BULK REFINED AND BLEACHED
SOYBEAN OIL SUPPLY AGREEMENT
This BULK REFINED AND BLEACHED SOYBEAN OIL SUPPLY AGREEMENT (this
"AGREEMENT"), dated as of January 15, 2002, by and between South Dakota Soybean
Processors, 000 Xxxxxxx Xxx., Xxxxx, Xxxxx Xxxxxx 00000, a South Dakota
co-operative association (hereinafter referred to as "SELLER") and ACH Food
Companies, Inc., 0000 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, a
Delaware corporation (hereinafter referred to as "BUYER").
WITNESSETH:
WHEREAS, BUYER desires to obtain from SELLER a continuing supply of
refined, bleached soybean oil (the "Product" or "Products") as more particularly
described in the attached Exhibit A to this Agreement during the period
hereinafter described, and SELLER desires to sell the Product to the BUYER on
the terms hereafter provided.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, the parties agree as follows:
1. PRODUCTS
(A) Subject to the terms and conditions of this Agreement, SELLER shall
sell the Products to BUYER, and BUYER shall purchase the Products from SELLER.
It is the intent of the parties that the Products will be produced by SELLER at
the Facility (as defined in Section 3(A) hereof); however, if the SELLER is
unable to meet its requirements under this Agreement, SELLER shall obtain the
Products from another source acceptable to BUYER, which acceptance shall not be
unreasonably withheld, and all other terms and provisions of this Agreement
including pricing and delivery shall remain the same.
(B) All items as detailed in Exhibit A "Specifications for Products"
are "At Time of Delivery" or at "Time of Shipment" as noted in Exhibit A.
Specifications may be amended at any time by mutual consent of BUYER and SELLER
following a documented change to Exhibit A.
(C) SELLER certifies that the Products meet Circle U Kosher
certification requirements and shall provide all paperwork reasonably required
by BUYER.
(D) BUYER will accept Products on the basis of accompanying Certificate
of Analysis after running basic analysis on Products, such as Peroxide Value,
Free Fatty Acid, Color and Iodine Value. It is understood that BUYER will
immediately use the Products in further processing or shipments to its
customers.
(E) In consideration of this Agreement and the sale of the Equipment (as
defined in the Purchase Agreement), SELLER agrees that during the Term, the
BUYER shall be the sole and exclusive buyer of the Product from the SELLER for
use in food application. SELLER may from
time to time sell excess crude or crude de-gummed soybean oil to persons other
than BUYER, provided that the SELLER meets its obligation to provide Product to
the Buyer in the volumes provided in this Agreement.
2. VOLUMES
(A) During the Term, BUYER will purchase from SELLER, and SELLER will
sell to BUYER, no less than 290 million pounds of the Product during each
Agreement Year (the "Minimum"). The term "Agreement Year", as used in this
Agreement, shall mean the 12-month period commencing on the First Shipment Date
(as defined in Section 8(A) hereof), and each 12-month period thereafter during
the Term. During the term of the first year the SELLER's sales minimum of 290
million pounds will be adjusted to reflect actual shipments made during the
first three months after the First Shipment Date.
(B) BUYER will provide SELLER with anticipated annual demands for the
Product as set forth in Exhibit B. SELLER agrees that it shall be able to supply
up to FIVE MILLION FIVE HUNDRED AND SEVENTY THOUSAND (5,570,000) pounds of the
Product per week (or TWO HUNDRED NINETY MILLION (290,000,000) pounds of the
Product per Agreement Year) should BUYER order such volumes. BUYER agrees to
provide SELLER with at least fourteen (14) days prior written notice of a
Purchase Order in excess of FOUR MILLION (4,000,000) pounds of the Product in
any week.
(C) If during any Agreement Year BUYER does not purchase (as defined in
section 4A hereof) at least 270 million pounds of Product, BUYER shall pay to
SELLER, within thirty (30) days after expiration of such Agreement Year, an
amount equal to the product of $0.0023 multiplied by the positive difference
remaining after subtracting from 270 million pounds the amount of Product
purchased by BUYER for such Agreement Year.
(D) If during any calendar month the BUYER does not purchase at least
22.5 million pounds of the Product, the SELLER may sell refined and bleached
soybean oil in a volume equivalent to the volume of the Unpurchased Product upon
a five (5) day written notice to BUYER. Within such five (5) day period, BUYER
may, upon written notice to SELLER, elect to purchase any of the Unpurchased
Product. SELLER shall sell the Unpurchased Product at its market price. If the
Unpurchased Product is sold for less than the purchase price for the Product as
set forth in Exhibit B, BUYER shall pay SELLER the shortfall within twenty-five
(25) days from the date of SELLER's invoice therefor. "Unpurchased Product"
means refined and bleached soybean oil in an amount (expressed in pounds) equal
to the positive difference remaining after subtracting from 22.5 million pounds
the number of pounds of Product purchased by BUYER during the calendar month in
question.
