Exhibit 10.11
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT is made and entered into this 12th day of
November, 2004, by and between East Kansas Agri-Energy, LLC, a Kansas limited
liability company ("OWNER") and UNITED BIO ENERGY MANAGEMENT, LLC, a Kansas
limited liability company ("MANAGER").
WHEREAS, OWNER intends to own and operate an ethanol production facility
located in or near Garnett, Kansas (the "Plant");
WHEREAS, MANAGER is in the business of managing and operating ethanol
production facilities such as the Plant; and
WHEREAS, OWNER desires to engage MANAGER as its managing agent at the
Plant, and MANAGER desires to accept such engagement upon all of the terms and
conditions hereinafter described.
NOW, THEREFORE, in consideration of mutual covenants contained herein, the
parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "ACCOUNTS" shall mean the account(s) established in accordance
with paragraph 12.
(b) "AGREEMENT" and the words "herein", "hereof", "hereby"
"hereunder", and words of similar import shall refer to this Management
Agreement as a whole and not to any particular provision unless expressly so
limited.
(c) "DAY", "QUARTER" and "YEAR" shall refer to a calendar day,
quarter and year, respectively, unless expressly provided otherwise.
(d) "EFFECTIVE DATE" shall mean the date on which MANAGER hires the
General Manager to provide the services described herein, which date shall not
be earlier than January 1, 2005.
(e) "GENERAL MANAGER" shall mean that Person who is employed by
MANAGER, from time to time, to act as the General Manager of the Plant and
perform the duties set forth in paragraph 13.
(f) "INCENTIVE BONUS" shall mean the amounts payable by OWNER to
MANAGER under paragraph 9.
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(g) "MANAGEMENT FEE" shall mean the amounts payable by OWNER to
MANAGER under paragraph 8.
(h) "MANAGER" shall mean United Bio Energy Management, LLC, a Kansas
limited liability company.
(i) "NET INCOME" shall mean the amount (if any) by which Operational
Revenues exceed Operational Costs, as determined using Generally Accepted
Accounting Principles applied on a consistent basis, as agreed to by and between
OWNER and MANAGER.
(j) "OPERATIONAL COSTS" shall mean all normal and reasonable costs
and expenses directly and indirectly associated with the daily operation of the
Plant including, without limitation, administration costs, the Management Fee,
legal and accounting, interest expense, book depreciation (not tax) and
amortization (as determined by an independent accounting firm approved by the
parties), utilities, production inputs, supplies, transportation, employee
salaries and benefits, maintenance, general supplies, raw material acquisitions,
and equipment maintenance. All Operational Costs are the direct obligation of
the OWNER and ultimately are to be paid by the OWNER. Operational Costs do not
include those expenses to be borne by MANAGER and not reimbursed by the terms of
this Agreement. Operational Costs do not include the Incentive Bonus to be paid
by OWNER to MANAGER, nor do they include costs incurred for capital
expenditures, including, but not limited to, purchases of equipment, hardware or
software technology, or expansion of the Plant, or any other costs or expenses
incurred that are associated, directly or indirectly, with items not included in
the definition of Operational Revenues.
(k) "OPERATIONAL REVENUES" shall mean all revenues from the operation
of the Plant. Operational Revenues shall not include any revenues from the sale
of the entire Plant, or any land adjacent thereto, or payments from the federal,
state and local government made directly to OWNER.
(l) "OWNER" shall have the meaning set forth above.
(m) "PERSON" shall mean any individual, corporation, partnership,
limited liability company, trust or other legal entity.
(n) "PLANT" shall have the meaning set forth above and shall include
the physical plant and equipment used for production of the Products.
(o) "PLANT CONTROLLER" shall mean that Person who is employed by
OWNER, from time to time, to act as the primary accountant of the Plant.
(p) "PRODUCTS" shall mean all items produced at the Plant including,
without limitation, ethanol and distillers grains.
(q) "PROPRIETARY INFORMATION" shall have the meaning set forth in
paragraph 14.
2. ENGAGEMENT OF MANAGER. OWNER hereby engages and designates
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MANAGER, and MANAGER hereby accepts such engagement and designation, on the
terms and conditions hereinafter set forth, as OWNER's managing agent to direct,
supervise, operate, maintain and manage the Plant.
