TERMINAL AGREEMENT
This AGREEMENT, made and entered into as of the 15th day of April 2001, by
and between STOLTHAVEN CHICAGO INC., a Delaware corporation having an office
at 00000 Xxxxx Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000; hereinafter to
be referred to as "Terminal" and SOUTH DAKOTA SOYBEAN PROCESSORS, hereinafter
to be referred to as "Customer", and covers the furnishing of facilities and
services for the storage and handling of Customer's Product as specified in
Section I hereof, hereinafter to be referred to as "Product", by Terminal for
Customer at the Chicago, Illinois Terminal, under the terms and conditions
set forth hereinafter:
WITNESSETH
For and in consideration of the mutual covenants and agreements contained
herein, it is hereby agreed as follows:
SECTION 1
FACILITIES AND PRODUCTS
1.1 Terminal shall provide the following tank(s) and services for the storage
and handling of Customer's Product as specified herein:
METHOD OF RECEIPT
SHELL PRODUCT TO AND REDELIVERY
TANK(S) CAPACITY BE STORED --------------
NOS. IN BARRELS IN TANK RECEIPT REDELIVERY
------- ---------- ------- ------- ----------
1502 30,000 Soy Oil/Crude/XX Xxxxx/Truck/Rail Barge/Truck/Rail
NOTE: The above Tankage is included in storage agreement but is subject to
approval of a product suitability inspection as performed by an independent
surveyor at Customer direction and cost.
1.2 Stolthaven agrees to meet minimum CBOT daily "load out" requirements as
described in CBOT Regulations for Warehouse Operators in applicable Item
1180.01(f).
SECTION 2
SERVICES
2.1 When instructed by Customer in writing, Terminal agrees to receive
Customer's Product into the Terminal facilities from the inbound mode
specified for each storage tank identified in Section 1 and to store such
Product to the extent of the capacity of the tank for such Product. When
instructed by Customer in writing, Terminal shall redeliver Product from the
Terminal facilities to the outbound mode specified for each storage tank
identified in Section 1. Subject to the provisions of the Agreement Terminal
agrees to receive into storage and redeliver therefrom the quantity of
Product specified in Section 1 hereof.
SECTION 3
HOURS OF OPERATION
3.1 The Terminal shall remain open from 2300 hours to 2300 Hours Sunday
through Friday, excluding weekends/holidays for the receipt of Product by
barge/truck/rail and the redelivery of product by barge/truck or rail as
described in Section 1.1. Terminal will process barges, tanktrucks and
tankcars during hours other than those specified herein with applicable
overtime charges specified in Section 4.
3.2 In the event any weekend/holiday work is desired by Customer, the request
to Terminal must be made and acknowledged no later than 2:00 p.m. the day
prior to the weekend/holiday period. Lacking this notice, work will be
performed during normal work schedule commencing Sunday at 2300 hours.
3.3 The Terminal's Office Hours are from 8:00 a.m. through 4:00 p.m. Monday
through Friday, excluding holidays for Administrative Services required for
the processing of Customer requested orders. Should Customer request these
services during hours other than those specified herein, applicable overtime
charges will apply as specified in Section 4.
SECTION 4
CONSIDERATION
4.1 Customer agrees to pay Terminal the following charges for which Terminal
agree to provide storage and services as specified herein:
1. Facility Charges: $5,000.00 per month
2. Throughput Charge: $4.00 per metric ton Received.
$4.00 per metric ton Shipped.
3. Throughput Guarantee: One capacity turn of lease capacity (4300 MT) per
contract year.
4. Throughput Allowance: Customer is allowed to move up to 30,000 Metric tons
of product each contract year.
5. Miscellaneous Labor Charges: Labor for weekends and holidays shall be
$66.00 per man hour. Weekday labor for services not included in the
contract scope will be provided at $50.00 per man hour.
6. Miscellaneous Materials Charge: Cost plus 15%.
7. Sampling: $15.00 per collected sample; sample packaging @ $30.00/sample
and sample forwarding @ cost plus 15%.
