8-K

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): January 10, 2025

CALUMET, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-42172	36-5098520
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

1060 N. Capital Avenue

Suite 6-401

Indianapolis, Indiana 46204

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (317) 328-5660

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities Registered Pursuant to Section 12(b) of the Act:

Title of each class	Trading symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.01 per share	CLMT	The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

On January 10, 2025, Montana Renewables, LLC (“MRL”) as borrower, an unrestricted, non-guarantor subsidiary of Calumet, Inc. (the “Company”), and the U.S. Department of Energy (the “DOE”), as guarantor and loan servicer, executed a Loan Guarantee Agreement (“LGA”) for a loan that guarantees $1.44 billion of financing to fund the construction and expansion of the renewable fuels facility owned by MRL.

The LGA is a term loan facility, which provides for a series of two tranches, each subject to the achievement of certain milestone conditions. Tranche 1 provides for a single draw, the proceeds of which shall be used to repay MRL’s existing financing arrangements that financed the construction and operation of MRL’s existing renewable fuels facility. Tranche 2 provides for multiple draws, the proceeds of which shall be used to fund the construction of expansion of MRL’s existing renewable fuels facility.

The LGA is secured by substantially all of MRL’s assets, and a pledge from Montana Renewables Holdings LLC over its right, title and interests to 100% of the equity interests of MRL. The LGA contains events of default that are customary in nature for financings of this type, including, among other things, (a) the non-payment of principal or interest, (b) material violations of covenants, (c) material breaches of representations and warranties, (d) certain bankruptcy events and (e) certain change of control events. The LGA is also subject to amortization events that are customary in nature for financings of this type, including (a) failure to maintain financial ratios, (b) disposition of certain assets and (c) failure to meet certain project milestones. The occurrence of an amortization event or an event of default could result in accelerated amortization of the LGA, and the occurrence of an event of default could, in certain instances, result in the liquidation of the collateral securing the LGA.

The foregoing description of the LGA is qualified in its entirety by reference to the Loan Guarantee Agreement, a copy of which is attached hereto as Exhibit 10.1, which is incorporated by reference herein.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

Item 7.01 Regulation FD Disclosure.

On January 10, 2025, the Company issued a press release announcing the matter described under Item 1.01 of this report, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.

The information in this Item 7.01, including Exhibit 99.1, is being furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section and shall not be deemed to be incorporated by reference into any registration statement or other document filed pursuant to the Securities Act of 1933, as amended, regardless of any general incorporation language in such filing, except as shall be expressly set forth by specific reference in such timing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit Number	Description
10.1*	Loan Guarantee Agreement, dated January 10, 2025, by and among Montana Renewables, LLC and the U.S. Department of Energy.
99.1	Press Release dated January 10, 2025.
104	Cover Page Interactive Data File- the cover page XBRL tags are embedded within the Inline XBRL document.

* Schedules and exhibits to this exhibit have been omitted pursuant to Item 601(a)(5) of Registration S-K. Additionally, pursuant to Item 601(b)(10)(iv) of Regulation S-K, portions of this exhibit have been omitted because the Company customarily and actually treats the omitted portions as private or confidential, and such portions are not material. The Company hereby agrees to furnish a copy of any omitted schedules to the SEC upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	CALUMET, INC.
Date: January 10, 2025	By:	/s/ David Lunin
		Name: David Lunin
		Title: Executive Vice President and Chief Financial Officer

EX-10.1

EXHIBIT 10.1

This document and the contents herein are confidential and shall not be revealed to any party without a need to know the contents for the purpose of negotiating and approving a potential financing from FFB and DOE.

LOAN GUARANTEE AGREEMENT

dated as of January 10, 2025
among

Montana Renewables, LLC,

as Borrower,

and

U.S. DEPARTMENT OF ENERGY,

as Guarantor and Loan Servicer

Project Montana
Great Falls, Montana, USA

Loan No. EIR0015

CONTENTS

Page

Article I Definitions and Other Rules of Construction8

Section 1.01Terms Generally‌8

Section 1.02Other Rules of Construction‌8

Section 1.03Definitions in Other Written Communications‌9

Section 1.04Conflict with FFB Documents‌10

Section 1.05Language; Accounting Terms‌10

Article II Funding10

Section 2.01Guaranteed Loan Purchase of the FFB Notes‌10

Section 2.02Availability and Reductions‌10

Section 2.03Mechanics for Requesting Advances‌11

Section 2.04Mechanics for Funding Advances‌11

Section 2.05Advance Requirements under the FFB Documents‌14

Section 2.06No Approval of Work‌14

Section 2.07Determination of Advance Amounts‌14

Article III Payments; Prepayments14

Section 3.01Place and Manner of Payments‌14

Section 3.02Maturity and Amortization‌15

Section 3.03Evidence of Debt‌15

Section 3.04Interest Provisions Relating to All Advances‌15

Section 3.05Prepayments‌16

Article IV Reimbursement and Other Payment Obligations20

Section 4.01Reimbursement and Other Payment Obligations‌20

Section 4.02Subrogation‌22

Section 4.03Obligations Absolute‌22

Section 4.04Evidence of Payment‌25

Section 4.05Payment of Financing Document Amounts‌25

Article V Conditions Precedent25

Section 5.01Conditions Precedent to the Execution Date‌25

Section 5.02Conditions Precedent to FFB Purchase of the FFB Note‌34

Section 5.03Conditions Precedent to the First Advance Date Under Tranche 1‌34

Section 5.04Conditions Precedent to the First Advance Date Under Tranche 2‌41

Section 5.05Conditions Precedent to Each Subsequent Advance Date Under Tranche 2‌51

Section 5.06Conditions Precedent to FFB Advance‌57

Section 5.07Advance Deductions‌58

Section 5.08Satisfaction of Conditions Precedent‌58

Article VI Representations and Warranties58

Section 6.01Organization and Existence‌58

Section 6.02Authorization; No Conflict‌59

Section 6.03Capitalization‌59

Section 6.04Solvency‌59

Section 6.05Eligibility of Borrower; Project‌60

Section 6.06Transaction Documents‌60

Section 6.07Required Approvals‌60

Section 6.08Litigation‌61

Section 6.09Indebtedness‌61

Section 6.10Security Interests; Liens‌61

Section 6.11Taxes‌62

Section 6.12Financial Statements‌62

Section 6.13Business; Other Transactions‌62

Section 6.14Accounts‌63

Section 6.15Property‌63

Section 6.16Project Milestone Schedule and Construction Budget; Operating Forecasts and Base Case Financial Model‌64

Section 6.17Intellectual Property‌65

Section 6.18Infringement; No Adverse Proceedings‌65

Section 6.19No Amendments to Transaction Documents‌66

Section 6.20Compliance with Laws; Program Requirements‌66

Section 6.21Investment Company Act‌66

Section 6.22Margin Stock‌66

Section 6.23Anti-Corruption Laws‌66

Section 6.24Environmental Laws‌66

Section 6.25Employment and Labor Contracts‌67

Section 6.26Davis-Bacon Act‌67

Section 6.27ERISA‌68

Section 6.28Sanctions and Anti-Money Laundering Laws‌69

Section 6.29Cargo Preference Act‌69

Section 6.30Lobbying Restriction‌69

Section 6.31Federal Funding‌69

Section 6.32No Federal Debt Delinquency‌69

Section 6.33No Tax-Exempt Indebtedness‌70

Section 6.34Sufficient Funds‌70

Section 6.35Use of Proceeds‌70

Section 6.36No Immunity‌70

Section 6.37No Fraudulent Intent‌70

Section 6.38Disclosure‌70

Section 6.39Insurance‌70

Section 6.40Information Technology; Cyber Security‌70

Section 6.41CFIUS‌71

Section 6.42Certain Events‌71

Section 6.43No Material Adverse Effect‌71

Article VII Affirmative covenants71

Section 7.01Maintenance of Existence; Property; Etc.‌71

Section 7.02Intellectual Property‌72

Section 7.03Insurance‌73

Section 7.04Event of Loss‌74

Section 7.05Further Assurances; Creation and Perfection of Security Interests‌75

Section 7.06Diligent Construction of Project; Approved Construction Changes‌75

Section 7.07Contractual Remedies‌76

Section 7.08Taxes, Duties, Expenses and Liabilities‌76

Section 7.09Performance of Obligations‌77

Section 7.10Use of Proceeds‌77

Section 7.11Books, Records and Inspections‌77

Section 7.12Compliance with Applicable Law‌79

Section 7.13Compliance with Program Requirements‌79

Section 7.14Accounts; Cash Deposits‌79

Section 7.15Offtake Contracts‌80

Section 7.16Feedstock Supply Plan‌80

Section 7.17Davis-Bacon Act‌80

Section 7.18Lobbying Restriction‌81

Section 7.19Cargo Preference Act‌81

Section 7.20SAM Registration‌82

Section 7.21ERISA‌82

Section 7.22Financial Covenants‌82

Section 7.23Public Announcements‌82

Section 7.24Bankruptcy Remoteness‌82

Section 7.25Prohibited Persons‌82

Section 7.26International Compliance Directives‌83

Section 7.27Operating Plan; Operations‌83

Section 7.28O&M Budget‌83

Section 7.29Acceptance and Start-up Testing‌85

Section 7.30Process Agent‌85

Section 7.31MFN‌85

Section 7.32Know Your Customer Information‌85

Section 7.33BNSF Consent‌85

Section 7.34Offtake Contracts‌86

Article VIII Information Covenants86

Section 8.01Financial Statements‌86

Section 8.02Reports‌88

Section 8.03Notices‌91

Section 8.04Other Information‌93

Section 8.05Adverse Proceedings; Defense of Claims‌94

Article IX Negative Covenants94

Section 9.01Restrictions on Operations‌94

Section 9.02Liens‌96

Section 9.03Merger; Disposition; Transfer‌96

Section 9.04Restricted Payments‌97

Section 9.05Use of Proceeds‌98

Section 9.06Organizational Documents; Fiscal Year; Account Policies; Reporting Practices‌98

Section 9.07Approved Construction Changes; Project Milestone Schedule; Budgets‌98

Section 9.08Hedging Agreements‌99

Section 9.09Margin Regulations‌99

Section 9.10Environmental Matters.‌99

Section 9.11ERISA‌99

Section 9.12Investment Company Act‌100

Section 9.13Sanctions‌100

Section 9.14Debarment Regulations‌100

Section 9.15Prohibited Person‌100

Section 9.16Restrictions on Indebtedness and Certain Capital Transactions‌100

Section 9.17No Other Federal Funding‌101

Section 9.18Intellectual Property‌101

Section 9.19Program Requirements‌102

Article X Events of Default and Remedies102

Section 10.01Events of Default‌102

Section 10.02Remedies; Waivers‌108

Section 10.03Accelerated Advances‌109

Article XI Miscellaneous109

Section 11.01Waiver and Amendment‌109

Section 11.02Right of Set-Off‌110

Section 11.03Survival of Representations and Warranties‌110

Section 11.04Notices‌110

Section 11.05Severability‌110

Section 11.06Judgment Currency‌111

Section 11.07Indemnification‌111

Section 11.08Limitation on Liability‌113

Section 11.09Successors and Assigns‌113

Section 11.10FFB Right to Sell Guaranteed Loan‌114

Section 11.11Further Assurances and Corrective Instruments‌114

Section 11.12Reinstatement‌114

Section 11.13Governing Law; Waiver of Jury Trial‌114

Section 11.14Submission to Jurisdiction; Etc.‌115

Section 11.15Entire Agreement‌115

Section 11.16Benefits of Agreement‌116

Section 11.17Headings‌116

Section 11.18Counterparts; Electronic Signatures‌116

Section 11.19No Partnership; Etc.‌116

Section 11.20Independence of Covenants‌117

Section 11.21Marshaling‌117

Signatories‌118

Annexes, Schedules and exhibits

Annex ADefinitions

Exhibits

Exhibit AForm of Advance Request

Exhibit BForm of Drawstop Notice

Exhibit CForm of Officer’s Certificate

Exhibit DForm of Closing Certificate

Exhibit EForm of Tax Certificate

Exhibit FForm of Construction Budget

Exhibit GDavis Bacon Act Contract Provisions

Exhibit HForm of Secured Party Advisor Report Bring Down Certificate

Exhibit IForm of Compliance Certificate

Exhibit JForm of Annual Certificate

Exhibit KForm of Quarterly Certificate

Exhibit LForm of Construction Workforce Report

Exhibit MForm of Operations and Maintenance Workforce Report

Exhibit NForm of Community Benefits Plan and Justice40 Annual Report

Exhibit OForm of Monthly Certificate

Exhibit PForm of Monthly Construction Progress Report

Exhibit QForm of Restricted Payment Certificate

Exhibit RForm of O&M Budget

Exhibit SForm of Intercreditor Agreement

Exhibit TForm of Physical Completion Date Certificate

Exhibit UForm of Project Completion Date Certificate

Schedules

Schedule 3.02Amortization Schedule

Schedule 5.01(d)(ii)-1Project Documents

Schedule 5.01(d)(ii)-2Major Project Documents; Specified Major Project Participant; Feedstock Supplier

Schedule 5.01(j)Project Milestone Schedule

Schedule 5.01(t)Required Approvals Schedule

Schedule 5.03(s)List of Assets

Schedule 5.03(t)Mechanic’s Lien

Schedule 6.01Existing Credit Facilities

Schedule 6.08Litigation

Schedule 6.13(e)Affiliate Transactions

Schedule 6.15-1Phase 1 Project Site

Schedule 6.15-2Project Site

Schedule 6.17(a)Intellectual Property

Schedule 6.26(b)Davis-Bacon Act Covered Contracts

Schedule 7.03Required Insurance

Schedule 8.02(a)Sales and Marketing Plan

Schedule 11.04Notices

Schedule RForm of Safety Report

LOAN GUARANTEE AGREEMENT, dated January 10, 2025 (this "Agreement"), between the UNITED STATES DEPARTMENT OF ENERGY, an agency of the United States of America ("DOE") and Montana Renewables, LLC, a limited liability company organized and existing under the laws of the state of Delaware (the "Borrower").

PRELIMINARY STATEMENTS

(A) DOE has been authorized to issue a guarantee for FFB to make loans for the Project pursuant to Title XVII of the Energy Policy Act of 2005, Pub. L. 109 58, as amended by Section 406 of Div. A of Title IV of Pub. L. 111 5, and as further amended from time to time (“Title XVII”).

(B) Borrower has undertaken the  development, engineering, procurement, construction, operation, ownership, and maintenance of a biorefinery facility called “Montana Renewables” located in Great Falls, Montana, which converts fats, oils, and greases into renewable diesel (“RD”), sustainable aviation fuel (“SAF”), and renewable naphtha, including the currently operational portion of the facility (“Phase 1”) and the proposed expansion of such facility to increase the production of RD, SAF and renewable naphtha, including wastewater treatment upgrades and infrastructure updates, including rail and tankage (“Phase 2” and collectively with Phase 1, the “Project”), which is anticipated to operate at maximum SAF production and cogenerate to produce steam and power from renewable naphtha.

(C) As of the date of this Agreement, Montana Renewables Holdings LLC, (the “Direct Parent”) a limited liability company organized in the State of Delaware, which is owned 14.2045% by WPGG 14 United Aggregator, L.P., (“Warburg Pincus”), 0.0858% by Montana Renewables Holdings, Inc., a corporation incorporated in the State of Delaware (“MRH Inc.”) and 85.7097% by Calumet Montana Refining, LLC, a limited liability company organized in the State of Delaware (“CMR”), owns 100% of the Borrower;

(D) The Borrower submitted an application for the issuance by DOE of a guarantee of a multi-draw construction and term loan facility to be authorized and approved by DOE under Title XVII, subject to the requirements of Section 1706 and the Applicable Regulations (the "Application").

(E) The Borrower and DOE entered into a Conditional Commitment Letter dated October 16, 2024 (the “Conditional Commitment Letter”), pursuant to which DOE agreed to arrange for FFB to purchase the FFB Note from the Borrower and to make Advances from time to time thereunder, in each case, upon the terms and subject to the conditions of this Agreement and the other Financing Documents.

(F) Subject to the terms and conditions hereof, DOE will, in connection with arranging financing for the Borrower from FFB, issue and deliver to FFB a loan guarantee (the “DOE Guarantee”) pursuant to which it will guarantee the Borrower’s repayment of principal and interest on the Advances as and when required pursuant to the FFB Note and any other liabilities, losses, costs or expenses incurred by FFB from time to time with respect to the FFB Note or the related FFB Note Purchase Agreement.

(G) The execution of this Agreement is a condition precedent to DOE’s issuance of the DOE Guarantee, and FFB’s receipt of the DOE Guarantee is a condition precedent to FFB’s execution of the FFB Documents.

(H) The Borrower's obligations to DOE and FFB will be secured by the Liens granted under the Security Documents, to the extent provided therein.

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(I) The parties hereto desire: (a) to specify, among other things, the terms and conditions for: (i) the delivery by DOE of the Principal Instruments required for FFB to purchase the FFB Note pursuant to the FFB Note Purchase Agreement; (ii) the delivery by DOE of Advance Request Approval Notices; and (iii) certain indemnity and reimbursement obligations of the Borrower to DOE; and (b) to provide for certain other matters related thereto.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:

Article I

Definitions and Other Rules of Construction

Section 1.01Terms Generally. Capitalized terms used herein, including in the preliminary statements, without definition shall have the respective meanings assigned to such terms in Annex A (Definitions) hereto.

Section 1.02Other Rules of Construction. Unless the contrary is expressly stated herein:

(a)words in this Agreement denoting a gender shall be construed to include the other gender;

(b)when used in this Agreement, the words "including," "includes" and "include" shall be deemed to be followed in each instance by the words "without limitation";

(c)when used in this Agreement, the word "or" is not exclusive;

(d)when used in this Agreement, the words "herein," "hereby," "hereunder," "hereof," "hereto," "hereinbefore," and "hereinafter," and words of similar import, unless otherwise specified, shall refer to this Agreement in its entirety and not to any particular section, subsection, paragraph, clause or other subdivision, exhibit, schedule or appendix of this Agreement;

(e)each reference in this Agreement to any article, section, subsection, paragraph, clause or other subdivision, annex, exhibit, schedule or appendix shall mean, unless otherwise specified, the respective article, section, subsection, paragraph, clause or other subdivision, annex, exhibit, schedule or appendix of this Agreement;

(f)capitalized terms in this Agreement referring to any Person or party to any Financing Document or to any other agreement, instrument, deed or other document shall refer to such Person or party together with its successors and permitted assigns, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities;

(g)each reference in this Agreement to any Financing Document or to any other agreement, instrument, deed or other document, shall be deemed to be a reference to such Financing Document or such other agreement, instrument, deed or document, as the case may be, as the same may be amended, supplemented, novated or otherwise modified from time to time in accordance with the terms hereof and thereof;

(h)(i) each reference in this Agreement to any Applicable Law or Environmental Law shall be construed as a reference to such Applicable Law or Environmental Law, as applied, amended, modified, extended or re-enacted from time to time, and includes any rules or regulations promulgated

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thereunder, (ii) reference to compliance with Applicable Law (but not references to compliance with specific laws or Environmental Laws) shall be construed as material compliance with such Applicable Laws to the extent not specified otherwise;

(i)each reference in this Agreement to any provision of any other Financing Document will include reference to any definition or provision incorporated by reference within that provision;

(j)except where expressly provided otherwise, whenever any matter is required to be satisfactory to, or determined or approved by, DOE or FFB, or DOE or FFB is required or permitted to exercise any discretion (including any discretion to waive, select, require, deem appropriate, deem necessary, permit, determine or approve any matter), the satisfaction, determination or approval of DOE or FFB, or the exercise by DOE or FFB of such discretion, shall be in its respective sole and absolute discretion, as applicable, including as to the form and content of any instrument or other document and further DOE shall be entitled to consult with the Independent Engineer or any other of its Secured Party Advisors in making such determination or exercising such discretion;

(k)except where expressly provided otherwise, the words "days", "weeks", "months" and "years" shall mean calendar days, weeks, months and years, respectively, and each reference to a time of day shall mean such time in Washington, D.C.;

(l)the table of contents and article and section headings and other captions have been inserted as a matter of convenience for the purpose of reference only and do not limit or affect the meaning of the terms and provisions thereof;

(m)the expression "reasonable efforts" and expressions of like import, when used in connection with an obligation of any Borrower Entity, means (i) except as set forth in clause (ii) of this paragraph below, taking in good faith and with due diligence all commercially reasonable steps to achieve the objective and to perform the obligation, including doing all that can reasonably be done in the circumstances taking into account each party’s obligations hereunder to mitigate delays and additional costs to the other party, and in any event taking no fewer steps and efforts than those that would be taken by a commercially reasonable and prudent person in comparable circumstances, where the whole of the benefit of the obligation and where all the results of taking such steps and efforts accrue solely to that person’s own benefit and (ii) in the case of any Passive Sponsor, as it relates to any action to be taken by the Borrower, the Direct Parent or any Subsidiary of the Borrower, causing its shares to be voted in favor of or against a matter or giving or withholding consent to a matter;

(n)the words "asset" and "property," unless otherwise defined herein, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Equity Interests, securities, revenues, accounts, leasehold interests, Intellectual Property and contract rights;

(o)the word "will" shall be construed as having the same meaning and effect as the word "shall;" and

(p)the definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined.

Section 1.03Definitions in Other Written Communications. Unless the contrary intention appears, any capitalized term used without definition in any notice or other written communication given under or pursuant to this Agreement shall have the same meaning in that notice or other written communication as in this Agreement.

9

Section 1.04Conflict with FFB Documents. In the case of any conflict between the terms of this Agreement and the terms of any FFB Document (a), as between the Borrower and DOE the terms of this Agreement shall control, unless expressly stated to the contrary herein and (b) as (i) between the Borrower and FFB or (ii) between DOE and FFB, the terms of such FFB Document shall control.

Section 1.05Language; Accounting Terms. All information, reports, notices and other documents required to be delivered under the Financing Documents shall be prepared in English and denominated in Dollars. Except as otherwise expressly provided herein, all accounting terms used herein and in the other Financing Documents, and in any certificate or other document made or delivered pursuant hereto or thereto, but not otherwise defined in Annex A (Definitions) hereto shall have the respective meanings assigned to them in conformity with GAAP.

Article II

Funding

Section 2.01Guaranteed Loan Purchase of the FFB Notes.

(a)Purchase of the FFB Notes. Subject to the terms and conditions hereof and of the FFB Documents, on the Execution Date, DOE shall deliver to FFB the FFB Secretary’s Instruments required, in accordance with Section 3.3 of the FFB Note Purchase Agreement, in connection with the offer to FFB to purchase on the Execution Date, the FFB Note contemplated thereunder in an aggregate maximum principal amount not to exceed one billion four hundred thirty-nine million nine hundred sixty-nine thousand four hundred twenty-three Dollars and eighteen cents ($1,439,969,423.18) (the "Maximum Principal Amount") and an aggregate maximum amount of capitalized interest in accordance with Section 3.04(a) (Interest Amount and Interest Computations) not to exceed two hundred thirty-two million eight hundred thirty-eight thousand six hundred seventy-five Dollars and twenty nine cents ($232,838,675.29) (the "Maximum Capitalized Interest Amount" and together with the Maximum Principal Amount, the "Maximum Guaranteed Loan Amount", and the loan extended under the FFB Note, the "Guaranteed Loan").

(b)Guaranteed Loan Tranches. The Guaranteed Loan shall be disbursed, and the corresponding FFB Note shall be issued, in a series of two tranches (each, a "Tranche"), each in an amount, including capitalized interest, not to exceed the Maximum Tranche Amount for such Tranche, to fund specific Eligible Project Costs as set out below:

(i)Tranche 1, which shall be available to fund Eligible Project Costs that were incurred and paid by the Borrower prior to the date hereof and;

(ii)Tranche 2, which shall be available to fund Eligible Project Costs for Phase 2.

Section 2.02Availability and Reductions.

(a)Maximum Guaranteed Loan Amount; Availability Period. Subject to the terms and conditions hereof and of the FFB Documents, DOE shall, during the applicable Availability Period, deliver to FFB an Advance Request Approval Notice authorizing FFB to make Advances under any Tranche in accordance with Section 2.04(a)(ii) (Advance Request Approval Notice); provided, that, after giving effect to any Advances and the use of proceeds thereof and subject to Section 2.07 (Determination of Advance Amounts): (A) the aggregate amount of all Advances made to the Borrower under the FFB Note with respect to a Tranche and any capitalized interest thereon for such Tranche shall not exceed the applicable Maximum Tranche Amount; and (B) the aggregate amount of all Advances made to the Borrower under the FFB Note

10

then-outstanding under all Tranches and any capitalized interest thereon shall not exceed the Maximum Guaranteed Loan Amount and shall otherwise comply with the Debt Sizing Parameters.

(b)Loan Commitment Amount Reductions. The Borrower may, on not less than thirty (30) days' prior written notice to DOE and upon the satisfaction of any consent requirement or other applicable provisions of this Agreement and each other Financing Document, permanently reduce the Loan Commitment Amount for one (1) or more Tranches, in whole or in part, but only if:

(i)the Borrower demonstrates to DOE's satisfaction that the total funding committed and available to the Project is sufficient to pay all remaining Project Costs in accordance with the then-applicable Construction Budget, Project Milestone Schedule and Base Case Financial Model;

(ii)DOE is satisfied that the proposed reduction or cancellation would not reasonably be expected to cause a Default or an Event of Default;

(iii)the Borrower shall have delivered to DOE by an Acceptable Delivery Method, a certificate, in form and substance satisfactory to DOE, with respect to the matters set forth in clauses (i) and (ii) above; and

(iv)upon such cancellation or reduction, the Borrower shall pay all expenses and other amounts then due with respect to, or as a result of, such cancellation or reduction under this Agreement.

(c)No Reborrowing. Once reduced or canceled, the Loan Commitment Amount with respect to such Tranche may not be increased.

(d)DOE Termination. If any First Advance Date has not occurred by the applicable First Advance Longstop Date, DOE may terminate this Agreement upon no less than ten (10) Business Days' prior written notice to the Borrower.  Once terminated, this Agreement may not be reinstated.

Section 2.03Mechanics for Requesting Advances.

(a)Advance Requests. Subject to the FFB Documents, from time to time during the applicable Availability Period, the Borrower may request Advances under the FFB Documents by delivering, by an Acceptable Delivery Method, to DOE, an appropriately completed request with respect to such Advance or Advances (each, an "Advance Request"), in the form attached as Exhibit A (Form of Advance Request) (as such form may be amended, supplemented or modified from time to time by DOE, the "Form of Advance Request") and otherwise in form and substance satisfactory to DOE exactly twenty (20) Business Days prior to any Requested Advance Date.

(b)Frequency.  The Borrower may request Advances in accordance with clause (a) above no earlier than thirty (30) days from the date of the immediately preceding Advance Request; provided, that: (i) the Borrower shall not deliver an Advance Request more frequently than once per calendar quarter without the prior written consent of DOE; and (ii) in no event shall any Requested Advance Date be: (A) the last three (3) Business Days of any calendar month other than March, June, September or December; (B) the last seven (7) Business Days of March, June, September or December; or (C) during the period September 15 through and including the third (3^rd) Business Day in October.  

Section 2.04Mechanics for Funding Advances.

(a)Advance Funding

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(i)Satisfaction of Conditions. Promptly after receipt of an Advance Request complying with Section 2.03(a) (Advance Requests), DOE shall review such Advance Request to determine whether all certificates and documentation required to be attached thereto have been delivered to DOE.

(ii)Advance Request Approval Notice. With respect to any Advance under the FFB Documents, if DOE determines that all conditions precedent set forth in Article V (Conditions Precedent) in respect of the requested Advance have been satisfied (or waived in writing), then DOE shall issue to FFB an Advance Request Approval Notice no later than three (3) Business Days prior to the Requested Advance Date;

(b)Funding. For any requested Advance for which an Advance Request Approval Notice has been issued pursuant to Section 2.04(a) above and for which no Drawstop Notice has been issued pursuant to Section 2.04(c) below, FFB shall fund such Advance on the Requested Advance Date in accordance with the FFB Note Purchase Agreement and the FFB Note.  Such funds shall be applied as specified in the FFB Documents and in accordance with Section 2.04(e) below hereof; provided, that, if any Drawstop Notice has been issued and is in effect on the Requested Advance Date with respect to any funds received by the Borrower, such funds (together with any additional amounts due thereon or arising therefrom) shall be returned by the Borrower to FFB pursuant to clause (c) below.

(c)Drawstop Notices

(i)Issuance. Following the issuance of any Advance Request Approval Notice by DOE pursuant to clause (a) above and on or prior to the Requested Advance Date, DOE or FFB may, from time to time, issue a notice substantially in the form attached hereto as Exhibit B (Form of Drawstop Notice) (a "Drawstop Notice") to the Borrower and to DOE or FFB, as the case may be, if and only if DOE or FFB, as the case may be, determines that:

(A)any applicable condition set forth in Article V with respect to such Advance is not met, or, having been met, is no longer met; or

(B)to the extent the Advance Request Approval Notice has been issued for any Advance under the FFB Note and the FFB Note Purchase Agreement, the conditions precedent to such Advance contained in the FFB Note and the FFB Note Purchase Agreement are not met, or, having been met, are no longer met and have not been waived by FFB.

(ii)Consequences. If a Drawstop Notice is issued, FFB shall not be obligated to make the requested Advance set forth on such Drawstop Notice; provided, that if FFB makes any such Advance to the Borrower following the issuance of a Drawstop Notice, the Borrower shall return such Advance to FFB within one (1) Business Day following receipt thereof; and, provided further, that any amount required to be returned by the Borrower pursuant to this Section 2.04(c)(ii) shall accrue interest at the Late Charge Rate from the date such Advance is made until such Advance is returned.  Following the return of such Advance, FFB shall deliver an invoice to the Borrower setting forth the interest and other applicable make-whole amount due and payable with respect to such returned amount.  The Borrower shall pay promptly, but in no event later than five (5) Business Days following delivery of such invoice, such interest and other applicable make-whole amounts as directed by FFB, and the Borrower shall pay all costs and expenses incurred by DOE, FFB, or the Collateral Agent as a result of such DOE Advance withdrawal.    

