JOINT VENTURE AGREEMENT
EXHIBIT
10.1
THIS
JOINT VENTURE AGREEMENT (the “JV Agreement“) is made and entered into effective
as of September
17, 2006 (the “Effective Date”), by and between Star
Ethanol, LLC,
an
Illinois limited liability company (“Star”), and Ethanex
Energy, Inc.,
a
Nevada corporation (“Ethanex”). Ethanex and Star shall be referred to
individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The
Parties signed a non-binding letter of intent dated August
15, 2006, as subsequently amended (the “LOI”) regarding the establishment of a
joint venture company to construct and operate a 132 million gallon ethanol
production facility in Franklin County, Illinois utilizing fractionation
technology in the production of ethanol and ethanol-related products.
B. The
Parties now desire to formally organize a limited liability company under the
laws of the State of Illinois (the “Company”) through which they will construct
an ethanol facility and develop, manufacture, distribute, and sell ethanol
and
ethanol-based products.
C. Each
Party shall collaborate and lend its expertise to the successful achievement
of
the Company’s commercial objectives.
D.
The
Parties enter into this JV Agreement to set out the terms governing the
management and operations of the Company and the Parties’ investment and
relationship as Members in the Company.
NOW,
THEREFORE, in consideration of the above Recitals, which are incorporated herein
by this reference, and the mutual promises, agreements and covenants set forth
in this JV Agreement, Star
and
Ethanex agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
In
this
JV Agreement, unless otherwise clearly indicated by the context, the following
terms, whether used in singular or plural forms, shall have the following
meanings:
|
1.1
|
“Articles
of Organization” means the Articles of Organization to be filed with the
Illinois
Secretary of State’s office for purposes of legally organizing the
Company, in the form attached hereto as Exhibit
1.
|
|
1.2
|
“Assignment
Agreement” means the Assignment Agreement between Ethanex and the Company,
in the form attached hereto as Exhibit
4,
to be executed on the Effective Date pursuant to Section
8.1
of
this JV Agreement.
|
|
1.3
|
“Construction
Start Date” means shall have the meaning ascribed to such term in the
definitive agreement among the Company and the Company’s designated EPC
contractor.
|
|
1.4
|
“Contribution
Agreement” means the Contribution Agreement between Star and the Company,
in the form attached hereto as Exhibit
3,
to be executed on the Effective Date pursuant to Section
8.2
of
this JV Agreement.
|
|
1.5
|
“Deposit”
means the sum of $2,000,000 to be paid by Ethanex to the Company
upon the
execution of this JV Agreement, as more fully described in Article
3
below.
|
|
1.6
|
“Effective
Date” has the meaning set forth in the
preamble.
|
|
1.7
|
“Equity
Determination Date” means the earlier of the Mechanical Completion Date
and September 31, 2008.
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|
1.8
|
“Mechanical
Completion Date” shall have the meaning ascribed to such term in the
definitive agreement among the Company and the Company’s designated EPC
contractor.
|
|
1.9
|
“Operating
Agreement” means the Operating Agreement of the Company by and among
Ethanex, Star and the Company, in the form attached hereto as Exhibit
2,
to be executed on the Effective
Date.
|
|
1.10
|
“Plant”
means a 132 million gallon per year nameplate ethanol production
plant to
be constructed and operated by the Company on the Plant Site.
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|
1.11
|
“Plant
Site” means certain real property located in Franklin County,
Illinois.
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|
1.12
|
“Related
Agreements” means the following agreements each to be dated and deemed
effective as of the Effective Date: (i) Operating Agreement, (ii)
Contribution Agreement, and (iii) Assignment
Agreement.
|
|
1.13
|
“Star
Assets” means the assets of Star to be contributed as initial capital of
the Company including all of the assets owned, controlled by, or
licensed
to Star or its subsidiaries including, but not limited to all cash,
equipment, buildings and improvements, start-up costs, land leases,
intellectual property, licenses and sublicenses, purchase agreements,
construction and engineering contracts, and business plans. The assets
to
be contributed shall include all of the assets owned, controlled
by, or
licensed to Star or its affiliates with the right to sublicense,
including
all of the assets owned or controlled by Star or its affiliates located
at
the Facility including, without limitation, all leases, licenses,
permits,
governmental authorizations, intellectual and other intangible property,
real property, personal property, equipment, materials, supplies,
prepaid
deposits, accounts receivable, claims and causes of
action.
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2
|
1.14
|
“Third
Party” means any person or legal entity other than Ethanex, Star, or the
Company.
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|
1.15
|
“Member,”
“Membership Interest,” “Board” and “Manager” shall have the meanings set
forth in the Operating Agreement.
|
|
1.16
|
In
this JV Agreement, except to the extent that the context otherwise
requires (i) whenever the words “include,” “includes” or “including” are
used they are deemed to be followed by the words “without limitation,” and
(ii) the definitions contained in this JV Agreement are applicable
to the
singular as well as the plural of such terms.
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ARTICLE
2
ORGANIZATIONAL
MATTERS OF COMPANY
| 2.1 |
| 2.2 |
The
name of the Company shall be Ethanex Southern Illinois,
LLC.
|
| 2.3 |
Subject
to the terms and conditions of this JV Agreement, on the Effective
Date,
the Parties shall adopt and execute the Operating Agreement in the
form
attached hereto as Exhibit
2.
