EX-10.29



 





Exhibit 10.29




RAW WATER AND FACILITIES SHARING AGREEMENT




     THIS RAW WATER AND FACILITIES SHARING AGREEMENT is made and entered into as of ___,
2007, by and between Coffeyville Resources Refining & Marketing, LLC, a Delaware limited liability
company (“Refinery Company”), and Coffeyville Resources Nitrogen Fertilizers, LLC, a Delaware
limited liability company (“Fertilizer Company”).



RECITALS




     Refinery Company owns and operates a petroleum refinery located at Coffeyville, Kansas (the
“Refinery”). Fertilizer Company owns and operates a nitrogen fertilizer complex (the “Fertilizer
Plant”) located adjacent to the Refinery.



     Refinery Company and Fertilizer Company are each owners of an undivided one-half interest in
and to the following water rights (collectively, the “Water Rights”):



     1. Kansas Vested Right File No. MG011, which authorizes the diversion of surface water from
the Verdigris River at the rate and quantity set forth in such File No;



     2. Kansas Approved Application for Permit to Appropriate Water, Application No. 43,782 with a
priority date of May 14, 1999; and



     3. Contract for Industrial Water Supply, Water Purchase Contract No. 99-5 dated December 3,
1999, originally between Farmland and the Kansas Water Office and subsequently assigned by Farmland
on March 3, 2004 jointly to Refinery Company and Fertilizer Company (“Water Contract”).



     Refinery Company owns and operates certain equipment used to withdraw and transport raw water
from the Verdigris River pursuant to the Water Rights, including the “River Intake Structure”, the
“River Water Pumps” and the “Y Intersection”, and other raw water meters, piping and related
facilities shown in the diagram set forth in Exhibit A hereto (collectively the “Water
Facilities”).



     Fertilizer Company and Refinery Company desire to share the benefits and the costs of the
Water Rights and Water Facilities as set forth in this Agreement.



     NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations
and warranties herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:



 









 





ARTICLE 1




DEFINITIONS




     The following terms shall have the meanings set forth below, unless the context otherwise
dictates, both for purposes of this Agreement and all Exhibits hereto:



     “Agreement” means this Raw Water and Facilities Sharing Agreement and the Exhibit hereto, all
as the same may be amended, modified or supplemented from time to time.



     “Available Raw Water” is defined in Section 3.3.



     “Calendar Month Percentage” is defined in Section 3.2.



     “Calendar Year Percentage” is defined in Section 3.2.



     “Dispute” is defined in Section 5.1.



     “Electricity Estimate” is defined in Section 3.5(b).



     “Fertilizer Company” is defined in the preamble.



     “Fertilizer Company Representative” shall mean the plant manager of the Fertilizer Complex or
such other person as is designated in writing by Fertilizer Company.



     “Fertilizer Plant” is defined in the first recital, and includes any additions or other
modifications made thereto from time to time.



     “Indemnitee” is defined in Section 4.1.



     “Indemnitor” is defined in Section 4.1.



     “Losses” is defined in Section 4.1.



     “Multi-Party Dispute” is defined in Section 5.2.



     “Party” and “Parties” mean the parties to this Agreement.



     “Person” means and includes natural persons, corporations, limited partners, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities.



     “Raw Water” means water withdrawn from the Verdigris River pursuant to the Water Rights.



     “Raw Water Insufficiency” is defined in Section 3.3.



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     “Refinery” is defined in the first recital, and includes any additions or other modifications
made thereto from time to time.



     “Refinery Company” is defined in the preamble.



     “Refinery Company Representative” means the Plant Manager of Refinery Company or such other
person as is designated in writing by Refinery Company.



     “Representative” each of Fertilizer Company Representative and Refinery Company
Representative.



     “River Intake Structure” means the structure (including the diversion damn) in the Verdigris
River upon which the River Water Pumps are situated, including any additions or other modifications
made thereto from time to time.



     “River Water Pumps” means the three river water pumps situated on the River Intake Structure
and which are used to withdraw water from the Verdigris River and pump it into the Y Intersection,
including any additions or other modifications made thereto from time to time.



     “Water Contract” is defined in paragraph 3 of the second recital.



     “Water Facilities” is defined in the third recital, and includes any additions or other
modifications made thereto from time to time..



     “Water Management Team” is defined in Article 2.