(d)No Liability

(i)The Borrower acknowledges and agrees that DOE shall only be required to use its reasonable efforts to provide FFB with the necessary Advance Request Approval Notices within the

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time frames specified in Section 2.04(a)(ii) above, but DOE shall in any event ensure that FFB receives all such Advance Requests and Advance Request Approval Notices as soon as practicable following receipt from the Borrower of the applicable Advance Requests and necessary certificates and other documentation specified above (subject to the Borrower satisfying all applicable conditions precedent specified in Article V (Conditions Precedent)).

(ii)Neither DOE nor FFB shall have any liability for any action taken (including the delivery of a Drawstop Notice) or omitted to be taken (including the refusal to fund any Advance or Advances following the issuance of a Drawstop Notice) or for any loss or injury resulting from its actions or inaction or its performance or lack of performance of any of its other obligations hereunder unless and solely to the extent such liability arises from the gross negligence or willful misconduct of DOE or FFB as determined by a court of competent jurisdiction in a final, non-appealable judgment.  In no event shall DOE, FFB or any subsequent holder of the FFB Note be liable, and each such Person shall be exempt from liability in accordance with Section 11.08 (Limitation on Liability), in each case: (A) for acting in accordance with, or relying upon, any entitlement order, instruction, notice, demand, certificate or document from the Borrower or any entity acting on behalf of the Borrower; (B) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated; or (C)  in the case of FFB or any subsequent holder of the FFB Note, for acting in accordance with, or relying upon, any Drawstop Notice issued by DOE.

(iii)Notwithstanding anything contained in this Agreement to the contrary, neither DOE nor FFB shall incur any liability to the Borrower, any Affiliate thereof or to any other Secured Party for not performing any act or fulfilling any duty, obligation or responsibility hereunder or under any other Financing Document by reason of any Lender Force Majeure Event; it being understood that DOE or FFB, as the case may be, shall resume performance hereunder as soon as reasonably practicable as the effects of such Lender Force Majeure Event cease to prevent or otherwise hinder DOE or FFB, as applicable, from performing hereunder or thereunder.

(e)Disbursement of Proceeds.

(i)The Borrower shall apply the proceeds of any Advance under a Tranche solely to:

(A)reimburse the Borrower for Eligible Project Costs that have been previously incurred and paid by or on behalf of the Borrower;

(B)from and after the First Advance Date under any Tranche, pay for Eligible Project Costs related to the corresponding Project Phase that have been invoiced and are due and payable or reasonably anticipated to be due and payable within the next ninety (90) day period following the relevant Advance Date (it being understood that at the time of submission of the relevant Advance Request the Borrower shall be in possession of all the invoices, or other documentation reasonably acceptable to DOE, necessary to evidence the incurrence of such Eligible Project Costs); or

(C)fund the Base DSRA Amount in accordance with the Accounts Agreement.

(ii)In no event shall the proceeds of the Advances be:

(A)used to pay interest payments on the Guaranteed Loan, administrative or other fees relating to the Guaranteed Loan or any other amounts due under the Financing Documents (it being understood that the foregoing prohibition in this Section

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2.04(e)(ii) shall not apply to administrative or other similar fees incurred in connection with the completion of the Project to the extent such fees constitute Eligible Project Costs);

(B)disbursed to fund (or reimburse the Borrower or any Borrower Entities for) any contribution under the Base Equity Commitment or Contingent Equity Commitment; or

(C)used to pay any portion of the Project Costs that are not Eligible Project Costs.

Section 2.05Advance Requirements under the FFB Documents. Notwithstanding anything to the contrary contained in this Article II (Funding), the Borrower shall comply with each disbursement requirement set forth in the FFB Documents.  Unless otherwise specified in the FFB Documents, all determinations to be made with respect to the FFB Documents shall be made by DOE.

Section 2.06No Approval of Work. The making of any Advance or Advances under the Financing Documents shall not be deemed an approval or acceptance by any Secured Party of any work, labor, supplies, materials or equipment furnished or supplied with respect to the Project.

Section 2.07Determination of Advance Amounts.

(a)As of any date of any requested Advance, after giving effect to such Advance:

(i)the aggregate outstanding principal amount of all Advances made to the Borrower under the FFB Note shall not exceed eighty percent (80%) of the Eligible Project Costs incurred and paid on or prior to the relevant Requested Advance Date or reasonably anticipated to be paid within ninety (90) days after such Requested Advance Date;

(ii)the outstanding principal amount (excluding, for the avoidance of doubt, any capitalized interest) of the Guaranteed Loan shall not exceed the Maximum Principal Amount;

(iii)the aggregate amount of capitalized interest on all outstanding Advances shall not exceed the Maximum Capitalized Interest Amount;

(iv)the outstanding principal amount under each Tranche shall not exceed the Maximum Tranche Amount for such Tranche; and

(v)based on the aggregate outstanding principal amount of all Advances made to the Borrower under the FFB Note, (A) the most recent Debt to Equity Ratio shall not exceed 54.39:45.61 and (B) the minimum Projected Debt Service Coverage Ratio shall not be less than 1.70:1.00 for each consecutive twelve (12) month period ending on the last day of each fiscal quarterly period following the Commercial Operations Date up to (and including) the Payment Date immediately prior to the Maturity Date (collectively, the "Debt Sizing Parameters").

Article III

Payments; Prepayments

Section 3.01Place and Manner of Payments.

(a)All payments due under the FFB Note shall be made by the Borrower to FFB pursuant to the terms of the FFB Documents.

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(b)All payments to be made to DOE under this Agreement shall be sent by the Borrower in Dollars in immediately available funds before 1:00 p.m. (District of Columbia time) on the date when due to such account as DOE shall direct by written notice to the Borrower not less than five (5) Business Days prior to the date when due.

(c)In the event that the date of any payment to DOE or the expiration of any time period hereunder occurs on a day that is not a Business Day, then such payment or expiration of time period shall be made or occur on the next succeeding Business Day, and such extension of time shall in such cases be included in computing interest or fees, if any, in connection with such payment.

(d)The Borrower understands and agrees that DOE and FFB are agencies or instrumentalities of the United States and that all payments hereunder or under the Financing Documents are payable, and shall in all cases be paid, free and clear of all Taxes.

Section 3.02Maturity and Amortization.

(a)Maturity Date. The Borrower shall repay the outstanding Guaranteed Loan and all accrued and unpaid interest in full on the Maturity Date.

(b)Payments. The FFB Note shall: (i) be stated to mature in consecutive quarterly installments of principal (each, a "FFB Note Installment") payable on each Payment Date, commencing on the First Principal Payment Date (or, if not a Business Day, the next Business Day, unless such next Business Day is one of the last two days of the applicable month, in which case it shall be the immediately preceding Business Day) in the amounts set forth in the amortization schedule set out in Schedule 3.02 (Amortization Schedule); provided that Payment Dates shall not occur on the last two days of any month; and (ii) provide for the capitalization and payment of interest in accordance with Section 3.04 (Interest Provisions Relating to All Advances) and the FFB Documents.

Section 3.03Evidence of Debt.

The entries made in the internal records maintained by or on behalf of DOE, respectively,  evidencing the amounts from time to time: (i) advanced by FFB under the FFB Note Purchase Agreement and the FFB Note; or (ii) paid by or on behalf of the Borrower from time to time in respect thereof, shall constitute, absent manifest error, evidence of the existence and amount of the FFB Note Obligations of the Borrower as therein recorded.

Section 3.04Interest Provisions Relating to All Advances.

(a)Interest Amount and Interest Computations.

(i)Interest shall accrue on the outstanding principal amount of each Advance from the date such Advance is disbursed to the Borrower pursuant to the FFB Note Purchase Agreement and the FFB Note, to the date such Advance is due, in each case, at a rate per annum as specified in the FFB Documents. Except as provided in clause (ii) of this Section 3.04(a) (Interest Amount and Interest Computations), interest accrued on the outstanding principal balance of each Advance shall be due and payable on each Payment Date beginning on the first Payment Date to occur after the date on which such Advance is made, up through and including the Maturity Date.

(ii) For each Advance made prior to the First Interest Payment Date, the amount of accrued interest on the FFB Note that would otherwise be due and payable on each Payment Date to occur before the First Interest Payment Date shall be capitalized on the respective Payment Date and be added to the principal amount due under the FFB Note,and interest shall thereafter accrue on the sum of the

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outstanding principal (including such capitalized interest) at the rate established for such Advance in accordance with paragraph 6 of the FFB Note; provided, that the aggregate amount of accrued interest that may be capitalized for any Tranche shall not exceed the Maximum Capitalized Interest Amount for such Tranche and shall not cause the total outstanding amount under the FFB Note to exceed the applicable Maximum Tranche Amount or to exceed the Maximum Guaranteed Loan Amount.  The amount of interest that shall be capitalized on each Advance shall be determined as set forth in the FFB Note.

(iii)Without limiting the foregoing, all Overdue Amounts shall: (A) accrue interest at the Late Charge Rate through the date of payment; and (B) be payable by the Borrower in accordance with the FFB Documents.

(iv)The Borrower hereby authorizes FFB to record in an account or accounts maintained by FFB on its books: (A) the interest rates applicable to all Advances; (B) the date and amount of each principal and interest payment on each Advance outstanding; and (C) such other information as FFB may determine is necessary for the computation of interest and the Prepayment Price payable by the Borrower under the FFB Note.  The Borrower acknowledges and agrees that all computations of interest and the Prepayment Price by FFB pursuant to this Section 3.04 (Interest Provisions Relating to All Advances) and the FFB Note shall, in the absence of manifest error, be evidence of the amount thereof.  All computations of interest shall be made as set forth in the relevant FFB Document.

(b)Interest Payment Dates. Subject to the terms of the FFB Note Purchase Agreement and the FFB Note, the Borrower shall pay accrued interest on the outstanding principal amount of each Advance: (i) on each Payment Date, as and to the extent specified in Section 3.04(a) above; (ii) on each prepayment date (to the extent thereof); and (iii) at maturity (whether by acceleration or otherwise).

Section 3.05Prepayments.

(a)Terms of All Prepayments.

(i)With respect to any prepayment of any Advance, whether such prepayment is voluntary or mandatory, including a prepayment upon acceleration, the Borrower shall comply with all applicable terms and provisions of this Agreement and the FFB Documents.

(ii)All prepayments of the FFB Note shall be: (A) applied to Advances as specified in the relevant Prepayment Election Notice; and (B) due in an amount equal to the Prepayment Price calculated by FFB in accordance with the terms of the FFB Note.

(iii)The Borrower may not re-borrow the principal amount of any Advance that is prepaid, nor shall any such prepayment create availability for further borrowings during the Availability Period.

(iv)If the Borrower shall fail to make a prepayment to FFB on any Intended Prepayment Date in accordance with this Agreement and the FFB Note, the Borrower shall pay FFB a Late Charge on any Overdue Amount from such Intended Prepayment Date to the date on which payment is made, computed in accordance with the provisions of the FFB Note.

(v)Any prepayment made pursuant to this Section 3.05 (Prepayments) shall be applied: (A) on a pro rata basis to each Tranche (unless otherwise elected by the Borrower); (B) to the specific Advances identified by the Borrower in accordance with the FFB Documents; and (C) in the inverse order of maturity among the outstanding principal amounts of such Advances, or as otherwise specified by the FFB Note or by DOE (and agreed by the Borrower); provided that the Borrower may elect to which Advances (either in part or in full) any prepayment shall be applied.

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(vi)In the event of any prepayment in part or in full of all outstanding Advances under a Tranche in full pursuant to this Section 3.05 (Prepayments), the remaining Loan Commitment Amount for such Tranche shall be deemed to be reduced to zero Dollars ($0), unless otherwise agreed to by DOE.

(vii)Simultaneously with all prepayments of an Advance under the Guaranteed Loan, whether voluntary or mandatory, the Borrower shall pay all accrued and unpaid interest and other fees, costs, expenses and other Secured Obligations then due and payable under the Financing Documents. Any prepayments of the Advances under the Guaranteed Loan in full shall require payment in full of all other Secured Obligations then outstanding.

(b)Voluntary Prepayments.  

(i)Subject to clause (ii) below, the Borrower may at any time and from time to time prepay all or any portion of the outstanding principal amount of any Advance under the FFB Note, upon prior submission of a Prepayment Election Notice by the Borrower to DOE and FFB (with a copy to the Collateral Agent) not less than ten (10) Business Days prior to the Intended Prepayment Date in accordance with the terms hereof and the FFB Note.  

(ii)The Advances may only be prepaid under clause (i) above if either such prepayment includes prepayment in full of all outstanding Advances and all other Secured Obligations under all Tranches, or if in part as follows:  

(A)to the extent that such prepayment is made prior to the expiration of the Availability Period for the Relevant Tranche, (1) such prepayment includes prepayment in full of all outstanding Advances and all other FFB Note Obligations with respect to such Tranche, or (2) such payment includes a partial prepayment of the outstanding Advances and other FFB Note Obligations with respect to such Tranche; provided, that DOE has provided its prior written consent and the remaining Loan Commitment Amount is reduced to zero Dollars ($0); or

(B)to the extent such prepayment is made after the expiration of the Availability Period for the Relevant Tranche, the Borrower has demonstrated to the satisfaction of DOE that, immediately following such prepayment:

(1)each Reserve Account has been fully funded to its required balance in accordance with the Accounts Agreement;

(2)if the Physical Completion Date has not yet occurred, the Physical Completion Date is expected to occur on or before the Physical Completion Longstop Date;

(3)if the Project Completion Date has not yet occurred, the Project Completion Date is expected to occur on or before the Project Completion Longstop Date, and the total funding committed and available to the Borrower is sufficient to pay all remaining Project Costs in accordance with the then-applicable Construction Budget, Project Schedule and Base Case Financial Model; and

(4)the total funding available to the Project is sufficient to pay all Operating Costs in accordance with the then-applicable O&M Budget and Base Case Financial Model; and

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in each case of clauses (A) and (B), no Default or Event of Default has occurred and is continuing, or could reasonably be expected to occur as a result of such prepayment.

(c)Mandatory Prepayments.

(i)Subject to the provisions of the Intercreditor Agreement and any pro rata payment treatment therein, unless otherwise instructed in writing by the DOE, the Borrower shall prepay the Advances upon the occurrence of any of the following events (each, a "Mandatory Prepayment Event") and in the prepayment amounts set forth below (such amounts, the "Mandatory Prepayment Amounts"):

(A)with the amounts received by the Borrower of any performance liquidated damages paid under any Major Project Document that exceed the amount required, as reasonably determined by DOE, to pay to construct, repair or restore the Project, to the extent required to achieve the Debt Service Coverage Ratio set forth in the Execution Date Base Case Financial Model;  

(B)with the amounts received by the Borrower in respect of any of delay liquidated damages paid under any Major Project Document that exceed the amount required, as reasonably determined by the Borrower and agreed by DOE, to pay Project Costs, Operating Costs or Capital Expenditures during the period of the applicable delay, such excess amount, but solely to the extent such excess amount is greater than one million Dollars ($1,000,000) individually or five million Dollars ($5,000,000) in the aggregate in any Fiscal Year;

(C)with the amounts received by the Borrower constituting Loss Proceeds, to the extent (and promptly following determination that) prepayment is required in accordance with Section 7.04 (Event of Loss), such required amount;

(D)with the amounts received by the Borrower of any amount as a result of the termination or repudiation of any Major Project Document that exceeds the reasonable out-of-pocket costs incurred by the Borrower to replace such Major Project Document, such excess amount, but solely to the extent such excess amount is greater than one million Dollars ($1,000,000);

(E)with the amounts received by the Borrower of any amount as a result of a breach of any Project Document (other than termination or repudiation) that exceeds the amount reasonably necessary to remedy the breach, such excess amount, but solely to the extent such excess amount is greater than one million Dollars ($1,000,000);

(F)with the amounts received by the Borrower in respect of any Permitted Disposition in a single transaction or a series of related transactions, that portion of the Net Amount of the proceeds of such Permitted Disposition that is not applied (or reasonably expected to be applied) to the acquisition of replacement assets, but solely to the extent such excess amount is greater than one million Dollars ($1,000,000) individually or five million Dollars ($5,000,000) in the aggregate in any Fiscal Year;  

(G)at the discretion of DOE, on any Payment Date, all funds on deposit in the Restricted Payment Suspense Account if no transfer or distribution of such funds has occurred in the preceding four (4) consecutive Payment Dates;

(H)on each Payment Date following the First Principal Payment Date, the percentage specified below of all funds on deposit in the Excess Cash Account prior to

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any transfers to the Restricted Payment Suspense Account as of such Payment Date (such funds, "Excess Cash" and such prepayment, the "Cash Sweep Mandatory Prepayment"), calculated as of each Payment Date as follows and after giving effect to all other withdrawals and transfers required to be made on such Payment Date pursuant to the Accounts Agreement: (i) if the Debt Service Coverage Ratio is equal to or greater than 1.70:1.00, 25%; (ii) if the Debt Service Coverage Ratio is equal to or greater than 1.50:1.00 and less than 1.70:1.00, 50%;

(I)on the Project Completion Date, in the event that upon (I) the specified pre-completion performance levels set forth in the Reliability Testing Plan have not been achieved in accordance with the Project Milestone Schedule; or (II) any specified long-term performance levels have not been achieved by the corresponding longstop dates, the amount required such that the Debt Service Coverage Ratio is equal to or greater than 1.70:1.00;

(J)a sum equal to any Excess Advance Amount as of any Quarterly Reporting Date;

(K)a sum equal to any Excess Guaranteed Loan Amount as of any date;

(L)a sum equal to such Issuance Proceeds received by the Borrower as of any date;

(M)upon the determination by DOE that any Applicable Law has made it unlawful or impossible for FFB to make Advances or maintain the Guaranteed Loan or any portion thereof, or DOE to guarantee or commit to guarantee FFB the amount of any Advance or to reimburse FFB pursuant to the FFB Documents, or otherwise renders unlawful the performance by DOE or FFB of their respective obligations under the Financing Documents, a sum equal to all outstanding Advances and all other Secured Obligations under the Guaranteed Loan;

(N)one hundred percent (100%) of any Extraordinary Amount received by the Borrower in excess of five million Dollars ($5,000,000) during any Fiscal Year, a sum equal to such Extraordinary Amount;

(O)if the Base Case Financial Model shows that a portion of the Guaranteed Loan is required to be prepaid in order for the Debt Sizing Parameters to be satisfied immediately upon Project Completion, the Borrower shall prepay such portion of the Guaranteed Loan in the amount necessary to satisfy such parameters; provided, however that (i) the Project Completion Date shall not occur until the Borrower has made this prepayment; and (ii) any prepayment pursuant to this clause (i) will reduce the Base Equity Commitment (other than to the extent of pre-completion costs projected to become due and payable up to the Project Completion Date) and, to the extent that the available amount of the Base Equity Commitment is not sufficient to make the required prepayment, the Contingent Equity Commitment, in each case, to the extent of the funds actually contributed to the Borrower to fund such prepayment; and

(P)upon the occurrence or non-occurrence of any event the result of which is that a project that was previously an Eligible Project no longer qualified as an Eligible Project the Borrower shall prepay such portion of the Guaranteed Loan in the amount equal to the sum of the disbursements to the Borrower related to such project plus

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any capitalized interest related to such amount plus fees and costs incurred by DOE related to such project.

Any Mandatory Prepayments shall be made on the Intended Prepayment Date set forth in the relevant Prepayment Election Notice delivered pursuant to this Section 3.05 (Prepayments), which Intended Prepayment Dates shall be the date required for such Mandatory Prepayment pursuant to this Section 3.05(c) (Mandatory Prepayments) but in no event later than fifteen (15) Business Days after the occurrence of such Mandatory Prepayment Event (unless DOE otherwise consents).  

(iii)With respect to any Mandatory Prepayment Event, at any time prior to Project Completion or, following Project Completion, to the extent that the Restricted Payment Conditions are not satisfied as of the immediately preceding Payment Date or are not expected to be satisfied as of the next Payment Date, during the period commencing on the date DOE received notice of such Mandatory Prepayment Event and ending on the Intended Prepayment Date, DOE may direct the Borrower in writing to transfer funds equal to the corresponding Mandatory Prepayment Amount due and owing to the Prepayment Reserve Account to be utilized in accordance with the Accounts Agreement, and upon such transfer the obligation of the Borrower to make such prepayment shall be waived up to the amount of such transferred funds. DOE may at any time, in its discretion, elect to apply funds on deposit in the Prepayment Reserve Account to prepayment of the Guaranteed Loan in accordance with the Accounts Agreement.

Article IV

Reimbursement and Other Payment Obligations

Section 4.01Reimbursement and Other Payment Obligations.

(a)The Borrower shall pay to DOE the Facility Fee on or before the Execution Date.

(b)The Borrower shall pay to DOE (i) the initial Maintenance Fee on or before the Execution Date, and (ii) each subsequent Maintenance Fee on or before January 1 (or if not a Business Day, the first Business Day thereafter) of each year after the Execution Date until the date on which the Guaranteed Loan has been paid in full; provided, that the Maintenance Fee shall be pro-rated for any partial calendar year.

(c)The Borrower shall pay to DOE (or, to the extent applicable, reimburse DOE), or such other Person as DOE shall direct in writing, as follows:

(i)a sum, in Dollars, equal to the total of all amounts payable by DOE to FFB pursuant to the DOE Guarantee (a “DOE Guarantee Payment”) which relate to, or arise out of, the FFB Documents or FFB providing or having provided financing under the FFB Note (such amounts, "Reimbursement Amounts"), which Reimbursement Amounts shall be due and payable to DOE by the Borrower as of the date on which DOE makes the DOE Guarantee Payment to which they relate;

(ii)all documented Secured Party Expenses paid or incurred in connection with:

(A)whether or not the transactions contemplated by this Agreement or the Financing Documents are consummated, the due diligence of the Borrower, the other Borrower Entities and the Project, and the preparation, negotiation, drafting, execution and recording of this Agreement, the other Transaction Documents and any other documents and instruments related to this Agreement or thereto (including legal opinions);

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(B)any amendment or modification to, or the protection or preservation of any right or claim under, or consent or waiver in connection with, this Agreement or any other Transaction Document, any such other document or instrument related to this Agreement, such other Transaction Document or any Collateral;

(C)the administration, preservation in full force and effect and enforcement of this Agreement, the other Transaction Documents and any other documents and instruments referred to herein or therein (including the fees and disbursements of counsel for DOE and travel costs);

(D)the servicing, administration and monitoring of the Project throughout the term of the Guaranteed Loan, including in connection with any difficulty experienced by the Project relating to technical, environmental commercial, financial or legal matters or other events—included in such expenses shall be the fees and expenses of DOE’s independent consultants and advisors (including legal counsel), to the extent that such fees and expenses are incurred directly by DOE and to the extent such third parties are not paid directly by or on behalf of the Borrower; and

(E)any foreclosure against, sale or other disposition of any Collateral securing the Secured Obligations from time to time, or pursuit of any other remedies under any of the Financing Documents, to the extent such costs and expenses are not recovered from such foreclosure, sale or other disposition; and

(iii)to the extent permitted by Applicable Law, interest on any and all amounts described in this Article IV (Reimbursement and Other Payment Obligations) (other than Financing Document Amounts, interest on which shall accrue and be payable only to the extent (including subject to any conditions provided for therein and any defenses of the Borrower thereunder or in respect thereof), at the times, in the manner and in the amounts provided for in the Financing Documents (excluding this Section 4.01 (Reimbursement and Other Payment Obligations))) from the date payable by DOE under the Program Financing Agreement until payment thereof in full by the Borrower, at the Late Charge Rate.

(d)Upon any Event of Default (and after the expiration of any applicable cure period), in the reasonable discretion of DOE, interest shall accrue on the outstanding principal amount of the Guaranteed Loan at the rate of up to two percent (2.0%) per annum over and above the Interest Rate specified in the FFB Note (the "DOE Default Interest Rate"), payable to DOE on each Payment Date during the period commencing on the date of such Event of Default until the date such Event of Default is cured or waived in writing and is no longer continuing.  

(e)If an amendment, modification, consent, waiver or change to or in respect of any provision of this Agreement or any other Financing Document constitutes a "modification" (as defined in Section 502(9) of FCRA) increases the amount of the Credit Subsidy Cost (as calculated in accordance with FCRA and OMB Circular A-11), and as determined by OMB in its sole discretion), such amendment, modification, consent, waiver or change shall be subject to the availability to DOE of funds appropriated by the U.S. Congress or, to the extent permitted by Applicable Law, payment by the Borrower to meet the amount of any such increase in the Credit Subsidy Cost prior to such amendment, modification, consent, waiver or change pursuant to Section 11.01 (Waiver and Amendment).

(f)In accordance with Section 609.13(a) of the Applicable Regulations, the Borrower shall not:  (i) request that any Guaranteed Loan or any portion or proceeds derived thereof be used; or (ii) use any other funds obtained from the U.S. federal government or from a loan or other instrument guaranteed by the U.S. federal government, in either case for the payment of any costs, fees or expenses payable under

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this Section 4.01 (Reimbursement and Other Payment Obligations), except to the extent explicitly authorized by the U.S. Congress.

(g)The Borrower shall pay to DOE any fees that DOE may assess or incur from time to time in connection with any amendment, consent or waiver in connection with this Agreement or any other Financing Document.

(h)All fees payable to DOE hereunder shall be paid on the dates due, in immediately available funds in Dollars to DOE and shall be non-refundable upon payment.

(i)All amounts payable to DOE hereunder, including Reimbursement Amounts, shall be paid without counterclaim or set-off (unless otherwise specified herein) by wire transfer to the following account, or to such other account as may be specified by DOE from time to time:

ABA No. [***]

Section 4.02Subrogation. In furtherance of and not in limitation of DOE's right of subrogation, the Borrower acknowledges that, to the extent of any payment made by DOE of Reimbursement Amounts, DOE shall be fully subrogated to the extent of any such payment, and any additional interest due on any late payment, to the rights of FFB under the FFB Note, the FFB Note Purchase Agreement and any other Financing Documents.  The Borrower acknowledges and agrees to such subrogation and shall execute such instruments and take such actions as DOE may reasonably request to evidence such subrogation and to perfect the right of DOE to receive any amounts paid or payable thereunder.  If and to the extent that DOE shall be fully and indefeasibly reimbursed in cash or immediately available funds by the Borrower pursuant to Section 4.01 (Reimbursement and Other Payment Obligations) in respect of any payment made by DOE of Reimbursement Amounts, such reimbursement shall be deemed to constitute an equal and corresponding payment in respect of DOE's rights of subrogation hereunder in respect of such payment of Reimbursement Amounts.

Section 4.03Obligations Absolute.

(a)The obligations of any Borrower entity under this Article IV (Reimbursement and Other Payment Obligations) shall be absolute and unconditional, and shall be paid or performed strictly in accordance with this Agreement under all circumstances irrespective of:

(i)any lack of validity or enforceability of, or any amendment or other modifications of, or waiver with respect to the FFB Note, this Agreement or any other Financing Document;

(ii)any exchange or release of any other obligations hereunder;

(iii)the existence of any claim, setoff, defense (other than a defense of payment or performance), reduction, abatement or other right that any Borrower Entity may have at any time against DOE or any other Person;

(iv)any document presented in connection with any Financing Document proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

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(v)any payment by DOE pursuant to the terms of the Program Financing Agreement against presentation of a certificate or other document which does not strictly comply with terms of such Program Financing Agreement;

(vi)any breach by any Borrower Entity of any representation, warranty or covenant contained in any of the Financing Documents;

(vii)except to the extent prohibited by mandatory provisions of Applicable Law, status as, and any other rights of, a "debtor" under the UCC as in effect from time to time in the State of New York or under the Applicable Law of any other relevant jurisdiction;

(viii)any duty on the part of DOE to disclose any matter, fact or thing relating to the business, operations or financial or other condition of any Borrower Entity now known or hereafter known by DOE;

(ix)any disability or other defense (other than a defense of payment or performance) of any Borrower Entity or any other Person;

(x)any act or omission by DOE that directly or indirectly results in or aids the discharge of any Borrower Entity or any other Person, by operation of law or otherwise;

(xi)any change in the time, manner or place of payment of, or in any other term of, all or any of its obligations or liabilities hereunder or any compromise, renewal, extension, acceleration or release (other than a release of such obligations of the Borrower under this Article IV (Reimbursement and Other Payment Obligations)) with respect thereto, any change in the Collateral securing its obligations or liabilities hereunder or any other Financing Document or any amendment or waiver of or any consent to departure from any other guarantee for all or any of its obligations or liabilities hereunder or any other Financing Document;

(xii)any change in the corporate structure or existence of any Borrower Entity;

(xiii)any exchange, taking or release of Collateral;

(xiv)any application of Collateral to the Secured Obligations; or

(xv)any other circumstances or conditions, foreseen or unforeseen, now existing or hereafter occurring, that might otherwise constitute a defense available to, or discharge of, any Borrower Entity in respect of any Financing Document (other than a defense of payment or performance).

(b)The Borrower and all others who may become liable for all or part of the obligations of the Borrower under this Agreement agree to be bound by this Article IV (Reimbursement and Other Payment Obligations) and, to the extent permitted by Applicable Law:

(i)waive and renounce any and all redemption and exemption rights and the benefit of all valuation and appraisement privileges against the indebtedness and obligations evidenced by any Financing Documents or by any extension or renewal thereof;

(ii)waive presentment and demand for payment, notices of non-payment and of dishonor, protest of dishonor and notice of protest, except as expressly provided otherwise in this Agreement;

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(iii)waive all notices in connection with the delivery and acceptance hereof and all other notices in connection with the performance, default or enforcement of any payment hereunder except as required hereby or by the other Financing Documents;

(iv)waive all rights of abatement, diminution, postponement or deduction, and any defense (other than a defense of payment or performance), that any party to any Financing Document or any beneficiary thereof may have at any time against DOE or any other Person, or out of any obligation at any time owing to DOE or FFB;

(v)agree that its liabilities hereunder shall be unconditional and without regard to any setoff, counterclaim or the liability of any other Person for the payment hereof;

(vi)agree that any consent, waiver or forbearance hereunder with respect to an event shall operate only for such event and not for any subsequent event;

(vii)consent to any and all extensions of time that may be granted by DOE or FFB with respect to any payment hereunder or other provisions hereof and to the release of any security at any time given for any payment hereunder, or any part thereof, with or without substitution, and to the release of any Person or entity liable for any such payment;

(viii)waive all defenses and allegations based on or arising out of any contradiction or incompatibility among its obligations or liabilities hereunder and any of its other obligations;

(ix)waive, unless and until its obligations or liabilities hereunder have been performed, paid, satisfied or discharged in full, any right to enforce any remedy that DOE or FFB now has or may in the future have against any Borrower Entity or any other Person;

(x)waive any benefit of, or any right to participate in, any guarantee or insurance whatsoever now or in the future held by DOE or FFB;

(xi)waive the benefit of any statute of limitations affecting its liability hereunder; and

(xii)consent to the addition or release of any and all other makers, endorsers, guarantors and other obligors for any payment hereunder, and to the acceptance or release of any and all other security for any payment hereunder, and agree that the addition or release of any such obligors or security shall not affect the liability of the parties hereto for any payment hereunder.