3. PRODUCTION FACILITY
(A) SELLER intends to fulfill its obligations under this Agreement by
refining and bleaching soybean oil in a facility (the "Facility") to be
constructed and owned by SELLER and to be located in Volga, South Dakota. SELLER
shall commence construction of the Facility promptly after execution and
delivery of this Agreement by BUYER and shall achieve Substantial
Completion of the Facility (as hereinafter defined) no later than September 1,
2002 (the "Completion Date"). "Substantial Completion of the Facility means (i)
completion of the construction of the Facility (including without limitation
installation of all trade fixtures and equipment, including without limitation
the Equipment, as defined in Section 3(B) hereof) substantially in accordance
all applicable laws and ordinances, such that SELLER is capable of operating an
RB soybean oil refinery at the Facility for production of the Product in the
volumes required by this Agreement, and (ii) the issuance by the governmental
authority having jurisdiction of a certificate of occupancy or similar
certificate or permit for the Facility. The Completion Date shall be extended
one day for each day Substantial Completion of the Facility is delayed by an
Excusable Cause or a Labor Cause, (as defined in Section 14(N) hereof), provided
that in no event shall the Completion Date be extended for any reason beyond
October 1, 2002. If SELLER fails to achieve Substantial Completion of the
Facility on the Completion Date, as the same may be extended in accordance with
the foregoing provisions, BUYER may thereafter terminate this Agreement
effective thirty (30) days after the Completion Date by giving written notice
thereof to SELLER within such thirty (30) day period. If BUYER so terminates
this Agreement, then within fifteen (15) days after the effective date of such
termination, SELLER shall pay BUYER an amount equal to the Fair Market Value (as
defined in Section 17 hereof) of the Equipment. If BUYER does not so terminate
this Agreement, then until such time as SELLER achieves Substantial Completion
of the Development (the "Delay Period"), SELLER shall be responsible for BUYER's
Cost to Cover (as defined in Section 6(D) hereof) with respect to the Product
that BUYER would have ordered from SELLER during the Delay Period.
(B) BUYER is the owner of certain soybean oil refining equipment and
related fixtures located at BUYER's facility in Columbus, Ohio (the "Ohio
Facility"), as more fully described in Exhibit C attached hereto and made a part
hereof (the "Equipment"). Upon execution and delivery by SELLER and BUYER, BUYER
shall sell the Equipment to SELLER, and SELLER and BUYER shall execute and
deliver to each other counterpart copies of the Purchase Agreement in the form
attached hereto as Exhibit D. SELLER shall provide BUYER no less than fifteen
(15) days' prior written notice (the "Equipment Removal Notice") of SELLER's
desire to remove the Equipment from its current location and install the
Equipment at the Facility. BUYER shall allow SELLER such access as SELLER shall
reasonably require to remove the Equipment. Notwithstanding the foregoing, if
BUYER sells the Ohio Facility prior to BUYER's receipt of the Equipment Removal
Notice, SELLER shall be obligated to remove the Equipment from the Ohio Facility
no later than thirty (30) days after receipt of written notice from BUYER of
such sale.
4. PRODUCT SCHEDULING
(A) On each Wednesday during the term of this Agreement, BUYER shall
deliver to SELLER BUYER's standard form of purchase order ("Purchase Order") for
the shipment week commencing on the following Monday, and a good faith forecast
of BUYER'S purchases of Product for the following three weeks. Each Purchase
Order will specify the quantity for the following week. BUYER may designate
delivery destinations other than those listed in Exhibit B only by mutual
written consent of the parties and only after appropriate freight adjustments
have been agreed upon by both parties. For all purposes under this Agreement,
BUYER shall be deemed to "purchase" the Product upon delivery of a Purchase
Order as provided in this paragraph.
(B) Not less than once every three months during the term of this
Agreement, BUYER shall furnish SELLER a good faith forecast of its Product
requirements for the next six (6) months. Such forecasts and the estimates given
with the Purchase Orders are not firm commitments of BUYER to order or purchase
Products, but are provided only as a guide to assist SELLER in scheduling
production.
5. WARRANTIES REGARDING PRODUCTS
(A) LIMITED WARRANTIES. SELLER warrants that the Products sold under
this Agreement shall conform in all material respects to each of the following:
(i) the specifications attached hereto as Exhibit A, as amended from time to
time by agreement of the parties; (ii) all current good manufacturing practices;
and (iii) the Food and Drug Guarantee attached hereto as Exhibit E.
(B) CERTIFICATION OF ANALYSIS. Certificates of Analysis will be faxed to
BUYER's facilities prior to the shipment of rail car and shall specify values
for the first ten tests contained in the specifications. All tests shall be run
according to Association of Oil Chemists Society ("AOCS") methods unless
otherwise agreed to in writing by both parties. A referee laboratory agreed to
by both parties shall settle discrepancies in Product quality results.
(C) COMPLIANCE WITH LAWS. SELLER warrants that it shall comply at all
times with all federal, state and local laws, rules, regulations, ordinances
codes, and orders applicable to SELLER's performance of its obligations
hereunder, as well as with other legal obligations set forth in this Agreement.
6. SHIPPING
(A) SELLER shall be responsible for tracking, managing and paying for
freight from time of shipment to delivery to the applicable BUYER's facility.
Shipment of the Product will be within one day of the date specified on the
Purchase Order. All freight shall be prepaid F.O.B. BUYER's facility with title
and risk of loss transferred to BUYER upon BUYER's receipt of the Product.
SELLER will deliver the Product to the BUYER's facility in its own rail cars;
however, if conditions warrant, upon mutual agreement alternate transportation
methods will be allowed.