4.2 Customer shall pay the monthly Facility charges in advance, not later
than the tenth (10th) day of each calendar month or within ten (10) days of
receipt of Terminal's advance notice if Customer has received Terminal's
advance invoice no later than the first (1st) day of the calendar month.
Throughput charges or charges for additional services or facilities shall be
invoiced throughout each month and shall be payable ten (10) days after
receipt of the invoice. In the event that Customer does not pay such invoices
within the agreed upon time, Customer agrees to pay a late penalty charge of
one percent (1%) per month on the outstanding amount of the invoice. Payments
shall be made to Stolthaven Chicago Inc., Texas Commerce Bank, X.X. Xxx
000000 Xxxxxxx, XX 00000-0000. A/C NO. 0000101766336, ABA NO. 1130000609.
SECTION 5
TERM
5.1 The term of this Agreement shall be for a period of One (1) Year,
commencing upon the effective date of the Agreement. The Agreement's will
continue on a year to year basis thereafter. Customer may terminate this
Agreement by giving no less than a sixty (60) day prior written notice to be
effective after the initial term or any anniversary date of this Agreement.
SECTION 6
DETERMINATION OF SUITABILITY OF FACILITIES
6.1 It is agreed that Customer shall have an employee or duly authorized
representative inspect and accept the tankage and facilities to be provided
hereunder as suitable in all respects for the Product before the initial
receipt by Terminal thereof. If
Customer fails to do so, the tankage and facilities shall be deemed suitable
in all respects for the Product.
SECTION 7
DETERMINATION OF QUALITY & QUANTITY
7.1 Quality and quantity of the Product handled hereunder shall be determined
by an independent inspector mutually acceptable to both parties, appointed by
and paid for by Customer. If Customer fails to provide such inspector,
Terminal's determination thereof shall be conclusively presumed to be
correct.
7.2 Quality Waiver: If Customer waives sampling of product then Customer
assumes all responsibility and liability for product delivered to storage
tank(s).
7.3 Actual method of receipt and redelivery of Product is specified in
Section 1.1 hereof. As applicable, the quantity of Product handled by
Truck/Rail will be determined by terminal certified scales.
SECTION 8
TITLE AND CUSTODY
8.1 Title to product delivered by Customer to terminal for storage and
handling shall at all times remain with the Customer. Subject to the
provisions of this Agreement, Terminal shall be deemed to have custody of and
responsibility for the proper care and storage of the Product from the time
it passes the flange connection between the Customer's inbound mode specified
in Section 1 hereof and Terminal's receiving line and until it passes the
flange connection between Terminal's delivery line and Customer's outbound
mode specified in Section 1 hereof.
SECTION 9
TAXES
9.1 Customer shall pay any and all taxes, charges and/or assessments on the
Product covered hereunder and on the storage, handling, transportation or use
thereof which Terminal may be required to pay or collect under any federal,
state, county or municipal law or authority now in effect or hereafter
enacted.
Customer agrees to pay all taxes and assessments (including any charge or
payment in lieu thereof), that may be assessed by any governmental authority
against any Product with respect to the receiving, storing, handling,
shipping or disposing of any Product, and Customer shall reimburse Terminal
for any taxes or charges Terminal may be required to pay in regard to
Customer's Product.
SECTION 10
INSURANCE
10.1 The charges specified herein do not include any insurance on the
Product, it being expressly understood and agreed that insurance, if any, be
desired by Customer, shall be carried by Customer at its own expense.
SECTION 11
ESCALATION
11.1 The Facility Charge and Service Fees are subject to escalation at the
end of each contract year during the term of this Agreement, based on 100% of
the CPI (Consumer Price Index) increase for the Chicago area. Maximum CPI
escalation will be five percent for any annual contract period.
SECTION 12
DEMURRAGE ON TRUCK EQUIPMENT
12.1 Terminal shall not have any responsibility or liability in connection
with the scheduling of tank trucks utilizing the Terminal pursuant to this
Agreement.
