This GUARANTY AGREEMENT, dated as of September 22, 2023 (the “Effective Date”), is made SUSTAINABLE OILS, INC, a Delaware limited liability company (the “Guarantor”), in favor of ORION ENERGY PARTNERS TP AGENT, LLC, as Administrative Agent (as defined below), for itself and on behalf of each other Secured Party as defined in the Credit Agreement referred to below (the Administrative Agent and each other Secured Party, collectively, the “Guaranteed Parties”).
WHEREAS, Bakersfield Renewable Fuels, LLC, a Delaware limited liability company (the “Project Company”), an Affiliate of the Guarantor, desires to install, develop, construct, finance and operate a renewable diesel refinery to be located in Bakersfield, California (the “Project”);
WHEREAS, in order to finance the development, construction, completion, ownership and operation of the Project on a limited recourse basis and certain other costs, fees and expenses associated therewith, BKRF OCB, LLC, a Delaware limited liability company (the “Borrower”) and BKRF OCP, LLC, a Delaware limited liability company entered into that certain Credit Agreement, dated as of May 4, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), with the several banks and other financial institutions and entities from time to time party thereto as lenders and Orion Energy Partners TP Agent, LLC, as collateral agent (in such capacity, the “Collateral Agent”) and as Administrative Agent;
WHEREAS, pursuant to that certain Secured Promissory Note, dated as of date hereof, by and among Secured Party and Guarantor, Borrower has agreed to make extensions of credit (with the proceeds of the Loans under the Credit Agreement) to the Guarantor subject to the terms set forth therein (as the same may hereafter be amended, restated, supplemented or otherwise modified from time to time, the "Note");
WHEREAS, the Guaranteed Parties are providing the funding to Borrower to provide funding to Guarantor under the Note, and as consideration for the extensions of credit contemplated in the prior recital (and as consideration for any future extension of credit made under the Note, if any), the Guaranteed Parties are requiring Guarantor, as an Affiliate of the Borrower, to provide the guaranty contemplated hereby;
WHEREAS, the Guarantor has previously entered into that certain Pledge and Security Agreement, dated as of January 30, 2023 (as the same may hereafter be amended, restated, supplemented or otherwise modified from time to time, the "OIC Pledge and Security Agreement"), in favor of the Collateral Agent, pursuant to which Guarantor granted liens on the assets specified in such agreement in favor of the Collateral Agent;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and the Lenders to make their respective extensions of credit to Borrower under the Credit Agreement, the Guarantor hereby agrees with the Administrative Agent, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Each capitalized term used and not otherwise defined herein (including the preamble and recitals) has the meaning assigned to such term (whether directly or by reference to another agreement or document) in the Credit Agreement. In addition to the terms defined in the Credit Agreement, the following terms have the following respective meanings:
“Administrative Agent” has the meaning assigned to such term in the recitals to this Guaranty.
“Borrower” has the meaning assigned to such term in the recitals to this Guaranty.
“Credit Agreement” has the meaning assigned to such term in the recitals to this Guaranty.
“Demand Notice” has the meaning assigned to such term in Section 2.1(a).
“Guaranteed Obligations” means the Obligations (including principal and interest on the Loans) whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any debtor relief law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Guaranteed Parties” has the meaning assigned to such term in the introductory paragraph of this Guaranty.
“Lenders” has the meaning assigned to such term in the recitals to this Guaranty.
“Material Adverse Effect” means a material adverse effect on: (a) the business, assets, properties, operations or financial condition of the Guarantor; (b) the ability of the Guarantor to perform its material obligations under this Guaranty and the Financing Documents in accordance with the terms thereof or (c) the rights and remedies of the Secured Parties, taken as a whole, under this Guaranty.
“Secured Parties” has the meaning assigned to such term in the Credit Agreement.
“Guarantor” has the meaning assigned to such term in the preamble to this Guaranty.
“Guaranty” means this Guaranty Agreement, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Susoils Borrower Pledge and Security Agreement” means that certain Pledge and Security Agreement dated as of September 22, 2023, between each of Guarantor, Global Clean Energy Holdings, Inc. and the Borrower.
1.2 Rules of Interpretation. For all purposes of this Guaranty, except as otherwise expressly provided, the rules of interpretation set forth in Section 1.02 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis, as if fully set forth herein.
