Limited Liability Company Agreement of Crowfoot Development, LLC

Exhibit 10.55

EXECUTION COPY


CROWFOOT DEVELOPMENT, LLC


A Delaware Limited Liability Company


LIMITED LIABILITY COMPANY AGREEMENT

Dated as of October 1, 2008

MEMBERSHIP INTERESTS IN CROWFOOT DEVELOPMENT, LLC, A DELAWARE LIMITED LIABILITY COMPANY, HAVE NOT BEEN REGISTERED WITH OR QUALIFIED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE. THE INTERESTS ARE BEING SOLD IN RELIANCE UPON EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS. THE INTERESTS CANNOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE RESTRICTIONS ON TRANSFERABILITY CONTAINED IN THE LIMITED LIABILITY COMPANY AGREEMENT OF CROWFOOT DEVELOPMENT, LLC AND APPLICABLE FEDERAL AND STATE SECURITIES LAWS.


* indicates portions of the exhibit that have been omitted pursuant to a request for confidential information. The non-public information has been filed with the Commission.

TABLE OF CONTENTS

Page ARTICLE I ORGANIZATION 1 1.1 Continuation of the Company 1 1.2 Name 1 1.3 Registered Office; Registered Agent 2 1.4 Principal Place of Business 2 1.5 Fiscal Year 2 1.6 Foreign Qualification 2 1.7 Term 2 1.8 No State-Law Partnership 2 1.9 ECP Representative 2 1.10 Purposes 3 ARTICLE II MEMBERS 3 2.1 Members 3 2.2 No Liability of Members 3 2.3 Representations and Warranties 4 ARTICLE III MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS 5 3.1 Membership Interests 5 3.2 Capital Contributions Generally 5 3.3 Capital Contribution Tranches and Timing 5 3.4 Unused Capital Commitments; No Obligation to Fund Amounts in Excess of Unused Capital Commitments 9 3.5 Successor Funds 9 3.6 Triggering Events 10 3.7 Funding Stop Based on Failure of Funding Condition 13 3.8 Preferred Equity 14 3.9 Member Loans 15 3.10 Additional Projects 16 3.11 Return of Contribution 16 3.12 Withdrawal of Capital 16 3.13 Issuance of Additional Interests; Additional Members 17 3.14 Capital Accounts 17 3.15 Certification of Membership Interests 18 ARTICLE IV DISTRIBUTIONS AND ALLOCATIONS 18 4.1 Distributions 18 4.2 Allocations for Capital Account Purposes 19 4.3 Allocations for Tax Purposes 21 ARTICLE V MANAGEMENT 22 5.1 Management by the Board of Managers 22


i 5.2 Actions by the Board; Delegation of Authority and Duties; Reliance by Third Parties 22 5.3 Board Composition 23 5.4 Board Meetings; Quorum; Vote Required 24 5.5 Action by Written Consent or Telephone Conference 25 5.6 Officers 25 5.7 Actions Requiring Approval of the Board 26 5.8 Actions Requiring Consent of the Members 27 5.9 Budgets 28 5.10 Limitation of Duties 29 5.11 Certain Powers of the ECP Managers 29 5.12 Certain Powers of the ADA-ES Managers 29 5.13 Board Observation Rights 30 5.14 Deadlock 30 5.15 Insurance 31 5.16 No Participation in Management by Members; Member Voting Generally 31 5.17 Meetings of the Members 31 ARTICLE VI PROJECT COMPANIES 31 6.1 Additional Projects 31 6.2 Exclusivity 32 6.3 Project Companies 33 ARTICLE VII BOOKS, REPORTS AND COMPANY FUNDS 33 7.1 Records and Accounting 33 7.2 Reports 33 7.3 Inspection by Members 34 7.4 Company Funds 34 ARTICLE VIII TAX MATTERS 34 8.1 Preparation of Tax Returns 34 8.2 Accounting Methods; Tax Elections 34 8.3 Tax Controversies 35 8.4 Taxation as a Partnership 35 8.5 Withholding 35 8.6 Reimbursement 35 ARTICLE IX EXCULPATION AND INDEMNIFICATION 36 9.1 Performance of Duties; No Liability of Members, Managers and Officers 36 9.2 Right to Indemnification 36 9.3 Advance Payment 37 9.4 Indemnification of Employees and Agents 37 9.5 Appearance as a Witness 37 9.6 Nonexclusivity of Rights 37 9.7 Insurance 38 9.8 Savings Clause 38


