Exhibit 10(hh)
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OPERATION AND MAINTENANCE AGREEMENT
Dated as of June 3, 1998
By and between
CRYSTECH, LLC
and
AMERICAN CRYSTAL SUGAR COMPANY
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TABLE OF CONTENTS
PAGE
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SECTION 1
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . -1-
Section 1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . -7-
Section 1.3 Technical Meanings . . . . . . . . . . . . . . . . . . . . -8-
Section 1.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . -8-
Section 1.5 Interpretation . . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 2
OWNER FURNISHED ITEMS
Section 2.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . -8-
Section 2.2 Information. . . . . . . . . . . . . . . . . . . . . . . . -8-
Section 2.3 Care, Custody and Operational Control. . . . . . . . . . . -9-
Section 2.4 Contractor-Supplied Items. . . . . . . . . . . . . . . . . -9-
Section 2.5 Overhaul of Major Equipment and Capital Improvements . . . -9-
SECTION 3
RESPONSIBILITIES OF OPERATOR
Section 3.1 Scope of Services. . . . . . . . . . . . . . . . . . . . . -9-
Section 3.2 Standards for Performance of the Services. . . . . . . . . -10-
Section 3.3 Personnel Standards. . . . . . . . . . . . . . . . . . . . -11-
Section 3.4 Billing and Payment of Invoices. . . . . . . . . . . . . . -11-
Section 3.5 Facility Agreements. . . . . . . . . . . . . . . . . . . . -11-
Section 3.6 Approvals and Permits. . . . . . . . . . . . . . . . . . . -12-
Section 3.7 Operating Data and Records. . . . . . . . . . . . . . . . -12-
Section 3.8 No Liens or Encumbrances . . . . . . . . . . . . . . . . . -12-
Section 3.9 No Action. . . . . . . . . . . . . . . . . . . . . . . . . -12-
Section 3.10 Emergency Action . . . . . . . . . . . . . . . . . . . . . -12-
Section 3.11 Access . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
Section 3.12 Relationship between Owner and Operator. . . . . . . . . . -13-
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PAGE
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SECTION 4
LIMITATIONS ON AUTHORITY OF OPERATOR
Section 4.1 General Limitations. . . . . . . . . . . . . . . . . . . . -13-
Section 4.2 Execution of Documents . . . . . . . . . . . . . . . . . . -14-
SECTION 5
PROCEDURES, PLANS AND REPORTING
Section 5.1 Plant Manager. . . . . . . . . . . . . . . . . . . . . . . -14-
Section 5.2 Annual Operating Plan and Budget . . . . . . . . . . . . . -15-
SECTION 6
COMPENSATION AND PAYMENT
Section 6.1 Compensation . . . . . . . . . . . . . . . . . . . . . . . -16-
Section 6.2 Reimbursable Costs . . . . . . . . . . . . . . . . . . . . -17-
SECTION 7
TERM
Section 7.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
Section 7.2 Termination by Owner . . . . . . . . . . . . . . . . . . . -18-
Section 7.3 Termination by Operator. . . . . . . . . . . . . . . . . . -18-
Section 7.4 Facility Condition at End of Term. . . . . . . . . . . . . -18-
SECTION 8
INSURANCE
Section 8.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . -19-
Section 8.2 Operator Insurance . . . . . . . . . . . . . . . . . . . . -19-
Section 8.3 Certificates; Proof of Loss. . . . . . . . . . . . . . . . -19-
Section 8.4 Deductibles. . . . . . . . . . . . . . . . . . . . . . . . -19-
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PAGE
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SECTION 9
INDEMNIFICATION
Section 9.1 By Operator. . . . . . . . . . . . . . . . . . . . . . . . -20-
Section 9.2 By Owner . . . . . . . . . . . . . . . . . . . . . . . . . -20-
Section 9.3 Cooperation Regarding Claims . . . . . . . . . . . . . . . -21-
SECTION 10
LIABILITIES OF THE PARTIES
Section 10.1 Limitations of Liability . . . . . . . . . . . . . . . . . -21-
Section 10.2 Environmental Liability. . . . . . . . . . . . . . . . . . -22-
Section 10.3 Limitation of Owner's Liability. . . . . . . . . . . . . . -22-
Section 10.4 Limitation of Operator's Liability . . . . . . . . . . . . -22-
SECTION 11
TITLE, DOCUMENTS AND DATA
Section 11.1 Materials and Equipment. . . . . . . . . . . . . . . . . . -22-
Section 11.2 Proprietary Information. . . . . . . . . . . . . . . . . . -23-
Section 11.3 Review by Owner. . . . . . . . . . . . . . . . . . . . . . -23-
SECTION 12
REPRESENTATIONS AND WARRANTIES
Section 12.1 Operator Representations and Warranties. . . . . . . . . . -23-
Section 12.2 Owner Representations and Warranties . . . . . . . . . . . -00-
XXXXXXX 00
XXXXX XXXXXXX
Section 13.1 Excused Performance. . . . . . . . . . . . . . . . . . . . -25-
Section 13.2 Notice of Force Majeure. . . . . . . . . . . . . . . . . . -25-
Section 13.3 Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
Section 13.4 Strikes. . . . . . . . . . . . . . . . . . . . . . . . . . -26-
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PAGE
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SECTION 14
CONFIDENTIAL INFORMATION
Section 14.1 Non-disclosure . . . . . . . . . . . . . . . . . . . . . . -26-
Section 14.2 Disclosure to Government Agency. . . . . . . . . . . . . . -26-
SECTION 15
MISCELLANEOUS PROVISIONS
Section 15.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . -26-
Section 15.2 Entire Agreement and Amendments. . . . . . . . . . . . . . -27-
Section 15.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Section 15.4 Severability . . . . . . . . . . . . . . . . . . . . . . . -27-
Section 15.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Section 15.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Section 15.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . -28-
Section 15.8 Further Assurances . . . . . . . . . . . . . . . . . . . . -28-
Section 15.9 Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . -28-
Section 15.10 Cooperation in Financing.. . . . . . . . . . . . . . . . . -28-
Section 15.11 No Third Person Rights . . . . . . . . . . . . . . . . . . -28-
Section 15.12 Dollars. . . . . . . . . . . . . . . . . . . . . . . . . . -28-
Section 15.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . -29-
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OPERATION AND MAINTENANCE AGREEMENT
This OPERATION AND MAINTENANCE AGREEMENT (this "AGREEMENT") is made as of
June __, 1998 between CRYSTECH, LLC, a Delaware limited liability company
("OWNER") and American Crystal Sugar Company, a Minnesota cooperative
corporation (in its capacity as operator of the Facility referred to herein,
"OPERATOR").
RECITALS
WHEREAS, Owner has been formed to develop, finance, construct, own,
operate and maintain a molasses desugarization facility and certain related
assets (the "Facility", as further defined herein) to be constructed pursuant
to the Construction Contract (as defined herein);
WHEREAS, Operator is experienced in the construction management,
operation and maintenance and management of food processing facilities such
as the Facility, and desires to provide construction management, operation
and maintenance services for the Facility on the terms and conditions set
forth herein; and
WHEREAS, Owner desires to retain the services of Operator to
supervise and manage the construction of the Facility and for the operation
and maintenance of all aspects of the Facility, and Operator is willing to
perform the services upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants,
undertakings and conditions set forth below, the Parties agree as follows:
SECTION 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS. Except as otherwise expressly provided
or unless the context otherwise requires, the terms set forth below where
used in this Agreement (including the Recitals) have the following meanings:
"ACS" shall mean American Crystal Sugar Company, a cooperative
corporation organized and existing under the laws of the State of Minnesota.
"AFFILIATE" means, with respect to any Person (i) any director,
officer or employee of such Person or (ii) any other Person which, directly
or indirectly, controls or is controlled by or is under common control with
such designated Person. For the purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise, PROVIDED that, in
any event, any Person that owns directly or indirectly securities having 5%
or more of the voting power for the election of directors
or other governing body of a corporation or 5% or more of the partnership or
other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person.
"AGREEMENT" means this Operation and Maintenance Agreement between
Owner and Operator, as the same may be modified or amended from time to time
in accordance with the provisions hereof.
"ANNUAL BUDGET" has the meaning given to such term in Section 5.2.2.
"ANNUAL OPERATING PLAN" has the meaning given to such term in
Section 5.2.2.
"BUSINESS DAY" means any day other than a day on which commercial
banks are authorized or required to close in Minneapolis, Minnesota.
"CCC TIME" has the meaning given to such term in Section 2.3.
"CONSTRUCTION CONTRACT" means the Engineering, Procurement and
Construction Contract between Owner and the Contractor, dated as of May 28,
1998.
"CONTRACTOR" means Process Systems Incorporated Construction
Company.
"DOLLAR" or "$" means the lawful currency of the United States of
America.
"EFFECTIVE DATE" means the date of execution of this Agreement.
