TERMINAL AGREEMENT
AGREEMENT NUMBER 14-503
THIS AGREEMENT MADE AND ENTERED INTO AS OF THE 1ST day of February, 2002, by and
between WESTWAY TERMINAL COMPANY INC., having its principal administrative
offices in New Orleans, Louisiana (hereinafter known as WESTWAY), and SOUTH
DAKOTA SOYBEAN PROCESSORS, a Corporation with headquarters in Volga, South
Dakota, (hereinafter known as CUSTOMER).
WITNESSETH:
WHEREAS, WESTWAY TERMINAL COMPANY INC., a Delaware Corporation, owns and
operates bulk storage and distribution terminals and,
WHEREAS, CUSTOMER desires to deliver Product to WESTWAY to be stored and handled
at its terminal(s).
NOW, THEREFORE, in consideration of mutual covenants and agreements the parties
agree to the general terms and conditions contained in the Statement of Terms
and Conditions and to specific terms and conditions as specified in the Schedule
I, all of which constitute the Agreement between the Parties.
1. TERM OF CONTRACT
As specified in Schedule 1, attached hereto.
2. MODIFICATIONS
No changes or modifications to the Statement of Terms and Conditions shall be
effective unless reduced to writing and subscribed to by the parties hereto.
Changes to the Schedule may be made by the parties at any time by any mutually
acceptable means. No failure to insist upon compliance with any term or
provision of the Agreement shall be considered a waiver, breach or cancellation
of such provision or any other provision of the Agreement.
3. NOTICES
Any or all notices required to be given under this Agreement shall be in writing
and shall be deemed given when deposited in the United States mail, certified or
registered, return receipt requested, addressed in the case of CUSTOMER (or such
other address or addresses as either party may instruct the other in writing)
to:
SOUTH DAKOTA SOYBEAN PROCESSORS
Attn. Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
or in the case of WESTWAY, to:
WESTWAY TERMINAL COMPANY INC.
Attn: Xxxxx X.X. Xxxxxxx
President
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0 J 34
4. ACCEPTANCE
Acceptance by CUSTOMER shill be acceptance of all terms and conditions recited
herein or incorporated by reference. The person accepting this Agreement for
WESTWAY and CUSTOMER each represent that he/she is duly authorized to obligate
their respective firm to the terms hereof and to pay sums due or arising
hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement, the "Master
Agreement," as of the day and year first above written:
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS WESTWAY TERMINAL COMPANY INC.
By /s/ XXXXXX XXXXX By /s/ XXXXXXX XXXXXXX
-------------------------- ----------------------------------------
Title CFO Title VICE PRESIDENT - SALES & MARKETING
-------------------------- --------------------------------------
Date 1-29-02 Date JANUARY 2, 2002
-------------------------- --------------------------------------
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STATEMENT OF TERMS AND CONDITIONS
1. FACILITIES
1.01 FACILITIES TO BE FURNISHED BY WESTWAY
WESTWAY agrees to furnish storage tank(s), pipelines, pumps and/or other
equipment (hereinafter known as "Facility") as more particularly described and
for the specific locations as set forth in Schedule I which are now and will be
attached hereto.
WESTWAY shall at all times retain operational control of the Facilities within
its sole care and custody and maintain the same, at its expense, in good and
safe working order and repair, performing all services in a safe and workmanlike
manner and minimizing any hazards associated with the storage of CUSTOMER's
Products.
WESTWAY agrees to have Facility completed and ready to accept delivery for
storage and redelivery (as herein provided) of Product at the time and in the
amounts specified in Schedule I. CUSTOMER shall have the right to inspect
Facility prior to initial delivery of Product; it being assumed that Facility is
satisfactory unless CUSTOMER shall otherwise timely notify WESTWAY in writing.
1.02 TANK USE AND CLEANING
As specified in Schedule 1 attached hereto.
1.03 ADDITIONAL EQUIPMENT
As specified in Schedule 1 attached hereto.
1.04 DOCK
As part of the Facility, WESTWAY shall make available to CUSTOMER at published
rates existing loading docks and wharves servicing the terminal. The dock, being
used by WESTWAY and others, is available on a "first come, first served' basis.
1.05 INSPECTION
WESTWAY hereby consents to an inspection by CUSTOMER's designated
representatives of its entire site or the sites at which it may be providing
storage or performing services hereunder on a periodic basis or on special
occasions on a reasonable notice. WESTWAY shall make all reasonable efforts to
make available to said representative of CUSTOMER during the inspection that
person or persons knowledgeable in Terminal's policies and procedures governing
the aspects of WESTWAY's operations relevant to the services rendered hereunder,
including, but not limited to, maintenance, quality assurance, environmental,
safety and loss prevention.
2. PRODUCT HANDLING AND DOCUMENTATION
2.01 PRODUCT HANDLING
The Product shall be received, stored. and loaded by WESTWAY in accordance with
WESTWAY's standard procedures which include receipt, storage and periodic
sampling (As requested by CUSTOMER) of stored product, loading into each tank
truck or other carrier and periodic inventory reporting.
Reasonable additional services will be supplied, necessary to accommodate
CUSTOMER's requirements, at WESTWAY's regular rates and charges then in effect.
CUSTOMER shall be responsible for all charges incurred in engaging any carrier
to effect delivery or dispatch of any Product and its suitability to perform the
functions required, and WESTWAY shall be responsible only to receive or
discharge the Product through its terminal lines from or to those carriers on
vehicles, barges or equipment which, WESTWAY and CUSTOMER agree, WESTWAY is
capable of and is equipped to service as specified in Schedule I.