3. DUTIES OF MANAGER. MANAGER is hereby authorized and directed by OWNER
to do all of the following and agrees, in each case on behalf of and at the
expense of OWNER, to:
(a) supervise and direct the general operations of the Plant and
operate it efficiently and effectively;
(b) hire, pay, supervise and discharge all employees necessary to
properly maintain and operate the Plant in accordance with OWNER's terms and
conditions of employment, provided, however, that MANAGER shall obtain the
approval of OWNER prior to reassigning or terminating the Plant Controller,
which approval shall not be unreasonably withheld, and cause to be prepared and
timely filed and paid all necessary returns, forms and payments in connection
with unemployment insurance, withholding, social security and other like
benefits and taxes, all such employees to be employees of OWNER and not of
MANAGER (notwithstanding the above, OWNER shall retain the right to unilaterally
terminate the services of the Plant Controller);
(c) prepare or cause to be prepared for review and approval of OWNER
an annual operating budget setting forth the anticipated income and expenses for
the Plant for the ensuing year, a comparison of such budget to the income and
expenses of the preceding and current years, and any required explanations with
respect thereto;
(d) set up and keep in good order separate, accurate and adequate
accounting records to be maintained for OWNER, and maintain orderly files
containing income records, insurance policies, leases and subleases,
correspondence, receipted bills and vouchers, and all other documents pertaining
to the Plant or the operation thereof, and prepare or cause to be prepared for
OWNER monthly and annual statements of account as of the end of each month and
year, all in accordance with paragraph 28;
(e) check all bills received for services, work and supplies ordered
in connection with maintaining and operating the Plant and pay, with OWNER's
funds, or cause to be paid all such expenses, mortgage interest and
amortization, ground rent, water charges, sewer rent, assessments, real estate
taxes, and other taxes assessed against the Plant as and when the same shall
become due and payable;
(f) establish and maintain the Accounts; collect payments from
customers of the Plant and take any and all actions MANAGER deems necessary or
desirable to collect such payments; deposit such payments into, and withdraw or
disburse such amounts from, the Accounts; all in accordance with paragraph 12.
(g) comply with all covenants of OWNER under the terms of any
mortgage loan affecting the Plant, subject to OWNER's duties in paragraph 6(a);
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(h) cause to be effected and maintained on the Plant the insurance
referred to in paragraph 29;
(i) notify OWNER and applicable insurance carriers of policies under
paragraph 29 of any serious bodily injury (including death) to any Person and
any substantial property damage, or claims as to either, that MANAGER has
knowledge of or should have knowledge of, and deliver to OWNER any legal process
received by it which affects or may affect OWNER or the Plant;
(j) contract for and cause the purchase of all services, grains,
supplies and other materials necessary for the Plant to produce the Products and
contract for and cause the marketing and sale of the Products; provided,
however, MANAGER shall not contract with an affiliate of MANAGER for any of the
items stated in this paragraph 3(j), without the prior approval of OWNER;
(k) contract for electricity, natural gas, water, waste water, fuel
oil, rubbish and snow removal, vermin extermination and such other services or
such of them as MANAGER deems necessary or advisable, provided, however, MANAGER
shall not contract for electricity, natural gas, water and waste water without
the prior approval of OWNER;
(l) contract for and cause the Plant and all fixtures, furnishings,
equipment, supplies, tools, and other materials and facilities thereof to be
maintained in good order and condition; to cause all routine repairs,
replacements and alterations to be made thereto; and to purchase such items
MANAGER deems necessary or desirable for the operation and maintenance of the
Plant; provided, however, that MANAGER shall not contract for any particular
item involving an expenditure in excess of $15,000, other than budgeted items,
without the prior approval of OWNER except in circumstances which MANAGER
reasonably believes constitutes an emergency requiring immediate action for the
preservation or safety of the Plant or its occupants or to avoid the suspension
of any necessary service;
(m) use its best efforts to cause the Plant and its operations to
comply with all applicable laws and regulations;
(n) act in compliance with OWNER's Operating Agreement and other
governing documents provided that (i) MANAGER has actual knowledge of OWNER's
Operating Agreement and other governing documents, and any amendments thereto,
and (ii) the terms of this Agreement shall not altered or amended by any of the
terms of OWNER's Operating Agreement and other governing documents and any
amendments thereto;
(o) reasonably cooperate with OWNER and its attorneys and accountants
in making any disclosures required by the Securities Act of 1933 and the
Securities Exchange Act of 1934 or any other securities laws;
(p) recommend and, subject to the approval of OWNER, cause all such
acts and things to be done in or about the Plant as shall be necessary to comply
with any and all orders or
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violations affecting the Plant placed thereon by any federal, state or municipal
authority having jurisdiction thereover, subject to OWNER's duties in
paragraph 6(a);
(q) cooperate with OWNER's accountants in regard to the preparation
and filing on behalf of OWNER of any income or other tax return; and
(r) provide benchmarking services to OWNER as described on EXHIBIT A
attached hereto.
4. AUTHORITY OF MANAGER. OWNER authorizes MANAGER, for OWNER's account
and on its behalf, to enter into contracts and perform any act or do anything
MANAGER deems necessary or desirable in order to carry out MANAGER's duties
under this Agreement, and everything done by MANAGER under the provisions of
this Agreement shall be done as agent of OWNER.
5. LIMITATIONS ON AUTHORITY OF MANAGER. Notwithstanding any other
provision in this Agreement to the contrary, MANAGER shall have no authority to
engage or discharge any accountants, auditors or attorneys without the written
consent of OWNER. Further, MANAGER shall have no authority to pay to itself the
Incentive Bonus until MANAGER and OWNER approve the financial statements for the
applicable quarter, in accordance with paragraph 9 below. Unless otherwise
authorized by OWNER and except as provided in paragraphs 3 and 4, MANAGER shall
have no authority regarding any matter not provided for under this Agreement.