ii ARTICLE X MEMBERSHIP INTERESTS, TRANSFERS, BUY-SELL PROVISIONS AND OTHER EVENTS 38 10.1 Membership Interest Register 38 10.2 Record Holders 38 10.3 Restrictions on Transfers of Membership Interests 39 10.4 Effect of Non-Compliance 39 10.5 Right of First Offer 40 10.6 Expenses 41 10.7 Buy-Sell Provisions 41 10.8 Void Assignment 44 10.9 Transfers Generally; Substitute Members 44 10.10 Legend 46 10.11 Effective Date 46 10.12 Effect of Incapacity 46 10.13 No Appraisal Rights 47 ARTICLE XI DISPUTE RESOLUTION 47 11.1 Dispute Resolution Procedures 47 11.2 Consent to Jurisdiction and Service of Process; Appointment of Agent for Service of Process 47 11.3 Waiver of Jury Trial 48 ARTICLE XII MATERIAL DEFAULTS 49 12.1 Certain Definitions 49 12.2 Remedies Upon Material Default by One Member 50 ARTICLE XIII DISSOLUTION, LIQUIDATION AND TERMINATION 54 13.1 Dissolution 54 13.2 Liquidation and Termination 54 ARTICLE XIV COMPANY SALE TRANSACTIONS 56 14.1 Company Sale Transactions 56 ARTICLE XV DEFINITIONS 57 15.1 Definitions 57 15.2 Construction 73 ARTICLE XVI MISCELLANEOUS 74 16.1 Offset 74 16.2 Notices 74 16.3 Confidential Information 74 16.4 Entire Agreement 75 16.5 Effect of Waiver or Consent 75 16.6 Amendment or Modification 75 16.7 Binding Effect 75 16.8 Governing Law 76 16.9 Further Assurances 76


iii 16.10 Waiver of Certain Rights 76 16.11 Notice to Members of Provisions 76 16.12 Counterparts 76 16.13 Headings 76 16.14 Remedies 76 16.15 Severability 76

Exhibits

Exhibit A Members, Capital Contributions, Capital Commitments and Percentage Interests

Exhibit B Development Milestones

Exhibit C Form of Membership Interest Certificate

Exhibit D Initial Board Designations

Exhibit E Interim Budget

Exhibit F Form of Project Company Limited Liability Company Operating Agreement

Exhibit G Member Addresses

iv

Exhibit 10.55

EXECUTION COPY

LIMITED LIABILITY COMPANY AGREEMENT OF

CROWFOOT DEVELOPMENT, LLC

A Delaware Limited Liability Company

This LIMITED LIABILITY COMPANY AGREEMENT of Crowfoot Development, LLC, a Delaware limited liability company (the " Company" ), effective as of October 1, 2008 (the " Effective Date" ), is made and entered into by ENERGY CAPITAL PARTNERS I, LP, a Delaware limited partnership (" ECP I" ), as a Member; ENERGY CAPITAL PARTNERS I-A, LP, a Delaware limited partnership (" ECP I-A" ), as a Member; ENERGY CAPITAL PARTNERS I-B IP, LP, a Delaware limited partnership (" ECP I-B" ), as a Member; ENERGY CAPITAL PARTNERS I (Crowfoot IP), LP, a Delaware limited partnership (" ECP Crowfoot" ) and, together with ECP I, ECP I-A and ECP I-B, the " ECP Members" ), as a Member; and ADA-ES, Inc., a Colorado corporation (" ADA-ES" ), as a Member. R E C I T A L S

WHEREAS, the Company was organized as a limited liability company under the Act pursuant to the Certificate of Formation of the Company filed with the Delaware Secretary of State on February 19, 2008 (the " Delaware Certificate" );

WHEREAS, the Members desire that the Company pursue opportunities including the production and supply of activated carbon; and WHEREAS, the parties desire that the Company be governed by the Act and this Agreement.

