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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.3
================================================================================
AGREEMENT FOR LEASE
between
Nitrogen Leasing Company, Limited Partnership
and
Arcadian Fertilizer, L.P.
Dated as of March 27, 1996
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THIS AGREEMENT HAS BEEN ASSIGNED AS SECURITY
FOR INDEBTEDNESS OF THE OWNER. SEE SECTION 17.
This Agreement has been manually executed in 8 counterparts, numbered
consecutively from 1 through 8, of which this is No. ____. To the extent, if
any, that this Agreement constitutes chattel paper (as such term is defined in
the Uniform Commercial Code as in effect in any jurisdiction), no security
interest in this Agreement may be created or perfected through the transfer or
possession of any counterpart other than the original counterpart which shall be
the counterpart identified as counterpart No. 1.
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THIS AGREEMENT FOR LEASE IS
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DB DRAFT 3/26/96
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS................................................... 1
SECTION 2. APPOINTMENT OF AGENT.......................................... 10
SECTION 3. ADVANCES...................................................... 12
SECTION 4. CONDITIONS PRECEDENT TO THE INITIAL
ADVANCE WITH RESPECT TO A UNIT................................ 14
SECTION 5. CONDITIONS PRECEDENT TO OWNER'S OBLIGATION TO
MAKE INTERIM ADVANCES AFTER THE INITIAL ADVANCE
WITH RESPECT TO A UNIT........................................ 18
SECTION 6. CONDITIONS PRECEDENT TO THE FINAL ADVANCE WITH
RESPECT TO A UNIT............................................. 19
SECTION 7. CONDITIONS PRECEDENT TO THE COMPLETION
ADVANCE WITH RESPECT TO A UNIT................................ 21
SECTION 8. REPRESENTATIONS AND WARRANTIES OF AGENT....................... 22
SECTION 9. AFFIRMATIVE COVENANTS......................................... 26
SECTION 10. NEGATIVE COVENANTS............................................ 33
SECTION 11. EVENTS OF DEFAULT, EVENTS OF UNIT TERMINATION
AND CASUALTY EVENTS........................................... 34
SECTION 12. INDEMNITIES................................................... 42
SECTION 13. LEASEHOLD INTERESTS........................................... 43
SECTION 14. PURCHASES..................................................... 43
SECTION 15. CHARACTER OF AMMONIA PROJECT.................................. 43
SECTION 16. PERMITTED CONTESTS............................................ 43
SECTION 17. SALE OR ASSIGNMENT BY OWNER................................... 44
SECTION 18. GENERAL CONDITIONS............................................ 45
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THIS AGREEMENT FOR LEASE IS
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DB DRAFT 3/26/96
SECTION 19. AGENT'S RIGHT TO PURCHASE..................................... 52
Exhibit A The Lease Agreement
Exhibit B Form of AFL Unit Leasing Record
Exhibit C Form of Acquisition Certificate
Exhibit D Form of Interim Advance
Exhibit E Form of Certificate of Substantial Completion
Exhibit F Form of Certificate of Increased Cost
Exhibit G Unit FF&E Specifications
Exhibit H Environmental Certificate
Exhibit I Operating Agreement
Exhibit J Description of the Ammonia Project
Exhibit K Project Parcel
Exhibit L Draft of Construction Agreements for Ammonia Project
Exhibit M-1 Electricity Supply Agreement
Exhibit M-2 Water Supply Agreement
Exhibit M-3 Form of Savonetta Pier User Agreement
Exhibit N Description of OSHA Litigation
Exhibit O Form of AIA Document G722
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THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
AGREEMENT FOR LEASE
Agreement for Lease dated as of March 27, 1996 (as the same
may be amended, restated, modified or supplemented from time to time as
permitted by and in accordance with the Operative Documents, this "Agreement"),
between Nitrogen Leasing Company, Limited Partnership, a Delaware limited
partnership ("Owner") and Arcadian Fertilizer, L.P., a Delaware limited
partnership, individually and, to the extent provided for herein, as agent of
Owner (in either such capacity, the "Agent").
WHEREAS, Owner may from time to time acquire either (i) a fee
interest or (ii) a leasehold interest pursuant to a Ground Lease (hereinafter
defined) in certain Unit Premises (hereinafter defined); and
WHEREAS, on or about the date of this Agreement, Owner and
Agent propose to enter into a lease agreement (hereinafter defined), providing
for the lease or sublease by Agent of certain Unit Improvements (hereinafter
defined) which will be constructed and furnished on such Unit Premises pursuant
to the terms of this Agreement; and
WHEREAS, Owner desires to appoint Agent to act as agent for
Owner in connection with the selection of Owner's fee and/or leasehold interests
in Unit Premises from time to time, and with the construction of Unit
Improvements and the installation of Unit FF&E thereon, if any, and in
connection with all matters related to such construction, and Agent wishes to
accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Owner and Agent hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. For the purposes of this Agreement each of
the following terms shall have the meaning specified with respect thereto:
Accrued Default Obligations: Defined pursuant to paragraph (e)
of subsection 11.2 hereof.
Acquisition Certificate: The written certification of Agent to
be delivered to Owner in connection with the making of the Initial Advance
hereunder, which contains the information and representations of Agent as
required by Section 4 of this Agreement, and which is substantially in the form
of Exhibit C hereto.
Affiliate: Defined pursuant to subsection 1.2 hereof.
AFL Unit Leasing Record: An instrument, substantially in the
form of Exhibit B hereto, evidencing the lease of a Unit under the Lease.
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THIS AGREEMENT FOR LEASE IS
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Agreement: This Agreement for Lease, as the same may be
amended, restated, modified or supplemented from time to time pursuant to and in
compliance with the Operative Documents.
Ammonia Project: The Unit Premises located in the Republic of
Trinidad and Tobago and described on Exhibit J hereto in which Owner will,
subject to the provisions hereof, acquire a leasehold interest and the related
Unit Improvements and Unit FF&E constituting the ammonia production plant which
are to be located on or about such Unit Premises, as described in Exhibit J
hereto.
Ancillary Facility Agreement: Any of the contracts entered
into or to be entered into by Agent or an Affiliate of Agent and assigned to
Owner which provide for the use of and access to storage tanks, loading and
unloading facilities, pipelines and similar facilities and equipment necessary
for the operation and maintenance of and access to the Ammonia Project as listed
on Exhibits M-1 through M-3 hereto and the License Agreements relating to
pipelines and similar facilities necessary for the operation and maintenance of
the Ammonia Project.
Ancillary Facility Agreement Consents: Each Estoppel
Certificate, Consent and Agreement relating to an Ancillary Facility Agreement
entered into or to be entered into by the National Energy Corporation of
Trinidad and Tobago Limited, the Trinidad and Tobago Electricity Commission and
the Water and Sewage Authority of Trinidad and Tobago and the consent of XXXX
and the Operator relating to the License Agreement.
ANL: Arcadian Nitrogen Limited, a Trinidad and Tobago private
limited company.
Arcadian Corporation: Arcadian Corporation, a Delaware
corporation and the general partner of Agent.
Assignee: Defined pursuant to subsection 1.2 hereof.
Assignment Agreement: Each agreement entered into or to be
entered into between ANL and Owner, pursuant to which ANL's rights under an
Ancillary Facility Agreement is assigned to Owner.
XXXX: Arcadian Trinidad Ammonia Limited, a Trinidad and Tobago
private limited company.
XXXX Agreement: The Estoppel Certificate, Consent and
Agreement relating to the Sublease entered into by XXXX.
Business Day: Defined pursuant to subsection 1.2 hereof.
Casualty Event: Any of the events specified in subsection 11.5
hereof.
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Certificate of Increased Cost: The certificate delivered by
Agent to Owner pursuant to Section 7 hereof in connection with a request for a
Completion Advance, and which is substantially in the form of Exhibit F hereto.
Certificate of Substantial Completion: The certificate
delivered by Agent to Owner pursuant to Section 6 hereof in connection with a
request for a Final Advance, and which is substantially in the form of Exhibit E
hereto.
Completion Advance: Any advance made by Owner upon
satisfaction or waiver of the conditions set forth in Section 7 hereof.
Consent: Defined pursuant to subsection 1.2 hereof.
Construction Agreement: Each agreement between Owner and a
General Contractor, providing for the construction of Unit Improvements, as the
same may be amended, restated, modified or supplemented from time to time
pursuant to and in compliance with the Operative Documents. A copy of the most
recent draft of each Construction Agreement related to the Ammonia Project is
attached as Exhibit L hereto.
Construction Agreement Surety: A guaranty in form and
substance reasonably acceptable to Owner, of Dresser Industries, Inc. with
respect to the General Contractor's obligations under the Construction
Agreement, which guaranty shall be for the benefit of the Owner.
Construction Documents: The collective reference to the
Construction Agreement(s), the Unit Plans, the Permits and all other agreements
entered into by Agent or its Affiliate with respect to constructing, equipping,
furnishing and decorating the Unit.
CRA Agreement: Defined pursuant to subsection 1.2 hereof.
Credit Agreement: Defined pursuant to subsection 1.2 hereof.
Designated Effective Date: Thirty (30) months from the date on
which the Initial Advance is made by Owner to Agent pursuant to Section 4
hereof.
Effective Date: Defined pursuant to subsection 1.2 hereof.
Environmental Consultant: Pilko & Associates, Inc.
ERISA: Defined pursuant to subsection 1.2 hereof.
ERISA Event: Defined pursuant to subsection 1.2 hereof.
Event of Default: Any of the events constituting an Event of
Default, as specified in subsection 11.1 hereof.
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THIS AGREEMENT FOR LEASE IS
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Event of Unit Termination: Any of the events constituting an
Event of Unit Termination, as specified in subsection 11.3 hereof.
Final Advance: Any advance made by Owner upon satisfaction or
waiver of the conditions of Section 6 hereof.
Financing Costs: All interest costs (including, without
limitation, interest at a default rate), other costs, fees and expenses incurred
by or accrued to any date for the determination thereof for the account of Owner
under a Credit Agreement, and all costs, fees and expenses incurred by or
accrued for the account of Owner to such date in connection with obtaining
equity financing, including return on equity capital and interest on overdue
payments thereof.
Force Majeure Delay: Any delay caused by conditions beyond the
control of Agent or any of its Affiliates (assuming that Agent and its
Affiliates are in compliance with their obligations under the Operative
Documents), including, without limitation, acts of God or the elements, fire,
strikes, labor disputes, delays in delivery of material and disruption of
shipping, which does not have the effect of extending the Unit Completion Date
for the relevant Unit beyond two hundred and seventy (270) days in the
aggregate.
Gas Contract: The gas contract or subcontract to be entered
into by an Affiliate of Agent with respect to the supply of natural gas to the
Ammonia Project.
General Contractor: Any contractor or contractors as may be
engaged by Agent or its Affiliate from time to time for construction of Unit
Improvements.
Governmental Action: Any action as defined in subsection 8.5
hereof.
Governmental Authority: Any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, or agencies, courts or arbitral panels having jurisdiction over
or application to any Unit Premises, Unit Improvements, Unit FF&E, Unit, Agent,
any Affiliate of Agent or Owner.
Ground Lease: Each ground lease, including, without
limitation, the Site Lease and the Sublease (each of which Site Lease and
Sublease must be a Mortgageable Ground Lease) and each additional lease under
which a leasehold interest in a Unit Premises is leased to Owner or is subleased
to Agent or a Permitted Sublessee (as defined in the Lease).
Indebtedness: Defined pursuant to subsection 1.2 hereof.
Indemnified Person: Any Person as defined in Section 12
hereof.
Initial Advance: Any advance made by Owner upon satisfaction
or waiver of the conditions set forth in Section 4 hereof.
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THIS AGREEMENT FOR LEASE IS
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Insurance Requirements: Defined pursuant to subsection 1.2
hereof.
Interim Advance: Any advance made by Owner upon satisfaction
or waiver of the conditions set forth in Section 5 hereof.
Interim Advance Certificate: A certificate delivered by Agent
to Owner pursuant to Section 5 hereof in connection with a request for an
Interim Advance, and which is substantially in the form of Exhibit D hereto.
Lease: The Lease Agreement, dated as of the date hereof, by
and between Owner, as lessor, and Agent, as lessee, as it may be amended,
restated, modified or supplemented from time to time pursuant to, and in
compliance with, the provisions of the Operative Documents, a copy of which is
attached as Exhibit A hereto.
Legal Requirements: All laws, judgments, decrees, ordinances
and regulations and any other governmental rules, orders and determinations and
all requirements having the force of law of Governmental Authorities, now or
hereinafter enacted, made or issued, whether or not presently contemplated,
including, without limitation, compliance with all requirements of labor laws
and environmental statutes (including, without limitation, all environmental
laws and statutes of the Republic of Trinidad and Tobago), compliance with which
is required at any time from the date hereof through the term of this Agreement,
whether or not such compliance shall require structural, unforeseen or
extraordinary changes to any Unit or the operation, occupancy or use thereof,
except any thereof promulgated by a Governmental Authority of the jurisdiction
of organization of Owner with application exclusively to Owner.
License Agreements: Defined pursuant to subsection 1.2 hereof.
Lien: Defined pursuant to subsection 1.2 hereof.
Xxxxxxx Leasing: ML Leasing Equipment Corp., a Delaware
corporation.
Xxxxxxx Xxxxx: Xxxxxxx Xxxxx & Co., Inc., a Delaware
corporation.
Mortgageable Ground Lease: Defined pursuant to subsection 1.2
hereof.
Multiemployer Plan: Defined pursuant to subsection 1.2 hereof.
Multiple Employer Plan: Defined pursuant to subsection 1.2
hereof.
Note Agreement: Defined pursuant to subsection 1.2 hereof.
Operating Agreement: Defined pursuant to subsection 1.2
hereof.
Operative Documents: This Agreement, the Lease, the
Construction Documents, the Project Documents, each Ground Lease, each
Assignment Agreement, the
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THIS AGREEMENT FOR LEASE IS
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Ancillary Facility Agreement Consents, the XXXX Agreement and the Point Lisas
Agreement.
Operator: Defined pursuant to subsection 1.2 hereof.
Owner: Nitrogen Leasing Company, Limited Partnership or any
successor or successors to all of its rights and obligations as Owner hereunder.
Permits: All consents, licenses, building, and operating
permits required for construction, completion, and operation of any Unit in
accordance with all Legal Requirements affecting such Unit.
Permitted Contest: Defined pursuant to paragraph (a) of
Section 16 hereof.
Permitted Liens: Defined pursuant to subsection 1.2 hereof.
Person: Defined pursuant to subsection 1.2 hereof.
Plan: Defined pursuant to subsection 1.2 hereof.
Point Lisas: The Point Lisas Industrial Port Development
Corporation.
Point Lisas Agreement: The Deed of Direct Covenant relating to
the Site Lease entered into by Point Lisas.
Potential Default: Any event which, but for the lapse of time,
or giving of notice, or both, would constitute an Event of Default.
Potential Event of Unit Termination: Any event which, but for
the lapse of time, or giving of notice, or both, would constitute an Event of
Unit Termination.
Project Documents: The Gas Contract, the Operating Agreement
and each Ancillary Facility Agreement.
Project Parcel: The land, together with all required
appurtenant easements thereto, which is necessary for the siting, construction
and proper operation of the Ammonia Project as described on Exhibit K hereto.
Responsible Officer: The President, any Vice President or any
Treasurer of the general partner of Agent, or any other officer or similar
official of the general partner of Agent responsible for the administration of
the obligations of Agent with respect to this Agreement.
Revolving Loan Facility: Defined pursuant to subsection 1.2
hereof.
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THIS AGREEMENT FOR LEASE IS
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Site Lease: The Lease Agreement, dated as of July 26, 1982,
between Point Lisas and XXXX, as the same may be amended, restated, modified or
supplemented from time to time pursuant to and in compliance with the Operative
Documents.
Sublease: The Sublease Agreement, dated as of the date hereof,
between XXXX and Owner, as the same may be amended, restated, modified or
supplemented from time to time pursuant to and in compliance with the Operative
Documents.
Subsidiary: Defined pursuant to subsection 1.2 hereof.
Substantial Completion: With respect to any Unit, the
satisfaction of all requirements of Section 6 hereof.
Surrender Date: Defined pursuant to paragraph (a) of
subsection 11.4 hereof.
Taking: Any event which is described in paragraph (b) of
subsection 11.5 hereof.
Unit: Any Unit Premises and any Unit Improvements thereon and
related Unit FF&E, including without limitation the Ammonia Project.
Unit Acquisition Cost: With respect to any Unit the sum of (a)
the aggregate amount of advances made pursuant to this Agreement with respect to
the Unit and (b) all other costs of Owner (including costs incurred by Agent but
reimbursed by Owner) with respect to the Unit (except costs which are not
properly capitalized and costs for which Owner has been reimbursed or chooses,
in lieu of capitalization hereunder, to be reimbursed by Agent, pursuant to the
provisions of subsection 9.5 or Section 12 hereof) arising from the acquisition,
construction, equipping, and financing (including, without limitation, Financing
Costs and Owner's out-of-pocket expenses and fee obligations in connection
therewith) prior to the lease of the Unit under the Lease, including all rent
under any Ground Lease which is paid or prepaid by Owner. Unit Acquisition Cost
shall be reflected in the applicable AFL Unit Leasing Record, as modified by any
revised AFL Unit Leasing Record.
Unit Budget: The budget to be prepared by Agent and delivered
to, and approved by, Owner prior to the Initial Advance with respect to any
Unit, as amended from time to time, which budget shall set forth in general
detail costs relating to such of the following as Agent deems to be appropriate:
(a) the installation of Unit FF&E, if any, thereon; (b) all costs, including,
without limitation, the purchase price, survey and survey inspection charges,
appraisal, architectural, engineering, environmental analysis, soil analysis and
market analysis fees, title insurance premiums, brokerage commissions, transfer
fees and taxes that are customarily the responsibility of the purchaser, closing
adjustments for taxes, utilities and the like, escrow and closing fees,
recording and filing fees, the legal fees of Owner and Agent, and all related
costs and expenses incurred in acquiring and maintaining marketable fee or
leasehold title to such Unit and in leasing or subleasing such
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Unit to Agent; (c) the costs of completion of the Unit Improvements in
conformity with the Unit Plans, the Construction Agreement or any contracts in
replacement thereof, including without limitation, costs of site preparation,
acquiring or granting easements necessary for completion of the Unit
Improvements, making utility connections, demolition, streets, parking areas,
landscaping, development, off-site improvements, design and related construction
of the Unit Improvements and related facilities and the costs of necessary
studies, surveys, plans and permits, insurance and examination and incidental
costs and expenses related thereto incurred in acquiring and maintaining
marketable fee or leasehold title to such Unit and in leasing or subleasing such
Unit and Unit FF&E to Agent; (d) the costs of architects', attorneys',
engineers' and other professionals' fees and disbursements, in connection with
the development, planning, renovation, construction, start-up, testing and
construction financing of the Unit Improvements, including, without limitation,
the fees and disbursements of Owner's counsel in connection with this Agreement
and the duties of Owner hereunder, the Construction Agreement, and in all other
matters involving or reasonably related to this transaction; (e) costs of all
charges and assessments for the construction, improvement, maintenance, repair
and restoration of streets, roads, walks, sewer, gas, electrical, telephone and
water lines and other improvements levied upon the Unit until the Effective
Date; (f) the costs of all insurance, real estate, property and excise tax
assessments, sales and use taxes on materials used in construction, and other
operating and carrying costs paid, accrued, or levied upon the Unit or Owner in
connection with the Unit during the period from acquisition of the Unit Premises
until the Effective Date for such Unit; (g) costs of Agent's project
representatives (inspectors, consultants, etc.) incurred in its capacity as
agent for Owner; (h) a contingency amount of up to an additional twenty percent
(20%) of the aggregate of all such projected expenditures, which shall include
Financing Costs and otherwise shall be allocated to unexpected increases in the
costs associated with such Unit; and (i) any and all other costs arising from or
in connection with the construction period for such Unit Improvements and until
the Effective Date for such Unit. The Unit Budget with respect to the Ammonia
Project shall not exceed $285,000,000.
Unit Completion Date: With respect to the Ammonia Project,
thirty-six (36) months from the date on which the Initial Advance is made by
Owner to Agent pursuant to Section 4 hereof plus any Force Majeure Delay, and
with respect to any other Unit, as agreed to in writing among Agent, Owner and
any Assignee.
Unit FF&E: The specific items of furniture, fixtures and
equipment, if any, from the Unit FF&E Specifications which are installed or (if
such items have been acquired by Owner for installation) to be installed in a
particular Unit Improvement and for which advances are made by Owner hereunder.
Unit FF&E Specifications: The list of furniture, fixtures and
equipment to be installed with the proceeds of advances hereunder in a
particular Unit Improvement, a copy of which with respect to the Ammonia Project
is attached as Exhibit G hereto.
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THIS AGREEMENT FOR LEASE IS
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Unit Improvements: The improvements to be constructed on an
individual Unit Premises in accordance with the Unit Plans for the Unit
Improvements to be built on such Unit Premises.
Unit Plans: The plans and specifications for the construction
and operating characteristics of any Unit Improvements, including, without
limitation, installation of curbs, sidewalks, gutters, landscaping, utility
connections (whether on or off the Unit Premises) and all fixtures necessary for
construction, operation and occupancy of the Unit and certain equipment to be
used in connection therewith, prepared or to be prepared by an architect and
Agent and approved by Owner, including such amendments, modifications and
supplements thereto as may from time to time be made by Agent; provided that any
subsequent material deviation from the Unit Plans selected for the Unit shall be
made only with Owner's prior consent, which consent shall not be unreasonably
withheld or delayed.
Unit Premises: Each individual parcel of land, in which either
a fee interest or a leasehold interest has been acquired by Owner for the
construction of Unit Improvements thereon, including without limitation the
Project Parcel.
Withdrawal Liability: Defined pursuant to subsection 1.2
hereof.
1.2 Other Definitional Provisions.
(a) For purposes of this Agreement, the terms "Affiliate",
"Assignee", "Business Day", "Consent", "CRA Agreement", "Credit Agreement",
"Effective Date", "ERISA", "ERISA Event", "Indebtedness", "Insurance
Requirements", "License Agreements", "Lien", "Mortgageable Ground Lease",
"Multiemployer Plan", "Multiple Employer Plan", "Note Agreement", "Operating
Agreement", "Operator", "Permitted Liens", "Person", "Plan", "Revolving Loan
Facility", "Subsidiary" and "Withdrawal Liability" shall have the meanings set
forth opposite those terms in the Lease, except that, for purposes of this
Agreement, the terms "the Lessor", "the Lessee" and "this Lease" if used in
those definitions in the Lease shall be deemed to be the terms "Owner", "Agent"
and "this Agreement", respectively, and if used in those definitions in the
Lease, each of the terms "Parcel", "Parcel of Property" and "Property" shall be
deemed to be the phrase "Unit Premises and related Unit Improvements" and each
of the terms "Unit of Equipment" and "Unit", shall be deemed to be an item of
"Unit FF&E".
(b) All terms defined in this Agreement shall have their
defined meanings when used in any certificate or other document made or
delivered pursuant hereto.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, paragraph, schedule and exhibit references are to this Agreement
unless otherwise specified.
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SECTION 2. APPOINTMENT OF AGENT
2.1 Appointment and Duties of Agent. Subject to the terms
hereof, including, without limitation, the requirements of Section 4 hereof,
Owner hereby appoints Agent as its agent for the design, construction,
equipping, and installation of the Ammonia Project on the Project Parcel in
accordance with the Unit Plans and Unit Budget and, to the extent identified in
Exhibit G hereto, Unit FF&E with respect thereto and Agent hereby accepts such
appointment. By written agreement, Owner may appoint Agent as its agent in
respect of additional Unit Premises and Unit Improvements. Unit Improvements
must be of a type permitted to be leased under the Lease, as set forth in
Exhibit A to the Lease. Agent agrees to contract for, supervise and achieve the
good, workmanlike and timely completion of the Unit Improvements and
installation of Unit FF&E on each Unit Premises in accordance with the Unit
Budget and in all material respects in accordance with the Unit Plans, suitable
for its intended use. Owner and Agent agree that any obligation of Agent
herewith may be performed by an Affiliate of Agent; provided that Agent shall in
no event be relieved of any of its obligations under this Agreement by virtue of
any such performance. Upon request of Agent, Owner agrees to deliver to Agent a
separate executed power or attorney confirmatory of the power granted herein in
form suitable for recording. Owner and Agent agree that Agent shall be
responsible for the supervision of all matters relating to any Construction
Agreement; provided that, with respect to any Construction Agreement relating to
the Ammonia Project, all obligations of Owner under such Construction Agreement
shall be performed by ANL; provided, however, that Agent shall not be relieved
of any of its obligations hereunder.
2.2 Cost and Completion of a Unit. Owner and Agent agree that
(a) Unit Acquisition Cost shall be no more than $285,000,000 with respect to the
Ammonia Project and such amount as Agent, Owner and any Assignee agree in
writing with respect to any other Unit. Agent agrees to effect Substantial
Completion of any Unit Improvements on or before the applicable Unit Completion
Date. After receiving the Initial Advance with respect to a Unit, Agent may from
time to time amend, modify or supplement the Unit Plans, Unit Budget or Unit
FF&E Specifications relating thereto; provided, that no such amendment,
modification or supplement shall increase the Unit Budget to an amount in excess
of the maximum cost for acquisition set forth in the first sentence of this
subsection 2.2 or result in the Unit not being completed on or prior to its Unit
Completion Date in all material respects in accordance with the Unit Plans.
Agent shall promptly deliver to Owner and any Assignee any such amended,
modified or supplemented Unit Plans, Unit Budget or Unit FF&E Specifications.
2.3 Lease of a Unit.
(a) Upon Substantial Completion of any Unit Agent will deliver
to Owner the Certificate of Substantial Completion in the form of Exhibit E
hereto with respect to such Unit (including, without limitation, the AFL Unit
Leasing Record), and Agent shall request the Final Advance with respect to such
Unit. If the conditions set forth in Section 6 hereof have been satisfied in the
reasonable judgment of Owner, Owner,
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within five (5) Business Days of receipt of the Certificate of Substantial
Completion, a fully completed AFL Unit Leasing Record executed by Agent and the
other documents required in Section 6 hereof, shall execute and deliver to Agent
such AFL Unit Leasing Record. Except as provided below, the Final Advance shall
be made by Owner on the date of execution by Owner of the AFL Unit Leasing
Record. If Substantial Completion of the Unit will not be effected on or before
the Designated Effective Date with respect to the Unit, Agent shall prepare and
execute an AFL Unit Leasing Record with respect to the Unit and deliver it to
Owner, at least five (5) days prior to the Designated Effective Date. Owner
shall execute and deliver to Agent the AFL Unit Leasing Record by the Designated
Effective Date, and Owner's obligation to make further advances, other than a
Completion Advance, with respect to the Unit under this Agreement shall
terminate on the Designated Effective Date. Agent may request and receive on the
Designated Effective Date an advance pursuant to Section 5, provided all
conditions to such advance under Section 5 are met. Such AFL Unit Leasing Record
shall have an Effective Date as of the date of the Designated Effective Date.
Execution and delivery by Agent of the AFL Unit Leasing Record shall constitute
(i) acknowledgment and representation by Agent that each Unit included therein
(taking into account its then current state of construction) is in good
condition, conforms in all material respects to the Unit Plans and has been
accepted for lease under the Lease by Agent as of the Effective Date of the AFL
Unit Leasing Record, (ii) acknowledgment by Agent that each such Unit is subject
to all of the covenants, terms and conditions of the Lease, and (iii)
certification by Agent that the representations and warranties contained in
Section 2 of the Lease are true and correct in all material respects on and as
of the Effective Date of the AFL Unit Leasing Record as though made on and as of
such date and that there exists on such date no (1) Event of Default or, with
respect to such Unit, Event of Unit Termination or Casualty Event under this
Agreement or Event of Default (as defined in the Lease) or (2) Potential Default
or, with respect to such Unit, Potential Event of Unit Termination under this
Agreement or Potential Default (as defined in the Lease). Upon execution and
delivery of an AFL Unit Leasing Record by Owner, such Unit shall become a Parcel
of Property (as defined in the Lease).
(b) Notwithstanding the foregoing, but subject to the terms of
subsection 3.1 hereof, Agent may, by delivering to Owner a Certificate of
Increased Cost (in the form of Exhibit F hereto), at any time up to six (6)
months after the date on which the Final Advance has been made with respect to a
Unit or, if no Final Advance was made prior to the Designated Effective Date, at
any time prior to the Unit Completion Date, request a Completion Advance in
order to pay to Agent construction costs that were not the subject of any
previous advance. Owner, within five (5) Business Days of receipt and upon
Owner's approval of a request for the Completion Advance and the Certificate of
Increased Cost, shall execute and deliver to Agent a revised AFL Unit Leasing
Record for such Unit reflecting such increased cost, and Agent, within five (5)
Business Days of receipt of such revised AFL Unit Leasing Record, shall sign the
revised AFL Unit Leasing Record and return it to Owner. If no Final Advance was
made on or prior to the Designated Effective Date, at the time Agent returns the
executed revised AFL Unit Leasing Record (which shall occur on a date on or
prior to the Unit Completion Date for such Unit), it shall also deliver the
documents required by Section 6 hereof as if a Final Advance was being made at
such time. The Completion Advance shall be made by
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Owner upon receipt of the revised AFL Unit Leasing Record signed by Agent and,
if applicable, the documentation required by the previous sentence. Execution
and delivery by Agent of the revised AFL Unit Leasing Record shall constitute
(i) acknowledgment and representation by Agent that each Unit included therein
is in good condition, conforms in all material respects to the Unit Plans and
has been accepted for lease under the Lease by Agent as of the Effective Date of
the AFL Unit Leasing Record, (ii) acknowledgment by Agent that each such Unit is
subject to all of the covenants, terms and conditions of the Lease, and (iii)
certification by Agent that the representations and warranties contained in
Section 2 of the Lease are true and correct in all material respects on and as
of the Effective Date of the revised AFL Unit Leasing Record as though made on
and as of such date and that there exists on such date no (1) Event of Default
or, with respect to such Unit, Event of Unit Termination or Casualty Event under
this Agreement or Event of Default (as defined in the Lease) or (2) Potential
Default or, with respect to such Unit, Potential Event of Unit Termination under
this Agreement or Potential Default (as defined in the Lease).
2.4 Powers of Agent. Agent shall have the right to act for and
on behalf of Owner with full and complete authority to appear before each
applicable Governmental Authority to resolve issues related to the platting,
zoning and use of the Unit Premises, to obtain all Permits, to grant and obtain
easements for the benefit of any Unit Premises or which are reasonably deemed
necessary by Agent for the installation or operation of the Ammonia Project
(provided that no such action shall contravene any provision of any Ground
Lease) in all material respects in accordance with the Unit Plans, appoint,
employ and deal with the architects, engineers, consultants and contractors,
purchase and arrange for delivery of all materials, supplies, furniture,
fixtures, and equipment, and to approve all related vouchers, invoices and
statements. Notwithstanding the foregoing, Owner agrees to execute directly any
and all such documents which Governmental Authorities do not permit to be
exercised pursuant to a power of attorney or as Agent may reasonably deem to be
necessary to effect the purposes of this Agreement. No payment shall be made for
any property or services of such architects, engineers, consultants, or
contractors relating to the acquisition, construction and equipping of any Unit
without the prior approval of Agent, and each amount so approved and paid shall
be in accordance with the Unit Budget, and shall be part of the Unit Acquisition
Cost of such Unit. If Agent has unreasonably delayed or withheld giving the
approvals required to make such payments, Owner may make payments to any
architects, engineers, consultants, contractors, vendors or suppliers which are
properly due and payable in accordance with the contracts with said parties, and
any such payment so made shall be and become a part of the Unit Acquisition Cost
of the Unit; provided, however, that Owner shall not make any such payment if it
is subject to a Permitted Contest.
SECTION 3. ADVANCES
3.1 Agreement to Make Advances. Subject to the conditions and
upon the terms herein provided, including, without limitation, that the Unit
Budget not be exceeded, Owner agrees to make available to Agent advances from
time to time for each Unit up to an aggregate principal amount for such Unit
determined in accordance with the
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Unit Budget for such Unit and not in excess of the maximum amount per Unit set
forth in subsection 2.2 hereof. Subject to the terms of this Agreement, Owner
agrees to make (a) an Initial Advance with respect to a Unit in accordance with
Section 4 of this Agreement, (b) Interim Advances from time to time in
accordance with Section 5 of this Agreement, (c) a Final Advance in accordance
with Section 6 of this Agreement and (d) a Completion Advance in accordance with
Section 7 of this Agreement.
3.2 Procedure for Advances. Agent shall give Owner notice in
accordance with Sections 4, 5, 6 and 7 hereof of its irrevocable request for an
advance pursuant to this Agreement, specifying a Business Day on which such
advance is to be made and the amount of the advance. Not later than 11:00 a.m.
New York time on the date for the advance specified in such notice, provided all
conditions to that advance have been satisfied, Owner shall provide to Agent, or
to such other party as may be designated by Agent, in immediately available
funds, the amount of the advance then requested.
3.3 Determination of Amounts of Advances.
(a) Initial Advance. The amount of the Initial Advance with
respect to a Unit shall be made within the limits of the Unit Budget and in
accordance with the Acquisition Certificate, and shall be sufficient to pay in
full all components of Unit Acquisition Cost paid or incurred to the date
thereof including acquisition and closing costs of the respective Unit
including, without limitation, the purchase price, survey and survey inspection
charges, recording and filing fees, brokerage commissions, appraisal,
architectural, engineering, environmental analysis, soil analysis and market
analysis fees, transfer fees and taxes that are customarily the responsibility
of the purchaser, title insurance premiums, closing adjustments for taxes,
utilities, and the like, escrow fees, if any, construction materials and
existing structures, and the legal fees of Owner and Agent. All such costs for
which the Initial Advance is requested shall be set forth in the Unit Budget
attached to the Acquisition Certificate, and in the request for the Initial
Advance.
(b) Interim Advances. Disbursements for the payment of or the
reimbursement of Agent for components of Unit Acquisition Cost for a Unit shall
be made upon the request of Agent from time to time, based upon the
certifications of Agent contained in an Interim Advance Certificate. Owner shall
have no obligation to make Interim Advances more often than once every seven (7)
days.
(c) Final Advance. The amount of the Final Advance shall be
made within the limits of the Unit Budget and in accordance with the Certificate
of Substantial Completion, and shall be sufficient, subject to the provisions of
paragraph (d) of this subsection 3.3, the payment of or the reimbursement of
Agent for components of Unit Acquisition Cost in connection with Substantial
Completion of the Unit, free of all Liens other than Permitted Liens. Owner
shall have no obligation to make the Final Advance unless Owner is satisfied
that all such costs as set forth in the Unit Budget, the Certificate of
Substantial Completion, and the request for the Final Advance have been actually
incurred, or in the case of punch list items will be incurred, in construction
and equipping
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of the Unit, free of all Liens, except for Permitted Liens and shall not cause
the Unit Acquisition Cost of the Unit to exceed the Unit Budget.
(d) Completion Advance. The amount of the Completion Advance
shall be made in accordance with and shall not exceed the amount set forth in
the Certificate of Increased Cost, shall not cause the Unit Acquisition Cost of
the Unit to exceed the Unit Budget, and shall be sufficient for payment in full
of all costs that are properly capitalizable and that were not the subject of
any previous advance with respect to such Unit. Owner shall have no obligation
to make the Completion Advance unless Owner is satisfied that all such costs
were reasonably estimated in the Unit Budget and are adequately set forth in the
Certificate of Increased Cost and will be sufficient for payment in full of all
costs with respect to such Unit.
3.4 Partial Advances. If any or all conditions precedent to
any advance have not been satisfied on the applicable date for a requested
advance, Owner, in its sole discretion, and with the consent of Assignee may,
but shall have no obligation to, disburse a part of the requested advance.
SECTION 4. CONDITIONS PRECEDENT TO THE INITIAL ADVANCE WITH
RESPECT TO A UNIT
Owner's obligation to make the Initial Advance with respect to
a Unit shall be subject both to the satisfaction of the conditions set forth in
this Section 4 and to the receipt by Owner and any Assignee of the documents set
forth in this Section 4, in each case in form and substance reasonably
satisfactory to Owner and any Assignee. Owner and any Assignee shall have at
least five (5) Business Days to review the Acquisition Certificate and its
attachments prior to making any Initial Advance.
The following are the documents to be received by Owner and
the conditions to be satisfied:
(a) Lease. With respect to the first advance only under this
Agreement, a fully executed copy of the Lease.
(b) Acquisition Certificate. A duly executed copy of the
Acquisition Certificate the statements in which shall be true.
(c) Warranty Deed. Where fee title is being acquired by Owner,
a photocopy of the executed purchase and sale agreement and the
warranty deed to be executed and delivered at the closing of the
acquisition of Owner's fee interest in such Unit Premises, conveying
marketable title to Owner, free of all Liens other than Permitted
Liens. For purposes of the Initial Advance, Permitted Liens shall not
include any mechanics' liens or materialmen's liens, or any taxes,
assessments, governmental charges or levies, except to the extent that
such taxes, assessments,
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governmental charges or levies are due and payable but not yet
delinquent, and have been properly apportioned with the seller at
closing.
(d) Memorandum of Lease Agreement. Except with respect to the
Ammonia Project, two original counterparts of a memorandum of lease
agreement in the appropriate form for recording in the jurisdiction in
which the Unit Premises is located, executed by Agent, as lessee, and
otherwise reasonably acceptable to Owner and Assignee.
(e) Ground Lease. Where a leasehold interest is being acquired
by Owner, a true and complete copy of the Site Lease, the Sublease and
each other Ground Lease, including a true and complete copy of the
legal description of the Unit Premises, executed or intended to be
executed and delivered at the closing of the acquisition of Owner's
leasehold interest, in a form approved by Owner, and complying in all
respects with this Agreement and with Section 28 of the Lease, and not
subject to any Liens other than Permitted Liens, along with a
memorandum of ground lease in statutory recordable form and any
necessary estoppel certificates, recognition and attornment agreements,
confirmations, and subordinations required by Owner's and any
Assignee's counsel regarding the Ground Lease. For purposes of the
Initial Advance, Permitted Liens shall not include any taxes,
assessments, governmental charges or levies, except to the extent that
such taxes, assessments, governmental charges or levies are due and
payable but not yet delinquent.
(f) Taxes. Certification by Agent that all past and current
taxes and assessments (excluding those which are due and payable but
not yet delinquent) applicable in respect of the acquisition of the
Unit or any component thereof by Owner, its leasing to Agent, or
otherwise in connection with the transactions contemplated hereby, and
in respect of the Unit Premises have been paid in full.
(g) Title Information. A copy of the underlying documents of
record affecting fee title to the Unit Premises from the appropriate
Governmental Authority, or such other evidence in respect of title as
Owner may reasonably request.
(h) Survey. A current survey or an update of an existing
survey of the Unit Premises prepared by a licensed public land
surveyor, and dated a date within one hundred eighty (180) days prior
to the date of the Initial Advance.
(i) Availability of Access Rights and Utilities. Certification
by Agent that all easements, licenses, rights of way, access rights and
utility services and facilities (including, without limitation, gas,
electrical, water and sewage services and facilities) (i) which are
necessary and required during the construction period have been
completed or will be available in such a manner as to assure Owner that
construction will not be impeded by a lack thereof and (ii) which are
necessary for the occupancy of the Unit and the installation of the
Unit Improvements thereon
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and for the completion and operation of the Unit in accordance with the
Unit Plans are or will be completed in such a manner and at such a time
as will assure the completion and operation of the Unit on or before
the Unit Completion Date.
(j) Permits. Certification by Agent that all Permits and
governmental approvals required for the construction of the Unit
Improvements (other than the governmental approval of the Town and
Country Planning Authority of the Republic of Trinidad and Tobago,
which approval will be obtained prior to completion of construction of
the Ammonia Project) have been or will be issued or obtained in such a
manner as to assure Owner that construction will not be impeded by a
lack thereof and all such Permits and governmental approvals required
therefor which have been issued or obtained are in full force and
effect.
(k) Opinions of Counsel for Agent. An opinion of Xxxxx
Xxxxxxxxxx, counsel for Agent, in form and substance reasonably
satisfactory to Owner and Assignee, an opinion of counsel for Agent
licensed in the Republic of Trinidad and Tobago, in form and substance
reasonably satisfactory to Owner and Assignee.
(l) Construction Agreements. A fully executed and complete
copy of each Construction Agreement or, if each such Construction
Agreement has not been executed on such date, a copy of the letter
agreement, dated February 16, 1996 between Owner and The X.X. Xxxxxxx
Company with respect to construction of the Ammonia Project, a copy of
the interim work scope set forth in the four "Schedule A" books dated
January, 1996, and a copy of the letter agreement dated March 14, 1996,
between The X.X. Xxxxxxx Company and Owner with respect to the
anticipated cost and construction period with respect to the completion
of the Ammonia Project.
(m) Consent and Acknowledgement Documentation. Fully executed
originals of the Point Lisas Agreement, the XXXX Agreement and the
Ancillary Facility Agreement Consents (other than the Ancillary
Facility Consent of the National Energy Corporation of Trinidad and
Tobago Limited).
(n) Unit Plans. A copy of the Unit Plans satisfactory to Owner
and Assignee.
(o) Unit Budget. A copy of the Unit Budget and certification
by Agent that such Unit Budget is (i) true, complete and correct, (ii)
accurately representative at the time of delivery of all expected costs
to Owner of the Unit and (iii) within the dollar limits set forth in
the first sentence of subsection 2.2 hereof.
(p) Certificates of Insurance. Certificates of insurance or
other evidence reasonably acceptable to Owner certifying that the
insurance then carried or maintained on the Unit required by subsection
9.3 hereof complies with the terms of such subsection.
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THIS AGREEMENT FOR LEASE IS
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(q) Request for Advance. A duly executed AIA Document G722 (or
substantially similar document), stating the total amount of the
Initial Advance requested, the date on which the advance is to be made,
the name, address and, if applicable, the escrow reference number of
the escrow or closing agent or party to whom the Initial Advance is to
be tendered, wiring instructions and an itemization of the various
costs constituting the amount of the Initial Advance in such detail as
will be necessary to provide disbursement instructions to the escrow or
closing agent, including, specifically, an accounting of all
expenditures for costs shown on the Unit Budget for which payment or
reimbursement is being requested with respect to the Unit. A form of
AIA Document G722 is attached hereto as Exhibit O.
(r) Environmental Certificate and Report. An environmental
certificate in the form of Exhibit H hereto, duly executed by the
general partner of Agent, and an environmental report satisfactory to
Owner and any Assignee in all respects, prepared by the Environmental
Consultant. If Owner or Assignee shall reasonably require additional
assurance as to any matter or matters contained or not adequately
addressed in such environmental report, Owner or Assignee may require
that further investigation be conducted and a supplemental or
additional environmental report with respect to such matter or matters,
satisfactory to Owner and Assignee in all respects, be delivered.
(s) Use of Proceeds, No Liens and Representations of Agent.
(i) All costs and expenses which are the subject of the Initial Advance
requested have been paid in full or will be paid in full out of the
proceeds of the Initial Advance, (ii) there are no Liens on the Unit of
which Agent has knowledge that are not Permitted Liens, (iii) all
representations and warranties made in this Agreement, in the Lease and
in connection with the Initial Advance, are and remain true and correct
in all material respects on and as of the date of the Initial Advance
(except to the extent such representations and warranties expressly
relate specifically to an earlier date) and (iv) no Event of Default,
Potential Default or, with respect to the Unit for which the Initial
Advance is requested, Casualty Event, Event of Unit Termination or
Potential Event of Unit Termination, under this Agreement has occurred
and is continuing on the date such Initial Advance is to be made or by
reason of giving effect to such Initial Advance.
(t) Project Documents. With respect to the Ammonia Project,
copies of each Project Document.
(u) Appraisal. With respect to the Ammonia Project, an
appraisal prepared by Xxxxxx Xxxxxxxx & Co., which appraisal shall
include (i) a "value in use" fair market valuation of at least
$285,000,000 as of the date of Substantial Completion of the Ammonia
Project and (ii) a "value in use" fair market valuation of the Ammonia
Project of at least $199,500,000 as at March 31, 2003.
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(v) Assignment Agreement. With respect to the Ammonia Project,
an executed Assignment Agreement with respect to the Ancillary Facility
Agreements (other than an Assignment Agreement relating to the
Savonetta Pier User Agreement) and the License Agreements.
(w) Unit FF&E Specifications. A true and complete copy of the
Unit FF&E Specifications with respect to the Unit.
SECTION 5. CONDITIONS PRECEDENT TO OWNER'S OBLIGATION TO MAKE
INTERIM ADVANCES AFTER THE INITIAL ADVANCE WITH
RESPECT TO A UNIT
Owner's obligation to make any Interim Advance with respect to
a Unit after the Initial Advance with respect to such Unit shall be subject to
the satisfaction of the conditions set forth in this Section 5 and to the
receipt by Owner and any Assignee of the documents set forth in this Section 5,
in each case in form and substance reasonably satisfactory to Owner and any
Assignee. Owner and any Assignee shall have at least five (5) Business Days to
review the Interim Advance Certificate and its attachments prior to making any
Interim Advance.
The following are the documents to be received by Owner and
any Assignee and the conditions to be satisfied:
(a) Interim Advance Certificate. A duly executed Interim
Advance Certificate the statements in which shall be true.
(b) Continuing Representations of Agent. All representations
and warranties made in this Agreement, in the Lease, and in connection
with the Interim Advance, are and remain true and correct in all
material respects on and as of the date of the Interim Advance as if
made on and as of the date of the Interim Advance (except to the extent
such representations and warranties expressly relate specifically to an
earlier date) and no Event of Default, Potential Default or, with
respect to the Unit for which such Interim Advance is requested,
Casualty Event, Event of Unit Termination or Potential Event of Unit
Termination, under this Agreement has occurred and is continuing on the
date such Interim Advance is to be made or by reason of giving effect
to such Interim Advance.
(c) Construction Progress. If reasonably requested in writing
by Owner or any Assignee at least three (3) Business Days prior to the
making of an Interim Advance, Owner shall have received and approved
(i) an inspection report from an independent party satisfactory to
Owner or any Assignee, if any, covering conformity of the work to the
Unit Plans, quality of work completed, percentage of work completed and
(ii) true copies of unpaid invoices, receipted bills and Lien waivers,
and such other reasonably available supporting information as Owner or
any Assignee may reasonably request.
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(d) Evidence of Compliance. Agent shall furnish Owner and any
Assignee with such additional or updated documents, reports,
certificates, affidavits and other information, in form and substance
reasonably satisfactory to Owner and any Assignee in its reasonable
judgment, as Owner and any Assignee may reasonably require to evidence
compliance by Agent with all of the provisions of this Agreement.
(e) Request for Advance. A duly executed AIA Document G722 (or
a substantially similar document), stating the total amount of the
Interim Advance requested, the date on which such Interim Advance is to
be made, and a specific breakdown of items and costs for which the
Interim Advance is being made.
(f) No Other Security Interests. All materials and fixtures
incorporated in the construction of the Unit Improvements have been
purchased so that title thereto or a leasehold interest therein, as the
case may be, shall have vested in Owner immediately upon delivery
thereof to the Unit Premises, except for Permitted Liens, and Agent
shall have produced and furnished, if requested in writing by Owner at
least three (3) Business Days prior to the making of an Interim
Advance, the contracts, bills of sale, statements, receipted vouchers,
or other documents under which title thereto or a leasehold interest
therein is claimed; provided that, if Agent does not have any documents
under which title thereto or a leasehold interest thereon is claimed,
upon Owner's request, Agent shall use commercially reasonable efforts
to obtain such documents.
(g) Statement of Expenditures. If requested in writing by
Owner, Agent or any General Contractor shall supply Owner with a
statement setting forth the names, addresses and amounts due or to
become due as well as the amounts previously paid to every contractor,
subcontractor or Person furnishing materials, performing labor or
entering into the construction of any part of the Unit Improvements.
(h) Construction Agreements. If not previously delivered to
Owner, a fully executed and complete copy of any Construction Agreement
in effect on such date.
SECTION 6. CONDITIONS PRECEDENT TO THE FINAL ADVANCE
WITH RESPECT TO A UNIT
Owner's obligation to make the Final Advance with respect to a
Unit shall be subject to the satisfaction of the conditions set forth in this
Section 6 and to the receipt by Owner and any Assignee of the documents set
forth in this Section 6, in each case in form and substance reasonably
satisfactory to Owner and any Assignee. When all of the conditions set forth in
this Section 6 shall have been satisfied to the reasonable satisfaction of Owner
and any Assignee, Substantial Completion of a Unit shall be deemed to occur.
Owner and any Assignee shall have at least five (5) Business Days to review the
Certificate of Substantial Completion and its attachments prior to making a
Final Advance.
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The following are the documents to be received by Owner and
any Assignee and the conditions to be satisfied:
(a) Certificate of Substantial Completion. A duly executed
Certificate of Substantial Completion the statements in which shall be
true.
(b) Construction and Equipping of the Unit. The Unit
Improvements (including all interior finish work, but exclusive of
punch list items) have been completed within the Unit Budget and in all
material respects in accordance with the Unit Plans and are accepted by
Agent.
(c) Permits. All Permits and governmental approvals with
respect to the Unit shall have been issued or obtained and shall be in
full force and effect.
(d) Liens. The Unit, including interior finish work, has been
completed as contemplated in paragraph (c) above, free of all Liens,
except for Permitted Liens (all of which are to be itemized as to the
nature, amount, claimant and status), and there are no current
Permitted Contests with respect to the Unit (or, if any, the nature,
amount, claimant and status thereof).
(e) Final Survey. A final survey showing the completed Unit
Improvements, all easements on the Unit Premises, and indicating the
location of access to the Unit Premises and all utility and water
easements directly affecting the Unit Premises.
(f) Utilities. Connection has been made to all appropriate
utility facilities and the Unit Improvements are ready for occupancy
and operation.
(g) Continuing Representations of Agent. All representations
and warranties made in this Agreement, in the Lease, and in connection
with the Final Advance are to remain true and correct in all material
respects on and as of the date of the Final Advance (except to the
extent such representations and warranties expressly relate
specifically to an earlier date) as if made on and as of the date of
the Final Advance and no Event of Default, Potential Default or, with
respect to the Unit for which the Final Advance is requested, Casualty
Event, Event of Unit Termination or Potential Event of Unit
Termination, under this Agreement has occurred and is continuing on the
date such Final Advance is to be made or by reason of giving effect to
such Final Advance.
(h) AFL Unit Leasing Record. An AFL Unit Leasing Record
prepared and duly executed by Agent. All Unit Premises and Unit
Improvements included in the Ammonia Project shall be included on one
(1) AFL Unit Leasing Record.
(i) Request for Advance. A duly executed AIA Document G722 (or
a substantially similar document), stating the total amount of the
Final Advance
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requested, the date on which such advance is to be made, wiring
instructions and a specific breakdown of items and costs for which the
Final Advance is to be made.
SECTION 7. CONDITIONS PRECEDENT TO THE COMPLETION
ADVANCE WITH RESPECT TO A UNIT
Owner's obligation to make the Completion Advance with respect
to a Unit shall be subject to the satisfaction of the conditions set forth in
this Section 7 and to the receipt by Owner and any Assignee of the documents set
forth in this Section 7, in each case in form and substance reasonably
satisfactory to Owner and Assignee. The amount of the Completion Advance shall
not cause the Unit Acquisition Cost of a Unit to exceed the Unit Budget. The
proceeds of the Completion Advance shall be used to pay in full all costs
relating to completion of such Unit for which Agent has received invoices
subsequent to such Effective Date. Owner and any Assignee shall have at least
five (5) Business Days to review the Certificate of Increased Cost and its
attachments prior to making the Completion Advance.
The following are the documents to be received by Owner and
any Assignee and the conditions to be satisfied:
(a) Certificate of Increased Cost. A duly executed Certificate
of Increased Cost the statements in which shall be true.
(b) Continuing Representations of Agent. All representations
and warranties made in this Agreement, in the Lease, and in connection
with the Completion Advance are and remain true and correct in all
material respects on and as of the date of the Completion Advance
(except to the extent such representations and warranties expressly
relate specifically to an earlier date) as if made on and as of the
date of the Completion Advance and no Event of Default, Potential
Default or, with respect to the Unit for which the Completion Advance
is requested, Casualty Event, Event of Unit Termination or Potential
Event of Unit Termination under this Agreement has occurred and is
continuing on the date such Completion Advance is to be made or by
reason of giving effect to such Completion Advance.
(c) Request for Advance. A duly executed AIA Document G722 (or
a substantially similar document), stating the total amount of the
Completion Advance requested, the date on which such advance is to be
made, wiring instructions and a specific breakdown of items and costs
for which the Completion Advance is to be made.
(d) Revised AFL Unit Leasing Record. A revised AFL Unit
Leasing Record prepared by Agent pursuant to subsection 2.3(b) hereof.
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SECTION 8. REPRESENTATIONS AND WARRANTIES OF AGENT
Agent represents and warrants to Owner now and on the date of
each advance that:
8.1 Partnership Matters. Agent (i) has been duly organized and
is validly existing as a limited partnership in good standing under the laws of
the State of Delaware, (ii) has full power, authority and legal right to own and
operate its properties and to conduct its business as presently conducted and to
execute, deliver and perform its obligations under this Agreement and any other
Operative Document to which it is or is to be a party and to consummate the
transactions contemplated hereby and by the other Operative Documents and (iii)
to the best of its knowledge after due inquiry, is duly qualified to do business
as a foreign limited partnership in good standing in each jurisdiction in which
its ownership or leasing of properties or the conduct of its business or the
consummation of the transactions contemplated hereby and by the other Operative
Documents requires such qualification, except where the failure to so qualify
would not materially impair the ability of Agent to perform its obligations
hereunder or under the other Operative Documents. The sole general partner of
Agent is Arcadian Corporation.
8.2 Power and Authority. The consummation by Agent of the
transactions contemplated by the Operative Documents and the execution, delivery
of and performance and observance by Agent of its obligations under this
Agreement and the other Operative Documents to which it is or is to be a party
have been duly authorized by all necessary action on the part of the partners of
Agent. None of the execution, delivery and performance by Agent of this
Agreement or any other Operative Document to which Agent is or is to be a party
will result in any violation of any term of the certificate of limited
partnership or the partnership agreement of Agent, or require the approval or
consent of any limited partner or general partner of Agent except such as have
been obtained prior to the date hereof and will not conflict with or result in a
breach in any material respect of any terms or provisions of, or constitute a
default under, or result in the creation or imposition of any Lien (other than a
Permitted Lien) upon any property or assets of Agent under, any indenture,
mortgage or other agreement or instrument to which Agent is a party or by which
it or any of its property is bound, or any existing applicable law, rule,
regulation, license, judgment, order or decree of any Governmental Authority or
court having jurisdiction over Agent or any of its activities or properties.