"ENVIRONMENTAL CLAIM" means any oral or written notice, claim or
demand (collectively, a "CLAIM") by any Person alleging or asserting
liability for investigatory costs, cleanup costs, legal costs, governmental
response costs, damages to natural resources or other property, personal
injuries, fines or penalties related to (i) the presence, or release into the
environment, of any Hazardous Material at any location, whether or not owned
by the Person against whom such claim is made, or (ii) any violation of, or
alleged violation of, or liability arising under any Environmental Law. The
term "Environmental Claim" shall include, without limitation, any claim by
any Person or Governmental Body for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any Environmental Law, and
any claim by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief under any Environmental Law.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
the Note Purchase Agreement.
"ENVIRONMENTAL LAW" means any Law relating to the environment,
health or safety.
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"EQUIPMENT LEASE (HILLSBORO)" means that certain Equipment Lease
dated as of June ___, 1998, by and between Operator and Owner pursuant to
which Owner will lease to Operator certain of its rights and interest with
respect to that portion of the Desugarization Assets located in Hillsboro,
North Dakota.
"EQUIPMENT LEASE (MOORHEAD)" means that certain Equipment Lease
dated as of June___, 1998, by and between Operator and Owner pursuant to
which Owner will lease to Operator certain of its rights and interest with
respect to that portion of the Desugarization Assets located in Moorhead,
Minnesota.
"EQUIPMENT LEASES" means the Equipment Lease (Hillsboro) and the
Equipment Lease (Moorhead).
"FACILITY" means collectively, the MDS Facility, the Sugar-End
Upgrade, the Thin Juice Softening Facility and the Receiving Storage and
Shipping Facility, as those terms are defined in the Construction Contract.
"FACILITY AGREEMENTS" means this Agreement, the Construction
Contract, the Tolling Agreement, the Leases, the License and Easement
Agreements, the Note Purchase Agreement (and each Financing Agreement defined
therein), the LLC Agreement, the Equipment Leases, and any other agreement
reasonably designated by Owner as a Facility Agreement, and includes all
exhibits, schedules and attachments to each such agreement.
"FACILITY SITE" means the real property devised to Owner under the
Ground Lease.
"FEEDSTOCK" shall have the meaning assigned to such term in the
Tolling Agreement.
"FINAL PERFORMANCE ACCEPTANCE" has the meaning given to such term
in the Construction Contract.
"FORCE MAJEURE" means any act, event or condition that causes delay
in or failure of performance of obligations under this Agreement, if such
act, event or condition (i) is beyond the reasonable control of the Party
relying thereon, (ii) is not the result of any acts, omissions or delays of
such Party (or any third Person over whom such Party has control including,
without limitation, any subcontractor), (iii) is not an act, event or
condition, the risks or consequences of which such Party has expressly agreed
to assume hereunder and (iv) then only to the extent the same cannot be
cured, remedied, avoided, offset, negotiated or otherwise overcome by the
prompt exercise of due diligence of the Party relying thereon (or any third
Person over whom such Party has control including, without limitation, any
subcontractor). Force Majeure shall include the following (if the
requirements described in clauses (i) through (iv) of the above sentence are
satisfied): hurricane, fire, tornado, landslide, earthquakes, acts of the
public enemy, war, insurrection, riot or civil disturbance, unlawful strikes
or labor stoppages excluding those involving the Operator or its employees,
an unreasonable delay or unreasonable failure to obtain any authorization or
approval from any Government Agency provided that the taking of the requested
action by the Government Agency is
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legal, customary and within the Government Agency's jurisdiction, proper and
timely application was made therefor, taking into account all facts and
circumstances after due investigation into the time required for such
requested action, payment of all necessary fees and charges was made and
diligent and continuous pursuant of the application has been made, all in
light of the schedule for completion and the effect of delays thereon and
recognizing that Owner has represented that it will suffer damages in the
event of late completion. Notwithstanding the foregoing, Force Majeure shall
not include (i) the climate for the geographic area of the Facility, (ii) the
occurrence of any manpower or equipment shortages or (iii) any delay, default
or failure (direct or indirect) in obtaining any equipment, performing any of
the Services or any other delay, default or failure (financial or otherwise)
of a subcontractor, vendor or supplier except if, such delay, default or
failure results from any act, event or condition which would, with respect to
such subcontractor, supplier or vendor, as the case may be, constitute an
event of Force Majeure if such supplier, subcontractor or vendor were a Party
to this Agreement.
"GOVERNMENT AGENCY" means any federal, state, local or municipal
government, governmental department, commission, board, bureau, agency,
instrumentality, judicial or administrative body.
"HAZARDOUS MATERIALS" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, and transformers or other
equipment that contain dielectric fluid containing polychlorinated biphenyls
("PCBS"); (b) any chemicals, materials or substances which are now or
hereafter become defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances", "toxic
pollutants", or words of similar import, under any Environmental Law or in
any regulations thereto; and (c) any other chemical, material, substance or
waste, exposure to which is now or hereafter prohibited, limited or regulated
by any Government Agency.
"INDEMNIFIED PARTY" has the meaning given to such term in Section
9.3.
"LAW" means any act, statute, law, regulation or order, decree,
judgment, license, approval or authorization of any federal, state or local
government, any governmental body, agency or authority (including without
limitation, any taxing authority or any other entity exercising executive,
legislative, judicial, regulatory or administrative functions pertaining to
government), as in effect from time to time applicable to the Facility and
the operation thereof.
"LEASE AGREEMENT (HILLSBORO)" means that certain Lease and Fixtures
Agreement dated as of June ___, 1998, by and between Operator and Owner and
covering certain real property of Operator, and certain designated space
within existing buildings situated thereon, at Operator's sugarbeet
processing facility in Hillsboro, North Dakota.
"LEASE AGREEMENT (MOORHEAD)" means that certain Lease and Fixtures
Agreement dated as of June___, 1998, by and between Operator and Owner and
covering certain designated
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space within existing buildings situated upon real property of Operator at
its sugarbeet processing facility in Moorhead, Minnesota (the "Lease
Agreement (Moorhead").
"LEASES" means Lease Agreement (Hillsboro) and the Lease Agreement
(Moorhead).
"LENDER" means each Person providing financing to Owner through the
purchase or holding of a Note issued by Owner under the Note Purchase
Agreement and any trustee or agent acting on any such Person's behalf.
"LICENSE AND EASEMENT AGREEMENT (HILLSBORO, NORTH DAKOTA)" means
that certain License and Easement Agreement dated as of June ___, 1998, by
and between Operator and Owner and granting Owner certain easements and
rights over and across certain designated space within existing buildings
situated on certain real property of Operator at Operator's sugarbeet
processing facility in Hillsboro, North Dakota.
"LICENSE AND EASEMENT AGREEMENT (MOORHEAD, MINNESOTA)" means that
certain License and Easement Agreement dated as of May ___, 1998, by and
between Operator and Owner and granting Owner certain easements and rights
over and across certain portions of real property of Operator at Operator's
sugarbeet processing facility in Moorhead, Minnesota.
"LICENSE AND EASEMENT AGREEMENTS" means the License and Easement
Agreement (Hillsboro, North Dakota) and the License and Easement Agreement
(Moorhead, Minnesota).
"LLC AGREEMENT" means the limited liability agreement of Owner,
dated as of May 28, 1998.
"MAJOR EQUIPMENT" means the chromatographic separation column used
in the MDS Facility described in the Construction Contract.
"MAJOR MAINTENANCE" has the meaning given to such term in Section
2.6.
"MDS FACILITY" has the meaning given to such term in the
Construction Contract.
"MECHANICAL COMPLETION" has the meaning given to such term in the
Construction Contract.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement, dated
as of the date hereof, between Owner and Crystech Senior Lender Trust.
"OPERATING YEAR" means the 12 month period beginning on September 1
following the CCC Time and each successive 12 month period beginning on the
consecutive anniversary dates thereof.
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"OPERATOR INDEMNIFIED PARTY" means Operator and its shareholders,
officers, directors, employees, agents, representatives and Affiliates.
"OWNER INDEMNIFIED PARTY" means Owner, Lender and their respective
shareholders, partners, officers, directors, employees, agents,
representatives and Affiliates (other than, in the case of Owner, ACS).
"OWNER ACCEPTANCE" has the meaning given to such term in the
Construction Contract.
"PARTY" means either Operator or Owner and "PARTIES" means both
Operator and Owner.
"PERSON" means any individual, partnership, corporation,
association, business, trust, Government Agency or other entity.
"PLANT MANAGER" has the meaning given to such term in Section 5.1.
"PREOPERATIONAL PHASE-IN SERVICES" has the meaning given to such
term in Section 3.1.1.
"PRUDENT OPERATING AND MAINTENANCE PRACTICES" means generally
accepted and sound industry practices, methods and acts applicable to similar
food processing facilities situated in the United States and which at a
particular time, in the exercise of reasonable judgment and in light of facts
known or that should have been known, would have been expected to accomplish
the desired results and goals established in the Annual Operating Plan,
including such goals as efficiency, reliability, economy and profitability,
in a manner consistent with law, regulation, safety, and environmental
protection. With respect to the Facility, Prudent Operating and Maintenance
Practices include such things as taking reasonable actions to provide:
(i) Adequate materials, resources and supplies, including fuel,
are available to meet the Facility's needs under normal
conditions and reasonably anticipated abnormal conditions;
(ii) A sufficient number of operating, maintenance and supervisory
personnel are available and adequately experienced and trained
to operate, maintain and supervise each part of the Facility
properly, efficiently and within manufacturer's guidelines and
specifications and are capable of responding to emergency
conditions;
(iii) The timely performance of preventive, routine, and non-routine
maintenance and repairs on a basis that ensures long-term and
safe operation and by knowledgeable and experienced personnel
utilizing specified equipment, tools and procedures;
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(iv) Appropriate monitoring and testing are done periodically to
check if equipment is functioning as designed and to provide
assurance that equipment will function properly under both
normal and emergency conditions; and
(v) Equipment is operated in a safe manner and in a manner safe
to workers, the general public and the environment.