(c)The Borrower shall remain liable for its reimbursement and other payment obligations under this Agreement and the other Financing Documents until such obligations have been irrevocably paid or otherwise satisfied and discharged in full in accordance with this Agreement and the other Financing Documents, and nothing except irrevocable payment, satisfaction or discharge in full thereof in accordance with this Agreement and the other Financing Documents shall release the Borrower from such obligations.

(d)Except as expressly provided herein, the obligations and liabilities of the Borrower under this Agreement or the other Financing Documents shall not be conditioned or contingent upon the pursuit or exercise by DOE, FFB or any other Person at any time of any right or remedy (nor shall such obligations and liabilities be affected, released or modified by any action, failure, delay or omission by DOE, FFB or any other Person in the enforcement or exercise of any right or remedy under Applicable Law) against any Person that may be or become liable in respect of all or any part of the obligations and liabilities of the Borrower under this Agreement or the other Financing Documents.

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Section 4.04Evidence of Payment. In the event of any payment by DOE that is required to be reimbursed or indemnified by the Borrower, the Borrower shall accept written evidence of billing and payment by DOE as evidence, absent manifest error, of the existence and amount thereof.

Section 4.05Payment of Financing Document Amounts.

(a)Anything in this Article IV (Reimbursement and Other Payment Obligations) to the contrary notwithstanding, including Section 4.04 (Evidence of Payment):

(i)amounts payable by the Borrower pursuant to Section 4.01 (Reimbursement and Other Payment Obligations) in respect of payments made or required to be made by DOE to FFB on account of Financing Document Amounts shall be payable by the Borrower only to the extent (including subject to any conditions provided for in the Financing Documents and any defenses of the Borrower under the Financing Documents), at the times, in the manner and in the amounts that such Financing Document Amounts would otherwise have been payable by the Borrower under the Financing Documents (including, for the avoidance of doubt, on an accelerated basis following the occurrence of an Event of Default);

(ii)amounts payable by the Borrower under Section 4.01 (Reimbursement and Other Payment Obligations) shall be without duplication of any amounts payable by the Borrower pursuant to: (A) this Agreement; (B) the FFB Note; (C) the FFB Note Purchase Agreement; (D) the subrogation rights referred to in Section 4.02 (Subrogation); or (E) the provisions of Section 11.07 (Indemnification); and

(iii)no amount shall be payable by the Borrower under Section 4.01 (Reimbursement and Other Payment Obligations) in respect of payments made or required to be made by DOE to FFB in respect of any liability, loss, cost or expense relating to or arising out of any sale, assignment or other transfer of the FFB Note or portion thereof by FFB to DOE, except during the continuance of an Event of Default.

(b)If an event permitting the acceleration of any Advance and/or the FFB Note shall at any time have occurred and be continuing, and such acceleration of any Advance and/or the FFB Note shall at such time be prevented by reason of the pendency against the Borrower or any other Person of a case or proceeding under a bankruptcy or insolvency law, the Borrower acknowledges and agrees that, for purposes of this Agreement and its obligations hereunder, in respect of any payment made by DOE to FFB, such Advance and/or the FFB Note shall be deemed to have been accelerated with the same effect as if such Advance and/or the FFB Note had been accelerated in accordance with the terms of the FFB Documents.

Article V

Conditions Precedent

Section 5.01Conditions Precedent to the Execution Date. The obligation of DOE to execute this Agreement and deliver to FFB the Principal Instruments in accordance with Section 4.2 of the FFB Note Purchase Agreement required for FFB to purchase the FFB Note on the Execution Date, and the obligation of FFB to thereupon deliver an acceptance notice pursuant to Section 5.1 (Acceptance or Rejection of Principal Instruments) of the FFB Note Purchase Agreement shall be subject to the prior satisfaction (or waiver in writing) of each of the following conditions precedent as of the Execution Date (the "Execution Date Conditions Precedent") as determined by (x) in all cases, DOE; and (y) with respect to any documents or instruments addressed to FFB or to which FFB is a party, FFB:

(a)Due Diligence Review. Completion by DOE of its due diligence review of the Borrower Entities, the Project and all other matters related thereto, including evidence that no material issues

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exist with respect to the Project under the laws of the State of Montana or any subdivision or local jurisdiction thereof.

(b)KYC Requirements. Receipt by DOE of:

(i)evidence that the Borrower Entities have established proper operating and credit policies and procedures (including, "know your customer" and anti-money laundering policies) to ensure, inter alia, proper credit, risk and conflicts of interest management;

(ii)all documentation (including taxpayer identification documents) and other information in respect of: (A) any Borrower Entity; (B) any Person holding, directly or indirectly, ten percent (10%) or more of the Equity Interests of the Borrower (other than a Qualified Public Company Shareholder or any person holding Equity Interests through a Qualified Investment Fund) or any other Major Project Participant (the "KYC Parties") to the extent required by any Secured Party to enable it to be satisfied with the results of all "know your customer" and other requirements (including, the Anti-Money Laundering Laws); and

(iii)confirmation by each Secured Party of the completion of its respective "know your customer" diligence in respect of each KYC Party.  

(c)Consultant Reports. Receipt by DOE of a report addressed to DOE from each of:

(i)the Independent Engineer;

(ii)the Market Consultant;

(iii)the Environmental Consultant;

(iv)the Financial Advisor;

(v)the Insurance Consultant; and

(vi)any other Secured Party Advisor required by DOE.

(d)Transaction Documents. To the extent not already delivered, receipt by DOE of:

(i)fully executed originals (in sufficient counterparts for each of DOE, FFB and the Collateral Agent), or copies thereof if permitted by DOE, of each applicable Financing Document; and

(ii)fully executed copies of each Major Project Document and each other Project Document that is in effect at such time, together with a certificate of a Responsible Officer of the Borrower, certifying that:

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this clause (ii);

(C)each such Project Document is in full force and effect; and

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(D)all conditions precedent to the effectiveness of each such Project Document (if any) have been satisfied (or waived in accordance with their terms).

(e)Borrower FFB Documents. Receipt by DOE of each of the documents, including the Borrower Instruments, the Certificate Specifying Authorized Borrower Officials and the Opinion of Borrower's Counsel re: Borrower Instruments that are required to be delivered by the Borrower to FFB pursuant to Section 3.2 (Borrower Instruments) of the FFB Note Purchase Agreement.

(f)Organizational Documents. Receipt by DOE of the Organizational Documents of each Borrower Entity (other than Affiliated Major Project Participants that are not Specified AMPPs), accompanied in each case by an Officer's Certificate substantially in the form attached as Exhibit C (Form of Officer's Certificate) hereto of such Borrower Entity, certified by a Responsible Officer thereof, attaching:

(i)True, correct and complete copies of good standing certificates, incumbency certificates, resolutions and any other documents as DOE shall reasonably request, with respect to, inter alia, approval of:

(A)each such Borrower Entity's participation in the Project;

(B)the financing therefor (including the Guaranteed Loan and this Agreement) and the granting of Liens to secure the Secured Obligations; and

(C)the execution, delivery and performance by such Borrower Entity of the Transaction Documents to which it is party;

(ii)a current corporate chart, including the Borrower Entities, each of its Subsidiaries, and the Sponsor’s direct equity investors;

(iii)a capitalization table of the Borrower setting out the Direct Parent, CMR, Calumet Parent and each indirect beneficial owner of the Borrower of more than ten percent (10%) (other than any holders of the equity in Calumet Parent, any limited partners of Warburg Pincus, any other Qualified Public Company Shareholder or any person holding interests through a Qualified Investment Fund); and

(iv)an organizational chart demonstrating the management and governance structure of the Borrower Entities and identifying key persons of each Borrower Entity;

provided, however, that with respect to any Sponsor that is a publicly-traded company, DOE shall only require information that is publicly available.

(g)Execution Date Certificates. Receipt by DOE of:

(i)a closing certificate from a Responsible Officer of each Borrower Entity, dated as of the Execution Date, substantially in the form of Exhibit D (Form of Closing Certificate) (the "Closing Certificate");

(ii)[reserved]; and

(iii)a certificate from a Responsible Officer of the Borrower and each other Borrower Entity, dated as of the Execution Date, substantially in the form of Exhibit E (Form of Tax Certificate) (the "Tax Certificate") certifying that: (a) DOE’s execution and delivery of this Loan Guarantee Agreement and issuance of the DOE Loan Guarantee; and (b) any determination by DOE that

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any Project Costs are Eligible Project Costs, in each case, (x) does not prejudice or otherwise have any binding effect with respect to any determination by the Internal Revenue Service, the U.S. Department of Treasury or a court of law as to the tax basis of the Project or any part thereof under the Code, (y) does not constitute a determination regarding, and is unrelated to whether the Borrower, such other Borrower Entity or the Project has complied or will comply with, Federal tax law and (z) will not be used to demonstrate or prove the Borrower or such other Borrower Entity or the Project complied with the requirements to claim a tax credit or other amount under the Code in an administrative or judicial proceeding.

(h)Eligible Project Costs. Receipt and approval by DOE of all information with respect to the Eligible Project Costs incurred and paid by the Borrower as of the Execution Date for which the Borrower expects to be reimbursed, including such breakdowns or other information as DOE may request, all certified by a Responsible Officer of the Borrower as being true, correct and complete.

(i)Base Case Financial Model. Receipt by DOE of either:

(i)a certification from the chief financial officer or similar officer of the Borrower that:

(A)there are no material changes to the Original Base Case Financial Model; and

(B)there are no material changes to the assumptions therein, accompanied by a certificate from the Financial Advisor concurring with the Borrower’s assessment and assumptions set out in its certification; or

(ii)a certified updated Base Case Financial Model (the "Execution Date Base Case Financial Model") demonstrating consistency with the Debt Sizing Parameters for each consecutive twelve (12) month period ending on each Calculation Date set out therein, accompanied by:

(A)a certificate from the chief financial officer or similar officer of the Borrower that includes a written explanation from the Borrower of all variances in the Original Base Case Financial Model; and

(B)a letter from the Financial Advisor confirming:

(1)the mathematical accuracy of the computations therein;

(2)the consistency in all material respects with the Original Base Case Financial Model, the Construction Budget and the Project Milestone Schedule; and

(3)that such updated Base Case Financial Model demonstrates the required financial ratios as set forth above.

(j)Project Schedules. Receipt by DOE of an agreed schedule of construction and other milestones for the Project, including payment milestones, in accordance with the Construction Contracts and meeting the criteria set out in Schedule 5.01(j) (Project Milestone Schedule) (collectively, as such milestones may be modified from time to time as provided hereunder, the "Project Milestones" and such schedule as may be modified from time to time as provided hereunder, the "Project Milestone Schedule"), in scheduled chronological order, that the Borrower will need to satisfy in order to achieve the Project Completion Date, together with the anticipated completion dates for each of the Project Milestones and the anticipated costs and expenses that the Borrower expects to incur in connection with, and upon the completion of, each of the Project Milestones.

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(k)Construction Budget. Receipt by DOE of a construction budget for Phase 2, in the form of Exhibit F (Form of Construction Budget) hereto, that:

(i)sets forth, on a monthly basis in a level of detail, all Project Costs necessary to design, develop, construct and start-up Phase 2 through Project Completion(including the amount of any Project Costs paid up to and including the date of such construction budget); and

(ii)specifies on a line item and aggregate basis for all Project Costs for Phase 2, including (A) the portions of any Project Costs that constitute Eligible Project Costs; and (B) the amount of any Budgeted Contingency (the "Initial Construction Budget").

(l)O&M Budget. To the extent not included in the Base Case Financial Model, receipt by DOE of the initial O&M Budget to be in effect from the Execution Date through December 31 of the Fiscal Year in which the Execution Date occurs and for each annual period (and any stub period) prior to Project Completion Date.

(m)Insurance; Insurance Consultant Report. Receipt by DOE of:

(i)true, correct and complete copies of each policy of Required Insurance then required to be in effect in accordance with Section 7.03 (Insurance) and Schedule 7.03 (Required Insurance), each in full force and effect and compliant with such other requirements regarding coverage, deductibles, exceptions and premiums as set out in Schedule 7.03 (Required Insurance);

(ii)a Broker's Letter of Undertaking as set out in Annex A (Form of Broker’s Letter of Undertaking) to Schedule 7.03 (Required Insurance) (acceptable to DOE in respect of the Required Insurance); and

(iii)a report from the Insurance Consultant in respect of the Project and the Required Insurance, the adequacy of insurance coverage to be maintained and such other insurance-related matters as DOE may request.

(n)Real Estate. Receipt by DOE of:

(i)one or more draft title commitment from the Title Company to issue an ALTA extended coverage loan policy of title insurance with full-upfront mechanic’s lien coverage as provided in using the attached CLTA 122.2-06 or equivalent for the Leasehold Mortgage and, if applicable, the Subleasehold Mortgage;

(ii)evidence of title to or leasehold, subleasehold or easement interests in any Real Property or fixture interests (including easements) required for the operation of Phase 1 that will constitute part of the Collateral;

(iii)evidence that all easements, rights-of-way, zoning compliances, entitlements, and other land rights necessary for Phase 1 shall have been obtained, including, all easements, rights-of-way, zoning compliances, entitlements, and other land rights required to be obtained and are not subject to any pending or threatened contest or dispute by any Governmental Agency or Major Project Participant pursuant to the Transaction Documents to which such Major Project Participant is a party or that are necessary for the performance of their obligations under such Transaction Documents;

(iv)delivery of the Project Ground Lease and a memorandum thereof in recordable form as approved by Title Company, each duly executed by CMR and the Borrower, into an escrow to be released on the First Advance Date under Tranche 1; and

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(v)true and correct copies of any related material documents requested by DOE.

(p)Utilities. Receipt by DOE of evidence that the Borrower (i) has in place all power, water, wastewater, transportation, communications and other utilities and infrastructure necessary for construction and operation of the Project and other facilities that are adjacent or co-located operated by the Borrower or any other Borrower Entity to the extent that those facilities are required for the construction and operation of the Project or are sharing resources with the Project, in each case in accordance with the MSA, relevant Utility Contracts and Required Approvals; and (ii) has secured for each utility the capacity necessary to sustain operations for the Project and other facilities, as applicable.

(q)Intellectual Property. Receipt by DOE of:

(i)a true, correct and complete copy of each Project IP Agreement executed by the Borrower and the counterparty thereto, and confirmation that the licenses included therein remain in full force and effect; and

(ii)the Borrower’s certification, to DOE’s reasonable satisfaction based on its own due diligence, that:

(A)the Borrower exclusively owns all Project IP, or has rights to use all Project IP pursuant to a Project IP Agreement, and confirmation that the licenses included in such Project IP Agreement remain in full force and effect;

(r)Legal Opinions. Receipt by DOE and the other Secured Parties of executed copies of the following legal opinions (including originals thereof, as required) in respect of the Borrower and each Major Project Participant, dated as of the Execution Date and addressed to the Secured Parties:

(i)the legal opinion of Latham & Watkins LLC, as New York counsel to the Borrower Entities (except for Warburg Pincus); and

(ii)the legal opinion of Holland & Hart LLP as Montana local counsel to the Borrower Entities (except for Warburg Pincus).

(s)Financial Statements. Receipt by DOE of the Historical Financial Statements, in each case, from the Borrower  and Direct Parent (whether consolidated or on an individual basis), and certified by a Responsible Officer thereof, as applicable, that such Historical Financial Statements fairly present, in all material respects, the financial condition of such Borrower Entities, as applicable, as at the dates indicated and the results of its operations and their cash flows for the relevant periods, in each case, in accordance with the Designated Standard applied on a basis consistent with prior years, subject, in the case of unaudited Financial Statements, to changes resulting from the absence of notes and normal audit and year-end adjustments, as applicable.

(t)Required Approvals. Receipt by DOE of:

(i)the Phase 1 Required Approvals Schedule, (A) setting out in Part A all Required Approvals required for the continued ownership and maintenance of Phase 1 (except those approvals that, by their nature, cannot be obtained at the current stage of the Project, provided that the failure to obtain any such permit is not related to any act or failure to act by or on behalf of the Borrower) and (B) setting out in Part B a schedule of obtaining all Required Approvals not yet received as of the Execution Date identifying pending status, steps taken and expected date of procurement, together with a certificate of a Responsible Officer of the Borrower with respect thereto; and

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(ii)fully executed copies of each Required Approval listed on Part A of the Required Approvals Schedule, together with a certificate of a Responsible Officer of the Borrower, certifying that:

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this clause 5.01(t)(ii);

(C)each such Required Approval has been validly issued, is in full force and effect and Non-Appealable; and

(D)all conditions precedent to the effectiveness of each such Required Approval has been satisfied.

(u)Accounts. Receipt by DOE of evidence that each Project Account shall have been established in accordance with the provisions of the Accounts Agreement and, if applicable, funded to the extent of any amounts required to have been deposited prior to the Execution Date in accordance with the Financing Documents.

(v)Payment of the Fees. Receipt by DOE of the Facility Fee and the initial payment of the Maintenance Fee.

(w)Fees and Expenses. Receipt by DOE of:

(i)payment in full or reimbursement of all fees required to be paid on or prior to the Execution Date and all Secured Party Expenses and other fees or expenses (if any) then due and payable in accordance with Section 4.01 (Reimbursement and Other Payment Obligations); and

(ii)(A) reimbursement of all fees and Secured Party Expenses of any Secured Party Advisors incurred in connection with the Project and invoiced prior to the Execution Date; or (B) confirmation that such fees and Secured Party Expenses have been paid directly, in each case from funds other than the proceeds of the Guaranteed Loan.

(x)[Reserved].

(y)Authorization to Borrower’s Accountant. Receipt by DOE of evidence that:

(i)the Borrower has appointed an independent certified public accounting firm acceptable to DOE (the "Independent Auditor");

(ii)the Independent Auditor has certified the adequacy of the Borrower’s accounting and information systems; and

(iii)the Borrower has irrevocably instructed the Independent Auditor to communicate directly with DOE regarding the Borrower’s accounts, operations and all other matters set forth in Section 7.11 (Books, Records and Inspections).

(z)Appointment of Process Agent. Receipt by DOE of evidence that:

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(i)each Borrower Entity and each Major Project Participant that has executed Direct Agreements, in each case that is non-U.S. domiciled, shall have irrevocably appointed an agent for service of process as required pursuant to the relevant Financing Documents to which it is a party;

(ii)such agent has been duly appointed and holds such appointment without reservation until earlier of (A) six (6) months after the Maturity Date and (B) for Major Project Participants, six (6) months after the scheduled term of the applicable Major Project Document (or such earlier date as may be agreed by DOE); and

(iii)all fees of such agent have been paid in full through the term of the engagement.

(aa)Representations and Warranties. Each of the representations and warranties made (or deemed made) by any Borrower Entity or Major Project Participantin any Transaction Document are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by "materiality," "material adverse effect" or a similar qualifier, in which case it is true and correct in all respects) as of such date, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty is true and correct as of such date or time).

(bb)Material Adverse Effect. No event (including a change in law) shall have occurred that has or could reasonably be expected to have a Material Adverse Effect.

(cc)Certain Events. (i) No Default, Event of Default, Event of Force Majeure or Event of Loss has occurred and is continuing or would reasonably be expected to occur as of the Execution Date and (ii) no default, event of default or condition that with notice or the passage of time would become a default or event of default exists and is continuing under the Permitted Indebtedness.

(dd)SAM Registration. Receipt by DOE of evidence of the registration by the Borrower in SAM.

(ee)Lobbying Certification. Receipt by DOE of each Borrower Entity’s completed "Disclosure Form to Report Lobbying" (Standard Form LLL).

(ff)Environmental Review. DOE shall have completed its environmental review and related consultation under NEPA and shall have received:

(i)evidence that the Borrower has provided all environmental analyses and other information needed for the satisfactory completion of the environmental review pursuant to NEPA; and

(ii)a bring down report and related reliance letter, acceptable in scope and content to DOE with respect to any of the issues, conditions, or concerns identified in the January 2023 ERM Report, the Health, Safety, and Environmental Assessment Report Part 1 – Asset Integrity, Process Safety Management, Air Compliance, and Environmental Liability dated March 20, 2020, or the Health, Safety, and Environmental Assessment Report Part 2 – Management Systems, Storm Water, Wastewater, DOT, Safety & Security, and Waste Management dated April 21, 2020.

(gg)Davis-Bacon Act.  Receipt by DOE of a certificate from the Borrower certifying that (A) the clauses set forth in Exhibit G (Davis-Bacon Act Contract Provisions) and the appropriate wage determination(s) of the Secretary of Labor have been included in each Davis-Bacon Act Covered Contract existing as of the Execution Date; and (B) the Borrower and each DBA Contract Party under each Davis-

32

Bacon Act Covered Contract existing on or prior to the Execution Date have taken all necessary steps to comply with and are in compliance (including retroactive compliance) with the Davis-Bacon Act Requirements.

(hh)Program Requirements. Receipt by DOE of evidence that all Program Requirements required to have been satisfied as of the Execution Date have been satisfied.

(ii)Action Memoranda. Receipt by DOE of one or more action memoranda executed by the Secretary of Energy approving and authorizing:

(i)the execution by DOE of the Financing Documents to which it is a party and the transactions contemplated thereby;

(ii)any provisions in the Transaction Documents that constitute material changes to the terms and conditions set forth in the Term Sheet; and

(iii)the apportionment of the Credit Subsidy Cost.

(jj)Credit Subsidy Cost. Receipt by DOE of evidence that:

(i)OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost;

(ii)OMB has approved the Apportionment and Reapportionment Schedule (Standard Form 132) with respect to the Credit Subsidy Cost; and

(iii)the apportionment of the Credit Subsidy Cost has occurred.

(kk)Inter-Agency Consultations and Approvals. DOE shall have engaged in all required consultations, obtained all required approvals, and satisfied all applicable legal requirements in connection with execution and performance by DOE of the Financing Documents.

(ll)Employment Projections. Receipt by DOE of projections for temporary and permanent jobs created or maintained in the U.S. as a result of the Project for each Fiscal Year occurring during the term of the Guaranteed Loan.

(mm)Community Benefits Plan. Receipt by DOE of a Community Benefits Plan in respect of the Project.

(nn)Credit Rating. Receipt by DOE of a final credit rating for the Project at least equal to the initial credit rating for the Project in connection with the Application (or an equivalent rating) at least 30 days and not more than 90 days prior to the Execution Date from a nationally recognized statistical rating organization.

(oo)[Reserved].

(pp)No Changes. There have been no material changes to the terms and conditions contained in the Term Sheet other than those changes agreed to by DOE, and the Financing Documents reflect those terms and conditions.

(qq)Compliance with Laws. Receipt by DOE of evidence that each Borrower Entity shall have complied with all Applicable Laws relating to the development, construction, completion, ownership, operation, and maintenance of the Project (including Environmental Laws, Davis-Bacon

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Requirements, Patriot Act, the Cargo Preference Act of 1954, as amended, Foreign Asset Control Regulations, Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws and all state and local licensing requirements).

Release of Existing Liens. Receipt by DOE of evidence that

(i)all existing Indebtedness of the Borrower (other than Permitted Indebtedness) has been repaid in full, and

(ii)all Liens encumbering any Collateral (other than the Permitted Liens) have been released, and, as necessary or appropriate, such releases have been recorded with the relevant Governmental Authorities.

(ss)Additional Conditions Precedent. Additional conditions precedent, if any, to be included following review of the Base Case Financial Model and ongoing diligence.

Section 5.02Conditions Precedent to FFB Purchase of the FFB Note. The obligation of FFB to deliver an acceptance notice pursuant to Section 5.1 (Acceptance or Rejection of Principal Instruments) of the FFB Note Purchase Agreement to purchase the FFB Note is subject to the prior satisfaction (or waiver in writing) as determined by FFB of each of the following conditions precedent as of the Execution Date and as of each First Advance Date:

(a)Conditions Precedent in the FFB Documents. Each condition precedent under the FFB Documents to the purchase of the FFB Note by FFB shall have been satisfied in the sole determination of FFB.

(b)Receipt of the Principal Instruments. FFB shall have received from DOE each of the Principal Instruments.    

(c)Representations and Warranties. Each of the representations and warranties made by the Borrower in or pursuant to the Financing Documents shall be true and correct in all respects on and as of such date as if made on and as of such date (or, to the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date).

Section 5.03Conditions Precedent to the First Advance Date Under Tranche 1. The obligation of DOE to deliver an Advance Request Approval Notice pursuant to Section 2.04(a)(ii) (Advance Request Approval Notice) directing FFB to make the First Advance under Tranche 1 in accordance with the FFB Note Purchase Agreement and the FFB Note shall be subject to the prior satisfaction (or waiver in writing) of each of the following conditions precedent as of the date of the Advance Request and to their continued satisfaction on the First Advance Date for such Advance, in each case, as determined by (a) in all cases, DOE; and (b) with respect to any documents or instruments addressed to FFB or to which FFB is party, FFB:

(a)Due Diligence. DOE’s completion of a satisfactory bring-down of due diligence of the Borrower Entities, the Project, and all other matters related thereto.

(b)Execution Date Conditions Precedent. The Execution Date shall have occurred, and each of the Execution Date Conditions Precedent shall continue to be satisfied as of the First Advance Date.  

(c)[Reserved].

(d)First Advance Longstop Date. The First Advance Date for such Tranche shall occur no later than the First Advance Longstop Date for such Tranche.

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(e)Base Equity Funding Commitment; Adequate Project Funding. Receipt by DOE of evidence that:

(i)the Sponsors have funded the total amount of the Base Equity Commitment required as of such date,  including the funding in cash of one hundred fifty million Dollars ($150,000,000) in equity from the Sponsors; and

(ii)simultaneously with the funding of the First Advance under Tranche 1 there will be at least one hundred million Dollars ($100,000,000) in cash on deposit in the Base Cash Equity Reserve Account.

(f)First Advance Date Certificates. Receipt by DOE of:

(i)a Closing Certificate of each Borrower Entity (in the case of the Sponsors, in the form set out in the Sponsor Support Agreement), dated as of such First Advance Date; and

(ii)Tax Certificate of the Borrower, dated as of the First Advance Date or a certificate of a Responsible Officer of the Borrower, certifying that each statement in the Tax Certificate of the Borrower delivered in accordance with the Execution Date is true and correct in all material respects as if made on such First Advance Date.

(g)[Reserved].

(h)Construction Budget. Receipt by DOE of an updated Construction Budget for Phase 2 in form and substance acceptable to DOE including any certifications requested by DOE from the Independent Engineer or a certification from the Borrower and the Independent Engineer that:

(i)there have been no changes to the Construction Budget with respect to amounts reflected therein or the timing of the payments, since the last Advance (except for those changes previously approved in writing by DOE);

(ii)the Project has not incurred, and is not reasonably expected to incur, any Cost Overruns (except for Cost Overruns previously identified, agreed in writing by DOE, and reflected in the then-current Construction Budget);

(iii)the aggregate amounts to be expended for each category of Project Costs do not exceed the aggregate amounts budgeted for such costs in the then-approved Construction Budget (unless covered by subclause (iv));

(iv)Cost Overruns in any category of Project Costs are sufficiently covered by available contingency in the Construction Budget; and

(v)the proceeds of such Advance shall be used solely for payment or reimbursement of Eligible Project Costs.

(i)Project Milestone Schedule; Receipt by DOE of a certification from the Borrower and Independent Engineer that there have been no changes to the Project Milestone Schedule, except for those changes previously approved in writing by DOE.

(j)Consultant Reports. Receipt by DOE of a certificate from the following Secured Party Advisors, dated as of the date of the Advance Request, substantially in the form of Exhibit H (Form

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of Secured Party Advisor Report Bring-Down Certificate) and addressing such other matters as DOE may request and, to the extent required, an updated copy of the report delivered as of the Execution Date:

(i)the Independent Engineer;

(ii)the Environmental Consultant;

(iii)the Market Consultant;

(iv)the Financial Advisor;

(v)the Insurance Consultant; and

(vi)any other Secured Party Advisor required by DOE.

(k)Base Case Financial Model. Receipt by DOE of either:

(i)a certification from the Borrower that:

(A)there are no material changes to the Original Base Case Financial Model, or updated Base Case Financial Model, as applicable;

(B)there are no material changes to the assumptions therein, accompanied by a certificate from the Financial Advisor concurring with the Borrower’s assessment and assumptions set out in its certification; and

(C)calculations demonstrating that both before and after giving effect to the Advance, (1) the Debt to Equity Ratio does not exceed the Maximum Debt to Equity Ratio and (2) the Borrower is in compliance with the Debt Sizing Parameters; or

(ii)a certified updated Base Case Financial Model demonstrating the Debt Sizing Parameters equal to or better than the then-current Base Case Financial Model for each consecutive twelve (12) month period ending on each Calculation Date set out therein, accompanied by:

(A)a certificate from the chief financial officer or similar officer of the Borrower that includes a written explanation from the Borrower of all variances from the Base Case Financial Model then in effect; and

(B)a letter from the Financial Advisor confirming:

(1)the mathematical accuracy of the computations therein;

(2)the consistency in all material respects of the Base Case Financial Model with the Construction Budget and the Project Milestone Schedule; and

(3)that such updated Base Case Financial Model demonstrates the required financial ratios as set forth above; and

(4)calculations demonstrating that both before and after giving effect to the Advance, (I) the Debt to Equity Ratio does not exceed the Maximum Debt to Equity Ratio and (II) the Borrower is in compliance with the Debt Sizing Parameters.