8.3 Binding Agreement. Each of this Agreement and each other
Operative Document to which Agent is or is to be a party has been duly
authorized and has been or will be duly executed and delivered by Agent and,
assuming the due authorization, execution and delivery of this Agreement and any
other such Operative Document by the parties thereto other than Agent, this
Agreement is, and each such other Operative Document when executed and delivered
will be, the legal, valid and binding obligation of Agent, enforceable against
Agent according to their terms, subject, as to enforceability, to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
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8.4 No Litigation. Except as described in Exhibit N hereto,
there is no action, suit, proceeding or investigation at law or in equity by or
before any court, governmental body, agency, commission or other tribunal now
pending or, to the knowledge of Agent, threatened against or affecting Agent or
any property or rights of Agent which questions the enforceability of this
Agreement or any other Operative Document or which affects any or relates to any
Unit Premises, Unit Improvements, Unit FF&E or Unit or which, if adversely
determined, would have a reasonable possibility of causing a material adverse
impact on the business of Agent in the aggregate or would materially impair the
ability of Agent to perform its obligations hereunder or under any other
Operative Document.
8.5 Consents, Approvals, Authorizations, Etc. There are no
consents, licenses, orders, authorizations, approvals, waivers, extensions or
variances of, or notices to or registrations or filings with (each a
"Governmental Action"), any Governmental Authority or public body or authority
in any jurisdiction which are or will be required in connection with or are
necessary to the valid execution, delivery and performance of this Agreement or
any other Operative Document or any Governmental Action (i) which is or will be
required in connection with any participation by Owner in the transactions
contemplated by, or the exercise of remedies or the enforcement of rights by
Owner under, this Agreement or any other Operative Document, any xxxx of sale,
deed, assignment, assumption, ownership agreement, or operating agreement
relating to any Unit Premises, Unit Improvements, Unit FF&E or Unit or (ii)
which is or will be required to be obtained by Owner, Agent, any Assignee or an
Affiliate of the foregoing, during the term of this Agreement, with respect to
any Unit Premises, Unit Improvements, Unit FF&E or Unit except the Governmental
Action of the Town and Country Planning Authority of the Republic of Trinidad
and Tobago, which Governmental Action Agent reasonably believes will be obtained
in the normal course prior to the completion of construction of the Ammonia
Project, and such other Governmental Actions (A) as have been duly obtained,
given or accomplished, with true copies thereof delivered to Owner, (B) as may
be required by applicable law not now in effect, (C) which, individually or in
the aggregate, if not obtained or effected, (x) will not place either Owner or
any Assignee in any danger of any monetary civil liability for which Owner or
any Assignee is not adequately indemnified (Agent's obligations under Section 12
of this Agreement shall be deemed to be adequate indemnification if no Event of
Default exists) or any other material civil liability or penalty or subject
Owner or any Assignee to any criminal liability as a result of a failure to
comply therewith, (y) will not result in a material diminution in the value of
any Unit Premises, Unit Improvements, Unit FF&E or Unit or in any material risk
of the loss, sale or forfeiture or loss of use of any thereof, and (z) will not
materially impair the ability of Agent to perform its obligations hereunder, (D)
as may be required for the construction or operation of the Ammonia Project and
have been or will be timely obtained or (E) which may be required as a result of
the business, properties or activities of Owner, any Assignee or any Affiliate
of the foregoing and which are not solely dependent on the nature of the Unit
Premises, Unit Improvements, Unit FF&E or Units or the business of Agent.
8.6 Compliance with Legal Requirements and Insurance
Requirements. The construction, operation, use, and physical condition of each
Unit Premises, the Unit
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Improvements, Unit and item of Unit FF&E comply with all Legal Requirements and
Insurance Requirements; except any Legal Requirements, the non-compliance with
which, individually or in the aggregate, (i) will not place either Owner or any
Assignee in any danger of any monetary civil liability which Owner or any
Assignee is not adequately indemnified for (Agent's obligations under Section 12
of this Agreement shall be deemed to be adequate indemnification if no Event of
Default exists) or any other material civil liability or penalty or subject
Owner or any Assignee to any criminal liability as a result of a failure to
comply therewith and (ii) will not result in a material diminution in the value
of any Unit Premises, Unit Improvements, Unit FF&E or Unit or in any material
risk of the loss, sale or forfeiture or loss of use of any thereof.
8.7 No Default. Agent is not in violation of or in default
under or with respect to any Legal Requirement in any respect which could have a
materially adverse effect on the business, operations, properties or financial
or other condition of Agent, or which could materially adversely affect the
ability of Agent to perform its obligations under this Agreement or any other
Operative Document to which Agent is or is to be a party.
8.8 Ownership; Liens. No Unit Premises, Unit Improvements,
Unit FF&E or Unit is subject to any Lien, except for Permitted Liens.
8.9 Financial Statements. Agent has furnished to Owner copies
of its annual audited consolidated financial statements for the year ended
December 31, 1994 and copies of its quarterly unaudited consolidated financial
statements (balance sheet, income statement and cash flow statement) for the
quarters ended September 30, 1995 and December 31, 1995. The financial
statements contained in such documents fairly present in all material respects
the financial position, results of operations and statements of cash flows of
Agent as of the dates and for the periods indicated therein and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis.
8.10 Changes. Since September 30, 1995, there has been no
material adverse change in the financial condition or business of Agent in the
aggregate nor any change which would materially impair the ability of Agent to
perform its obligations under this Agreement or any other Operative Document to
which Agent is or is to be a party.
8.11 Suitability of Each Unit Premises. Each Unit Premises is
suitable in all material respects (including, without limitation, ground
conditions, utilities, and condition of title) for the construction and
operation of the related Unit Improvements in all material respects in
accordance with the related Unit Plans.
8.12 ERISA. (a) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan.
(b) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA, of each
Plan exceeds 90 percent, other than with respect to Plans whose unfunded current
liability does not exceed
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$1,000,000 in the aggregate, and there has been no material adverse change in
the funding status of any such Plan since such date.
(c) Agent has not incurred or is reasonably expected to incur
any Withdrawal Liability to any Multiemployer Plan.
(d) Agent has not been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(e) Except as set forth in the financial statements referred
to in subsection 8.9 hereof, Agent and its Subsidiaries have no material
liability with respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
(f) The execution and delivery of this Agreement will not
involve any non-exempt "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code.
8.13 Ground Lease. Each Ground Lease is a Mortgageable Ground
Lease except to the extent agreed to in writing by Owner and Assignee, and is in
full force and effect and has not been modified, amended or changed in any
manner that has not been approved in writing by Owner, nor is there any material
default under any Ground Lease nor event which, with the giving of notice or the
passage of time or both, would constitute a default under such Ground Lease, nor
to the best knowledge of Agent has any party under any Ground Lease commenced
any action or given or received any notice for the purpose of terminating any
Ground Lease.
8.14 Operating Agreement. The Operating Agreement has been
duly authorized, executed and delivered by the Operator and, assuming the due
authorization, execution and delivery of the Operating Agreement by Owner, is a
legal, valid and binding obligation of the Operator, enforceable according to
its terms.
8.15 Gas Contract. The Gas Contract has been duly authorized
and will be duly executed and delivered by an Affiliate of Agent and, assuming
the due authorization, execution and delivery of the Gas Contract by any party
to the Gas Contract other than an Affiliate of Agent, when executed and
delivered will be a legal, valid and binding obligation of such Affiliate of
Agent, enforceable according to its terms.
8.16 Ancillary Facility Agreements. Each Ancillary Facility
Agreement has been duly authorized, and has been or will be duly executed and
delivered by Agent or an Affiliate of Agent and, assuming the due authorization,
execution and delivery of each Ancillary Facility Agreement by the parties
thereto other than Agent or an Affiliate of Agent, when executed and delivered
will be a legal, valid and binding obligation of Agent or such Affiliate,
enforceable according to its terms.
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SECTION 9. AFFIRMATIVE COVENANTS
Agent hereby agrees that, so long as this Agreement remains in
effect, Agent shall keep and perform fully each and all of the following
covenants:
9.1 Performance under Other Agreements. Agent shall duly
perform and observe in all material respects all of the covenants, agreements
and conditions on its part to be performed and observed hereunder and under each
other Operative Document to which it is or is to be a party, except to the
extent that Agent's obligation in respect of such covenant, agreement or
condition may be subject to a Permitted Contest.
9.2 No Encroachments. The Unit Improvements shall be
constructed entirely on the related Unit Premises and shall not encroach upon or
overhang (unless consented to by the affected property owner or permitted by the
terms of any easement, license or right-of-way agreement) any easement or
right-of-way or the land of others, and when erected shall be wholly within any
building restriction lines, however established. If Owner shall have a
reasonable basis to believe any Unit Improvements are not in compliance with
this subsection 9.2, Owner may request, and Agent shall furnish from time to
time satisfactory evidence of compliance with the foregoing covenants,
including, without limitation, a survey prepared by a surveyor or engineer. If
any discrepancies exist between the legal description set forth on the survey
described in Section 4(h) hereof and the final as-built survey described in
Section 6(f) hereof, Owner and Agent shall cooperate, at Agent's expense, in
amending the legal descriptions in all recorded documents creating or
encumbering or otherwise affecting the Unit Premises, including, without
limitation, any easements, to reflect the correct as-built description.
9.3 Insurance.
(a) Insurance with respect to each Unit Premises, the Unit
Improvements, Unit FF&E and Unit. Agent will maintain or cause to be maintained
on each Unit Premises, the Unit Improvements, Unit FF&E and Unit insurance of
the same types, in the same amounts and on the same terms and conditions as the
insurance required by paragraph (c) through (l) of Section 10 of the Lease,
except that the terms "Owner", "Agent" and "this Agreement" shall substitute for
the terms "the Lessor", "the Lessee" and "this Lease", respectively, the phrase
"Unit Premises, Unit Improvements, Unit FF&E and Unit" shall substitute for the
phrase "Parcel of Property" or "Property", references to "Equipment" or "Unit of
Equipment" shall be deemed deleted, and the phrase "Unit Acquisition Cost" shall
substitute for the phrase "Acquisition Cost"; provided, that in lieu of the
insurance required by paragraph (c)(i) of Section 10 of the Lease, Agent shall,
as Owner's agent, maintain or cause to be maintained for Owner All Risk
Builders' Risk Completed Value Non-Reporting Form Insurance, including collapse
coverage and fire insurance with extended coverage, in an amount not less than
one hundred percent (100%) of the completed insurable value of the respective
Unit Improvements and Unit FF&E; provided however, that with respect to the
Ammonia Project, Agent shall not be required to maintain or cause to be
maintained All Risk Builders' Risk Completed Value Non-Reporting Form Insurance
until such date as any Unit
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Improvements or Unit FF&E relating to the Ammonia Project are located in the
Republic of Trinidad and Tobago. The term "completed insurable value" as used
herein means the actual replacement cost, including the cost of debris removal,
but excluding the cost of constructing foundation and footings. Such insurance
may provide for such deductibles and Agent may self-insure with respect to the
required coverage to the extent consistent with Agent's customary practice with
respect to similar property owned by Agent.
(b) Use or Operation of Unit Premises, Unit Improvements, Unit
FF&E or Unit. Agent covenants that it will not use, carry on construction with
respect to, or occupy any Unit or permit the use, construction, or occupancy of
any Unit Premises, Unit Improvements, Unit FF&E or Unit at a time when the
insurance required by paragraph (a) of this subsection is not in force with
respect to such Unit Premises, Unit Improvements, Unit FF&E or Unit.
(c) Construction Bonding. In order to secure the performance
by the General Contractor for the Ammonia Project of its obligations under its
Construction Agreement, Agent shall furnish to Owner and maintain the
Construction Agreement Surety in such amounts and for such durations as may be
required pursuant to such Construction Agreement.
9.4 Inspection. Upon at least five (5) Business Days written
notice (or upon two (2) Business Days written notice if an Event of Default
shall have occurred and be continuing), Owner or Assignee or any authorized
representatives of either of them, shall have during reasonable business hours
the right of entry and free access to each Unit Premises, the Unit Improvements,
Unit FF&E and each Unit and the right to inspect all work done, labor performed
and materials furnished in and about each Unit Premises, the Unit Improvements,
Unit FF&E and each Unit and at reasonable times the right to inspect all
contracts of Agent relating to each Unit Premises, the Unit Improvements, Unit
FF&E and each Unit, but neither Owner nor any Assignee shall have any duty to
make any such inspection; provided that Agent shall be permitted to withhold
from Owner or any Assignee any information with respect to its business or work
products not related to any Unit Premises, Unit Improvements, Unit FF&E or Unit.
Owner may recover from Agent (i) the reasonable costs and expenses associated
with any inspection of the Ammonia Project, in an amount not to exceed, when
aggregated with (A) the expenses referred to in clause (i) of paragraph (d) of
Section 8 of the Lease, and (B) the fees and expenses of Owner and any Assignee
for engineering and legal services, $650,000 in the aggregate, (ii) the
reasonable costs and expenses associated with any such inspection which are
incurred following the occurrence and during the continuation of any Event of
Default throughout the term of this Agreement and (iii) all of Owner's and any
Assignee's mortgage recordation, lien and filing fees, and all out-of-pocket
expenses of Owner's legal counsel and any Assignee's legal counsel, and all
out-of-pocket expenses of any Assignee. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, Agent shall not be required to
reimburse Owner for any of the foregoing costs and expenses to the extent such
costs and expenses are capitalized by Owner in Unit Acquisition Cost.
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9.5 Expenses. Agent shall pay, whether or not Owner is
obligated to make any Advance under Sections 3 through 7 hereof, upon demand all
obligations, costs and expenses incurred in good faith by Owner with respect to
any and all transactions contemplated herein and the preparation of any document
reasonably required hereunder and the prosecution or defense of any action or
proceeding or other litigation affecting Agent or any Unit Premises, Unit
Improvements, Unit FF&E or Unit, including (without limiting the generality of
the foregoing) all Financing Costs not capitalized by Owner in Unit Acquisition
Cost and amounts required to reimburse Owner for its obligations, costs and
expenses arising in connection with the termination of any Credit Agreement
(whether as a result of a default thereunder or otherwise), costs incurred in
connection with obligations of Owner under or in respect of any interest rate
swap, cap, collar or other financial hedging arrangement, including without
limitation costs incurred by Owner under any such arrangement to reduce the
notional amount thereof by the amount of any prepayment of any borrowing to
which such interest rate swap, cap, collar or other financial hedging
arrangement relates, title and conveyancing charges, recording and filing fees
and taxes, title search fees, rent under the Ground Leases, mortgage taxes,
intangible personal property taxes, escrow fees, revenue and tax stamp expenses,
insurance premiums (including title insurance premiums), brokerage commissions,
finders' fees, placement fees, court costs, surveyors', photographers',
appraisers', architects', engineers', accountants' and reasonable attorneys'
fees and disbursements, and will reimburse to Owner all expenses paid by Owner
of the nature described in this subsection 9.5 which have been or may be
incurred by Owner with respect to any and all of the transactions contemplated
herein. In the event Agent shall fail to reimburse Owner within ten (10)
Business Days after presentation of a xxxx and demand for payment therefor,
Owner may pay or deduct from the advances to be made any of such expenses and
any proceeds so applied shall be deemed advances under this Agreement, and
deducted from the total funds available to Agent under this Agreement.
Notwithstanding anything to the contrary contained in the foregoing, Agent shall
not be required to reimburse Owner for any of the foregoing obligations, costs
and expenses which constitute properly capitalizable costs under generally
accepted accounting principles. Expenses incurred by Owner (including, without
limitation, Financing Costs) in financing obligations, costs and expenses
pending allocation as a capitalized cost to a Unit shall be payable by Agent
hereunder, if not capitalized by Owner. Agent shall not be required to pay any
start-up costs associated with the commencement of operations at the Ammonia
Project or any related operating costs associated with the Ammonia Project,
which costs and expenses shall be borne by the Operator under the Operating
Agreement.
9.6 Certificates; Other Information. Agent shall furnish to
Owner:
(a) concurrently with the delivery of the financial statements
referred to in subsection 9.6(b) hereof, a certificate of a Responsible
Officer stating that, to the best of such Responsible Officer's
knowledge, Agent during such period has observed or performed in all
material respects all of its covenants and other agreements, and
satisfied in all material respects every condition contained in this
Agreement and in the Construction Documents to be observed, performed
or
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satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Event of Default or Potential Default except as
specified in such certificate;
(b) from time to time, (i) promptly upon their becoming
available (but in any event, within 120 days after the end of each
fiscal year with respect to annual statements and within 90 days after
the end of each fiscal quarter with respect to quarterly statements),
copies of Agent's annual consolidated audited financial statements and
quarterly consolidated unaudited financial statements (balance sheet,
income statement and cash flow statement), (ii) promptly upon request,
such other information with respect to Agent's operations, business,
property, assets, financial condition or litigation as Owner shall
reasonably request, (iii) promptly after a Responsible Officer of Agent
obtains knowledge of any Event of Default or Potential Default or Event
of Unit Termination or Potential Event of Unit Termination or Casualty
Event, a certificate of a Responsible Officer of Agent specifying to
the extent known the nature and period of existence of such Event of
Default or Potential Default or Event of Unit Termination or Potential
Event of Unit Termination or Casualty Event, and what action, if any,
Agent has taken, is taking, or proposes to take with respect thereto
and (iv) promptly after a Responsible Officer of Agent obtains
knowledge of any material adverse change in the financial condition or
business of Agent or of any litigation of the type described in
subsection 8.4 hereof, a certificate of a Responsible Officer of Agent
describing such change or litigation as the case may be.
9.7 Conduct of Business and Maintenance of Existence. Agent
shall preserve, renew and keep in full force and effect its existence as a
limited partnership (except as otherwise permitted herein), and take all
reasonable action to maintain all rights, privileges and franchises material to
the conduct of its business, and comply with all Legal Requirements; except any
Legal Requirements, the non-compliance with which, individually or in the
aggregate, (i) will not place either Owner or any Assignee in any danger of any
monetary civil liability which Owner or any Assignee is not adequately
indemnified for (Agent's obligations under Section 12 of this Agreement shall be
deemed to be adequate indemnification if no Event of Default exists) or any
other material civil liability or penalty or subject Owner or any Assignee to
any criminal liability as a result of a failure to comply therewith and (ii)
will not result in a material diminution in the value of any Unit Premises, Unit
Improvements, Unit FF&E or Unit or in any material risk of the loss, sale or
forfeiture or loss of use of any thereof; provided, however, that nothing
contained in this subsection 9.7 shall prevent Agent from ceasing or omitting to
exercise any rights, privileges or franchises which in the reasonable judgment
of Agent can no longer be profitably exercised or prevent Agent from selling,
abandoning or otherwise disposing of any property, the retention of which in the
reasonable judgment of Agent is inadvisable in relation to the business of
Agent, or prevent any liquidation of any subsidiary of Agent, or any merger,
consolidation or sale, permitted by the provisions of subsection 10.2 hereof.
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9.8 Notices. Agent shall give notice to Owner promptly upon
the occurrence of:
(a) any notice given by or to Agent pursuant to any of the
Construction Documents that a default has occurred thereunder;
(b) any condition which results or is reasonably likely to
result in a Force Majeure Delay in completion of the Unit Improvements
that is reasonably likely to extend the Unit Completion Date (without
taking into account any Force Majeure Delay);
(c) the termination of the Note Agreement, or upon the Note
Agreement ceasing to be in full force and effect or the occurrence of
any "Event of Default" or "Potential Default" under the Lease; and
(d) notices received from the lessor under any Ground Lease.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action, if any, Agent proposes to take with respect thereto.
9.9 Legal Requirements and Insurance Requirements. Agent shall
comply with every Insurance Requirement and Legal Requirement affecting (i) the
execution, delivery and performance of this Agreement and the Construction
Documents to which Agent is a party and (ii) any Unit Premises, Unit
Improvements, item of Unit FF&E or Unit, and Agent will not do or permit any act
or thing which is contrary to any Insurance Requirement or which is contrary to
any Legal Requirement; except any Legal Requirements, the non-compliance with
which, individually or in the aggregate, (i) will not place either Owner or any
Assignee in any danger of any monetary civil liability which Owner or any
Assignee is not adequately indemnified for (Agent's obligations under Section 12
of this Agreement shall be deemed to be adequate indemnification if no Event of
Default exists) or any other material civil liability or penalty or subject
Owner or any Assignee to any criminal liability as a result of a failure to
comply therewith and (ii) will not result in a material diminution in the value
of any Unit Premises, Unit Improvements, Unit FF&E or Unit or in any material
risk of the loss, sale or forfeiture or loss of use of any thereof.
9.10 Payment of Taxes. With respect to any Unit Premises, Unit
Improvements, Unit FF&E or Unit, Agent shall make all required reports to the
appropriate taxing authorities and Owner shall capitalize and include as an
element of Unit Acquisition Cost of a Unit during the term of this Agreement the
taxes that Agent would be required to pay if such Unit Premises, Unit
Improvements or Unit was a Parcel of Property under paragraph (c) of Section 9
of the Lease.
9.11 Filings, Etc. Agent shall promptly and duly execute,
deliver, file, and record, all such documents, statements, filings, and
registrations, and take such further
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action as Owner or any Assignee shall from time to time reasonably request and
shall install such signs or other markings as shall be required by any
applicable Legal Requirement in order to establish, perfect and maintain Owner's
or any Assignee's title to and interest in any Unit Premises, Unit Improvements,
Unit FF&E and any Unit and any Assignee's interest in this Agreement, any Unit
Premises, Unit Improvements, Unit FF&E or any Unit as against Agent or any third
party in any applicable jurisdiction. All costs and expenses arising out of
Agent's obligations under this subsection 9.11 shall be capitalized by Owner and
included as an element of Unit Acquisition Cost of a Unit.
9.12 Use of Proceeds. The proceeds of each advance shall be
used by Agent for payment of costs specified in the applicable request for the
advance and in accordance with the respective Unit Budget or to reimburse Agent
for any such costs paid by Agent.
9.13 Compliance with Other Requirements. Agent shall use every
commercially reasonable precaution to prevent loss or damage to any Unit
Premises, Unit Improvements, Unit FF&E, or any Unit and to prevent injury to
third Persons or property of third Persons. Agent shall cooperate fully with
Owner and any additional insured or loss payee and all insurance companies
providing insurance pursuant to subsection 9.3 hereof in the investigation and
defense of any claims or suits arising from the ownership or operation of
equipment or ownership, use, or occupancy of any Unit Premises, Unit
Improvements, Unit FF&E or any Unit and Owner and any Indemnified Person shall
comply, at the expense of Agent, with all reasonable requests for assistance of
Agent and any insurance companies in connection therewith; provided, that
nothing contained in this subsection shall be construed as imposing on Owner any
duty to investigate or defend any such claims or suits. Agent shall comply and
shall use reasonable efforts to cause all Persons operating equipment on, using
or occupying any Unit Premises, Unit Improvements, Unit FF&E, or any Unit to
comply with every Insurance Requirement and Legal Requirement regarding
acquiring, titling, registering, leasing, subleasing, insuring, using,
occupying, operating and disposing of any Unit Premises, Unit Improvements, Unit
FF&E, or any Unit, and, if applicable, the licensing of operators thereof;
except any Legal Requirements, the non-compliance with which, individually or in
the aggregate, (i) will not place either Owner or any Assignee in any danger of
any monetary civil liability which Owner or any Assignee is not adequately
indemnified for (Agent's obligations under Section 12 of this Agreement shall be
deemed to be adequate indemnification if no Event of Default exists) or any
other material civil liability or penalty or subject Owner or any Assignee to
any criminal liability as a result of a failure to comply therewith and (ii)
will not result in a material diminution in the value of any Unit Premises, Unit
Improvements, Unit FF&E or Unit or in any material risk of the loss, sale or
forfeiture or loss of use of any thereof.
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9.14 Site Lease. Agent agrees to pay or cause to be paid, on
or before the first Business Day of each calendar year, all rent to be due under
the Site Lease for such calendar year.
9.15 Cash Reserve Account Deposits. Simultaneously with its
execution and delivery hereof, Agent will deposit into the Cash Reserve Account
(as defined in the CRA Agreement) $2,474,475.14 to be held as provided in the
CRA Agreement. By 1:00 p.m. of the Business Day immediately succeeding each date
on which Owner receives any advance (including any advance deemed to have been
made) under any Credit Agreement (whether such advance is for the purpose of
making advances to Agent hereunder, or to pay accrued interest, reimbursement
obligations, fees or expenses owing thereunder, to make distributions in respect
of the equity of Owner or for any other purpose permitted thereunder) or causes
a letter of credit to be issued, Agent will deliver or cause to be delivered to
such Cash Reserve Account cash, to be held as provided in the CRA Agreement, in
an amount equal to at least 10% of the aggregate amount of such advance or the
available amount of such letter of credit, as the case may be; provided that
Owner shall deliver to Agent, no later than 1:00 p.m. on the date of such
advance, a statement describing the amount and purposes of such advance and the
amount to be deposited in the Cash Reserve Account by Agent with respect
thereto.
9.16 Construction Agreement and Construction Agreement Surety.
Agent agrees to deliver to Owner, on or before the date that is sixty (60) days
from the date of this Agreement, an executed copy of each Construction Agreement
with respect to the Ammonia Project, each in form and substance and with a
General Contractor reasonably satisfactory to Owner, and a copy of the
Construction Agreement Surety in form and substance reasonably satisfactory to
Owner. Agent agrees that until such time as it has delivered a copy of such
Construction Agreement and such Construction Agreement Surety to Owner, Agent
shall only request advances under this Agreement and the Construction Agency
Agreement, dated as of February 15, 1996, between Agent and Owner, as amended,
up to an aggregate principal amount of $40,000,000 and to the extent permitted
by any Credit Agreement.
9.17 Savonetta Pier User Agreement and Related Documents.
Agent agrees to deliver to Owner and any Assignee, on or before the date that is
thirty (30) days from the date of this Agreement, an executed copy of the
Savonetta Pier User Agreement between the National Energy Corporation of
Trinidad and Tobago Limited and ANL, a related Ancillary Facility Agreement
Consent and Assignment Agreement, and such other opinions of counsel,
certificates, instruments and documents related thereto as Owner or any Assignee
may reasonably request, each in form and substance satisfactory to Owner and any
Assignee in their sole discretion; provided, however, that in the event the
Savonetta Pier User Agreement complies in all material respects with Exhibit M-3
of this Agreement, the Savonetta Pier User Agreement shall be deemed to be
satisfactory to Owner and any Assignee. Agent agrees that until such time as it
has delivered a copy of the documents required by this subsection 9.17 to Owner
and any Assignee, Agent shall only request advances under this Agreement and the
Construction Agency Agreement,
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dated as of February 15, 1996, between Agent and Owner, as amended, up to an
aggregate principal amount of $40,000,000 and to the extent permitted by any
Credit Agreement.
9.18 Gas Contract and Related Documents. Agent agrees to
deliver to Owner and any Assignee, on or before the date that is thirty (30)
days from the date of this Agreement, an executed copy of the Gas Contract and
such other opinions of counsel, certificates, instruments and documents related
thereto as Owner or any Assignee may reasonably request, each in form and
substance satisfactory to Owner and any Assignee in their sole discretion;
provided, however, that in the event the Gas Contract complies in all material
respects with the Letter, dated August 21, 1995 from the National Gas Company of
Trinidad and Tobago Limited to Arcadian Trinidad Limited with respect to the
supply of natural gas to the Ammonia Project, and is otherwise in form and
substance reasonably satisfactory to Owner and any Assignee, the Gas Contract
shall be deemed to be satisfactory to Owner and any Assignee. Agent agrees that
until such time as it has delivered a copy of the documents required by this
subsection 9.18 to Owner and any Assignee, Agent shall only request advances
under this Agreement and the Construction Agency Agreement, dated as of February
15, 1996, between Agent and Owner, as amended, up to an aggregate principal
amount of $40,000,000 and to the extent permitted by any Credit Agreement.
SECTION 10. NEGATIVE COVENANTS
Agent hereby agrees that, so long as this Agreement remains in
effect, Agent shall not directly or indirectly:
10.1 Changes in Unit Plans or Unit Budget. (a) Modify or
supplement in any material respect any Unit Plans or any Unit Budget without the
prior written consent of Owner (which consent will not be unreasonably withheld
or delayed) and all Governmental Authorities which previously have approved the
matters to be changed, if the effect of the failure to obtain such consent will,
(i) place either Owner or any Assignee in any danger of any monetary civil
liability for which Owner or any Assignee is not adequately indemnified for
(Agent's obligations under Section 12 of this Agreement shall be deemed to be
adequate indemnification if no Event of Default exists) or any other material
civil liability or penalty or subject Owner or any Assignee to any criminal
liability as a result of a failure to comply therewith, (ii) result in a
material diminution in the value of any Unit Premises, Unit Improvements, Unit
FF&E or Unit or in any material risk of the loss, sale or forfeiture or loss of
use of any thereof, or (iii) materially impair the ability of Agent to perform
its obligations hereunder or (b) receive advances with respect to a Unit which
exceed the Unit Budget for such Unit.
10.2 Prohibition of Fundamental Changes. Consolidate with or
merge into any other Person as such prohibition is set forth in Section 26 of
the Lease, except that the term "Owner" shall substitute for the term "the
Lessor" and the term "Agent" shall substitute for the term "the Lessee".
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10.3 Acquire Fee or Leasehold Interest. Acquire a fee or
leasehold interest on behalf of Owner in any Unit Premises other than the
Project Parcel until Agent has delivered all documents required by Section 4
hereof and in the reasonable judgment of Owner satisfied the conditions set
forth in such Section 4.
10.4 Assignment of Obligations. Except as provided in
subsection 2.1 hereof, assign its obligations hereunder to any other party.
SECTION 11. EVENTS OF DEFAULT, EVENTS OF UNIT TERMINATION AND
CASUALTY EVENTS
11.1 Events of Default. The occurrence of any of the following
shall constitute an Event of Default:
(a) Failure to Make Payments. Failure of Agent to make any
payment required by Section 9.15, 11.2(e), 11.4(a), 11.6 or 19 hereof
when due or failure by Agent to pay any other amount due hereunder for
more than fifteen (15) days after written demand for such other
payment.
(b) Unauthorized Assignments, Etc. Except as provided in
subsection 2.1 hereof, assignment by Agent of any interest in this
Agreement or any advance to be made hereunder or any interest in
either.
(c) Misrepresentations. Any representation or warranty made or
deemed made or certified to by Agent in this Agreement or any Operative
Document or which is contained in any certificate, document or
financial or other statement furnished under or in connection with this
Agreement shall prove to have been false or inaccurate in any material
respect on or as of the date made or deemed made.
(d) Involuntary Bankruptcy, Etc. The entry of a decree or
order for relief in respect of Agent by a court having jurisdiction in
the premises, or the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of Agent
or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, in an involuntary case under the Federal
Bankruptcy Code, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency, reorganization,
composition or other similar law of any jurisdiction; or the
commencement against Agent of an involuntary case under the Federal
Bankruptcy Code, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency, reorganization,
composition or other similar law of any jurisdiction, and the
continuance of any such case unstayed and in effect for a period of 60
consecutive days.
(e) Voluntary Bankruptcy, Etc. Entry or deemed entry of an
order for relief in any case under the Federal Bankruptcy Code
involving Agent or the
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suspension or discontinuance of Agent's business operations, Agent's
insolvency (however evidenced) or Agent's admission of insolvency or
bankruptcy, or the commencement by Agent of a voluntary case under the
Federal Bankruptcy Code, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency, reorganization,
composition or other similar law of any jurisdiction, or the consent by
Agent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of Agent or of any substantial part of Agent's
property, or the making by Agent of an assignment for the benefit of
creditors, or the failure of Agent generally to pay its debts as such
debts become due, or the taking of partnership or other action by or on
behalf of Agent in furtherance of any such action.
(f) Certain Covenants. Agent shall default in the performance
or observance of any agreement, covenant or condition contained in
Section 9.16, 9.17, 9.18 or 10 hereof.
(g) Other Defaults. Agent shall default in the performance or
observance of any other term, covenant, condition or obligation
contained in this Agreement or any other Operative Document (except a
Ground Lease), and if such default is capable of cure, such default
shall continue for thirty (30) days after written notice shall have
been given to Agent by Owner specifying such default and requiring such
default to be remedied; provided that, if such default is of a nature
that it is capable of being cured but not within such thirty (30) day
period and Agent shall have diligently commenced curing such default
within such thirty (30) day period and Agent shall have proceeded
diligently and in good faith thereafter to complete curing such
default, such thirty (30) day period shall be extended to one hundred
eighty (180) days; provided further, that an Event of Unit Termination
and a Casualty Event shall not constitute an Event of Default
hereunder.
(h) Default under Lease. An Event of Default (as defined in
the Lease) shall occur under the Lease or the Lease shall be terminated
or otherwise cease to be in full force and effect.
(i) Payment of Obligations. An Event of Default (as defined in
the Revolving Loan Facility) shall occur under the Revolving Loan
Facility. Agent or any Subsidiary (as principal or guarantor or other
surety) shall default in the payment when due or within any applicable
period of grace of any amount of principal of or premium or interest on
any Indebtedness other than under the Revolving Loan Facility which is
outstanding in a principal amount of at least $10,000,000 in the
aggregate; or any event shall occur or condition shall exist in respect
of any such other Indebtedness which is outstanding in a principal
amount of at least $10,000,000, or under any evidence of any such
Indebtedness or of any mortgage indenture or other agreement relating
thereto, the effect of which is to cause (or to permit one or more
Persons to cause) such Indebtedness to become due before its stated
maturity or before its regularly scheduled dates of payment or
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to permit the holders thereof to cause Agent or any Subsidiary to
repurchase or repay such Indebtedness, and such default, event or
condition shall continue for more than the period of grace, if any,
specified therein and in the case where such Indebtedness has not been
declared due and payable such event or condition shall not have been
cured or waived within the later of fifteen (15) days of such
occurrence pursuant thereto and the expiration of any applicable period
of grace.
(j) Defaults under any Ground Lease. Agent shall fail to
observe or perform, after the expiration of any applicable grace
period, any material term, covenant or condition of any Ground Lease
relating to a Unit Premises, to be observed or performed, unless any
such observance or performance shall have been waived or not required
by the landlord under such Ground Lease, or if any one or more of the
events referred to in the Site lease, the Sublease or any Ground Lease
shall occur which would cause the Site Lease, the Sublease or such
Ground Lease to terminate without notice or action by the landlord
thereunder or which would entitle the landlord under the Site Lease,
the Sublease or such Ground Lease to terminate the Site Lease, the
Sublease or such Ground Lease and the term thereof by the giving of
notice to Owner without opportunity to cure, as tenant thereunder, or
if any of the terms, covenants or conditions of the Site Lease, the
Sublease or any Ground Lease shall in any manner be modified, changed,
terminated, supplemented, altered or amended in any material respect
without the consent of Owner and any Assignee.
(k) Gas Contract; Ancillary Facility Agreements. The Gas
Contract or any Ancillary Facility Agreement or any other Operative
Document shall be modified, changed, terminated, supplemented, altered
or amended in any material respect without the consent of Owner and
Assignee.
(l) Partnership Interest. Arcadian Corporation shall cease to
be the general partner of Agent without the prior written consent of
Owner.
11.2 Owner's Rights upon an Event of Default. (a) Upon the
occurrence and continuation of any Event of Default Owner may, in addition to
exercising any other rights and remedies available to it under applicable law,
do any one or more of the following (if, within fifteen (15) Business Days of
receipt by Agent of an Event of Default Notice (as defined in Section 19
hereof), Agent has not made a request to purchase all Unit Premises, Unit
Improvements, Unit FF&E or Units under Section 19 or, if Agent has so made such
a request but has not consummated within thirty (30) Business Days of receipt of
the Event of Default Notice such purchase in full compliance with Section 19):
(i) Terminate this Agreement and/or Owner's obligations to
make any further advances hereunder by written notice to Agent, subject
to the maximum amount Owner shall be entitled to recover from Agent, as
described in paragraph (f) of this subsection 11.2;
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(ii) Take immediate possession of any Unit Premises, Unit
Improvements, Unit FF&E and Unit and remove any equipment or property
of Owner in the possession of Agent, wherever situated, and for such
purpose, enter upon any Unit Premises, Unit Improvements or Unit
without liability to Agent for so doing; provided that the taking of
possession of any Unit Premises, Unit Improvements, Unit FF&E or Unit
shall take place in a commercially reasonable manner;
(iii) Whether or not any action has been taken under (a)
above, sell any Unit Premises, Unit Improvements, Unit FF&E or Unit
(free of or subject to the rights of Agent or any other Person under
this Agreement and with or without the concurrence or request of
Agent);
(iv) Hold, use, occupy, operate, remove, lease, sublease or
keep idle any Unit Premises, Unit Improvements, Unit FF&E or Unit as
Owner in its sole discretion may determine, without any duty to account
to Agent with respect to any such action or inaction, except that Owner
agrees that any profit it derives from the occupation or use of any
Unit Premises, Unit Improvements, Unit FF&E or Unit while exercising
its rights under this subsection 11.2 will be applied to reduce the
Accrued Default Obligations; and
(v) Exercise any other right or remedy which may be available
under applicable law and in general proceed by appropriate judicial
proceedings, either at law or in equity, to enforce the terms hereof or
to recover damages for the breach hereof.
(b) Suit or suits for the recovery of any default in the
payment of any sum due hereunder or for damages may be brought by Owner from
time to time at Owner's election, and nothing herein contained shall be deemed
to require Owner to await the date whereon this Agreement or the term hereof
would have expired by limitation had there been no such default by Agent or no
such termination or cancellation.
(c) The receipt of any payments under this Agreement by Owner
with knowledge of any breach of this Agreement by Agent or of any default by
Agent in the performance of any of the terms, covenants or conditions of this
Agreement, shall not be deemed to be a waiver of any provision of this
Agreement.
(d) No receipt of moneys by Owner from Agent after the
termination or cancellation hereof in any lawful manner shall reinstate or
continue this Agreement, or operate as a waiver of the right of Owner to recover
possession of any Unit Premises, Unit Improvements, Unit FF&E or Unit by proper
suit, action, proceedings or remedy or operate as a waiver of the right to
receive any and all amounts owing by Agent to or on behalf of Owner hereunder;
it being agreed that, after the service of notice to terminate or cancel this
Agreement, and the expiration of the time therein specified, if the default has
not been cured in the meantime, or after the commencement of suit, action or
summary proceedings or of any other remedy, or after a final order, warrant or
judgment for the
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possession of any Unit Premises, Unit Improvements, Unit FF&E or Unit, Owner may
demand, receive and collect any moneys payable hereunder, without in any manner
affecting such notice, proceedings, suit, action, order, warrant or judgment;
and any and all such moneys so collected shall be deemed to be payments on
account for the use, operation and occupation of the Unit Premises, Unit
Improvements, Unit FF&E or Unit, or at the election of Owner, on account of
Agent's liability hereunder and will be applied to reduce the Accrued Default
Obligations.
(e) Agent hereby expressly confirms that, in any event,
including after any Event of Default, and notwithstanding any termination of
this Agreement or reentry or repossession by Owner, Agent shall be liable for,
and Owner may recover from Agent, (i) all of Owner's obligations, costs and
expenses incurred in good faith in connection with its obligations under this
Agreement and for which Owner may demand reimbursement pursuant to subsection
9.5 hereof, (ii) all amounts payable hereunder or under any other Operative
Document and (iii) all losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses, commissions, filing fees
and sales or transfer taxes) sustained by Owner by reason of such Event of
Default and the exercise of Owner's remedies with respect thereto, including, in
the event of a sale by Owner of any Unit Premises, Unit Improvements, Unit FF&E
or Unit pursuant to this subsection 11.2, all costs and expenses associated with
such sale. The amounts payable in clauses (i) through (iii) above are
hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued
Default Obligations shall not include any damages for loss of profits arising
from the prospective use, operation and occupancy by parties other than Agent of
any Unit Premises, Unit Improvements, Unit FF&E or Unit or the anticipated
receipt of income therefrom subsequent to Agent's possession of such Unit
Premises, Unit Improvements, Unit FF&E or Unit.
(f) After an Event of Default, Owner may sell its interest in
any Unit Premises, Unit Improvements, Unit FF&E and Unit in any commercially
reasonable manner upon any terms that Owner deems satisfactory, free of any
rights of Agent or any Person claiming through or under Agent. In the event of
any such sale, or in the event Owner elects not to sell any Unit Premises, Unit
Improvements, Unit FF&E or Unit, in addition to the Accrued Default Obligations,
Owner shall be entitled to recover from Agent, as liquidated damages, and not as
a penalty, an amount equal to 84.5% of the Unit Acquisition Cost of any Unit
Premises, Unit Improvements, Unit FF&E and Units under this Agreement. Proceeds
of any such sale received by Owner, or, in the event Owner elects not to sell,
proceeds at any time thereafter received by Owner from any sale, occupation,
operation, use or lease of any Unit Premises, Unit Improvements, Unit FF&E or
Unit (net of all reasonable costs and expenses incurred by Owner in connection
with any sale, occupation, operation, use or lease of any Unit Premises, Unit
Improvements, Unit FF&E or Unit) in excess of 15.5% of the Unit Acquisition Cost
of such Unit Premises, Unit Improvements, Unit FF&E or Unit, shall be credited
against the Accrued Default Obligations Agent is required to pay under this
subsection 11.2. If such excess proceeds exceed the Accrued Default Obligations,
or, if Agent has paid all amounts required to be paid under this subsection
11.2, such excess shall be paid by Owner to Agent. If Agent converts any such
Unit Premises, Unit Improvements, Unit FF&E or Unit after an Event of
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Default, or if such Unit Premises, Unit Improvements, Unit FF&E or Unit is lost
or destroyed, in addition to the Accrued Default Obligations, Owner may cause
such Agent to pay to Owner, and Agent shall pay to Owner, as liquidated damages
and not as a penalty, an amount equal to 84.5% of the Unit Acquisition Cost of
such Unit Premises, Unit Improvements, Unit FF&E or Unit.
(g) In the event of a sale pursuant to this subsection 11.2,
upon receipt by Owner of the amounts payable hereunder, Owner shall transfer all
of Owner's right, title and interest in and to the Unit Premises, Unit
Improvements, Unit FF&E and Unit to the purchaser thereof.
(h) In addition to its other rights in this subsection 11.2,
Owner may exercise its various rights under the Operating Agreement, the Gas
Contract, the Ancillary Facility Agreements or any Construction Agreement or
transfer such rights to the purchaser in a sale.
(i) No remedy referred to in this subsection 11.2 is intended
to be exclusive, but each shall be cumulative and in addition to any other
remedy referred to above or otherwise available to Owner at law or in equity,
and the exercise in whole or in part by Owner of any one or more of such
remedies shall not preclude the simultaneous or later exercise by Owner of any
or all such other remedies. No waiver by Owner of any Event of Default hereunder
shall in any way be, or be construed to be, a waiver of any future or subsequent
Event of Default.
11.3 Events of Unit Termination. The occurrence of any of the
following shall constitute an Event of Unit Termination with respect to a Unit:
(a) Nonconforming Work. If the construction of the Unit
Improvements, or any part thereof, deviates from the Unit Plans and
results in a material diminution in the value of any Unit Premises,
Unit Improvements, Unit FF&E or Unit or there shall be any structural
defect in any Unit Improvement and Agent fails to correct such
nonconforming work or structural defect in a reasonably prompt and
satisfactory fashion after notice and demand by Owner.
(b) Failure to Complete. If as of the close of business on a
Unit Completion Date the related Unit Improvements have not for
whatever reason (including an event of force majeure deferring
completion beyond the Force Majeure Delay) been completed as herein
provided, or if the Certificate of Substantial Completion and AFL Unit
Leasing Record have not been executed and delivered by the respective
Unit Completion Date, or if Owner shall reasonably determine during the
course of construction that the Unit Improvements cannot for whatever
reason (including an event of force majeure deferring completion beyond
the Force Majeure Delay) be completed by the Unit Completion Date.
(c) Unsatisfactory Title. If at any time title to the Ammonia
Project or any other Unit is not reasonably satisfactory to Owner by
reason of any Xxxx,
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THIS AGREEMENT FOR LEASE IS
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encumbrance, or other environmental defect affecting title, except for
Permitted Liens, and such Lien, encumbrance or other defect is not
corrected by and at the expense of Agent within ninety (90) days after
notice to Agent.
(d) Other Security Agreements. If (i) Agent executes any
chattel mortgage or other security agreement on any materials, fixtures
or articles of personal property used in the construction or operation
of the Unit Improvements or if any such materials, fixtures or articles
are purchased pursuant to any conditional sales contract or other
security agreement or otherwise so that the title thereto will not vest
in Owner free from encumbrance or (ii) Agent does not furnish to Owner
upon request the contracts, bills of sale, statements, receipted
vouchers and other agreements and documents, or any of them, under
which Owner claims title to such materials, fixtures or articles.
(e) Permits. If Agent shall fail in respect of the Ammonia
Project to obtain or be unable to obtain any material Permit, or if any
Permit shall be revoked or otherwise cease to be in full force and
effect unless, if such revocation or cessation shall not be due to
Agent's negligence or willful misconduct, Agent shall have obtained
reinstatement or reissuance of such Permit within thirty (30) days
after the revocation or expiration thereof, or if such reinstatement or
reissuance is of a nature that it cannot be completely effected within
thirty (30) days, Agent shall have diligently commenced application for
such reinstatement or reissuance and shall thereafter be diligently
proceeding to complete said reinstatement or reissuance.
11.4 Owner's Rights upon Event of Unit Termination. (a) If any
Event of Unit Termination with respect to a Unit shall occur, Owner shall have
no further obligation to make advances to Agent with respect to such Unit, and
Agent shall, upon written notice by Owner of such Event of Unit Termination,
either (i) purchase such Unit within ninety (90) days after written notice by
Owner of such Event of Unit Termination at a price equal to the Unit Acquisition
Cost for such Unit, or (ii) pay to Owner, within five (5) Business Days of
Owner's written notice of such Event of Unit Termination (the "Surrender Date"),
an amount equal to 89.9% of the Unit Acquisition Cost of such Unit and to be
subject to the requirements of paragraph (b) of this subsection 11.4. In the
event Agent elects to purchase such Unit from Owner, at the time of such sale,
Agent shall be required, in addition to its obligation to pay all amounts
contemplated by subsection 9.5 hereof, to pay to Owner Owner's obligations,
costs, losses, damages, and expenses (including, without limitation, taxes and
reasonable attorneys' fees and expenses) sustained by Owner in good faith by
reason of such Event of Unit Termination and exercise of Owner's rights under
this subsection 11.4.
(b) In the event Agent elects to proceed under clause (ii) of
subsection 11.4(a) and makes the payment contemplated thereby, Owner may sell
such Unit to a third party and Agent shall have no further right, claim or
interest in such Unit. If Owner shall fail to sell such Unit within seven (7)
days of the Surrender Date, the Assignee shall have the right, but not the
obligation, to sell such Unit to a third party. The proceeds of
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sale received by Owner or such Assignee, as the case may be, from any sale of
such Unit shall be retained by Owner or such Assignee, as the case may be,
provided that if the proceeds of sale exceed 10.1% of the Unit Acquisition Cost
of such Unit, such excess shall be paid by Owner or such Assignee, as the case
may be, to Agent net of all amounts to be paid by Agent to Owner pursuant to the
last sentence of subsection 11.4(a) hereof.
11.5 Casualty Events. The occurrence of any of the following
shall constitute a Casualty Event with respect to a Unit:
(a) Damage or Destruction. If any Unit Improvements are
partially or totally damaged or destroyed by fire or any other cause and the
restoration thereof cannot reasonably be expected to be completed so that the
Unit Improvements will be completed on or before the applicable Unit Completion
Date, subject to any Force Majeure Delay.
(b) Takings. If the use, occupancy or title to any Unit is
taken, requisitioned or sold in, by or on account of actual or threatened
eminent domain or confiscation or similar proceedings or other action by any
Governmental Authority (such events collectively referred to as a "Taking") and
such Taking affects a substantial portion of a Unit. Upon receipt of proceeds
from any award or sale made in connection with such Taking, so long as no Event
of Default or Potential Default has occurred and is continuing, and so long as
Agent has made all payments to Owner required under subsection 11.6 hereof,
Owner shall remit to Agent the net amount of such proceeds remaining after
reimbursement for all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Owner in connection with the negotiation
and settlement of any proceedings related to such Taking. If such proceeds are
received prior to Agent making the payments required under subsection 11.6
hereof, the net proceeds shall be applied to the amount payable thereunder. A
Taking shall be deemed "to affect a substantial portion" of a Unit if after such
Taking such Unit is, or will be, in Agent's reasonable judgment, unusable for
Agent's ordinary business purposes.
11.6 Owner's Rights upon the occurrence of a Casualty Event.
If any Casualty Event shall occur, (i) Agent shall promptly notify Owner in
writing of such event, (ii) on a date designated by Agent, which shall be a date
within ninety (90) days following such event, Agent shall pay to Owner an amount
equal to 84.5% of the Unit Acquisition Cost of such Unit and (iii) Agent shall
be required, in addition to its obligation to pay all amounts contemplated by
subsection 9.5 hereof, to pay to Owner Owner's obligations, costs, losses,
damages, and expenses (including, without limitation, taxes and reasonable
attorneys' fees and expenses) sustained by Owner by reason of such Casualty
Event and exercise of Owner's rights under this subsection 11.6. Insurance and
condemnation proceeds, if any, received by Owner that, together with the amounts
paid by Agent to Owner pursuant to clause (ii) of the preceding sentence, exceed
the Unit Acquisition Cost of such Unit, shall be paid by Owner to Agent upon
payment by Agent of all amounts referred to in clause (iii) of the preceding
sentence.
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SECTION 12. INDEMNITIES
(a) Agent shall, and hereby does, indemnify and hold harmless
Owner, Xxxxxxx Xxxxx, Xxxxxxx Leasing, any Assignee, any successor or successors
and any Affiliate of each of them, and their respective officers, directors,
incorporators, shareholders, partners (general and limited, including, without
limitation, the general and limited partners of Owner), employees, agents and
servants (each of the foregoing an "Indemnified Person") from and against all
liabilities (including, without limitation, strict liability in tort and
environmental law), taxes, losses, obligations, claims (including, without
limitation, strict liability in tort), damages, penalties, causes of action,
suits, costs and expenses (including, without limitation, reasonable attorneys'
and accountants' fees and expenses) or judgments of any nature relating to or in
any way arising out of:
(i) The Operative Documents and the transactions
contemplated thereby and the ordering, delivery, assembly,
installation, acquisition, construction (including, without
limitation, all obligations of Owner under any Construction
Agreement), title on acquisition, rejection, installation,
possession, titling, retitling, registration, reregistration,
custody by Agent of title and registration documents,
ownership, use, non-use, misuse, financing (including, without
limitation, all obligations of Owner under or in respect of
any interest rate swap, cap, collar or other financial hedging
arrangement and any amounts payable by Owner under any such
arrangement to reduce the notional amount thereof by the
amount of any prepayment of any borrowing to which such
interest rate swap, cap, collar or other financial hedging
arrangement relates), lease, sublease, operation,
transportation, repair, return, redelivery or control of any
Unit Premises, Unit Improvements, Unit FF&E or Unit, or the
release of hazardous substances on, under, to or from, or the
generation or transportation of hazardous substances to or
from, any Unit Premises except (x) to the extent that such
costs are included in the Unit Acquisition Cost of such Unit
Premises, Unit Improvements, Unit FF&E or Unit, (y) for any
general administrative expenses of Owner, and (z) for the
income taxes with respect to which indemnification is excluded
under paragraph (c) of Section 11 of the Lease; and
(ii) Any of the claims, demands, fees, taxes,
violations of contract, or any other matter or situation
described in or contemplated by the indemnification provisions
of subparagraphs (b), (c) and (d) of Section 11 of the Lease,
except that this Agreement shall substitute the terms "Owner"
for "the Lessor", "Agent" for "the Lessee", "this Agreement"
for "this Lease", and shall substitute the phrase "Unit
Premises, Unit Improvements, Unit FF&E or Unit" for the phrase
"Property or Equipment."
(b) The indemnification required under this Section 12 shall
be upon the terms provided in the paragraphs of Section 11 of the Lease
following paragraph (d)
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thereof, except that this Agreement shall substitute the terms in the same
manner as described in subparagraph (a)(ii) above.
SECTION 13. LEASEHOLD INTERESTS
The provisions of Section 28 of the Lease shall govern each
Ground Lease hereunder, including without limitation the Site Lease, the
Sublease and each additional lease under which a leasehold interest in a Unit
Premises is subleased to Agent or an Affiliate of Agent hereunder, except this
Agreement shall substitute the terms "Owner" for "the Lessor", "Agent" for "the
Lessee", "Unit Premises, Unit Improvements, Unit FF&E and Unit" for "Parcel of
Property" and "Section 13" for "Section 28".
SECTION 14. PURCHASES
In connection with, and as a condition to, the purchase of any
Unit Premises, Unit Improvements, Unit FF&E or Unit pursuant hereto, (i) Agent
shall pay at the time of purchase, in addition to the Unit Acquisition Cost and
all other amounts payable by Agent under this Agreement, and without limitation
of any of its obligations hereunder or under any other Operative Document, all
transfer taxes, transfer gains taxes, mortgage recording tax, if any, recording
and filing fees and all other similar taxes, fees, expenses and closing costs
(including reasonable attorneys' fees) in connection with the conveyance of such
Unit Premises, Unit Improvements, Unit FF&E or Unit to Agent and all other
amounts owing hereunder, and (ii) when Owner transfers title, such transfer
shall be on an as-is, non-installment sale basis, without warranty by, or
recourse to, Owner, except that such title shall be free of any Liens resulting
from Owner's willful or knowing act or omission not contemplated by this
Agreement, the Lease or the transactions contemplated thereby.
