BIOMASS SUPPLY AND SERVICES
AGREEMENT
This AMENDED AND
RESTATED BIOMASS SUPPLY AND SERVICES AGREEMENT (this “
Agreement ”) is entered into effective as of
January 1, 2009 (“ Effective Date ”), by
and among (i) SNOWFLAKE WHITE MOUNTAIN POWER, LLC, an Arizona
limited liability company (“ Project Company ”),
and (ii) RENEGY, LLC, an Arizona limited liability company
(“ Renegy ”) and RENEGY TRUCKING, LLC, an
Arizona limited liability company (“ Renegy Trucking
”, and together with Renegy, collectively referred to as the
“ Supplier ”). Project Company and Supplier are
sometimes referred to herein individually as a “ Party
” and collectively as the “ Parties
.”
A. Project
Company is the owner of a 24MW power generation facility (the
“ Facility” ) located on property leased by
Project Company from Catalyst Paper (Snowflake) Inc. (“
Catalyst ”) pursuant to that certain Lease Agreement,
dated as of September 14, 2005 between Abitibi Consolidated
Sales Corp., predecessor-in-interest to Catalyst, and Project
Company (as amended, the “ Site Lease ”), which
Facility is adjacent to Catalyst’s paper mill located near
Snowflake, Arizona (“ Catalyst Site
”).
B. Project
Company receives certain quantities of paper mill waste products
from Catalyst under the Site Lease that Project Company uses as
feedstock for the Facility (the “ Catalyst Biomass
”).
C. Supplier
is in the business of (1) locating, acquiring rights to
possess, collecting, removing, processing, loading and transporting
forest thinnings and residues associated with the harvest of trees,
salvage timber, small diameter timber, salt cedar and other
phreatophyte or woody vegetations, including sawdust and sawmill
waste (collectively, “ Biomass ”), and (2)
locating, contracting for, removing, transporting and milling
sawtimber, including sawlogs and roundwood (collectively, “
Sawlogs ”), in each case in the White Mountains of
Arizona.
D. Supplier
desires to transfer to Project Company, and Project Company desires
to accept from Supplier, without payment, all Biomass that Supplier
now has the right to possess or that Supplier acquires the right to
possess during the term of this Agreement.
E. Project
Company desires to engage Supplier to collect, process, remove,
load and transport such Biomass to Project Company’s storage
sites located at the Catalyst Site (the “ Storage
Sites ”.)
F. The
Parties intend that substantially all of the Biomass transferred
and delivered by Supplier to Project Company shall constitute
“solid waste” within the meaning of United States
Treasury Regulation Section 1.103-8(f)(2)(ii)(b) (such
Biomass, “ Qualifying Biomass ”) so that
portions of the Facility will qualify as a “solid waste
disposal facility” within the meaning of United States
Treasury
Regulation Section 1.103-8(f)(2)(ii)(a).
G. The
Parties also intend that substantially all of the Biomass
transferred and delivered by Supplier to Project Company shall
constitute “open-loop biomass” within the meaning of
Section 45(c)(3)(a)(ii) of the Code (“ Open-Loop
Biomass ”).
H. Supplier
owns and operates two sawmills located on a portion of the larger
of the Storage Sites (the “ Sawmill Site ”) to
mill Sawlogs and produce Biomass. Supplier desires that Project
Company arrange with Catalyst the continued right of Supplier to
use and occupy the Sawmill Site for such purposes during the term
of this Agreement.
I. Renegy and
Project Company have entered into that certain Biomass Supply and
Services Agreement, dated June 1, 2006 (the “ Prior
Agreement ”) setting forth their mutual agreement
regarding the foregoing.
J. Project
Company and Supplier intend to amend, supplement and restate the
Prior Agreement in its entirety by entering into this Agreement as
follows.
In consideration
of the foregoing and the mutual agreements set forth herein,
Project Company and Supplier, intending to be legally bound, hereby
amend and restate the Prior Agreement in its entirety as
follows:
1.
