Limited Liability Company Agreement of CE Renewco, LLC between Clean Energy and BP Products North America Inc
[*]: THE IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THE REGISTRANT TREATS AS PRIVATE CONFIDENTIAL
LIMITED LIABILITY COMPANY AGREEMENT
CE RENEW CO, LLC
(a Delaware Limited Liability Company)
MEMBERSHIP INTERESTS IN THE COMPANY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR PURSUANT TO THE PROVISIONS OF ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THEY HAVE BEEN REGISTERED UNDER SUCH ACT AND LAWS OR UNLESS REGISTRATION IS NOT REQUIRED. IN ADDITION, SUBSTANTIAL RESTRICTIONS ON THE TRANSFER OF MEMBERSHIP INTERESTS IN THE COMPANY ARE CONTAINED IN THIS AGREEMENT.
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
Capital Contributions and Membership Interests
BP plc Group Code of Conduct
LIMITED LIABILITY COMPANY AGREEMENT
CE RENEW CO LLC
a Delaware Limited Liability Company
THIS LIMITED LIABILITY COMPANY AGREEMENT (“Agreement”) of CE Renew Co, LLC, a Delaware limited liability company (the “Company”) is effective as of April 13, 2021 (the “Effective Date”), among Clean Energy, a California corporation (together with any permitted successor, “Clean”), BP Products North America Inc., a Maryland corporation (together with any permitted successor, “BP”), and any other Person admitted as a Member in accordance with the terms of this Agreement.
A.The Members desire to develop, construct, acquire, own, maintain, finance and operate Projects, directly through the Company or indirectly through Subsidiaries.
B.The Members anticipate that the Company or its Subsidiaries will enter into future agreements relating to the construction, maintenance and operation of Projects, and the marketing and sale of natural gas and associated environmental credits and attributes, which agreements may be with the Members or their Affiliates.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members hereby agree as follows:
DEFINITIONS AND USAGE
“A&A Services” means those certain administration services to be provided by Clean to the Company, as set forth on Exhibit B.
“Act” means the Delaware Limited Liability Company Act, 6 Del C. Section 18-101 et seq., as may be amended from time to time.
“Adjusted Asset Value” means, with respect to any asset of the Company, the adjusted basis of such asset for federal income tax purposes, except as follows:
The foregoing definition of Adjusted Asset Value is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv) and shall be interpreted and applied consistently therewith.
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year or other period, after giving effect to the following adjustments:
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied consistently therewith.
“Affiliate” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. As used in this definition, “control” (including, its correlative meaning “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of outstanding voting securities or partnership or other ownership interests, by contract or otherwise).
“Agreement” has the meaning given in the first paragraph of this Agreement.
“Annual Budget” has the meaning given in Section 7.3 of this Agreement.
“Available Funds” means Company cash on hand, as of the date of computation, including cash derived from any one or more of the following sources: (i) the Capital Contributions of the Members, (ii) the proceeds of any sale or other disposition of all or any portion of assets, including any insurance proceeds, and (iii) all net operating income.
“B FMV” shall be as defined in Section 11.9.
“Capital Contribution” means any contribution to the capital of the Company in cash or other assets by a Member in its capacity as such. Any reference to the Capital Contribution of a Member shall include the Capital Contribution (or relevant portion thereof) made by a predecessor holder of the Membership Interest (or relevant portion thereof) of such Member.
“Certificate” means the Certificate of Formation of the Company filed with the Delaware Secretary of State, as the same may be amended from time to time.
“C FMV” shall be as defined in Section 11.9.
“Change of Control” means, with respect to any Member, an event (such as a Disposition of voting securities) that causes such Member to cease to be Controlled by such Member’s ultimate parent or ownership group.
“Class A Units” shall mean a unit of membership interest of the Company representing the Capital Contribution of a Member to the Company as set forth herein.
“Class B Units” shall mean a unit of membership interest of the Company representing the Capital Contribution of a Member to the Company as set forth herein.
“Class C Units” shall mean a unit of membership interest of the Company representing a payment-in-kind distribution with respect to Class B Units as set forth herein.
“Clean Cash Contribution” has the meaning given in Section 3.2 of this Agreement.