SECTION 13
USE, CLEANING, REMOVAL AND DISPOSAL
13.1 Customer agrees to use the storage tank(s) and terminal facilities of
Terminal only for the storage of Products specified in Section 1, and
Customer shall be responsible for any damage to the tank(s) resulting from
storage in the tank(s) of any Product which is not expressly authorized under
the terms hereof or of Product so authorized which is not within normal
specifications.
Upon termination of this Agreement, Customer shall remove and dispose of, at
its expense, all residual Product and Material from Terminal's tank(s),
equipment and/or facilities, and Customer shall pay all costs necessary to
place the tank(s), equipment and/or facilities in the same condition as
existed at the commencement of this Agreement, normal wear and tear excepted.
Customer shall continue to be obligated to pay rent for the tank(s),
equipment and/or facilities at the rates set out in Section 4 hereof until
Customer shall have complied with its obligations herein. In the alternative,
in the event Customer has not complied with its obligations in this Section
13 within ten (10) days after the termination of this Agreement, Terminal may
cause the Facilities to be cleaned and product disposed of, and Customer
shall pay the cost thereof plus fifteen percent.
SECTION 14
RESPONSIBILITY FOR LOSS OR DAMAGE
14.1 Terminal shall not be liable for evaporation, shrinkage, contamination,
or for any loss or damage to the Product handled hereunder, whether while
stored in the tankage or while the Product is in the process of being
received into or redelivered out of the tankage, unless such condition, loss
or damage is caused solely by Terminal's failure to use reasonable care in
handling, receiving, storing and/or redelivering such Product. In the event
Terminal is deemed responsible for Product loss, Terminal's responsibility
shall be limited to the market value of the Product.
In the event Terminal should be liable hereunder for evaporation, shrinkage,
contamination or for any loss or damage to the Product, Terminal and Customer
agree that Terminal's liability for said Product shall be limited to no more
than the market value of Product as of the date of loss of the Product.
Customer hereby agrees that Terminal shall not, under any circumstances, be
liable to Customer for incidental or consequential damages incurred by
Customer or by any third party as a result of Terminal's action or inaction
hereunder.
SECTION 15
INDEMNITY
15.1 Subject to the provision of this Agreement, Terminal shall be
responsible for and shall indemnify, defend and save harmless Customer from
and against any and all claims, demands and causes of action brought by any
and all persons, including without limitation, Terminal's officers, agents,
employees, representatives, or subcontractors or by any third
parties, and against any and all judgments in respect thereto on account of
personal injury or death or on account of property damage or destruction or
loss arising out of the negligence or willful misconduct of Terminal, its
officers, employees, agents, representatives and subcontractors.
Subject to the provisions of this Agreement, Customer shall be responsible
for and shall indemnify, defend and save harmless Terminal from and against
any and all claims, demands and causes of action brought by any and all
persons, including without limitation, Customer's officers, agents,
employees, representatives or by any third parties, and against any and all
judgments in respect thereto on account of personal injury or death or on
account of property damage or destruction or loss arising out of the
negligence or willful misconduct of Customer, its officers, employees,
agents, representatives and subcontractors, or arising from inherent vice of
property of Customer's Product.
Where personal injury, death, or loss of or damage to property is the result
of the joint negligence or misconduct of Terminal and Customer, the extent of
each party's obligations shall be determined by applicable law.
SECTION 16
COMPLIANCE WITH LAWS AND REGULATIONS
16.1 In the event, at any time after the date this Agreement is entered into,
any governmental body shall require the installation of facilities or
fixtures, or require changes to Terminal's normal operating procedures
related to the environmental impact of the storage and handling of Customer's
Product or the general class of products which
includes Customer's Product, Terminal shall notify Customer of the necessity
and cost of such installation of facilities or fixtures, or changes in
operating procedures and Customer and Terminal shall work, in good faith, to
provide such installation or facilities or fixtures, or to make such
necessary changes to Terminal's operating procedures, and to adjust the
compensation hereunder to reflect Terminal's additional costs of compliance.