A G R E E M E N T

NOW, THEREFORE, in consideration of the promises and the covenants hereinafter contained and to induce the parties hereto to enter into this Agreement, it is agreed as followed:

ARTICLE I

ORGANIZATION

1.1 Continuation of the Company . The Company was organized as a Delaware limited liability company on February 19, 2008 by the filing of the Delaware Certificate in the office of the Delaware Secretary of State pursuant to the Act. The Members desire to continue the Company for the purposes and upon the terms and conditions set forth herein. As of the Effective Date, ADA-ES, ECP I, ECP I-A, ECP I-B and ECP Crowfoot are admitted to the Company and constitute its sole Members. Except as provided herein, the rights, duties and liabilities of each Member will be as provided in the Act.

1.2 Name . The name of the Company is " Crowfoot Development, LLC." Company business will be conducted in such name or such other names that comply with applicable law as the Board may select from time to time.

1.3 Registered Office; Registered Agent . The registered office of the Company in the State of Delaware will be the initial registered office designated in the Delaware Certificate or such other office (which need not be a place of business of the Company) as the Board may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware will be the initial registered agent designated in the Delaware Certificate, or such other Person or Persons as the Board may designate from time to time in the manner provided by law.

1.4 Principal Place of Business . The principal place of business of the Company will be at 8100 SouthPark Way, Unit B, Littleton, Colorado 80120 or such other location as the Board may designate from time to time, which need not be in the State of Delaware. The Company may have such other offices as the Board may determine appropriate. 1.5 Fiscal Year . The fiscal year of the Company (the " Fiscal Year" ) for financial statement and federal income tax purposes will end on December 31 st unless otherwise determined by the Board or required under the Code.

1.6 Foreign Qualification . The Board is authorized to cause the Company and its subsidiaries to comply, to the extent procedures are available, with all requirements necessary to qualify the Company or such subsidiaries as a foreign limited liability company in such jurisdiction. Each Officer is authorized, on behalf of the Company, to execute, acknowledge, swear to and deliver all certificates and other instruments as may be necessary or appropriate in connection with such qualifications. Further, each Member will execute, acknowledge, swear to and deliver all certificates and other instruments that are necessary or appropriate to qualify, or, as appropriate, to continue or terminate such qualification of, the Company as a foreign limited liability company in all such jurisdictions in which the Company may conduct business. 1.7 Term . The term of the Company commenced on the date the Delaware Certificate was filed with the office of the Secretary of State of Delaware and shall continue in existence until dissolution as determined under Section 13.1.

1.8 No State-Law Partnership . Except to the extent provided in the next sentence, the Members intend that the Company shall not be a partnership (including, without limitation, a limited partnership) or joint venture, and that no Member or Officer shall be a partner or joint venturer of any other Member or Officer, for any purposes, and this Agreement shall not be construed to the contrary. The Members intend that the Company shall be treated as a partnership for federal and, if applicable, state and local income tax purposes. Except to the extent otherwise provided herein, each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment unless otherwise required by law.

1.9 ECP Representative . The ECP Members have designated the ECP Representative to act as their agent and representative with respect to the making of, and the delivery and receipt of, any and all notices, elections, approvals, requests or other instructions or determinations (including as to whether any condition has been met to the satisfaction of the ECP Members) hereunder and to otherwise act on behalf of any or all of the ECP Members with respect to any and all notices, elections, approvals, requests or other


2

instructions or determinations made or delivered in connection with this Agreement. The ECP Members shall cause the ECP Representative to act at the direction of the ECP Members holding a majority of the shares held by all ECP Members with respect to all such notices, elections, approvals, requests or other instructions or determinations. Each Member (other than any ECP Member) agrees to direct any notice or other communication to be made to any ECP Member hereunder to the ECP Representative and further agrees that any notice, election, approval, request or other instruction or determination made or delivered in connection with this Agreement by the ECP Representative shall be deemed to be a notice, election, approval, request or other instruction or determination made or delivered by the ECP Members. Any notice or other communication made to the ECP Representative (referencing the ECP Members) shall be deemed to have been made to the ECP Members in the form and at the time made to the ECP Representative.