2.02 SHIPPING AND RECEIVING PAPERS
For each shipment of Product WESTWAY will also make out the necessary shipping
documents and will send one (1) copy along with the weight ticket and original
xxxx of lading to CUSTOMER on a daily basis. WESTWAY will complete and forward
to CUSTOMER the required documents for receipts of Product as soon as
practicable after discharge.
3. OPERATIONS
3.01 HOURS OF WORK
Hours of operation shall be as specified in Schedule 1, hereto attached.
3.02 VESSEL DISCHARGE
Should Product be delivered to Facility by vessel or barge, CUSTOMER shall give
the WESTWAY terminal five days advance notice of the expected arrival time. The
Master of the vessel, his representative, or CUSTOMER shall give WESTWAY at
least six (6) hours advance notice of the vessel's readiness to discharge cargo.
If the vessel is ready to discharge and WESTWAY is ready to receive the cargo in
less than six (6) hours after notice has been given, then discharge shall
commence without further delay. WESTWAY's personnel will perform no work on the
vessel. Vessel will pump Product to Facility at a rate of not less than 300
short tons per hour.
3.03 SCHEDULES
WESTWAY agrees to receive, store, and distribute Product at the rates and
charges fixed as provided on Schedule I. Cost and expense incurred by reason of
WESTWAY's delay in accepting discharge shall be borne by WESTWAY. However, there
will be NO penalties for
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delays resulting from force majeure or mechanical breakdown of WESTWAY's
equipment. WESTWAY will make all reasonable efforts to have such equipment
repaired as soon as possible.
3.04 MAINTENANCE OF FACILITY
WESTWAY agrees to maintain Facility during the term of this Agreement and any
extensions thereof. CUSTOMER agrees to maintain special facilities and
equipment, which remain the property of CUSTOMER as provided in Section 1.03,
or, at CUSTOMER's option, WESTWAY shall provide such maintenance at CUSTOMER's
expense.
3.05 UTILITIES
WESTWAY shall supply utilities, such as electricity or heating, as required and
as specified in the Schedule I.
4. DETERMINATION OF QUANTITY
Quantities of Product received into Facility shall be determined by gauging of
the shore tanks made before and after delivery and calculated in gallons at
60(degree) Fahrenheit in accordance with standard gravity tables supplied by
CUSTOMER.
WESTWAY may, at its option, determine the quantity of Product delivered to or
from Facility by direct weighing of tank car or tank trucks, both empty and
loaded, on certified scales. Weighing of tank cars and trucks shall be at
CUSTOMER's expense.
WESTWAY will supply CUSTOMER with a monthly inventory of the Product. A
month-end physical inventory shall be taken each month by WESTWAY. Any variances
between the book record and the actual physical count shall be subject to an
adjustment of fees as provided in Section 13.01. CUSTOMER has the right to
participate in taking such physical inventory.
5. TITLE TO PRODUCT
Title to Product stored in Facility shall always remain with CUSTOMER and shall
be held at CUSTOMER's risk. CUSTOMER must obtain bonding in the amount of
$100,800.00 per six month term and renew said bond until CUSTOMER Product is
completely removed from the tank. In the event that CUSTOMER is in breach hereof
or fails to remove all Product from the Facility at termination of this
Agreement, WESTWAY may execute and receive proceeds from said bond.
6. INDEPENDENT CONTRACTOR
Nothing contained herein shall create the relationship of joint venture,
principle and agent or master and servant between CUSTOMER and WESTWAY and
except for purposes of issuance of bills of lading pursuant to this Section 2.02
or for purposes of insuring payment of invoices as provided in Section 5,
WESTWAY, in the performance of this Agreement, is not and shall not act or
purport to act as the agent or employee of CUSTOMER, but is and shall act as an
independent contractor. WESTWAY acknowledges that it is solely responsible for
and solely in
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control of operations at the Facility; CUSTOMER shall not exercise any control
over or direction of the manner in which WESTWAY performs the services called
for under this Agreement.
7. QUALITY ASSURANCE
As specified in Schedule 1, attached hereto.
8. RESPONSIBILITY FOR PRODUCT
WESTWAY will be responsible for any loss of Product while in storage in excess
of 1% of amount received. Overages and shortages shall be averaged against each
other over each contract year of the Agreement and any shortages accounted for
by WESTWAY to CUSTOMER at the end of each contract year. WESTWAY's liability for
such loss is as per section 13.01.
CUSTOMER shall be responsible for the Product until it leaves the delivery
carrier. WESTWAY's responsibility shall commence when Product is off-loaded into
WESTWAY's Facility and continues until Product passes from the last flange into
the shipping carrier. The amount of any Product lost due to leaks or destruction
of tank cars or tank trucks during the loading or off-loading shall be borne by
CUSTOMER.
WESTWAY shall not be responsible for change in quality, color, or condition of
the Product stored or handled unless caused solely by WESTWAY's negligence.
CUSTOMER shall indemnify and hold WESTWAY harmless, for any loss or damage
incurred by reason of a delivery to Facility of any Product identified as
Product, but is, in fact, of a different chemical composition, or if WESTWAY
takes any action, without negligence on WESTWAY'S part, with respect thereto at
the request or direction of CUSTOMER.
9. CHARGES AND PAYMENT
9.01 OTHER CHARGES
(a) CUSTOMER shall reimburse WESTWAY for all permits, licenses, etc. which
may be required by any public or private agency particular to the
storage and handling of CUSTOMER's Product at WESTWAY's Facilities,
provided such costs do not exceed $1,500.00. If such costs exceed this
amount, Section 17.01, paragraph 2, shall apply.