Term . The term (“ Term ”) of this
Agreement shall commence on the date hereof and continue through
December 31, 2027. Project Company and Supplier may terminate
this Agreement earlier or renew this Agreement only by mutual
written agreement.
(a)
Biomass Delivered Previously . As of the effective date of
the Prior Agreement, Supplier has transferred to Project Company
title to and the right to possess all Biomass delivered by Supplier
or its subcontractors to the Storage Sites prior to such effective
date, without payment, free and clear of all liens, security
interests or encumbrances of Supplier or any third party claiming
by, through or under Supplier. Project Company and Supplier hereby
acknowledge that Project Company reimbursed Supplier for such
Biomass upon closing of the financing for the construction of the
Facility. The Parties acknowledge that the Biomass described in
this Section 2(a) is not Qualifying Biomass (such Biomass, together
with all other Biomass delivered hereunder that is not Qualifying
Biomass, “ Non-Qualifying Biomass ”).
(b)
Existing Biomass Rights . On the terms and conditions set
forth in this Agreement, as of the effective date of the Prior
Agreement, Supplier has transferred to Project Company, without
payment, free and clear of all liens, security interests or
encumbrances of Supplier or any third party claiming by, through or
under Supplier, and Project Company has accepted from Supplier, all
of Supplier’s title to and right to possess all Biomass with
respect to which Supplier then had and now has the right to
possess, collect, process, remove, load, transport or take delivery
(“ Existing Biomass ”), in situ where
such Biomass is located. Supplier either previously has used, or as
soon as practicable after the execution of this Agreement shall
use, commercially reasonable efforts to obtain from the third
parties transferring Existing
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Biomass to
Supplier an acknowledgement, substantially in the form of
Exhibit A attached hereto (each, a “ Biomass Transfer
Acknowledgement ”), that title to and the right to
possess the Biomass that is the subject of the transfer is vested
in Supplier and that any and all fees, charges and other amounts
payable by Supplier in connection with Existing Biomass are payable
for collection, processing, removal, loading or transportation
services provided by such third parties only and not for title to
or the right to possess the Biomass itself.
(c)
Future Biomass Rights . On the terms and conditions of this
Agreement, as of the effective date of the Prior Agreement,
Supplier has transferred to Project Company, free and clear of all
liens, security interests or encumbrances of Supplier or any third
party claiming by, through or under Supplier, and Project Company
has accepted from Supplier, all of Supplier’s title to and
right to possess all Biomass in addition to Existing Biomass that
Supplier has acquired or acquires the right to possess, collect,
process, remove, load, transport or take delivery during the Term
to the extent of Project Company’s requirements not supplied
by the Catalyst Biomass. Title to and risk of loss of all
quantities of such Biomass shall pass from Supplier to Project
Company upon Supplier’s acquisition of title to and right to
possess such Biomass, automatically and without further action of
Supplier or Project Company, in situ where such Biomass is
located. Supplier shall use commercially reasonable efforts to
obtain a Biomass Transfer Acknowledgement from each third party
transferring such additional Biomass to Supplier.
(d)
Quantity of Biomass’ Scheduling and Delivery
.
(i) On
the terms and conditions of this Agreement, Supplier shall, or
shall cause its subcontractors to, without payment, locate, obtain
title to and right to possess, collect, process, load or transport,
as applicable, to the Storage Sites all of the Biomass requirements
of the Facility during the Term which are not met through Catalyst
Biomass. While Project Company anticipates that such Biomass
requirements of the Facility will be approximately 104,037 bone dry
tons per year, this anticipated quantity does not represent a
guaranteed minimum or maximum quantity; provided ,
however that during the Term of this Agreement, Project
Company agrees to receive and obtain all of its Biomass feedstock
requirements for the Facility (other than its requirements met by
Catalyst Biomass) from Supplier. Notwithstanding the foregoing, if
Supplier is unable to deliver such requirements for any reason
whatsoever, Project Company shall he entitled to obtain the
shortfall from third parties.