"RECOVERY RATE" has the meaning given to such term in the Tolling
Agreement.
"REIMBURSABLE COSTS" has the meaning given to such term in Section
6.2.
"SERVICES" has the meaning given to such term in Section 3.1.
"TOLLING AGREEMENT" means the Tolling Services Agreement, dated as
of the date hereof, between Owner and ACS.
"WINDING-UP" means, with respect to any Person, the occurrence of
any of the following: (a) such Person shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or administrator of itself or of all or a substantial
part of its property, (ii) be generally unable to pay its debts as such debts
become due, (iii) make a general assignment for the benefit of its creditors,
(iv) commence a voluntary case under the United States Bankruptcy Code (as
now or hereafter in effect), (v) file a petition seeking to take advantage of
any other law providing for the relief of debtors, (vi) fail to controvert in
a timely or appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the United States Bankruptcy
Code, (vii) take any action under the laws of its jurisdiction of
incorporation (or any other jurisdiction) analogous to any of the foregoing,
or (viii) take any corporate action for the purpose of effecting any of the
foregoing; (b) a proceeding or case shall be commenced, without the
application or consent of such Person in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, dissolution, winding up, or
composition or readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator, administrator or the like of it or of all or
any substantial part of its properties, or (iii) similar relief in respect of
it, under any law providing for the relief of debtors and such proceeding or
case shall continue undismissed, or unstayed and in effect, for a period of
90 days; or an order for relief shall be entered in an involuntary case under
the United States Bankruptcy Code against such person; or action under the
laws of the jurisdiction of incorporation or organization of such Person
analogous to any of the foregoing shall be taken with respect to such Person
and shall continue unstayed and in effect for any period of 90 consecutive
days; or (c) any event with respect to such Person occurs which, under the
laws of any jurisdiction or any political subdivision of any jurisdiction,
has an effect similar to any of the events referred to in subsection (a) or
(b) above.
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SECTION 1.2 INTERPRETATION.
1.2.1 Except as otherwise specified in this Agreement or as the
context otherwise requires, any reference in this Agreement to any agreement,
contract or document shall mean such agreement, contract or document and all
schedules, exhibits, attachments, appendices and annexes thereto, as amended,
supplemented or modified and in effect from time to time. Unless otherwise
stated, any reference in this Agreement to any Person shall include its
permitted successors and assigns and, in the case of any Government Agency,
any Person succeeding to its functions and capacities. In addition, any term
defined or used herein in the singular will be deemed to have the same
meanings when used in the plural and VICE VERSA. Any reference in this
Agreement to any Section or Appendix means and refers to the Section
contained in or Appendix attached to this Agreement.
1.2.2 A reference to a specific time for the performance of an
obligation is a reference to that time in the place where that obligation is
to be performed.
1.2.3 If any payment, act, matter or thing hereunder would
occur on a day that is not a Business Day, then such payment, act, matter or
thing will, unless otherwise expressly provided for herein, occur on the last
prior Business Day.
SECTION 1.3 TECHNICAL MEANINGS. Words not otherwise defined
herein that have well-known and generally accepted technical or trade
meanings are used herein in accordance with such recognized meanings.
SECTION 1.4 HEADINGS. Headings are for reference only and do
not form part of this Agreement.
SECTION 1.5 INTERPRETATION. The provisions of this Agreement
shall be wherever possible construed as complementary rather than conflicting.
SECTION 2
OWNER FURNISHED ITEMS
SECTION 2.1 GENERAL. Owner shall furnish to Operator, at
Owner's expense, the information, services, materials and other items
described in this Section 2. All such items shall be made available at such
times and in such manner as may be reasonably required for the expeditious
and orderly performance of the Services.
SECTION 2.2 INFORMATION. Owner shall provide copies of the
Facility Agreements promptly after execution thereof, as well as technical,
operational and other Facility information reasonably available to Owner
which are necessary for the Operator's performance of the Services. Subject
to the standards of performance set forth in Section 3.2, Operator shall be
entitled to rely upon such information in the performance of its obligations
hereunder. In the
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event a Facility Agreement is amended, modified or supplemented or entered
into after the Effective Date, the term "Facility Agreement" (and the
reference to any individual such agreement) shall refer to the applicable
agreement as so amended, modified or supplemented, or to the new Facility
Agreement, as the case may be.
SECTION 2.3 CARE, CUSTODY AND OPERATIONAL CONTROL. From time to
time, Operator, as manager of the construction of the Facility, shall keep
Owner and Lender and Lender's technical advisor apprised of the progress
related thereto. At such time as Owner assumes care, custody and operational
control of the Facility pursuant to the Construction Contract, Owner shall
transfer, or cause to be transferred, care, custody and operational control
of the Facility to Operator, with the time of such transfer to Operator being
referred to herein as the "CCC Time."
SECTION 2.4 CONTRACTOR-SUPPLIED ITEMS. Under the Construction
Contract, Contractor has agreed to furnish to Owner certain information and
to provide certain services in connection with the operation of the Facility.
Owner agrees to make available to Operator such information (which shall be
maintained in confidence by Operator) and services, including two copies of
all facility manuals that Contractor provides to Owner under the Construction
Contract. At all times prior to the CCC Time, such facility manuals shall be
under the care and custody of Contractor, provided that Operator shall have
access to such manuals as necessary to perform the Services. At all times
after the CCC Time, the facility manuals shall be under the care and custody
of Operator, provided that Contractor shall have access to such manuals as
necessary to perform its obligations under the Construction Contract. Owner
shall have access at all times to facility manuals in the possession of
Operator.
SECTION 2.5 OVERHAUL OF MAJOR EQUIPMENT AND CAPITAL
IMPROVEMENTS. The performance and cost of all Major Equipment overhauls,
capital improvements and replacements (collectively, "MAJOR MAINTENANCE")
shall be the responsibility of Owner; PROVIDED, HOWEVER, that (i) Operator
will immediately notify Owner in writing of any such Major Maintenance known
by Operator to be necessary or desirable and make written recommendations and
assist Owner in contracting and monitoring any contracts for the completion
of such Major Maintenance, and (ii) Operator may specify the scheduling of
any Major Maintenance so long as it is prudent to do so AND funding for such
Major Maintenance is provided for in the Tolling Agreement or the LLC
Agreement.
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SECTION 3
RESPONSIBILITIES OF OPERATOR
SECTION 3.1 SCOPE OF SERVICES. From and after the Effective
Date, Operator will operate and maintain all aspects of the Facility and
perform certain other duties, including managing of the construction,
start-up and testing (as applicable) of each part of the Facility,
bookkeeping, accounting and xxxx paying, as hereinafter set forth (the
"SERVICES"). Operator shall operate and maintain the Facility in a clean,
safe, efficient and environmentally acceptable manner. Without limiting the
generality of the foregoing, Operator's responsibilities shall include the
following:
3.1.1 PREOPERATIONAL PHASE-IN SERVICES. During the period
prior to the CCC Time, Operator shall perform such Services (the
"Preoperational Phase-In Services") as Operator deems necessary or
appropriate to operate and maintain the Facility (and each part thereof) in
accordance with Prudent and Operating and Maintenance Practices during such
period.
3.1.2 OPERATIONAL PHASE SERVICES. From and after the CCC Time,
Operator shall be in complete charge of, and have care, custody and
operational control over, the Facility and shall perform, in accordance with
the provisions of this Agreement (except as expressly reserved to Owner under
Section 2 and subject to the limitations on Operator's authority set forth in
Section 4), all tasks necessary to operate and maintain the Facility in
accordance with this Agreement, including (without limitation) the following:
(i) perform, or cause to be performed on behalf of Owner, all operation and
maintenance of the Facility whatsoever; (ii) except as otherwise provided
herein, supply, or cause to be supplied, all goods and materials, including
spare parts, required to operate and maintain the Facility following
Mechanical Completion thereof; (iii) maintain, control and store the
Facility's inventory; (iv) perform inspections, preventive maintenance,
predictive maintenance, and corrective maintenance; and (v) complete
teardowns and major overhauls of Major Equipment. In addition, Operator will
promptly notify Customer (as that term is defined in the Tolling Agreement)
once the MDS Facility is ready to receive Feedstock and has achieved a
Recovery Rate of at least seventy-two percent (72%).
3.1.3 USED OR REFURBISHED EQUIPMENT. Operator may procure used
and/or refurbished equipment and/or parts when appropriate, provided that
there is no Event of Default then continuing under the Note Purchase
Agreement and provided that Operator has funding readily available for such
purpose.