(B) DEFECTIVE PRODUCTS. If any Products shipped to a BUYER facility fail
to comply with the provisions of Section 5(A) ("Defective Product"), the BUYER
facility may refuse to accept delivery of such Defective Product and such
Defective Product shall be set aside for inspection by SELLER and SELLER agrees
to promptly replace any Defective Product. Each BUYER facility shall handle such
Defective Products in accordance with SELLER's reasonable instructions so as to
minimize the extent of any such costs. If, upon reinspection of such Product, it
is determined that such Product was not Defective Product, BUYER shall reimburse
SELLER for all reasonable costs incurred by SELLER in replacing such Product,
including without limitation, shipping and handling costs.
(C) NORMAL SHIPMENT TIMES. Each Purchase Order shall specify the
shipment date and the desired delivery date (hereinafter referred to as "DDD").
SELLER shall ensure that the Product arrives at BUYER facilities on the DDD and
shall be liable to BUYER for any Cost of Cover (as
defined in Section 6(D) below) BUYER incurs as a result of SELLER's failure to
ship the Product according to the Purchase Order. In the event SELLER does not
ship at designated times (using shipment to arrive beyond DDD), SELLER shall be
responsible for substituting truck deliveries at SELLER's expense. In the event
the railroad fails to deliver a railroad car to BUYER and shipments were made on
time in accordance with BUYER's Purchase Order, SELLER shall work with BUYER to
arrange for timely truck deliveries to alleviate BUYER inventory shortfall.
BUYER shall be responsible for truck freight differentials.
In the event that BUYER desires to make a change to the shipment date, DDD,
or other requirements of the Purchase Order on less than seven (7) days notice
to SELLER, SELLER shall use diligent efforts to accommodate such change provided
that BUYER shall reimburse SELLER for any additional costs incurred by SELLER as
a result of such accommodation. SELLER shall advise BUYER whether or not it can
meet the revised ship date. If it advises that it can meet the ship date and
then fails to do so, it shall reimburse BUYER for any Cost to Cover as
referenced in Section D below. If SELLER advises it cannot meet the revised ship
date, then BUYER shall be free to cancel such order and purchase the Product
elsewhere, and SELLER shall not be responsible for BUYER's Cost to Cover.
(D) If SELLER notifies BUYER that it is unable to deliver Product on the
DDD Specified in the Purchase Order, and such notice does not include SELLER's
undertaking to ship such Products by an alternate method with reasonably
acceptable delivery date, BUYER shall be free to cancel such order (either by
written notice to SELLER or by prior oral notice to SELLER followed by written
confirmation of same) and purchase such Product (the "Covered Product") from any
other reasonable source. In such event, SELLER shall pay to BUYER, upon receipt
of BUYER'S invoice therefor, an amount equal to the excess of the price to BUYER
of such Covered Product over the price which BUYER would have paid had it
purchased the Covered Product from SELLER pursuant to this Agreement (the "Cost
to Cover") plus reasonable, documented out-of pocket costs incurred by BUYER as
a result of SELLER's failure to deliver Product such as:
(i) any BUYER customer charges for: (a) downtime due to
late/short shipments; (b) packaging line downtime; (c) overtime; and
(ii) BUYER's packaging line downtime; overtime; and customer
charges for late/short shipments; and
(iii) LTL freight charges and additional freight charges.
(E) DEMURRAGE. SELLER has the right to charge demurrage br those rail
cars unreasonably held beyond five (5) days at the rate of $30 per rail car per
day beginning on day six (6), provided rail cars arrive on a scattered basis as
shipped. BUYER shall not be responsible for, and SELLER shall pay when due, all
demurrage and other charges resulting from "slamming" by the carrier.
7. PRODUCT PRICING AND PAYMENT TERMS
(A) PRICING FOR PRODUCTS. Refining Premiums as shown in Exhibit B
(attached hereto and incorporated herein by reference) are guaranteed for a
period of five (5) years from First Shipment Date (as defined in Section 8(A)
hereof. For the final three (3) years of the Initial Term (as defined in Section
8(A) hereof), Refining Premiums shall be determined in accordance with Section
8(A) as if such final three (3) years were a Renewal Term, provided that
negotiations with respect to Refining Premiums shall commence no later than six
(6) months prior to the end of the first five (5) year period of the Initial
Term. SELLER has the right to request an increase in Refining Premiums for the
final three (3) years of the Initial Term, and such a request shall be made no
later than six (6) months prior to the end of the first five (5) year period of
the Initial Term. BUYER and SELLER will enter into good faith negotiations and
any such increase shall only be applicable to substantiated increases in
operating costs, such as costs of labor, energy, supplies and material, safety
and environmental, or landfill, or a difference in the value of refined bleached
byproducts (such as lecithin and soapstock). In the event the parties are unable
to agree on any price increases prior to the end of the first five (5) year
period of the Initial Term, then the price in effect for the Products in the
preceding year will continue in effect for the succeeding year, at the end of
which this Agreement shall automatically terminate.
(B) PAYMENT TERMS. SELLER shall invoice BUYER for Products upon shipment
thereof, and such invoice shall be due and payable twenty-five (25) days from
the date of the invoice.