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(l)Intellectual Property. Receipt by DOE of:

(i)a complete and correct copy of each further or amended Project IP Agreement between Borrower or a Borrower Entity (as applicable) and confirmation that the licenses included in all Project IP Agreements between Borrower or Borrower Entity remain in full force and effect; and

(ii)evidence that:

(A)the Borrower exclusively owns all Project IP, or has rights to use all Project IP pursuant to a Project IP Agreement (other than any Project IP Agreement contemplated in Section 5.03(n) (Intellectual Property)), and confirmation that the licenses included in such Project IP Agreement remain in full force and effect;

(B)the Borrower and, to the extent applicable, each Borrower Entity has caused each licensor of rights to Project IP under a Project IP Agreement existing at such time to grant, or otherwise permit to grant to, Secured Parties a Secured Parties' License and confirmation that such license remains in full force and effect;

(C)that each Borrower Entity has caused each licensor of Project IP to, grant to the Secured Parties, effective (i) during the continuance of an Event of Default; (ii) upon an enforcement and transfer of ownership in the Borrower; or (iii) upon any bankruptcy or insolvency action by the Borrower or DOE, an irrevocable, non-exclusive, transferable, sub-licensable, fully paid-up and royalty–free right and license, for no additional consideration, to use and sublicense such Project IP included in the Collateral and such other rights as are necessary to practice, reproduce, distribute, modify, improve, disclose, compile, execute, make, display, perform and create derivative works of any and all software source code or to access and utilize the Project IP.

(m)Required Approvals. Receipt by DOE of an updated Phase 1 Required Approvals Schedule and (if requested by DOE and solely to the extent not previously provided) fully executed copies of all applicable Required Approvals set forth in the Phase 1 Required Approvals Schedule and all such other Required Approvals required to be obtained for the ownership, commencement and completion of construction, operation and maintenance of Phase 1 (other than any Required Approvals that by their nature are no longer needed for the construction, completion, ownership, operation or maintenance of the Project), together with a certificate of a Responsible Officer of the Borrower, certifying that:

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this Section 5.03(m) (Required Approvals);

(C)each such Required Approval has been validly issued, is in full force and effect and Non-Appealable; and

(D)all conditions precedent to the effectiveness of each such Required Approval has been satisfied (or waived in accordance with its terms).

(n)Representations and Warranties. Each of the representations and warranties made (or deemed made) by any Borrower Entity or Major Project Participantin any Transaction Document are

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true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by "materiality," "material adverse effect" or a similar qualifier, in which case it is true and correct in all respects) as of such date, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty is true and correct as of such date or time).

(o)Transaction Documents. To the extent not already delivered, receipt by DOE of:

(i)fully executed originals (in sufficient counterparts for each of DOE, FFB and the Collateral Agent), or copies thereof if permitted by DOE, of each Financing Document; and

(ii)fully executed copies of each Major Project Document and each other Project Document that is in effect at such time, together with a certificate of a Responsible Officer of the Borrower, certifying that

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this clause (ii);

(C)each such Project Document is in full force and effect; and

(D)all conditions precedent to the effectiveness of each such Project Document (if any) have been satisfied (or waived in accordance with their terms).

(p)Litigation. Receipt by DOE of an Officer’s Certificate of the Borrower or Borrower Entity, as applicable, certifying that there is no pending or, to the Borrower's or such Borrower Entity's Knowledge, as applicable, threatened (in writing) Adverse Proceeding, that relates to (i) the legality, validity or enforceability of any of the Transaction Documents or the ability of any Secured Party to exercise any of its rights under any of the Financing Documents or the remedies in respect of the Collateral pursuant to the Security Documents; (ii) any transaction contemplated by any such Transaction Document; or (iii) the Project or any Borrower Entity except, solely for this clause (iii), an Adverse Proceeding that is immaterial to the Project or such Borrower Entity.

(q)Material Adverse Effect. No event (including a change in law) shall have occurred that has or could reasonably be expected to have a Material Adverse Effect.

(r)Davis-Bacon Act.Receipt by DOE of a certificate from the Borrower certifying that (A) evidence that the clauses set forth in Exhibit G (Davis-Bacon Act Contract Provisions) and the appropriate wage determination(s) of the Secretary of Labor have been included in each Davis-Bacon Act Covered Contract existing as of the Advance Date; (B) the Borrower and each DBA Contract Party under each Davis-Bacon Act Covered Contract existing on or prior to such Advance Date have taken all necessary steps to comply with and are in compliance (including retroactive compliance) with the Davis-Bacon Act Requirements.

(s)Security Interests. Receipt by DOE of evidence that:

(i)all Security Documents shall be in full force and effect and shall have been duly filed and registered or recorded in any jurisdiction and with any Governmental Authority in which such

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filing and registration or recording is necessary or advisable to make valid and effective the Liens intended to be created thereby and the rights of the Secured Parties thereunder;

(ii)such Liens constitute valid, enforceable, First Priority Liens over the Collateral in favor of the Secured Parties, subject only to Permitted Liens;

(iii)all fees and duties in connection with such filing, registration or recording have been paid in full;

(iv)the Collateral pledged under the Security Documents includes all of the assets listed on Schedule 5.03(s) (List of Assets); and

(v)all counterparties to agreements assigned to the Collateral Agent under the Security Documents have provided consents to such assignment together with a Direct Agreement to such agreements.

(t)Repayment of Existing Indebtedness; Release of Existing Liens. Receipt by DOE of evidence that

(i)all existing Indebtedness of the Borrower (other than Permitted Indebtedness) has been repaid in full,

(ii)all Liens encumbering any Collateral (other than the Permitted Liens) have been released, and, as necessary or appropriate, such releases have been recorded with the relevant Governmental Authorities, and

(iii)the Mechanic’s Lien has been released and, as necessary or appropriate, such release has been recorded with the relevant Governmental Authorities.

(u)Real Estate. Receipt by DOE of:

(i)a plat prepared by American Surveying & Mapping, Inc., utilizing aerial photography and overlaying the boundaries of the Project Site and the locations of any plottable exceptions encumbering the Project Site and listed on the Leasehold Policy, commonly referred to as a “zip map” (the “Site Map”), in a form acceptable to DOE and the Title Company for issuance of the Leasehold Policy;

(ii)(x) a proforma Leasehold Policy (the “Proforma”) from the Title Company to issue an ALTA Mortgage Loan Policy including extended loan policy  coverage in an amount not less than $1,671,818,098.47 or an amount not less than $1,667,051,098.47 if the BNSF Consent has not been delivered on or prior to the First Advance Date under Tranche 1 and including mechanic’s lien coverage via ALTA 32.2 and ALTA 33 Endorsements; insuring that the Leasehold Mortgage creates a legal, valid, binding and enforceable First Priority Lien on Borrower’s interest in the Project Site (excluding Borrower’s interest in the BNSF Property if the BNSF Consent has not been delivered on or prior to the First Advance Date under Tranche 1) subject only to Permitted Liens, including all endorsements and affirmative coverages required by DOE and which are reasonably obtainable from title insurance underwriters in the State of Montana (the “Leasehold Policy”) and (y) a fully executed closing protection letter by and among DOE, Title Company and Borrower irrevocably committing the Title Company to issue the Leasehold Policy in the form of the Proforma and to record the Mortgage and the Memorandum of A&R Ground Leave (the “Closing Letter”);

(iii)evidence satisfactory to DOE of (a) title to or leasehold, subleasehold or easements interests in any Real Property or fixture interests (including easements), or (b) an irrevocable option to acquire leasehold or easement interests to the Project Site constituting part of the Collateral;

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(iv)evidence that all easements, rights-of-way, zoning compliances, entitlements and other land rights necessary for the Project, or irrevocable options to acquire such land rights necessary for the Project, shall have been obtained, including, all easements, rights-of-way, zoning compliances, entitlements, and other land rights required to be obtained and are not subject to any pending or threatened contest or dispute by any Governmental Authority or Major Project Participant pursuant to the Transaction Documents to which such Major Project Participant is a party or that are necessary for the performance of their obligations under such Transaction Documents;  

(v)a Mortgage duly executed by the Borrower and in recordable form as approved by Title Company and dated on or prior to the First Advance Date under Tranche 1, granting a First Priority Lien on the Borrower’s interest in the Project Site (excluding the Borrower’s interest in the BNSF Property if the BNSF Consent has not been delivered on or prior to the First Advance Date under Tranche 1) (the “Leasehold Mortgage”); and

(vi)true, correct and complete copies of any related material documents requested by DOE or Title Company.

(v)Compliance with Laws. Receipt by DOE of evidence that each Borrower Entity shall have complied with all Applicable Laws relating to the development, construction, completion, ownership, operation, and maintenance of the Project (including Environmental Laws, Davis-Bacon Requirements, Patriot Act, the Cargo Preference Act of 1954, as amended, Foreign Asset Control Regulations, Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws and all state and local licensing requirements).

(w)IE’s Certificate.  Receipt by DOE of certification from the Independent Engineer no more than ten (10) Business Days prior to the requested Advance date that the Tranche 1 disbursement reflects already expended, eligible costs for the Phase 1 project.

(x)Legal Opinions. Receipt by DOE and the other Secured Parties of executed copies of the following legal opinions (including originals thereof, as required) in respect of the Borrower and each Major Project Participant, dated as of the First Advance Date under Tranche 1 and addressed to the Secured Parties:

(i)the legal opinion of Latham & Watkins LLC, as New York counsel to the Borrower Entities (except for Warburg Pincus);

(ii)the legal opinion of Cleary Gottlieb Steen & Hamilton LLP, as counsel to Warburg Pincus;

(iii)the legal opinion of Browning, Kaleczyc, Berry & Hoven P.C., as Montana local counsel to the Borrower Entities (except for Warburg Pincus);

(iv)the legal opinion of Holland & Hart LLP as Montana local counsel to the Borrower Entities (except for Warburg Pincus); and

(v)legal opinions of each Major Project Participant regarding the due authorization, execution and delivery and valid, binding and enforceable nature of the Major Project Documents to which each such Person is a party.

(y)Fees and Expenses. Receipt by DOE of:

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(i)payment in full or reimbursement of all fees required to be paid on or prior to the date of such Advance and all Secured Party Expenses and other fees or expenses (if any) then due and payable in accordance with Section 4.01 (Reimbursement and Other Payment Obligations); and

(ii)(A) reimbursement of all fees and Secured Party Expenses of any Secured Party Advisors incurred in connection with the Project and invoiced prior to the date of such Advance; or (B) confirmation that such fees and Secured Party Expenses have been paid directly, in each case from funds other than the proceeds of the Guaranteed Loan.

(z)Project Accounts. All Project Accounts (including all Reserve Accounts) shall have been funded in full to the then-applicable funding requirement as of the date of such Advance pursuant to the Accounts Agreement.

(aa)Mitigation Action Plan Receipt by DOE of an updated status report regarding compliance with the Mitigation Action Plan.Additional Conditions Precedent. Additional conditions precedent, if any, to be included following review of the Base Case Financial Model and ongoing diligence.

Section 5.04Conditions Precedent to the First Advance Date Under Tranche 2. The obligation of DOE to deliver an Advance Request Approval Notice pursuant to Section 2.04(a)(ii) (Advance Request Approval Notice) directing FFB to make the First Advance under Tranche 2 in accordance with the FFB Note Purchase Agreement and the FFB Note shall be subject to the prior satisfaction (or waiver in writing) of each of the following conditions precedent as of the date of the Advance Request and to their continued satisfaction on the First Advance Date for such Advance, in each case, as determined by (a) in all cases, DOE; and (b) with respect to any documents or instruments addressed to FFB or to which FFB is party, FFB:

(a)Due Diligence. DOE’s completion of a satisfactory bring-down of due diligence of the Borrower Entities, the Project, and all other matters related thereto.

(b)Conditions Precedent in the FFB Documents. Each of the conditions precedent (other than delivery of the Advance Request Approval Notice by DOE) to such Advance under the FFB Note in accordance with the FFB Note Purchase Agreement and such FFB Note have been satisfied.

(c)First Advance Longstop Date. The First Advance Date for such Tranche shall occur no later than the First Advance Longstop Date for such Tranche.

(d)Base Equity Funding Commitment; Adequate Project Funding. Receipt by DOE of evidence that:

(i)the Sponsors have funded the total amount of its Base Equity Commitment required as of such date;

(ii)(a) total amount of the Base Equity Commitment required to be contributed as of such date has been contributed to the Borrower and applied towards Project Costs, and any portion thereof not yet applied to Project Costs shall have been funded in cash into the Base Cash Equity Reserve Account; (b) the total amount of the Contingent Equity Commitment required to be funded as of such date has been funded in cash into the Base Cash Equity Reserve Account; and (c) each of the Borrower and the Independent Engineer have provided a certification and supporting information that (1) the Project has not incurred Cost Overruns in excess of the Budgeted Contingency, or to the extent any such Cost Overruns have been incurred, such Costs Overruns have been paid in full by the Sponsors from proceeds of additional equity contributions; and (2) the Guaranteed Loan plus the remaining Base Equity Commitment (including amounts projected to be paid from the Base Cash Equity Reserve Account pursuant to the latest Base Case

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Financial Model) plus the remaining Contingent Equity Commitment plus any amounts on deposit in the Base Cash Equity Reserve Account in excess of $80 million and Construction Account, taken together, without double counting, will be sufficient to achieve Physical Completion by the Physical Completion Longstop Date and Project Completion by the Project Completion Longstop Date;

(e)First Advance Date Certificates. Receipt by DOE of:

(i)an Advance Request and Borrower Advance Date Certificate of each Borrower Entity, dated as of the relevant First Advance Date under Tranche 2; and

(ii)(A) a Tax Certificate of the Borrower, dated as of such First Advance Date or (B) a certificate of a Responsible Officer of the Borrower, certifying that the information of the Borrower in the Tax Certificate most recently provided to DOE under and in accordance with this Agreement is true and correct in all material respects as if delivered on such First Advance Date.

(f)[Reserved].

(g)Construction Budget. Receipt by DOE of an updated Construction Budget for Phase 2 in form and substance acceptable to DOE including any certifications requested by DOE from the Independent Engineer or a certification from the Borrower and the Independent Engineer that:

(i)there have been no changes to the Construction Budget with respect to amounts reflected therein or the timing of the payments, since the last Advance (except for those changes previously approved in writing by DOE);

(ii)the Project has not incurred, and is not reasonably expected to incur, any Cost Overruns (except for Cost Overruns previously identified, agreed in writing by DOE, and reflected in the then-current Construction Budget);

(iii)the aggregate amounts to be expended for each category of Project Costs do not exceed the aggregate amounts budgeted for such costs in the then-approved Construction Budget (unless covered by subclause (iv));

(iv)Cost Overruns in any category of Project Costs are sufficiently covered by available contingency in the Construction Budget; and

(v)the proceeds of such Advance shall be used solely for payment or reimbursement of Eligible Project Costs.

(h)Project Milestone Schedule; Integrated Schedule and Spending Plan;   (1) Receipt by DOE of a certification from the Borrower and Independent Engineer that there have been no changes to the Project Milestone Schedule, except for those changes previously approved in writing by DOE and (2) a Primavera P6 Level 3 schedule (or such other compatible schedule with a sufficient level of detail as agreed in writing by DOE in consultation with the Independent Engineer) and spending plan for the development and construction of the Project (the “Integrated Schedule and Spending Plan”).

(i)Base Case Financial Model. Receipt by DOE of either:

(i)a certification from the Borrower that:

(A)there are no material changes to the Original Base Case Financial Model, or updated Base Case Financial Model, as applicable;

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(B)there are no material changes to the assumptions therein, accompanied by a certificate from the Financial Advisor concurring with the Borrower’s assessment and assumptions set out in its certification; and

(C)calculations demonstrating that both before and after giving effect to the Advance, (1) the Debt to Equity Ratio does not exceed the Maximum Debt to Equity Ratio and (2) the Borrower is in compliance with the Debt Sizing Parameters; or

(ii)a certified updated Base Case Financial Model demonstrating Debt Sizing Parameters equal to or better than the then-current Base Case Financial Model for each consecutive twelve (12) month period ending on each Calculation Date set out therein, accompanied by:

(A)a certificate from the chief financial officer or similar officer of the Borrower that includes a written explanation from the Borrower of all variances from the Base Case Financial Model then in effect; and

(B)a letter from the Financial Advisor confirming:

(1)the mathematical accuracy of the computations therein;

(2)the consistency in all material respects of the Base Case Financial Model with the Construction Budget and the Project Milestone Schedule;

(3)that such updated Base Case Financial Model demonstrates the required financial ratios as set forth above; and

(4)calculations demonstrating that both before and after giving effect to the Advance, (I) the Debt to Equity Ratio does not exceed the Maximum Debt to Equity Ratio and (II) the Borrower is in compliance with the Debt Sizing Parameters.

(j)Required Approvals. Receipt by DOE of a Required Approvals Schedule and fully executed copies of all applicable Required Approvals set forth in the Required Approvals Schedule and (if requested by DOE and solely to the extent not previously provided) all such other Required Approvals required to be obtained for the ownership, commencement and completion of construction, operation and maintenance of the Project (except (x) any Required Approvals that by their nature are no longer needed for the construction, completion, ownership, operation or maintenance of the Project, or (y) those approvals that, by their nature, cannot be obtained at the current stage of the Project, provided that the failure to obtain any such permit is not related to any act or failure to act by or on behalf of the Borrower), together with a certificate of a Responsible Officer of the Borrower, certifying that:

(i)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(ii)no term or condition thereof has been amended from that delivered pursuant to this Section 5.04(k) (Required Approvals);

(iii)each such Required Approval has been validly issued, is in full force and effect and Non-Appealable; and

(iv)all conditions precedent to the effectiveness of each such Required Approval has been satisfied (or waived in accordance with its terms).

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(k)Representations and Warranties. Each of the representations and warranties made (or deemed made) by any Borrower Entity or Major Project Participantin any Transaction Document are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by "materiality," "material adverse effect" or a similar qualifier, in which case it is true and correct in all respects) as of such date, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty is true and correct as of such date or time).

(l)Transaction Documents. To the extent not already delivered, receipt by DOE of:

(i)fully executed originals (in sufficient counterparts for each of DOE, FFB and the Collateral Agent), or copies thereof if permitted by DOE, of each Financing Document; and

(ii)fully executed copies of each Major Project Document and each other Project Document that is in effect at such time, together with a certificate of a Responsible Officer of the Borrower, certifying that

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this clause (ii);

(C)each such Project Document is in full force and effect; and

(D)all conditions precedent to the effectiveness of each such Project Document (if any) have been satisfied.

(m)Litigation. Receipt by DOE of an Officer’s Certificate of the Borrower or Borrower Entity, as applicable, certifying that there is no pending or, to the Borrower's or such Borrower Entity's Knowledge, as applicable, threatened (in writing) Adverse Proceeding, that relates to (i) the legality, validity or enforceability of any of the Transaction Documents or the ability of any Secured Party to exercise any of its rights under any of the Financing Documents or the remedies in respect of the Collateral pursuant to the Security Documents; (ii) any transaction contemplated by any such Transaction Document; or (iii) the Project or any Borrower Entity except, solely for this clause (iii), an Adverse Proceeding that is immaterial to the Project or such Borrower Entity.

(n)No Material Adverse Effect. No event (including any legal, arbitral or other dispute review proceeding or any change in law) has occurred and is continuing, or could reasonably be expected to occur, that shall have had, or could reasonably be expected to have, a Material Adverse Effect.

(o)Davis-Bacon Act.

(i)Receipt by DOE of a Certificate from the Borrower certifying that (A) the clauses set forth in Exhibit G (Davis-Bacon Act Contract Provisions) and the appropriate wage determination(s) of the Secretary of Labor have been included in each Davis-Bacon Act Covered Contract existing as of the Advance Date; (B) the Borrower and each DBA Contract Party under each Davis-Bacon Act Covered Contract existing on or prior to such Advance Date have taken all necessary steps to comply with and are in compliance (including retroactive compliance) with the Davis-Bacon Act Requirements.

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(p)Security. All Security Documents continue to be in full force and effect, properly perfected, filed and registered or recorded in any jurisdiction and with any Governmental Authority where perfection, filing and registration or recordation is required, as applicable, and all liens or pledges in favor of the Secured Parties continue to be properly registered or recorded in favor of such Secured Parties.

(q)Title.

(A)Receipt by DOE of an SE-28 Endorsement (without any exceptions from coverage stated therein not approved by DOE) and an ALTA 33 Endorsement to the Leasehold Policy, insuring the continued First Priority Lien of the Leasehold Mortgage against the Borrower’s interest in the Project Site.

(B)Receipt by DOE of an amended lease between CMR and BNSF Railway Company giving CMR the right to access the BNSF Property on substantially similar terms (or better) as existing on the Execution Date with a termination date not less than six months following the Maturity Date.

(C)If the BNSF Consent has not been previously delivered to DOE, receipt by DOE of:

(1)a duly executed BNSF Consent;

(2)a Mortgage duly executed by the Borrower and in recordable form as approved by Title Company, granting a First Priority Lien on the Borrower’s interest in the BNSF Property (the “Subleasehold Mortgage”); and

(3)plat prepared by American Surveying & Mapping, Inc., utilizing aerial photography and overlaying the boundaries of the BNSF Property and the locations of any plottable exceptions encumbering the BNSF Property and listed on the Subleasehold Policy, commonly referred to as a “zip map” (the“BNSF Site Map”), in a form acceptable to DOE and the Title Company for issuance of the Subleasehold Policy;

(4)an ALTA Mortgage Loan Policy including extended loan policy coverage in an amount not less than $4,767,000 and including mechanic’s lien coverage via ALTA 32.2 and ALTA 33 Endorsements; insuring that the Subleasehold Mortgage creates a legal, valid and enforceable First Priority Lien on Borrower’s interest in the BNSF Property subject only to Permitted Liens, including all endorsements and affirmative coverages required by DOE and which are reasonably obtainable from title insurance underwriters in the State of Montana (the “Subleasehold Policy”).

(r)Lien Waivers. Receipt by DOE of evidence that:

(i)any unpaid balances then due or unsettled claims with any contractor or supplier under any Construction Contract, or their subcontractors, have been paid in full (unless otherwise provided by the relevant Construction Contract), except for balances or claims that the Borrower is actively contesting in accordance with the Permitted Contest Conditions; and

(ii)each contractor or supplier under any Construction Contract, or their subcontractors, to be paid with the proceeds of such Advance and funds of the Borrower, has conditionally (or if applicable, finally and unconditionally) waived on terms satisfactory to DOE and released all Liens,

45

statutory or otherwise, that it or any of its subcontractors may have or acquire on the Collateral or the Project with respect to work completed prior to its last submission for payment, such Lien waivers to be in form and substance prescribed by Applicable Law in the State of Montana.

(s)Compliance with Laws. Receipt by DOE of evidence that each Borrower Entity shall have complied with all Applicable Laws relating to the development, construction, completion, ownership, operation, and maintenance of the Project (including Environmental Laws, Davis-Bacon Requirements, Patriot Act, the Cargo Preference Act of 1954, as amended, Foreign Asset Control Regulations, Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws and all state and local licensing requirements).IE’s Certificate.  Receipt by DOE of certifications from the Independent Engineer no more than ten (10) business days prior to the requested Advance date, (a) that the following funds available to the Borrower are (or, in the case of the Base Equity Commitment, will be) sufficient to achieve Project Completion by the Project Completion Longstop Date: (i) the amount of the requested Advance; (ii) the undisbursed amount of the Guaranteed Loan after giving effect to such Advance; (iii) the remaining Base Equity Commitment (including amounts projected to be paid from the Base Cash Equity Reserve Account pursuant to the latest Base Case Financial Model), (iv) the remaining Contingent Equity Commitment (in the amounts and at the times required pursuant to the Sponsor Support Agreement) and (iv) any amounts on deposit in the Base Cash Equity Reserve Account in excess of $80 million and Construction Account; (b) the Project is on schedule to achieve (i) Physical Completion in accordance with the Project Milestone Schedule; and (ii) Project Completion by the Project Completion Longstop Date; and (c) as to such other matters as required herein or as DOE may reasonably request.Legal Opinions. Receipt by DOE and the other Secured Parties of executed copies of the following legal opinions (including originals thereof, as required) in respect of the Borrower and each Major Project Participant, dated as of the Execution Date and addressed to the Secured Parties:

(i)legal opinions in respect of any amendment, modification, termination or entry into any new Transaction Document that has been executed and delivered after the previous delivery of an applicable legal opinion, in each case, dated as of the Requested Advance Date, addressed to each Secured Party and from legal counsel satisfactory to DOE;

(ii)to the extent that, since the date of the previous delivery of an applicable legal opinion furnished hereunder, there has been a material change in circumstances on any matter covered by such legal opinion, supplemental legal opinions with respect to the possible legal consequences of such changed circumstances, dated as of the Requested Advance Date, addressed to each Secured Party, and from legal counsel satisfactory to DOE; and

(iii)a legal opinion in respect of the Borrower in form and substance acceptable to DOE (A) that the Borrower has received the Governmental Approvals required for the construction, operation, maintenance, and ownership of the Project, except those Governmental Approvals that, by their nature, cannot be obtained at the current stage of development of the Project as of the date of such legal opinion (and provided that the failure to obtain any such Governmental Approval  as of such date is not related to any act or failure to act by or on behalf of the Borrower), and (B) identifying all Governmental Approvals required to be obtained after the date of such legal opinion, and, in the case of each of (A) and (B), other than Governmental Approvals of a routine and immaterial nature that can be obtained in the Ordinary Course of Business.

(v)Fees and Expenses. Receipt by DOE of:

(i)payment in full or reimbursement of all fees required to be paid on or prior to the date of such Advance and all Secured Party Expenses and other fees or expenses (if any) then due and payable in accordance with Section 4.01 (Reimbursement and Other Payment Obligations); and

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(ii)(A) reimbursement of all fees and Secured Party Expenses of any Secured Party Advisors incurred in connection with the Project and invoiced prior to the date of such Advance; or (B) confirmation that such fees and Secured Party Expenses have been paid directly, in each case from funds other than the proceeds of the Guaranteed Loan.

(w)[Reserved].

Project Accounts. (i) All Project Accounts (including all Reserve Accounts) shall have been funded in full to the then-applicable funding requirement as of the date of such Advance pursuant to the Accounts Agreement; and (ii) the Borrower has had at least $80 million in cash on deposit in the Base Cash Equity Reserve Account at the close of any business day during the previous 90 calendar days.

(y)Certain Events.  No Default, Event of Default, Event of Force Majeure or Event of Loss has occurred and is continuing or would result from the Advance.O&M Budget. Receipt by DOE of an updated O&M Budget or a certificate from the Borrower that the previously provided O&M Budget is accurate in all material respects.

(aa)P6 Integrated Project Schedule. Receipt by DOE of an updated Level 3 Integrated Project Schedule, in Primavera P6 format and at a detailed level acceptable to DOE, with tasks required to meet the Project Milestones.Phase 2 Deliverables.

(i)Receipt by DOE of signed contract(s) with the general contractor under the EPC Contract for the execution of Phase 2.

(ii)Receipt by DOE of a signed contract(s) with the Project’s Technology Licensor(s) and Key Equipment Supplier(s) for the execution of the Phase 2, including details on associated performance guarantees and liquidated damages.

(iii)Receipt by DOE of a completed FEED package for Phase 2, containing the Phase 2 heat and material balances, process flow diagrams, piping and instrumentation diagrams and plot plans.

(iv)Receipt by DOE of a project execution plan including an overview or summary of the pre-commissioning, commissioning, startup, and testing approach for Phase 2.

(v)Receipt by DOE of a Project quality assurance or quality control plan for the construction of Phase 2 (which could be provided as part of a project execution plan).

(vi)Receipt by DOE of a Project site environmental, health and safety plan for the construction of Phase 2 (which could be provided as part of a project execution plan).

(vii)Receipt by DOE of an updated organization chart for Phase 2 construction execution and operations (which could be provided as part of a project execution plan).

(viii)Receipt by DOE of a transportation plan for the construction of Phase 2, which will describe the transportation and storage of key equipment to and at the Project site, including the reactor currently stored in Corpus Christi, Texas.

(ix)Receipt by DOE of a logistics plan for the construction of Phase 2, which will describe the management of key contractor personnel work and congestion at the Project site.

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(x)Receipt by DOE of evidence of purchase orders to be issued upon prior to the date of such Advance for key long lead equipment.

(xi)Receipt by DOE of finalized plans for the pre-treater wastewater treatment unit, including confirmation that the City of Great Falls is willing to proceed with the proposed modifications to its wastewater treatment plant should this option be selected for wastewater treatment.

(xii)Receipt by DOE of evidence that the Montana air quality permit is updated and in place for the start of Phase 2 construction.

(xiii)Receipt by DOE of evidence that all permits for the start of Phase 2 construction are in place (excluding the Montana air quality permit described above), or a plan and schedule for the required permits to be obtained.

(xiv)Receipt by DOE of evidence that the Borrower has issued in full all notices to commence construction under all Construction Contracts.

(xv)All material PDPs for Phase 2 from each licensor for work within the scope of the EPC Contract shall have been formally accepted by the EPC Contractor. All such licensors must be specified in the EPC Contract.

(xvi)The Borrower’s plan for the development, design, engineering, construction and operation of Phase 2, as set out in the Base Case Financial Model, has been approved by the board of directors of DOE.

(xvii)The Borrower shall have (a) engaged a qualified project management team that is capable of managing the interface among the EPC Contract for Phase 2 satisfactory to DOE and the Independent Engineer, and (b) provided a detailed Project management plan (the “Project Management Plan”), in form and substance satisfactory to DOE and the Independent Engineer, which addresses how the Borrower will manage all of the construction, commissioning and startup work required by the Project, including work completed by the EPC Contractor and work outside the boundary lines of the Project that is required for the Project’s commercial operations. The Project Management Plan shall include the Satisfactory Owner Project Schedule and the Satisfactory Contractor Project Schedule and shall address construction management; change order management; cost management; procurement management; Project scope management; schedule management; quality management; risk management; and organizational management (including qualifications of key personnel).