(b) Subject to the terms and conditions herein, CUSTOMER will pay WESTWAY
for the cost to clean such tank(s) and dispose of residuals in the
event CUSTOMER's use of the tank is discontinued and the tank becomes
available, for use by WESTWAY to store other product or materials.
Subject to the terms and conditions herein, if the tank(s) should
require cleaning during the term of the contract, due to any cause
other than WESTWAY's negligence, CUSTOMER will also pay all costs of
such cleaning and disposal of residuals as specified in Schedule 1.
(c) As specified in Schedule 1.
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9.02 INVOICES AND PAYMENTS
Invoices for throughput charges shall be rendered monthly by WESTWAY to CUSTOMER
for the next contract month; such invoices will reflect the portion of the
minimum annual throughput charge due to date. Monthly payments made in contract
year must equal the greater of either actual throughput charge for contract year
to date or so much of minimum annual throughput charge as is due to date; a
charge for other services rendered in the contract month just ended will be
added to monthly invoices. Payment shall be made within thirty (30) days from
date of invoice. Invoices not paid timely shall bear interest of 1-1/2 percent
per month (effective annual rate of 18%) (or the maximum legal rate permitted by
law), whichever is less, from due date until paid and all costs of collection,
including reasonable attorney's fees.
9.03 TERMINATION CHARGE
In the event, as reflected on Schedule I, occupancy of the premises on which its
terminal is located is on the basis of lease from public or private authority
then cancellation or termination of the lease shall automatically terminate and
cancel this Agreement contemporaneously and WESTWAY shall have no liability to
CUSTOMER arising out of such termination, nor shall CUSTOMER have any liability
to WESTWAY arising therefrom.
10. ADJUSTMENT OF FEES
The warehousing charges listed in Schedule 1 will be adjusted annually at the
beginning of each contract year by means of a formula using any increases or
decreases in CPI values, all items, all consumers up to a limit of six (6%)
percent annually.
The throughput rate for shipments made from the facility in excess of the
minimum throughput would be adjusted in the same manner.
The steam charge shall be adjusted every three (3) months, if necessary, to
reflect any increase or decrease in fuel rates provided that no increase shall
be greater than fourteen (14%) percent annually.
WESTWAY reserves the right to revise truck weighing charges at the end of each
contract year, limited to the extent WESTWAY can justify such adjusted weighing
charge by documentary evidence up to 5% annually.
If requested, WESTWAY will submit evidence of new and old rates at time of
escalation.
In the event that the services provided pursuant to this Agreement or the
handling of CUSTOMER's Product shall be treated as, or result in, a taxable sale
or use or, in the event this Agreement or the Product stored shall be subject to
any ad valorem tax, all such taxes shall be borne by CUSTOMER invoiced as an
added charge; and provided, however, that CUSTOMER shall have the fall right to
contest the same at its cost and expense, with WESTWAY's reasonable assistance
and cooperation, which WESTWAY shall not unreasonably refuse.
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12. PRODUCT DOCUMENTATION
CUSTOMER agrees to provide to WESTWAY all information, documents, including
current Material Safety Data Sheets for each Product, labels, placards, retained
sample containers and other materials and data which are required by Federal or
State statutes, ordinances, rules or regulations ("Regulations") relating to the
Products stored under this Agreement and applicable Schedules. CUSTOMER further
agrees to indemnify and hold harmless WESTWAY, and WESTWAY's agents, employees,
officers and directors, from and against any fines, penalties, loss, damage or
expense, including without limitation, reasonable legal fees, resulting from
CUSTOMER's failure to provide or to make available to WESTWAY any information,
documents, sample containers and materials as required by such Regulations,
provided, however, that WESTWAY acted prudently in the face of such failure by
CUSTOMER.
13. LIABILITY
13.01 EXTENT OF WESTWAY'S LIABILITY
Risk of loss of Product due to fire, storm or other casualty shall, remain with
CUSTOMER to the extent the Product is covered by CUSTOMER'S all risk insurance
coverage. WESTWAY shall be liable only for Product loss or damage in excess of
percentage set forth in Section 8 where such excess loss is caused by WESTWAY's
failure to use reasonable care in the safekeeping or handling of Product.
WESTWAY's liability for such loss or damage is limited to CUSTOMER's lowest FOB
Facility wholesale price during the contract year in which the loss occurred.
WESTWAY shall be responsible for all Facility deterioration resulting from
storage of Product, as long as such Product is within specifications enumerated
in the attached Schedules and delivered according to the terms and conditions of
this Agreement. In the event WESTWAY's facilities are damaged or destroyed,
WESTWAY may, at its option, rebuild such facilities so affected or substitute
mutually agreeable facilities for CUSTOMER's Product within thirty (30) days at
rates specified in Schedule I, throughout the remaining term of this Agreement.
13.02 EXTENT OF CUSTOMER'S LIABILITY
CUSTOMER shall be obligated to notify WESTWAY of any Product characteristics
which may cause excess deterioration to Facilities beyond normal wear and tear.
In addition to CUSTOMER's obligations pursuant to 17.01, should destruction,
excess deterioration or serious damage occur requiring repair and/or replacement
of tankage, equipment or facilities be required due to CUSTOMER'S failure to
deliver the Product specified or to accurately inform WESTWAY of the Products
hazards, CUSTOMER shall be liable for repair and/or replacement of such
Facilities. In such event, CUSTOMER shall continue to be responsible for charges
throughout the entire period of time required to complete such repair and/or
replacement unless such repair and/or replacement exceeds a reasonable time
frame as mutually agreed both parties prior to commencement of said repair
and/or replacement.