3.1.4 SUBCONTRACTS. Operator may enter into subcontracts for
certain of the Services, provided that there is no Event of Default then
continuing under the Note Purchase Agreement and provided that Operator has
funding readily available for such purpose. Any subcontracting of the
Services pursuant to this Section 3.1.4 shall not relieve Operator of any of
its duties, liabilities or obligations hereunder, in respect of the Services
or otherwise.
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3.1.5 GENERAL. Operator shall obtain all licenses and permits
required to allow Operator to do business or perform the Services in the
jurisdictions where such Services are to be performed. Operator shall not
permit or suffer any liens or encumbrances on the Facility arising from the
performance of the Services. Operator shall use all reasonable and practical
efforts to optimize the useful life of the Facility, Facility downtime and
Reimbursable Costs.
SECTION 3.2 STANDARDS FOR PERFORMANCE OF THE SERVICES. Operator
shall perform the Services in all material respects in accordance with (i)
all applicable Laws, licenses, permits, approvals and standards, (ii) the
Facility Agreements, (iii) Prudent Operating and Maintenance Practices, and
(iv) the terms of this Agreement, and notwithstanding the foregoing, shall
operate the MDS Facility in order to achieve and maintain a Recovery Rate of
at least seventy-two percent (72%).
SECTION 3.3 PERSONNEL STANDARDS.
3.3.1 PERSONNEL. Operator shall provide and make available as
necessary all such labor and professional, supervisory and managerial
personnel as are required to perform the Services. Such personnel shall be
qualified (including obtaining appropriate licenses) and experienced in the
duties to which they are assigned and shall meet the requirements for
Facility personnel in accordance with Prudent Operating and Maintenance
Practices. With respect to retention of personnel and related policies,
Operator shall comply with all applicable federal and state labor and
employment laws and shall exercise control over labor relations in a
reasonable manner consistent with the intent and purpose of this Agreement.
From and after the CCC Time, Operator shall retain sole authority, control
and responsibility with respect to labor matters in connection with the
performance of the Services. Notwithstanding the foregoing, Operator
acknowledges and agrees that it does not have the authority to enter into any
contracts or collective bargaining agreements with respect to labor matters
that purport to bind or otherwise obligate Owner.
3.3.2 TRAINING PROGRAM. Operator shall offer such training and
education programs for personnel engaged in providing the Services as would
be required by Prudent Operating and Maintenance Practices.
3.3.3 CONSULTANTS. The estimated hourly rates of compensation
for individual consultants who are not employees of Operator or its
Affiliates shall also be included in the Annual Budget. All such
subcontracts shall require substantially similar employment standards as
those set forth in this Agreement as are applicable to the employees of
Operator or its Affiliates.
SECTION 3.4 BILLING AND PAYMENT OF INVOICES. Operator shall
prepare and send bills to ACS in the name and on behalf of Owner in
accordance with the terms therefor in the Tolling Agreement and shall verify
payments of amounts due. Operator shall pay all charges payable under any
applicable Facility Agreement (other than the Note Purchase Agreement).
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SECTION 3.5 FACILITY AGREEMENTS. Operator will administer the
Facility Agreements and shall have day-to-day operational responsibility with
respect to such Agreements, and provided that there is no Event of Default
then continuing under the Note Purchase Agreement, Operator shall have the
right to exercise all rights of Owner under the Facility Agreements. In
connection with the foregoing, but subject to the conditions and covenants of
the Note Purchase Agreement (and the other Financing Documents referred to
therein), the parties understand that Operator shall have the right to make
decisions as to the use and disposition of any contingency fund built into
the budget for construction of the Facility, and the parties further
understand that Operator shall exercise such right through a committee of
senior management personnel of Operator. Operator hereby agrees that while
performing any Services, it shall abide by the requirements of the Facility
Agreements and shall otherwise cause Owner to be in compliance with all other
terms contained in the Facility Agreements, including, without limitation,
the furnishing of required information under the Note Purchase Agreement and
the monitoring of or compliance by Owner with all covenants, restrictions and
conditions of the Facility Agreements. This Section 3.5 shall not be deemed
to make Operator a party to the Facility Agreements or, except to the extent
expressly hereinbefore provided, to impose any obligations on Operator in its
capacity as operator hereunder.
SECTION 3.6 APPROVALS AND PERMITS. Operator shall review all
Laws containing or establishing compliance requirements in connection with
the operation and maintenance of the Facility and shall secure on behalf of
Owner, and shall cause Owner to be in compliance with, all necessary permits,
licenses and approvals (and renewals of the same), including those relating
to operation of the Facility, water and sewer use, chemical and other waste
(including Hazardous Materials), storage and disposal, and emissions testing
and safety. Operator shall also initiate and maintain precautions and
procedures necessary to comply with applicable provisions of all such Laws or
other requirements, including those related to prevention of injury to
persons or damage to property at the Facility.
SECTION 3.7 OPERATING DATA AND RECORDS. Operator shall prepare
and maintain operating logs, records and reports documenting the operation
and maintenance of the Facility. Such operating data shall include meter and
gauge readings with respect to both the Feedstock supplied to the Facility
and the sugar extract, betaine and raffinate processed at the Facility,
maintenance records and records of the water, steam and electricity used by
the Facility. Operator shall also prepare reports and data which are related
to the maintenance of Hazardous Materials on-site at the Facility in a manner
complying with applicable Law, and shall maintain current revisions of the
drawings, specifications, lists, clarifications and other materials provided
to Operator by Owner or Contractor. Copies of all such reports that may be
submitted to any Government Agency by Operator shall be furnished to Owner.
Without limiting the foregoing, Operator shall monitor the Recovery Rate of
the MDS Facility and promptly notify owner, Lender and Lender's technical
advisor if the Recovery Rate for any period of four (4) consecutive weeks
falls below eighty-five percent (85%), and if requested by Owner or Lender,
shall supply such Person with information relating to the operations of the
MDS Facility.
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SECTION 3.8 NO LIENS OR ENCUMBRANCES. Operator shall keep and
maintain the Facility free and clear of all liens and encumbrances, other
than liens permitted under the Note Purchase Agreement, resulting from any
act of Operator under Section 4.1.3.
SECTION 3.9 NO ACTION. Operator shall not take any action that
would give rise to any claim by Contractor against Owner or Operator.
SECTION 3.10 EMERGENCY ACTION. In the event of an emergency
affecting the safety or protection of Persons or endangering the Facility or
property located at the Facility, Operator shall promptly notify Owner of
such emergency.
SECTION 3.11 ACCESS.
3.11.1 OWNER. Owner, Lender and their respective agents and
representatives shall have access at all reasonable times to the Facility,
all Facility operations and any documents, materials and records and accounts
relating thereto for purposes of inspection and review, PROVIDED, HOWEVER,
that any access or inspection shall be subject to confidentiality limitations
contained in the Note Purchase Agreement to which the Person being granted
access is a party. Upon the reasonable request of Owner or Owner's agents
and representatives, Operator shall make available to such Persons and
provide them with access to any operating data and all operating logs.
3.11.2 COOPERATION. During any such inspection or review of the
Facility, Owner, Lender and their respective agents and representatives shall
comply with all of Operator's safety and security procedures, and Owner,
Lender and their respective agents and representatives shall conduct such
inspection and reviews in such a manner as to cause minimum interference with
Operator's activities. Operator also shall cooperate with Owner in allowing
other visitors access to the Facility under conditions that are mutually
agreeable to the Parties.
SECTION 3.12 RELATIONSHIP BETWEEN OWNER AND OPERATOR. Operator
shall at all times be deemed an independent contractor and neither it nor any
of its employees or the employees of any of its subcontractors shall be
considered an agent, servant or employee of Owner. As between Owner and
Operator, nothing in this Agreement shall be deemed to constitute any such
party a partner, joint venturer, agent or legal representative of any other
such party or to create a fiduciary relationship between or among such
parties. Operator shall be solely responsible for all matters relating to
the payment of employees, including compliance with social security,
withholding and all regulations governing such matters. Operator shall be
responsible for its own actions and those of its subordinates, employees,
agents, subcontractors and consultants during the term of this Agreement.
