any, determined to be owing by Lessee to Lessor (by agreement of the Parties or final determination of a court of competent jurisdiction) shall be paid within five Business Days following such resolution, together with interest (using the interest rate described above) from the date Lessee was required to pay the disputed amount.
(g) Attached hereto as Exhibit C is an illustration of how any payments to be made under this Section 2 would be made under certain circumstances.
2.3 Tax Ownership . The Parties agree that for federal income tax purposes, (a) the transactions described in the Existing Lease shall be considered as a taxable installment sale of the Facility, (b) the transactions described in the Exchange Agreement and in this Lease shall be treated as a like-kind exchange under Section 1031 of the Code of the facility leased pursuant to the Existing Lease for the New Facility, and (c) the tax treatment of Contingent Rent Payments made by Lessee to Lessor under the terms of this Lease will be governed by the principles of Treasury Regulation section 1.1275-4(c). The Parties to agree to report the transactions consistently with such characterization. Lessee will provide Lessor with (i) an allocation of the Initial Term Fixed Rent Payments under this Lease between interest and principal components and Lessee shall complete Form 8594 and furnish Lessor with a copy within 120 Days after the Effective Date, (ii) an allocation of the Renewal Term Fixed Rent Payments under any Renewal Term within 90 Days after the commencement of such Renewal Term, and (iii) an allocation of each Contingent Rent Payment between interest and principal components within 45 Days after such payment is made (each such allocation, a Draft Allocation ). Lessor shall review the Draft Allocation and provide any objections to Lessee within 30 Days after the receipt thereof. In the event Lessor does not object to Lessees Draft Allocation, such Draft Allocation shall be final (the Final Allocation ) and the Parties shall report such Final Allocation for tax purposes and file tax returns in a manner consistent with such mutually agreed Final Allocation. If Lessor raises objections to the Draft Allocation, the Parties will negotiate in good faith to resolve such objection(s). If the Parties are unable to agree on the Draft Allocation within 14 Days after Lessor raises such objections, the Parties shall refer such dispute to an independent nationally recognized accounting firm (the Independent Accountant ), which Independent Accountant shall make a final and binding determination as to all matters in dispute with respect to the Draft Allocation (and only such matters) within 30 Days and promptly shall notify the Parties in writing of its resolution. Each Party shall bear and pay one-half of the fees and other costs charged by the Independent Accountant.
2.4 Title to Facility . Title to the Facility leased herein shall be and at all times during the Term remain in Lessor. During the Term, Lessee shall neither remove nor ermit removal of any serial number, model, number, name, or any other identification of ownership from the Facility.
8
2.5 Maintenance . During the Term, Lessee agrees, at its own cost and expense, to keep the Facility in good repair, condition, and working order, will furnish all parts, mechanisms, devices, and labor required to keep the Facility in such condition, normal wear and tear excepted, and will pay all costs of the Facilitys operation.
2.6 Insurance . Lessor has obtained and shall maintain during the Term such insurance (including the coverages, limits, deductibles, and retentions) as set forth in Exhibit B hereto and shall provide certificates evidencing the existence of such policies of insurance to Lessee within 10 Days after the Effective Date.
2.7 Loss and Damage; Casualty . Lessee hereby assumes and will bear the entire risk of loss of, theft of, requisition of, damage to or destruction of an item (collectively, a Casualty ) comprising the Facility from any cause whatsoever. In the event of a Casualty, Lessee shall at its option either (a) repair or replace the damaged or destroyed portion of the Facility at its own expense in which event Lessor shall assign to Lessee all property damage insurance proceeds received by Lessor or to which Lessor is entitled arising out of such Casualty, or (b) terminate the Lease.
2.8 Taxes . Lessee shall at all times during the Term pay all property taxes that are imposed upon the Facility or Lessees use thereof.
2.9 Personal Property . The Facility herein leased is, and shall at all times during the term hereof remain, personal property, notwithstanding that the Facility, or any part of it, may now be or hereafter become in any manner attached to, embedded in, or permanently resting on real property or any building or improvement thereon, or attached in any manner to what is permanent, as by means of cement, plaster, nails, bolts, screws, or the like.
2.10 Lessees Right to Possession . During the Term, Lessee shall have the right to retain possession of the Facility herein leased at the power plant known as the Thomas Hill Energy Center located near Clifton Hill, Missouri or at any other location Lessee may choose to place the Facility.
2.11 Permitted Uses . Lessee shall only use the Facility for the production of Refined Coal.
2.12 Location . Lessee shall have the right from time to time during the Term to relocate the Facility at Lessees expense to such other site as may be selected by Lessee.
2.13 Assignment of Warranties . Lessor hereby assigns to Lessee all warranties to which Lessor may have rights applicable to the Facility or any portion thereof provided by any manufacturers, designers, and constructors of the Facility or any portion thereof. Lessor agrees to take such other action as may be necessary to effectuate the assignment granted to Lessee pursuant to this Section 2.13.
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ARTICLE III
TERM
3.1 Term .
(a) The Term of this Lease (the Term ) will consist of: (i) the Initial Term and (ii) the Renewal Terms, if any. The Initial Term shall commence on the Effective Date and, unless sooner terminated pursuant to any of the terms hereof, end on December 31, 2012.
(b) Unless sooner terminated in accordance with any of the terms hereof, the Term shall automatically renew for successive one year terms after the expiration of the Initial Term (each, a Renewal Term ) until the date that is ten (10) years after the Placed-in-Service Date (with the final Renewal Term for a pro rata year). Thereafter, if the Section 45 Credit for Refined Coal produced by the Facility is extended, Lessee shall be entitled in its sole discretion to terminate this Lease. If Lessee does not elect to exercise its termination right, a Renewal Term shall automatically commence and this Lease shall continue to renew for successive Renewal Terms thereafter until the termination of the Section 45 Credit for Refined Coal produced by the Facility.
(c) Lessee may terminate this Lease on June 29, 2020 by providing three (3) months prior written notice to Lessor.
(d) Lessee may terminate this Lease by written notice effective immediately to Lessor if the Total Operating Expenses paid by Lessee with respect to any two consecutive Quarters exceed 140% of the projected operating costs of the Facility for such two consecutive Quarters as set forth on Schedule 2.
(e) Lessee may terminate this Lease by written notice to Lessor if a Tax Event occurs, though not during the Initial Term in the case of a Tax Event described in clauses (a)(iii) and (a)(iv) of the definition of Tax Event.
(f) Lessee may terminate this Lease by notice to Lessor if (i) any of the representations and warranties of Lessor contained in the Exchange Agreement are not true in all material respects as of the date made, and such representations and warranties are not made true by Lessor within 30 Days after notice from Lessee, or (ii) Lessor fails to perform in any material respect any of its obligations hereunder or under the Exchange Agreement and such failure is not cured within 30 Days after notice from Lessee.
(g) Lessee may terminate this Lease by notice to Lessor if the Refined Coal Sale Agreement or the Technology Sub-License terminates or is terminated or if any Lessor Guaranty ceases to be in full force and effect or any Lessor Guarantor shall so assert in writing.
(h) Lessor may terminate this Lease by notice to Lessee if (i) any of the representations and warranties of Lessee contained in the Exchange Agreement are not true in all material respects as of the date made, and such representations and warranties are not made true by Lessee within 30 Days after notice from Lessor, (ii) Lessee fails to pay any undisputed installment of Rent due hereunder and such failure is not cured within 15 Business Days after notice from Lessor, (iii) the Lessee Guaranty is terminated without being replaced by a new
10
guaranty on substantially similar terms as the Lessee Guaranty from a Person having an Investment Grade rating or (iv) Lessee otherwise fails to perform in any material respect any of its obligations hereunder or under the Exchange Agreement and such failure is not cured within 30 Days after notice from Lessor.
(i) Lessee may terminate this Lease if, in the good faith judgment of Lessee, (i) equipment at the Facility requires replacement or modification or if the Facility needs to be relocated and (ii) the anticipated cost of such replacement, modification or relocation would result in the Facility having a new placed-in-service date.
(j) Lessee may terminate this Lease as of the end of the Initial Term by providing notice of such termination to Lessor on or before July 1, 2012.
(k) Lessee may terminate this Lease by notice to Lessor if the sale to Unrelated Persons of Refined Coal produced in the Facility for any two consecutive Months (excluding any period of Force Majeure) fails to generate Section 45 Credits or if the amount of allowable Section 45 Credits is reduced under Section 45(e)(8)(B) of the Code * of the amount of Section 45 Credits that would have been available if there had been no such reduction.
(l) Lessee may terminate this Lease by notice to Lessor if a Regulatory Event occurs.
(m) Lessee may terminate this Lease by notice to Lessor if, for reasons other than Force Majeure, Refined Coal produced in the Facility fails to satisfy the emissions reduction requirements set forth in Code Section 45(c)(7)(B) or the Refined Coal Guidance, resulting in, or likely to result in, a material loss of Section 45 Credits by Lessee and, despite the use by Lessee of reasonable efforts, the problem causing such production of Refined Coal to fail to satisfy the emissions reduction requirements set forth in Code Section 45(c)(7)(B) or the Refined Coal Guidance is not cured within 14 Days after Lessee becomes aware of such problem (or in the event such problem is not curable within 14 Days, within such additional period (not to exceed 14 Days) as is reasonably necessary to cure such problem if such violation is curable but cannot be reasonably cured within such 14 Day period, and if Lessee uses reasonable efforts to pursue such cure during such 14 Day period).
3.2 Effect of Expiration or Termination . Upon expiration or termination of this Lease pursuant to Section 3.1 above, there will be no liability or obligation on the part of Lessee or Lessor (or any of their respective Affiliates or Representatives), except that (a) each Party shall continue to be liable for any breach of this Lease by it occurring prior to such termination, (b) each Party shall pay any amounts outstanding and payable by it hereunder as of the date of termination, (c) Lessee shall continue to pay the Initial Term Fixed Rent Payments pursuant to the terms of Section 2.2(b) and any Renewal Term Fixed Rent Payments pursuant to the terms of Section 2.2(c), (d) the Parties will be subject to the indemnity obligations set forth in Article 5, and (e) the provisions of Sections 2.2(b), (c), and (d) shall continue to apply. Upon the expiration or the termination of this Lease for any reason, Lessee will discontinue all use of the Facilities.
3.3 Lessees Duty to Surrender . At the expiration or earlier termination of the Term, Lessee shall surrender to Lessor the possession of the Facility leased hereunder.
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ARTICLE IV
FORCE MAJEURE
4.1 Force Majeure .
(a) If Lessee is rendered unable by Force Majeure to carry out, in whole or part, its obligations (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) under this Lease, Lessee shall give notice orally to Lessor as soon as reasonably practicable, followed within five Business Days thereafter by a written notice setting forth, in reasonable detail, the cause or causes constituting such Force Majeure. The obligations of Lessee (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) shall be suspended to the extent made necessary, and for no longer than is required, by the cause or causes constituting such Force Majeure.