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14. FORCE MAJEURE
Should WESTWAY's Facilities be seriously damaged or destroyed or should the tank
set aside to service CUSTOMER's Product be damaged or destroyed, WESTWAY shall
be relieved, without incurring any liability to CUSTOMER, of all WESTWAY's
obligations under this Agreement rendered impossible of performance by such
destruction or damage. In such event or in the event Force Majeure is sustained
by CUSTOMER, CUSTOMER shall at the same time be relieved of all obligations to
pay all or the allocable part of any monthly rental and attributable other
charges then in effect to the extent such failure to perform or such deficiency
in making annual thruput payments is caused by, arises out of or is attributed
to any cause reasonably beyond control of CUSTOMER, such as, but not limited to
war; riot; explosion; flood; storm; earthquake; act of God; perils of the sea;
labor disputes; sabotage; accident; embargo; breakage of machinery or apparatus;
injunction; compliance with governmental order; or inability to obtain fuel; raw
materials; labor; containers, or transportation difficulties preventing the
manufacture or shipment of product or restriction imposed by CUSTOMER (any such
cause being referred to as "Force Majeure"). Should any Force Majeure occur, the
party experiencing the Force Majeure will promptly notify the other party of its
existence, the reasons why and approximately how long a delay is expected.
15. DEFAULT BY EITHER PARTY
Should either party default at any time in the faithful performance and
observance of the terms or conditions of this Agreement and should any such
default continue for thirty (30) or more days after written notice thereof to
the defaulting party, then, the non-defaulting party shall have the right to
cancel and terminate this Agreement and to recover damages or seek any other
relief which it may be entitled at law or in equity.
Should either party be adjudicated bankrupt or insolvent in an involuntary
proceeding, or if such party shall have filed a petition for an arrangement of
creditors under the bankruptcy laws or insolvency laws of any jurisdiction, or
if a bankruptcy or insolvency proceeding is instituted against such party which
is not set aside within thirty (30) days thereafter, then, in that event, such
party shall be deemed to be in default of this Agreement, thereby entitling the
other party hereto to treat this Agreement, in accordance with the foregoing, as
being in default.
16. INDEMNITY AND INSURANCE COVERAGE
16.01 INDEMNITY
CUSTOMER shall indemnify and hold harmless WESTWAY and, at WESTWAY's request,
defend WESTWAY and each of its officers, directors, employees and agents from
and against any and all liability, suits, losses, demands, causes of action,
fines, penalties, expense, including attorney's fees, and claims, WESTWAY may be
caused to suffer or incur, including claim for bodily injury and property damage
arising out of or in any manner connected with CUSTOMER's negligent acts or
omissions or breaches of this Agreement or its failure to comply with applicable
laws in the performance of its obligations, provided such claims, etc. are not
caused by the negligence of WESTWAY.
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WESTWAY shall indemnify and hold harmless CUSTOMER and, at CUSTOMER's request,
defend CUSTOMER and each of its officers, directors, employees and agents from
and against any and all liability, suits, losses, demands, causes of action,
fines, penalties, expense, including attorney's fees, and claims, CUSTOMER may
be caused to suffer or incur, including claim for bodily injury including
Employees of WESTWAY and property damage arising out of or in any manner
connected with WESTWAY's negligent acts or omissions or breaches of this
Agreement or its failure to comply with applicable laws is the performance of
its obligations, provided such claims, etc. are not caused by the negligence of
CUSTOMER. In no event shall WESTWAY or CUSTOMER be liable to the other for
incidental or consequential damages, including, but not limited to, loss of
profits, business opportunity, downtime costs, or claims of third parties other
than claims by such parties for property damage or personal injury.
16.02 WESTWAY'S COVERAGE
WESTWAY shall maintain levels of insurance coverage during the term of this
Agreement as provided:
Workers Compensation Statutory
General Liability $1,000,000
Excess Liability $4,000,000
16.03 CUSTOMER'S COVERAGE
CUSTOMER will insure or self-insure all Product while in storage in terminal
against damage by fire or other casualty and shall insure or self-insure all of
its personnel and equipment while on WESTWAY's premises. Further, CUSTOMER shall
carry liability insurance against loss or damage caused to any third party,
including WESTWAY, its officers, employees and agents by its product or by its
agents and/or employees in amounts not less than $3,000,000.00.
16.04 CERTIFICATES
Prior to the commencement of this Agreement, CUSTOMER and WESTWAY shall each
furnish to the other a certificate(s) properly executed by the insurance
carriers, showing all insurance required hereunder to be in force. Each
certificate shall provide for ten (10) days written notice to such other party,
prior to the cancellation of or any changes effecting same.
17. REGULATORY COMPLIANCE
17.01 COMPLIANCE WITH LAW
WESTWAY warrants that, in rendering services to CUSTOMER, it will comply at all
times with all applicable Federal, State and local laws, rules and regulations
and shall obtain certificates, permits, documents, and authorizations required
for the lawful operations of the terminal and the handling and storage of
CUSTOMER's Product. WESTWAY agrees to indemnify and hold harmless CUSTOMER and
CUSTOMER's agent, employees, officers and directors, for and against any fines,
losses, damages or expenses, including without limitation, reasonable legal
fees, resulting from WESTWAY's violation of such laws and/or regulations.