6. DUTIES OF OWNER. OWNER shall act in good faith and do all things
reasonably requested by MANAGER to aid and assist MANAGER in the performance of
its duties under this Agreement including, without limitation, to provide:
(a) an accurate and complete copy of any and all contracts and other
obligatory instruments of OWNER necessary for MANAGER to perform its duties
under this Agreement;
(b) a comprehensive written semi-annual review and evaluation of
MANAGER's performance hereunder, within thirty (30) days after the end of the
second and fourth fiscal quarters of each year; and
(c) such executive office space, furniture, telephone, computer,
printer and other office equipment, including high speed internet services, for
the General Manager as may be reasonably agreed to by MANAGER and OWNER.
7. INDEPENDENT CONTRACTOR. MANAGER shall perform its duties under this
Agreement as an independent contractor. Nothing contained herein shall be
construed as creating a partnership or joint venture, nor construed as making
MANAGER an employee of OWNER. MANAGER shall have no right or power to act for
OWNER other than as contemplated in this Agreement or otherwise expressly
authorized by OWNER.
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8. MANAGEMENT FEE. OWNER shall pay to MANAGER an annual management fee of
$250,000.00 payable at a monthly rate of $20,833.33, which shall be due and
payable in advance on the 1st day of each month during the term of this
Agreement. If the Effective Date of this Agreement is on a day other than the
first day of a calendar month or ends on a day other than the last day of a
calendar month, then the Management Fee will be appropriately prorated by
MANAGER based on the actual number of calendar days in such month.
9. INCENTIVE BONUS. In addition to the Management Fee, OWNER shall pay to
MANAGER an annual Incentive Bonus based on Net Income for each year during the
term of this Agreement or, in the event the term of this Agreement includes a
part of a year, such partial year. The Incentive Bonus shall be due and payable
in quarterly installments. The amount of the Incentive Bonus payable to the
MANAGER for the first, second and third quarters of each year shall be
calculated under Table 1 below and shall be due and payable within thirty (30)
days after the end of each quarter or, if later, approval of the monthly
financial statements for that quarter by MANAGER and OWNER; provided, however,
that in no event shall the quarterly installment of the Incentive Bonus be made
more than sixty (60) days after the end of such quarter. The amount of Incentive
Bonus payable to MANAGER for the final quarter of each year shall equal the
amount calculated under Table 2 below less the aggregate amount of the Incentive
Bonus paid to MANAGER for the prior quarters in such year. In no event shall the
annual aggregate amount of the Incentive Bonus paid to MANAGER for any year
exceed $275,000. In the event the aggregate amount of Incentive Bonus paid to
MANAGER for the prior quarters of any year exceeds the amount calculated under
Table 2 for the final quarter of such year, MANAGER shall refund the amount of
such excess to OWNER. The payment or refund, as the case may be, for the final
quarter of each year shall be made within thirty (30) days after the annual
audit for such year; provided, however, that in no event shall the final payment
or refund of the Incentive Bonus be made more than one hundred twenty (120) days
after the end of such year.
Table 1
Quarterly Net Income Percentage
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$ 0-125,000 0%
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$ 125,000 and up 4%
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Table 2
Annual Net Income Percentage
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$ 0-500,000 0%
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$ 500,001 and up 4%
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The calculation for the quarterly payment of the Incentive Bonus under Table 1
above shall be based on Net Income for the applicable quarter. The calculation
for the final payment or refund of the Incentive Bonus under Table 2 above shall
be the cumulative Net Income for the applicable year. In the event the term of
this Agreement is terminated prior to the end of any year, the cumulative Net
Income for such year shall be determined through the date of termination and the
Incentive Bonus for the quarter which includes such date of
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termination shall be calculated as if such quarter was the final quarter for
such year (i.e., the amount calculated under Table 2 above less the aggregate
amount of the Incentive Bonus paid to MANAGER for the prior quarters in such
year).
As an example, if Net Income for the first quarter of the year is $750,000, the
Incentive Bonus payable to MANAGER for that quarter under Table 1 above would be
$25,000 (i.e., 4% of $625,000 [$750,000 less $125,000]). If Net Income for the
second quarter of the year is $1,500,000, the Incentive Bonus payable to MANAGER
for that quarter under Table 1 above would be $55,000 (i.e., 4% of
$1,375,000[$1,500,000 less $125,000]). If Net Income for the third quarter of
the year is $2,000,000, the Incentive Bonus payable to MANAGER for that quarter
under Table 1 above would be $75,000 (i.e., 4% of $1,875,000 [$2,000,000 less
$125,000]). If the cumulative Net Income for the year is $6,000,000 for purposes
of calculating the final payment or refund under Table 2 above, the Incentive
Bonus payable to MANAGER for the final quarter would be $65,000 (i.e., 4% of
$5,500,000 less aggregate payments of $155,000 for the prior fiscal quarters in
such year). In contrast, if the cumulative Net Income for the year is $3,500,000
for purposes of calculating the final payment or refund under Table 2 above, the
Incentive Bonus to be refunded by MANAGER would be $35,000 (i.e., 4% of
$3,000,000 [$3,500,000 less $500,000]) less aggregate payments of $155,000 for
the prior quarters in such year).
10. REIMBURSEMENT FOR EXPENSES. All reasonable and necessary costs and
expenses incurred by MANAGER in connection with the performance of its duties
hereunder shall be paid by OWNER except as otherwise provided in paragraph 11.