1.10 Purposes . The nature of the business or purposes to be conducted or promoted by the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act. The Company may engage in any and all activities necessary, desirable or incidental to the accomplishment of the foregoing. In furtherance of its purpose, (a) the Company shall have and may exercise all of the powers now or hereafter conferred by Delaware law on limited liability companies formed under the Act and (b) the Company shall have the power to do any and all acts necessary, appropriate, proper, advisable, incidental or convenient to or for the protection and benefit of the Company. Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by law to a limited liability company organized under the laws of the State of Delaware.

ARTICLE II

MEMBERS

2.1 Members . As of the Effective Date, the ECP Members and ADA-ES are the sole Members of the Company. The names, addresses, initial Capital Contributions, initial Capital Account balances and initial Percentage Interests of the Members are set forth on Exhibit A attached hereto and incorporated herein. The Board is hereby authorized to complete or amend Exhibit A to reflect the admission of additional Members, the withdrawal of a Member, the change of address of any Member, the Capital Contributions of a Member, the Membership Interests, the Percentage Interests of a Member, the Capital Commitment of a Member and other information called for by Exhibit A , and to correct or amend Exhibit A . Such completion, correction or amendment may be made from time to time as and when the Board considers it appropriate.

2.2 No Liability of Members . Except as otherwise required by applicable law and as expressly set forth in this Agreement, no Member shall have any personal liability whatsoever in such Member' s capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company. Each Member shall be liable only to make such Member' s Capital Contribution to the Company and the other payments and covenants provided expressly herein.

3

2.3 Representations and Warranties . Each Member hereby represents and warrants to the Company and each other Member that, as of the Effective Date:

(a) Power and Authority . Such Member has full power and authority to enter into this Agreement and to perform its obligations hereunder;

(b) No Conflicts . The execution, delivery and performance of this Agreement do not conflict with any other agreement or arrangement to which such Member is a party or by which it is or its assets are bound; (c) No Liens . All property contributed to the Company by such Member, and any property thereafter to be contributed to the Company by such Member, has been or will be duly and lawfully acquired and will be contributed to the Company without any Liens or encumbrances;

(d) Own Account . Such Member is and will be acquiring its interest in the Company for investment purposes only for his or its own account and not with a view to the distribution, reoffer, resale or other disposition not in compliance with the Securities Act and applicable state securities laws;

(e) Expertise . Such Member alone, or together with his or its representatives, possesses such expertise, knowledge and sophistication in financial and business matters generally, and in the type of transactions in which the Company proposes to engage in particular, that such Member is capable of evaluating the merits and economic risks of acquiring and holding an Interest, and that such Member is able to bear all such economic risks now and in the future; (f) Access to Information . Such Member has had access to all of the information with respect to his or its Membership Interest that such Member deems necessary to make a complete evaluation thereof;

(g) Own Evaluation . Such Member' s decision to acquire a Membership Interest for investment has been based solely upon the evaluation made by such Member;

(h) Awareness of Economic Risk . Such Member is aware that he or it must bear the economic risk of such Member' s investment in the Company for an indefinite period of time because Membership Interests have not been registered under the Securities Act or under the securities laws of any state, and, therefore, such Membership Interests cannot be sold unless they are subsequently registered under the Securities Act and any applicable state securities laws or an exemption from registration is available;

(i) No Registration Rights . Such Member is aware that only the Company can take action to register Membership Interests in the Company and that the Company is under no such obligation and does not propose or intend to attempt to do so;

(j) Transfer Restrictions . Such Member is aware that this Agreement provides restrictions on the ability of a Member to Transfer Membership Interests, and such Member will not seek to effect any Transfer other than in accordance with such restrictions;


4

(k) Accredited Investor . Such Member is, and at such time that it makes any additional Capital Contributions to the Company, will be, an " accredited investor" within the meaning of Rule 501 under the Securities Act; and

(l) Potential Loss of Investment . Such Member understands that the acquisition of its Membership Interest will be a highly speculative investment and represents that it is able, without impairing its financial condition, to hold its Membership Interest for an indefinite period of time and to suffer a complete loss on its investment.

ARTICLE III

MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS

3.1 Membership Interests . Each Member' s interest in the Company will be represented by its Capital Account, by its Membership Interests issued by the Company to such Member and its Percentage Interests as set forth on Exhibit A hereto. Subject to Section 3.5 and Section 5.8(d), additional Membership Interests may be issued from time to time as may be determined by the Board. Subject to Section 5.8, the Board may also create additional series or classes through subdivision or by issuance of Membership Interests of such classes or series.

