exhibit1069-cobizloanagr







2013 LOAN AND SECURITY AGREEMENT   BETWEEN AND AMONG   ADA-ES, INC., AS BORROWER,   ADV AN CED EMISSIONS SOLUTIONS, INC., AS GUARANTOR,   AND   CO BIZ BANK, A COLORADO CORPORATION, D/B/A COLORADO BUSINESS   BANK, AS LENDER   DEC-1770697-10     





 







TABLE OF CONTENTS   ARTICLE I DEFINITIONS ........................................................................................................... 1   1.1 Defined Terms ........................................................................................................ 1   1.2 Accounting Terms ................................................................................................... 6   1.3 Computation of Time Periods ................................................................................. 6   ARTICLE II TERMS OF BORROWING SECURED LINE ......................................................... 6   2.1 Secured Line ........................................................................................................... 6   2.2 Limits on Commitment ........................................................................................... 6   2.3 Promissory Note ...................................................................................................... 6   2.4 Repayment of Principal ........................................................................................... 6   2.5 Interest; Interest Elections ....................................................................................... 6   2.6 Requests for Advances ............................................................................................ 7   2. 7 Collateral ................................................................................................................. 7   2.8 Security Interest ...................................................................................................... 7   2.9 Further Assurances .................................................................................................. 7   2.10 Lien Perfection ........................................................................................................ 8   2.11 Letter of Credit Facility .......................................................................................... 8   2.12 Application of Payments ....................................................................................... 10   2.13 Borrowing Base Deficiencies ............................................................................... 10   ARTICLE III FEES AND PAYMENT CONVENTIONS ........................................................... 10   3 .1 Default Interest. ..................................................................................................... 10   3.2 Promise to Pay Fees .............................................................................................. 10   3.3 Computation oflnterest and Fees ......................................................................... 11   ARTICLE IV CONDITIONS PRECEDENT ............................................................................... 11   4.1 Conditions Precedent to Advances ....................................................................... 11   4.2 Conditions Precedent to All Advances ................................................................. 12   ARTICLE V REPRESENTATIONS AND WARRANTIES ....................................................... 12   5.1   5.2   5.3   5.4   5.5   5.6   5.7   5.8   5.9   5.10   5.11   5.12   5.13   DEC-1770697-10   Existence ............................................................................................................... 12   Capacity ................................................................................................................ 13   Place of Business .................................................................................................. 13   Financial Condition ............................................................................................... 13   Taxes ..................................................................................................................... 13   Litigation ............................................................................................................... 14   Validity of Loan Documents ................................................................................. 14   No Consent or Filing ............................................................................................. 14   No Violations ........................................................................................................ 14   Contingent Liabilities ............................................................................................ 14   Compliance With Laws ......................................................................................... 14   Licenses, Permits, Etc ........................................................................................... 15   Accurate Information ............................................................................................ 15   1     





 







AR TIC LE VI AFFIRMATIVE COVENANTS ........................................................................... 15   6.1 Taxes ..................................................................................................................... 15   6.2 Litigation ............................................................................................................... 15   6.3 Good Standing; Business ...................................................................................... 15   6.4 Compliance with Environmental Laws ................................................................. 16   6.5 Notice of Noncompliance ..................................................................................... 16   6.6 Insurance ............................................................................................................... 16   6.7 Insurance Reports .................................................................................................. 16   6.8 Compliance With Laws and Contractual Obligations .......................................... 17   6.9 Maintenance of Property ....................................................................................... 17   6.10 Licenses, Permits, Etc ........................................................................................... 17   6.11 Financial Information ............................................................................................ 17   6.12 Liquidity Covenant ............................................................................................... 18   6.13 Tangible Equity Covenant .................................................................................... 18   6.14 First Lien on Collateral ......................................................................................... 18   ARTICLE VII NEGATIVE COVENANTS ................................................................................. 19   7 .1 Borrowed Money .................................................................................................. 19   7 .2 Security Interest and Other Encumbrances ........................................................... 19   7 .3 Mergers, Consolidations, Sales or Acquisitions ................................................... 19   7.4 Investments and Advances .................................................................................... 19   7.5 Guaranties Other than Permitted Guaranties ........................................................ 20   7.6 Change of Name or Domicile ............................................................................... 20   7. 7 Disposition of Collateral ....................................................................................... 20   7.8 No Violations ........................................................................................................ 20   7.9 Capitalization ........................................................................................................ 20   ARTICLE VIII DEFAULT AND REMEDIES ............................................................................ 20   8 .1 Default ................................................................................................................... 21   8.2 Remedies ............................................................................................................... 22   8.3 Possession of Collateral; Standard of Care ........................................................... 22   8.4 Lender Appointed Attorney-in-Fact ..................................................................... 22   ARTICLE IX INDEMNIFICATION ........................................................................................... 23   9 .1 Indemnification by Borrower ................................................................................ 23   9 .2 Indemnification Procedure .................................................................................... 23   9.3 Limitation on Indemnification .............................................................................. 24   9.4 Survival ................................................................................................................. 24   ARTICLE X MISCELLANEOUS ............................................................................................... 24   10.1 Expenses ............................................................................................................... 24   10.2 Lender's Consents, Waivers and Amendments .................................................... 24   10.3 Performance Of Borrower's Duties ...................................................................... 24   10.4 Waiver By Borrower ............................................................................................. 24   10.5 Seto ff. .................................................................................................................... 25   10.6 Assignment ........................................................................................................... 25   10.7 Successors and Assigns ......................................................................................... 25   DEC-1770697-10 11     





 







10.8 Modification, Waiver ............................................................................................ 25   10.9 Counterparts .......................................................................................................... 25   10.10 Termination ....................................................................................................... 25   10.11 Further Assurances ............................................................................................ 26   10.12 Headings ........................................................................................................... 26   10.13 Cumulative Security Interest, Etc ..................................................................... 26   10.14 Lender's Duties ................................................................................................. 26   10.15 Notices Generally .............................................................................................. 26   10.16 Severability ....................................................................................................... 26   10.17 Inconsistent Provisions ..................................................................................... 27   10.18 Entire Agreement .............................................................................................. 27   10.19 Consent To Jurisdiction .................................................................................... 27   10.20 Jury Trial Waiver .............................................................................................. 27   10.21 No Oral Agreements ......................................................................................... 27   10.22 Release of Claims ............................................................................................. 27   10.23 Applicable Law ................................................................................................. 28   EXHIBIT A FORM OF PROMISSORY NOTE .......................................................................... 29   EXHIBIT B FORM OF PROPOSED BORROWING REQUEST .............................................. 31   EXHIBIT C FORM OF BORROWING BASE CERTIFICATE ................................................. 33   EXHIBIT D FORM OF BORROWER CERTIFICATE .............................................................. 34   EXHIBIT E FORM OF FINANCIAL STATEMENT CERTIFICATION .................................. 35   EXHIBIT F FORM OF COMPLIANCE CERTIFICATE ........................................................... 36   EXHIBIT G FORM OF GUARANTY ......................................................................................... 38   DEC-1770697-10 111     





 







2013 LOAN AND SECURITY AGREEMENT   This 2013 LOAN AND SECURITY AGREEMENT (as it may be amended, modified,   supplemented and restated from time to time, this "Agreement") is made and dated as of   September 19, 2013, by and among ADA-ES, INC., a Colorado corporation ("Borrower"),   ADV AN CED EMISSIONS SOLUTIONS, INC., a Delaware corporation ("ADES"), and COBIZ   BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender").   RECITALS   A. Borrower and Lender wish to enter into this Agreement whereby Lender will   make available to Borrower a secured line of credit in the amount of the Maximum Secured Line   upon and subject to the terms and conditions set forth in this Agreement.   B. ADES is a publicly traded corporation and owns one hundred percent (100%) of   the stock of Borrower.   NOW, THEREFORE, in consideration of the premises and of the mutual covenants   contained in this Agreement, the parties hereto agree as follows:   ARTICLE I   DEFINITIONS   1.1 Defined Terms. As used in this Agreement and in the recitals hereto, the   following terms shall have the following respective meanings (such terms to be equally   applicable to both the singular and plural forms of the terms defined):   "Accounts" means all income, revenues, rents, issues and profits, and rights to payment   of money to the extent paid, distributed or owed to or acquired by Borrower in accordance with   the CCS membership and operating agreements related to:   (a) the tax credit income received by CCS for the AECI Leases;   (b) the rent payments made by Goldman Sach's Affiliate, GS RC Investments   LLC ("GS RC") to AEC-NM, LLC and AEC-TH, LLC pursuant to the AECI Leases;   and   (c) the guaranty dated March 8, 2013 from The Goldman Sachs Group, Inc. to   each of AEC-NM, LLC and AEC-TH, LLC (the "GS Guaranty"), whether now existing   or hereafter arising.   "Advances" means advances of funds from Lender to Borrower pursuant to the terms of   this Agreement.   "ADES" is defined in the preface hereof.   "ADES Guaranty" means the guaranty of Borrower's obligations hereunder provided by   ADES in the form of Exhibit G attached hereto.   DEC-1770697-10 1     





 







"AEC-NM, LLC" means the Colorado limited liability company wholly owned by CCS.   AEC-NM, LLC owns and leases the equipment comprising the refined coal production facility   operating at the New Madrid Power Plant owned by Associated Electric Cooperative, Inc.   "AEC-TH, LLC" means the Colorado limited liability company wholly owned by CCS.   AEC-TH, LLC owns and leases the equipment comprising the refined coal production facility   operating at the Thomas Hill Power Plant owned by Associated Electric Cooperative, Inc.   "AECI Leases" means the rights and responsibilities of the parties to the NM Lease, the   NM Exchange Agreement, the TH Lease and the TH Exchange Agreement as set forth therein   including the obligations of the parties to pay costs and the right to receive tax credit revenue and   rental payments in accordance with those Agreements.   "Affiliate" means with respect to Borrower, CCS (including CCS subsidiaries) and   CCSS, BCSI, LLC, and any Person controlling Borrower, controlled by Borrower or under   common control with Borrower.   "Borrower" is defined in the initial paragraph hereof.   "Agreement" is defined in the Preface hereof.   "Authorized Signer" means, with respect to Borrower, one of Michael D. Durham, Mark   McKinnies, C. Jean Bustard, and Jonathan Lagarenne and such other Persons each of whom shall   be designated from time to time in a writing delivered to Lender by any Authorized Signer; and   with respect to Lender, any vice president or any assistant vice president of Lender.   "Base Rate" means the Prime Rate plus one percent ( 1 % ), but never less than five   (5.00%).   "BCSI, LLC" is a one hundred percent (100%) owned subsidiary of ADES.   "Borrowing Base" means, as of any date, the sum of:   (a) ninety percent (90%) of the net present value, applying a ten percent   ( 10%) discount rate, of the fixed payments due to Borrower by CCS as the result of the   AECI Leases; and   (b) eighty percent (80%) of the net present value, applying a ten percent   (10%) discount rate, of the contingent payments due to Borrower by CCS as the result of   the AECI Leases with the expected amount calculated as shown on the Borrower Base   Certificate last delivered to Lender by Borrower.   "Borrowing Base Certificate" means a certificate or certificates showing the calculation   of the Borrowing Base executed by an Authorized Signer in the form attached hereto as   Exhibit C, or such other form or forms as may be mutually agreed upon by Lender and   Borrower from time to time.   DEC-1770697-10 2     





 







"Borrowing Base Deficiency" means, as of any date, the amount, if any, by which the   Borrowing Base as of such date is less than the Secured Line Balance as of such date.   "Borrower" is defined in the Preface hereof.   "Business Day" means a day, other than a Saturday, Sunday or other day, on which   banks are open for business in New York, New York.   "CCS" is defined as Clean Coal Solutions, LLC, a Colorado limited liability company, of   which Borrower owns forty two and one half percent (42.5%) of the membership interests.   "CCSS" is defined as Clean Coal Solutions Services, LLC, a Colorado limited liability   company, of which Borrower owns fifty percent (50%) of the membership interests.   "Claim" is defined in Section 9.2 hereof.   "Collateral" is defined in Section 2.8 hereof.   "Default Rate" means a rate of interest per annum that shall be for ten (10) percentage   points above the Base Rate then in effect.   "Event of Default" means any one or more of the events described in Section 8.1 hereof.   "GAAP" means those financial accounting principles generally accepted in the United   States of America.   "GS RC" is defined in the definition of "Accounts".   "GS Guaranty" is defined in the definition of "Accounts".   "Indebtedness" means all outstanding amounts evidenced by the Promissory Note,   secured by the Security Interests described in Section 2.8 hereof, together with all other amounts   due, or which may become due, including but not limited to interest, under this Agreement or   any of the Loan Documents.   "Indemnified Liabilities" is defined in Paragraph 9 .1 hereof.   "Indemnified Parties" is defined in Section 9.1 hereof.   "Interest Payment Date" shall mean the first (1st) day of each month, or the first   Business Day immediately thereafter, beginning on October 20, 2013.   "Lender" is defined in the Preface hereof.   "Lender Parties" is defined in Section 10.22 hereof.   "Loan Documents" means this Agreement, the Promissory Note, and all other   agreements and documents, now or hereafter required to be executed by Borrower or ADES in   favor of Lender and related to the Secured Line.   DEC-1770697-10 3     