     “Water Rights” is defined in the second recital.



     “Y Intersection” means that portion of the Raw Water piping near the River Water Pumps, as
shown in the diagram set forth in Exhibit A hereto, where the water piping splits, with one
pipe leading to the Fertilizer Plant and the other pipe leading to the Refinery, including any
additions or other modifications made thereto from time to time.



ARTICLE 2




COMPANY REPRESENTATIVES




     Fertilizer Company and Refinery Company hereby respectively designate Fertilizer Company
Representative and Refinery Company Representative for purposes of making determinations on behalf
of Fertilizer Company and Refinery Company relating to the management, supervision and control of
the Water Facilities and the Water Rights. Fertilizer Company Representative and Refinery Company
Representative shall constitute the “Water Management Team”.



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ARTICLE 3




RAW WATER AND FACILITIES SHARING




     3.1 Operational Responsibility. Refinery Company shall have day-to-day operational
responsibility for the Water Facilities and the Water Rights but shall conduct such operations at
the direction of the Water Management Team. The Water Management Team shall meet on a regular
basis and at any time a Representative reasonably requests a meeting to implement the provisions of
this Agreement and/or to ensure compliance by the Water Facilities with applicable laws and
regulations.



     3.2 Measurements of Usage. The total amount of Raw Water withdrawn from the Verdigris
River will be measured by a meter included as a part of the Water Facilities, and the total amount
of such Raw Water supplied by the Water Facilities to the Fertilizer Plant and the Refinery,
respectively, will be measured by meters on the pipes that transport the Raw Water from the Water
Facilities to the Fertilizer Plant and the Refinery. Readings from such meters will be
communicated to each Party electronically. For purposes of this Agreement, Raw Water will be
deemed used by a Party based upon the supply of Raw Water as measured by such meters. A percentage
of usage of Raw Water supplied by the Water Facilities to the Fertilizer Plant and the Refinery
will be determined for each calendar month (a “Calendar Month Percentage”) and for each calendar
year (a “Calendar Year Percentage”), which percentages will be determined for each applicable
period by dividing the amount of Raw Water supplied to a Party during such period by the total Raw
Water quantity withdrawn from the Verdigris River by the Water Facilities during such period. In
the event that a Party had any complete (or substantially complete) operational outage due to a
planned turnaround, mechanical difficulties, or for any other reason, during any period included
for purposes of computing a Calendar Month Percentage or a Calendar Year Percentage for such Party,
then, notwithstanding such outage, such Party shall be deemed to have used the same amount of Raw
Water during each calendar month in which such outage occurs as the Party used during the most
recent full calendar month ending prior to the commencement of such outage, prorated for any
partial calendar month of outage.



     3.3 Allocating Water. The Fertilizer Plant and the Refinery will each be entitled to
receive sufficient amounts of Raw Water each day to enable the Fertilizer Plant and the Refinery to
conduct their operations at the operational levels determined to be appropriate by Fertilizer
Company and Refinery Company, respectively. Each Representative shall advise the other
Representative, and the Refinery Company personnel operating the Water Facilities, of the amount of
Raw Water required by its respective company for its operational level. If the amount of Raw Water
that the Water Facilities are capable of providing (“Available Raw Water”) is insufficient at any
time to provide the aggregate amount of Raw Water required to operate the Fertilizer Plant and the
Refinery at their respective operational levels (“Raw Water Insufficiency”), then the Available Raw
Water shall be allocated between the Fertilizer Plant and the Refinery on a prorated basis, which
prorated basis shall be determined by reference to the average of the Calendar Year Percentages for
the Fertilizer Plant and the Refinery, respectively, for the two full calendar year periods most
recently ending prior to the date of the applicable Raw Water Insufficiency. Fertilizer Company
and Refinery Company shall reasonably



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cooperate in good faith to obtain sufficient Raw Water for their respective operational
levels, including (without limitation) enforcement of all rights which may exist under the Water
Rights.



     3.4 Modifications to Facilities and Amendments to Contracts. No material modification
or alterations to, or replacements of, the Water Facilities or their operations and no amendments
or supplements to, or waivers of enforcement of, the provisions of the Water Rights shall be made
without the written consent of each Party, which consent shall not be unreasonably withheld or
delayed.