CUSTOMER shall comply with all federal, state and other governmental laws, rules
and regulations applicable to
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the ownership of Product and shall obtain all certificates, permits, documents
and authorizations required for the lawful ownership of the Product
If any Federal, State or local laws, rules or regulations are hereafter amended,
modified or supplemented so as to require alterations or additions to the
Facility for the storage and handling of Product, WESTWAY shall inform CUSTOMER
accordingly and shall submit to CUSTOMER an estimate of the costs of the
required alterations or additions. CUSTOMER shall inform WESTWAY within fifteen
(15) days of its receipt of said notice and estimate, whether or not it will pay
said costs. If CUSTOMER declines, and if the parties are unable to resolve the
matter by mutual agreement, CUSTOMER shall remove all Product stored in the
Facility within thirty (30) days after notifying WESTWAY that CUSTOMER will not
assume the costs of such alterations or additions, and if terminated within the
first four years of the contract, CUSTOMER will pay WESTWAY the termination
charge set forth in Section 9.02 applicable at the time Product is removed from
the tank.
WESTWAY shall promptly advise CUSTOMER by oral notice, followed by written
communication, of any material environmental condition. By material
environmental condition is meant receipt of notification of non-compliance with
federal, state, or local environmental law, regulation, or statute which does or
may present a significant or substantial hazard or threat to human health or the
environment, or any occurrence which may significantly impair the operation of
the Facility. The existence of a material environmental condition not promptly
remedied shall be grounds for termination.
18. NONASSIGNABILITY
Neither party shall assign or transfer this Agreement or any of such party's
right or obligations hereunder without the prior written consent of the other
party, which shall not be unreasonably withheld.
19. CHOICE OF LAW: CONFLICT
This Agreement shall be governed by and construed according to the laws of the
states in which the facilities employed to store CUSTOMER's Products have their
physical situs.
In the event of conflict between the provisions of the Statement of Teams and
Conditions and either the Master Agreement dated February 1, 2002, to which this
Statement is appended or any associated Schedule(s) I, the latter shall govern.
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS WESTWAY TERMINAL COMPANY INC.
By /s/ XXXXXX XXXXX By /s/ XXXXXXX XXXXXXX
-------------------------- --------------------------------------
Title CFO Title VICE PRESIDENT - SALES & MARKETING
------------------------ ------------------------------------
Date 1-29-02 Date JANUARY 2, 2002
------------------------- ------------------------------------
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SCHEDULE II - TO SERVICE AGREEMENT NUMBER 14-503
TO SERVICE AGREEMENT BETWEEN CUSTOMER AND WESTWAY
DATED: JANUARY 17, 2002
DATE: JANUARY 17, 2002 EFFECTIVE: JANUARY 17, 2002
The operations, services and/or facilities contemplated in this Schedule shall
be performed and/or provided in accordance with and shall be subject to the
terms and conditions of the original Agreement dated February 1, 2002 except as
specifically provided herein.
FACILITIES
The facilities as proposed in this Agreement, are located at Westway Terminal
Company Inc.'s St. Xxxx facility - 0000 Xxxxxx Xxxx, Xx. Xxxx, XX 00000,
000-000-0000, 000-000-0000 FAX.
WESTWAY to provide CUSTOMER with 1,500,000 gallons of maximum capacity.
TERM OF AGREEMENT
The Initial Term of this Agreement shall be for a minimum of one (1) year
beginning with the first of the month following entry into the tank. The first
mouth will be prorated. This Agreement shall continue year to year thereafter,
provided however that either party may terminate the Agreement at the end of the
Initial Term or at the end of any subsequent year by notifying the other party
in writing at least ninety (90) days prior to the then current anniversary date.
PRODUCT INFORMATION AND DOCUMENTATION
(a) Product Information
Product to be handled by WESTWAY is listed in this Schedule(s) and is attached
to and by reference made part of the Agreement of January 17, 2002, between
WESTWAY and CUSTOMER. CUSTOMER agrees the tanks shall be used ONLY for the
storage of the Product specified in the Schedule(s). CUSTOMER provides the
follow information as to this Product's properties. The obligations assumed by
WESTWAY hereunder will be and shall remain contingent upon the accuracy of these
representations:
TECHNICAL NAME Crude Soybean Oil
TOXICITY No known toxic effect
DENSITY lbs./gal 7.6 lbs./(U.S.) gal
VAPOR PRESSURE LESSER THAN 0.1 mn hg @ 300 DEG. C
FLASH POINT GREATER THAN 175 DEG. C
ODOR Mild characteristic
CORROSITIVITY None
COLOR Golden
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(b) PRODUCT RECEIPT AND SHIPMENT
The Product will be received into terminal by rail cars or tank trucks. Product
will be shipped by rail cars, tank trucks or barges.
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SCHEDULE II - PAGE 2
CHARGES
(1) WAREHOUSING. The Monthly Warehousing Charge shall be $16,800.00 per
month which includes In/Out storage. In consideration of thin charge
(exclusive of additional charges set forth below), WESTWAY agrees to
handle a Prepaid Throughput (as hereinafter defined) up to and including
22,950 short tons (outbound) of commodity per contract period into the
Tank(s) from rail cars or tank trucks, and out of the Tanks) to rail
cars, tank trucks and barges. Determination of all throughput handled
shall be made when commodity enters the Tank(s).
(2) EXCESS THROUGHPUT. There shall be an additional charge of $5.00 for each
short ton handled into the Tank(s) in excess of 22,950 short tons
contract period.