In the event Customer or Terminal decides that the increase in cost or change
in operating procedure, due to new environmental regulations, is onerous or
prohibitive, either may cancel this contract upon sixty (60) days written
notice. Customer expressly relieves Terminal of any and all obligations
hereunder to provide facilities and/or services when such facilities and/or
services are contrary to any environmental law, regulation or ruling.
16.2 In the event that at any time during this agreement a governmental body
assesses new or additional taxes upon the product stored in the Facility, the
Customer may cancel this contract with sixty (60) days written notice.
XXXXXXX 00
XXXXX XXXXXXX
17.1 Terminal shall not be liable for discoloration, contamination, damage to
or destruction of the Product or property of Customer or for any delay or
non-performance of its obligations under this Agreement when any of the
foregoing is caused in whole or in part by Act of God, strike, lockout, or
other industrial disturbance, act of the public enemy, war, blockade, public
riot, lightning, fire, storm, flood, explosion, blackout, governmental
restraint, unavailability of equipment, and any other cause, otherwise, which
is not reasonably within the control of the Terminal.
SECTION 18
DEFAULT
18.1 Should Customer default at any time in the prompt payment of any monies
due hereunder, or in the prompt performance and observance of any of the
terms or conditions of this Agreement, other than those relating to the
payment of money, and any such default, not relating to the payment of money,
continue for thirty (30) or more days after written notice thereof by
Terminal to Customer, or should Customer go into bankruptcy, voluntary or
involuntary, or be placed in the hands of a receiver, State or Federal, then
and in any event, all charges for the whole unexpired term hereof shall, at
the option of Terminal, become immediately due and payable. In any such
event, Terminal shall also have the right, at its option, to terminate this
Agreement.
18.2 Customer has right to terminate upon Terminals material breach or should
Terminal go into bankruptcy voluntarily or involuntarily, or be placed in the
hands of a receiver, State or Federal.
SECTION 19
REPORTS
19.1 Terminal agrees to provide throughout each month reports summarizing
each receipt and redelivery of Customer's Product into or out of storage,
including the quantities received and redelivered and tank transfers
identification of each tank truck, or vessel, customer order number for
redeliveries, and the date of each such transfer. At the end of each month
during the term hereof, Terminal shall provide to Customer a report
summarizing all Product received into storage and redelivered out of storage
during that month, the beginning storage inventory, the ending storage
inventory and any gain or loss
of actual physical inventory over computed inventory. In addition, Terminal
shall prepare required bills of lading for each tank truck serviced, and
prepare invoices for the amounts due Terminal for services performed
hereunder. Terminal shall not be obligated to perform any administrative
duties other than those set forth in this section unless Terminal and
Customer agree, in writing, to such additional duties and compensation for
their performance.
SECTION 20
ASSIGNMENT - SUBLETTING - BINDING EFFECT
20.1 This Agreement shall not be assigned, in whole or part, by either party
without the prior written consent of the other party, which shall not be
unreasonably withheld.
20.2 Customer shall not sublet the Facilities set forth in Section 1.
hereof without the prior written consent of Terminal.
20.3 This Agreement shall be binding upon and shall operate for and in
use to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 21
MODIFICATION
21.1 This agreement shall not be modified or changed except by the written
instrument executed by a duly authorized officer of each of the parties
hereto.
SECTION 22
NOTICES
22.1 Any notice, request, consent and other communication required hereunder
shall be in writing and transmitted by personal delivery, telex, telefax or
registered mail at the address herein specified. Any notice hereunder shall
be deemed to be received when
personally delivered, twenty-four (24) hours after dispatch in the case of
telex and telefax and three (3) business days after transmittal in the case
of registered mail.
The address for Customer shall be:
South Dakota Soybean Processors
000 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
The address for Terminal shall be:
Stolthaven Chicago, Inc.