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SECTION 4
LIMITATIONS ON AUTHORITY OF OPERATOR
SECTION 4.1 GENERAL LIMITATIONS. Notwithstanding any provision
in this Agreement to the contrary, unless previously expressly approved in
the applicable Annual Operating Plan or Annual Budget or otherwise expressly
approved in writing by Owner, which approval shall not be unreasonably
withheld, Operator shall not (and shall not permit any of its agents or
representatives to):
4.1.1 DISPOSITION OF ASSETS. Sell, lease, pledge, mortgage,
convey, or make any license, exchange or other transfer or disposition of any
property or assets of Owner, including any property or assets acquired by
Operator hereunder the cost of which is a Reimbursable Cost, provided that
Operator may grant purchase money security interests in connection with the
property or assets acquired by Operator pursuant to Section 4.1.3, subject
only to those limits included in the Note Purchase Agreement and the other
Facility Agreements;
4.1.2 CONTRACT. Subject to Section 4.2, make, enter into,
execute, amend, modify or supplement any contract or agreement (including any
Facility Agreement) on behalf of or in the name of Owner, unless in the
opinion of the Owner such contract or agreement will not significantly impair
the value or utility of the Facility or the Facility Agreements;
4.1.3 EXPENDITURES. Make or commit to make (or consent or
agree to make or commit to make) any recoverable expenditure or acquire (or
consent or agree to acquire) on a recoverable cost basis any equipment,
materials, assets or other items, except in substantial conformity with the
Annual Budget, Prudent Operating and Maintenance Practices, or to the extent
that (i) ACS agrees to an adjustment in the tolling fee paid under the
Tolling Agreement in an amount necessary to cover the costs of such
expenditure as they became due (including any financing costs related
thereto), or ACS obtains funding for such expenditure from some other source,
(ii) such expenditure does not in any way impair the value of the Facility,
its useful life or performance, or Owner's ability to perform its obligations
under any Facility Agreement in accordance with its respective terms and
(iii) such expenditure does not cause an Event of Default under the Note
Purchase Agreement;
4.1.4 OTHER ACTIONS. Take or agree to take any other action
that materially varies with the applicable Annual Operating Plan or Annual
Budget;
4.1.5 LAWSUITS AND SETTLEMENTS. Settle, compromise, assign,
pledge, transfer, release or consent to the compromise, assignment, pledge,
transfer or release of, any claim, suit, debt, demand or judgment against or
due by, Owner or Operator, the cost of which, in the case of Operator, would
be a Reimbursable Cost hereunder, or submit any such claim, dispute or
controversy to arbitration or judicial process, or stipulate in respect
thereof to a judgment, or consent to do the same; or
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4.1.6 TRANSACTIONS ON BEHALF OF OTHERS, ETC. Engage in any
other transaction on behalf of Owner or any other Person not permitted under
this Agreement.
SECTION 4.2 EXECUTION OF DOCUMENTS. Any agreement, contract,
notice or other document that is expressly permitted hereunder (or with
written approval of Owner) to be executed by Operator shall, at Operator's
option, be executed in Operator's name or in Owner's name, and shall be
executed by any individual representative of Operator who is authorized and
empowered by Operator to execute such documents.
SECTION 5
PROCEDURES, PLANS AND REPORTING
SECTION 5.1 PLANT MANAGER. No later than the commencement of
construction under the Construction Contract (or such other date as the
parties may mutually agree), Operator shall appoint an individual ("PLANT
MANAGER"), subject to approval of Owner, who will direct and manage
Operator's resources and who will have full responsibility for all Facility
operations and administration, as set forth in Section 3.
SECTION 5.2 ANNUAL OPERATING PLAN AND BUDGET.
5.2.1 BUDGET FOR PREOPERATIONAL PHASE-IN SERVICES. Not later
than _______________, 199_ (or such other date as the parties may mutually
agree), Operator shall prepare and submit to Owner a proposed budget for the
Preoperational Phase-In Services. Such budget shall include an itemized
estimate of all Reimbursable Costs. Owner shall promptly review Operator's
proposed budget for Preoperational Phase-In Services and may, by written
request, seek changes, additions, deletions and modifications to such budget.
Owner and Operator will use their best efforts to agree upon such budget,
which shall be approved in writing by both Parties. Operator will use its
best efforts to keep down Reimbursable Costs for the Preoperational Phase-In
Services to the levels established in the agreed-upon budget therefor.
5.2.2 ADOPTION OF ANNUAL BUDGET AND ANNUAL OPERATING PLAN. At
least 3 months prior to the anticipated CCC Time, and 60 days prior to the
beginning of each Operating Year thereafter, Operator shall prepare and
submit to Owner a proposed annual budget for such year, established on a
monthly basis, which shall include a separate operating budget and capital
budget and shall set forth anticipated operations, repairs and capital
improvements (including Major Maintenance), routine maintenance and overhaul
schedules, procurement (including equipment acquisitions and spare parts and
consumable inventories indicating a breakdown of capital items and expense
items), staffing, personnel and labor activities (including unit rates for
labor and holidays to be observed), administrative activities, data regarding
other work proposed to be undertaken by Operator and regarding expected
environmental performance, together with an itemized estimate, in detail
reasonably acceptable to Owner, of all Reimbursable Costs to be incurred in
connection therewith (the "ANNUAL BUDGET"). Such Annual Budget shall be
accompanied by an annual operating plan setting forth the underlying
assumptions
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and implementation plans in connection with the Annual Budget ("ANNUAL
OPERATING PLAN"); provided that the Annual Operating Plan with respect to the
MDS Facility will provide that the MDS Facility operate at all times at a
Recovery Rate of not less than seventy-two percent (72%). Owner shall
promptly review Operator's proposed Annual Budget and Annual Operating Plan
and shall either approve them or may, by written request, require changes,
additions, deletions and modifications. Owner and Operator will use their
best efforts to agree upon a final Annual Budget and Annual Operating Plan by
30 days prior to such Operating Year. Owner's approval of the Annual Budget
and Annual Operating Plan shall not be unreasonably withheld. Such final
Annual Budget and Annual Operating Plan shall remain in effect throughout the
applicable Operating Year, subject to such other updating, revision and
amendment as may be proposed by either Party and consented to in writing by
the other Party.
Any actions proposed under the Annual Operating Plan shall be
consistent with Operator's obligations set forth herein. Operator shall
notify Owner as soon as reasonably possible of any material deviations or
discrepancies from the projections contained in the Annual Operating Plan.
If an event of Force Majeure occurs which results in increased
costs to Operator, Operator shall be entitled to an adjustment in the Annual
Budget reflecting the reasonable value of any such increased costs from such
event. In the case of an event of Force Majeure which results in decreased
costs to Operator, Owner shall be entitled to an adjustment in the Annual
Budget reflecting the reasonable value of any such decreased costs from such
event.
5.2.3 ANNUAL REPORTS. As soon as available, and in any event
within 90 days after the end of each Operating Year, Operator shall submit to
Owner an annual report certified by the Chief Financial Officer of Operator
describing all of the Facility operations for such Operating Year and
presenting a comparison of such Facility operations with the budget set forth
in the Annual Operating Plan and Annual Budget for such Operating Year and
with those obtained for the preceding Operating Year, if any. Within 30 days
after the submission of each annual report, the Plant Manager shall meet with
Owner to review and discuss the report and to report upon any other aspects
of the Facility operations that Owner may request.
5.2.4 LITIGATION; PERMIT LAPSES. Upon obtaining knowledge
thereof, Operator shall submit prompt written notice to Owner of: (i) any
litigation, claims, disputes or actions, threatened or filed, concerning the
Facility or the Services to be performed hereunder; (ii) any refusal or
threatened refusal to grant, renew or extend or any action pending or
threatened that might affect the granting, renewal or extension of any
license, permit, approval, authorization or consent; (iii) any dispute with
any Government Agency; (iv), all penalties or notices of violation issued by
any Government Agency; and (v) any breach or contravention of any applicable
Law, permit, license or approval; which in each case might have a material
adverse effect on the operation or maintenance of the Facility.
5.2.5 OTHER INFORMATION. Operator shall promptly submit to
Owner any material information concerning new or significant aspects of the
Facility operations and, upon
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Owner's reasonable request, shall promptly submit any other information
concerning the Facility or its Services. Such information may include any
information and certifications reasonably required by any Lender.
5.2.6 RECORDS RETENTION. Operator shall retain and preserve
all records, reports, documents and data, including all data retrievable from
an electronic data storage source, created in connection with the operation
and maintenance of the Facility in accordance with its normal document
retention policy.
SECTION 6
COMPENSATION AND PAYMENT
SECTION 6.1 COMPENSATION. As compensation to Operator for the
performance of the Services, Owner shall pay Operator, in the manner and at
the times specified in this Section 6, all Reimbursable Costs all as further
described herein to the extent Owner has recovered all amounts due under the
Tolling Agreement.
SECTION 6.2 REIMBURSABLE COSTS. Owner shall reimburse Operator
for certain reasonable costs ("REIMBURSABLE COSTS") incurred in the
performance of the Services and in accordance with Operator's established
policies, practices and rates then in effect for allocating such costs to
other unrelated parties. Such Reimbursable Costs shall include:
6.2.1 PAYROLL AND RELATED PERSONNEL COSTS.
(a) Payroll costs and related expenses incurred by Operator for
home office employees in accordance with its established personnel
policies (including all salaries and wages of personnel engaged in
and directly related to the performance of the Services hereunder)
and Operator's then current established rate for payroll additives; and
(b) Payroll costs and related expenses incurred by Operator for
employees assigned to the Facility site in accordance with its
established personnel policies (including all salaries and wages of
personnel involved directly in the performance of the Services
hereunder) and Operator's then current established rate for payroll
additives.
6.2.2 OUT-OF-POCKET COSTS AND RATES. All out-of-pocket costs
and rates incurred in the performance of the Services, regardless of whether
the Services are rendered at the Facility Site or at Operator's home office,
but which costs and rates are not included as part of the payroll costs and
expenses described above.
