exhibit101preferredunitp






EXHIBIT 10.1                PREFERRED UNIT PURCHASE AGREEMENT  among  Montana Renewables Holdings, LLC,  Calumet Specialty Products Partners, L.P.,  WPGG 14 United Aggregator, L.P.,  and,   solely for the purposes of Section 4.4 and Article IX, Calumet GP, LLC  Dated as of August 5, 2022        





 






  2      Table of Contents  Page  1. Purchase and Sale of Units ..................................................................................................5  1.1 Sale and Issuance of Units .......................................................................................5  1.2 Closing; Delivery .....................................................................................................5  1.3 Use of Proceeds........................................................................................................6  1.4 Defined Terms Used in this Agreement...................................................................6  2. Representations and Warranties of the Company ..............................................................15  2.1 Organization, Good Standing, Qualification .........................................................15  2.2 Corporate Power; Authorization ............................................................................15  2.3 No Conflict.............................................................................................................15  2.4 Capitalization .........................................................................................................16  2.5 Subsidiary of the Company ....................................................................................17  2.6 Valid Issuance of Units ..........................................................................................17  2.7 Litigation ................................................................................................................17  2.8 Agreements; Absence of Changes; Material Liabilities ........................................18  2.9 Certain Transactions ..............................................................................................20  2.10 Rights of Registration and Voting Rights ..............................................................21  2.11 Tax Returns and Payments.....................................................................................21  2.12 Permits; Property; Title and Sufficiency of Assets ................................................22  2.13 Compliance with Laws ..........................................................................................24  2.14 Corruption, Sanctions, Export Controls, Money Laundering. ...............................24  2.15 Environmental and Safety Laws ............................................................................25  2.16 Intellectual Property, Data Security and Privacy. ..................................................26  2.17 Employees and Employee Benefit Plans. ..............................................................28  2.18 Insurance ................................................................................................................31  2.19 Material Contracts ..................................................................................................31  2.20 Material Customers; Material Suppliers ................................................................33  2.21 Financial Statements ..............................................................................................34  2.22 No Brokers .............................................................................................................34  2.23 True-Sale; Non-Consolidation ...............................................................................35  3. Representations and Warranties of the Purchaser ..............................................................34  3.1 Authorization .........................................................................................................34  3.2 No Conflicts; Consent ............................................................................................35  3.3 Purchased Entirely for Own Account ....................................................................35  3.4 Legal Proceedings ..................................................................................................35  3.5 No Brokers .............................................................................................................35  4. Covenants ...........................................................................................................................35  4.1 Shared Contracts ....................................................................................................36  





 






  3      4.2 Wrong Pockets .......................................................................................................36  4.3 Intellectual Property Assignment ...........................................................................37  4.4 Labor and Services .................................................................................................37  4.5 Equity Compensation Plan .....................................................................................38  4.6 Company Management ..........................................................................................38  4.7 Insurance ................................................................................................................38  4.8 RFS and LCFS Registrations .................................................................................38  4.9 Renewable Diesel Conversion Completion ...........................................................39  5. Conditions of the Purchaser’s Obligations at Closing .......................................................39  5.1 Representations and Warranties .............................................................................39  5.2 Performance ...........................................................................................................39  5.3 Qualifications .........................................................................................................39  5.4 A&R LLC Agreement............................................................................................39  5.5 Proceedings and Documents ..................................................................................39  5.6 No Prohibition ........................................................................................................39  5.7 Oaktree Prepayment ...............................................................................................39  5.8 Stonebriar Financing Documents ...........................................................................40  6. Conditions of the Company’s Obligations at Closing .......................................................40  6.1 Representations and Warranties .............................................................................40  6.2 Performance ...........................................................................................................40  6.3 Qualifications .........................................................................................................40  6.4 A&R LLC Agreement............................................................................................40  6.5 No Prohibition ........................................................................................................40  7. Indemnification ..................................................................................................................40  7.1 Survival ..................................................................................................................40  7.2 Indemnification ......................................................................................................40  7.3 Limitations on Indemnification ..............................................................................41  7.4 Method of Asserting Claims ..................................................................................43  7.5 Limitations on Remedies .......................................................................................44  7.6 Exclusive Remedies ...............................................................................................44  7.7 Tax Characterization ..............................................................................................44  8. Tax Matters ........................................................................................................................44   9. Miscellaneous ....................................................................................................................45  9.1 Successors and Assigns..........................................................................................45  9.2 Governing Law ......................................................................................................46  9.3 Counterparts ...........................................................................................................46  9.4 Titles and Subtitles .................................................................................................46  9.5 Notices ...................................................................................................................46  9.6 Fees and Expenses .................................................................................................46  





 






  4      9.7 Amendments and Waivers .....................................................................................46  9.8 Severability ............................................................................................................47  9.9 Delays or Omissions ..............................................................................................47  9.10 Additional Acts ......................................................................................................47  9.11 Entire Agreement ...................................................................................................47  9.12 Interpretation ..........................................................................................................47  9.13 Dispute Resolution .................................................................................................48    





 






  5      PREFERRED UNIT PURCHASE AGREEMENT  THIS PREFERRED UNIT PURCHASE AGREEMENT is made and entered into as of  August 5, 2022, by and between Montana Renewables Holdings LLC, a Delaware limited liability  company (the “Company”), Calumet Specialty Products Partners, L.P., a Delaware limited  partnership (the “Parent”), WPGG 14 United Aggregator, L.P., a Delaware limited partnership  (the “Purchaser”), and solely for the purposes of Section 4.4 and Article IX, a Delaware limited  liability company and the general partner of the Parent (“Calumet GP”).  The parties hereby agree as follows:  1. Purchase and Sale of Units.  1.1 Sale and Issuance of Units.  (a) At the Closing (as defined below), the Purchaser and Parent shall,  and Parent shall cause the Calumet Members to, adopt the Second Amended and Restated Limited  Liability Company Agreement of the Company in the form of Exhibit A attached to this  Agreement (the “A&R LLC Agreement”).  (b) Subject to the terms and conditions of this Agreement, the Purchaser  hereby agrees to purchase at the Closing, and the Company agrees to sell and issue to the  Purchaser, and Parent shall cause the Company to sell and issue to the Purchaser, at the Closing,  12,500,000 Preferred Units (as defined in the A&R LLCA) of the Company (collectively, the  “Purchased Units”) for a purchase price of TWENTY DOLLARS ($20.00) per Preferred Unit,  which is equal to $250,000,000.00 in the aggregate (the “Purchase Price”), payable at the times  set forth in Section 1.2:   1.2 Closing; Delivery.  (a) The purchase and sale of the Purchased Units shall take place  remotely via the exchange of documents and signatures, at 10 a.m. E.S.T. on the date hereof or  such other time as the Company and the Purchaser shall agree (such date and time are designated  as the “Closing” or the “Closing Date”).  (b) (i) At the Closing, the Purchaser shall deliver to the Company the  following: (A) a payment in cash equal to $200,000,000.00 (the “Initial Purchase Price Amount)”  by wire transfer of immediately available funds to a bank account designated by the Company;(B)  a counterpart to the A&R LLC Agreement, duly executed by the Purchaser; and (C) such other  documents or instruments as the Company may reasonably request for the purpose of otherwise  facilitating the consummation or performance of any of the transactions contemplated by this  Agreement and (ii) on a date selected by Purchaser, not later than October 3, 2022, a payment in  cash equal to $50,000,000.00 (the “Deferred Purchase Price Amount”) plus the Incremental  Calumet Units Coupon by wire transfer of immediately available funds to a bank account  designated by the Company.  (c) At the Closing, the Company shall deliver to the Purchaser the  following: (i) a counterpart to the A&R LLC Agreement, duly executed by the Company, the  





 






  6      Parent and the Calumet Members; (ii) a copy of the Oaktree Payoff Letter, duly executed by the  parties thereto, (iii) a copy of the Stonebriar Financing Documents, duly executed by the parties  thereto, and (iv) such other documents or instruments as the Purchaser may reasonably request for  the purpose of otherwise facilitating the consummation or performance of any of the transactions  contemplated by this Agreement and evidencing the issuance of the Purchased Units to Purchaser.  1.3 Use of Proceeds. The Company shall use the Purchase Price (a) to pay off  all Indebtedness outstanding as of the Closing under the Oaktree Financing Documents; (b) to  complete the Renewable Diesel Conversion and (c) after completion of the matters referred to in  clauses (a) and (b), for general company purposes.  1.4 Defined Terms Used in this Agreement. In addition to the terms defined in  the text of this Agreement, the following terms used in this Agreement shall be construed to have  the meanings set forth or referenced below.  (a) “Affiliate” means, with respect to a specified Person, another  Person that at such time directly, or indirectly through one or more intermediaries, Controls or is  Controlled by or is under common Control with the Person specified; provided, however, that for  the purposes of this Agreement (i) none of the members of the Company or their Affiliates shall  be deemed to be an Affiliate of any other member of the Company, (ii) neither the Purchaser nor  any of its Affiliates shall be deemed to be an Affiliate of the Parent Group or the Company Group,  (iii) none of the members of the Company or their parent companies or Affiliates shall be deemed  to be an affiliate of the Company Group, and (iv) none of the portfolio companies of Warburg  Pincus LLC or any of its Affiliates (other than the Company Group) shall be deemed to be an  Affiliate of the Company Group or the Parent Group.  For the avoidance of doubt, the Calumet  Members shall be deemed to be Affiliates of the Parent.   (b) “Acquired Assets” means the assets acquired by Montana  Renewables, LLC pursuant to the Asset Purchase Agreement.    (c) “AML Laws” means (a) the USA Patriot Act of 2001, as amended,  (b) the U.S. Money Laundering Control Act of 1986, as amended, (c) the Bank Secrecy Act, as  amended, (d) any other applicable anti-money laundering laws and financial recordkeeping, and  (e) any other regulation or guidance related to any of the foregoing.  (d) “Applicable Law” means with respect to any Person, property or  matter, any of the following applicable thereto: any constitution, writ, injunction, statute, law,  regulation, ordinance, rule, judgment, rule of common law, order, decree, court decision,  authorization, approval, concession, grant, franchise, license, agreement, directive, guideline,  policy, requirement, or other governmental restriction or any similar form of decision of, or  determination by, or any interpretation or administration of any of the foregoing, by any  Governmental Authority, whether in effect as of the date hereof or thereafter and, in each case, as  amended.   (e) “Anticorruption Laws” means the U.S. Foreign Corrupt Practices  Act of 1977, as amended, and any other  applicable anti-bribery or anti-corruption laws or  regulation.  





 






  7      (f) “Asset Purchase Agreement” means that certain asset purchase  agreement, dated as of November 18, 2021, between Montana Renewables, LLC, as assignee and  Calumet Montana Refining, LLC, as assignor.    (g) “Business” means the business operated by the Company Group,  including implementing and completing the Renewable Diesel Conversion and developing,  acquiring, constructing, owning and operating of the Renewable Diesel Project, and any buildings,  infrastructure, real property rights, contracts or other assets or facilities relating to the Renewable  Diesel Project, sourcing of Feedstock, producing and selling renewable diesel, renewable jet fuel  and renewable naphtha, and engaging in ordinary course commercial activity relating thereto,  including applying for and obtaining eligibility to generate credits for renewable fuel production  under applicable federal, state, and Canadian regulatory programs and generating credits related  to same.  (h) “Business Contingent Workers” means all current and former  independent contractors, consultants, temporary employees, leased employees or any other  servants or agents performing services with respect to the operation of the Business and classified  by any Company Group Member (as applicable) as other than a Business Employee or  compensated other than through wages paid by Calumet GP through its payroll department and  reported on a Form W-2.   (i) “Business Employees” means, collectively, the current and former  employees of Calumet GP: (i) performing any services in connection with the Business and whose  primary work location is at any Real Property subject to a Real Property Lease set forth on  Subsection 2.12(b) of the Disclosure Schedule; and (ii) working at any other location and who  routinely spends the majority of his or her working time on work directly related to the Business  or the operations of any Company Group Member.   (j) “Calumet Members” means Calumet Montana Refining, LLC, a  Delaware limited liability company and Montana Renewables, Inc., a Delaware corporation.  (k) “Code” means the Internal Revenue Code of 1986, as amended.  (l) “Company Group” means collectively, the Company and its  Subsidiary; and “Company Group Member” means, individually, any of the foregoing.   (m) “Contract” means all contracts, leases, deeds, mortgages, licenses,  instruments, notes, commitments, undertakings, indentures, joint ventures and all other  agreements, commitments and arrangements, whether written or oral.  (n) “Control” means the possession, directly or indirectly, of the power  to direct or cause the direction of the management or policies of a Person, whether through the  ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have  meanings correlative thereto.  (o) “Damages” means all losses, Liabilities, damages, payments,  awards, penalties, fines, Taxes, costs and expenses, amounts paid in connection with any  assessments, judgments or settlements relating thereto, including reasonable and documented in  





 






  8      connection therewith attorneys’, accountants’ and other fees and expenses suffered or incurred by  an Indemnified Party.   (p) “Disclosure Schedule” means the disclosure schedules delivered by  the Parent and the Company to the Purchaser concurrently with the execution and delivery of this  Agreement dated as of the date hereof.  (q) “Easements” means all easements, rights of way, rights of access  and similar rights appurtenant to the Site, including the easements described on described on  Subsection 2.12(b) of the Disclosure Schedule.  (r) “Employee Benefit Plan” means (i) each “employee benefit plan”  (within the meaning of Section 3(3) of ERISA and whether or not subject to ERISA), and (ii) each  compensation and benefits plan, agreement, program, policy, or arrangement, including, without  limitation, each stock purchase, stock option, restricted unit, profits interest, severance, retention,  employment, consulting, change-of-control, collective bargaining, bonus, incentive, deferred  compensation, employee loan, material fringe benefit, retirement, supplemental retirement, health  and welfare, vacation, pension, profit-sharing and other benefit plan, agreement, program, policy,  or other arrangement, whether oral or written, in each case, (x) that is sponsored, maintained,  contributed or required to be contributed to by any Company Group Member or Parent Group  Member with respect to the Business Employees or Business Contingent Workers and other  service providers of any Company Group Member or Parent Group Member or (ii) for which any  Company Group Member or Parent Group Member may have any direct or indirect liability  (contingent or otherwise) with respect to the Business Employees or Business Contingent Workers.  (s) “Environmental Claim” means any administrative or judicial  action, suit, proceeding, notice, claim or demand by any Person seeking to enforce any obligation  or responsibility arising under or relating to Environmental Law or alleging or asserting liability  for investigatory costs, cleanup or other remedial costs, legal costs, environmental consulting  costs, governmental response costs, damages to natural resources or other property, personal  injuries, fines or penalties related to (i) the presence, or Release into the environment, of any  Hazardous Material at any location, whether or not owned by the Person against whom such claim  is made, or (ii) any violation of or noncompliance with, or alleged violation of or noncompliance  with, or liability arising under any Environmental Law. The term Environmental Claim shall  include, without limitation, any claim by any Person for damages, contribution, indemnification,  cost recovery, compensation or injunctive relief or costs associated with any remediation plan, in  each case, under any Environmental Law.  (t) “Environmental Law” means any Applicable Law regulating or  imposing liability or standards of conduct concerning or relating to pollution, human health and  safety, the protection or cleanup of the environment, natural resources or special status species and  their habitat, including all Applicable Laws concerning the presence, use, manufacture, generation,  transportation, Release, threatened Release, disposal, arrangement for disposal, dumping,  discharge, treatment, exposure to, storage or handling of Hazardous Materials.  





