Common use of Required Upgrades Clause in Contracts

Required Upgrades. If Operator reasonably determines that a Required Upgrade is required with respect to all or any portion of the Renewable Fuels Facility, then Operator shall provide written notice to Owner of such circumstance (a “Required Upgrade Notice”). Such Required Upgrade Notice shall contain the following: (a) a description of the Asset(s) requiring such Required Upgrade, (b) the type of upgrade, modification, expansion or other similar improvement needed with respect to such Required Upgrade, (c) a description of the safety concern, applicable Law or HSE Policy containing the requirements or obligations that such Required Upgrade is needed to satisfy, (d) a good faith estimate of the costs and expenses of the Design, Procurement, Construction, and Operation of such Required Upgrade, including the incremental increase to the Fixed Operating Fee that would be attributable to such Required Upgrade, if any (the actual costs and expenses related to the foregoing, the “Required Upgrade Costs”), and (e) a schedule of such estimated Required Upgrade Costs. Upon receipt by Owner of any such Required Upgrade Notice, Owner shall, as soon as practicable, review the Required Upgrade Notice in total and approve or reject the Required Upgrade; provided, however, that a Required Upgrade Notice sent to comply with applicable Law or Owner’s or Operator’s HSE policies, as applicable, shall be discussed in good faith by Operator and senior-level management of each 5% Member of Owner, and Operator shall consider, in good faith, such senior-level management’s concerns. If, following such period, Operator has not rescinded or modified the Required Upgrade notice, then the Required Upgrade shall be deemed approved; provided, that if such Required Upgrade would cost more than Three Million Dollars ($3,000,000), such Required Upgrade shall only be deemed approved if Operator’s general counsel or Vice President of HSE has issued a written opinion that the Required Upgrade is necessary or advisable (as reasonably determined by Operator in accordance with Prudent Operating Practices) to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable. If approved, (i) the Required Upgrade will be become an approved Required Upgrade (an “Approved Required Upgrade”), (ii) the Required Upgrade Costs approved by Owner shall become the Required Upgrade budget related to such Required Upgrade (the “Required Upgrade Budget”), and (iii) Operator shall Manage the Design, Procurement, Construction and/or Commissioning/Startup of such Required Upgrade and shall use commercially reasonable efforts to address each such Required Upgrade in the ordinary course of business. If, however, Operator’s general counsel or Vice President of HSE, as applicable, issues a written opinion providing that the Required Upgrade is not required or advisable to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable, or is unable to make a determination as to whether or not it is required or advisable, then the Required Upgrade shall not be deemed approved by the Operator and Owner, and neither Operator nor Owner shall proceed with the Required Upgrade, in which case, to the extent that Operator has made such determination in accordance with Prudent Operating Practices, Owner hereby irrevocably releases, waives and discharges the Operator from any and all Claims, Liabilities, obligations, damages, losses, costs or expenses of any nature whatsoever, whether known or unknown, arising out of or in connection with such written opinion, Operator’s failure to undertake the Required Upgrade or failure to make such determination. Notwithstanding the foregoing, if any 5% Member of Owner does not agree with the determination by Operator’s general counsel or Vice President of HSE whether the Required Upgrade is required to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable, then Operator’s general counsel or Vice President of HSE, as applicable, and senior-level management of each 5% Member of Owner shall meet to discuss in good faith the Required Upgrade and if the Parties cannot agree, such dispute shall be resolved in accordance with Section 16.3. Notwithstanding anything herein to the contrary, Operator shall not be obligated to incur any Required Upgrade Costs, or to perform any services, with respect to any Required Upgrade that requires approval of Owner unless and until Owner has approved the Required Upgrade.