6.2.3 MANNER AND TIMES OF PAYMENT OF REIMBURSABLE COSTS. Not
later than the beginning of each Operating Year, Operator will prepare and
deliver to Owner a budget indicating the projected Reimbursable Costs for
such Operating Year. Operator will also, on a quarterly basis, review and
(if requested by Owner) prepare and deliver to Owner a revised budget
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for the remainder of the Operating Year, indicating the projected
Reimbursable Costs for the remainder of the Operating Year. On a monthly
basis, Operator will submit to Owner an invoice for the Reimbursable Costs
paid or incurred by Operator during the preceding month. Owner shall pay to
Operator the amount set forth on each monthly invoice on the Payment Date (as
that term is defined in the Tolling Agreement) occurring not less than 30
days after receipt of the invoice.
6.2.4 ADJUSTMENTS AND CONDITIONS. Notwithstanding the payment
of any amount pursuant to the foregoing provisions, no payment made pursuant
to the foregoing provisions shall be considered as approval or acceptance of
the Services performed hereunder and Owner shall remain entitled to conduct a
subsequent audit and review of all Reimbursable Costs incurred by Operator
and paid by Owner hereunder for a period of [3] years from and after the
close of the Operating Year in which such Reimbursable Costs were incurred.
If, pursuant to such audit and review, it is determined that any amount
previously paid by Owner did not constitute a due and payable item of
Reimbursable Costs, Owner may recover such amount from Operator or deduct or
cause to be deducted such amount from any payment that thereafter may become
due to Operator.
SECTION 7
TERM
SECTION 7.1 TERM. The term of this Agreement shall commence on
the Effective Date and continue for a period equal to the longer of (i) 12
years, and (ii) the term of the Tolling Agreement (including any extensions
thereto). Notwithstanding the foregoing, this Agreement is subject to earlier
termination pursuant to Sections 7.2 and 7.3.
SECTION 7.2 TERMINATION BY OWNER. Owner shall be permitted to
terminate this Agreement if any of the following events occur: (i) a
voluntary Winding-Up of Operator; (ii) an Event of Default has occurred under
the Note Purchase Agreement; or (iii) the Tolling Agreement terminates.
Promptly after the date of termination, Operator shall be paid for the
Services rendered by Operator through such termination date, including all
fees earned through the date of termination but not paid through such date.
Except as expressly provided in this Section 7.2, Owner shall not be liable
for any costs incident to termination in the case of any termination under
the foregoing clauses.
SECTION 7.3 TERMINATION BY OPERATOR. Operator shall be
permitted to terminate this Agreement if any of the following events occur:
(i) a payment default by Owner that is not cured within 180 days after the
date on which such payment is due provided Owner has received written notice
of such default and has received payment in full from ACS of all tolling fees
due and owing under the Tolling Agreement; (ii) a Winding-Up of Owner; (iii)
a material default by Owner of any other obligation under this Agreement
after written notice by Operator, provided Owner shall have up to 180 days to
cure such other default or make substantial progress (in the reasonable
opinion of Operator) towards cure if the default is capable of being cured;
or (iv) the
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Tolling Agreement terminates. Operator shall provide Owner with written
notice of its intent to terminate the Agreement pursuant to Sections 7.3(ii),
(iii) or (iv) no later than 120 days prior to the date of termination.
SECTION 7.4 FACILITY CONDITION AT END OF TERM. Upon expiration
or termination of this Agreement, Operator shall remove its personnel from
the Facility. Operator shall leave the Facility in as good condition as at
Owner Acceptance, normal wear and tear excepted, and with the equivalent
supply of spare parts and any other operating items (other than items for
which Owner is responsible) as were provided by Owner to Operator at the CCC
Time, or such modified supply thereof as has been approved by Owner (and
shall be reimbursed for all Reimbursable Costs incurred in connection
therewith). All special tools, improvements, inventory of supplies, spare
parts, safety equipment (in each case as provided to or obtained by or
provided by Operator during the term of this Agreement) and any other items
furnished on a Reimbursable Cost basis under this Agreement will be left at
the Facility and will become or remain the property of Owner without
additional charge. Owner shall also have the right, in its sole discretion,
to directly assume and become liable for any contracts or obligations that
Operator may have undertaken with third parties in connection with the
Services. Operator shall execute all documents and take all other reasonable
steps requested by Owner that may be required to assign to and vest in Owner
all rights, benefits, interests and title in connection with such contracts
or obligations; PROVIDED, HOWEVER, that Owner shall indemnify and hold
harmless Operator for all liabilities arising out of events and obligations
thereunder arising after the date of any such assumption.
SECTION 8
INSURANCE
SECTION 8.1 GENERAL. The provisions of this Section 8 do not
modify or change or abrogate any responsibility of Operator stated elsewhere
in this Agreement or any other Facility Agreement. Owner assumes no
responsibility for the solvency of any insurer or the failure of any insurer
to settle any claim. A summary of certain provisions of Operator's and
Owner's policies are set forth below.
SECTION 8.2 OPERATOR INSURANCE. Operator shall obtain and
maintain as a Reimbursable Cost hereunder (including any applicable
deductibles (subject to Section 8.6), any net premiums after dividends and/or
retrospective premiums and any losses in excess of insurance coverage) the
insurance set forth with respect to the Operator set forth in Schedule VI to
the Note Purchase Agreement.
SECTION 8.3 CERTIFICATES; PROOF OF LOSS. On or before the
required date for the insurance to be provided hereunder, Operator shall
furnish certificates of insurance to the Owner evidencing the insurance
required hereunder. The Party maintaining each insurance policy hereunder
shall make proofs of loss under each such policy and shall take all other
action reasonably required to ensure collection from insurers for any loss
under any such policy.
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Operator shall provide Owner with copies of the insurance policies obtained
by it promptly upon receipt thereof.
SECTION 8.4 DEDUCTIBLES. Except as provided herein, Owner shall
be liable for the payment of all deductibles on insurance policies obtained
pursuant to Section 8.2. In the event of a claim under a policy described in
Section 8.2 that is attributable to Operator's (including its employees' or
agents') negligence or willful misconduct, Operator shall be liable for the
payment of such deductible. In the event that a claim under a policy of
comprehensive general liability insurance covering personal injury or
property damage to third parties is attributable to the negligence or willful
misconduct of Owner and Operator, to the extent Operator would otherwise be
liable for the payment of deductible hereunder, Owner and Operator shall be
responsible for that portion of the deductible that would be assigned to it
under a comparative negligence standard.
SECTION 9
INDEMNIFICATION
SECTION 9.1 BY OPERATOR.
9.1.1 GENERAL INDEMNITY. Subject to the provisions of Section
10, Operator shall indemnify, defend and hold harmless the Owner Indemnified
Parties from and against any and all suits, actions, liabilities, legal
proceedings, claims, demands, losses, costs and expenses of whatsoever kind
or character, including reasonable attorneys' fees and expenses, for injury
or death of persons or physical loss of or damage to property of Persons
arising from Operator's (including its employees' or agents') negligence or
willful misconduct in connection with performance of the Services or any
other matter related to its obligations hereunder.
9.1.2 INDEMNITY FOR VIOLATION OF LAW. Operator shall also
indemnify, defend and hold harmless the Owner Indemnified Parties from and
against any and all regulatory penalties or fines (other than Environmental
Claims which shall be governed by Section 10), and reasonable expenses
(including attorneys' fees and expenses) arising from Operator's violation of
any Law, license, permit, or government approval.
9.1.3 INDEMNITY FOR PATENT INFRINGEMENT. If any of the
Services would infringe upon any patent, trademark or copyright or would
involve the unauthorized use of a third Person's trade secrets, Operator
agrees to render consultation, assistance and modifications to the Services
as necessary to avoid such infringement or unauthorized use. If any Owner
Indemnified Party is charged with infringement or unauthorized use by reason
of the Services or of the operation or sale of the Facility, Operator agrees
to fully defend and indemnify that Owner Indemnified Party from any and all
suits, actions, legal proceedings, claims, demands, losses, costs and
expenses and shall settle such claim, action, proceeding or suit (at
Operator's expense) without impairing the operation of the Facility.
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9.1.4 COSTS. It is understood and agreed by the Parties that
any costs or expenses incurred by Operator pursuant to its indemnity
obligations under this Section 9.1 shall not constitute Reimbursable Costs.
SECTION 9.2 BY OWNER.
9.2.1 GENERAL INDEMNITY. Subject to the provisions of Section
10, Owner shall indemnify, defend and hold harmless the Operator Indemnified
Parties from and against any and all suits, actions, liabilities, legal
proceedings, claims, demands, losses, costs and expenses of whatsoever kind
or character, including reasonable attorneys' fees and expenses, for injury
or death of persons or physical loss of or damage to property of Persons and
entities other than Operator arising from Owner's (including its employees or
agents) negligence or willful misconduct in connection with the performance
of its obligations hereunder.
9.2.2 INDEMNITY FOR VIOLATION OF LAW. Owner shall also
indemnify, defend and hold harmless the Operator Indemnified Parties from and
against any and all regulatory penalties or fines (other than any
Environmental Claims which shall be governed by Section 10), and reasonable
expenses (including attorneys' fees and expenses) arising from Owner's
violation (other than through any breach of Section 9.1.2) of any Law,
license, permit, or government approval.