 






  9      (u) “Equity Securities” means any membership interest or unit or  ownership or other similar interest in the Company, or any interest therein, or any security, option,  warrant, or right convertible, exchangeable, or exercisable into any of the foregoing.  (v) “ERISA” means the Employee Retirement Income Security Act of  1974, as amended, and the regulations thereunder.  (w) “ERISA Affiliate” means with respect to any Person, any trade or  business (whether or not incorporated) that, together with such Person, is or at the relevant time  was treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or under common  control under Section 4001(b)(1) of ERISA.  (x) “Export Control Laws” means any applicable export control laws  including the U.S. International Traffic in Arms Regulations and the U.S. Export Administration  Regulations.  (y) “Feedstock” means soybean oil, tallow, canola oil, distillers corn  oil and used cooking oil, and other organic material capable of producing renewable diesel.  (z) “Fraud” means, with respect to any party hereto, the making of any  statement, representation or warranty, (i) such party knew such statement, representation or  warranty was inaccurate and (ii) another party hereto relied upon such statement, representation or  warranty and suffered Damages as a result of such inaccuracy.    (aa) “Governmental Authority” means any supra national, national,  federal, tribal, regional, state, provincial or local government, or political subdivision thereof or  other entity exercising executive, legislative, judicial, taxing, regulatory or administrative  functions of or pertaining to government and having jurisdiction over the Person or matters in  question, including all agencies and instrumentalities of such governments and political  subdivisions.  (bb) “Hazardous Substances” means, but is not limited to, any solid,  liquid, gas, odor, radiation or other substance or emission which is a contaminant, pollutant,  dangerous substance, toxic substance, regulated substance, hazardous waste, subject waste,  hazardous material or hazardous substance which is or becomes regulated by applicable  Environmental Laws or which is classified as hazardous or toxic (or words of similar import) under  applicable Environmental Laws (including gasoline, diesel fuel or other petroleum hydrocarbons,  polychlorinated biphenyls, per- or polyfluoroalkyl substances (PFAS), asbestos and urea  formaldehyde foam insulation) or with respect to which liability or standards of conduct are  imposed under any Environmental Laws.  (cc) “Incremental Calumet Units Coupon ” has the meaning given to  it in the A&R LLCA.  (dd) “Indebtedness” of any Person at any date means, without  duplication, all obligations of such Person to pay principal, interest, penalties, fees, guarantees,  reimbursements, damages, costs of unwinding and other liabilities with respect to (i) indebtedness  for borrowed money, whether current or funded, fixed or contingent, secured or unsecured, (ii)  





 






  10      indebtedness evidenced by bonds, debentures, notes, mortgages or similar instruments or debt  securities, (iii) leases that are capitalized in accordance with GAAP under which such Person is  the lessee, (iv) the deferred purchase price of goods or services (other than trade payables or  accruals in the ordinary course of business consistent with past practice), (v) obligations under  interest rate swap, hedging or similar agreements, and (vi) direct or indirect guarantees or other  forms of credit support of obligations described in clauses (i) through (v) above of any Person.   (ee) “Indemnification Notice” means written notification pursuant to  Subsection 7.4 of a claim for indemnification under Section 7 by an Indemnified Party.  (ff) “Intellectual Property” means any intellectual property rights or  similar proprietary rights anywhere in the world, including all rights in and to any of the following:  (i)  trademarks, service marks, Internet domain names, social media account names or “handles”,  logos, slogans, trade dress and trade names and other similar designations of source or origin,  registrations and applications for registration of the foregoing, and the goodwill associated  therewith and symbolized thereby (collectively, “Trademarks”), (ii) patents (including design  patents), patent applications, and utility models, (iii) confidential or proprietary information,  including trade secrets and know-how, ideas, marketing, business and technical information,  algorithms, inventions (whether or not patentable), processes, formulae, research and development  data, models and methodologies (collectively, “Trade Secrets”), (iv) copyrights, including  copyrights in any works of authorship, (v) software, computer programs, firmware, middleware,  application programming interfaces, algorithms, routines and other code, in each case, whether in  source code, object code, or other form and all documentation associated with the foregoing or  designs and (vi) data and databases, in each case of the foregoing (i)-(vi)), whether under statutory  or common law, whether registered or unregistered, and together with registrations and pending  applications to register any of the foregoing, including all continuations, continuations-in-part,  provisionals, revisions, divisionals, reissues, re-examinations, substitutions, extensions and  renewals thereof.   (gg) “IT Systems” means the hardware, servers, software, data  communication lines and databases, network and telecommunication systems, Internet-related  information technology infrastructure, wide area network and other information technology  equipment, interfaces or related systems owned, licensed or used by or for the benefit of the  Company Group.  (hh) “Knowledge,” including the phrase “to the Company’s  Knowledge,” shall mean the actual knowledge (after reasonable inquiry) of Todd Borgmann,  Bruce Fleming, Ron Colwell, Derek Roesener, and Michael Wojciechowski.    (ii) “Liabilities” means any debts, liabilities and obligations, whether  accrued or fixed, absolute or contingent, known or unknown, matured or unmatured, liquidated or  unliquidated, determined or determinable, on or off-balance sheet, whether arising in the past,  present or future, including those arising under any Law or Action.  (jj) “LLC Agreement” means, prior to the Closing, the Amended and  Restated Limited Liability Company Agreement of the Company, dated as of December 7, 2021,  and on and after the Closing, the A&R LLC Agreement.  





 






  11      (kk) “Material Adverse Effect” means any change, event, condition,  occurrence, development, result, effect, or circumstance that is, or could reasonably be expected  to become, materially adverse to the business, assets (including intangible assets), liabilities,  financial condition, property, or results of operations of the Company Group or the Business, taken  as a whole.    (ll) “Oaktree Agreement” means that certain Credit Agreement, dated  as of November 18, 2021, as amended or otherwise modified from time to time, among Subsidiary,  as borrower, Company, as pledgor, the lenders from time to time party thereto, and Oaktree Fund  Administration, LLC, as administrative agent and collateral agent.  (mm) “Oaktree Financing Documents” means the “Financing  Documents” as used and defined in the Oaktree Agreement.  (nn) “Oaktree Payoff Letter” means a statement, notice or letter issued  by Oaktree Fund Administrative, LLC, as administrative agent of the Oaktree Agreement, in form  and substance reasonably satisfactory to the Purchaser, which, among other things, (i) sets forth  the amounts required in order to pay in full all Indebtedness outstanding under the Oaktree  Agreement, and (ii) provides that, upon payment in full of such amounts, the Oaktree Financing  Documents and all obligations thereunder (other than those terms that expressly survive in  accordance with the terms of the Oaktree Financing Documents) and all liens and encumbrances  securing such obligations, shall, in each case, be automatically satisfied, terminated and of no  further force and effect.  (oo) “Organizational Documents” means, with respect to any Person,  (i) in the case of any corporation, the certificate of incorporation and by-laws (or similar  documents) of such Person, (ii) in the case of any limited liability company, the certificate of  formation and operating agreement (or similar documents) of such Person, (iii) in the case of any  limited partnership, the certificate of formation and limited partnership agreement (or similar  documents) of such Person, (iv) in the case of any general partnership, the partnership agreement  (or similar document) of such Person and (v) in any other case, the functional equivalent of the  foregoing.  (pp) “Owned Intellectual Property” means any Intellectual Property  owned or purported to be owned by a Company Group Member.  (qq)  “Parent Group” means collectively, (a) the Parent, (b) Calumet GP  and (c) any Affiliate controlled by the Parent (other than the Company Group), and “Parent Group  Member” means, individually, any of the foregoing.   (rr) “Partnership Audit Rules” means Subchapter C of Chapter 63 of  the Code and any subsequent amendment (and any Treasury Regulations or other guidance  relating) thereto and, in each case, any analogous provisions of state, local and non-U.S. Law  governing the preparation and filing of Tax Returns, interactions with Taxing authorities, the  conduct and resolution of examinations by Taxing authorities and payment of resulting Tax  liabilities.  





 






  12      (ss)  “Patent Application” means the provisional patent application  titled “Process for Renewable Energy Formation” (Application No. 63/327,114), filed on April 4,  2022 with the United States Patent and Trademark Office.   (tt) “Permitted Liens” means (i) any mechanic’s, materialmen’s,  laborer’s, workmen’s, repairmen’s, carrier’s and similar liens, including all statutory liens, in each  case arising or incurred in the ordinary course of business, (ii) liens for taxes not yet due and  payable or being contested in good faith through appropriate proceedings and for which adequate  reserves have been established in accordance with GAAP, (iii) purchase money liens and liens  securing rental payments under capital lease arrangements, (iv) good faith deposits in connection  with bids, leases or other Contracts, including rent security deposits, (v) pledges or deposits to  secure public or statutory obligations or appeal bonds, or (vi) liens expressly referred to in the  Financial Statements.   (uu) “Person” means an individual, general partnership, limited  partnership, limited liability company, corporation, trust, estate, real estate investment trust,  association or any other entity.   (vv) “Personal Information” means all information irrespective of the  form or medium in which it exists (including paper, electronic and other forms) that (i) identifies,  relates to, describes, is reasonably capable of being associated with or could reasonably be linked,  directly or indirectly, with a particular individual or household or (ii) otherwise constitutes  personal data or personal information (or any other similar term) under any Applicable Law.  (ww) “Pre-Closing Tax Period” means any Tax period ending on or  before the Closing and the portion of any Straddle Period ending on or before the Closing.   (xx) “Prior Transaction Documents” means, collectively, those  documents identified on Subsection 1.5 of the Disclosure Schedules.    (yy) “Purchaser Blocker” means Purchaser or any Affiliate thereof or  successor thereto which, directly or indirectly, holds any Membership Units (as defined in the LLC  Agreement) and which is classified as a corporation for U.S. federal income tax purposes.  (zz) “Real Property” means all right, title and interest, in and to any and  all parcels of real property (including the Site and Easements) together with interest in all  improvements and appurtenant fixtures, equipment, personal property, easements and other  property and rights incidental to the ownership, lease or operation thereof.  (aaa) “Registration Rights Agreements” means that certain registration  rights agreement to be entered by and among the Company and the initial holders thereto in a form  attached as Exhibit D to the A&R LLCA.  (bbb) “Release” means any release, spill, emission, emanation, leaking,  pumping, pouring, injection, deposit, disposal, discharge, dispersal, dumping, leaching or  migration into or through the indoor or outdoor environment, including the movement through  ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.  





 






  13      (ccc) “Renewable Diesel Conversion” means conversion of the refining  capacity and capabilities of the Acquired Assets to process Feedstock, producing renewable diesel,  renewable jet fuel and renewable naphtha and the undertaking of other associated works required  for the operation of such Acquired Assets to establish a nameplate capacity of 12,000 barrels per  stream day and fresh feed capacity of 12,000 barrels per stream day based upon mixed feedstock,  calculated in accordance with the underwriting model provided to the Purchaser prior to the date  hereof or 11,000 barrels per stream day based upon soybean oil feedstock.  (ddd) “Renewable Diesel Conversion Completion” means (i) all  material facilities that comprise the Renewable Diesel Conversion, have been installed and  constructed and are properly working, (ii) the Renewable Diesel Project has satisfied all  performance guarantees and performance levels during performance testing; and (iii) all Permits  and Environmental Permits necessary for the operation of the Renewable Diesel Project and all  insurance policies relating to the operation of the Renewable Diesel Project have been obtained.   (eee) “Renewable Diesel Project” means the completed Renewable  Diesel Conversion project.  (fff) “Retained Business” means any business or activity of the Parent  Group, whether undertaken prior to or after the date hereof, other than the Business, and the  Retained Business includes the refining capacity and capabilities of the Parent Group or the  Company Group, processing and refining of crude oil and other feedstocks and the recovery  therefrom of refined products (other than renewable diesel), including conventional gasoline,  diesel, jet fuel, naphtha, and asphalt, at the Site.  (ggg) “Sanctions” shall mean any economic or financial sanctions or trade  embargoes imposed, administered or enforced from time to time by U.S. Governmental Authorities  (including, but not limited to, the U.S. Office of Foreign Assets Control, including OFAC’s  Specially Designated Nationals List, the Sectoral Sanctions Identifications List and the Foreign  Sanctions Evaders List, the U.S. Department of State and the U.S. Department of Commerce), the  United Nations Security Council, the E.U. (or any member state of the E.U.), or her Majesty’s  Treasury of the United Kingdom.  (hhh) “Sanctioned Country” means any country or territory with which  dealings are broadly and comprehensively prohibited by any country-wide or territory-wide  Sanctions (as of the date hereof, the Crimea, Donetsk and Luhansk regions of the Ukraine, Cuba,  Iran, North Korea, and Syria).  (iii) “Sanctioned Person” means any Person with whom any  transactions or dealings are restricted, prohibited, or sanctionable under any Sanctions, including  as a result of such Person: (a) being named on any list of Persons subject to Sanctions, (b) being  located, organized, or resident in any Sanctioned Country, or (c) being fifty percent (50%) owned  by or, where relevant under the applicable Sanctions or Export Control Laws, controlled by or  acting on behalf of a Person described in (a) or (b).  (jjj) “Securities Act” means the Securities Act of 1933, as amended, and  the rules and regulations promulgated thereunder.  





 






  14      (kkk) “Shared Contract” means any Contract with a third party that  relates both to the Business, on the one hand, and the Retained Business, on the other hand.  (lll) “Site” means the real property described on Subsection 2.12(b) of  the Disclosure Schedule located in Great Falls, Montana.   (mmm)“Stonebriar” means Stonebriar Commercial Finance LLC.  (nnn) “Stonebriar Equipment Schedule No. 2” means that certain  Equipment Schedule No. 2, dated August 5, 2022 by and between Stonebriar, as lessor and the  Subsidiary, as lessee, delivered pursuant to that certain Master Lease Agreement, dated as of  December 31, 2021, between Stonebriar, as lessor and the Subsidiary, as lessee.  (ooo) “Stonebriar Financing Documents” means the Stonebriar  Equipment Schedule No. 2 and the Stonebriar Interim Funding Agreements.   (ppp) “Stonebriar Interim Funding Agreements” means that certain  Interim Funding Agreement, dated August 5, 2022 by and between Stonebriar, as lessor and the  Subsidiary, as lessee, and the amended Interim Funding Agreement, dated August 5, 2022 by and  between Stonebriar, as lessor and the Subsidiary, as lessee, related to the renewable hydrogen  plant.  (qqq) “Straddle Period” means any Tax period that begins on or before,  and ends after, the Closing.  (rrr) “Tax” means any and all U.S. federal, state, local or foreign taxes,  including without limitation any income, excise, property, sales, use, occupation, transfer,  conveyance, payroll or other employment-related tax, duties, license, registration, ad valorem,  valued-added, social charges, social security, national insurance (or other similar contributions or  payments), franchise, estimated severance, stamp taxes, taxes based upon or measured by capital  stock, capital gains, net worth or gross receipts, escheat, unclaimed property, custom duties and  other taxes, together with all interest, fines, penalties and additions attributable to or imposed with  respect to such amounts.  (sss) “Tax Return” means any report, return, information return, form,  declaration, statement, or other information (including any amendments thereto and including any  schedule or statement thereto) filed or maintained or required to be filed or maintained by  Applicable Law in connection with the determination, assessment or collection of any Tax.  (ttt) “Transaction Documents” means, collectively, this Agreement  and the A&R LLC Agreement.  (uuu) “Union” means a union, labor organization or other person  purporting to act as an exclusive bargaining representative of any Business Employee (or group of  Business Employees).  (vvv) “Union Employees” means those Business Employees who are  represented by a Union as their exclusive bargaining representative.  