     3.5 Allocation of Costs.




     (a) Fertilizer Company and Refinery Company shall each pay their prorated share of all
costs related to the operation, maintenance, repair, modification, alteration, or
replacement of the Water Facilities and administration of the Water Rights, which costs
shall include the cost of labor, materials and other costs reasonably allocable to the
operation, maintenance, repair or replacement of the Water Facilities, and any charges
pursuant to the Water Contract, except that payment of the cost of electricity shall be made
as provided in Section 3.5(b) below. Each Party’s prorated share of such costs shall be
determined by reference to such Party’s Calendar Year Percentage for the calendar year in
which such costs are incurred. Refinery Company shall determine each Party’s prorated share
of costs and send an annual invoice to Fertilizer Company for Fertilizer Company’s prorated
share of such costs, which invoice will be due and payable within 15 days after receipt.
Notwithstanding the foregoing and subject to Section 3.4, in the event that any operation,
maintenance, repair, modification, alteration, or replacement of any of the Water Facilities
is required solely by reason of the requirements of one Party’s operations, obligations to
third parties, or mandates of any governmental authority, or is caused by any acts or
omissions of such Party or anyone acting for or on behalf of such Party, then such Party
shall bear all costs related to such operation, maintenance, repair, modification,
alteration, or replacement. Notwithstanding any payment of costs by Fertilizer Company
under this Section 3.5(a), the Water Facilities shall remain the property of Refinery
Company, except as otherwise provided in Section 3.6.




     (b) Fertilizer Company shall reimburse Refinery Company for electricity required to
operate the River Water Pumps. Such reimbursement shall be determined on a monthly basis as
follows: (i) an estimate (the “Electricity Estimate”) will be made of the amount of
electricity used by the River Water Pumps for each calendar month based on the horsepower of
the pumps; (ii) the Fertilizer’s Calendar Month Percentage for such calendar month will be
multiplied by the Electricity Estimate in order to determine the number of kilowatt hours of
electricity to be allocated to the Fertilizer Plant; and (iii) the number of kilowatt hours
will be multiplied by the rate per kilowatt hour the Refinery pays for electricity.
Refinery Company shall send a monthly invoice for such electricity cost as calculated above
to Fertilizer Company, which invoice will be due and payable within 15 days after receipt.



     3.6 Termination of Sharing. Either Party (the “Terminating Party”) may elect to
terminate the sharing of the Water Facilities and Water Rights as provided in this Agreement, which
termination of sharing shall be effective as of the termination date (the “Termination



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Date”) specified in written notice of such election by the Terminating Party to the other
Party (the “Non-Terminating Party”), provided that such notice shall be given at least three (3)
years prior to the specified Termination Date. In the event a Terminating Party gives such a
notice of termination to a Non-Terminating Party, the Parties shall proceed in good faith to do the
following prior to the Termination Date:




     (a) The Parties will allocate and divide the Water Rights on a commercially reasonable
basis consistent with and in proportion to the average of the Calendar Year Percentages for
the Fertilizer Plant and the Refinery, respectively, for the two full calendar year periods
most recently ending prior to the Termination Date.




     (b) The Refinery Company will grant Fertilizer Company such easements and access over
the Refinery premises as Fertilizer Company may reasonably require in order to establish
separate usage of the Water Rights as determined pursuant to Section 3.6(a) above, including
easements and access over Refinery premises to the Verdigris River for the creation,
operation, maintenance, repair and replacement, as reasonably necessary, of a separate Raw
Water intake and distribution system for the Fertilizer Plant, provided that no such
easements or access over the Refinery premises shall have a material adverse effect on the
Refinery Company’s business or operations at the Refinery.