 







"Material Adverse Effect" means any event that has materially adversely affected:   (a) the financial condition or business operations of Borrower;   (b) the validity or enforceability of any material portion of the Collateral or   Loan Documents; or   (c) the ability of Borrower to perform its material obligations under this   Agreement.   "Maximum Secured Line" is defined in Section 2.1 hereof.   "NM Lease" means the Amended and Restated Equipment Lease (New Madrid) between   GS RC and AEC-NM, LLC dated March 8, 2013.   "NM Exchange Agreement" means the Exchange Agreement dated as of November 21,   2011, as amended on March 8, 2013, between CCS, AEC-NM, LLC and GS RC.   "Obligations" means all Advances, debts, liabilities, obligations, covenants and duties   owing, arising, due or payable from Borrower to Lender of any kind or nature, present or future,   whether or not evidenced by any note, guaranty or other instrument, that arise under this   Agreement or any of the other Loan Documents, whether direct or indirect (including those   acquired by assignment), absolute or contingent, primary or secondary, due or to become due,   now existing or hereafter arising and however evidenced or acquired. The term includes, without   limitation, all principal, interest, any other sums chargeable to Borrower under any of the Loan   Documents, and all costs and expenses of any kind and nature incurred by Lender in the   administration or enforcement of this Agreement or any of the other Loan Documents, including,   without limitation, all attorneys' fees, consultants' fees, appraisal fees and costs, receivers' fees,   and all costs and expenses incurred by Lender in protecting its interest in any Collateral.   "Permitted Guaranties" means:   (a) Borrower's Limited Guaranty dated November 21, 2011 with regard to the   obligations of AEC-NM, LLC;   (b) Borrower's Limited Guaranty dated December 15, 2011 with regard to the   obligations of AEC-TH, LLC;   (each of (a) and (b) is a continuing Borrower obligation in support of the AECI Leases),   and include any amendments, extensions or replacements thereto ,provided that Borrower   has furnished Lender with a copy of each such amendment, extension or replacements;   (c) Each of Borrower's Guaranty Agreements dated August 30, 2012 with   regard to Borrower Affiliate, BCSI, LLC's, obligations under the each of the Goodwill   Promissory Note and the Non-Compete Promissory Note both dated August 30, 2012 and   payable to William R. Caputo, including any amendments, extensions or replacements   thereto, provided that Borrower furnishes Lender with a copy of each amendment,   extension or replacement thereto; and   DEC-1770697-10 4     





 







( d) any other agreements of Borrower to guarantee the obligations of a   Borrower Affiliate in the ordinary course of that Borrower Affiliate's business provided   that Borrower has furnished Lender with a copy of each such agreement and any   amendments, extensions or replacements thereto.   "Person" means any natural person, corporation, partnership, corporation, joint venture,   firm, association, trust, unincorporated organization, government or governmental agency or   political subdivision or any other entity, whether acting in an individual, fiduciary or other   capacity.   "Potential Default" means any one or more of the events described in Section 8.1 hereof   which but for the giving of notice or passage of time or both would be an Event of Default.   "Prime Rate" means the rate of interest per annum which is most recently announced by   the Wall Street Journal as the "prime lending rate,'' which may be a rate at, above or below the   rate or rates at which Lender lends to other Persons and is not necessarily the lowest rate charged   by Lender on commercial loans. For purposes of determining any interest rate hereunder or   under the Promissory Note which is based on the Prime Rate, such interest rate shall change as,   when and on the calendar day on which the Prime Rate changes.   "Promissory Note" is defined in Section 2.3 hereof.   "Secured Line" is defined in Section 2.1 hereof.   "Secured Line Balance" means, as of any date, the outstanding principal balance of the   Secured Line as of such date.   "Secured Line Termination Date" means September 20, 2014, or such earlier date as   may occur pursuant to Section 8.2 hereof.   "Security Interests" is defined in Section 2.8 hereof.   "Settlement Agreements" is defined in Section 5.6 hereof.   "TH Lease" means the Amended and Restated Equipment Lease (Thomas Hill) between   GS RC and AEC-TH, LLC dated March 8, 2013.   "TH Exchange Agreement" means the Exchange Agreement dated as of December 15,   2011 and amended on March 8, 2013 between CCS, AEC-NM, LLC and GS RC.   "Trigger Date" means that date which is ten (10) Business Days after the date Borrower   submits a Borrowing Base Certificate to Lender which indicates that there is a Borrowing Base   Deficiency.   "UCC" means the Uniform Commercial Code as adopted in the State of Colorado from   time to time.   DEC-1770697-10 5     





 







1.2 Accounting Terms. All accounting terms not specifically defined herein shall be   construed in accordance with GAAP.   1.3 Computation of Time Periods. Unless otherwise stated in this Agreement, in the   computation of a period of time from a specified date to later specified date the word "from"   means "from and including" and the words "to" and "until" mean "to but excluding."   ARTICLE II   TERMS OF BORROWING SECURED LINE   2.1 Secured Line.   (a) Subject to the following terms, conditions and limitations, Lender agrees   to make available to Borrower a line of credit (the "Secured Line") in the maximum   aggregate principal amount of Ten Million and Noll 00 Dollars ($10,000.000.00) (the   "Maximum Secured Line").   (b) The aggregate outstanding principal balances of all Advances hereunder   may not exceed the Maximum Secured Line.   ( c) Amounts borrowed under the Secured Line may be repaid prior to the   Secured Line Termination Date without penalty.   ( d) Borrower shall be permitted to reborrow hereunder.   2.2 Limits on Commitment. Lender's commitment to make Advances hereunder is   subject to the conditions in Article IV below and the following limitations:   (a) Lender's commitment to lend hereunder shall terminate on the Secured   Line Termination Date; and   (b) Lender shall not be obligated to make any Advance if an Event of Default   or a Potential Default has occurred and has not been cured by Borrower or waived by   Lender.   2.3 Promissory Note. Borrower's indebtedness to Lender for amounts borrowed   under the Secured Line and for interest accrued thereon shall be evidenced by and be payable   according to the terms of Borrower's promissory note to Lender, in the form attached hereto as   Exhibit A, in the principal amount of the Maximum Secured Line (the "Promissory Note") and   any extensions or renewals thereof.   2.4 Repayment of Principal. Borrower agrees to repay all Advances made hereunder   in accordance with the terms hereof. The Secured Line Balance will be due and payable in full   on the Secured Line Termination Date, subject to acceleration in accordance with Section 8.2(b ).   2.5 Interest; Interest Elections. Interest will accrue on the daily outstanding Secured   Line Balance at a rate per annum equal at all times to the Base Rate in effect from time to time,   which will change when and as the Base Rate changes. Borrower agree to pay interest:   DEC-1770697-10 6     





 







(a) on that portion of the Secured Line Balance accruing at the Base Rate in   arrears monthly and from time to time on each Interest Payment Date (and with respect to   the Interest Payment Date which is October 20, 2013, all interest accrued from the date of   the first Advance through that Interest Payment Date);   (b) on the Secured Line Termination Date; and   (c) on demand after such Secured Line Termination Date.   2.6 Requests for Advances. Borrower shall request an Advance hereunder not later   than 12:00 p.m. Denver, Colorado time on the date (which shall be a Business Day) such   Advance is to be made. Each such request shall be effective upon receipt by Lender, shall be in   writing in the form attached as Exhibit B hereto as a Borrowing Notice (which shall include a   Borrowing Base Certificate), and shall be given by: (a) an Authorized Signer; or (b) a Person   whom Lender reasonably believes to be an Authorized Signer or a designated agent. Each such   notice of borrowing shall be irrevocable and shall be deemed a representation by Borrower that   all conditions precedent to such borrowing have been satisfied.   2.7 Collateral. The repayment of all of Borrower's indebtedness to Lender under the   Secured Line shall be secured by first priority security interests (the "Security Interests") in all   of Borrower's rights in or to the Collateral.   2.8 Security Interest. As security for the payment of the Obligations, now existing or   in the future incurred, and including any extensions or renewals or changes in form of the   Secured Line, and all costs and expenses of collection, including, without limitation, attorneys'   fees, Borrower hereby grants to Lender a Security Interest in and a lien upon the assets of   Borrower listed below in, to, or under which Borrower now has or hereafter acquires any right,   title or interest, whether present, future, or contingent (collectively, the "Collateral"),as follows::   (a) All of Borrower's Accounts;   (b) All contracts, agreements, leases, and other documents associated with the   AECI Leases to the extent they evidence the Accounts ;   ( c) The GS Guaranty to the extent it relates to the Accounts; and   ( d) All proceeds, products, replacements, or substitutions of any of the   foregoing, in any form, including all proceeds received, due or to become due from any   sale, exchange or other disposition thereof, whether such proceeds are cash or non-cash   in nature, and whether represented by checks, drafts, promissory note or other   instruments for the payment of money.   Borrower shall report on the amount of Collateral on each Borrowing Base Certificate.   2.9 Further Assurances. At Lender's request, Borrower shall also promptly execute   or cause to be executed and shall deliver to Lender any additional documents, instruments and   agreements deemed necessary by Lender to give effect to or carry out the terms or intent of   Section 2.8 hereof or any other provision of the Loan Documents. Without limiting the   DEC-1770697-10 7     





 







foregoing, Borrower shall execute, for the benefit of Lender, such security agreements as Lender   may require with respect to the security interest granted in Section 2.8 hereof.   2.10 Lien Perfection. Borrower acknowledge that Lender shall file and/or record such   UCC financing statements and other documents Lender requires in order to perfect Lender's lien   upon any of the Collateral and shall take such other action as may be required to perfect or to   continue the perfection of Lender's lien upon the Collateral. Borrower authorizes Lender to file   any such financing statements. Borrower agrees to take whatever actions are requested by   Lender to perfect and continue Lender's security interest in the Collateral. Upon request of   Lender, Borrower will deliver to Lender any and all of the documents evidencing or constituting   the Collateral, and Borrower will note Lender's interest upon any and all chattel paper and   instruments not delivered to Lender for possession by Lender. When the Indebtedness has been   paid in full after the Agreement has been terminated, Lender shall release all liens upon the   Collateral and shall file and/or record such documents as are required to evidence such release in   a timely manner and provide Borrower with evidence of such release.   2.11 Letter of Credit Facility.   (a) Subject to the terms and conditions of this Agreement and the other Loan   Documents, the Secured Line may be utilized, upon request of Borrower, in addition to   the Advances, for the issuance of Letters of Credit by Lender provided, however, that in   no event shall:   (i) the aggregate amount of the Letters of Credit, plus the aggregate   principal amount of all Advances then outstanding, exceed at any time the   Borrower Base;   (ii) the expiration date of any Letter of Credit extend beyond the   Maturity Date;   (iii) Lender be obligated to issue any Letter of Credit at any time while   there then exists and is continuing any Default or Event of Default; nor   (iv) any Letter of Credit be issued in a currency other than United   States Dollars nor at a tenor other than sight.   (b) Whenever Borrower requires the issuance of a Letter of Credit Borrower   shall give Lender at least three (3) Business Days' written notice. The Letter of Credit   request shall be accompanied by documentation describing in reasonable detail the   proposed terms, conditions and format of the Letter of Credit to be issued, and the Letter   of Credit request shall be accompanied by Lender's form of application. If there is any   conflict between the terms and provisions of the Agreement and the terms and conditions   of any application, the terms and conditions of this Agreement shall govern and control.   ( c) The fee for Letters of Credit issued by Lender in the ordinary course of   Borrower's business shall be two percent (2.00%) of the face amount of each Letter of   Credit per year. If a Letter of Credit is issued by another bank, at Lender's arrangement,   DEC-1770697-10 8     