OWNER shall reimburse MANAGER within ten (10) days after notice of such
expenses.
11. NON-REIMBURSABLE EXPENSES. MANAGER shall be responsible for payment
of, and shall not be entitled to any reimbursement from OWNER for, the following
costs and expenses:
(a) all compensation payable to the General Manager including related
payroll taxes and benefits;
(b) all fees (if any) normally charged by MANAGER for providing access
to any group pricing for yeast, enzymes, chemicals, spare parts, or other
products or services used at the Plant;
(c) all fees (if any) charged by ICM, Inc. and Xxxxx Engineering, LLC
for consultations and engineering services concerning the design of, and
equipment used in the design of, the Plant, provided however, OWNER shall be
responsible for all fees associated with such services for the construction and
start up of the Plant and for any such fees associated with any improvement or
expansion of the Plant;
(d) all fees (if any) normally charged by MANAGER for providing its
basic level of bench marking services described on Exhibit A attached hereto;
provided, however, in the event OWNER desires bench marking services in addition
to those provided under such basic level,
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OWNER shall pay all fees associated with such additional services;
(e) all travel expenses incurred by MANAGER unless previously approved
by OWNER;
(f) all moving expenses incurred by MANAGER shall be reimbursable by
OWNER pursuant to Section 10 above; provided, however, that if aggregate moving
expenses exceed $20,000 for any given year, the amount in excess of $20,000
shall not be reimbursable by OWNER; and
(g) all expenses incurred in connection with the engagement of any
headhunter agency or other employee retention agency shall be divided equally
between OWNER and MANAGER with one-half payable by OWNER and one-half payable by
MANAGER.
12. ESTABLISHMENT OF ACCOUNTS. MANAGER shall establish and maintain one or
more accounts with banks or other financial institutions designated by OWNER
and:
(a) all funds of OWNER relating to the Plant shall be deposited in
OWNER's name in the Accounts and shall be held in trust;
(b) no funds of OWNER shall be commingled with any other funds of
MANAGER or of others;
(c) withdrawals from the Accounts shall be made only in the regular
course of MANAGER's services in operating the Plant and shall be made upon such
signature or signatures as OWNER may designate; provided, however, MANAGER shall
be authorized to draw checks and make withdrawals from the Accounts to pay any
particular cost or expenditure in order to carry out its duties under this
Agreement;
(d) MANAGER shall be entitled to withdraw from the Accounts and retain
its (i) Management Fee, and (ii) Incentive Bonus after the approval of OWNER and
MANAGER of the financial statements for the applicable quarter, in accordance
with paragraph 9 above, and if the Accounts shall be insufficient to withdraw
such amounts, MANAGER shall be entitled to be reimbursed by OWNER within ten
(l0) days after written request therefor; and
(e) Any cost or expense made by MANAGER hereunder shall be made out of
such funds as MANAGER may from time to time hold in the Accounts or as may be
provided by OWNER. MANAGER shall not be obligated to make any advance to or for
the account of OWNER or to pay any amount except out of the funds so held or
provided, nor shall MANAGER be obligated to incur any liability or obligation
unless OWNER shall furnish MANAGER with the necessary funds for the discharge
thereof. If MANAGER shall advance out of its own funds for OWNER's account any
amount for the payment of any obligation of OWNER or ordinary and necessary cost
or expenses directly related to the Plant, OWNER shall promptly reimburse
MANAGER therefor within ten (l0) days after written request therefor or MANAGER
may reimburse itself therefor out of the Accounts and Operating Revenues as
collected.
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13. DUTIES OF GENERAL MANAGER. MANAGER shall provide the full time
services of a General Manager. The General Manager shall work exclusively for
the Plant and shall be based at the location of the Plant. MANAGER will endeavor
in good faith to keep the General Manager at the Plant and to refrain from
transferring the General Manager from the Plant prior to the termination of this
Agreement, provided, however, that nothing in this paragraph shall be construed
or interpreted as restricting MANAGER's right and authority to terminate,
remove, reprimand or replace a General Manager if, in its sole discretion,
MANAGER deems such action necessary or advisable for the proper performance of
its duties hereunder. Subject to the policies set by the OWNER, the General
Manager's responsibilities include the following:
(a) To manage all business operations, Plant operations, purchasing
operations, marketing operations, personnel operations, safety and any and all
other items relating to Plant operations and profitability.
(b) To timely report such information to OWNER on a regular and
reasonable basis;
(c) To promote, and refrain from any act that would adversely impact, a
positive image of the Plant in the community;
(d) To use his or her best efforts to ensure that the Plant complies
with all applicable orders, rules, laws and regulations;
(e) To administer the wage and benefit package of OWNER recommended by
MANAGER and approved by OWNER;
(f) To cause all repairs and all purchases of replacement items,
chemicals, enzymes, supplies, and other items necessary for the operations of
the Plant and to review all invoices regarding the same;
(g) To use his or her best efforts to minimize Operational Costs;
(h) To administer the purchasing of grains and the marketing of the
Products to ensure the best pricing scenarios for such grain and Products, to
the extent MANAGER does not delegate such responsibilities to, or contracted for
such services with, another Person; and
(i) To perform any and all other duties assigned by MANAGER or, with
the prior approval of MANAGER, perform any and all other duties assigned by
OWNER in connection with MANAGER's duties hereunder.