(xviii)The Borrower shall have provided to DOE and the Independent Engineer the fully interactive Level 3 project schedule of the EPC Contractor (incorporating milestones of both the EPC Contractor and the Borrower, including payment milestones) in accordance with the EPC Contract (the “Satisfactory Contractor Project Schedule”), and such schedule is acceptable to DOE and the Independent Engineer in their sole discretion.

(xix)The Borrower shall have provided to DOE and the Independent Engineer the fully interactive Level 3 project schedule of the Borrower setting forth the Borrower’s expected schedule and milestones for construction of the Project through the Commercial Operations Date (the “Satisfactory Owner Project Schedule”), which schedule shall be acceptable to DOE and the Independent Engineer in their sole discretion.

(cc)Phase 2 Equity. Receipt by DOE of

(ii)evidence that the Borrower had at least $80 million in cash on deposit in the Base Cash Equity Reserve Account at the close of the last business day of the prior quarter; and

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(iii)has a contingent commitment, in form and substance acceptable to DOE, from (A) the Sponsors or (B) one or more providers whose creditworthiness is acceptable to DOE (the “Phase 2 Equity Instrument”) to contribute additional amounts into the Base Cash Equity Reserve Account as and when necessary, in order to ensure that the amounts on deposit therein or credited at any time are not less than $80 million (which commitment shall be capped at the difference between:

(1)the then-forecasted amount of equity to be contributed to reach the Commercial Operations Date for Phase 2 of the Project (calculated, in a manner approved by DOE, as the then-forecasted remaining capex (excluding contingency) necessary to reach the Commercial Operations Date less the then-forecasted amount the Borrower will receive through Advances under the Guaranteed Loan forecasted to be used for capex (for the avoidance of doubt, excluding that portion of such Advances forecasted to be used to fund reserves or contingency)) and

(2)the amount of cash on hand at that time in the Base Cash Equity Reserve Account, such amount, the “Phase 2 Equity Cap”);

provided, that on a future date following the delivery of the Phase 2 Equity Instrument, upon the delivery by the Borrower to DOE of a certificate (which shall be delivered within 30 days following a Calculation Date) demonstrating, to the satisfaction of DOE, that the Phase 2 Equity Cap, if it were calculated on such future date, would be less than the Phase 2 Equity Cap under the as-delivered Phase 2 Equity Instrument, the Phase 2 Equity Cap shall be reduced by an amount equal to 10% of the difference between the Phase 2 Equity Cap under the as-delivered Phase 2 Equity Instrument and the calculation of the Phase 2 Equity Cap on such future date.¹

(dd)Cost Estimate. The Base Case Financial Model achieves a cost estimate class of “Class 3” based on an all-in total project weighted basis.

(ee)Additional Items. Receipt by DOE of such other documents, certifications or consents relating to the project, any Borrower Entity, any Major Project Participant or the matters contemplated by the Transaction Documents as it may reasonably request.

(ff)Additional Conditions Precedent. Additional conditions precedent, if any, to be included following review of the Base Case Financial Model and ongoing diligence.

(gg)Aggregate Advances. Receipt of evidence by DOE that the aggregate principal amount of all Advances, after giving effect to the Advances to be made on such Requested Advance Date,

¹ For the avoidance of doubt, below is an illustrative example.

If:

(1) [***] in total capex (without contingency) to reach COD;

(2) DOE Advances are [***] (calculated for this example as 55% of total capex costs, not including DSRA funding or contingency);

(3) total forecasted equity required to reach COD is [***];

(4) cash on hand is $[***].

Then the Phase 2 Equity Cap would equal [***].

If on a future date the calculation of the Phase 2 Equity Cap would be equal to [***], then the Phase 2 Equity Cap would be decreased by the product of [***] (the difference between the Phase 2 Equity Cap as originally calculated and the calculation of the Phase 2 Equity Cap on such future date) and 10%.

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do not exceed the Maximum Guaranteed Loan Amount or the Maximum Tranche Amount for the Tranche under which such Advance is being made.

(hh)Use of Proceeds. Receipt by DOE of (i) evidence that the proceeds of the requested Advance will be applied in accordance with Section 2.04(e) (Disbursement of Proceeds); and (ii) invoices or other documentation evidencing the incurrence of such Eligible Project Costs.

(ii)Judgment Liens. No judgment Lien exists against any of the Borrower’s property for Indebtedness owed to the United States of America or any delinquent federal, state or local Indebtedness, including tax liabilities, except for balances or claims in the normal course of business that the Borrower is actively contesting in accordance with the Permitted Contest Conditions.

(jj)Program Requirements. Receipt by DOE of evidence that the Borrower is in compliance with or shall have satisfied, as applicable, all requirements and approvals pursuant to the Program Requirements.

(kk)Payment of Fees. Receipt by DOE of:

(i)payment in full of all fees required under the Financing Documents to be paid on or prior to the Requested Advance Date, and all Secured Party Expenses and reimbursement of all fees and Secured Party Expenses of any Secured Party Advisors, incurred and invoiced prior to the Requested Advance Date; or

(ii)confirmation that all such fees and Secured Party Expenses have been paid directly to the relevant Secured Party Advisors.

(ll)Environmental Compliance. Receipt by DOE of a written certification by the Borrower that the Borrower is and has been, in all material respects, in compliance with all applicable Environmental Laws and all Required Approvals thereunder, and has and maintains in full force and effect all Required Approvals applicable to the construction and operation of the Project as of the date of such Advance under any applicable Environmental Law.

(mm)No Violation. The making of the requested Advance shall not result in a violation of any Applicable Law, Transaction Document, Governmental Approval, or any other agreement or consent to which any Borrower Entity is a party, or any judgment or approval to which any Borrower Entity is subject.

(nn)Offtake. Receipt by DOE of Phase 2 offtake agreements covering at least 50% of the Phase 2 production capacity as described by the Base Case Financial Model  reasonably acceptable to DOE and, in the case of any such offtake agreement that is a Major Project Document, such agreement shall be in form and substance either (a) substantially similar (or better) to the existing offtake agreements of the Borrower that are Major Project Documents or (b) otherwise reasonably acceptable to DOE.

(oo)Debt to Equity Ratio. Both before and after giving effect to the Advance, the ratio of (a) the aggregate principal amount of Advances outstanding under the Guaranteed Loan (including all interest that has been capitalized or that shall be capitalized pursuant to the FFB Note) to (b) the aggregate amount of Base Equity Contributions made as of such date (the “Debt to Equity Ratio”) shall not exceed 55:45 (the "Maximum Debt to Equity Ratio").

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Section 5.05Conditions Precedent to Each Subsequent Advance Date Under Tranche 2. The obligation of DOE to deliver an Advance Request Approval Notice pursuant to Section 2.04(a)(ii) (Advance Request Approval Notice) directing FFB to make the an Advance under Tranche 2 in accordance with the FFB Note Purchase Agreement and the FFB Note shall be subject to the prior satisfaction (or waiver in writing) of each of the following conditions precedent as of the date of the Advance Request and to their continued satisfaction on the First Advance Date for such Advance, in each case, as determined by (a) in all cases, DOE; and (b) with respect to any documents or instruments addressed to FFB or to which FFB is party, FFB:

(a)Advance Request. Receipt by DOE from the Borrower of an Advance Request and a Borrower Advance Date Certificate pursuant to Section 2.03(a) (Advance Requests).

(b)Conditions Precedent in the FFB Documents. Each of the conditions precedent (other than delivery of the Advance Request Approval Notice by DOE) to such Advance under the FFB Note in accordance with the FFB Note Purchase Agreement and such FFB Note have been satisfied.

(c)Representations and Warranties. Each of the representations and warranties made by any Borrower Entity in or pursuant to any Financing Document shall be true and correct in all material respects (except (i) such representations and warranties that by their terms are qualified by materiality or Material Adverse Effect, and (ii) in the case of the Borrower, the representations and warranties set forth in Sections 6.23 (Anti-Corruption Laws), 6.24 (Environmental Laws), 6.26 (Davis-Bacon Act), 6.28 (Sanctions and Anti-Money Laundering), 6.29 (Cargo Preference Act), 6.30 (Lobbying Restriction), 6.31 (Federal Funding), 6.32 (No Federal Debt Delinquency), 6.33 (No Tax-Exempt Indebtedness), 6.35 (Use of Proceeds), 6.36 (No Immunity), and 6.37 (No Fraudulent Intent), which representations and warranties shall, in each case, be true and correct in all respects) on and as of such date as if made on and as of such date (or, to the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date), before and after giving effect to the extensions of credit requested to be made on such date.

(d)Debt Sizing Parameters. Receipt by DOE of evidence that the Borrower shall be in compliance with the Debt Sizing Parameters after giving effect to the Advances to be made on such Requested Advance Date.

(e)Due Diligence. DOE’s completion of a satisfactory bring-down of due diligence of the Borrower Entities, the Project, and all other matters related thereto.

(f)Base Equity Funding Commitment; Adequate Project Funding. Receipt by DOE of evidence that:

(i)the Sponsors have funded the total amount of its Base Equity Commitment required as of such date; and

(ii)(a) the total amount of the Base Equity Commitment required to be contributed as of such date has been contributed to the Borrower and applied towards Project Costs, and any portion thereof not yet applied to Project Costs shall have been funded in cash into the Base Cash Equity Reserve Account; (b) the total amount of the Contingent Equity Commitment required to be funded as of such date has been funded in cash into the Base Cash Equity Reserve Account; and (c) each of the Borrower and the Independent Engineer have provided a certification and supporting information that (1) the Project has not incurred Cost Overruns in excess of the Budgeted Contingency, or to the extent any such Cost Overruns have been incurred, such Costs Overruns have been paid in full by the Sponsors from proceeds of additional equity contributions; and (2) the Guaranteed Loan plus the remaining Base Equity Commitment (including amounts projected to be paid from the Base Cash Equity Reserve Account pursuant to the latest Base Case Financial Model) plus the remaining Contingent Equity Commitment plus any amounts on

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deposit in the Base Cash Equity Reserve Account in excess of $80 million and Construction Account, taken together, without double counting, will be sufficient to achieve Physical Completion by the Physical Completion Longstop Date and Project Completion by the Project Completion Longstop Date.  

(g)Advance Date Certificates. Receipt by DOE of:

(i)an Advance Request and Borrower Advance Date Certificate of each Borrower Entity, dated as of the relevant Advance Date under Tranche 2; and

(ii)(A) a Tax Certificate of the Borrower, dated as of such Advance Date or (B) a certificate of a Responsible Officer of the Borrower, certifying that the information of the Borrower in the Tax Certificate most recently provided to DOE under and in accordance with this Agreement is true and correct in all material respects as if delivered on such Advance Date.

(h)[Reserved].

(i)Construction Budget. Receipt by DOE of an updated Construction Budget for Phase 2 in form and substance acceptable to DOE including any certifications requested by DOE from the Independent Engineer or a certification from the Borrower and the Independent Engineer that:

(i)there have been no changes to the Construction Budget with respect to amounts reflected therein or the timing of the payments, since the last Advance (except for those changes previously approved in writing by DOE);

(ii)the Project has not incurred, and is not reasonably expected to incur, any Cost Overruns (except for Cost Overruns previously identified, agreed in writing by DOE, and reflected in the then-current Construction Budget);

(iii)the aggregate amounts to be expended for each category of Project Costs do not exceed the aggregate amounts budgeted for such costs in the then-approved Construction Budget (unless covered by subclause (iv));

(iv)Cost Overruns in any category of Project Costs are sufficiently covered by available contingency in the Construction Budget; and

(v)the proceeds of such Advance shall be used solely for payment or reimbursement of Eligible Project Costs.

(j)Project Milestone Schedule; Integrated Schedule and Spending Plan. Receipt by DOE of a certification from the Borrower and Independent Engineer that there have been no changes to the Project Milestone Schedule or Integrated Schedule and Spending Plan, except for those changes previously approved in writing by DOE.

(k)Base Case Financial Model. Receipt by DOE of either:

(i)a certification from the Borrower that:

(A)there are no material changes to the Original Base Case Financial Model, or updated Base Case Financial Model, as applicable;

(B)there are no material changes to the assumptions therein, accompanied by a certificate from the chief financial officer of the Borrower concurring with the Borrower’s assessment and assumptions set out in its certification; and

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(C)calculations demonstrating that both before and after giving effect to the Advance, (1) the Debt to Equity Ratio does not exceed the Maximum Debt to Equity Ratio and (2) the Borrower is in compliance with the Debt Sizing Parameters; or

(ii)a certified updated Base Case Financial Model demonstrating Debt Sizing Parameters equal to or better than the then-current Base Case Financial Model for each consecutive twelve (12) month period ending on each Calculation Date set out therein, accompanied by:

(A)a certificate from the chief financial officer or similar officer of the Borrower that includes a written explanation from the Borrower of all variances from the Base Case Financial Model then in effect; and

(B)a report from the chief financial officer of the Borrower confirming:

(1)the mathematical accuracy of the computations therein;

(2)the consistency in all material respects of the Base Case Financial Model with the Construction Budget and the Project Milestone Schedule;

(3)that such updated Base Case Financial Model demonstrates the required financial ratios as set forth above; and

(4)calculations demonstrating that both before and after giving effect to the Advance, (I) the Debt to Equity Ratio does not exceed the Maximum Debt to Equity Ratio and (II) the Borrower is in compliance with the Debt Sizing Parameters.

(l)Required Approvals. Receipt by DOE of an updated Required Approvals Schedule and (if requested by DOE and solely to the extent not previously provided) fully executed copies of all applicable Required Approvals set forth in the Required Approvals Schedule and all such other Required Approvals required to be obtained for the ownership, commencement and completion of construction, operation and maintenance of the Project (except (x) any Required Approvals that by their nature are no longer needed for the construction, completion, ownership, operation or maintenance of the Project, or (y) those approvals that, by their nature, cannot be obtained at the current stage of the Project, provided that the failure to obtain any such permit is not related to any act or failure to act by or on behalf of the Borrower) and not yet previously provided to DOE, together with a certificate of a Responsible Officer of the Borrower, certifying that:

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this Section 5.05(l) (Required Approvals);

(C)each such Required Approval has been validly issued, is in full force and effect and Non-Appealable; and

(D)all conditions precedent to the effectiveness of each such Required Approval has been satisfied (or waived in accordance with its terms).

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(m)Representations and Warranties. Each of the representations and warranties made (or deemed made) by any Borrower Entity or Major Project Participantin any Transaction Document are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by "materiality," "material adverse effect" or a similar qualifier, in which case it is true and correct in all respects) as of such date, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty is true and correct as of such date or time).

(n)Transaction Documents. Receipt by DOE of:

(i)fully executed originals (in sufficient counterparts for each of DOE, FFB and the Collateral Agent), or copies thereof if permitted by DOE, of each Financing Document; and

(ii)fully executed copies of each Major Project Document and each other Project Document that is in effect at such time, together with a certificate of a Responsible Officer of the Borrower, certifying that

(A)the copies submitted are true, correct and complete (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(B)no term or condition thereof has been amended from that delivered pursuant to this clause (ii);

(C)each such Project Document is in full force and effect;

(D)all conditions precedent to the effectiveness of each such Project Document (if any) have been satisfied; and

(E)no default or event that with the passage of time, the giving of notice or both would constitute a default shall have occurred and is continuing thereunder.

(o)Litigation. Receipt by DOE of an Officer’s Certificate of the Borrower or Borrower Entity, as applicable, certifying that there is no pending or, to the Borrower's or such Borrower Entity's Knowledge, as applicable, threatened (in writing) Adverse Proceeding, that relates to (i) the legality, validity or enforceability of any of the Transaction Documents or the ability of any Secured Party to exercise any of its rights under any of the Financing Documents or the remedies in respect of the Collateral pursuant to the Security Documents; (ii) any transaction contemplated by any such Transaction Document; or (iii) the Project or any Borrower Entity except, solely for this clause (iii), an Adverse Proceeding that is immaterial to the Project or such Borrower Entity.

(p)No Material Adverse Effect. No event (including any legal, arbitral or other dispute review proceeding or any change in law) has occurred and is continuing, or could reasonably be expected to occur, that shall have had, or could reasonably be expected to have, a Material Adverse Effect.

(q)Davis-Bacon Act.  Receipt by DOE of a certificate from the Borrower certifying that (A) the clauses set forth in Exhibit G (Davis-Bacon Act Contract Provisions) and the appropriate wage determination(s) of the Secretary of Labor have been included in each Davis-Bacon Act Covered Contract existing as of the Advance Date; (B) the Borrower and each DBA Contract Party under each Davis-Bacon Act Covered Contract existing on or prior to such Advance Date have taken all necessary steps to comply with and are in compliance (including retroactive compliance) with the Davis-Bacon Act Requirements.

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(r)Security. All Security Documents continue to be in full force and effect, properly perfected, filed and registered or recorded in any jurisdiction and with any Governmental Authority where perfection, filing and registration or recordation is required, as applicable, and all liens or pledges in favor of the Secured Parties continue to be properly registered or recorded in favor of such Secured Parties.

(s)Title Continuation. Receipt by DOE of an SE-28 Endorsement (without any exceptions from coverage state therein not approved by DOE) and an ALTA 33 Endorsement to the Leasehold Policy and, if applicable, the Subleasehold Policy, insuring the continued First Priority Lien of the Leasehold Mortgage and the Subleasehold Mortgage, if applicable, against Borrower’s interest in the Project Site.

(t)Lien Waivers. Receipt by DOE of evidence that:

(i)any unpaid balances then due or unsettled claims with any contractor or supplier under any Construction Contract, or their subcontractors, have been paid in full (unless otherwise provided by the relevant Construction Contract), except for balances or claims that the Borrower is actively contesting in accordance with the Permitted Contest Conditions; and

(ii)each contractor or supplier under any Construction Contract, or their subcontractors, to be paid with the proceeds of such Advance and funds of the Borrower, has conditionally (or if applicable, finally and unconditionally) waived on terms satisfactory to DOE and released all Liens, statutory or otherwise, that it or any of its subcontractors may have or acquire on the Collateral or the Project with respect to work completed prior to its last submission for payment, such Lien waivers to be in form and substance prescribed by Applicable Law in the State of Montana.

(u)Compliance with Laws. Receipt by DOE of evidence that each Borrower Entity shall have complied with all Applicable Laws relating to the development, construction, completion, ownership, operation, and maintenance of the Project (including Environmental Laws, Davis-Bacon Requirements, Patriot Act, the Cargo Preference Act of 1954, as amended, Foreign Asset Control Regulations, Sanctions, Anti-Money Laundering Laws and Anti-Corruption Laws and all state and local licensing requirements).[Reserved].

(w)IE’s Certificate.  Receipt by DOE of certifications from the Independent Engineer no more than ten (10) business days prior to the requested Advance date, (i) that the following funds available to the Borrower are (or, in the case of the Base Equity Commitment, will be) sufficient to achieve Project Completion by the Project Completion Longstop Date: (A) the amount of the requested Advance; (B) the undisbursed amount of the Guaranteed Loan after giving effect to such Advance; (C) the remaining Base Equity Commitment (including amounts projected to be paid from the Base Cash Equity Reserve Account pursuant to the latest Base Case Financial Model), (D) the remaining Contingent Equity Commitment (in the amounts and at the times required pursuant to the Sponsor Support Agreement) and (E) any amounts on deposit in the Base Cash Equity Reserve Account in excess of $80 million and Construction Account; (ii) the Project is on schedule to achieve (A) Physical Completion in accordance with the Project Milestone Schedule; and (B) Project Completion by the Project Completion Longstop Date; and (iii) as to such other matters as required herein or as DOE may reasonably request.

(x)Legal Opinions. To the extent requested by DOE, receipt by DOE of:

(i)legal opinions in respect of any amendment, modification, termination or entry into any new Transaction Document that has been executed and delivered after the previous delivery of an applicable legal opinion, in each case, dated as of the Requested Advance Date, addressed to each Secured Party and from legal counsel satisfactory to DOE;

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(ii)to the extent that, since the date of the previous delivery of an applicable legal opinion furnished hereunder, there has been a material change in circumstances on any matter covered by such legal opinion, supplemental legal opinions with respect to the possible legal consequences of such changed circumstances, dated as of the Requested Advance Date, addressed to each Secured Party, and from legal counsel satisfactory to DOE; and

(iii)a bring down legal opinion in respect of the Borrower in form and substance acceptable to DOE (A) that the Borrower has received the Governmental Approvals required for the construction, operation, maintenance, and ownership of the Project, except those Governmental Approvals that, by their nature, cannot be obtained at the current stage of development of the Project as of the date of such legal opinion (and provided that the failure to obtain any such Governmental Approval  as of such date is not related to any act or failure to act by or on behalf of the Borrower), and (B) identifying all Governmental Approvals required to be obtained after the date of such legal opinion, and, in the case of each of (A) and (B), other than Governmental Approvals of a routine and immaterial nature that can be obtained in the Ordinary Course of Business.

(y)Fees and Expenses. Receipt by DOE of:

(i)payment in full or reimbursement of all fees required to be paid on or prior to the date of such Advance and all Secured Party Expenses and other fees or expenses (if any) then due and payable in accordance with Section 4.01 (Reimbursement and Other Payment Obligations); and

(ii)(A) reimbursement of all fees and Secured Party Expenses of any Secured Party Advisors incurred in connection with the Project and invoiced prior to the date of such Advance; or (B) confirmation that such fees and Secured Party Expenses have been paid directly, in each case from funds other than the proceeds of the Guaranteed Loan.

(z)Project Accounts. (i) All Project Accounts (including all Reserve Accounts) shall have been funded in full to the then-applicable funding requirement as of the date of such Advance pursuant to the Accounts Agreement; and (ii) the Borrower has had at least $80 million in cash on deposit in the Base Cash Equity Reserve Account at the close of any business day during the previous 90 calendar days.

(aa)O&M Budget. Receipt by DOE of an updated O&M Budget or a certificate from the Borrower that the previously provided O&M Budget is accurate in all material respects.

(bb)P6 Integrated Project Schedule. Receipt by DOE of an updated Level 3 Integrated Project Schedule, in Primavera P6 format and at a detailed level acceptable to DOE, with tasks required to meet the Project Milestones.

(cc)Additional Items. Receipt by DOE of such other documents, certifications or consents relating to the project, any Borrower Entity, any Major Project Participant or the matters contemplated by the Transaction Documents as it may reasonably request (but in respect of Major Project Participants, solely informational matters and not certifications of any Major Project Participants).

(dd)Additional Conditions Precedent. Additional conditions precedent, if any, to be included following review of the Base Case Financial Model and ongoing diligence.

(ee)Aggregate Advances. Receipt of evidence by DOE that the aggregate principal amount of all Advances, after giving effect to the Advances to be made on such Requested Advance Date, do not exceed the Maximum Guaranteed Loan Amount or the Maximum Tranche Amount for the Tranche under which such Advance is being made.

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(ff)Use of Proceeds. Receipt by DOE of (i) evidence that the proceeds of the requested Advance will be applied in accordance with Section 2.04(e) (Disbursement of Proceeds); and (ii) invoices or other documentation evidencing the incurrence of such Eligible Project Costs.

(gg)Judgment Liens. No judgment Lien exists against any of the Borrower’s property for Indebtedness owed to the United States of America or any delinquent federal, state or local Indebtedness, including tax liabilities, except for balances or claims in the normal course of business that the Borrower is actively contesting in accordance with the Permitted Contest Conditions.

(hh)Program Requirements. Receipt by DOE of evidence that the Borrower is in compliance with or shall have satisfied, as applicable, all requirements and approvals pursuant to the Program Requirements.

(ii)Payment of Fees. Receipt by DOE of:

(i)payment in full of all fees required under the Financing Documents to be paid on or prior to the Requested Advance Date, and all Secured Party Expenses and reimbursement of all fees and Secured Party Expenses of any Secured Party Advisors, incurred and invoiced prior to the Requested Advance Date; or

(ii)confirmation that all such fees and Secured Party Expenses have been paid directly to the relevant Secured Party Advisors.

(jj)Environmental Compliance. Receipt by DOE of a written certification by the Borrower that the Borrower is and has been, in all material respects, in compliance with all applicable Environmental Laws and all Required Approvals thereunder, and has and maintains in full force and effect all Required Approvals applicable to the construction and operation of the Project as of the date of such Advance under any applicable Environmental Law.

(kk)No Violation. The making of the requested Advance shall not result in a violation of any Applicable Law, Transaction Document, Governmental Approval, or any other agreement or consent to which any Borrower Entity is a party, or any judgment or approval to which any Borrower Entity is subject.

(ll)Debt to Equity Ratio. Both before and after giving effect to the Advance, the Debt to Equity Ratio shall not exceed the Maximum Debt to Equity Ratio.

(mm)Offtake. If the expected Commercial Operations Date is within twelve (12) months of the date of such Advance, offtake arrangements in form and substance acceptable to DOE, demonstrating that 70% of the expected production of the Project upon Project Completion is under contract.

Section 5.06Conditions Precedent to FFB Advance. The obligation of FFB to make each Advance (including the initial Advance) under the FFB Note Purchase Agreement and the FFB Note is subject to the prior satisfaction (or waiver in writing) as determined by FFB of each of the following conditions precedent as of the date of the relevant Advance Request and as of the Advance Date:

(a)Receipt of Advance Request Approval Notice. FFB shall have received from DOE an Advance Request Approval Notice.

(b)Absence of Drawstop Notice. No Drawstop Notice shall have been delivered to DOE or FFB.

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Section 5.07Advance Deductions. Unless the Borrower shall have prepaid the applicable Advance in the amount of any excess as provided in Section 3.05(c)(i)(H) (Mandatory Prepayments) prior to each Requested Advance Date immediately following the parties' determination of the existence of an Excess Advance Amount (whether pursuant to the Quarterly Certificate or otherwise), the Borrower shall:

(a)in the relevant Advance Request, deduct from the total amount of the Advance or Advances to be made on such Requested Advance Date an amount equal to the amount that would otherwise have been prepayable by the Borrower pursuant to Section 3.05(c)(i)(H) (Mandatory Prepayments); and

(b)in the relevant Advance Request, include a certification by a Responsible Officer, substantially in the form set forth in the Form of Advance Request, certifying as to the amount of such deduction;

provided, that if the amount of the Advance requested to be made on such Requested Advance Date is less than the total amount to be deducted on such Requested Advance Date, the Borrower shall deduct an amount equal to the total amount of the Advance requested to be made on such date, and the remaining shortfall shall be deducted by the Borrower from Advances requested in future Advance Requests made on future Requested Advance Dates until such amount has been deducted in full.

Section 5.08Satisfaction of Conditions Precedent. Each of the Borrower and DOE hereby acknowledges and agrees that:

(a)by delivering the Principal Instruments on the Execution Date, DOE shall be deemed to have approved of or consented to, or to be satisfied with, each of the Execution Date Conditions Precedent that must be approved or consented to by, or be satisfactory to, DOE; and

(b)FFB, by delivering an acceptance notice under Section 5.1 of the FFB Note Purchase Agreement or making any Advance under the FFB Note, shall be deemed to have approved of or consented to, or to be satisfied with, each of the matters set forth in Sections 5.01 (Conditions Precedent to the Execution Date), 5.02 (Conditions Precedent to FFB Purchase of the FFB Note), 5.03 (Conditions Precedent to the First Advance Date Under Tranche 1), 5.04 (Conditions Precedent to the First Advance Date Under Tranche 2), 5.05 (Conditions Precedent to Each Advance Date Under Tranche 2) and 5.06 (Conditions Precedent to FFB Advance) that must be approved or consented to by, or satisfactory to, FFB.

Article VI

Representations and Warranties

To induce DOE to enter into this Agreement and to arrange for FFB to purchase the FFB Note and offer extensions of credit thereunder, the Borrower makes each of the following representations and warranties to and in favor of DOE and FFB as of: (a) the Execution Date; (b) each Advance Date (both immediately before and immediately after giving effect to the Advances, if any, being made on such date); (c) the Project Completion Date, except as such representations and warranties are expressly made as to an earlier date, in which case such representations and warranties will be true as of such earlier date:

Section 6.01Organization and Existence. The Borrower:

(a)is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;

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(b)is duly qualified to do business in, and in good standing in, the State of Montana and each other jurisdiction where the failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect; and

(c)has all requisite power and authority to:

(i)own or hold under lease and operate the property it purports to own or hold under lease;

(ii)carry on its business as now being conducted and as proposed to be conducted in respect of the Project;

(iii)incur Indebtedness and create Liens on all and any of its properties; and

(iv)execute, deliver, perform and observe the terms and conditions of each of the Transaction Documents to which it is a party.

Section 6.02Authorization; No Conflict. The Borrower has duly authorized, executed and delivered the Transaction Documents to which it is a party, and none of: (a) its execution and delivery thereof; (b) its consummation of the transactions contemplated hereby or thereby nor its compliance with the terms of this Agreement or thereof; and (c) the issuance of the FFB Note, the borrowings under the FFB Documents, the use of the proceeds thereof and FFB Note Reimbursement Obligations hereunder, in each case, do or will (i) contravene its Organizational Documents or any Applicable Laws; (ii) contravene or result in any breach or constitute any default under any Governmental Judgment; (iii) contravene or result in any breach, constitute any default, or result in or require the creation of any Lien upon any of its properties, in each case, under any agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for any Permitted Liens; or (iv) require the consent or approval of any Person other than the Required Approvals and any other consents or approvals that have been obtained and are in full force and effect.

Section 6.03Capitalization. All of the Equity Interests of the Borrower have been duly authorized, validly issued, are fully paid and non-assessable, and are directly owned by the Direct Parent, free and clear of all Liens other than Liens securing the Existing Credit Facilities, which shall be released on the date of the First Advance under Tranche 1 and Liens created under the Equity Pledge Agreement.  No options or rights for conversion into or acquisition, purchase or transfer of Equity Interests of the Borrower or any agreements or arrangements for the issuance by the Borrower of additional Equity Interests are outstanding.  The Borrower does not have outstanding (a) any securities convertible into or exchangeable for its Equity Interests; or (b) any rights to subscribe for or to purchase, or any option for the purchase of, or any agreement, arrangement or understanding providing for the issuance (contingent or otherwise) of, or any call, loan commitment or claims of any character relating to, its Equity Interests.

Section 6.04Solvency.