SECTION 15. CHARACTER OF AMMONIA PROJECT
It is the intention of Owner and Agent that the components of
the Ammonia Project identified as personal property components in Exhibit J
hereto maintain their character as personal property for commercial law
purposes. Agent shall take all reasonable action to maintain such character and
shall obtain and record such instruments and take such steps as may be necessary
to prevent any Person from acquiring any rights in such components by reason of
such components being deemed to be real property.
SECTION 16. PERMITTED CONTESTS
(a) Agent shall not be required, nor shall Owner have the
right, to pay, discharge or remove any tax, assessment, levy, fee, rent, charge,
Lien or encumbrance, or to comply or cause any Unit Premises, Unit Improvements
item of Unit FF&E or Unit to comply with any Legal Requirement applicable to any
Unit Premises, Unit Improvements item of Unit FF&E or Unit or the occupancy, use
or operation thereof, so long as no Event of Default exists under this
Agreement, and, in the judgment of Agent's counsel, Agent shall have reasonable
grounds to contest the existence, amount, applicability or
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validity thereof by appropriate proceedings, which proceedings in the reasonable
judgment of Owner, (i) shall not involve any material danger that any Unit
Premises, Unit Improvements, item of Unit FF&E or Unit would be subject to sale,
forfeiture, loss or loss of use as a result of failure to comply therewith, (ii)
shall not affect the payment of any sums due and payable hereunder or result in
any such sums being payable to any Person other than Owner or any Assignee,
(iii) will not place Owner in any danger of any monetary civil liability which
is not adequately indemnified (Agent's obligations under Section 12 of this
Agreement shall be deemed to be adequate indemnification if no Event of Default
exists) or any other material civil liability or penalty or to any criminal
liability, (iv) if involving taxes, shall suspend the collection of the taxes,
and (v) shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Agent or any Unit Premises, Unit
Improvements, item of Unit FF&E, or Unit is subject and shall not constitute a
default thereunder (the "Permitted Contest"). Agent shall conduct all Permitted
Contests in good faith and with due diligence and shall promptly after the final
determination (including appeals) of any Permitted Contest, pay and discharge
all amounts which shall be determined to be payable therein. Owner shall at
Agent's expense cooperate in good faith with Agent with respect to all Permitted
Contests conducted by Agent pursuant to this Section 16, including without
limitation in assisting in the preparation of, and participating in, filings
related to such Permitted Contests.
(b) At least ten (10) days prior to the commencement of any
Permitted Contest, Agent shall notify Owner in writing thereof if the amount in
contest exceeds $1,000,000, and shall describe such proceeding in reasonable
detail. In the event that a taxing authority or subdivision thereof proposes an
additional assessment or levy of any tax for which Agent is obligated to
reimburse Owner under this Agreement, or in the event that Owner is notified of
the commencement of an audit or similar proceeding which could result in such an
additional assessment, then Owner shall in a timely manner notify Agent in
writing of such proposed levy or proceeding.
(c) Owner and Agent agree that no Event of Default, Potential
Default, Event of Unit Termination or Potential Event of Unit Termination shall
be deemed to have occurred if the existence of the event causing such Event of
Default, Potential Default, Event of Unit Termination or Potential Event of Unit
Termination, as the case may be, is being contested by Agent as a Permitted
Contest in accordance with the terms of this Section 16.
SECTION 17. SALE OR ASSIGNMENT BY OWNER
(a) Owner shall have the right to obtain equity and debt
financing for the acquisition and ownership of any Unit Premises, Unit
Improvements, Unit FF&E and Unit by selling or assigning its right, title and
interest in any or all amounts due from Agent or any third Person under this
Agreement; provided, that any such sale or assignment shall be subject to the
rights and interests of Agent under this Agreement.
(b) Any Assignee shall, except as otherwise agreed by Owner
and Assignee, have (to the exclusion of Owner) all the rights, powers,
privileges and remedies
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of Owner hereunder, and Agent's obligations as between itself and such Assignee
hereunder shall not be subject to any claims or defense that Agent may have
against Owner, other than the defense of payment or satisfaction of the
obligation; provided that the foregoing shall not be deemed to be a waiver of
any claims Agent may have against Owner. Upon written notice to Agent of any
such assignment, Agent shall thereafter make payments of any and all sums due
hereunder to Assignee, to the extent specified in such written notice, and only
such payments to the applicable Assignee shall discharge the obligation of Agent
hereunder and only to the extent of such payments. Anything contained herein to
the contrary notwithstanding, no Assignee shall be obligated to perform any
duty, covenant or condition required to be performed by Owner hereunder, and any
such duty, covenant or condition shall be and remain the sole obligation of
Owner.
SECTION 18. GENERAL CONDITIONS
The following conditions shall be applicable throughout the
term of this Agreement:
18.1 Survival. All indemnities, representations and warranties
and the obligation to pay Additional Rent (as defined in the Lease) shall
survive the expiration or other termination hereof.
18.2 No Waivers. No advance hereunder shall constitute a
waiver of any of the conditions of Owner's obligation to make further advances
nor, in the event Agent is unable to satisfy any such condition, shall any
waiver of such condition have the effect of precluding Owner from thereafter
declaring such inability to be an Event of Default as herein provided. Any
advance made by Owner and any sums expended by Owner pursuant to this Agreement
shall be deemed to have been made pursuant to this Agreement, notwithstanding
the existence of an uncured Event of Default. No advance at a time when an Event
of Default exists shall constitute a waiver of any right or remedy of Owner
existing by reason of such Event of Default, including, without limitation, the
right to refuse to make further advances.
18.3 Owner and Assignee Sole Beneficiaries. All conditions of
the obligation of Owner to make advances hereunder are imposed solely and
exclusively for the benefit of Owner and Assignee and their assigns and no other
Person shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that Owner will refuse to
make advances in the absence of strict compliance with any or all thereof and no
other Person shall, under any circumstances, be deemed to be a beneficiary of
such conditions, any or all of which may be freely waived in whole or in part by
Owner, with the consent of Assignee, at any time if in its sole discretion, it
deems it advisable to do so. Inspections and approvals of any Unit Plans, Unit
Premises, Unit Improvements, Unit FF&E, and Unit and the workmanship and
materials used therein impose no responsibility or liability of any nature
whatsoever on Owner, and no Person shall, under any circumstances, be entitled
to rely upon such inspections and approvals by Owner for any reason.
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18.4 No Offsets, Etc. The obligations of Agent to pay all
amounts payable pursuant to this Agreement shall be absolute and unconditional
under any and all circumstances of any character (including, without limitation,
the circumstances set forth in clauses (A) through (K) below), and such amounts
shall be paid without notice, demand, defense (except the defense of prior
payment), setoff, deduction or counterclaim and without abatement, suspension,
deferment, diminution or reduction of any kind whatsoever, except as herein
expressly otherwise provided. Without limitation of the foregoing, the
obligation of Agent to lease and pay Basic Rent (as defined in the Lease) for a
Unit upon Substantial Completion is without any warranty or representation,
express or implied, as to any matter whatsoever on the part of Owner or any
Assignee or any Affiliate of either, or anyone acting on behalf of any of them.
AGENT HAS SELECTED AND SHALL SELECT ALL UNIT PREMISES, UNIT
IMPROVEMENTS, UNITS AND ITEMS OF UNIT FF&E CONSTRUCTED, ACQUIRED OR ORDERED ON
THE BASIS OF ITS OWN JUDGMENT. NEITHER OWNER NOR ANY ASSIGNEE NOR ANY AFFILIATE
OF EITHER, NOR ANYONE ACTING ON BEHALF OF ANY OF THEM, MAKES ANY REPRESENTATION
OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, AS TO THE SAFETY, TITLE, CONDITION, QUALITY, QUANTITY, FITNESS FOR
USE, MERCHANTABILITY, CONFORMITY TO SPECIFICATION, OR ANY OTHER CHARACTERISTIC,
OF ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT OR ITEM OF UNIT FF&E, OR AS TO
WHETHER ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT OR ITEM OF UNIT FF&E OR THE
OWNERSHIP, USE, OCCUPANCY OR POSSESSION THEREOF COMPLIES WITH ANY LAWS, RULES,
REGULATIONS OR REQUIREMENTS OF ANY KIND.
AS BETWEEN OWNER AND AGENT, ANY ASSIGNEE OR ANY INDEMNIFIED
PERSON, AGENT WAIVES ANY AND ALL DEFENSES (EXCEPT THE DEFENSE OF FINAL AND
INDEFEASIBLE PRIOR PAYMENT), SET-OFFS, DEDUCTIONS, COUNTERCLAIMS (OTHER THAN
COMPULSORY COUNTERCLAIMS) (OR OTHER RIGHTS), EXISTING OR FUTURE, TO ITS
OBLIGATION TO PAY ALL AMOUNTS PAYABLE HEREUNDER, INCLUDING, WITHOUT LIMITATION,
ANY RELATING TO:
(A) THE SAFETY, TITLE, CONDITION, QUALITY, QUANTITY, FITNESS
FOR USE, MERCHANTABILITY, CONFORMITY TO SPECIFICATION, OR ANY OTHER QUALITY OR
CHARACTERISTIC OF ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT OR ITEM OF UNIT
FF&E, LATENT OR NOT;
(B) ANY SET-OFF, COUNTERCLAIM (OTHER THAN COMPULSORY
COUNTERCLAIMS), RECOUPMENT, ABATEMENT, DEFENSE (EXCEPT THE DEFENSE OF FINAL AND
INDEFEASIBLE PRIOR PAYMENT) OR OTHER RIGHT WHICH AGENT MAY HAVE AGAINST OWNER,
ANY ASSIGNEE, OR ANY INDEMNIFIED PERSON FOR ANY REASON WHATSOEVER ARISING OUT OF
THIS OR ANY OTHER TRANSACTION OR MATTER;
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(C) ANY DEFECT IN TITLE OR OWNERSHIP OF ANY UNIT PREMISES,
UNIT IMPROVEMENTS, OR UNIT OR ANY TITLE ENCUMBRANCE NOW OR HEREAFTER EXISTING
WITH RESPECT TO THE UNIT PREMISES, UNIT IMPROVEMENTS, UNIT OR ITEM OF UNIT FF&E;
(D) ANY FAILURE OR DELAY IN DELIVERY OR ANY LOSS, THEFT OR
DESTRUCTION OF, OR DAMAGE TO, ANY UNIT PREMISES, UNIT IMPROVEMENTS, UNIT OR ITEM
OF UNIT FF&E IN WHOLE OR IN PART, OR CESSATION OF THE USE OR POSSESSION OF ANY
UNIT PREMISES, UNIT IMPROVEMENTS, UNIT OR ITEM OF UNIT FF&E BY AGENT FOR ANY
REASON WHATSOEVER AND OF WHATEVER DURATION, OR ANY CONDEMNATION, CONFISCATION,
REQUISITION, SEIZURE, PURCHASE, TAKING OR FORFEITURE OF ANY UNIT PREMISES, UNIT
IMPROVEMENTS, UNIT OR ITEM OF UNIT FF&E IN WHOLE OR IN PART;
(E) ANY INABILITY OR ILLEGALITY WITH RESPECT TO THE USE,
OWNERSHIP, OCCUPANCY OR POSSESSION OF THE UNIT PREMISES, UNIT
IMPROVEMENTS, UNIT OR ITEMS OF UNIT FF&E BY AGENT;
(F) ANY INSOLVENCY, BANKRUPTCY, REORGANIZATION OR SIMILAR
PROCEEDING BY OR AGAINST AGENT OR OWNER OR ANY ASSIGNEE;
(G) ANY FAILURE TO OBTAIN, OR EXPIRATION, SUSPENSION OR OTHER
TERMINATION OF, OR INTERRUPTION TO, ANY REQUIRED LICENSES, PERMITS, CONSENTS,
AUTHORIZATIONS, APPROVALS OR OTHER LEGAL REQUIREMENTS RELATING TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT;
(H) THE INVALIDITY OR UNENFORCEABILITY OF THIS AGREEMENT OR
ANY OTHER INFIRMITY HEREIN OR ANY LACK OF POWER OR AUTHORITY OF OWNER OR AGENT
TO ENTER INTO THIS AGREEMENT;
(I) ANY RESTRICTION ON THE EXCHANGE OF THE CURRENCY OF THE
REPUBLIC OF TRINIDAD AND TOBAGO INTO U.S. DOLLARS OR THE TRANSFER OF FUNDS TO
THE UNITED STATES;
(J) AGENT OR ANY OTHER PERSON AT ANY TIME HAVING IMMUNITY FROM
SUIT, PREJUDGMENT, ATTACHMENT, ATTACHMENT IN AID OF EXECUTION OR EXECUTION ON
THE GROUNDS OF SOVEREIGNTY OR OTHERWISE; OR
(K) ANY OTHER CIRCUMSTANCES OR HAPPENING WHATSOEVER RELATING
TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SIMILAR TO
ANY OF THE FOREGOING.
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AGENT HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHTS WHICH IT MAY NOW HAVE OR WHICH AT ANY TIME HEREAFTER MAY
BE CONFERRED UPON IT, BY STATUTE OR OTHERWISE, TO TERMINATE, CANCEL, QUIT,
RESCIND OR SURRENDER THIS AGREEMENT EXCEPT IN ACCORDANCE WITH THE EXPRESS TERMS
HEREOF. The making of payments under this agreement by Agent (including without
limitation payments pursuant to Section 12 hereof) shall not be deemed to be a
waiver of any claim or claims that Agent may in a separate action assert against
Owner or any other person. Owner agrees to repay Agent amounts paid to Owner to
the extent such payments were in error and are not required by any of the terms
and provisions of this Agreement.
18.5 No Recourse. (a) Owner's obligations hereunder are
intended to be the obligations of a limited partnership and of the corporation
which is the general partner thereof only and no recourse for the payment of any
amount due under this Agreement or any other Operative Document, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
limited partner of Owner or any incorporator, shareholder, officer, director or
Affiliate, as such, past, present or future, of such corporate general partner
or of any corporate limited partner or of any successor corporation to such
corporate general partner or any corporate limited partner of Owner, or against
any direct or indirect parent corporation of such corporate general partner or
of any limited partner of Owner or any other subsidiary or Affiliate or any such
direct or indirect parent corporation or any incorporator, shareholder, officer
or director, as such, past, present or future, of any such parent or other
subsidiary or Affiliate, it being understood that Owner is a limited partnership
formed for the purpose of the transactions involved in and relating to this
Agreement, the Lease and the Operative Documents on the express understanding
aforesaid. Nothing contained in this subsection 18.5(a) shall be construed to
limit the exercise or enforcement, in accordance with the terms of this
Agreement, the Lease and the Operative Documents and any other documents
referred to herein, of rights and remedies against the limited partnership or
the corporate general partner of Owner or the assets of the limited partnership
or the corporate general partner of Owner.
(b) Agent's obligations hereunder are intended to be the
obligations of a limited partnership and of the corporation which is the general
partner thereof only and no recourse for any obligation of Agent hereunder, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any limited partner of Agent or any incorporator, shareholder, officer
or director, or Affiliate, as such, past, present or future of such corporate
general partner or limited partner or of any successor corporation to such
corporate general partner or any corporate limited partner of Agent, or against
any direct or indirect parent corporation of such corporate general partner or
of any limited partner of Agent or any other subsidiary or Affiliate of any such
direct or indirect parent corporation or any incorporator, shareholder, officer
or director, as such, past, present or future, of any such parent or other
subsidiary or Affiliate. Nothing contained in this subsection 18.5(b) shall be
construed to limit the exercise or enforcement, in accordance with the terms of
this Agreement, the Lease and the Operative Documents and any other documents
referred to herein, of rights and remedies against the limited partnership or
the
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THIS AGREEMENT FOR LEASE IS
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corporate general partner of Agent or the assets of the limited partnership or
the corporate general partner of Agent.
18.6 Notices.
(a) All notices, offers, acceptances, approvals, waivers,
requests, demands and other communications hereunder or under any other
instrument, certificate or other document delivered in connection with the
transactions described herein shall be in writing, shall be addressed as
provided below and shall be considered as properly given (i) if delivered in
person, (ii) if sent by express courier service (including, without limitation,
Federal Express, Xxxxx, DHL, Airborne Express, and other similar express
delivery services), (iii) in the event overnight delivery services are not
readily available, if mailed by international airmail, postage prepaid,
registered or certified with return receipt requested, or (iv) if sent by
telecopy and confirmed; provided, that in the case of a notice by telecopy, the
sender shall in addition confirm such notice by writing sent in the manner
specified in clauses (i), (ii) or (iii) of paragraph (a) of this subsection
18.6. All notices shall be effective upon receipt by the addressee; provided,
however, that if any notice is tendered to an addressee and the delivery thereof
is refused by such addressee, such notice shall be effective upon such tender.
For the purposes of notice, the addresses of the parties shall be as set forth
below; provided, however, that any party shall have the right to change its
address for notice hereunder to any other location by giving written notice to
the other party in the manner set forth herein. The initial addresses of the
parties hereto are as follows:
If to Owner:
Nitrogen Leasing Company, Limited Partnership
x/x Xxxxxxxx Xxxxxxx Xxxxxxx, Xxx.
Xxxxx Xxxxx-00xx Xxxxx
World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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THIS AGREEMENT FOR LEASE IS
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If to Agent:
Arcadian Fertilizer, L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Vice President-Legal and General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Arcadian Fertilizer, L.P.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy of all notices under this subsection 18.6 to Arcadian Corporation at
the same address as Agent and to any Assignee at such address as such Assignee
may specify by written notice to Owner and Agent.
(b) Owner shall use reasonable efforts to give to Agent,
within five days of receipt, a copy of all notices received by Owner pursuant to
any Credit Agreement and any other notices received with respect to any Unit
Premises, Unit Improvements, item of Unit FF&E, or Unit.
18.7 Modifications. Neither this Agreement nor any provision
hereof may be changed, waived or terminated, orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver or
termination is sought.
18.8 Rights Cumulative. All rights, powers and remedies herein
given to Owner are cumulative and not alternative, and are in addition to all
statutes or rules of law; any forbearance or delay by Owner in exercising the
same shall not be deemed to be a waiver thereof, and the exercise of any right
or partial exercise thereof shall not preclude the further exercise thereof, and
the same shall continue in full force and effect until specifically waived by an
instrument in writing executed by Owner. All representations and covenants by
Agent shall survive the making of the advances, and the provisions hereof shall
be binding upon and inure to the benefit of the respective successors and
permitted assigns, if any, of the parties hereto. Except to the extent provided
in subsection 2.1 hereof, Agent may not, however, assign its rights or
obligations as agent hereunder.
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18.9 GOVERNING LAW. THIS AGREEMENT HAS BEEN EXECUTED AND
DELIVERED IN THE STATE OF NEW YORK. AGENT AND OWNER AGREE THAT, TO THE MAXIMUM
EXTENT PERMITTED BY THE LAWS OF THE STATE OF NEW YORK, THIS AGREEMENT, AND THE
RIGHTS AND DUTIES OF AGENT AND OWNER HEREUNDER, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION IN RESPECT OF ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. AGENT HEREBY IRREVOCABLY
SUBMITS, FOR ITSELF AND ITS PROPERTIES, TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF
THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED
BY APPLICABLE LAW, AGENT HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR
ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF
MAY NOT BE LITIGATED IN OR BY SUCH COURT. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, AGENT AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE
JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION
WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. AGENT AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO
THE ADDRESS FOR NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY
THE LAWS OF NEW YORK. OWNER AND AGENT EXPRESSLY WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER IN TORT OR CONTRACT OR
OTHERWISE) RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
OWNER AND AGENT ACKNOWLEDGE THAT THE PROVISIONS OF THIS SUBSECTION 18.9 HAVE
BEEN BARGAINED FOR AND THAT THEY HAVE BEEN REPRESENTED BY COUNSEL IN CONNECTION
THEREWITH.
18.10 Confidentiality. Agent and Owner agree to treat
information concerning the structure and documentation of this Agreement and the
Lease confidentially, except to the extent that disclosure is required by law
(in which circumstance such party will use reasonable efforts to notify the
other party prior to such disclosure of any information). The foregoing
constraint shall not include information: (i) that is now in the public domain
or subsequently enters the public domain without fault on the part of the party
proposing to disclose the same; (ii) currently known to Agent or
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Owner from its own sources as evidenced by its prior written records; (iii) that
Agent or Owner receives from a third party not under any obligation to keep such
information confidential; and (iv) that is provided by Owner or Agent to
counsel, consultants, other advisors and regulatory authorities or lenders under
the Revolving Loan Facility, and Assignees or proposed Assignees, provided such
parties agree (including in writing if so requested by the non-providing party)
to treat any information so provided as similarly confidential.
18.11 Captions. The captions in this Agreement are for
convenience of reference only, and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
18.12 Unit Designation. Owner recognizes Agent's right to call
any Unit by such name or designation as Agent may deem appropriate or reliable
in the ordinary course of Agent's business and to place such signs, labels,
plates or other markings on any Unit Premises, Unit Improvements or Unit as
Agent may desire in exercising such right, subject to the provisions of
subsection 9.11 hereof.
18.13 Owner Capitalization. Owner shall provide to Agent on
the date hereof and hereafter upon the reasonable request of Agent, a balance
sheet of Owner certified by Owner and showing that Owner's capitalization is
such that at least 3.9% of its capitalization shall consist of contributions
from Owner's general partner and limited partners.
18.14 Conveyance of Easements, etc. In connection with any
sale of any Unit Premises, Unit Improvements, Unit FF&E or Unit pursuant to this
Agreement, Owner shall convey, and the purchaser shall accept a conveyance of,
Owner's interest in the Operating Agreement, the Gas Contract, all easements,
licenses, Ground Leases, Ancillary Facility Agreements and similar agreements
for the benefit of such Unit Premises, Unit Improvements, Unit FF&E or Unit, or
adjacent property, such conveyance to be without warranty by, or recourse to,
Owner, except that such interest shall be free of any Liens resulting from
Owner's willful or knowing act or omission unrelated to an occurrence of an
Event of Default or an Event of Unit Termination.
18.15 Partnership Existence. Upon obtaining the prior written
consent of Owner, which consent shall not be unreasonably withheld or denied,
Agent shall not be obligated to preserve its status as a partnership not taxable
as a corporation, and Agent shall be permitted to change its status as a
partnership.
SECTION 19. AGENT'S RIGHT TO PURCHASE
Upon the occurrence of an Event of Default and upon the
written request of Agent, which shall be received by Owner and any Assignee not
later than fifteen (15) Business Days subsequent to receipt by Agent of notice
(an "Event of Default Notice") from Owner or any Assignee pursuant to this
Agreement that an Event of Default has occurred, Agent shall have the right, but
not the obligation, not later than thirty (30)
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THIS AGREEMENT FOR LEASE IS
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Business Days after Agent received the notice of the Event of Default from Owner
or any Assignee, to purchase all Units at a price equal to the Unit Acquisition
Cost for such Units; provided that the purchase option contained in this
paragraph shall not be available to Agent if the purchase price and all other
amounts paid by Agent would in the circumstances in which such payment is made
constitute a preferential payment or a voidable transfer pursuant to the
provisions of the Federal Bankruptcy Code in a bankruptcy proceeding by or
against Agent or would otherwise result in the payment being subject to
recapture from Owner. In connection with, and as a condition to, the purchase of
all Units pursuant hereto, (i) Agent shall pay at the time of purchase, in
addition to the Unit Acquisition Cost, all other amounts payable by Agent under
this Agreement, including, without limitation, all Accrued Default Obligations,
and all transfer taxes, transfer gains taxes, mortgage recording tax, if any,
recording and filing fees and all other similar taxes, fees, expenses and
closing costs (including reasonable attorneys' fees) in connection with the
conveyance of such Unit to Agent and all other amounts owing hereunder, and (ii)
when Owner transfers title, such transfer shall be on an as-is, non-installment
sale basis, without warranty by, or recourse to, Owner, except that such title
shall be free of any Liens resulting from Owner's willful or knowing act or
omission.
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THIS AGREEMENT FOR LEASE IS
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Nitrogen Leasing Company, Limited
Partnership, by
Nitrogen Leasing Capital, Inc., its
General Partner
By /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President and
Assistant Secretary
Arcadian Fertilizer, L.P., by
Arcadian Corporation, its General Partner
By /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
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THIS AGREEMENT FOR LEASE IS
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EXHIBIT A
COPY OF LEASE AGREEMENT
(SEE TAB 15)
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THIS AGREEMENT FOR LEASE IS
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EXHIBIT B
AFL UNIT LEASING RECORD to Lessor: Nitrogen Leasing Company,
the Lease Agreement, dated Limited Partnership
as of Xxxxx 00, 0000, Xxxxxx: Arcadian Fertilizer, L.P.
between Nitrogen Leasing Company,
Limited Partnership, as lessor,
and Arcadian Fertilizer, L.P.,
as lessee (the "Lease Agreement").
A. Unit Premises No.: ____
Effective Date of this AFL
Unit Leasing Record ("AFL ULR") ___________ __, 19__.
B. PLEASE COMPLETE THE FOLLOWING STATEMENTS, IF APPLICABLE:
1. This AFL ULR relates to [Deed/Ground Lease] dated
________ __ 19__.
UNIT PREMISES DESCRIPTION AND RENTAL INFORMATION.
C. Type of Property (use category specified in Exhibit A to the Lease
Agreement)
D. Specific Description: (See Schedule A hereto if more space needed)
----------------------------------------------------------------------
----------------------------------------------------------------------
E. Location of
Unit Premises
-----------------------------------------------------
State County City Country
F. Unit Acquisition Cost under the Agreement for Lease as at the date
hereof is $_____________.
G. If the effective date of this AFL ULR is after the first day of the
month and prior to the Lease Rate Date in such month, the partial
first month's Basic Rent for Unit Premises placed under lease by this
AFL ULR will be paid from the date of this AFL ULR until the end of
the month on the Basic Rent Payment Date in such month. If the
Effective Date of the AFL ULR falls on or after the Lease Rate Date,
the partial first month's Basic Rent will be paid from the date of
this AFL ULR until the end of the month on the next succeeding Basic
Rent Payment Date.
H. The Initial Term and Renewal Term for the Unit Premises placed under
lease pursuant to this AFL ULR will be in accordance with the Lease
Agreement.
I. The Basic Rent is as defined in the Lease Agreement.
60
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
J. Termination of the lease of the Property or Equipment leased pursuant
to this AFL ULR will be in accordance with the Lease Agreement.
K. ACKNOWLEDGMENT AND EXECUTION
The undersigned Lessor hereby leases to the undersigned Lessee, and
the Lessee acknowledges delivery to it in good condition and otherwise
as required by the Lease of the Unit Premises described on this AFL
ULR. The Lessee agrees to pay the Basic Rent, Additional Rent and
additional payments set forth in the Lease Agreement. The covenants,
terms and conditions of this lease are those appearing in the Lease
Agreement, as it may from time to time be amended, which covenants,
terms and conditions are hereby incorporated by reference. The terms
used herein have the meaning assigned to them in the Lease Agreement.
Arcadian Fertilizer, L.P., Lessee Nitrogen Leasing Company, Limited
By Arcadian Corporation, its Partnership, Lessor
General Partner By Nitrogen Leasing Capital,
Inc., its General Partner
By By
----------------------------------- -------------------------------
Name: Name:
Title: Title:
2
61
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT C
FORM OF ACQUISITION CERTIFICATE
WITH RESPECT TO UNIT PREMISES LOCATED AT _____________*
Arcadian Fertilizer, L.P. ("Agent"), under a certain Agreement
for Lease (the "Agreement for Lease") dated as of March 27, 1996 entered into
between Nitrogen Leasing Company, Limited Partnership ("Owner") and Agent,
hereby certifies to Owner and Assignee as follows:
1. Legal Description. Attached hereto at Tab 1 is a
complete and correct copy of the legal description of
the Unit Premises located at _____________. The Unit
Premises are being (acquired in fee; leased pursuant
to a Ground Lease).
2. Unit Plans. Attached hereto at Tab 2 is a complete
and correct copy of the Unit Plans for the Unit
Improvement to be constructed on the Unit Premises,
and initialed to show Agent's and Owner's approval.
3. Unit Budget. Attached hereto at Tab 3 is a complete
and correct copy of the Unit Budget for the Unit,
including an itemization of all Unit Acquisition
Costs to Owner incurred to date or to be incurred in
connection with the acquisition of Owner's interest
in the Unit Premises and with the construction and
equipping of the Unit.
4. Unit FF&E Specifications. Attached hereto at Tab 4
is a complete and correct copy of the Unit FF&E
Specifications initialed to show Agent's approval.
[IF NO UNIT FF&E ARE CONTEMPLATED, PLEASE INDICATE
THIS.]
5. Title Information. Attached hereto at Tab 5 is a
copy of the underlying documents of record affecting
fee title to the Unit Premises from the appropriate
Governmental Authority or such other evidence of
title reasonably required by Owner in paragraph (g)
of Section 4 of the Agreement for Lease.
6. Utilities. All easements, licenses, rights of way,
rights of access and utility services and facilities
(including, without limitation, gas, electrical,
water and sewage services and facilities) (a) which
are necessary and required during the construction
period [HAVE BEEN COMPLETED; OR WILL BE AVAILABLE IN
SUCH A MANNER THAT CONSTRUCTION WILL NOT BE IMPEDED
BY
-------------------------------------
* All capitalized terms used in this Certificate shall have the meanings
given to such terms in the Agreement for Lease.
62
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
A LACK THEREOF] and (b) which are necessary for the
occupancy of the Unit and the installment of the Unit
Improvements thereon and for the completion and
operation of the Unit in accordance with the Unit
Plans are or will be completed in such a manner and
at such a time as will assure the completion and
operation of the Unit on or before the Unit
Completion Date.
7. Permits. All Permits required for the construction
of the Unit Improvements (other than the governmental
approval of the Town and Country Planning Authority
of the Republic of Trinidad and Tobago, which
approval will be obtained prior to completion of
construction of the Ammonia Project) have been or
will be issued in such a manner that construction
will not be impeded by a lack thereof. No work for
which a Permit or governmental approval is required
will be commenced or continued unless and until such
permit or governmental approval required therefor has
been issued or obtained, and once issued or obtained
will remain in full force and effect.
8. Construction Agreements. Attached hereto at Tab 6 is
a complete and correct copy of each Construction
Agreement, or if each such Construction Agreement has
not been executed on such date, a copy of the letter
agreement, dated February 16, 1996 between Owner and
The X.X. Xxxxxxx Company with respect to
construction of the Ammonia Project, a copy of the
interim work scope set forth in the four "Schedule A"
books dated January, 1996, and a copy of the letter
agreement dated March 14, 1996 between The X.X.
Xxxxxxx Company and Owner with respect to the
anticipated cost and construction period with respect
to the completion of the Ammonia Project.
9. Request for Advance. Attached hereto at Tab 7 is a
duly executed AIA Document G722 or a substantially
similar document.
10. Representations of Agent. (i) All costs and expenses
which are the subject of the Initial Advance
requested have been paid in full or will be paid in
full out of the proceeds of the Initial Advance, (ii)
there are no Liens on the Unit Premises of which
Agent has knowledge that are not Permitted Liens,
(iii) all representations and warranties made in the
Agreement for Lease, in the Lease, and in connection
with the Initial Advance, are and remain true and
correct in all material respects on and as of the
date of the Initial Advance (except to the extent
such representations and warranties expressly relate
specifically to an earlier date) and (iv) no Event of
Default, Potential Default or, with respect to the
Unit for which the
2
63
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
Initial Advance is requested, Event of Unit
Termination or Casualty Event or Potential Event of
Unit Termination, under the Agreement for Lease has
occurred and is continuing on the date such Initial
Advance is to be made or by reason of giving effect
to such Initial Advance.
11. Appraisal. If this advance relates to the Ammonia
Project, attached hereto at Tab 8 is an appraisal
prepared by Xxxxxx Xxxxxxxx & Co., which appraisal
shall include (i) a "value in use" fair market
valuation of the Ammonia Project as of the date of
Substantial Completion of the Ammonia Project, which
fair market valuation shall equal or exceed
$285,000,000, and (ii) a "value in use" fair market
valuation of the Ammonia Project of at least
$199,500,000 as at March 31, 2003.
Dated: , 19 Arcadian Fertilizer, L.P. by Arcadian
------------ -- --- Corporation, its General Partner
By:
----------------------------------
Name:
Title:
Unit Completion Date:
3
64
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT D
FORM OF INTERIM ADVANCE CERTIFICATE
WITH RESPECT TO UNIT PREMISES LOCATED AT _________
IN CONNECTION WITH A REQUEST FOR AN INTERIM ADVANCE
Arcadian Fertilizer, L.P. ("Agent"), under a certain Agreement
for Lease (the "Agreement"), dated as of March 27, 1996, entered into with
Nitrogen Leasing Company, Limited Partnership ("Owner"), delivers this Interim
Advance Certificate pursuant to Section 5 of the Agreement with respect to the
above noted Unit Premises. All terms used in this Certificate shall have the
meanings given to such terms in the Agreement. Agent hereby certifies to Owner
and Assignee as follows:
1. Continuing Representations of Agent. All
representations and warranties made in the Agreement,
in the Lease, and in connection with the Interim
Advance are and remain true and correct in all
material respects on and as of the date of the
Interim Advance (except to the extent such
representations and warranties expressly relate
specifically to an earlier date) and no Event of
Default, Potential Default or, with respect to the
Unit for which the Interim Advance is requested,
Event of Unit Termination or Casualty Event or
Potential Event of Unit Termination under this
Agreement has occurred and is continuing on the date
such Interim Advance is to be made or by reason of
giving effect to such Interim Advance.
2. Construction Progress. If reasonably requested in
writing by Owner at least three (3) Business Days
prior to the making of an Interim Advance, attached
hereto at Tab 1 is (a) an inspection report from an
independent party and (b) true copies of unpaid
invoices, receipted bills and Lien waivers and such
other supporting information as may be requested by
Owner.
3. No Other Security Interests. All materials and
fixtures incorporated in the construction of the Unit
Improvements have been purchased so that title
thereto shall have vested in Owner immediately upon
delivery thereof to the Unit Premises, except for
Permitted Liens and if requested by Owner at least
three (3) Business Days prior to the making of an
Interim Advance, attached hereto at Tab 2 are copies
of the contracts, bills of sale, statements,
receipted vouchers, or other documents under which
title thereto is claimed.
4. Statements of Expenditures. If requested in writing
by Owner, attached hereto at Tab 3 is a statement
setting forth the names, addresses and amounts due or
to become due as well as the amounts previously paid
to every contractor or subcontractor furnishing
materials, performing labor or entering into the
construction of any part of the Unit Improvements.
65
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
5. Request for Advance. Attached hereto at Tab 4 is a
duly executed AIA Document G722 or a substantially
similar document.
6. Evidence of Compliance. If requested, attached
hereto at Tab 5 are such documents, reports,
certificates, affidavits and other information as
reasonably required by Owner and any Assignee to
evidence compliance by Agent with all of the
provisions of the Agreement.
7. Construction Agreements. If not previously delivered
to Owner, attached hereto at Tab 6 is a fully
executed and complete copy of any Construction
Agreement in effect on the date hereof.
Dated: , 19 Arcadian Fertilizer, L.P. by Arcadian
---------- -- -- Corporation, its General Partner
By:
-----------------------------------------
Name:
Title:
2
66
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT E
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
WITH RESPECT TO UNIT PREMISES LOCATED AT _________
IN CONNECTION WITH A REQUEST FOR A FINAL ADVANCE
Arcadian Fertilizer, L.P. ("Agent"), under a certain Agreement
for Lease (the "Agreement"), dated as of March 27, 1996, entered into with
Nitrogen Leasing Company, Limited Partnership ("Owner"), delivers this
Certificate of Substantial Completion pursuant to Section 6 of the Agreement
with respect to the above noted Unit Premises. All terms used in this
Certificate shall have the meanings given to such terms in the Agreement.
Agent hereby certifies to Owner and Assignee as follows:
1. Construction and Equipping of the Unit. The Unit
Improvements (including all interior finish work, but
exclusive of punch list items) has been completed
within the Unit Budget and in all material respects
in accordance with the Construction Agreement and the
Unit Plans, including testing, and are accepted by
Agent.
2. Permits. All Permits and governmental approvals with
respect to the Unit have been issued or obtained and
are in full force and effect.
3. Liens. The Unit, including interior finish work, has
been completed as contemplated in paragraph (e) of
Section 6 of the Agreement free of all Liens, except
for Permitted Liens (all of which are to be itemized
as to the nature, amount, claimant and status) and
there are no current Permitted Contests with respect
to the Unit (or, if any, the nature, amount, claimant
and status thereof).
4. Final Survey. Attached hereto at Tab 3 is a final
survey showing the completed Unit Improvements, all
easements on the Unit Premises and indicating the
location of access to the Unit Premises and all
utility and water easements directly affecting the
Unit Premises.
5. Utilities. Connection has been made to all
appropriate utility facilities and the Unit
Improvements are ready for occupancy and operation.
6. Continuing Representations of Agent. All
representations and warranties made in the Agreement,
in the Lease, and in connection with this Final
Advance are and remain true and correct in all
material respects on and as of the date of the Final
Advance (except to the extent such representations
and warranties expressly relate specifically to an
earlier date) and no Event of Default, Potential
Default or, with respect to the Unit for which the
Final
67
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
Advance is requested, Event of Unit Termination or
Casualty Event or Potential Event of Unit Termination
under this Agreement has occurred and is continuing
on the date such Final Advance is to be made or by
reason of giving effect to such Final Advance.
7. AFL Unit Leasing Record. Attached hereto at Tab 4 is
a duly executed AFL Unit Leasing Record.
8. Request for Advance. Attached hereto at Tab 5 is a
duly executed AIA Document G722 or a substantially
similar document.
Dated: , 19 Arcadian Fertilizer, L.P. by Arcadian
----------- -- -- Corporation, its General Partner
By:
------------------------------------
Name:
Title:
2
68
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT F
FORM OF CERTIFICATE OF INCREASED COST
WITH RESPECT TO UNIT PREMISES LOCATED AT _________
IN CONNECTION WITH A REQUEST FOR A COMPLETION ADVANCE
Arcadian Fertilizer, L.P. ("Agent"), under a certain Agreement
for Lease (the "Agreement"), dated as of March 27, 1996, entered into with
Nitrogen Leasing Company, Limited Partnership ("Owner"), delivers this
Certificate of Increased Cost pursuant to Section 7 of the Agreement with
respect to the above noted Unit Premises. All terms used in this Certificate
shall have the meanings given to such terms in the Agreement. Agent hereby
certifies to Owner and Assignee as follows:
1. Continuing Representations of Agent. All
representations and warranties made in the Agreement,
in the Lease, and in connection with this Completion
Advance are and remain true and correct in all
material respects on and as of the date of the
Completion Advance (except to the extent such
representations and warranties expressly relate
specifically to an earlier date) and no Event of
Default, Potential Default or, with respect to the
Unit for which the Completion Advance is requested,
Event of Unit Termination or Casualty Event or
Potential Event of Unit Termination under this
Agreement has occurred and is continuing on the date
such Completion Advance is to be made or by reason of
giving effect to such Completion Advance.
2. Revised AFL Unit Leasing Record. Attached hereto at
Tab 1 is a revised AFL Unit Leasing Record prepared
by Agent.
3. Request for Advance. Attached hereto at Tab 2 is a
duly executed AIA Document G722 or a substantially
similar document.
Dated: , 19 Arcadian Fertilizer, L.P. by Arcadian
---------- -- -- Corporation, its General Partner
By:
------------------------------------
Name:
Title:
69
EXHIBIT G
UNIT FF&E SPECIFICATIONS
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
CLASS B: FURNACES/FIRED HEATERS
101-B Primary Reformer
101-BJ1 Forced Draft Fan
101-BJ1M Motor for 101-BJ1
101-BJ2 Induced Draft Fan
101-BJ2T Turbine for 101-BJ2
101-BL1 Combustion Air Preheater
102-B Start-up Heater
102-BL2 Primary Reformer Catalyst Unloading Equip.
CLASS C: EXCHANGERS
101-C Secondary Reformer Waste Heat Boiler
102-C HP Steam Superheater
103-C1/C2 HTS Effluent BFW Preheater/Steam Generator
105-C CO2 Stripper Reboiler
106-C LTS Effluent/LP BFW Exchanger
107-C CO2 Stripper Quench Cooler
109-C Lean Solution/BFW Exchanger
110-C Lean Solution Cooler
111-C CO2 Stripper Ejector Steam Generator
114-C Methanator Feed/Effluent Exchanger
115-C Methanator Effluent Cooler
120-C Ammonia Unitized Chiller
000-XX0 0xx Xxxxx Xxxxxx. Flash Drum
000-XX0 0xx Xxxxx Xxxxxx. Flash Drum
PAGE 1 OF 7
70
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
000-XX0 0xx Xxxxx Xxxxxx. Flash Drum
120-CF4 4rd Stage Refrig. Flash Drum
121-C Ammonia Conv. Feed/Effluent Exchanger Integral w/105D
122-C1 Ammonia Conv. Bed 1 Interchang. Integral w/105D
122-C2 Ammonia Conv. Bed 2 Interchang. Integral w/105D
122-C3 Ammonia Conv. Bed 3 Interchang.
123-C1 Ammonia Conv. Eff./Preheater Exch.
123-C2A Ammonia Conv. Eff./Stm. Gen.
123-C2B Ammonia Conv. Eff./BFW Preheater
124-C Ammonia Conv. Eff./Cooler
127-C Regrigerant Condenser
128-C Refrig. Comp. 3rd Stage Intercooler
130-C Syn. Gas Comp. Suction Chiller
133-C Feed Gas Comp. Kickback Cooler
134-C Syn. Gas Comp. Kickback Cooler
B 160-C Ammonia Dist. Column Reboiler
161-C1 Aqual Ammonia Interchanger
161-C2 Aqual Ammonia Interchanger
167-C Regrig. Comp. Second Stage Intercooler
172-C Methanator Start-Up Heater
173-C Start-Up Cooler
174-C Stripped Cond. Cooler
183-C MOL Sieve Regeneration Heater
188-CA Condensate Stripper Feed/Eff. Exchanger
188-CB Condensate Stripper Feed/Eff. Exchanger
188-CC Condensate Stripper Feed/Eff. Exchanger
PAGE 2 OF 7
71
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
CLASS D: REACTORS
103-D Secondary Reformer
104-D1 High Temperature Shift Converter
104-D2 Low Temperature Shift Converter
105-D Ammonia Syn Converter
106-D Methanator
107-D Primary Reformer eff. Transfer Line Asoc. w/RAD Sect. 101B & 103D
108-DA Desulfurizer
108-DB Desulfurizer
109-DA Molecular Sieve Drier
109-DB Molecular Sieve Drier
CLASS E: TOWERS
101-E CO2 Absorber
102-E CO2 Stripper
103-E LP Ammonia Scrubber
104-E HLP Ammonia Scrubber
105-E Ammonia Distillation Column
105-E Process Condensate Stripper
CLASS F: DRUMS/TANKS
101-F Steam Drum
102-F1 Raw Gas Separator Single Drum/2 Compartments
102-F2 CO2 Absorber Overhead K.O. Drum Single Drum/2 Compartments
104-F Stm. Gas Comp. Suction Drum
106-F Ammonia Separator
107-F Ammonia Letdown Drum
PAGE 3 OF 7
72
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
109-F Refrigerant Receiver
114-F Xxxxxxxx Solution Storage Tank
115-F Xxxxxxxx Solution Sump
000-X Xxxxxxxx Xxxxxx Filter
132-F Lean Solution Flash Tank
144-F Feed Gas K.O. Drum
156-F Steam Blowdown Drum
157-F Mole Sieve Regn. Cond. Drum
CLASS J: ROTATING EQUIPMENT
101-J Air Compressor
101-JCA Air Compressor 1st Stage Intercooler
101-JCB Air Compressor 2nd Stage Intercooler
101-JCC Air Compressor 3rd Stage Intercooler
101-JCD Air Compressor 4th Stage Intercooler
101-JL Lube Oil Console for 101-J
101-JT Turbine for 101-J
102-J Feed Gas Compressor
000-XX Xxxxxxx Xxxxx for 102-J Note: P&ID shows motor.
103-J Syn Gas Compressor
103-JL Common Lube Oil Console 102-J, 103-J & 105-J
103-JT Turbine for 103-J & 105-J
103-JTC Combine Surface Condenser
103-JTCC Inter/After Cond. for 103-JTC
104-J H.P. Boiler feed water pump
000-XX Xxxxxxx Xxxxx for 104-J
104-JA H.P. Boiler feed water pump
PAGE 4 OF 7
73
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
000-XXX Xxxxx Xxxxx for 104-JA
105-J Ammonia Refrigerant Compressor
B 107JA Lean Solution Pump Helper Motor Included
107JAHT Hydraulic Turbine Drive for 107-JA
107-JB Lean Solution Pump
000-XXX Xxxxx Xxxxx for 107-JB
107-JC Lean Solution Pump
107-JCT Turbine Driver for 107-JC
111-J Xxxxxxxx Transfer Pump
000-XX Xxxxx Xxxxx for 111-J
112-J Cond. Pump
000-XX Xxxxx Xxxxx for 112-J
112-JA Cond. Pump
000-XXX Xxxxx Xxxxx for 112-JA
115-J Xxxxxxxx Sump Pump
000-XX Xxxxx Xxxxx for 115-J
116-J CO2 Stripper Quench Pump
000-XX Xxxxx Xxxxx for 116-J
116-JA Co2 Stripper Quench Pump
000-XXX Xxxxx Xxxxx for 116-JA
120-J Ammonia Reflux Pump
000-XX Xxxxx Xxxxx for 120-J
120-JA Ammonia Reflux Pump
000-XXX Xxxxx Xxxxx for 120-JA
121-J Process Cond. Pump
000-XX Xxxxx Xxxxx for 121-J
121-JA Process Cond. Pump (Spare)
Page 5 of 7
74
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
000-XXX Xxxxx Xxxxx for 121-JA
000-X Xxxx Xxxxxxx Product Pump
000-XX Xxxxx Xxxxx for 124-J
000-XX Xxxx Xxxxxxx Product Pump
000-XXX Xxxxx Xxxxx for 124-JA
130-J Ammonia Distillation Column Feed Pump
000-XX Xxxxx Xxxxx for 130-J
130-JA Ammonia Distillation Column Feed Pump
000-XXX Xxxxx Xxxxx for 130-JA
131-J H.P. Scrubber Feed Pump
000-XX Xxxxx Xxxxx for 131-J
131-JA H.P. Scrubber Feed Pump
000-XXX Xxxxx Xxxxx for 131-JA
C CLASS K:
C 2601-K Control Building Located outside of Battery Limits
C 2609-K Switchgear Building Located outside of Battery Limits
CLASS L: SPECIAL EQUIPMENT
101-L Air Filter for 101-J
104-L Xxxxxxxx Solution Filter
106-L Oxygen Scavenger Injection System
107-L Aqueous Ammonia Injection System
108-L Phosphate Injection System
109-L Xxxxxxxx Antiform Injection System
110-L Xxxxxxxx Solution Mixer
111-L Compressor Discharge Separator Deleted, resulting from type of comp. utilized.
PAGE 6 OF 7
75
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 16-FEB-96
REV. C
EQUIPMENT LIST
ISBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
115-L Xxxxxxxx Sump Filter
132-L1 Flash Tank Ejector #1
132-L2 Flash Tank Ejector #2
132-L3 Flash Tank Ejector #3
132-L4 Flash Tank Ejector #4
160-L Purge Gas Recovery Unit PGRU
161-L Coalescer
CLASS U: UTILITY EQUIPMENT
B 101-U Deaerator
PAGE 7 OF 7
76
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 08-FEB-96
REV. C
EQUIPMENT LIST
OSBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
CLASS A: UTILITY BASIN & SUMP
C 0000X Xxxxxxx Xxxxx Xxxxx
X 0000X Xxx Xxxxx Intake Structure
C 2403A Oil Intercepter
C 2405A Oil Containment Sump
CLASS B: FLARE
0000-X Xxxxxxx Xxxxx Xxxxx
X 0000-XX Xxxxx Front Generator
2202-B Ammonia Storage Flare Stack
2202-BL Flame Front Generator
CLASS C: EXCHANGERS
C 2201-CA Fresh Water/Sea Water Plate Exchanger
C 2201-CB Fresh Water/Sea Water Plate Exchanger
C 2201-CC Fresh Water/Sea Water Plate Exchanger
C 2201-CD Fresh Water/Sea Water Plate Exchanger
C 2201-CE Fresh Water/Sea Water Plate Exchanger
C 2201-CF Fresh Water/Sea Water Plate Exchanger
CLASS F: DRUMS/TANKS
C 2001-F Raw Water Storage Tank
C 2002-F Boiler Feed Water Tank
C 2006-F Boiler Blowdown Drum
0000-X Xxx Xxxxx Xxxxxxxxx Xxxx
X 0000-X Xxxxxxx Storage Tank
PAGE 1 OF 5
77
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 08-FEB-96
REV. C
EQUIPMENT LIST
OSBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
2103-F Fresh Cooling Water Makeup Tank
C 2203-F Caustic Storage Drum
C 2204-F Sulfuric Acid Drum
2205-F Ammonia Flare KO Drum
C 2401-F Wastewater Neutralization Tank
CLASS J: ROTATING EQUIPMENT
C 2001-JA Demineralizer Feed Pump
C 2001-JB Demineralizer Feed Pump
C 2001-JC Demineralizer Feed Pump
C 2001-JAM Motor Driver for 2001-JA
C 2001-JBM Motor Driver for 2001-JB
C 2001-JCM Motor Driver for 2001-JC
2002-J Boiler Feed Water Makeup Pump
2002-JA Boiler Feed Water Makeup Pump
2002-JM Motor Driver for 2002-J
2002-JAM Motor Driver for 2002-JA
2003-J Boiler Feed Water Pump
2003-JA Boiler Feed Water Pump
2003-JM Motor Driver for 2003-J
2003-JAM Motor Driver for 2003-JA
2010-J Fresh Water Receiving Pump
2010-JA Fresh Water Receiving Pump
2010-JM Motor for 2010-J
2010-JAM Motor for 0000-XX
0000-XX Xxxxx Xxxxxxx Water Pump
PAGE 2 OF 5
78
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 08-FEB-96
REV. C
EQUIPMENT LIST
OSBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
2201-JB Fresh Cooling Water Pump
2201-JC Fresh Cooling Water Pump
2201-JAM Motor Driver for 2201-JA
2201-JBM Motor Driver for 2201-JB
2201-JCM Motor Driver for 2201-JC
2202-JA Seawater Cooling Water Pump
2202-JB Seawater Cooling Water Pump
2202-JC Seawater Cooling Water Pump
2202-JAM Driver for 0000-XX
0000-XXX Xxxxxx for 0000-XX
0000-XXX Xxxxxx for 0000-XX
X 0000-X Xxxxxxx Transfer Pump
B 2205-JA Caustic Transfer Pump
B 2205-JM MOTOR DRIVER FOR 2205-J
B 2205-JAM MOTOR DRIVER FOR 2205-JA
B 2206-J Sulfuric Acid Transfer Pump
B 2206-JA Sulfuric Acid Transfer Pump
B 2206-JM Motor driver for 2206-J
B 2206-JAM Motor Driver for 2206-JA
C 2208-J Seawater CW Make-up Pump
C 2208-JA Seawater CW Make-up Pump
C 2208-JM Driver for 0000-X
X 0000-XXX Xxxxxx for 0000-XX
X 0000-X Xxxxxxxxx Generator
B 2303-JF Diesel Fuel Oil Storage Tank
B 2303-JDE Diesel Drive for 2303-J
PAGE 3 OF 5
79
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 08-FEB-96
REV. C
EQUIPMENT LIST
OSBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
C 2401-J Neutralization Tank Pump
C 2401-JA Neutralization Tank Pump
C 2401-JM Motor Driver for 2401-J
C 2401-JAM Motor Driver for 2401-JA
CLASS L: SPECIAL EQUIPMENT
2001-L Phosphate Injection System
2003-L PA/IA Compressor Package
2003-LJ Plant Air Compressor
2003-JF1 Plant Air KO Drum
2003-LL Instrument Air Dryer Package
2003-LF2 Instrument Air Receiver
0000-X Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
X 0000-X Xxxxxxxx Filter
C 2202-L Seawater Chlorination Unit
C 2203-L Cooling Tower Chlorination Unit
C 2205-L Seawater Acid Injection
C 2206-L Seawater Dispersant Inject. (Bromide)
0000-X Xxxxxxxx Xxxx Xxxxxxx
X 0000-X Xxxx Oil Skimmer
CLASS U: UTILITY EQUIPMENT
0000-X Xxxxx Xxxxxxxxx Xxxx
X 0000-XX Xxxx/Xxxxxxx Injection Package
0000-XX0 Xxxxxxxxx Injection Xxxx
0000-X Package Boiler
PAGE 4 OF 5
80
ARCADIAN CORPORATION XX XXXXXXX
TRAIN 4 AMMONIA PLANT 1850 MTPD KAAP JOB NO. 7710
POINT LISAS, TRINIDAD 08-FEB-96
REV. C
EQUIPMENT LIST
OSBL
Rev. No. Item No. Description Remarks
-------- -------- ----------- -------
C 2003-U Mixed Bed Polisher
2101-U Seawater Cooling Tower
Page 5 of 5
81
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT H
ENVIRONMENTAL CERTIFICATE
1. Arcadian Fertilizer, L.P. ("Agent"), is a party to a
certain Agreement for Lease, dated as of March 27, 1996 (the "Agreement for
Lease"), entered into with Nitrogen Leasing Company, Limited Partnership
("Owner"). Agent is herewith delivering to Owner and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A. "Rabobank Nederland", New York Branch (the
"Assignee") an Acquisition Certificate with respect to a leasehold interest in
certain premises located at the Xxxx of Couva, County of Caroni in the Republic
of Trinidad and Tobago. Capitalized terms used herein and not otherwise
defined shall have the meaning given such terms in the Agreement for Lease.