14. PROPRIETARY INFORMATION. During the term of this Agreement, the
parties may furnish, to each other information including, but not limited to,
specifications, photocopies, magnetic tapes, drawings, sketches, models,
samples, tools, technical information, data, knowhow, customer and market
information, financial reports, precontractual negotiations, engineering
studies, consultants' studies, options for site purchases, and relationships
established with experts, consultants and governmental agencies (all hereinafter
designated as "Proprietary
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Information") in connection with the operations of the Plant. The party
furnishing such Proprietary Information to the other party shall have the
exclusive right and interest in and to such Proprietary Information and the
goodwill associated therewith. A party will not directly or indirectly contest
the ownership of Proprietary Information furnished by the other party in writing
or furnished verbally and then documented in writing within seven (7) days. The
use of the Proprietary Information of a party in the operations of the Plant
does not give the other party any ownership interest or other interest in or to
such information; provided, however, the MANAGER, upon termination of this
Agreement, shall grant to OWNER at no additional cost (other than the license
fee payable by OWNER to MANAGER under paragraph 17 below) a nonexclusive
perpetual limited license to use, solely for the continued operations of the
Plant, such Proprietary Information of MANAGER that is then utilized in the
operation of the Plant and necessary for the continued operations of the Plant.
Any modifications or additions to the Proprietary Information of a party made by
the other party will only be property of such other party if the modifications
or addition stands alone separately without any portion of such Proprietary
Information. Nothing in this Paragraph shall be construed as requiring any party
to furnish any Proprietary Information to the other party. Proprietary
Information developed by MANAGER or any of its employees or agents during the
term of this Agreement or the operations of the Plant shall not be considered
"work for hire" and, between the parties hereto, MANAGER shall have the
exclusive right and interest in and to such Proprietary Information and the
goodwill associated therewith. Notwithstanding the foregoing, if any Proprietary
Information is jointly developed by the parties, such Proprietary Information
shall be jointly owned by the parties. For purposes of this paragraph,
Proprietary Information shall not include:
(a) Information of a party that at the time furnished to the other
party is in the public domain or becomes part of the public domain by
publication or otherwise through no fault of the other party or its employees or
agents;
(b) Information of a party that at the time furnished to the other
party was in the possession of the other party as shown by written records and
was independently developed by the other party or obtained from a source on a
non-confidential basis by a Person entitled to disclose it; or
(c) Information concerning the operations of the Plant that is
furnished to MANAGER for purposes of its performance of any bench marking
services.
Proprietary Information is confidential and proprietary. Each party shall
keep the Proprietary Information of the other party confidential and shall use
all reasonable efforts to maintain the Proprietary Information as secret and
confidential. Failure to so maintain the Proprietary Information of a party as
confidential shall entitle such party to any damages stemming from such failure,
to include without limitation, reasonable attorneys' fees. A party shall not at
any time without the prior written consent of the other party, copy, duplicate,
record or otherwise reproduce the Proprietary Information of such other party,
in whole or in part for any unauthorized Persons, or otherwise make the same
available to any unauthorized Person. Each party agrees that the other party
would be irreparably damaged by reason of any violation of the confidentiality
provisions contained herein and that any remedy at law for a breach of such
provisions would be inadequate. Therefore, a party shall be entitled to seek
injunctive or other
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equitable relief in a court of competent jurisdiction against the other party,
its agents, employees, officers or other associates, for any breach or
threatened breach of the confidentiality covenants contained herein without the
necessity of proving actual monetary loss. It is expressly understood that the
remedy described herein shall not be the exclusive remedy of a party for any
breach of such covenants, and such party shall be entitled to seek such other
relief or remedy, at law or in equity, to which it may be entitled as a
consequence of any breach of such covenants. Nothing in this paragraph shall be
construed so as to inhibit OWNER's ability to make necessary disclosures as
required by the Securities Act of 1933 or the Securities Exchange Act of 1934 or
any other applicable securities laws, provided, however, any disclosure of
Proprietary Information of MANAGER shall require the prior written consent of
MANAGER, which shall not be unreasonably withheld.
15. TERM. This Agreement shall commence on the Effective Date and shall
terminate on the fifth anniversary of that date, unless earlier terminated
pursuant to paragraph 16. Unless earlier terminated in accordance with this
Agreement, this Agreement shall be automatically extended for successive one (1)
year terms thereafter unless either party gives written notice to the other
party of its election not to renew, not later than ninety (90) days prior to the
expiration of the then current term.
