Exhibit 10.76
EXHIBIT C
OPERATING AGREEMENT AND LEASE
THIS OPERATING AGREEMENT AND LEASE ("Agreement") is made and entered
into as of the ___ day of __________, 2002, by and between XXXXXX CHEMICAL,
INC., a New Jersey corporation with an office at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000 (hereinafter called "BCI") and XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership with
offices at Highway 73 and 30, Xxxxxxx, Xxxxxxxxx, 00000 (hereinafter called
"BCP").
ARTICLE 1
PRELIMINARY STATEMENTS
1.1 BCI owns that certain real property located in Ascension Parish,
Louisiana (the "BCI Site") as described as Parcels 1, 2 and 3 and Tracts
1, 2 and 3 and the BCI Plant on the "Map Showing Parcels 1, 2 and 3 and
Tracts 1, 2, 3 and 4 Being a Portion of Xxxxxx Chemical and Plastics
Property Located in Sec. 00, X-00-X, X-0-X, Xxxxxxxxx Xxxxxx, Xxxxxxxxx"
drawn by Xxxx-Xxxxxxxx, Inc., Xxxxx & Xxxxxx Engineers, Planners, and
dated July 6, 2000, revised July 20, 2000, July 25, 2000, July 27, 2000
and ______________, 2002 which map is recorded with the Clerk of Court
and Recorder of Mortgages for the Parish of Ascension, State of
Louisiana as COB _____ Entry # _____ (the "BCI Plat").
1.2 BCP owns that certain real property located in Ascension Parish,
Louisiana (the "BCP Site") as described as Tract 4 on the BCI Plat and
_(here describe the remainder of BCP's Geismar Site)_.
1.3 BCP owns and operates within the BCP Site a wastewater treatment system
(the "Wastewater Treatment Plant") consisting of the following
components and the land areas they occupy:
1.3.1 The shallow groundwater recharge and recovery system (the
"Groundwater Recovery System"), including but not limited to the
five (5) recovery trenches and seven (7) extraction xxxxx
identified on Exhibit A, attached hereto and made a part hereof,
and the groundwater recharge units ("GRUs") depicted upon Exhibit
A.
1.3.2 The biological treatment system depicted on Exhibit A.
1.3.3 An air stripper (the "Air Stripper") at the approximate location
shown on Exhibit A.
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1.3.4 A steam stripper (the "Stream Stripper") at the approximate
location shown on Exhibit A.
1.3.5 Pipelines, pumps, culverts, ditches, xxxxxx, tiles, drains, dikes
and outfalls used to manage, collect, discharge, divert or
transport process wastewater, goundwater or storm water for, to or
from the facilities and equipment listed in Sections 1.3.1, 1.3.2,
1.3.3 and 1.3.4.
1.3.6 An environmental engineering office at the south end of the
engineering building depicted on Exhibit A and a wastewater
laboratory located in the same building, including one GC mass
spectrometer.
1.4 BCP and BCI are parties to a Utilities and Services Agreement dated July
28, 2000 (the "Utilities and Services Agreement") pursuant to which,
inter alia, the Wastewater Treatment Plant is operated by BCP and
provides treatment services for both process wastewater and storm water
generated or collected on the BCI Site.
1.5 On June 11, 1998, in United States x. Xxxxxx Chemicals and Plastics
Operating Limited Partnership, No. 94-2592-A-M2, the United States
District Court for the Middle District of Louisiana entered a consent
decree (the "Consent Decree") between BCP, the United States and the
State of Louisiana, which provides, inter alia, for the operation of the
Groundwater Recovery System and GRUs for the purpose of removing and
preventing the migration of hazardous wastes and hazardous constituents
in shallow groundwater at the BCP Site.
1.6 The parties desire to enter into this Agreement for the purpose of
establishing the rights and obligations of each of the parties with
respect to the operation of the Waste Water Treatment Plant.
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, BCP and BCI agree as follows:
ARTICLE 2
OPERATION BY BCP
2.1 Until the later of (i) four months following the completion of the
decommissioning work described in Section 2.2.1, 2.2.3 and 2.2.4, below,
and (ii) the date of completion of all decommissioning work described in
Section 2.2.1, 2.2.2, 2.2.3 and 2.2.4, below (hereinafter the "Transfer
Date"), BCP, at its own cost and without contribution by BCI (except as
provided in the Utilities and Services Agreement), shall operate the
Wastewater Treatment Plant to manage and treat process wastewater and
storm water for both the BCI Site and the BCP Site, and shallow
groundwater recovered in Groundwater Recovery System. Until the Transfer
Date process wastewater and storm water management and treatment
services shall be provided by BCP to BCI upon the same
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terms, conditions and costs as provided in the Utilities and Services
Agreement. BCP will give BCI at least fifteen (15) days advance written
notice of occurrence of the Transfer Date.