     (c) In the event that the Fertilizer Company is the Terminating Party, then the
Fertilizer Company shall at its cost and expense purchase and install the additional pumps,
piping, and other equipment and structures (collectively, “New Water Facilities”) necessary
for the Fertilizer Company to have a separate Raw Water intake and distribution system for
the Fertilizer Plant. In the event that the Refinery Company is the Terminating Party, then
the Fertilizer Company shall have the option, exercisable upon written notice to the
Refinery Company at least thirty (30) months prior to the Termination Date, to either (i)
purchase and install at its cost and expense New Water Facilities necessary for the
Fertilizer Company to have a separate Raw Water intake and distribution system for the
Fertilizer Plant, or (ii) require the Refinery Company to transfer the Water Facilities to
the Fertilizer Company, as of the Termination Date, for use by the Fertilizer Company as a
separate Raw Water intake and distribution system for the Fertilizer Plant, in which event
the Fertilizer Company shall pay to the Refinery Company an amount equal to the depreciated
value of the Water Facilities at and as of the date of transfer, as determined from the
books and records of the Refinery Company, and the Refinery Company shall purchase and
install at its cost and expense New Water Facilities necessary for the Refinery Company to
have a separate Raw Water intake and distribution system for the Refinery. To the extent
any costs and expenses are incurred by mutual agreement of the Parties for the mutual
benefit of both the Water Facilities and the New Water Facilities, then any such costs and
expenses shall be allocated as mutually agreed upon by the Parties.




     (d) Fertilizer Company and Refinery Company shall work with, and obtain all necessary
approvals from, applicable governmental agencies and authorities to the extent required to
effectuate the separation of Water Rights, installation of any New Water Facilities, and
other actions as contemplated in this Section 3.6.



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ARTICLE 4




INDEMNIFICATION




     4.1 Indemnification Obligations. Each of the Parties (each, an “Indemnitor”) shall
indemnify, defend and hold the other Party and its respective officers, directors, members,
managers and employees (each, an “Indemnitee”) harmless from and against all liabilities,
obligations, claims, losses, damages, penalties, deficiencies, causes of action, costs and
expenses, including, without limitation, attorneys’ fees and expenses (collectively, “Losses”)
imposed upon, incurred by or asserted against the Person seeking indemnification that are caused
by, are attributable to, result from or arise out of the breach of this Agreement by the Indemnitor
or the negligence or willful misconduct of the Indemnitor, or of any officers, directors, members,
managers, employees, agents, contractors and/or subcontractors acting for or on behalf of the
Indemnitor. Any indemnification obligation pursuant to this Article 4 with respect to any
particular Losses shall be reduced by all amounts actually recovered by the Indemnitee from third
parties, or from applicable insurance coverage, with respect to such Losses. Upon making any
payment to any Indemnitee, the Indemnitor shall be subrogated to all rights of the Indemnitee
against any third party in respect of the Losses to which such payment relates, and such Indemnitee
shall execute upon request all instruments reasonably necessary to evidence and perfect such
subrogation rights. If the Indemnitee receives any amounts from any third party or under
applicable insurance coverage subsequent to an indemnification payment by the Indemnitor, then such
Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by such
Indemnitor in connection with providing such indemnification payment up to the amount received by
the Indemnitee, net of any expenses incurred by such Indemnitee in collecting such amount.



     4.2 Indemnification Procedures.




     (a) Promptly after receipt by an Indemnitee of notice of the commencement of any action
that may result in a claim for indemnification pursuant to this Article 4, the Indemnitee
shall notify the Indemnitor in writing within 30 days thereafter; provided, however, that
any omission to so notify the Indemnitor will not relieve it of any liability for
indemnification hereunder as to the particular item for which indemnification may then be
sought (except to the extent that the failure to give notice shall have been materially
prejudicial to the Indemnitor) nor from any other liability that it may have to any
Indemnitee. The Indemnitor shall have the right to assume sole and exclusive control of the
defense of any claim for indemnification pursuant to this Article 4, including the choice
and direction of any legal counsel.




     (b) An Indemnitee shall have the right to engage separate legal counsel in any action
as to which indemnification may be sought under any provision of this Agreement and to
participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnitee unless (i) the Indemnitor has agreed in writing to pay such
fees and expenses, (ii) the Indemnitor has failed to assume the defense thereof and engage
legal counsel within a reasonable period of time after being given the notice required
above, or (iii) the Indemnitee shall have been advised by its legal counsel that
representation of such Indemnitee and other parties by the same legal counsel would be



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inappropriate under applicable standards of professional conduct (whether or not such
representation by the same legal counsel has been proposed) due to actual or potential
conflicts of interests between them. It is understood, however, that to the extent more
than one Indemnitee is entitled to engage separate legal counsel at the Indemnitor’s expense
pursuant to clause (iii) above, the Indemnitor shall, in connection with any one such action
or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys at any time for all such Indemnitees having
the same or substantially similar claims against the Indemnitor, unless but only to the
extent the Indemnitees have actual or potential conflicting interests with each other.