16. EARLY TERMINATION. This Agreement shall be subject to earlier
termination during the term hereof as follows:
(a) by OWNER upon a default by MANAGER which remains uncured for more
than twenty (20) days after written notice thereof, unless the same is
susceptible to being cured but not within a period of twenty (20) days and due
and diligent efforts to effect such cure have been commenced during such twenty
(20) day period and are continuing;
(b) by MANAGER upon a default by OWNER in (i) the due and punctual
payment of any installment of the Management Fee or Incentive Bonus to MANAGER
unless such default is cured by OWNER within ten (10) days after written notice
thereof, (ii) reimbursing MANAGER for any cost or expense under paragraph 10,
unless such default is cured by OWNER within ten (10) days after written notice
thereof, or (iii) any persistent instruction or order by OWNER to operate the
Plant in a way in which a violation of any applicable law or regulation is
likely to occur;
(c) by either party upon not less than five (5) days notice to the
other in the event a petition is filed against the other party to declare it
bankrupt or to require an arrangement or its reorganization under the Bankruptcy
Act or any similar insolvency statute and, if involuntary, such petition is not
dismissed within sixty (60) days;
(d) immediately and without further action by either party upon the
occurrence of (i) a taking by condemnation or similar proceeding of the Plant,
or (ii) the damage or destruction of all or substantially all of the Plant by
fire or other casualty.
17. LICENSE FEE. In order to compensate MANAGER for OWNER's continued use
of MANAGER's Proprietary Information (including, without limitation, the
management system(s)
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established and implemented by MANAGER at the Plant during the term of this
Agreement), OWNER shall pay to MANAGER a license fee of $250,000 at a monthly
rate of $10,417 for twenty-four (24) months after the termination of this
Agreement, for any reason, and whether during the initial term or any renewal
term thereof. The first monthly installment shall be due and payable on the date
of termination of this Agreement and each successive monthly installment shall
be due and payable on the same day of each month thereafter during such
twenty-four (24) month period after termination.
18. DISPUTE RESOLUTION. The parties shall attempt to settle amicably any
dispute or difference of any kind whatsoever, arising out of or in connection
with the validity or invalidity, construction, execution, meaning, operation or
effect or breach of this Agreement (exept for any such dispute or difference
involving paragraph 14). If the parties do not promptly do so, either party may,
by written notice to the other party, call for private mediation of the issue
before a mediator to be agreed upon by the parties. The parties agree to
conclude such private mediation within thirty (30) days of the filing by a party
of a request for such mediation. In the event of a dispute between the parties
that is not resolved by such mediation, either party may, by written notice to
the other party, call for private binding non-appealable arbitration of the
issue before a single arbitrator agreed upon by the parties. In the event a
single arbitrator cannot be agreed upon, each party shall appoint a third party
arbitrator from a list provided by the American Arbitration Association (AAA)
(not a principal of a party) and the two arbitrators thus selected by the
parties shall select a third arbitrator. The arbitrators shall meet as
expeditiously as possible to resolve the dispute, and a majority decision of the
arbitrators shall be controlling. While each party is free to select an
arbitrator of its own choosing from the list provided by the AAA, either party
by written notice to the other may require that all arbitrators chosen have
sufficient expertise in the subject matter of the arbitration that they would
qualify as "expert witnesses" in a judicial proceeding.
The arbitrators so chosen shall conduct the arbitration in accordance with the
Rules of the AAA as applicable in the State of
Kansas. Such arbitration shall
take place at a mutually agreed upon location. The arbitrators shall be
governed, in their determinations hereunder, by the intention of the parties as
evidenced by the terms of this Agreement. The decision of the arbitrator shall
be rendered in writing and shall be final and binding upon the parties and shall
be non-appealable. Judgment upon the award rendered may be entered by either
party and enforced in any court having competent jurisdiction. The parties shall
share the procedural costs of the mediation and arbitration equally. Each party
shall pay its own attorney's fees and costs incurred by it relating to the
mediation and arbitration. Notwithstanding the foregoing sentences, the parties
hereby authorize the abritrators to award costs and fees to the prevailing party
as the arbitrators deem appropriate.
Pending resolution of such dispute or difference and without prejudice to their
rights, the parties shall continue to respect all their obligations and to
perform all their duties under this Agreement; provided, however, the parties
shall not be obligated to perform their obligations after this Agreement has
been terminated by any party pursuant to paragraph 16, or if such termination is
the dispute being arbitrated.
After signing this Agreement, each party understands that it will not be able to
bring a lawsuit
12
concerning any dispute that may arise that is covered by this arbitration
provision (other than to enforce the arbitration decision). The parties hereby
agree that any dispute or difference involving paragraph 14 shall not be subject
to this mediation or arbitration provision.
19. ASSIGNMENT. This Agreement and the duties and obligations hereunder
may not be assigned by either party without the prior written consent of the
other party and, if applicable, the primary lender of OWNER.
20. HEADINGS. The paragraph headings contained herein are for convenience
only and are not intended to define or limit the scope or intent of any
provisions of this Agreement.
21. GOVERNING LAW. The validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties hereto
shall be governed by the laws of the State of
Kansas.
22. NOTICES. Any notice required or permitted herein to be given shall be
given in writing and shall be delivered by United States registered or certified
mail, return receipt requested, to MANAGER or OWNER, as the case may be, to the
Person and at the address set forth below, or to such other Person or other
address as MANAGER or OWNER shall provide notice of from time to time during the
term of this Agreement, and notice shall be deemed to have been given to the
party to whom it is addressed forty-eight (48) hours after such delivery:
OWNER: East
Kansas Agri-Energy, LLC
Attn: Xx. Xxxx Xxxxxx, President
210 1/2 East (4)th Avenue, X.X. Xxx 000
Xxxxxxx, XX 00000
MANAGER: United Bio Energy Management, LLC
Attention: Xxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxx 00000
23. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the respective parties and their permitted assigns and successors in
interest.