 







the fee for any such third party bank Letters of Credit shall be two and one half percent   (2.50%) of the face amount of each Letter of Credit per year.   ( d) On each date during the period commencing with the issuance by Lender   of a Letter of Credit and until that Letter of Credit shall have expired or been terminated,   the Loan shall be deemed to be utilized for all purposes hereof in an amount equal to the   principal face amount of the Letter of Credit (after reductions for any payments or   reimbursements made by Borrower to Lender under the Letter of Credit following any   drawings by any beneficiary under the Letter of Credit), it being understood that no such   drawings under the Letter of Credit shall have the effect of increasing the principal   amount advanced on the Loan beyond the principal face amount of the Letter of Credit.   ( e) In the event Lender has determined to honor a drawing under a Letter of   Credit, Lender shall promptly notify Borrower of the amount paid by Lender and the date   on which such payment is to be made to such beneficiary. Borrower hereby   unconditionally agrees to pay and reimburse Lender for the amount of payment under the   Letter of Credit, together with interest thereon at a rate per annum equal to the Base Rate   in effect from time to time, anything in this Agreement or the other Loan Documents to   the contrary notwithstanding, from the date payment was made to such beneficiary to the   date on which payment is due to Lender, such payment to be made to Lender no later   than the first Business Day after the date on which Borrower receives such notice from   Lender. Any payment due from Borrower with respect to the Letter of Credit not paid on   the required date shall thereafter bear interest at the Default Rate.   (f) Notwithstanding the foregoing, Lender shall not be under any obligation   to issue any Letter of Credit if at the time of such issuance, any order, judgment or decree   of any governmental authority or agency or arbitrator shall purport by its terms to enjoin   a restraining Lender from issuing a Letter of Credit or any statute, law, rule, regulation or   other legal requirement applicable to Lender or any request or directive (whether or not   having the force of law) from any such governmental authority or agency shall prohibit   the issuance ofletters of credit generally or the Letter of Credit in particular or shall   impose upon Lender with respect to the Letter of Credit any restriction or reserve or   capital requirement (for which Lender is not otherwise compensated) not in effect on the   date of closing of the Loan.   (g) The obligations of Borrower under this Agreement and any other Loan   Documents to reimburse Lender for drawing under a Letter of Credit, and to repay any   drawing under a Letter of Credit shall be unconditional and irrevocable, and shall be paid   strictly in accordance with the terms of this Loan Agreement and each other Loan   Document and regardless of any and all circumstances, including the following: (i) any   lack of validity or enforceability of this Agreement or any other Loan Document; (ii) the   existence of any claims, setoff, defense or other right that Borrower may have at any time   against any beneficiary or transferee of any Letter of Credit (or any person for whom any   such beneficiary or such transferee may be acting), Lender or any other person, whether   in connection with this Loan Agreement, the transactions contemplated hereby, or by the   Loan Documents or any unrelated transaction; (iii) any draft, demand, certificate or other   document presented under any Letter of Credit proving to be forged, fraudulent, invalid   DEC-1770697-10 9     





 







or insufficient in any respect or any statement therein being untrue or inaccurate in any   respect; or any loss or delay in the transmission or otherwise of any document required in   order to make the drawing under any Letter of Credit; or any defense based upon the   failure of any drawing under a Letter of Credit to confonn to the terms of the Letter of   Credit or any non-application or misapplication by the beneficiary of the proceeds of   such drawing; or (iv) any other circumstance happening whatsoever, whether or not   similar to any of the foregoing, including any other circumstance that might otherwise   constitute a defense available to, or a discharge from, Borrower. To the extent that any   provision of any Letter of Credit is inconsistent with the provisions of this Section, the   provisions of this Section shall govern and control.   (h) If any Letter of Credit is issued with an expiration date which is later than   the Secured Line Termination Date, then this Agreement will remain in full force and   effect as to all amounts outstanding hereunder including the amount of any outstanding   Letter of Credit until the Indebtedness has been paid in full.   2.12 Application of Payments. Payments made by Borrower shall be applied in the   following priority and amounts:   (a) to Lender, for payment of fees and expenses then due and owing under   this Agreement;   (b) to Lender for payment of interest accrued under this Agreement;   ( c) to Lender, an amount necessary to repay the outstanding Advances, until   all outstanding Advances are reduced to zero ($0.00); and   ( d) any remaining funds to Borrower, which funds shall be automatically   released from, and free from, the liens created hereunder or under any Loan Document   and as to which Lender shall have no claim.   2.13 Borrowing Base Deficiencies. Whenever a Borrowing Base Deficiency exists,   Borrower shall repay such amount as shall be sufficient to eliminate such Borrowing Base   Deficiency and in any event such delivery or repayment shall be made within ten (10) Business   Days after any Trigger Date that evidences a Borrowing Base Deficiency.   ARTICLE III   FEES AND PAYMENT CONVENTIONS   3 .1 Default Interest. Notwithstanding the rates of interest specified herein and the   payment dates specified herein, effective immediately upon the occurrence and during the   continuance of any Event of Default and upon receipt of notice from Lender thereof, the   principal balance of all outstanding Advances hereunder shall bear interest payable upon demand   at the Default Rate.   3.2 Promise to Pay Fees. Borrower shall pay Lender, on or before execution of this   Agreement a loan origination fee of One Hundred Thousand and no/100 Dollars ($100,000.00).   DEC-1770697-10 10     





 







3.3 Computation oflnterest and Fees. Interest and fees shall be computed on the   basis of the actual number of days elapsed in the period during which interest or fees accrue and   a year of three hundred sixty (360) days. Notwithstanding any of the terms and conditions   contained in this Paragraph, interest in respect of the Secured Line Balance shall not exceed the   maximum rate permitted by applicable law.   ARTICLE IV   CONDITIONS PRECEDENT   4.1 Conditions Precedent to Advances. The obligation of Lender to make the   Advances is subject to the condition precedent that Lender shall have received on or before the   day of the first Advance the following in form and substance reasonably satisfactory to Lender:   (a) the Promissory Note and such Loan Documents as may be specified by   Lender, each duly executed by Borrower or ADES, as applicable, including, UCC-1   financing statements, naming Borrower as the debtor, suitable for filing in Colorado, and   such other similar instruments or documents as in the reasonable opinion of Lender may   be necessary under applicable law to perfect Lender's lien on the Collateral, pledged   hereunder;   (b) copies of the articles of incorporation, bylaws and any shareholder   agreements of Borrower and ADES, each certified by an Authorized Signer to be a true   and correct copy thereof, including all amendments thereto, if any;   (c) certified copies of the resolutions of Borrower and ADES approving this   Agreement, the Promissory Note and the Loan Documents and the transactions   contemplated thereby, and all other necessary action and governmental approvals, if any,   with respect to this Agreement, the Promissory Note and the Loan Documents shall have   been taken, each certified by an Authorized Signer to be a true and correct copy thereof;   ( d) a certificate of an Authorized Signer certifying the names and true   signatures of the Persons authorized on Borrower's and ADES' behalf to sign this   Agreement, the Promissory Note and the Loan Documents;   ( e) a certificate of the Secretary of State of the State of Colorado certifying   that Borrower is a corporation duly organized and in good standing under the laws of   Colorado;   (f) a certificate of the Secretary of State of the State of Delaware certifying   that ADES is a corporation duly organized and in good standing under the laws of   Delaware;   (g) a Borrowing Base Certificate in the form of Exhibit C attached hereto;   and   (h) Borrower shall execute and deliver to Lender the Certificate in the form of   Exhibit D attached hereto.   DEC-1770697-10 11     





 







(i) ADES shall execute and deliver to Lender the ADES Guaranty in the form   of Exhibit G attached hereto.   4.2 Conditions Precedent to All Advances. The obligation of Lender to make each   Advance shall be subject to the further conditions precedent that on the date of such Advance:   (a) Lender shall have received a Borrowing Notice;   (b) Lender shall have received a Borrowing Base Certificate, if no Borrowing   Base Certificate has been delivered to the Lender in the preceding thirty (30) days;   ( c) the following statements shall be true:   (i) the representations and warranties contained in Article V hereof   are correct in all material respects on and as of the date of such Advance as   though made on and as of such date (unless any such representation or warranty   relates to a different date);   (ii) there has been no material adverse change in any Borrower's   financial condition since the date of the most recent statements delivered to   Lender pursuant to Paragraph 6.11 hereof;   (iii) no event has occurred and is continuing, or would result from such   Advance, which constitutes an Event of Default or Potential Default.   (iv) Borrower has provided Lender with a certificate of an Authorized   Signer stating the foregoing;   ( d) Lender shall have received such other approvals, opinions or documents as   Lender may reasonably request; and   ( e) Lender's legal counsel is reasonably satisfied as to all legal matters   incident to the making of such Advance.   ARTICLE V   REPRESENTATIONS AND WARRANTIES   To induce Lender to enter into this Agreement, make available the Secured Line and   make Advances to Borrower from time to time as herein provided, Borrower represents and   warrants as follows:   5.1 Existence. Borrower is duly organized and existing and in good standing under   the laws of the jurisdiction of its incorporation or formation and is duly licensed or qualified to   do business and in good standing in every state in which the nature of its business or ownership   of its property requires such licensing or qualification where failure to do so would have a   Material Adverse Effect. Borrower is organized in Colorado and its organizational identification   number is 19971016855. ADES is duly organized and existing and in good standing under the   laws of the jurisdiction of its incorporation or formation and is duly licensed or qualified to do   DEC-1770697-10 12     





 







business and in good standing in every state in which the nature of its business or ownership of   its property requires such licensing or qualification where failure to do so would have a Material   Adverse Effect. ADES is organized in Delaware and its organizational identification number is   4926747.   5.2 Capacity. The execution, delivery, and performance of the Loan Documents to   which Borrower is a party are within Borrower's corporate or other organizational powers, have   been duly authorized by all necessary and appropriate corporate or other organizational action,   and are not in contravention of any law or the terms of Borrower's articles of incorporation,   bylaws or other organizational documents or any amendment thereto, or of any material   indenture, agreement, undertaking, or other document to which Borrower is a party or by which   Borrower's material property is bound or affected. The execution, delivery, and performance of   the Loan Documents to which ADES is a party are within ADES 's corporate or other   organizational powers, have been duly authorized by all necessary and appropriate corporate or   other organizational action, and are not in contravention of any law or the terms of ADES's   articles of incorporation, bylaws or other organizational documents or any amendment thereto, or   of any material indenture, agreement, undertaking, or other document to which ADES is a party   or by which ADES's material property is bound or affected.   5.3 Place of Business.   (a) Borrower is engaged in business operations which are in whole, or in part,   carried on at the address specified on the signature pages to this Agreement;   (b) if Borrower has more than one place of business, its chief executive office   is at the address specified as such on the signature pages to this Agreement; and   (c) Borrower's records concerning the Collateral are kept at the address or   addresses specified on the signature pages to this Agreement except that Borrower may   keep non-current records concerning the Collateral in off-site storage.   5.4 Financial Condition. All financial statements concerning Borrower or ADES,   which have been or will hereafter be furnished to Lender, have been or will be prepared in   conformity with GAAP consistently applied (except as disclosed therein) and do or will present   fairly in all material respects the financial condition of the entities (in the case of ADES, the   consolidated entities) covered thereby as of the dates thereof and the results of their operations   for the periods then ended, it being understood that all interim financial statements are subject to   year-end adjustments and are not required to have footnote disclosures.   5.5 Taxes. All federal and other tax returns required to be filed by Borrower have   been filed, are true, complete and correct, and all taxes required by such returns to be paid have   been paid when due (except with respect to such taxes where the validity is being contested in   good faith, and by appropriate proceedings diligently conducted, and adequate reserves for the   payment thereof have been established). Neither Borrower nor ADES have received any notice   from the Internal Revenue Service or any other taxing authority proposing additional taxes.   Neither Borrower nor ADES are the subject of any review or audit by the Internal Revenue   Service or any governmental investigation concerning the violation or possible violation of any   DEC-1770697-10 13     





 







law, except to the extent that such review or audit could not reasonably be expected to have,   either individually or in the aggregate, a Material Adverse Effect.   5.6 Litigation. Other than the arbitration award issued on April 8, 2011 in favor of   Norit Americas, Inc. and Norit International, N.V., and the related subsequent confidential   settlement agreement dated August 29, 2011 and indemnity settlement agreement dated   November 28, 2011, the material terms of which have been disclosed to Lender ("Settlement   Agreements"), there are no actions, suits, proceedings, or investigations pending or, to the   knowledge of Borrower or ADES, threatened against Borrower which, if adversely determined,   would, in any case or in the aggregate, have a Material Adverse Effect.   5.7 Validity of Loan Documents. The Loan Documents constitute the legal, valid,   and binding obligations of Borrower and ADES enforceable in accordance with their respective   terms, except as enforceability may be limited by applicable bankruptcy and insolvency laws,   laws affecting creditors' rights generally or general principles of equity.   5.8 No Consent or Filing. No consent, license, approval, or authorization of, or   registration, declaration, or filing with, any court, governmental body or authority, or other   Person or entity, where the absence of which would have a Material Adverse Effect, is required   in connection with the valid execution, delivery, or performance of the Loan Documents or for   the conduct of Borrower's business as now conducted, other than filings and recordings to   perfect security interests in or liens on the Collateral in connection with the Loan Documents.   5.9 No Violations. Borrower is not in violation of any term of its organizational   documents or of any material mortgage, borrowing agreement, or other instrument or agreement   pertaining to indebtedness for borrowed money. Borrower is not in violation of any term of any   other indenture, instrument, or agreement to which it is a party or by which it or its property may   be bound, resulting in, or which would have a Material Adverse Effect. Borrower is not in   violation of any order, writ, judgment, injunction, or decree of any court of competent   jurisdiction or of any statute, rule, or regulation of any governmental authority that would have a   Material Adverse Effect. The execution and delivery of the Loan Documents and the   performance of all of the same will not result in the creation of any mortgage, lien, security   interest, charge, or encumbrance upon the Accounts of Borrower except in favor of Lender. To   Borrower's knowledge, there exists no other fact or circumstance (whether or not disclosed in   the Loan Documents) related to Borrower or Borrower's business, other than any adverse change   in financial, banking or economic conditions generally, which would have a Material Adverse   Effect.   5 .10 Contingent Liabilities. There are no suretyship agreements, guaranties, or other   contingent liabilities of Borrower which are not: (a) disclosed by the financial statements   described in Paragraph 6.11 hereof; or (b) Permitted Guaranties.   5.11 Compliance With Laws. Borrower is in compliance with all applicable laws,   rules, regulations, and other legal requirements with respect to its business except where the   failure to comply would not, individually or in the aggregate, have a Material Adverse Effect.   DEC-1770697-10 14     