     (c) The Indemnitor shall not be liable for any settlement of any action effected
without its written consent, but if settled with such written consent, or if there is a
final judgment against the Indemnitee in any such action, the Indemnitor agrees to indemnify
and hold harmless the Indemnitee to the extent provided above from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.



ARTICLE 5




DISPUTES




     5.1 Resolution of Disputes. The Parties shall in good faith attempt to resolve
promptly and amicably any dispute between the Parties arising out of or relating to this Agreement
(each a “Dispute”) pursuant to this Article 5. The Parties shall first submit the Dispute to the
Fertilizer Company Representative and the Refinery Company Representative, who shall then meet
within fifteen (15) days to resolve the Dispute. If the Dispute has not been resolved within
forty-five (45) days after the submission of the Dispute to the Fertilizer Company Representative
and the Refinery Company Representative, the Dispute shall be submitted to a mutually agreed
non-binding mediation. The costs and expenses of the mediator shall be borne equally by the
Parties, and the Parties shall pay their own respective attorneys’ fees and other costs. If the
Dispute is not resolved by mediation within ninety (90) days after the Dispute is first submitted
to the Refinery Company Representative and the Fertilizer Company Representative as provided above,
then the Parties may exercise all available remedies. The foregoing procedure shall not prohibit a
Party from seeking injunctive relief to enforce use of the Water Rights or the supply of Raw Water
as contemplated herein while any such Dispute or any such proceedings are pending.



     5.2 Multi-Party Disputes. The Parties acknowledge that they or their respective
affiliates contemplate entering or have entered into various additional agreements with third
parties that relate to the subject matter of this Agreement and that, as a consequence, Disputes
may arise hereunder that involve such third parties (each a “Multi-Party Dispute”). Accordingly,
the Parties agree, with the consent of such third parties, that any such Multi-Party Dispute, to
the extent feasible, shall be resolved by and among all the interested parties consistent with the
provisions of this Article 5.



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ARTICLE 6




COOPERATION AND SUSPENSIONS




     6.1 Cooperation. Fertilizer Company and Refinery Company each hereby agree reasonably
to cooperate with the other in good faith in implementing and administering this Agreement.
Refinery Company and Fertilizer Company shall cause their respective personnel located at the
Refinery and the Fertilizer Plant to fully cooperate with, and comply with the reasonable requests
of, the other Party and its employees, agents and contractors to support such other Party’s
operations in a safe and efficient manner; provided, however, that nothing in this Article 6 shall
require the expenditure of any monies other than may otherwise be required elsewhere in this
Agreement.



     6.2 Suspension of Supply.




     (a) Temporary Suspension for Repairs/Maintenance. The supply of Raw Water by
the Water Facilities may be temporarily suspended by the Refinery Company for such periods
of time as are necessary to carry out scheduled maintenance or necessary repairs or
improvements to the Water Facilities. In connection with any such temporary suspension,
Refinery Company may elect to reduce, interrupt, allocate, alter or change the supply of Raw
Water required to be provided hereunder, provided that, except in the case of emergencies,
the Refinery Company shall deliver not less than thirty (30) days prior written notice to
the Fertilizer Company of any planned temporary suspension, including relevant details
relating to the proposed reduction, interruption, allocation, alteration or change in the
supply of Raw Water as a result of such temporary suspension. Upon the occurrence and
during the continuation of such a temporary suspension, the parties shall cooperate to
attempt to minimize or reduce the effect of such temporary suspension on each Party’s
operations.




     (b) Emergency Repairs. Refinery Company shall provide notice to the Fertilizer
Company as soon as reasonably possible (and in any event within twenty-four (24) hours) in
the event of any emergency repair or unplanned required maintenance that is affecting or
will affect provision of the Raw Water hereunder. Refinery Company shall use commercially
reasonable efforts to complete any such emergency repairs in a timely manner and to resume
the provision of Raw Water hereunder as soon as reasonably practicable.




     (c) Operation by Fertilizer Company. In the event that the provision of Raw
Water hereunder is suspended due to any inability or failure of Refinery Company (other than
in connection with any suspensions contemplated in Sections 6.2(a) or (b) above) to provide
Raw Water in accordance with the terms of this Agreement, then Fertilizer Company shall,
during the period of such suspension, have the right to access the Water Facilities for the
purpose of operating the Water Facilities in a manner consistent with the operation thereof
as otherwise contemplated in this Agreement.