SECTION 2. GUARANTY
(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor, jointly and severally with any other guarantor of the Guaranteed Obligations, hereby unconditionally and irrevocably guarantees the full payment and performance (whether at stated maturity, upon acceleration or otherwise) of all Guaranteed Obligations, in each case as primary obligor and not merely as surety and with respect to all such Guaranteed Obligations howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, subject to the limitation set forth in Section 2.7. This is a guaranty of payment and not merely of collection. Upon failure of Borrower to punctually pay any amounts of such Guaranteed Obligations when due pursuant to the Credit Agreement resulting in a continuing Event of Default, and upon written demand by any Guaranteed Party (a “Demand Notice”) to the Guarantor to the address set forth on Schedule 1 or at such other address specified in writing to the Administrative Agent in accordance with the Credit Agreement, the Guarantor agrees to pay or cause to be paid such past due amounts within ten (10) Business Days of its receipt of a Demand Notice with respect thereto, subject to the limitation set forth in Section 2.7; provided that any delay by any Guaranteed Party in giving such demand shall in no event affect the Guarantor’s obligations under this Guaranty; provided, further, that no such demand shall be required to be delivered in the event Borrower or the Guarantor is subject to a Bankruptcy.
(b) The guarantee contained in this Section 2 shall remain in full force and effect until this Guaranty terminates in accordance with Section 5.14.
(c) The Guarantor agrees to pay or reimburse the Administrative Agent for all its reasonable and actual, documented out-of-pocket costs and expenses incurred in collecting against the Guarantor under the guarantee contained in this Section 2 or otherwise enforcing or preserving any rights under this Guaranty, including the reasonable and documented fees and expenses of external counsel to the Administrative Agent.
2.2 No Subrogation. Notwithstanding any payment made by the Guarantor hereunder or any set-off or application of funds of the Guarantor by any Secured Party, so long as any of the Guaranteed Obligations under the Financing Documents remain outstanding (subject to Section 2.5), (a) the Guarantor subordinates all of its rights of subrogation to any of the rights of any Secured Party against Borrower or any other Loan Party or any collateral security or guarantee or right of offset held by the Collateral Agent, the Administrative Agent or any other Secured Party for the payment of the Guaranteed Obligations, and (b) the Guarantor subordinates all of its rights to seek or be entitled to seek any contribution or reimbursement from Borrower or any other Loan Party in respect of payments made by the Guarantor hereunder, in each case, until this Guaranty has been terminated in accordance with its terms. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time when this Guaranty remains in full force and effect, such amount shall be held by the Guarantor in trust for the Secured Parties, segregated from other funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, promptly be turned over to the Administrative Agent in the exact form received by the Guarantor (duly indorsed by the Guarantor to the Administrative Agent, if required), to be applied against the Guaranteed Obligations, whether matured or unmatured, in such manner and in such order as specified in the Credit Agreement.
2.3 Amendments, etc. with respect to the Guaranteed Obligations. The Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against the Guarantor and without notice to or further assent by the Guarantor, any demand for payment of any of the Guaranteed Obligations made by any Guaranteed Party may be rescinded by such Guaranteed Party and any of the Guaranteed Obligations continued, and the Guaranteed Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by any Guaranteed Party, the Credit Agreement and the other Financing Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, and any collateral security, guarantee or right of offset at any time held by any Guaranteed Party for the payment of the Guaranteed Obligations may be sold, exchanged, waived, surrendered or released. No Guaranteed Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Guaranteed Obligations or for the guarantee contained in this Section 2 or any other guarantee of the Guaranteed Obligations or any property subject thereto. Nothing in this Section 2.3 shall limit or impair any Loan Parties’ rights under the Credit Agreement or any other Financing Document.