 







5.12 Licenses, Pennits, Etc. Each franchise, grant, approval, authorization, license,   permit, easement, consent, certificate, and order of and registration, declaration, and filing with,   any court, governmental body or authority, or other Person or entity required for or in connection   with the conduct of Borrower's business as now conducted is in full force and effect, except   where the failure to comply would not have a Material Adverse Effect.   5.13 Accurate Information. All information (other than projections) heretofore, herein   or hereafter supplied to Lender by or on behalf of Borrower with respect to the Collateral is and   will be, when taken as a whole, accurate and complete in all material respects.   ARTICLE VI   AFFIRMATIVE COVENANTS   So long as any part of the Indebtedness remains unpaid, or this Agreement remains in   effect, Borrower shall comply with the covenants contained elsewhere in this Agreement, and   with the covenants listed below:   6.1 Taxes. Borrower shall promptly pay and discharge all of its taxes, assessments,   and other governmental charges prior to the date on which penalties are attached thereto,   establish adequate reserves for the payment of such taxes, assessments, and other governmental   charges, make all required withholding and other tax deposits, and, upon reasonable request,   provide Lender with receipts or other proof that such taxes, assessments, and other governmental   charges have been paid in a timely fashion; provided, however, that nothing contained herein   shall require the payment of any tax, assessment, or other governmental charge so long as its   validity is being contested in good faith, and by appropriate proceedings diligently conducted,   and adequate reserves for the payment thereof have been established.   6.2 Litigation. Borrower shall:   (a) Promptly notify Lender in writing of any litigation, proceeding, or   counterclaim against Borrower if:   (i) the outcome of such litigation, proceeding, counterclaim, or   investigation will materially and adversely affect the finances or operations of   Borrower or title to, or the value of, any Collateral; or   (ii) such litigation, proceeding, counterclaim, or investigation   questions the validity of any Loan Document.   (b) Furnish to Lender such information regarding any such litigation,   proceeding, counterclaim, or investigation as Lender shall reasonably request.   6.3 Good Standing; Business. Borrower shall:   (a) Take all necessary steps to preserve Borrower's existence and its right to   conduct business in all states in which the nature of its business or ownership of its   property requires such qualification except where failure to do so would not have a   Material Adverse Effect.   DEC-1770697-10 15     





 







(b) Engage in only the same industry as such business is conducted by   Borrower on the date of this Agreement, and other business reasonably related thereto.   6.4 Compliance with Environmental Laws. Borrower shall:   (a) Comply with all environmental laws in all material respects.   (b) Not suffer, cause, or permit the disposal of hazardous substances at any   property owned, leased, or operated by it, unless such action would not have a Material   Adverse Effect.   (c) Promptly, upon Borrower's receipt of knowledge thereof, notify Lender in   the event of the disposal of any hazardous substance at any property owned, leased, or   operated by Borrower, or in the event of any release, or threatened release, of a hazardous   substance, from any such property, unless such action would not have a Material Adverse   Effect.   ( d) Provide, at Lender's reasonable request and at Borrower's expense,   updated environmental questionnaires and/or environmental reports concerning any   property owned, leased, or operated by Borrower.   (e) Deliver promptly to Lender:   (i) copies of any documents received from the United States   Environmental Protection Agency or any state, county, or municipal   environmental or health agency concerning Borrower's operations; and   (ii) copies of any documents submitted by Borrower to the United   States Environmental Protection Agency or any state, county, or municipal   environmental or health agency concerning its operations.   6.5 Notice of Noncompliance. Borrower shall notify Lender in writing of any action   or failure to act by Borrower that to Borrower's knowledge, would have to be disclosed as a   matter of noncompliance by Borrower on the next Compliance Certificate.   6.6 Insurance. Maintain fire and other risk insurance, public liability insurance, and   such other insurance as Lender may require with respect to Borrower's properties and operations,   in form, amounts, and coverages and with insurance companies acceptable to Lender. Borrower,   upon request of Lender, will deliver to Lender from time to time the policies or certificates of   insurance in form satisfactory to Lender, including stipulations that coverages will not be   cancelled or diminished without at least ten (10) days prior written notice to Lender. Each   insurance policy also shall include an endorsement providing that written notice requirements in   favor of Lender will not be impaired in any way by any act, omission or default of Borrower or   any other person.   6.7 Insurance Reports. Furnish to Lender, upon request of Lender, reports on each   existing insurance policy showing such information as Lender may reasonably request,   including, without limitation, the following: (a) the name of the insurer; (b) the risks insured; ( c)   DEC-1770697-10 16     





 







the amount of the policy; (d) the properties insured; (e) the then current property values on the   basis of which insurance has been obtained, and the manner of determining those values; and (f)   the expiration date of the policy.   6.8 Compliance With Laws and Contractual Obligations. Borrower shall comply   with all applicable laws, rules, regulations, and other legal requirements with respect to its   business and the use, maintenance, and operation of the real and personal property owned or   leased by it in the conduct of its business, except where failure to do so would not have a   Material Adverse Effect. Borrower shall comply with the obligations, covenants and conditions   contained in all of its contractual obligations, except where failure to do so would not have a   Material Adverse Effect.   6.9 Maintenance of Property. Borrower shall maintain its property, including,   without limitation, the Collateral, in good condition, working order and repair (normal wear and   tear excepted) and shall prevent the Collateral, or any part thereof, from being or becoming an   accession to other goods not constituting Collateral.   6.10 Licenses, Permits, Etc. Borrower will maintain in full force and effect each   franchise, grant, approval, authorization, license, permit, easement, consent, certificate, and order   of and registration, declaration, and filing with, any court, governmental body or authority, or   other Person or entity required for or in connection with the conduct of Borrower's business as   now conducted.   6.11 Financial Information. Borrower shall furnish, or cause to be furnished, to   Lender:   (a) Annual Financial Statements. As soon as available and in any event   within seventy (70) days after the end of Borrower's fiscal year or thirty (30) days after   ADES has made is filings with the Securities and Exchange Commission, financial   statements of Borrower as of the end of such fiscal year, fairly presenting in all material   respects Borrower's financial position, respectively, as of such date, which statements   shall consist of a balance sheet and related statements of income, retained earnings, and   cash flow covering the period of Borrower's immediately preceding fiscal year, all in   such detail as Lender may reasonably request, and which financial statements shall be   prepared by Borrower and shall be certified to be correct by the president or chief   financial officer of Borrower in the form of Exhibit E attached hereto.   (b) Compliance Certificates. As soon as available and in any event within   forty ( 40) days after the end of each calendar quarter, a compliance certificate executed   by the president or chief financial officer of Borrower in the form of Exhibit F attached   hereto and made a part hereof.   (c) Quarterly Financial Statements. As soon as available and in any event   within forty ( 40) days after the end of each calendar quarter, financial statements of   Borrower as of the end of such quarter, fairly presenting in all material respects   Borrower's position and results of operations, respectively, as of such date, which   statements shall consist of a balance sheet and related statements of income, retained   DEC-1770697-10 17     





 







earnings, and cash flow covering the period of Borrower's immediately preceding fiscal   year, all in such detail as Lender may reasonably request, and which financial statements   shall be prepared by Borrower and shall be certified to be correct by the president or chief   financial officer of Borrower in the form of Exhibit E attached hereto.   ( d) Borrowing Base. As soon as available and in any event within forty ( 40)   days after the end of each calendar quarter, provided that the balance outstanding   hereunder is greater than zero dollars ($0.00), a Borrowing Base Certificate executed by   the president or chief financial officer of Borrower in the form attached hereto as   Exhibit C and made a part hereof.   ( e) Form 10-K and 10-Q Filings. As soon as available and in any event   within thirty (30) days after ADES has made such filings with the Securities and   Exchange Commission, ADES will provide Lender with copies of its Form 10-K and 10-   Q Filings.   (f) Other Information. Such additional information as Lender may from time   to time reasonably request regarding the financial and business affairs of Borrower.   (g) Financial Condition. All financial statements concerning Borrower, which   have been or will hereafter be furnished to Lender have been or shall be prepared in   accordance with GAAP consistently applied (except as disclosed therein) and do or will   present fairly in all material respects the financial condition of the entities covered   thereby as at the dates thereof and the results of their operations for the periods then   ended. All interim financial statements prepared and provided by Borrower will present   fairly in all material respects the financial condition of the entities covered thereby,   subject to GAAP and year-end adjustments and footnote disclosures to be included in the   audited financial statements.   6.12 Liquidity Covenant. ADES shall maintain a minimum liquidity, calculated as set   forth on Exhibit F attached hereto, of the greater of: (a) Six Million and No/100 Dollars   ($6,000,000.00); or (b) eighty percent (80%) of the amount outstanding under the Secured Line,   measured quarterly at the end of each calendar quarter.   6.13 Tangible Equity Covenant. ADES shall maintain a minimum tangible equity,   calculated as set forth on Exhibit F attached hereto, of not less than Thirteen Million Five   Hundred Thousand and no/100 Dollars ($13,500,000.00), measured quarterly as of the end of   each calendar quarter.   6.14 First Lien on Collateral. Borrower shall maintain sufficient Collateral   encumbered with a first priority security interest in favor of Lender so that the amount of the   Collateral is never less than Fifteen Million and No/100 Dollars ($15,000,000). Notwithstanding   the forgoing, after the Secured Line Termination Date, so long as there are amounts outstanding   hereunder, Borrower shall maintain sufficient Collateral encumbered with a first priority   security interest in favor of Lender so that the amount of the Collateral is never less than one   hundred fifty percent (150%) of the amounts then outstanding hereunder. Borrower shall report   on the amount of Collateral on each Borrowing Base Certificate.   DEC-1770697-10 18     





 







ARTICLE VII   NEGATIVE COVENANTS   So long as any part of the Indebtedness remains unpaid or this Agreement remains in   effect, without the prior written consent of Lender, Borrower shall not:   7.1 Borrowed Money. Create, incur, assume, or suffer to exist any liability for   borrowed money (including capital leases), in excess of Two Million Five Hundred Thousand   and No/100 Dollars ($2,500,000.00). For the avoidance of doubt, Borrower's continuing   payments, security and other obligations currently existing with regard to the Settlement   Agreements shall not be considered to be borrowed money.   7.2 Security Interest and Other Encumbrances. Create, incur, assume, or suffer to   exist any mortgage, security interest, lien, or other encumbrance upon the Collateral which   would be prior to or interfere with the security interest in favor of Lender.   7 .3 Mergers, Consolidations, Sales or Acquisitions.   (a) Merge or consolidate with or into any corporation or other entity;   (b) enter into any joint venture or partnership with any Person, firm, or   corporation whereby Borrower has agreed to contribute assets, equity or other value to   such entity or venture which have an aggregate value in excess of Two Million Five   Hundred Thousand and no/100 Dollars ($2,500,000.00);   (c) sell or otherwise transfer property or assets to any other Person, firm, or   corporation that is not a Borrower Affiliate in aggregate amount in excess of Two Million   Five Hundred Thousand and no/100 Dollars ($2,500,000.00) except for:   (i) the sale of inventory in the ordinary course of its business and in   accordance with the terms of this Agreement; or   (ii) any sale of property or assets of Borrower to any Person, so long   as, in either case, no Borrowing Base Deficiency exists after giving effect to such   sale or transfer, or except as otherwise allowed pursuant to Section 7.9 herein; or   ( d) consummate any purchases or other acquisitions of the capital stock or   equity interests in, or all or substantially all of the property or assets or business of any   other Person, firm, or corporation, except in the ordinary course of business or when such   Person, firm or corporation will become a Borrower Affiliate, where such property or   assets have a value in excess of Two Million Five Hundred Thousand and no/100 Dollars   ($2,500,000.00); provided that such action does not have a Material Adverse Effect.   7.4 Investments and Advances. Make any investment in, or advances to, any other   Person, firm, or corporation, other than a Borrower Affiliate, in an amount in excess of Two   Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00) except:   DEC-1770697-10 19     





 