(ii) Commencing
with the calendar year 2007 and during the Term, Project Company
shall provide written notice to Supplier no later than ninety
(90) days prior to the end of each calendar year (such notice
the “ Annual Requirements Notice ”) indicating
the expected monthly quantities of Biomass that Project Company
expects will be utilized by the Facility during that calendar year.
Commencing with the month of January 2008, if the monthly
quantity of Biomass that Project Company expects will be utilized
in that month (as specified in the Annual Requirements Notice) has
changed, Project Company shall provide written notice of such
change to Supplier no later than fifteen (15) days prior to
each calendar month.
(iii) As
of the Effective Date of this Agreement, Supplier has, or has
caused its subcontractors to, deliver to the Storage Sites not less
than 315,000 bone dry tons of
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Biomass (the
“ Biomass Reserve ”). Hereafter, Supplier shall,
or shall cause its subcontractors to, on a monthly basis, locate,
obtain title to and the right to possess, collect, process, load or
transport, as applicable, to the Storage Sites sufficient
quantities of Biomass, in approximately the monthly quantities
nominated by Project Company, such that the Biomass Reserve does
not fall below 315,000 bone dry tons.
(iv) Supplier
shall use commercially reasonable efforts to deliver or cause to be
delivered to Project Company hereunder only Biomass that is both
Qualifying Biomass and Open-Loop Biomass; however, Supplier shall
be entitled to deliver or cause to be delivered Non-Qualifying
Biomass to Project Company provided that Supplier or its
subcontractor unloads such Biomass at the Storage Sites in separate
Non-Qualifying Biomass storage piles as directed by Project
Company.
(e)
Biomass Specifications . All Biomass delivered hereunder
shall meet the specifications set forth in Schedule 1 attached
hereto. Project Company shall have the right to sample any delivery
of Biomass at the Storage Sites prior to unloading and Project
Company may require Supplier to, at Project Company’s option,
either reprocess any non-conforming Biomass prior to acceptance or
to dispose of such non-conforming Biomass in accordance with
applicable law.
(f)
General . Each of Supplier and Project Company acknowledge
that none of the Biomass delivered by Supplier to Project Company
has any value where it is located and that Project Company shall
not be required to pay for such Biomass (but shall reimburse
Supplier for its costs and the fee as provided herein). For the
avoidance of doubt, the transfer of Biomass (including without
limitation Existing Biomass) under this Agreement does not include
any Sawlogs, and title to and risk of loss of Biomass (including
without limitation Existing Biomass) produced by Supplier as a
result of its Sawlog milling operations at the Sawmill Site shall
vest in Project Company, automatically without further action of
Supplier or Project Company, when so produced. Title to and the
risk of loss of the Sawlogs shall at all times remain with
Renegy.
(i)
During the Term, Supplier shall provide such services as may be
necessary in order to deliver all Biomass (including without
limitation Existing Biomass) transferred to Project Company
hereunder to Project Company at the Storage Sites, including
without limitation the following (collectively, the “
Services ”): (a) locating available Biomass;
(b) entering into contracts for title to and right to possess
such Biomass; (c) collecting Biomass that requires no further
processing to meet the specifications required hereunder;
(d) processing Biomass by chipping, grinding or other means to
meet the specifications required hereunder; (e) loading
Biomass for transportation to the Storage Sites;
(f) transporting Biomass to the Storage Sites and from such
Storage Sites to the Facility; (g) unloading Biomass at the
Storage Sites and the Facility as directed by Project Company
representatives, including without limitation unloading Qualifying
Biomass and Non-Qualifying Biomass in segregated piles as directed
by such Project Company representatives; (h) grooming and
managing the Biomass Reserves and any other Biomass inventories
located at the Storage Sites on behalf of the Project Company; and
(i) providing administrative, accounting, legal and other back
office overhead services in connection with the foregoing. Supplier
may engage one or more subcontractors (including
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without
limitation its current subcontractors) to perform any such
Services. Supplier shall provide, and shall caus
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