AMENDMENT NO. 4 TO LEASE
AGREEMENT
This Amendment
No. 4 to Lease Agreement, dated as of December 31, 2008
(this “Amendment”), is entered into by and between
CATALYST PAPER (SNOWFLAKE) INC., a Delaware corporation
(“Landlord” or “Facility Operator”) an
indirect wholly-owned subsidiary of Catalyst Paper Corporation, a
Canadian corporation, and SNOWFLAKE WHITE MOUNTAIN POWER, LLC, an
Arizona limited liability company (“Tenant” or
“Facility Owner”).
A. Landlord
and Tenant have entered into that certain Lease Agreement, dated as
of September 14, 2005 (as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance
with the terms thereof and hereof, the “Lease”).
Capitalized terms used herein but not defined herein have the
meaning given in the Lease.
B. Landlord,
CoBank, ACB and Tenant have entered into that certain Consent and
Agreement, dated as of September 1, 2006 (the
“Consent”), pursuant to which the Lease was amended as
described in the Consent.
C. Landlord
and Tenant have entered into that certain Amendment No. 2 to
Lease Agreement, dated as of August 2, 2007 (“Amendment
No. 2”), pursuant to which the Lease was amended as
described in Amendment No. 2.
D. Landlord
and Tenant have entered into that certain Amendment No. 3 to
Lease Agreement, dated as of August 23, 2007 (“Amendment
No. 3”), pursuant to which the Lease was amended as
described in Amendment No. 3.
E. Landlord
and Tenant wish to further amend the Lease as set forth
herein.
F. Renegy
Holdings, Inc., the sole member of Tenant (“Renegy”),
and AZ Biomass LLC, a Delaware limited liability company
(“State Street”), contemplate entering into that
certain Membership Interest Purchase Agreement to be dated as of
January 1, 2009 (the “MIPA”) pursuant to which
State Street will acquire from Renegy all the Class A
membership interests in Tenant (the “Class A
Interest”) for the consideration and on the terms as set
forth in the MIPA.
G. Pursuant
to Section 22 of the Lease, Tenant has agreed not to assign,
sublease, or otherwise transfer all or any portion of its interest
under the Lease without the prior written consent of
Landlord.
H. The sale
of the Class A Interest to State Street pursuant to the MIPA
may be considered to be a “Transfer” of Tenant’s
interest in the Lease, as such term is defined in paragraphs 3 and
4 of Section 22 thereof, and therefore Tenant has requested
that Landlord consent to such Transfer of Tenant’s interest
in the Lease.
NOW THEREFORE, for
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as
follows:
1. 2009
Annual Budget . Facility Owner and Facility Operator agree that
the Annual Budget (as defined in the Operations Provisions) for the
Lease Year commencing January 1, 2009 and ending
December 31, 2009 (the “2009 Lease Year”) shall be
the budget attached to this Amendment as Exhibit A (the
“2009 Annual Budget”).
2.
Amendment of Lease . Landlord and Tenant agree that the
Lease shall be amended as follows (with capitalized terms not
otherwise defined herein having the meaning given in the Lease and
section references referring to sections of the Lease):
(a) Section 4.3
is hereby deleted in its entirety and replaced with the
following:
4.3 Paper Sludge
Supply and Removal. Landlord currently operates the Paper Mill on
property that is adjacent to the Real Property. For so long as the
Paper Mill remains open and operating, Landlord shall allow Tenant
to obtain without cost or charge as much of the paper sludge
produced by the Paper Mill as Tenant can use at the Power Facility.