8. TERM, EVENTS OF DEFAULT AND TERMINATION
(A) LENGTH OF TERM. The term of this Agreement (the "Initial Term")
shall commence on the date of signature of this Agreement by both parties, and
shall expire eight (8) years after the date of the first shipment of Product
("First Shipment Date"), unless terminated earlier in accordance with the
provisions of this Agreement, and shall be renewable by BUYER for five (5)
subsequent periods of three (3) years each. SELLER will confirm the First
Shipment Date in writing within fifteen (15) days after the date of such first
shipment. BUYER may renew this Agreement by giving SELLER no less than eighteen
(18) months prior written notice. Upon SELLER's receipt of such notice, SELLER
and BUYER shall begin to negotiate in good faith with respect to the applicable
three-year renewal period ("Renewal Term"). Such negotiations shall continue for
a period of not less than six (6) months, unless the parties reach agreement
prior to the expiration of such six (6) month period. The Initial Term, as the
same may be extended by one or more of the Renewal Terms, is referred to herein
as the "Term." In the event the parties are unable to reach agreement at the end
of such six (6) month period, then the price in effect in the preceding year
will continue in effect for the succeeding year, at the end of which, this
Agreement shall automatically terminate.
(B) EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default hereunder:
(i) A material breach by the other party of any of the terms or
conditions of this Agreement which (a) is not corrected within thirty (30)
days after receipt of written
notification thereof, if correctable within such thirty (30) days; or (b)
if it is not correctable within such thirty (30) days, the correction of
which is not initiated within such thirty (30) day period and thereafter
diligently pursued until completed.
(ii) BUYER'S failure to pay any amount due SELLER, and the
continuance of such failure for thirty (30) days after written notice to
BUYER.
(iii) The entry of an "Order for Relief" naming the other party as
a "Debtor" under Title 11 of the United States Code or upon the entry of a
decree or order by a court having competent jurisdiction in respect to any
petition filed or action respecting a party directly involved in a
reorganization, arrangement, creditors composition, readjustment,
liquidation, dissolution, bankruptcy, or similar relief under any other
present or future United States or other statute, law or regulation,
whether or not resulting in the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official, any
such decree or order is in effect for a period of forty-five (45)
consecutive days; or insolvency, or similar laws affecting the enforcement
of creditors' rights generally and subject to general principles of equity.
(iv) The making by the other party of an assignment for the
benefit of creditors, or the admission by such party in writing of its
inability to pay its debts generally as they become due, or the taking of
action by a party in furtherance of any such action.
(C) EFFECT OF TERMINATION ON ACCRUED RIGHTS. Upon the occurrence of an
Event of Default, the non-defaulting party shall, subject to Section 14(M)
below, be entitled to terminate this Agreement and pursue any remedy provided in
law or equity, including injunctive relief and the right to recover any damages
it may have suffered by reason of such Event of Default.
Upon termination of this Agreement, all rights, obligations, and causes of
action accruing hereunder prior to such termination shall survive and the
provisions of this Agreement shall continue to be controlling for the purpose of
determining the rights of the parties hereto with respect to the subject matter
hereof.
(D) EVENT OF DEFAULT BY SELLER. Upon the occurrence of an Event of
Default by SELLER, an amount equal to the unamortized Fair Market Value of the
Equipment shall become immediately due and payable by SELLER to BUYER without
notice or demand. Such amount shall constitute additional purchase price of the
Equipment and shall not constitute a penalty. The unamortized Fair Market Value
of the Equipment shall be calculated as of the date of occurrence of such Event
of Default. The Fair Market Value shall be amortized, using a straight line
method, over the first five Agreement Years, without interest.
9. REPRESENTATIONS BY SELLER
SELLER hereby represents and warrants to BUYER that:
(A) SELLER is a co-operative association duly organized in the State of
South Dakota, and is duly qualified to transact business in South Dakota, and is
in good standing under the laws of the states in which it is currently or
hereafter required to be so qualified.
(B) This Agreement has been duly executed and delivered by SELLER and
constitutes the legal, valid, and binding obligation of SELLER, enforceable
against SELLER in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditor's rights generally and subject to
general principles of equity.
10. REPRESENTATION OF BUYER
BUYER hereby represents and warrants to SELLER that:
(A) BUYER is a corporation duly organized, validly existing, and in good
standing under the laws of Delaware, and is duly qualified to transact business
as a foreign corporation, and is in good standing under the laws of the states
in which it is currently or hereafter required to be so qualified.
(B) This Agreement has been duly executed and delivered by BUYER and
constitutes the legal, valid, and binding obligation of BUYER enforceable
against BUYER in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally and subject to
general principles of equity.
11. RIGHT OF INSPECTION
(A) To the extent not in violation of any confidentiality agreement to
which SELLER is a party, BUYER or its authorized representatives shall have the
right to audit and inspect those portions of SELLER's facility used to refine
and bleach Products hereunder and to review SELLER's operational records
specifically pertaining to the Products and services hereunder and only to the
extent necessary to determine compliance with the terms of this Agreement.