00000 Xxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
From time to time, either party may designate another address for the purpose
of this Agreement by mailing to the other party notice of such change of
address, which shall be effective fifteen (15) days after the giving of such
notice.
SECTION 23
SOLE AGREEMENT
23.1 This Agreement constitutes the sole and entire agreement between the
parties pertaining to the subject matter hereof, the Product and the
Facilities, activities, operations or services to be provided by or on behalf
of Terminal, and effective as of the commencement of the term hereof,
supersedes and cancels any and all other oral or written agreements or
understandings between or assumed by the parties or either of them with
respect to the foregoing matters or any part thereof.
IN WITNESS THEREOF, the parties have executed this Agreement as of the date
set forth above.
STOLTHAVEN CHICAGO INC. SOUTH DAKOTA SOYBEAN PROCESSORS
BY: /s/ Xxxxxxx Xxxxxx BY: /s/ Xxxxxx Xxxxxxxxxxxx
TITLE: General Manager TITLE: CEO
DATE: March 26, 2001 DATE: March 28, 0000
XXXXXXXXXX XXXXXXX INC.
A subsidiary of 00000 Xxxxx Xxxxx Xxxxxx Xxx. Tel: + 0 000-000-0000
Xxxxx-Xxxxxxx X.X. Xxxxxx, XX 00000 Fax: + 0 000-000-0000
U.S.A. xxx.xxxxxxxxxxxx.xxx
BY AIRBORNE EXPRESS
September 14, 0000
Xxxxx Xxxxxxx
Xxxxx Xxxxxx Soybean Processors
000 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx, XX 00000
TERMINAL AGREEMENT DATED APRIL 15, 2001
Dear Sirs:
We refer to the above
Terminal Agreement by and between Stolthaven Chicago
Inc. (the "Company") and you, as customer, providing for the storage of your
products at the Company's Chicago Terminal.
This is to inform you that the Company is now in negotiations with Xxxxxx
Xxxxxx Liquids Terminals LLC ("Xxxxxx Xxxxxx") to sell all of its assets to
Xxxxxx Xxxxxx. A non-binding Letter of Intent between the Company and Xxxxxx
Xxxxxx was signed in July, due diligence by Xxxxxx Xxxxxx has been completed
and the parties are proceeding with the expectation to close the transaction
on or about October 5, 2001. As you may know, Xxxxxx Xxxxxx is the
owner/operator of 17 bulk liquid terminals in the United States.
We will promptly notify you once the transaction is closed. As part of the
closing, the rights, liabilities and obligations of the Company under the
Terminal Agreement for matters initially arising and attributable to periods
after the closing will be assigned by the Company and assumed by Xxxxxx
Xxxxxx, and, subject to the foregoing, Xxxxxx Xxxxxx will thereafter by
responsible for the performance of the Agreement in accordance with the terms
thereof. Both the Company and Xxxxxx Xxxxxx believe that the standard of
performance under the Agreement will be unchanged.
Section 20.1 of the
Terminal Agreement requires that any assignment by the
Company as aforesaid requires your consent, such consent not to be
unreasonably withheld. Accordingly, please indicate your consent to the
proposed assignment of the
Terminal Agreement to Xxxxxx Xxxxxx as aforesaid
by signing and returning the duplicate copy of this letter in the space
provided for below. In light of the anticipated time frame for our
transaction with Xxxxxx Xxxxxx, we would appreciate receiving your signed
consent no later than September 28, 2001.
Thank you very much for your anticipated cooperation.
Very truly yours,
STOLTHAVEN CHICAGO INC.
By /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President
We hereby acknowledge receipt of the
foregoing letter and agree to the
assignment of the aforesaid
Terminal
Agreement to Xxxxxx Xxxxxx Liquids
Terminals LLC.
Dated: September __, 2001
SOUTH DAKOTA SOYBEAN PROCESSORS
By /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: CFO