(b) The term Force Majeure means any event that is beyond the reasonable control and occurs without the fault or negligence of Lessee, that by the exercise of reasonable diligence or the incurrence of reasonable expense Lessee is unable to prevent or overcome, and that wholly or partly prevents the performance of any of the obligations of Lessee (other than the obligation to make payments then due or becoming due with respect to performance prior to the event). Force Majeure includes the following events to the extent they present the characteristics described in the preceding sentence: acts of God or of the public enemy; interruptions in or failure of transportation of coal or Refined Coal or other materials by third parties; fire, flood, explosion or other serious casualty; severe weather; war (whether declared or not); mobilization, revolution, riot, or civil commotion; legal intervention; regulation or order of Governmental Authority; changes in Permit requirements that prevent the Parties from operating the Facility; inability to obtain any Permit notwithstanding commercially reasonable efforts to obtain such Permit; strike; and lock-out or other labor disputes. A lack or unavailability of money shall not constitute Force Majeure.
(c) Lessee shall initiate and continue commercially reasonable good faith efforts to remedy the Force Majeure with all reasonable dispatch; provided, however , that the settlement of strikes, lockouts, or other labor disputes shall be totally within the discretion of Lessee.
ARTICLE V
INDEMNIFICATION, LIMITATION OF LIABILITY AND REMEDIES
5.1 Lessees Right to Indemnification . Lessor shall indemnify the Lessee Indemnified Parties in accordance with, and subject to, the terms of the Exchange Agreement from and against any and all Losses incurred by the Lessee Indemnified Parties to the extent arising out of or caused by any breach of this Lease by Lessor.
5.2 Lessors Right to Indemnification . Lessee shall indemnify the CCS Indemnified Parties in accordance with, and subject to, the terms of the Exchange Agreement from and against any and all Losses incurred by the CCS Indemnified Parties to the extent arising out of or caused by any breach of this Lease by Lessee.
12
5.3 Claims Procedures and Limitations . All claims for indemnification shall be subject to the procedures and limitations set forth in the Exchange Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Confidentiality .
(a) Each Party shall maintain the terms of this Lease in confidence and shall not disclose any information concerning the terms, performance or administration of this Lease to any other Person; provided that a Party may disclose such information: (i) to any of such Partys Group, (ii) to any prospective member of such Partys Group, (iii) to any actual or prospective purchaser of all or a portion of such Partys interest in the Facility and (iv) to any Person providing or evaluating a proposal to provide financing to the recipient Party or any direct or indirect owner of such Party; provided in each case that the recipient Party shall provide to each Person to which disclosure is made a copy of this Section 6.1 and direct such Person to treat such information confidentially, and the recipient Party shall be liable for any breach of the terms of this Section 6.1 by such Persons to which it makes any such disclosure. The foregoing restrictions will not apply (A) to information that is or becomes generally available to the public otherwise than as a result of disclosure by the recipient Party, (B) to information that is already in, or subsequently comes into, the recipient Partys possession, provided that the source of such information was not, to the recipient Partys knowledge, obligated to keep such information confidential, (C) to information that is required to be disclosed pursuant to Law or stock exchange rules and regulations or is otherwise subject to legal, judicial, regulatory or self-regulatory requests for information or documents or (D) subject to Section 6.1(b) below, to the tax structure or tax treatment of the transaction.
(b) Each Party may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transaction, provided, however, that any such information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The tax structure and tax treatment of the transaction includes only those facts that may be relevant to understanding the purported or claimed U.S. federal and state income tax treatment or tax structure of the transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any parties involved in any of the transactions contemplated by this Lease or the documents to be delivered in connection herewith.
(c) If any Party is required to disclose any information required by this Section 6.1 to be maintained as confidential in a judicial, administrative or governmental proceeding, such Party shall give the other Party at least 10 Days prior written notice (unless less time is permitted by the applicable proceeding) before disclosing any such information in any said proceeding and, in making such disclosure, the Party required to disclose the information shall disclose only that portion thereof required to be disclosed and shall cooperate with the other Party in the other Partys attempts to seek to preserve the confidentiality thereof, including if such Party seeks to obtain protective orders and/or any intervention.
13
6.2 Tax Return Information and Tax Proceedings . The provisions of Section 4.4 of the Exchange Agreement shall apply to this Lease.
6.3 Amendment, Modification and Waiver . This Lease may not be amended or modified except by an instrument in writing signed by each of the Parties. Any failure of a Party to comply with any obligation, covenant, agreement, or condition contained herein may be waived only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any other failure.
6.4 Severability . If any term or other provision of this Lease is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other conditions and provisions of this Lease shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Lease so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
6.5 Expenses and Obligations . Except as otherwise expressly provided in this Lease, all costs and expenses incurred by the Parties in connection with this Lease and the consummation of the transactions contemplated hereby shall be borne solely and entirely by the Party which has incurred such expenses.
6.6 Parties in Interest . This Lease shall be binding upon and, except as provided below, inure solely to the benefit of each Party and its successors and permitted assigns, and nothing in this Lease, express or implied, is intended to confer upon any other Person (other than the Lessee Indemnified Parties and CCS Indemnified Parties as provided in Article 5) any rights or remedies of any nature whatsoever under or by reason of this Lease).
6.7 Notices . All notices and other communications hereunder shall be in writing, unless otherwise specified, and shall be deemed given if delivered personally, by a nationally recognized overnight courier, by facsimile or electronic mail, or mailed by registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):
(a) | If to Lessee, to: |
GS RC Investments LLC |
c/o Goldman Sachs & Co. |
200 West Street |
New York, New York 10282 |
Attention: Michael Feldman |
Fax: (212) 428-3868 |
Email: Michael.Feldman@gs.com |
14
With a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Attention: F. B Cochran III
Fax: (713) 615-5368
Email: fcochran@velaw.com
If to Lessor, to:
AEC-TH, LLC 3300
South Parker Road, Suite 310
Aurora, CO 80014
Attention: Charles S. McNeil
Fax: (303) 751-9210
Email: cmcneil@nexgen-group.com
With copies (which shall not constitute notice) to:
Hogan Lovells US LLP
1200 Seventeenth Street, Suite 1500
Denver, CO 80202
Attention: Tyler Harvey
Fax: (303) 899-7333
Email: tyler.harvey@hoganlovells.com
Clean Coal Solutions, LLC
3300 South Parker Road, Suite 310
Aurora, CO 80014
Attention: Brian Humphrey
Fax: (303 751-9210
Email: bhumphrey@nexgen-group.com
All notices and other communications given in accordance herewith shall be deemed given (i) on the date of delivery, if hand delivered, (ii) on the date of receipt, if faxed or emailed (provided a hard copy of such transmission is dispatched by first class mail within 48 hours), (iii) three Business Days after the date of mailing, if mailed by registered or certified mail, return receipt requested, and (iv) one Business Day after the date of sending, if sent by a nationally recognized overnight courier; provided, however, that a notice given in accordance with this Section 6.7 but received on any Day other than a Business Day or after business hours in the place of receipt, will be deemed given on the next Business Day in that place.
15
6.8 Counterparts . This Lease may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.
6.9 Entire Agreement . This Lease (which term shall be deemed to include the Exhibits and Schedules hereto) constitutes the entire agreement of the Parties and supersedes all prior agreements, letters of intent and understandings, both written and oral, among the Parties with respect to the subject matter hereof. There are no representations or warranties, agreements, or covenants other than those expressly set forth in this Lease.
6.10 Governing Law; Choice of Forum; Waiver of Jury Trial . THIS LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE ARISING OUT OF OR RELATING TO THIS LEASE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
6.11 Publicity . Lessor agrees that it will not, without the prior written consent of Lessee, in each instance, (a) use in advertising, publicity, or otherwise the name of GS, or any Affiliate thereof (including Lessee), or any partner or employee of GS, or any Affiliate thereof (including Lessee), nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by GS, or any Affiliate thereof (including Lessee), or (b) represent, directly or indirectly, that any product or any service provided by Lessor has been approved or endorsed by GS, or any Affiliate thereof (including Lessee). No public announcement of any kind regarding the existence or terms of this Lease shall be made without the prior written consent of the Parties. For the avoidance of doubt, nothing in this Section 6.11 shall limit Lessors obligation to disclose information pursuant to Section 6.1.
6.12 Assignment . Neither Party shall assign, sublease or otherwise transfer (collectively, an Assignment ) this Lease or any of its rights hereunder without the prior written consent of the other Party, and any purported Assignment made without such prior written consent shall be void. Notwithstanding the foregoing:
(a) either Party may, without the need for consent from the other Party, make an Assignment of this Lease to an Affiliate of such Party provided that such Affiliate assumes all of the obligations of the Party making the Assignment and the Lessor Guarantees or the Lessee Guaranty remain in effect, as applicable, with respect to the obligations of such Affiliate, and in such event the assigning Party shall be released from its obligations under this Lease, except for those obligations that arose prior to such Assignment;
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(b) Lessee may, without the need for consent from Lessor, make an Assignment of this Lease to any Person (i) succeeding to all or substantially all of its assets, provided such Person has, or its obligations under this Lease are guaranteed by a Person who has, an Investment Grade rating, or (ii) after the date that is ten (10) years after the Effective Date if the Section 45 Credit for Refined Coal produced by the Facility has been extended beyond such date; and
(c) Lessor may, with the prior written consent of Lessee, make an Assignment of this Lease to any Person succeeding to all or substantially all of its assets provided that (i) the acquiring Person assumes all obligations of Lessor hereunder, and (ii) either (A) the Lessor Guarantees remain in full force and effect with respect to the Person succeeding to all or substantially all of Lessors assets, or (B) the Lessor Guarantees are replaced by a new guaranty or guarantees on the same terms as the Lessor Guarantees covering such assumed obligations from a Person having an Investment Grade rating, and in such event Lessor shall be released from its obligations under this Lease, except for those obligations that arose prior to such Assignment.
6.13 Private Letter Ruling . If Lessee or any of its Affiliates decides to pursue a request for a PLR, determination letter, Pre-Filing Agreement or other written guidance from the IRS (the IRS Guidance ) with respect to any aspect of the transactions contemplated by this Agreement or any of the other Transaction Documents or in relation to the New Facility, the Parties shall consider in good faith and make such amendments to this Agreement as may be necessary to permit Lessee to obtain the IRS Guidance. Neither Party shall be required to agree to any such amendment that it reasonably determines, in good faith, is adverse to such Party in any material respect; provided that Lessor shall not withhold its agreement to any such amendment if Lessee has agreed to fully compensate Lessor for any adverse economic effect on Lessor resulting from such amendment and such amendment would not cause any material adverse effect on Lessor for which it cannot adequately be compensated by Lessee.
[Signature page follows.]
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IN WITNESS WHEREOF, each Party has caused this Lease to be executed on its behalf as of on the day and year first above written.