“CLNE Loan” means that certain USD $50,000,000 Loan Agreement dated effective as of December 18, 2020 by and between BP Products North America Inc. and Clean Energy.
“Company” means CE Renew Co, LLC, a Delaware limited liability company.
“Contractor’s Representative” means the party identified as such in the relevant EPC Agreement for a Subsidiary or Project.
“Control”, “Controlled”, and “Controlling” means the possession, directly or indirectly, of any of the following: (i) in the case of a corporation, more than fifty percent (50%) of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than fifty percent (50%) of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than fifty percent (50%) of the beneficial interest therein; (iv) in the case of any other entity, more than fifty percent (50%) of the economic or beneficial interest therein; or (v) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.
“CPI” means a factor representing the change in the Consumer Price Index, All Urban Consumers for All Items (1982-84=100), in effect as of January 1 of each calendar year, as published by the United States Department of Labor, Bureau of Labor Statistics or any successor index thereof, or if such index is discontinued or unavailable and is not replaced, then another index published by the United States Department of Labor, Bureau of Labor Statistics as mutually agreed.
“Debt” means (i) indebtedness for borrowed money or indebtedness issued in substitution or exchange for borrowed money or for the deferred purchase price of property or services (other than trade payables arising in the ordinary course of business), (ii) indebtedness evidenced by any note, bond, debenture or other debt security, in each case, as of such date, (iii) obligations under any interest rate, currency or other hedging agreements (valued at the termination value thereof), in each case, as of such date, (iv) any drawn letter of credit, or (v) capitalized lease obligations.
“Depreciation” means, with respect to any Company asset for any fiscal year or other period, the depreciation, depletion, amortization or other cost recovery deduction, as the case may be, allowed or allowable for federal income tax purposes with respect to such asset for such fiscal year or other period; provided, however, that if there is a difference between the Adjusted Asset Value and the adjusted tax basis of such asset, Depreciation will mean “book depreciation, depletion or amortization” as determined under Section 1.704-1(b)(2)(iv)(g)(3) of the Treasury Regulations; provided, further, that if any property has a zero adjusted basis for federal income tax purposes, Depreciation may be determined under any reasonable method selected by the Board.
“Disposition” means with respect to any Membership Interest, any sale, transfer, exchange, assignment, gift, alienation or other disposition of such Membership Interest; and “Dispose of” and “Disposes” have corresponding meanings. A (i) sale or other disposition, by operation of law or otherwise, of all or substantially all of the equity ownership interest of a Member or (ii) a Change of Control, in each case, shall constitute a Disposition of the Membership Interests owned by such Member.
“Distributable Cash Flow” means any Available Funds not required to meet current or reasonably anticipated obligations of the Company and its Subsidiaries within the twelve (12) months, or such other date as is specified by the Board, following the date of computation, excluding Member Guaranteed Debt and including all other operating expenses, Debt service, capital expenditures, and establishment of reserves for repairs, replacement or otherwise and for contingent liabilities, as determined by Supermajority Vote of the Board.
“Encumber”, “Encumbering” or “Encumbrance” means the creation of a lien (statutory or otherwise), mortgage, deed of trust, claim, option, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate (including any agreement to give any of the foregoing), and any conditional sale or other title retention agreement.
“EPC Agreement” means an Engineering, Procurement and Construction Agreement to be entered into from time to time between the Company or a Subsidiary of the Company and the relevant EPC contractor with respect to the construction of a Project.
“Facility Operator” means the entity selected as operator for a Subsidiary, under the relevant O&A Agreement
“Fair Market Value” of a Membership Interest, asset, the Company, non-cash consideration or other property means the fair market value as agreed in writing by all of the Members, or if they are unable to agree within ten (10) days, as determined by third party experts in accordance with Section 11.9 of this Agreement.