 






  15      2. Representations and Warranties of the Company. The Parent and the Company  hereby represent and warrant to the Purchaser that, except as set forth on the Disclosure Schedule,  which exceptions shall be deemed to be part of the representations and warranties made hereunder,  the following representations are true and arranged in sections corresponding to the numbered and  lettered sections and subsections contained in this Section 2, and the disclosures in any section or  subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2  solely to the extent it is readily apparent from a reading of the disclosure that such disclosure (on  its face, without reference to any other information not included in such disclosure) is applicable  to such other sections and subsections.  2.1 Organization, Good Standing, Qualification. Each Parent Group Member  and each Company Group Member is (a) duly organized, validly existing and in good standing  under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to  own or lease and operate its assets and to carry on its business as now conducted and as proposed  to be conducted, and (c) is duly qualified to do business and is in good standing in each jurisdiction  where necessary in light of its business as now conducted and as proposed to be conducted  (including performance of each Material Contact to which it is party), except, in each case, where  the failure to so qualify would not be material to the Company Group or the Business, taken as a  whole.   2.2 Corporate Power; Authorization.  Each Parent Group Member and each  Company Group Member has full power, authority and legal right to enter into, deliver and  perform its respective obligations under each of the Transaction Documents to which it is a party  and to consummate each of the transactions contemplated herein and therein, and has taken all  necessary corporate, limited partnership, or limited liability company (as applicable) action to  authorize the execution, delivery and performance by it of each of the Transaction Documents to  which it is a party and, in the case of the Company, to issue the Purchased Units at the Closing.  Each of the Transaction Documents to which the each Parent Group Member and each Company  Group Member is a party has been duly executed and delivered by such Parent Group Member  and Company Group Member (as applicable) and is in full force and effect and constitutes a legal,  valid and binding obligation of such Parent Group Member and such Company Group Member  party thereto (as applicable), enforceable against such Parent Group Member and Company Group  Member (as applicable) in accordance with its respective terms, except as enforcement may be  limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other  similar laws affecting creditors rights generally, (b) by general principles of equity (regardless of  whether such enforceability is considered in a proceeding in equity or at law) or (c) implied  covenants of good faith and fair dealing.  2.3 No Conflict.  The execution, delivery and performance of the Transaction  Documents to which any Parent Group Member or Company Group Member (as applicable) is a  party and all other documents and instruments to be executed and delivered hereunder by any  Parent Group Member or Company Group Member (as applicable), as well as the consummation  of the transactions contemplated herein and therein, do not and will not (a) conflict with or result  in a violation or breach of any provision of the Organizational Documents of any Parent Group  Member or Company Group Member, (b) conflict with or result in a breach of, or constitute a  default under, require a consent or waiver under, or result in the acceleration of any Material  Contract to which any Parent Group Member or Company Group Member is a party or is bound  





 






  16      by or to which its property or assets or the Business are subject or that its used in the Business or  relied upon by Company Group Member or the Business, (c) conflict with or result in a breach of,  violation of, or constitute a default under, any Applicable Law, (d) result in the creation or  imposition of any lien (other than a Permitted Lien) on the property or assets of any Parent Group  Member, Company Group Member or the Business or the suspension, revocation, forfeiture, or  nonrenewal of any material permit or license applicable to any Parent Group Member, Company  Group Member or the Business, and (e) require any consent or approval of any Person. Assuming  the accuracy of the representations made by the Purchaser in Section 3 of this Agreement, no  consent, authorization of, or registration, qualification, designation, declaration or filing with or  notice to, or any other action of, with or by any applicable Governmental Authority is required on  the part of any Parent Group Member, Company Group Member or the Business in connection  with the consummation of the transactions contemplated by this Agreement.  No Parent Group  Member or Company Group Member is in violation, breach or default (i) of any provisions of its  Organizational Documents, (ii) of any judgment, order, writ or decree, (iii) under any Material  Contract to which it is a party or by which it is bound, and which would be material to any  Company Group Member or the Business, taken as a whole or (iv) of any provision of federal or  state statute, rule or regulation applicable to any Parent Group Member, Company Group Member  or the Business, the violation of which would not be material to any Company Group Member or  the Business, taken as a whole or the transactions contemplated hereby.  2.4 Capitalization.  (a) Subsection 2.4(a) of the Disclosure Schedule sets forth the  capitalization of the Company, including the name and jurisdiction of incorporation or formation  of each member, the number and class of units held by each member, and the percentage interest  of outstanding units held by such member, as of immediately prior to the Closing and as of  immediately after. All of the membership interests in the Company have been duly authorized and  validly issued in accordance with its Organizational Documents and in compliance with all  Applicable Laws, are fully paid and non-assessable and free and clear of all liens other than  Permitted Liens. On and after the Closing, the rights, privileges and preferences of the issued units  of the Company, including the Purchased Units, are as stated in the A&R LLC Agreement and as  provided by the Delaware Limited Liability Company Act.  (b) The Company has no outstanding securities convertible into or  exchangeable for any of its membership interests in or any rights (including conversion or  preemptive rights and rights of first refusal or similar rights) to subscribe for or to purchase, or any  warrants or options for the purchase of, or any agreements providing for the issuance (contingent  or otherwise) of, or any calls, commitments or claims of any character relating to any such  membership units. There are no outstanding stock appreciation rights, phantom stock,  performance-based equity rights or profit participation, unit appreciation rights or other similar  equity-based rights or obligations of the Company.  Other than the LLC Agreement, there are no  agreements or understandings to which the Company is a party with respect to the voting, sale or  transfer of any membership units of the Company or restricting the transfer or hypothecation of  any such membership units.    (c) The Company has obtained valid waivers of any rights by other  parties to purchase any of the Purchased Units covered by this Agreement.  





 






  17      (d) No “bad actor” disqualifying event described in  Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the  Company or, to the Company’s Knowledge, any Company Covered Person, except for a  Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.  “Company Covered Person” means, with respect to the Company as an “issuer” for purposes of  Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of  Rule 506(d)(1).  2.5 Subsidiary of the Company.   (a) The Company is the sole equity owner of the subsidiary entity listed  on Subsection 2.5(a)(i) of the Disclosure Schedule (the “Subsidiary”). Subsection 2.5(a)(i) of the  Disclosure Schedule lists the jurisdiction of organization or incorporation of the Subsidiary. The  Company has good and marketable title to, and is the sole record and beneficial owner of, the  Subsidiary, free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, other  than Permitted Liens. Except for the Subsidiary, the Company does not currently own or control,  directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited  liability company, association, or other business entity.  (b) Except as set forth on Subsection 2.5(b) of the Disclosure Schedule,  the Subsidiary does not have any outstanding securities convertible into or exchangeable for any  of its membership interests in or any rights (including conversion or preemptive rights and rights  of first refusal or similar rights) to subscribe for or to purchase, or any warrants or options for the  purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any  calls, commitments or claims of any character relating to any such membership units.  There are  no outstanding stock appreciation rights, phantom stock, performance-based equity rights or profit  participation, unit appreciation rights or other similar equity-based rights or obligations of the  Subsidiary.  There are no agreements or understandings to which the Subsidiary is a party with  respect to the voting, sale or transfer of its membership units or restricting the transfer or  hypothecation of any such membership units.   2.6 Valid Issuance of Units. The Purchased Units, when issued, sold and  delivered will be validly issued, fully paid, non-assessable, and free of restrictions on transfer other  than restrictions on transfer under the A&R LLC Agreement, Applicable Law and liens or  encumbrances created by or imposed by the Purchaser. Assuming the accuracy of the  representations made by the Purchaser in Section 3 of this Agreement, the Purchased Units will be  issued in compliance with all applicable federal and state securities laws.  2.7 Litigation. Except as set forth on Schedule 2.7 of the Disclosure Schedule,  there is no pending or threatened claim, action, suit, proceeding, arbitration, mediation, complaint,  charge, audit, hearing, action or proceeding of or before any court, arbitrator or Governmental  Authority (“Action”) (a) by or against the any Company Group Member, or by or against any  Parent Group Member relating to the Business, including any Action (i) seeking to restrain or  prohibit the consummation of the transactions contemplated by the Transaction Documents, (ii)  purporting to affect the legality, validity or enforceability of any of the Transaction Documents,  (iii) affecting any of its properties or assets, that if determined adversely to against any Company  Group Member or Parent Group Member would be material to the Business, or (iv) affecting the  





 






  18      Renewable Diesel Conversion, the Renewable Diesel Project or any part of the Site, or (b) by or  against the any Company Group Member, its officers, its managers or any Business Employee,  arising out of the employment or other relationship of such officer, manager or Business with the  Company Group, the Parent Group or the Business. No Company Group Member, Purchaser  Group Member, or to the Company’s Knowledge, any of their respective officers, managers or  Business Employees has been, or is a party or is named as subject to the provisions of any order,  writ, injunction, judgment or decree of any court or Government Authority or instrumentality (in  the case of officers and managers, and any Parent Group Members, such as would affect any  Company Group Member or the Business). There is no Action by any Company Group Member  pending or which the Company Group Member intends to initiate, and there is no Action by any  Parent Group Member as would affect any Company Group Member or the Business.  2.8 Agreements; Absence of Changes; Material Liabilities.  (a) Since June 30, 2022, (i) the Company Group and the Business have  operated in the ordinary course of business and consistent with past practice in all material respects,  and (ii) there has not been any Material Adverse Effect or any change, event, occurrence or  development that, individually or in the aggregate, would have a Material Adverse Effect.  Since  June 30, 2022 except as set forth on Subsection 2.8(a) of the Disclosure Schedule, there has not  been:   (i)  any declaration or payment of any dividends, or  authorization  of or  distribution made upon or with respect to any class or series of its units of any  Company Group Member;   (ii)  (A) any incurrence of any Indebtedness for money  borrowed or any other liabilities individually in excess of $3,000,000 or in excess of $5,000,000  in the aggregate by any Company Group Member or the Business; (B) any loans or advances made  to any Person by any Company Group Member or the Business; or (C) any pledge or mortgage of  any material portion of Company Group Member’s assets or properties, or satisfaction or discharge  of any lien, claim or encumbrance or payment of any obligation by any Company Group Member  except in the ordinary course of business or which is not material to the assets, properties, financial  condition, or operating results or business of any Company Group Member or the Business;   (iii)  (A) any sale, exchange or other disposition of any of its  assets or rights except for in the ordinary course of business by any Company Group Member or  the Business; or (B) any adoption of a plan of agreement of, or resolutions providing for  authorizing a complete or partial merger or consolidation with any other Person or a dissolution,  restructuring, recapitalization, complete or partial liquidation or other reorganization;   (iv) any change in the assets, liabilities, financial condition,  business or operating results of any Company Group Member or the Business from that reflected  in the Balance Sheet, except changes in the ordinary course of business which would not be  material to any Company Group Member or the Business, taken as a whole;  





 






  19      (v) any damage, destruction or loss, whether or not covered by  insurance, materially and adversely affecting the assets, properties, financial condition, operating  results, or prospects of the Company Group or the Business;  (vi) any termination of, amendment of or waiver by the any  Company Group Member or the Business of any material right under a Material Contract or a  material debt owed to it;  (vii) any material change in any compensation arrangement or  agreement with any Business Employees or Business Contingent Workers;  (viii) any entry into any collective bargaining agreement or other  contract with any Union;  (ix) any implementation or announcement of any “mass layoffs”  (as such term defined in the federal Workers Adjustment and Retraining Notification Act, as  amended (the “WARN Act”)), reductions in force, furloughs, temporary layoffs, salary or wage  reductions, work schedule changes or other such actions that would trigger notice obligations  under the WARN Act;   (x)  (A) any licenses of Owned Intellectual Property other than  non-exclusive licenses granted in the ordinary course of business to service providers ancillary to  the provision of services by such service providers to any Company Group Member, or (B) any  sale, assignment, transfer, encumbrance on, conveyance or disposal of any Owned Intellectual  Property or any lapse, failure to renew or maintain, cancellation, abandonment or failure to  continue to prosecute or defend any Owned Intellectual Property;   (xi) except for the issuance of Purchased Units pursuant to this  Agreement, (A) any adjustment, split, combination, subdivision or reclassification of any equity  securities or warrants, options or other rights to acquire its equity securities, (B) any issuance, sale,  grant, delivery, disposal of or transfer (whether through the issuance, grant, exercise, conversion  or satisfaction of any options, warrants, commitments, subscriptions, rights to purchase,  convertible instruments or otherwise) of any equity securities of any Company Group Member, or  (C) amendment of the terms of any equity securities, warrants or options of the Company or any  Company Group Member;   (xii) except for the adoption of the A&R LLC Agreement, any  amendment of the Organizational Documents of any Company Group Member;   (xiii) (A) any entry into any new line of business or acquisition of  any material business, by merger or consolidation, acquisition of equity or assets or by any other  similar manner, in a single transaction or a series of related transactions or (B) any entry into any  joint venture, strategic alliance, sharing of profit agreement, partnership or similar arrangement;  (xiv) (A) except as required by changes in GAAP or by Applicable  Law, any material change of any of the accounting, methods, principles, practices or policies of  any Company Group Member or (B) any delay or postponement of the payment of a material  





 






  20      amount of accounts payable, or acceleration or delay of the collection of accounts receivable, other  than in the ordinary course of business;   (xv) any action or inaction that if taken or omitted to be taken  after the date hereof would have required the consent of the Purchaser under the A&R LLC  Agreement; or  (xvi) any resolution, commitment or agreement to take any of the  foregoing actions.  (b) No Company Group Member is a guarantor of any Indebtedness of  any other Person.  (c) Except as set forth in Subsection 2.8(c) of the Disclosure Schedule,  none of the Company Group Members or the Business has any material liability or obligation,  absolute or contingent (individually or in the aggregate) of the nature that would not be required  to be reflected in financial statements prepared in accordance with U.S. generally accepted  accounting principles (“GAAP”), except (i) liabilities and obligations reflected on the Company  Group’s financial statements, (ii) obligations and liabilities incurred after June 30, 2022 in the  ordinary course of business, and (iii) obligations under Contracts made in the ordinary course of  business.  2.9 Certain Transactions.  (a) Subsection 2.9 of the Disclosure Schedule, sets forth any and all  agreements, transactions or series of related transactions between (i) any Company Group  Member, on one hand, and any Parent Group Member, on the other hand; (ii) any Company Group  Member, on the one hand, and one of its officers, managers or members or any Parent Group  Member, on the other hand, and (iii) between any Company Group Member, on the one hand, and  any other Person in which one or more of its officers, managers or members or their respective  Affiliates or any Parent Group Member have a financial interest or are directors, partners,  members, stockholders, officers or employees, on the other hand (subclauses (i), (ii), and (iii),  collectively the “Affiliate Contracts”).  (b) No Parent Group Member (a) owns, uses or has the right use any  asset, properties, Permits or rights, tangible or intangible, used in the Business or by any Company  Group Member or Business Employee in connection with the Business, (b) has initiated or, to the  Company’s Knowledge, threatened to bring any Action against any Company Group Member, the  Business, or Business Employee, (c) provides goods or services to, or receives goods or services  from, any Company Group Member, the Business, or the Business Employee, (d) owes any  Indebtedness to, or is owed any Indebtedness by any Company Group Member,  the Business, or  any Business Employee or (e) has engaged in any non-ordinary course transaction with the any  Company Group Member, the Business or any Business Employee.  (c) Parent (or another Parent Group Member) makes available, and after  the Closing will make available to the Company Group all personnel (including the Business  Employees and Business Contingent Employees) that are necessary and sufficient to conduct the  Business as currently conducted and as contemplated to be conducted after the date hereof.  





 






  21      (d) Except as set forth in Subsection 2.9 of the Disclosure Schedule,  none of the Parent Group Members, Company Group Members, or the Business is indebted,  directly or indirectly, to any of its managers or officers or to their respective spouses or children  or to any Affiliate of any of the foregoing. Except as set forth in Subsection 2.9 of the Disclosure  Schedule, none of the Parent Group’s or Company Group’s managers or officers, or any members  of their immediate families, or any Affiliate of the foregoing are, directly or indirectly, indebted  to any Parent Group Member, Company Group Member or the Business or, to the Company’s  Knowledge, have any direct or indirect ownership interest in any firm, corporation or other entity  with which any Parent Group Member, Company Group Member or the Business is affiliated or  with which any Parent Group Member, Company Group Member or the Business has a business  relationship, or any firm, corporation or other entity which competes with any Parent Group  Member, Company Group Member or the Business.  2.10 Rights of Registration and Voting Rights. Except for the Registration Rights  Agreement, the Company is not under any obligation to register under the Securities Act any of its  currently outstanding securities or any securities issuable upon exercise or conversion of its  currently outstanding securities. Other than the LLC Agreement, the Company is not a party or  subject to any agreement or understanding, and, to the Company’s Knowledge, there is no  agreement or understanding between any members, persons and/or entities, which affects or relates  to the voting or giving of written consents with respect to any security or by a member or manager  of the Company.  2.11 Tax Returns and Payments.  (a) All income and other material Tax Returns required to be filed by or  with respect to each Company Group Member have been duly and timely filed, and all such Tax  Returns are true, correct and complete in all material respects. All Taxes owed by any Company  Group Member, whether or not shown on such Tax Return, have been timely paid.   (b) No written claim has ever been made by a Tax authority in any  jurisdiction where any Company Group Member does not file Tax Returns that any Company  Group Member (as applicable) is required to file Tax Returns in such jurisdiction that has not since  been resolved.   (c) No Company Group Member is, or has ever been, subject to Tax or  has any current or historical Tax filings, compliance, other obligations or Tax exposures in any  country other than the United States by virtue of having a permanent establishment or other place  of business in that country or by any other connection.  (d) There are no liens on the assets of any Company Group Member  relating or attributable to Taxes.   (e) Each Company Group Member has, in accordance with all Tax  withholding, employment, social security, and other similar provisions of Applicable Laws, timely  and properly withheld and paid all material Taxes required to be withheld and paid by it and  complied with all reporting requirements (including maintenance of required records with respect  thereto) with respect to such payments.   