2. Except as described in the Environmental Report
(hereinafter defined), Agent has no actual knowledge and has not given or
received any notice indicating, that (a) any prior or present owner, operator,
tenant or occupant of any portion of the Unit has spilled, released, disposed
of, or discharged (collectively "managed") any Hazardous Substances
(hereinafter defined) on, from, beneath or affecting the Unit or any portion
thereof in amounts or concentrations requiring remediation under applicable
Environmental Regulations; (b) any prior or present owner, operator, tenant or
occupant of any portion of the Unit Premises has received any notice,
directive, citation, subpoena, summons, order to show cause, complaint or other
communication from any Governmental Authority or entity or Person with respect
to the management of any Hazardous Substances on, from, beneath or affecting
the Unit Premises or any portion thereof; (c) Agent has not given notice to any
insurance broker or insurance carrier under any insurance policy that there has
been an occurrence relating to the release of Hazardous Substances on, from,
beneath, or affecting the Unit or any portion thereof; or (d) there are
currently any agreements, consent orders, decrees or other directives of any
applicable court or governmental or quasi-governmental agency requiring any
tests, studies, inspections, work, monitoring or other removal or remedial
activities with respect to the management of any Hazardous Substances on, from,
beneath or affecting the Unit Premises or any portion thereof, or any
threatened proceeding concerning the Unit Premises or any portion thereof which
is related to Environmental Regulations (hereinafter defined).
3. For purposes of this document, the following terms
shall have the following meanings: (i) "Environmental Regulations" shall mean
each and every applicable federal, state or local law, statute, ordinance,
code, rule, order, regulation, or other published requirement (including but
not limited to, consent decrees and administrative orders) of any jurisdiction
regulating, relating or imposing obligations, liabilities or standards of
conduct with respect to human health or safety, to the environment, or to
Hazardous Substances, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended ("CERCLA")
(42 U.S.C. Section 9601, et seq.), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. Sections 9601-9675), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Section 6901, et seq.),
the Emergency Planning and Community Right-To-Know Act, as amended (42 U.S.C.
Section 11001, et seq.) the Water Pollution Control Act, as amended (33 U.S.C.
Section 1251, et seq.), the Hazardous Materials Transportation
82
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
Act, as amended (49 U.S.C. Section 1801, et seq.), the Toxic Substances
Control Act, as amended (15 U.S.C. Section 2601, et seq.), and any so called
"Superfund" or "Superlien" law, (ii) "Environmental Report" shall mean the
environmental report delivered pursuant to paragraph (v) of Section 4 of the
Agreement for Lease to and accepted by Owner and the Assignee in connection
with the acquisition of the Unit Premises, and (iii) "Hazardous Substances"
shall mean, without limitation, any solid, liquid or gaseous wastes, substances
or materials containing or constituting urea formaldehyde, polychlorinated
biphenyls, petroleum products, methane, radioactive materials, hazardous
wastes, hazardous or toxic substances, or related materials, asbestos or any
material containing asbestos, pollutants, or any other substance, material,
chemical compound, waste or item defined as or determined by a governmental
authority having jurisdiction to be hazardous or toxic pursuant to any
Environmental Regulations applicable to the Unit Premises or the business
operations conducted thereon.
Arcadian Fertilizer, L.P. by
Arcadian Corporation, its General Partner
By:
--------------------------------------------
Title:
-----------------------------------------
2
83
EXHIBIT I
OPERATING AGREEMENT
1
OPERATING AGREEMENT - 04 Plant
THIS CONTRACT made in duplicate with effect from the 1st day of January 1998,
by and between the NITROGEN LEASING COMPANY, LIMITED PARTNERSHIP, a Delaware
Limited Partnership having an address c/o Nitrogen Leasing Capital, Inc.
Project and Lease Finance Group Xxxxx Xxxxx, 00xx Xxxxx World Financial Center,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "NLC")
which expression shall where the context so admits include its lessees, sub-
lessees, successors and assigns of the One Part and ARCADIAN TRINIDAD LIMITED,
a company duly incorporated as above and having its registered office at
Xxxxxxxx Bay Road, Point Lisas, Couva, Trinidad, W. 1. (hereinafter referred to
as "ATL"), of the Other Part, NLC and ATL hereinafter sometimes individually
referred to as party and collectively as the Parties.
WITNESSETH THAT
WHEREAS, NLC is the owner of a plant for the purpose of producing Anhydrous
Ammonia at Point Lisas, Trinidad hereinafter referred to as "the Ammonia
Plant";
WHEREAS, NLC desires to lease the Ammonia Plant with the benefit, inter alia,
of a competent and effective operator and with the benefit of the use of the
shared facilities set out in Section 17 hereof ("the Shared Facilities"),,
WHEREAS, ATL is the owner and operator of two ammonia plants also situate at
Point Lisas, Trinidad hereinafter referred to as "the ATL Plants" and has
agreed to undertake the operation of the Ammonia Plant, and to provide such
plant with all or any of the Shared Facilities.
WHEREAS, the Parties desire to set out in this Contract rights, duties,
privileges and obligations as between themselves concerning the operation of
the Ammonia Plant;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
hereinafter set forth the Parties hereto agree as follows:
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Operating Agreement - 04 Plant
1. DEFINITIONS
For the purposes of this Contract the following terms shall have the
following meanings:
(a) "Affiliate Company" means a company:
i) in which a Party hereto owns directly or indirectly share
capital conferring a majority of votes at the shareholder's
meetings of each company or
ii) which is the owner directly or indirectly of share capital
conferring a majority of votes at the shareholder's meeting
of a Party hereto or
iii) whose share capital conferring a majority of votes at the
shareholder's meetings of such company is owned directly or
indirectly by a company which also owns the share capital
conferring a majority of votes at the shareholder's meetings
of a Party hereto.
(b) "Ammonia Plant" means the Plant and facilities for the production of
anhydrous ammonia owned by NLC and located at Point Lisas, Trinidad,
(c) "Coordinating Committee" means the Coordinating Committee described
in Section 13 hereof;
(d) "Direct Costs" means the ATL costs defined in Section 18 (b) hereof,
(e) "Direct Employee Costs" is a part of Direct Costs and means the
total costs to ATL of ATL employees identifiable as being applicable
solely to the Ammonia Plant operations, including the salaries,
benefits and related payroll costs specific to those employees,
(f) "Invoice" means the xxxx submitted by ATL to NLC as defined by
Section 15 hereof;
(g) "Overhead and Other Costs" means the ATL costs defined in Section
18(c):
(h) "Party" means a signatory of this Contract;
(i) "Parties" means both signatories to this Contract;
(j) "Rent" means the charge defined by Section 18(a) hereof,
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3
Operating Agreement - 04 Plant
(k) "Senior Executive Management" means the Managing Director of each of
the Parties hereto;
(1) "Shared Facilities" means those facilities as described in Section
17 hereof;
(m) "Spending Plan" means the spending plan for the Ammonia Plant as
described in Section 12 hereof;
(n) "Third Parties" means parties other than NLC and ATL;
(o) "TT Dollar" means currency of the Republic of Trinidad and Tobago;
(p) "Work Programme" means the programme for operation and maintenance
of the Ammonia Plant described in Section 12 hereof.
2. APPOINTMENT OF OPERATOR
NLC appoints ATL as operator of the Ammonia Plant and in accordance
with the provisions hereof, ATL accepts such appointment and shall act as
such operator.
3. RELATION OF PARTIES
It is the express intention of the parties hereto that in the performance of
this contract, ATL's status shall be that of independent contractor, and the
relation of the parties hereunder shall in no event be construed as that of
principal and agent or master and servant for any purpose whatsoever.
As an independent contractor any and all individuals utilized, directly or
indirectly by ATL shall be deemed to be the employees or subcontractors of ATL
and not those of NLC and ATL shall be solely responsible for the payment of
such individuals. ATL will have the authority to control and direct the
performance of its employees with respect to the detail of its work carried out
hereunder.
4. COMPLIANCE WITH LAWS
ATL shall be subject to and shall require its employees, subcontractors and all
others directly or indirectly employed or engaged by ATL to be subject to all
valid applicable laws, statutes, ordinances, rules and regulations of national
and local governments (and subdivisions or agencies thereof) of the Republic of
Trinidad and Tobago.
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4
Operating Agreement - 04 Plant
5. ATL PERSONNEL
The selection of workers, the hours of labour and the compensation for services
to be paid to any and all workers in connection with ATL's operations hereunder
and the decision to terminate such workers shall be determined solely by ATL
taking into account the Work Programmes and Spending Plans and shall comply
with all applicable employment laws. All such workers used in ATL's operations
hereunder shall be employees of ATL.
6. DUTIES OF NLC
In carrying out its obligations hereunder, NLC shall:
(a) Procure, pay for and arrange for timely delivery to the Ammonia
Plant of raw materials and utilities as provided for under this
Contract;
(b) Cause to be carried insurance of the types and amounts which NLC is
obliged to carry under all applicable laws and which shall include
insurance in respect of the Ammonia Plant equipment, buildings,
spare parts, vehicles supplies and Ammonia;
(c) Provide all necessary information required by ATL for the
preparation of Work Programmes and Spending Plans hereunder or the
revision thereof.
7. ATL's DUTIES
In carrying out its obligations hereunder ATL shall:
(a) Direct, supervise and be responsible for operations and maintenance
at the Ammonia Plant, which shall include solving technical and
operating problems which arise in the ordinary course of the Ammonia
Plant business, improving plant operations, maintaining product
quality and yields, seeking energy efficiency and the like in
accordance with the approved Work Programmes and Spending Plans;
(b) Efficiently utilize the resources provided by NLC to produce and
store Ammonia of commercial quality consistent with the capability
of the resources provided and the specifications which NLC shall
provide;
(c) Operate and supervise the loading mechanism for the purpose of
loading Ammonia into ships;
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Operating Agreement - 04 Plant
(d) Be responsible for the shipping of the Ammonia production at the
Ammonia plant;
(e) Assign, for the Ammonia Plant operations, staff skilled in Ammonia
Plant operations and only workers who possess the necessary permits,
licences, skills and qualifications to perform their work,
(f) Keep true and correct books, accounts and records of all the Ammonia
Plant financial, accounting, manufacturing and maintenance
operations performed by ATL hereunder;
(g) Subject to performance by NLC of Section 15 to pay all bills for
costs and expenses incurred by ATL in the course of the Ammonia
Plant operations;
(h) Promptly notify NLC of claims and litigation of Third Parties which
come to its notice relating to the Ammonia Plant or operation
thereof, and unless otherwise directed by NLC to prosecute, defend
or settle such claims and litigation on NLC's behalf;
(i) Train all the employees selected for employment by ATL in connection
with its operations hereunder;
(j) Furnish NLC with all information in its possession relating to, and
the preparation of financial, accounting and tax reports and any
other reports required by the Government of Trinidad and Tobago and
its agencies concerning the Ammonia Plant its operation, production
and loading activities.
(k) Submit in a timely manner directly to local authorities all reports
required by such authorities from ATL. Such authorities include but
are not limited to the Factory Inspectorate, Police, Fire Services,
Ministry of Energy and the Ministry of Health. Copies of these
reports will be furnished to the Executive Committee prior to their
submission to such authorities;
(1) Prepare Work Programmes and Spending Plans as required hereunder;
(m) Perform any other services or duties regarding the Ammonia Plant
operation and maintenance which NLC may request and which is within
ATL's ability to perform and which ATL agrees to perform,
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Operating Agreement - 04 Plant
(n) Obtain all regulatory approvals from the local governmental
authorities necessary for conducting the operations of the Ammonia
plant.
8. WARRANTY
ATL warrants that all work hereunder shall be done in accordance with this
Contract and in a safe efficient and workmanlike manner in accordance with good
industry practice
9. INDEMNITY AGREEMENT
ATL agrees to indemnify, hold harmless and defend NLC, its shareholder and all
of its respective directors, officers, employees, agents and representatives
from and against any- claim demand cause of action liability loss and expense
by reason of:
(a) claims of any actual or asserted violation by ATL of any law,
ordinance, regulation, rule or order of any government or;
(b) injury to or death of persons (including, but not limited to, the
employees or agents of NLC, ATL or ATL's sub-contractors and
suppliers) or damage to or loss of property (including but not
limited to, the property of NLC) or pollution arising directly or
indirectly out of the acts or omissions of ATL or its sub-
contractors, suppliers or agents, or any of their employees in the
performance of this Contract.
ATL, however, shall not be liable under any circumstances for any loss, damage
or expense incurred or suffered by NLC or its shareholder with respect to the
Ammonia Plant and/or its operation, unless such loss, damages or expense, is
caused by ATL's reckless or intentional misconduct or occasioned by the breach
of any of its duties contained herein.
10. CONSEQUENTIAL DAMAGES
Except for gross negligence or willful misconduct neither party shall be liable
to the other for special or consequential damages for loss of profits,
liability to third parties for failure to deliver products or loss of
opportunity for business with third parties.
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Operating Agreement - 04 Plant
11. SAFETY
ATL shall require its employees, sub-contractors and agents to be subject to
all applicable national, international and local health and safety laws and
regulations and ATL shall ensure the implementation of all applicable health
and safety rules and procedures while on the Ammonia Plant and shall also have
the primary responsibility for notifying and training its employees,
sub-contractors and agents with respect to the said health and safety rules and
procedures and any other governmental laws or regulations pertaining to the
health and safety of workers.
12. WORK PROGRAMMES AND SPENDING PLANS
(a) A Work Programme for the purposes of this Contract shall be an
annual plan. A Work Programme shall include desired Ammonia
production rates, desired inventory levels, forecast of quantity to
be shipped, shipping and loading requirements, repair and
maintenance programmes in accordance with good industry practice. A
Work Programme shall also include but not be limited to capital
improvements, debottlenecking projects, modification and repair of
the Ammonia Plant.
(b) A Spending Plan for the purposes of this Contract shall be the
schedule of estimated costs including operating, maintenance and
capital expenditures by monthly periods which will reflect the
various levels and types of activities set out in the Work Programme
for the same period.
(c) On or about January 1st, 1998, NLC shall prepare the monthly
production requirements and shipping volumes of Ammonia, and a
programme for capital expenditure.
(d) Within sixty (60) days of receipt of the proposed production and
shipping volumes, ATL shall then propose a Work Programme and
Spending Plan covering operations to be conducted during the period.
(e) Within thirty (30) days after ATL has furnished to NLC each proposed
Work Programme and Spending Plan, the Coordinating Committee shall
meet for the purpose of reviewing, and if necessary revising, and
approving such Work Programme and Spending Plan.
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Operating Agreement - 04 Plant
13. COORDINATING COMMITTEE
1. There shall be established a committee to be known as the Coordinating
Committee which shall be responsible for day-to-day coordination between
NLC and ATL of ATL's operations of the Ammonia Plant
2. The Coordinating Committee shall be composed of the ATL Plant Manager with
the ATL Operations Manager appointed as an alternate, and the Plant
Superintendent of NLC with a designated alternate, such alternates to act
in the absence of the substantive members. These appointments shall be
made within seven days of the execution of this Contract, and from time to
time thereafter upon written notice.
3. Such other additional personnel as required from ATL and/or NLC may attend
Coordinating Committee meetings from time to time.
4. The Coordinating Committee shall be subject to the general direction of
the Senior Executive Management of ATL and NLC respectively, and
5. Matters considered but not settled by the Coordinating Committee shall be
referred to the said Senior Executive Management.
14. RAW MATERIALS
NLC shall procure and pay for raw materials and utilities required by ATL for
making Ammonia, including, but not limited to natural gas, water and
electricity.
15. INVOICING AND PAYMENT
(A) INVOICING
By the fifteenth day of each month ATL will submit to NLC, an invoice for the
priori month's operations in such detail as may be reasonably required by NLC,
together with a statement and all verifying documentation together with a
statement detailing estimated expenditure for the current and following month.
(B) PAYMENT
NLC will make payment in Trinidad and Tobago Dollars to ATL of the amount shown
in the invoice for the prior month's operations on or by the fifteenth day of
the following month.
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Operating Agreement - 04 Plant
If all or any part of the sum shown due on any invoice provided for herein is
not paid when due, or if all or any part of the sums shown due are disputed and
unpaid by NLC, but it is subsequently determined that NLC was in error, the
interest on any unpaid amount shall be paid by NLC. Such interest shall accrue
and be compounded daily at an annual rate equivalent to one percentage point
above the prime lending rate as quoted on the due date by Citibank (Trinidad &
Tobago) Limited, main branch in Port of Spain, Trinidad, W.I. from the due date
thereof until paid.
16. REPORTS
ATL shall furnish or cause to be furnished to the Senior Executive Management
of NLC, the following reports
(a) Copies of each monthly operating report for the prior month with
such information as would be required by NLC to complete financial
statements. Such report to be submitted to NLC on or before the
fifteenth (15th) of the month;
(b) A daily report, with month and year-to-date accumulations showing
Ammonia production and shipment quantities, beginning and ending
inventories and consumption of raw materials and utilities"
(c) A report summarizing operating activities for the prior month and
any anticipated variation, and the cause for variation, from the
current Work Programme. Such report shall be submitted on or before
the fifteenth of each month;
(d) Such other reports as NLC may from time to time reasonably require.
17. SHARED FACILITIES
ATL agrees to provide NLC with all or any of the Shared Facilities and to
subordinate in favor of NLC, its rights access and entitlement to the said
Shared Facilities hereinafter enumerated:
A. (a) Ammonia product storage and loading facilities;
(b) Package refrigeration
(c) Storage flare
(d) Loading emergency shutdown device
(e) Sea water intake (to cooling tower) chlorinator
(f) Potable water
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Operating Agreement - 04 Plant
(g) Fire water
(h) Instrument air
(i) Plant air
(j) Nitrogen
(k) Non-contaminated water
(1) Sanitary sewerage
(m) Cooling tower blowdown
(n) Demineralized water
(o) Sulphuric acid
(p) Caustic soda solution
(B) The list at (A) above may be amended by the parties from time to time.
18. CHARGES
NLC shall pay ATL each of the following charges:
(a) Rent - ATL shall charge NLC a rental for each of ATL's owned or
leased facilities or items which are used for the benefit of the
Ammonia Plant and ATL's existing plants referred to in Section 17
above. In such cases, the rent for such facilities or items shall
be based on ATL's depreciation of its investment cost allocated in
accordance with the provisions of subSection (d) below,
(b) Direct Costs - ATL shall charge NLC for all costs identifiable as
being applicable solely to the Ammonia Plant operations, including
but not limited to Direct Employee Costs, repair materials, spare
parts, chemicals, tools and equipment, office and other supplies,
repairs and the cost of insurance required in Section (21) hereof;
(c) Overhead and Other Costs - ATL shall charge NLC for Overhead and
Other costs incurred with respect to this Contract and not covered
in Sections (a) and (b) above including but not limited to
management, supervisory, technical, clerical and administrative
personnel costs and costs of shared facilities and services. These
Overhead and Other Costs shall be allocated in accordance with the
provisions of sub-Section (d) below;
(d) Allocations - Rent for each ATL owned or leased facility or item
used for the benefit of the Ammonia Plant and ATL's plants, and
Overhead and Other Costs shall be allocated seventy-two percent to
ATL and twenty- eight percent (28%) to NLC;
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Operating Agreement - 04 Plant
19. AUDITS
NLC, upon at least seven (7) days advance written notice to ATL, shall have the
right at its sole expense, to inspect and/or audit ATL's books and records
pertaining to ATL's operations of the Ammonia Plant hereunder for any calendar
year or portion thereof within the preceding twenty four (24) months.
20. CONFIDENTIALITY
(a) ATL will treat as confidential all technical and other information,
data, techniques and materials developed or provided by NLC to carry
out the terms of this Contract and will not use the same or any part
thereof to any third Party without the prior specific written
approval of NLC.
(b) NLC will treat as confidential all technical and other information,
data, techniques and materials developed or provided by ATL to carry
out the terms of this Contract, will not use the same or any part
thereof except in accordance with the terms and provisions of this
Contract, and will not disclose the same or any part thereof to any
third Party without the prior specific written approval of ATL.
(c) Notwithstanding (a) and (b) above, there will be no obligation on
either Party to treat as confidential under this Section any
technical or other information, data, techniques and materials which
were part of the public domain at the effective date of this
Contract or become part of the public domain through no fault of
either Party.
21. INSURANCE
(a) ATL shall carry such insurance as may be required by the laws and
regulations of the Republic of Trinidad and Tobago for its
performance under this Contract and such other insurance as the
Parties may deem necessary and desirable. NLC shall pay the cost of
such insurance as a Direct Cost under Section 18(b) hereof.
(b) ATL shall require and ensure that its contractors and subcontractors
comply with the workmen's compensation laws of the Republic of
Trinidad and Tobago or laws of similar import, and to carry
insurance in such amounts as they may be instructed to carry by ATL.
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Operating Agreement - 04 Plant
22. TERM
(a) Except as otherwise provided in this section 22, this Contract will
have an initial term of ten (10) years from the date on which it is
executed by both Parties. Upon a written request from NLC to ATL
made at least twelve months prior to the expiration of this
Contract, the Parties may agree to extend this Contract for a
further period upon terms and conditions to be agreed between the
Parties.
(b) In the event of termination of this Contract, ATL shall make readily
available to NLC for removal from ATL's Plant all assets in its
possession relating to the Ammonia Plant and owned by NLC and copies
of all records and other information in its possession and necessary
for its successor to discharge duties and obligations similar to the
duties and obligations of ATL hereunder. ATL shall endeavor to
effect an orderly transfer of operations to its successor, if any.
23. LIENS AND ENCUMBRANCES
Except as may be authorized by NLC, ATL shall not permit any lien or other
encumbrance to be filed or to remain against the Ammonia Plant, its materials,
physical equipment, real or personal property, and shall use all action
necessary to require its subcontractors and suppliers to so agree:
24. ASSIGNMENT
(a) This Contract shall not be assigned by either Party without the
prior written consent of the other party, such consent not to be
unreasonable withheld, except that either Party may, upon written
notice to the other Party, assign all of this Contract to an
affiliate company, provided that any such assignment shall not
relieve the assignor of its obligations under this contract, except
to the extent to which such obligations are in fact performed by the
assignee.
(b) This Contract shall be binding up on and inure to the benefit of the
successors or assigns of the Parties whether such succession results
from assignment, merger, consolidation, sale or transfer of
substantially all the assets and business of the Parties or
otherwise.
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Operating Agreement - 04 Plant
25. FORCE MAJEURE
(a) Any delays in performance of either party under this contract shall
be excused if and to the extent caused by occurrences beyond the
control if the parties affected, including but not limited to any
action or inaction of any government or government entity, acts of
God, strikes, or other concerted acts of workmen, fires, floods,
explosion, riots, wars, rebellion, sabotage and non-availability of
materials or labour. The affected party shall give written notice
to the other party within five (5) mailing days after such party
becomes aware of such occurrence and the Impact thereof. In no of
funds be considered a force majeure event.
(b) The parties shall meet within seven (7) days of receipt of the said
notice to discuss the consequences of the events of force majeure
with a view to minimizing the effects thereof.
(c) Upon the occurrence of an event constituting Force Majeure, the
Party affected shall notify the other Party in writing as soon as
possible far as Possible, remedy the concerning the event and shall,
so event with all reasonable dispatch. The settlement of strikes or
other labour difficulties shall be entirely within the discretion of
the Party or Parties having the difficulty, and the above
requirement that any Force Majeure shall be remedied with all
reasonable dispatch shall not require the settlement of strikes or
other labour difficulties by acceding to the demands of any
opposing individual or organization therein when such course is
inadvisable in the discretion of the Party having the difficulty.
(d) Without prejudice to the other provisions of this Section, the
Parties, shall meet within seven days of receipt of such notice and
discuss the consequences of the events of Force Majeure with a view
to minimizing the effects thereof.
(e) It is expressly agreed that this Section 25 shall not deprive ATL of
any rights or remedies otherwise available in case of expropriation,
requisition, confiscation or nationalization or restriction on
convertibility of currency by any law, regulation or action.
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Operating Agreement - 04 Plant
26. NOTICES
All notices, requests, and other communications required or desired to be
delivered pursuant to this Contract shall be in writing and delivered or mailed
postage prepaid as follows:
If to ATL, addressed as follows:
Arcadian Trinidad Limited
Atlantic Avenue
Point Lisas Industrial Estate
Couva
TRINIDAD W I.
Attention: The Managing Director
If to NLC, addressed as follows:
c/o Nitrogen Leasing Capital Inc.
Project and lease Finance Group Xxxxx Xxxxx
00xx Xxxxx World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000, XXX
Attention:
Either Party may change the address to which notices are to be given by mailing
written notice thereof to the other Party as hereinabove provided.
27. ARBITRATION
(a) Any disputes arising between the Parties in connection with this
Contract which cannot be settled between the Parties shall be
referred to and determined by Arbitration.
(b) Arbitration shall be conducted before a panel of three (3)
Arbitrators one of whom shall be appointed by each Party to the
dispute and the third Arbitrator shall be appointed by the two
Arbitrators so appointed.
97
15
Operating Agreement - 04 Plant
(c) Either Party may give notice in writing to the other that it wishes
a dispute settled by Arbitration. With fifteen (15) days of
delivery of such notice, each Party shall appoint an Arbitrator as
required by sub-section (b) above. Should a party fail to appoint
an Arbitrator when required to do so, then the single Arbitrator
appointed by the other shall proceed to arbitrate on the dispute as
if he were appointed and approved by both Parties. The two
arbitrators shall appoint the third arbitrator within fifteen (15)
days of their appointment, and if they fail to do so, either Party
may apply to the Chief Justice of Trinidad and Tobago to make the
appointment of the third arbitrator.
(d) Arbitration shall be conducted in accordance with the Arbitration
Act Ch 5:01 of the Laws of the Republic of Trinidad and Tobago and
any amendments thereto. The cost of Arbitration shall be for the
account of the Party against whom an award is made or as ordered by
the Arbitrator of the dispute.
(e) The award or determination of the Arbitrators, including a decision
as regards cost of the arbitration, shall be final and binding on
the Parties hereto and the Parties agree that judgment may be
entered in any Court having jurisdiction upon the terms of the award
or application may be made to such Court for a judicial acceptance
of the award or an order of enforcement as the case may be.
(f) The failure of either Party in any one or more instances, to insist
upon performance of any of the provisions of this Contract, or to
exercise any of its rights and privileges hereunder, shall not be
construed as a waiver of the future enforcement of that Provision.
Either party may give written notice of its desire to such amendment of any
term of the contract and upon receipt of such notice, the parties shall within
thirty (30) days thereafter, diligently meet and discuss the proposed
amendments with a view to finally resolving the same. No amendments shall be
binding unless effected by an instrument in writing signed by both of the
parties hereto.
98
16
Operating Agreement - 04 Plant
28. HEADINGS
The Headings of this Contract are for convenience and reference only and shall
not define or limit the terms hereof. Any provision of this Contract which is
prohibited, penalized or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition, penalty or
unenforceability without invalidating the remaining provisions hereof, or
affecting the validity of enforceability of such provisions in another
jurisdiction of the validity or enforceability of this Contract as a whole.
This Contract set forth the entire Contract and understanding of the Parties in
respect of the transactions contemplated hereby and supersedes any and all
prior agreements, arrangements and understandings relating to the subject
matter hereof. No promise, inducement or statement of intention has been made
by either Party hereto which is not set forth in this Contract, and the Parties
hereto shall not be bound or liable for any alleged promise, inducement or
statement of intention not so set forth.
IN WITNESS WHEREOF, the Parties have duly executed this Contract in duplicate
on the 5th day of March, 1996.
NITROGEN LEASING COMPANY, LIMITED PARTNERSHIP
By: [Illegible]
----------------------------------
Title: Vice President and
Assistant Secretary
-------------------------------
Witnessed By: [Illegible]
------------------------
Title: Legal Assistant
-------------------------------
ARCADIAN TRINIDAD LIMITED
By: [Illegible]
----------------------------------
Title: Managing Director
-------------------------------
Witnessed By: [Illegible]
------------------------
Title: Company Secretary
-------------------------------
99
EXHIBIT J
DESCRIPTION OF THE AMMONIA
PROJECT
DESCRIPTION OF THE PROPERTY TO BE LEASED
Ammonia Plant Project
The project is to build at the existing Arcadian complex in Trinidad a
1,850 metric tonne per day ("MTPD") ammonia plant. Ammonia will be produced as
refrigerated product going to the new atmospheric refrigerated storage tankage.
The plant will be operated by Arcadian Trinidad Limited (ATL) and will be
engineered, procured, and constructed by The X. X. Xxxxxxx Company ("MWK").
The project will utilize MWK's 1,850 MTPD ammonia process based on the low
energy natural gas reforming process offered and licensed by MWK.
The ammonia plant will be designed to produce 1,850 MTPD ammonia at -28
degrees F for storage in non-pressurized tanks. Processing steps consist of
the following:
1. Raw Synthesis Gas Preparation - Raw synthesis gas is produced from
natural gas as follows: compression, preheating and desulfurization
is followed by steam reforming of the hydrocarbons in the natural
gas in the primary reformer furnace. Auto thermal reforming in the
secondary reformer where the remainder of the natural gas is
converted to hydrogen, carbon monoxide and carbon dioxide while
introducing sufficient process air to provide the nitrogen required
for ammonia synthesis. The carbon
100
monoxide is further reformed to carbon dioxide and hydrogen in shift
reactor utilizing steam.
2. Synthesis Gas Purification - In this section, the raw synthesis gas
is processed to remove carbon dioxide and carbon monoxide yielding a
highly pure hydrogen-nitrogen rich synthesis gas. The carbon
dioxide removal is accomplished by use of an improved Xxxxxxxx
Low-Heat process (licensed by VOP). Final removal of residual
carbon dioxide and carbon monoxide is accomplished by methanation.
3. Purified Synthesis Gas Compression and Ammonia Synthesis - The above
gas along with a recycled hydrogen stream is then compressed in a
single case centrifugal compressor, a recycle wheel also compresses
the loop circulating gases. The combined gases are then preheated
before going to the ammonia reactor for conversion to ammonia.
After heat recovery, the reactor effluent is cooled with cooling
water and then ammonia refrigerant to condense the ammonia from the
gases. The liquid ammonia formed is depressurized and sent to
refrigerated ammonia storage.
The plant will contain a new control room and motor control center located
at its battery limits. No new administration buildings or offices will be
required. There will be no changes to the existing urea facility or the ship
loading dock.
101
All normal plant utilities, including fresh water, potable water, cooling
water, main and emergency power, and fire water will be provided as part of
this project. Such services will also involve an operating agreement with ATL.
102
EXHIBIT K
PROJECT PARCEL
Tab 1
Legal Description
000
XXXXX XXXXXXXX
XXXXXXXXXXX XX XXXXXXXXXX XXXXXX
ALL AND SINGULAR that certain niece or parcel of land situate in the Xxxx of
Couva in the Island of Trinidad comprising ELEVEN HUNDRED AND FIFTY SIX ACRES
AND TWENTY THREE PERCHES be the same more or less and which said parcel of
land. is delineated and coloured Pink on the Plan annexed to and marked "A" on
the Deed of Conveyance dated 1Oth day of April, 1978 a.-Id registered as number
8301 of 1978.
ALL AND SINGULAR those four pieces or parcels of land situate in the Xxxx of
Couva in the Island of Trinidad the First Thereof comprising ONE HUNDRED SIXTY
AND SIXTY ACRES more or less and bounded on the North partly by lands of United
Molasses Company Limited partly by parcel 2 secondly herein described and
partly
104
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as are herein contained.
(c) This Lease shall be construed interpreted and performed in accordance with
the laws of the Republic of Trinidad and Tobago.
(d) Headings are inserted for convenience only and shall be ignored in the
construction and interpretation of this lease.
(e) No amendment, alterations, change or addition to this lease shall be
effective unless it is in writing and signed by the duly authorised
representatives of both parties.
IN WITNESS WHEREOF the Common Seal of POINT LISAS INDUSTRIAL PORT DEVELOPMENT
CORPORATION LIMITED was hereunto affixed the 26th day of July 1982 and the
Common Seal of FERTILIZERS OF TRINIDAD AND TOBAGO LIMITED was hereunto affixed
the 26th day of July 1982.
FIRST SCHEDULE - DESCRIPTION OF INDUSTRIAL ESTATE
ALL AND SINGULAR that certain piece or parcel of land situate in the Xxxx of
Couva in the Island of Trinidad comprising ELEVEN HUNDRED AND FIFTY SIX ACRES
AND TWENTY THREE PERCHES be the same more or less and which said parcel of
land is delineated and coloured Pink on the Plan annexed to and marked "A" on
the Deed of Conveyance dated 1Oth day of April, 1978 and registered as number
8301 of 1978.
ALL AND SINGULAR those four pieces or parcels of land situate in the Xxxx of
Couva in the Island of Trinidad the First Thereof compromising ONE HUNDRED AND
SIXTY ACRES More or less and bounded on the North partly by lands of United
Molasses Company Limited partly by parcel 2 secondly herein described and
partly
105
- 23 -
by the Gulf of Paria and partly by State Lands on the East part by parcel 2
secondly herein described and partly by (Abandoned) Trinidad Government Railway
reserve and on the West partly lands of United Molasses Company limited partly
by a Mangrove being the lands fourthly herein described and partly by the
Gulf of Paria. The Second Thereof comprising ONE HUNDRED AND SEVENTY-ONE
ACRES AND TWO PERCHES more or less and bounded on the North partly by lands
formerly of Caroni Limited but now of Caroni (1975) Limited partly by an
existing road partly by lands of Federation Chemicals Limited partly by lands
of the Lessor and partly by (Abandoned) Trinidad Government Railway Reserve on
the South partly by parcel 1 hereinabove described partly by lands formerly of
Caroni Limited but now of Caroni (1975) Limited and partly by lands of Liquid
Carbonic or the East partly by (Abandoned) Trinidad Government Railway Reserve
partly by lands of Liquid Carbonic and partly by lands of the Lessor and on the
West partly by lands of Federation Chemicals Limited partly by lands formerly
of Caroni Limited but now of Caroni (1975) and partly by lands of Liquid
Carbonic or the (East partly by (Abandoned) Trinidad Government Railway
Reserve partly by lands of Liquid Carbonic and partly by lands of the. Lessor
and on the West partly by lands of Federation Chemicals Limited partly by lands
formerly of Caroni Limited but now of Caroni (1975) Limited by lands of United
Molasses Company Limited and partly by parcel 1 hereinabove described.) The
Third Thereof comprising ACRES AND THREE ROODS more or less and bounded on the
North part by (Abandoned) Trinidad Government Railway Reserve and partly by the
Southern Main Road on the South partly by (Abandoned) Trinidad Government
Railway Reserve partly by lands now or formerly of the Phoenix Park Estate and
partly by Southern Main Road on East by the Southern Main Road and on the West
106
- 24 -
(Abandoned) Trinidad Government Railway Reserve and The Fourth Thereof
comprising ELEVEN ACRES TWO ROODS AND TWENTY SEVEN PERCHES more or less and
bounded on the North partly by, lands of Federation Chemicals Limited and
partly by a Road on the South partly by lands of United Molasses Limited and
partly by the Gulf of Paria on the East partly by the said Road partly by lands
of United Molasses Limited and partly by parcel 1 hereinabove firstly described
and on the West partly by lands of Federation Chemicals Limited and partly by
the Gulf of Paria.
The four above-mentioned pieces or parcels of land are shown on the plan
annexed to and described in the Deed of Conveyance dated 20th day of February,
1980 and registered as number 5756 of 1980.
107
EXHIBIT L
DRAFT OF CONSTRUCTION AGREEMENTS FOR AMMONIA PROJECT
DRAFT
March 21, 1996
AGREEMENT
BETWEEN
NITROGEN LEASING COMPANY, LIMITED PARTNERSHIP
AND
XXXXXXX PAN AMERICAN CORPORATION
Ammonia Production Facility
Construction and Related Services
Effective: [February 15 or 16, 1996?]
108
INDEX
ARTICLE TITLE PAGE
------- ----- ----
1 - GENERAL SCOPE OF WORK AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 - PRICE/PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 - MECHANICAL COMPLETION DEADLINE, PROGRESS REPORTS PROJECT SURETY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4 - SCOPE OF WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5 - CERTAIN CONTRACTOR RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6 - CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7 - MATERIALS AND EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8 - ENGINEERING, DESIGN AND OTHER SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 - INSPECTION OF WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 - PROCUREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11 - CONTRACTOR REPRESENTATIONS, WARRANTIES AND GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12 - CHANGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
13 - LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14 - USE OF INFORMATION AND CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15 - PATENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
16 - SERVICES, AND OTHER ITEMS TO BE FURNISHED BY OWNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
17 - INSURANCE,INDEMNITY AND RISK ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
18 - FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
109
19 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
20 - ASSIGNMENTS AND SUBCONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
21 - PUBLICITY RELEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
22 - PERMITS, LICENSES & TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
23 - INDEPENDENT CONTRACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
24 - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
25 - ACCOUNTING AND INSPECTION OF RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
26 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ANNEX A SCOPE OF WORK
ANNEX B COORDINATION PROCEDURES
ANNEX C PERFORMANCE GUARANTEES
ANNEX D RATES
ANNEX E TERMS OF PAYMENTS
ANNEX F MECHANICAL COMPLETION
ii
110
THIS AGREEMENT is executed and entered into on April _______, 1996,
but effective as of [December 21, 1995?; February 15, 16, 1996?], by and
between NITROGEN LEASING COMPANY, LIMITED PARTNERSHIP, a Delaware, U.S.A.
limited partnership with offices at Xxxxx Xxxxx, 00xx Xxxxx, World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (hereinafter referred to as
"OWNER"), and XXXXXXX PAN AMERICAN CORPORATION, a Delaware, U.S.A. corporation
with offices at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, [and registered as
a Trinidad and Tobago private limited company] (hereinafter referred to as
"CONTRACTOR").
WITNESSETH THAT:
WHEREAS, OWNER desires to have CONTRACTOR perform on a lump sum basis
construction, erection, procurement, project management, and other associated
services, and furnish materials, machinery and equipment necessary for the
construction, erection, start-up, and operation of a facility for the
production of anhydrous ammonia on a site in the Republic of Trinidad and
Tobago to be leased by OWNER;
WHEREAS, CONTRACTOR has represented that it is familiar with the
proposed Work (as defined below), that it possesses the requisite expertise and
resources to perform such Work, and that it desires and has the ability to
perform and procure the services and furnish and procure the labor, engineering
services, drawings, tools, equipment, machinery, technology, materials,
transportation, supervision, project management, construction services, and
other services and materials necessary to fully perform and execute such Work
in accordance with the terms hereof; and
WHEREAS, CONTRACTOR desires to undertake the performance of such
services on a lump sum basis under and pursuant to the terms and conditions
hereafter provided;
NOW THEREFORE, OWNER and CONTRACTOR, each in consideration of the
undertakings and agreements on the part of the other hereinafter contained,
hereby mutually agree as follows:
ARTICLE 1 - GENERAL SCOPE OF WORK AND DEFINITIONS
1.1 CONTRACTOR shall furnish construction and erection services and
shall furnish procurement, project management, transportation,
supervision and other services, and materials, equipment, machinery,
tools, technology, drawings, and labor, and shall otherwise perform
the Work, necessary for the construction, erection, start-up and
operation of the Facility (as defined below). The scope of
CONTRACTOR's Work is more particularly set forth in Annex A and
elsewhere in this Agreement.
1.2 When used in this Agreement, the terms set forth below shall have the
following meanings:
1
111
(a) "Affiliate" of any entity shall mean any other entity directly
or indirectly controlling, controlled by or under common
control with such entity.
(b) "Agreement" shall mean this contract between OWNER and
CONTRACTOR which consists of ____________ Articles and Annexes
__________________.
(c) "Change" shall mean a change in the Work which may result in
a revision to the guarantees made by CONTRACTOR, the Target
Date or the Contract Price.
(d) "Change Order" shall mean the document referred to in Article
_____ below which describes a Change and its effects and
which is signed by OWNER and CONTRACTOR.
(e) "Complex" means those portions of the existing ammonia/urea
facilities owned or operated by Arcadian Trinidad Ammonia
Limited, Arcadian Trinidad Limited, and/or any Affiliate
thereof, located on Xxxxxxxx Bay Road in Point Lisas, Couva on
the island of Trinidad, West Indies, and associated property
areas.
(f) "Contract Price" shall have the meaning set forth in Section
____ below.
(g) "Contractor Indemnified Parties" shall mean CONTRACTOR, each
of its direct and indirect parents, subsidiaries and other
Affiliates, each of the foregoing entities' respective
successors and assignees, and each of the foregoing entities'
(including, without limitation, successors and assignees)
respective stockholders, partners, directors, officers,
employees, and representatives.
(h) "Date of Mechanical Completion" shall mean the actual calendar
date upon which the Plant and Facility achieves, and all Work
hereunder and Engineering Work under the Engineering Contract
has been completed to, Mechanical Completion, as further
specified in Annex ______ [Annex F of Engineering Contract?].
(i) "Dollar" or "dollar" or the symbol "$" shall mean United
States Dollars.
(j) _____________________ shall mean currency of Trinidad and
Tobago.
(k) "Encumbrance" shall have the meaning specified in Section
_____ hereof.
(l) "Engineering Contract" shall mean the Agreement between OWNER
and The X. X. Xxxxxxx Company effective
________________________ , 1996, for the engineering, design,
and process design of the Facility.
2
112
(m) "Engineering Contractor" shall mean The X. X. Xxxxxxx Company,
a Delaware corporation.
(n) "Engineering Work" shall mean "Work" under the Engineering
Contract as defined therein.
(o) "Facility" shall mean the Plant plus related Offsites and
other facilities as further described in Annex A and elsewhere
herein.
(p) "Final Completion" shall mean that all Work hereunder and all
Engineering Work under the Engineering Contract shall have
been completed, and OWNER shall be in a position to issue, and
shall have issued, the written Notice of Acceptance of the
[Plant, Facility] pursuant to and as contemplated by Section
______ of the Engineering Contract.
(q) "Force Majeure" shall have the meaning set forth in Section
______ below.
(r) "ISBL" shall mean
_______________________________________________________________
______________________________________________________________.
(s) "OSBL" shall mean
_______________________________________________________________
______________________________________________________________.
(t) ["Xxxxxxx Advanced Ammonia Process" shall mean
___________________________________________________________
___________________________________________________________
and is sometimes referred to herein as "KAAP".]
(u) "Liquidated Damages" shall mean any amount or amounts of money
which may become due hereunder by CONTRACTOR to OWNER (as
specified in Section ____) for failure to achieve the Target
Date. [CONTRACTOR and OWNER acknowledge and agree that any
such Liquidated Damages shall not constitute a penalty,
instead representing a reasonable approximation of damages
which are difficult or impossible of being calculated with
certainty at this time. It is the intent of the parties that
any such Liquidated Damages not be construed as a penalty.]
(v) "Losses" shall mean any and all costs, damages, expenses,
judgements, charges, losses and other liabilities (including,
without limitation, all reasonable legal and expert fees and
expenses and court costs) and all claims, demands, actions,
suits and other legal proceedings, regardless of the alleged
legal basis therefor or by whom asserted.
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113
(w) "Mechanical Completion" shall mean that the Work, the
Engineering Work, the Plant, and the Facility have been
sufficiently completed so that OWNER can occupy and use them
for their intended purposes, and that the tasks set forth in
Annex ____ [Annex F of Engineering Contract?] have been
performed in accordance with such annex. The specific
procedures for assessing and determining Mechanical Completion
are set forth in Annex _________. OWNER's agreement from time
to time, pursuant to Annex _______, that Mechanical
Completion has occurred, shall not limit or affect OWNER's
rights and remedies hereunder, or otherwise, or CONTRACTOR's
obligations hereunder.
(x) "Offsites" shall mean [power supply systems, water supply
systems, instrument air, water treatment systems, fresh water
cooling pumps and exchangers, demineralized water systems, sea
water cooling towers and pumps, fire water systems, and such
other equipment and items necessary to support Plant
operations].
(y) "Owner Indemnified Parties" shall mean OWNER, Arcadian
Corporation, a Delaware corporation, Arcadian Corporation, as
general partner, Arcadian Fertilizer, L.P., a Delaware limited
partnership, Arcadian Trinidad Limited, a Trinidad and Tobago
private limited company, each of their direct and indirect
parents, subsidiaries and other Affiliates, each of the
foregoing entities' respective successors and assignees, and
each of the foregoing entities' (including, without
limitation, successors and assignees) respective stockholders,
partners, directors, officers, employees, and representatives.
(z) "Plant" shall mean a facility for the production of anhydrous
ammonia having a design capacity of 1,850 metric tons per day
as further described in Annex A and elsewhere herein.
(aa) "Retainage Amount" shall have the meaning specified in Section
2.5 hereof.
(bb) "Site" shall mean the real property owned, leased or licensed
by OWNER in or near Point Lisas, Republic of Trinidad and
Tobago, upon which the Facility is to be constructed, erected
and operated, and including, without limitation, any laydown
and similar areas dedicated for use in connection with
Facility construction.
(cc) "Subcontractor" shall mean any third party, other than an
Affiliate of CONTRACTOR, which furnishes services relative to
the Work or Engineering Work under an agreement with
CONTRACTOR or Engineering Contractor. All Subcontractors must
be pre-approved by OWNER and are listed in Annex A.
4
114
(dd) "Target Date" shall mean the date by which CONTRACTOR under
this Agreement, and Engineering Contractor under the
Engineering Contract, shall be required to have achieved
Mechanical Completion of the Work, the Engineering Work, the
Plant, and the Facility, and such date is February 15, 1998.
(ee) "Vendor" shall mean any third party which supplies materials
or equipment, plus any attendant services, under a purchase
order or other agreement with CONTRACTOR or Engineering
Contractor made in connection with the Work or Engineering
Work. [All such vendors must be preapproved by OWNER and are
listed in Annex A.]
(ff) "Work" shall mean the construction, erection, transportation,
shipping, loading, unloading, fabrication, assembly, project
management, expediting, inspection, supervision, scheduling,
purchasing, procurement and other associated services, and all
equipment, machinery, materials, tools, supplies, labor, and
technology, which shall be provided or procured by CONTRACTOR
hereunder, as more fully enumerated and described in Annex A
and elsewhere herein.
1.3 In the event of any conflict between the provisions of the Articles of
this Agreement and the provisions of the Annexes, the provisions of
the Articles shall prevail.
ARTICLE 2 - PRICE/PAYMENT
2.1 As full compensation for the performance of the Work hereunder and any
and all Engineering Work under the Engineering Contract, inclusive of
all Subcontractor, Vendor and other third-party fees and charges,
direct and indirect costs and fees of CONTRACTOR (and of Engineering
Contractor), and any other cost, expense, fee or charge of any nature
whatsoever (including, without limitation, those of suppliers of
services, labor, machinery, equipment, materials, tools and supplies),
OWNER shall pay the CONTRACTOR (or Engineering Contractor, as the case
may be) the total, aggregate, fixed lump sum price of $236,000,000.
Such total, fixed lump sum price shall not be subject to escalation
although it may be adjusted pursuant to Article ______ [Change Orders]
hereof. As of the execution date hereof, CONTRACTOR acknowledges the
payment by OWNER, and receipt of $___________________ of such fixed
lump sum price; and the remaining fixed lump sum price to be paid
hereunder is $___________________. [Should cost of this Contract be
segregated?]
2.2 [This concept perhaps should be in Annexes ___ and/or ___.] OWNER
shall pay CONTRACTOR progress payments, representing in each case a
portion of the fixed lump sum price described in Section 2.1 above, as
contemplated by Annex ____ hereto. Such payments shall be based on
the percentage of progress reported by
5
115
CONTRACTOR as of the dates specified in Annex _____, and agreed to by
OWNER. OWNER shall be required to pay only that progress payment
amount, for each progress payment date, which is equal to the
percentage of progress that OWNER agrees has been completed;
provided, however, that if OWNER's determination of the percentage of
progress (for any progress payment other than the final progress
payment) is within _____% of the percentage of progress specified for
such progress payment date in Annex _____, then OWNER shall pay the
amount specified for such progress payment date in Annex _____.
Disputes as to percentages of progress shall be resolved as soon as
reasonably possible; provided that OWNER shall be required to pay only
those amounts representing completed progress as agreed to by OWNER.
CONTRACTOR shall submit invoices in form and accompanied by supporting
documentation reasonably satisfactory to OWNER, for each progress
payment specified in Annex ____. Subject to the terms and conditions
of this Section 2.2, OWNER shall make required payments via direct
bank wire transfer within ______ days after receipt of invoice by
OWNER.
2.3 Any payments made hereunder by OWNER shall not (i) preclude OWNER from
disputing any item or matter, including, without limitation, whether
the particular percentage of completion in question has in fact been
achieved; (ii) constitute or be construed as OWNER's acceptance of the
Plant, Facility, Work, Engineering Work or any portion thereof, or
OWNER's acknowledgment that the Work, Engineering Work or any portion
thereof has been satisfactorily completed in accordance with the terms
and conditions of this Agreement; or (iii) limit or otherwise affect
OWNER's rights and remedies hereunder or otherwise, or CONTRACTOR's
obligations hereunder.
2.4 In order to assure performance of its obligations under this
Agreement, CONTRACTOR agrees that OWNER shall retain certain amounts
from payments due CONTRACTOR hereunder. OWNER shall retain an amount
equal to ____% from each progress payment hereunder. The retained
monies shall be held in a bookkeeping account maintained by OWNER
("Retainage Account"). OWNER shall segregate the funds posted to the
Retainage Account. The amounts posted to the Retainage Account shall
bear simple interest at ______. All interest shall become part of the
Retainage Account due CONTRACTOR as provided herein. In lieu of
actual retainage, CONTRACTOR may, at CONTRACTOR's expense, post
Irrevocable Standby Letters of Credit in form and substance
satisfactory to OWNER (and its lenders), in amounts equal to _____% of
each progress payment as described above. If from time to time
CONTRACTOR fails to perform its obligations under this Agreement in
accordance with the terms and conditions hereof, OWNER shall notify
CONTRACTOR and CONTRACTOR shall promptly remedy any such failure. If
CONTRACTOR fails to promptly remedy any such failure, OWNER shall have
the right, in addition to any other rights and remedies it may have
hereunder or otherwise, to withdraw such amounts from the Retainage
Account, or draw such amounts under such letters of
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credit, as may be necessary to remedy any such failures. OWNER shall
also have the right to withdraw such amounts, or draw such amounts
under such letters of credit, as may be necessary to provide for the
release of any Encumbrance filed by any of CONTRACTOR's
Subcontractors, agents, suppliers, Vendors or workers in connection
with the Work. If retainage is used, CONTRACTOR shall be paid the
funds remaining in the Retainage Account following the expiration of
30 days following the later of the Date of Mechanical Completion, or
payment in full of all of CONTRACTOR's and Engineering Contractor's
Subcontractors, agents, suppliers, Vendors and workers. If such
letters of credit are used, letters of credit shall remain in effect
until the later of the two events referenced immediately above.
ARTICLE 3 - MECHANICAL COMPLETION DEADLINE, PROGRESS REPORTS
PROJECT SURETY
3.1 CONTRACTOR shall commence the Work promptly upon the effective date of
this Agreement.
3.2 Except to the extent a delay is caused by the occurrence of a Force
Majeure event pursuant to and as contemplated by Section _________ ,
and except for delays contemplated by Section ________[Change Orders],
all Work, Construction Work, the Plant, and the Facility shall be
Mechanically Complete (i.e., shall have achieved Mechanical
Completion) no later than the Target Date, February 15, 1998.
3.3 To the extent CONTRACTOR fails to achieve the Target Date, OWNER shall
be entitled to Liquidated Damages in accordance with the following
schedule. To the extent CONTRACTOR achieves Mechanical Completion in
advance of the Target Date, CONTRACTOR shall be entitled to a bonus in
accordance with the following schedule:
Number of days Amount
early or late per day
------------- -------
15 or less zero
16-45 $50,000
46-60 $75,000
The maximum bonus payable and the maximum amount of Liquidated
Damages payable (subject to the proviso below) hereunder shall be
$2,625,000. OWNER's receipt of Liquidated Damages shall be in lieu of
any other claims pursuant to Sections 3.2 and 3.3; provided, however,
that in the event the Target Date is missed by 61 or
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more days, and such delay is attributable to CONTRACTOR's willful
failure to perform the Work or Engineering Contractor's willful
failure to perform the Engineering Work, such limitation shall not
apply and OWNER shall be entitled to pursue any and all rights and
remedies hereunder, under the Engineering Contract or otherwise.
3.4 CONTRACTOR shall issue to OWNER monthly progress reports no later than
the tenth day following the end of the month in respect of which such
report is prepared, detailing the progress made by CONTRACTOR during
the preceding month toward the achievement of the Target Date. The
reports shall include, but shall not be limited to, the following:
1. A description of any and all delays which CONTRACTOR
anticipates.
2. An updated schedule.
3. A statement of the CONTRACTOR's assessment of the percentage
of construction, erection, procurement, delivery of equipment
and materials, and other matters which are complete.
4. A narrative of the activities conducted during the month,
including action items and problems.
3.5 In lieu of providing a performance and payment bond, contemporaneously
with the execution hereof, CONTRACTOR shall deliver to OWNER a
guaranty of its parent, Dresser Industries, Inc., a Delaware
corporation, guaranteeing that CONTRACTOR will faithfully perform
promptly and with due diligence all of the terms and conditions of
this Agreement on its part to be performed, including all of the
undertakings, guarantees, warranties, obligations and liabilities of
CONTRACTOR or of any Subcontractor, supplier or Vendor of CONTRACTOR,
protecting OWNER against Losses by reason of the breach of or default
in the performance of any such undertakings, guarantees, warranties or
obligations, and protecting OWNER against all claims and Encumbrances
for the payment of sums for labor, services and materials provided in
connection with the Work. Such guaranty shall remain in effect at
least until the expiration of all warranty periods provided for under
Article _______ hereof [Engineering Contract], and shall apply to all
matters (otherwise covered by such guaranty) of which notice has been
provided to CONTRACTOR prior to the expiration of such guaranty.
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ARTICLE 4 - SCOPE OF WORK
4.1 The Scope of Work, attached hereto as [Annex A] and as otherwise
described herein, specifically enumerates and describes the Work to be
performed by CONTRACTOR under this Agreement; provided, however, that
the Work (and hence the Scope of Work) shall include, without
limitation, such additional services and items as may be necessary or
appropriate to enable CONTRACTOR to perform its obligations under this
Agreement in accordance with the terms and conditions hereof. It is
understood and agreed that the Engineering Work (which shall be
performed entirely within the United States) shall be performed by the
Engineering Contractor. Portions of the fixed lump sum price
described in Article 2 hereof shall be paid to Engineering Contractor
to reflect its performance of such Engineering Work.
ARTICLE 5 - CERTAIN CONTRACTOR RESPONSIBILITIES
5.1 CONTRACTOR shall perform the Work in a good, expeditious, workmanlike,
safe, efficient and lawful manner, and in conformity with sound,
recognized, and generally accepted industry, engineering and
construction standards and practices for projects similar in scope and
size to this project, and otherwise in accordance with the terms and
conditions of this Agreement.