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ARTICLE 7




LIMITATION OF LIABILITY




     In no event, whether based on contract, indemnity, warranty, tort (including negligence),
strict liability or otherwise, shall either Party, its employees, suppliers or subcontractors, be
liable for loss of profits or revenue or special, incidental, exemplary, punitive or consequential
damages; provided, however, that the foregoing limitation shall not preclude recourse to any
insurance coverage maintained by the Parties.



ARTICLE 8




AUDIT AND INSPECTION RIGHTS




     Refinery Company and Fertilizer Company shall each (“Requesting Party”) have the right, upon
reasonable written notice to the other Party (“Other Party”), to audit, examine and inspect, at
reasonable times and locations, all documentation, records, equipment, facilities, and other items
owned or under the control of the Other Party that are reasonably related to the Water Rights or
Water Facilities, solely for the purpose of confirming the measurement or pricing of, or tolerances
or specifications of, any Feedstocks or Services, confirming compliance and performance by the
Other Party, or exercising any rights of the Requesting Party, under this Agreement.



ARTICLE 9




TERM




     The term of this Agreement shall continue until the earlier of: (a) the separation of the
Water Facilities and the Water Rights into two independent sets of facilities and contractual
arrangements for the benefit of Fertilizer Company and Refinery Company as provided in Section 3.6,
or (b) the written agreement of Refinery Company and Fertilizer Company to terminate this
Agreement. The Parties agree that upon and after any such termination of this Agreement, any
liabilities of any Party arising from any act, breach or occurrence prior to termination will
remain with such Party, and the Parties’ rights and obligations under ARTICLES 4, 5, 7, 8, 10, 11,
12, and 14 will survive such termination of this Agreement.



ARTICLE 10




ASSIGNMENT




     This Agreement shall extend to and be binding upon the Parties hereto, their successors and
permitted assigns. Either Party may assign its rights and obligations hereunder solely (i) to an
affiliate under common control with the assigning Party, provided that any such assignment shall
require the prior written consent of the other Party hereto (such consent not to be unreasonably
withheld or delayed), and provided that the applicable assignee agrees, in a written instrument
delivered to (and reasonably acceptable to) such other Party, to be fully bound hereby, or (ii) to
a Party’s lenders for collateral security purposes, provided that in the case of any



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such assignment each Party agrees (x) to cooperate with the lenders in connection with the
execution and delivery of a customary form of lender consent to assignment of contract rights and
(y) any delay or other inability of a Party to timely perform hereunder due to a restriction
imposed under the applicable credit agreement or any collateral document in connection therewith
shall not constitute a breach hereunder. In addition, each Party agrees that it will assign its
rights and obligations hereunder to a transferee acquiring all or substantially all of the equity
in or assets of the assigning Party related to the Refinery or Fertilizer Plant (as applicable),
which transferee must be approved in writing by the non-assigning Party (such approval not to be
unreasonably withheld or delayed) and must agree in writing (with the non-assigning Party) to be
fully bound hereby.



ARTICLE 11




GOVERNING LAW AND VENUE




     THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
KANSAS WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SAID STATE. THE PARTIES AGREE THAT ANY
ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT MAY BE MAINTAINED IN ANY COURT OF COMPETENT
JURISDICTION LOCATED IN THE STATE OF KANSAS, AND EACH PARTY AGREES TO SUBMIT PERSONALLY TO THE
JURISDICTION OF ANY SUCH COURT AND HEREBY WAIVES THE DEFENSES OF FORUM NON-CONVENIENS OR IMPROPER
VENUE WITH RESPECT TO ANY ACTION BROUGHT IN ANY SUCH COURT IN CONNECTION WITH THIS AGREEMENT.