 






  22      (f) There is no Tax deficiency outstanding, assessed or proposed in  writing against any Company Group Member that has not since been paid, settled or otherwise  resolved.   (g) There are no pending examinations or audits of any Tax Returns of  any Company Group Member by any applicable federal, state, local or foreign governmental  agency, and no such examination or audit is presently in progress.   (h) No Company Group Member “participates” or has “participated” in  any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).   (i) No Company Group Member (i) has any liability for any Tax of any  Person other than the Company or its Subsidiary as transferee or successor, or by contract (other  than agreements whose principal purpose is not related to tax), or (ii) has been a member of an  affiliated group filing consolidated income or franchise Tax Returns (except for any group of  which the Company is the common parent) for federal, state, local, county or foreign Tax purposes.   (j) No Company Group Member will be required to include any item  of income in, or exclude any item of deduction from, taxable income for any taxable period (or  portion thereof) ending after the Closing as a result of (i) any installment sale or open transaction  disposition made on or prior to the Closing, (ii) any prepaid amount received on or prior to the  Closing, (iii) any “closing agreement,” as described in Section 7121 of the Code (or any  corresponding provision of state, local or non-U.S. income tax law) entered into on or prior to the  Closing, (iv) any “gain recognition agreement” or “domestic use election” (or analogous concepts  under state, local or foreign income Tax Law) entered into on or prior to the Closing or (v) a change  in the method of accounting made or requested on or prior to the Closing;   (k) No Company Group Member has (i) waived any applicable statutes  of limitations with respect to Taxes for any year or (ii) agreed to any extension of the period for  assessment or collection of any Taxes or deficiencies against any Company Group Member, in  each case, which waiver or extension is currently in effect;   (l) Each Company Group Member has materially complied with all  escheat and unclaimed property laws.   (m) Each Company Group Member at all times since their respective  dates of formation been classified as disregarded entities for U.S. federal income tax purposes, and  no Company Group Member, any members of the Company, or any Taxing authority has taken a  position inconsistent with such treatment.  (n) No Company Group Member has (x) filed an election under  Treasury Regulations Section 301.9100-22 to apply the Partnership Audit Rules to Taxable years  that begin prior to December 31, 2017 or (y) elected to be subject at the partnership-level to an  income Tax imposed by a state, a political subdivision thereof, or the District of Columbia.     2.12 Permits; Property; Title and Sufficiency of Assets.   





 






  23      (a) Subsection 2.12(a) of the Disclosure Schedule sets forth a list of  franchises, permits, registrations, licenses, certificates, authorizations, approvals, exemptions,  variances and any similar authority required to be held by the Company Group Members for the  conduct of the Business, including such permits necessary for the Renewable Diesel Conversion  and the ownership, construction, installation, completion, operation and maintenance of the  Renewable Diesel Project and all other permits that are material to the Company Group or the  Business (“Permits”). The Company Group and the Business have all Permits necessary for the  conduct of the Business, the lack of which could reasonably be expected to be material to the  Company Group or the Business, taken as a whole. Each of the Permits is in full force and effect  and is not subject to any current, pending or to the Company’s Knowledge, threatened Action or  to any unsatisfied material condition. The Company Group and the Business are in compliance in  all material respects with such Permits, and neither the Company Group nor the Business is in  default in any material respect under any of such Permits.   (b) No Company Group Member owns fee title to any land. Subsection  2.12(b) of the Disclosure Schedule contains a complete and correct list, as of the date hereof, of  the leasehold and easement interest in Real Property, (i) that is held by any Company Group  Member or (ii) that is used in the operation the Business, together with the name of the lessor and  lessee and street address, city, state and country of such real property (each, a “Real Property  Lease”).  Each Company Group Member (as applicable) has valid leasehold or easement interests  in such Real Property Lease, free and clear of all liens other than Permitted Liens.  Each Real  Property Lease is in full force and effect and is enforceable in accordance with its terms  against such Company Group Member party thereto (as applicable) and, to the Company’s  Knowledge, each other party thereto.   Each Company Group Member is in compliance in all  material respects with all applicable terms and requirements of each Real Property Lease. No  Company Group Member has received from any other Person, any written notice regarding any  breach of, or default under, any Real Property Lease. To the Company’s Knowledge, no Company  Group Member has received any written or verbal notice or threat to terminate any Real Property  Lease. No condition or event or fact exists which, with notice, lapse of time or both, could  constitute a material default under any Real Property Lease, or otherwise give rise to any  third-party early termination rights under any Real Property Lease.  To the Company’s Knowledge,  there are no existing, pending or threatened condemnation proceedings or similar actions or  casualties relating to any material part of such Real Property Leases.  Company has made available  to Purchaser a true, complete and correct copy of each Real Property Lease, in each case as  amended, supplemented or otherwise modified through (and including) the date of this Agreement.  None of the Real Property Leases has been further amended or modified in any material respect or  terminated.  (c) The Company Group has all of the real property interests (i)  necessary for the Renewable Diesel Conversion and the ownership, construction, installation,  completion, operation and maintenance of the Renewable Diesel Project and (ii) to provide  adequate ingress and egress to and from the Site for any reasonable purpose in connection with the  ownership, construction, operation and maintenance of the Renewable Diesel Project.  (d) The Company Group has (or will have as and when necessary for  the construction and operation of the Renewable Diesel Project on commercially reasonable terms)  all assets and any material services, materials and rights necessary and sufficient for the  





 






  24      implementation and completion of the Renewable Diesel Conversion, the development,  acquisition, construction, ownership and operation and maintenance of the Renewable Diesel  Project and any buildings, infrastructure, real property rights, contracts or other assets or facilities  relating to the Renewable Diesel Project, the sourcing of Feedstock and the production and sale of  renewable diesel, renewable jet fuel and renewable naphtha.   (e) Each Company Group Member has good and valid title to, or a valid  leasehold interest in, all material tangible personal property and other material tangible assets used  in connection with the conduct of the Business as reflected in the Balance Sheet or acquired after  June 30, 2022, free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, other  than Permitted Liens, except for properties and assets sold or otherwise disposed of in the ordinary  course of business.   (f) The properties, assets and rights of the Company Group include all  properties, assets and rights used or held for use in connection with the conduct of the Business  and all other properties, assets and rights as are necessary and sufficient for the continued conduct  of Business after the Closing in substantially the same manner as conducted prior to the Closing.    2.13 Compliance with Laws.  The Company Group and the Business are and,  with respect to the Business, the Parent Group is, and each has been, in compliance in all material  respects with all Applicable Laws, and have not received any written or to the Company’s  Knowledge, oral notice alleging any noncompliance with respect to any Applicable Laws and, to  the Company’s Knowledge, no investigation by any Governmental Authority regarding a violation  of any such Applicable Laws is pending or threatened.    2.14 Corruption, Sanctions, Export Controls, Money Laundering.  (a) No Company Group Member; no directors, officers or employees of   any Company Group Member (in each case, in their capacity as directors, officers and employees);  and, in connection in any way with the Business, no Parent Group Member has violated, conspired  to violate or aided and abetted the violation of the U.S. Foreign Corrupt Practices Act, the Canadian  Corruption of Foreign Public Officials Act or any other applicable Anticorruption Laws.    (b) Neither any Company Group Member; any directors, officers or  employees of any Company Group Member; any Parent Group Member; nor any Parent Group  Member director or employee participating in any way in the Business is a Sanctioned Person, nor  is any Company Group Member; any directors or officers of any Company Group Member; nor  any Parent Group Member located, organized or resident in a Sanctioned Country.  The Company  Group and, in connection in any way with the Business, the Parent Group are currently in material  compliance with, and have not engaged in any conduct sanctionable under, any applicable  Sanctions, and there are not now any formal or informal proceedings, allegations, investigations,  or inquiries pending, expected or, to the Company’s Knowledge, threatened against any Company  Group Member; any manager, director, officer or employee of any Company Group Member (in  each case, in their capacity as such); or, in connection in any way with the Business, any Parent  Group Member concerning violations or potential violations of, or conduct sanctionable under,  any Sanctions.   





 






  25      (c) No Company Group Member, nor, in connection in any way with  the Business, any Parent Group Member has exported, reexported, or retransferred any article,  item, component, software, technology, service or technical data or taken any other act in material  violation of any Export Control Laws.  (d) No Company Group Member, nor, in connection in any way with  the Business, any Parent Group Member has made a material violation of any AML Laws.  (e) The Parent Group has and has implemented for itself, each  Company Group Member and the Business policies and controls reasonably designed to ensure  compliance with the Anticorruption Laws, Sanctions, Export Control Laws and AML Laws.  2.15 Environmental and Safety Laws.  Except as set forth on Subsection 2.15 of the Disclosure Schedule or as could not  reasonably be expected to have a Material Adverse Effect:   (a) the Company Group and the Parent Group are and have been in  compliance with all applicable Environmental Laws and neither the Company Group nor the  Parent Group have received any notice alleging noncompliance by the Company Group or the  Parent Group with respect to any Environmental Law or Environmental Permit related to the  Business;  (b) the Company Group and the Parent Group hold and comply with  and have held and have complied with all Permits necessary for the conduct of the Business,  including the Renewable Diesel Conversion, the Renewable Diesel Project, the sourcing of  Feedstock, the production and sale of renewable diesel, renewable jet fuel and renewable naphtha,  and engagement in ordinary course commercial activity relating thereto, under Environmental Law  (“Environmental Permits”), such Environmental Permits are in full force and effect, all  applications as necessary for approval or renewal of such Environmental Permits have been timely  filed, and such Environmental Permits contain no terms or conditions that will require material  changes or limitations on the activities and operations of the Company Group, including but not  limited to the operation of the Business, the Renewable Diesel Conversion and the Renewable  Diesel Project;  (c) there are no past or pending Environmental Claims or information  requests asserted against the Company Group or the Parent Group, including any consent decrees,  orders, settlements or other agreements relating to compliance with or liability under  Environmental Laws or related to exposure to Hazardous Materials;  (d) there has been no Release or presence of or exposure to Hazardous  Materials, whether at, on or off any real property currently or, to the Company’s Knowledge  formerly, owned or operated by the Company Group or the Parent Group that would be reasonably  expected to result in liability or a requirement for notification, investigation or remediation by the  Company Group or the Parent Group under Environmental Law;  





 






  26      (e) the Company Group has not entered into any contract or other  binding agreement pursuant to which they have retained or assumed or indemnified any Person for  any liabilities or obligations of any other Person arising under Environmental Law;   (f) neither the Company Group nor the Parent Group is a party to or  subject to the provisions of any order pursuant to Environmental Law affecting the Business;  (g) no liens pursuant to Environmental Laws have been or are imposed  on the property owned or operated by the Company Group or the Parent Group, and to the  Knowledge of the Company, no such liens have been threatened; and  (h) the Company Group and the Parent Group have made available  copies of all material environmental reports, studies, test results, correspondence and other similar  environmental documents in its possession regarding compliance by the Company Group with, or  potential liability of the Company and its Subsidiary under, Environmental Laws or Authorizations  required under Environmental Laws in respect of the Site.  2.16 Intellectual Property, Data Security and Privacy.  (a) The Company Group has the sole and exclusive ownership of or the  valid, sufficient and enforceable right to use all Intellectual Property that is used in or is necessary  to conduct the Business as now conducted or contemplated to be conducted (the “Company  Intellectual Property”).  The Company Group has taken commercially reasonable actions to  protect and maintain the Owned Intellectual Property.  No Owned Intellectual Property is subject  to any outstanding government order, and no Action is pending or, to the Company’s Knowledge,  threatened, which challenges the legality, scope, validity, enforceability, use or ownership of the  Owned Intellectual Property, and the Company Group and Parent Group have not received any  written notice or claim regarding the foregoing. No Parent Group Member uses or has a right to  use any Company Intellectual Property.  A Company Group Member solely and exclusively owns  all Owned Intellectual Property, free and clear of all Liens, other than Permitted Liens.  The  Company Group will have the same rights in the Company Intellectual Property after the sale of  the contemplated Units in this Agreement that the Company Group currently has in such Company  Intellectual Property.    (b) Subsection 2.16(b) of the Disclosure Schedule completely and  accurately identifies: (i) all registered or applied-for Owned Intellectual Property (specifying in  each case, as applicable, the title, status, registration numbers, jurisdiction and record owner  thereof); and (ii) all material unregistered Owned Intellectual Property.  Each item of the Owned  Intellectual Property that is listed on Subsection 2.16(b)(i) of the Disclosure Schedule is valid,  subsisting, in full force and effect and enforceable and all necessary registration, maintenance and  renewal fees due in connection with such Intellectual Property have been paid and all documents,  recordation and certifications necessary to record the applicable Company Group Member’s  ownership of such Intellectual Property have been filed with the relevant Governmental Authority.  (c) No Company Group Member or Parent Group Member has received  any written charge, complaint, demand, notice or claim, and there have been no Actions pending,  or to the Knowledge of the Company, threatened, alleging that a Company Group Member or the  





 






  27      Business has infringed, misappropriated or otherwise violated any Intellectual Property of any  third party (including in the form of “cease and desist” letters, indemnification claims or “invitation  to license” letters).  To the Company’s Knowledge, no third party is infringing upon,  misappropriating, or otherwise violating any Owned Intellectual Property, nor has a Company  Group Member sent any written communication to any third party alleging the foregoing or  challenging the validity or enforceability of any Intellectual Property of any third party.  The  Company Group, and the operation of the Business as currently conducted and as has been  conducted, have not infringed, misappropriated or otherwise violated, and do not infringe,  misappropriate or otherwise violate any Intellectual Property of any Person.  (d) The Company Group has taken commercially reasonable measures  to maintain and protect the confidentiality and secrecy of (a) all Trade Secrets in the Owned  Intellectual Property and (b) all Trade Secrets of third parties which were provided to a Company  Group Member under confidentiality obligations (including, in each case of the foregoing, any  information that would have been a Trade Secret but for any failure of the Company Group  Member to act in a manner consistent with this Section 2.16(d), including by causing all of its  current and former officers, directors, employees, contractors and consultants and any other person  with access to such Trade Secrets to execute binding confidentiality and nondisclosure agreements  which obligate such person to maintain such confidentiality, and there has been no breach of such  agreements by any party thereto or unauthorized disclosure, misappropriation or loss of any such  Trade Secrets.  (e) Each Person (including founders, current and former employees,  contractors, suppliers and consultants) who has contributed to the creation or development of any  Intellectual Property in the course of such Person’s employment or engagement by, or otherwise  for or on behalf of, a Company Group Member or the Business has assigned in writing to the  applicable Company Group Member all of such Person’s right, title and interest in, to and under  all such Intellectual Property (to the extent that such rights do not vest in such Company Group  Member by operation of law), and no such Person owns, holds or has any right, claim, title, interest  or option (including the right to further remuneration or consideration) directly or indirectly, with  respect to any such Intellectual Property or has made, or threatened to make, any assertion of any  of the foregoing.  (f) The IT Systems operate and perform in all material respects in  accordance with their documentation and functional specifications and otherwise as required for  the operation of the Business as currently conducted, and there has been no material failure or  other material substandard performance of the IT Systems which has caused any material  disruption to the operations of the Company Group.  The Company Group (and, in connection with  the Business, the Parent Group) has taken commercially reasonable (i) steps to provide for  commercially reasonable backup and recovery of data and disaster recovery plans and (ii) actions  (including implementing administrative, technical and physical safeguards) to protect the integrity  and security of its IT Systems and the information (including Trade Secrets) and data stored  thereon, including from unauthorized use or access by third parties and from viruses and  contaminants.  There have been no material unauthorized intrusions, misuse or breaches of the  security of any of the IT Systems (including ransomware attacks).  