Tenant will use commercially reasonable efforts to utilize the
paper sludge as a fuel source for the Power Facility, but Tenant
does not guarantee that the paper sludge will be a viable fuel
source for the Power Facility. At no cost to Tenant, Landlord shall
process the sludge to reduce the moisture content of such sludge to
the lowest practical moisture content (in no event greater than
approximately 50% moisture content) and shall be responsible for
all waste water treatment in connection with the production and
processing of such sludge. At no cost to Landlord, Tenant shall
install equipment to transport the paper sludge from the wastewater
treatment plant to the Power Facility, and shall add screw presses
or other equipment necessary to allow Landlord to reduce the
moisture content of the sludge. Tenant shall reimburse Landlord as
an “Operational Cost” under the
“Operations Provisions” the cost of transporting
all such processed sludge to the Power Facility. In the event
Tenant wishes to terminate its use of any or all of the paper
sludge at the Power Facility, Tenant shall provide Landlord at
least 30 days advance written notice of such termination. Any
portion of paper sludge produced at the Paper Mill that is not
taken by Tenant, including any sludge that Tenant discontinues
using, may be sold or otherwise conveyed by Landlord to any third
party; provided, however, that if Landlord desires to sell,
transfer or convey any paper sludge to a third party (other than a
transporter for purposes of disposal of the paper sludge in a
landfill), Landlord shall first provide Tenant with
60 days’ notice of such desire and Tenant shall have the
right to take possession and ownership of all the paper sludge
produced by the Paper Mill. In the event Tenant fails to utilize at
least 75% of the paper sludge (at current levels) produced at the
Paper Mill within two (2) years after the Commencement Date,
or thereafter fails to maintain such minimum usage, Tenant shall
pay an annual rent of $400,000 in equal monthly installments. Any
rent being paid under this Section 4.3 shall be suspended if
the Paper Mill’s production of paper sludge falls below 25%
of current levels, and shall resume when the production rises above
25% of current levels. Landlord
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shall notify
Tenant at least 90 days prior to permanently closing the Paper
Mill or permanently ceasing production or processing of paper
sludge. For purposes of this Section 4.3, current levels of paper
sludge production shall refer to sludge production of 250 bone dry
tons per day of Paper Mill operation. So long as the Operations
Provisions remain in effect, any rent being paid under this
Section 4.3 shall be suspended for any period during which
Landlord, as Facility Operator, fails to use commercially
reasonable efforts to utilize paper sludge taken by Tenant,
consistent with Prudent Operating and Maintenance
Practices.
(c) Section 4.6
is hereby deleted in its entirety and replaced with the
following:
4.6 Utilities;
Disposal of Facility Waste Other Than Fly Ash . Landlord shall
provide utilities necessary to operate the Power Facility as
described in this Section 4.6 so long as the Paper Mill is
operating. The scope of such utilities shall be the same as those
provided as of November 2008. Electricity shall be provided as
described in Section 4.5 above. Natural gas will be provided
as available at the metered cost. Water, boiler feedwater,
compressed air, sewage and waste water treatment, and removal and
disposal of Facility Waste will be provided to Tenant for a fixed
rate of $375,000 per year. Landlord shall arrange for the
transportation and disposal of all Hazardous Waste generated at the
Power Facility in accordance with applicable law, and all costs
associated therewith shall be considered an “Operational
Cost” to be paid by Tenant. Landlord shall take
possession of, transport and dispose of all Facility Waste in a
location other than on the Real Property in accordance with
applicable law, including, without limitation, all
“Environmental Laws”. Tenant shall not have any
financial responsibility with respect to the Facility Waste except
as otherwise provided herein. Except as they relate to
Tenant’s obligations under this Section 4.6 , any and
all claims, demands, notices, damages, costs, fees, judgments,
suits, causes of action, losses, liabilities and expenses,
including attorneys’ fees and court costs, that result from
or relate to the Facility Waste shall be considered Excluded Claims
and shall be covered under Landlord’s indemnification
obligations set forth in Section 12.3 . The rate
charged Tenant for the foregoing services shall be adjusted on
January 1, 2010, and on January 1 of each year thereafter, by
the same percentage change as occurs during the prior calendar year
in the cost to Landlord of providing utilities at the usage rates
listed in Exhibit B attached hereto. The parties understand
and agree that if the Paper Mill or any portion thereof is not
operating for some temporary or indefinite period (but excluding a
permanent closure) such that Landlord is not able to provide all of
the utilities described herein during such period, Landlord and
Tenant shall consult with one another in good faith to determine an
acceptable means to supply the interrupted utilities. To the extent
the interrupted utilities are provided by Landlord, the added costs
incurred by Landlord shall be considered an “Operational
Cost” to be paid by Tenant. The parties further
understand and agree that the rate for the utilities described
herein is based on the operations and efficiencies of the Power
Facility as existing during November 2008. Should physical
changes or changes in the method of operation of the Power Facility
result in an increase in the demand for any of the utilities
provided hereunder in
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any Lease Year
by more than 10% above the levels reflected in Exhibit B, the
added cost to Landlord for providing utilities above the
Exhibit B levels shall be considered an “Operational
Cost” to be paid by Tenant. Should such changes result in
a decrease in the demand for any of such utilities in any Lease
Year by more than 10% below the levels reflected in Exhibit B,
the decrease in the cost to Landlord for providing utilities below
the Exhibit B levels shall be refunded to Tenant.