(a)The value of the assets (at fair value and present fair saleable value or at book value) of the Borrower is, on the date of determination, greater than the amount of liabilities at book value (including contingent and unliquidated liabilities) of the Borrower as of such date.  As of the date of determination, the Borrower is able to pay all of its liabilities as such liabilities mature and does not have an unreasonably small capital.  In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

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(b)The Borrower is not the subject of any pending or, to the Borrower’s Knowledge, threatened Insolvency Proceedings.

(c)No corporate action, legal proceedings or other procedure or step is being considered or prepared by the Borrower that could trigger the occurrence of any event or circumstance described in Section 10.01(k) (Bankruptcy; Insolvency; Dissolution).

Section 6.05Eligibility of Borrower; Project. The Borrower has satisfied each of the conditions contained in the Program Requirements (a) to be classified as an Applicant; and (b) to classify the Project-related manufacturing facilities as Eligible Projects.

Section 6.06Transaction Documents. Each Transaction Document to which the Borrower is (or will be when executed) a party is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

Section 6.07Required Approvals.

(a)The Required Approvals Schedules set forth all Required Approvals, other than Governmental Approvals and other consents and approvals that, in each case, are of a routine nature and can be obtained in the Ordinary Course of Business.

(b)Part A of the Required Approvals Schedule sets forth all of the Required Approvals that are necessary or required to be obtained by the Execution Date under Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of its properties or, to the Borrower’s Knowledge, any Major Project Participant for the purpose of fulfilling its obligations under the applicable Major Project Document.  As of the Execution Date, and as of each date thereafter that this representation is to be made, each Required Approval set forth in Part A of the Required Approvals Schedule has been duly and validly issued, is in full force and effect, Non-Appealable and free of any unduly burdensome conditions.

(c)Part B of the Required Approvals Schedule includes all of the Required Approvals that are not required to be obtained until after the Execution Date under Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of its properties or, to the Borrower’s Knowledge, any Major Project Participant for the purpose of fulfilling its obligations under the applicable Major Project Document.

(d)Any Required Approval listed on Part B of the Required Approvals Schedule that is required to be obtained, as of any date on which this representation is made, pursuant to and in accordance with the terms of the Transaction Documents, Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of its properties or, to the Borrower’s Knowledge, any Major Project Participant for the purpose of fulfilling its obligations under the applicable Major Project Document, has been duly and validly issued, is in full force and effect, Non-Appealable and free of any unduly burdensome conditions, and the Borrower has no reason to believe that any such Required Approvals already obtained will be revoked.

(e)As of any date on which this representation is made, all applications required to timely procure any Required Approval listed on Part B of the Required Approvals Schedule have been prepared and submitted. The Borrower has received no indication and does not have any reason to believe that it, any other Borrower Entity or, to the Borrower’s Knowledge, any Major Project Participant will be unable to obtain the Required Approvals set forth in Part B of the Required Approvals Schedule applicable

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to it in the Ordinary Course of Business free from conditions or requirements and at such time or times as may be necessary to avoid any material delay in, or impairment to the transactions contemplated by, the Transaction Documents.

(f)The Borrower, each Borrower Entity and, to the Borrower’s Knowledge, each Major Project Participant is in compliance in all material respects with all Required Approvals that have been obtained by, or are otherwise applicable to, such Person.

Section 6.08Litigation. Except as set forth in Schedule 6.08 or as otherwise disclosed to and expressly waived in writing by DOE, there are no Adverse Proceedings pending or, to the Borrower’s Knowledge, threatened in writing that relate to:

(a)the legality, validity or enforceability of any Financing Document or any Major Project Document;

(b)any transaction contemplated by any Financing Document or any Major Project Document; or

(c)the Project; or

(d)any Borrower Entity (other than a Passive Sponsor) or any Project Document other than a Major Project Document

that (i) (excluding any Adverse Proceeding contemplated under clause (a) or (b) above) either individually or in the aggregate has, or could reasonably be expected to have a Material Adverse Effect or (ii) has had or could reasonably be expected to have a value greater than one million Dollars ($1,000,000), individually, or five million Dollars ($5,000,000), in the aggregate.

Section 6.09Indebtedness. The Borrower has no outstanding Indebtedness other than Permitted Indebtedness.

Section 6.10Security Interests; Liens.

(a)Pursuant to the Security Documents, the Collateral Agent has a legal, valid, enforceable and perfected First Priority Lien in the Collateral subject only to Permitted Liens.  

(b)Such security interest in the Collateral is and, with respect to any after-acquired property, when so subsequently acquired, will be superior and prior to the rights of all third Persons now existing or hereafter arising, whether by way of deed of trust, mortgage, Lien, security interests, encumbrance, assignment or otherwise, other than Permitted Liens.  

(c)On the First Advance Date under Tranche 1, all documents and instruments, including the Real Property Documents, as required, will have been recorded or filed for record or submitted for recording in such manner and in such places as are required and all other action as is necessary or desirable have been taken to establish and perfect the Collateral Agent's Lien in and to the Collateral (for the benefit of the Secured Parties) to the extent contemplated by the Security Documents.

(d)All Taxes (including stamp taxes) and filing fees and Secured Party Expenses that are due and payable in connection with the execution, delivery or recordation of the Mortgages or any other Transaction Document, or the mortgaging of the mortgaged property under the Mortgages, have been paid.

(e)Except for Permitted Liens, neither the Borrower nor any other owner of any of the Collateral has created or is under any obligation to create or has entered into any transaction or agreement

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that would result in the imposition of, any Lien upon any of the Collateral.  Other than Liens securing the Existing Credit Facilities, which shall be released on the First Advance Date of Tranche 1, there are no Liens on the Equity Interests of the Borrower other than those created under or permitted by the Equity Pledge Agreement and liens described in clause (b) above.

Section 6.11Taxes.

(a)The Borrower has filed all tax returns required by Applicable Laws to be filed by it and has paid (i) all income Taxes that have become due pursuant to such tax returns, and (ii) all other material Taxes and assessments payable by it that have become due (other than those Taxes that it is contesting in accordance with the Permitted Contest Conditions).

(b)Assuming that each Secured Party, to the extent applicable, provides a properly completed IRS Form W-9 to establish its status as a United States person and to certify that such Secured Party is exempt from U.S. federal backup withholding tax (or, in the case of any Secured Party that is not a United States person, a properly completed applicable Form W-8 or other certificate, form or documentation establishing an exemption from U.S. federal withholding Taxes), no withholding Taxes are payable by the Borrower to any Governmental Authority in connection with any amounts payable by the Borrower under or in respect of the Financing Documents.  

(c)DOE’s execution and delivery of this Agreement and issuance of the Loan Guarantee, and any determination by DOE that any Project Costs are Eligible Project Costs, in each case, (i) does not prejudice or otherwise have any binding effect with respect to any determination by the Internal Revenue Service, the U.S. Department of Treasury or a court of law as to the tax basis of the Project or any part thereof under the Code, (ii) does not constitute a determination regarding, and is unrelated to whether the Borrower or such other Borrower Entity or the Project has complied or will comply with Federal tax law and (iii) will not be used to demonstrate or prove that the Borrower or such other Borrower Entity or the Project complied with the requirements to claim a tax credit or other amount under the Code in an administrative or judicial proceeding.

Section 6.12Financial Statements.

(a)Each of the Historical Financial Statements and each Financial Statement of the Borrower, Direct Parent and Sponsors (to the extent required) delivered to DOE pursuant to Section 8.01 (Financial Statements) is complete and correct, has been prepared in accordance with the Designated Standard and presents fairly, in all material respects, the financial condition of the Borrower or such Sponsor, as applicable, as of the respective dates of the Financial Statements for the respective periods covered therein.  

(b)Such Financial Statements reflect all liabilities or obligations of the relevant Borrower Entity of any nature whatsoever for the period to which such Financial Statements relate that are required to be disclosed in accordance with the Designated Standard.  

(c)As of the Execution Date or the date of delivery of such Financial Statements pursuant to Section 8.01 (Financial Statements), as applicable, or the respective date of such Financial Statements, whichever is earlier, none of the Borrower, the Direct Parent, such Sponsors and the applicable Borrower Entities has incurred or assumed any liabilities or obligations that would be required to be disclosed in accordance with the Designated Standard and which are not reflected in such Financial Statements or the notes thereto.

Section 6.13Business; Other Transactions.

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(a)The Borrower has not conducted any business other than the business contemplated by the Transaction Documents and such other business as may be related to the Project.

(b)The Borrower is not a party to, or bound by, any contract other than those contracts permitted under the Financing Documents.

(c)Except as provided in the Financing Documents, the Borrower has not executed and delivered any powers of attorney or similar documents.

(d)The Borrower has not paid or become obligated to pay: (i) any fee or commission to any broker, finder or intermediary for or on account of arranging the financing of the transactions contemplated by the Transaction Documents, or (ii) any contingency fee (computed as a percentage of any amount of the Guaranteed Loan) to any financial or other professional advisors of the Borrower.

(e)Except as set forth on Schedule 6.13(e) (Affiliate Transactions), the Borrower is not a party to any contract or agreement with, and does not have any other loan commitment to, any Affiliate.

(f)The Borrower has not: (i) entered into any transaction or series of related transactions with any Person (including any Affiliate) other than in the Ordinary Course of Business and on an arm's length basis; or (ii) entered into any transaction whereby the Borrower might pay more than the fair market value for products of others.

(g)The Borrower has not made any Investments other than Permitted Investments.

(h)The Borrower has no Subsidiaries and does not legally or beneficially own any Equity Interests of any other Person.

(i)Each of the Project Milestone Schedule and Integrated Schedule and Spending Plan, as amended or supplemented in accordance with the provisions of this Agreement: (i) is complete and based on reasonable assumptions made in good faith; and (ii) is consistent with the provisions of the Transaction Documents.

(j)The Borrower has maintained adequate internal controls, reporting systems and cost control systems that are designed to ensure that the Borrower satisfies its obligations under the Financing Documents.

Section 6.14Accounts. As of the First Advance Date under Tranche 1, the Borrower does not own or maintain any accounts with a bank or financial institution other than the Project Accounts and the Company Account.

Section 6.15Property.

(a)Title to Collateral

(i)Schedule 6.15-1 (Phase 1 Project Site) identifies the land comprising the Phase 1 Project Site. Schedule 6.15-2 (Project Site) identifies the land comprising the Project Site  

(ii)As of the Execution Date, the Borrower has valid leasehold, subleasehold, and easement interests in the Phase 1 Project Site free and clear of any Lien of any kind, except for Permitted Liens, and other than Permitted Liens, no contracts or arrangements, conditional or unconditional, exist for the creation by the Borrower of any Lien on any property, other than the Security Documents; and none of the Permitted Liens, individually or in the aggregate, would materially impair the development,

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construction, operation, or use by (or for the benefit of) the Borrower of the Phase 1 Project Site for Phase 1.  

(iii)As of the First Advance Date under Tranche 1, the Borrower has valid leasehold, subleasehold, and easement interests in the Project Site, or irrevocable options to obtain such interests in, the Project Site, free and clear of any Lien of any kind, except for Permitted Liens, and other than Permitted Liens, no contracts or arrangements, conditional or unconditional, exist for the creation by the Borrower of any Lien on the Project Site, other than the Security Documents; and none of the Permitted Liens, individually or in the aggregate, would materially impair the development, construction, operation, or use by (or for the benefit of) the Borrower of the Project Site for the Project.

(iv)As of the First Advance Date under Tranche 1, all easements, leasehold and other Real Property interests and utility and other related services, means of transportation, facilities, other materials and Real Property rights that can reasonably be expected to be necessary for the construction, completion and operation of the Project in accordance with Applicable Laws and the Transaction Documents have been procured under the Major Project Documents.

(b)Leases. Any Leases material to the Project in existence on the date of this representation and under which the Borrower is a lessee, sublessee or licensee are valid and subsisting, the Borrower is not in default under any of such Leases, the Borrower enjoys peaceful and undisturbed possession of the Real Property subject to such Leases, and the Borrower has the right to continue to enjoy such possession during the time when such Real Property is necessary for the Project.

(c)Project Site. The Project Site is sufficient and appropriate in all respects for the development, siting, design, engineering, construction, ownership, operation, maintenance and use of the Project as contemplated by the Transaction Documents.

(a)Boundaries.  Except as shown on the Site Map (or the BNSF Site Map, if applicable), all of the improvements on the Project Site lie wholly within the boundaries and building restriction lines of the Project Site, and no improvements on adjoining properties encroach upon the Project Site, and no improvements on the Project Site encroach upon or violate any easements or other encumbrances upon the Project Site, in each case, so as to materially impair the development, construction, operation, or use by (or for the benefit of) the Borrower of the Project Site for the Project, except those which are insured against by title insurance. To Borrower's Knowledge, the Site Map (or the BNSF Site Map, if applicable) does not fail to reflect any material matter affecting the Project Site or the title thereto.

(b)Condemnation.  No condemnation or adverse zoning or usage change proceeding has occurred been threatened against any of the Real Property that could materially impair the development, construction, operation, access to or use by (or for the benefit of) the Borrower of the Project Site for the Project.

Section 6.16Project Milestone Schedule and Construction Budget; Operating Forecasts and Base Case Financial Model.

(a)The Construction Budget, the Project Milestone Schedule, Integrated Schedule and Spending Plan and the Base Case Financial Model:

(i)are complete and based on reasonable assumptions;

(ii)are consistent with the provisions of the Project Documents related thereto;

(iii)have been prepared in good faith and with due care; and

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(iv)fairly represent the Borrower's expectation as to the matters covered thereby as of any date on which this representation is made or deemed made.

(b)The Project Milestone Schedule accurately specifies in summary form the work that each Construction Contractor and Equipment Supplier proposes to complete on or before the deadlines specified therein.

(c)The Construction Budget represents the Borrower’s best estimate of Total Project Costs anticipated to be incurred to achieve the Project Completion Longstop Date.  The Construction Budget has not been amended or changed in any material respect other than to reflect changes resulting from Approved Construction Changes.

(d)The Borrower’s good faith estimate and belief is that the Project Completion Date will occur no later than the Project Completion Longstop Date.

(e)The Borrower believes that it is technically feasible for the Project to be constructed, completed, operated and maintained so as to fulfill in all material respects the design specifications and requirements contained in the Major Project Documents.

Section 6.17Intellectual Property.

(a)Schedule 6.17(a) (Intellectual Property) identifies all of the Project IP and all of the Project IP Agreements. The Borrower exclusively owns, or has a valid and enforceable license or right to use, all Project IP.

(b)Neither the Borrower nor any other Borrower Entity is in breach of or default under any Project IP Agreement then in effect.  To the Borrower’s Knowledge, there are no facts or circumstances that would be reasonably expected (after the giving of notice, the lapse of time, or both) to give rise to any revocation or termination of any Project IP Agreement, or the Borrower’s rights or licenses to Project IP thereunder.

(c)Borrower's right, title and interest in and to the Project IP owned by Borrower is free and clear of all Liens, except for Permitted Liens.

Section 6.18Infringement; No Adverse Proceedings.

(a)Neither the Borrower, its respective businesses, nor the development, design, engineering, procurement, construction, starting up, commissioning, ownership, operation, use or maintenance of the Project infringe upon, misappropriate or otherwise violate the Intellectual Property of any Person.

(b)There is no objection to, challenge to the validity of, or any Adverse Proceeding past, present, or pending to which Borrower or any other Borrower Entity is a party, and no Adverse Proceeding threatened in writing and no written objection (including any demand to take a license to Intellectual Property) against the Borrower or any other Borrower Entity: (i) alleging any infringement, misappropriation or other violation of the Intellectual Property of any Person: (A) by the Borrower; or (B) with respect to the development, design, engineering, procurement, construction, starting up, commissioning, ownership, use or maintenance of the Project; or (ii) challenging the validity, enforceability, ownership or use of any Project IP owned by Borrower.  There are no facts or circumstances that would be reasonably expected to give rise to any such Adverse Proceeding.

(c)No Person is infringing, misappropriating or otherwise violating any Project IP owned by the Borrower or any other Borrower Entity.  There is no Adverse Proceeding pending to which

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the Borrower is a party or threatened in writing by the Borrower or any other Borrower Entity, alleging such infringement, misappropriation or other violation.

Section 6.19No Amendments to Transaction Documents. None of the Transaction Documents to which the Borrower is a party has been amended, modified or terminated, except in accordance with or as permitted by this Agreement or as disclosed to DOE and consented to in writing by DOE.

Section 6.20Compliance with Laws; Program Requirements. The Borrower is in compliance with, and has conducted and is conducting its business in compliance with, (a) all Applicable Law (including all Program Requirements with respect to the Project), (b) in all material respects, all Required Approvals and (c) its Organizational Documents.

Section 6.21Investment Company Act. The Borrower is not an "investment company," or a company "controlled" by an "investment company," within the meaning of the Investment Company Act, or subject to regulation thereunder.

Section 6.22Margin Stock. No part of the proceeds of any Advance, and no other extensions of credit under the FFB Documents, will be used, directly or indirectly, to purchase or carry any margin stock within the meaning of Regulation T, U or X of the Board, or any regulations, interpretations or rulings thereunder, or for any purpose that violates any regulation of the Board.

Section 6.23Anti-Corruption Laws.

(a)Each Borrower Entity and its directors, officers, employees and, to such Borrower Entity's Knowledge, agents, are, and for the last five (5) years have been, in compliance with all Anti-Corruption Laws.

(b)There are no Adverse Proceedings pending or, to the Borrower's Knowledge, threatened against or affecting any Borrower Entity or their respective directors, officers or employees regarding any actual or alleged non-compliance with any Anti-Corruption Laws.

(c)No Borrower Entity, nor its directors, officers, employees nor, to such Borrower Entity's Knowledge, agents, has made, offered or promised to make, provided or paid any unlawful contributions, entertainment or anything of value to any local or foreign official, foreign political party or party official or any candidate for foreign political office:

(i)in order to influence any act or decision of any foreign official, foreign political party, party official or candidate for foreign political office in his or her official capacity, including a decision to fail to perform his or her official functions;

(ii)to secure an unlawful or improper advantage; or

(iii)with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to any Borrower Entity or any of its Affiliates or to any other Person, in violation of any applicable Anti-Corruption Law.

Section 6.24Environmental Laws.

(a)All Required Approvals for the Project relating to (i) air emissions; (ii) discharges to surface water or ground water; (iii) noise emissions; (iv) solid or liquid waste disposal; (v) the use, generation, storage, transportation or disposal of toxic or Hazardous Substances or wastes; or (vi) otherwise required under applicable Environmental Law have been obtained and are final and Non-Appealable.

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(b)The Borrower has not received, and the Borrower does not have Knowledge of any facts, circumstances, conditions, actions, activities, or events that have resulted or could reasonably be expected to result in any, Environmental Claim against or affecting the Project, or the Project Site that is, or could reasonably be expected to become material.

(c)There is not and has not been any condition, circumstance, action, activity or event with respect to the Project, the Borrower or the Project Site that could reasonably form the basis of any violation of any Environmental Law or that could reasonably be expected to have a Material Adverse Effect or result in material harm to environmental, health or safety matters.  The Borrower is and has been in compliance with all applicable Environmental Law.

(d)None of the Borrower, any Borrower Entity nor, to the Borrower’s Knowledge, any other Person, has used, generated, manufactured, produced, stored, transported or Released, on, from, under or about the Project Site or transported thereto or therefrom, any Hazardous Substances in any manner that violates Applicable Law or violates the terms and conditions of any Required Approval and could reasonably be expected to (i) form the basis of an Environmental Claim; (ii) cause the Project to be subject to any restrictions arising under Environmental Laws; (iii) have a Material Adverse Effect; or (iv) result in material harm to the environment, health or safety.

(e)The Borrower is in compliance with the Mitigation Action Plan.

Section 6.25Employment and Labor Contracts.

(a)As of the Execution Date:

(i)with respect to the Project, the Borrower is not or has not been within the past two (2) years (A) a party to or bound by any collective bargaining or similar agreement with any union, labor organization or other bargaining agent; or (B) subject to any labor disputes, strikes or work stoppages, requests for arbitration, grievance proceedings or union negotiations or organizational efforts; and

(ii)to the Borrower’s Knowledge, with respect to the Project, there has not been in the past three (3) years, any organized effort or demand for recognition or certification or attempt to organize employees of the Borrower by any labor organization.

(b)There are no strikes, slowdowns or work stoppages ongoing or threatened in writing by the employees of any of the Borrower or, to the Borrower’s Knowledge, any Major Project Participant that have caused or could reasonably be expected to cause a Material Adverse Effect.

Section 6.26Davis-Bacon Act.

(a)The Borrower Entities and all DBA Contract Parties under each Davis Bacon Act Covered Contract have taken all necessary steps to comply with and are in compliance (including retroactive compliance) with the Davis-Bacon Act Requirements.  

(b)As of the Execution Date, there are no Davis-Bacon Act Covered Contracts except for those listed in Schedule 6.26(b) (Davis-Bacon Act Covered Contracts).

(c)If and to the extent construction, alteration or repair (within the meaning of 29 C.F.R. §5.5(a)) of the Project began prior to the Execution Date, the Borrower Entities have prior to the Execution Date, retroactively adjusted, and caused each DBA Contract Party to retroactively adjust, the wages of each affected laborer and mechanic employed in the construction, alteration or repair of the Project prior to the Execution Date, and paid or caused to be paid to each such laborer or mechanic such additional wages, if any, as were necessary for such laborers and mechanics to have been paid at rates not less than

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those prevailing on similar work in the relevant locality during the period such work was performed, as determined by the Secretary of Labor in accordance with the Davis-Bacon Act wage determinations attached to Exhibit G (Davis-Bacon Act Contract Provisions).

Section 6.27ERISA.

(a)The Borrower and each of its ERISA Affiliates have operated the Employee Benefit Plans in compliance with their terms and with all applicable provisions and requirements of the Code, ERISA and all other Applicable Law and have performed all their respective obligations under such plan.

(b)Each Employee Benefit Plan has been determined by the IRS to be so qualified or is in the process of being submitted to the IRS for approval or will be so submitted during the applicable remedial amendment period, and, nothing has occurred since the date of such determination that would adversely affect such determination (or, in the case of an Employee Benefit Plan with no determination, nothing has occurred that would materially adversely affect such qualification).

(c)There exists no Unfunded Pension Liabilities with respect to Employee Benefit Plans in the aggregate, taking into account only Employee Benefit Plans with positive Unfunded Pension Liabilities.

(d)There are no Adverse Proceedings pending against or threatened involving an Employee Benefit Plan (other than routine claims for benefits) or, to the Borrower’s Knowledge, any Borrower Entity or any ERISA Affiliate, which would reasonably be expected to be asserted successfully against any Employee Benefit Plan and, if so asserted successfully, would reasonably be expected, either singly or in the aggregate, to have a Material Adverse Effect.

(e)No ERISA Event has occurred or is reasonably expected to occur.

(f)Except to the extent required under Section 4980B of the Code or comparable state law, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any ERISA Affiliate.

(g)The execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder (or the exercise by DOE of its rights under this Agreement) will not involve any non-exempt transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code.

(h)(i) The assets of the Borrower do not and will not constitute (A) "plan assets" within the meaning of Section 3(42) of ERISA and DOL Regulations set forth in 29 C.F.R. 2510.3-101, or (B) the assets of any governmental, church, non-U.S. or other plan ("Similar Law Plan"), and (ii) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to any Similar Law Plan.

(i)Neither any Borrower Entity nor any ERISA Affiliate has ceased operations at a facility so as to become subject to the provisions of Section 4068(a) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or ceased making contributions to any Employee Benefit Plan subject to Section 4064(a) of ERISA to which it made contributions.

(j)Neither any Borrower Entity nor any ERISA Affiliate has incurred or reasonably expects to incur any liability to PBGC save for any liability for premiums due in the ordinary course or other liability which would not reasonably be expected to have, either singly or in the aggregate, a Material Adverse Effect.

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Section 6.28Sanctions and Anti-Money Laundering Laws.

(a)None of the Borrower, any Borrower Entity or any of their Affiliates is a Prohibited Person, and each of the Borrower, the Sponsor, and their respective directors, officers, employees and, to the Borrower's Knowledge, agents, are and for the last five (5) years have been in compliance with all Sanctions.

(b)No Borrower Entity or any of their respective members, directors, officers, employees or, to the Borrower's Knowledge, agents, is a Prohibited Person.

(c)None of the Collateral is owned, traded or used, directly or, to the Borrower's Knowledge, indirectly by a Prohibited Person or is located or organized in a Prohibited Jurisdiction.

(d)The Borrower and each Borrower Entity, and their respective directors, officers, employees and, to the Borrower's Knowledge, agents, are and for the last five (5) years have been in compliance with all applicable Anti-Money Laundering Laws.

(e)There are no Adverse Proceedings pending or, to the Borrower's Knowledge, threatened, against or affecting any Borrower Entity or their respective directors, officers, or employees regarding any actual or alleged non-compliance with any Sanctions or Anti-Money Laundering Laws.

(f)The Borrower has implemented, maintained, and at all times complied with policies and procedures reasonably designed to ensure compliance with all applicable International Compliance Directives and Anti-Money Laundering Laws.

Section 6.29Cargo Preference Act. The Borrower is in compliance with the Cargo Preference Act of 1954, as amended, and all related implementing regulations with respect to all equipment, materials and commodities procured, contracted or obtained in connection with the Project, or has entered into an agreement with the United States Maritime Administration with respect to such compliance.

Section 6.30Lobbying Restriction. The Borrower is in compliance with all requirements of 31 U.S.C. § 1352, as amended, including the requirement that no proceeds of the Advances be expended by the Borrower or any of its Affiliates to pay any Person for influencing or attempting to influence an officer or employee of any federal agency, a member of the U.S. Congress, an officer or employee of the U.S. Congress, or an employee of a member of Congress in connection with the making of the Guaranteed Loan or any other action described in 31 U.S.C. § 1352(a)(2).

Section 6.31Federal Funding. No application has been delivered by the Borrower to, and no application is pending review or approval by, any Governmental Authority for allocation of Federal Funding to the Project.

Section 6.32No Federal Debt Delinquency. No Borrower Entity has:

(a)any judgment Lien against any of its Property for a debt owed to the United States or any other creditor, or

(b)any Indebtedness (other than a debt under the Code) owed to the United States or any Governmental Authority thereof that is in delinquent status, as the term "delinquent status" is defined in 31 C.F.R. 285.13(d), including any Tax liabilities (other than those Tax liabilities contested in accordance with the Permitted Contest Conditions), except to the extent such delinquency has been resolved with the appropriate Governmental Authority in accordance with Applicable Law.

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Section 6.33No Tax-Exempt Indebtedness. Neither the Guaranteed Loan nor the FFB Note Reimbursement Obligations finance, either directly or indirectly, tax-exempt debt obligations, consistent with the requirements of Section 149(b) of the Code.

Section 6.34Sufficient Funds. The remaining Loan Commitment Amount, the remaining Base Equity Commitment (including amounts projected to be paid from the Base Cash Equity Reserve Account pursuant to the latest Base Case Financial Model), the remaining Contingent Equity Commitment (in the amounts and at the times required pursuant to the Sponsor Support Agreement), any amounts on deposit in the Base Cash Equity Reserve Account in excess of $80 million and any amounts on deposit in the Construction Account and, with respect to any date on which this representation is made which is an Advance Date, the amount of the requested Advance are, collectively, sufficient to pay all remaining Project Costs (including any reasonably expected Cost Overruns) in accordance with the then-applicable Construction Budget and Project Milestone Schedule and to achieve Project Completion by the Project Completion Longstop Date.

Section 6.35Use of Proceeds. The Borrower has used the proceeds of each Advance in accordance with Section 2.04(e) (Disbursement of Proceeds) and the other terms and conditions of all applicable Financing Documents.

Section 6.36No Immunity. No Borrower Entity nor any of its assets is entitled to immunity in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Transaction Document.

Section 6.37No Fraudulent Intent. Neither the execution and delivery of this Agreement or any of the other Transaction Documents nor the performance of any actions required hereunder or thereunder is being undertaken by the Borrower with or as a result of any actual intent by the Borrower to hinder, delay or defraud any entity to which the Borrower is now or will hereafter become indebted.

Section 6.38Disclosure.

(a)The statements and information contained in the Financing Documents, taken together with all documents, reports or other written information pertaining to the Project that have been furnished by or on behalf of the Borrower or any other Borrower Entity to DOE or any Secured Party Advisor from time to time, are true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading at the time they were made.

(b)There are no facts, documents or agreements that have not been disclosed to DOE in writing that could reasonably be expected to be material to DOE's decision to enter into this Agreement or the transactions contemplated hereby or authorize any Advance or that could otherwise reasonably be expected to materially and adversely alter or affect the Project.

Section 6.39Insurance. From and after the Execution Date, all Required Insurance is in full force and effect.

Section 6.40Information Technology; Cyber Security .

(a)The information technology (including data communications systems, equipment and devices) used in the business of the Borrower ("IT Systems") operates and performs in all material respects as necessary: (i) for the development, design, engineering, procurement, construction, starting up, commissioning, ownership, operation or maintenance of the Project; (ii) to complete the activities

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designated to be completed to achieve Project Completion; or (iii) to exercise the Borrower's rights and perform its obligations under the Major Project Documents, as applicable at the relevant time.

(b)The Borrower has implemented and maintains, and has caused each other Borrower Entity (as applicable) and Major Project Participant (as applicable) to implement and maintain in connection with the Project, commercially reasonable privacy, information security, cyber security, disaster recovery, business continuity, data backup and incident response plans, policies and procedures consistent with industry standards (including administrative, technical and physical safeguards) designed to protect: (i) Sensitive Information from any unauthorized, accidental, or unlawful Processing or loss; (ii) each IT System from any unauthorized or unlawful access, acquisition, use, control, disruption, destruction, or modification; and (iii) the integrity, security and availability of the Sensitive Information and IT Systems.

(c)In the past five (5) years, neither the Borrower, nor to the Borrower's Knowledge, any Person that Processes Sensitive Information on behalf of the Borrower, has suffered any data breaches or other incidents that have resulted in: (i) any unauthorized Processing of any Sensitive Information; or (ii) any unauthorized access to or acquisition, use, control or disruption of or any corruption of any of the IT Systems owned or controlled by Borrower in any material respect.

