EXECUTION COPY
6/1/98
Exhibit 10(ff)
INDEMNITY AGREEMENT
This Indemnity Agreement dated as of June 3, 1998, between American
Crystal Sugar Company, a Minnesota cooperative (the "INDEMNITOR"), Newcourt
Capital USA Inc., a Delaware corporation ("NEWCOURT"), Crystech, LLC, a Delaware
limited liability company (the "PROJECT COMPANY") and Crystech Senior Lender
Trust, a Delaware statutory business trust ("CRYSTECH TRUST" and, together with
Newcourt and the Project Company, the "INDEMNITEES").
R E C I T A L S
WHEREAS, the Indemnitor desires that its affiliate, the Project
Company, engage Process Systems Incorporated Construction Company ("PSI") to
design, engineer and construct a molasses desugarization facility (the "MDS
FACILITY") at Indemnitor's sugar processing facility in Hillsboro, North Dakota
and other related equipment to be used by Indemnitor at its sugar processing
facilities in Hillsboro, North Dakota and Moorhead, Minnesota (the MDS Facility
and such other related equipment being collectively referred to as the
"PROJECT"). The MDS Facility will utilize certain technology (the "IDRECO
TECHNOLOGY") provided by Idreco Inc. ("IDRECO");
WHEREAS, in connection with submitting a bid to construct the MDS
Facility, PSI entered into a Confidentiality Agreement dated as of July 7, 1997
(the "CONFIDENTIALITY AGREEMENT") with Indemnitor and Finnsugar Bioproducts Inc.
("FINNSUGAR") and Applexion Inc. ("APPLEXION") defining certain rights and
obligations of the parties thereto with respect to certain "confidential
information" (as defined therein) belonging to Finnsugar and/or Applexion;
WHEREAS, as a result of the Confidentiality Agreement the Project
Company, the Indemnitees who have provided financing for the Project in the form
of debt (in the case of Crystech Trust) and equity contributions (in the case of
Newcourt) may be exposed to certain actions, claims, losses and expenses arising
out of the engagement of PSI to construct the Project pursuant to the
Engineering, Procurement and Construction Contract between PSI and Crystech
dated as of May 28, 1998 ("the EPC CONTRACT") and the use of the Idreco
Technology; and
WHEREAS, in order to provide the Indemnitees with adequate protection
and incentive to consent to the construction of the Project by PSI, the use of
the Idreco Technology and certain other risks associated with the development,
operation, ownership and financing of the Project, the Indemnitor has agreed to
enter into this Indemnity Agreement to provide indemnity to the Indemnitees as
more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
SECTION 1. DEFINED TERMS.
(a) Each capitalized term used and not separately defined herein
shall have the meaning ascribed to such term in the Note Purchase
Agreement dated as of the date hereof between the Project Company and
the Crystech Trust (the "NOTE PURCHASE AGREEMENT").
(b) Except as otherwise specified or as the context may otherwise
require, any reference herein to any agreement, contract or document
shall mean such agreement, contract or document and all schedules,
exhibits, attachments and annexes thereto as amended, supplemented or
modified and in effect from to time, as permitted by the Note Purchase
Agreement.
SECTION 2. INDEMNIFICATION.
(a) The Indemnitor agrees to indemnify, release, exonerate and
hold each Indemnitee and each of their respective trustees, officers,
directors, employees and agents free and harmless on demand from and
against any and all claims, actions, causes of action, suits, losses,
liabilities, damages and expenses, including without limitation
reasonable counsel fees and disbursements (the "INDEMNIFIED
LIABILITIES") incurred by such Indemnitee as a result of, arising out
of, or relating to (i) any claims brought against the Project Company,
the Project, PSI or the Indemnitees (or any of them) by Finnsugar and/or
Applexion or any of their respective shareholders, successors or assigns
or anyone acting on their behalf for patent, copyright or trademark
infringement or the unauthorized use of trade secrets with respect to
the use or license of the Idreco Technology in connection with the
development, construction, operation or ownership of the Project, (ii)
the Confidentiality Agreement, (iii) any third-party claims of the type
described in Section 14.2 of the EPC Contract, (iv) any Idreco Delay (as
defined in the EPC Contract) and (v) any present or future Environmental
Claim or environmental matter or condition (in each case whether known
or unknown) associated with the Indemnitor, its assets or operations or
the ownership by Indemnitor or any other Person of any real property or
facility leased to the Project Company or used in connection with the
Project or any Release (actual or threatened) of any Hazardous Materials
from, at or to any site or facility owned or used by Indemnitor.