(a) advance payments or deposits against purchases made in the ordinary   course of Borrower's regular business;   (b) direct obligations of the United States of America;   (c) money market mutual funds that invest in direct obligations of the United   States of America; or   ( d) certificates of deposit with any United States bank.   7 .5 Guaranties Other than Permitted Guaranties. Other than Permitted Guaranties,   become a guarantor, a surety, or otherwise liable for the debts or other obligations of any other   Person, firm, or corporation, whether by guaranty or suretyship agreement, agreement to   purchase indebtedness, agreement for furnishing funds through the purchase of goods, supplies,   or services (or by way of stock purchase, capital contribution, advance, or loan) for the purpose   of paying or discharging indebtedness, or otherwise, except as an endorser of instruments for the   payment of money deposited to its bank account for collection in the ordinary course of business.   7.6 Change of Name or Domicile. Change the name or state of formation of   Borrower without giving at least thirty (30) days, prior written notice of the proposed new name   or the proposed state of incorporation to Lender, together with delivery to Lender ofUCC   Financing Statements reflecting Borrower's new name or state of incorporation, all in form and   substance satisfactory to Lender.   7.7 Disposition of Collateral. Sell, assign, or otherwise transfer, dispose of, or   encumber Collateral constituting the Borrowing Base, or grant a security interest therein that   would result in a Borrowing Base Deficiency, except:   (a) to Lender; and   (b) in accordance with Paragraph 2.8 and Paragraph 7.3(c) or any other   provision of this Agreement.   7 .8 No Violations. Borrower will not violate any term of its organization documents   or of any mortgage, borrowing agreement or other instrument or agreement pertaining to   indebtedness for borrowed money resulting in, or which might reasonably be expected have, a   Material Adverse Effect. Borrower will not violate any term of any other indenture, instrument,   or agreement to which it is a party or by which it or its property may be bound, resulting in, or   which might reasonably be expected have, a Material Adverse Effect. Borrower will not violate   any order, writ, judgment, injunction, or decree of any court of competent jurisdiction or any   statute, rule, or regulation of any governmental authority.   7.9 Capitalization. Borrower will not authorize or issue any equity interests of any   class or type except those that are already authorized or outstanding.   DEC-1770697-10   ARTICLE VIII   DEFAULT AND REMEDIES   20     





 







8.1 Default. If any of the following events shall occur, it shall be an event of default   ("Event of Default"):   (a) Non-Payment. Borrower fails to pay any principal (other than the ten (10)   Business Days allowed in connection with a Borrowing Base Deficiency pursuant to   Section 2.12 hereof) of the Promissory Note on the date when due, or Borrower fails to   pay any interest on the Promissory Note or any other sums payable by Borrower to   Lender pursuant to this Agreement within three (3) days after any such principal, interest   or other sum is due;   (b) Representations. Any representation or warranty made by Borrower   herein or in connection herewith proves to have been incorrect in any material respect   when made;   (c) Breach of Covenants. Borrower fails to observe or comply with any of the   covenants in Article VI and VII hereof and such failure has not been cured within ten   (10) days after Lender has notified Borrower of such failure;   (d) Breach of Material Terms. Borrower fails to perform or observe any other   material term, covenant or agreement contained in this Agreement or in any Loan   Document and such failure has not been cured within thirty (30) days after Lender has   notified Borrower of such failure;   (e) Insolvency. Borrower shall become insolvent or shall apply for, shall   consent to, or shall acquiesce in the appointment of a custodian, trustee or receiver   thereof or for a substantial part of the property thereof, or, in the absence of such   application, consent or acquiescence, a custodian, trustee or receiver shall be appointed   for that Borrower or for a substantial part of its property, and shall not have been   dismissed within sixty (60) days therefore, or a Borrower shall make an assignment for   the benefit of creditors;   (f) Bankruptcy. Borrower shall be voluntarily or involuntarily dissolved or   shall be the subject of any bankruptcy, reorganization or other proceedings under any   bankruptcy or insolvency law, or any dissolution or liquidation proceeding shall be   instituted by or against that Borrower and, if instituted against Borrower, shall be   consented to or acquiesced in by Borrower, shall not have been dismissed within sixty   (60) days therefore or any order for relief shall have been entered against Borrower;   (g) Judgments. There shall be entered against Borrower one or more   judgments or decrees in an aggregate amount at any one time outstanding in excess of   Two Million and no/100 Dollars ($2,000,000.00) excluding the Settlement Agreements   and those judgments or decrees that shall have been vacated, discharged, stayed or   bonded pending appeal within thirty (30) days from the entry thereof or within any   additional period prescribed by statute after the entry thereof or with respect to which   (and to the extent that) the Person against which any such judgment or decree shall have   been entered is fully insured (excluding reasonable deductibles);   DEC-1770697-10 21     





 







(h) Default on Other Obligations. Borrower fails to perform or observe any   term, covenant or agreement contained in any agreement or document to which such   party and Lender are parties and such failure has not been cured within the applicable   time periods contained in such agreement or document;   8.2 Remedies. Upon the occurrence and during the continuation of any Event of   Default (unless such Event of Default has been waived or cured (with the consent of Lender)),   but only after the expiration of any applicable cure period, Lender shall have the right, upon   notice to Borrower:   (a) Further Advances. To terminate its commitment to make Advances and/or   terminate this Agreement;   (b) Acceleration. To declare the Secured Line Balance and all interest   accrued thereon and all other amounts payable under this Agreement to be immediately   due and payable, whereupon all such indebtedness of Borrower to Lender shall become   and be immediately due and payable without presentment, demand, protest or further   notice of any kind, all of which are hereby expressly waived by Borrower; and   (c) Other Rights. To exercise any other rights or remedies available to it   whether under the Loan Documents or at law or in equity.   8 .3 Possession of Collateral; Standard of Care. Lender shall exercise reasonable care   in the custody and preservation of the Collateral. As between Borrower and Lender, Lender   shall be deemed to have exercised reasonable care in the custody and preservation of any of the   Collateral in its possession if it takes such action for that purpose as Borrower requests in   writing, but failure of Lender to comply with any such request shall not itself be deemed a failure   to exercise reasonable care, and no failure of Lender to preserve or protect any rights with   respect to such Collateral not so requested by Borrower shall be deemed a failure to exercise   reasonable care in the custody or preservation of such Collateral. Lender shall also be deemed to   have exercised reasonable care in the safekeeping of any Collateral in its possession if such   Collateral is accorded treatment substantially equal to the safekeeping which Lender accords to   its own property of like kind.   8.4 Lender Appointed Attorney-in-Fact. Borrower hereby irrevocably constitute and   appoint Lender and any officer or agent thereof, with full power of substitution, as its true and   lawful attorney in fact with full irrevocable power and authority in the place and stead of   Borrower and in the name of Borrower or in their own name, from time to time in Lender's   discretion:   (a) for the purpose of carrying out the terms of this Agreement, to take any   and all reasonable and to execute any and all documents and instruments which may be   necessary or desirable to accomplish the purposes of this Agreement; and   (b) to take any actions and to execute any instruments which Lender may   deem reasonable to obtain, adjust, make claims under, or otherwise deal with insurance   required pursuant to Section 6.6 hereof and to receive, endorse, and collect any drafts or   other instruments delivered in connection therewith; provided, however, that Lender   DEC-1770697-10 22     





 







agrees that it will not take any action pursuant to this power of attorney unless Borrower   fails to take any action requested by Lender promptly upon receipt by Borrower of such   request.   Notwithstanding the foregoing, Lender will not use this power of attorney to renegotiate   the term of any agreement between either of Borrower or ADES and any third party.   ARTICLE IX   INDEMNIFICATION   9 .1 Indemnification by Borrower. Borrower shall indemnify and hold harmless   Lender, and each of Lender's assignees, each of Lender Affiliates and each of their respective   directors, officers, shareholders and employees (each an "Indemnified Party") from and against   any and all liabilities, damages, penalties, expenditures, losses, or charges, which are incurred   by, or awarded or assessed against, any Indemnified Party arising out of, or resulting from:   (a) any fraud by Borrower, including the misappropriation of any material   portion of the Collateral or any of the proceeds thereof (other than an unintentional   misappropriation of Collateral so long as such unintentional misappropriation is cured   within three (3) Business Days of Borrower's knowledge of such misappropriation);   (b) any representation or warranty of Borrower contained in Article V hereof   which shall have been false or incorrect in any material respect on and as of the date   made (all of the foregoing, collectively, the "Indemnified Liabilities");   provided, however, that, in each of (a) or (b) above, no Indemnified Party shall have the right to   be indemnified for its own fraud, bad faith, gross negligence or willfully improper action or   inaction.   9.2 Indemnification Procedure. Any claim for indemnification under this Article IX   must be asserted by Lender by giving written notice to Borrower of the matter with respect to   which Lender seeks to be indemnified (a "Claim") within a reasonable time after Lender has   knowledge of facts forming a sufficient basis for said Claim, stating the nature of said Claim and,   if known, the estimated amount of the loss, cost or expense. Lender and each Indemnified Party   will give Borrower sole authority and control of the defense and settlement of the Claim and, at   Borrower's request and expense, cooperate with Borrower in the defense and settlement of the   Claim. Once Borrower has assumed the defense or settlement of a Claim, if Lender or any   Indemnified Party wishes to obtain or maintain its own counsel or other professional assistance it   shall do so at its own expense. Notwithstanding anything to the contrary contained in this   section, Borrower will not have any obligation to indemnify or hold Lender or any Indemnified   Party harmless for Lender's or such Indemnified Party's own grossly negligent or willfully   improper actions or inactions. Borrower shall carry out its indemnification obligation through   counsel selected by Borrower which counsel shall be acceptable to Lender, in Lender's   reasonable judgment. Borrower will not make any settlement or other resolution of a Claim or   enter into any obligation which would be binding upon Lender without Lender's consent,   exercised in Lender's reasonable judgment.   DEC-1770697-10 23     





 







9.3 Limitation on Indemnification. Notwithstanding anything to the contrary   contained in this section, Borrower will not have any obligation to indemnify or hold Lender or   any Indemnified Party harmless for incidental, consequential, punitive or exemplary damages,   including without limitation, lost profits or revenue not directly related to this Agreement.   9 .4 Survival. The provisions of this Article IX shall survive the repayment of the   Indebtedness.   ARTICLEX   MISCELLANEOUS   10.1 Expenses. Borrower agrees to pay on demand all reasonable costs and expenses   of Lender in connection with the preparation, execution, delivery, administration, modification,   and amendment of this Agreement, the other Loan Documents, and the other documents to be   delivered hereunder, including, without limitation, the reasonable fees and expenses of counsel   for Lender (including the cost of internal counsel) with respect thereto and with respect to   advising Lender as to its rights and responsibilities under the Loan Documents. Borrower further   agrees to pay on demand all reasonable costs and expenses of Lender (including, without   limitation, reasonable attorneys' fees and expenses and the cost of internal counsel), in   connection with the enforcement (whether through negotiations, legal proceedings, or otherwise)   of the Loan Documents and the other documents to be delivered hereunder, if Lender is the   prevailing party. Lender agrees to provide Borrower with periodic notifications of the amounts   which Lender is requiring Borrower to repay to Lender pursuant to this Section 10.1.   10.2 Lender's Consents, Waivers and Amendments. Lender shall have the authority to   grant any consents or waivers or approve any amendments to the Loan Documents, including,   but not limited to;   (a) increases in the aggregate Maximum Secured Line;   (b) reductions of principal, interest or fees payable by Borrower hereunder;   ( c) extensions of scheduled maturities or times for payments; and   ( d) the release of any Collateral.   10.3 Performance Of Borrower's Duties. Upon Borrower's failure to perform any of   its duties or obligations under this Agreement or any of the other Loan Documents, but only if   such failure constitutes an Event of Default, Lender may, but shall not be obligated to, perform   or otherwise satisfy any or all such duties or obligations.   10.4 Waiver By Borrower. Lender shall have no obligation to take, and Borrower shall   have the sole responsibility for taking, any and all steps to preserve rights against any and all of   Borrower's Account debtors and against any and all prior parties to any note, chattel paper, draft,   trade acceptance, or other instrument for the payment of money covered by Lender's Security   Interest in the Collateral whether or not in Lender's possession. Lender shall not be responsible   to Borrower for loss or damage resulting from Lender's failure to enforce any receivables or to   collect any moneys due, or to become due, thereunder or other proceeds constituting Collateral   DEC-1770697-10 24     