AEC-TH, LLC | ||
By: Clean Coal Solutions, LLC, |
||
its managing member |
By:/s/ Clayt M. Reynolds | ||
Name: Clayt M. Reynolds | ||
Title: Authorized Signatory |
GS RC INVESTMENTS LLC |
By: /s/ Michael Feldman |
Name: Michael Feldman |
Title: Authorized Signatory |
Signature Page to Equipment Lease (Thomas Hill)
SCHEDULE 1
[See Attached]
Schedule 1
Thomas Hill |
||||||||||||||||||||||||||||||||||||||||
9/30/2010 | 12/31/2010 | 3/31/2011 | 6/30/2011 | 9/30/2011 | 12/31/2011 | 3/31/2012 | 6/30/2012 | 9/30/2012 | 12/31/2012 | |||||||||||||||||||||||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3/31/2013 | 6/30/2013 | 9/30/2013 | 12/31/2013 | 3/31/2014 | 6/30/2014 | 9/30/2014 | 12/31/2014 | 3/31/2015 | 6/30/2015 | |||||||||||||||||||||||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
9/30/2015 | 12/31/2015 | 3/31/2016 | 6/30/2016 | 9/30/2016 | 12/31/2016 | 3/31/2017 | 6/30/2017 | 9/30/2017 | 12/31/2017 | |||||||||||||||||||||||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3/31/2018 | 6/30/2018 | 9/30/2018 | 12/31/2018 | 3/31/2019 | 6/30/2019 | 9/30/2019 | 12/31/2019 | 3/31/2020 | 6/30/2020 | |||||||||||||||||||||||||||||||
Fixed Rent |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
9/30/2020 | 12/31/2020 | 3/31/2021 | 6/30/2021 | 9/30/2021 | 12/10/2021 | |||||||||||||||||||||||||||||||||||
Fixed Rent |
* | * | * | * | * | * | ||||||||||||||||||||||||||||||||||
Total: |
* |
Schedule 1
SCHEDULE 2
[See Attached]
Schedule 2
Thomas Hill |
||||||||||||||||||||||||||||||||||||||||
9/30/2010 | 12/31/2010 | 3/31/2011 | 6/30/2011 | 9/30/2011 | 12/31/2011 | 3/31/2012 | 6/30/2012 | 9/30/2012 | 12/31/2012 | |||||||||||||||||||||||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3/31/2013 | 6/30/2013 | 9/30/2013 | 12/31/2013 | 3/31/2014 | 6/30/2014 | 9/30/2014 | 12/31/2014 | 3/31/2015 | 6/30/2015 | |||||||||||||||||||||||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
9/30/2015 | 12/31/2015 | 3/31/2016 | 6/30/2016 | 9/30/2016 | 12/31/2016 | 3/31/2017 | 6/30/2017 | 9/30/2017 | 12/31/2017 | |||||||||||||||||||||||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3/31/2018 | 6/30/2018 | 9/30/2018 | 12/31/2018 | 3/31/2019 | 6/30/2019 | 9/30/2019 | 12/31/2019 | 3/31/2020 | 6/30/2020 | |||||||||||||||||||||||||||||||
Total Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
9/30/2020 | 12/31/2020 | 3/31/2021 | 6/30/2021 | 9/30/2021 | 12/10/2021 | |||||||||||||||||||||||||||||||||||
Total Operating Expenses |
* | * | * | * | * | * | ||||||||||||||||||||||||||||||||||
Total: |
* |
Schedule 2
Thomas HMI |
||||||||||||||||||||||||||||||||||||||||
9/30/2010 | 12/31/2010 | 3/31/2011 | 6/30/2011 | 9/30/2011 | 12/31/2011 | 3/31/2012 | 6/30/2012 | 9/30/2012 | 12/31/2012 | |||||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Facility maintenance, parts, repairs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
* | * | * | * | | |||||||||||||||||||||||||||||||||||
Additional start-up operating expenses |
* | * | * | * | | | | | | | ||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/31/2013 | 6/30/2013 | 9/30/2013 | 12/31/2013 | 3/31/2014 | 6/30/2014 | 9/30/2014 | 12/31/2014 | 3/31/2015 | 6/30/2015 | |||||||||||||||||||||||||||||||
Operating Expenses |
|
* |
|
* | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Facility maintenance, parts, repairs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
* | * | * | * | | |||||||||||||||||||||||||||||||||||
Additional start-up operating expenses |
| | | | | | ||||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2015 | 12/31/2015 | 3/31/2016 | 6/30/2016 | 9/30/2016 | 12/31/2016 | 3/31/2017 | 6/30/2017 | 9/30/2017 | 12/31/2017 | |||||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Facility maintenance, parts, repairs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
* | * | * | * | ||||||||||||||||||||||||||||||||||||
Additional start-up operating expenses |
| | | | | | ||||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3/31/2018 | 6/30/2018 | 9/30/2018 | 12/31/2018 | 3/31/2019 | 30 2019 | 9/30/2019 | 12/31/2019 | 3/31/2020 | 6/30/2020 | |||||||||||||||||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Labor |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Facility maintenance, parts, repairs |
* | * |
|
* |
|
* | * | * | * | * | * | * | ||||||||||||||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Insurance |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Property Tax |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Administrative support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technical support |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Audit |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Contingency |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
3-Year Term Insurance Expenses |
| * | * | |||||||||||||||||||||||||||||||||||||
Additional start-up operating expenses |
| | | | | | | | ||||||||||||||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | * | * | * | * | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total Operating Expenses/Budget |
1,754,448 | 1,754,448 | 1,786,351 | 1,786,351 | 1,786,351 | 1,786,351 | 1,819,212 | 1,819,212 | 1,134,162 | 1,534,262 | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/30/2020 |
12/31/2020 | 3/31/2021 | 6/30/2021 | 9/30/2021 | 12/10/2021 | |||||||||||||||||
Operating Expenses |
* | * | * | * | * | * | ||||||||||||||||
Labor |
* | * | * | * | * | * | ||||||||||||||||
Facility maintenance, parts, repairs |
* | * | * | * | * | * | ||||||||||||||||
Total Wheel Loader |
* | * | * | * | * | * | ||||||||||||||||
Utilities, phone, computer |
* | * | * | * | * | * | ||||||||||||||||
Insurance |
* | * | * | * | * | * | ||||||||||||||||
Property Tax |
* | * | * | * | * | * | ||||||||||||||||
Administrative support |
* | * | * | * | * | * | ||||||||||||||||
Technical support |
* | * | * | * | * | * | ||||||||||||||||
Sampling and analysis |
* | * | * | * | * | * | ||||||||||||||||
Audit |
* | * | * | * | * | * | ||||||||||||||||
Contingency |
* | * | * | * | * | * | ||||||||||||||||
3-Year Term Insurance Expenses |
* | * | ||||||||||||||||||||
Additional start-up operating expenses |
| |||||||||||||||||||||
Chemical Costs |
* | * | * | * | * | * | ||||||||||||||||
Chemical Agency Fee |
* | * | * | * | * | * | ||||||||||||||||
Operating Management Fee |
* | * | * | * | * | * | ||||||||||||||||
Technology sublicense fee |
* | * | * | * | * | * | ||||||||||||||||
Coal Yard Services |
* | * | * | * | * | * | ||||||||||||||||
Site Licensing Fee |
* | * | * | * | * | * | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Total Operating Expenses/Budget |
* | * | * | * | * | * | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Total: |
* |
Schedule 2
EXHIBIT A
FACILITY
All fixtures, equipment, machinery, parts and software, and other property constituting the refined coal production facility, consisting of the following components: a CyClean A granular material feed hopper system including weigh belt conveyors; the CyClean A equipment support and enclosure; a CyClean B liquid tote and containment; chemical pumps and associated chemical delivery system plumbing; motor control center; programmable logic control system; and all associated valves, fittings, equipment; located at the Thomas Hill Energy Center owned by Associated Electric Cooperative, Inc. and located at 5693 Highway F, Clifton Hill, Missouri 65244 including, without limitation, the equipment, parts, and other materials set forth below:
TAG NO. | EQUIPMENT NAME | Manufacturer | Model Number | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | * | |||
* |
* | * | N/A | |||
* |
* | * | N/A |
Exhibit A
EXHIBIT B
LESSOR INSURANCE
A. | Lessor shall carry and maintain (or cause to be carried and maintained) the following insurance coverages, or their equivalent in scope and amount. Each policy shall list the following as additional insureds (collectively, the Additional Insureds ): Lessee, all direct owners of Lessee and any Person owning a direct or indirect interest in any direct owner of Lessee, the site and the Utility, as their interests may appear. Lessor shall pay (or cause to be paid) the premiums required to maintain these policies in effect, unless otherwise stated. |
All Risks Property Damage Insurance . All Risks Property Damage Insurance in an amount sufficient to cover 100% of the replacement cost of the Facility.
Umbrella Liability Coverage . Insurance with limits of not less than $50,000,000 if available on a commercially reasonable basis, but in any event limits of not less than $25,000,000. At a minimum to provide umbrella limits over commercial liability, employers liability, and auto liability. Such coverage may be on a claims-made basis. Lessor shall immediately notify Lessee of any material dilution in the limit on such policy or policies, whether under this Lease or in connection with any other facility or underlying property.
Contractors Pollution Liability or Pollution Legal Liability . Insurance with limits of $10,000,000. Such insurance shall be obtained by Lessor at Lessees expense. Lessor shall immediately notify Lessee of any material dilution in the limit on such policy or policies, whether under this Lease or in connection with any other facility or underlying property.
B. | The insurance policies maintained pursuant hereto may be subject to such retentions and deductibles as are usual and customary for the risks involved under policies with limits described above. |
C. | Each insurance policy covering Lessors obligations under this Lease, or any other insurance in force for the personal property, fixtures or equipment of Lessor used in connection with this Lease, shall provide for a waiver of subrogation by the insurer in favor of the Additional Insureds. Such insurance provided to Additional Insureds shall apply on a primary basis not as excess of or contributing with any other insurance. |
D. |
All insurance policies shall be in a form reasonably acceptable to Lessee and shall be issued by an approved insurance company licensed and authorized to do business in the state of operation, and rated in Bests Insurance Reports (or similar publication of comparable standing) as A-VIII or better (or the then equivalent of such rating) or as approved by Lessee. As soon as practicable upon execution of this Lease and before commencing any performance hereunder, Lessor shall submit to Lessee certificates of insurance evidencing the existence of the insurance required hereunder. Certificates of renewal or replacement policies shall be delivered to Lessee within 10 Business Days |
Exhibit B-1
after the date of expiration or termination of the expired or replaced insurance policy. If requested by Lessee, Lessor shall provide Lessee an original or certified copy of any insurance policy maintained by Lessor pursuant to the terms hereof. |
E. | All primary and umbrella liability policies shall contain the following clause: |
Thirty days written notice of cancellation, material change deemed adverse to Lessees interest or nonrenewal shall be given to Lessee before any cancellation, material change or nonrenewal of this policy will be effected, except ten days will apply for cancellation due to nonpayment of premium.