SECTION 9.3 COOPERATION REGARDING CLAIMS. If any Party hereto
(each an "INDEMNIFIED PARTY") shall receive notice or have knowledge of any
claim that may result in a claim for indemnification by such Indemnified
Party against a Party pursuant to Section 9 or 10, such Indemnified Party
shall, as promptly as possible, give the indemnifying Party notice of such
claim, including a reasonably detailed description of the facts and
circumstances relating to such claim, and a complete copy of all notices,
pleadings and other papers related thereto, and in reasonable detail the
basis for its potential claim for indemnification with respect thereto;
PROVIDED that failure promptly to give such notice or to provide such
information and documents shall not relieve the indemnifying Party from the
obligation hereunder to respond to or to defend the Indemnified Party failing
to give such notice against such claim. The Party against whom
indemnification is claimed shall, upon its acknowledgment in writing of its
obligation to indemnify the Indemnified Party seeking indemnification and for
Owner, subject to the rights of Lender, be entitled to assume the defense or
to represent the interests of the Indemnified Party seeking indemnification
in respect of such claim, which shall include the right to select and direct
legal counsel and other consultants, appear in proceedings on behalf of such
Indemnified Party and to propose, accept or reject offers of settlement, all
at its sole cost.
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SECTION 10
LIABILITIES OF THE PARTIES
SECTION 10.1 LIMITATIONS OF LIABILITY. Notwithstanding any
provision herein to the contrary, neither Party nor any of their respective
partners, officers, directors, agents, subcontractors, vendors or employees
shall be liable hereunder for consequential or indirect loss or damage, loss
of profit and anticipated revenues, cost of capital, loss of goodwill,
increased operating costs or any other special or incidental damages. The
Parties further agree that the waivers and disclaimers of liability,
indemnities, releases from liability, and limitations on liability expressed
herein shall survive termination or expiration of this Agreement, and shall
apply at all times, whether in contract, equity, tort or otherwise,
regardless of the fault, negligence (in whole or in part), strict liability,
breach of contract or breach of warranty of the Party indemnified, released
or whose liabilities are limited, and shall extend to the partners,
shareholders, principals, directors, officers and employees, agents and
related or affiliated entities of such Party, and their partners,
shareholders, principals, directors, officers and employees.
SECTION 10.2 ENVIRONMENTAL LIABILITY.
10.2.1 DURING TERM OF AGREEMENT. Operator shall be solely
responsible for all Environmental Claims directly or indirectly related to
or arising out of the actual or alleged existence, generation, use,
collection, treatment, storage, transportation, recovery, removal, discharge
or disposal of Hazardous Materials at the Facility (or any part thereof)
and/or adjacent areas during the term of this Agreement. Operator shall
defend, indemnify and hold Owner harmless against all such Environmental
Claims.
10.2.2 AFTER TERMINATION OF AGREEMENT. Owner shall be solely
responsible for all Environmental Claims directly or indirectly related to or
arising out of the actual or alleged existence, generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge or disposal
of Hazardous Materials at the MDS Facility and/or adjacent areas arising
after termination of this Agreement. Owner shall defend, indemnify and hold
Operator harmless against all such Environmental Claims.
SECTION 10.3 LIMITATION OF OWNER'S LIABILITY. Notwithstanding
anything to the contrary herein, it is specifically understood and agreed
that there shall be absolutely no personal liability or recourse for the
payment of any amounts due hereunder, or the performance of any obligations
hereunder against any employee, partner, shareholder, officer or director,
whether past, present or future, of Owner, any direct or indirect parent
corporation or any Affiliate thereof, and Operator shall look solely to Owner
and its assets for the satisfaction of each and every remedy of Operator in
the event of any breach by Owner; PROVIDED, HOWEVER that nothing herein shall
relieve any of the foregoing Persons from liability for such Person's willful
misconduct or gross negligence.
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SECTION 10.4 LIMITATION OF OPERATOR'S LIABILITY. Subject to
Section 10.2.2, Operator's liability hereunder shall be limited as follows:
Unless an independent technical engineer, selected in Owner's sole discretion
with the consent of the Lenders has determined that any loss or damage to the
Facility or failure of the Facility to process Feedstock has resulted
directly from mechanical or technical failure, Operator shall be deemed, for
purposes of this Agreement and each other Facility Agreement, to have caused
any such loss or damage to, or failure of, the Facility, or any property in
its care or custody. Notwithstanding the immediately preceding sentence, the
amount in Dollars of Operator's liability for any loss of or damage to the
Facility, or any other property in the care, custody or control of Operator
(including loss or damage to spare parts and materials) shall be limited to
the proceeds of the insurance described in Section 8 unless such loss or
damage arises through the gross negligence or willful misconduct of the
Operator, its employees or its agents.
SECTION 11
TITLE, DOCUMENTS AND DATA
SECTION 11.1 MATERIALS AND EQUIPMENT. Title to all materials,
equipment, supplies, consumables, spare parts and other items purchased or
obtained by Operator on a Reimbursable Cost basis hereunder shall pass
immediately to and vest in Owner upon the passage of title from the vendor or
supplier thereof; PROVIDED, HOWEVER, that such transfer of title shall in no
way affect any of Operator's other obligations set forth herein.
SECTION 11.2 PROPRIETARY INFORMATION. Where materials or
documents prepared or developed by Operator or its employees, representatives
or contractors contain proprietary or technical information, systems,
techniques, or know-how previously known to Operator or its contractors or
previously acquired by Operator or its contractors from third parties,
Operator or its contractors shall have the unrestricted right to use or
dispose of such information, systems, techniques, or know-how as they see
fit; PROVIDED, HOWEVER, that Owner shall have the right to utilize the same
to the extent that it relates to the Facility without cost to Owner. All
such materials and documents, together with any materials and documents
furnished to Operator or to its contractors by Owner, shall be delivered to
Owner upon expiration or termination of this Agreement and before final
payment is made to Operator; PROVIDED that Operator may retain and use copies
of all such materials and documents prepared by Operator.
SECTION 11.3 REVIEW BY OWNER. In addition, all such materials
and documents shall be available for review by Owner at all reasonable times
during development and promptly upon completion.
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SECTION 12
REPRESENTATIONS AND WARRANTIES
SECTION 12.1 OPERATOR REPRESENTATIONS AND WARRANTIES. Operator
represents and warrants to Owner that:
12.1.1 OPERATOR QUALIFIED AND EXPERIENCED. Operator is fully
experienced and properly licensed, equipped, and in all ways competent and
qualified to perform all aspects of the Services in accordance with the terms
set forth herein.
12.1.2 COMPLIANCE WITH FACILITY AGREEMENT. Operator will not
take any action that would cause a default under any Facility Agreement.
12.1.3 INCORPORATION AND GOOD STANDING. Operator is a
cooperative corporation duly incorporated, validly existing and in good
standing under the laws of Minnesota.
12.1.4 ENFORCEABILITY. This Agreement constitutes the legal,
valid and binding obligation of Operator, enforceable against Operator in
accordance with its terms, except as enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity.
12.1.5 DUE AUTHORIZATION. The execution, delivery and
performance of this Agreement by Operator has been duly authorized by all
requisite corporate action and will not conflict with any provisions of any
Law, or any agreement or instrument to which it is a party or by which it,
its property or assets may be bound or affected.
12.1.6 LICENSES. Operator is the holder of all necessary
governmental consents, approvals, licenses, permits or other authorizations
required to operate or conduct its business as contemplated herein.
12.1.7 GOVERNMENT APPROVALS. Neither the execution and delivery
by Operator of this Agreement, nor the consummation by Operator of any of the
transactions contemplated hereby, requires the consent or approval of, the
giving of notice of to, the registration with, the recording or filing of any
document with, or the taking of any other action in respect of any Government
Agency, except those which have been duly obtained and are in full force and
effect or not yet required, but which Operator believes will be readily
obtainable in the ordinary course of business upon due application therefor.
12.1.8 LEGAL REQUIREMENTS. Operator is aware of all the legal
requirements and business practices that must be followed in performing the
Services and the Services will conform with such requirements and practices
and be in compliance with all Laws, necessary government
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approvals, permits and licenses, Prudent Operating and Maintenance Practices
and manufacturer's specifications and guidelines.
12.1.9 FINANCIAL CONDITION. Operator is financially solvent,
able to pay its debts as they mature and possessed of sufficient working
capital to complete its obligations under this Agreement.
12.1.10 LITIGATION. Operator is not a party to any legal,
administrative, arbitral, investigatorial or other proceeding or controversy
pending, or to the best of its knowledge, threatened, that would adversely
affect its ability to perform its obligations hereunder.
12.1.11 INTELLECTUAL PROPERTY RIGHTS. Operator holds, or is
expressly authorized under all patent, copyright or trademark rights,
licenses, franchises and other intellectual property necessary to perform the
Services for the term hereof. Operator shall pay any royalties and license
fees associated with all such proprietary rights for the full term hereof.
SECTION 12.2 OWNER REPRESENTATIONS AND WARRANTIES. Owner
represents and warrants to Operator that:
12.2.1 INCORPORATION AND GOOD STANDING. Owner is a limited
liability company validly existing and in good standing under the laws of the
State of Delaware.