 






  28      (g) The Company Group is in material compliance with all Applicable  Laws relating to Personal Information or to privacy, data security or data protection.  There have  been no complaints, claims, notices or warnings received by a Company Group Member, whether  from a Governmental Authority or an individual, or any proceeding, investigation or Action by  any Governmental Authority, in each case with respect to the use, processing or security of  Personal Information by or on behalf of a Company Group Member.    There has been no breach,  unauthorized access to or use of, misuse or theft of any Personal Information or Trade Secrets  processed by or on behalf of a Company Group Member and no disclosure of any data breach or  IT Systems or network security breach has been, or should have been, made by a Company Group  Member  (or, in connection with the Business, by any Parent Group Member) under any applicable  data protection law or to any Governmental Authority.   2.17 Employees and Employee Benefit Plans.  (a) The Company has made available to the Purchaser copies of all  material Employee Benefit Plans.   (b) Each Employee Benefit Plan has been established, operated, funded  and administered in all material respects in accordance with its terms and in compliance in all  material respects with Applicable Law and the requirements of the Code.  Other than routine claims  for benefits, there are no pending or, to Company’s Knowledge, threatened material Actions by or  on behalf of any Business Employee in any of the Employee Benefit Plans, or otherwise involving  any Employee Benefit Plan or the assets of any Employee Benefit Plan and to the Company’s  Knowledge, no Employee Benefit Plan is under audit or is the subject of an audit or other  investigation by a Governmental Authority.  (c) No Employee Benefit Plan is, and neither the Company nor any of  its ERISA Affiliates or Calumet GP has, or had within the past six (6) years, any current or  contingent liability with respect to (i) any Employee Benefit Plan that is subject to Section 412 of  the Code or Part 3, Subtitle B of Title I of ERISA or Title IV of ERISA, including a “multiemployer  plan” within the meaning of Section 3(37) of ERISA or a “multiple employer welfare  arrangement” within the meaning of Section 3(40) of ERISA, (ii) a “multiple employer plan” as  defined in Section 413(c) of the Code..  Neither the Company nor any ERISA Affiliate of the  Company has (i) incurred a “complete withdrawal” or a “partial withdrawal” (as such terms are  defined in Title IV of ERISA) from any multiemployer plan or (ii) received any notice of or  demand for withdrawal liability or partial withdrawal liability (as determined in accordance with  Title IV or ERISA).  (d) The Company has made available to Purchaser a complete and  accurate list of all of current Business Employees, which list is current as of July 14, 2022,  describing for each such Business Employee: (i) the position held; (ii) Union, if any; (iii) whether  classified as exempt or non-exempt for wage and hour purposes; (iv) date of hire; (v) business  location; (vi) whether paid on a salary, hourly or commission basis; (vii) regular hourly wage,  annual salary or commission rate, as applicable; (viii) bonus potential; and (ix) status (i.e., active  or inactive and if inactive, the type of leave and estimated duration). No Member of the Company  Group has employed any Person as an employee.   





 






  29      (e) The Company has made available to Purchaser a complete and  accurate list of all current Business Contingent Workers, including any Business Contingent  Worker who has performed services with respect to the operation of the Business during the twelve  (12) month period immediately preceding such date, and provides for each such Business  Contingent Worker: (i) the identity of the Person engaging such Business Contingent Worker  (whether Calumet GP, any Parent Group Member or Company Group Member) and (ii) such  individual's role in the Business. No Member of the Company Group has engaged any Person as a  Business Contingent Worker.  (f) There is no, and during the past three (3) years there has been no,  labor strike, picketing of any nature or lockout pending or, to Company’s Knowledge, threatened,  against or affecting the Business.  There is no, and during the past three (3) years there has been  no, material labor dispute, work stoppage, slowdown or any other material concerted interference  with normal operations, pending or, to Company’s Knowledge, threatened, against any Company  Group Member or Parent Group Member, or otherwise affecting the Business.  Subsection 2.17(f)  of the Disclosure Schedule sets forth (x) each Union and (y) all collective bargaining, Union or  similar agreements pursuant to which any Company Group Member or Calumet GP legally  recognizes a Union or utilizes labor referred or supplied by a Union (“Collective Bargaining  Agreements”) in effect in the past three (3) years, whether written or oral.  Except as set forth in  Subsection 2.17(f) of the Disclosure Schedule, (i) no Company Group Member or Parent Group  Member has any duty to bargain with, or otherwise deal with, any Union representing any Business  Employees or Business Contingent Workers with respect to the wages, hours or other terms and  conditions of employment of any Business Employee or Business Contingent Worker, (ii) to the  Company’s Knowledge, no Union claims or demands to represent any Business Employees or  Business Contingent Workers, there are no organizational campaigns in progress with respect to  any of the Business Employees or Business Contingent Workers and no question concerning  representation of such individuals exists, (iii) there are no work rules or practices agreed to with  any Union, that are binding on any Company Group Member or Parent Group Member with respect  to any of the operations of any Company Group Member, or with respect to any Business  Employee or Business Contingent Worker.    (g) No  Company Group Member or Parent Group Member has engaged  in any unfair labor practice in connection with any Business Employee. There is no unfair labor  practice charge or complaint pending, or to Company’s Knowledge, threatened against or  otherwise affecting any Company Group Member or Parent Group Member. No grievance brought  by a Union or pursuant to a collective bargaining agreement is pending or, to Company’s  Knowledge, threatened which, if adversely decided, could have a Material Adverse Effect.  (h) No Company Group Member or Parent Group Member: (i) is  delinquent in any obligation to make payment or contribution to any Person (including, for the  avoidance of doubt, to any third-party benefit fund) as required under the terms of any Collective  Bargaining Agreement; or (ii) has performed any work on a non-union basis within the scope of  work and territory covered by any Collective Bargaining Agreement that would constitute a  violation of such Collective Bargaining Agreement, taking into account any geographic scope,  work jurisdiction, travelers clauses, or similar clauses in such Collective Bargaining Agreement.   Except as set forth and specified in Subsection 2.17(h) of the Disclosure Schedule, no Company  





 






  30      Group Member or Parent Group Member has assigned its collective bargaining rights to any third  party or organization.  (i) Except as set forth in Subsection 2.17(i) of the Disclosure Schedule:  (i) each Company Group Member and Parent Group Member is in compliance, and has at all times  been in compliance, with all Applicable Laws relating to labor, and employment matters relating  to the Business Employees or Business Contingent Workers, including, without limitation,  Applicable Laws concerning human rights, pay equity, fair employment practices, work place  safety and health, workers’ compensation, immigration, authorization to work, unemployment  insurance, terms and conditions of employment, immigration and work authorization,  classification as exempt/non-exempt for purposes of the Fair Labor Standards Act and analogous  laws, prevailing wage, the McNamara-O’Hara Service Contract Act (the “SCA”), living wage or  similar laws, classification as independent contractors or employees, data privacy, drug screening,  background checks and wages and hours; (ii) no Parent Group Member or Company Group  Member is delinquent in any payments to any Business Employee or Business Contingent Worker  for any wages, salaries, commissions, bonuses, fees or other compensation due with respect to any  services performed for it to the date hereof or amounts required to be reimbursed to such Business  Employees or Business Contingent Workers; (iii) there are no, and within the last three (3) years  there have been no Actions pending or threatened, or formal or informal complaints made, against  any Company Group Member or Parent Group Member by any current or former Business  Employee or Business Contingent Worker with respect to employment or labor matters; (iv) none  of the employment policies or practices of any Company Group Member or Parent Group Member  is currently being audited or investigated, or to Company’s Knowledge, subject to imminent audit  or investigation by any Governmental Authority and no Company Group Member or Parent Group  Member is, or within the last three (3) years has been, subject to any order, decree, injunction or  judgment by any Governmental Authority or private settlement contract in respect of any labor or  employment matters.   (j) No Parent Group Member or Company Group Member is liable for  any payment to any trust or other fund governed by or maintained by or on behalf of any  Governmental Authority with respect to unemployment compensation benefits, social security or  other benefits or obligations for current or former Business Employees.    (k) To Company’s Knowledge, within the last five (5) years: (i) no  Business Employee or Business Contingent Worker has made any allegation of sexual harassment  against any Company Group Member or Parent Group Member; and (ii) no Company Group  Member nor Parent Group Member has entered into any settlement agreements related to  allegations of sexual harassment made by a Business Employee or Business Contingent Worker.  (l) All Company Group Members and Parent Group Members are in  compliance in all material respects with all Applicable Laws relating to the employment of labor  (including discrimination, harassment, fair employment practices, terms and conditions of  employment, authorization to work, plant-closing laws, employee and independent contractor  classification, overtime, and wages and hours), and there are no material Actions pending or, to  Company’s Knowledge, threatened against any Company Group Member or Parent Group  Member brought by or on behalf of any applicant for employment, any current or former employee,  independent contractor or other service provider to the Company or any of its subsidiaries, relating  





 






  31      to any such employment laws, or alleging breach of any express or implied contract of  employment, wrongful or unfair termination of employment or any other discriminatory, wrongful  or tortious conduct in connection with the employment relationship.  (m) Except as otherwise contemplated by this Agreement, with respect  to any current or former Business Employee or officer, independent contractor or director of any  Company Group Member or Parent Group Member with respect to the Business, neither the  execution nor delivery of this Agreement or the consummation of the transactions contemplated  hereby will (either alone or in combination with another event) (i) result in or cause any  compensatory payment or benefit, to become due or payable, (ii) increase the compensation or  benefits payable or provided under any Employee Benefit Plan, (iii) result in any acceleration of  the time of payment or vesting of any such benefits, or (iv) increase or accelerate employer  contributions or trigger an obligation to fund or otherwise set aside assets to secure any obligations  under any Employee Benefit Plan.  (n) The Company and Parent Group Members are authorized to and  capable of complying with their obligations under Section 4.4.  2.18 Insurance.  Subsection 2.18 of the Disclosure Schedules sets forth a correct  and complete list, as of the date hereof, of all insurance policies and coverage (including self- insurance programs) maintained by the Company Group or the Parent Group or relating to the   property and assets of the Business or the Business Employees and Business Contingent  Employees by which any Company Group Member or Parent Group Member is insured, including,  for each, the amount and type of coverage, carrier, term and annual premiums.  Subsection 2.18 of  the Disclosure Schedules also sets forth a correct and complete list, as of the date hereof, of all  claims made in connection with the properties, assets or the Business under any such insurance  policy or coverage.  Each such policy or coverage is in full force and effect, all premiums due and  payable thereunder have been paid in full, and no party is in default with respect to the obligations  under any such policies or has otherwise failed to comply in all respects with the terms and  conditions of such policies. The scope and coverage and coverage of such policies is consistent  with the customary practice for the industry. No Company Group Member, Parent Group Member  or the Business has received any notice of cancellation or non-renewal with respect to any such  policy or coverage, and no insurer under any such policy or coverage has questioned, disputed or  denied.   2.19 Material Contracts.  (a) Subsection 2.19(a) of the Disclosure Schedules sets forth a correct and  complete list of the following Contracts to which the Company and its Subsidiary are bound or  that are required for, related to or are used in the operation of the Business (collectively, the  “Material Contracts”):  (i) any Contract with any Material Customer or Material Supplier;   (ii) any Contract that involves or is reasonably expected to involve a right to  receive or any obligation to pay more than $2,000,000 in any calendar year;  





 






  32      (iii) any Contract that requires any Person to purchase its total requirements of  any product or service from any other Person or contains “take or pay” or similar provisions;  (iv) any Contract that contains a “most-favored-nation” clause or similar term  that provides preferential pricing or treatment;  (v) any Contract that limits or purports to limit or could have the effect of  limiting the ability of the Company Group, its Affiliates or the Business to (A) compete in any line  of business, or (B) solicit any individuals for employment;  (vi) any Contract requiring or otherwise relating to any future capital  expenditures by the Company Group or the Business;  (vii) any Contract relating to the creation, incurrence, assumption or guarantee  of any Indebtedness;  (viii) any Contract that provides for the indemnification or assumption of any  Liability of any Person by any Company Group Member or the Business;  (ix) any Contract that relates to the acquisition or disposition of any business, a  material amount of stock or assets of any Person or any real property (whether by merger, sale of  stock, sale of assets or otherwise);  (x) any Contract that provides for the establishment or operation of any joint  venture, partnership, joint development, strategic alliance or similar arrangement;     (xi) any broker, distributor, dealer, manufacturer’s representative, franchise,  agency, sales promotion, market research, marketing consulting or advertising Contract;  (xii) any Contract to which a Governmental Authority is a party;  (xiii) any Contract involving any resolution or settlement of any actual or  threatened Action with a value in excess of $1,000,000 or that provides for any injunctive or other  non-monetary relief;  (xiv) any hedging, swap, derivative or similar Contract;  (xv)  any (A) Affiliate Contract or (B) Shared Contract;   (xvi) any Real Property Lease;  (xvii) any Contract that provides for (A) the sourcing of Feedstock or (B)  production and selling renewable diesel, renewable jet fuel and renewable naphtha;  (xviii) any Contract that is necessary for the Renewable Diesel Conversion and the  Renewable Diesel Project;  (xix) any Contract under which any right in Owned Intellectual Property has been  granted to a third party or to a Parent Group Member, including any license, covenant not to sue  





 






  33      or non-assert clause (but other than non-exclusive licenses granted in the ordinary course of  business to service providers ancillary to the provision of services by such service providers to a  Company Group Member;   (xx) any Contract under which any right in Intellectual Property has been granted  to a Company Group Member or, to the extent such Intellectual Property is used in the Business,  to a Parent Group Member, including any license, covenant not to sue or non-assert clause (but  other than licenses to generally commercially available, non-customized, off-the-shelf software in  object code form with aggregate annual fees of less than $50,000);  (xxi) any Contract relating to the employment or service of any Business  Employee or Business Contingent Employee;  (xxii) any Contract that requires a consent in connection with, or that could  reasonably be expected to prevent, delay or impair the consummation of the transactions  contemplated by this Agreement;   (xxiii) any Prior Transaction Document; and  (xxiv) any other Contract that is material to the Business or the Company Group  that is not required to be disclosed pursuant to any of the foregoing clauses of this Subsection  2.19(a).  (b) Each Material Contract is in full force and effect and is enforceable in  accordance with its terms against any Company Group Member or Parent Group Member party  thereto (as applicable) and, to the Company’s Knowledge, each other party thereto.  Each  Company Group Member or Parent Group Member (as applicable) in compliance in all material  respects with all applicable terms and requirements of each Material Contract. No Company Group  Member or Parent Group Member has received from any other Person, any written notice  regarding any breach of, or default under, any Material Contract.  To the Company’s Knowledge,  no Company Group Member or Parent Group Member has received any written or verbal notice  or threat to terminate any Material Contract. No condition or event or fact exists which, with notice,  lapse of time or both, could constitute a material default under any Material Contract on the part  of the Company, or otherwise give rise to any third-party early termination rights under any  Material Contract. Each Company Group Member has the right to use and the right to enforce all  relevant provisions of each Material Contract to the extent relevant to the Business.   (c) Company has delivered to the Purchaser correct and complete copies of  each of the Material Contract and any amendments thereto that are currently in effect, in each case  as amended, supplemented or otherwise modified through (and including) the date of this  Agreement. None of the Material Contracts has been further amended or modified in any material  respect or terminated.  2.20 Material Customers; Material Suppliers. Subsection 2.20 of the Disclosure  Schedule lists the names of (a) the top ten (10) customers (including distributors) of the Business  by revenue (“Material Customers”) and (b) the top ten (10) suppliers of products or services to  the Business by amounts paid or payable (“Material Suppliers”), in each case measured by U.S.  dollar value for the twelve (12) months ended June 30, 2022. As of the date hereof, none of the  