ARTICLE 12




NOTICE




     Any notice, request, correspondence, information, consent or other communication to any of the
Parties required or permitted under this Agreement will be in writing (including telex, telecopy,
or facsimile) and will be given by personal service or by telex, telecopy, facsimile, overnight
courier service, or certified mail with postage prepaid, return receipt requested, and properly
addressed to such Party and shall be effective upon receipt. For purposes hereof the proper
address of the Parties will be the address stated beneath the corresponding Party’s name below, or
at the most recent address given to the other Parties hereto by notice in accordance with this
Article:



	 	 	 
	 	If to Refinery Company, to:

	 
	 	 
	 
	 	Coffeyville Resources Refining & Marketing, LLC
	 
	 	 
	 
	 	 	 
	 	 
	 
	 	 	 
	 	Attention: Chief Executive Officer
	 






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	If to Fertilizer Company, to:
	 	 
	 
	 	 
	Coffeyville Resources Nitrogen Fertilizers, LLC
	 	 
	 
	 	 
	 	 	 
	 
	 	 
	 	 	 
	Attention: Chief Executive Officer
	 	 





or such other addresses as either Party designates by registered or certified mail addressed to the
other Party.




ARTICLE 13




EXHIBITS




     Exhibit A attached hereto is incorporated herein and made a part of this Agreement by
reference thereto.



ARTICLE 14




MISCELLANEOUS




     14.1 Headings. The headings used in this Agreement are for convenience only and shall
not constitute a part of this Agreement.



     14.2 Independent Contractors. The Parties acknowledge and agree that neither Party,
by reason of this Agreement, shall be an agent, employee or representative of the other with
respect to any matters relating to this Agreement, unless specifically provided to the contrary in
writing by the other Party. This Agreement shall not be deemed to create a partnership or joint
venture of any kind between Refinery Company and Fertilizer Company.



     14.3 Amendments and Waiver. This Agreement may not be amended, modified or waived
except by a writing signed by all Parties to this Agreement that specifically references this
Agreement and specifically provides for an amendment, modification or waiver of this Agreement. No
waiver of or failure or omission to enforce any provision of this Agreement or any claim or right
arising hereunder shall be deemed to be a waiver of any other provision of this Agreement or any
other claim or right arising hereunder.



     14.4 Construction and Severability. Every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and in accordance with industry
standards and not strictly for or against either Party. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement.



     14.5 Waiver. The waiver by either Party of any breach of any term, covenant or
condition contained in this Agreement shall not be deemed to be a waiver of such term, covenant or
condition or of any subsequent breach of the same or of any other term, covenant or condition



12









 







contained in this Agreement. No term, covenant or condition of this Agreement will be deemed
to have been waived unless such waiver is in writing.



     14.6 Governing Principles. It is the general intent and agreement of the Parties
that, except as otherwise expressly provided in this Agreement, Fertilizer Company shall pay the
cost of performing its obligations and exercising its rights hereunder, and Refinery Company shall
pay the cost of performing its obligations and exercising its rights hereunder.



     14.7 Third-Party Beneficiaries. Except as expressly provided herein, none of the
provisions of this Agreement are intended for the benefit of any Person except the Parties and
their respective successors and permitted assigns.



     14.8 Specific Performance. Recognizing that remedies at law, for any breach or
threatened breach by a Party hereunder that adversely affects use of the Water Rights or the supply
of Raw Water as contemplated herein, will be inadequate and each Party, in addition to such other
remedies that may be available to it at law or in equity, will be entitled to injunctive relief,
including a mandatory injunction, to be issued by any court of competent jurisdiction ordering
compliance with this Agreement or enjoining and restraining a Party, and each and every person and
entity acting in concert or participation with such Party, from such breach or continuation of such
breach and, in addition thereto, such Party will, subject to Article 7, be liable to the other
Party for all ascertainable damages, including costs and reasonable attorneys’ fees, sustained by
such other Party by reason of such breach or threatened breach.



     14.9 Entire Agreement. This Agreement, including all Exhibits hereto, constitutes the
entire, integrated agreement between the Parties regarding the subject matter hereof and supersedes
any and all prior and contemporaneous agreements, representations and understandings of the
Parties, whether written or oral.



     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first set
forth above.



	 	 	 	 	 	 	 	 	 
	COFFEYVILLE RESOURCES	 	 	 	COFFEYVILLE RESOURCES 
	REFINING & MARKETING, LLC	 	 	 	NITROGEN FERTILIZERS, LLC
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 





13









 






EXHIBIT A




[see attached diagrams of the Verdigris River, the River Intake Structure,

the River Water Pumps, the Y Intersection, and other Raw Water piping and

facilities included in the “Water Facilities"]





A-1