2.4 Guarantee Absolute and Unconditional. The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Guaranteed Party upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between Holdings, Borrower and the Guarantor, on the one hand, and any Guaranteed Party, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Except for any notice expressly provided herein (including Demand Notices), the Guarantor waives diligence, presentment, protest, proof of notice of non-payment, demand for payment and notice of default or nonpayment to or upon Holdings, Borrower or the Guarantor with respect to the Guaranteed Obligations. The Guarantor understands and agrees that the guarantee of the Guarantor contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment until the termination of this Guaranty without regard to (a) the validity or enforceability of the Credit Agreement, any other Financing Document, any of the Guaranteed Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Party (including any provision of Applicable Law purporting to prohibit the performance by any Loan Party of any of its obligations under the Financing Documents (other than any such invalidity or unenforceability with respect solely to the Guaranteed Obligations)), (b) the existence of any claim, defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by Holdings, Borrower, the Guarantor or any other Person against any Guaranteed Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of Holdings, Borrower or the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of or defense of a surety or guarantor or any other obligor on any obligation of Holdings for its Guaranteed Obligations, or of the Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against the Guarantor, any Guaranteed Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against any Loan Party, any other guarantor or any other Person or against any collateral security or guarantee for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Party to make any such demand, to pursue such other rights or remedies or to collect any payments from any Loan Party, any other guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any Loan Party, any other guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve the Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Guaranteed Party against the Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings. The Guarantor acknowledges that its obligations hereunder are joint and several obligations with the other Guarantors (as defined in the Credit Agreement), and that none of (i) the failure of another Guarantor (as defined in the Credit Agreement) to perform under its Guaranty (as defined in the Credit Agreement) or (ii) any other circumstance affecting another Guarantor (as defined in the Credit Agreement) shall constitute a defense or discharge of its obligations hereunder.
2.5 Reinstatement. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by any Guaranteed Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or the Guarantor or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Borrower or the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
2.6 Payments. The Guarantor hereby agrees that payments made by it in respect of the Guaranteed Obligations will be made in Dollars without set-off or counterclaim and free and clear of and without deduction for any Taxes, in accordance with the Credit Agreement.
2.7 Limitation on Liability. Notwithstanding anything to the contrary herein, the aggregate liability of Guarantor under this Guaranty shall not exceed an amount equal to (a) $15,000,000 minus (b) any amounts paid to Borrower by Guarantor in respect of the Note.
SECTION 3. REPRESENTATIONS AND WARRANTIES
On each of the Amendment Effective Date, any Funding Date, any Disbursement Date, each Completion Date and the Term Conversion Date and on any other date that the representations herein are required to be made pursuant to the Financing Documents, the Guarantor represents and warrants to Secured Party that, as of such date:
3.1 Corporate Existence and Business. The Guarantor (a) is a limited liability company duly organized, validly existing and in good standing under the laws of its state of organization or formation and
(b) is duly qualified to do business and in good standing in each other jurisdiction in which such qualification is necessary to execute, deliver and perform this Guaranty.
3.2 Power and Authorization; Enforceable Obligations.
(a) The Guarantor has all limited liability company power and authority to execute, deliver and perform this Guaranty and to take all action as may be necessary to complete the transactions contemplated hereunder. The Guarantor has taken all necessary limited partnership, corporate or limited liability company action to authorize the execution, delivery and performance of this Guaranty and to complete the transactions contemplated hereby. No consent or authorization of, filing with, or other act by or in respect of any other Person or Governmental Authority is required in connection with the execution, delivery or performance by the Guarantor, or the validity or enforceability as to the Guarantor, of this Guaranty, except such consents, authorizations, filings or other acts as have already been obtained or made. This Guaranty has been duly executed and delivered by the Guarantor and constitutes a legal, valid and binding obligation of the Guarantor enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the right of creditors generally and by general principles of equity.
3.3 No Legal Bar. The execution, delivery and performance by the Guarantor of this Guaranty and the consummation of the transactions contemplated hereby (including the making by the Guarantor of any payments hereunder) will not violate in any material respect any Applicable Law or any material contractual obligation of the Guarantor and will not result in, or require, the creation or imposition of any material Lien on any of the properties or revenues of the Guarantor pursuant to any Applicable Law or any such contractual obligation.
3.4 Transaction Documents. The Guarantor has reviewed and is familiar with the terms of the Transaction Documents that are material to its obligations hereunder.
3.5 Solvency Matters.
(a) Financial Information. The Guarantor has established adequate means of obtaining financial and other information pertaining to the businesses, operations and condition (financial and otherwise) of the Loan Parties and their respective properties on a continuing basis (including any amendments to any relevant Financing Document that are material to its obligations hereunder), and the Guarantor now is and hereafter will be completely familiar with the businesses, operations and condition (financial and otherwise) of the Loan Parties and their respective properties.