Required Upgrades. If Operator reasonably determines that a Required Upgrade is required with respect to all or any portion of the Renewable Fuels FacilityDiesel Facility to comply with applicable Law or the HSE Policy of either Owner or Operator, then Operator shall provide written notice to Owner of such circumstance (a “Required Upgrade Notice”). Such Required Upgrade Notice shall contain the following: (a) a description of the Asset(s) requiring such Required Upgrade, (b) the type of upgrade, modification, expansion or other similar improvement needed with respect to such Required Upgrade, (c) a description of the safety concern, applicable Law or HSE Policy containing the requirements or obligations that such Required Upgrade is needed to satisfy, (d) a good faith estimate of the costs and expenses of the Design, Procurement, Construction, and Operation of such Required Upgrade, including the incremental increase to the Fixed Operating Fee that would be attributable to such Required Upgrade, if any (the actual costs and expenses related to the foregoing, the “Required Upgrade Costs”), and (e) a schedule of such estimated Required Upgrade Costs. Upon receipt by Owner of any such Required Upgrade Notice, Owner shall, as soon as practicable, review the Required Upgrade Notice in total and approve or reject the Required Upgrade; provided, however, that a Required Upgrade Notice sent to comply with applicable Law or Owner’s or Operator’s HSE policies, as applicable, shall be discussed in good faith by Operator and senior-level management of each 5% Member of Owner, and Operator shall consider, in good faith, such senior-level management’s concerns. If, following such period, Operator has not rescinded or modified the Required Upgrade notice, then the Required Upgrade shall be deemed approved; provided, that if such Required Upgrade would cost more than Three Million Dollars ($3,000,000), such Required Upgrade shall only be deemed approved if Operator’s general counsel or Vice President of HSE has issued a written opinion that the Required Upgrade is necessary or advisable (as reasonably determined by Operator in accordance with Prudent Operating Practices) to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable. If approvedapproved by Owner, (i) the Required Upgrade will be become an approved Required Upgrade (an “Approved Required Upgrade”), (ii) the Required Upgrade Costs approved by Owner shall become the Required Upgrade budget related to such Required Upgrade (the “Required Upgrade Budget”), and (iii) Operator shall Manage the Design, Procurement, Construction and/or Commissioning/Startup of such Required Upgrade and shall use commercially reasonable efforts to address each such Required Upgrade in the ordinary course of business. If, however, Operator’s general counsel or Vice President of HSE, as applicable, issues a written opinion providing that the Required Upgrade is not required or advisable to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable, or is unable to make a determination as to whether or not it is required or advisable, then the Required Upgrade shall not be deemed approved by the Operator and Owner, and neither Operator nor Owner shall proceed with the Required Upgrade, in which case, to the extent that Operator has made such determination in accordance with Prudent Operating Practices, Owner hereby irrevocably releases, waives and discharges the Operator from any and all Claims, Liabilities, obligations, damages, losses, costs or expenses of any nature whatsoever, whether known or unknown, arising out of or in connection with such written opinion, Operator’s failure to undertake the Required Upgrade or failure to make such determination. Notwithstanding the foregoing, if any 5% Member of Owner does not agree with the determination by Operator’s general counsel or Vice President of HSE whether the Required Upgrade is required to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable, then Operator’s general counsel or Vice President of HSE, as applicable, and senior-level management of each 5% Member of Owner shall meet to discuss in good faith the Required Upgrade and if the Parties cannot agree, such dispute shall be resolved in accordance with Section 16.3. Notwithstanding anything herein to the contrary, Operator shall not be obligated to incur any Required Upgrade Costs, or to perform any services, with respect to any Required Upgrade that requires approval of Owner unless and until Owner has approved the Required Upgrade. In the event that Owner rejects a Required Upgrade, Operator and Owner shall immediately begin such actions as required to shut down and wind-up the operation of the Renewable Diesel Facility pursuant to Section 6.5.

Required Upgrades. If Operator reasonably determines that a Required Upgrade is required with respect Notwithstanding anything in Section 7.01 (b) of Lease or this Workletter to all or any portion the contrary, Landlord, at its sole cost and expense (and subject to inclusion in Operating Expenses to the extent permitted by Article Four of the Renewable Fuels FacilityLease), then Operator shall provide written notice be responsible for correcting any violations of Laws (including Title Ill of the ADA), as interpreted and enforced to Owner apply to the exterior Common Areas of the Building as of the Delivery Date, to the extent such circumstance violations of Laws are existing as of the Delivery Date in the exterior Common Areas of the Building (a with any such corrections referred to herein as the “Required Upgrades”). Landlord shall have the right to contest any alleged Required Upgrades in good faith, including, without limitation, the right to apply for and obtain a waiver or deferment of compliance, the right to assert any