F. | Lessor and its Representatives shall cooperate with Lessee in connection with the collection of any insurance monies that may be due Lessee in the event of loss, and Lessor and its Representatives shall execute and deliver all such instruments that may be required for the purpose of obtaining the recovery of any such insurance monies. |
G. | Lessor shall maintain the insurance described herein until expiration of the Term or termination of this Lease and the issuance of a final certificate of insurance. |
H. | The following provisions shall apply with respect to the insurance coverages required in this Lease: |
1. | Lessor will not intentionally do, allow or permit anything to be done during the performance of Lessors obligations under this Lease that will affect, impair or contravene any policies of insurance that may be carried on the Facilities, or any part thereof, or the use thereof, against loss, damage or destruction by fire, casualty, public liability, or otherwise. |
2. | Compliance with any of the insurance requirements stipulated in this Lease will not in itself be construed to be limitation of liability of Lessor or its representatives. |
I. | In the event Lessor fails to effect, maintain or renew any of the insurance required hereunder in the required amounts, or to pay the premiums therefor, or to deliver to Lessee any evidence of such insurance or payment therefor as required hereunder, then in any such events Lessee at its option, but without obligation so to do, may procure such insurance. Any sums expended by Lessee to procure any such insurance shall be payable by Lessor on demand, together with interest at the interest rate thereon from the date such sums were expended; provided, however, it is expressly understood that procurement by Lessee of any such insurance shall not be deemed to waive or release the default of Lessor, or the right of Lessee at its option, to exercise the remedies set forth in this Lease upon the occurrence of a default. Unless otherwise specified, Lessee shall not be responsible for obtaining or maintaining any insurance required to be obtained or maintained by Lessor, and shall not, by reason of accepting, rejecting, approving or obtaining any such insurance, incur any liability for the existence, nonexistence, form or legal sufficiency thereof, the solvency of any insurer or the payment of any losses, and Lessor hereby expressly assumes full responsibility therefor and liability, if any, thereunder. |
Exhibit B-2
J. | In addition to the above, Lessor shall maintain all insurance and surety bonds for any other risks or hazard that now or hereafter are customarily insured against by Lessor of like size and type in the locality of the site as Lessor deems appropriate. |
K. | All claims-made liability coverages shall remain in full force and effect for three years after the end of the Term. All other liability coverages shall remain in full force and effect until the end of the Term. |
Exhibit B-3
EXHIBIT C
SECTION 2 PAYMENTS
Expected Annual Production Output (in MMs of Tons) |
* | * | * | |||||||||||||||
Quarterly Production Output (in MM of Tons) |
* | * | * | |||||||||||||||
* | * | * | ||||||||||||||||
Payment | Sample | Sample | Sample | |||||||||||||||
Frequency | Period | Period | Period | Notes | ||||||||||||||
Production Costs |
||||||||||||||||||
Facility Operating Costs |
Monthly | * | * | * | Actual costs incurred are reimbursable to CCSS | |||||||||||||
Operating Fee |
Monthly | * | * | * | * /ton of refined coal produced paid to CCSS | |||||||||||||
Chemical Agency Fee |
Monthly | * | * | * | * of chemicals purchased paid to CCSS | |||||||||||||
Chemical Additive |
Monthly | * | * | * | Actual costs incurred paid direct to vendors | |||||||||||||
Coal Handling |
Quarterly | * | * | * | * of refined coal produced paid to AECI | |||||||||||||
Site License |
Quarterly | * | * | * | Variable $/ton of refined coal produced paid to AECI | |||||||||||||
Technology Sublicense Fee |
Annual | * | * | * | Paid to CCS | |||||||||||||
Rent Payments |
||||||||||||||||||
Fixed Rent |
Quarterly | * | * | * | Based upon set fixed payment schedule; paid to AEC-NM | |||||||||||||
Contingent Rent Currently Payable |
Quarterly | * | * | * | See calculation below; paid to AEC-NM | |||||||||||||
Assumptions |
||||||||||||||||||
Quarterly Facility Operating Costs
|
* | * | * | |||||||||||||||
Operating Fee/ton Produced |
* | * | * | |||||||||||||||
Chemical Agency Fee |
* | * | * | |||||||||||||||
Chemical Additive Cost/ton Produced |
* | * | * | |||||||||||||||
Coal Handling/ton Produced |
* | * | * | |||||||||||||||
Site License Fee/ton Produced |
* | * | * | |||||||||||||||
Technology Sublicense Fee |
* | * | * | |||||||||||||||
Contingent Rent Payment Calculation |
||||||||||||||||||
Quarterly Tons Produced |
* | * | * | |||||||||||||||
Value of Tax Credit (2012) |
* | * | * | |||||||||||||||
|
|
|
|
|
|
|||||||||||||
Production Tax Credits |
* | * | * | |||||||||||||||
Monetization Rate |
* | * | * | |||||||||||||||
|
|
|
|
|
|
|||||||||||||
Amount Paid |
* | * | * | |||||||||||||||
Less: |
||||||||||||||||||
Production Costs |
* | * | * | |||||||||||||||
Fixed Rent |
* | * | * | |||||||||||||||
Amortization of Fixed Rent |
||||||||||||||||||
Calculated Contingent Rent |
* | * | * | |||||||||||||||
|
|
|
|
|
|
Exhibit C
Exhibit 10.49
Execution Copy
AMENDMENT #2
TO
TECHNOLOGY SUBLICENSE AGREEMENT
This AMENDMENT #2 TO TECHNOLOGY SUBLICENSE AGREEMENT (this Amendment ) is dated as of December 15, 2011 (the Effective Date ) and made by and among GS RC Investments LLC, a Delaware limited liability company ( Sublicensee ), Clean Coal Solutions, LLC (f/k/a ADA-NexCoal, LLC), a Colorado limited liability company ( Sublicensor ), and ADA-ES INC., a Colorado corporation ( Licensor ). Sublicensee, Sublicensor, and Licensor are sometimes hereinafter individually referred to as a Party and collectively as the Parties .
RECITALS:
WHEREAS , the Parties have previously entered into that certain Technology Sublicense Agreement, dated as of June 29, 2010, as amended by that certain Omnibus Amendment, dated August 10, 2010, as further amended by that certain Amendment to Technology Sublicense Agreement, dated November 21, 2011 (the Sublicense Agreement ).
WHEREAS , Sublicensee and AEC-TH, LLC ( AEC-TH ) have previously entered into that certain Equipment Lease, dated as of June 29, 2010 (the Existing TH Equipment Lease ), whereby AEC-TH leased to Sublicensee a refined coal production facility (the Existing TH Facility ).
WHEREAS , simultaneously with the execution of this Amendment, Sublicensee, Sublicensor and AEC-TH are entering into an agreement for the lease of a redesigned refined coal production facility, newly constructed and owned by AEC-TH (the New TH Facility ) and the termination of the Existing TH Equipment Lease.
WHEREAS , the Parties desire to amend the Sublicense Agreement as set forth herein.
NOW, THEREFORE , in consideration of the foregoing recitals, the promises and agreements set forth in this Amendment, and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties agree as follows:
ARTICLE I
AMENDMENTS TO SUBLICENSE AGREEMENT
Section 1.1 Amendments to Article I . The definition of Equipment Leases in Article I of the Sublicense Agreement shall hereby be deleted in its entirety and replaced by the following definition:
Equipment Leases means, collectively (a) that certain Equipment Lease dated as of November 21, 2011, between AEC-NM, LLC and Sublicensee and (b) that certain Equipment Lease dated as of December 14, 2011, between AEC-TH, LLC and Sublicensee.
Section 1.2 Amendment to Exhibit B . The description of the Existing TH Facility on Exhibit B shall be deleted in its entirety and replaced with the description of the New TH Facility, attached as Exhibit A hereto.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 Effectiveness and Ratification . All of the provisions of this Amendment shall be effective as of the Effective Date. Except as specifically provided for in this Amendment, the terms of the Sublicense Agreement shall remain in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Sublicense Agreement, the terms of this Amendment shall prevail and govern.
Section 2.2 Amendment; Entire Agreement . This document contains the entire agreement between the parties hereto with respect to the subject matter hereof. There are no oral agreements between the parties hereto with respect to the subject matter hereof.
Section 2.3 Governing Law . This Amendment shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law principles of such state.
Section 2.4 Counterparts . This Amendment may be signed in two counterparts, each of which taken together shall constitute one instrument, and each of the parties hereto may execute this Amendment by signing either such counterpart. This Amendment shall become effective upon execution by both of the parties hereto. A facsimile copy will be deemed an original.
[Signature page follows.]
2
IN WITNESS WHEREOF , the Parties have caused this Amendment to be executed and delivered as of the Effective Date.
ADA-ES, INC. | ||||
By: |
/s/ Mark H. McKinnies |
|||
Name: Mark H. McKinnies | ||||
Title: Senior Vice President and CFO |
CLEAN COAL SOLUTIONS, LLC | ||
By: | /s/ Clayt M. Reynolds | |
Name: Clayt M. Reynolds | ||
Title: Authorized Signatory |
GS RC INVESTMENTS LLC | ||
By: | /s/ Michael Feldman | |
Name: Michael Feldman | ||
Title: Authorized Signatory |
Signature Page to
Amendment #2 to Technology Sublicense Agreement
EXHIBIT A
Filed as Exhibit B to Exhibit 10.47 to this Report on Form 10-K
Exhibit A
Exhibit 10.50
LIMITED GUARANTY
LIMITED GUARANTY (this Guaranty ) dated as of December 15, 2011 by ADA-ES, Inc., a Colorado corporation (the Guarantor ), in favor of GS RC INVESTMENTS LLC, a Delaware limited liability company (the Guaranteed Party ). The Guarantor and the Guaranteed Party may hereinafter be referred to individually as a Party or collectively as the Parties .
PRELIMINARY STATEMENTS
A. Clean Coal Solutions, LLC, a Colorado limited liability company ( CCS ), desires to have the Guaranteed Party enter into certain Transaction Documents (as defined below) with AEC-TH, LLC, a Colorado limited liability company ( AEC-TH ), Clean Coal Solutions Services, LLC, a Colorado limited liability company ( CCSS ) and CCS (CCS, together with AEC-TH and CCSS, the Companies and each, individually, a Company ).
B. The Guaranteed Party is willing to enter into the Transaction Documents with the Companies only on the condition, among others, that certain of the Companies obligations under such Transaction Documents are guaranteed by the Guarantor, on the terms set forth in this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the Guaranteed Party to enter into the Transaction Documents, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows:
1. Definitions .
1.1 Defined Terms . As used in this Guaranty, the capitalized terms defined in the preamble, preliminary statements and other sections of this Guaranty shall have the respective meanings specified therein; capitalized terms not defined in this Guaranty shall have the meanings given to such terms in the Exchange Agreement, dated as of the date hereof, among CCS, AEC-TH, and the Guaranteed Party (the Exchange Agreement ), and the following terms shall have the following meanings:
Obligations shall mean, without duplication, (i) the performance by the Companies of their respective obligations as set forth in the Transaction Documents and (ii) the payment of all payment obligations of the Companies to the Guaranteed Party, whether direct or indirect, absolute or contingent, due or to become due, which may arise under or in connection with the Transaction Documents (including, without limitation, interest or other charges as would have accrued on any portion of the payment obligations but for the commencement of any bankruptcy or insolvency proceedings.
Transaction Documents shall mean (i) the Equipment Lease, dated as of the date hereof by and between AEC-TH and the Guaranteed Party, (ii) the Operation and Maintenance Agreement (Thomas Hill), dated as of June 29, 2010, by and between the Guaranteed Party and CCSS, as amended by that certain Omnibus Amendment #3 to Transaction Documents, dated as of the date hereof, (iii) the Exchange Agreement, (iv) the Chemical Additives Supply Agency Agreement (Thomas Hill), dated as of June 29, 2010, by and between CCSS and the Guaranteed Party, as amended by that certain Omnibus Amendment #3 to Transaction Documents, dated as of the date hereof, (v) the Technology Sublicense Agreement, dated as of June 29, 2010, among the ADA-ES, Inc., a Colorado corporation, the Guaranteed Party, and CCS, as amended by that certain Omnibus Amendment, dated August 10, 2010, as further amended by that certain Amendment to Technology
Sublicense, dated as of November 21, 2011, and as further amended by that certain Amendment #2 to Technology Sublicense, dated as of the date hereof and (vi) Agreement to Lease, dated as of June 29, 2010, among CCS, AEC-NM, LLC, AEC-TH and the Guaranteed Party as amended by that certain Omnibus Amendment, dated, August 10, 2010.