 






  34      customers or suppliers listed in Subsection 2.20 of the Disclosure Schedule has notified the  Company or its Subsidiary in writing or, to the Company’s Knowledge, orally that such customer  or supplier has ceased or intends to cease to, as applicable, use, resell or distribute the products or  services of, or supply products or services to, the Business or that it intends to cancel, terminate or  otherwise adversely modify in any material respect its relationship with the Company or its  Subsidiary (as applicable), in each case, except as would not be, individually or in the aggregate,  material to the Company Group or the Business, taken as a whole.    2.21 Financial Statements.   (a) The consolidated balance sheet of the Company Group dated as of March  31, 2022, and the consolidated balance sheet of the Company Group dated as of June 30, 2022 (the  “Balance Sheet”), and the related summary of capital expenditures of the Company Group  (“Capex Statements” and together with the Balance Sheet, the “Financial Statements”), attached  hereto and incorporated herein as Subsection 2.21 of the Disclosure Schedule, are prepared in  accordance with GAAP on a consistent basis throughout the periods presented, are true and correct  in all material respects, and present fairly and accurately in all material respects the financial  condition, the results of operation and cash flows of the Company Group and the Business and  their operations as of the date of each statement and for such periods. The Balance Sheet discloses  all material liabilities (contingent or otherwise) of the Company Group and the Business, as of the  dates thereof to the extent required by GAAP.  (b) No manager, director or officer of the Company Group or the Business or,  to the Company’s Knowledge, non-officer employee, external auditor, external accountant or  similar authorized representative of the Company Group or the Business, has received or otherwise  been made aware of any material complaint, allegation or claim, written or (to the knowledge of  the relevant Person) oral, regarding the accounting or auditing practices, procedures,  methodologies or methods of the Company Group or the Business or their respective internal  accounting controls, including any material complaint, allegation or claim that any the Company  Group or the Business has engaged in questionable accounting or auditing practices.  2.22 No Brokers. No Company Group Member is or will be obligated for any  finder’s fee or commission in connection with the transactions contemplated by this Agreement.  2.23 True-Sale; Non-Consolidation. From and after November 18, 2021, each  Company Group Member and each Parent Group Member has at all times treated and reported the  sale of the Acquired Assets pursuant to the Asset Purchase Agreement as an absolute conveyance  of the Acquired Assets for all purposes (including, without limitation, tax, financial or statutory  accounting purposes) and on all relevant books, records, tax returns, financial statements and other  documents.  3. Representations and Warranties of the Purchaser. The Purchaser hereby represents  and warrants to the Company that:  3.1 Authorization. The Purchaser has full limited partnership power,  authority  and legal right to enter into, deliver and perform its respective obligations under each of the  Transaction Documents to which it is a party and to consummate each of the transactions  





 






  35      contemplated herein and therein, and has taken all necessary corporate, limited partnership or  limited liability company action (as applicable) to authorize the execution, delivery and  performance by it of each of the Transaction Documents to which it is a party. Each of the  Transaction Documents to which the Purchaser is a party has been duly executed and delivered by  the Purchaser and is in full force and effect and constitutes a legal, valid and binding obligation of  the Purchaser, enforceable against the Purchaser in accordance with its respective terms, except as  enforcement may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent  conveyance or other similar laws affecting creditors rights generally, (b) by general principles of  equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)  or (c) implied covenants of good faith and fair dealing.  3.2 No Conflicts; Consent. The execution, delivery and performance of the  Transaction Documents to which the Purchaser is a party and all other documents and instruments  to be executed and delivered hereunder by the Purchaser, as well as the consummation of the  transactions contemplated herein and therein, do not and will not: (a) conflict with or result in a  violation or breach of any provision of the Organizational Documents of the Purchaser, (b) conflict  with or result in a breach of, or constitute a default under, require a consent or waiver under, or  result in the acceleration of any material agreements to which the Purchaser is a party or by which  it is bound or to which property or assets are subject, (c) conflict with or result in a breach of,  violation of, or constitute a default under, any Applicable Law, or (d) require any consent or  approval of any Person, except in the cases of clauses (b), (c) and (d), where the violation, breach,  conflict, default, acceleration or failure to give notice would not have a material adverse effect on  such Purchaser’s ability to consummate the transactions contemplated hereby.  Assuming the  accuracy of the representations made by the Company in Section 2 of this Agreement, no consent,  authorization of, or registration, qualification, designation, declaration or filing with or notice to,  or any other action of, with or by any applicable Governmental Authority is required on the part  of the Purchaser in connection with the consummation of the transactions contemplated by this  Agreement.   3.3 Purchased Entirely for Own Account. The Purchaser is acquiring the  Purchased Units for its own account for investment only and not with a view to (or for) resale in  connection with any public sale or distribution thereof.  The Purchaser acknowledges that the  Purchased Units are not registered under the Securities Act or any state securities laws, and that  the Purchased Units may not be transferred or sold except pursuant to the registration provisions  of the Securities Act or pursuant to an applicable exemption therefrom and subject to state  securities laws and regulations, as applicable.   3.4 Legal Proceedings. There is no pending or, to the Purchaser’s knowledge,  threatened Action, by or against the Purchaser (a) seeking to restrain or prohibit the consummation  of the transactions contemplated by the Transaction Documents or (b) purporting to affect the  legality, validity or enforceability of any of the Transaction Documents.  3.5 No Brokers. Except for any fees or commissions that will be borne solely  by the Purchaser, the Purchaser is not and will not be obligated for any finder’s fee or commission  in connection with the transactions contemplated by this Agreement.   4. Covenants.  





 






  36      4.1 Shared Contracts With respect to any Shared Contract, following  the Closing, at the request of the Purchaser or any Company Group Member (in the case of a  Shared Contract to which any Parent Group Member is a party) or any Parent Group Member (in  the case of a Shared Contract to which any Company Group Member is party), the Parties will  use commercially reasonable efforts to (i) assist the other party in negotiating and entering into  arrangements for the benefit of the Business or the Retained Business, as the case may be, with  the counterparty to such Shared Contract that replicates as nearly as reasonably practicable the  rights and benefits of the portion of such Shared Contract related to the Business or the Retained  Business, as the case may be, including the split and novation of such Shared Contract, and (ii) to  the extent permitted by Applicable Law or order and by the terms of such Shared Contract, enter  into arrangements with the other party to provide such party, as nearly as reasonably practicable  with rights and benefits applicable to the Business or the Retained Business under such Shared  Contract (whether by entering into a separate agreement with the other party with respect to such  Shared Contract or otherwise). In the case of any Shared Contract to which both a Company  Group Member and a Parent Group Member is a party that relates primarily to the Business and  is identified on Subsection 4.1 of the Disclosure Schedule, the relevant Parent Group Member  will hold such Shared Contract in trust for each relevant Company Group Member and shall pass  through the benefits of each such Company Group Member and the relevant Company Group  Member shall bear all the costs, liabilities and obligations with respect to such Contract from and  after the Closing and shall pay, reimburse, indemnify and hold harmless such Parent Group  Member for any and all Damages incurred or sustained by, or imposed upon or any Parent Group  Member with respect to such Contract arising from and after the Closing (unless such Damage is  directly attributable to actions taken by a Parent Group Member or to the extent related to the  Retained Business, whether before or after the Closing). In the case of any Shared Contract to  which both a Company Group Member and a Parent Group Member is a party that relates  primarily to the Retained Business and is identified on Subsection 4.1 of the Disclosure  Schedule, the relevant Company Group Member will hold such Shared Contract in trust for each  relevant Parent Group Member and shall pass through the benefits of each such Parent Group  Member and the relevant Parent Group Member shall bear all the costs, liabilities and obligations  with respect to such Contract from and after the Closing and shall pay, reimburse, indemnify and  hold harmless the relevant Company Group Member for any and all Damages incurred or  sustained by, or imposed upon such Company Group Member with respect to such Contract  arising from and after the Closing (unless such Damages are directly attributable to actions taken  by Company Group Member or to the extent related to the Business, whether before or after the  Closing). For the avoidance of doubt, this Section 4.1 shall not apply with respect to any  Affiliate Contract.    4.2 Wrong Pockets.  If and to the extent that it is determined after the  Closing (a) that legal title to or beneficial or other interest in all or part of any assets or rights that  are exclusively (except in de minimis respects) related to the Business is owned by any Parent  Group Member, or (b) that legal title to or beneficial or other interest in all or part of any assets  that are exclusively (except in de minimis respects) related to the Retained Business is owned by  any Company Group Member, in each case, each of the parties shall, use commercially reasonable  efforts to cooperate in good faith (i) to execute all such agreements, deeds or other documents as  may be necessary for the purposes of transferring such assets (or part thereof) or the relevant  interests in them to the other applicable party, (ii) to complete all such further acts or things as the  





 






  37      other party may reasonably direct in order to transfer such assets or the relevant interests in them  to the other party, and (iii) to hold the relevant asset (or part thereof), or relevant interest in the  asset, in trust for the other party (to the extent permitted by Applicable Law) until such time as the  transfer is validly effected to vest the asset (or part thereof) or relevant interest in the asset to the  other party.   4.3 Intellectual Property Assignment.  Prior to the Closing, the Company and  the Parent shall cause Calumet Refining, LLC and other relevant Parent Group Members to, assign  to a Company Group Member, pursuant to an assignment agreement reasonably acceptable to the  Purchaser, all of their right, title and interest in the Patent Application and all other Intellectual  Property developed by any Person (including founders, employees, contractors, suppliers and  consultants) for or on behalf of the Company Group, including any Intellectual Property developed  by the Persons identified on Section 4.3 of the Disclosure Schedules. As soon as practicable after  the Closing (a) the Company shall enter into a written agreement reasonably acceptable to the  Purchaser with each Person identified on Section 4.3 of the Disclosure Schedule and any other  Person (including founders, employees, contractors, suppliers and consultants) who contributes or  is intended to contribute to the creation or development of any Intellectual Property in the course  of such Person’s employment or engagement by, or otherwise for or on behalf of, a Company  Group Member, that assigns all of such Person’s right, title and interest in, to and under all such  Intellectual Property to the applicable Company Group Member, and (b) the Company will enter  into a written agreement reasonably acceptable to the Purchaser with any employee who has not  signed an employment agreement containing reasonable confidentiality obligations and who had,  or is likely to have, access to Trade Secrets included in the Owned Intellectual Property or Trade  Secrets of third parties which are provided to a Company Group Member under confidentiality  obligations, that obligates such employee to maintain confidentiality of such Trade Secrets.    4.4 Labor and Services.   From and after the Closing, (a) Parent shall, and shall  cause the Parent Group Members to provide the Company Group Members all such services as the  Company Group Members require in order to complete the Renewable Diesel Conversion and to  operate the Business following the Renewable Diesel Conversion, in each case in accordance with  the terms of the Master Services Agreement, dated as of November 18, 2021 (as amended on the  date hereof and as it may be further amended and restated from time to time in accordance with  the provisions thereof, the “MSA”), (b) Calumet GP shall provide all personnel necessary to  provide the services in accordance with the MSA, (c) Parent shall, and shall cause the Parent Group  Members to comply with the MSA and the A&R LLC Agreement and (d) from time to time, upon  the request of the Company, Calumet GP and Parent shall, and shall cause the applicable Parent  Group Members to take all action necessary to cause the employment of each then-current  Business Employee identified by the Company (each, a “Transferred Business Employee”) to  transfer from the applicable Parent Group Member to a Company Group Member, including (i)  that Calumet GP and Parent shall not, and shall cause the Parent Group Members not to solicit or  hire any Business Employee for any role with any Parent Group Member (and shall terminate the  employment of any Transferred Business Employee who does not accept a position with a  Company Group Member); (ii) if the employment of any Transferred Business Employee is  governed by a Collective Bargaining Agreement, Calumet GP and Parent shall, and shall cause the  Parent Group Members to cooperate in good faith to effect or facilitate the transfer of Transferred  Business Employees into their own collective bargaining unit, through the exercise of existing  legal or contractual rights, including rights under a collective bargaining agreement or, if required,  





 






  38      through the amendment or modification of a Collective Bargaining Agreement, and (iii) provided,  further that, from and after Closing, Calumet GP and Parent shall, and shall cause the Parent Group  Members to refrain from taking any action that would restrict in any way the right or ability of the  Company, Calumet GP and Parent or the Parent Group Members to take the actions described in  this Section 4.4.     4.5 Equity Compensation Plan. As soon as practicable following the Closing,  the Company shall adopt and implement in accordance with and subject to the A&R LLC  Agreement (a) a plan that provides for the issuance of Equity Securities of the Company to eligible  employees, directors, consultants or other service providers to the Company or any of its  Subsidiaries (collectively, “Management”) and (b) a bonus plan that provides Management with  the ability to receive cash or Equity Securities subject to the performance of the Company Group.   4.6 Company Management.  As soon as practicable, the Company and Parent  shall assign employees of Calumet GP to serve as full time chief executive officer, chief financial  officer and other c-suite executives of the Company Group (such employees collectively, the  “Montana Executives”) and, on a timeline mutually agreeable to the parties, shall ultimately  transfer the employment of the Montana Executives from Calumet GP to the Company Group.   4.7 Insurance.  For so long as Parent or any of its Permitted Ttransferees (as  defined in the A&R LLC Agreement), directly or indirectly, owns the majority of the Equity  Securities in the Company, the Company Group and the Parent Group shall maintain the insurance  policies set forth on Schedule 4.7 of the Disclosure Schedules relating to the property, assets and  /or potential liability of the Business or the Business Employees and Business Contingent  Employees. For so long as Parent or any of its Permitted Transferees, directly or indirectly, owns  the majority of the Equity Securities in the Company, the Company Group and the Parent Group  shall (a) renew such insurance policies prior to their expiration, (b) ensure that there no material  changes to the terms and conditions of any existing policy (including self-insured retentions and  any sublimits) and (c) maintain appropriate coverage for property, assets and / or potential liability  of the Business or the Business Employees and Business Contingent Employees such policies,  providing coverage that is no less than the coverage provided under the Company Group’s and the  Parent Group’s existing corresponding policy of insurance as described on Schedule 4.7.  The costs  of obtaining such policies shall be borne by the Company Group and the Parent Group respectively.   Following the Closing, the Company Group and the Parent Group shall take such steps as are  reasonably requested by Purchaser to make and pursue any claims under any insurance policies  contemplated by this paragraph as are reasonably required (including giving notice of the claim to  the insurer at the request of the Purchaser).  4.8 RFS and LCFS Registrations.  Following the Closing, the Company shall  and shall cause its Subsidiary to (a) obtain all registrations and approvals necessary to generate  credits under the federal Renewable Fuel Standard, the California Low Carbon Fuel Standard  (LCFS), the Oregon Clean Fuel Program, and the British Columbia LCFS, and any other similar  programs where the Company’s renewable fuels may be reasonably sold and (b) procure that  renewable diesel and renewable jet fuel produced from the Renewable Diesel Project will satisfy  the regulatory criteria to generate credits under the federal Renewable Fuel Standard, the  California Low Carbon Fuel Standard (LCFS), the Oregon Clean Fuel Program, and the British  Columbia LCFS, all as in effect on the Closing Date. Upon the reasonable request of the Purchaser,  





 






  39      the Company shall keep the Purchaser apprised of the details of any such registrations and  approvals, and Purchaser shall have the right to review any such documentation or diligence  materials relating to such registrations and approvals.  4.9 Renewable Diesel Conversion Completion.  The Company shall have  completed the Renewable Diesel Conversion Completion by June 30, 2023.   5. Conditions of the Purchaser’s Obligations at Closing. The obligations of the  Purchaser to purchase Purchased Units at the Closing are subject to the fulfillment, on or before  the Closing, of each of the following conditions, unless otherwise waived:  5.1 Representations and Warranties. The representations and warranties of the  Parent and the Company contained in Section 2 shall be true and correct in all respects as of the  Closing, as qualified by the related portions of the Disclosure Schedules.  5.2 Performance. The Parent and the Company shall have performed and  complied in all material respects with all covenants, agreements, obligations and conditions  contained in this Agreement that are required to be performed or complied with  on or before the  Closing.  5.3 Qualifications. All authorizations, approvals or permits, if any, of any  governmental authority or regulatory body of the United States or of any state that are required in  connection with the lawful issuance and sale of the Purchased Units pursuant to this Agreement  shall be obtained and effective as of the Closing.  5.4 A&R LLC Agreement. The Parent and the Company shall have adopted the  A&R LLC Agreement of the Company simultaneously with the Closing, which upon execution by  the Purchaser and the other members party thereto shall be in full force and effect thereafter, except  as the same may be amended from time to time in accordance with the terms thereof.   5.5 Proceedings and Documents. All corporate and other proceedings in  connection with the transactions contemplated at the Closing and all documents incident thereto  shall be reasonably satisfactory in form and substance to the Purchaser, and the Purchaser (or their  respective counsel) shall have received all such counterpart original and certified or other copies  of such documents as reasonably requested. Such documents may include good standing  certificates.  5.6 No Prohibition. No Governmental Authority shall have enacted, issued,  promulgated, enforced or entered any law or order that is in effect and would (i) make the Closing   illegal or (ii) otherwise prohibit or enjoin consummation of the transactions contemplated by this  Agreement or the A&R LLC Agreement.   5.7 Oaktree Prepayment. All outstanding Indebtedness under the Oaktree  Agreement shall have been satisfied in full prior to or concurrent with the Closing without  triggering a Loan Conversion (as defined therein), and the Company shall have delivered to the  Purchaser a copy of the Oaktree Payoff Letter, duly executed by the parties thereto.   