5.2 In the performance of the Work, CONTRACTOR shall (and shall cause its
Subcontractors, Vendors and agents to) comply with (i) all applicable
laws, rules, regulations, orders, consents and decrees of any
governmental authority with jurisdiction; and (ii) any and all rules,
regulations, policies and procedures governing conduct at the Complex,
including, without limitation, "Safety Rules and Regulations for
Contractors", copies of which have been provided to CONTRACTOR
(collectively, "Complex Rules and Regulations").
5.3 CONTRACTOR represents and warrants to OWNER, and covenants and agrees,
that the Plant, the Facility, the Work, and the Engineering Work shall
be at the time of Final Completion free and clear of any and all
liens, security interests, charges, and encumbrances (collectively,
"Encumbrances").
5.4 Risk of loss of and damage to the Work, the Engineering Work, the
Plant, and the Facility, will be and remain with Engineering
Contractor until the Date of Mechanical Completion of all Work, the
Engineering Work, the Plant, and the Facility; provided that the
insurance policies and coverages required under Article _______ shall
(except as provided therein) remain in effect until Final Completion,
and shall continue to cover such Losses as provided in such policies.
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5.5 Except as provided in Section _______ of the Engineering Contract
[Xxxxxxx proprietary data], all drawings, specifications, designs,
engineering data and studies, process data and studies, intellectual
property (including all patentable and copyrightable materials), and
any other data, materials or items which are generated, produced or
created as part of or in connection with the Work, shall be the sole
and exclusive property of OWNER. CONTRACTOR shall (and shall cause
its Subcontractors, Vendors and agents to) (i) provide all such
property (and all copies and other reproductions thereof) to OWNER by
the date of Final Completion; and (ii) execute such instruments as
OWNER may reasonably require to evidence OWNER's ownership of such
property. Neither CONTRACTOR nor its Subcontractors, Vendors or
agents may retain, use, or otherwise exercise dominion over any such
property; provided that CONTRACTOR may retain a complete set of Work
drawings and other Work documents as necessary for archives, in order
to provide OWNER with information and advice in the future concerning
the Work performed under this Agreement. Any such retained drawings
and documents shall be subject to the confidentiality provisions set
forth in Section _______[Contractor confidentiality obligations], and
CONTRACTOR may not use such drawings and documents in the performance
of services for other clients.
5.6 While performing Work at the Site, CONTRACTOR shall (and shall cause
its Subcontractors and agents to) at all times keep its/their work
areas as free from waste material and rubbish as reasonably possible.
With respect to Work conducted at the Site, CONTRACTOR shall remove
and dispose of all waste materials and rubbish generated in connection
with the Work as soon as reasonably possible after the generation
thereof by CONTRACTOR or its Subcontractors. Further, as soon as
practicable after Final Completion, CONTRACTOR shall remove (or cause
to be removed) all of its and its Subcontractors' equipment and
materials and any remaining waste material and rubbish generated in
connection with the Work from the Complex, and shall return any Work
areas to the general condition existing prior to the performance of
the Work.
5.7 CONTRACTOR shall (and shall cause its Subcontractors and agents to)
take all reasonable steps to prevent the release to the environment
of, the contamination of the environment with, and exposure to,
pollutants, contaminants, or hazardous or toxic substances, materials
or wastes. In the event that any environmental contamination results
from performance of the Work at the Site, CONTRACTOR shall (after
notice to and approval of OWNER) remediate such contamination as
promptly as possible (restoring any such contaminated media to the
condition existing prior to the commencement of Work) in accordance
with all applicable laws, rules, regulations and orders, and Complex
Rules and Regulations. All solid and liquid wastes, and hazardous or
toxic substances or materials introduced or generated by CONTRACTOR or
its Subcontractors or agents (e.g. solvents, cleaners, petroleum
products, waste oils, etc.) shall be handled, disposed of or otherwise
removed from the
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Site and Complex in full compliance with all applicable laws, rules,
regulations and orders of any governmental authority with
jurisdiction. OWNER reserves the right to suspend the Work, or any
portion thereof, if, in its sole discretion, it considers CONTRACTOR's
actions (or those of its agents or subcontractors) to be
environmentally irresponsible.
5.8 While on property which constitutes or includes the Site or Complex,
CONTRACTOR's employees, Subcontractors and agents, and their
employees, shall confine themselves to areas designated by OWNER.
CONTRACTOR agrees to place and shall require that its Subcontractors
and agents and their employees place the highest importance on safety
and environmental responsibility and exercise all reasonable care
during the prosecution of the Work.
5.9 CONTRACTOR and CONTRACTOR's employees, agents, Subcontractors and
their employees will be subject to any and all security rules and
regulations, badge and pass requirements (including vehicle
inspections), and safety programs and procedures (including, without
limitation, Complex Rules and Regulations) that may be in effect at
the Complex. CONTRACTOR shall be responsible for the safety of its
employees, Subcontractors, and agents and their employees, and shall
take (and cause its agents and Subcontractors to take) all reasonable
actions and precautions (in connection with the prosecution of the
Work) to provide for the safety of persons and the protection of
property in the areas where Work is being performed under CONTRACTOR's
or any Subcontractor's control. CONTRACTOR shall initiate and
maintain all safety precautions and programs necessary to comply with
applicable health and safety laws, rules and regulations (whether
federal, state, international or otherwise), and with Complex Rules
and Regulations concerning health and safety. Further, CONTRACTOR
will cause its agents and employees (and those of its Subcontractors
and agents) to attend all safety orientation and training sessions
required under Complex Rules and Regulations prior to the commencement
of Work at the Complex. OWNER reserves the right to suspend any
portion of Work if, in its sole discretion, it considers CONTRACTOR's
actions to be unsafe.
5.10 In the event of any emergency endangering life, health, safety or
property related to and during the prosecution of Work at the Site,
CONTRACTOR shall take all actions as may be reasonably necessary to
prevent, avoid or mitigate injury, damage or loss and shall, as soon
as possible, report any such incidents, including CONTRACTOR's
response thereto, to OWNER. If, in the opinion of the OWNER,
CONTRACTOR has failed to take sufficient precautions for the safety of
workers or the public or the protection of the Work, Plant, Facility,
Complex, or other property constituting or including the Complex,
creating, in the sole opinion of OWNER, an emergency requiring
immediate action, then the OWNER, after notice to CONTRACTOR, may
cause such sufficient precautions to be taken or provide such
protection. The taking or provision of any such precautions or
protection by OWNER shall be for the account
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of CONTRACTOR and CONTRACTOR shall reimburse OWNER for the cost
thereof.
5.11 Although OWNER does not seek nor intend to approve or control
CONTRACTOR's (or its subcontractors' or agents') selection of
employees assigned to the Work, OWNER shall have the right to
disapprove and require the removal from the Work being prosecuted at
the Site of any employee of CONTRACTOR (or any of its Subcontractors
or agents) who, in OWNER's sole opinion, is incompetent, careless,
unqualified, or guilty of violation of Site Rules and Regulations.
Any employee of CONTRACTOR or any Subcontractor or agent testing
positive for controlled substances or alcohol abuse shall be removed
from the project. Implementation of a controlled substance and alcohol
abuse screening and check policy will be at the discretion of
CONTRACTOR, including frequency and limitations for determining
positive results and actual interpretations of testing results;
provided, however, that CONTRACTOR shall (and shall cause its
Subcontractors and agents to) institute and maintain those controlled
substance and alcohol screening and check procedures as may be
necessary to comply with applicable laws, rules and regulations and
Complex Rules and Regulations.
5.12 CONTRACTOR's Project Manager and other designated key personnel,
including construction manager, shall be mutually agreed upon by
CONTRACTOR and OWNER before starting the Work.
5.13 CONTRACTOR shall require all of its employees, agents and
Subcontractors and their employees to have all required passports,
visas, work permits or other necessary documentation to perform any of
the Work.
ARTICLE 6 - CONSTRUCTION
6.1 Without limiting the generality of Sections 1.1, 1.2(ff) [Work
definition], Article 4 and [Annex A], CONTRACTOR shall construct and
erect the Facility on the Site, and shall perform all related Work
for, and required to construct, erect, start-up and operate the
Facility, all in accordance with the terms and conditions of this
Agreement (including, without limitation, Annex A), the Engineering
Work, and the procedures, plans, designs, drawings and specifications
to be prepared as part of the Work. Except as otherwise provided in
Article ___ below, CONTRACTOR shall furnish all superintendence,
labor, construction tools, erection equipment (including portable
fire-fighting equipment during construction), construction supplies,
temporary offices and storage facilities, and other services and items
required for such services.
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ARTICLE 7 - MATERIALS AND EQUIPMENT
7.1 Without limiting the generality of Sections 1.1, 1.2(ff) [Work
definition], Article 4 and Annex A, CONTRACTOR shall procure and
furnish all required materials, machinery, and equipment (?including
operating equipment) for the Facility as more particularly set forth
in Annex A and which are supplied from sources in the Republic of
Trinidad and Tobago, except for those materials, machinery and
equipment which OWNER agrees to furnish as provided in Article ____
[Owner responsibilities] below, and Annex A.
7.2 CONTRACTOR shall inspect, expedite and arrange shipment for all
materials, machinery and equipment (?including operating equipment) in
accordance with CONTRACTOR's usual practice, which practice CONTRACTOR
represents is in accordance with standard industry and professional
practice. CONTRACTOR shall check, receive and maintain all such items
received at the Site, together with all materials and operating
equipment shipped to the Site under the Engineering Contract.
ARTICLE 8 - ENGINEERING, DESIGN AND OTHER SERVICES
8.1 Engineering, process design, and design of the Facility and all other
Engineering Work shall be undertaken exclusively in the United States
by The X. X. Xxxxxxx Company pursuant to the Engineering Contract.
8.2 CONTRACTOR shall perform support services in Trinidad and Tobago as
may be necessary for the Work and Engineering Work.
ARTICLE 9 - INSPECTION OF WORK
9.1 CONTRACTOR shall perform all tests and inspections of the Work, the
Engineering Work, Plant, and the Facility, and all components of any
thereof (including, without limitation, mechanical and operational
tests and inspections) necessary to assure that the Work, the
Engineering Work, the Plant, and the Facility conform to all
requirements, standards and specifications of this Agreement.
Complete records of all CONTRACTOR tests and inspections shall be
maintained and delivered to OWNER at the time(s) such tests or
inspections are completed.
9.2 All Work, the Plant, and the Facility (and all components thereof)
shall be subject to inspection and approval by OWNER from time to time
and at any and all times (at its expense), at such locations as may be
necessary for the performance of the Work (including, without
limitation, point of manufacture); provided, however, that OWNER shall
not interfere with CONTRACTOR's own inspection procedures.
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Further, OWNER shall cooperate with CONTRACTOR in conducting its
inspections so that extra expense and delay to CONTRACTOR are avoided.
CONTRACTOR shall provide OWNER and its representatives unrestricted
access to the Work, the Plant, and the Facility (and all components
thereof) for the purposes specified above, and for any other purpose;
provided that CONTRACTOR may provide (and OWNER and its
representatives shall accept) an escort or other reasonable safety
measures which CONTRACTOR deems necessary or advisable. CONTRACTOR
shall also promptly provide all information requested by OWNER or its
representatives with respect to the Work, Plant, or Facility. Any
inspection or failure to inspect by OWNER shall not limit or otherwise
affect any obligations of CONTRACTOR under this Agreement, or any
rights and remedies of OWNER hereunder or otherwise. If upon
inspection, OWNER determines that any part of the Work, Plant, or
Facility does not meet, or has not been performed in accordance with,
the standards, requirements, specifications or covenants set forth in
this Agreement, then CONTRACTOR shall promptly remedy or replace any
such defective Work at its sole risk, cost and expense.
ARTICLE 10 - PROCUREMENT
10.1 Without limiting the generality of Sections 1.1, 1.2(ff)[Work
definition], Article 4 and Annex A, CONTRACTOR shall be responsible
for providing or procuring all services, labor, tools, equipment,
machinery, materials, supplies, and other items necessary or
appropriate for the performance of the Work.
10.2 CONTRACTOR may subcontract portions of the Work to Subcontractors
designated in Annex A; provided that (i) CONTRACTOR shall remain
responsible for the performance of the Work in accordance with the
terms and conditions of this Agreement; and (ii) OWNER shall not have
any obligations under subcontracts entered into by CONTRACTOR.
CONTRACTOR shall be solely responsible for the engagement, management
and payment of any such Subcontractors. CONTRACTOR shall pay such
Subcontractors all amounts owed when due.
10.3 CONTRACTOR shall be solely responsible for providing or procuring all
tools, equipment, machinery, materials, supplies and other items
necessary or appropriate for the performance of the Work. CONTRACTOR
may procure such items from reputable Vendors and suppliers [Vendors
listed in Annex A? Approval by OWNER?]; provided that (i) CONTRACTOR
shall remain responsible for the performance of the Work in accordance
with the terms and conditions of this Agreement; and (ii) OWNER shall
not have any obligations under contracts or purchase orders entered
into by CONTRACTOR. [CONTRACTOR shall be solely responsible for the
[selection], management and payment of such Vendors and suppliers.]
CONTRACTOR shall pay such Vendors and suppliers all amounts owed
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when due. OWNER shall have sole and exclusive title to any and all
tools, equipment, machinery, materials, supplies, and items which
become part of the Plant or Facility. CONTRACTOR will execute or
cause to be executed such instruments as OWNER may reasonably request
to evidence OWNER's title to such items, and shall take such actions
as may be necessary to have such items transferred to OWNER free and
clear of any and all Encumbrances.
ARTICLE 11 - CONTRACTOR REPRESENTATIONS, WARRANTIES
AND GUARANTEES
11.1 Construction/Erection. CONTRACTOR represents, warrants and guarantees
that the construction and erection of the Plant and the Facility, and
any other Work hereunder, shall be performed in accordance with, and
shall comply and be consistent with, sound, recognized and generally
accepted construction and engineering standards and practices, all
applicable codes, standards and governing authorities, and the other
requirements of this Agreement. If at any time within one (1) year
after the Date of Mechanical Completion, any defect in the
construction, erection or other Work or other breach of this warranty
is discovered by OWNER, OWNER shall promptly notify CONTRACTOR
thereof, and CONTRACTOR shall promptly remedy and correct any such
defects or breaches (including any associated equipment or machinery
failures) at its sole risk, cost and expense. Without limiting the
generality of the foregoing, to the extent any such defect or breach
results in a reduction in the Plant's [Facility's] performance level
demonstrated pursuant to Article 12 and Annex C of the Engineering
Contract, CONTRACTOR shall restore (or cause to be restored) such
demonstrated performance level at its sole risk, cost and expense.
11.2 Material and Workmanship. CONTRACTOR represents, warrants and
guarantees all equipment, machinery, parts, materials, supplies and
other items supplied, procured or specified by CONTRACTOR or any
Vendor or Subcontractor, and all workmanship (including field
workmanship), labor and services furnished in connection with the Work
(whether by CONTRACTOR or any Subcontractor) against defects (latent
or patent) in materials or workmanship, or otherwise, for a period of
one (1) year after the Date of Mechanical Completion. If at any time
during the warranty period, OWNER discovers any defect in such
equipment . . . materials, etc. or workmanship, or if OWNER determines
that such equipment . . . materials, etc. or workmanship do not
otherwise comply with the requirements of this Agreement, OWNER shall
promptly notify CONTRACTOR thereof, and CONTRACTOR shall [subject to
the limitations set forth below?] remedy and correct any such defects
to the reasonable satisfaction of OWNER by repairing or replacing the
defective equipment . . . materials, etc. or workmanship at
CONTRACTOR's sole risk, cost and expense. Without limiting the
generality of the foregoing, [and notwithstanding the limitations
below] to the extent any such defect results in a reduction in the
Plant's [Facility's]
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performance level demonstrated pursuant to Article 12 and Annex C of
the Engineering Contract, CONTRACTOR shall restore such demonstrated
performance level at its sole risk, cost and expense. Except with
respect to reductions in the Plant's performance level, [?CONTRACTOR
shall not be obligated to perform any of the aforesaid repairs or
replacements on each occasion upon which OWNER, after discovering
defective equipment . . . materials, etc. or workmanship, estimates
the cost of repair or replacement thereof to be [and the cost actually
is] ____________________ thousand U.S. Dollars (US$______________) or
less; provided that in the event the cost of such repairs or
replacements in the aggregate equal $_____________, CONTRACTOR shall
be obligated for any further repairs or replacements. Subject to the
preceding proviso, on each such occasion OWNER shall be responsible
for such repair or replacement and shall bear the cost thereof. If
OWNER estimates the cost of a repair or replacement to be in excess of
_________________ thousand U.S. Dollars (US$____________) and
CONTRACTOR performs the same and the cost therefor is less than such
amount, OWNER shall pay to CONTRACTOR the costs of such repair or
replacement within thirty (30) days after OWNER receives CONTRACTOR's
invoice therefor. For the purposes of this Section 11.2 the words
[?"cost" or "costs" shall mean those amounts which would have been
paid by OWNER to CONTRACTOR for the aforesaid repairs or replacements
had they been made pursuant to the costs, rates, charges and
allowances set forth in Annex D.?] CONTRACTOR shall not be obligated
to repair or replace any such workmanship which becomes defective as
the result of improper operation or maintenance or of operating
conditions more severe than those contemplated in the original design
for the Work [set forth in __________].
11.3 Subcontractors and Vendors. CONTRACTOR shall secure or cause its
Subcontractors to secure the most favorable industry-standard
warranties and guarantees possible extending over the longest possible
time obtainable from Subcontractors and Vendors with respect to
services, equipment, machinery, parts, materials, supplies and other
items [technology?] furnished by them. CONTRACTOR will request, at a
minimum, that Vendors of equipment, machinery, materials, etc., and
service providers, furnish a guarantee against defects in materials
and workmanship of one (1) year after initial use or eighteen (18)
months after shipping. All such warranties shall be for the benefit
of CONTRACTOR and OWNER.
11.4 THE ONLY WARRANTIES APPLICABLE TO THE WORK PERFORMED PURSUANT TO THIS
AGREEMENT ARE THOSE SET FORTH IN THIS AGREEMENT. CONTRACTOR EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR FITNESS FOR A PARTICULAR USE.
11.5 In no event shall either party or its Affiliates be liable to the
other or its Affiliates, either individually or jointly and
irrespective of whether alleged to be due to negligence (including the
sole negligence of any party or any Affiliate), breach of
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xxxxxxxx, xxxxxx liability or any other legal theory, for special,
punitive or consequential damages (including lost production, lost
profits, and lost revenues) except to the extent such damages are
attributable to a party's (or its Affiliate's) intentional conduct;
provided that such damages shall be recoverable hereunder to the
extent included in damages asserted pursuant to a Third Party Claim
[defined in indemnity section] with respect to which a party is
entitled to indemnity hereunder.
ARTICLE 12 - CHANGES
12.1 All Work shall be in accordance with this Agreement, and it is the
intent of the parties that Changes be avoided to the extent
practicable. To this end, the correction by CONTRACTOR (with OWNER's
prior approval) of [normal errors and minor changes [What does this
mean?]]made by CONTRACTOR in the course of the Work shall not be
deemed to constitute a Change.
12.2 At any time during the course of the Work, OWNER may modify the Scope
of Work as set forth in this Agreement, by written notice to
CONTRACTOR. Without limiting the generality of the foregoing, OWNER
may make changes in drawings, designs and specifications, issue
additional instructions, require additional work, or direct the
omission of Work previously ordered. When a Change is under
consideration by OWNER, OWNER shall so notify CONTRACTOR. OWNER may
request a "scoping estimate" (one which requires no more than five
manhours to prepare) before requesting a detailed cost estimate. If
OWNER wishes to consider the proposed Change after reviewing the
scoping estimate, OWNER will request a detailed cost estimate.
CONTRACTOR shall then prepare and submit a detailed cost estimate
(including, if deemed necessary by CONTRACTOR, revisions to the Target
Date and to any of CONTRACTOR's guarantees which will result
therefrom). Once the parties mutually agree on the detailed cost
estimate, they shall confirm their agreement in writing by means of a
Change Order. OWNER shall compensate CONTRACTOR for preparing all
estimates made at OWNER's request.
12.3 If any of the events set forth below occur and CONTRACTOR determines
that the result thereof is or will be a Change, CONTRACTOR shall
promptly submit in writing to OWNER its proposed revision to the
Contract Price together with the effect, if any, predicted by
CONTRACTOR on the Target Date or CONTRACTOR's guarantees. Once the
parties mutually agree on such items, they shall promptly thereafter
agree in writing upon a Change Order. Such events are:
(a) a change in the basic design data or Site data (including
soils, feedstock, etc.) from that set forth in this Agreement;
(b) suspension of Work by OWNER [provisions governing suspension?];
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(c) Force Majeure events preventing CONTRACTOR's performance
hereunder; provided that delays attributable to causes other
than Force Majeure events affecting Subcontractors and/or
Vendors directly shall not constitute Force Majeure;
(d) [VAT?] [?Any change in Trinidad taxes?]; or
(e) in connection with the Work, any act, or failure to act, on
the part of OWNER or any Affiliate of OWNER or any entity in
privity of contract with OWNER or any entity exclusively under
OWNER's direction or control.
12.4 CONTRACTOR shall not proceed with any Change until a Change Order has
been signed by the parties.
12.5 Except to the extent agreed otherwise pursuant to a Change Order, the
compensation payable to CONTRACTOR for preparing estimates pursuant to
this Article 13, shall be determined in accordance with Annex _____.
ARTICLE 13 - LIENS
13.1 CONTRACTOR shall immediately pay and discharge or shall provide
security sufficient and satisfactory in itself to pay and discharge
any obligation CONTRACTOR or any of its Subcontractors or Vendors may
have, in respect of which any Encumbrance may be levied or is levied
against the Work, the Engineering Work, the Plant, the Facility, the
Site, or the Owner Indemnified Parties. CONTRACTOR shall indemnify,
defend and hold harmless the Owner Indemnified Parties from and
against any such Encumbrance and any and all associated Losses. If
at any time OWNER shall receive notice or information of the recording
of any such Encumbrance or any evidence of any such Encumbrance which,
if valid, would constitute a legal charge upon property of OWNER , the
Plant, the Facility or any part thereof, it shall forthwith
communicate the receipt of such notice, information or evidence to
CONTRACTOR.
13.2 If any such Encumbrance remains unsatisfied after the Date of
Mechanical Completion, CONTRACTOR shall promptly refund to OWNER all
amounts that OWNER may be compelled to pay in discharging any such
Encumbrance.
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ARTICLE 14 - USE OF INFORMATION AND CONFIDENTIALITY
[Provisions with respect to Xxxxxxx proprietary data deleted because covered by
off-shore contract]
14.1 [This may need to be expanded] CONTRACTOR agrees to hold in
confidence any technical or commercial information supplied to it by
OWNER or any agent of OWNER in connection with the design,
construction, start-up, operation or maintenance of the Facility, or
otherwise, which information is identified by such OWNER or any agent
of OWNER in writing to be confidential or proprietary at or prior to
its disclosure. Said information shall remain the property of such
OWNER or agent, and CONTRACTOR shall not disclose such information to
any third party or use such information for any purpose other than
performing the Work.
14.2 The provisions of Sections 14.1 shall not apply to:
(a) any information which, at the time of disclosure, the
receiving party can show was in the public domain;
(b) any information which, after disclosure, becomes part of the
public domain by publication or otherwise, through no fault of
the receiving party;
(c) any information which the receiving party can show by
supporting documentation was in its possession at the time of
disclosure to it by the disclosing party and had not been
acquired directly or indirectly under the obligation of
confidence to the disclosing party;
(d) any information furnished to the receiving party rightfully
by a third party not under an obligation of confidentiality
to the disclosing party, provided again that the receiving
party is in compliance with any restrictions on disclosure or
limitation of use imposed by such third party;
(e) any information independently developed by employees or
consultants of the recipients or its Affiliates who have not
had access to such information; or
(f) any information required by law, rule, regulation or bona fide
legal process to be disclosed, provided that the receiving
party making such disclosure shall take all reasonable steps
to restrict, and maintain to the extent possible the
confidentiality of, such disclosure, and shall provide
reasonable notice to the other party whose information is
involved in order that such other party may take reasonable
steps to oppose the requirement of disclosure.
For the purpose of this Section 14.2, any disclosure of such
information which is specific to the operating or design conditions of
the Plant shall not be deemed to be within the
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foregoing exceptions merely because it is contained within the scope of a
broad disclosure.
ARTICLE 15 - PATENTS
15.1 Subject to the provisions of this Article 15, CONTRACTOR shall, at
its sole cost and expense, indemnify, defend and hold the Licensees
(as defined in the Engineering Contract) and Owner Indemnified Parties
harmless in respect of any and all Losses incurred in connection with
any claim, suit or proceeding based on any claim that the Work as
incorporated into the Plant, the Facility or any part of any thereof,
constitutes an infringement or violation of any patent or other
intellectual property right of a third party, including, without
limitation, infringement or violation of any copyright, trademark or
trade secret, and infringement of any patent issued in the United
States or the Republic of Trinidad and Tobago.
15.2 OWNER agrees to notify CONTRACTOR promptly in writing of any notice or
claim of infringement and/or violation as described in Section
15.1 above which is received by or brought against OWNER.
15.3 In connection with any claim described in Section 15.1 above,
CONTRACTOR reserves the right to acquire for the Licensees, at
CONTRACTOR's sole cost and expense, immunity from suit and license to
use the offending technology, which are acceptable to the Licensees.
CONTRACTOR also reserves the right, in connection with such claim, of
making such alterations of the Facility, at CONTRACTOR's sole cost
and expense, as may be required to eliminate the alleged infringement;
provided such alteration is acceptable to the Licensees and does not
prevent the Facility from being capable of normal operation, reduce
the capacity of the Facility, interfere with the Performance
Guarantees (as defined in the Engineering Contract) or performance
levels, or cause a default by the Licensees under any contract or
other obligation.
15.4 Neither CONTRACTOR nor OWNER shall settle or compromise any suit or
action described in Section 15.1 above without the written consent of
the other.
15.5 Except to the extent that substantial deviation by the Licensees from
information furnished by CONTRACTOR is the sole cause for a claim of
infringement, CONTRACTOR shall defend, indemnify and hold the
Licensees and Owner Indemnified Parties harmless from and against any
and all Losses that may be assessed in or become payable under any
decree or judgment of any court, or under any arbitral decree or
other order, including costs and expert and professional fees, with
respect to any suit or action described in Section 15.1 above.
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15.6 OWNER shall defend, indemnify and hold CONTRACTOR harmless from and
against any claim that any technology or know-how supplied to
CONTRACTOR by OWNER wrongly incorporates proprietary technical data or
infringes letters patent issued to, or otherwise infringes any other
intellectual property rights of a third party.
15.7 The provisions of Sections 15.1, 15.5 and 15.6 shall not apply to any
Vendor's or Subcontractor's wrongful use of proprietary technical data
or infringement of patents (unless caused by such Vendor's or
Subcontractor's compliance with specific design requirements imposed
by CONTRACTOR or Engineering Contractor). In the event of any such
wrongful use or infringement, CONTRACTOR and OWNER shall rely on the
provisions for indemnity against infringement and other terms
contained in applicable purchase order, subcontract or other agreement
with the Vendor or Subcontractor; provided, however, that to the
extent (i) there exists any excess liability not covered by and
discharged pursuant to the provisions contained in applicable purchase
order, subcontract or other agreements with the Vendor or
Subcontractor, and/or (ii) there are no such provisions, the
CONTRACTOR shall bear sole and complete responsibility and liability
for, and shall indemnify the Owner Indemnified Parties with respect
to, any such wrongful use or infringement.
ARTICLE 16 - SERVICES, AND OTHER ITEMS TO BE
FURNISHED BY OWNER
16.1 OWNER shall at its own expense and at such times as may be required by
CONTRACTOR for the successful and continuous prosecution of the Work:
(a) procure all necessary [priorities, allocations and
allotments?] for materials and operating equipment, and all
licenses and permits required to be obtained in the name of
the OWNER, including building and environmental operating
permits, required by governmental or regulatory authorities in
connection with the supply, erection and operation of the
Facility, not including, however, business licenses required
of CONTRACTOR;
(b) provide prior to the commencement of any field Work, a clear,
solid site for the Facility; remove all existing pipelines,
foundations and other obstructions which are overground (but
not underground) and which would interfere with the
construction and operation of the Plant; and level the Site in
accordance with CONTRACTOR's instructions; [Xxxxxxx providing
all necessary soils reports and geotechnical recommendations;]
(c) furnish CONTRACTOR with the proper bench-marks, elevations and
liens for locating the Facility, and stake out and install
monuments locating the battery limits lines;
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(d) furnish clear, level, solid, reasonably self-draining ground
of adequate size, as part of the Site, (i) for the unloading,
moving and storage of materials and operating equipment, (ii)
for temporary construction buildings, and (iii) a parking lot
for the use of CONTRACTOR's and Subcontractors' employees;
(e) subject to the terms and conditions of this Agreement,
including Article _____ [certain Contractor responsibilities],
furnish unrestricted access to the Site and to the storage
area specified in (d) above, and allow CONTRACTOR to unload
all materials and operating equipment therefrom;
(f) furnish and maintain a clear solid roadway connecting the
Site, storage area and parking area with a main public
highway;
(g) furnish a site for the disposal of spoil within [one-half
(1/2) mile] of the Site;
(h) furnish at the Site all necessary fill (to the extent then
available at the Site) as requested by CONTRACTOR;
(i) supply an adequate quantity of drinking water at the battery
limits of the Plant and the Facility;
(j) furnish for construction purposes water, steam, gas and
electricity all in sufficient quantities and of proper
character, at the battery limits at locations specified by
CONTRACTOR and agreed to by OWNER;
(k) provide such intra-Facility telephone lines as reasonably may
be required by CONTRACTOR;
(l) provide information to CONTRACTOR concerning location of
connections for utilities, product lines, drainage, etc.;
(m) during active construction furnish water at the Site in
adequate quantity and under sufficient pressure for
fire-fighting assistance within the battery limits of the
Facility and provide watchmen if required by OWNER;
(n) furnish only tie-in connections for the connection at the
battery limits of all piping built by CONTRACTOR. The
foregoing tie-in connections shall include those for service
lines for water, oil, steam, fuel, gas, flaring and sewers;
(o) furnish all utilities, fuel and feedstock in sufficient
quantities and of the proper character for the testing of
operating equipment and for operation of the Plant, and
connect the electric power to the panel board;
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(p) furnish and install all necessary charging stock, catalysts,
(except for the first charge of catalyst which is
CONTRACTOR's responsibility), chemicals, lubricants and
supplies (except for the first charge of Xxxxxxxx chemicals,
lubricants, and supplies, which is CONTRACTOR's
responsibility) required for the starting and operation of the
Facility in the quantity and of the kind and quality necessary
and which do not contain impurities in such quantities as to
interfere with the proper operation of the Facility. [?Except
as otherwise specified in Annex A], CONTRACTOR shall also
supply the equipment required to introduce such charging
stock, catalysts, chemicals, lubricants and supplies into the
Facility;
(q) furnish all personnel, materials, fuel feedstock and tools
required for the start-up, testing, operation and maintenance
of the Plant beginning with the Date of Mechanical
Completion;
(r) furnish a classification of accounts in accordance with
OWNER's established accounting procedure for the guidance of
CONTRACTOR in preparing final cost distributions; and
(s) issue all necessary hot-work permits promptly.
ARTICLE 17 - INSURANCE,
INDEMNITY AND RISK ALLOCATION
17.1 CONTRACTOR and Engineering Contractor shall have care, custody and
control of, and shall be solely responsible for, the Work in progress
(including, without limitation, the Plant, the Facility (or any
portion thereof), equipment, machinery, parts, materials and supplies
on the premises of CONTRACTOR, the Site or any Subcontractor or
Vendor, or in transit or in storage, which are intended for
incorporation into the Work) until the Date of Mechanical Completion.
CONTRACTOR assumes all risk of any loss or damage thereto until the
Date of Mechanical Completion. For the purpose of this Agreement,
those temporary facilities erected by CONTRACTOR at the Site which are
affixed to the Site so as to be nonportable (such as job-built
buildings, roads, security fences, electrical power polelines,
underground septic tanks, deadmen, and piping for construction
utilities) shall be deemed to be Work in progress. CONTRACTOR hereby
releases and discharges and shall defend, indemnify and hold
harmless the Owner Indemnified Parties from and against any and all
Losses arising from or related to any loss or damage as described in
the first sentence of this Section 17.1, irrespective of any
negligence, including sole or concurrent negligence, on the part of
any Owner Indemnified Party.
17.2 With respect to the machinery, tools, equipment, materials and other
property not intended to become a permanent part of the Facility and
which are supplied or used by
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CONTRACTOR, Engineering Contractor, or any Subcontractor or Vendor
thereof, CONTRACTOR assumes all risk of any loss or damage thereto.
CONTRACTOR hereby releases and discharges and shall defend, indemnify
and hold harmless the Owner Indemnified Parties from and against any
and all Losses arising from orrelated to any such loss or damage,
irrespective of any negligence, including sole or concurrent
negligence, on the part of any Owner Indemnified Party.
17.3 With respect to any and all claims of loss or damage to any property
owned, leased, operated, used or controlled by any Owner Indemnified
Party other than the Facility at or within
_____________________________________ from the Site and any property
owned, leased, operated, used or controlled by any Affiliate of
Arcadian Trinidad Limited, and with respect to all occurrences and
circumstances prior to the Date of Mechanical Completion [completed
operations insurance?], CONTRACTOR hereby releases and discharges and
shall defend, indemnify and hold harmless the Owner Indemnified
Parties from and against any and all Losses arising from or related to
any such claims, occurrences or circumstances which are alleged to
arise from any act or omission on the part of CONTRACTOR, Engineering
Contractor, any Subcontractor or Vendor thereof, or any Owner
Indemnified Party, irrespective of any negligence, including sole or
concurrent negligence, on the part of any Owner Indemnified Party;
provided, however, that the aggregate amount of liability assumed by
CONTRACTOR under this sentence shall in no event exceed
______________________________________ (US$_______________ _). [The
following may be inconsistent with Arcadian's proposal that Xxxxxxx
keep completed operations insurance in place for 3 years after
acceptance.] For all other claims regarding the property described in
the preceding sentence of this Section [15.3] and to the extent such
claims are not assumed by CONTRACTOR as aforesaid, OWNER hereby
releases CONTRACTOR from, and agrees to defend, indemnify and hold
CONTRACTOR harmless against all such claims.
17.4 [The following may be inconsistent with Arcadian's proposal that
Xxxxxxx keep completed operations insurance in place for 3 years after
acceptance.] With respect to the Facility and for all occurrences on
or after the Date of Mechanical Completion, OWNER hereby assumes the
risk of all loss or damage thereto and releases CONTRACTOR from, and
agrees to defend, indemnify and hold CONTRACTOR harmless against all
Losses arising from or directly or indirectly related to the Work,
except to the extent attributable to any act or omission of
CONTRACTOR, Engineering Contractor, or any Subcontractor or Vendor,
including, without limitation, any breach of any warranty or other
provision of this Agreement or the Engineering Contract.
17.5 CONTRACTOR hereby releases and discharges and shall indemnify, defend
and hold harmless the Owner Indemnified Parties from and against any
and all Losses arising from or related to any injury to or death of
any of CONTRACTOR's, Engineering Contractor's, or any Subcontractor or
Vendor's employees, agents, officers, representatives, licensees, or
invitees in connection with or incidental to the Work or
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the Engineering Work, irrespective of any negligence, including sole
or concurrent negligence, on the part of any Owner Indemnified Party.
17.6 With respect to products, materials, or substances (including, without
limitation, any pollutant, contaminant or hazardous or toxic
substance, material or waste) introduced to the Site by CONTRACTOR,
Engineering Contractor, or any Subcontractor or Vendor, CONTRACTOR
releases and discharges and shall defend, indemnify and hold harmless
the Owner Indemnified Parties from and against any and all Losses
arising from or related to any such introduction, including, without
limitation, any failure to properly handle, store or dispose of any
such products, materials, substances, etc., irrespective of any
negligence, including sole or concurrent negligence, on the part of
any Owner Indemnified Party. With respect to environmental
contamination (if any) due to the presence of any pollutant,
contaminant or hazardous or toxic substance, material or waste at the
Site, prior to the commencement of Work, OWNER hereby releases and
discharges and shall defend, indemnify and hold harmless the
Contractor Indemnified Parties from and against any and all Losses
arising from or related to such environmental contamination,
irrespective of any negligence, including sole or concurrent
negligence, on the part of any Contractor Indemnified Party.
17.7 With respect to any and all Losses which arise from or relate to
occurrences or circumstances prior to the Date of Mechanical
Completion [expiration of completed operations coverage?] and which
are not provided for in Sections [17.1-17.6] above, CONTRACTOR
releases and discharges and shall defend, indemnify and hold harmless
the Owner Indemnified Parties therefrom, if such Losses are alleged to
arise from any act or omission on the part of OWNER, CONTRACTOR, the
Engineering Contractor, or any Subcontractor or Vendor, and
irrespective of any negligence, including sole or concurrent
negligence, on the part of any Owner Indemnified Party. [Completed
Operations proposal consistency] With respect to all such claims,
etc. as described in the preceding sentence of this Section 18.7, and
which arise from occurrences on or after [?expiration of completed
operations coverage], OWNER shall defend, indemnify and hold
CONTRACTOR harmless therefrom if such claims, etc. arise from any act
or omission on the part of OWNER or CONTRACTOR and irrespective of any
negligence, including sole or concurrent negligence, on the part of
CONTRACTOR.
17.8 The party making a claim for indemnity under this Article 17
("Indemnified Party") shall promptly notify the party obligated to
indemnify ("Indemnifying Party") of the assertion or commencement of
any claim, demand, investigation, action, suit or other legal
proceeding in respect of which indemnity is or may be sought
hereunder; provided, however, that this notice requirement shall not
apply to any claim, demand, investigation, action, suit or other legal
proceeding in which the parties are adversaries. The failure by the
Indemnified Party to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations under this Article
17, except
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to the extent, if any, that it has been prejudiced by the lack of
timely and adequate notice.
17.9 The Indemnifying Party shall have the right to assume the defense or
settlement of any third-party claim, demand, investigation, action,
suit or other legal proceeding (collectively "Third-Party Claims")
with counsel reasonably satisfactory to the Indemnified Party;
provided, however, that the Indemnifying Party shall not settle or
compromise any Third-Party Claim without the Indemnified Party's prior
written consent thereto. Notwithstanding the foregoing, (1) the
Indemnified Party shall have the right, at its option and expense, to
participate fully in the defense or settlement of any Third-Party
Claim; and (2) if the Indemnifying Party does not commence and
continuously and diligently continue to defend or seek the settlement
of any Third-Party Claim within ten (10) days after it is notified of
the assertion or commencement thereof, then (a) the Indemnified Party
shall have the right, but not the obligation, to undertake the defense
or settlement of such Third-Party Claim for the account of and at the
risk of the Indemnifying Party, and (b) the Indemnifying Party shall
be bound by any defense or settlement that the Indemnified Party may
make as to such Third-Party Claim. The Indemnified Party shall be
entitled to join the Indemnifying Party in any Third-Party Claim for
the purpose of enforcing any right of indemnity hereunder. The
Indemnified Party shall cooperate with the Indemnifying Party in the
defense or settlement of any Third- Party Claim and, at the expense of
the Indemnifying Party, shall furnish any and all non-privileged
materials in its possession and endeavor to make any and all witnesses
under its control available to the Indemnifying Party for any lawful
purpose relevant to the defense or settlement of any such Third-Party
Claim.
17.10 With respect to the performance of the Work and Engineering Work
(whether in the United States or Trinidad and Tobago), CONTRACTOR
shall obtain (as of the effective date hereof) and shall maintain at
least until Final Completion (except as provided below),the following
insurance policies and coverages:
(a) Statutory Workers' Compensation and Employer's Liability
Insurance with a limit of $1,000,000 covering all persons
employed by CONTRACTOR or Engineering Contractor on the Work
or Engineering Work during the period such persons are so
engaged.
(b) Comprehensive General Liability insurance covering, among
other things, bodily injury and property damage liability,
premises/operations, underground/explosion and collapse
hazard, product/completed operations, independent contractors,
broad form contractual (including, without limitation,
contractual liabilities assumed by Contractor under this
Agreement and by Engineering Contractor under the Engineering
Contract), and broad
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form property damage, with a minimum policy limit of US
$5,000,000 per occurrence;
(c) Comprehensive Automobile Liability Insurance on motor vehicles
owned or rented by CONTRACTOR or Engineering Contractor, or
owned or rented by CONTRACTOR's or Engineering Contractor's
employees, and used in connection with the Work or Engineering
Work, protecting CONTRACTOR and Engineering Contractor and
covering Bodily Injury Liability, for injury or death of
persons, and Property Damage Liability with a combined single
limit of $5,000,000 per occurrence [and in the aggregate?].
(d) Excess/Umbrella General Liability Insurance, including,
without limitation, contractual liability, auto liability, and
employer's liability insurance and completed operations
liability insurance, written on an occurrence basis, with
minimum limits of not less than US $25,000,000 per occurrence.
Such completed operations coverage shall remain in effect
until three (3) years after Final Completion.
17.11 OWNER shall provide "All Risk Builder's Risk" Insurance protecting the
respective interests of OWNER, CONTRACTOR and Engineering Contractor
covering physical loss or damage during the course of Work or
Engineering Work, and any materials, equipment, or supplies furnished
or procured by CONTRACTOR, Engineering Contractor, or any
Subcontractor or Vendor for the Facility while (i) in transit, (ii) in
temporary storage, (iii) at the Site awaiting erection, and (iv)
during erection until Final Completion. Such insurance shall be
maintained to cover the full value of the Facility at risk, subject
to normal exclusions. It is understood that such insurance shall not
provide coverage for machinery, tools, equipment or other property not
destined to become a permanent part of the Facility which are supplied
or used by CONTRACTOR or Engineering Contractor. Such insurance shall
name CONTRACTOR and Engineering Contractor as an additional insureds,
as their interests may appear.
17.12 CONTRACTOR shall cause all insurance policies providing coverage as
required hereunder, to be endorsed to provide for the waiver of
subrogation rights against the Additional Insureds, as defined in
Section 17.13, and their successors and assigns, and all of their
respective officers, directors, partners and employees. [All policies
and coverages required under this Agreement shall be obtained from
insurance companies rated A+10 or better by A. M. Best Company, unless
otherwise agreed.]
17.13 The insurance policies and coverages described in Section 17.10
(a)-(d) above shall name OWNER, [OWNER's general partner], Arcadian
Trinidad Ammonia Limited, a Trinidad and Tobago private limited
company, Arcadian Trinidad Limited, a Trinidad and Tobago private
limited company, Arcadian Fertilizer Corporation, a
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Delaware corporation, Arcadian Nitrogen Limited, a Trinidad and
Tobago private limited company, Arcadian Corporation, Arcadian
Fertilizer, L.P., and such other affiliated and non-affiliated
entities as Owner may designate (collectively "Additional Insureds"),
as additional insured parties. Additionally, all such liability
policies and coverages shall name Rabobank Nederland, New York Branch
(for itself and as agent for other lenders to OWNER) as additional
insured. Further, all such property damage/loss policies shall name
Rabobank Nederland, New York Branch (for itself and as agent for other
lenders to OWNER) as loss payee. All such insurance policies shall be
maintained in full force and effect until Final Completion.
Maintaining the prescribed insurance shall not relieve CONTRACTOR of
any other obligation or any liability under this Agreement; and
OWNER's rights and remedies under this Agreement (including, without
limitation, those under the indemnity provisions hereof) or otherwise,
shall not be limited or modified by the maintenance by CONTRACTOR of
the prescribed insurance, OWNER's status as an Additional Insured, or
OWNER's exercise of rights under this Article 17. The damages
limitations set forth in Section ________ [limit w/r/t adjacent
Facilities] above shall not limit, and does not apply to, the right
to receive insurance proceeds by the Additional Insureds or Rabobank
Nederland, New York Branch. All such insurance policies shall (1)
provide that they will not be canceled or allowed to lapse and their
coverages and limits will not be changed in any way without OWNER
being given written notice at least 30 days before the effective date
of any such cancellation, lapse or change; (2) be provided by
insurance companies authorized to do business in the appropriate state
or country and reasonably acceptable to OWNER; (3) otherwise be
reasonably acceptable in form and substance to OWNER. If any such
insurance policy lapses or is canceled or its coverage or limit is
changed, CONTRACTOR shall immediately replace the affected policy with
an insurance policy as called for in this Article 17; and if
CONTRACTOR does not comply with this covenant, OWNER may obtain the
replacement insurance policy and recover all premiums paid therefor
from CONTRACTOR. CONTRACTOR shall deliver to OWNER evidence of all
such insurance in the form of an insurance certificate(s); CONTRACTOR
shall provide such additional insurance certificates as OWNER may
reasonably request from time to time.
17.14 If CONTRACTOR subcontracts any part of the Work, the insurance
provisions of each subcontract shall be in accordance with
CONTRACTOR's usual practice. CONTRACTOR shall be responsible to ensure
that its Subcontractors maintain insurance as required in the
subcontracts during the course of Subcontractor's operations in
connection with the Work.
17.15 [OWNER shall provide Extended Cargo and Charter's Legal Liability
insurance at its own cost in an amount sufficient to protect the
interests of OWNER and CONTRACTOR. Such insurance shall name
CONTRACTOR as an additional insured. OWNER shall also provide Cargo
Insurance for land transportation on all
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Work items with a declared replacement value in excess of
US$1,000,000. CONTRACTOR will provide a list of cargo for each ocean
freight shipment noting each item's replacement value.] [Ship to,
xxxx of lading party has to be ANL.]
ARTICLE 18 - FORCE MAJEURE
18.1 In the event that either OWNER (or its agents) or CONTRACTOR is
rendered unable, wholly or in part, by force majeure, to carry out
its obligations under this Agreement, other than to make payments due
hereunder, it is agreed that upon giving notice and full particulars
of such force majeure event by telephone (confirmed in writing),
facsimile transmission or in writing to the other party, as soon as
possible after the occurrence of the cause relied upon, then the
obligations of OWNER or CONTRACTOR, so far as they are affected by
such force majeure event, shall be suspended during the continuance
of any inability so caused, but for no longer period, and such cause
so far as possible shall be remedied with all reasonable dispatch.
The term "force majeure" as employed herein shall mean acts of God,
acts, omissions to act or delays in action by any governmental
authority, strikes, lockouts or other industrial disturbances, acts
of the public enemy, wars, blockades, insurrection, riots, epidemics,
landslides, lightning, earthquakes, fire, storms, floods, washouts,
arrests and restraint of government or people, civil disturbances,
explosions, unforeseeable breakage or accident to machinery,
equipment or pipelines, and any other unforeseeable causes, similar
to the kind herein enumerated, not within the reasonable control of
affected party and which by the exercise of due diligence it is
unable to prevent or overcome.
ARTICLE 19 - TERMINATION [Suspensions]
19.1 OWNER shall have the right to terminate the Work upon not less than
ten (10) days' prior written notice to CONTRACTOR. In the event of
such termination of the Work, CONTRACTOR shall take immediate steps
to terminate the Work as quickly and efficiently as possible, both in
the field and elsewhere, and shall cancel all commitments on the best
possible terms, unless otherwise instructed in writing by OWNER. In
the event of such termination by OWNER, CONTRACTOR shall be paid by
OWNER for:
(a) all amounts due and payable to CONTRACTOR as of the effective
date of the termination;
(b) such reasonable costs which CONTRACTOR incurs for such parts of
the Work as are specifically authorized by OWNER or which are
incurred by CONTRACTOR in complying with the aforesaid notice
of termination, including a close-out period (not to exceed 4
weeks from the effective date of the notice of termination) for
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reassignment of CONTRACTOR's employees to other jobs. Such
reassignment shall be accomplished as quickly as possible;
(c) all termination and cancellation charges incurred in
terminating commitments made to Subcontractors, Vendors [and
other third parties?] for the Work prior to the effective date
of the notice of termination;
(d) the cost of nonterminable commitments [any of these?] made to
Subcontractors, Vendors, and other third parties for the Work
prior to the effective date of the notice of termination; and
(e) [reasonable costs for the travel, living and related costs
incurred by CONTRACTOR for relocating and reassigning
CONTRACTOR's personnel who are not ordinarily residents of
Trinidad and Tobago at the time of the effective date of the
notice of termination plus any severance or similar payments
required to be made by CONTRACTOR to such personnel.]
OWNER's sole liability to CONTRACTOR for termination under this
Paragraph 16.1 shall be determined in accordance with this Section
19.1 and OWNER shall not be liable for any other damages including,
without limitation, loss of anticipated profits.
[Do we need a provision for suspensions?]
19.2 If CONTRACTOR shall commit any breach of any material provision
hereof and such breach shall not be corrected within ten (10) days
after written notice from OWNER to CONTRACTOR (or, if such breach is
not correctable within ten (10) days, then within a reasonable time
after such notice, not to exceed _____), or if CONTRACTOR shall
become insolvent, either voluntary or involuntary bankruptcy or
receivership proceedings [initiated, undismissed?] or make an
assignment for the benefit of creditors, OWNER may terminate this
Agreement and complete the Work under substantially similar terms and
conditions as specified herein in any manner OWNER deems expedient,
provided that OWNER shall be required to mitigate its damages in so
completing the Work. In the event the reasonable and necessary costs
incurred by OWNER to complete the Work exceed the Contract Price,
CONTRACTOR shall be required to reimburse OWNER for such excess.
19.3 [Arcadian proposal: limit to failure to pay undisputed amounts not
covered by Letter of Credit.] If OWNER shall commit any substantial
breach of any material provision hereof, including without limitation
the payment of any sum due hereunder as and when due, and such breach
shall not be correct within ten (10) days after written notice from
OWNER to CONTRACTOR (or, if such breach is not correctable within ten
days, then within a reasonable time after such notice), or if OWNER
shall become insolvent, enter voluntary or involuntary bankruptcy or
receivership proceedings [undismissed] or make an assignment for the
benefit of creditors, CONTRACTOR may terminate this Agreement. In
the event
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of termination of this Agreement pursuant to this Paragraph 19.3,
CONTRACTOR shall receive from OWNER those amounts set forth in
Paragraph 19.1 above [?plus five percent (5%) of the unpaid portion
of the Contract Price as of the effective date of termination.?]
ARTICLE 20 - ASSIGNMENTS AND SUBCONTRACTS
20.1 OWNER may assign, convey, transfer or otherwise dispose of all or any
portion of its interest in, and/or its rights and obligations under,
this Agreement to (i) any direct or indirect parent, subsidiary or
other Affiliate of OWNER; (ii) Arcadian Corporation (its successors
and assignees), Arcadian Trinidad Limited (its successors and
assignees), or any direct or indirect parent, subsidiary or other
Affiliate of any thereof; (iii) any successor to OWNER or to any
assignee of OWNER by merger, consolidation, sale or other disposition
of all or substantially all of OWNER's or such assignee's assets, or
otherwise; and (iv) any secured lender or creditor of OWNER or any of
its successors or assignees, in each case without the consent or
approval of CONTRACTOR.
20.2 Except to the extent provided in Sections 20.3 and 20.4, CONTRACTOR
may not assign, convey, transfer or otherwise dispose of all or any
portion of its interest in, or its rights and obligations under, this
Agreement without the prior written consent of OWNER. Any such
permitted assignment shall not relieve CONTRACTOR of any of its
liabilities or obligations under this Agreement. Any assignment,
conveyance, transfer, or other disposition made or attempted in
violation of this Section 20.2 shall be void and of no force or
effect.
20.3 CONTRACTOR may have part of the Work performed by one or more of its
Affiliates; provided that CONTRACTOR shall remain liable and
responsible for the performance of such Work in accordance with the
terms and conditions of this Agreement. For all purposes of this
Agreement, including without limitation Articles
____________________________, CONTRACTOR and any such Affiliates
shall be considered one and the same entity.
20.4 CONTRACTOR may subcontract portions of the Work, as provided in
Sections ______ and _________[Subcontractors, procurement].
ARTICLE 21 - PUBLICITY RELEASES
21.1 CONTRACTOR shall make no publicity announcements regarding the Work
or CONTRACTOR's activities relating thereto without OWNER's prior
written consent.
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ARTICLE 22 - PERMITS, LICENSES & TAXES
22.1 Except for permits, licenses and other governmental authorizations
which must be obtained in the name of the OWNER, and those referenced
in Section ______ [Owner responsibilities] CONTRACTOR shall procure
all permits, licenses and other governmental authorizations that may
be needed to perform the Work, including, without limitation, Work to
be performed at the Site; provided however, that OWNER shall obtain,
or assist CONTRACTOR in obtaining, all Trinidad and Tobago
construction permits necessary for the performance of Work at the
Site.
22.2 CONTRACTOR shall be responsible for the reporting, filing, and
payment of any and all taxes, duties, charges and fees (and any
related fines, penalties, or interest) imposed directly or indirectly
by any governmental authority on the Work, the performance of the
Work, items, materials or services employed in connection with the
Work, CONTRACTOR or its Subcontractors, Vendors, employees, agents,
or servants, as a result of CONTRACTOR's performance of Work. OWNER
will be responsible for local Trinidad custom duties and import taxes
or fees (or related bonds) for all Trinidad Work related materials,
tools, supplies, consumables, and equipment. OWNER will pay
CONTRACTOR for VAT required to be imposed on the lump sum xxxxxxxx
for Trinidad Work invoiced to OWNER under Section _______.
22.3 CONTRACTOR and all Subcontractors shall be registered and licensed to
perform services (including the Work) in all States, if any, in which
Work is being performed hereunder, and the Republic of Trinidad and
Tobago, to the extent required by applicable laws, rules or
regulations of each jurisdiction in which Work is or may be
performed.