2.2 Decommissioning of the BCP owned operating plants at the BCP Site
shall be defined as:
2.2.1 Removal of all catalysts, chemicals and lubricating oils from all
equipment and piping in the BCP owned operating plants and removal
of acetylene plant soot and soot filters;
2.2.2 Removal of asbestos from all discontinued or abandoned piping or
equipment, or repair of all asbestos on all piping or equipment
remaining in use in the BCP owned operating plants;
2.2.3 Unless sold to a third party, closure of all RCRA permitted
equipment, including the Sphere Tank, Bullet Tank, VCR Day Tank
and VCR Unit in accordance with BCP's RCRA Part B permit
application covering such units and, to the extent applicable, any
other legal requirements (if sold to a third party, only the
Bullet Tank will require closure to satisfy this provision); and
2.2.4 Closure of the deepwell system in accordance with Louisiana state
laws and regulations and, to the extent applicable, any other
legal requirements.
2.2.5 The BCP owned operating plants shall consist of all operating
plants at the BCP Site, excluding the formaldehyde plants, the
Wastewater Treatment Plant and all Monochem facilities.
ARTICLE 3
LEASE OF WASTEWATER TREATMENT PLANT
3.1 Effective on the Transfer Date, BCP does hereby lease to BCI and BCI
does hereby lease from BCP, the Wastewater Treatment Plant.
3.2 The Wastewater Treatment Plant shall be operated by BCI for the purposes
set forth in Article 4 of this Agreement.
3.3 BCP will, with the approval of transfer of the permits by the applicable
regulatory authorities which the parties shall use their best efforts to
obtain, assign to BCI the LPDES permit and other operating permits for
the Wastewater Treatment Plant.
3.4 During the term the Wastewater Treatment Plant is so leased by BCI, BCI
shall pay all
3.4.1 Taxes, assessments, levies, charges, similar impositions, imposed
by any authority having direct power to tax, including any city,
country, state or federal government, as against any legal or
equitable interest of BCP or BCI in the
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Wastewater Treatment Plant, or any part thereof which is leased
by BCI, but not BCP's federal state or local income or franchise
taxes.
3.4.2 License, permit and registration fees and similar charges
connected with the ownership or operation of the Wastewater
Treatment Plant; and
3.4.3 Utilities used or consumed in, on or from the Wastewater Treatment
Plant.
3.5 During the term the Wastewater Treatment Plant is so leased by BCI,
3.5.1 BCI shall provide and maintain:
(i) "All Risk" insurance, with standard underground exclusion
endorsements, in the full replacement value of all personal
property and improvements forming part of the Wastewater Treatment
Plant,
(ii) Worker's Compensation Insurance at Statutory limits under the laws
of the state of Louisiana, and Employer's Liability Insurance with
limits of not less than $500,000, and
(iii) Comprehensive General Liability Insurance with bodily injury
(including death) limits of not less than $2,000,000 for any one
person and $5,000,000 for two or more persons in any one accident,
and property damage limits of not less than $2,000,000 for any one
accident.
3.5.2 The insurance to be provided pursuant to this Section may be
provided pursuant to blanket insurance policies or may be
self-insured; provided, however, in no event shall the protection
afforded by such blanket policies or self insurance be less than
otherwise required hereunder; provided further that if BCI retains
any part of the risks to be insured in this Section as a
self-insurer or under such blanket policies BCI shall have the
same liability as an insurer would have to the extent, if any,
that such retention results in insurance for less than the full
amounts required in this Section.
3.5.3 Certificates of insurance evidencing the coverage required
hereunder shall be delivered prior to the Transfer Date and
replacement certificates shall be delivered within ten (10) days
prior to the expiration of any of the insurance policies evidenced
by such certificates.
3.5.4 BCP shall be named an additional insured on all such policies of
insurance as its interests may appear.
3.6 The obligations undertaken and the funds to be expended by BCI pursuant
to Sections 3.4 and 3.5 and Article 4 shall constitute rent for the
lease of the Wastewater Treatment Plant.
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ARTICLE 4
OPERATION BY BCI
4.1 Commencing on the Transfer Date, BCI shall, pursuant to the lease
created hereby, be the sole operator of the Wastewater Treatment Plant.