 






  40      5.8 Stonebriar Financing Documents. At the Closing, the Company shall have  delivered to the Purchaser copies of the Stonebriar Financing Documents, duly executed by the  parties thereto.   6. Conditions of the Company’s Obligations at Closing. The obligations of the  Company to sell to the Purchaser the Purchased Units at the Closing are subject to the fulfillment,  on or before the Closing, of each of the following conditions, unless otherwise waived:  6.1 Representations and Warranties. The representations and warranties of  Purchaser contained in Section 3 shall be true and correct in all respects as of the Closing.  6.2 Performance. The Purchaser shall have performed and complied in all  material respects with all covenants, agreements, obligations and conditions contained in this  Agreement that are required to be performed or complied with by it on or before the Closing.  6.3 Qualifications. All authorizations, approvals or permits, if any, of any  governmental authority or regulatory body of the United States or of any state that are required in  connection with the lawful issuance and sale of the Purchased Units pursuant to this Agreement  shall be obtained and effective as of the Closing.  6.4 A&R LLC Agreement. Simultaneously with the Closing, the Purchaser  shall have executed, delivered and thereby become a party to the LLC Agreement.  6.5 No Prohibition. No Governmental Authority shall have enacted, issued,  promulgated, enforced or entered any law or order that is in effect and would (i) make the Closing  illegal or (ii) otherwise prohibit or enjoin consummation of the transactions contemplated by this  Agreement or the A&R LLC Agreement.  7. Indemnification.  7.1 Survival. The representations and warranties of the Company, the Parent  and the Purchaser contained in or made pursuant to this Agreement shall survive the execution and  delivery of this Agreement and the Closing for a period of eighteen (18) months, except that (i)  the representations and warranties of the Company set forth in Subsection 2.11 (Tax Returns and  Payments) shall survive 60 days following the expiration of the statute of limitations on assessment  of the relevant Tax, (ii) the representations and warranties of the Company and Parent set forth in  Subsections 2.1 (Organization; Good Standing; and Qualification), 2.2 (Corporate Power;  Authorization), 2.4(a)-(b) (Capitalization), and 2.6 (Valid Issuance of Units) and 2.22 (No Broker)  (collectively, the “Company Fundamental Representations”) shall survive indefinitely and (iii)  the representations and warranties of the Purchaser set forth in Subsections 3.1 (Authorization)  and 3.5 (No Broker), (collectively, the “Purchaser Fundamental Representations”) shall  survive indefinitely. Each and every covenant contained in this Agreement shall survive until fully  performed. A claim for indemnification may be brought under Section 7.2(a) during the period of  survival of the applicable representation or warranty as set forth in this Subsection 7.1 (and for a  period of 10 Business Days thereafter) and under any other provision of Subsection 7.2(a) at any  time after the date hereof.    7.2 Indemnification.   





 






  41      (a) Subject to the other provisions of this Section 7, from and after  Closing, the Parent shall (and solely in the event that the Parent is unable to or prohibited from  indemnifying the Company shall) indemnify Purchaser and any Affiliate of Purchaser (or, at the  election of Purchaser (which election may be made in whole or in part), the Company) (all of such  Persons, collectively, the “Indemnified Parties”) in respect of, and hold each of them harmless  from and against, any and all Damages suffered, incurred or sustained by any of them resulting  from, arising out of or relating to (i) any breach of any representations and warranties made by the  Parent, or the Company in Section 2,  (ii) any nonfulfillment of or failure to perform any covenant  on the part of Parent and the Company contained in this Agreement, (iii) the ownership or  operation of the Business prior to Closing (including any matters arising under Environmental Law  or relating to the presence or Release of or exposure to Hazardous Materials), (iv) the ownership  or operation of the Retained Business (including any matters arising under Environmental Law or  relating to the presence or Release of or exposure to Hazardous Materials), (v) the affiliation of  the Company Group with the Parent Group, (vi) any Liabilities or costs with respect to: (A) any  Persons who are employees or service providers to the Parent Group or the Company Group, or  (B) Employee Benefit Plans of the Parent Group or the Company Group, whether direct or indirect,  known or unknown, absolute or contingent, matured or unmatured, including but not limited to  any contribution or funding obligation with regard to the Penreco Pension Plan and/or the  Retirement Plan for Montana Refining Employees of Calumet GP, LLC, in each of (A) and (B)  other than any Liabilities expressly assumed by the Company Group pursuant to the terms of the  MSA to be negotiated pursuant to Section 4.4, (vii) any Liabilities or costs with respect to any  Persons who are employees or service providers to any member of the Parent Group or the  Company Group in respect of services that do not relate to the Business, whether direct or indirect,  known or unknown, absolute or contingent, matured or unmatured, and currently existing or  hereinafter arising, and (viii) any Liabilities or cost resulting from (x) the Company Group’s failure  to obtain or maintain any Permits or Environmental Permits that are required for or relate to the  Business or (y) the Company Group’s or the Parent Group’s failure to comply with Applicable  Laws as they relate to the Business.  (b) At the election of Purchaser, in lieu of indemnifying the Purchaser  for its Damages arising under Subclause 7.2(a)(ii)-(viii), Purchaser may require Parent to  indemnify the Company for the Company’s Damages.   7.3 Limitations on Indemnification.  (a) The Parent and the Company shall not be liable for, and no amounts  of indemnification shall be payable in the case of, any claim by an Indemnified Party for breaches  by the Company of the representations and warranties set forth in Section 2, other than the  Company Fundamental Representations and Subsection 2.11 (Tax Returns and Payments) and  except in the case of Fraud, unless and until the Indemnified Parties have suffered, incurred or  sustained otherwise indemnifiable Damages hereunder (after giving effect to any Indemnity  Reduction Amounts) of an amount equal to $2,500,000 in the aggregate (the “Basket”), in which  event the Indemnified Parties shall be entitled to claim indemnity for the full amount of the  Damages, from the first dollar, including any such Losses that comprised part of the Basket.  (b) Without limiting the generality of the foregoing, the Parent and the  Company shall not be liable, with respect to any individual claim or a series of related claims for  





 






  42      breaches by the Company of the representations and warranties set forth in Section 2 (other than  the Company Fundamental Representations and Subsection 2.11 (Tax Returns and Payments)) and  except in the case of Fraud, that results in otherwise indemnifiable Damages (after giving effect to  any Indemnity Reduction Amounts), Damages shall not be counted toward satisfaction of the  Basket, unless such Damages exceed an amount equal to $250,000.  (c) The liability of the Parent and the Company for indemnification of  Damages under this Agreement resulting from, arising out of, or relating to (i) any breach of any  representations and warranties made by the Company in Section 2 (excluding any Company  Fundamental Representation and Subsection 2.11 (Tax Returns and Payments) and except in the  case of Fraud) shall be limited, in the aggregate, to an amount equal to ten percent (10%) of the  Purchase Price and (ii) any breach of the Company Fundamental Representations, Subsection 2.11  (Tax Returns and Payments) and any covenant, shall be limited, in the aggregate, to an amount  equal to the Purchase Price. Any claims under Subsections 7.2(a)(ii), (iii), (iv), (v), (vi), (vii) and  (viii) and any claims with respect to Fraud shall not be subject to this Subsection 7.3(c).   (d) The amount that an Indemnifying Party is or may be required to pay  to an Indemnified Party in respect of Damages for which indemnification is provided under this  Agreement shall be reduced by any amounts actually received (including amounts received under  insurance policies) by or on behalf of any Indemnified Party or its Affiliates from third parties (net  of any costs of recovery of such amounts) and any cash net Tax savings or benefits actually realized  by the Indemnified Party or its Affiliates in the taxable year of incurring such Damages  (determined on a “with and without” basis) (provided, for this purpose, that a Tax saving shall be  deemed realized when the Taxes that would otherwise have been payable by the Indemnified Party  would become due and payable, and that any such amount shall be reduced by the costs and  expenses incurred in securing such savings) (such amounts and benefits are collectively referred  to herein as “Indemnity Reduction Amounts”).  If any Indemnified Party or its Affiliates receives  any Indemnity Reduction Amounts in respect of a claim for which indemnification is provided  under this Agreement after the full amount of such claim has been paid by an Indemnifying Party  or after an Indemnifying Party has made a partial payment of such claim and such Indemnity  Reduction Amounts exceed the remaining unpaid balance of such claim, then the Indemnified  Party shall promptly remit to the Indemnifying Party an amount equal to the excess (if any) of (i)  the amount theretofore paid by the Indemnifying Party in respect of such claim, less (ii) the amount  of the indemnity payment that would have been due if such Indemnity Reduction Amounts in  respect thereof had been received before the indemnity payment was made.  Each of the Company  and the Purchaser, as appropriate, shall, or shall cause each Indemnified Party to, use its  commercially reasonable efforts to pursue promptly any claims or rights it may have against all  third parties which would reduce the amount of Damages for which indemnification is provided  under this Agreement.  Each of the Parent, the Company and the Purchaser, as appropriate, shall  use its commercially reasonable efforts to mitigate any Damages hereunder.   (e) For the purposes of determining whether a breach of representation  or warranty has occurred for the purposes of Subsection 7.2(a) and calculating the amount of  Damages related thereto, any qualification as to materiality, “Material Adverse Effect” or any other  similar materiality qualification or standard contained in Article 2 of this Agreement or in any  certificate or other instrument delivered by or on behalf of the Company pursuant to this  Agreement shall be disregarded (it being understood that the word “Material” in the defined term  





 






  43      “Material Contract” and the qualification as to “Material Adverse Effect” contained in Subsection  2.9(b) shall not be disregarded for any of such purposes). Notwithstanding anything to the contrary  herein, the rights and remedies of any Indemnified Party shall not be limited by the fact that any  Indemnified Party (i) had actual or constructive knowledge (regardless of whether such knowledge  was obtained through such Indemnified Party’s own investigation or through disclosure by any  Parent Group Member, Company Group Member, or any of their representatives or any other  Person) of any breach, event or circumstance, whether before or after the execution and delivery  of this Agreement or the Closing, or (ii) waived (A) any breach of representation or compliance  with any covenant or (B) any condition to the Closing set forth in Section 5.  7.4 Method of Asserting Claims. All claims for indemnification by any  Indemnified Party under Section 7 shall be asserted and resolved as follows:  (a) Third Party Claims. In the event any claim or demand in respect of  which an Indemnified Party might seek indemnity under this Section 7 is asserted against or sought  to be collected from such Indemnified Party by a Person other than a party hereto or any of its  Affiliates (a “Third Party Claim”), then such Indemnified Party shall deliver an Indemnification  Notice to the Person from whom indemnification is being sought (each, an “Indemnifying Party”)  reasonably promptly after receipt by such Indemnified Party of notice of such Third Party Claim;  provided, however, that the failure by such Indemnified Party to give such notice as provided  herein shall not relieve the Indemnifying Party of its indemnification obligation under this Section  7 except to the extent that the Indemnifying Party is actually and materially damaged as a result of  such failure.  In the event of any such claim for indemnification by the Indemnified Party resulting  from or in connection with a Proceeding by a third party, the Indemnifying Party may, at its sole  cost and expense, assume the defense thereof; provided, however, that counsel for the  Indemnifying Party, who shall conduct the defense of such Proceeding, shall be reasonably  satisfactory to the Indemnified Party; and provided, further, that if the Indemnified Party shall have  be advised by counsel that there may be legal defenses or rights available to it or them which have  not been waived and are in actual or potential conflict with those available to the Indemnifying  Party, the Indemnified Party shall have the right to select one law firm reasonably acceptable to  the Indemnifying Party to act as separate counsel in addition to any specialized or local counsel,  on behalf of the Indemnified Party, at the expense of the Indemnifying Party, in connection with  such Proceeding.  The Indemnifying Party shall not without the prior written consent of such  Indemnified Party consent to entry of any judgment, or enter into any settlement, that (a) provides  for injunctive or other non-monetary relief affecting the Indemnified Party or (b) does not include  as an unconditional term thereof the giving by each claimant or plaintiff to the Company and the  Indemnified Party of a release from all liability with respect to such Proceeding; and if the  Indemnified Party is not represented by separate counsel pursuant to the second proviso of the  immediately preceding sentence, the Indemnified Party may, at its or their own expenses,  participate in any such Proceeding with the counsel of their choice.  The Indemnified Party shall  not compromise or settle such Proceeding without the prior written consent of the Indemnifying  Party, which consent shall not be unreasonably withheld or delayed.  (b) Direct Claims. In the event of any claim or demand other than a  Third Party Claim (a “Direct Claim”), in respect of which an Indemnified Party seeks  indemnification under Section 7, the Indemnified Party shall deliver an Indemnity Notice to the  Indemnifying Party reasonably promptly after discovering the liability or facts giving rise to such  





 






  44      Direct Claim; provided, however, that the failure by such Indemnified Party to give such notice as  provided herein shall not relieve the Indemnifying Party of its indemnification obligation under  this Section 7 except to the extent that the Indemnifying Party is actually and materially damaged  as a result of such failure.  The Indemnifying Party shall notify the Indemnified Party within the  thirty (30)-day period after its receipt of such Indemnity Notice (the “Dispute Period”) as to  whether the Indemnifying Party disputes its liability to the Indemnified Party with respect to the  Direct Claim described in the Indemnity Notice (such notice of dispute, an “Indemnity Dispute  Notice”).  If the Indemnifying Party has delivered an Indemnity Dispute Notice, the Indemnifying  Party and the Indemnified Party shall proceed in good faith to negotiate a resolution to such  dispute.  If the Indemnifying Party and the Indemnified Party cannot resolve such dispute within  thirty (30) days after delivery of the Indemnity Dispute Notice, such dispute shall be resolved in  accordance with Subsection 9.14 (Dispute Resolution).   7.5 Limitations on Remedies. In the event that indemnification is claimed by  any Indemnified Party under Section 7.2(a) due to any (i) any breach of any representations and  warranties made by the Parent and the Company in Section 2, or (ii) any nonfulfillment of or failure  to perform any covenant on the part of the Company or Parent contained in this Agreement, and  any portion of the Damages claimed by such Indemnified Party are attributable to Damages  suffered or incurred by the Company and its Subsidiary in connection with such breach or alleged  breach (any such Damages, the “Company Losses”), and such indemnification obligation is  satisfied by the Company (rather than the Parent) the portion of the indemnifiable Damages that  shall be paid to an Indemnified Party that are attributable to the Company Losses shall be  calculated as the quotient of (A) the amount of such Company Losses multiplied by a fraction (x)  numerator of which is the number of Units then held by such Purchaser and (y) the denominator  of which is the then total issued and outstanding Units of the Company (the “Purchaser Position”)  divided by (B) one (1) minus the Purchaser Position.   7.6 Exclusive Remedies. From and after the Closing, except in the case of  Fraud, the remedies set forth in this Section 7 and in Section 8 and Section 9 shall be the sole and  exclusive remedy with respect to any and all claims relating, directly or indirectly, to the subject  matter of this Agreement. Without limiting the generality of the foregoing, the Company, on the  one hand, and the Purchaser, on the other hand, hereby waive, to the fullest extent permitted under  Applicable Law, any and all rights, claims and causes of action it or any of their respective  Affiliates may have against the other party or any of its Affiliates with respect to the subject matter  of this Agreement, whether arising under or based upon any law.  7.7 Tax Characterization. The parties hereto agree to treat any indemnification  payment made pursuant to this Agreement as an adjustment to the Purchase Price for tax purposes,  unless otherwise required by Applicable Law.  8. Tax Matters.  (a) Partnership Audits. Notwithstanding anything to the contrary herein  or in the A&R LLC Agreement either: (i) the Company (and the Company’s “partnership  representative” or its “designated individual”, each as defined in the Code, or any equivalent  designee under state or local Tax law) shall make or cause to be made an election pursuant to  Section 6226 of the Code and under Treasury Regulation Section 301.6227-2(c) (or any  