“Involuntary Transfer” means any of the following by or with respect to a Member of part or all of a Member’s Membership Interest (i) applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee, administrator, liquidator, or the like of the Member or of all or a substantial portion of the Member’s assets, (ii) admitting in writing its inability, or being generally unable or deemed unable under any applicable law, to pay its debts as such debts become due, (iii) convening a meeting of creditors for the purpose of consummating an out-of-court arrangement, or entering into a composition, extension, or similar arrangement, with creditors in respect of all or a substantial portion of the Member’s debts, (iv) making a general assignment for the benefit of its creditors, (v) placing itself or allowing itself to be placed, voluntarily or involuntarily, under the protection of the law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, (vi) taking any action for the purpose of effecting any of the foregoing or (vii) if a proceeding or case shall be commenced against such Member in any court of competent jurisdiction, seeking (a) the liquidation, reorganization, dissolution, winding-up or composition or readjustment of debts, of such Member, (b) the appointment of a trustee, receiver, custodian, administrator, liquidator or the like of such Member or of all or a substantial portion of such Member’s assets, (c) similar relief with respect to such Member under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, and such proceeding or case shall continue undismissed for a period of sixty (60) days, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a period of sixty (60) days, or an order for relief or other legal instrument of similar effect against such Member shall be entered in an involuntary case under such law and shall continue for
a period of sixty (60) days or (d) any other Disposition of Membership Interests pursuant to the foregoing.
“IRC” means the Internal Revenue Code of 1986, as amended from time to time.
“Majority Vote” means the affirmative vote, approval or consent of Directors appointed by Members owning more than fifty percent (50%) of the Percentage Interests in the Company.
“Marketing Manager” means BP (or its Affiliate) in its role as Marketing Manager under the relevant Marketing Services Agreement for a Project.
“Marketing Services Agreement” means a Marketing Services Agreement to be entered into between BP (and/or its designated Affiliate) and the Company or a Subsidiary from time to time with respect to a Project prior to the NTP Date of such Project, which Management Services Agreement shall be in a form mutually agreed to by the Members within sixty (60) days of the execution of this Agreement (or such longer period as the Members may mutually agree), and with such changes as BP and the Company (subject to the consent of Clean) may mutually agree at such time.
“Member” means any Person admitted as a Member in accordance with the terms of this Agreement.
“Membership Interest” means a “limited liability company interest” within the meaning of the Act, which is personal property pursuant to Section 18-701 of the Act, and shall be deemed to include all Class A, Class B and Class C Units and other rights and obligations of a Member, including voting and approval rights, with respect to the Company.
“Member Guaranteed Debt” shall mean, to the extent any validly approved Support Obligation posted by a Member or its Affiliates is able to be drawn or called, the maximum aggregate principal amount of such Support Obligation that can be drawn or called and any reimbursement obligations of the providing member or its Affiliates arising therefrom, including any obligation of such Member or its affiliates to repay any principal, interest, costs, fees and expenses in respect of any such amounts drawn in respect of any letter of credit, guarantee or other credit support posted by such Member or its Affiliates, together with any interest, costs, fees and expenses in respect thereof.
“Member Loan” shall be as defined in Section 3.3D.
“Member Loan Return” shall mean, for a particular Member Loan and unless agreed otherwise, an amount of interest on the outstanding principal amount of such loan at a per annum rate of five (5) percentage points above the prime rate published from time to time by J.P. Morgan Chase Bank N.A. (or its successor), compounded monthly, which rate shall be determined on the first day of each month and be applied to the average daily loan balance for the month.
“NTP Date” with respect to a Project means the date on which full notice to proceed is issued to the contractor under the EPC Agreement for such Project.
“O&A Agreement” means those certain operating and administration agreements to be entered into between a Subsidiary and the Facility Operator selected by the Company from time to time with respect to a Project in the form approved by the Company at such time.
“Operator” means Clean in its role as Operating and Administration contractor for the Company.
“Party” and “Parties” means those Persons that are a signatory to this Agreement and their related Indemnified Parties as applicable.
“Percentage Interest” means a Member’s percentage of the total Class A Units in the Company, and is set forth in Exhibit A (as such may be updated from time to time in accordance with this Agreement) and which the collective Percentage Interests of all Members shall always equal one hundred percent (100%).
“Person” means any individual and any legal entity, including any corporation, partnership (general or limited), limited liability company, trust or estate.
“Priority Return” means [*].