(3) HOLDOVER. Should any commodity remain in the Tank(s) beyond the
termination of the agreement, Customer shall remain obligated to all of
the terms and conditions set forth in the agreement and, in addition,
shall be obligated to pay an additional charge equal to the current
daily rate then in effect plus a 20% premium per day until all commodity
and waste is removed. Should Westway incur any charges or liability to
other parties as a result of Customer's commodity or waste in the
Tank(s), Customer shall be responsible for all such charges or
liability.
(4) MODES. Inbound Rail Car, Tank Track
Outbound Rail Car, Tank Truck or Barge
It is recommended that all shipments be coordinated with the Terminals "Customer
Service Department".
(5) HEATING. If applicable, and heating is required for this product, steam
is charged at $72.60 per hour.
(6) NITROGEN. If applicable, CUSTOMER will be charged for the actual cost of
nitrogen used, plus 15 %.
(7) AFTER HOURS TANK TRUCKS. All tank cars, vessels and tank trucks handled
outside of Regular Terminal Operating hours, as defined in Paragraph E.
below, agreed to by WESTWAY and involving call-out, shall be charged per
the "Additional Services" paragraph, with a minimum of four (4) hours
per overtime operation.
(8) STORAGE OF TANK CARS. If applicable, WESTWAY agrees to store tank cars
free of charge for the first five days; thereafter there shall be a
charge of the prevailing rate. The current rate is $25.00 per tank car
per day.
(9) RAILROAD CHARGES. Any charges assessed against CUSTOMER's tank cars by
any railroad serving the Terminal shall be for CUSTOMER's account.
(10) WEIGHING CHARGES. Truck weighing shall be provided at the rate of $5.00
per weigh (load/empty). Rail car weighing shall be provided at the rate
of $50.00 per weigh (load/empty).
(11) STRIPPING. Should CUSTOMER request to empty the tank and pipeline system
other than for termination of this Agreement, WESTWAY shall charge
CUSTOMER per the "Additional Services" paragraph for this operation.
(12) BOOMING CHARGE. If applicable, CUSTOMER shall pay any charge incurred by
WESTWAY to boom vessels or barges during marine transfers of commodities
when such booming is required by law or regulation.
15
SCHEDULE II - PAGE 3
(13) THROUGHPUT OR WHARFAGE CHARGES. If applicable, commodity throughput fees
and or Wharfage/Dockage fees as assessed against WESTWAY by the Port
Authority for the throughput of CUSTOMER's commodity shall be billed
back to CUSTOMER at WESTWAY's cost.
(14) LABORATORY FEES AND SERVICE. Sampling or testing services shall be
charged per the current rates for inspection services. If WESTWAY
contracts with another party to perform laboratory services, all fees
shall be billed to CUSTOMER at WESTWAY's cost plus 15%. Samples can be
taken at the CUSTOMER's request, the charge for sampling is $25.00 per
sample.
WESTWAY'S LIABILITY FOR SAMPLING AND TESTING SERVICES IS LIMITED TO THE
CHARGE FOR THE SERVICE PROVIDED. WESTWAY SHALL IN NO EVENT BE LIABLE FOR
SPECIAL OR CONSEQUENTIAL DAMAGES.
(15) ADDITIONAL SERVICES:
(a) For any service or function not specifically provided for in the
agreement, requested by CUSTOMER and agreed to by WESTWAY, there shall be a
charge equal to the sum of cost of materials used if any, and charges made by
contracted services, if any, plus 15% of said sum; plus either (i) the
prevailing rate per man-hour involved, if such unspecified work is performed
during regular operating hours, and (ii) the prevailing rate per man hour
involved, if such work is performed during overtime hours. The current rates for
these services are $60.00 (Monday - Saturday) and $75.00 (Sundays and Holidays).
(b) Overtime: There shall be an additional charge of the prevailing
rate per man-hour involved for service provided in the agreement performed
during overtime hours when requested by CUSTOMER and agreed to by WESTWAY. The
current rate for this service is $60.00 (Monday-Saturday) and $75.00 (Sundays
and Holidays) respectively.
TERMINAL OPERATING HOURS
WESTWAY shall perform the services set forth in this Agreement during normal
working hours, except that WESTWAY shall have its facilities and personnel
available for operations twenty-four (24) hours per day, seven (7) days per
week, including holidays. WESTWAY requires that reasonable notice be provided to
the terminal when overtime is requested. Costs incurred by WESTWAY in having
workmen stand by outside normal working hours shall be reimbursed to WESTWAY by
CUSTOMER. Any work performed outside of normal working hours shall be subject to
overtime at rates specified on Schedule I and may be subject to a minimum
"call-in" time equal to four hours per man.
Normal working hours for facility for the purpose of this Agreement are defined
as follows:
Monday through Friday: 8:00 a.m. to 4:00 p.m.
CLOSED: Saturdays, Sundays and Holidays (or days on which they are
celebrated)
The above normal working hours are subject to change upon thirty (30) days
notice by WESTWAY to CUSTOMER, except that in no case shall normal working hours
be changed to less than forty (40) hours per week unless otherwise agreed.
17
SCHEDULE II - PAGE 4
TANK CLEANING CHARGES
Upon exiting tankage, or as specified in section 9.01 (b), CUSTOMER will
contract a WESTWAY approved tank cleaner to satisfactorily strip and clean the
subject tanks) and pipelines to a water-white condition suitable for the storage
and handling of specialty chemicals. Should commodity have a Xxxx vapor pressure
of more than 2.6 psi, tank must be degassed prior to tank cleaning. ALL COSTS
ASSOCIATED WITH THE TANK CLEANING PROCESS, INCLUDING DEGASSING IF NECESSARY,
WILL BE PAID DIRECTLY BY CUSTOMER. Tank and pipeline cleaning schedules to be
coordinated with terminal operations department. CUSTOMER's designated
representative may witness tank cleaning process. Final acceptability of tank
condition will be determined by WESTWAY or its designated representative.