BUYER's representative shall have access, during SELLER's normal business hours
and under reasonable circumstances, including prior notice (which notice shall
include communications with SELLER regarding BUYER's concern), to only those
portions of the storage, production, and other facilities of SELLER which are
involved in the production of Product hereunder. At SELLER's option, BUYER's
representative shall be accompanied by a SELLER employee at all times while at
or in any of SELLER's facilities. If such inspection and or review by BUYER
reveals that the processes, procedures, practices or the like used by SELLER
with respect to its services hereunder fail to conform to appropriate procedures
and processes, SELLER shall immediately take appropriate corrective actions
(which may include suspension of SELLER'S services hereunder) for those items
which represent a public health or safety issue and shall promptly take
appropriate corrective actions (which may include suspension of SELLER'S
services hereunder) for those items which do not represent a public health or
safety issue, at BUYER's direction, until SELLER can show to BUYER's
satisfaction that its non-conforming activities have been corrected.
(B) SANITATION AUDITS. SELLER shall make available to BUYER, at BUYER'S
request, the results of any sanitation audits of any facility used by SELLER to
process Product hereunder made by or for SELLER during the term of this
Agreement. SELLER shall notify BUYER immediately of any sanitation audits which
indicate the presence of listeria monocytogenes, salmonella, E. Coli or other
bacteriological presence in a facility used to process Product or in any of its
product during the term of this Agreement. SELLER shall also inform BUYER
promptly but in no event later than forty-eight (48) hours of any inquiry,
investigation, inspection of any facility used by SELLER to process Product made
by any federal, state, or local governmental agency that could have an adverse
effect on the ability of SELLER to perform its obligations under this Agreement.
SELLER shall provide BUYER with a summary of each report related thereto, and
SELLER shall allow BUYER and its representatives access to such reports for
visual review only.
(C) NO DUTY TO INSPECT. BUYER shall be under no obligation to undertake
such inspection and BUYER's inspection or failure to inspect the Product or
SELLER'S facilities used to process the Product shall not affect or release
SELLER from any of its obligations provided herein. None of the obligations of
SELLER with respect to the Product shall be affected or released by BUYER's
acceptance of delivery of Product or by any inspection thereof or by payment
therefore.
12. CONFIDENTIALITY
(A) SELLER'S OBLIGATIONS. SELLER shall regard as confidential and
proprietary the terms of this Agreement and all the information communicated to
it by BUYER in connection with this Agreement and clearly identified as
"Confidential and Proprietary" (which information shall at all times be the
property of BUYER). SELLER shall not, without BUYER's prior written consent, at
any time disclose any portion of such information to third parties. SELLER shall
disseminate such information to its employees, attorneys and auditors only on a
"need-to-know" basis.
Notwithstanding the foregoing, SELLER's obligations pursuant to this
Section 12(A) shall not apply to (i) information that, at the time of
disclosure, is, or after disclosure, becomes part of the public domain cither
than as a consequence of SELLER's breach, (ii) information that was known or
otherwise available to SELLER prior to the disclosure by BUYER or its
subsidiaries and/or affiliates, (iii) information disclosed by a third party
(other than a subsidiary and/or affiliate of BUYER) to SELLER after the
disclosure by BUYER, if such third party's disclosure neither violates any
obligation of such third party to BUYER nor is a consequence of SELLER's breach,
(iv) information that BUYER authorized in writing for release, (v) information
which SELLER can demonstrate was independently developed by SELLER or its
employees without use of or reliance on the confidential information disclosed
by BUYER, or (vi) information required to be disclosed by law or by any
governmental authority.
(B) BUYER'S OBLIGATIONS. BUYER shall regard as confidential and
proprietary the terms of this Agreement and information obtained as a result of
BUYER's inspection of SELLER's facilities pursuant to Section 11 hereof, and all
the information communicated to it by SELLER in connection with this Agreement
and clearly identified as "Confidential and Proprietary" (which information
shall at all times by the property of SELLER). BUYER shall not, without SELLER's
prior written consent, at any time disclose any portion of such information to
third parties. BUYER shall disseminate such information to its employees only on
a "need-to-know" basis.
Notwithstanding the foregoing, BUYER's obligations pursuant to this Section
12(B) shall not apply to (i) information that, at the time of disclosure, is, or
after disclosure, becomes part of, the public domain other than as a consequence
of BUYER's breach, (ii) information that was known or otherwise available to
BUYER prior to the disclosure by SELLER or its subsidiaries and/or affiliates,
(iii) information disclosed by a third party (other than a subsidiary or
affiliate of SELLER) to BUYER after the disclosure by SELLER, if such third
party's disclosure neither violates any obligations of such third party to nor
is a consequence of BUYER'S breach or (iv) information that SELLER authorizes in
writing for release, (v) information which BUYER can demonstrate was
independently developed by BUYER or its employees without use of or reliance on
the confidential information disclosed by SELLER, or (vi) information required
to be disclosed by law or any governmental authority.
(C) PUBLIC ANNOUNCEMENTS. Both parties agree to obtain prior written
consent of the other party as it relates to any press release or public
announcements with regards to the terms of this Agreement.