 







hereunder. Borrower waives protest of any note, check, draft, trade acceptance, or other   instrument for the payment of money constituting Collateral at any time held by Lender on   which Borrower is in any way liable and waives notice of any other action taken by Lender,   except as required by law or under any of the Loan Documents.   10.5 Setoff. Without limiting any other right of Lender, whenever Lender has the right   to declare any Indebtedness to be immediately due and payable (whether or not it has so   declared), Lender, at its sole election, may set off against the Indebtedness any and all monies   then due and owing to Borrower by Lender in any capacity, and Lender shall be deemed to have   exercised such right of setoff immediately at the time of such election even though any charge   therefor is made or entered on Lender's records subsequent thereto.   10.6 Assignment. The rights and benefits of Lender hereunder shall inure to any party   acquiring any interest in the Indebtedness or any part thereof, provided such assignee agrees in   writing to be bound by the terms hereof. Borrower shall have the right to consent to such   assignment unless an Event of Default has occurred and is continuing.   10. 7 Successors and Assigns. Lender and Borrower, as used herein, shall include the   successors or assigns of those parties, except that Borrower shall have no right to assign its rights   hereunder or any interest herein without the written consent of Lender.   10.8 Modification, Waiver. No modification or amendment of any provision of this   Agreement shall be made, except by a written agreement signed by Borrower and Lender.   Lender shall not be deemed to have waived any rights under this Agreement unless such waiver   is given in writing and signed by Lender. No delay or omission on the part of Lender in   exercising any right shall operate as a waiver of such right or any other right. A waiver by   Lender of any provision of this Agreement shall not prejudice or constitute a waiver of Lender's   rights otherwise to demand strict compliance with that provision or any other provision of this   Agreement. No prior waiver by Lender, or any course of dealing between Lender and Borrower   shall constitute a waiver of any of Lender's rights or of any obligations of Borrower as to any   future transactions. Whenever the consent of Lender is required under this Agreement, the   granting of such consent by Lender in any instance shall not constitute continuing consent in   subsequent instances where such consent is required, and in all cases such consent may be   granted or withheld in the sole discretion of Lender.   10.9 Counterparts. This Agreement may be executed in any number of counterparts,   and by Lender and Borrower on separate counterparts, each of which, when so executed and   delivered, shall be an original, but all of which shall together constitute one and the same   Agreement.   10.10 Termination. This Agreement is, and is intended to be, a continuing Agreement   and shall remain in full force and effect until the full and final payment of all of the   Indebtedness; provided, however, that Borrower, subject to the provisions hereof which   expressly survive termination, may terminate this Agreement at any time by giving Lender at   least five (5) Business Days prior notice of termination in writing whereupon all outstanding   Indebtedness shall be due and payable in full without presentation, demand, or further notice of   any kind, whether or not all or any part of such Indebtedness is otherwise due and payable   DEC-1770697-10 25     





 







pursuant to the agreement or instrument evidencing same. Notwithstanding the foregoing or   anything in this Agreement or elsewhere to the contrary, Lender's Security Interest in the   Collateral, Lender's rights and remedies under the Loan Documents and Borrower's obligations   and liability under the Loan Documents, shall survive any termination of this Agreement and   shall remain in full force and effect until all of the Indebtedness outstanding, or contracted or   committed for (whether or not outstanding), and any extensions or renewals thereof (whether   made before or after receipt of such notice), together with interest accruing thereon, shall be   finally and irrevocably paid in full.   10.11 Further Assurances. From time to time, each party shall take such action and   execute and deliver to the other party such additional documents, instruments, certificates, and   agreements as such other party may reasonably request to effectuate the purposes of the Loan   Documents.   10.12 Headings. Article and Section headings used in this Agreement are for   convenience only and shall not affect the construction of this Agreement.   10.13 Cumulative Security Interest, Etc. The execution and delivery of this Agreement   shall in no manner impair or affect any other security (by endorsement or otherwise) for payment   or performance of the Indebtedness, and no security taken hereafter as security for payment or   performance of the Indebtedness shall impair in any manner or affect this Agreement, or   Lender's Security Interest in the Collateral granted hereby, all such present and future additional   security to be considered as cumulative security.   10.14 Lender's Duties. Without limiting any other provision of this Agreement:   (a) the powers conferred on Lender hereunder are solely to protect its interests   and shall not impose any duty to exercise any such powers; and   (b) except as may be required by applicable law, Lender shall not have any   duty as to any Collateral or as to the taking of any necessary steps to preserve rights   against any parties or any other rights pertaining to any Collateral.   10.15 Notices Generally. All notices and other communications hereunder, unless   otherwise expressly provided, shall be in writing and made by telecopy, overnight air courier, or   certified or registered mail, return receipt requested, and shall be deemed to be received by the   party to whom sent one (1) Business Day after sending, if sent by telecopy or overnight air   courier; and three (3) Business Days after mailing, if sent by certified or registered mail. All   such notices and other communications to a party hereto shall be addressed to such party at the   address set forth on the signature pages hereof or to such other address as such party may   designate for itself in a notice to the other party given in accordance with this Section 10.15.   10.16 Severability. The provisions of this Agreement are independent of, and separable   from, each other, and no such provision shall be affected or rendered invalid or unenforceable by   virtue of the fact that for any reason any other such provision may be invalid or unenforceable in   whole or in part. If any provision of this Agreement is prohibited or unenforceable in any   jurisdiction, such provision shall be ineffective in such jurisdiction only to the extent of such   prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate the   DEC-I 770697-10 26     





 







balance of such provision to the extent it is not prohibited or unenforceable nor render prohibited   or unenforceable such provision in any other jurisdiction.   10.17 Inconsistent Provisions. The terms of this Agreement and the other Loan   Documents shall be cumulative except to the extent that they are specifically inconsistent with   each other, in which case the terms of this Agreement shall prevail.   10.18 Entire Agreement. This Agreement, the Exhibits and Schedules attached hereto   and incorporated herein by this reference, and the other Loan Documents constitute the entire   agreement and understanding between the parties hereto with respect to the transactions   contemplated hereby and supersede all prior negotiations, understandings, and agreements   between such parties with respect to such transactions, including, without limitation, those   expressed in any commitment letter delivered by Lender to Borrower.   10.19 Consent To Jurisdiction. Borrower and Lender agree that any action or   proceeding to enforce, or arising out of, the Loan Documents may be commenced in any state or   federal court of competent jurisdiction in the State of Colorado, and Borrower and Lender waive   personal service of process and agree that a summons and complaint commencing an action or   proceeding in any such court shall be properly served and shall confer personal jurisdiction if   served by registered or certified mail to Borrower or Lender, as appropriate, or as otherwise   provided by the laws of the State or the United States.   10.20 Jury Trial Waiver. BORROWER AND LENDER HEREBY KNOWINGLY,   VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY   BORROWER OR LENDER MAY HA VE IN ANY ACTION OR PROCEEDING, IN LAW OR   IN EQUITY, IN CONNECTION WITH THE LOAN DOCUMENTS OR THE   TRANSACTIONS RELATED THERETO. BORROWER REPRESENTS AND WARRANTS   THAT NO REPRESENTATIVE OR AGENT OF LENDER HAS REPRESENTED,   EXPRESSLY OR OTHERWISE, THAT LENDER WILL NOT, IN THE EVENT OF   LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER.   BORROWER ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER INTO   THIS AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS   SECTION 10.20.   10.21 No Oral Agreements. Oral agreements or commitments to loan money, extend   credit or to forbear from enforcing repayment of a debt, including promises to extend or renew   such debt, are not enforceable. To protect Borrower and Lender from misunderstanding or   disappointment, any agreements covering such matters are contained in the Loan Documents,   which are the complete and exclusive statement of the agreement between the parties, except as   the parties may later agree in writing   10.22 Release of Claims. Borrower hereby releases and forever discharges Lender, its   Affiliates, directors, officers, agents, employees, and attorneys ("Lender Parties") of and from   any and all liability, suits, damages, claims, counterclaims, demands, reckonings and causes of   action, setoffs and defenses, whether known or unknown, whether arising in law or equity, which   Borrower had, now has or may have in the future against Lender Parties by reason of any acts,   omissions, causes or things arising out of or in any way related to this Agreement or the other   DEC-1770697-10 27     





 







Loan Documents existing or accrued as of the date of this Agreement excluding however, from   this release, any claims that arise out of Lender's negligence or willful malfeasance. This release   shall survive the termination of this Agreement. Borrower acknowledges that the foregoing   release is a material inducement to Lender's decision to extend to Borrower the financial   accommodations hereunder and has been relied upon by Lender in agreement to enter into this   Agreement.   10.23 Applicable Law. This Agreement, and the transactions evidenced hereby, shall be   governed by, and construed under, the internal laws of the State of Colorado, without regard to   principles of conflicts of law, as the same may from time to time be in effect, including, without   limitation, the UCC.   IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed   as of the day and year first above written.   By:___,~--___,~_,,_-+--="~-----   Name: Mark McKi   Title: CFO & SVP   By:--1.---~'-¥------4\-.,__-+-~::::..__ ___ _   Name: Mark McKi   Title: CFO & SVP   DEC-1770697-10   Address for Notices:   Office of CFO   9135 South Ridgeline Blvd, Suite 200   Highlands Ranch, CO 80129   and   Fortis Law Partners, LLC   1900 Wazee Street, Suite 300   Denver, Colorado 80202   Address for Notices:   Attn: Douglas L. Pogge   821 1 ih Street   Denver, CO 80202   28     





 







EXHIBIT A   FORM OF PROMISSORY NOTE   $10,000,000.00 September 19, 2013   Denver, Colorado   FOR VALUE RECEIVED, the undersigned, ADA-ES, INC., a Colorado corporation, promises   to pay to COBIZ BANK, a Colorado corporation, d/b/a/ COLORADO BUSINESS BANK   (herein, together with its successors and assigns who become holders of this Note, called the   "Lender") at the offices of Lender at 821 1 ih Street, Denver, Colorado 80202, or at such other   place as maybe designated in writing by Lender from time to time, the principal sum of Ten   Million and No/100 Dollars ($10,000,000.00), or such lesser amount which shall from time to   time be owing hereunder on account of Advances made by Lender to or for the benefit or   account of Borrower in accordance with the terms of the 2013 Loan and Security Agreement by   and among Borrower and Lender (as amended, modified, supplements and restated from time to   time, the "Loan Agreement") together with interest on the unpaid principal balances   outstanding at the rate specified in the Loan Agreement. Principal and interest due under this   Note shall be payable at the time or times provided in the Loan Agreement.   In no contingency or event whatsoever, whether by reason of advancement of the   proceeds hereof or otherwise, shall the amount paid or agreed to be paid by Borrower to Lender   for the use, forbearance or detention of money advanced hereunder exceed the highest lawful   rate permissible under any law which a court of competent jurisdiction may deem applicable   hereto.   If any Event of Default shall have occurred and be continuing, Borrower promises to pay   the Default Rate, on the outstanding unpaid principal and interest balance hereof at the times and   in the amount and manner provided for more particularly in the Loan Agreement. Principal,   interest, fees, charges, expenses and other costs owing hereunder are payable in lawful money of   the United States of America such that Lender has received immediately available funds for the   credit of Borrower on the date that such payment or payments is or are due. This Note is secured   by the Collateral listed in the Loan Agreement and other security instruments described in the   Loan Agreement.   Upon the occurrence of any Event of Default under the Loan Agreement, or under any of   the other Loan Documents, which is not cured within any applicable cure period contained in the   Loan Agreement, Lender may, at Lender's option, exercise its remedies as provided in the Loan   Agreement; provided, however, that the principal, interest, fees, expenses, charges and other   costs owing on this Note shall be and become automatically due and payable ifthe Loan   Agreement, or any of the other Loan Documents, provide for the automatic acceleration of the   payment of the principal, interest, fees, charges, expenses and other costs owing on this Note   upon the occurrence of an Event of Default.   No waiver of any breach, Event of Default, default or failure of condition under the tenns   of this Note, the Loan Agreement, or the other Loan Documents shall be implied from any   DEC-1770697-10 29     





 







failure of Lender to take, or any delay by Lender in taking, action with respect to any such   breach of or Event of Default, default or failure of condition or from any previous waiver of any   similar or unrelated breach of or Event of Default, default or failure of condition. A waiver of   any term of this Note, the Loan Agreement or the other Loan Documents must be made in   writing and shall be limited to the express written terms of such waiver.   All obligations of Borrower and all rights, powers and remedies of Lender expressed   herein shall be in addition to and not in limitation of those provided by law or in any written   agreement or instrument (other than this Note) relating to any of the Indebtedness of Borrower to   Lender or the security therefore.   Borrower waives presentment; demand; notice of dishonor; notice of protest and   nonpayment; notice of default interest and late charges; notice of intent to accelerate; notice of   acceleration; and diligence in taking any action to collect any sums owing under this Note or in   proceeding against any of the rights and interests in and to properties securing payment of this   Note.   Time is of the essence with respect to every provision hereof.   This Note is issued pursuant to the Loan Agreement and is subject to the terms and   conditions specified therein, which terms and conditions are incorporated herein by this   reference. Capitalized terms not otherwise defined in this Note shall have the meanings assigned   to them under the Loan Agreement.   This Note shall be construed and enforced in accordance with the laws of the State of   Colorado, without regard to principles of conflicts oflaw, except to the extent that Federal laws   preempt the laws of the State of Colorado.   IN WITNESS WHEREOF, the undersigned has executed this instrument as of the date   first above written.   ADA-ES, INC., a Colorado corporation   By: ________________ _   Name: _________________ _   Title:   ------------------   DEC-1770697-10 30     





 