1.2 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be modified by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument of other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with the provisions hereof and thereof; (b) any reference herein to any person shall be construed to include such persons successors and permitted assigns; (c) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Guaranty in its entirety and not to any particular provision of this Guaranty; and (d) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Article and section headings used herein are for convenience of reference only, are not part of this Guaranty and shall not affect the construction of, or be taken into consideration in interpreting, this Guaranty.
2. Guaranty .
2.1 Irrevocable Guaranty .
(a) The Guarantor hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, to the Guaranteed Party and its successors, permitted indorsees, permitted transferees and permitted assigns that, upon written demand of payment made by the Guaranteed Party to the Guarantor, (i) all payment Obligations will be promptly paid in full, in United States dollars, when due in accordance with the provisions of the Transaction Documents and (ii) all performance Obligations will be promptly and fully performed when due or required in accordance with the terms of the Transaction Documents.
(b) If legal action is instituted, the Guarantor agrees to reimburse the Guaranteed Party on written demand for all reasonable attorneys fees and disbursements and all other reasonable costs and expenses incurred by the Guaranteed Party in successfully enforcing its rights under this Guaranty. Notwithstanding the foregoing, the Guarantor shall have no obligation to pay any such costs or expenses if, in any action or proceeding brought by the Guaranteed Party giving rise to a demand for payment of such costs or expenses, it is finally adjudicated by a court of competent jurisdiction that the Guarantor is not liable to make payment or obligated to perform any further obligations under Section 2.1(a) of this Guaranty to the Guaranteed Party hereunder.
(c) Each payment under this Guaranty shall be made in United States dollars.
Notwithstanding anything in this Section 2.1 , the Guarantors liability to guarantee a Companys Obligations shall not exceed the liability of such Company with respect to its Obligations under the terms of the Transaction Documents; provided, that, notwithstanding the foregoing provisions of this paragraph, or any other provisions hereof to the contrary, (a) the Guarantors liability for the Obligations shall not be reduced by the amount of any costs and expenses recovered or recoverable by the Guaranteed Party under Section 2.1(b) , and (b) if a Companys liability in respect of its Obligations is reduced due to any defense described in clauses (1) through (3) of the final paragraph of Section 2.3 hereof, the amount of such reduction shall not reduce the Guarantors liability for such Companys Obligations hereunder.
2.2 No Subrogation . The Guarantor will not exercise any rights that it may acquire by way of subrogation or a right of contribution from the Company under this Guaranty, by any payment made
hereunder or otherwise, until all of the Obligations shall have been indefeasibly paid in full. If any amount shall be paid to the Guarantor on account of such subrogation or contribution rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Party to whom such Obligations are payable and shall forthwith be paid to the Guaranteed Party to be credited and applied to such Obligations, whether matured or unmatured, in accordance with the terms of the applicable Transaction Document. If (i) the Guarantor shall make payment to the Guaranteed Party of all or any part of the Obligations and (ii) all of the Obligations shall be indefeasibly paid in full, the Guaranteed Party will, at the Guarantors request and expense, execute and deliver to the Guarantor appropriate documents in form and substance reasonably satisfactory to the Guaranteed Party, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment by the Guarantor.
2.3 No Effect on Guaranty . The obligations of the Guarantor under this Guaranty shall not be altered, limited, impaired or otherwise affected by:
(a) any rescission of any demand for payment or performance of any of the Obligations or any failure by the Guaranteed Party to make any such demand on a Company or any other guarantor or to collect any payments from a Company or any other guarantor or any release of a Company or any other guarantor;
(b) any renewal, extension, modification, amendment, acceleration, compromise, waiver, indulgence, rescission, discharge, surrender or release, in whole or in part, or any assignment or transfer, of any of the Transaction Documents or the Obligations or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Obligations, or the liability of any party to any of the foregoing or for any part thereof;
(c) any act or omission of the Guaranteed Party relating in any way to the Obligations or to a Company, including any failure to bring an action against any party liable on the Obligations, or any party liable on any other guaranty of the Obligations;
(d) any proceeding, voluntary or involuntary, involving bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of a Company or any other guarantor or any defense which a Company or any other guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding; and
(e) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or that may or might otherwise operate as a discharge of the Guarantor as a matter of law or equity, other than (1) the indefeasible payment in full in United States dollars of all the Obligations, and (2) as set forth in the next sentence.
Notwithstanding the foregoing, the Guarantor shall be entitled to assert any defense which a Company may have under the Transaction Documents to performance of any of its respective Obligations, other than defenses based upon (1) lack of authority, capacity, legal right or power of such Company to enter into and/or perform its obligations under the Transaction Documents, (2) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or similar proceeding with respect to such Company or (3) the nonexistence, invalid formation, dissolution, merger or termination of such Company.
2.4 Continuing Guaranty; Termination . This Guaranty shall be construed as a continuing, absolute and unconditional guaranty of payment and performance when due, and not of collection only, and the obligations of the Guarantor hereunder shall not be conditioned or contingent upon the pursuit by the Guaranteed Party at any time of any right or remedy against a Company or against any other person which may be or become liable in respect of all or any part of the Obligations.
2.5 Reinstatement of Guaranty . This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is avoided, rescinded or must otherwise be restored or returned by the Guaranteed Party to a Company or its representative or to any other guarantor for any reason including as a result of any insolvency, bankruptcy or reorganization proceeding with respect to a Company or the Guarantor, all as though such payment had not been made.
2.6 No Consequential Damages . In no event shall Guarantor be subject to any consequential, exemplary, equitable, loss of profits, punitive, tort or other similar damages.
3. Representations and Warranties of the Guarantor . The Guarantor hereby represents and warrants to the Guaranteed Party, as follows:
(a) The Guarantor is a corporation, validly existing and in good standing under laws of the State of Colorado.
(b) The Guarantor has full power, authority and legal right to execute and deliver this Guaranty and to perform its obligations hereunder.
(c) The execution, delivery and performance of this Guaranty have been duly authorized by all necessary corporate action on the part of the Guarantor.
(d) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors rights generally or by general principles of equity.
(e) All consents, authorizations, approvals and clearances (including, without limitation, any necessary exchange control approval) and notifications, reports and registrations requisite for its due execution, delivery and performance of this Guaranty have been obtained from or, as the case may be, filed with the relevant Governmental Authorities having jurisdiction and remain in full force and effect and all conditions thereof have been duly complied with and no other action by, and no notice to or filing with, any Governmental Authority having jurisdiction is required for such execution, delivery or performance.
(f) The execution and delivery by the Guarantor of this Guaranty do not and the performance by Guarantor of its obligations hereunder will not, (i) violate or require any filing or notice under any Law applicable to Guarantor (other than the filing of this Guaranty with the United States Securities and Exchange Commission under the federal securities laws applicable to U.S. public companies), (ii) conflict with or cause a breach of any provision in the certificate of incorporation, by-laws or other organizational document of Guarantor, or (iii) cause a breach of, constitute a default under, cause the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any authorization, consent, waiver or approval under any contract, license, instrument, decree, judgment or other arrangement to which Guarantor is a party or under which it is bound or to which any of its assets are subject (or result in the imposition of a Lien, other than Permitted Liens, upon any such assets) except (in the case of this clause (iii)) for any that would not reasonably be expected to have a Material Adverse Effect.
4. Election of Remedies . Each and every right, power and remedy herein given to the Guaranteed Party, or otherwise existing, shall be cumulative and not exclusive, and be in addition to all other rights, powers and remedies now or hereafter granted or otherwise existing. Each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised, from time to time and as often and in such order as may be deemed expedient by the Guaranteed Party.
5. Effect of Delay or Omission to Pursue Remedy . No waiver by the Guaranteed Party of any right, power or remedy, or delay or omission by the Guaranteed Party in the exercise of any right, power or remedy which they may have shall impair any such right, power or remedy or operate as a waiver as to any other right, power or remedy then or thereafter existing. Any waiver given by the Guaranteed Party of any right, power or remedy in any one instance shall only be effective in that specific instance and only for the purpose for which given, and will not be construed as a waiver of any right, power or remedy on any future occasion.
6. Guarantors Waivers . The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guaranty or acceptance of this Guaranty; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted, incurred, renewed, extended, amended or waived in reliance upon this Guaranty, and all dealings between the Guarantor and the Guaranteed Party shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives presentment, demand (other than demand delivered pursuant to Section 2.1(a) hereof), notice, and protest of all instruments included in or evidencing any of the Obligations and all other demands (other than any demand delivered pursuant to Section 2.1(a) hereof) and notices in connection with the delivery, acceptance, performance, default or enforcement of any such instrument or this Guaranty.
7. Amendment . This Guaranty may not be modified, amended, terminated or revoked, in whole or in part, except by an agreement in writing signed by the Guaranteed Party and the Guarantor. No waiver of any term, covenant or provision of this Guaranty, or consent given hereunder, shall be effective unless given in writing by the Guaranteed Party.
8. Notices . All notices and other communications under this Agreement shall be in writing and delivered (a) personally; (b) by registered or certified mail with postage prepaid, and return receipt requested; (c) by recognized overnight courier service with charges prepaid; or (d) by confirmed facsimile transmission, directed to the intended recipient as follows:
(a) If to the Guarantor: |
ADA-ES, Inc. |
8100 SouthPark Way, Unit B |
Littleton, CO 80120 |
Attention: Mark H. McKinnies, Chief Financial Officer |
Fax: (303) 734-0330 |
Email: MarkM@ADAES.com |
(b) If to the Guaranteed Party: |
GS RC INVESTMENTS LLC |
c/o Goldman Sachs & Co. |
200 West Street |
New York, New York 10282 |
Attention: Michael Feldman |
Fax: (212) 428-3868 |
Either Guarantor or Guaranteed Party may change the information to which notices and other communications hereunder can be delivered by giving the other Party notice in the manner herein set forth. A notice or other communication shall be deemed delivered on the earlier to occur of (i) its actual receipt; (ii) the date of signature acknowledging
receipt if sent by registered or certified mail, with postage prepaid, and return receipt requested; (iii) the first Business Day following its deposit with a recognized overnight courier service; or (iv) the Business Day it is sent by confirmed facsimile transmission (if sent before 5:00 p.m. local time of the receiving Party) or the next Business Day (if sent after 5:00 p.m. of such local time).
9. Successors and Assigns . This Guaranty shall be binding upon and shall inure to the benefit of the Guarantor and the Guaranteed Party and their respective successors and permitted assigns. The Guaranteed Party may assign this Guaranty without the prior written consent of the Guarantor to the extent the Guaranteed Party has assigned its interest in the payment or performance of any of the Obligations due under a Transaction Document pursuant to the terms of such Transaction Document. Any other assignment of this Guaranty by the Guaranteed Party without the prior written consent of the Guarantor, shall be void ab initio. The Guarantor may not assign this Guaranty without the prior written consent of the Guaranteed Party. Any assignment by the Guarantor without the prior written consent of the Guaranteed Party shall be void ab initio and shall have no effect on the Guaranteed Partys rights against the Guarantor hereunder.