ARTICLE 23 - INDEPENDENT CONTRACTOR
23.1 It is expressly understood and agreed that in the performance of the
Work, CONTRACTOR is, and shall be an independent contractor, and is
and shall be solely responsible for the means, method and manner of
performing the Work, including, without limitation, the selection of
suitable tools and equipment and a sufficient number of qualified
employees and subcontractors. The selection of personnel, their
training and supervision, their hours of labor, and the compensation
and benefits to be paid to or provided such personnel shall be
determined by and shall be the responsibility of CONTRACTOR or its
Subcontractors or agents, as the case may be. Under no circumstances
shall activities or omissions of CONTRACTOR, its agents,
representatives, or Subcontractors, or CONTRACTOR's employees, be
considered those of OWNER or its agents, and in no event shall the
relationship between the parties (or any party's agent) be construed
as that of principal and agent, master and servant, joint venturers,
or employer and employee for any purpose whatsoever. As an
independent contractor, any and all personnel utilized directly or
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indirectly by CONTRACTOR shall not be deemed to be employees, agents
or representatives of OWNER or its agents. CONTRACTOR acknowledges
and agrees that it and not OWNER will make or cause to be made any
payments on behalf of CONTRACTOR, any of its agents or
Subcontractors, or any of their respective employees.
ARTICLE 24 - NOTICES
24.1 The Coordination Procedure in Annex ______ sets forth the procedures
and addresses for the routine and ongoing communications between
OWNER and CONTRACTOR.
24.2 All notices, demands, requests and other communications hereunder
(not addressed by the Coordination Procedures) shall be made in
writing and shall be delivered in person or by certified mail
(postage prepaid and return receipt requested), courier or overnight
delivery service (delivery charge prepaid), or telecopy or facsimile.
A copy of any notice sent by telecopy or facsimile shall be promptly
sent by certified mail. Any notice, demand, request or other
communication shall be effective only if and when it is received by
the addressee. For the purposes hereof, the addresses and telecopier
numbers of the parties hereto are as follows:
To Owner:
Nitrogen Leasing Company, Limited Partnership
c/o ML Leasing Equipment Corp.
Project and Lease Finance Group
000 Xxxxx Xxxxxx
Xxxxx Tower, 27th Floor
New York, New York 10281
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President
Telecopier: [(000) 000-0000]
with a copy to:
Arcadian Nitrogen Limited
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxx, Vice President, Technical, Arcadian
Corporation
Telecopier: (000) 000-0000
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Mr.____________________________, Project Manager
Arcadian Nitrogen Limited
Xxxxxxxx Bay Road
Point Lisas, Couva
Trinidad, West Indies
Telecopier: [(000) 000-0000]
and to Contractor as follows:
The X. X. Xxxxxxx Company [?Xxxxxxx Pan American]
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Senior Vice President
Telecopier: (000) 000-0000
Any party hereto may change its address or telecopier number for the
purposes hereof by giving notice thereof to the other party in the
manner provided for herein.
ARTICLE 25 - ACCOUNTING AND INSPECTION OF RECORDS
25.1 CONTRACTOR shall maintain suitable accounting records with respect to
the Work. Upon completion of the Work, CONTRACTOR shall provide
OWNER with a distribution of the total costs thereof to OWNER
according to a classification of accounts to be furnished by OWNER.
[Fit with lump sum price?]
25.2 CONTRACTOR shall keep full and accurate records of payments for and
costs of the Work and shall preserve such records for one (1) year
after the Date of Mechanical Completion. OWNER shall have the right,
to be exercised at its discretion at all reasonable times during
regular business hours, to inspect such records insofar as may be
necessary to verify items paid for by OWNER pursuant to Annex ______.
In no event shall OWNER be entitled to audit the composition of any
specified percentages, fixed rates, fixed prices or other agreed
compensation referred to in this Agreement or any amendment or
modification thereto.
[Need to have due authorization, execution representations and warranties for
each entity--I have some short ones if you don't.]
ARTICLE 26 - MISCELLANEOUS
26.1 Entire Agreement. This Agreement (including the attached annexes)
constitutes the full understanding of the parties, a complete
allocation of risks between them, and a complete and exclusive
statement of the terms and conditions of their agreement
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144
relating to the subject matter hereof and supersedes any and all
prior negotiations, understandings and agreements, whether written or
oral, between the parties with respect thereto, including, without
limitation, any and all interim arrangements and agreements. Except
as otherwise specifically provided in this Agreement, no term,
condition, usage of trade, course of dealing or performance,
understanding or agreement purporting to modify, vary, explain or
supplement the provisions of this Agreement shall be effective or
binding on the parties, unless the same hereafter is effected in
accordance with Section 26.2.
26.2 Amendments. This Agreement may not be altered, modified, amended or
changed (other than any waiver of any provision hereof, which shall
be effective only if made in accordance with Section 26.3) in any
manner, except by a written agreement executed and delivered by all
parties. Without limiting the generality of the foregoing, this
Agreement shall not be altered, modified, amended or changed by any
terms or provisions of purchase orders, invoices or other documents
issued, delivered, and/or executed by or to CONTRACTOR or OWNER in
connection with the Work or otherwise.
26.3 Waivers. No waiver by any party of any breach of the covenants set
forth herein or any claim, right or remedy provided for hereunder and
no course of dealing shall be deemed a waiver of the same or any
other breach, claim, right or remedy, unless such waiver is in
writing and is signed by the party sought to be bound. The failure
of a party to assert or exercise any claim, right or remedy shall not
be deemed a waiver of such claim, right or remedy in the future. Any
failure by either OWNER or CONTRACTOR at any time or from time to
time to enforce or insist upon the strict keeping and/or performance
of any of the terms or conditions of this Agreement, shall not
constitute a waiver of such terms or conditions, and shall not affect
or impair such terms or conditions in any way, or the rights of OWNER
or CONTRACTOR at any time to avail itself of such remedies as it may
have for any breach or breaches of such terms or conditions.
26.4 Modification and Severability. If an arbitration tribunal or court
of competent jurisdiction declares that any provision of this
Agreement is illegal, invalid or unenforceable, then such provision
shall be modified automatically to the extent necessary to make such
provision fully legal, valid and enforceable. If such arbitration
tribunal or court does not modify any such provision as contemplated
herein, but instead declares it to be wholly illegal, invalid or
unenforceable, then such provision shall be severed from this
Agreement, and this Agreement, and the rights and obligations of the
parties hereto, shall be construed as if this Agreement did not
contain such severed provision, and this Agreement otherwise shall
remain in full force and effect.
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26.5 Enforceability. This Agreement shall be enforceable by and against
CONTRACTOR and OWNER and their respective successors, permitted
assignees and legal representatives.
26.6 Survival. Any and all guarantees, representations, warranties,
standards and specifications concerning the Work, Engineering Work,
Facility or Plant set forth herein shall survive (I) the inspection,
test, acceptance (including acceptance pursuant to Section _____ __
of the Engineering Contract) and payment for the Work or any portion
thereof; and (ii) for the maximum period permitted by applicable law
(subject to the duration limitations set forth in Article _____), the
termination, suspension or expiration of the Work (or any portion
thereof) or this Agreement (or any portion thereof). The provisions
of Articles ______________ [indemnity, patent, confidentiality], and
the parties' respective obligations, rights and remedies thereunder,
shall survive the termination, suspension or expiration of the Work
(or any portion thereof) or this Agreement (or any portion thereof)
for the maximum period permitted by applicable law.
26.7 Conflicts. In the event there are conflicts between the provisions
set forth in the body of this Agreement and those set forth in
annexes hereto, the provisions set forth in the body of this
Agreement shall control.
26.8 Captions. The captions contained in this Agreement are for
convenience of reference only and shall not affect in any way the
meaning, construction or scope of the provisions of this Agreement.
26.9 Joint Venture. OWNER and CONTRACTOR are not and shall not be deemed
or construed to be joint venturers, partners, agents, servants,
employees, fiduciaries or representatives of each other by virtue of
this Agreement or the performance thereof.
26.10 Equitable Remedies. The parties acknowledge and agree that
irreparable damage would occur in the event that material provisions
of this Agreement were not performed in accordance with their
specific terms and conditions or were otherwise breached.
Accordingly, in the event of any breach by a party hereto of any
covenant contained in this Agreement, the other party shall be
entitled to equitable relief (including, without limitation, specific
performance of such covenant), in addition to any and all other
remedies to which said party may be entitled hereunder or by law.
Any party's full or partial exercise of any remedy shall not preclude
any subsequent exercise by said party of the same or any other
remedy.
26.11 Cumulative Nature. The respective rights and remedies of the parties
under this Agreement shall be cumulative of, in addition to, and not
in limitation of, one another, and any and all other rights and
remedies which may be available under applicable law.
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26.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED UNDER,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE,
UNITED STATES OF AMERICA, EXCLUDING THE CONFLICT-OF-LAWS PROVISIONS
THEREOF. OWNER AND CONTRACTOR SHALL SUBMIT TO THE JURISDICTION OF
THE STATE COURTS IN SHELBY COUNTY, TENNESSEE, IN CONNECTION WITH ANY
ACTION, SUIT OR OTHER LEGAL PROCEEDING ARISING FROM OR BASED ON THIS
AGREEMENT.
26.13 Multiple Counterparts. This Agreement may be executed by the parties
hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute
one and the same instrument.
26.14 [Required by Xxxxxxx Xxxxx] No Recourse. OWNER's obligations
hereunder are intended to be the obligations of the limited
partnership and of the corporation which is the general partner
thereof only and no recourse for any obligation of OWNER hereunder,
or for any claim based thereon or otherwise in respect thereof, shall
be had against any limited partner of OWNER or any incorporator,
shareholder, officer or director, or affiliate, as such, past,
present or future of such corporate general partner or limited
partner or of any successor corporation to such corporate general
partner or any corporate limited partner of OWNER, or against any
direct or indirect parent corporation of such corporate general
partner or of any limited partner of OWNER or any other subsidiary or
affiliate of any such direct or indirect parent corporation or any
incorporator, shareholder, officer or director, as such, past,
present or future, of any such parent or other subsidiary or
affiliate. Nothing contained in this section shall be construed to
limit the exercise or enforcement, in accordance with the terms of
this Agreement and any other documents referred to herein, of rights
and remedies against the limited partnership or the corporate general
partner of OWNER or the assets of the limited partnership or the
corporate general partner of OWNER.
26.15 [Required by Xxxxxxx Xxxxx] Agent. CONTRACTOR acknowledges and
agrees that (I) all of OWNER's obligations under this Agreement shall
be performed by [ANL, as agent], and (ii) Arcadian Fertilizer, L.P.
shall be responsible to OWNER for the supervision of such agent's
performance hereunder as agent of OWNER under an Agreement for Lease,
dated as of March _____, 1996, between OWNER and Arcadian Fertilizer,
L.P.
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written but is effective as of [February 15, 16, 1996].
NITROGEN LEASING COMPANY, THE X. X. XXXXXXX COMPANY
LIMITED PARTNERSHIP
By: ML Leasing Corp., General Partner
By: By:
------------------------------ ---------------------------
Name: Name:
---------------------------- -------------------------
Title: Title:
--------------------------- ------------------------
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148
DRAFT
March 20, 1996
AGREEMENT
BETWEEN
NITROGEN LEASING COMPANY, LIMITED PARTNERSHIP
AND
THE X. X. XXXXXXX COMPANY
Ammonia Production Facility
Services Outside Trinidad
and Tobago
Effective: [December 21, 1995--
first letter between
Xxxxxxx Arcadian--?]
[February 15 or 16, 1996?]
149
INDEX
ARTICLE TITLE PAGE
------- ----- ----
1 - GENERAL SCOPE OF WORK AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 - PRICE/PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 - MECHANICAL COMPLETION DEADLINE, PROGRESS REPORTS PROJECT SURETY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 - SCOPE OF WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5 - CERTAIN CONTRACTOR RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6 - CONTRACTOR'S DESIGN AND ENGINEERING WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 - MATERIALS AND OPERATING EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8 - CONSTRUCTION AND OTHER SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9 - INSPECTION OF WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10 - PROCUREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11 - CONTRACTOR REPRESENTATIONS, WARRANTIES AND GUARANTEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12 - PERFORMANCE TESTS AND ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13 - CHANGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14 - LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
15 - TECHNOLOGY-LICENSE, USE OF INFORMATION AND CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16 - PATENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 - SERVICES, AND OTHER ITEMS TO BE FURNISHED BY OWNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
18 - INSURANCE,INDEMNITY AND RISK ALLOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
150
19 - FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
20 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
21 - ASSIGNMENTS AND SUBCONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
22 - PUBLICITY RELEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23 - PERMITS, LICENSES & TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
24 - INDEPENDENT CONTRACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
25 - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
26 - ACCOUNTING AND INSPECTION OF RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
27 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ANNEX A SCOPE OF WORK
ANNEX B COORDINATION PROCEDURES
ANNEX C PERFORMANCE GUARANTEES
ANNEX D RATES
ANNEX E TERMS OF PAYMENTS
ANNEX F MECHANICAL COMPLETION
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THIS AGREEMENT is executed and entered into on April _______, 1996,
but effective as of [December 21, 1995?; February 15, 16, 1996?], by and between
NITROGEN LEASING COMPANY, LIMITED PARTNERSHIP, a Delaware, U.S.A. limited
partnership with offices at Xxxxx Xxxxx, 00xx Xxxxx, World Financial Center,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (hereinafter referred to as
"OWNER"), and THE X. X. XXXXXXX COMPANY, a Delaware, U.S.A. corporation with
offices at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (hereinafter referred to
as "CONTRACTOR").
WITNESSETH THAT:
WHEREAS, OWNER desires to have CONTRACTOR perform on a lump sum basis
engineering, design, procurement, project management, and other associated
services, and furnish materials, machinery and equipment, outside the Republic
of Trinidad and Tobago necessary for the construction, erection, start-up, and
operation of a facility for the production of anhydrous ammonia on a site in
the Republic of Trinidad and Tobago to be leased by OWNER;
WHEREAS, CONTRACTOR has represented that it is familiar with the
proposed Work (as defined below), that it possesses the requisite expertise and
resources to perform such Work, and that it desires and has the ability to
perform and procure the services and furnish and procure the labor, engineering
services, drawings, tools, equipment, machinery, technology, materials,
transportation, supervision, project management, and other services and
materials necessary to fully perform and execute such Work in accordance with
the terms hereof; and
WHEREAS, CONTRACTOR desires to undertake the performance of such
services on a lump sum basis under and pursuant to the terms and conditions
hereafter provided;
NOW THEREFORE, OWNER and CONTRACTOR, each in consideration of the
undertakings and agreements on the part of the other hereinafter contained,
hereby mutually agree as follows:
ARTICLE 1 - GENERAL SCOPE OF WORK AND DEFINITIONS
1.1 CONTRACTOR shall furnish engineering, design, process design,
procurement, project management, transportation,
supervision,construction and other services, and materials, equipment,
machinery, tools, technology, drawings, and labor, and shall otherwise
perform the Work, necessary for the construction, erection, start-up
and operation of the Facility (as defined below). None of such
services will be performed within the Republic of Trinidad and Tobago.
The scope of CONTRACTOR's Work is more particularly set forth in Annex
A and elsewhere in this Agreement.
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1.2 When used in this Agreement, the terms set forth below shall have the
following meanings:
(a) "Affiliate" of any entity shall mean any other entity directly
or indirectly controlling, controlled by or under common
control with such entity.
(b) "Agreement" shall mean this contract between OWNER and
CONTRACTOR which consists of ____________ Articles and Annexes
A, B, C, D, E and F.
(c) "Change" shall mean a change in the Work which may result in a
revision to the guarantees made by CONTRACTOR, the Target Date
or the Contract Price.
(d) "Change Order" shall mean the document referred to in Article
_____ below which describes a Change and its effects and which
is signed by OWNER and CONTRACTOR.
(e) "Contract Price" shall have the meaning set forth in Section
____ below.
(f) "CONTRACTOR Indemnified Parties" shall mean CONTRACTOR, each
of its direct and indirect parents, subsidiaries and other
Affiliates, each of the foregoing entities' respective
successors and assignees, and each of the foregoing entities'
(including, without limitation, successors and assignees)
respective stockholders, partners, directors, officers,
employees, and representatives.
(g) "Construction Contract" shall mean the Agreement between OWNER
and Xxxxxxx Pan American Corporation effective
______________________________, 1996, for the construction,
erection and start-up of the Facility.
(h) "Construction Work" shall mean "Work" under the Construction
Contract as defined therein.
(i) "Constructor" shall mean Xxxxxxx Pan American Corporation, a
_____________________ corporation, registered ___________.
(j) "Date of Mechanical Completion" shall mean the actual calendar
date upon which the Plant and Facility achieves, and all Work
hereunder and Construction Work under the Construction
Contract has been completed to, Mechanical Completion, as
further specified in Annex F.
(k) "Dollar" or "dollar" or the symbol "$" shall mean United
States Dollars.
(l) "Encumbrance" shall have the meaning specified in
Section _____ hereof.
(m) "Facility" shall mean the Plant plus related Offsites and
other facilities as further described in Annex A and elsewhere
herein.
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153
(n) "Final Completion" shall mean that all Work hereunder and all
Construction Work under the Construction Contract shall have
been completed, and OWNER shall be in a position to issue, and
shall have issued, the written Notice of Acceptance of the
[Plant, Facility] pursuant to and as contemplated by Section
______.
(o) "Force Majeure" shall have the meaning set forth in Section
______ below.
(p) "ISBL" shall mean
____________________________________________________________
_____________________________.
(q) "OSBL" shall mean
___________________________________________________________
___________________.
(r) "Xxxxxxx Advanced Ammonia Process" shall mean
_______________________________________________________________
______________ and is sometimes referred to herein as "KAAP".
(s) "Licensees" shall mean the OWNER, Arcadian Fertilizer, L.P., a
Delaware limited partnership, Arcadian Trinidad Limited, a
Trinidad and Tobago private limited company, and each of their
Affiliates.
(t) "Liquidated Damages" shall mean any amount or amounts of money
which may become due hereunder by CONTRACTOR to OWNER (as
specified in Annex C) for failure to achieve any or all of the
Performance Guarantees. [CONTRACTOR and OWNER acknowledge and
agree that any such Liquidated Damages shall not constitute a
penalty, instead representing a reasonable approximation of
damages which are difficult or impossible of being calculated
with certainty at this time. It is the intent of the parties
that any such Liquidated Damages not be construed as a
penalty.]
(u) "Losses" shall mean any and all costs, damages, expenses,
judgements, charges, losses and other liabilities (including,
without limitation, all reasonable legal and expert fees and
expenses and court costs) and all claims, demands, actions,
suits and other legal proceedings, regardless of the alleged
legal basis therefor or by whom asserted.
(v) "Mechanical Completion" shall mean that the Work, the
Construction Work, the Plant, and the Facility have been
sufficiently completed so that OWNER can occupy and use them
for their intended purposes, and that the tasks set forth in
Annex F have been performed in accordance with such annex.
The specific procedures for assessing and determining
Mechanical Completion are set forth in Annex F. OWNER's
agreement from time to time, pursuant to Annex F, that
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Mechanical Completion has occurred, shall not limit or affect
OWNER's rights and remedies hereunder, or otherwise, or
CONTRACTOR's obligations hereunder.
(w) "Offsites" shall mean [power supply systems, water supply
systems, instrument air, water treatment systems, fresh water
cooling pumps and exchangers, demineralized water systems, sea
water cooling towers and pumps, fire water systems, and such
other equipment and items necessary to support Plant
operations].
(x) "Owner Indemnified Parties" shall mean OWNER, Arcadian
Corporation, a Delaware corporation, Arcadian Corporation, as
general partner, Arcadian Fertilizer, L.P., a Delaware limited
partnership, Arcadian Trinidad Limited, a Trinidad and Tobago
private limited company, each of their direct and indirect
parents, subsidiaries and other Affiliates, each of the
foregoing entities' respective successors and assignees, and
each of the foregoing entities' (including, without
limitation, successors and assignees) respective stockholders,
partners, directors, officers, employees, and representatives.
(y) "Performance Guarantees" shall mean those guarantees of
capacity, product purity, utilities and related matters made
by CONTRACTOR for the Plant [Facility] and as further
described in Annex C.
(z) "Plant" shall mean a facility for the production of anhydrous
ammonia having a design capacity of 1,850 metric tons per day
as further described in Annex A and elsewhere herein.
(aa) "Retainage Amount" shall have the meaning specified in Section
2.5 hereof.
(bb) "Site" shall mean the real property owned, leased or licensed
by OWNER in or near Point Lisas, Republic of Trinidad and
Tobago, upon which the Facility is to be constructed, erected
and operated, and including, without limitation, any laydown
and similar areas dedicated for use in connection with
Facility construction.
(cc) "Subcontractor" shall mean any third party, other than an
Affiliate of CONTRACTOR, which furnishes services relative to
the Work under an agreement with CONTRACTOR. All
Subcontractors must be pre-approved by OWNER and are listed in
Annex A.
(dd) "Target Date" shall mean the date by which CONTRACTOR under
this Agreement, and Constructor under the Construction
Contract, shall be required to have achieved Mechanical
Completion of the Work, the Construction Work
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as defined in the Construction Contract), the Plant, and the
Facility, and such date is February 15, 1998.
(ee) "Vendor" shall mean any third party which supplies materials
or equipment, plus any attendant services, under a purchase
order or other agreement with CONTRACTOR made in connection
with the Work. [All such vendors must be preapproved by OWNER
and are listed in Annex A.]
(ff) "Work" shall mean the process design, engineering, design,
transportation, shipping, loading, unloading, construction,
fabrication, assembly, project management, expediting,
inspection, supervision, scheduling, purchasing, procurement
and other associated services, and all equipment, machinery,
materials, tools, supplies, labor, and technology, which shall
be provided or procured by CONTRACTOR hereunder, as more fully
enumerated and described in Annex A and elsewhere herein.
1.3 In the event of any conflict between the provisions of the Articles of
this Agreement and the provisions of the Annexes, the provisions of
the Articles shall prevail.
ARTICLE 2 - PRICE/PAYMENT
2.1 As full compensation for the performance of the Work hereunder and any
and all Construction Work under the Construction Contract, inclusive
of all Subcontractor, Vendor and other third-party fees and charges,
direct and indirect costs and fees of CONTRACTOR (and of Constructor),
and any other cost, expense, fee or charge of any nature whatsoever
(including, without limitation, those of suppliers of services, labor,
machinery, equipment, materials, tools and supplies), OWNER shall pay
the CONTRACTOR (or Constructor, as the case may be) the total,
aggregate, fixed lump sum price of $236,000,000. Such total, fixed
lump sum price shall not be subject to escalation although it may be
adjusted pursuant to Article ______ [Change Orders] hereof. As of the
execution date hereof, CONTRACTOR acknowledges the payment by OWNER,
and receipt of $___________________ of such fixed lump sum price; and
the remaining fixed lump sum price to be paid hereunder is
$___________________. [Should cost of this Contract be segregated?]
2.2 For all purposes of this Agreement, the parties have agreed that the
amount of $_______________ shall be allocated as a fee for the license
granted by CONTRACTOR pursuant to Section _______.
2.3 [This concept perhaps should be in Annexes D and/or E.] OWNER shall
pay CONTRACTOR progress payments, representing in each case a portion
of the fixed lump sum price described in Section 2.1 above, as
contemplated by Annex E hereto. Such payments shall be based on the
percentage of progress reported by
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CONTRACTOR as of the dates specified in Annex E, and agreed to by
OWNER. OWNER shall be required to pay only that progress payment
amount, for each progress payment date, which is equal to the
percentage of progress that OWNER agrees has been completed;
provided, however, that if OWNER's determination of the percentage of
progress (for any progress payment other than the final progress
payment) is within _____% of the percentage of progress specified for
such progress payment date in Annex E, then OWNER shall pay the amount
specified for such progress payment date in Annex E. Disputes as to
percentages of progress shall be resolved as soon as reasonably
possible; provided that OWNER shall be required to pay only those
amounts representing completed progress as agreed to by OWNER.
CONTRACTOR shall submit invoices in form and accompanied by supporting
documentation reasonably satisfactory to OWNER, for each progress
payment specified in Annex E. Subject to the terms and conditions of
this Section 2.3, OWNER shall make required payments via direct bank
wire transfer within ______ days after receipt of invoice by OWNER.
2.4 Any payments made hereunder by OWNER shall not (i) preclude OWNER from
disputing any item or matter, including, without limitation, whether
the particular percentage of completion in question has in fact been
achieved; (ii) constitute or be construed as OWNER's acceptance of the
Plant, Facility, Work, Construction Work or any portion thereof, or
OWNER's acknowledgment that the Work, Construction Work or any portion
thereof has been satisfactorily completed in accordance with the terms
and conditions of this Agreement; or (iii) limit or otherwise affect
OWNER's rights and remedies hereunder or otherwise, or CONTRACTOR's
obligations hereunder.
2.5 In order to assure performance of its obligations under this
Agreement, CONTRACTOR agrees that OWNER shall retain certain amounts
from payments due CONTRACTOR hereunder. OWNER shall retain an amount
equal to ____% from each progress payment hereunder. The retained
monies shall be held in a bookkeeping account maintained by OWNER
("Retainage Account"). OWNER shall segregate the funds posted to the
Retainage Account. The amounts posted to the Retainage Account shall
bear simple interest at ______. All interest shall become part of the
Retainage Account due CONTRACTOR as provided herein. In lieu of
actual retainage, CONTRACTOR may, at CONTRACTOR's expense, post
Irrevocable Standby Letters of Credit in form and substance
satisfactory to OWNER (and its lenders), in amounts equal to _____% of
each progress payment as described above. If from time to time
CONTRACTOR fails to perform its obligations under this Agreement in
accordance with the terms and conditions hereof, OWNER shall notify
CONTRACTOR and CONTRACTOR shall promptly remedy any such failure. If
CONTRACTOR fails to promptly remedy any such failure, OWNER shall have
the right, in addition to any other rights and remedies it may have
hereunder or otherwise, to withdraw such amounts from the Retainage
Account, or draw such amounts under such letters of credit, as may be
necessary to remedy any such failures. OWNER shall also have the
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right to withdraw such amounts, or draw such amounts under such
letters of credit, as may be necessary to provide for the release of
any Encumbrance filed by any of CONTRACTOR's Subcontractors, agents,
suppliers, Vendors or workers in connection with the Work. If
retainage is used, CONTRACTOR shall be paid the funds remaining in the
Retainage Account following the expiration of 30 days following the
later of the Date of Mechanical Completion, or payment in full of all
of CONTRACTOR's and Constructor's Subcontractors, agents, suppliers,
Vendors and workers. If such letters of credit are used, letters of
credit shall remain in effect until the later of the two events
referenced immediately above.
ARTICLE 3 - MECHANICAL COMPLETION DEADLINE, PROGRESS REPORTS
PROJECT SURETY
3.1 CONTRACTOR shall commence the Work promptly upon the effective date of
this Agreement.
3.2 Except to the extent a delay is caused by the occurrence of a Force
Majeure event pursuant to and as contemplated by Section __________,
and except for delays contemplated by Section ________[Change Orders],
all Work, Construction Work, the Plant, and the Facility shall be
Mechanically Complete (i.e., shall have achieved Mechanical
Completion) no later than the Target Date, February 15, 1998.
3.3 CONTRACTOR shall issue to OWNER monthly progress reports no later than
the tenth day following the end of the month in respect of which such
report is prepared, detailing the progress made by CONTRACTOR during
the preceding month toward the achievement of the Target Date. The
reports shall include, but shall not be limited to, the following:
1. A description of any and all delays which CONTRACTOR
anticipates.
2. An updated schedule.
3. A statement of the CONTRACTOR's assessment of the percentage
of design, process design, engineering, procurement, delivery
of equipment and materials, and construction which is
complete.
4. A narrative of the activities conducted during the month,
including action items and problems.
3.4 [There will need to be a corresponding provision in the Construction
Contract.] In lieu of providing a performance and payment bond,
contemporaneously with the execution hereof, CONTRACTOR shall deliver
to OWNER a guaranty of its parent, Dresser Industries, Inc., a
Delaware corporation, guaranteeing that CONTRACTOR
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will faithfully perform promptly and with due diligence all of the
terms and conditions of this Agreement on its part to be performed,
including all of the undertakings, guarantees, warranties, obligations
and liabilities of CONTRACTOR or of any Subcontractor, supplier or
Vendor of CONTRACTOR, protecting OWNER against Losses by reason of
the breach of or default in the performance of any such undertakings,
guarantees, warranties or obligations, and protecting OWNER against
all claims and Encumbrances for the payment of sums for labor,
services and materials provided in connection with the Work. Such
guaranty shall remain in effect at least until the expiration of all
warranty periods provided for under Article _______ hereof, and shall
apply to all matters (otherwise covered by such guaranty) of which
notice has been provided to CONTRACTOR prior to the expiration of such
guaranty.
ARTICLE 4 - SCOPE OF WORK
4.1 The Scope of Work, attached hereto as [Annex A] and as otherwise
described herein, specifically enumerates and describes the Work to be
performed by CONTRACTOR under this Agreement; provided, however, that
the Work (and hence the Scope of Work) shall include, without
limitation, such additional services and items as may be necessary or
appropriate to enable CONTRACTOR to perform its obligations under this
Agreement in accordance with the terms and conditions hereof. It is
understood and agreed that the Construction Work required to be
performed in the Republic of Trinidad and Tobago shall be performed by
Constructor. Portions of the fixed lump sum price described in
Article 2 hereof shall be paid to Constructor to reflect its
performance of such Construction Work. Notwithstanding the foregoing,
CONTRACTOR shall supervise and shall be liable and responsible for the
performance of the Construction Work by Constructor and for its
undertakings and obligations under the Construction Contract.
ARTICLE 5 - CERTAIN CONTRACTOR RESPONSIBILITIES
5.1 CONTRACTOR shall perform the Work in a good, expeditious, workmanlike,
safe, efficient and lawful manner, and in conformity with sound,
recognized, and generally accepted industry, engineering and
construction standards and practices for projects similar in scope and
size to this project, and otherwise in accordance with the terms and
conditions of this Agreement.
5.2 In the performance of the Work, CONTRACTOR shall (and shall cause its
Subcontractors, Vendors and agents to) comply with all applicable
laws, rules, regulations, orders, consents and decrees of any
governmental authority with jurisdiction.
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5.3 CONTRACTOR represents and warrants to OWNER, and covenants and agrees,
that the Plant, the Facility, the Work, and the Construction Work
shall be at the time of Final Completion free and clear of any and all
liens, security interests, charges, and encumbrances (collectively,
"Encumbrances").
5.4 Risk of loss of and damage to the Work, [the Construction Work], the
Plant, and the Facility, will be and remain with CONTRACTOR until the
Date of Mechanical Completion of all Work, the Construction Work, the
Plant, and the Facility; provided that the insurance policies and
coverages required under Article _______ shall (except as provided
therein) remain in effect until Final Completion, and shall continue
to cover such Losses as provided in such policies.
5.5 Except as provided in Section _______ [Xxxxxxx proprietary data], all
drawings, specifications, designs, engineering data and studies,
process data and studies, intellectual property (including all
patentable and copyrightable materials), and any other data, materials
or items which are generated, produced or created as part of or in
connection with the Work, shall be the sole and exclusive property of
OWNER. CONTRACTOR shall (and shall cause its Subcontractors, Vendors
and agents to) (i) provide all such property (and all copies and other
reproductions thereof) to OWNER by the date of Final Completion; and
(ii) execute such instruments as OWNER may reasonably require to
evidence OWNER's ownership of such property. Neither CONTRACTOR nor
its Subcontractors, Vendors or agents may retain, use, or otherwise
exercise dominion over any such property; provided that CONTRACTOR may
retain a complete set of Work drawings and other Work documents as
necessary for archives, in order to provide OWNER with information and
advice in the future concerning the Work performed under this
Agreement. Any such retained drawings and documents shall be subject
to the confidentiality provisions set forth in Section
_______[Contractor confidentiality obligations], and CONTRACTOR may
not use such drawings and documents in the performance of services for
other clients.
ARTICLE 6 - CONTRACTOR'S DESIGN AND ENGINEERING WORK
6.1 Without limiting the generality of Sections 1.1, 1.2(gg)[Work
definition], Article 4 and Annex A, CONTRACTOR shall prepare and
furnish the design, process design and engineering drawings and data
required to procure the materials, machinery and equipment (including
operating equipment) and perform related Workfor, and required to
construct, erect, start-up and operate the Facility, all in accordance
with the procedures, designs, plans and specifications set forth in
Annex A and those approved pursuant to Section 6.3.
6.2 The basic design conditions and certain technical and process data for
the Facility [either have been or will be furnished] [Aren't these
set forth in Annex A, "Basis for Design"?] to CONTRACTOR by OWNER or
by parties in privity of contract with OWNER or have
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been reviewed and approved by OWNER. If any further data or
information of this nature is required by CONTRACTOR, OWNER will
furnish such data and information to CONTRACTOR without cost to
CONTRACTOR. The design of the Facility shall be based upon all of the
foregoing, and CONTRACTOR shall be entitled to rely upon such data and
information in the performance of the Work.
6.3 Upon completion of CONTRACTOR's [preliminary?] planning engineering
and design Work with respect to any part of the Facility and prior to
commencing Work on the final detailed design of such part, CONTRACTOR
shall submit for OWNER's prior approval plot plans, planning drawings,
engineering flow sheets and specification sheets (collectively,
"Drawings and Specifications") [?for major items of operating
equipment with respect to such part]. Within ten (10) working days
after receipt, OWNER shall approve or disapprove (and provide comments
with respect to) all Drawings and Specifications submitted by
CONTRACTOR. OWNER's failure to notify CONTRACTOR within ten (10)
working days after receipt, of approval or disapproval, shall be
deemed an approval by OWNER. OWNER's approval, however, shall not
relieve CONTRACTOR of any of its obligations under this Agreement, or
limit or impair any of OWNER's rights and remedies hereunder or
otherwise. The details for the preceding provisions of this Section
6.3 are set forth in Annex B.
6.4 OWNER shall have the right to review at its own expense the progress
of CONTRACTOR's engineering and other Work as it proceeds, and in so
doing OWNER shall cooperate with CONTRACTOR so as not to increase
CONTRACTOR's engineering cost.
6.5 CONTRACTOR shall appoint a representative to act on CONTRACTOR's
behalf in the administration and performance of this Agreement. Such
representative will be available to OWNER at all reasonable times, as
more specifically set forth in Annex B.
6.6 If such Subcontractors are preapproved by OWNER and listed in Annex A,
CONTRACTOR shall have the right to have engineering, design and
drafting services performed inside or outside CONTRACTOR's offices by
Subcontractors who are not employees of CONTRACTOR, but who are under
CONTRACTOR's supervision; provided, however, such shall not relieve
CONTRACTOR from any of its obligations under this Agreement.
6.7 Commencing on or about [December _________, 1995], CONTRACTOR
performed certain services relative to the Facility including
preliminary engineering, process design and cost estimating.
CONTRACTOR acknowledges that it has been compensated in full for such
services (or, CONTRACTOR's sole compensation for such services is
included in, and is a part of, the lump sum Contract Price.) Further,
it is agreed that this Agreement supersedes[Letters] and that such
services shall be deemed to be Work. [Does this mean that "effective
date" should be February 15, 16, 1996?]
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ARTICLE 7 - MATERIALS AND OPERATING EQUIPMENT
7.1 Without limiting the generality of Sections 1.1, 1.2(gg)[Work
definition], Article 4 and Annex A, CONTRACTOR shall procure and
furnish all required materials, machinery, and equipment (including
operating equipment) for the Facility as more particularly set forth
in Annex A, except for those materials, machinery, and equipment which
OWNER agrees to furnish as provided in Article _____[Owner
responsibilities] below, and Annex A.
7.2 CONTRACTOR shall inspect, expedite and arrange shipment for all
materials, machinery, and equipment (including operating equipment) in
accordance with CONTRACTOR's usual practice, which practice CONTRACTOR
represents is in accordance with standard industry and professional
practice. All such items received at the Site will be checked,
received and maintained in accordance with to the Construction
Contract.
ARTICLE 8 - CONSTRUCTION AND OTHER SERVICES
8.1 Construction and erection of the Facility shall be undertaken by
Xxxxxxx Pan American Corporation--Constructor-- pursuant to the
Construction Contract.
8.2 CONTRACTOR shall perform construction support and project management
services in its offices and such other services as may be necessary
for the Work and Construction Work.
ARTICLE 9 - INSPECTION OF WORK
9.1 CONTRACTOR shall perform all tests and inspections of the Work, the
Construction Work, Plant, and the Facility, and all components of any
thereof (including, without limitation, mechanical and operational
tests and inspections) necessary to assure that the Work, the
Construction Work, the Plant, and the Facility conform to all
requirements, standards and specifications of this Agreement.
Complete records of all CONTRACTOR tests and inspections shall be
maintained and delivered to OWNER at the time(s) such tests or
inspections are completed.
9.2 All Work, the Plant, and the Facility (and all components thereof)
shall be subject to inspection and approval by OWNER from time to time
and at any and all times (at its expense), at such locations as may be
necessary for the performance of the Work (including, without
limitation, point of manufacture); provided, however, that OWNER shall
not interfere with CONTRACTOR's own inspection procedures. Further,
OWNER shall cooperate with CONTRACTOR in conducting its inspections so
that extra expense and delay to CONTRACTOR are avoided. CONTRACTOR
shall provide OWNER and its representatives unrestricted access to the
Work, the Plant,
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and the Facility (and all components thereof) for the purposes
specified above, and for any other purpose; provided that CONTRACTOR
may provide (and OWNER and its representatives shall accept) an escort
or other reasonable safety measures which CONTRACTOR deems necessary
or advisable. CONTRACTOR shall also promptly provide all information
requested by OWNER or its representatives with respect to the Work,
Plant, or Facility. Any inspection or failure to inspect by OWNER
shall not limit or otherwise affect any obligations of CONTRACTOR
under this Agreement, or any rights and remedies of OWNER hereunder or
otherwise. If upon inspection, OWNER determines that any part of the
Work, Plant, or Facility does not meet, or has not been performed in
accordance with, the standards, requirements, specifications or
covenants set forth in this Agreement, then CONTRACTOR shall promptly
remedy or replace any such defective Work at its sole risk, cost and
expense.
ARTICLE 10 - PROCUREMENT
10.1 Without limiting the generality of Sections 1.1, 1.2(gg)[Work
definition], Article 4 and Annex A, CONTRACTOR shall be responsible
for providing or procuring all services, labor, tools, equipment,
machinery, materials, supplies, and other items necessary or
appropriate for the performance of the Work.
10.2 CONTRACTOR may subcontract portions of the Work to Subcontractors
designated in Annex A; provided that (i) CONTRACTOR shall remain
responsible for the performance of the Work in accordance with the
terms and conditions of this Agreement; and (ii) OWNER shall not have
any obligations under subcontracts entered into by CONTRACTOR.
CONTRACTOR shall be solely responsible for the engagement, management
and payment of any such Subcontractors. CONTRACTOR shall pay such
Subcontractors all amounts owed when due.
10.3 CONTRACTOR shall be solely responsible for providing or procuring all
tools, equipment, machinery, materials, supplies and other items
necessary or appropriate for the performance of the Work. CONTRACTOR
may procure such items from reputable Vendors and suppliers [Vendors
listed in Annex A? Approval by OWNER?]; provided that (i) CONTRACTOR
shall remain responsible for the performance of the Work in accordance
with the terms and conditions of this Agreement; and (ii) OWNER shall
not have any obligations under contracts or purchase orders entered
into by CONTRACTOR. [CONTRACTOR shall be solely responsible for the
[selection], management and payment of such Vendors and suppliers.]
CONTRACTOR shall pay such vendors and suppliers all amounts owed when
due. OWNER shall have sole and exclusive title to any and all tools,
equipment, machinery, materials, supplies, and items which become part
of the Plant or Facility. CONTRACTOR will execute or cause to be
executed such instruments as OWNER may reasonably request to evidence
OWNER's title to such items, and shall take such
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actions as may be necessary to have such items transferred to OWNER
free and clear of any and all Encumbrances.
ARTICLE 11 - CONTRACTOR REPRESENTATIONS, WARRANTIES
AND GUARANTEES
11.1 From and after the Date of Mechanical Completion, CONTRACTOR
represents, warrants and guarantees that the Plant [Facility?] shall
fulfill the Performance Guarantees. Such fulfillment of the
Performance Guarantees shall be demonstrated in Performance Test(s)
(as defined in Article 12) conducted pursuant to Article 12 and Annex
C. If at any time within one (1) year after the Date of Mechanical
Completion, OWNER determines that the Plant [Facility] or any
operation or performance thereof does not fulfill the Performance
Guarantees, then OWNER shall promptly notify CONTRACTOR and, subject
to the immediately succeeding sentence, CONTRACTOR shall promptly
correct any such deficiencies at CONTRACTOR's sole risk, cost and
expense. In the event any Liquidated Damages become due and are paid
to OWNER pursuant to Annex C (either because the Plant [Facility]
achieves only a certain percentage of the Performance Guarantees
during Performance Test(s) [which in any event shall equal or exceed
95%], or experiences a decline in such percentage achieved during
Performance Test(s) [with the level of performance still equaling or
exceeding 95%] during the one (1) year period referred to above), such
amounts shall be in lieu of any other claims pursuant to this Section
11.1 OWNER might have with respect to the performance of the Plant
[Facility?] [see Annex C].
11.2 Engineering/Design. CONTRACTOR represents, warrants and guarantees
that the engineering, process design and design of the Plant and the
Facility, and any other Work hereunder and Construction Work under the
Construction Contract, shall be performed in accordance with, and
shall comply and be consistent with, sound, recognized and generally
accepted engineering and design standards and practices, all
applicable codes, standards and governing authorities, and the other
requirements of this Agreement. If at any time within one (1) year
after the Date of Mechanical Completion, any defect in the
engineering, design or other Work or Construction Work or other breach
of this warranty is discovered by OWNER, OWNER shall promptly notify
CONTRACTOR thereof, and CONTRACTOR shall promptly remedy and correct
any such defects or breaches (including any associated equipment or
machinery failures) at its sole risk, cost and expense. Without
limiting the generality of the foregoing, to the extent any such
defect or breach results in a reduction in the Plant's [Facility's]
performance level demonstrated pursuant to Article 12 and Annex C,
CONTRACTOR shall restore such demonstrated performance level at its
sole risk, cost and expense.
11.3 Material and Workmanship. CONTRACTOR represents, warrants and
guarantees all equipment, machinery, parts, materials, supplies and
other items supplied,
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procured or specified by CONTRACTOR, and all labor and services
furnished in connection with the Work or Construction Work against
defects (latent or patent) in materials or workmanship, or otherwise,
for a period of one (1) year after the Date of Mechanical Completion.
If at any time during the warranty period, OWNER discovers any defect
in such equipment . . . materials, etc. or workmanship, or if OWNER
determines that such equipment . . . materials, etc. or workmanship do
not otherwise comply with the requirements of this Agreement, OWNER
shall promptly notify CONTRACTOR thereof, and CONTRACTOR shall remedy
and correct any such defects to the reasonable satisfaction of OWNER
by repairing or replacing the defective equipment . . . materials,
etc. or workmanship. Without limiting the generality of the
foregoing, to the extent any such defect results in a reduction in the
Plant's [Facility's] performance level demonstrated pursuant to
Article 12 and Annex C, CONTRACTOR shall restore such demonstrated
performance level at its sole risk, cost and expense.
11.4 Subcontractors and Vendors. CONTRACTOR shall secure or cause its
Subcontractors to secure the most favorable industry-standard
warranties and guarantees possible extending over the longest possible
time obtainable from Subcontractors and Vendors with respect to
services, equipment, machinery, parts, materials, supplies and other
items [technology?] furnished by them. CONTRACTOR will request, at a
minimum, that Vendors of equipment, machinery, materials, etc., and
service providers, furnish a guarantee against defects in materials
and workmanship of one (1) year after initial use or eighteen (18)
months after shipping. All such warranties shall be for the benefit
of CONTRACTOR and OWNER.
11.5 Environmental. CONTRACTOR represents, warrants and guarantees that
the Plant and Facility shall be designed to meet applicable World Bank
Environmental Guidelines, September, 1988, and the 1995 proposed World
Bank Guidelines published as part of the Preliminary Version of the
World Bank's Industrial Pollution Prevention and Abatement Handbook,
June 30, 1995. If within one (1) year after the Date of Mechanical
Completion, OWNER discovers a defect or other breach of this warranty,
OWNER shall promptly notify CONTRACTOR, and CONTRACTOR shall remedy
and correct any such defect or breach at its sole risk, cost and
expense.
11.6 THE ONLY WARRANTIES APPLICABLE TO THE WORK PERFORMED PURSUANT TO THIS
AGREEMENT ARE THOSE SET FORTH IN THIS AGREEMENT. CONTRACTOR EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR FITNESS FOR A PARTICULAR USE.
11.7 In no event shall either party or its Affiliates be liable to the
other or its Affiliates, either individually or jointly and
irrespective of whether alleged to be due to negligence (including the
sole negligence of any party or any Affiliate), breach of contract,
strict liability or any other legal theory, for special, punitive or
consequential
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damages (including lost production, lost profits, and lost revenues)
except to the extent such damages are attributable to a party's (or
its Affiliate's) intentional conduct; provided that such damages shall
be recoverable hereunder to the extent included in damages asserted
pursuant to a Third Party Claim [defined in indemnity section] with
respect to which a party is entitled to indemnity hereunder.
ARTICLE 12 - PERFORMANCE TESTS AND ACCEPTANCE
12.1 [Put in Annex C?] Within ________ days following the Date of
Mechanical Completion, OWNER agrees to commence conducting mechanical
and process performance tests (the "Performance Tests") to determine
whether the Plant and the Facility perform as required by Section
12.1, Annex A, or any other provision of this Agreement [or the
Construction Contract], unless OWNER's failure to timely conduct such
Performance Tests is caused by CONTRACTOR's actions or inactions or is
attributable to a Force Majeure event. Failure to timely commence
Performance Tests (except as excused hereby) shall be deemed a waiver
of the rights to such tests. Prior to the commencement of the
Performance Tests, detailed methods to be used in the Performance
Tests [Annex C?] shall be agreed upon in writing by CONTRACTOR and
OWNER. Such methods shall be in accordance with normal practice, and
shall include methods for measuring various process streams by
calibrated measuring devices, methods for calibrating such measuring
devices, methods for sampling and analyzing process streams, as well
as methods for evaluating the results of the measurements and
analyses. Further, acceptable tolerances for all results shall be
specified. OWNER may, at its option, waive the Performance Tests. In
the event the Performance Tests indicate that the Plant, the Facility,
or any portion of the Work or Construction Work does not meet all the
requirements of this Agreement [or the Construction Contract], OWNER
will advise CONTRACTOR, and CONTRACTOR shall as promptly as possible,
at its sole risk, cost and expense, make (or cause to be made) such
alterations, adjustments, repairs, or replacements as may be necessary
or appropriate in order that the Plant, the Facility, the Work, and
Construction Work meet and comply with all of the requirements of this
Agreement, and the Construction Contract including, without
limitation, Section 12.1 and Annex A hereof.
12.2 With respect to the Performance Tests, OWNER shall provide at its
expense (i) raw materials and utilities in quantities necessary for
the startup and operation of the Plant; and (ii) operations and
maintenance personnel necessary for the preparation of the Plant for
operation and for operating the Plant during commissioning.
12.3 After correction of all deficiencies under Section 12.1, OWNER may, at
its option, reconduct the Performance Tests. If such reconducted
tests indicate deficiencies, the procedures described in Sections
12.1-12.2 shall be repeated (provided that the ______-day deadline
shall not apply) until such time as the Plant, the Facility, the Work
and the Construction Work meet and comply with all the requirements of
this Agreement
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and the Construction Contract. OWNER may, at its option, waive
reconducting any Performance Test. OWNER will issue CONTRACTOR a
written Notice of Acceptance of the Plant when all of the following
conditions have been satisfied:
A. All Work, Construction Work, the Plant and the Facility have
been completed in accordance with, and meet and comply with,
all of the requirements of this Agreement and the Construction
Contract, including, without limitation, all guarantees,
specifications, standards, representations and warranties set
forth herein or therein.
B. The completed Work, Construction Work, the Plant and the
Facility have passed all Performance Tests, or Performance
Tests have been waived.
C. There are no Encumbrances outstanding with respect to the
Work, Construction Work, the Plant and the Facility.
D. All of CONTRACTOR's and Constructor's Subcontractors and
Vendors, suppliers and employees have been paid in full for
materials and services provided in connection with the Work or
Construction Work. CONTRACTOR shall deliver to OWNER a
certificate indicating that all such payments have been made.
OWNER's issuance of the Notice of Acceptance of the Plant shall in no
way (i) relieve, limit or otherwise modify CONTRACTOR's or
Constructor's liability for their respective obligations and
responsibilities under this Agreement and the Construction Contract;
or (ii) limit or modify any rights and remedies that OWNER has under
this Agreement, the Construction Contract or otherwise.
ARTICLE 13 - CHANGES
13.1 All Work shall be in accordance with this Agreement, and it is the
intent of the parties that Changes be avoided to the extent
practicable. To this end, the correction by CONTRACTOR (with OWNER's
prior approval) of its [normal design or related errors and minor
changes [What does this mean?]] made by CONTRACTOR in the course of
the Work shall not be deemed to constitute a Change.
13.2 At any time during the course of the Work, OWNER may modify the Scope
of Work as set forth in this Agreement, by written notice to
CONTRACTOR. Without limiting the generality of the foregoing, OWNER
may make changes in drawings, designs and specifications, issue
additional instructions, require additional work, or direct the
omission of Work previously ordered. When a Change is under
consideration by OWNER, OWNER shall so notify CONTRACTOR. OWNER may
request a "scoping estimate" (one which requires no more than five
manhours to prepare) before requesting a
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detailed cost estimate. If OWNER wishes to consider the proposed
Change after reviewing the scoping estimate, OWNER will request a
detailed cost estimate. CONTRACTOR shall then prepare and submit a
detailed cost estimate (including, if deemed necessary by CONTRACTOR,
revisions to the Target Date and to any of CONTRACTOR's guarantees
which will result therefrom). Once the parties mutually agree on the
detailed cost estimate, they shall confirm their agreement in writing
by means of a Change Order. OWNER shall compensate CONTRACTOR for
preparing all estimates made at OWNER's request.
13.3 If any of the events set forth below occur and CONTRACTOR determines
that the result thereof is or will be a Change, CONTRACTOR shall
promptly submit in writing to OWNER its proposed revision to the
Contract Price together with the effect, if any, predicted by
CONTRACTOR on the Target Date or CONTRACTOR's guarantees. Once the
parties mutually agree on such items, they shall promptly thereafter
agree in writing upon a Change Order. Such events are:
(a) a change in the basic design data or Site data (including
soils, feedstock, etc.) from that set forth in this Agreement;
(b) suspension of Work by OWNER [provisions governing suspension?];
(c) Force Majeure events preventing CONTRACTOR's performance
hereunder; provided that delays attributable to causes other
than Force Majeure events affecting Subcontractors and/or
Vendors directly shall not constitute Force Majeure;
(d) [VAT?] [?Any change in Trinidad taxes?]; or
(e) in connection with the Work, any act, or failure to act, on
the part of OWNER or any Affiliate of OWNER or any entity in
privity of contract with OWNER or any entity exclusively under
OWNER's direction or control.
13.4 CONTRACTOR shall not proceed with any Change until a Change Order has
been signed by the parties.
13.5 Except to the extent agreed otherwise pursuant to a Change Order, the
compensation payable to CONTRACTOR for preparing estimates pursuant to
this Article 13, shall be determined in accordance with Annex D.
ARTICLE 14 - LIENS
14.1 CONTRACTOR shall immediately pay and discharge or shall provide
security sufficient and satisfactory in itself to pay and discharge
any obligation
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CONTRACTOR or any of its Subcontractors or Vendors may have, in
respect of which any Encumbrance may be levied or is levied against
the Work, the Construction Work, the Plant, the Facility, the Site,
or the Owner Indemnified Parties. CONTRACTOR shall indemnify, defend
and hold harmless the Owner Indemnified Parties from and against any
such Encumbrance and any and all associated Losses. If at any time
OWNER shall receive notice or information of the recording of any such
Encumbrance or any evidence of any such Encumbrance which, if valid,
would constitute a legal charge upon property of OWNER, the Plant, the
Facility or any part thereof, it shall forthwith communicate the
receipt of such notice, information or evidence to CONTRACTOR.
14.2 If any such Encumbrance remains unsatisfied after the Date of
Mechanical Completion, CONTRACTOR shall promptly refund to OWNER all
amounts that OWNER may be compelled to pay in discharging any such
Encumbrance.
ARTICLE 15 - TECHNOLOGY-
LICENSE, USE OF INFORMATION AND CONFIDENTIALITY
15.1 Subject to the terms and conditions of this Article 15, including
without limitation payment in full of the license fee described in
Section _______, CONTRACTOR grants to the Licensees the non-exclusive,
non-transferable, perpetual and non-cancelable right and license to
use and practice the Xxxxxxx Advanced Ammonia Process in connection
with the design, construction, start-up, testing, operation,
maintenance, repair, and, if necessary, reconstruction of the Facility
and the Plant (collectively, "Licensed Activities"), including,
without limitation,the right to make and have made for use in
connection with the Licensed Activities any apparatus therefor, and
further including, without limitation,the right to use and sell the
product(s) (including, without limitation, co-products and byproducts)
of the Plant throughout the world.
15.2 All drawings, prints and specifications which are furnished to any
Licensee by CONTRACTOR in connection with the Work shall be
permanently retained by any Licensee only for use in monitoring
CONTRACTOR's Work or Construction Work, in training the Licensee's
employees and in performing any other Licensed Activities (including
the replacement of parts). Subject to the license and rights granted
in Section 15.1, such drawings, prints and specifications shall at all
times remain the property of CONTRACTOR.
15.3 OWNER undertakes to hold in confidence all know-how, drawings, manuals
and data (collectively referred to as "Technical Information")
supplied by CONTRACTOR pertaining to the design, construction,
start-up, operation, maintenance and repair of the Facility which
know-how, drawings, manuals or data are [part of the KAAP process],
and are identified by CONTRACTOR in writing, at or before their
disclosure, to be confidential or proprietary. OWNER agrees that it
will not, without
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the written permission of CONTRACTOR, use the Technical Information
for any purpose except as provided in Section 15.2 or otherwise for
any other Licensed Activity.
15.4 In the event OWNER retains the services of any third party in
connection with any part of the Licensed Activities, and such third
party has a need for any of the Technical Information, OWNER shall
cause such third party to execute an agreement substantially identical
to the confidentiality provisions of this Article 15 and shall be
responsible for enforcing the third party's adherence to the terms of
such agreement.