EXHIBITB   FORM OF PROPOSED BORROWING REQUEST   Colorado Business Bank   821 1 J1h Street   Denver, Colorado 80202   Attention: Douglas L. Pogge   Re: Advance Request   [Date]   Reference is made to that certain 2013 Loan and Security Agreement by and among   ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Banlc, a Colorado   corporation d/b/a Colorado Business Banlc (as amended, modified, supplemented and restated   from time to time, the "Loan Agreement"). Capitalized terms used herein but not otherwise   defined herein shall have the meaning assigned to such terms in the Loan Agreement. Borrower   requests an Advance in the amount of and no/100 Dollars   ($ ____ ~   The undersigned, for himself and Borrower hereby certifies:   (a) the representations and warranties contained in Article V of the Credit   Agreement are correct in all material respects on and as of the date hereof as though   made on the date hereof (unless any such representation or warranty relates to a different   date);   (b) there has been no material adverse change in any Borrower's financial   condition since the date of the most recent statements delivered to Lender pursuant to   Paragraph 6.11 of the Loan Agreement;   ( c) no event has occurred and is continuing, or would result from the   requested Advance, which constitutes an Event of Default or Potential Default.   The undersigned is an Authorized Signer.   DEC-1770697-10   Very truly yours,   ADA-ES, INC.   [Authorized Signer]   31     





 







Agreed and accepted this __ day of _____ 20   COBIZ BANK, a Colorado corporation, d/b/a COLORADO BUSINESS BANK   By:~~~~~~~~~~~~~~-   Douglas L. Pogge, Senior Vice President   DEC-1770697-10 32     





 







EXHIBIT C   FORM OF BORROWING BASE CERTIFICATE   As of the period ending _________ , 20   This Certificate is made and dated as of __ , 20_ and is submitted by   ADA-ES, INC., a Colorado corporation, in accordance with the 2013 Loan and Security   Agreement by and among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC., and   COBIZ Bank, a Colorado corporation, d/b/a Colorado Business Bank (as amended, modified,   supplemented and restated from time to time, the "Loan Agreement"). Capitalized terms used   but not defined herein shall have the respective meanings therefor set forth in the Loan   Agreement.   The undersigned hereby certifies to Lender that the undersigned is familiar with the   following financial information, which has been taken from Borrower's books and records,   which are complete and accurate, and the following calculations on the Borrowing Base and the   remaining amount under the Borrowing Base are true and correct.   A.   B.   C.   D.   E.   F.   G.   H.   I.   J.   K.   BORROWING BASE   (All numbers must be taken from the most recent 10-K or 10-Q filed by ADES with the   Securities and Exchange Commission.)   Fixed payments due to Borrower on the AECI Leases   Balance in A discounted to present value using a discount factor of 10%   90%ofB   Contingent payments due to Borrower on the AECI Leases   Balance in H discounted to present value using a discount factor of 10%   80% ofE   Total ofC and F   Current Secured Line Balance   Excess/(Deficit) Borrowing Base (G minus H)   One Hundred Fifty Percent (150%) ofH   Current Value of Collateral in which Lender has a first priority security interest   ADA-ES, INC., a Colorado corporation   By:   Name:   Title:   DEC-1770697-10 33     





 







EXHIBITD   FORM OF BORROWER CERTIFICATE   ADA-ES, INC.   WITH RESPECT TO THE 2013 LOAN AND SECURITY AGREEMENT   The undersigned, as a duly authorized officer of ADA-ES, INC., a Colorado corporation,   in conjunction with the 2013 Loan and Security Agreement by and among ADA-ES, INC.   ("Borrower"), ADV AN CED EMISSIONS SOLUTIONS, INC. and CO BIZ Bank, a Colorado   corporation, d/b/a Colorado Business Bank (as amended, modified, supplements and restated   from time to time, the "Loan Agreement"), hereby certifies to COBIZ BANK, a Colorado   corporation, d/b/a COLORADO BUSINESS BANK that no "Principal" of Borrower has been   convicted of, or pled no contest to, a felony under state or federal law (excluding crimes related   to traffic or motor vehicle offenses) or to any other crime that requires identification in any   registry and/or notification program maintained by any federal or state jurisdiction.   For the purpose of this Certification, "Principal" is deemed to include: (a) each Officer   of ADA-ES, INC.; (b) each director of ADA-ES, INC.; (c) the five (5) most highly compensated   executives and officers of ADA-ES, INC.; and (d) each natural person who is a direct or indirect   holder of more than twenty percent (20%) or more of the ownership stock or stock equivalent of   ADA-ES, INC.   The undersigned Borrower acknowledge that CoBiz Bank, a Colorado corporation, d/b/a   Colorado Business Bank is relying upon the truth of the statements set forth in this Borrower   Certification to make a loan to Borrower.   Dated this 19th day of September 2013.   DEC-1770697-10   ADA-ES, INC., a Colorado corporation   By: ~~~~~~~~~~~~   Name:   Title:   34     





 







EXHIBITE   FORM OF FINANCIAL STATEMENT CERTIFICATION   The undersigned, the of ADA-ES, INC., a   Colorado corporation, hereby certifies to COBIZ BANK, a Colorado corporation, d/b/a   COLORADO BUSINESS BANK, pursuant to 2013 Loan and Security Agreement by and   among ADA-ES, INC., ADVANCED EMISSIONS SOLUTIONS, INC. and COBIZ Bank, a   Colorado corporation, d/b/a Colorado Business Bank (as amended, modified, supplements and   restated from time to time, the "Loan Agreement"), that attached hereto is a true and correct   copy of ADA-ES, INC. 's financial statements as of and for the __ month period ending   ________ , 20_, which financial statements fairly present in all material respects   ADA-ES, INC. 's financial position and results of operations for the applicable periods and   consist of a balance sheet and related statements of income and cash flow covering the periods   from the end of the immediately preceding fiscal year to the end of such quarter, and such   quarter alone (if applicable). Such financial statements have been prepared in accordance with   GAAP, consistently applied (except as disclosed therein), it being understood that all interim   financial statements are subject to year-end adjustments and are not required to have footnote   disclosures.   The undersigned has reviewed the Loan Agreement and the affairs of such Borrower and   that, to the best of his or her knowledge and belief, he or she is unaware of the occurrence of an   event which constitutes an Event of Default hereunder or which would constitute such an Event   of Default with the giving of notice or the lapse of time or both, and if so, stating the facts with   respect thereto.   ADA-ES, INC., a Colorado corporation   By:   Name:   Title:   DEC-1770697-10 35     





 







EXHIBIT F   FORM OF COMPLIANCE CERTIFICATE   ADA-ES, INC., a Colorado corporation ("Borrower"), and ADVANCED EMISSIONS   SOLUTIONS, INC., a Delaware corporation ("ADES"), hereby certify to CO BIZ BANK, a   Colorado corporation, d/b/a COLORADO BUSINESS BANK ("Lender") pursuant to the 2013   Loan and Security Agreement by and among Borrower, ADES and Lender (as amended,   modified, supplemented and restated from time to time, the "Loan Agreement"), that:   A. General.   1. Capitalized terms not defined herein shall have the meanings set forth in   the Loan Agreement.   2. Borrower has materially complied with all the terms, covenants and   conditions to be performed or observed by Borrower contained in the Loan Agreement and the   Loan Documents.   3. Neither on the date hereof nor, if applicable, after giving effect to any   Advance made under the Loan Agreement on the date hereof, does there exist an Event of   Default.   B. Financial Covenants   (All numbers must be taken from the most recent 10 Kor 10-Q filed by ADES with the   Securities and Exchange Commission.)   1. Calculation of Liquidity Covenant:   A. Cash and Marketable Securities held by ADES   B. Amount of Cash and Marketable Securities pledged by ADES to parties   other than Lender   c. Amount of Letters of Credit issued by parties other than Lender which   are not secured by the Cash and Marketable Securities covered in B.   D. Total of Band C   E. A less D   F. $6,000,000.00   G. Eighty Percent (80%) of the amount outstanding under the Secured   Line   H. The greater of F or G   I. Amount by which E exceeds (is less than) H   2. Calculation of Tangible Equity Covenant   ~· Total Equity Goodwill A less B   DEC-1770697-10 36     





 







D. $13,500,000.00   E. Amount by which C exceeds (is less than) D   IN WITNESS WHEREOF, Borrower and ADES have executed and delivered this   Compliance Certificate in the name of and on behalf of Borrower on __ ,   20   ADES, INC., a Delaware corporation   By:   Name:   ~~~~~~~~~~~~~   Title:   ADV AN CED EMISSIONS SOLUTIONS, INC., a Colorado corporation   By:   Name:   ~~~~~~~~~~~~~   Title:   DEC-1770697-10 37     





 







EXHIBIT G   FORM OF GUARANTY   This GUARANTY AGREEMENT (this "Guaranty") is made as of the 20th day of   September 2013, by ADVANCED EMISSIONS SOLUTIONS, INC., a Delaware corporation   ("ADES"), with an address at 9135 South Ridgeline Blvd, Suite 200, Highlands Ranch,   Colorado 80129, in favor of COBIZ BANK, a Colorado corporation d/b/a COLORADO   BUSINESS BANK (together with its successors and assigns "Lender"), with an address at Attn:   Douglas L. Pogge, 821 17th Street, Denver, Colorado 80202.   1. Guaranty of Payment.   (a) ADES hereby unconditionally guarantees the full and prompt payment to   Lender when due, whether by acceleration or otherwise, of any and all Indebtedness (as   hereinafter defined) of ADA-ES, INC. ("Borrower") to Lender under the 2013 Loan and   Security Agreement, dated as of September 19, 2013, by and among Lender, ADES and   Borrower (as amended, modified, restated or supplemented from time to time, the "2013 Term   Loan Agreement").   (b) As used in this Guaranty, "Indebtedness" shall mean any and all   indebtedness and other liabilities of Borrower to Lender as a result of the 2013 Term Loan   Agreement, of every kind and character and all extensions and renewals thereof, including,   without limitation, all unpaid accrued interest thereon and all costs and expenses payable as   hereinafter provided:   (i) whether now existing or hereafter incurred;   (ii) whether direct, indirect, primary, absolute, secondary, contingent,   secured, unsecured, matured or unmatured, by guarantee or otherwise;   (iii) whether such indebtedness is from time to time reduced and   thereafter increased, or entirely extinguished and thereafter reincurred;   (iv) whether such indebtedness was originally contracted with Lender   or with another or others;   (v) whether or not such indebtedness is evidenced by a negotiable or   non-negotiable instrument or any other writing; and   (vi) whether such indebtedness is contracted by a Borrower alone or   jointly or severally with another or others.   (c) ADES acknowledges that valuable consideration supports this Guaranty,   including, without limitation, any commitment to lend, extension of credit or other financial   accommodation, whether heretofore or hereafter made by Lender to Borrower; any extension or   renewal of any Indebtedness, any forbearance with respect to any Indebtedness or otherwise; any   DEC-1770697-10 38     





 







cancellation of any existing guaranty; any purchase of Borrower's assets by Lender; or any other   valuable consideration.   2. Lender's Costs and Expenses. ADES agrees to pay on demand all costs and   expenses of every kind incurred by Lender:   (a) In enforcing this Guaranty;   (b) In collecting any Indebtedness from Borrower or ADES;   ( c) In realizing upon or protecting any collateral for this Guaranty or for   payment of any Indebtedness; and   (d) For any other purpose related to the Indebtedness or this Guaranty. "Costs   and expenses" as used in the preceding sentence shall include, without limitation, the actual   attorneys' fees incurred by Lender in retaining counsel for advice, suit, appeal, any insolvency or   other proceedings under the Federal Bankruptcy Code or otherwise, or for any purpose specified   in the preceding sentence.   3. Representations and Warranties of ADES. ADES affirms and certifies:   (a) that there are no defenses, offsets or counterclaims with respect to the   Guaranty as of the date hereof;   (b) that there was adequate consideration to the ADES for the granting of the   Guaranty;   ( c) expressly acknowledges its liability to Lender under the Guaranty; and   ( d) agrees that the Guaranty is in full force and effect, enforceable against the   ADES in accordance with its terms.   4. Nature of Guaranty: Continuing, Absolute and Unconditional.   (a) This Guaranty is and is intended to be a continuing guaranty of payment   of the Indebtedness (irrespective of the aggregate amount thereof and whether or not the   Indebtedness from time to time exceeds the amount of this Guaranty, if limited), independent of,   in addition and without modification to, and does not impair or in any way affect, any other   guaranty, endorsement, or other agreement in connection with the Indebtedness, or in connection   with any other indebtedness or liability to Lender, or collateral held by Lender therefor or with   respect thereto, whether or not furnished by ADES. This Guaranty and ADES's obligations   hereunder shall not be modified, terminated, impaired or in any way affected by the execution,   delivery or performance by ADES, Borrower or any other person of any other guaranty,   endorsement or other agreement or the delivery of collateral therefor. Until such time as the   Indebtedness has been finally and irrevocably paid in full, ADES waives any claim, remedy or   other right which ADES might now have or hereafter acquire against Borrower or any other   person that is primarily or contingently liable for the Indebtedness including, without limitation,   any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right   DEC-1770697-10 39     