10. Governing Law; Venue and Jurisdiction; Waiver of Jury Trial . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
11. Severability . If any term or other provision of this Agreement or of any of the instruments evidencing part or all of the Obligations is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Guarantor and Guaranteed Party shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Guarantor and Guaranteed Party as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
12. Superseding Guaranty . The Guarantor and the Guaranteed Party acknowledge the termination of that certain Limited Guaranty, dated as of June 29, 2010, issued by Guarantor in favor of the Guaranteed Party (the Prior Guaranty ) and the Guarantor and the Guaranteed Party agree that this Guaranty supersedes the Prior Guaranty in all respects.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered on its behalf as of the date first written above.
ADA-ES, INC. | ||
By: | /s/ Mark H. McKinnies | |
Name: Mark H. McKinnies | ||
Title: Senior Vice President and CFO |
Exhibit 10.51
ADA-ES, INC.
Amended and Restated
Refined Coal Activities
Supplemental Compensation Plan for
Employees, Contractors and Consultants of ADA-ES, Inc.
November 9, 2011
1. Establishment of the Plan . ADA-ES, Inc., by action of the Compensation Committee of the Board of Directors (the Administrator ), established the Refined Coal Activities Supplemental Compensation Plan on April 20, 2010 and adopted this Amended and Restated Refined Coal Activities Supplemental Compensation Plan on November 9, 2011, with additional revisions approved on February 20, 2012 (the Plan ) for Company employees, consultants and/or contractors, upon the terms and subject to the conditions set forth herein. The Plan shall be administered by the Administrator.
2. Purpose of the Plan . The purpose of the Plan is to incent Company employees, consultants and contractors who are actively involved with the Companys Refined Coal Activities (as defined herein) to work for the success of such activities. In order to promote this purpose, the Company established the Plan under which it will make available a pool of funds (the Incentive Pool ) from which payments shall be made to named, designated participants in the Plan ( Designated Participants ) from certain amounts received by the Company from Refined Coal Activities (as defined herein).
3. Definitions . Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in Exhibit A hereto.
4. Establishment of the Incentive Pool . The Incentive Pool shall consist of an amount equal to seven percent (7%), of the Net Contribution Margin received by the Company from the Companys Refined Coal Activities. The Net Contribution Margin and Incentive Pool shall be calculated annually following the close of the Companys fiscal year for such fiscal year, in accordance with the terms and conditions set forth herein.
5. Allocation and Payment of Incentive Pool Amounts : The Incentive Pool shall be allocated to the following Designated Participants in the stated amounts, provided such Persons meet the eligibility requirements set forth in Section 6 hereof:
Michael Durham, as Chief Executive Officer of the Company 3% of the Net Contribution Margin or 42.86% of the Incentive Pool.
Other Participant(s) 4% of the Net Contribution Margin or 57.14% of the Incentive Pool.
Payments of the amounts allocated to Designated Participants under the Plan shall be made as soon as practicable following the end of each fiscal year.
ADA-Amended and Restated Refined Coal Activities Supplemental Compensation Plan
6. Eligibility Requirements . In order to be eligible as an Other Participant , a Person must have been a Company employee, consultant or contractor during the fiscal year for which the designation is made. Dr. Durham shall determine the Other Participants and the relative percentage of the Incentive Pool (out of the 57.14% allocated to Other Participants) to be allocated to each such Other Participant, annually following the close of the Companys fiscal year for that fiscal year. No Person shall be entitled to any rights to any past or future amounts payable under the Plan for any fiscal year other than the year for which such Person is a Designated Participant.
7. Termination of Participant Status Following Designation as an Other Participant . If Dr. Durham or any Person designated as an Other Participant is terminated or terminates his or her employment, consulting or contracting relationship with the Company (a Terminated Participant ) after a designation has been made for that Person, but prior to payment of the amounts allocated to the Incentive Pool for a fiscal year for which the Terminated Participant has been so designated, any amount due and owing to such Terminated Participant as of the time of termination shall be paid to such Participant at the same time as the next payment made to the Other Participants; provided, however, that the Company shall be entitled to set off against any amount owed to a Terminated Participant any amount owed or owing by the Terminated Participant to the Company.
8. Claw-Back . Unless otherwise determined by the Administrator, if the Company becomes obligated as of any particular date to repay, return, refund or otherwise pay back to any Person(s) any amount that has been included in Revenue hereunder that must be so repaid, returned, refunded or paid back (the Repayment Amount ), or if any amount was paid to a Designated Participant who was at the time of such payment an Executive Officer of the Company ( Executive Designated Participant ) in error (an Erroneous Payment Amount ), the Company shall deduct all amounts paid out to any Executive Designated Participant hereunder that comprise the Erroneous Payment Amount or that were based on the Repayment Amount (collectively the Claw-Back Amount ) from any future amounts payable to such Executive Designated Participant under any Company bonus or incentive plan or program (including without limitation the Plan), if the Claw-Bank Amount exceeds $20,000. The Company shall not otherwise be entitled to any return of the Claw-Back Amount (i.e. it cannot offset such amounts against future wages or request a return of such amounts from any Designated Participant other than an Executive Designated Participant or from any Executive Designated Participant who is not entitled to any future amounts payable under any Company bonus or incentive plan or program).
9. Other Applicable Terms and Conditions :
(a) Payment of any amounts due to Designated Participants hereunder will be made annually, and will not be due and payable until the Company has actually received cash comprising the Revenue includible in the Incentive Pool for that fiscal year.
(b) If Dr. Durham shall cease to be employed by the Company for any reason, the amount reserved to him under the Plan shall thereafter not be included in the Incentive Pool. The Plan Administrator shall have the authority to adopt additional rules and regulations as it determines in its sole discretion under the Plan and such rules and regulations shall be binding on all Designated Participants.
ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
2
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ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
3
Exhibit A
To
Amended & Restated
Refined Coal Activities
Supplemental Compensation Plan
Definitions:
Capitalized terms used in the Plan that are not otherwise defined in the Plan have the definitions set forth herein:
a. | Attributed Revenue shall have the meaning set forth in Paragraph (v) of the definition of Revenue herein. |
b. | Company means ADA-ES, Inc., its wholly owned subsidiary ADA Environmental Solutions, LLC, and any successors thereto. |
c. | CCS means Clean Coal Solutions, LLC (f/k/a ADA-NexCoal, LLC) and any successor thereto. |
d. | CCCS means Clean Coal Solutions Services, LLC and any successors thereto. |
e. | Executive Officer shall have the meaning set in Rule 3b-7 of the Securities Exchange Act of 1934. |
f. | Net Contribution Margin means Revenues (as hereafter defined) less Expenses (as hereafter defined) related to Refined Coal Activities, on a fiscal year basis at the Company level, as determined from the inception of each Refined Coal Activity included in the Plan, as determined in accordance with the accounting policies and practices of the Company consistently applied, and subject to the other terms and conditions set forth herein. |
For purposes of calculating the Net Contribution Margin, Revenues and Expenses shall be determined as follows:
ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
Revenues | shall consist of the following: |
i. | Payments received by the Company from the sale of Chemicals and Additives by ADA-ES, Inc. to CCS or CCSS (or any CCS or CCSS customer) pursuant to that certain Chemicals, Equipment and Technical Engineering Services Supply Agreement dated as of November 3, 2006, as amended by First Amendment to Chemicals, Equipment and Technical Engineering Services Supply Agreement dated as October 26, 2009, as may be amended from time to time hereafter, by and between ADA-ES, Inc. and CCS, or any similar agreement under which the Company sells Chemicals and Additives to CCS or CCSS or any of their customers (collectively the Supply Agreement ), that are generated by each new CCS or CCSS customer (including for purposes hereof any subsidiary of CCS that owns or operates a facility that produces Refined Coal and purchases Chemical and Additives from the Company), where such customer is added during the Plan Period. |
ii. | Payments received by ADA-ES, Inc. from the sale of Technical Engineering Services by ADA-ES, Inc. to CCS or CCSS (or to CCS or CCSS customers) pursuant to the Supply Agreement that are generated during the Plan Period. |
iii. | Distributions received by ADA-ES, Inc. from CCS arising from CCS cash flows attributable to ordinary business operations during the Plan Period under that certain Second Amended and Restated Operating Agreement of Clean Coal Solutions, LLC dated as of May 27, 2011 by and among ADA-ES, Inc., NexGen Refined Coal, LLC and GSFS Investments I Corp., as members, and CCS. |
iv. | Nonrefundable royalties (or payments of a similar nature) received by the Company for license(s) or other rights to use technology developed by the Company for purposes of producing Refined Coal as part of a Refined Coal Activity. If the Company receives royalties or payments that are by their terms refundable or returnable, they shall not be included in Revenue under the Plan until they are no longer refundable by the Company. |
v. |
In the event of a transaction involving the sale or transfer by the Company of an equity interest in CCS or in another entity in which the Company has an interest and through which a Refined Coal Activity is being carried out (a Sale Transaction ), Revenue shall include an amount equal to the Revenue (as defined above) attributable to the interest sold or transferred in the Sale Transaction (the Attributed Revenue ) for the period(s) during which such amount would otherwise have been included in Revenue but for the Sale Transaction, and such Attributed Revenue shall be allocated on an annual basis to the Net Contribution Margin for the |
ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
2
period during which such Attributed Revenue would have been received but for the Sale Transaction. Revenue shall not include any amounts received by the Company for the interest being sold or transferred in the Sale Transaction. A Sale Transaction shall not include a transaction where the sale of the interest is for the sale of a subsidiary done for the purpose of monetizing the Section 45 tax credits available for the sale of Refined Coal being produced by a facility owned by such subsidiary. |
vi. | Other cash payments received by the Company that are similar and consistent with those described in paragraphs i v in this Paragraph above resulting from Refined Coal Activities included in the Plan in accordance with the definition of Refined Coal Activities set forth herein. |
Expenses shall consist of the following:
i. | All cash and non-cash compensation paid to consultants or contractors engaged by the Company from the inception of each activity constituting a Refined Coal Activity included in the Plan. |
ii. | All cash and non-cash compensation paid to Company personnel (including executives, consultants or contractors) for services attributable to any Refined Coal Activity included in the Plan, from the inception of any Refined Coal Activity (including amounts that should be so attributed as a result of the nature of the services rendered to the Company by such Persons). |
iii. | The costs incurred by the Company for Chemicals and Additives sold to CCS or CCSS (or CCS or CCSS customers) under the Supply Agreement that are attributable to each new customer added during the Plan Period (with such costs to be matched against the Revenue included in the Net Contribution Margin that is generated from such costs). |
iv. | The costs of the Technical and Engineering Services sold to CCS or CCSS (or CCS or CCSS customers) under the Supply Agreement that are attributable to the Plan Period (with such costs to be matched against the Revenue included in the Net Contribution Margin that is generated from such costs). |
v. | All management and administrative costs (not otherwise included above) for Refined Coal Activities, including without limitation (i) sales and marketing expenses; (ii) legal and accounting expenses; and (iii) travel expenses. |
vi. |
Other expenses incurred by the Company that are similar (and consistent) with those described in paragraphs iii -v in this Paragraph above, that are |
ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
3
attributable to any Refined Coal Activities that generate Revenue to be included in the Plan, such that whenever Revenue is to be included in the Plan, all corresponding expenses incurred by the Company to generate such Revenue shall be included in Expenses for purposes of calculating the Net Contribution Margin based on such Revenue. |
Other Terms Applicable to the Determination of Revenues, Expenses, Net Contribution Margin and the Incentive Pool:
In no event will the purchase or lease by the Company (or an affiliate of the Company) or by CCS or an affiliate of CCS, of a Refined Coal facility from CCS for purposes of the operation of the facility by the Company or CCS or an affiliate of either, be deemed a Refined Coal Activity for purposes of generating Revenue to be included in the Plan, unless such transaction has been approved in advance as a Refined Coal Activity by the Administrator.