(d)The Borrower is and, during the past five (5) years has been, in material compliance with: (i) all applicable Data Protection Laws; and (ii) all contractual obligations, and all privacy notices and policies, binding on the Borrower related to the Processing of Personal Information.

(e)In the past five (5) years, the Borrower has not received: (i) any written claims related to any unauthorized Processing (including any ransomware incident), or any loss, theft, corruption, or other misuse of any Personal Information Processed by the Borrower; or (ii) any written notice (including by any Governmental Authority) of any claims, investigations, or alleged violations relating to any Personal Information Processed by the Borrower.

Section 6.41CFIUS. No approval from, or notice to, the Committee on Foreign Investment (“CFIUS”) in the United States is required with respect to the Project.

Section 6.42Certain Events .

(a)No Default, Event of Default, Event of Force Majeure or Event of Loss has occurred and is continuing or is reasonably expected to occur.

(b)No material breach or default has occurred and is continuing under any Major Project Document.

Section 6.43No Material Adverse Effect. No event (including any legal, arbitral or other dispute review proceeding or any change in law) has occurred and is continuing that has or could reasonably be expected to have or result in a Material Adverse Effect.

Article VII

Affirmative covenants

The Borrower hereby agrees that, until the Release Date:

Section 7.01Maintenance of Existence; Property; Etc.The Borrower shall preserve and maintain (i) its legal existence; and (ii) all of its licenses, rights, privileges and franchises material to the conduct of its business and the Project.

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(a)The Borrower shall keep (or cause to be kept) all its Properties and IT Systems in good working order and condition to the extent necessary to ensure that its business can be conducted properly, continuously and in compliance with all Applicable Laws, Required Approvals and its Organizational Documents at all times.

(b)Except as otherwise permitted hereunder, the Borrower shall preserve and maintain good and marketable title to or leasehold interest in or rights to the Collateral and such rights to use the Project Site as are necessary to construct, operate and maintain the Project in accordance with the requirements of the Transaction Documents and the Project Milestone Schedule, and shall, at its own expense, take all actions to ensure that it has sufficient rights to the Project Site as are necessary for the development, construction and operation of the Project as contemplated by the Transaction Documents.

Section 7.02Intellectual Property.

(a)Maintenance of Project IP. The Borrower shall at all times: (i) acquire and maintain ownership of all Project IP then required; or (ii) obtain and maintain its licenses or rights to use all Intellectual Property owned by any other Person necessary: (A) for Project Completion; and (B) to exercise its rights and perform its obligations under the Major Project Documents, in each case, as applicable at the relevant time.

(b)Protection of Project IP. The Borrower shall take all commercially reasonable steps to: (i) protect, enforce, preserve and maintain its rights, title or interests in and to the Project IP, including maintaining and pursuing any application, registration or issuance for Project IP owned by the Borrower, which the Borrower, in its reasonable business judgment, believes should be maintained and pursued; (ii) protect the secrecy and confidentiality of all the Borrower’s Trade Secrets included in the Project IP, or with respect to which the Borrower, has any confidentiality obligation; and (iii) comply in all material respects with the terms and conditions of the Project IP Agreements.  If (A) any Project IP owned by the Borrower or licensed under any Project IP Agreement to the Borrower becomes, as applicable (I) abandoned, lapsed, dedicated to the public or placed in the public domain, (II) invalid or unenforceable, or (III) subject to any adverse action or proceeding before any intellectual property office or registrar; and (B) the foregoing, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, then, after the Borrower obtains Knowledge thereof, the Borrower shall notify DOE thereof in accordance with Section 8.03(g) (Notices).

(c)Continued Security Interest in Project IP. The Borrower shall, promptly upon the reasonable request of DOE, execute (or procure the execution of) and deliver to DOE any document and take all actions necessary to acknowledge, confirm, register, record or perfect DOE's security interest in any part of the Project IP (including the filing of the IP Security Agreement with the United States Patent and Trademark Office, the United States Copyright Office, or the corresponding entities in any applicable jurisdiction), whether such interest is now owned or hereafter acquired (whether by application, registration, purchase or otherwise).

(d)Protection Against Infringement. In the event that the Borrower has Knowledge of any breach or violation of any of the terms or conditions of any Project IP Agreement or that any material Project IP owned by any Borrower Entity is infringed, misappropriated or otherwise violated by any Person, the Borrower shall (i) take actions or inactions that are, in the Borrower's reasonable judgment, appropriate under the circumstances (taking into account Applicable Law with respect to such infringement, misappropriation or other violation), and protect its rights in such Project IP, and (ii) after the Borrower obtains Knowledge of such infringement, misappropriation or other violation, notify DOE in accordance with Section 8.03(g) (Notices).

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(e)Notice of Borrower's Alleged Infringement. In the event that the Borrower has Knowledge of any Adverse Proceeding alleging that the Borrower, its respective businesses, or the development, design, engineering, procurement, construction, starting up, commissioning, ownership, operation, use or maintenance of the Project, is infringing, misappropriating or otherwise violating any Intellectual Property of any Person, the Borrower shall (i) take such actions that are, in the Borrower's reasonable business judgment, appropriate under the circumstances to avoid or avert a Material Adverse Effect; and (ii) after the Borrower obtains Knowledge thereof, report such notice or communication relating thereto to DOE in accordance with Section  8.03(g) (Notices).

(f)License Grant. The Borrower hereby grants, and shall cause each applicable Borrower Entity and each licensor of Project IP under a Project IP Agreement to grant or otherwise permit to grant, to the Secured Parties a Secured Parties’ License.

(g)Source Code Escrow. With respect to any and all Project Source Code, the Borrower shall, and shall cause each applicable Borrower Entity to, at a Borrower Entity’s cost and expense:

(i)no later than six (6) months after the Execution Date, and thereafter, upon execution of any Project IP Agreement containing Source Code enter into a Source Code escrow agreement for the benefit of the Secured Parties with an escrow agent approved by DOE containing:

(A)terms and conditions (including release conditions, such conditions to include an unwillingness or inability to support or maintain the Software) that are usual and customary for Source Code escrow arrangements satisfactory to DOE; and

(B)the grant to the Secured Parties by the Borrower Entity or the third party that licenses Source Code to the Borrower, as applicable (effective as of such date, or if acquired later, upon such acquisition date, but enforceable following the occurrence of any release condition specified in the Source Code escrow agreement) of an irrevocable, perpetual, non-exclusive, transferable, sublicensable, fully paid-up and royalty-free right and license to Practice, compile and execute any and all Source Code and other materials placed into escrow pursuant to clause (ii) below, solely for purposes of developing, designing, engineering, procuring, constructing, starting up, commissioning, operating and maintaining the Project and achieving Project Completion, as applicable; and

(ii)promptly deposit in escrow (A) a complete, reproducible copy of all Project Source Code that is relevant to Project Completion; and (B) all revisions, modifications and enhancements to such Project Source Code (including updates, upgrades and corrections thereto, and derivative works thereof) as such revisions, modifications or enhancements are used in or otherwise made available to the Project, in each case, together with all such documentation or materials as are reasonably required to exercise the rights granted in clause (g)(i)(B) above.

(h)Project IP Agreement Terms.  The Borrower shall ensure that each license agreement that constitutes a Project IP Agreement grants to the Borrower: (i) a direct, and transferable or sublicensable license; or (ii) an irrevocable, perpetual, and transferable or sublicensable sublicense, to Project IP which is owned by any other Borrower Entity or which is either critical to (or otherwise inextricably embedded in) the Project or not readily replaceable; provided, that with respect to Borrower Entity-owned Project IP, each license and sublicense is fully paid-up and royalty-free for the Borrower.

Section 7.03Insurance.

(a)The Borrower shall obtain, maintain and comply with (or cause to be obtained, maintained and complied with) the Required Insurance at all times and in all respects, and shall keep its

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present and future properties insured as required by, and in accordance with the requirements of Schedule 7.03 (Required Insurance).

(b)The Borrower shall pursue any contractual remedies to cause other Persons required to provide Required Insurance, including any Major Project Participant, to obtain and maintain such Required Insurance and as otherwise required in the respective Major Project Documents.

Section 7.04Event of Loss.

(a)If any Event of Loss shall occur, the Borrower shall promptly deliver notice thereof to DOE and:

(i)diligently pursue all of its rights to compensation against all relevant insurers, reinsurers and Governmental Authorities, as applicable, in respect of such event;

(ii)compromise or settle any claim with respect to any Event of Loss involving an amount in excess of [***] (such Event of Loss, a "Threshold Event of Loss") per claim only upon prior written consent of DOE; and

(iii)pay or apply the Net Amount of all Loss Proceeds stemming from such event in accordance with this Section 7.04 (Event of Loss) including, to the extent required in this Section 7.04 (Event of Loss), for prepayments in accordance with Section 3.05(c)(i)(C) (Mandatory Prepayments).

(b)Upon the occurrence of any Event of Loss, Loss Proceeds shall be promptly deposited into, or credited to the Loss Proceeds Account.  The Borrower shall, in advance, direct the relevant insurers, reinsurers and Governmental Authorities, as applicable, to pay Loss Proceeds directly to the Collateral Agent as loss payee for deposit to the Loss Proceeds Account (and subject to the use of such proceeds by the Borrower in accordance with this Section  7.04 (Event of Loss)).  If Loss Proceeds are paid to the Borrower, such Loss Proceeds shall be received in trust, for the benefit of the Collateral Agent, shall be segregated from other funds of the Borrower, and shall be forthwith paid over to the Collateral Agent in the same form as received (with any necessary endorsement) for deposit to the Loss Proceeds Account.

(c)Upon the occurrence of any Event of Loss, the Borrower shall promptly repair or remediate such loss and cause Loss Proceeds associated with the loss to be applied to the payment of the costs of repair or restoration of the portion of the Project lost or damaged if and to the extent required in clauses (d), (e) or (f), as applicable of this Section 7.04 (Event of Loss) or, upon DOE’s prior written consent, reimburse the Borrower or Sponsor, as applicable, for any cost of repairs or remediation prior to the receipt of such Loss Proceeds paid using Equity Contributions; provided, that, in each case, DOE shall have (i) received from the Borrower a summary of the relevant Event of Loss, the basis for the Borrower's decision to repair or remediate and a remediation plan; and (ii) approved such remediation plan.

(d)With respect to the Net Amount of any Loss Proceeds not from a Threshold Event of Loss, the Borrower shall apply such amounts within ninety (90) days toward the repair or replacement of the affected assets except to the extent that the failure to use all or a portion of such proceeds toward repair or replacement would not reasonably be expected to (i) reduce the annualized production capacity of the Project; (ii) reduce net revenues from the sale of the Products; or (iii) to increase the operating costs with respect to the Project, such amounts may be transferred to the Revenue Account on the next Payment Date for application in accordance with the Accounts Agreement, and DOE has received evidence, in form and substance satisfactory to it, of the foregoing.  

(e)With respect to the Net Amount of any Loss Proceeds from a Threshold Event of Loss, the Borrower shall undertake the relevant repairs and restoration, and apply the amounts from Loss Proceeds Account (or, upon DOE’s prior written consent, reimburse the Borrower or the Sponsor, as

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applicable for any cost of repairs or remediation prior to the receipt of such loss Proceeds paid using Equity Contributions)to pay the costs of the relevant repairs and restoration if, and only if, DOE determines, after consultation with the Independent Engineer, that:

(i)repair or replacement of the relevant portion of the Project is technically and economically feasible; and

(ii)the Borrower is in compliance with such other conditions and requirements as DOE shall consider appropriate in the circumstances.

(f)In respect of any Event of Loss that (i) does not constitute a Threshold Event of Loss; or (ii) constitutes a Threshold Event of Loss for which DOE has consented to the repair and restoration in accordance with clause (e) above, the Borrower shall, on the tenth (10th) Business Day of each month until such restoration and repair has been completed and the contractors performing such restoration or repair work have been paid in full, deliver to the Collateral Agent and DOE the following:

(i)a detailed summary of the work performed in connection with any such restoration or repair during the preceding month and the itemized expenses that are then due and payable, together with copies of all invoices, conditional (upon payment only) lien waivers from the contractors performing such restoration or repair work and other information and documents reasonably requested by DOE with respect to such restoration or repair work; and

(ii)proposed Funds Withdrawal/Transfer Certificate directing the Collateral Agent to disburse to the contractors performing such restoration or repair work amounts constituting Loss Proceeds on deposit in the Loss Proceeds Account in the respective amounts then due and payable to such contractors.

(g)Upon the completion of any such restoration and repair work (as validated in writing by the Independent Engineer), or if restoration and repair work is not undertaken pursuant to this Section 7.04 (Event of Loss), and to the extent that the Borrower has not delivered a Prepayment Election Notice in accordance with Section 3.05(c) (Mandatory Prepayments), DOE shall be entitled to instruct the Collateral Agent to apply any amounts constituting Loss Proceeds on deposit in the Loss Proceeds Account to the prepayment of the Advances on the second (2nd) Business Day following receipt of such instructions, in accordance with Section 3.05(c) (Mandatory Prepayments).

Section 7.05Further Assurances; Creation and Perfection of Security Interests.

(a)The Borrower shall execute and deliver, from time to time, as reasonably requested by DOE or the Collateral Agent at the Borrower's expense, such other documents as shall be necessary or advisable or that DOE and the Collateral Agent may reasonably request in connection with the rights and remedies of DOE and the Collateral Agent granted or provided for by the Transaction Documents and to consummate the transactions contemplated therein.

(b)The Borrower shall, at its own expense, take all actions that have been or shall be requested by DOE, the Collateral Agent or that the Borrower knows are necessary to establish, maintain, protect, perfect and continue the perfection of the First Priority (subject to Permitted Liens) security interests of the Secured Parties created by the Security Documents in all assets relating in any manner to the Project and shall furnish timely notice of the necessity of any such action, together with such instruments, in execution form, and such other information as may be required or reasonably requested to enable any appropriate Secured Party to effect any such action.

Section 7.06Diligent Construction of Project; Approved Construction Changes.

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(a)The Borrower shall cause:  the Project Completion Date to occur on or prior to the Project Completion Longstop Date within the Construction Budget.

(b)The Borrower shall construct and complete, or cause to be constructed and completed, the Project diligently in accordance with the Major Project Documents and the other Transaction Documents, all Required Approvals, the Project Milestone Schedule, Environmental Laws and the Construction Budget.

(c)The Borrower shall cause all Approved Construction Changes to be described in the applicable Construction Progress Report and, where applicable, reflected in revised versions of the Project Milestone Schedule, and the Construction Budget, as applicable, and delivered to DOE in accordance with the terms hereof.

Section 7.07Contractual Remedies.

(a)The Borrower shall diligently pursue all contractual remedies available to it to cause each Major Project Participant to comply with and conduct its property, business and operations in compliance with all Applicable Laws that are applicable to the activities that such Person carries out under the Project; and

(b)The Borrower shall, and shall cause each Major Project Participant to, procure, maintain and comply in all material respects with all Required Approvals that are required for such Person to perform its obligations under the Project Documents to which it is a party.

Section 7.08Taxes, Duties, Expenses and Liabilities.

(a)The Borrower shall pay or cause to be paid on or before the date payment is due: (i) all Taxes (including stamp taxes), Secured Party Expenses, or other fees payable on or in connection with the execution, issue, delivery, registration, or notarization, or for the legality, validity, or enforceability, of the Transaction Documents (other than those Taxes that it is contesting in accordance with the Permitted Contest Conditions and Taxes imposed with respect to an assignment by FFB); provided, that, the Borrower shall promptly pay or cause to be paid any valid, final judgment rendered upon the conclusion of any relevant Adverse Proceeding enforcing any Tax and cause it to be satisfied of record; and (ii) all claims, levies or liabilities (including claims for labor, services, materials and supplies) for sums that have become due and payable and that have or, if unpaid, could reasonably be expected to become a Lien (other than a Permitted Lien) upon the property of the Borrower (or any part thereof).

(b)The Borrower shall file all tax returns required by Applicable Laws to be filed by it and shall pay or cause to be paid on or before the date payment is due (i) all income Taxes required to be paid by it; and (ii) all other material Taxes and assessments required to be paid by it (other than those Taxes that it contests in accordance with the Permitted Contest Conditions).

(c)The Borrower shall comply with all requirements related to the receipt of tax credits or other related incentive based program related to taxes, if any, and shall procure that no tax credit recapture event or similar event occurs.

(d)The Borrower acknowledges and agrees that DOE’s execution and delivery of this Agreement, including the determination by DOE as to whether Project Costs are Eligible Project Costs, (i) does not prejudice or otherwise have any binding effect with regard to any determination by the Internal Revenue Service, the U.S. Department of the Treasury, or a court of law as to the tax basis of the Project or any part thereof under the Code and (ii) does not constitute a determination regarding, and is unrelated to whether such Person or the Project has complied or will comply with, Federal tax law.  The Borrower

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acknowledges and agrees that such Person shall not use DOE’s execution and delivery of this Agreement, or documents generated by DOE during its consideration of the Application, to demonstrate or prove it complied with the requirements to claim a tax credit or other amount under the Internal Revenue Code in an administrative or judicial proceeding.

Section 7.09Performance of Obligations.

(a)The Borrower shall perform and observe all of its covenants and obligations contained in any Financing Document, any Required Approval or any Project Document (except with respect to any Project Document that is not a Major Project Document, to the extent that the failure to do so could not reasonably be expected to have Material Adverse Effect).

(b)The Borrower shall take all reasonable and necessary action to prevent the termination, suspension or cancellation of any Financing Document, any Required Approval or any Project Document (except with respect to any Project Document that is not a Major Project Document, to the extent that the failure to do so could not reasonably be expected to have Material Adverse Effect), except for (i) the expiration of any Financing Document, any Required Approval or any Project Document in accordance with its terms and not as a result of a breach or default thereunder by the Borrower; and (ii) the termination or cancellation of any Project Document that the Borrower replaces as permitted herein.

(c)The Borrower shall enforce against the relevant Project Participant in accordance with Prudent Industry Practices and in accordance with its terms each material covenant or obligation under each Project Document to which such Project Participant is a party (except with respect to any Project Document that is not a Major Project Document, to the extent that the failure to do so could not reasonably be expected to have Material Adverse Effect).

Section 7.10Use of Proceeds. The Borrower shall use the proceeds of each Advance in accordance with Section 2.04(e) (Disbursement of Proceeds) and the other terms and conditions of all applicable Financing Documents and not in contravention of any Applicable Law, Transaction Document or Governmental Approval.  Neither DOE nor FFB shall have any responsibility as to the use of any proceeds of any Advance.

Section 7.11Books, Records and Inspections.

(a)The Borrower shall:

(i)keep proper records and books of account in which full, true and correct entries in accordance with the Designated Standard and all Applicable Laws are made in respect of all dealing and transactions relating to the business and activities of the Borrower;

(ii)maintain adequate internal controls, reporting systems, IT Systems and cost control systems that are designed to ensure that the Borrower satisfies its obligations under the Financing Documents and:

(A)for overseeing the financial operations of the Borrower, including its cash management, accounting and financial reporting;

(B)for overseeing the Borrower's relationship with DOE and the Borrower's Accountant;

(C)for promptly identifying any Cost Overruns;

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(D)for maintaining such records as are necessary to facilitate an effective and accurate audit and performance evaluation of the Project as required by the Program Requirements; and

(E)for compliance with securities, corporate and other Applicable Law regarding adoption of a code of ethics and auditor independence; and

(iii)record, store, maintain, and operate its records, systems, controls, data and information using means (including any electronic, mechanical or photographic process, whether computerized or not) that are under its exclusive ownership and direct control (including all means of access thereto and therefrom).

(b)The Borrower shall:

(i)consult and cooperate with Secured Parties and the Secured Party Advisor’s regarding the Project upon DOE's request;

(ii)permit officers and designated representatives of Secured Parties, any agent of any of the foregoing, and the Secured Party Advisors to visit and inspect the Project and any other facilities and properties of the Borrower;

(iii)provide to officers and designated representatives of Secured Parties, any agent of any of the foregoing, the Comptroller General and the Secured Party Advisors (A) access to any pertinent books, documents, papers and records of the Borrower for the purpose of audit, examination, inspection and monitoring upon reasonable notice and at reasonable times during normal business hours, to examine and discuss the affairs, finances and accounts of the Borrower with the representatives of the Borrower, and (B) such access rights as required by the Program Requirements, including access to the Project Site and ancillary facilities (and allowing the officers and designated representatives of the Secured Parties and the Comptroller General to discuss the Borrower's and its subsidiaries' affairs, finances and accounts with the Borrower's officers) for the purpose of monitoring the performance of the Project;

(iv)afford proper facilities for such inspections, and make copies (at the Borrower's expense) of any records that are subject to such inspection; and

(v)subject to the Borrower's protection of confidential information and Trade Secrets described in Section 7.02(b) (Protection of Project IP), make available all information related to the Project, including all patents, technology and proprietary rights owned or controlled by, or licensed to, the Borrower and utilized in the development, design, engineering, procurement, construction, starting-up, commissioning, operation or maintenance of the Project, as may be reasonably necessary in order to determine the technical progress, soundness of financial condition, management stability, compliance with Environmental Law, adequacy of health and safety conditions and all other matters with respect to the Project.

(c)The Borrower shall:

(i)authorize the Borrower's Accountant to communicate directly with DOE, FFB and the Comptroller General at any time regarding any Agreed-Upon Procedures Report and the Borrower's accounts and operations relating thereto; provided, that at any time prior to a Default, a representative of the Borrower shall be provided reasonable opportunity to participate in such communication and shall be a copy to any formal written communication; and

(ii)in the event that the Borrower's Accountant should cease to be the accountants of the Borrower for any reason, promptly, but in any event no later than five (5) Business Days

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after the occurrence thereof, notify DOE of such change in the Borrower's Accountant and the reason therefor, and the Borrower shall appoint and maintain another firm of independent public accountants that satisfy the conditions set forth herein to qualify as the Borrower's Accountant.

(d)The Borrower shall disclose in writing to its outside auditors and audit committee and shall promptly, but in any event no later than five (5) Business Days, provide copies thereof to DOE of:

(i)any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect its ability to record, process, summarize and report financial information; and

(ii)any fraud, whether or not material, that involves management or other employees who have a significant role in its internal controls over financial reporting.

(e)The Borrower shall promptly provide copies to DOE of any management letter or other material communication sent by the Borrower's Accountant (or any other accountants retained by the Borrower) to the Borrower in relation to the Borrower's financial, accounting, management information or other systems, policies, management or accounts.

(f)The Borrower shall retain all records relating to expenditures incurred with respect to the Project with respect to which Advances were made until the latter of (i) the date that is five (5) years after the Advance was made with respect to such expenditure and (ii) the Project Completion Date.

Section 7.12Compliance with Applicable Law.

(a)The Borrower shall comply with, and conduct its business, operations, assets, equipment, property, leaseholds, and other facilities in compliance with all Environmental Laws and all other Applicable Laws.

(b)The Borrower shall comply with all applicable requirements of all Anti-Money Laundering Law, and maintain proper operating and credit policies and procedures (including "know your customer" and anti-money laundering policies) to ensure, inter alia, proper credit, risk and conflicts of interest management in connection therewith.

(c)The Borrower shall procure all Required Approvals at or prior to such time as they are required or necessary, maintain such Required Approvals, and comply in all material respects with all Required Approvals.

(d)The Borrower shall ensure that the Project is operated in compliance with the Mitigation Action Plan, in material compliance with all applicable Environmental Laws  and in a manner that would not pose a hazard to public health or safety (including worker safety) or to the environment.

(e)The Borrower shall take all necessary actions to ensure that it is in compliance with CFIUS at all times.

Section 7.13Compliance with Program Requirements. The Borrower shall comply with all Program Requirements in connection with the Project.

Section 7.14Accounts; Cash Deposits.

(a)The Borrower shall maintain, or cause to be maintained, in full force and effect each of the Project Accounts and amounts on deposit therein in accordance with the terms of the Accounts Agreement and relevant Financing Documents.  

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(b)The Borrower shall instruct each Person remitting cash to or for the account of the Borrower to deposit such cash in accordance with the terms of the Accounts Agreement.  

(c)The Borrower shall remit any amounts received by it or received by third parties on its behalf to the Collateral Agent for deposit in accordance with the terms of the Accounts Agreement and any applicable Direct Agreement.

Section 7.15Offtake Contracts. The Borrower shall enter into additional Offtake Contracts only with DOE’s prior written consent; and

(b)The Borrower shall enforce against the relevant Project Participant, in accordance with Prudent Industry Practices and in accordance with its terms each material covenant or obligation under each Project Document to which such Project Participant is a party (except with respect to any Project Document that is not a Major Project Document, to the extent that the failure to do so could not reasonably be expected to have Material Adverse Effect).

(c)The Borrower shall maintain 70% of the then current production of the Project under Offtake Contracts each with a term of at least three (3) years and provisions, on the whole, at least as  beneficial to the Borrower as Offtake Contracts in effect on the Execution Date and, in each case, in form and substance acceptable to DOE.

Section 7.16Feedstock Supply Plan.  The Borrower shall enter into and maintain Feedstock Supply Contracts for the supply of raw materials in accordance with Prudent Industry Practice or otherwise with DOE's prior written consent.

Section 7.17Davis-Bacon Act.

(a)The Borrower shall comply (and shall ensure that each DBA Contract Party complies) with the Davis-Bacon Act Requirements.

(b)The Borrower shall maintain an Electronic Certified Payroll System accessible to DOE and the Borrower shall systematically review the certified weekly payroll records that the Borrower maintains for its own laborers and mechanics and those that it receives for the laborers and mechanics of any Borrower Entity and DBA Contract Party.

(c)The Borrower shall designate and identify to DOE a point of contact who will be responsible for ensuring compliance with the Davis-Bacon Act Requirements. This person will provide to DOE any information reasonably requested in support of DOE’s Davis-Bacon Act compliance monitoring efforts. The Borrower shall notify DOE in writing regarding a change to this contact person.

(d)The Borrower shall promptly notify DOE in writing when it receives any complaint related to non-compliance with the Davis-Bacon Act, or discovers in the course of its systematic review of the certified payroll records an incident that the Borrower reasonably believes to be a case of such non-compliance and which, in each case, the Borrower cannot resolve on its own, and shall forward to DOE (i) the complaint or a written summary of the non-compliant incident; (ii) a summary of the Borrower’s investigation into such complaint or such incident; and (iii) the relevant certified payroll records.  

(e)Certified payroll records maintained by the Borrower shall be preserved for three (3) years after completion of work.  The Borrower shall make such records available to DOE and DOL when necessary, and upon request, for purposes of an investigation or audit of compliance with prevailing wage requirements.  Certified payroll records maintained by the Borrower shall be considered federal government

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records for the purposes of the Freedom of Information Act, 5 U.S.C. § 552.  The Borrower shall provide such records to DOE within five (5) Business Days of receipt of any request for such records from DOE.

(f)The Borrower shall use commercially reasonable efforts to cause each DBA Compliance Matter Contractor to cure each applicable DBA Compliance Matter. Such efforts may be suspended while a DBA Compliance Matter Contractor is, in good faith, appealing a DOL determination of non-compliance..

(g)Within ten (10) Business Days after the end of each month prior to the resolution of any DBA Compliance Matter that has been fully cured to the satisfaction of DOL or otherwise finally resolved favorably to the Borrower or DBA Contract Party, the Borrower shall either:

(i)notify DOE of the specific details of each DBA Compliance Matter that has not been so cured or finally resolved, and describe the commercially reasonable efforts that it and the applicable DBA Compliance Matter Contractor have taken to cause the DBA Compliance Matter Contractor to comply with the Davis-Bacon Act Requirements that are the subject of such dispute, or

(ii)notify DOE that the applicable DBA Compliance Matter Contractor has appealed, and is diligently prosecuting such appeal in good faith, DOL’s determination that the DBA Compliance Matter Contractor has failed to comply with the Davis-Bacon Act Requirements giving rise to such DBA Compliance Matter.

Section 7.18Lobbying Restriction. The Borrower shall, and shall cause each other Borrower Entity to, comply with all requirements of 31 U.S.C. § 1352, as amended, including the requirement that no proceeds of any Advance be expended by the Borrower or any of its Affiliates to pay any Person for influencing or attempting to influence an officer or employee of any federal agency, a member of the U.S. Congress, an officer or employee of the U.S. Congress, or an employee of a member of Congress in connection with the making of the Guaranteed Loan or any other action described in 31 U.S.C. § 1352(a)(2).

Section 7.19Cargo Preference Act.

(a)The Borrower shall comply with the Cargo Preference Act of 1954, as amended, and all related implementing regulations with respect to the Project, unless it has entered into an agreement with the United States Maritime Administration with respect to such compliance, in which case it shall comply with such agreement.

(b)Without limiting the generality of the foregoing, and unless the Borrower has entered into an agreement with the United States Maritime Administration excusing them from the following obligations, the Borrower shall deliver to DOE:

(i)no later than on each Quarterly Reporting Date, evidence that either (A) at least fifty percent (50%) of CPA Goods will be transported from each port of loading to the applicable port of unloading on privately owned U.S.-flag commercial vessels; or (B) privately owned U.S.-flag commercial vessels are not available to transport such amount of CPA Goods; and

(ii)promptly after delivery of any CPA Goods to the applicable carrier, but not later than the earlier of (A) the date of delivery thereof to the United States Maritime Administration; and (B) (1) in the case of shipments originating outside of the United States, thirty (30) working days (as such term is used in 46 C.F.R. 381.7) or (2) in the case of shipments originating within the United States, twenty (20) days, in each case, following the date of loading any CPA Goods, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of CPA Goods.

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Section 7.20SAM Registration. The Borrower shall maintain its SAM database registration at all times.

Section 7.21ERISA.  

(a)The Borrower shall, and the Borrower shall cause its ERISA Affiliates to, maintain all Employee Benefit Plans that are presently in existence or may, from time to time, come into existence, in compliance with terms of any such Employee Benefit Plan, ERISA, the Code and all other Applicable Laws; and

(b)The Borrower shall, and the Borrower shall cause its ERISA Affiliates to, make or cause to be made contributions to all Employee Benefit Plans in a timely manner and, with respect to Pension Plans and Multiemployer Plans, in a sufficient amount to comply with the requirements of Sections 302 and 303 of ERISA and Sections 412 and 430 of the Code.