12.2.2 ENFORCEABILITY. This Agreement constitutes the legal,
valid and binding obligation of Owner, enforceable against Owner in
accordance with its terms, except as enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity.
12.2.3 DUE AUTHORIZATION. The execution, delivery and
performance of this Agreement by Owner has been duly authorized by all
requisite corporate action and will not conflict with any provisions of any
Law, or any agreement or instrument to which it is a party or by which it,
its property or assets may be bound or affected.
12.2.4 LICENSES. From Owner Acceptance, Owner will hold all
necessary governmental consents, licenses, permits or other authorizations
required to own and operate the Facility.
12.2.5 GOVERNMENT APPROVALS. Neither the execution and delivery
by Owner of this Agreement, nor the consummation by Owner of any of the
transactions contemplated hereby, requires the consent or approval of, the
giving of notice of to, the registration with, the recording or filing of any
document with, or the taking of any other action in respect of any Government
Agency, except those which have been duly obtained and are in full force and
effect or not yet required, but which Owner believes will be readily
obtainable in the ordinary course of business upon due application therefor.
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12.2.6 FINANCIAL CONDITION. Owner is financially solvent, able
to pay its debts as they mature and possessed of sufficient working capital
to complete its obligations hereunder.
12.2.7 LITIGATION. Owner is not a party to any legal,
administrative, arbitral, investigatorial or other proceeding or controversy
pending, or to the best of its knowledge, threatened, that would adversely
affect its ability to perform its obligations hereunder.
SECTION 13
FORCE MAJEURE
SECTION 13.1 EXCUSED PERFORMANCE. Except for the obligation to
make payments for the Services actually rendered hereunder, either Party
shall be excused from performance and shall not be considered to be in
default in respect to any obligation hereunder, if failure of performance
shall be due to an event of Force Majeure. Any increased costs or other
adverse economic consequences that may be incurred through the performance of
such obligations of the Parties hereto shall not constitute an event of Force
Majeure nor shall it relieve such Party of any of its obligations hereunder.
SECTION 13.2 NOTICE OF FORCE MAJEURE. If either Party's ability
to perform its obligations hereunder is affected by an event of Force
Majeure, such Party shall promptly, upon learning of such event of Force
Majeure and ascertaining that it will affect its performance hereunder, give
notice to the other Party within 15 Business Days of its discovery stating
the nature of the event, its anticipated duration and any action being taken
to avoid or minimize its effect. The burden of proof shall be on the Party
asserting excuse from performance due to such event of Force Majeure.
SECTION 13.3 SCOPE. The suspension of performance shall be of no
greater scope and no longer duration than that which is absolutely necessary.
The excused Party shall use its reasonable best efforts to remedy its
inability to perform.
SECTION 13.4 STRIKES. Strikes and lockouts are events of Force
Majeure and settlement thereof shall be wholly within the discretion of the
Party whose employees are on strike or locked out.
SECTION 14
CONFIDENTIAL INFORMATION
SECTION 14.1 NON-DISCLOSURE. Each Party agrees to hold in
confidence any information imparted to it by the other Party which pertains
to Owner's or Operator's business activity in any manner, and which is not
the subject of general public knowledge, including, without limitation,
proprietary processes, technical information and know-how, information
concerning Owner's other projects, management policies, economic policies,
financial and other
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data and the like. This obligation shall continue to remain in full force
and effect for the term hereof plus an additional 5 years thereafter. The
preceding non-disclosure requirements shall not apply to:
(i) information furnished without restriction by one Party prior
to the Effective Date;
(ii) information in the public domain; or
(iii) information obtained by one Party from a third Person not
under an obligation of non-disclosure to Owner or Operator,
as the case may be.
SECTION 14.2 DISCLOSURE TO GOVERNMENT AGENCY. Either Party may
disclose any such information to the extent that such Party is required by
any Government Agency to make such disclosure. In addition, Owner may
disclose such information to the extent that such disclosure is required by
Lender, any prospective Lender, independent engineer, any supplier to the
Facility and any Person providing any type of interconnection services to the
Facility.
SECTION 15
MISCELLANEOUS PROVISIONS
SECTION 15.1 ASSIGNMENT. This Agreement shall not be assignable
by either Party without the prior written consent of the other Party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
this Agreement may be assigned to Lender as security for Lender's financing
of the Facility and, upon prior written notice to Operator: (i) to the
successor of Owner, (ii) to a Person acquiring all or a controlling interest
in the business assets of Owner, (iii) to a wholly-owned subsidiary of Owner,
or (iv) in connection with a sale or transfer of the Facility by Lender;
PROVIDED that any such assignment (except pursuant to paragraph (iv)) shall
not relieve the assigning Party of any of its obligations under this
Agreement; PROVIDED FURTHER that any such assignment shall be void and of no
effect if purported to be made to any Person who is a direct or indirect
competitor of Operator.
SECTION 15.2 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement
embodies the entire agreement between the Parties relating to the subject
matter hereof. The Parties shall not be bound by or liable for any documents
proposed or submitted prior to the date of this Agreement and not
incorporated in this Agreement (by reference or otherwise), or for any
statement, representation, promise, inducement or understanding of any kind
or nature relating to the Services or any other matter covered by this
Agreement which is not set forth or provided for herein. This Agreement
shall be binding upon and shall inure to the benefit of the successors and
permitted assigns of the Parties. No changes, amendments or modifications of
any of the terms or conditions of this Agreement shall be valid unless set
forth in writing and signed by each of the Parties.
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SECTION 15.3 SURVIVAL. Notwithstanding any provisions herein to
the contrary, the obligations set forth in Sections 6, 7, 9, 10 and 14 and
the limitations on liabilities set forth in Section 10 shall survive in full
force the expiration or termination of this Agreement.
SECTION 15.4 SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or such
unenforceability and shall not invalidate the enforceable portions of such
provision or the remaining provisions of this Agreement or affect the
validity or enforceability of any such provision in any other jurisdiction.
Except as otherwise provided for herein, the remedies expressly afforded
hereunder to Owner and Operator, respectively, are in addition to any other
remedies provided at Law or in equity.
SECTION 15.5 WAIVER. None of the provisions of this Agreement
shall be considered waived by a Party unless such waiver is in writing and
signed by such Party. No Waiver shall be construed as a modification of any
of the provisions of this Agreement or as a waiver of any default (present or
future) hereunder or breach hereof, except as expressly stated in such waiver.
SECTION 15.6 NOTICES. All notices required or permitted under
this Agreement shall be in writing and shall be hand-delivered or sent by
certified or registered mail, return receipt requested, facsimile or
commercial delivery subject to written record of receipt, to Owner or
Operator, as the case may be, at their respective addresses set forth below,
or to such other addresses as may be designated by notice given as herein
required. All notices shall be effective upon first receipt as evidenced by
written record of delivery or confirmation of transmission.
OWNER: c/o American Crystal Sugar Company
000 Xxxxx 0xx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention:
Telephone:
Telecopy:
OPERATOR: American Crystal Sugar Company
000 Xxxxx 0xx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention:
Telephone:
Telecopy:
SECTION 15.7 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of Minnesota, other than its
conflict of laws principles.
SECTION 15.8 FURTHER ASSURANCES. If either Party reasonably
determines that any further instruments or any other acts or things are
necessary or desirable to carry out the terms of
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this Agreement, the other Party will execute and deliver all such instruments
and assurances and do all such things as the first Party reasonably deems
necessary or desirable to carry out the terms of this Agreement (at the cost
of the first Party).
SECTION 15.9 SET-OFF. Owner may, but shall be under no
obligation, at any time to set off any and all sums due from Owner to
Operator against sums due to Owner from Operator hereunder or under any of
the Facility Agreements. Operator may not at any time set off any sums
payable by it to Owner under this Agreement.
SECTION 15.10 COOPERATION IN FINANCING. Notwithstanding any
provision to the contrary, Operator agrees to cooperate with Owner in the
negotiation and upon Operator's approval, execution, of any reasonable
amendment, modification or addition to this Agreement required by Lender,
which does not result in a material adverse change in Operator's rights or
obligations hereunder. Operation will cooperate with Lender and will execute
and deliver all documents requested by Lender to protect its interests under
any Loan Agreement.
SECTION 15.11 NO THIRD PERSON RIGHTS. This Agreement is not for
the benefit of any Person other than the Parties and Lender, and no other
Person shall be deemed to be a third party beneficiary hereof or entitled to
any benefits hereunder.
SECTION 15.12 DOLLARS. All payments made to be made by either
Party to the other hereunder shall be in Dollars.
SECTION 15.13 COUNTERPARTS. This Agreement may be executed in
more than one counterpart, each of which shall be deemed to be an original.
[REMAINING PORTION OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties have executed this Operation and
Maintenance Agreement as of the date first written above.
OWNER:
CRYSTECH, LLC
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: XXXXXX X. XXXXXXXXXX
-----------------------------------
Title: Chairman
----------------------------------
OPERATOR:
AMERICAN CRYSTAL SUGAR COMPANY
By: /s/ Xxx X. X. Xxx
------------------------------------
Name: XXX X. X. XXX
-----------------------------------
Title: Assist. Treasurer
----------------------------------
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