A Sale Transaction shall not include a sale of equity or other interests of the Company or the sale of all or substantially all of assets of the Company that includes as a part thereof the sale of the Companys interest in CCS or any other entity through which a Refined Coal Activity is being carried out, and no Attributable Revenue shall be included in Revenue as a result of any such transaction.
The Net Contribution Margin and Incentive Pool will be determined on a fiscal year basis using the internal accounting reports of ADA-ES (as reflected on the financial statements filed by the Company with the Securities and Exchange Commission), which are generally completed during the first fiscal quarter of the following year.
The Incentive Pool amounts that relate to Dr. Durham and Other Participants will include only the first three full years of revenue generated by any Refined Coal Activities customer. No amounts received from a Refined Coal Activities customer after such customer has been a customer for more than three full years shall be included in Revenues included in the Net Contribution Margin or the Incentive Pool.
At any time when there is a mixture of Revenues coming from new customers and customers that are beyond the three year period for Revenues includible in the Net Contribution Margin, then all expenses that cannot be attributed directly to the eligible customers will be allocated pro-rata according to the revenue dollars generated by the customers for which amounts are included in the Incentive Pool as compared to total revenues generated by Refined Coal Activities.
ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
4
Revenue and Expenses shall not include amounts included in the net profit of the Company generated by a consolidated subsidiary by reason of the consolidation of such subsidiarys financial results with those of the Company. The manner in which the Net Contribution Margin shall be calculated to ensure that no Revenue or Expense amounts are included more than once in calculating such Net Contribution Margin.
g. | Person, as the context requires, means a natural person, corporation, partnership, trust or other entity. |
h. | Plan means this Amended and Restated Refined Coal Activities Supplemental Compensation Plan, as amended from time to time. |
i. | Plan Period means the period beginning on January 1, 2006 and ending on December 31, 2013. |
j. | Plan Year means the fiscal year (or portion of a fiscal year) of the Company for which Net Contribution Margin is calculated and the Incentive Pool determined for that period. |
k. | Refined Coal has the meaning set forth in the definition of Refined Coal Activities herein. |
l. | Refined Coal Activities means activities of the Company directed to the research, development, marketing and sale of Refined Coal (which shall mean coal that is treated or altered in a manner necessary to reduce the levels of hazardous pollutants released on burning of such coal, which are presently being carried out through CCS. For purposes of the Plan, Refined Coal Activities shall not include any activities under that certain Development and License Agreement between the Company and Arch Coal Inc. dated June 25, 2010, as may be amended from time to time, pursuant to which the Company has licensed certain technology relating to the treatment of coal. Any activity to be included as a Refined Coal Activity under the Plan (other than activities between the Company and CCS as described herein), shall be included in the Plan only if and when designated specifically as such by the Administrator in writing. |
m. | Sale Transaction shall have the meaning set forth in paragraph (v) of the definition of Revenue herein. |
ADA Amended and Restated Refined Coal Activities Supplemental Compensation Plan
5
Exhibit 10.52
EXECUTION VERSION
AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICENSE AGREEMENT
THIS AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICENSE AGREEMENT (this Amendment ), entered into this 28th day of November, 2011, is made by and between the undersigned and amends that certain Intellectual Property License Agreement, dated as of October 1, 2008 (the License Agreement ), by and between ADA-ES, Inc. and ADA Carbon Solutions, LLC (f/k/a Crowfoot Development Company, LLC) (individually, a Party , and, collectively, the Parties ). Capitalized terms used and not otherwise defined in this Amendment will have the meanings set forth in the License Agreement, including as incorporated by reference therein.
R ECITALS
WHEREAS, the Parties have heretofore entered into the License Agreement and desire to amend the License Agreement in accordance with Section 7.3 thereof as more fully set forth herein.
A GREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Amendments . The License Agreement is hereby amended as follows:
(a) Section 1.1 of the License Agreement is hereby amended by adding the following definitions such that the new definitions are incorporated in alphabetical order:
Expanded Field means the manufacture, production or formulation of (i) activated carbon or (ii) any activated carbon/additive mixture, in the case of (i) and (ii), for any market other than the Field.
New Expanded Field IP means the Intellectual Property of Licensor and its Affiliates other than Excluded Affiliates acquired or developed during the Future Licensing Period that (i) could have been used, (ii) was used or (iii) based on any future change in circumstance (such as a technological improvement), could have been used if such change in circumstance was in existence during the Future Licensing Period, in the case of (i), (ii) and (iii), in the Expanded Field. For the avoidance of doubt, the New Expanded Field IP expressly excludes any technology of Licensor for treating coal with additives prior to or in a combustion chamber for the purpose of reducing mercury emissions or other pollutant emissions from the combustion of the coal.
(b) Section 1.1 of the License Agreement is hereby amended by amending and restating the following definitions to read in their entirety as follows:
Excluded Affiliates means any Affiliate that is (i) a natural person, (ii) an upstream Affiliate of Licensor that holds directly or indirectly less than Fifty
Percent, or (iii) a downstream Affiliate of Licensor of which Licensor holds directly or indirectly less than Fifty Percent, including Clean Coal Solutions, LLC and its subsidiaries. Fifty Percent means 50% of the total number of outstanding common or other equity interests (however denominated) of such Person, 50% of the total voting power of all outstanding equity interests of such Person which are entitled to vote in the election of directors, managers or other persons performing similar functions for and on behalf of such Person, 50% of the dividends paid and other distributions made by such Person prior to liquidation or 50% of the assets of such Person or proceeds from the sale thereof upon liquidation.
Future Licensing Period means the period commencing after the Closing and ending on November 28, 2011.
Licensed Intellectual Property means (i) the Intellectual Property of Licensor and its Affiliates as of the Closing used or held for use in connection with the Business or otherwise relating to the ADA-ES Contributed Assets and/or the Underlying Assets, including (x) the Intellectual Property listed on Schedule A attached hereto, and (y) After-Filed Patents, (ii) the New IP and (iii) the New Expanded Field IP; provided , however , that Licensed Intellectual Property shall not include any (A) Transferred Intellectual Property, or (B) any Trademarks.
None of the definitions in paragraphs (a) or (b) of this Amendment shall be relied upon by any Party to this Amendment or the License Agreement to construe or otherwise interpret any other definition in the License Agreement.
(c) Section 2.1 of the License Agreement is hereby amended and restated in its entirety to read as follows:
Effective as of the Closing, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, exclusive license to use the Licensed Intellectual Property (other than the New IP and the New Expanded Field IP) in the Field. Effective as of the Closing, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, non-exclusive license to use the Licensed Intellectual Property (other than the New IP and the New Expanded Field IP) in the Expanded Field. Effective as of the date of acquisition or development of any New IP, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, exclusive license to use such New IP in connection with the Field. Effective as of the date of acquisition or development of any New IP or New Expanded Field IP, on the terms and conditions set forth herein, Licensor hereby grants to Licensee and its Affiliates a perpetual, worldwide, royalty-free, fully paid up, non-exclusive license to use such New IP and New Expanded Field IP in connection with the Field and the Expanded Field. The foregoing licenses include the right (a) to make, have made, use, import, export, distribute, offer to sell and sell products
2
under the Licensed Intellectual Property, and (b) to publish, display, reproduce, copy, modify, improve, create derivative works of, enhance, and otherwise exploit such Licensed Intellectual Property. Licensee and its Affiliates may sublicense the Licensed Intellectual Property (x) to any Person owning a Project (each, a Project Company ) and (y) solely as is reasonably necessary in connection with (A) the receipt of goods and services by, or (B) the use of activated carbon sold or otherwise transferred by, Licensee, any of its Affiliates and/or any Project Company, but are not otherwise sublicensable. Licensor shall promptly advise Licensee in writing of any acquisition or development of any New IP. For the avoidance of doubt, nothing in this Agreement shall prohibit Licensor from using the Licensed Intellectual Property for applications or other uses that are outside the Field.
(d) Section 2.2 of the License Agreement is hereby amended by deleting the last sentence of such section and replacing it with the following:
Licensee shall have the right to commence, on or prior to November 28, 2012, upon reasonable notice to Licensor and during normal business hours, a confidential audit and inspection of the books and records of Licensor and its Affiliates (other than Excluded Affiliates) (and to make confidential copies thereof) relating to the acquisition and development of New IP, Additional IP and New Expanded Field IP, and, in connection therewith, shall be provided on a confidential basis (at Licensees option, either in electronic (to the extent available) or hard copy) (i) copies of all documentation that is in Licensors or any of its Affiliates (other than Excluded Affiliates) possession or control and constitutes such Licensed Intellectual Property and/or is reasonably necessary for the use of such Licensed Intellectual Property and (ii) tangible embodiments of such Licensed Intellectual Property (including copies of all Software included in such Licensed Intellectual Property) that is in Licensors or any of its Affiliates (other than Excluded Affiliates) possession or control; provided , however , that if any Member of Licensee is a Competitor, no such right of audit shall apply. For the avoidance of doubt, any confidential information provided to Licensee pursuant to this Section 2.2 shall be subject to Article V and may be provided to Licensees Affiliates, directors, officers, employees, agents, auditors, consultants, financial advisors, financing sources (whether actual or potential) and permitted sublicensees, in each case, subject to Article V .
(e) Section 2.3(a) of the License Agreement is hereby amended by deleting the words last sentence from the last sentence of such subsection and adding the following sentence to the end of such subsection:
For the avoidance of doubt, any confidential information provided to Licensee pursuant to this Section 2.3(a) shall be subject to Article V and may be provided to Licensees Affiliates, directors, officers, employees, agents, auditors, consultants, financial advisors, financing sources (whether actual or potential) and permitted sublicensees, in each case, subject to Article V .
3
(f) Section 2.3 of the License Agreement is hereby amended by adding the following subsection (d):
(d) The Parties agree that, notwithstanding anything to the contrary in this Section 2.3 , any license to use Additional IP entered into between the Parties pursuant to this Section 2.3 will provide that the Licensee and its Affiliates may sublicense the Licensed Intellectual Property (x) to any Project Company and (y) solely as reasonably necessary in connection with (A) the receipt of goods and services by, or (B) the use of activated carbon sold or otherwise transferred by, Licensee, any of its Affiliates and/or any Project Company, but is not otherwise sublicensable.
(g) A new Section 2.4 of the License Agreement is hereby added as follows:
Section 2.4 No Alteration of Rights . The license granted with respect to the New Expanded Field IP pursuant to Section 2.1 in no way expands, limits or otherwise alters the rights and obligations of the Parties pursuant to Section 2.3 .
(h) Section 6.1 of the License Agreement is hereby amended by deleting the heading and the first sentence of such section and replacing it with the following:
Section 6.1 Warranties and Excluded Warranties. LICENSOR WARRANTS THAT: (A) IT HAS THE RIGHT TO GRANT THE LICENSES AND RIGHTS GRANTED HEREIN AND TO ENTER INTO THIS AGREEMENT; (B) THAT DURING THE FUTURE LICENSING PERIOD IT HAS NOT SOLD, ASSIGNED OR TRANSFERRED ANY LICENSED INTELLECTUAL PROPERTY TO AN EXCLUDED AFFILIATE OTHER THAN LICENSEE; AND (C) ITS ONLY DOWNSTREAM EXCLUDED AFFILIATES DURING THE FUTURE LICENSING PERIOD ARE CLEAN COAL SOLUTIONS, LLC, CLEAN COAL SOLUTIONS SERVICES, LLC, LICENSEE AND EACH OF THEIR RESPECTIVE DIRECT AND INDIRECT SUBSIDIARIES.