Section 7.22Financial Covenants. The Borrower shall, as of each Calculation Date, (a) commencing on the Calculation Date immediately following Commercial Operations Date, maintain a Historical Debt Service Coverage Ratio of no less than 1.10:1.00, (b) commencing on the Calculation Date immediately following Commercial Operations Date, maintain a Projected Debt Service Coverage Ratio (for each applicable calculation period occurring quarterly up to (and including) the Payment Date) of no less than 1.10:1.00, which, in each case, shall be calculated based on the Financial Statements that have been, or are required to have been, delivered by the Borrower pursuant to Section 8.01 (Financial Statements).

Section 7.23Public Announcements. The Borrower shall coordinate with DOE with respect to:

(a)any public announcements by any Borrower Entity in connection with the Guaranteed Loan or the transactions contemplated by this Agreement or any other Financing Document;

(b)any subsequent public announcements by the Borrower in connection with material developments in respect of the Project; and

(c)the public announcement of satisfaction of any Project Milestones,

Section 7.24Bankruptcy Remoteness. The Borrower shall ensure that it remains a bankruptcy-remote, single-purpose entity at all times and shall do all things necessary to maintain its corporate existence separate and apart from any other Borrower Entity.

Section 7.25Prohibited Persons.

(a)If any Principal Person of the Borrower becomes (whether through a transfer or otherwise) a Prohibited Person, the Borrower shall remove or replace such Principal Person with a person or entity reasonably acceptable to DOE within thirty (30) days from the date that the Borrower knew or should have known that such Principal Person became a Prohibited Person.

(b)If any Borrower Entity (other than the Borrower) or any Major Project Participant or any of their respective Principal Persons becomes (whether through a transfer or otherwise) a Prohibited Person, within thirty (30) days of obtaining actual knowledge that such Person has become a Prohibited Person, the Borrower shall engage and continue to engage in good faith discussions with DOE regarding the removal or replacement of such Person or, if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.

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(c)The internal management and accounting practices and controls of each Borrower Entity shall at all times be adequate to ensure that each Borrower Entity and each Principal Person thereof (i) does not become a Prohibited Person; and (ii) complies with all applicable International Compliance Directives.

Section 7.26International Compliance Directives.

(a)The Borrower shall comply with all International Compliance Directives.

(b)If any Principal Person of the Borrower fails to comply with any International Compliance Directive, the Borrower shall remove or replace such Principal Person with a person or entity reasonably acceptable to DOE within thirty (30) days from the date that the Borrower knew or should have known of such violation; provided, that, in the case where a Principal Person fails to comply with any International Compliance Directive, such removal or replacement by the Borrower pursuant to this Section 7.26(b) (International Compliance Directives) shall occur only to the extent permitted by applicable Sanctions or otherwise authorized by OFAC.

(c)If any Borrower Entity (other than the Borrower) or any Major Project Participant or any of their respective Principal Persons fails to comply with any applicable International Compliance Directive, the Borrower shall, within thirty (30) days of obtaining actual knowledge that such Person has so failed to comply, engage and continue to engage in good faith discussions with DOE regarding the removal or replacement of such Person or, if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.

Section 7.27Operating Plan; Operations.

(a)The Borrower shall cause the Project, or such portions of the Project that have begun commercial operations, to operate in all material respects pursuant to the Operating Plan then in effect.  The Borrower shall conduct the operations of the Project in accordance, in all material respects, with the Financing Documents and the Major Project Documents, the Operating Plan, the Business Continuity Plan, the O&M Budget, Applicable Law, any applicable Required Approvals, and Prudent Industry Practice.

(b)The Borrower shall own, maintain, repair and replace (or cause to be owned, maintained, repaired and replaced) all equipment, spare parts, and inventory reasonably necessary for the operation and maintenance of the Project in all material respects in accordance with the Financing Documents and the Major Project Documents, the Operating Plan, the Business Continuity Plan, Applicable Law, any other applicable Required Approvals and Prudent Industry Practice.

(c)The Borrower shall maintain, or cause to be maintained, at  Project Site a complete set of plans and specifications for the Project.

Section 7.28O&M Budget.

(a)Submission and Approval of O&M Budget

(i)No later than: (A) sixty (60) days prior to the achievement of the Commercial Operations Date; and (B) no later than sixty (60) days prior to the beginning of each Fiscal Year of the Borrower, the Borrower shall prepare and submit for approval to DOE, with a copy to the Independent Engineer, the proposed O&M Budget for the succeeding Fiscal Year.  Each such proposed O&M Budget shall be consistent with the Base Case Financial Model being submitted concurrently to DOE for approval in accordance with Section 8.02(a) (Annual Reports) and shall be accompanied by a certification of a Responsible Officer of the Borrower that, to the best of such Responsible Officer's Knowledge, such proposed  O&M Budget is a reasonable estimate for the period covered thereby and is in

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compliance with the requirements of this Section 7.28 (O&M Budget).  DOE shall approve or reject in writing all or any portion of a proposed O&M Budget.  If DOE does not approve all or portions of an O&M Budget, DOE shall advise the Borrower of the items that are rejected and the reason or reasons therefor.

(ii)Each proposed O&M Budget approved by DOE  shall become effective on the later of (A) the first (1st) day of the relevant Fiscal Year; and (B) the date DOE advises the Borrower that DOE has approved such O&M Budget.

(iii)If any part of a proposed O&M Budget is rejected, the Borrower shall comply with all approved items of such proposed O&M Budget.  With respect to those items of any proposed O&M Budget that are not approved, the Borrower and DOE shall continue to consult regarding such items in good faith, during which time the O&M Budget for the preceding Fiscal Year related to such items  shall be applicable and shall for all purposes of this Agreement be deemed to be part of the approved O&M Budget for the preceding Fiscal Year until such time as such items for the current Fiscal Year have been approved in writing by DOE.

(iv)Each proposed O&M Budget submitted pursuant to this Section 7.28 (O&M Budget) shall:

(A)be prepared in good faith on the basis of all facts and circumstances then existing and known to the Borrower, and assumptions that the Borrower believes to be reasonable as to all factual and legal matters material to such estimates (which shall be set forth in reasonable detail in the O&M Budget), and reflect the Borrower's best estimate of the future revenues and expenditures to be received or incurred by the Borrower;

(B)be based on the same format and maintained substantially on the same basis as, and provide sufficient detail to permit a meaningful comparison to, the O&M Budgets for the previous Fiscal Years; and

(C)include the following:

(1)fair and good faith reasonable estimates of Operating Revenues, Operating Costs (on an individual line-item basis), Debt Service and Capital Expenditures for each period covered by such O&M Budget;

(2)a summary of the Project's major maintenance schedule to the end of the then-current long-term major maintenance cycle (and related scheduled outages), and the Borrower's fair and good faith reasonable estimates of any Capital Expenditures during such maintenance cycle, or that are otherwise expected to be incurred in the succeeding five (5) years, and the envisioned effect of any contemplated major maintenance activities or Capital Expenditures on the Project's operations, which shall be consistent with the Base Case Financial Model being submitted concurrently to DOE for approval in accordance with Section 8.02(a) (Annual Reports); and

(3)such other information as may be reasonably requested by DOE.

(b)Amendments to O&M Budget. If at any time during any Fiscal Year, Operating Costs to be paid during the balance of such Fiscal Year exceed or could reasonably be expected to exceed the limitations set forth in Section 7.28(a) (Submission and Approval of O&M Budget), the Borrower shall deliver a proposed amendment to the then-current O&M Budget to DOE and the Independent Engineer

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describing the purpose of such amendment and certifying that such amendment is reasonably necessary or advisable for the operation and maintenance of the Project.  Such proposed amendment shall become effective on the date approved by DOE and, until such proposed amendment is approved, the Borrower shall comply with the approved O&M Budget (subject to the allowance provisions of this Section 7.28 (O&M Budget)) until the proposed amendment is approved by DOE.

Section 7.29Acceptance and Start-up Testing.

(a)The Borrower shall consult with and provide, or cause to be provided, reasonable notice to DOE and the Independent Engineer regarding provisions related to start-up and testing of the Project and equipment pursuant to the Construction Contracts and the Operating Contracts.

(b)The Borrower shall provide the Independent Engineer with the opportunity to observe the start-up and testing of the Project.

(c)The Borrower shall at the request of DOE, promptly, but in any event no later than five (5) Business Days, provide DOE and the Independent Engineer with any data or reports received by the Borrower in connection with any of the start-up testing of the Project.

Section 7.30Process Agent. The Borrower shall procure that each Major Project Participant that is non-U.S. domiciled executes and keeps effective a process agency agreement in form and substance acceptable to the DOE that, in each case, expires no sooner than the sooner of (a) the date that is six months following the Maturity Date and (b) the date that is six months following the corresponding Major Project Document.

Section 7.31MFN. The Borrower shall provide DOE with a true and complete copy of any financing arrangement (including, without limitation, loan agreements, inventory financing arrangements, sale and leaseback arrangements, asset financing arrangements, indenture, note purchase agreements, hedging arrangements) entered into after the date hereof. If such financing arrangement has the effect of establishing rights or otherwise benefiting the lender, financier, purchaser, investor, hedge counterparty or direct or indirect shareholder in such financing arrangement in a manner more favorable in any material respect than the rights and benefits established in favor of the DOE hereunder the DOE shall have the right to elect any or all of such rights and benefits by written notice to the Borrower within forty five (45) calendar days of receipt thereof.

Section 7.32Know Your Customer Information. The Borrower shall provide DOE any information reasonably requested by DOE under or in connection with International Compliance Directives and Anti-Money Laundering Laws, including in connection with entry into any Additional Project Documents, including in connection with entry into any Additional Major Project Documents.

Section 7.33BNSF Consent. The Borrower shall deliver to DOE within sixty (60) days of the Execution Date:

(ii)a duly executed BNSF Consent;

(iii)the Subleasehold Mortgage;

(iv)the BNSF Site Map in a form acceptable to DOE and the Title Company for issuance of the Subleasehold Policy; and

(v)the Subleasehold Policy.

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Section 7.34Offtake Contracts. The Borrower shall provide notice to DOE not later than sixty (60) days prior to the last date (a “Termination Date”) on which the Borrower has the right to provide notice of non-renewal for any of:

(A)the Offtake Contract with [***]

(B)the Offtake Contract with [***]

(C)the Offtake Contract with [***]

(D)the Offtake Contract with [***];

in each case, before any such Offtake Contract automatically renews. Following the delivery of any such notice and prior to the applicable Termination Date, DOE and Borrower shall confer on the Borrower’s strategy for Offtake Contracts generally and such Offtake Contract specifically. Thereafter, if DOE so instructs in writing at least five (5) Business Days prior to any Termination Date, the Borrower shall provide notice of non-renewal for the applicable Offtake Contract on or prior to the applicable Termination Date. For the avoidance of doubt, nothing in this provision shall impair or limit the restrictions on the Borrower and DOE’s consent rights set forth in Section 9.01 including, without limitation, restrictions on amending, modifying, supplementing, further renewing or extending the term of, or consenting to or waiving any right with respect to such Offtake Contract or entering into additional Offtake Contracts, in each case, without DOE’s prior written consent.

Article VIII

Information Covenants

The Borrower hereby agrees that until the Release Date:

Section 8.01Financial Statements. At its own expense, the Borrower shall furnish or cause to be furnished to DOE by an Acceptable Delivery Method (unless otherwise noted), and if requested by FFB or DOE on behalf of FFB, to FFB by email to [***], with a reproduction of the signatures where required, the following items:

(a)Annual Financial Statements. With respect to the Borrower, any Sponsor (other than Warburg Pincus), Direct Parent, and any Person(s) providing the Phase 2 Equity Instrument as soon as available, but in any event within sixty (60) days (for the Calumet Parent) and ninety (90) days for all other such Persons following such Person’s Fiscal Year end:

(i)audited Financial Statements of such Borrower Entity for such Fiscal Year (whether consolidated or on an individual basis);

(ii)each Compliance Certificate required by Section 8.01(c) (Compliance Certificates); and

(iii)a report on such Financial Statements of the Accountant for such Person, which report shall:

(A)be unqualified as to going concern and scope of audit;

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(B)subject to changes in professional auditing standards from time to time, contain a statement to the effect that such Financial Statements fairly present, in all material respects, the consolidated financial condition of such Borrower Entity , as applicable, and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the period indicated in conformity with the Designated Standard applied on a basis consistent with prior years (except as otherwise disclosed in such Financial Statements);

(C)state that the examination by the Borrower‘s Accountant or Borrower Entity’s Account, as applicable, in connection with such Financial Statements has been made in accordance with generally accepted auditing standards; and

(D)include an updated asset register listing and describing the net book values of all tangible assets related to the Project and any other asset constituting Collateral, including inventory, plant, property and equipment as derived from the Borrower’s Accountant worksheet to the audited Financial Statements of the Borrower.

(b)Quarterly Financial Statements. With respect to the Borrower and Calumet Parent, as soon as available, but in any event within forty-five (45) days following the end of each fiscal quarter of such Person’s Fiscal Year:

(i)unaudited Financial Statements of such Person for such Fiscal Quarter, which shall exclude notes thereto for the Borrower;

(ii)each Compliance Certificate required by Section 8.01(c) (Compliance Certificates); and

(iii)such other evidence as may be required by DOE to demonstrate such Person’s compliance with Section 7.22 (Financial Covenants) of the Sponsor Support Agreement.

(c)Compliance Certificates. Concurrently with any delivery of Financial Statements or other information pursuant to any of Sections 8.01(a) (Annual Financial Statements) through (c) (Compliance Certificates), a certificate (a "Compliance Certificate") of a Financial Officer of the relevant Borrower Entity substantially in the form of the document attached as Exhibit I (Form of Compliance Certificate) hereto, which certificate shall:

(i)certify that no Default or Event of Default has occurred, or, if such certification cannot be made, the nature and period of existence of such Default or Event of Default and what corrective action such Borrower Entity has taken or proposes to take with respect thereto;

(ii)set forth computations in reasonable detail satisfactory to DOE demonstrating whether or not: (A) in the case of the Borrower, it is in compliance with Section 7.22 (Financial Covenants); and      

(iii)in the case of each Compliance Certificate delivered concurrently with annual Financial Statements pursuant to Section 8.01(a) (Annual Financial Statements):

(A)certify that such Financial Statements fairly present, in all material respects, the financial condition of such Borrower Entity as at the dates indicated and the results of its operations and its cash flows for the periods indicated, in each case in conformity with the Designated Standard applied on a basis consistent with prior years;

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(B)either confirm that there has been no material change in the information set forth in the Schedules attached hereto since the date thereof or the date of the most recent certificate delivered pursuant to this Section 8.01 (Financial Statements) or, if such confirmation cannot be made, identify such changes; and

(C)contain a written statement stating any material changes, if any, within the Designated Standard used to prepare the applicable Financial Statements or in the application thereof since the date of the previous certification and describing the effect of any such changes on such Financial Statements accompanying such certificate.

Section 8.02Reports. At its own expense, the Borrower shall furnish or cause to be furnished to DOE by an Acceptable Delivery Method, and, if requested by FFB or DOE on behalf of FFB, to FFB by facsimile, with a reproduction of the signatures where required, the following items, in each case, in form and substance satisfactory to DOE:

(a)Annual Reports. With respect to each Fiscal Year of the Borrower:

(i)no later than the date falling forty-five (45) days prior to the end of such Fiscal Year (such date, an "Annual Reporting Date"), an omnibus annual report (each, an "Omnibus Annual Report") of a Responsible Officer of the Borrower, substantially in the form attached as Exhibit J (Form of Annual Certificate) hereto, setting forth the following and including all material calculations and assumptions used to generate the information provided therein, together, if applicable, with a comparison marked to reflect changes as compared to the contents of the Omnibus Annual Report delivered to the DOE for the immediately preceding year:

(A)an updated O&M Budget and Operating Plan for the immediately subsequent four (4) Fiscal Quarters prepared and approved in accordance with, and within the time frames specified in, Section 7.28 (O&M Budget), accompanied by a report on the past twelve (12) months of production of the Facilities; Operating Costs and Capital Expenditures and a forecast of anticipated Capital Expenditures for the immediately subsequent four (4) Fiscal Quarters;

(B)(I) a certificate from the chief financial officer or similar officer of the Borrower that there have been no material changes to the Base Case Financial Model or the assumptions therein from the Base Case Financial Model then in effect; or (II) a proposed update to the Base Case Financial Model, together with a certificate from the chief financial officer or similar officer of the Borrower that includes a written explanation from the Borrower of all variances from the Base Case Financial Model then in effect.

(C)the Safety Report, substantially in the form attached hereto as Schedule R (Form of Safety Report), with respect to the Safety Audit for such Fiscal Year;

(D)a sales and marketing plan, in the form attached hereto as Schedule 8.02(a) (Sales and Marketing Plan), together with a report setting out the status of offtake arrangements, each of which will be in form and substance reasonably satisfactory to DOE (the “Sales and Marketing Plan”)

(ii)no later than the date falling sixty (60) days following the end of such Fiscal Year:

(A)updated versions of the Offtake Plan, Major Maintenance Plan and the Business Continuity Plan, in each case, together with a report setting out changes as

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compared to the contents of the then-approved plans, each of which will be in form and substance reasonably satisfactory to DOE; and

(iii)such other information as DOE may request.

(b)Quarterly Certificate. With respect to each Fiscal Quarter of the Borrower, no later than the date on which the quarterly unaudited Financial Statements are delivered pursuant to Section 8.01(b) (Quarterly Financial Statements) (such date, a "Quarterly Reporting Date"), a quarterly certificate (each, a "Quarterly Certificate") of a Responsible Officer of the Borrower, substantially in the form attached as Exhibit K (Form of Quarterly Certificate) hereto and in form and substance satisfactory to DOE, setting forth the following and including all material calculations and assumptions used to generate the information provided therein:

(i)the financial performance of the Project for immediately preceding Fiscal Quarter and for the Fiscal Year to date, together with a comparison of:

(A)for any Quarterly Certificate in respect of any Fiscal Quarter beginning prior to the Substantial Completion Date , Project Costs actually incurred during such Fiscal Quarter against the amounts set forth for such period in the then-applicable Construction Budget and an analysis of the construction cost variances, if any, relating to the Project and the Borrower's suggested approach and solution to manage any Cost Overruns; and

(B)for any Quarterly Certificate in respect of any Fiscal Quarter beginning on or following the Substantial Completion Date, Operating Costs actually incurred during such Fiscal Quarter against the amounts set forth for such period in the then-applicable O&M Budget and an analysis of cost variances, if any, compared to the then-applicable O&M Budget relating to the Project and the Borrower's suggested approach and solution to manage any Cost Overruns;

(ii)a progress report as against the Sales and Marketing Plan delivered under the Omnibus Annual Report;

(iii)summary of details of any material discussions with any potential offtaker of the Product, including any milestones to achieving qualification of the Product with such offtaker;

(iv)with respect to any Quarterly Certificate required to be delivered in respect of any Fiscal Quarter beginning prior to the Project Completion Date:

(A)certification by the Borrower of the achievement of any Project Milestones with respect to the Project during the immediately preceding Fiscal Quarter, together with evidence, satisfactory to DOE, that such Project Milestones have been achieved (unless such information was subject to an Advance Request); it being understood that, in the event that the Borrower anticipates, for whatever reason, the failure to achieve any projected Project Milestones, a description of the reasons for such anticipated failure shall also be disclosed; and

(B)certification by the Borrower that the proceeds of the Advances for such Fiscal Quarter were used to reimburse the Borrower for Eligible Project Costs incurred and paid or were used by the Borrower to pay for such Eligible Project Costs incurred and invoiced, or, if not yet incurred or paid, are reasonably anticipated to be incurred and paid no later than ninety (90) days after the relevant Advance Date; and

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(v)a short-form report, on the Borrower’s rolling twelve (12) month projections with respect to compliance with the then-current Offtake Plan and Feedstock Supply Plan.

(c)Labor Reporting and Justice40 Initiative Reporting Requirements.  The Borrower shall deliver to DOE:

(A)no later than on each Quarterly Reporting Date occurring on or prior to the Project Completion Date and on the Project Completion Date, a construction workforce report in the form of Exhibit L (Form of Construction Workforce Report);

(B)no later than (I) on or prior to each Quarterly Reporting Date occurring on or after the Commercial Operations Date; until the Project Completion Date, and (II) on each Annual Reporting Date occurring on or after the Project Completion Date, an operations and maintenance workforce report in the form of Exhibit M (Form of Operations and Maintenance Workforce Report); and

(C)no later than ninety (90) days after the end of each Fiscal Year of the Borrower, a Community Benefits Plan and Justice40 Annual Report in the form of Exhibit N (Form of Community Benefits Plan and Justice40 Annual Report) (each, a "Community Benefits Plan and Justice40 Annual Report"); and

(ii)such other information as DOE may request.

(d)Monthly Certificate. Within fifteen (15) Business Days after the end of each month:

(i)a monthly report, accompanied by an Officer's Certificate of the Borrower substantially in the form of Exhibit O (Form of Monthly Certificate), which report shall include a reconciliation statement (which may be presented via a management ledger) that sets forth any expenditure for any line item in the O&M Budget in excess of such line item and any reallocation from one line item to another in the O&M Budget;

(ii)prior to the Project Completion Date, a Construction Progress Report, accompanied by an Officer's Certificate of the Borrower substantially in the form of Exhibit P (Form of Monthly Construction Progress Report), setting forth:

(A)updates to the Project Milestone Schedule, Integrated Schedule and Spending Plan and key personnel;

(B)a report demonstrating contributions and use of Base Equity Commitments in accordance with the Construction Budget and the Base Case Financial Model;

(iii)after Substantial Completion, operating reports, in form and substance satisfactory to DOE, regarding the operating performance and maintenance of the Project (including description of operating performance and maintenance of the Project and updates to key personnel), governmental and environmental compliance reports; and

(iv)addressing such other matters as DOE may request.

(e)Environmental Report.

(i)Prior to the Project Completion Date, within twenty (20) Business Days after each Fiscal Quarter of each of such each Fiscal Year, and (ii) from and after the Project Completion

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Date, within twenty (20) Business Days after each of June 30 and December 31 of each Fiscal Year, the Borrower shall deliver to DOE a report on the Project’s compliance with all applicable Environmental Laws and the Mitigation Action Plan during the applicable reporting period in form and substance satisfactory to DOE acting reasonably, which report shall: (A) summarize: (1) the Project's compliance with applicable Environmental Laws, the Mitigation Action Plan and the environmental requirements set forth in this Agreement during such Fiscal Year including, for the avoidance of doubt, a document that lists all Required Approvals required under applicable Environmental Laws, identifies any changes to such Required Approvals, and tracks the associated reporting requirements under applicable Environmental Laws for construction and operation of the Project, any changes to such Required Approvals, any changes to the status of the information confirmed by the Borrower pursuant to the representations set forth in Section 6.24 (Environmental Laws) or project changes that are beyond the scope of the Environmental Assessment set forth in Section 5.01(ff) (Environmental Review), any Environmental Claims or notices delivered to DOE by Borrower during the applicable reporting period, and information reasonably requested by DOE; and (2) any change to the status of the information confirmed by the Borrower pursuant to the representation set forth in Section 6.24 (Environmental Laws) or project changes that are beyond the scope of Sections 5.01(ff) (Environmental Review), and 5.01(ee) (Lobbying Certification) a summary of any environmental claims or notices delivered to DOE pursuant to Section 5.01(ff) (Environmental Review), during the reporting period; and (B) contain, or be supplemented with, any information reasonably requested by DOE.  The reports completed for the reporting period ending on December 31 of each Fiscal Year shall include a section specific to the reporting period, including an annual summary of all the reports completed for the Fiscal Year.

(ii)Not less frequently than once each Fiscal Year, the Borrower shall conduct a Safety Audit.  Each such Safety Audit shall result in the preparation of a Safety Report with respect thereto which shall be delivered to DOE within twenty (20) Business Days following December 31 of each Fiscal Year following the Execution Date.  The Borrower shall provide for the prompt correction of any deficiencies identified in such safety audit and for the operation and maintenance of the Project in accordance with any recommendations set forth therein.

(iii)As required by DOE, an environmental report, including any and all Phase I or Phase II Environmental Assessments relating to the Real Property within the Project Site when prepared for the Borrower or any third party (so long as the Borrower has the right to obtain any such Phase I or Phase II Environmental Assessment prepared for a third party).

Section 8.03Notices. Promptly, but in any event within five (5) Business Days (unless otherwise set out below), after any Borrower Entity obtains Knowledge thereof or information pertaining thereto, the Borrower shall furnish or cause to be furnished to DOE, at the Borrower's expense, by an Acceptable Delivery Method, and if requested by FFB or DOE on behalf of FFB, to FFB by email to [***], with a reproduction of the signatures where required, written notice of the following items:

(a)any event that constitutes a Default or Event of Default, specifying the nature thereof, together with a certificate of a Responsible Officer of the Borrower indicating the steps the Borrower has taken or proposes to take to remedy the same;

(b)the occurrence of any Mandatory Prepayment Event;

(c)any management letter or other material communications received by any Borrower Entity from such Borrower Entity’s Accountant in relation to its financial, accounting and other systems, management or accounts or the Project;

(d)any event or change in circumstance that impacts, or reasonably could impact, the then-current Base Case Financial Model, including any calculation or assumption set out therein, together

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with a proposed update to such Base Case Financial Model; provided, that such proposed update shall be agreed and approved by DOE in accordance with Section 5.01(i) (Base Case Financial Model);

(e)any change to the board of directors of any Borrower Entity;

(f)any rejected shipment of or warranty claims for Products from the Project;

(g)any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including to the extent that it could result in a Material Adverse Effect:

(i)breach or non-performance of, or any default under, a Contractual Obligation of any Borrower Entity;

(ii)any dispute, litigation, investigation, proceeding or suspension between any Borrower and any Governmental Authority;

(iii)the commencement of, or any material development in, any litigation or proceeding affecting any Borrower Entity, including pursuant to any applicable Environmental Laws; or

(iv)any actual or proposed termination, rescission, discharge (otherwise than by performance), amendment, supplement, modification, waiver or indulgence or breach of any Project Document, Governmental Approval or Required Approval;

(h)not less than twelve (12) months prior to expiration or anticipated termination of any Major Offtake Contract, notification of such expiration or termination, together with a written plan for replacement of such Major Offtake Contract and revenues generated thereunder.

(i)the occurrence of any ERISA Event;

(j)any written formal or informal environmental notices, orders, decisions, directives or determinations submitted by any Governmental Authority to the Borrower, including any violations or potential violations of Environmental Law identified in writing by such Governmental Authority together with a report setting out remedial action or proposed remedial action taken with respect thereto;

(k)any accident related to the Project having a material and adverse impact on the environment or on human health (including any such accident resulting in serious injury or the loss of life), including any discovery of the presence of Hazardous Substances at the Project Site, or Release or threatened Release or threatened Release on, under, at or through the Project Site required to be reported to any federal, state or local Governmental Authority under any applicable Environmental Law;

(l)any Adverse Proceeding pending or threatened against or affecting any Borrower Entity (other than a Passive Sponsor), any of their respective property or any other third party that could reasonably be expected to impact the Project:

(i)that has had or could reasonably be expected to have a Material Adverse Effect;

(ii)that seeks damages in excess of [***];

(iii)that seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby;

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(iv)that arises in respect of any Indebtedness that, in each case, has an aggregate principal amount of at least [***] (in the case of any Borrower Entity other than a Sponsors) or [***] (in the case of a Sponsor other than a Passive Sponsor);

(v)where any Governmental Authority alleges substantial criminal misconduct by any Borrower Entity or its Affiliates; or

(vi)if related to the Project, where any Governmental Authority alleges any criminal misconduct by any of the relevant Person, and any material developments with respect to any of the foregoing;

(m)any actual or proposed termination, rescission, discharge (otherwise than by performance), amendment, supplement, modification, waiver or breach of:

(i)any Major Project Document or Required Approval; or

(ii)any other Project Document or other Governmental Approval if such action in respect of such other Project Document or other Governmental Approval has had or could reasonably be expected to have a Material Adverse Effect on the Borrower or the Project;

(n)any information that representations made with respect to Debarment Regulations were erroneous when made or have become erroneous by reason of changed circumstances;

(o)the occurrence of any Emergency;

(p)any change in the information provided prior to the date hereof that would result in a change to the KYC Requirements or KYC Parties;

(q)as soon as practicable and no later than forty eight (48) hours from obtaining knowledge of an event or accident that results in serious injury or loss of life, and with respect to any such event or accident, provide DOE with a root cause analysis no later than 30 days from such event.

Section 8.04Other Information. At its own expense, the Borrower shall furnish or cause to be furnished to DOE by an Acceptable Delivery Method, and, if requested by FFB or DOE on behalf of FFB, to FFB by email to [***], with a reproduction of the signatures where required, the following items:

(a)Project Documents. Without limiting Article IX (Negative Covenants), as soon as available, but in no event later than ten (10) Business Days after the execution thereof the Borrower shall furnish copies of any Project Document obtained or entered into by the Borrower after the Execution Date, and with respect to any Major Project Document, unless otherwise instructed by DOE, the Borrower shall deliver to DOE, concurrently with delivery of such copy:

(i)a customary legal opinion (addressed to the Secured Parties) from external counsel qualified in the jurisdiction of organization of each counterparty thereto, and, if different, in the jurisdiction whose law governs such Major Project Document, in form and substance satisfactory to DOE; and

(ii)a fully executed Direct Agreement with the Major Project Participant thereunder, in form and substance satisfactory to DOE and subject only to countersignature by the Collateral Agent.

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(b)Additional Audit Reports. As soon as available, but, in any event, within thirty (30) Business Days after the receipt thereof by any Borrower Entity, copies of all other material annual or interim reports submitted to such Borrower Entity by such Borrower Entity’s Accountant.

(c)Other Information. Promptly upon request, such other information or documents as DOE reasonably requests.

Section 8.05Adverse Proceedings; Defense of Claims. The Borrower shall provide DOE with rights to review, with appropriate restrictions to protect waiver of any relevant privileges, including any attorney-client privilege, controlled by the Borrower, drafts of any submissions that the Borrower has prepared for filing in any court or with any regulatory body in connection wi