“Profits” and “Losses” means, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such year or other period, determined in accordance with Section 703(a) of the IRC (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the IRC shall be included in taxable income or loss), with the following adjustments: (i) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; (ii) any expenditures of the Company described in Section 705(a)(2)(B) of the IRC or treated as Section 705(a)(2)(B) of the IRC expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i) shall be subtracted from such taxable income or loss; (iii) gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Adjusted Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Adjusted Asset Value; (iv) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, the Company shall compute such deductions based on Depreciation; (v) if the Adjusted Asset Value of an asset is adjusted pursuant to clauses (ii) or (iii) of the definition of Adjusted Asset Value, then the amount of such adjustment shall be treated as an item of gain or loss and included in the computation of Profits and Losses; (vi) if any property is distributed in kind to any Member, the difference between its Fair Market Value and its Adjusted Asset Value at the time of distribution shall be treated as Profit or Loss, as the case may be, recognized by the Company; and (vii) items of Company gross income, gains, deductions and losses allocated pursuant to Section 8.2 shall not be included in the computation of Profits and Losses.
“Prohibited Transferee” means a Person which (i) is a specially designated national under US sanctions regulation or otherwise a Person with whom US persons may not transact business, (ii) is insolvent or in proceedings for insolvency, reorganization or liquidation, or (iii) refuses to
provide the Company with sufficient information as to its ultimate beneficial owners as may reasonably be required for know your customer and anti-money laundering requirements.
“Project” means a renewable gas project, owned by the Company or a Subsidiary, including all contracts, leases, permits, licenses, and rights associated therewith.
“Related Party Contract” means any contract between the Company or a Subsidiary and one or more Members and/or their respective Affiliates.
“Standby Rate” shall mean the 3 Month London Interbank Offered Rate as published on the Reuters Screen LIBOR01 (or any successor thereto) at approximately 11 am (London time) [*].
“Subsidiary” or “Subsidiaries” means any legal entity Controlled by the Company.
“Supermajority Vote” means (i) in the case of a vote by the Directors, the affirmative vote, approval or consent of the Directors appointed by Members owning at least a seventy-five percent (75%) Percentage Interests, and (ii) in the case of a vote by the Members, the affirmative vote, approval or consent by Members owning at least a seventy-five percent (75%) Percentage Interests.
“Support Obligations” shall mean any credit support (which may be in the form of letters of credit, guarantees, deposits, payment or performance bonds or other credit support) provided by a Member on behalf of the Company or any Subsidiary to a third-party funding provider relating to the development, construction, acquisition, ownership, maintenance or operation of the Projects, in each case, to the extent required under any Project contract approved by the Board.
“Third Party” means a Person who is neither a Member nor an Affiliate of a Member.
“Total B FMV” shall be as defined in Section 11.9.
“Total C FMV” shall be as defined in Section 11.9.
“Treasury Regulations” means the regulations promulgated under the IRC, as such regulations may be amended from time to time.
“Uncommitted” shall mean Capital Contributions attributable to the issuance of Class B Units which have not been specifically allocated to an approved Project.
“Unpaid Clean Payment Obligation” has the meaning given in Section 3.2 of this Agreement.
“US GAAP” means generally accepted accounting principles in the United States
promulgated by the Financial Accounting Standards Board, or its predecessors or successors, consistently applied.
Other capitalized terms not otherwise defined in this Section 1.1 shall have the meanings given to such capitalized terms in the provisions of this Agreement in which such capitalized terms are defined.
Certificate, confirm and agree to their status as Members of the Company, and execute this Agreement for the purpose of establishing the rights, duties and relationships of the Members. To the extent that the rights or obligations of any Member are different by reason of any provisions of this Agreement than they would be under the Act in the absence of such provisions, this Agreement shall, to the extent permitted by the Act, control.
provisions of applicable state law, and no provision of this Agreement shall be construed to sanction or approve such an election.
MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS
the right or obligation of any Member to make Capital Contributions or loans or to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the Parties and their respective successors and assigns. Except as set forth in Section 11.1D, none of the rights or obligations of the Members herein set forth to make Capital Contributions or loans to the Company shall be deemed an asset of the Company for any purpose by any Third Party creditor or other Third Party, nor may such rights or obligations be sold, transferred or assigned by the Company or pledged or encumbered by the Company to secure any debt or other obligation of the Company or of any of the Members.
