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AMENDED AND RESTATED BIOMASS SUPPLY AND SERVICES AGREEMENT

Requirements Supplier Agreement

AMENDED AND RESTATED BIOMASS SUPPLY AND SERVICES AGREEMENT | Document Parties: RENEGY HOLDINGS, INC. | Abitibi Consolidated Sales Corp | Catalyst Paper (Snowflake) Inc | RENEGY TRUCKING, LLC | RENEGY, LLC | SNOWFLAKE WHITE MOUNTAIN POWER, LLC You are currently viewing:
This Requirements Supplier Agreement involves

RENEGY HOLDINGS, INC. | Abitibi Consolidated Sales Corp | Catalyst Paper (Snowflake) Inc | RENEGY TRUCKING, LLC | RENEGY, LLC | SNOWFLAKE WHITE MOUNTAIN POWER, LLC

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Title: AMENDED AND RESTATED BIOMASS SUPPLY AND SERVICES AGREEMENT
Governing Law: Arizona     Date: 1/7/2009
Industry: Electric Utilities     Sector: Utilities

AMENDED AND RESTATED BIOMASS SUPPLY AND SERVICES AGREEMENT, Parties: renegy holdings  inc. , abitibi consolidated sales corp , catalyst paper (snowflake) inc , renegy trucking  llc , renegy  llc , snowflake white mountain power  llc
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Exhibit 10.13

AMENDED AND RESTATED

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 .”

RECITALS

     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.

AGREEMENT

     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.

     2.  Transfer of Biomass.

          (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.

     3.  Supplier Services .

               (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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