Alternatively, WESTWAY will arrange for tank cleaning and CUSTOMER will be
charged at cost plus fifteen percent (15%).
QUALITY ASSURANCE
WESTWAY, if requested by CUSTOMER, will take one sample from each shipment out
of Facility and retain such properly identified sample for a period of thirty
(30) days and disposed of by WESTWAY at a permitted Facility at CUSTOMER's costs
unless CUSTOMER shall otherwise request in writing.
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS WESTWAY TERMINAL COMPANY INC.
By /s/ XXXXXX XXXXX By /s/ XXXXX XXXXXXXX
-------------------------- ----------------------------------
Title CFO Title VICE PRESIDENT - SALES & MARKETING
-------------------------- ----------------------------------
Date 1-29-02 Date JANUARY 17, 2002
-------------------------- ----------------------------------
SCHEDULE III - TO SERVICE AGREEMENT NUMBER 14-503
TO SERVICE AGREEMENT BETWEEN CUSTOMER AND WESTWAY
DATED: JANUARY 17,2002
DATE: JANUARY 17, 2002 EFFECTIVE: JANUARY 17, 2002
The operations, services and/or facilities contemplated in this Schedule shall
be performed and/or provided in accordance with and shall be subject to the
terms and conditions of the original Agreement dated February 1, 2002 except as
specifically provided herein.
FACILITIES
The facilities as proposed in this Agreement, are located at Westway Terminal
Company Inc.'s St. Xxxx facility - 0000 Xxxxxx Xxxx, Xx. Xxxx, XX 00000,
000-000-0000, 000-000-0000 FAX
WESTWAY to provide CUSTOMER with 840,000 gallons of maximum capacity.
TERM OF AGREEMENT
The Initial Term of this Agreement shall be for a minimum of one (1) year
beginning with the first of the month following entry into the tank. The
first month will be prorated. This Agreement shall continue year to year
thereafter, provided however that either party may terminate the Agreement at
the end of the Initial Term or at the end of any subsequent year by notifying
the other party in writing at least ninety (90) days prior to the then
current anniversary date.
PRODUCT INFORMATION AND DOCUMENTATION
(a) Product Information
Product to be handled by WESTWAY is listed in this Schedule(s) and is attached
to and by reference made part of the Agreement of January 17, 2002, between
WESTWAY and CUSTOMER. CUSTOMER agrees the tanks shall be used ONLY for the
storage of the Product specified in the Schedule(s). CUSTOMER provides the
following information as to this Product's properties. The obligations assumed
by WESTWAY hereunder will be and shall remain contingent upon the accuracy of
these representations:
TECHNICAL NAME Crude Soybean Oil
TOXICITY No known toxic effect
DENSITY lbs./gal 7.6 lbs./(U.S.) gal
VAPOR PRESSURE LESSER THAN 0.1 mn hg @ 300 DEG.C
FLASH POINT GREATER THAN 175 DEG.C
ODOR Mild characteristic
CORROSITIVITY None
COLOR Golden
(b) PRODUCT RECEIPT AND SHIPMENT
The Product will be received into terminal by rail cars or tank trucks. Product
will be shipped by rail cars, tank trucks or barges.
20
SCHEDULE III - PAGE 2
CHARGES
(1) WAREHOUSING. The Monthly Warehousing Charge shall be $9,400,00 per month
which includes In/Out storage. In consideration of this charge
(exclusive of additional charges set forth below), WESTWAY agrees to
handle a Prepaid Throughput (as hereinafter defined) up to and
including, 12,852 short tons (outbound) of commodity per contract period
into the Tank(s) from rail cars or tank trucks, and out of the Tank(s)
to rail cars, tank trucks and barges. Determination of all throughput
handled shall be made when commodity enters the Tank(s).
(2) EXCESS THROUGHPUT. There shall be an additional charge of $5.00 for each
short ton handled into the Tank(s) in excess of 12,852 short tons per
contract period.
(3) HOLDOVER. Should any commodity remain in the Tanks) beyond the
termination of the agreement, Customer shall remain obligated to all of
the terms and conditions set forth in the agreement and, in addition,
shall be obligated to pay an additional charge equal to the current
daily rate then in effect plus a 20% premium per day until all commodity
and waste is removed. Should Westway incur any charges or liability to
other parties as a result of Customer's commodity or waste in the
Tank(s), Customer shall be responsible for all such charges or
liability.
(4) MODES. Inbound Rail Car, Tank Truck
Outbound Rail Car, Tank Truck or Barge
It is recommended that all shipments be coordinated with the Terminals
"Customer Service Department".
(5) HEATING. If applicable, and heating is required for this product, steam
is charged at $72.60 per hour.
(6) NITROGEN. If applicable, CUSTOMER will be charged for the actual cost of
nitrogen used, plus 15%.
(7) AFTER HOURS TANK TRUCKS. All tank cars, vessels and tank trucks handled
outside of Regular Terminal Operating hours, as defined in Paragraph E.
below, agreed to by WESTWAY and involving call-out, shall be charged per
the "Additional Services" paragraph, with a minimum of four (4) hours
per overtime operation.