and all defenses allowed by Law and the right to appeal any decisions, judgments or rulings to the fullest extent permitted by Law; provided that Landlord shall diligently prosecute any such contest and appeal. Landlord, after the exhaustion of any and all rights to appeal or contest, will make or pay for (as applicable) all Required Upgrades required in accordance with this Section. In the event that Tenant becomes aware of Required Upgrades, Tenant shall give prompt, written, reasonably detailed notice thereof to Landlord (“Upgrade Notice”). Such Required Upgrade Notice shall contain the following: (a) a description Following Landlord’s receipt of the Asset(s) requiring such Required Upgrade, (b) the type of upgrade, modification, expansion or other similar improvement needed with respect to such Required Upgrade, (c) a description of the safety concern, applicable Law or HSE Policy containing the requirements or obligations that such Required Upgrade is needed to satisfy, (d) a good faith estimate of the costs and expenses of the Design, Procurement, Construction, and Operation of such Required Upgrade, including the incremental increase to the Fixed Operating Fee that would be attributable to such Required Upgrade, if any (the actual costs and expenses related to the foregoing, the “Required Upgrade Costs”), and (e) a schedule of such estimated Required Upgrade Costs. Upon receipt by Owner of any such Required Tenant’s Upgrade Notice, Owner shallLandlord shall use commercially reasonable and diligent efforts, as soon as practicable, review the Required Upgrade Notice in total and approve subject to Landlord’s right to dispute or reject the Required Upgrade; provided, however, that a Required Upgrade Notice sent to comply with applicable Law or Owner’s or Operator’s HSE policies, as applicable, shall be discussed in good faith by Operator and senior-level management of each 5% Member of Owner, and Operator shall considerappeal, in good faith, such senior-level management’s concerns. If, following such period, Operator has not rescinded or modified the Required Upgrade noticeUpgrades as set forth above, then to complete the Required Upgrades as soon as practicable following the date of receipt of Tenant’s Upgrade shall be deemed approved; provided, that if such Required Upgrade would cost more than Three Million Dollars ($3,000,000), such Required Upgrade shall only be deemed approved if Operator’s general counsel or Vice President of HSE has issued a written opinion that Notice. Landlord and Tenant agree to reasonably cooperate with each other in order to enable the Required Upgrade Upgrades to be performed in a timely manner and with as little inconvenience to the construction of the Tenant Improvements as is necessary or advisable (as reasonably determined by Operator in accordance with Prudent Operating Practices) to comply with Applicable Law or Owner’s or Operator’s HSE Policies, as applicable. If approved, (i) the Required Upgrade will be become an approved Required Upgrade (an “Approved Required Upgrade”), (ii) the Required Upgrade Costs approved by Owner shall become the Required Upgrade budget related to such Required Upgrade (the “Required Upgrade Budget”)possible, and (iii) Operator shall Manage the Design, Procurement, Construction and/or Commissioning/Startup of such Required Upgrade and shall Tenant agrees to use commercially reasonable efforts to address each continue its planning and construction of the Tenant Improvements during the period of such Required Upgrade in Upgrades to the ordinary course of businessextent practicable and permitted by Law. If, however, Operator’s general counsel or Vice President of HSE, as applicable, issues a written opinion providing Provided that Landlord is proceeding with diligence to complete the Required Upgrade is not required or advisable to comply Upgrades in accordance with Applicable Law or Owner’s or Operator’s HSE Policiesthe foregoing provisions, as applicable, or is unable to make a determination as to whether or not it is required or advisable, then the Required Upgrade Landlord shall not be deemed approved by subject to any liability for any delays in completion of the Operator and OwnerRequired Upgrades, and neither Operator nor Owner shall Landlord be in default hereunder, nor shall such delay entitle Tenant to any credit or abatement of rent, but Landlord shall continue to proceed with diligence to complete the Required Upgrade, in which case, to the extent that Operator has made such determination in accordance with Prudent Operating Practices, Owner hereby irrevocably releases, waives and discharges the Operator from any and all Claims, Liabilities, obligations, damages, losses, costs or expenses of any nature whatsoever, whether known or unknown, arising out of or in connection with such written opinion, Operator’s failure to undertake the Required Upgrade or failure to make such determination. Notwithstanding the foregoing, if any 5% Member of Owner does not agree with the determination by Operator’s general counsel or Vice President of HSE whether the Required Upgrade is required to comply with Applicable Law or Owner’s or Operator’s HSE Policies, Upgrades as applicable, then Operator’s general counsel or Vice President of HSE, soon as applicable, and senior-level management of each 5% Member of Owner shall meet to discuss in good faith the Required Upgrade and if the Parties cannot agree, such dispute shall be resolved in accordance with Section 16.3. Notwithstanding anything herein to the contrary, Operator shall not be obligated to incur any Required Upgrade Costs, or to perform any services, with respect to any Required Upgrade that requires approval of Owner unless and until Owner has approved the Required Upgradepracticable.