 






  45      corresponding elections under state and local law) with respect to any Tax audit, proceeding,  contest or other dispute of the Company (or any of its Subsidiaries that are classified as  partnerships for U.S. federal income tax purposes) under the Partnership Audit Rules that relates  to a Pre-Closing Tax Period or (ii) (a) the Company shall take such actions as are necessary so that  the economic burden of any imputed underpayment under the Partnership Audit Rules or other  Tax that relates to a Pre-Closing Tax Period (whether collected through withholding or directly  imposed on the Company or any Subsidiary (whether by law, regulation or contract) (a “Pre- Closing Tax Liability”) is not allocated to or borne by Purchaser (including by having the other  Members pay their appropriate share to the Company of any Pre-Closing Tax Liability) and (b)  the Parent hereby agrees to promptly pay, or cause to be paid, to the Company an amount in cash  that is sufficient to fully and timely satisfy any Pre-Closing Tax Liability prior to the due date of  such Pre-Closing Tax Liability (such payment not to be treated as a capital contribution for  purposes of the LLC Agreement); provided, that if the Parent fails to make such payment described  in the foregoing clause (ii)(b), the Company shall reduce the amount that would otherwise be  distributable to the Parent pursuant to Section 4.1 of the LLC Agreement on the current or  subsequent distribution date (or, if such distribution is not sufficient for that purpose, by so  reducing the proceeds of liquidation otherwise payable to the Parent), and the Parent shall be  treated for all purposes of this Agreement and the LLC Agreement as having received all  distributions (whether before or upon liquidation) unreduced by the amount of such Pre-Closing  Tax Liability.  (b) Tax Treatment. Unless otherwise required by Applicable Law, the parties  hereto intend to treat the purchase of the Purchased Units as a transaction governed by Section 721  of the Code, and no party shall file any Tax Return inconsistent with such treatment.  (c) Section 754 Election. To the extent not already made, the Company shall  make and maintain at all times a valid election pursuant to Section 754 of the Code and analogous  elections under state and local law for the taxable year that includes the Closing, and shall cause  each material Subsidiary of the Company that is a partnership for U.S. federal income tax purposes  to make and maintain at all times a valid election pursuant to Section 754 of the Code and  analogous elections under state and local law for the taxable year that includes the Closing.   (d) Allocation of Taxes. For all purposes of this Agreement, in order to  apportion appropriately any Taxes relating to a Straddle Period, the portion of any Taxes that are  allocable to the Pre-Closing Period shall be (a) in the case of income Taxes and all other Taxes  that are not imposed on a periodic basis, the amount that would be payable if the taxable year or  period of the applicable entity (and all pass-through entities in which such entity owns a direct or  indirect interest) ended on the Closing Date based on an interim closing of the books and (b) in the  case of any Taxes that are imposed on a periodic basis (including property Taxes), the amount of  such Taxes for the relevant period multiplied by a fraction, the numerator of which shall be the  number of calendar days from the beginning of the period up to and including the Closing Date  and the denominator of which shall be the number of calendar days in the entire period.  9. Miscellaneous.  9.1 Successors and Assigns. This Agreement will bind and inure to the benefit  of the parties hereto and their respective successors and permitted assigns. Nothing in this  





 






  46      Agreement, express or implied, is intended to confer upon any party other than the parties hereto  or their respective successors and assigns any rights, remedies, obligations, or liabilities under or  by reason of this Agreement, except as expressly provided in this Agreement. No party to this  Agreement may assign any of its rights or obligations under this Agreement (whether by operation  of law or otherwise) without the prior written consent of the other parties hereto; provided that,  Purchaser may assign its rights and obligations under this Agreement to any of its Affiliates or any  fund or entity managed or controlled by Warburg Pincus LLC or its Affiliates. Any attempted or  purported assignment in contravention of this provision shall be null and void.  9.2 Governing Law. This Agreement shall be governed by the internal law of  the State of Delaware without giving effect to any choice or conflict of law provision or rule  (whether of the State of Delaware or any other jurisdiction).  9.3 Counterparts. This Agreement may be executed in two or more  counterparts, each of which shall be deemed an original, but all of which together shall constitute  one and the same instrument. Counterparts may be delivered via facsimile, electronic mail  (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000,  e.g. www.docusign.com) or other transmission method and any counterpart so delivered shall be  deemed to have been duly and validly delivered and be valid and effective for all purposes.  9.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used  for convenience only and are not to be considered in construing or interpreting this Agreement.  9.5 Notices. All notices and other communications required or permitted  hereunder shall be in writing and shall be sent by electronic mail or delivered by hand, messenger  or overnight or second-day courier service.  Each such notice or other communication shall for all  purposes of this Agreement be treated as effective or having been given (i) if delivered by hand,  messenger or overnight or second-day courier service, when delivered (or if sent via a nationally- recognized overnight or second-day courier service, freight prepaid, specifying next-business-day  or second-business-day delivery, one (1) Business Day or two (2) Business Days, respectively,  after deposit with the courier), or (ii) if sent via electronic mail, when directed to the relevant  electronic mail address, and receipt is confirmed by non-automated response.  Notices to Purchaser  must be delivered to the address set forth opposite the name on its signature page, and notices to  the Company must be delivered to the principal executive offices of the Company, although any  party may furnish, from time to time, other addresses for notices to it.   9.6 Fees and Expenses. Parent shall be responsible for its own fees and  expenses, as well as the fees and expenses of each Company Group Member and each Parent  Group Member, including fees and disbursements of counsel, financial advisors and accountants,  incurred in connection with this Agreement and the transactions contemplated hereby, whether or  not the Closing shall have occurred. Purchaser shall be responsible for its own fees and expenses,  including fees and disbursements of counsel, financial advisors and accountants, incurred in  connection with this Agreement and the transactions contemplated hereby, whether or not the  Closing shall have occurred.  9.7 Amendments and Waivers. Any term of this Agreement may be (a)  amended or terminated with the written consent of the parties hereto or (b) waived with the written  





 






  47      consent of such party or parties against whom such waivers are sought to be enforced. Any  amendment or waiver effected in accordance with this Subsection 9.7 shall be binding upon  Purchaser and each transferee of the Units, each future holder of all such securities, and the Parent,  and the Company.  9.8 Severability.  The provisions of this Agreement are severable.  The  invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity or  enforceability of any other of its provisions.  If one or more provisions hereof shall be declared  invalid or unenforceable, the remaining provisions shall remain in full force and effect and shall  be construed in the broadest possible manner to effectuate the purposes hereof.  The parties further  agree to replace such void or unenforceable provisions of this Agreement with valid and  enforceable provisions that will achieve, to the fullest extent possible, the economic, business and  other purposes of the void or unenforceable provisions.  9.9 Delays or Omissions. No delay or omission to exercise any right, power or  remedy accruing to any party under this Agreement, upon any breach or default of any other party  under this Agreement, shall impair any such right, power or remedy of such non-breaching or  non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an  acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any  waiver of any single breach or default be deemed a waiver of any other breach or default  theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or  character on the part of any party of any breach or default under this Agreement, or any waiver on  the part of any party of any provisions or conditions of this Agreement, must be in writing and  shall be effective only to the extent specifically set forth in such writing. All remedies, either under  this Agreement or by law or otherwise afforded to any party, shall be cumulative and not  alternative.  9.10 Additional Acts. The Company and the Purchaser cooperate fully with each  other to execute and deliver such additional documents and instruments, to give such further  written assurances and to perform such additional acts as may be reasonably necessary or  appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this  Agreement and the transactions contemplated hereby.  9.11 Entire Agreement. This Agreement (including the Exhibits hereto)  constitutes the full and entire understanding and agreement between the parties with respect to the  subject matter hereof, and any other written or oral agreement relating to the subject matter hereof  existing between the parties are expressly canceled.  9.12 Interpretation. The table of contents, articles, titles and headings to sections  herein are inserted for convenience of reference only and are not intended to be a part of or to  affect the meaning or interpretation of this Agreement.  Except as otherwise indicated, all  references in this Agreement to “Articles”, “Sections”, “Subsections”, “Disclosure Schedules” and  “Exhibits” are intended to refer to Articles and Sections of this Agreement and Schedules and  Exhibits to this Agreement.  The Disclosure Schedules and Exhibits referred to herein shall be  construed with and as an integral part of this Agreement to the same extent as if they were set forth  verbatim herein.  Any capitalized terms used in the Disclosure Schedules and  any Exhibit but not  otherwise defined therein shall be defined as set forth in this Agreement unless the context  





 






  48      otherwise requires. For purposes of this Agreement: (a) “include,” “includes” or “including” shall  be deemed to be followed by “without limitation”; (b) “hereof,” “herein”, “hereby”, “hereto” and  “hereunder” shall refer to this Agreement as a whole and not to any particular provision of this  Agreement; (c) “extent” in the phrase “to the extent” shall mean the degree to which a subject or  other item extends and shall not simply mean “if”; (d) “Dollars” and “$” shall mean United States  Dollars; (e) the singular includes the plural and vice versa; (f) reference to a gender includes the  other gender; (g) “any” shall mean “any and all”; (h) “or” is used in the inclusive sense of “and/or”;  (ix) reference to any agreement, document or instrument means such agreement, document or  instrument as amended, supplemented and modified in effect from time to time in accordance with  its terms; and (i) reference to any law means such law as amended from time to time and includes  any successor legislation thereto and any rules and regulations promulgated thereunder;   9.13 Dispute Resolution.  (a) Governing Law; Venue. The parties (i) hereby irrevocably and  unconditionally submit to the jurisdiction of the United States District Court for the District of  Delaware or in the Court of Chancery of the State of Delaware (or, if such court lacks subject  matter jurisdiction, in the Superior Court of the State of Delaware) for the purpose of any suit,  action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence  any suit, action or other proceeding arising out of or based upon this Agreement except in the  United States District Court for the District of Delaware or in the Court of Chancery of the State  of Delaware (or, if such court lacks subject matter jurisdiction, in the Superior Court of the State  of Delaware), and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or  otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the  jurisdiction of the above-named courts, that its property is exempt or immune from attachment or  execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue  of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof  may not be enforced in or by such court.  (b) WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES  ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON  OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS,  THE PURCHASED UNITS OR THE SUBJECT MATTER HEREOF OR THEREOF. THE  SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND  ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE  SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,  CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY  CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION  HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE  PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO  HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS  REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY  KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING  CONSULTATION WITH LEGAL COUNSEL.  (c) The parties agree that irreparable damage would occur in the event  that any of the provisions of this Agreement (including Section 4.4) were not performed in  





 






  49      accordance with their specific terms or were otherwise breached.  It is accordingly agreed that, in  addition to any other remedy that may be available, the parties shall be entitled to an injunction or  injunctions to prevent breaches of this Agreement and to specifically enforce the terms and  provisions of this Agreement without the need to post any bond or other security in connection  therewith.  In furtherance hereof, no party hereto will argue that the remedy of specific  performance is unenforceable, invalid or contrary to law for any reason or that the availability of  monetary damages (including indemnification under Article VII hereof) would be an adequate  remedy for any breach or threatened breach of any of the provisions of this Agreement (including  Section 4.4). The parties hereto further agree that, notwithstanding anything to the contrary set  forth herein, an injunction or injunctions to prevent breaches of Section 4.4 of this Agreement and  to enforce specifically the terms of Section 4.4 of this Agreement shall be the sole and exclusive  remedy against Calumet GP and its Affiliates (other than the Company and Parent) with respect to  any and all claims relating, directly or indirectly, to the subject matter of this Agreement. Without  limiting the generality of the foregoing, except as set forth in the preceding sentence, the Purchaser  hereby waives, to the fullest extent permitted under Applicable Law, any and all rights, claims and  causes of action it or any of its Affiliates may have against Calumet GP or its Affiliates (other that  the Company or Parent) with respect to the subject matter of this Agreement, whether arising under  or based upon any law. For the avoidance of doubt, the parties further agree that the Company’s  and Parent’s liability for Damages under this Agreement is expressly limited to the provisions of  Article VII hereof.  [Signatures Begin on Following Page]    





 






  SIGNATURE PAGE TO PREFERRED UNIT PURCHASE AGREEMENT    IN WITNESS WHEREOF, the parties have executed this Preferred Unit Purchase  Agreement as of the date first written above.  “COMPANY”  MONTANA RENEWABLES HOLDINGS, LLC  By: /s/ Bruce Fleming   Name: Bruce Fleming________________  Title: Executive Vice President – Montana Renewables and  Corporate Development_________________________  Address:     2780 Waterfront Parkway East Drive, Suite 200  Indianapolis, Indiana 46214  Attention: Gregory J. Morical  Email: greg.morical@calumetspecialty.com  with a copy to:  Gibson, Dunn & Crutcher LLP  200 Park Avenue, New York, NY 10166  Attention: John T. Gaffney   Email: JGaffney@gibsondunn.com        





 






  SIGNATURE PAGE TO PREFERRED UNIT PURCHASE AGREEMENT        “PARENT”  CALUMET SPECIALTY PRODUCTS  PARTNERS, L.P.  By: /s/ Bruce Fleming   Name: _Bruce Fleming_______________  Title: Executive Vice President – Montana Renewables and  Corporate Development__________________________  Address:     2780 Waterfront Parkway East Drive, Suite 200  Indianapolis, Indiana 46214  Attention: Gregory J. Morical  Email: greg.morical@calumetspecialty.com    with a copy to:  Gibson, Dunn & Crutcher LLP  200 Park Avenue, New York, NY 10166  Attention: John T. Gaffney   Email: JGaffney@gibsondunn.com          





 






  SIGNATURE PAGE TO PREFERRED UNIT PURCHASE AGREEMENT          “PURCHASER”  WPGG 14 UNITED AGGREGATOR, L.P.  By: /s/ Robert Knauss   Name: Robert Knauss   Title: Authorized Signatory   Address:    c/o Warburg Pincus LLC  450 Lexington Ave.  New York, NY 10017  Attention: General Counsel  Email: notices@warburgpincus.com    with a copy (which shall not constitute notice) to:     Cleary Gottlieb Steen & Hamilton LLP  One Liberty Plaza  New York, NY 10006  Attention:  Matt Salerno  Telephone:  (212) 225 2000   Email:  msalerno@cgsh.com       





 






  SIGNATURE PAGE TO PREFERRED UNIT PURCHASE AGREEMENT        “CALUMET GP”  CALUMET GP, LLC  By: /s/ Bruce Fleming   Name: _Bruce Fleming_______________  Title: _Executive Vice President – Montana Renewables and  Corporate Development___________________________  Address:     2780 Waterfront Parkway East Drive, Suite 200  Indianapolis, Indiana 46214  Attention: Gregory J. Morical  Email: greg.morical@calumetspecialty.com    with a copy to:  Gibson, Dunn & Crutcher LLP  200 Park Avenue, New York, NY 10166  Attention: John T. Gaffney   Email: JGaffney@gibsondunn.com