24. SEVERABILITY. Should any term or provision hereof be deemed invalid,
void, or unenforceable either in its entirety or in a particular application,
the remainder of this Agreement shall nonetheless remain in full force and
effect and, if the subject term or provision is deemed to be invalid, void or
unenforceable only with respect to a particular application, such term or
provision shall remain in full force and effect with respect to all other
applications. If, however, any court of competent jurisdiction or any
arbitration proceeding should render a final judgment that the authority granted
to MANAGER from OWNER exceeds the bounds of permissible delegation under
applicable law, the parties agree that this Agreement shall be deemed amended,
modified and reformed to the extent necessary to reduce the scope of authority
so delegated to that deemed legal by written legal opinion of special counsel to
OWNER. The parties agree that in no event shall any determination that the
discretion and authority granted to MANAGER
13
hereunder exceeds permissible bounds result in this Agreement being declared or
adjudged invalid, void, or unenforceable in its entirety; rather, the parties
request that any court or arbitration proceeding examining such issue employ
great latitude in reforming the Agreement so as to make the Agreement as
reformed valid and enforceable.
25. INDEMNIFICATION BY OWNER. OWNER shall indemnify, hold harmless and
defend MANAGER, its employee and agents from and against any and all actual
claims, losses, damages, liabilities and expenses (including reasonable
attorneys' fees) resulting from or arising out of MANAGER's performance of its
duties hereunder; provided, however, OWNER shall not be liable to MANAGER, its
employees or agents for any actual claims, losses, damages, liabilities or
expenses resulting from or arising out of the grossly negligent acts or willful
misconduct of MANAGER in the performance of its duties hereunder unless such
acts were performed by MANAGER at the express instruction of OWNER.
26. INDEMNIFICATION BY MANAGER. MANAGER shall indemnify, hold harmless and
defend OWNER, its employees and agents from and against any and all actual
claims, losses, damages, liabilities and expenses (including reasonable
attorneys' fees) resulting from or arising out of the grossly negligent acts or
willful misconduct of MANAGER in the performance of its duties hereunder;
provided, however, MANAGER shall not be liable to OWNER, its employees and
agents for any actual claims, losses, damages, liabilities or expenses resulting
from or arising out of acts performed by MANAGER at the express instruction of
OWNER.
27. WAIVER AND RELEASE OF CLAIMS FOR ACTS AND OMISSIONS OF AFFILIATES.
MANAGER hereby acknowledges that OWNER is entering into separate service
agreements with certain affiliates of MANAGER (i.e., United Bio Energy Trading,
LLC, United Bio Energy Ingredients, LLC, and United Bio Energy Fuels, LLC), and
that the services provided by one or more of those affiliates to MANAGER under
such agreements may include acting on behalf of and/or performing certain duties
or obligations of OWNER under the terms and provisions of this Agreement. In the
event an act or omission of one or more of those affiliates in the performance
of services pursuant to such agreements results in a breach of this Agreement by
OWNER, MANAGER hereby agrees to waive and release OWNER from any and all claims
that MANAGER may have against OWNER as a result of such breach.
28. WAIVER OF CONSEQUENTIAL DAMAGES. Notwithstanding any other provision
of this Agreement, the parties agree to waive any and all claims against each
other for consequential losses or damages whether arising in contract, warranty,
tort (including negligence), strict liability or otherwise (other than any
consequential losses or damages resulting from a breach of the covenants set
forth in paragrah 14), including, but not limited to, losses of use, profits,
business, reputation or financing.
29. BOOK AND RECORDS. During the Term of the Agreement, MANAGER shall:
(a) keep or cause to be kept full and true books of account in which
shall be entered fully and accurately each transaction relating to the Plant;
(b) maintain or cause to be maintained all books of account, together
with all records,
14
bills, receipts, vouchers, correspondence and files relating to the management
and operation of the Plant at the Plant and, at MANAGER's discretion, MANAGER
may maintain a copy of the aforementioned items at the principal office of
MANAGER, and the Plant shall be open during reasonable business hours to the
inspection of OWNER or its representative, who shall be entitled to make copies
or extracts thereof and, with the cooperation of MANAGER, inquire directly with
or request the assistance of the Plant Controller relating to OWNER's inspection
in accordance with this paragraph; such books of account, together with all
records, bills, receipts, vouchers, correspondence and files relating to the
management and operation of the Plant to remain at all times during the term of
this Agreement or thereafter the sole property of OWNER;
(c) make the Plant Controller available for any requests of OWNER
related to inquiries regarding the books and records and the preparation and
submission of financial reports to OWNER; and
(d) prepare or cause to be prepared each year in reasonable detail and
sent to OWNER within a reasonable period of time after the close of such year
(a) annual reports of the Plant, including an annual balance sheet and profit
and loss statement and (b) all federal, state and local income tax returns and
information returns, if any, which OWNER is required to file.