13. INDEMNIFICATION
(A) INDEMNIFICATION BY SELLER. Subject to the terms of this Agreement,
SELLER shall indemnify, defend, and hold BUYER, its affiliates and their
respective employees and agents, officers and directors (the "Buyer Indemnified
Parties") harmless from and against any and all demands, claims, actions, suits,
proceedings, judgments, assessments, cost, expenses, losses, damages,
liabilities, fines, and penalties (including, without limitation, reasonable
attorney's fees) (collectively, "Damages") suffered or incurred by any of the
BUYER Indemnified Parties as a result of (i) a breach of any representation,
warranty, covenant or agreement of SELLER hereunder; provided that in no event
shall SELLER have any responsibility to BUYER for any Damages arising because of
any act of SELLER which is in compliance with Section 4(A) or which is in
compliance with written instructions or written requests made by BUYER, and/or
(ii) any act or deed, whether by way of tort or contract, committed or omitted
by SELLER, its employees or agents, in the performance of this Agreement, except
for acts or deeds committed or omitted by SELLER in reliance on representations
and warranties made to SELLER by BUYER under this Agreement, or matters arising
from the negligence or willful misconduct of BUYER.
(B) INDEMNIFICATION BY BUYER. BUYER shall indemnify, defend, and hold
SELLER, its subsidiaries and affiliates and their respective officers,
directors, employees and agents (the "Seller Indemnified Parties") harmless from
and against any and all Damages suffered or incurred by any of the SELLER
Indemnified Parties as a result of (i) any breach of any representation,
warranty made by BUYER hereunder, or (ii) any act or deed, whether by way of
tort or contract, Agreement, except for acts or deeds committed or omitted by
BUYER in reliance on representations and warranties made to BUYER by SELLER
under this Agreement, or (iii) the use or sale of the Products by Buyer, whether
used or sold singly or in combination with other products, provided any such
Damages were not caused by SELLER's Defective Product or by SELLER's negligence
or willful misconduct.
14. MISCELLANEOUS
(A) INDEPENDENT CONTRACTOR. This Agreement shall not constitute or give
rise to a partnership or joint venture between the parties. All activities by
SELLER under the terms of this Agreement shall be carried on by SELLER as an
independent contractor and not as an agent for or employee of BUYER. No employee
of SELLER shall be deemed to be an employee of BUYER. All activities of BUYER
under the terms of this Agreement shall be carried on by BUYER as an independent
contractor and not as an agent for or employee of SELLER. No employee of BUYER
shall be deemed to be an employee of SELLER.
(B) AGREEMENT TO GOVERN. This Agreement (including the Attachments
hereto) sets forth the entire understanding and supersedes all prior and
contemporaneous oral and written agreements between the parties relating to the
subject matter contained herein, and merges all prior and contemporaneous
discussions between them. No party shall be bound by any definition, condition,
representations, warranty, covenant, or provisions other than as expressly
stated in this Agreement including the Attachments hereto or as subsequently
shall be set forth in writing and executed by SELLER and BUYER.
(C) SEVERABILITY. The parties expressly agree that it is not the
intention of any party to violate any public policy, statutory, or common laws,
rules, regulations, treaties or decision of any government or agency thereof. If
any provision of this Agreement is judicially or administratively interpreted or
construed as being so in violation, such provision shall be inoperative and the
remainder of this Agreement shall remain binding upon the parties hereto.
(D) NOTICES AND OTHER COMMUNICATIONS. All notices, demands, or requests
provided for or permitted to be given pursuant to this Agreement must be in
writing. All notices, demands and requests shall be given by personal delivery,
or transmitted by telecopy, or delivered to Federal Express or other reputable
overnight carrier for next business day delivery, charges billed to or prepaid
by shipper, or deposited in the United States mail, registered or certified with
return receipt requested, proper postage prepaid, addressed as follows:
IF TO BUYER:
ACH Food Companies, Inc.
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxx
Executive Vice President - Oil Products
IF TO SELLER:
South Dakota Soybean Processors
000 Xxxxxxx Xxx.
Xxxxx, XX
Attn: Xxxxxx Xxxxxxxxxxxx
Chief Executive Officer
Each notice, demand, or request shall be effective upon personal delivery,
or upon confirmation of receipt of the applicable telecopy, or one (1) business
day after delivery to a reputable overnight carrier in accordance with the
foregoing, or three (3) business days after the date on which the same is
deposited in the United States mail in accordance with the foregoing. Rejection
or other refusal to accept or the inability to deliver because of changed
address of which no notice was given shall not adversely impact the
effectiveness of any such notice, demand or request.
Any addressee may change its address for notices hereunder by giving
written notice in accordance with this section.
(E) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute one and the same agreement.
(F) LAW TO GOVERN. The validity, construction, and enforceability of
this Agreement shall be governed in all respects by the laws of the State of
Tennessee without regard to its conflict of laws rules. Both parties hereby
waive their respective rights to a trial by jury.
(G) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
successors and assigns. Except as provided herein, neither this Agreement nor
the rights or obligations of either party hereunder may be assigned except with
the written consent of the other party which shall not be unreasonably withheld.
(H) NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement expressed or
implied is intended to confer upon any person, other than the parties hereto and
their successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
(I) PAYMENT IN U.S. DOLLARS. All payments under this Agreement shall be
made in United States dollars.
(J) ATTACHMENTS. The Attachments referred to herein, and attached to
this Agreement, are incorporated herein by reference as if fully set forth in
the text hereof.
(K) MODIFICATION. The parties to this Agreement may, but only by mutual
written consent executed by the authorized officers of SELLER and BUYER, modify
or supplement this Agreement in such manner as may be mutually agreed upon by
them in writing.