(8) STORAGE OF TANK CARS. If applicable, WESTWAY agrees to store tank cars
free of charge for the first five days; thereafter there shall be a
charge of the prevailing rate. The current rate is $25.00 per tank car
per day.
(9) RAILROAD CHARGES. Any charges assessed against CUSTOMER's tank cars by
any railroad serving the Terminal shall be for CUSTOMER'S account.
(10) WEIGHING CHARGES. Truck weighing shall be provided at the rate of $5.00
per weigh (load/empty). Rail car weighing shall be provided at the rate
of $50.00 per weigh (load/empty).
(11) STRIPPING. Should CUSTOMER request to empty the tank and pipeline system
other than for termination of this Agreement, WESTWAY shall charge
CUSTOMER per the "Additional Services" paragraph for this operation.
(12) BOOMING CHARGE. If applicable, CUSTOMER shall pay any charge incurred by
WESTWAY to boom vessels or barges during marine transfers of commodities
when such booming is required by law or regulation.
22
SCHEDULE III - PAGE 3
(13) THROUGHPUT OR WHARFAGE CHARGES. If applicable, commodity throughput fees
and or Wharfage/Dockage fees as assessed against WESTWAY by the Port
Authority for the throughput of CUSTOMER's commodity shall be billed
back to CUSTOMER at WESTWAY's cost.
(14) LABORATORY FEES AND SERVICE. Sampling or testing services shall be
charged per the current rates for inspection services. If WESTWAY
contracts with another party to perform laboratory services, all fees
shall be billed to CUSTOMER at WESTWAY's cost plus 15%. Samples can be
taken at the CUSTOMER's request, the charge for sampling is $25.00 per
sample.
WESTWAY'S LIABILITY FOR SAMPLING AND TESTING SERVICES IS LIMITED TO THE
CHARGE FOR THE SERVICE PROVIDED. WESTWAY SHALL IN NO EVENT BE LIABLE FOR
SPECIAL OR CONSEQUENTIAL DAMAGES.
(15) ADDITIONAL SERVICES:
(a) For any service or function not specifically provided for in the
agreement, requested by CUSTOMER and agreed to by WESTWAY, there
shall be a charge equal to the sum of cost of materials used if
any, and charges made by contracted services, if any, plus 15% of
said sum; plus either (i) the prevailing rate per man hour
involved, if such unspecified work is performed duties regular
operating hours, and (ii) the prevailing rate per man-hour
involved, if such work is performed during overtime hours. The
current rates for these services are $60.00 (Monday - Saturday)
and $75.00 (Sundays and Holidays).
(b) Overtime: There shall be an additional charge of the prevailing
rate per man-hour involved for service provided in the agreement
performed during overtime hours when requested by CUSTOMER and
agreed to by WESTWAY. The current rate for this service is $60.00
(Monday-Saturday) and $75.00 (Sundays and Holidays) respectively.
TERMINAL OPERATING HOURS
WESTWAY shall perform the services set forth in this Agreement during normal
working hours, except that WESTWAY shall have its facilities and personnel
available for operations twenty-four (24) hours per day, seven (7) days per
week, including holidays. WESTWAY requires that reasonable notice be provided to
the terminal when overtime is requested. Costs incurred by WESTWAY in having
workmen stand by outside normal working hours shall be reimbursed to WESTWAY by
CUSTOMER. Any work performed outside of normal working hours shall be subject to
overtime at rates specified on Schedule I and may be subject to a minimum
"call-in" time equal to four hours per man.
Normal working hours for Facility for the purpose of this Agreement are defined
as follows:
Monday through Friday: 8:00 a. m. to 4:00 p.m.
CLOSED; Saturdays, Sundays and Holidays (or days on which they are
celebrated)
The above normal working hours are subject to change upon thirty (30) days
notice by WESTWAY to CUSTOMER, except that in no case shall normal working hours
be changed to less than forty (40) hours per week unless otherwise agreed.
24
SCHEDULE III - PAGE 4
TANK CLEANING CHARGES
Upon exiting tankage, or as specified in section 9.01 (b), CUSTOMER will
contract a WESTWAY approved tank cleaner to satisfactorily strip and clean the
subject tank(s) and pipelines to a water-white condition suitable for the
storage and handling of specialty chemicals. Should commodity have a Xxxx vapor
pressure of more than 2.6 psi, tank must be degassed prior to tank cleaning. ALL
COSTS ASSOCIATED WITH THE TANK CLEANING PROCESS, INCLUDING DEGASSING IF
NECESSARY, WILL BE PAID DIRECTLY BY CUSTOMER. Tank and pipeline cleaning
schedules to be coordinated with terminal operations department. CUSTOMER's
designated representative may witness tank cleaning process. Final acceptability
of tank condition will be determined by WESTWAY or its designated
representative. Alternatively, WESTWAY will arrange for tank cleaning and
CUSTOMER will be charged at cost plus fifteen percent (15 %).
QUALITY ASSURANCE
WESTWAY, if requested by CUSTOMER, will take one sample from each shipment out
of Facility and retain such properly identified sample for a period of thirty
(30) days and disposed of by WESTWAY at a permitted Facility at CUSTOMER's costs
unless CUSTOMER shall otherwise request in writing.
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS WESTWAY TERMINAL COMPANY INC.
By /s/ XXXXXX XXXXX By /s/ XXXXX XXXXXXXX
--------------------------------- --------------------------------------
Title CFO Title VICE PRESIDENT - SALES & MARKETING
----------------------------- ----------------------------------
Date 1-29-02 Date JANUARY 17, 2002
----------------------------- ----------------------------------