MEETINGS AND ACTIONS OF THE MEMBERS
United States as the Board of Directors may designate by a Supermajority Vote. It is expected, but not required, that all meetings will coincide with the time and location of meetings of the Board of Directors. Meetings of Members may be held by use of any means of communication by which all Voting Members participating in the meeting may simultaneously hear each other.
under the terms of this Agreement or the Act. Except as provided in Section 5.2, for the Members’ designation of the Board of Directors in accordance with Section 5.3, or as otherwise specifically provided for herein as contemplating action by the Members, the management of the Company is vested in the Board of Directors.
of the Members is present at a meeting duly called in accordance with this Agreement, the required percentage of Members shall be calculated with reference to those Members attending the meeting.
CERTAIN RELATED PARTY ARRANGEMENTS
Section 6.5 Management Fee. Subject to the terms of this Agreement, including Section 3.2, as part of the A&A Services, Clean will oversee the day-to-day operations of the Company and related administrative and financial matters. In consideration for the A&A Services, the Company shall pay Clean a fee (the “Management Fee”) as provided in this Section 6.5. The Management Fee shall be [*] per year per Project operated by the Company or any Subsidiary of the Company. The Management Fee for a Project shall be prorated in the case of a partial year of operation for such Project. The Management Fee for each Project shall be due for the period starting on the first day of the month after the NTP Date for such Project, and shall end for such Project upon the earlier of: (i) termination of the relevant EPC Agreement without completion of the Project, (ii) failure of the project to obtain or maintain pathways under relevant LCFS, RINs or other similar green attribute programs, (iii) sale of the Project, (iv) abandonment of the Project prior to commissioning, or (v) the decommissioning of the Project. For the avoidance of doubt, no Management Fee shall accrue for any Project that is not owned by the Company or a Subsidiary of Company. The Management Fee shall be payable in monthly installments, by the 10th day of the calendar month following the month for which it is paid, to the account designated by Clean for such purpose.
BUDGETS; REPORTS; CERTAIN TAX MATTERS
The Company shall cause the Operator to provide any Member owning at least a twenty percent (20%) Percentage Interests in the Company with information and access to Operator personnel in accordance with the Operating Agreement. The costs related thereto shall be paid by the Member requesting such access.
Except to the extent expressly provided otherwise in this Agreement, Clean Energy may make any other election or tax-related decision or determination that Clean Energy may deem appropriate and in the best interests of the Company; provided, that Clean Energy shall endeavor to not make
any such election, decision or determination that reasonably would be expected to disproportionately and adversely affect any Member that owns more than twenty-five percent (25%) of the Percentage Interests in the Company without such Member’s written consent (not to be unreasonably withheld, conditioned or delayed).
One or more Company bank accounts may be established, and checks issued on these accounts shall be signed by the Person authorized by the Board. Except for changes authorized by a Supermajority Vote of the Board, the principles in this Section 7.6 shall apply.
CAPITAL ACCOUNTS AND TAX ALLOCATIONS
(iii) Third, to BP to the extent of its accrued but unpaid Priority Return on its Class B and C Units;
(iv) Fourth, to BP to the extent of any Class B and C Redemption Payments then due;
(v) Thereafter, subject to Section 3.2, to the Members pro rata in proportion to their respective Percentage Interests.
LIABILITY; INDEMNIFICATION; EXCULPATION; LIMITATION OF LIABILITY
TRANSFERS OF MEMBERSHIP INTERESTS
DISSOLUTION AND WINDING UP
The Parties to this Agreement acknowledge and agree that (i) neither Member has any fiduciary duty to any other Member of the Company with respect to matters relating to the dissolution of the Company other than as provided in Section 10.6, and (ii), to the extent that any court finds that a Member has such a fiduciary duty, the election of a Member to dissolve the Company pursuant to this Section 12.1 does not constitute a breach of such fiduciary duty, and all Parties knowingly, voluntarily and irrevocably waive any such claims for any alleged breach of fiduciary duty. The inclusion of this provision is not to be interpreted that any such claims exist or have any validity and is only to clarify that, in the event that a court determines that such claims exist, such claims are knowingly, voluntarily and irrevocably waived by all Parties.