3.2 Capital Contributions Generally . At such times as the Company requires Capital to meet the Capital Requirements of the Company, the Company shall send to the Members a written notice (a " Capital Request Notice" ) advising the Members of such Capital requirements and specifying the individual Capital Contribution amount of each Member not less than 20 Business Days prior to the date on which the Capital Contributions are to be made (the " Required Funding Date" ). Any such request will be directed to Members in a manner consistent with such Members' obligations to make additional Capital Contributions at such time pursuant to the capital contribution tranches set forth in Section 3.3 or as provided in Section 3.4, as applicable. Each Capital Request Notice will specify the general purpose for which the Capital Contributions are required to be made. Each Member will be required to make a Capital Contribution in cash in the amount stated in, on or before the date set forth in, and otherwise pursuant to the terms and provisions of, the Capital Request Notice and otherwise in accordance with this Article III. No Member shall have any obligation to contribute Capital except as expressly provided in this Article III.

3.3 Capital Contribution Tranches and Timing . (a) Effective Date Contributions . As of the Effective Date, ADA-ES has contributed the ADA-ES Contributed Assets to the Company, with a value of $17,063,273. All Members acknowledge and agree that the initial Capital Contributions set forth on Exhibit A represent the amount of money and the agreed upon value of all property (other than money) initially contributed by the Members.

(b) Initial $17,063,273 Capital Contribution Tranche by ECP Members . As of the Effective Date, the ECP Members have contributed to the Company an aggregate amount equal to $200,000. The ECP Members shall make an additional Capital Contribution to the Company (pro rata in accordance with their respective Percentage Interests) in the aggregate amount of $16,863,273 no later than 15 Business Days following the Effective Date.


5

(c) Second $17,000,000 Tranche by ADA-ES and ECP Members . (i) On the date on which the ADA-ES Adjustment Amount is finally determined pursuant to Section 2.4 of the Joint Development Agreement, ADA-ES shall be deemed to have contributed pursuant to this Section 3.3(c), an amount equal to the ADA-ES Adjustment Amount and the Company shall promptly provide a Capital Request Notice to the ECP Members requesting that the ECP Members contribute (pro rata in accordance with their respective Percentage Interests) an aggregate amount equal to the ADA-ES Adjustment Amount. The ECP Members shall make such Capital Contribution to the Company on or prior to the Required Funding Date.

(ii) From and after the date on which the ECP Members have made all Capital Contributions required to be made pursuant to Section 3.3(b) and pursuant to clause (i) of this Section 3.3(c), the Members shall fund, on a pro rata basis in accordance with their respective Percentage Interests, 100% of the Capital Requirements of the Company pursuant to appropriate Capital Request Notices; provided that, unless waived in writing by the Member so obligated to contribute Capital pursuant to this Section 3.3(c), the amount of the additional Capital so requested from such Member, when taken together with all other previous Capital Contributions made by such Member pursuant to this Section 3.3(c), does not exceed such Member' s pro rata share (based on Percentage Interests) of $17,000,000. (d) Third Tranche by ADA-ES and ECP Members . From and after the later of the date on which the Members have made all Capital Contributions required to be made to the Company pursuant to Section 3.3(c) and the SPA Pricing Date, the Members shall make Capital Contributions as follows: (i) Prior to the ECP PIPE Financing, for so long as no Triggering Event or termination of the Securities Purchase Agreement has occurred, and subject to the Funding Conditions and any Capital Contributions to be made by ADA-ES prior to the ECP PIPE Financing pursuant to Section 3.3(d)(ii), the ECP Members shall contribute (pro rata in accordance with their relative Percentage Interests) 100% of the Capital Requirements of the Company, if and as required, until the earlier of (A) the date on which the ECP Members have contributed the Third Tranche Amount in the aggregate pursuant to this clause (i) and (B) the date of the ECP PIPE Financing. All amounts contributed by ECP pursuant to this clause (i) shall be deemed to be Preferred Equity Contributions. (ii) Immediately following the consummation of each Other Financing and the ECP PIPE Financing, ADA-ES shall make a Capital Contribution to the Company in an amount equal to the lesser of (A) 100% of the aggregate Net Proceeds from such Other Financing or ECP PIPE Financing and (B) (1) the amount equal to the 12% Annualized Rate of Return on the portion of Unreturned Preferred Equity that is subject to such return pursuant to Section 3.3(d)(i) plus (2) the amount of any Unreturned