30. INSURANCE. At all times during the Term of this Agreement, MANAGER
shall, at OWNER's expense, procure and maintain insurance against such hazards,
in such amounts, and with such carriers as the parties may mutually determine
from time to time. MANAGER shall be named as an additional insured on all such
policies. All such policies shall contain provisions to the effect that in the
event of payment of any loss or damage the insurers will have no rights of
recovery against any of the insureds or additional insureds thereunder. OWNER
waives all rights against MANAGER and its employees and agents for all losses
and damages caused by, arising out of or resulting from any of the perils or
causes of loss covered by such policies and any other insurance applicable to
the Plant maintained by OWNER.
Also during the term of this Agreement, MANAGER shall purchase and maintain
commercial general liability insurance, with combined single limits of not less
than $2,000,000 which shall be endorsed to require at least thirty (30) days
notice to OWNER prior to the effective date of any termination or cancellation
of coverage. OWNER shall be named as an additional insured on all such policies
and MANAGER shall provide a certificate of insurance to OWNER to establish the
coverage maintained by the commencement date of this Agreement.
31. FORCE MAJEURE. Any delays in or failure of performance of any of the
respective obligations of this Agreement of either party hereto shall not
constitute default or give rise to any claims for damages if and to the extent
such delays or failure of performance are caused by occurrences not within the
reasonable control or at the fault of the party affected, which, by exercise of
due diligence and foresight, could not reasonably have been avoided, including,
but not limited to: acts of God or the public enemy; expropriation or
confiscation of facilities; compliance with any order or decree of any
governmental authority; cable cut; acts of war or terrorism, abnormal severe
weather, rebellion or sabotage or damage resulting therefrom; fires; floods;
explosion; riots; strikes or other concerted acts of workmen; accidents or other
casualty. The party rendered unable to fulfill any obligation by reason of Force
Majeure shall exercise due
15
diligence to remove such inability with all reasonable speed and diligence and
in accordance with prudent industry practices. However, the obligation to use
due diligence shall not be interpreted to require resolution of labor disputes
be acceding to demands of the opposition when such course is inadvisable in the
discretion of the party having such difficulty.
32. WAIVERS. No waiver of any breach of any of the terms or conditions of
this Agreement shall be held to be a waiver of any other subsequent breach; nor
shall any waiver be valid or binding unless the same shall be in writing and
signed by the party alleged to have granted the waiver.
33. COUNTERPARTS. This Agreement may be executed in multiple counterparts
all of which shall constitute but one Agreement.
34. AMENDMENT. This Agreement is the entire Agreement between the parties
relating to the subject matter hereof. Any amendment hereto must be in writing
and signed by both parties hereto to come into full force and effect.
35. SURVIVAL. All provisions of this Agreement, including, without
limitation, all covenants of confidentiality and indemnity contained in this
Agreement, shall survive and remain in full force and effect notwithstanding any
termination or expiration of this Agreement.
36. PRONOUNS. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the Person or Persons may require.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
East
Kansas Agri-Energy, LLC
/s/ Xxxx Xxxxxx
------------------------------------------
By: Xxxx Xxxxxx
--------------------------------------
Title: Chairman
-----------------------------------
"OWNER"
United Bio Energy Management, LLC
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: President
-----------------------------------
"MANAGER"
In consideration of OWNER entering into this Agreement and other valuable
16
consideration, the undersigned, being the sole owner of MANAGER, hereby
unconditionally guaranties the full and prompt performance by MANAGER of all of
its duties and obligations under the terms and provisions of this Agreement.
Dated this 12th day of NOVEMBER, 2004.
United Bio Energy, LLC, a
Kansas limited liability
company
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: President
-----------------------------------
17
EXHIBIT A
BASIC LEVEL BENCHMARKING SERVICES
On a weekly basis, the General Manager shall be responsible for compiling
data regarding the information below:
Laboratory Data Production Data
--------------- ---------------
Milling Grain processed
Xxxx system Ethanol produced
Fermentation Dried Distiller's Grains produced
Distillation Wet Distiller's Grains produced
Evaporation Energy consumption
Centrifuges Water Usage
Dryer Chemical Usage
Wet Feed
On Friday of each week, the General Manager shall be responsible for
forwarding such data to MANAGER in an electronic format. The data shall be
reviewed and analyzed and an estimate will be prepared showing the Plant's
operating costs based on the data provided. On the first Friday after the last
day of the preceding month, or as soon thereafter as practicable, MANAGER shall
provide to OWNER a report which summarizes the data from the Plant and evaluates
the performance of the same, based on the Plant's operating costs, and compares
the Plant's data and performance to:
1. The average figures, for the data listed above, and the average
operating costs determined from all plants who receive benchmarking services
through MANAGER; and
2. The plant with the best data and performance among those plants who
receive benchmarking services through MANAGER.
MANAGER shall not be required to disclose to OWNER the identity of the
plant with the best performance in any particular period, although, MANAGER may
disclose to OWNER the identity of those plants who receive benchmarking services
from MANAGER.
At the discretion of the parties, MANAGER or OWNER may change the specific
days, of the week or month, on which the data is compiled, analyzed and
presented to OWNER.
18