(b) In furtherance of the foregoing, Indemnitor agrees to pay all
principal, interest and Make-Whole Amounts (if any) and any other
amounts due and owing (including, without limitation, following the
acceleration of the Notes pursuant to Section 10 of the Note Purchase
Agreement) under the Note Purchase Agreement and Section 4.2 of the
Company LLC Agreement if and for so long as any such claim, action,
cause of action, suit, loss, liability or expense referred to in Section
2(a) above, delays or impairs or slows the construction or completion of
the Project (or any part thereof) in accordance with the Contract Master
Schedule (as defined in the EPC Contract) such that Provisional
Performance Acceptance does not occur by the Date Certain or delays or
impairs the start-up, operation or performance of the MDS Facility or
Impairs the Tolling Agreement.
(c) Without limiting the generality of the foregoing, the scope of
the indemnification provided to the
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Indemnitees hereunder will extend to and include (i) if the Tolling
Agreement has terminated, any diminution in the value of the Project (or
any part thereof) caused by any of the events described in Section 2(a)
above and (ii) any additional Project Costs incurred by the Project
Company beyond those set forth in the Construction Budget as a result of
any of the events described in Section 2(a) above.
(d) All obligations of Indemnitor hereunder shall continue during
the period Indemnitees are involved in the construction and operation of
the Project and thereafter shall continue so long as Indemnitees may be
subject to any possible claim or threatened, pending or completed
action, suit or proceeding or liability, loss, liability, damage or
expense of any kind described in this Section 2.
SECTION 3. NOTIFICATION AND DEFENSE OF CLAIM.
(a) Each Indemnitee shall give prompt notice to Indemnitor and
each other Indemnitee of any occurrence with respect to which it is
entitled to indemnification, provided, however, that Indemnitor shall
not be relieved of its obligations hereunder on account of any failure
to give notice.
(b) Each Indemnitee shall give Indemnitor a reasonable
opportunity, at Indemnitor's expense, to resist, defend and/or settle
such action, suit or proceeding or cause the same to be resisted,
defended and/or settled by counsel for the insurer of the liability or
by counsel designated by Indemnitor and reasonably approved by such
Indemnitee, which approval shall not be unreasonably delayed or
withheld, provided that each Indemnitee may in any case retain separate
counsel and participate in such defense, at its own expense. In the
event that Indemnitor fails, within a reasonable period of time, to
resist, defend and/or settle any such action, suit or proceeding as
aforesaid with counsel approved by such Indemnitee, such Indemnitee may
resist, defend and/or settle such action, suit or proceeding to the
final determination of such action, suit or proceeding, at Indemnitor's
expense, by counsel designated by such Indemnitee.
(c) Indemnitor hereby agrees that its obligations hereunder will
be paid strictly in accordance with the terms of this Indemnity
Agreement, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the
Financing Documents or affecting any of the rights of any Indemnitee
with respect thereto, to the extent the same may be waived.
SECTION 4. WAIVER.