OTHER MANAGEMENT ARRANGEMENTS AND DUTIES
completion of mediation, either Member may bring the matter to final and binding arbitration as provided in Section 14.3 of this Agreement.
M. Accredited Investor. Such Member is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect.
Chamber of Commerce , and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, pursuant to applicable law. Notwithstanding the foregoing, a Party may file a claim for equitable or injunctive relief in the appropriate court, pursuant to Section 14.4.
The prevailing Party in any arbitration proceeding or in any court proceeding shall have the right to recover from the other Party all costs and expenses, including reasonable attorneys’ fees and expenses of counsel, incurred by the prevailing Party in such arbitration proceeding or litigation. The arbitrator shall, and hereby is directed to, award such costs and expenses to the prevailing Party. Nothing in this second paragraph of this Section 14.3 shall be interpreted to suggest that arbitration is not mandatory, except under the circumstances set forth in the last sentence of the immediately preceding paragraph of this Section 14.3.
such service if (A) served personally upon the Party for whom intended, (B) sent by Federal Express or other nationally recognized over-night carrier or (C) by e-mail:
If to Clean:
With a copy to (which shall not constitute Notice):
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
Attn: SVP Renewable Fuels
If to BP:
BP Products North America Inc.
30 South Wacker Drive
Chicago, IL 60606
Attn: Sr. Vice President US Biogas
With a copy to (which shall not constitute Notice):
BP Products North America Inc.
30 South Wacker Drive
Chicago, IL 60606
Attn: GOA Legal Notice
or to any other addresses designated in writing by the receiving Party to the other Parties in accordance with the provisions of this Agreement.
Any notice duly given or sent as provided above shall be deemed received (i) on the date such notice was duly given if served personally upon the Party for whom intended; (ii) three (3) days after the date such notice was receipted for, if mailed by registered or certified mail, as provided herein; (iii) the next business day if sent by Federal Express or other nationally recognized over-night carrier; (iv) on the date of the confirmation receipt for any notice that was sent by facsimile; or (v) the date on which the e-mail which contains such notice was received.
[Signature Page Follows.]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
By: /s/ J. Nathan Jensen
Name: J. Nathan Jensen
Title: Senior Vice President, Co-Head Renewable
Fuels & Chief Legal Officer
BP PRODUCTS NORTH AMERICA INC.
By: /s/ Sean Reavis
Name: Sean Reavis
Title: Vice President
[Signature page to LLC Agreement]
CAPITAL CONTRIBUTIONS AND MEMBERSHIP INTERESTS
Initial Capital Contribution *
30,000,000 Class A
20,000,000 Class B
30,000,000 Class A
The form of funding of the initial Capital Contribution by each Member is set forth in the [*], the [*] and Section 3.2.
|1.||Clean shall perform the following services for the Company, in exchange for a base management fee of [*] per annum, payable in monthly installments, plus a per-project management fee of [*] per annum for each project contributed to the Company. Financial Management|
|i.||Prepare numbers and obtain approval from the Members for Capital Calls in accordance with Section 3.3C|
|ii.||Prepare numbers and obtain approval from the Members for Distributions in accordance with Article 9|
|iii.||Prepare Board Meeting materials and send to Members three (3) business days in advance of the meeting|
|iv.||Document Board Meeting minutes|
|v.||Retain a record of all Board approvals|
|vi.||Provide any other necessary administrative support|
Clean shall provide all services in accordance with Applicable Law and good industry practice. Clean shall enter into agreements with and pay its contractors and service providers, including Affiliates, on an arms length basis. Clean as Operator shall comply with the Anti-Corruption Laws, the Anti-Corruption Obligation, the principles of the BP Code, and the other requirements of Sections 5.6 and 5.7 of the Limited Liability Company Agreement. A breach of the Anti-Corruption Laws, the Anti-Corruption Obligation, or in any material respect of the
principles of the BP Code or the other requirements of Section 5.6 or 5.7 is in each case deemed to be a material breach for the purpose of Section 5 below.
BP CODE OF CONDUCT