(L) EXPENSES. Except as otherwise provided in this Agreement, each party
shall bear its own expenses incident to this Agreement and the transactions
contemplated hereby, including without limitation, all fees of counsel,
accountants, and consultants.
(M) DAMAGES. Subject to Section 6(D) hereof, neither party shall be
liable to the other party for any special, consequential or exemplary damages
(including lost or anticipated revenues or profits relating to the same) arising
from any claim relating to this Agreement.
(N) FORCE MAJEURE. Neither party hereto shall be liable for, or entitled
to terminate this Agreement for a failure to perform or a delay in performing
hereunder for reasons not within such parties reasonable control, including, but
not limited to, acts of God, acts of a public enemy, acts of civil or military
authority, civil disturbance, embargoes, acts of any person engaged in
subversive activity or sabotage, fires, floods, explosions, or other
catastrophies, epidemics, or quarantine restrictions (each, an "Excusable
Cause"). Strikes or other labor stoppages, slowdowns or disputes ("Labor Cause")
are expressly excluded from the definition of Excusable Cause and Labor Cause
shall not excuse SELLER's failure to perform or delay in performing. If SELLER
has not cured any Excusable Cause applicable to it within sixty (60) days, BUYER
may terminate this Agreement without further liability to either party. In no
event shall there be any Excusable Cause for the failure to meet a monetary
obligation. Each party shall use due diligence and all reasonable efforts to
cure any Excusable Cause preventing its performance and to resume performance.
In the event either party reasonably believes that its performance
hereunder may be delayed, impaired, or prevented by any Excusable Cause, such
party shall (a) promptly notify the other party of the possibility of such
Excusable Cause, and (b) if the notifying party is SELLER, use its commercially
reasonable efforts to assist BUYER in procuring Products from other sources,
provided in either case that such alternative arrangements are reasonably
acceptable to BUYER. Notwithstanding anything in this Agreement to the contrary,
SELLER shall pay, and indemnify and hold BUYER harmless from and against, the
Cost to Cover incurred by BUYER in connection with the procurement of Product
from other sources.
15. INSURANCE
SELLER shall maintain, throughout the term of this Agreement, at its
expense from a carrier reasonably satisfactory to BUYER,
commercial/comprehensive general liability insurance in a minimum amount of one
million dollars ($1,000,000) combined single limit, for bodily injury and
property damage. Such insurance shall include product liability and vendors
liability insurance, and contractual liability coverage with respect to the
liability of SELLER under Sections 6(D), 13(A) and 14(N) hereof.
16. DISPUTE RESOLUTION
In the event of any dispute or disagreement between BUYER and SELLER as to
the interpretation of any provision of this Agreement (or the performance of
obligations hereunder), the matter, upon written request of either party, shall
be referred to representatives of the parties for decision, each party being
represented by a senior executive officer who has no direct operational
responsibility for the matters contemplated by this Agreement (the
"Representatives"). The Representatives shall promptly meet in a good faith
effort to resolve the dispute. If the Representatives do not agree upon a
decision within thirty (30) calendar days after reference of the matter to them,
each BUYER and SELLER shall be free to exercise the legal remedies available to
it.
17. FAIR MARKET VALUE
"Fair Market Value" means $1,200,000.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf by its duly authorized officer on the day and year first
written above.
ACH Food Companies, Inc., a Delaware corporation
By: /s/ XXX XXXX
--------------------------------
Name: XXX XXXX
------------------------------
Title: EXECUTIVE VICE PRESIDENT
-----------------------------
Date: JANUARY 15, 2002
------------------------------
South Dakota Soybean Processors, a South Dakota co-operative association
By: /s/ XXXXXX X. XXXXXXXXXXXX
--------------------------------
Name: XXXXXX X. XXXXXXXXXXXX
------------------------------
Title: CHIEF EXECUTIVE OFFICER
-----------------------------
Date: JANUARY 15, 2002
------------------------------
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (the "Agreement") is made as of the 15th day of
January, 2002, by and between ACH FOOD COMPANIES, INC., a Delaware Corporation
("ACH"), having its principal place of business at 0000 Xxxxxxxx Xxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, and SOUTH DAKOTA SOYBEAN PROCESSORS, a South Dakota
co-operative association, having its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxxxx, Xxxxx Xxxxxx 00000 ("SDSP").
RECITALS
A. ACH, as Buyer, and SDSP, as Seller, have entered into that certain
Bulk Refined Bleached Soybean Oil Supply Agreement effective January 15, 2002
(the "Supply Agreement"), pursuant to which SDSP shall sell to ACH, and ACH
shall purchase from SDSP, refined, bleached ("RB") soybean oils.
B. SDSP intends to fulfill its obligation under the Supply Agreement by
producing refined and bleached RB soybean oils in a facility to be constructed
and owned by SDSP in Volga, South Dakota (the "South Dakota Facility").
C. ACH owns certain equipment used in producing and refining of RB
soybean oils as described in Exhibit A attached hereto and made a part hereof
(the "Equipment"), located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx (the "Ohio
Facility"). SDSP desires to purchase the Equipment from ACH, to move the
Equipment from the Ohio Facility and install the Equipment in the South Dakota
Facility.
D. ACH desires to sell the Equipment to SDSP, and SDSP desires to
purchase the Equipment from ACH, subject to the terms and conditions of this
Agreement.