15.5 [This may need to be expanded] CONTRACTOR agrees to hold in
confidence any technical or commercial information supplied to it by
any Licensee in connection with the design, construction, start-up,
operation and maintenance of the Facility, or otherwise, which
information is identified by such Licensee in writing to be
confidential or proprietary at or prior to its disclosure. Said
information shall remain the property of such Licensee, and CONTRACTOR
shall not disclose such information to any third party or use such
information for any purpose other than performing the Work.
15.6 The provisions of Sections 15.3 and 15.5 shall not apply to:
(a) any information (including Technical Information) which, at
the time of disclosure, the receiving party can show was in
the public domain;
(b) any information (including Technical Information) which, after
disclosure, becomes part of the public domain by publication
or otherwise, through no fault of the receiving party;
(c) any information (including Technical Information) which the
receiving party can show by supporting documentation was in
its possession at the time of disclosure to it by the
disclosing party and had not been acquired directly or
indirectly under the obligation of confidence to the
disclosing party;
(d) any information (including Technical Information) furnished to
the receiving party rightfully by a third party not under an
obligation of confidentiality to the disclosing party,
provided again that the receiving party is in compliance with
any restrictions on disclosure or limitation of use imposed by
such third party;
(e) any information (including Technical Information)
independently developed by employees or consultants of the
recipients or its Affiliates who have not had access to such
information; or
(f) any information (including Technical Information) required by
law, rule, regulation or bona fide legal process to be
disclosed, provided that the receiving party making such
disclosure shall take all reasonable steps to restrict, and
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maintain to the extent possible the confidentiality of, such
disclosure, and shall provide reasonable notice to the other
party whose information is involved in order that such other
party may take reasonable steps to oppose the requirement of
disclosure.
For the purpose of this Section 15.6, any disclosure of such
information which is specific to the operating or design conditions of
the Plant shall not be deemed to be within the foregoing exceptions
merely because it is contained within the scope of a broad disclosure.
15.7 Notwithstanding anything herein to the contrary, each Licensee shall
have the right to disclose (subject to Section 15.4) the Xxxxxxx
Advanced Ammonia Process or Technical Information to third parties for
any valid effectuation by the Licensees of the Licensed Activities.
15.8 Notwithstanding the expiration, suspension or termination of this
Agreement, the Licensees and/or (subject to Section 15.4) any third
party retained or to be retained by any Licensee, shall be entitled,
for the duration of the time period in which any Licensee or any such
third party shall be conducting any Licensed Activity, to the benefits
and use of, and rights and interest in, the Xxxxxxx Advanced Ammonia
Process and the Technical Information, as provided herein.
15.9 Upon the expiration or termination of this Agreement, CONTRACTOR
shall, promptly upon demand, provide the Licensees for the duration of
the time period in which any Licensee, or any third party retained or
to be retained by any Licensee described in Section 15.8 above, shall
be conducting any Licensed Activity, the use of any know-how,
drawings, manuals and data (including, without limitation, KAAP
updates and revisions) necessary or useful for the Licensed
Activities, to the extent that such know-how, drawings, manuals, data,
etc. are not in the possession of the Licensees.
ARTICLE 16 - PATENTS
16.1 CONTRACTOR covenants, represents and warrants that (a) CONTRACTOR is
the sole owner or has the right to use and license the Xxxxxxx
Advanced Ammonia Process and Technical Information as of the date
hereof; (b) CONTRACTOR has the right, at no cost to the Licensees
other than the fee specified in Section _______ herein, to grant the
license and rights to the Licensees, as provided in Article 15,
including the right to license or sublicense any intellectual property
not owned by it; (c) CONTRACTOR has no knowledge of, and has received
no notification (written, oral or otherwise) with respect to, any
challenge by a third party as to (x) the validity of any patent or
other intellectual property rights of the CONTRACTOR in the Xxxxxxx
Advanced Ammonia Process or in Technical Information, or (y)
CONTRACTOR's rights as licensee or
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owner, as the case may be, with respect to the Xxxxxxx Advanced
Ammonia Process or Technical Information.
16.2 Subject to the provisions of this Article 16, CONTRACTOR shall, at its
sole cost and expense, indemnify, defend and hold the Licensees and
Owner Indemnified Parties harmless in respect of any and all Losses
incurred in connection with any claim, suit or proceeding based on any
claim that the Work (or Construction Work) as incorporated into the
Plant, the Facility or any part of any thereof, or the Xxxxxxx
Advanced Ammonia Process, or any part thereof, or any Technical
Information, or any part thereof, constitutes an infringement or
violation of any patent or other intellectual property right of a
third party, including, without limitation, infringement or violation
of any copyright, trademark or trade secret, and infringement of any
patent issued in the United States or the Republic of Trinidad and
Tobago.
16.3 OWNER agrees to notify CONTRACTOR promptly in writing of any notice or
claim of infringement and/or violation as described in Section 16.2
above which is received by or brought against OWNER.
16.4 In connection with any claim described in Section 16.2 above,
CONTRACTOR reserves the right to acquire for the Licensees, at
CONTRACTOR's sole cost and expense, immunity from suit and license to
use the offending technology, which are acceptable to the Licensees.
CONTRACTOR also reserves the right, in connection with such claim, of
making such alterations of the Facility, at CONTRACTOR's sole cost and
expense, as may be required to eliminate the alleged infringement;
provided such alteration is acceptable to the Licensees and does not
prevent the Facility from being capable of normal operation, reduce
the capacity of the Facility, interfere with the Performance
Guarantees or performance levels, or cause a default by the Licensees
under any contract or other obligation.
16.5 Neither CONTRACTOR nor OWNER shall settle or compromise any suit or
action described in Section 16.2 above without the written consent of
the other.
16.6 Except to the extent that substantial deviation by the Licensees from
information furnished by CONTRACTOR is the sole cause for a claim of
infringement, CONTRACTOR shall defend, indemnify and hold the
Licensees and Owner Indemnified Parties harmless from and against any
and all Losses that may be assessed in or become payable under any
decree or judgment of any court, or under any arbitral decree or
other order, including costs and expert and professional fees, with
respect to any suit or action described in Section 16.2 above.
16.7 OWNER shall defend, indemnify and hold CONTRACTOR harmless from and
against any claim that any technology or know-how supplied to
CONTRACTOR by OWNER wrongly incorporates proprietary technical data or
infringes letters patent issued to, or otherwise infringes any other
intellectual property rights of, a third party.
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16.8 The provisions of Sections 16.2, 16.6 and 16.7 shall not apply to any
Vendor's or Subcontractor's wrongful use of proprietary technical data
or infringement of patents (unless caused by such Vendor's or
Subcontractor's compliance with specific design requirements imposed
by CONTRACTOR). In the event of any such wrongful use or
infringement, CONTRACTOR and OWNER shall rely on the provisions for
indemnity against infringement and other terms contained in applicable
purchase order, subcontract or other agreement with the Vendor or
Subcontractor; provided, however, that to the extent (i) there exists
any excess liability not covered by and discharged pursuant to the
provisions contained in applicable purchase order, subcontract or
other agreements with the Vendor or Subcontractor, and/or (ii) there
are no such provisions, the CONTRACTOR shall bear sole and complete
responsibility and liability for, and shall indemnify the Owner
Indemnified Parties with respect to, any such wrongful use or
infringement.
ARTICLE 17 - SERVICES, AND OTHER ITEMS TO BE
FURNISHED BY OWNER
17.1 OWNER shall at its own expense and at such times as may be required by
CONTRACTOR for the successful and continuous prosecution of the Work:
(a) provide the Site in accordance with the Construction Contract;
(b) furnish all personnel, materials and tools required for the
start-up, testing, operation and maintenance of the Plant
beginning with the Date of Mechanical Completion;
(c) furnish a classification of accounts in accordance with
OWNER's established accounting procedure for the guidance of
CONTRACTOR in preparing final cost distributions; and
(d) promptly pay when due all duties, fees and charges imposed by
the Republic of Trinidad and Tobago relative to the import of
all materials and equipment to be delivered to the Site, or
arrange for exemption from such duties, fees and charges.
17.2 OWNER shall appoint a representative to act on OWNER's behalf in the
administration and performance of this Agreement [as provided in the
Coordination Procedures?]. Such representative will be available to
CONTRACTOR at all reasonable times.
17.3 After the Facility has commenced commercial operation, upon reasonable
advance notice from CONTRACTOR and subject to the approval of OWNER in
each instance, representatives of CONTRACTOR and CONTRACTOR's
customers may visit the Facility. Such visits shall be limited to a
reasonable number of personnel during normal business hours, and shall
be scheduled at times mutually agreed with OWNER to assure minimal
interference with OWNER's Facility operations. CONTRACTOR shall cause
its
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representatives and those of its customers to strictly abide by all
safety rules and regulations of OWNER during such visits.
ARTICLE 18 - INSURANCE,
INDEMNITY AND RISK ALLOCATION
18.1 CONTRACTOR shall have care, custody and control of, and shall be
solely responsible for, the Work and Construction Work in progress
(including, without limitation, the Plant, the Facility (or any
portion thereof), equipment, machinery, parts, materials and supplies
on the premises of CONTRACTOR, the Site or any Subcontractor or
Vendor, or in transit or in storage, which are intended for
incorporation into the Work or Construction Work) until the Date of
Mechanical Completion. CONTRACTOR assumes all risk of any loss or
damage thereto until the Date of Mechanical Completion. For the
purpose of this Agreement, those temporary facilities erected by
CONTRACTOR or the Constructor at the Site which are affixed to the
Site so as to be nonportable (such as job-built buildings, roads,
security fences, electrical power polelines, underground septic tanks,
deadmen, and piping for construction utilities) shall be deemed to be
Construction Work in progress. CONTRACTOR hereby releases and
discharges and shall defend, indemnify and hold harmless the Owner
Indemnified Parties from and against any and all Losses arising from
or related to any loss or damage as described in the first sentence of
this Section 18.1, irrespective of any negligence, including sole or
concurrent negligence, on the part of any Owner Indemnified Party.
18.2 With respect to the machinery, tools, equipment, materials and other
property not intended to become a permanent part of the Facility and
which are supplied or used by CONTRACTOR, Constructor, or any
Subcontractor or Vendor thereof, CONTRACTOR assumes all risk of any
loss or damage thereto. CONTRACTOR hereby releases and discharges and
shall defend, indemnify and hold harmless the Owner Indemnified
Parties from and against any and all Losses arising from or related to
any such loss or damage, irrespective of any negligence, including
sole or concurrent negligence, on the part of any Owner Indemnified
Party.
18.3 With respect to any and all claims of loss or damage to any property
owned, leased, operated, used or controlled by any Owner Indemnified
Party other than the Facility at or within
_____________________________________ from the Site and any property
owned, leased, operated, used or controlled by any Affiliate of
Arcadian Trinidad Limited, and with respect to all occurrences and
circumstances prior to the Date of Mechanical Completion, CONTRACTOR
hereby releases and discharges and shall defend, indemnify and hold
harmless the Owner Indemnified Parties from and against any and all
Losses arising from or related to any such claims, occurrences or
circumstances which are alleged to arise from any act or omission on
the part of CONTRACTOR, Constructor, any Subcontractor or Vendor
thereof, or any Owner Indemnified Party, irrespective of any
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negligence, including sole or concurrent negligence, on the part of
any Owner Indemnified Party; provided, however, that the aggregate
amount of liability assumed by CONTRACTOR under this sentence shall in
no event exceed ____________ _________________________
(US$_________________). [The following may be inconsistent with
Arcadian's proposal that Xxxxxxx keep completed operations insurance
in place for 3 years after acceptance.] For all other claims regarding
the property described in the preceding sentence of this Section
[15.3] and to the extent such claims are not assumed by CONTRACTOR as
aforesaid, OWNER hereby releases CONTRACTOR from, and agrees to
defend, indemnify and hold CONTRACTOR harmless against all such
claims.
18.4 [The following may be inconsistent with Arcadian's proposal that
Xxxxxxx keep completed operations insurance in place for 3 years after
acceptance.] With respect to the Facility and for all occurrences on
or after the Date of Mechanical Completion, OWNER hereby assumes the
risk of all loss or damage thereto and releases CONTRACTOR from, and
agrees to defend, indemnify and hold CONTRACTOR harmless against all
Losses arising from or directly or indirectly related to the Work,
except to the extent attributable to any act or omission of
CONTRACTOR, Constructor, or any Subcontractor or Vendor, including,
without limitation, any breach of any warranty or other provision of
this Agreement or the Construction Contract.
18.5 CONTRACTOR hereby releases and discharges and shall indemnify, defend
and hold harmless the Owner Indemnified Parties from and against any
and all Losses arising from or related to any injury to or death of
any of CONTRACTOR's, Constructor's, or any Subcontractor or Vendor's
employees, agents, officers, representatives, licensees, or invitees
in connection with or incidental to the Work or the Construction Work,
irrespective of any negligence, including sole or concurrent
negligence, on the part of any Owner Indemnified Party.
18.6 With respect to products, materials, or substances (including, without
limitation, any pollutant, contaminant or hazardous or toxic
substance, material or waste) introduced to the Site by CONTRACTOR,
Constructor, or any Subcontractor or Vendor, CONTRACTOR releases and
discharges and shall defend, indemnify and hold harmless the Owner
Indemnified Parties from and against any and all Losses arising from
or related to any such introduction, including, without limitation,
any failure to properly handle, store or dispose of any such products,
materials, substances, etc., irrespective of any negligence, including
sole or concurrent negligence, on the part of any Owner Indemnified
Party. With respect to environmental contamination (if any) due to
the presence of any pollutant, contaminant or hazardous or toxic
substance, material or waste at the Site, prior to the commencement of
Work, OWNER hereby releases and discharges and shall defend, indemnify
and hold harmless the Contractor Indemnified Parties from and against
any and all Losses arising from or related to such environmental
contamination, irrespective of any negligence, including sole or
concurrent negligence, on the part of any Contractor Indemnified
Party.
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18.7 With respect to any and all Losses which arise from or relate to
occurrences or circumstances prior to the Date of Mechanical
Completion [expiration of completed operations coverage?] and which
are not provided for in Sections [18.1-18.6] above, CONTRACTOR
releases and discharges and shall defend, indemnify and hold harmless
the Owner Indemnified Parties therefrom, if such Losses are alleged to
arise from any act or omission on the part of OWNER, CONTRACTOR, the
Constructor, or any Subcontractor or Vendor, and irrespective of any
negligence, including sole or concurrent negligence, on the part of
any Owner Indemnified Party. [Completed Operations proposal
consistency] With respect to all such claims, etc. as described in
the preceding sentence of this Section 18.7, and which arise from
occurrences on or after Mechanical Completion, OWNER shall defend,
indemnify and hold CONTRACTOR harmless therefrom if such claims, etc.
arise from any act or omission on the part of OWNER or CONTRACTOR and
irrespective of any negligence, including sole or concurrent
negligence, on the part of CONTRACTOR.
18.8 The party making a claim for indemnity under this Article 18
("Indemnified Party") shall promptly notify the party obligated to
indemnify ("Indemnifying Party") of the assertion or commencement of
any claim, demand, investigation, action, suit or other legal
proceeding in respect of which indemnity is or may be sought
hereunder; provided, however, that this notice requirement shall not
apply to any claim, demand, investigation, action, suit or other legal
proceeding in which the parties are adversaries. The failure by the
Indemnified Party to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations under this Article
18, except to the extent, if any, that it has been prejudiced by the
lack of timely and adequate notice.
18.9 The Indemnifying Party shall have the right to assume the defense or
settlement of any third-party claim, demand, investigation, action,
suit or other legal proceeding (collectively "Third-Party Claims")
with counsel reasonably satisfactory to the Indemnified Party;
provided, however, that the Indemnifying Party shall not settle or
compromise any Third-Party Claim without the Indemnified Party's prior
written consent thereto. Notwithstanding the foregoing, (1) the
Indemnified Party shall have the right, at its option and expense, to
participate fully in the defense or settlement of any Third-Party
Claim; and (2) if the Indemnifying Party does not commence and
continuously and diligently continue to defend or seek the settlement
of any Third-Party Claim within ten (10) days after it is notified of
the assertion or commencement thereof, then (a) the Indemnified Party
shall have the right, but not the obligation, to undertake the defense
or settlement of such Third-Party Claim for the account of and at the
risk of the Indemnifying Party, and (b) the Indemnifying Party shall
be bound by any defense or settlement that the Indemnified Party may
make as to such Third-Party Claim. The Indemnified Party shall be
entitled to join the Indemnifying Party in any Third-Party Claim for
the purpose of enforcing any right of indemnity hereunder. The
Indemnified Party shall cooperate with the Indemnifying Party in the
defense or settlement of any Third-Party Claim and, at the expense of
the
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Indemnifying Party, shall furnish any and all non-privileged materials
in its possession and endeavor to make any and all witnesses under its
control available to the Indemnifying Party for any lawful purpose
relevant to the defense or settlement of any such Third-Party Claim.
18.10 With respect to the performance of the Work and Construction Work
(whether in the United States or Trinidad and Tobago), CONTRACTOR
shall obtain (as of the effective date hereof) and shall maintain at
least until Final Completion (except as provided below), the following
insurance policies and coverage:
(a) Statutory Workers' Compensation and Employer's Liability
Insurance with a limit of $1,000,000 covering all persons
employed by CONTRACTOR or Constructor on the Work or
Construction Work during the period such persons are so
engaged.
(b) Comprehensive General Liability insurance covering, among
other things, bodily injury and property damage liability,
premises/operations, underground/explosion and collapse
hazard, product/completed operations, independent contractors,
broad form contractual (including, without limitation,
contractual liabilities assumed by Contractor under this
Agreement and by Constructor under the Construction Contract),
and broad form property damage, with a minimum policy limit of
US $5,000,000 per occurrence;
(c) Comprehensive Automobile Liability Insurance on motor vehicles
owned or rented by CONTRACTOR or Constructor, or owned or
rented by CONTRACTOR's or Constructor's employees, and used in
connection with the Work or Construction Work, protecting
CONTRACTOR and Constructor and covering Bodily Injury
Liability, for injury or death of persons, and Property Damage
Liability with a combined single limit of $5,000,000 per
occurrence[and in the aggregate?].
(d) Excess/Umbrella General Liability Insurance, including,
without limitation, contractual liability, auto liability, and
employer's liability insurance and completed operations
liability insurance, written on an occurrence basis, with
minimum limits of not less than US $25,000,000 per occurrence.
Such completed operations coverage shall remain in effect
until three (3) years after Final Completion.
18.11 OWNER shall provide "All Risk Builder's Risk" Insurance protecting the
respective interests of OWNER, CONTRACTOR and Contractor covering
physical loss or damage during the course of Work or Construction
Work, and any materials, equipment, or supplies furnished or procured
by CONTRACTOR, Constructor, or any Subcontractor or Vendor for the
Facility while (i) in transit, (ii) in temporary storage, (iii) at the
Site awaiting erection, and (iv) during erection until Final
Completion. Such insurance shall be maintained to cover the full
value of the Facility at risk, subject to normal exclusions.
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It is understood that such insurance shall not provide coverage for
machinery, tools, equipment or other property not destined to become a
permanent part of the Facility which are supplied or used by
CONTRACTOR or Constructor. Such insurance shall name CONTRACTOR and
Constructor as an additional insureds, as their interests may appear.
18.12 CONTRACTOR shall cause all insurance policies providing coverage as
required hereunder, to be endorsed to provide for the waiver of
subrogation rights against the Additional Insureds, as defined in
Section 18.12, and their successors and assigns, and all of their
respective officers, directors, partners and employees. [All policies
and coverages required under this Agreement shall be obtained from
insurance companies rated A+10 or better by A. M. Best Company, unless
otherwise agreed.]
18.13 The insurance policies and coverages described in Section 18.9 (a)-(d)
above shall name OWNER, [OWNER's general partner], Arcadian Trinidad
Ammonia Limited, a Trinidad and Tobago private limited company,
Arcadian Trinidad Limited, a Trinidad and Tobago private limited
company, Arcadian Fertilizer Corporation, a Delaware corporation,
Arcadian Nitrogen Limited, a Trinidad and Tobago private limited
company, Arcadian Corporation, Arcadian Fertilizer, L.P., and such
other affiliated and non-affiliated entities as Owner may designate
(collectively "Additional Insureds"), as additional insured parties.
Additionally, all such liability policies and coverages shall name
Rabobank Nederland, New York Branch (for itself and as agent for other
lenders to OWNER) as additional insured. Further, all such property
damage/loss policies shall name Rabobank Nederland, New York Branch
(for itself and as agent for other lenders to OWNER) as loss payee.
All such insurance policies shall be maintained in full force and
effect until Final Completion. Maintaining the prescribed insurance
shall not relieve CONTRACTOR of any other obligation or any liability
under this Agreement; and OWNER's rights and remedies under this
Agreement (including, without limitation, those under the indemnity
provisions hereof) or otherwise, shall not be limited or modified by
the maintenance by CONTRACTOR of the prescribed insurance, OWNER's
status as an Additional Insured, or OWNER's exercise of rights under
this Article 18. The damages limitations set forth in Section
________ [limit w/e/t adjacent Facilities] above shall not limit, and
does not apply to, the right to receive insurance proceeds by the
Additional Insureds or Rabobank Nederland, New York Branch. All such
insurance policies shall (1) provide that they will not be canceled or
allowed to lapse and their coverages and limits will not be changed in
any way without OWNER being given written notice at least 30 days
before the effective date of any such cancellation, lapse or change;
(2) be provided by insurance companies authorized to do business in
the appropriate state or country and reasonably acceptable to OWNER;
(3) otherwise be reasonably acceptable in form and substance to OWNER.
If any such insurance policy lapses or is canceled or its coverage or
limit is changed, CONTRACTOR shall immediately replace the affected
policy with an insurance policy as called for in this Article 18; and
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if CONTRACTOR does not comply with this covenant, OWNER may obtain the
replacement insurance policy and recover all premiums paid therefor
from CONTRACTOR. CONTRACTOR shall deliver to OWNER evidence of all
such insurance in the form of an insurance certificate(s); CONTRACTOR
shall provide such additional insurance certificates as OWNER may
reasonably request from time to time.
18.14 If CONTRACTOR subcontracts any part of the Work, the insurance
provisions of each subcontract shall be in accordance with
CONTRACTOR's usual practice. CONTRACTOR shall be responsible to ensure
that its Subcontractors maintain insurance as required in the
subcontracts during the course of Subcontractor's operations in
connection with the Work.
18.15 [OWNER shall provide Extended Cargo and Charter's Legal Liability
insurance at its own cost in an amount sufficient to protect the
interests of OWNER and CONTRACTOR. Such insurance shall name
CONTRACTOR as an additional insured. OWNER shall also provide Cargo
Insurance for land transportation on all Work items with a declared
replacement value in excess of US$1,000,000. CONTRACTOR will provide
a list of cargo for each ocean freight shipment noting each item's
replacement value.] [Ship to, xxxx of lading party has to be ANL.]
ARTICLE 19 - FORCE MAJEURE
19.1 In the event that either OWNER (or its agents) or CONTRACTOR is
rendered unable, wholly or in part, by force majeure, to carry out
its obligations under this Agreement, other than to make payments due
hereunder, it is agreed that upon giving notice and full particulars
of such force majeure event by telephone (confirmed in writing),
facsimile transmission or in writing to the other party, as soon as
possible after the occurrence of the cause relied upon, then the
obligations of OWNER or CONTRACTOR, so far as they are affected by
such force majeure event, shall be suspended during the continuance
of any inability so caused, but for no longer period, and such cause
so far as possible shall be remedied with all reasonable dispatch.
The term "force majeure" as employed herein shall mean acts of God,
acts, omissions to act or delays in action by any governmental
authority, strikes, lockouts or other industrial disturbances, acts
of the public enemy, wars, blockades, insurrection, riots, epidemics,
landslides, lightning, earthquakes, fire, storms, floods, washouts,
arrests and restraint of government or people, civil disturbances,
explosions, unforeseeable breakage or accident to machinery,
equipment or pipelines, and any other unforeseeable causes, similar
to the kind herein enumerated, not within the reasonable control of
affected party and which by the exercise of due diligence it is
unable to prevent or overcome.
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ARTICLE 20 - TERMINATION
20.1 OWNER shall have the right to terminate the Work upon not less than
ten (10) days' prior written notice to CONTRACTOR. In the event of
such termination of the Work, CONTRACTOR shall take immediate steps
to terminate the Work as quickly and efficiently as possible, both in
the field and elsewhere, and shall cancel all commitments on the best
possible terms, unless otherwise instructed in writing by OWNER. In
the event of such termination by OWNER, CONTRACTOR shall be paid by
OWNER for:
(a) all amounts due and payable to CONTRACTOR as of the effective
date of the termination;
(b) such reasonable costs which CONTRACTOR incurs for such parts of
the Work as are specifically authorized by OWNER or which are
incurred by CONTRACTOR in complying with the aforesaid notice
of termination, including a close-out period (not to exceed 4
weeks from the effective date of the notice of termination) for
reassignment of CONTRACTOR's employees to other jobs. Such
reassignment shall be accomplished as quickly as possible;
(c) all termination and cancellation charges incurred in
terminating commitments made to Subcontractors, Vendors [and
other third parties?] for the Work prior to the effective date
of the notice of termination;
(d) the cost of nonterminable commitments [any of these?] made to
Subcontractors, Vendors, and other third parties for the Work
prior to the effective date of the notice of termination; and
(e) [relevant for off-shore contract; reasonable?] [reasonable
costs for the travel, living and related costs incurred by
CONTRACTOR for relocating and reassigning CONTRACTOR's
personnel located in Trinidad and Tobago at the time of the
effective date of the notice of termination plus any severance
or similar payments required to be made by CONTRACTOR to such
personnel.]
OWNER's sole liability to CONTRACTOR for termination shall be
determined in accordance with this Section 20.1 and OWNER shall not
be liable for any other damages including, without limitation, loss
of anticipated profits.
[Do we need a provision for Suspensions?]
20.2 If CONTRACTOR shall commit any breach of any material provision
hereof and such breach shall not be corrected within ten (10) days
after written notice from OWNER to CONTRACTOR (or, if such breach is
not correctable within ten (10) days, then within a reasonable time
after such notice, not to exceed _______________), or if CONTRACTOR
shall become insolvent, either voluntary or involuntary bankruptcy or
receivership proceedings
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[initiated, undismissed?] or make an assignment for the benefit of
creditors, OWNER may terminate this Agreement and complete the Work
under substantially similar terms and conditions as specified herein
in any manner OWNER deems expedient, provided that OWNER shall be
required to mitigate its damages in so completing the Work. In the
event the reasonable and necessary costs incurred by OWNER to
complete the Work exceed the Contract Price, CONTRACTOR shall be
required to reimburse OWNER for such excess.
20.3 [Arcadian proposal: limit to failure to pay undisputed amounts not
covered by Letter of Credit.] [If OWNER shall commit any substantial
breach of any material provision hereof, including without limitation
the payment of any sum due hereunder as and when due, and such breach
shall not be corrected within ten (10) days after written notice from
OWNER to CONTRACTOR (or, if such breach is not correctable within ten
days, then within a reasonable time after such notice), or if OWNER
shall become insolvent, enter voluntary or involuntary bankruptcy or
receivership proceedings [undismissed] or make an assignment for the
benefit of creditors, CONTRACTOR may terminate this Agreement. In
the event of termination of this Agreement pursuant to this Section
20.3, CONTRACTOR shall receive from OWNER those amounts set forth in
Section 20.1 above [?plus five percent (5%) of the unpaid portion of
the Contract Price as of the effective date of termination.?]
ARTICLE 21 - ASSIGNMENTS AND SUBCONTRACTS
21.1 OWNER may assign, convey, transfer or otherwise dispose of all or any
portion of its interest in, and/or its rights and obligations under,
this Agreement to (i) any direct or indirect parent, subsidiary or
other Affiliate of OWNER; (ii) Arcadian Corporation (its successors
and assignees), Arcadian Trinidad Limited (its successors and
assignees), or any direct or indirect parent, subsidiary or other
Affiliate of any thereof; (iii) any successor to OWNER or to any
assignee of OWNER by merger, consolidation, sale or other disposition
of all or substantially all of OWNER's or such assignee's assets, or
otherwise; and (iv) any secured lender or creditor of OWNER or any of
its successors or assignees, in each case without the consent or
approval of CONTRACTOR.
21.2 Except to the extent provided in Sections 21.3 and 21.4, CONTRACTOR
may not assign, convey, transfer or otherwise dispose of all or any
portion of its interest in, or its rights and obligations under, this
Agreement without the prior written consent of OWNER. Any such
permitted assignment shall not relieve CONTRACTOR of any of its
liabilities or obligations under this Agreement. Any assignment,
conveyance, transfer, or other disposition made or attempted in
violation of this Section 21.2 shall be void and of no force or
effect.
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21.3 CONTRACTOR may have part of the Work performed by one or more of its
Affiliates; provided that CONTRACTOR shall remain liable and
responsible for the performance of such Work in accordance with the
terms and conditions of this Agreement. For all purposes of this
Agreement, including without limitation Articles
_____________________________, CONTRACTOR and any such Affiliates
shall be considered one and the same entity.
21.4 CONTRACTOR may subcontract portions of the Work, as provided in
Sections ______ and _________[Subcontractors, procurement].
ARTICLE 22 - PUBLICITY RELEASES
22.1 CONTRACTOR shall make no publicity announcements regarding the Work
or CONTRACTOR's activities relating thereto without OWNER's prior
written consent.
ARTICLE 23 - PERMITS, LICENSES & TAXES
23.1 Except for permits, licenses and other governmental authorizations
which must be obtained in the name of the OWNER, CONTRACTOR shall
procure all permits, licenses and other governmental authorizations
that may be needed to perform the Work, including, without
limitation, Work to be performed at the Site; provided however, that
OWNER shall obtain, or assist CONTRACTOR in obtaining, all Trinidad
and Tobago construction permits necessary for the performance of Work
at the Site.
23.2 CONTRACTOR shall be responsible for the reporting, filing, and
payment of any and all taxes, duties, charges and fees (and any
related fines, penalties, or interest) imposed directly or indirectly
by any governmental authority on the Work, the performance of the
Work, items, materials or services employed in connection with the
Work, CONTRACTOR or its Subcontractors, Vendors, employees, agents,
or servants, as a result of CONTRACTOR's performance of Work. OWNER
will be responsible for local Trinidad custom duties and import taxes
or fees (or related bonds) for all Trinidad Work related materials,
tools, supplies, consumables, and equipment. OWNER will pay
CONTRACTOR for VAT required to be imposed on the lump sum xxxxxxxx
for Trinidad Work invoiced to OWNER under Section ________.
23.3 CONTRACTOR and all Subcontractors shall be registered and licensed to
perform services (including the Work) in all States in which Work is
being performed hereunder, and the Republic of Trinidad and Tobago,
to the extent required by applicable laws, rules or regulations of
each jurisdiction in which Work is or may be performed.
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ARTICLE 24 - INDEPENDENT CONTRACTOR
24.1 It is expressly understood and agreed that in the performance of the
Work, CONTRACTOR is, and shall be an independent contractor, and is
and shall be solely responsible for the means, method and manner of
performing the Work, including, without limitation, the selection of
suitable tools and equipment and a sufficient number of qualified
employees and subcontractors. The selection of personnel, their
training and supervision, their hours of labor, and the compensation
and benefits to be paid to or provided such personnel shall be
determined by and shall be the responsibility of CONTRACTOR or its
Subcontractors or agents, as the case may be. Under no circumstances
shall activities or omissions of CONTRACTOR, its agents,
representatives, or Subcontractors, or CONTRACTOR's employees, be
considered those of OWNER or its agents, and in no event shall the
relationship between the parties (or any party's agent) be construed
as that of principal and agent, master and servant, joint venturers,
or employer and employee for any purpose whatsoever. As an
independent contractor, any and all personnel utilized directly or
indirectly by CONTRACTOR shall not be deemed to be employees, agents
or representatives of OWNER or its agents. CONTRACTOR acknowledges
and agrees that it and not OWNER will make or cause to be made any
payments on behalf of CONTRACTOR, any of its agents or
Subcontractors, or any of their respective employees.
ARTICLE 25 - NOTICES
25.1 The Coordination Procedure in Annex B sets forth the procedures and
addresses for the routine and ongoing communications between OWNER
and CONTRACTOR.
25.2 All notices, demands, requests and other communications hereunder
(not addressed by the Coordination Procedures) shall be made in
writing and shall be delivered in person or by certified mail
(postage prepaid and return receipt requested), courier or overnight
delivery service (delivery charge prepaid), or telecopy or facsimile.
A copy of any notice sent by telecopy or facsimile shall be promptly
sent by certified mail. Any notice, demand, request or other
communication shall be effective only if and when it is received by
the addressee. For the purposes hereof, the addresses and telecopier
numbers of the parties hereto are as follows:
To Owner:
Nitrogen Leasing Company, Limited Partnership
c/o ML Leasing Equipment Corp.
Project and Lease Finance Group
000 Xxxxx Xxxxxx
Xxxxx Tower, 27th Floor
New York, New York 10281
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President
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Telecopier: [(000) 000-0000]
with a copy to:
Arcadian Nitrogen Limited
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxx, Vice President, Technical,
Arcadian Corporation
Telecopier: (000) 000-0000
Mr.____________________________, Project Manager
Arcadian Fertilizer Limited
Xxxxxxxx Bay Road
Point Lisas, Couva
Trinidad, West Indies
Telecopier: [(000) 000-0000]
and to Contractor as follows:
The X. X. Xxxxxxx Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Senior Vice President
Telecopier: (000) 000-0000
Any party hereto may change its address or telecopier number for the
purposes hereof by giving notice thereof to the other party in the
manner provided for herein.
ARTICLE 26 - ACCOUNTING AND INSPECTION OF RECORDS
26.1 CONTRACTOR shall maintain suitable accounting records with respect to
the Work. Upon completion of the Work, CONTRACTOR shall provide
OWNER with a distribution of the total costs thereof to OWNER
according to a classification of accounts to be furnished by OWNER.
[Fit with lump sum price?]
26.2 CONTRACTOR shall keep full and accurate records of payments for and
costs of the Work and shall preserve such records for one (1) year
after the Date of Mechanical Completion. OWNER shall have the right,
to be exercised at its discretion at all reasonable times during
regular business hours, to inspect such records insofar as may be
necessary to verify items paid for by OWNER pursuant to Annex D. In
no event shall OWNER be entitled to audit the composition of any
specified percentages, fixed rates, fixed prices or other agreed
compensation referred to in this Agreement or any amendment or
modification thereto.
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[Need to have due authorization, execution representations and warranties for
each entity--I have some short ones if you don't.]
ARTICLE 27 - MISCELLANEOUS
27.1 Entire Agreement. This Agreement (including the attached annexes)
constitutes the full understanding of the parties, a complete
allocation of risks between them, and a complete and exclusive
statement of the terms and conditions of their agreement relating to
the subject matter hereof and supersedes any and all prior
negotiations, understandings and agreements, whether written or oral,
between the parties with respect thereto, including, without
limitation, any and all interim arrangements and agreements. Except
as otherwise specifically provided in this Agreement, no term,
condition, usage of trade, course of dealing or performance,
understanding or agreement purporting to modify, vary, explain or
supplement the provisions of this Agreement shall be effective or
binding on the parties, unless the same hereafter is effected in
accordance with Section 27.2.
27.2 Amendments. This Agreement may not be altered, modified, amended or
changed (other than any waiver of any provision hereof, which shall
be effective only if made in accordance with Section 27.3) in any
manner, except by a written agreement executed and delivered by all
parties. Without limiting the generality of the foregoing, this
Agreement shall not be altered, modified, amended or changed by any
terms or provisions of purchase orders, invoices or other documents
issued, delivered, and/or executed by or to CONTRACTOR or OWNER in
connection with the Work or otherwise.
27.3 Waivers. No waiver by any party of any breach of the covenants set
forth herein or any claim, right or remedy provided for hereunder and
no course of dealing shall be deemed a waiver of the same or any
other breach, claim, right or remedy, unless such waiver is in
writing and is signed by the party sought to be bound. The failure
of a party to assert or exercise any claim, right or remedy shall not
be deemed a waiver of such claim, right or remedy in the future. Any
failure by either OWNER or CONTRACTOR at any time or from time to
time to enforce or insist upon the strict keeping and/or performance
of any of the terms or conditions of this Agreement, shall not
constitute a waiver of such terms or conditions, and shall not affect
or impair such terms or conditions in any way, or the rights of OWNER
or CONTRACTOR at any time to avail itself of such remedies as it may
have for any breach or breaches of such terms or conditions.
27.4 Modification and Severability. If an arbitration tribunal or court
of competent jurisdiction declares that any provision of this
Agreement is illegal, invalid or unenforceable, then such provision
shall be modified automatically to the extent necessary to make such
provision fully legal, valid and enforceable. If such arbitration
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tribunal or court does not modify any such provision as contemplated
herein, but instead declares it to be wholly illegal, invalid or
unenforceable, then such provision shall be severed from this
Agreement, and this Agreement, and the rights and obligations of the
parties hereto, shall be construed as if this Agreement did not
contain such severed provision, and this Agreement otherwise shall
remain in full force and effect.
27.5 Enforceability. This Agreement shall be enforceable by and against
CONTRACTOR and OWNER and their respective successors, permitted
assignees and legal representatives.
27.6 Survival. Any and all guarantees, representations, warranties,
standards and specifications concerning the Work, Construction Work,
Facility or Plant set forth herein shall survive (I) the inspection,
test, acceptance (including acceptance pursuant to Section ________)
and payment for the Work or any portion thereof; and (ii) for the
maximum period permitted by applicable law (subject to the duration
limitations set forth in Article _____), the termination, suspension
or expiration of the Work (or any portion thereof) or this Agreement
(or any portion thereof). The provisions of Articles ______________
[indemnity, license, patent, confidentiality], and the parties'
respective obligations, rights and remedies thereunder, shall survive
the termination, suspension or expiration of the Work (or any portion
thereof) or this Agreement (or any portion thereof) for the maximum
period permitted by applicable law.
27.7 Conflicts. In the event there are conflicts between the provisions
set forth in the body of this Agreement and those set forth in
annexes hereto, the provisions set forth in the body of this
Agreement shall control.
27.8 Captions. The captions contained in this Agreement are for
convenience of reference only and shall not affect in any way the
meaning, construction or scope of the provisions of this Agreement.
27.9 Joint Venture. OWNER and CONTRACTOR are not and shall not be deemed
or construed to be joint venturers, partners, agents, servants,
employees, fiduciaries or representatives of each other by virtue of
this Agreement or the performance thereof.
27.10 Equitable Remedies. The parties acknowledge and agree that
irreparable damage would occur in the event that material provisions
of this Agreement were not performed in accordance with their
specific terms and conditions or were otherwise breached.
Accordingly, in the event of any breach by a party hereto of any
covenant contained in this Agreement, the other party shall be
entitled to equitable relief (including, without limitation, specific
performance of such covenant), in addition to any and all other
remedies to which said party may be entitled hereunder or by law.
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Any party's full or partial exercise of any remedy shall not preclude
any subsequent exercise by said party of the same or any other
remedy.
27.11 Cumulative Nature. The respective rights and remedies of the parties
under this Agreement shall be cumulative of, in addition to, and not
in limitation of, one another, and any and all other rights and
remedies which may be available under applicable law.
27.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED UNDER,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE,
UNITED STATES OF AMERICA, EXCLUDING THE CONFLICT-OF-LAWS PROVISIONS
THEREOF. OWNER AND CONTRACTOR SHALL SUBMIT TO THE JURISDICTION OF
THE STATE COURTS IN SHELBY COUNTY, TENNESSEE, IN CONNECTION WITH ANY
ACTION, SUIT OR OTHER LEGAL PROCEEDING ARISING FROM OR BASED ON THIS
AGREEMENT.
27.13 Multiple Counterparts. This Agreement may be executed by the parties
hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute
one and the same instrument.
27.14 [Required by Xxxxxxx Xxxxx] No Recourse. OWNER's obligations
hereunder are intended to be the obligations of the limited
partnership and of the corporation which is the general partner
thereof only and no recourse for any obligation of OWNER hereunder,
or for any claim based thereon or otherwise in respect thereof, shall
be had against any limited partner of OWNER or any incorporator,
shareholder, officer or director, or affiliate, as such, past,
present or future of such corporate general partner or limited
partner or of any successor corporation to such corporate general
partner or any corporate limited partner of OWNER, or against any
direct or indirect parent corporation of such corporate general
partner or of any limited partner of OWNER or any other subsidiary or
affiliate of any such direct or indirect parent corporation or any
incorporator, shareholder, officer or director, as such, past,
present or future, of any such parent or other subsidiary or
affiliate. Nothing contained in this section shall be construed to
limit the exercise or enforcement, in accordance with the terms of
this Agreement and any other documents referred to herein, of rights
and remedies against the limited partnership or the corporate general
partner of OWNER or the assets of the limited partnership or the
corporate general partner of OWNER.
27.15 [Required by Xxxxxxx Xxxxx] Agent. CONTRACTOR acknowledges and
agrees that (I) all of OWNER's obligations under this Agreement shall
be performed by [ANL, as agent], and (ii) Arcadian Fertilizer, L.P.
shall be responsible to OWNER for the supervision of such agent's
performance hereunder as agent of OWNER under an
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Agreement for Lease, dated as of March _____, 1996, between OWNER and
Arcadian Fertilizer, L.P.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written but is effective as of [February 15, 16, 1996].
NITROGEN LEASING COMPANY, THE X. X. XXXXXXX COMPANY
LIMITED PARTNERSHIP
By: ML Leasing Corp., General Partner
By: By:
-------------------------------- ----------------------------
Name: Name:
------------------------------ --------------------------
Title: Title:
----------------------------- -------------------------
JCA\ 01174.2
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ANNEX A
SCOPE OF WORK
ANNEX A is contained in a separate bound volume. Is Annex A the 5 notebooks?
Does this include the Basis for Design?
189
ANNEX B
COORDINATION PROCEDURE
(To be prepared)
190
ANNEX C
PERFORMANCE GUARANTEES
The Performance Guarantees will provide a schedule of Liquidated Damages
payable by Contractor from 95% of guaranteed items to 100%. Arcadian proposes
that Liquidated Damages equal $2 million for each percent below 100%. Arcadian
further proposes that a bonus not apply for performance in excess of 100%. [?:
Is it possible to quantify on a percentage basis each of the components of the
Performance Guarantee?]
191
ANNEX D
RATES
This Annex will consist of the list of rates, charges, costs, etc. Since this
is a lump sum contract, will these rates apply only to estimates for Change
Orders? Should this Annex be included?
192
ANNEX E
TERMS OF PAYMENT
This Annex will set forth the schedule and method of payments. Will the
progress payment schedule together with associated percentages of completion be
set forth here? Will there be separate payment schedules for the 2 contracts?
Note: Need to provide for provisions requiring the LC currently required
under the interim agreement.
193
ANNEX F
MECHANICAL COMPLETION
(To be prepared)
194
EXHIBIT M-1
ELECTRICITY SUPPLY AGREEMENT
TRINIDAD AND TOBAGO
AN AGREEMENT made in duplicate this 22nd day of February in the year One
Thousand Nine Hundred and Ninety Six Between the TRINIDAD AND TOBAGO
ELECTRICITY COMMISSION a body corporate established under the Laws of Trinidad
and Tobago with its principal place of business at 00 Xxxxxxxxx Xxxxxx in the
City of Port of Spain in the Island of Trinidad (hereinafter called "the
Commission") of the One Part and ARCADIAN NITROGEN LIMITED a Company
incorporated under the Companies ordinance Chapter 31 No. 1 the registered
office of which is at Atlantic Avenue, Point Lisas, Couva, Trinidad
(hereinafter called "the Consumer") of the Other Part.
WHEREAS:
A. The Consumer will be operating on its premises at Point Lisas, Couva, a
plant to manufacture anhydrous ammonia and for this purpose requires a
constant and uninterrupted supply of electricity.
B. The Commission under the powers conferred upon it by the Trinidad and
Tobago Electricity Commission Act, Chapter 54:70 of the Laws of the
Republic of Trinidad and Tobago is willing to sell and deliver
electricity to the Consumer's plant under the terms and conditions set
out below.
NOW THEREFORE IT IS HEREBY AGREED by and between the Parties hereto as
follows:-
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DEFINITIONS
1. In this Agreement and in the schedules hereto unless the context
otherwise requires the following expressions shall have the meanings herein
assigned to them respectively that is to say:
"Date of Commencement of Supply" means the first date on which the Commission
shall make available to the Premises and the Consumer shall take electrical
energy pursuant to Clause 2 of this Agreement.
"Day" means any period of twenty-four (24) hours.
"Month" or "Billing Month" means the period of approximately a month from one
reading of the metering equipment to the next such reading.
"Electric Lines" include the overhead electric lines and support therefor,
underground electric cables and ducts and other appurtenant fittings and
appliances required for their successful installation, operation and
maintenance.
"Maximum Demand" shall be the average monthly kilovolt ampere load during the
fifteen minute period of greatest use over any particular month as indicated by
the Commission's meter or at the Commission's option as indicated by tests over
a fifteen minute period from time to time.
"Metering Equipment" means the whole equipment specified in the Second Schedule
hereto employed in metering the Supply.
"The Premises" means the Consumer's plant and/or installations at Atlantic
Avenue, Point Lisas and all buildings now or from time to time to be erected in
its vicinity and used and/or occupied by persons in the employ of the Consumer.
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"Pressure" means Voltage.
"Start-up Date" shall be a date notified by the Consumer to the Commission by
twenty-one (21) days' notice in writing being a date within a period of six
months the commencement of which period shall be on a date notified by the
Consumer to the Commission not less than six months beforehand.
"The Supply" means the electricity provided by the Commission and taken by the
Consumer within or for the purposes of the Premises.
"Year of Supply" means twelve months termination on any December 31.
"Hertz" means cycle per second.
"KVA" means kilovolt amperes.
"V" means volts.
"KWHR" means kilowatt hour.
"MVA" means one thousand KVA.
Provision of the Supply
2. From and including the date of commencement of the supply the Commission
shall provide and the Consumer shall take from the Commission and pay for the
Supply upon the terms and conditions herein appearing.
Availability of Supply
3 The Commencement Date shall be January 1, 1998. In the event that the
Consumer fails to meet this Date the Commission shall be entitled to xxxx the
Consumer in accordance with Schedule 3 hereto unless otherwise agreed.
4. The Commission will supply on request values of positive, negative and
zero sequence impedances for each line at the Point of Supply and shall inform
the company of any major changes in
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these values which may occur during the term of this Agreement.
System and Pressure of the Supply
5. The Supply be provided and taken at the pressure and on the system and
at the point of supply all as set forth in the First Schedule hereto. Without
the consent of the Commission in writing the Supply shall not be taken at a
level in excess of the maximum specified in the said First Schedule PROVIDED
HOWEVER that without notice to the Commission the Consumer may take up the
Supply at a level of ten percent (10%) in excess of the maximum reserve
capacity but shall not be at liberty to take up supply at any greater level
without the consent in writing of the Commission.
Substation Accommodation
6. The Consumer shall provide and keep in good repair and condition on a
convenient site on the premises to be agreed upon between the parties
accommodation of the type specified in the First Schedule hereto (hereinafter
called "the Consumer's Substation") of a size and construction approved by the
Commission for the reception of the Electric Lines provided for the purpose of
the Supply and for accommodating the apparatus to be installed for the purpose
of providing transforming controlling and/or metering the Supply.
Electrical Lines
7. The Commission shall provide erect and maintain all necessary Electrical
Lines and apparatus requisite for the purpose of providing the Supply and the
consumer hereby grants free of all charges to the Commission the necessary
twenty-five feet wide wayleaves for such electric lines along and immediately
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below the course or proposed course of the Electrical Lines over and/or under
land owned and/or occupied by the Consumer. The Consumer shall maintain such
wayleaves by cutting and clearing all underbrush trees and other growth which
may endanger such Electric Lines. The Supply shall be provided by the
Commission subject to all requisite wayleaves and consents being obtained and
retained by the Commission in respect of such Electric Lines.
Right of Commission to Apparatus Supplied by them
8. All electric lines and apparatus provided by the Commission shall remain
the property of the Commission and subject as otherwise herein provided shall
be kept in good repair by them and may be removed by the Commission at any time
and from time to time for repairs or exchange and except in so far as may be
specifically authorised by the Commission in writing no person other than the
authorised officials of the Commission shall be permitted to interfere in any
way therewith PROVIDED HOWEVER and it is hereby expressly agreed and declared
that whenever the Commission or its employees or its agents shall desire to
remove, maintain or exchange any equipment which might interfere with the
Supply to the Consumer, the Commission and the Consumer shall mutually agree on
the time when such work shall be done by the Commission.
Damage to Apparatus Provided by Commission
9. The Consumer shall be responsible for and will make good to the
Commission all damage to the Electrical Lines and/or apparatus of the
Commission or injury to personnel on the Premises due to accident or negligence
on the part of the Consumer or the Consumer's employee or to fire or to trees
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falling on the premises but shall not be responsible for any such damage,
injury or loss attributable to any act or default of the Commission or any of
its servants and/or agents or any other third party.
Connection of Installation to the System
10. The Consumer shall ensure that the Consumer's installation within the
Premises will at all times comply with the appropriate Regulations detailed in
the Electricity (Inspection) Act, Chapter 54:72 of the Laws of the Republic of
Trinidad and Tobago and any Rules or Regulations having the force of statute
and of any modifications thereof applicable to the taking and/or use of
electricity within the Premises PROVIDED HOWEVER that on specific authorization
in writing from the Government Electrical Inspector the Consumer may deviate
from such regulations. If the Consumer and/or the Commission shall discover any
serious defects in any part of the Consumer's installation the Consumer and/or
the Commission shall forthwith disconnect the same from the circuits of supply.
However, the Commission and the Consumer shall mutually agree on the way these
defects shall be rectified.
Undertaking as to Maintenance of Installation for High Voltage Use
11. The Consumer undertakes and agrees that every portion of the Consumer's
installation which is for use at high voltage will be maintained in an
efficient state and if so required to the satisfaction of the Commission and
that in cases where any portion of the Consumer's installation is not enclosed
in a building or other structure to which access can only be obtained by means
of a key or special appliance the Consumer will ensure that an authorised
person will be available to cut off the supply
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in the event of emergency and the Consumer further agrees that instructions as
to the treatment or persons suffering from electric shock will be affixed on or
in the premises.
Damage to Consumer's Installation
12. The Commission shall be responsible for and shall make good to the
Consumer all damage or injury to the Consumer's substation caused by negligence
on the part of the Commission or the Commission's employees but shall otherwise
be under no responsibility of any kind for or in connection with the Consumer's
installation and/or apparatus.
Improper use of Supply
13. The Commission may disconnect the Supply if the same is improperly used
by the Consumer or is used in such manner as would affect the continuity or
quality of the supply of electricity to other consumers. The Supply and any
electricity or energy produced directly or indirectly from the use of the
Supply shall only be used for the purpose for which the Supply is provided. The
Commission shall except in cases of emergency (as to the existence of which it
shall be the sole judge) before exercising its rights under this Clause give
the Consumer reasonable notice of its intention to make any such disconnection
and afford the Consumer an opportunity of removing the cause of such intended
disconnection.
Entry for Inspection
14. The Commission by its properly identified servants shall be entitled at
all times to enter the premises for the purposes of inspecting altering
replacing testing maintaining and repairing
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electric lines and apparatus and for all other purposes incidental to or in
connection with the Supply.
Accounts
15(1). The Consumer shall make to the Commission at the end of each month
during the period of this Agreement payment in respect of the Supply at the
rates stated in the Third Schedule hereto.
15(2). All accounts rendered by the Commission to the Consumer shall be deemed
to be accepted by the Consumer as correct unless within twenty-one (21) days of
the delivery of any such account the Consumer shall give to the Commission
written notice that such account is objected to the Consumer shall pay all
accounts due to the Commission within twenty-eight (28) days after the delivery
of the account and in case of default shall also (if required by the
Commission) pay interest from the date of delivery of the account at the rate
of one percent above the prevailing prime bank rate on the moneys remaining
unpaid and not bona fide disputed.
Discontinuance of Supply and Termination of Agreement in certain Events
16. If either party shall commit any breach of this Agreement or shall
commit an act of bankruptcy or (being a Company) shall enter into liquidation
(not merely being a voluntary liquidation for the purpose of reconstruction or
amalgamation) or enter into any arrangement or composition with or for the
benefit of its creditors then it shall be lawful in any such case for the other
party at its option after giving twenty-four (24) hours notice in writing to
terminate this Agreement without prejudice to any right of action or remedy of
such other party in respect of any such breach of this Agreement.
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Accident Damage and Failure of the Supply
17. The Commission shall not be responsible for any loss accident or damage
direct or indirect caused by the use or misuse of the Supply or by any failure
or interruption in the provision of the Supply in the event of any such failure
or interruption the Commission shall use all reasonable endeavors in restoring
the Supply. Wherever practicable the Commission will give to the Consumer
advance notice of any interruptions necessary for the purpose of tests
alterations and repairs of the Commission's system and such work shall be done
at a time or times to be mutually agreed upon.
Agreement not to be Assigned
18. This Agreement or any benefit accruing hereunder shall not be assigned
by the Consumer without the consent of the Commission provided that such
consent shall not be unreasonably withheld but the Commission shall be entitled
as a condition of giving it to require the assignees to enter into an agreement
with the Commission directly binding them to the terms hereof with such
modifications if any as may be agreed upon or properly required by the
Commission.
Period of Agreement
19. The Supply shall continue to be provided by the Commission and taken by
the Consumer subject to the terms and conditions of this Agreement until the
expiration of five (5) years after the date of commencement of supply and may
be renewed for successive periods of five (5) years by the Consumer giving
notice in
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writing to the Commission of at least three (3) months prior to the expiration
of the initial or any renewed term of its desire for such extension.
Reservation of Statutory Rights
20. Save as hereby expressly provided to the contrary the Commission
reserves to itself all powers rights authorities privileges and exemptions
conferred upon it by or under the Laws of the Republic of Trinidad and Tobago
and/or any orders or regulations for the time being governing or regulating the
supply of electricity by the Commission. Save as provided by this Agreement the
Company shall be entitled to all powers rights authorities privileges and
exemptions conferred upon it by or under the Laws of Trinidad and Tobago.