Except as expressly provided in this Indemnity Agreement, Indemnitor
hereby waives (i) promptness and diligence; (ii) notice of acceptance and notice
of the incurrence of any obligation by Indemnitor; (iii) notice of any actions
taken by Indemnitee, Indemnitor or any interested party under any Financing
Document or any other agreement or instrument relating thereto; (iv) all other
notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the obligations of Indemnitor hereunder, the
omission of or delay in which, but for the provision of this Section 4, might
constitute grounds for relieving
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Indemnitor of its obligations hereunder; and (v) any requirement that any
Indemnitee protect, secure, perfect or insure any security interest or lien
in or on any property or exhaust any right or take any action against
Indemnitor or any other person or the Project as a pre-condition to such
Indemnitee's right to enforce this Indemnity Agreement in accordance with its
terms. Without limiting the generality of the foregoing, Indemnitor hereby
waives any defense which may arise by reason of (A) the incapacity, lack of
authority, death or disability of, or revocation hereof by, any Person or
Persons, (B) the failure of any Indemnitee to file or enforce any claim
against the estate of any Person or Persons, or (C) any defense based upon an
election of remedies by such Indemnitee.
SECTION 5. ENFORCEMENT; PAYMENT.
Each Indemnitee shall be reimbursed by Indemnitor for all reasonable
expenses (including reasonable attorneys' fees) incurred in enforcing rights or
in collecting monies due under this Agreement. All payments by Indemnitor under
this Indemnity Agreement shall be made without set-off, counterclaim or other
defense. If Indemnitor does not pay any amount payable hereunder when due,
Indemnitor shall pay interest on such amount at an annual rate equal to the
Default Interest Rate payable with respect to Advances outstanding until such
time as such amount, together with any accrued interest thereon shall have been
paid in full to the applicable Indemnitee. For so long as any of the Notes are
outstanding, all amounts payable by Indemnitor hereunder to the Project Company
shall be made in the manner set forth in Section 6 of the Agency and
Disbursement Agreement.
SECTION 6. SEPARABILITY.
Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision hereof shall
be held invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof.
SECTION 7. COUNTERPARTS.
This Agreement may be executed in one or more counterparts each of
which for all purposes shall be deemed to be an original and all of which taken
together shall constitute one instrument.
SECTION 8. SUBMISSION TO JURISDICTION.
Indemnitor hereby submits to the nonexclusive jurisdiction of the
courts of the United States of America for the Southern District of New York and
of any New York State court sitting in New York City for the purposes of all
legal proceedings arising out of or relating to this Indemnity Agreement or the
indemnification contemplated hereby. Indemnitor hereby irrevocably appoints CT
Corporation System having offices on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 as the agent for service of process in connection
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with any such proceedings in New York and further agrees that such service of
process may be made by certified mail, return receipt requested, to
Indemnitor's address specified herein or any other manner permitted by law.
Indemnitor consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court, including, without
limitation, any objection that such action or proceeding was brought in an
inconvenient court.
SECTION 9. GOVERNING LAW.
This Agreement shall be interpreted and enforced in accordance with
the law of the State of New York.
SECTION 10. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
Indemnitees and their successors and assigns and Indemnitor and its successors
and assigns.
SECTION 11. MODIFICATION.
No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by all parties hereto.
SECTION 12. MISCELLANEOUS.
(a) No failure on the part of any Indemnitee to exercise, and no
delay in exercising, and no course of dealing with respect to, any
right, power or privilege hereunder or under any other document shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Financing
Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies of each
Indemnitee provided herein and in the Financing Documents are cumulative
and are in addition to, and not exclusive of, any right or remedies
provided by law.
(b) Crystech Trust may take or release other security for the
payment of the Notes, may release any party primarily or secondarily
liable therefor and may apply any other security held by it to the
reduction or satisfaction of any outstanding amounts in respect of the
Notes without prejudice to any of its rights under this Indemnity
Agreement.
(c) All notices and other communications hereunder shall be in
writing (including without limitation by telex or telecopy) delivered to
any party at its address set forth on the signature pages hereof or at
such other address as such party shall have notified the other parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
AMERICAN CRYSTAL SUGAR COMPANY
By
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Title:
CRYSTECH SENIOR LENDER TRUST
By
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Title:
NEWCOURT CAPITAL USA INC.
By
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Title:
By
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Title:
CRYSTECH, LLC
By
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Title:
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