AGREEMENTS
In consideration of Recitals set forth above, which by this reference are
made a part of this Agreement, the execution and delivery of the Supply
Agreement, the mutual covenants and agreements set forth below, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ACH and SDSP agree as follows:
1. SALE OF EQUIPMENT. ACH does hereby sell, assign, transfer and set
over the Equipment to SDSP and SDSP does hereby purchase the Equipment from ACH.
This Agreement shall constitute a xxxx of sale for the Equipment.
2. REPRESENTATIONS AND WARRANTIES OF ACH. ACH hereby represents and
warrants to SDSP that (a) ACH is the absolute owner of the Equipment, (b) the
Equipment is free and clear of all liens, charges and encumbrances, and (c) ACH
has full right, power and authority to sell the Equipment to SDSP. SDSP
ACKNOWLEDGES THAT ACH HAS MADE NO OTHER REPRESENTATION OR WARRANTIES OF ANY
KIND, EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, THE DESIGN,
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PERFORMANCE, OR CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. ACH SHALL HAVE NO LIABILITY TO SDSP FOR ANY CLAIM, LOSS OR
DAMAGE CAUSED BY OR ARISING IN ANY WAY IN CONNECTION WITH THE EQUIPMENT, NOR
SHALL ACH BE LIABLE FOR CLAIMS ARISING OF OR IN CONNECTION WITH ANY DEFICIENCY
OR DEFECT IN THE EQUIPMENT, THE USE OR PERFORMANCE OF THE EQUIPMENT, OR ANY LOSS
OF BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT RESULTING FROM
ANY OF THE FOREGOING.
3. ADDITIONAL PURCHASE PRICE. ACH and SDSP acknowledge and agree that
under the provisions of the Supply Agreement, in certain circumstances SDSP may
be obligated to pay additional amounts to ACH as and for the purchase price of
the Equipment (the "Additional Purchase Price").
4. SALE OF EQUIPMENT. During the Term (as defined in the Supply
Agreement) SDSP shall not sell the Equipment to any party, or relocate the
Equipment to another location, without the prior written consent of ACH, which
consent ACH shall not unreasonably withhold.
5. REMOVAL AND USE OF EQUIPMENT.
a. SDSP shall be entitled, or required by ACH, to remove the
Equipment from the Ohio Facility at such time and subject to the conditions
as provided in the Supply Agreement. SDSP shall, at SDSP's sole cost and
expense, remove the Equipment from the Ohio Facility. SDSP will take
reasonable steps for the removal of the equipment from the Ohio Facility to
avoid undue damage.
b. Following removal of the Equipment by SDSP, SDSP shall
install the Equipment in the South Dakota Facility. SDSP shall pay and
hereby assumes all transportation, installation, storage, rigging, and
in-transit insurance charts with respect to the Equipment.
6. MAINTENANCE AND REPAIR. During the Term, SDSP shall, at its sole
expense, maintain the Equipment in good operating order, repair, condition and
appearance and make all necessary repairs to protect the Equipment from
deterioration, other than normal wear and tear.
7. INDEMNITY. SDSP hereby agrees to assume liability for, and does
hereby agree to indemnify, protect and hold ACH harmless from and against any
and all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, or expenses (including legal fees and expenses), arising out of
the use of the Equipment following its removal from the Ohio Facility.
ACH hereby agrees to assume 1iability for, and does hereby agree to
indemnify, protect and hold SDSP harmless from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs, or expenses (including legal fees and expenses), arising from personal
injury or death caused by the Equipment prior to its removal from the Ohio
Facility.
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8. RISK OF LOSS INSURANCE. SDSP hereby assumes and shall bear the
entire risk of loss and damage of the Equipment from any and every cause
whatsoever as of the date the Equipment is delivered to SDSP. SDSP has obtained,
and shall maintain in full force and effect during the Term, a casualty
insurance policy insuring the Equipment, with a deductible in the amount of
$250,000 or such other amount as SDSP may reasonably require. During the Term,
SDSP shall deliver to ACH proof of the existence and/or renewal of such policy
of insurance.
9. DEFAULT REMEDIES. Upon a default by SDSP under this Agreement, ACH
shall have such remedies as provided to ACH in the case of a default by SDSP
under the Supply Agreement
10. MISCELLANEOUS.
a. This Agreement has been executed and delivered in the State
of Tennessee and shall be governed and construed for all purposes under and
in accordance with the laws of such state.
b. ACH and SDSP acknowledge that there are no agreements or
understandings, written or oral, between ACH and SDSP with respect to the
Equipment, other than as set forth herein and in the Supply Agreement.
c. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns (as may
be permitted hereunder).
d. All notices, consents or requests desired or required to be
given hereunder shall be in writing and shall be given in the manner
provided in the Supply Agreement.
IN WITNESS WHEREOF, the parties have executed this Purchase Agreement on
the date first written above.
SDSP: ACH:
SOUTH DAKOTA SOYBEAN ACH FOOD COMPANIES, INC.,
PROCESSORS, a South Dakota a Delaware corporation
co-operative association
By: /s/ XXXXXX X. XXXXXXXXXXXX By: /s/ XXX XXXX
-------------------------------- -----------------------------
Title: CHIEF EXECUTIVE OFFICER Title: EXECUTIVE VICE PRESIDENT
----------------------------- ---------------------------
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