6

Preferred Equity that constitutes Preferred Equity Contributions made pursuant to Section 3.3(d)(i) with respect to which the Preferred Equity Redemption Price includes a 12% Annualized Rate of Return. The Company shall apply all Capital Contributions by ADA-ES pursuant to this clause (ii) to Redeem and, as applicable, Convert the ECP Members' Unreturned Preferred Equity, in the manner set forth in Section 3.8 unless and until the ECP Members' Unreturned Preferred Equity equals zero. If, immediately following the Capital Contribution of Net Proceeds from the ECP PIPE Financing pursuant to this Section 3.3(d)(ii), such Capital Contribution was equal to 100% of the aggregate Net Proceeds, then no further amounts will be contributed pursuant to this Section 3.3(d). If such Capital Contribution equals the amount described in subpart (B) of this clause (ii) but is less than 100% of the aggregate Net Proceeds, then the ECP Members and ADA-ES shall continue under this Section 3.3(d) to fund Capital Contributions to satisfy the Company' s Capital Requirements pursuant to clause (iii) below.

(iii) If the ECP PIPE Financing has occurred and contributions may no longer be made under clause (ii) of this Section 3.3(d), subject to the Funding Conditions, each of ADA-ES and the ECP Members shall make Capital Contributions, as and when required by the Company to fund Capital Requirements pursuant to the appropriate Capital Request Notices, on a pro rata basis in accordance with their respective Percentage Interests until such time as ADA-ES has contributed pursuant to this Section 3.3(d) an aggregate amount equal to 100% of the Net Proceeds.

(iv) From and after the earliest of (A) the date on which all Capital Contributions have been made pursuant to clause (iii), (B) the date on which a Triggering Event or other termination of the Securities Purchase Agreement has occurred and (C) any Material Default by ADA-ES, then, subject to any election made pursuant to Section 3.6 or Section 12.2, as applicable, no further Capital Contributions shall be made to the Company pursuant to this Section 3.3(d) and the Members shall make Capital Contributions pursuant to, and solely to the extent permitted and required by, Sections 3.3(e), 3.3(f) and 3.4.

(e) Fourth Tranche Following Construction Equity Commitment Date . (i) Fourth Tranche Election Notice . If at any time or from time to time prior to Construction Debt Financial Close, the ECP Members reasonably determine, based on negotiations with proposed Construction Financing lenders, based on anticipated delays in the ability to achieve Construction Debt Financial Close, or based on the Capital Requirements of the Company, that the Red River Project will require additional equity Capital in excess of amounts reasonably contemplated by Sections 3.3(b), 3.3(c) and 3.3(d) hereof (including for this purpose only those net proceeds actually received by ADA-ES from Other Financings as of the date of the first such determination and considering in any such determination any event or circumstance that would cause less than all Capital Contributions contemplated by Section 3.3(d) to be made), then the ECP Members may deliver a notice to the Company (a " Fourth Tranche Election Notice" ) (i) setting forth the aggregate amount of any additional Capital that the ECP Members believe will be required (such amount, as increased by any subsequent Fourth


7

Tranche Election Notices, the " Fourth Tranche Amount" ) and (ii) irrevocably committing to fund through Capital Contributions all or any portion of such Fourth Tranche Amount. If the ECP Members commit to fund an amount equal to less than 100% of the applicable Fourth Tranche Amount, then the Company shall promptly provide notice to ADA-ES offering ADA-ES the right to commit to fund the portion of such Fourth Tranche Amount that the ECP Members have not committed to fund (the " Remaining Fourth Tranche Amount" ). ADA-ES shall respond within ten Business Days from the date of such notice by written notice to the Company and to the ECP Members either stating that ADA-ES elects not to fund any portion of the Remaining Fourth Tranche Amount or irrevocably committing to fund all or any portion of the Remaining Fourth Tranche Amount. If ADA-ES does not respond within such ten Business Day period, ADA-ES shall be deemed to have e ...