BCI shall, at its own cost and expense and without contribution by BCP,
operate the Wastewater Treatment Plant to manage treat and discharge
process wastewater from the BCI Site, storm water from both the BCP Site
and the BCI Site and shallow groundwater recovered in the Groundwater
Recovery System. Except on a transitional basis as provided in Section
6.3, below, and except as may be separately agreed between BCI and BCP,
or a successor owner or operator of the BCP Site, (i) BCI shall have no
obligation to manage or treat process wastewater originating on the BCP
Site and (ii) BCI shall have no obligation to manage or treat storm
water originating from any portion of the BCP Site which has been
acquired (whether by conveyance, lease or license) by any third party.
4.2 As operator, BCI shall have the following rights, duties and
obligations:
4.2.1 BCI shall itself, or through contractors or subcontractors,
modify, operate, maintain and repair the Wastewater Treatment
Plant and perform all other activities in order for BCI to comply
with the terms of this Agreement. BCI shall have and is granted
full power and authority to perform such actions and things as it
deems advisable or expedient in connection with the operation,
repair, governmental compliance, safety, maintenance, protection,
expansion, alteration, modification, and use of the Wastewater
Treatment Plant.
4.2.2 BCI shall conduct the operation contemplated hereunder in
accordance with BCI's own good operating practices. BCI shall
conduct such operations in a lawful manner and in compliance with
the LPDES permit and other operating permits for the Wastewater
Treatment Plant and all other applicable governmental laws, rules,
regulations and orders.
4.2.3 The employees engaged in any phase of operations conducted
hereunder shall be employees of BCI or of contractors engaged by
BCI.
4.2.4 BCI shall, at its own cost and expense, procure or furnish or
cause to be furnished all materials, equipment, services,
supplies, utilities and labor which it deems necessary or
desirable for the operation of the Wastewater Treatment Plant.
4.2.5 Employees of BCI or of any contractor engaged by BCI shall have
free access to the BCP Site for activities deemed necessary or
desirable in connection with the operation of the Wastewater
Treatment Plant, subject only to observance of BCP's standard
security, safety and loss control rules.
4.2.6 BCI shall have the right to transport across the BCP Site such
utilities as are necessary or desirable for the operation of the
Wastewater Treatment Plant, including but not limited to water,
air, telephone, electricity, steam, nitrogen and natural gas, and
for such purpose shall have the right to utilize the existing
utility
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lines which service the Wastewater Treatment Plant, and the right
to make repairs, replacements or improvements to such utility
lines.
4.3 BCI shall have the right and servitude to manage, collect, divert and
transport storm water on the BCP Site, including the right to make civil
engineering improvements to the BCP Site, to construct dikes, ditches or
xxxxxx, to install and operate drains, tiles, pipelines and pumps and to
otherwise do such things as it deems necessary or desirable in order to
efficiently manage the storm water of the BCP Site.
ARTICLE 5
FORCE MAJEURE
5.1 Neither party shall be responsible or liable for delay or failure to
perform any covenant or obligation hereunder, if occasioned by or in
consequence of any act of God, strike, lockout, act of the public enemy,
war, blockade, insurrection, riot, landslide, earthquake, fire, storm,
flood, washout, civil disturbance, explosion, breakage or accident to
machinery, equipment or pipelines, inability to obtain fuel, power,
utilities, machinery, equipment or materials, act of government,
governmental regulation or law, whether local, state, or national, or
any other cause or circumstance, whether of the kind enumerated above,
or otherwise, not within each party's reasonable control by the exercise
of due diligence such party is unable to prevent or overcome.
5.2 In the event of any such force majeure, the party affected shall use its
best efforts to continue in the performance of its obligations hereunder
and bring to an end such force majeure provision as soon as reasonably
possible.
5.3 Notwithstanding the foregoing, no party shall be required to settle any
labor matter against its own best judgment.
ARTICLE 6
TERM
6.1 The initial term of the Agreement shall commence as of the date hereof
and continue for an initial term of ten (10) years. Following the
expiration of the initial term, BCI shall have the right to renew the
term of this Agreement for up to two (2) successive ten (10) year
renewal terms, provided BCI gives BCP written notice of intent to renew
not less than six (6) months prior to the expiration of the initial term
or first renewal term, as the case may be, and provided further that BCI
is not at that time in material breach of any terms or conditions of
this Agreement.
6.2 Notwithstanding the term stated in Section 6.1 above, in the event the
BCP Site is sold by BCP to any third party, BCP or its successor shall
have the right, upon three (3) months prior written notice to BCI, to
terminate BCI's lease with respect to all portions of the Wastewater
Treatment Plant other than the Groundwater Recovery System and GRUs
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and BCI's rights to operate all portions of the Wastewater Treatment
Plant other than the Groundwater Recovery System and GRUs (hereinafter
a "Partial Termination"), provided such Partial Termination is
conditioned upon the new third party owner having entered into an
agreement with BCI, on terms reasonably acceptable to BCI, whereby such
new owner agrees for the remaining duration of the term of this
Agreement, including renewal periods hereof, including without
limitation (i) to operate the Wastewater Treatment Plant to treat
process wastewater and storm water from the BCI Site and groundwater
recovered from the Groundwater Recovery System at costs and upon terms
similar to those costs and terms set forth in the Utilities and
Services Agreement and (ii) to give BCI separate alternate access to
and use of the Air Stripper and Steam Stripper at reasonable costs to
treat an appropriate portion of BCI's process wastewater, storm water
and recovered groundwater.