Notices and Accounts
21. Any notice intended for the Commission shall be deemed to be properly
and sufficiently served if delivered at or forwarded by registered post to its
principal place of business in Trinidad and Tobago and any notice to be given
or account to be delivered to the Consumer shall be deemed to be properly and
sufficiently served if delivered at or forwarded by registered post to its
registered office in Trinidad and Tobago. A notice or account sent by
registered post shall be deemed to be given on the date on which it is received
at the address to which it is sent.
Schedules
22. The Schedules hereto shall form part of this Agreement PROVIDED ALWAYS
that in order to give effect to changes in the rates and charges authorized in
accordance with the provisions
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of the Public Utilities Act Chapter 54:01 and the Trinidad and Tobago
Electricity Commission Act Chapter 54:70 and applicable to consumers receiving
a supply under an agreement similar to these presents the Commission shall be
entitled at any time and from time to time during the continuance of this
Agreement to give to the Consumer one (1) month's notice in writing of its
intention to amend the charges set out in the Third Schedule hereto. Upon
receipt of any such notice and within fourteen (14) days of the receipt thereof
the Consumer shall notify the Commission in writing whether or not it accepts
the amendment. Should the consumer fail to notify the Commission in
writing within the aforesaid period whether or not it accepts the amendment the
Consumer shall be deemed to have accepted the amendment and shall be bound
accordingly and should the Consumer notify the Commission in writing within the
aforesaid period that it does not accept the amendment then and in such case
this Agreement shall cease and terminate at the expiration of the period of the
Commission's notice of intention to amend but any such termination shall be
without prejudice to any antecedent rights of the parties hereto.
No Waiver
23. No waiver by either party of any failure or failures on the part of the
other to perform any of the terms conditions and stipulations of this Agreement
shall in any circumstances be construed as a waiver of any other failures or of
any future or continuing failure or failures whether similar or dissimilar
thereto.
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Full Agreement
24. This Agreement constitutes the full agreement between the parties hereto
and no other statements, oral or written made prior to or at the time of the
execution of this Agreement shall vary or modify the written terms hereof; and
no amendment or modification of or release from any provision herein contained
shall be valid or effectual unless the same shall be in writing and signed by
both parties specifically stating it is an amendment of this Agreement.
Arbitration
25. In case any question, dispute or difference shall at any time arise
between the Consumer and the Commission as to the meaning or effect of these
presents or any Clause or matter herein contained or as to the rights, duties,
or liabilities of the parties hereunder or otherwise howsoever in relation to
these presents, the same shall be referred to the determination of a single
arbitrator in case the parties can agree upon one or otherwise to two
arbitrators, one to be appointed by each party, or to an umpire to be appointed
by such arbitrators before entering in the reference and such arbitration shall
be in accordance with the provisions of the Arbitration Act Chapter 5:01 of the
Laws of the Republic of Trinidad and Tobago or any statutory modification or
re-enactment thereof for the time being in force.
Force Majeure
26. Neither party shall be responsible for failure to discharge its
obligations hereunder if such failure is due to Force Majeure. Force Majeure
shall mean and include acts of God,
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206
strikes, lockouts or other industrial disturbances, acts of the public enemy,
wars, blockades, insurrections, riots, landslides, earthquakes, lightning,
storms, floods, washouts, arrests and restraints of governments, civil
disturbances, explosions, breakage or accident to machinery, operating
equipment or electric lines, and all other causes which may affect the
performance of the obligations under this Agreement which are not within the
control of the Commission or the Consumer, as the case may be and which by the
exercise of due diligence the Commission or the Consumer as the case may be
shall have been unable to prevent or overcome.
HEAD NOTES
27. The Head Notes shall not affect the construction hereof.
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207
THE FIRST SCHEDULE
(a) The System and Pressure of Supply shall be:-
3 phase 4 Wire (1 for ground) 60 Hertz
66,000 or 132,000 Volts Alternating Current
(hereinafter referred to as the required Voltage).
(b) The point of Supply shall be the load terminals of the two (2) outgoing
isolators which are connected to the 66kV or 132kV Bus as the case may
be at the T&TEC's Arcadian 04 Substation.
(c) The maximum reserve capacity of the Supply shall be 16000kW or such
increased capacity as agreed between the Consumer and the Commission.
(d) The Consumer's Substation accommodation shall be located at the
Consumer's premises at Atlantic Avenue, Point Lisas Industrial Estate
and shall consist of circuit breakers of the required Voltage and other
isolating devices, transformers and associated equipment with a switch
house and a metering station.
(e) The supply will consist of two (2) feeders for the required voltage
emanating from the Commission's Subtransmission System originating at
the Point Lisas Power Station.
(f) The Consumer will be billed in accordance with the T&TEC D3 Tariff as
provided in the Third Schedule.
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THE SECOND SCHEDULE
(a) The Supply shall be measured by apparatus provided mounted maintained
and when necessary replaced and renewed by the Commission at the expense
of the Commission. Such apparatus shall be suitable for the purposes of
metering the number of kilowatt-hours provided and the Maximum Demand.
(b) The metering equipment shall be read and where necessary reset and
resealed at monthly intervals and for the purposes of the monthly
accounts to be rendered by the Commission each month shall be deemed to
terminate and the subsequent month to commence at the time and date of
such reading.
(c) The records taken by the Commission of the readings of such metering
equipment shall be deemed to be correct unless the accuracy of the
metering equipment shall be disputed by notice given by the one party to
the other either at the time of the taking thereof or not later than
thirty (30) days from the rendering by the Commission of any account
based on the readings of the metering equipment. Notwithstanding
anything contained in Clause 25 of this Agreement in the event of the
accuracy of the metering equipment being disputed the matter shall
failing agreement be determined by arbitration in accordance with
Section 59 of the Trinidad and Tobago Electricity Commission Act Chapter
54:70 of the Laws of the Republic of
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Trinidad and Tobago.
If in consequence of such dispute it is ascertained that the metering equipment
is inaccurate to the extent of two and one half percentum or more, such
inaccuracy shall be deemed to have commenced at the beginning of the period to
which the monthly account rendered immediately preceding such notice relates
and accounts in respect to that period and subsequent periods (if any) during
which meter readings have been taken from metering equipment of such inaccuracy
shall be appropriately corrected either in favour of the Consumer or of the
Commission. If the metering equipment is accurate within the limits aforesaid
no adjustment shall be made in favour of either party and the party who
required that the matter be determined by arbitration shall pay the cost of
such proceedings.
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THE THIRD SCHEDULE
INDUSTRIAL
LARGE LOAD (RATE D3)
AVAILABILITY: Three phase high voltage supply for all purposes supplied
and metered at one point.
CHARACTER OF 3 Phase, 60 Hertz, Alternating Current at 33kV, 66kV or
SERVICE 132kV for loads from 4,000KVA to 25,000KVA.
MAXIMUM DEMAND: $21.25 per KVA of maximum demand in a month. Maximum
Demand shall be the average KVA load during the 15 minute
period of greatest use during the month as indicated by
the Commission's meter or at the Commission's option as
indicated by tests from time to time. In cases where
demand is intermittent or subject to violent fluctuations,
the Commission may establish the Maximum Demand on the
basis of a shorter interval of measurement, or the KVA of
transformer capacity required to serve the customer's load
or may assess the demand on the basis of the installed
capacity.
ENERGY: 6.0 cents per KWH for all KWH.
FUEL CHARGE: For every one cent change from 218.9 cents in the average
gross price per 1,055,100 KJ's of fuel used in a month,
the charge per KWH will be increased or decreased by
0.0154 cents. This charge will be applied to all KWH
billed in the month corresponding to that for which the
charge was calculated. This charge will be billed in the
month following that for which the charge was calculated
and applied.
DEVALUATION For every one percent devaluation of the Trinidad and
CLAUSE: Tobago Dollar above the exchange rate of US$1 = TT$4.25,
the charge per KWH shall be increased. The surcharge
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211
per KWH to be applied shall be calculated in accordance
with the formula as defined in Order No. 80 of the Public
Utilities Commission.
This surcharge will be applied from the calendar month
following the month in which the devaluation occurs.
RESERVE CAPACITY: The Commission will reserve at the customer's request a
declared transmission and distribution capacity. The
minimum demand charge for the month will be based on 75%
of the Reserve Capacity.
MINIMUM XXXX: The Reserve Capacity Charge.
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IN WITNESS WHEREOF this Agreement is executed in duplicate by the
duly authorized representatives of the Parties hereto.
SIGNED AND DELIVERED by )
X.X. XXXXXX, GENERAL MANAGER for ) /s/ [ILLEGIBLE]
TRINIDAD AND TOBAGO ELECTRICITY ) -------------------------------------
COMMISSION )
) -------------------------------------
in the presence of )
/s/ [ILLEGIBLE] )
SIGNED AND DELIVERED by )
XXXXX XXXX, MANAGING DIRECTOR for ) /s/ [ILLEGIBLE]
ARCADIAN NITROGEN LIMITED ) -------------------------------------
)
in the presence of ) -------------------------------------
/s/ [ILLEGIBLE] )
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213
This Agreement for Lease is
Confidential and Proprietary
EXHIBIT M-2
WATER SUPPLY AGREEMENT
2
214
EXHIBIT M- 2
WATER SUPPLY AGREEMENT
AGREEMENT
between
WATER AND SEWERAGE AUTHORITY
and
ARCADIAN NITROGEN LIMITED
dated February 15th, 1996
215
1
TRINIDAD AND TOBAGO
THIS AGREEMENT made in duplicate this 10th day of February in the year of Our
Lord One Thousand Nine Hundred and Ninety-Six between the WATER AND SEWERAGE
AUTHORITY, a body corporate established by the Water and Sewerage Act Chap.
54:40 (hereinafter called "the Authority") of the One Part and ARCADIAN NITROGEN
LIMITED, a company incorporated under the Companies Ordinance Chapter 31 No. 1
and having its registered office at Atlantic Avenue, Point Lisas, Couva in the
island of Trinidad (hereinafter called "the Company") of the Other Part "the
Authority" and "the Company" being sometimes jointly referred to hereinafter as
"the Parties".
WHEREAS:
A. The Company is in the process of constructing a plant for the
manufacture of ammonia and related operations (hereinafter called "the
said operations") on lands comprising 5.9404 hectares more or less at
Point Lisas, Trinidad (which land of the Company is herein referred to
as "the said lands").
B. The Company desires to purchase from the Authority water in the amounts
and of the quality and at the prices specified below for use in the
manufacture of ammonia and related operations on the said lands.
C. The Authority under and by virtue of its powers under the Water and
Sewerage Act Chap. 54:40 is able to sell and willing to supply water in
the amounts and at the prices and of the quality specified below and on
the terms and conditions hereinafter expressed.
NOW THEREFORE it is hereby agreed by and between the parties hereto as follows:
1. FUNDAMENTAL OBLIGATIONS
(a) The Authority will supply to the Company and the Company will
receive pay for and utilize for the purposes of the said
operations the Company's total annual requirements subject to the
qualifications hereinafter stipulated and estimated to be 2500M(3)
per day of potable water for use in the said operations but not
exceeding in any one day a total quantity of 3200M(3).
(b) This Agreement shall come into operation on January 1, 1998 and
shall continue in force thereafter for a period expiring fifteen
(15) years after the said date unless it be sooner determined as
hereinafter provided and may be renewed, subject to the agreement
of the parties for further successive periods of five (5) years
by either party giving notice in writing to the other at least
six (6) months prior to the expiration of the initial or any
renewed term of its desire for such renewal.
(c) Any alteration in the amount of the water required to be supplied
by the Authority to the Company under this Agreement may be
arrived at after consultation between the Parties and their
accord thereto.
(d) The water to be supplied to the Company by the Authority under
the terms hereof will be utilized by it for the purposes of and
in connection with the said operations to be conducted by it at
its plant on the said lands situate at Point Lisas Industrial
Estate in the Island of Trinidad.
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2
2. MEASUREMENT AND INSPECTION
(a) The Authority shall install and at all times thereafter during
the continuance of this Agreement maintain in proper working
order and condition at such locations on the said lands of the
Company, as the Authority in its discretion, considers most
suitable and/or convenient for the purpose all meters and/or
other instruments requisite and/or necessary for accurately
measuring the quantity of water supplied hereunder from day to
day.
(b) All such meters and/or other instruments referenced in sub-
paragraph 2 (a) immediately preceding shall at all times be open
to inspection by the Authority its servants and agents or jointly
by the Authority and the Company their servants, agents and
others duly authorized by them in their behalf who shall also be
at liberty to take written or other notes of the readings and/or
recordings thereof.
(c) The Authority shall at its discretion but in any event not less
frequently than once every year check, test and calibrate the
Authority's meters and/or other instruments located at the said
lands for the purposes of the supply to be provided hereunder.
The Company may request the Authority to check, test and
calibrate the said meters and/or other instruments at such other
reasonable times as the Company considers necessary provided
however that in such event if the meters and/or other instruments
are found to be reading correctly or to have a margin of error
not exceeding five percent (5%) the Company shall bear the
expense of every such check, test and calibration so requested by
it. The register of the meter installed by the Authority shall be
prima facie evidence of the quantity of water consumed. If upon
any test any meters and/or instruments are proved to register
incorrectly to any degree exceeding five percent (5%) then:
(i) The meters and/or instrument shall be deemed to have
registered incorrectly to that degree since the last
meters and/or instruments' check before the date of the
test on which a reading of the index of the meters and/or
instruments was taken by the Authority unless it or they
are proved to have begun to register incorrectly on some
later date;
(ii) If a meter or other instrument is found to be out of order
or if it or they be removed for repairs, adjustments or
alterations the fact shall be noted by the Authority and a
written memorandum thereof shall be served on the Company.
In such event, unless the Authority provides a replacement
meter in the interim, the records kept by the Company of
its consumption based on the Company's own meters during
that period shall be conclusive until the Authority's
meter or instrument is repaired or replaced and
calibrated.
3. QUALITY
All water supplied by the Authority to the Company pursuant to this
Agreement shall be potable water of a quality comparable to the
Authority's standard supply of water to the public of Trinidad and
Tobago for ordinary domestic purposes.
4. COMPANY RECORDS
The Company will keep or cause to be kept on some convenient location on
the said lands, proper books of account or other records wherein shall
be entered daily the quantity of all water supplied to it by the
Authority (on that particular day) and will permit the Authority its
servants and agents and all others duly
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3
authorized by it on its behalf and at the Authority's sole cost and
expense, at all reasonable times to inspect the said books of account or
other records and to make copies thereof and/or to take abstracts
therefrom.
5. COMPLIANCE WITH REGULATIONS
The Company will punctually and faithfully comply with all rules and
regulations of Governmental authorities and/or the Authority and notices
properly given thereunder relating to the utilization of water on the
said lands and on the Company's part to be observed and performed. The
Company will not, without the consent in writing of the Authority, which
consent shall not unreasonably be withheld, for such purpose first had
and obtained, dispose of, or otherwise part with or transfer to anyone
whatsoever or whensoever any right, liberty, power and/or privilege
granted hereunder.
6. XXXXXXXX
As soon as possible after the end of each calendar month the Authority
shall read its meters and/or instruments and shall render to the Company
a statement of account specifying the total amount of water supplied by
it in such month and the amount owing to the Authority calculated in
accordance with the rates hereunder agreed as may be varied by agreement
between the Parties from time to time.
7. PAYMENT AND RATES
(a) The Company shall pay the Authority for supplies of water
provided under this Agreement at the standard rate fixed and
allowed by law or notified by the competent authority from time
to time for the Authority's metered supplies to its industrial
customers in Trinidad and Tobago.
PROVIDED always that the above rates shall be subject to review by the
parties hereto at the expiration of each three year period commencing
from the date on which the Company first started receiving supplies
hereunder and the parties may, pursuant to any such review, agree to
apply another rate instead of the above stipulated rates.
AND PROVIDED further that rates applicable to maximum or minimum
quantities of water supplied will not be chargeable on a daily basis but
on the basis of the consumption over the period billed for in accordance
with the principle incorporated in the contractual rates set out above.
(b) Subject to the Company's right to challenge the correctness of
any account submitted to it, the Company shall pay to the
Authority, the United States currency equivalent of the Trinidad
and Tobago Dollars specified therein converted at the average bid
rate of five commercial banks within seven (7) days of receipt of
the said account. In the event of a dispute the Company shall
nonetheless pay the undisputed portion thereof as above provided
and subject to settlement by such methods as are by this
Agreement otherwise provided. In case of default of payment the
Company shall pay interest on the amount due from the date of
default until payment at the rate of one percent (1%) above the
prime lending rate as quoted on the due date by Citibank
(Trinidad and Tobago Limited), main branch in Port of Spain.
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4
8. TERMINATION
Either Party shall be at liberty to terminate this Agreement at any time
upon giving the other party six (6) calendar months previous notice in
writing of its intention so to do at the expiration of which notice this
Agreement shall absolutely cease and determine provided that if this
Agreement is terminated by the Company within five (5) years from the
date on which the Company first receives supplies Of water hereunder the
Company shall be liable to the Authority for damages for premature
termination of the contract measured by the capital expenditure of the
Authority specifically incurred for the purpose of providing water
pursuant to this Agreement less however reasonable depreciation up to
the date of such termination.
9. INTERRUPTION OF SUPPLIES
The Authority shall at all times endeavor to notify the Company in
advance if at all possible of any interruption of supply under this
Agreement or of the inability of the Authority to supply the minimum
total requirements under this Agreement and in the event of either or
both of those events the Authority shall use its best efforts to supply
the required amount by other means. Should the Authority be unable to do
so the Company shall be entitled to obtain the shortfall from whatever
other source(s) is available to the Company and in such case no payments
shall be due from the Company to the Authority in respect of such period
of interruption in the supply by the Authority.
10. FORCE MAJEURE
(a) Neither party hereto shall be liable for loss caused by failure
or delay in the performance, observance or fulfillment of any
term, obligation, provision or condition of this Agreement, if
such failure or delay arises either wholly or in part from a
cause or causes reasonably beyond the control of such party.
(b) Without limiting the generality of sub-paragraph 10(a) above the
following causes shall be deemed to be reasonably beyond the
control of the Parties hereto, viz: strikes, lockouts or other
industrial disturbances, acts of an enemy, blockades,
insurrections, riots, acts of God, epidemics, landslides,
lightning, earthquakes, fires, storms, floods, washouts, arrests,
restraints of Governments order or requirements of any civil or
military power, civil disturbances, explosions, breakages or
accident to machinery or lines of pipe, shortages, interruptions
or delays in transportation and any other causes, whether of the
kind herein enumerated or otherwise not within the control of the
party claiming under this paragraph 10 and which in the exercise
of due diligence such party is unable to prevent or overcome.
11. INDEMNITY
(a) Subject to paragraph 10 hereof the Company will indemnify and
keep harmless, the Authority and each and everyone of its
officers, servants or agents from all direct or consequential
losses, damages, claims suits and demands whatsoever of all
persons whosoever which may be in anywise sustained or be made
for or by reason or in consequence or as a result of negligence
of the Company its servants or agents in connection with this
Agreement.
(b) Subject to paragraph 10 hereof the Authority shall indemnify and
keep harmless the Company and each and everyone of its officers,
servants or agents from all direct or consequential losses,
damages, claims, suits and demands whatsoever of all persons
whomsoever which may be in anywise sustained or be made for or by
reason or in consequence or as a result of the negligence of the
Authority its servants or agents in connection with this
Agreement.
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5
12. ARBITRATION
If any question, difference or dispute shall arise between the Parties
hereto or any person or persons or corporation claiming under them
respectively concerning the charges hereby reserved and/or to be
reserved hereunder or touching the construction of any clause herein
contained or the rights, duties or liabilities of the Parties hereunder
or if the Parties hereto shall fail to agree upon the quantum of any
compensation payable hereunder or in any other way touching or arising
out of these presents the same shall be referred to the decision of a
single arbitrator if the Parties can agree on one; failing such
agreement to three arbitrators, one to be appointed by each party to the
difference and the third arbitrator to be appointed by those two
arbitrators before proceeding in the reference in accordance with the
Arbitration Act or any Statutory re-enactment or modification and/or
amendment thereof for the time being in force. The decision of the
arbitrator or arbitrators as the case may be shall be final and binding
on all parties to the question or dispute.
13. NOTICES
All communications and notices intended for the Authority shall be
deemed to be properly and sufficiently served if delivered at or
forwarded by registered post to its registered or other office or other
place of business for the time being in Trinidad and Tobago, and all
notices intended for the Company shall be deemed to be properly and
sufficiently served if delivered at or forwarded by registered post to
its registered office for the time being in Trinidad and Tobago. A
notice sent by post shall be deemed to be given at the time when in due
course of post it would be delivered at the address to which it is sent.
14. PRESERVATION OF REMEDIES
Nothing contained in this Agreement is intended to or shall deprive the
Company or the Authority of any rights or remedies to which they or
either of them shall be entitled at law or in equity by reason of or
based upon default of both or either of them hereunder.
IN WITNESS WHEREOF the Authority has caused these presents to be duly executed
this 15th day of February in the year of Our Lord One Thousand Nine Hundred and
Ninety-Six and the Company has duly executed this Agreement by its authorized
representative by Authority of the Board of Directors the day and year first
hereinabove written.
SIGNED for and on behalf of the )
Water and Sewerage Authority )
by its Acting Executive Director ) /s/ [ILLEGIBLE]
and Acting Secretary )
in the presence of: )
/s/ [ILLEGIBLE] )
Executed by ARCADIAN NITROGEN )
LIMITED by the Managing Director ) /s/ [ILLEGIBLE]
of the said Company, by order and )
authority of the Board of Directors and )
in conformity with the Articles of )
Association of the said Company and )
signed by the said Managing Director )
and in the presence of: )
/s/ [ILLEGIBLE]
220
AMENDMENT OF
WATER SUPPLY CONTRACT
BETWEEN
THE WATER AND SEWERAGE AUTHORITY
AND
ARCADIAN NITROGEN LIMITED
THIS AGREEMENT is made in duplicate with effect as from the 19th day of March
1996, between the Water and Sewerage Authority, a body corporate established by
the Water and Sewerage Act, Chap. 54:40 (hereinafter called "the Authority") of
the One Part and ARCADIAN NITROGEN LIMITED, a company duly incorporated under
the Companies Ordinance Chap. 31 No. 1 and having its registered office at
Atlantic Avenue, Point Lisas Industrial Estate, Couva in the island of Trinidad
(hereinafter called "the Company") of the Other Part.
WITNESSETH:
WHEREAS, the Authority and the Company entered into a Water Supply Contract
dated the 15th day of February 1996, for the supply by the Authority to the
Company of water for use by the Company in its ammonia manufacturing plant
("the Agreement"); and
WHEREAS, the Authority and the Company mutually desire to amend certain terms
of the Agreement in the manner set out hereinafter.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the Authority and the Company agree as follows:
1. Section 8 is hereby amended by the deletion of the words "Either Party"
in line one and the substitution of the words "The Company" and by the
deletion of the words "the other party" in line two and the substitution
of the words "to the Authority so that the said Section 8 will read as
amended thus:
"8. TERMINATION
The Company shall be at liberty to terminate this Agreement at any time
upon giving to the Authority six (6) calendar months previous notice in
writing of its intention so to do at the expiration of which notice this
Agreement shall absolutely cease and determine provided that if this
Agreement is terminated by the Company within five (5) years from the
date on which the Company first receives supplies of water hereunder the
Company shall be liable to the Authority for damages for premature
termination of the contract measured by the capital expenditure of the
Authority specifically incurred for the purpose of providing water
pursuant to this Agreement less however reasonable depreciation up to
the date of such termination".
221
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
Amendment - 03/18/96
2. There shall be inserted, immediately before the existing Section 9
entitled "Interruption of Supplies", a new Section 9 which shall be
entitled "Breach" as follows:
"9. BREACH
Either party hereto may terminate this Agreement for a breach thereof committed
by the other party, other than non-payment of any money due if such breach is
not remedied within thirty (30) days after service on the other party of a
notice identifying the breach and requiring that it be remedied within the said
period of thirty (30) days.
In the case of a failure by the Company, to pay the rates stipulated in this
Agreement, within fourteen (14) days after notice thereof has been given to the
Company by the Authority, the Authority may without prejudice to any other of
its rights or remedies terminate this Agreement by giving written notice of
such termination".
3. There shall be inserted, immediately before the current Section 13, a
new Section 13 which shall be entitled "Amendments" as follows:
"13. AMENDMENTS
This Agreement or any terms hereof may be changed, amended, modified, waived,
discharged or terminated by instrument in writing signed by both Parties
hereto".
4. Having regard to the insertion of the new Sections 9 and 13, the
numbering of the current Sections 9 through 14 will be accordingly
amended.
5. Except as expressly amended hereby, the Agreement shall remain unchanged
and, as amended, the Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, this Amendment is executed in duplicate by the duly
authorized representatives of the Authority and the Company as of the day and
year first above written.
SIGNED for and on behalf of )
THE WATER AND SEWERAGE AUTHORITY )
by its Acting Executive Director ) /s/ [ILLEGIBLE]
and Acting Secretary )
in the presence of: )
/s/ [ILLEGIBLE]
SIGNED for and on behalf of )
ARCADIAN NITROGEN LIMITED ) /s/ [ILLEGIBLE]
by its Managing Director )
in the presence of: )
/s/ [ILLEGIBLE]
222
EXHIBIT M-3
FORM OF SAVONETTA PIER USER
AGREEMENT
REPUBLIC OF TRINIDAD AND TOBAGO
THIS AGREEMENT is made the 27th day of March, 1996 between THE NATIONAL GAS
COMPANY OF TRINIDAD AND TOBAGO LIMITED, a Company duly incorporated under the
laws of Trinidad and Tobago and having its registered office at Orinoco Drive,
Point Lisas Industrial Estate, Point Lisas, in the Xxxx of Couva, in the Island
of Trinidad, NATIONAL ENERGY CORPORATION OF TRINIDAD AND TOBAGO LIMITED, a
Company duly incorporated under the laws of Trinidad and Tobago and having its
registered office at Orinoco Drive, Point Lisas Industrial Estate, Point Lisas,
in the Xxxx of Couva, in the Island of Trinidad (hereinafter collectively
called "Company") of the One Part and ARCADIAN NITROGEN LIMITED, a Company also
incorporated under the laws of Trinidad and Tobago and having its registered
office at Atlantic Avenue, Point Lisas, in the Xxxx of Couva, in the Island of
Trinidad (hereinafter called "User") of the Other Part.
WHEREAS:
(1) Company is possessed of a pier (known as the Savonetta Pier 2) and
harbour, marine and port facilities situate at Point Lisas, Couva in the
said Island of Trinidad (hereinafter collectively called "Marine
Facilities") together with certain tugs and workboats.
(2) Company has appointed Point Lisas Industrial Port Development
Corporation Limited, a Company duly registered in Trinidad and Tobago as
its manager to provide management service for the Savonetta Pier 2,
Marine Facilities and tugs and workboats.
(3) Company has at the request of User agreed to the use of the Savonetta
Pier 2 by User subject to and upon the terms and conditions hereinafter
appearing.
(4) User is desirous of constructing loading equipment on the Savonetta Pier
2.
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(5) There has been established a Committee known as the Savonetta Pier Co-
ordinating Committee to determine the priority of berthing of vessels
using the Savonetta Pier 2.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. DEFINITIONS
In th Agreement the following words and expressions shall bear the
following meanings unless a contrary intention appears:
1.1 The term "Agents" shall mean all persons, firms, companies or
other bodies who are the Agents of Company including without
limiting the generality of the foregoing, the Manager.
1.2 The term "Co-ordinating Committee" shall mean the Savonetta Pier
Co-ordinating Committee comprising of a representative of
Company, the Manager, Arcadian Trinidad Ammonia Limited, Arcadian
Trinidad Limited (formerly Arcadian Trinidad Urea Limited),
Caribbean Methanol Company Limited, Shell Lubricants Caribbean
Limited, Trinidad and Tobago Methanol Company Limited, User and
any other participant as may be advised by Company from time to
time. The representative of Company shall be the Chairman of the
Co-ordinating Committee and the Manager shall act as an advisor.
1.3 The term "Contract Year" shall mean the continuous twelve (12)
month period commencing each January 1 during the term of the
Agreement, except that the first Contract Year shall be the
period commencing from the effective date of the Agreement to
December 31 of that year and the last Contract Year shall be the
period commencing from January 1 to the end of the Agreement.
1.4 The term "Equipment" shall mean User's loading and utility lines,
loading arm, cables, conveyor systems and other equipment,
fittings, effects and facilities to be erected or installed on
the Pier by User which shall be and remain the sole property of
User.
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224
1.5 The term "Month" shall mean a calendar month.
1.6 The term "Other Users" shall mean the Agents (excluding the
Manager), contractors and third parties of Company, Arcadian
Trinidad Ammonia Limited, Arcadian Trinidad Limited (formerly
Arcadian Trinidad Urea Limited), Caribbean Methanol Company
Limited, Shell Lubricants Caribbean Limited, Trinidad and Tobago
Methanol Company Limited and any other user of the Pier as may be
advised by Company from time to time.
1.7 The term "Pier" shall mean the Savonetta Pier 2 situated at Point
Lisas, Couva consisting of multi-user loading facilities for
petro-chemicals intended to be used by User and others and more
particularly described in the First Schedule hereto.
1.8 The term "Port" shall mean the port of Point Lisas.
1.9 The term "Plant" shall mean User's plant for the production of
ammonia situated at Point Lisas.
1.10 The term "Product" shall mean the substance produced from User's
plant. When User desires to import a substance through the Pier
for use in User's Plant situated at Point Lisas, User shall
request of Company its consent to so use the Pier which consent
shall not be unreasonably withheld. However, User and Company
shall agree on all terms and conditions before such importation
can commence.
1.11 The term "Quarter" shall mean a period of three (3) months
commencing January 1, April 1, July 1 and October 1, during any
Contract Year.
1.12 The term "The Manager" shall mean Point Lisas Industrial Port
Development Corporation Limited or such other person or body
corporate appointed from time to time by Company.
1.13 The term "Vessel" shall mean any boat, ship or vessel using the
Pier for the purpose of being loaded or offloaded by or on behalf
of User.
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1.14 The term "Week" shall mean a calendar week.
2. USE OF THE PIER
2.1 In consideration of the several sums hereinafter specified,
Company hereby grants to User:
(a) the full right and liberty to enter upon and to use the
Pier and the Marine Facilities in common with Company and
Other Users having like right and User shall use the Pier
as a pier and for no other purpose. All loading/offloading
operations shall be conducted at the berth on the south
side of the Pier (Savonetta Pier 2 South) shown in the
sketch plan annexed hereto and marked "A".
(b) the right to construct and maintain the Equipment in
position on the Pier at a location to be agreed between
Company and User and to manage, work and use the Equipment
with the intent that the right hereby granted may be
annexed and appurtenant to the business of User, provided
that such management, work and use of the Equipment do not
cause any damage to the Pier or a nuisance, danger or
annoyance to Company and to Other Users of the Pier.
3. USER'S COVENANTS
3.1 User hereby agrees with Company as follows:
(a) to pay the sums herein set out in Article 6.0 hereof.
(b) to comply with the Rules and Regulations issued by the
Manager for the management and operation of the Port
hereto annexed as Appendices 1, 2, and 3 and with all
modifications or amendments thereto as may be issued from
time to time by the Manager.
(c) to observe and to be bound by the guidelines for the
operation of the Co-ordinating Committee as set
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226
out in Appendix 4 hereto annexed with all modifications or
amendments thereto.
(d) to observe and to be bound by regulations agreed to for
the safe operations of the loading/discharging equipment
during loading/discharging operations.
(e) not to do or permit to be done upon the Pier anything
which may cause a nuisance, damage, danger or annoyance to
Company or to Other Users of the Pier or Port.
(f) to exercise the rights hereby granted within the limits of
the design criteria for the Pier and shall not directly or
indirectly do, permit or suffer to be done in the
purported exercise of the said rights any act or thing
inconsistent with or outside the scope of the design
criteria. User hereby acknowledges that it has seen,
understood and is familiar with the design criteria for
the Pier.
(g) to be liable for and to indemnify and hold Company, its
servants, Agents and contractors harmless against any
loss, damage or injury to any person or property
whatsoever (including but not limited to claims,
proceedings and demands by third parties) caused by the
escape or discharge of Product or other substances from
the Equipment and any vessel or from any loading arm, hose
or other loading device connected to any vessel by User or
used in connection with the loading or unloading of such
vessel. Without prejudice to the indemnity herein Company
and/or the Manager shall have the right (though they are
not compelled so to do) to take any measures it deems fit
to avoid any fire hazard and/or to clean up the pollution
resulting from such escape or discharge and the costs
occasioned thereby shall constitute a debt payable by User
and shall be recoverable as such.
(h) at its own cost, to provide and maintain such insurances
as User may deem necessary or expedient to cover the risks
indemnified by User herein but without limiting the
generality of the
Page 5 of 17
227
foregoing User shall provide the insurances as set out in
Article 11 hereto.
(i) to co-operate with the Co-ordinating Committee in
determining the priority of berthing of vessels.
(j) shall give at least two (2) working days written notice to
the Manager and Company of its intention to carry out
maintenance of the Equipment and User's facilities
situated on the Pier except that in the event of an
emergency or breakdown during loading the two (2) days
requirement may be waived.
(k) at its own cost and expense, to keep the Equipment in good
repair and condition and to indemnify and keep indemnified
Company, its servants, Agents, contractors and Other Users
of the Pier from and against all claims and liabilities
whatsoever in respect of the exercise of the rights hereby
granted, caused by reason of the use of and existence of
the Equipment. User shall further indemnify Company from
and against any damage by or to the Equipment or the
escape of any Product or any other substances therefrom,
except where such damage or escape is due to wilful act or
negligence of Company.
(l) to punctually give the notices set out in Article 5.1 (c)
hereunder.
(m) to pay all charges for the use of the Pier, Marine
Facilities and tugs and workboats.
(n) to provide promptly on completion of each loading of
Product the completed Xxxx of Lading showing the quantity
of Product loaded in the respective shipment.
4. COMPANY'S COVENANTS
4.1 Company hereby agrees:
Page 6 of 17
228
(a) to provide a manager with responsibility for management
and operation of the Pier, Marine Facilities, tugs and
workboats, and for ensuring compliance by User with the
said Rules and Regulations (referred to in Article 3.1 (b)
hereof) and with Statutory requirements.
(b) to maintain the Pier in good order and condition in
accordance with international standards.
(c) to procure and maintain reasonable insurance coverage for
the purposes of the repair of the Pier. Such insurance
coverage shall name User as an additional assured and
shall contain a waiver of subrogation clause in favour of
User.
(d) to be responsible for and indemnify User for any damage to
the Equipment caused by the wilful act or negligence of
Company, its servants, Agents of contractors.
4.2 Company shall, as far as possible, make available for use by
User, at User's cost, the following services:
(a) a suitable launch service to transfer the pilot or other
official to or from any vessel calling at the Pier and for
the purposes connected therewith.
(b) an adequate and sufficient tugboat service for the purpose
of assisting any vessel calling at the Pier in connection
with User's use of the Pier to berth and unberth safely.
(c) an adequate line-handling service for the purpose of
safely mooring and unmooring any vessel at the Pier in
connection with User's use of the Pier.
So long as the said services are available from Company, User
shall be obliged to use Company to provide the services.
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229
5. GENERAL COVENANTS
5.1 It is hereby expressly agreed and declared as follows:
(a) Company and/or its servants, Agents or contractors shall
not be liable for any loss, damage or delay from whatever
cause arising in consequence of any assistance, advice or
instructions whatsoever or howsoever given or tendered in
respect of any vessel whether by way of berthing services,
the provision and maintenance of navigational and port
facilities or otherwise howsoever.
(b) The Co-ordinating Committee shall be responsible for
determining the priority of vessels desiring to berth at
the Pier, and in all matters pertaining to, or within the
scope of authority of the Co-ordinating Committee, the
decision of the Co-ordinating Committee shall be final and
conclusive and the Co-ordinating Committee shall not be
deemed to be acting on behalf of Company or User.
(c) In order to ensure the efficient discharge of the
functions of the Co-ordinating Committee, User shall give
the Co-ordinating Committee the following notices in
writing:-
(i) At the beginning of each Week nomination of its
vessels and the anticipated tonnages to be loaded
on each such Vessel for the ensuing week.
(ii) Notices of seven (7) days, seventy-two (72) hours,
forty-eight (48) hours and twenty-four (24) hours
prior to the expected time of arrival of each
Vessel.
(iii) Prompt notice of any circumstances causing or
likely to cause a change of twelve (12) hours or
more in the expected time of arrival of any Vessel.
Page 8 of 17
230
6. CHARGES
6.1 USER CHARGE
In consideration of the rights and liberties hereby granted, User
shall, from the date of first shipment of Product from the Pier
pay to Company a throughput user charge of One United States
dollar (US$1.00) per metric tonne of Product shipped from the
Pier (which said charge is hereinafter referred to as "the User
Charge"); provided that User shall at no time pay to Company less
than a minimum charge ("the Minimum Charge") of Three Hundred
Thousand United States dollars (US$300,000.00) per annum.
6.2 MAINTENANCE CHARGES
User shall pay its proportionate share of the maintenance charges
for the Pier prorated with respect to time spent alongside the
Pier.
6.3 INSURANCE CHARGES
User shall pay its proportionate share of the insurance charges
for the Pier prorated with respect to time spent alongside the
Pier.
6.4 The charges as set out in this Article 6 above shall remain in
effect for a period of five (5) years from the date of first
shipment of Product from the Pier. Thereafter, the said charges
shall be varied as Company and User shall mutually agree but in
no event shall the new charges be less than the existing ones and
such new charges shall take effect from the expiration of the
five (5) year period to the date of termination of the Agreement.
7. PAYMENT
7.1 USER CHARGE
(a) On or before the twenty-first (21st) day of the Quarter,
Company shall render to User an invoice
Page 9 of 17
231
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
for the User Charge denominated in United States dollars
due for the preceding Quarter as calculated pursuant to
the terms of Article 6.1 above. User shall pay the User
Charge in United States dollars within thirty (30) days of
the receipt of the Invoice thereof.
(b) If at the end of a Contract Year, the User Charge paid by
User for that Contract Year is less than the Minimum
Charge, User shall pay Company the difference between the
Minimum Charge and the said User Charge paid. On or before
the twenty-first (21st) day of January of the following
Contract Year, Company shall invoice User for any such
difference and User shall pay Company within thirty (30)
days of receipt of the invoice thereof.
7.2 MAINTENANCE CHARGES
On or before the fifteenth (15th) day of each Month, Company
shall invoice User for its proportionate share of the maintenance
charges to be paid by User pursuant to Article 6.2 above for the
preceding Month and User shall pay Company within thirty (30)
days of receipt of invoice thereof.
7.3 INSURANCE CHARGES
On or before the fifteenth (15th) day of each Contract Year,
Company shall invoice User for its proportionate share of the
insurance charges to be paid by User pursuant to Article 6.3
above for the preceding Contract Year and User shall pay Company
within thirty (30) days of receipt of invoice thereof.
7.4 If User disputes any portion of the amount as shown as due on an
invoice, User may withhold payment of any amount with respect to
which there is a dispute until the resolution of such dispute but
shall, nevertheless, pay the undisputed portion and provide with
its payment a detailed statement of the basis of the dispute.
7.5 If all or any part of the sum shown due on any statements
provided for herein is not paid when due, or if all or any
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232
part of the sums shown due are disputed and unpaid by User, but
it is subsequently determined that User was in error, then
interest on any unpaid amount shall be paid by User. Such
interest shall accrue and be compounded daily at an annual rate
equivalent to one percentage point above the US prime lending
rate as quoted on the due date by Citibank (Trinidad and Tobago)
Limited, main branch in Port of Spain, Trinidad, from the due
date thereof until paid.
8. TERM
This Agreement shall take effect from the date first hereinabove written
and, without prejudice to the rights of either Party accrued hereunder
prior to the determination thereof this Agreement shall continue in
effect for a period of ten (10) years from the date of first shipment of
Product from the Pier. Upon a written request by User to Company made at
least three (3) Months prior to the expiration of the Agreement, the
Parties may agree to extend the Agreement for a further period upon
terms and conditions to be agreed between the Parties.
9. FORCE MAJEURE
9.1 Any delays in or failure of performance by either Party, except
delays or failures in the payment of monies due shall not
constitute default hereunder or give rise to any claims for
damages if and to the extent such delays in or failures of
performance are caused by events of Force Majeure. Force Majeure
events shall include but shall not be limited to Acts of God,
order or request of any Government Authority, acts of war, riots,
rebellion or sabotage, fires, floods, earthquakes or other
physical disasters, strikes or other industrial actions, breakage
or failure of plant machinery or equipment and any other causes
which are not within the control of either Party and which, by
the exercise of reasonable diligence, such Party is unable to
foresee or prevent.
9.2 If either Party to the Agreement is prevented from or delayed in
performing any of its obligations under the
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Agreement by an event of Force Majeure as defined above, such
Party shall immediately notify the other Party in writing of the
occurrence of the circumstances constituting Force Majeure. In
such an event, the Parties shall meet promptly to examine the
consequence of the occurrence of Force Majeure and to agree on
the measures to be taken accordingly.
9.3 Where an event of Force Majeure as defined in Article 9.1 above
extends for more than six (6) Months, User shall have the right
to suspend this Agreement. Where an Event of Force Majeure
extends for more than twelve (12) months either Party shall have
the right to terminate this Agreement.
9.4 Where any event of Force Majeure results in damage to or the
destruction of the Pier due to no fault or neglect (whether sole
joint or concurrent) or any wilful act on the part of User so
that User cannot ship any Product because of such damage or
destruction then User shall have the right to suspend this
Agreement immediately upon notification by Company of the
unavailability of the Pier.
10. INDEMNITY
User shall save and hold free and harmless Company from and against any
and all claims and demands for loss, injury, damage or liability caused
to any person or property whatsoever (including the employees of User
and the property and equipment owned by User) as a result of, or in
connection with, or arising out of the use of the Pier by User, save
where such claims and demands for loss, injury, damage or liability is
caused by the gross negligence or willful act of Company.
11. INSURANCES
11.1 User shall take out and maintain the following insurances:
(i) Employers Liability with a limit of Two Million United
States dollars (US$2,000,000.00) per
Page 12 of 17
234
occurrence in respect of claims for personal injury to any
person under a contract of service or apprenticeship with
User or its sub-contractor as the case may be and arising
out of and in the course of such person's employment and
such insurance as may be required under the Workmen's
Compensation Act or any statutory replacement, re-
enactment or modification thereto.
(ii) General liability insurance against any injury or death to
any person and damage or loss to any property whatsoever
whether owned or possessed by User, Company or the Other
Users arising out of the use of the Pier by User in a sum
not less than One Million United States dollars
(US$1,000,000.00) for any one occurrence, and Automobile
Liability coverage for any vehicle operated by any
employee, contractor or agent of User, whether or not
owned by User limited to One Million United States dollars
(US$1,000,000.00) per occurrence.
(iii) Wharfingers Liability coverage with respect to any death
or injury to any person or loss or damage to any property
whatsoever whether owned or possessed by User, Company or
the Other Users arising out of or connected with the
loading or discharging of vessels. Provided that in
respect of loss or damage to property such insurance cover
may be limited to Fifteen Million United States Dollars
(US$15,000,000.00) in respect of any one occurrence.
11.2 All insurance policies to be provided by User under this
Agreement shall be taken out with a licensed and reputable
company approved by Company and User shall, produce to Company,
all policies of insurance and the receipts of payment of the
current premiums. All insurance policies shall name Company as an
additional assured and shall contain a waiver of subrogation
clause in favour of Company as follows:
"THE INSURERS HEREBY WAIVE THEIR RIGHTS OF
SUBROGATION AGAINST THE NATIONAL GAS
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235
COMPANY OF TRINIDAD AND TOBAGO LIMITED (NGC),
NATIONAL ENERGY CORPORATION OF TRINIDAD AND TOBAGO
LIMITED (NEC), THEIR AFFILIATES, AND ANY OTHER
OFFICER, EMPLOYEE, AGENT, SERVANT, OR CONTRACTOR OF
NGC, NEC OR THEIR AFFILIATES."
11.3 User shall not charge, restrict or reduce the coverage or cancel
the policies herein until Company has received correspondence
giving at least ten (10) days notice before such change or
cancellation.
12. TERMINATION
12.1 In the event that a material breach of this Agreement has not
been remedied within thirty (30) days after notice of such breach
to the defaulting Party, the other Party shall have the right to
terminate the Agreement upon the giving of seven (7) days notice
to the defaulting Party.
12.2 If bankruptcy proceedings, whether voluntary or involuntary, are
commenced by User or by way of creditor's petition, or if User,
being a company, should make a general assignment for the benefit
of creditors, or if a resolution is passed or any order is made
for the winding up or dissolution of User, or if a resolution is
passed authorizing sale of substantially all of its assets, or if
a receiver is appointed over any part of its undertaking or
assets, or User represents in writing that it is unable to
perform this Agreement because User cannot meet its financial
obligations, or if any distress or execution is levied against
any part of its undertaking or assets and not discharged
immediately, then Company may, without prejudice to any other
right or remedy, forthwith terminate the Agreement.
12.3 Without prejudice to Article 12.1 above, if at any time, User
fails to pay any amounts due herein, Company may, in addition to
all other remedies available to it herein and under law, suspend
this Agreement for so long and until such time as User makes
payment thereto.
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236
13. ASSIGNMENT
This Agreement shall not be assigned by either Party, nor shall User
give or grant a licence or sub-licence of its rights and obligations
hereunder, without the prior written consent of the other Party, such
consent not to be unreasonably withheld.
14. AGREEMENT NOT TO CREATE A LEGAL INTEREST
This Agreement is intended to operate as an Agreement only and nothing
herein contained shall create or be construed as creating a demise or
grant and shall not give User any legal interest in the Pier or any part
thereof.
15. ARBITRATION
Any dispute or difference arising out of, or in connection with this
Agreement which cannot be settled between the Parties shall be referred
to arbitration in accordance with the provisions of the Arbitration Act,
Chapter 5:01 of the revised laws of Trinidad and Tobago and any
statutory modification or re-enactment thereof for the time being in
force.
16. AGREEMENT BINDING ON SUCCESSORS AND ASSIGNS
This Agreement shall ensure to the benefit of, and shall bind, the
successors and assigns of the Parties.
17. WAIVER
No omissions of either Party to require performance by the other Party
of any of the terms of this Agreement nor any forbearance or indulgence
granted or shown by either Party to the other shall in any manner affect
or prejudice the right of either Party at any time to require strict and
full performance by the other of any or all of the provisions or
obligations of this Agreement on the other's part to be performed
subsequent to any such omission, forbearance or indulgence and the
waiver by either Party of any term, provision or condition of this
Agreement whether by conduct or otherwise shall not be
Page 15 of 17
237
deemed to be a further or continuing waiver of such term, provision or
condition or any other term, provision or condition.
18. NOTICES
18.1 All notices, requests and other communications required or
desired to be delivered to any Party pursuant to this Agreement
shall be in writing and shall be deemed to be properly given by
hand by registered mail, or by telefax providing the original
copy is submitted within twenty-four (24) hours thereof as
follows:
IF TO COMPANY:
The National Gas Company of Trinidad and Tobago Limited
Orinoco Drive
Point Lisas Industrial Estate
Point Lisas
Attention : Vice President, Business Development
Telefax : 679-2381
IF TO USER:
Arcadian Trinidad Ammonia Limited
Atlantic Avenue
Point Lisas
Attention : Managing Director
Telefax : 636-2052
18.2 Either Party may change the address set forth above to which
notices are to be given by giving reasonable notice thereof to
the other party as hereinabove provided. Notices shall be
effective on the dates of receipt.
IN WITNESS WHEREOF the Parties hereto have set their hands the day and year
first hereinabove written.
FIRST SCHEDULE
ALL THAT Pier known as Savonetta Pier 2 (SP2) as shown in the sketch plan
annexed hereto and marked "A", which is designed for
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238
vessels from 15,000 DWT to 42,000 DWT and is fitted to load bulk petrochemical
products at a rate of 1,000 metric tonnes per hour.
Xxxxxxxxx Xxxx 0 Xxxxx (XX0X) consists of inter alia:
- Two (2) Breasting dolphins and one (1) protective dolphin.
- Two (2) mooring dolphins.
- Personnel access.
- Cathodic Protection.
- Fire water mains.
Signed by )
for and behalf of THE NATIONAL GAS )
COMPANY OF TRINIDAD AND TOBAGO )
LIMITED in the presence of:- )
Signed by )
for and behalf of NATIONAL ENERGY )
CORPORATION OF TRINIDAD AND )
TOBAGO LIMITED in the presence of:- )
Signed by )
for and on behalf of ARCADIAN )
NITROGEN LIMITED in the presence of:- )
Page 17 of 17
239
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
EXHIBIT N
DESCRIPTION OF OSHA LITIGATION
In January 1993, OSHA issued citations to Agent and proposed a
total civil penalty of $5.1 million as a result of the failure of the urea unit
at the Lake Xxxxxxx xxxxx in 1992. In December 1993, the judge in the ensuing
administrative law proceeding reduced the proposed penalty for the principal
citation from $4.4 million to $50,000 in granting Agent's motion for partial
summary judgment and severance. OSHA has appealed this decision to the
Occupational Safety and Health Review Commission ("Review Commission"), and on
September 15, 1995, the Review Commission affirmed the judge's decision. The
Review Commission also remanded the case to the judge and ordered the
consolidation of the previously severed citations in order to allow OSHA to
seek the judge's permission to amend the citation. OSHA chose not to seek an
amendment, and the judge again severed the citations. OSHA has again appealed
the decision reducing the penalty to the Review Commission as a procedural
prerequisite to seeking judicial review of the decision in the United States
Court of Appeals. In the meantime, the trial on the merits of the underlying
citation has been concluded, but a decision is not expected for several months.
In October 1994, Agent paid $.4 million to OSHA to settle the
remaining citations. Agent did not admit to violating any law, regulation or
safety standard and entered into the partial settlement solely to avoid the
substantial cost and burden of litigating these issues. Agent maintains that
it operated the Lake Xxxxxxx xxxxx in accordance with applicable health and
safety regulations and industry standards, and continues to believe
emphatically that OSHA's claims are without merit.
While management and legal counsel believe that any civil
penalty ultimately paid by Agent will be substantially less than the remaining
$4.4 million penalty proposed by OSHA, they cannot predict with certainty the
outcome of this proceeding.
Agent received a large number of claims for personal injury
and property damage as a result of the Lake Xxxxxxx incident. Most of the
claims were settled through a claims adjuster retained by Agent and its
liability insurance carriers. A number of suits arising from the incident also
were filed against Agent. There are currently 11 suits pending in the United
States District Court for the Western District of Louisiana, Lake Xxxxxxx
Division, which have been consolidated for joint administration, and 13 cases
(including one suit that has been certified as a class action) pending in the
14th Judicial District Court of Calcasieu Parish, Louisiana, which also have
been consolidated for joint administration. The plaintiffs in these suits
generally are seeking damages for alleged physical, mental and emotional
suffering and other personal injuries, and/or property damage, lost earnings
and other economic losses as a result of the failure. Most of the suits also
include claims for punitive damages. All but three of the suits are being
defended by Agent's liability insurance carriers on its behalf, and the damages
alleged in such suits are believed to be within the maximum coverage limit of
the liability insurance. The remaining three actions, in which the plaintiffs
are substantially identical and assert substantially the same claims of
economic and other injuries, are being defended by Agent
240
THIS AGREEMENT FOR LEASE IS
CONFIDENTIAL AND PROPRIETARY
and may not be covered by its liability insurance. Agent believes that many of
the unsettled claims and the suits are frivolous and/or insubstantial and is
vigorously defending against the same.
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241
AMENDMENT NO. 1
Dated as of May 24, 1996
to
AGREEMENT FOR LEASE
Dated as of March 27, 1996
between
Nitrogen Leasing Company, Limited Partnership
as Owner
and
Arcadian Fertilizer, L.P.
as Agent
This Amendment has been manually executed in 8 counterparts, numbered
consecutively from 1 through 8, of which this is No. 2. To the extent,
if any, that this Amendment constitutes chattel paper (as such term is
defined in the Uniform Commercial Code as in effect in any
jurisdiction), no security interest in this Amendment may be created or
perfected through the transfer or possession of any counterpart other
than the original executed counterpart which shall be the counterpart
identified as counterpart No. 1.
242
Amendment No. 1 dated as of May 24, 1996 to Agreement for Lease
("Amendment No. 1"), dated as of March 27, 1996, between Nitrogen Leasing
Company, Limited Partnership, a Delaware limited partnership ("Owner"), and
Arcadian Fertilizer, L.P., a Delaware limited partnership ("Agent"), amending
the Agreement for Lease referred to below.
WHEREAS, Owner and Agent have heretofore entered into an
Agreement for Lease, dated as of March 27, 1996 (the "Agreement for Lease");
and
WHEREAS, Owner and Agent wish to amend the Agreement for Lease as
hereinafter provided;
NOW, THEREFORE, Owner and Agent hereby agree that the Agreement
for Lease is amended as follows:
1. Subsection 9.16 of the Agreement for Lease is amended to
read in its entirety as follows:
"Construction Agreement and Construction Agreement Surety. Agent
agrees to deliver to Owner, on or before the date that is ninety
(90) days from the date of this Agreement, an executed copy of
each Construction Agreement with respect to the Ammonia Project,
each in form and substance and with a General Contractor
reasonably satisfactory to Owner, and a copy of the Construction
Agreement Surety in form and substance reasonably satisfactory to
Owner. Agent agrees that until such time as it has delivered a
copy of such Construction Agreement and such Construction
Agreement Surety to Owner, Agent shall only request advances
under this Agreement and the Construction Agency Agreement, dated
as of February 15, 1996, between Agent and Owner, as amended, up
to an aggregate principal amount of $40,000,000 and to the extent
permitted by any Credit Agreement."
2. This Amendment No. 1 may be executed in several
counterparts, each of which when executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute but
one and the same Amendment No. 1.
3. This Amendment No. 1 shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York, including
all matters of construction, validity and performance.
4. Except as provided herein, all provisions, terms and
conditions of the Agreement for Lease shall remain in full force and effect.
As amended hereby, the Agreement for Lease is ratified and confirmed in all
respects.
243
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed as of the date first above written.
Nitrogen Leasing Company, Limited Partnership
By: Nitrogen Leasing Capital, Inc., its General Partner
By: /s/ XXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President and
Assistant Secretary
Arcadian Fertilizer, L.P.
By: Arcadian Corporation, its General Partner
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: XXXX X. XXXXXX
Title: TREASURER
2