(d) Section 4.7
is hereby deleted in its entirety and replaced with the
following:
4.7.1 During the
Lease Term, Landlord shall take possession of, transport and
dispose of all Fly Ash in a location other than on the Real
Property in accordance with applicable law, including, without
limitation, all “Environmental Laws”. Tenant shall
(i) reimburse Landlord, as an Operational Cost under the
Operations Provisions, for all transportation costs incurred in
removing and disposing of any Fly Ash, whether disposed of onsite
or offsite of the Paper Mill, (ii) reimburse Landlord, as an
Operational Cost under the Operations Provisions, for all disposal
costs for Fly Ash disposed of offsite of the Paper Mill, and
(iii) pay to Landlord an amount equal to $4.50 per ton of Fly
Ash, having a moisture content of no more than 20%, disposed of
onsite of the Paper Mill, provided that in no event shall Tenant be
obligated to make any payments hereunder for any fees under this
subsection (iii) that exceed $490 on any given day during the
Lease Year. The foregoing rates charged to Tenant shall be adjusted
effective January 1 of each year by the same percentage change as
occurs in Landlord’s actual landfill costs during the prior
calendar year. In the event the costs referenced in subsection
“(i)” above are increased as the result of changes in
the costs for services being provided to Landlord by a third party,
Tenant shall have the option (exercisable no later than
30 days after receiving notice from Landlord of the
adjustment) to assume the obligation to perform such services
directly, subject to compliance with termination provisions in
Landlord’s agreement with the third party, and subject to
Tenant being able to perform such services at or exceeding the
standards being met by such third party. To the maximum extent
permitted by applicable law, (a) Tenant, and not Landlord,
shall be considered the generator of the Fly Ash, and (b) the
Power Facility, and not the Paper Mill, shall be considered the
source of the Fly Ash.
4.7.2
Notwithstanding anything to the contrary herein, in the event the
Operations Provisions terminate prior to the termination of the
Lease: (A) the cost for disposal of Fly Ash disposed of onsite
of the Paper Mill shall increase to $7.50 per ton of Fly Ash having
a moisture content of no more than 20% subject to a daily fee
limitation of $818 (instead of $490); (B) Landlord shall
continue to be obligated to take possession of, transport and
dispose of the Fly Ash having a moisture content of no more than
20% as described above in Section 4.7.1 and any reimbursements
required to be made by Tenant to Landlord described under
subsections “i” and “ii” thereof shall
continue to be required and shall be paid in
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a manner
consistent with Section 7.1.3 of the Operations Provisions
(notwithstanding the termination thereof); (C) Tenant may
elect upon 30 days notice to Landlord to assume all of
Landlord’s obligations to take possession of, transport and
dispose of the Fly Ash, in which case Tenant shall pay to Landlord
the disposal costs listed in subsection “(A)” above,
Landlord shall be relieved of its obligations under the foregoing
subsection “(B)”; and the Fly Ash may continue to be
disposed of on Landlord’s property (unless subsection
“(D)” applies); (D) in the event (i) Tenant
makes the election described in the foregoing subsection
“(C)”, and (ii) the disposal of the Fly Ash on
Landlord’s property is not commercially reasonable for
Landlord, Tenant shall make arrangements to dispose of the Fly Ash
offsite of Landlord’s property, and the disposal costs listed
in subsection “A” would not apply. The foregoing rates
charged to Tenant for disposal on Landlord’s property shall
be adjusted effective January 1 of each year by the same percentage
change as occurs in Landlord’s actual landfill costs during
the prior calendar year. In the event the costs referenced in
subsection “(i)” of Section 4.7.1 above are
increased as the result of changes in the costs for services being
provided to Landlord by a third party, Tenant shall have the option
(exercisable no later than 30 days after receiving notice from
Landlord of the adjustment) to assume the obligation to perform
such services directly, subject to compliance with termination
provisions in Landlord’s agreement with the third party, and
subject to Tenant being able to perform such services at or
exceeding the standards being met by such third party. Landlord may
reject any Fly Ash having a moisture content of greater than 20%,
in which case Tenant shall be responsible for disposing of the Fly
Ash offsite of Landlord’s property in accordance with
applicable law. If Tenant makes the election to assume
Landlord’s obligations as described in this
Section 4.7.2, any and all claims, demands, notices, damages,
costs, fees, judgments, suits, causes of action, losses,
liabilities and expenses, including attorneys’ fees and court
costs, that result from or relate to the Fly Ash shall be covered
under Tenant’s indemnification obligations set forth in
Section 12.1;
4.7.3 Tenant shall
not have any financial responsibility with respect to the Fly Ash
except as otherwise provided herein. Except as they relate to
Tenant’s obligations under this Section 4.7 , any
and all claims, demands, notices, damages, costs, fees, judgments,
suits, causes of action, losses, liabilities and expenses,
including attorneys’ fees and court costs, that result from
or relate to the Fly Ash shall be considered Excluded Claims and
shall be covered under Landlord’s indemnification obligations
set forth in Section 12.3 .
4.7.4 Tenant shall
be responsible for any and all improvements, including,
withou
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