6.3 Upon the effective date of such Partial Termination BCI shall, with the
approval of transfer of the permits by the applicable regulatory
authorities which the parties shall use their best efforts to obtain,
reassign to the new owner the LPDES permit, and other operating permits
for the Wastewater Treatment Plant. BCI will work with the new owner in
good faith on an orderly transfer of the operation of the Wastewater
Treatment Plant, so that no party is deprived of wastewater treatment
services during any transitional period.
6.4 BCI's lease with respect to the Groundwater Recovery System and the GRUs
and BCI's rights with respect to operation of the Groundwater Recovery
System and the GRUs shall survive any such Partial Termination.
ARTICLE 7
LIMITATIONS
7.1 Neither party makes any representations or warranties with respect to
the Wastewater Treatment Plant or the services to be provided hereunder
other than the limited warranty that all services shall be rendered in
accordance with the terms and conditions of this Agreement.
7.2 In no event whatsoever shall any party be liable to the other, whether
in contract, tort or otherwise, for any special, indirect, punitive,
incidental or consequential damages with respect to any claim arising
out of the performance or non-performance of this Agreement or with
respect to the relationship created hereby.
ARTICLE 8
MISCELLANEOUS
8.1 Assignment. Neither party may assign its rights or obligations hereunder
to any non-affiliated third party without the other party's prior
written consent; which consent shall not be unreasonably withheld;
provided, however, that BCI may assign its rights and
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obligations under this Agreement without the consent of BCP if the
assignee acquires all or substantially all of BCI's right, title and
interest in and to the BCI Site.
8.2 Notices. All notices under this Agreement shall be in writing and shall
be sent registered or certified mail, return receipt requested,
addressed to the proper party shown below, unless said address shall
have been changed by written notice:
If to BCI:
XXXXXX CHEMICAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: President
with a copy to:
XXXXXX CHEMICAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
If to BCP:
XXXXXX CHEMICALS AND PLASTICS OPERATING LIMITED PARTNERSHIP
C/o BCP Management, Inc.
Vorys, Xxxxx, Xxxxxxx and Xxxxx, LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxx & Xxxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Mr. X. X. Xxxxxxx
and
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxxx
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8.3 Modifications. This Agreement shall not be modified or changed, except
by written instrument executed by a duly authorized officer of both of
the parties hereto.
8.4 Applicable Law. The place of performance of this Agreement is the State
of Louisiana, and the laws of said state shall govern the rights of the
parties hereto.
8.5 Invalidity of Particular Provisions. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall
to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
8.6 Provisions Binding; No Third Party Beneficiaries. All rights and
liabilities herein given to, or imposed upon, the respective parties
hereto shall extend to and bind the several and respective successors
and permitted assigns o said parties. Nothing contained in the Agreement
in intended or shall be construed to afford any person, other than a
party here, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision hereof.
8.7 Captions. The captions and headings used throughout this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
8.8 Relationship of Parties. Nothing contained in this Agreement shall be
deemed or construed by the parties hereto, or by any third party, to
create the relationship of principal and agent or of partnership or of
joint venture or of any association whatsoever between BCP and BCI, it
being expressly understood and agreed that no provisions contained in
the Agreement, nor any act or acts of the parties hereto, shall be
deemed to create any partnership, joint venture, or agency relationship
between BCI and BCP.
8.9 Consent to Jurisdictiona. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the United States District
Court for the Middle District of Louisiana for the purposes of any suit,
action or other proceeding arising out of this Master Agreement or any
transaction contemplated hereby. Each of the parties hereto further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth in Section
8.2 shall be effective service of process for any action, suit or
proceeding with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding sentence.
Each of the parties hereto irrevocably and unconditionally waives any
objection to the laying of venue of any
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action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby or thereby in the United States
District Court for the Middle District of Louisiana, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers to be effective as of
the day and year first above written.
Witnesses: XXXXXX CHEMICAL, INC.
____________________ By: ____________________________
____________________ Its: _____________________________
---------------------------------
Notary Public
Witnesses: XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP
By: BCP Management, Inc., General
Partner
_____________________ By: ______________________________
_____________________ Its: ______________________________
---------------------------------
Notary Public
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