 







to participate in any claim or remedy of Lender against Borrower or any collateral therefor which   Lender now has or hereafter acquires, whether or not such claim, remedy or right arises in   equity, or under contract, statute, or common law.   (b) This Guaranty is absolute and unconditional and shall not be changed or   affected by any representation, oral agreement, act or thing whatsoever, except as herein   provided. This Guaranty is intended by ADES to be the final, complete and exclusive expression   of the agreement between ADES and Lender. ADES expressly disclaims any reliance on any   course of dealing or usage of trade or oral representation of Lender including, without limitation,   representations to make loans to Borrower or enter into any other agreement with Borrower or   ADES. No modification or amendment of any provision of this Guaranty and no waiver of any   right by Lender shall be effective unless in writing and signed by a duly authorized officer of   Lender.   5. Certain Rights and Obligations.   (a) ADES authorizes Lender, without notice, demand or additional reservation   of rights against ADES and without affecting ADES's obligations hereunder, from time to time;   (i) to renew, refinance, modify, subordinate, extend, increase,   accelerate, or otherwise change the time for payment of, the terms of or the interest on the   Indebtedness or any part thereof;   (ii) to accept from any person or entity and hold collateral for the   payment of the Indebtedness or any part thereof, and to exchange, enforce or refrain from   enforcing, or release such collateral or any part thereof;   (iii) to accept and hold any endorsement or guaranty of payment of the   Indebtedness or any part thereof or any negotiable instrument or other writing intended by any   party to create an accord and satisfaction with respect to the Indebtedness or any part thereof,   and to discharge, terminate, release, substitute, replace or modify any such obligation of any such   endorser or ADES, or any person or entity who has given any security interest in any collateral   as security for the payment of the Indebtedness or any part thereof, or any other person or entity   in any way obligated to pay the Indebtedness or any part thereof, and to enforce or refrain from   enforcing, or compromise or modify, the terms of any obligation of any such endorser, guarantor,   person or entity;   (iv) to dispose of any and all collateral securing the Indebtedness in   any manner as Lender, in its sole discretion, may deem appropriate, and to direct the order or   manner of such disposition and the enforcement of any and all endorsements and guaranties   relating to the Indebtedness or any part thereof as Lender, in its sole discretion, may determine;   and   (v) to determine the manner, amount and time of application of   payments and credits, if any, to be made on all or any part of any component or components of   the Indebtedness (whether principal, interest, costs and expenses, or otherwise), including,   without limitation, if this Guaranty is limited in amount, to make any such application to   Indebtedness, if any, in excess of the amount of this Guaranty.   DEC-1770697-10 40     





 







(b) If any default shall be made in the payment of any Indebtedness, ADES   hereby agrees to pay the same in full:   (i) without deduction by reason of any setoff, defense or counterclaim   of Borrower;   (ii) without requiring protest, presentment or notice of non-payment or   notice of default to ADES, to Borrower or to any other person;   (iii) without demand for payment or proof of such demand;   (iv) without requiring Lender to resort first to Borrower (this being a   guaranty of payment and not of collection) or to any other guaranty or any collateral which   Lender may hold;   (v) without requiring notice of acceptance hereof or assent hereto by   Lender; and   (vi) without requiring notice that any Indebtedness has been incurred or   of the reliance by Lender upon this Guaranty; all of which ADES hereby waives.   (c) ADES's obligation hereunder shall not be affected by any of the   following, all of which ADES hereby waives:   (i) any failure to perfect or continue the perfection of any security   interest in or other lien on any collateral securing payment of any Indebtedness or ADES's   obligation hereunder;   (ii) the invalidity, unenforceability, propriety of manner of   enforcement of, or loss or change in priority of any such security interest or other lien;   (iii) any taking, holding, continuation, collection, modification, leasing,   impairment, surrender or abandonment of, or any failure to protect, preserve or insure, any such   collateral;   (iv) any delay in the exercise or waiver of, any failure to exercise, or   any forbearance in the exercise of, any right or remedy of Lender or any person against ADES,   Borrower or any person or relating to the Indebtedness or any part thereof or the collateral   therefor;   (v) failure of ADES to receive notice of any intended disposition of   such collateral;   (vi) any defense arising by reason of the cessation from any cause   whatsoever of liability of Borrower including, without limitation, any failure, delay, waiver,   forbearance, negligence or omission by Lender in enforcing its claims against Borrower or any   collateral therefor, including, without limitation, any failure to make, prove, or vote any claim   relating to the Indebtedness or any collateral therefor in any case or proceeding pursuant to the   DEC-1770697-10 41     





 







Federal Bankruptcy Code or any similar law, or any satisfaction of the Indebtedness or any part   thereof by reason of the failure of Lender to recover against any collateral therefor or the failure   of Lender to obtain a judgment for any deficiency;   (vii) any release, settlement, composition, adjustment, compromise,   replacement, cancellation, discharge, assignment, sale, exchange, conversion, participation or   other transfer or disposition of any obligation of Borrower or of any collateral therefor;   (viii) the invalidity or unenforceability of any of the Indebtedness;   (ix) the creation of any security interest, lien or other encumbrance in   favor of any person other than Lender;   (x) any refusal or failure of Lender or any other person prior to the   date hereof or hereafter to grant any additional loan or other credit accommodation to any   Borrower or Lender's or any other party's receipt of notice of such refusal or failure;   (xi) any refusal or failure of Lender or any other person to provide to   ADES any information relating to Borrower, any other guarantor, endorser, or any person or   entity who has given any collateral as security for the payment of the Indebtedness or any   information relating to that Borrower's or such guarantor's, endorser's, person's or entity's   financial condition, business or assets, or if such information is provided, to provide such   information completely and accurately;   (xii) any change m the ownership or membership of ADES or any   Borrower;   (xiii) the expiration of the period of any statute of limitations with   respect to any lawsuit or other legal proceeding against Borrower or any person in any way   related to the Indebtedness or a part thereof or any collateral therefor; or   (xiv) any other thing or circumstance which might otherwise constitute a   defense to ADES's obligation hereunder.   6. Guaranty of Performance. ADES also guarantees the full, prompt and   unconditional performance of all obligations and agreements of every kind owed or hereafter to   be owed by Borrower to Lender with respect to the Indebtedness. Every provision for the benefit   of Lender contained in this Guaranty shall apply to the guaranty of performance given in this   paragraph.   7. Termination. This Guaranty shall remain in full force and effect as to ADES until   the Indebtedness of Borrower to Lender has been paid in full. ADES agrees that, to the extent   that Borrower makes a payment or payments to Lender on the Indebtedness, or Lender receives   any proceeds of collateral to be applied to the Indebtedness, which payment or payments or any   part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or   otherwise are required to be repaid to that Borrower, its estate, trustee, receiver or any other   party, including, without limitation, under any bankruptcy law, state or federal law, common law   or equitable cause, then to the extent of such repayment, the obligation or part thereof which has   DEC-1770697-10 42     





 







been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and   effect as of the date such initial payment, reduction or satisfaction was invalidated, declared to be   fraudulent or preferential, set aside or otherwise are required to be repaid to that Borrower, its   estate, trustee, receiver or any other party. As of the date any payment or proceeds of collateral   are returned, the statute of limitations shall start anew with respect to any action or proceeding   by Lender against ADES under this Guaranty. ADES shall defend and indemnify Lender of and   from any claim or loss under this paragraph including actual attorneys' and paralegals, fees and   expenses in the defense of any such action or suit.   8. Miscellaneous.   (a) As used m this Guaranty, the terms "Borrower" and "ADES" shall   include:   (i) any successor individual or individuals, association, partnership,   limited liability company or corporation to which all or a substantial part of the business or assets   of Borrower or ADES shall have been transferred including, without limitation, a debtor in   possession under the Federal Bankruptcy Code;   (ii) in the case of a partnership or limited liability company Borrower   or ADES, any new partnership or limited liability company which shall have been created by   reason of the admission of any new partner(s) or member(s) therein or by reason of the   dissolution of the existing partnership or limited liability company by voluntary agreement or the   death, resignation or other withdrawal of any partner or member; and   (iii) in the case of a corporate Borrower or ADES, any other   corporation into or with which ADES or Borrower (if Borrower is a corporation) shall have been   merged, consolidated, reorganized, or absorbed.   (b) Without limiting any other right of Lender, whenever Lender has the right   to declare any Indebtedness to be immediately due and payable (whether or not it has so   declared), Lender at its sole election may set off against the Indebtedness any and all moneys   then owed to ADES by Lender in any capacity, whether or not the Indebtedness or the obligation   to pay such moneys owed by Lender is then due, and Lender shall be deemed to have exercised   such right of setoff immediately at the time of such election even though any charge therefor is   made or entered on Lender's records subsequent thereto.   (c) ADES's obligation hereunder is to pay the Indebtedness in full when due   according to its terms, and shall not be affected by any extension of time for payment by any   Borrower, any bar to the enforceability of the Indebtedness, or any limitation on the right to   attorneys' fees, resulting from any proceeding under the Federal Bankruptcy Code or any similar   law. ADES's obligation under this Guaranty shall also include payment of interest accrued on   the Indebtedness before or after a filing of a petition under any bankruptcy laws and interest on,   and principal of, loans made to the debtor in possession after the filing of such a petition by or   against Borrower.   ( d) No course of dealing or usage of trade, and no oral or written   representations or agreement, between any Borrower or ADES and Lender, whether or not relied   DEC-1770697-10 43     





 







on or acted upon, and no act, delay or omission by Lender in exercising any right or remedy   hereunder or with respect to any Indebtedness shall operate as a waiver thereof or of any other   right or remedy, and no single or partial exercise thereof shall preclude any other or further   exercise thereof or the exercise of any other right or remedy. The giving of notice or a demand   by Lender at any time shall not operate as a waiver in the future of Lender's right to exercise any   right or remedy without notice or demand. Lender may remedy any default by any Borrower   under any agreement with that Borrower or with respect to any Indebtedness in any reasonable   manner without waiving the default remedied and without waiving any other prior or subsequent   default by any Borrower. After any Borrower's failure to pay the Indebtedness in full, or any   part thereof, Lender may exercise against ADES each right and remedy of a creditor against a   principal debtor upon a past due liquidated obligation. All rights and remedies of Lender   hereunder are cumulative.   (e) Lender and ADES as used herein shall include the heirs, executors or   administrators, or successors or assigns, of those parties. The rights and benefits of Lender   hereunder shall, if Lender so directs, inure to any party acquiring any interest in the Indebtedness   or any part thereof. If any right of Lender hereunder is construed to be a power of attorney, such   power of attorney shall not be affected by the subsequent disability or incompetence of any   Borrower or ADES.   (f) Lender's rights and remedies under this Guaranty are assignable and any   participation may be granted by Lender herein in connection with the assignment or granting of   participation by Lender in the Indebtedness or any part thereof. ADES shall have the right to   consent to such assignment or participation unless an Event of Default (as defined in the Term   Loan Agreement) has occurred and is continuing.   (g) Captions of the sections of this Guaranty are solely for the convenience of   Lender and ADES, and are not an aid in the interpretation of this Guaranty.   (h) ADES AGREES THAT ANY ACTION OR PROCEEDING TO   ENFORCE OR ARISING OUT OF THIS GUARANTY MAY BE COMMENCED IN ANY   STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF   COLORADO, AND ADES WAIVES PERSONAL SERVICE OF PROCESS AND AGREES   THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING   IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER   PERSONAL JURISDICTION IF SERVED BY REGISTERED MAIL TO ADES AT THE   ADDRESS SPECIFIED ABOVE, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE   STATE OF COLORADO OR THE UNITED STATES.   (i) If any provision of this Guaranty is unenforceable in whole or in part for   any reason, it shall be deemed modified to the extent necessary to make it or the applicable   provision enforceable, or if for any reason such provision is not deemed modified, the remaining   provisions shall continue to be effective.   (j) Any payment or other act which results in the extension or renewal of the   statute of limitations in connection with any action or proceeding against any Borrower relating   to the Indebtedness, shall extend or renew the statute of limitations in connection with any action   DEC-1770697-10 44     





 







or other proceeding against the ADES in connection with this Guaranty whether or not ADES   had notice of, or consented to, such payment or act.   (k) Any demand for payment against ADES made by Lender under this   Guaranty shall be in writing and delivered in person or by first class mail, postage prepaid, at the   ADES's address first written above and shall be deemed received:   (i) upon delivery, if delivered in person, and   (ii) two (2) days after deposited in the mail or delivered to the post   office, if mailed.   (1) ADES AND LENDER HEREBY KNOWINGLY, VOLUNTARILY,   AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY ADES AND LENDER   MAY HA VE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN   CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO.   ADES REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF   LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WILL   NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL   WAIVER. ADES ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER   INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS   SECTION.   (m) This Guaranty and the transactions evidenced hereby shall be construed   under the laws of the State of Colorado without regard to principles of conflicts oflaw.   IN WITNESS WHEREOF, the undersigned has caused this Guaranty Agreement to be   duly executed and delivered as of the date first set forth above.   DEC-1770697-10   ADES:   ADV AN CED EMISSIONS SOLUTIONS, INC., a   Delaware corporation   By:~~~~~~~~~~~~~~~   Name:   ~~~~~~~~~~~~~~~   Title:   ~~~~~~~~~~~~~~~-   45