The remainder of Section 6.1 is unchanged.
(i) Section 7.13 of the License Agreement is hereby amended and restated in its entirety to read as follows:
Section 7.13 Binding on Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and Licensees Affiliates and permitted sublicensees, and their respective successors and permitted assigns including, without limitation, an Excluded Affiliate if, and to the extent, it succeeds to Licensors ownership rights in or to use any Licensed Intellectual Property; .
(j) The address of Licensee in Section 7.1 of the License Agreement is hereby amended and restated in its entirety to read as follows:
4
ADA Carbon Solutions, LLC
8100 SouthPark Way
Unit A-2
Littleton, Colorado 80120
Facsimile No.: (303) 734-0330
Attention: General Counsel
and concurrently to:
ADA Carbon Solutions, LLC
c/o Energy Capital Partners, LLC
51 John F. Kennedy Parkway
Suite 200
Short Hills, New Jersey 07078
Facsimile No.: (973) 671-6101
Attn: Tyler Reeder, Vice President
CC: General Counsel
with a copy (which shall not constitute notice to Licensee), to:
Fox Rothschild LLP
997 Lenox Drive
Building 3
Lawrenceville, New Jersey 08543-5231
Facsimile No.: (609) 896-1469
Attn: Jonathan R. Lagarenne
with a copy (which shall not constitute notice to Licensee), to:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022-4834
Facsimile No.: (212) 751-4864
Attn: David B. Rogers & David A. Kurzweil
(k) Article VII of the License Agreement is hereby amended by adding the following Section 7.14:
Section 7.14 Licensed Rights . The Parties acknowledge and agree that any and all rights licensed pursuant to this Agreement shall be deemed to be a license of rights to intellectual property as defined under §101 of the U.S. Bankruptcy Code and, in connection therewith, §365(n) of the U.S. Bankruptcy Code shall be implicated by any rejection or proposed rejection of this Agreement in any bankruptcy proceeding.
2. Effectiveness of this Amendment . This Amendment is effective immediately; provided , however , that if that certain Settlement Agreement executed substantially concurrently
5
with this Amendment by and among certain parties to American Arbitration Association arbitration Case No. 30-192-Y-00718-09 is rendered null and void ab initio pursuant to Section 9(a) thereof, this Amendment shall be null and void ab initio, no Party shall have any rights or obligations hereunder and the License Agreement shall be deemed to have never been amended and shall remain in full force and effect.
3. Miscellaneous.
(a) Except as specifically amended by this Amendment, the terms and conditions of the License Agreement shall remain in full force and effect.
(b) This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware applicable to a contract executed and performed in such State, without giving effect to conflicts of laws principles (whether of the State of Delaware or otherwise) that would result in the application of the laws of any other state.
(c) This Amendment may be executed in any number of counterparts, any of which may be delivered via facsimile or PDF, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one instrument.
(d) Each Party hereto agrees to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other actions as may be reasonably necessary to consummate the transactions contemplated by this Amendment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment, effective as of the date first written above.
ADA-ES, INC. | ||
By: | /s/ C. Jean Bustard | |
Name: C. Jean Bustard |
||
Title: Chief Operating Officer |
ADA CARBON SOLUTIONS. LLC | ||
By: | ||
Name: Peter O. Hansen |
||
Title: General Counsel |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICNESE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed this Amendment, effective as of the date first written above.
ADA-ES, INC. | ||
By: | ||
Name: | ||
Title: |
ADA CARBON SOLUTIONS, LLC | ||
By: | /s/ Peter O. Hansen | |
Name: Peter O. Hansen | ||
Title: General Counsel |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INTELLECTUAL PROPERTY LICNESE AGREEMENT]
Exhibit 10.53
AMENDMENT NO. 1
TO THEADA-ES, INC.
AMENDED AND RESTATED 2007 EQUITY INCENTIVE PLAN
The Board of Directors of ADA-ES Inc., a Colorado corporation (the Company ), hereby adopts the following Amendment No. 1 to the ADA-ES, Inc. Amended and Restated 2007 Equity Incentive Plan (this Amendment ), effective as of the date the shareholders approve the Amendment at the Companys 2012 Annual Meeting.
WHEREAS , effective April 27, 2007, the Board of Directors of the Company adopted the ADA-ES, Inc. 2007 Equity Incentive Plan (the Original Plan ), subject to approval of the shareholders of the Company;
WHEREAS , the shareholders of the Company approved the Original Plan at the Annual Meeting of Shareholders of the Company held on June 19, 2007;
WHEREAS , the Board of Directors of the Company further amended and restated the Original Plan as of August 31, 2010 ( the Plan ) to make non-material changes to assure Internal Revenue Code Section 409A compliance and to increase the non-management director annual grant limit to 15,000 shares of Common Stock from 10,000 shares;
WHEREAS , as of February 1, 2012, the Plan had 1,000,000 authorized shares and only 138,436 remaining for issuance under the Plan;
WHEREAS , the Board of Directors of the Company believes that providing directors, officers and employees with equity incentives such as stock options will contribute substantially to our future success by further aligning the interests of such key persons with those of our shareholders and that without the Amendment, there would be an insufficient number of shares eligible for grant pursuant to the Plan in order to best satisfy the purposes of the Plan;
WHEREAS , the Board of Directors of the Company approved the Amendment in order to amend Section 3(a) of the Plan to replace the number 600,000 with 1,300,000 and to replace the number 1,000,000 at the end of that Section with 1,800,000 and to amend Section 6(f) of the Plan to replace the number 30,000 with 50,000 in two places and the number 15,000 with 25,000.
NOW, THEREFORE , intending to be legally bound hereby, the Company hereby amends the Plan as follows:
1. Section 3(a) of the Plan is hereby amended in its entirety to read as follows:
(a) Subject to the provisions of Section 10 below, the stock subject to this Plan shall be the Companys Common Stock, no par value per share (the Common Stock), presently authorized but unissued or subsequently acquired by the Company. Subject to adjustment as provided in Section 10 hereof, the aggregate amount of Common Stock to be delivered upon the exercise of all Awards granted under this Plan shall not exceed one million three hundred thousand (1,300,000) shares of Common Stock as constituted on the effective date of this Plan, or the effective date of any amendment affecting this provision. In addition, the shares reserved for issuance of Awards granted under this Plan will automatically be increased on the first day of each fiscal year, beginning with the fiscal year commencing January 1, 2008, by an amount equal to ten percent (10%) of the increase in the total number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year over the number of outstanding shares of Common Stock on such date one year prior, or such lesser number of shares as is later ratified by the Board at their first meeting or action in such new fiscal year; provided, that in no event shall any such annual increase exceed three hundred thousand (300,000) shares and provided further, that in no event shall the total number of shares authorized for issuance under this Plan exceed one million eight hundred thousand (1,800,000) shares.
2. Section 6(f) of the Plan is hereby amended in its entirety to read as follows:
(f) Individual Award Limits. Following the date that the exemption from application of Section 162(m) of the Code described in Section 18 (or any exemption having similar effect) ceases to apply to Awards, the maximum number of Shares with respect to which Awards (including awards for Options or Restricted Stock) may be granted to any Grantee in any fiscal year of the Company shall be fifty thousand (50,000) Shares; provided, however, that Non-Management Directors shall be entitled to receive Awards in any fiscal year for no more than twenty five thousand (25,000) Shares. In connection with a Grantees commencement of Continuous Service, a Grantee who is an Employee may be granted Options for up to an additional fifty thousand (50,000) Shares which shall not count against the limit set forth in the previous sentence. The foregoing limitations shall be adjusted proportionately in connection with any change in the Companys capitalization pursuant to Section 10 below. To the extent required by Section 162(m) of the Code or the regulations thereunder, in applying the foregoing limitations with respect to a Grantee, if any Option is canceled, the canceled Option shall continue to count against the maximum number of Shares with respect to which Options may be granted to the Grantee. For this purpose, the repricing of an Option shall be treated as the cancellation of the existing Option and the grant of a new Option.
3. Defined Terms. Unless otherwise stated herein, each capitalized term used in this Amendment shall have the same meaning as provided for such capitalized term in the Plan. From and after the date hereof, all references in the Plan, as amended by this Amendment, to the Plan shall mean the Plan, as amended by this Amendment.
4. All of the other terms of the Plan continue with full force and effect.
The undersigned, being the Senior Vice President and Chief Financial Officer of ADA-ES, Inc. hereby certifies that the foregoing is a true and correct copy of the Amendment, as adopted by the Board of Directors on February 24, 2012, and as adopted by the shareholders on , 2012.
ADA-ES, Inc. | ||
By: | /s/ Mark H. McKinnies | |
Mark H. McKinnies, Senior Vice President and Chief Financial Officer |
Exhibit 21.1
Subsidiaries of ADA-ES, Inc
Name* |
State of Organization |
|
ADA Environmental Solutions, LLC |
Colorado | |
ADA Intellectual Property, LLC |
Colorado | |
Advanced Emissions Solutions, Inc. |
Delaware | |
Clean Coal Solutions, LLC |
Colorado |
* | Each subsidiary does business under its chartered name. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in Registration Statements on Forms S-8 Nos. 333-110479, 333-112587, 333-114546, 333-121234, 333-143004, 333-159715, 333-164792 and 333-144820 and Form S-3 Nos. 333-153596, 333-167188 and 333-171936 of ADA-ES, Inc. and Subsidiaries of our report dated March 15, 2012 relating to our audit of the consolidated financial statements and internal control over financial reporting of the Company, which appears in this Annual Report on Form 10-K of ADA-ES, Inc. and Subsidiaries as of and for the year ended December 31, 2011.
/s/ Ehrhardt Keefe Steiner & Hottman PC
Denver, Colorado
March 15, 2012
Exhibit 31.1
Pursuant to Rules 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as Amended
I, Michael D. Durham, certify that:
1. I have reviewed this Annual Report on Form 10-K of ADA-ES, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 15, 2012 |
/s/ Michael D. Durham |
Name: Michael D. Durham |
Exhibit 31.2
Pursuant to Rules 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as Amended
I, Mark H. McKinnies, certify that:
1. I have reviewed this Annual Report on Form 10-K of ADA-ES, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: March 15, 2012 |
/s/ Mark H. McKinnies |
Name: Mark H. McKinnies |
Exhibit 32.1
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
I, Michael D. Durham, as President and Chief Executive Officer of ADA-ES, Inc. (the Company), certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2011 as filed with the Securities and Exchange Commission on the date hereof (the Report) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Michael D. Durham | ||
Name: Michael D. Durham | ||
Title: President and Chief Executive Officer |
Date: March 15, 2012
Exhibit 32.2
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
I, Mark H. McKinnies, as Chief Financial Officer of ADA-Es, Inc. (the Company), certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2011 as filed with the Securities and Exchange Commission on the date hereof (the Report) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Mark H. McKinnies | ||
Name: Mark H. McKinnies | ||
Title: Chief Financial Officer |
Date: March 15, 2012