The Operating Agreement shall more fully set forth the rights and
obligations of the Members in the Company and, to the extent permitted
by
applicable law, shall be consistent with the terms of this JV Agreement.
|
| 2.4 |
The
duration of the Company shall be perpetual subject to the provisions
of
this JV Agreement and the Operating Agreement.
|
| 2.5 |
The
purpose of the Company will be to (i) construct and operate the Plant,
(ii) develop, manufacture, distribute and sell ethanol and ethanol-based
products, and (iii) engage in all activities necessary, customary,
convenient or incident to the activities described herein.
|
3
ARTICLE
3
DEPOSIT;
DISPOSITION OF DEPOSIT
| 3.1 |
Upon
the signing of this JV Agreement, Ethanex
shall make an initial capital contribution to the Company in the form
of
the Deposit.
|
| 3.2 |
In
the event that this JV Agreement is terminated before the Effective
Date
or the Parties, for any reason, are unable to come to agreement on
the
Related Agreements or any other definitive transaction documents, then
the
Company shall be obligated to refund the Deposit to Ethanex.
|
| 3.3 |
In
the event, however, the Related Agreements and any other definitive
transaction documents necessary for the JV contemplated hereby are
entered
into and the JV is subsequently terminated, the Deposit shall be treated
as a portion of Ethanex’s initial capital contribution.
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ARTICLE
4
INITIAL
CAPITAL CONTRIBUTIONS
| 4.1 |
Upon
the Effective Date, and contemporaneously with the execution of the
Related Agreements, Ethanex shall contribute management expertise,
goodwill and tangible and intangible assets of Ethanex. Ethanex will
also
undertake to raise the project financing necessary to complete
construction of the Plant in part through the sale of Ethanex
securities.
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| 4.2 |
Subject
to adjustment as set forth in this Section
4.2,
Star shall make an initial capital contribution of Eleven Million Two
Hundred and Fifty Thousand Dollars ($11,250,000) an amount representing
the anticipated equity contribution necessary for Star to secure a
fifteen
percent 15% equity interest in the Plant based upon an anticipated
Two
Hundred and Fifty Million Dollar ($250,000,000) cost of construction
with
seventy percent (70%) leverage. One half (1/2) of such contribution
or
Five Million Six Hundred Twenty-Five Thousand Dollars ($5,625,000)
shall
be due within 60 days of the Effective Date. Star shall contribute
the
amounts called for in this Section
4.2
in
cash, or in the form of the Star Assets at a mutually agreed upon
valuation. The Parties anticipate that on or before March 31, 2007,
the
Company and its and the Company’s designated EPC contractor will determine
the fixed price to construct the Plant. On or before the earlier of
the
Mechanical Completion Date and September 31, 2008, Star shall contribute
an amount in cash equal to the difference of Five Million Six Hundred
Twenty-Five Thousand Dollars ($5,625,000) (or such other amount actually
contributed pursuant to Section
4.2
above), and fifteen percent (15%) of the actual equity cost to construct
the Plant. At such time, Star shall have the right to contribute an
additional amount in cash to bring the total amount contributed to
twenty-five (25%) of the actual equity cost to construct the Plant.
By way
of example: (a) within 60 days of the Effective Date Star contributes
cash
and Star Assets with an agreed upon value of Five Million Six Hundred
Twenty-Five Thousand Dollars ($5,625,000), (b) the actual (anticipated)
cost to construct the Plant is Two Hundred Million Dollars ($200,000,000)
with seventy-five percent (75%) leverage (i.e. Fifty Million ($50,000,000)
of equity required), (c) Star would be required to contribute an
additional One Million Eight Hundred Seventy-Five Thousand Dollars
($1,875,000) on or before the Mechanical Completion Date and September
31,
2008 in order to preserve its fifteen percent (15%) interest in the
Company, but shall have the right to contribute up to an additional
Six
Million Eight Hundred Seventy-Five Thousand Dollars ($6,875,000) in
order
to secure a 25%) interest in the Company. In the event that the actual
cost to complete the Plant exceeds the amount anticipated on the earlier
of the Mechanical Completion Date and September 31, 2008, each of the
Parties shall have the right to make additional capital contributions
necessary to preserve the anticipated seventy-five percent (75%) -
twenty-five percent (25%) ownership ratio between Ethanex and Star,
respectively. Notwithstanding the amount of any such cost overrun,
Star
shall be required to contribute an amount sufficient to preserve a
minimum
fifteen percent (15%) ownership interest in the
Company.
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4
| 4.3 |
Ethanex
hereby agrees to advance Star up to Four Million Dollars ($4,000,000)
to
be applied to Star’s initial capital contribution.Such advance will take
the form of a senior subordinated debenture bearing interest at the
rate
of 11% per year, compounded quarterly. In the event Ethanex loans funds
to
Star to enable Star to make its initial capital contribution as
contemplated in the previous sentence, such loan will be repaid, interest
first, out of distributions made pursuant to the Operating Agreement.
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| 4.4 |
The
capital contribution provided by Ethanex pursuant to Section
4.1
above shall be used by the Company to fund the capitalizable assets
of the
Company including, without limitation, the design, engineering and
construction costs of the Plant and the purchase of equipment to be
used
in the operation of the Plant.
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| 4.5 |
The
capital contribution provided by Star pursuant to Section
4.2
above shall be used by the Company, to the extent practical, to facilitate
the construction and operation of the Plant, and to serve as security
for
third party financing to fund the capitalizable assets of the Company
including, without limitation, the design, engineering and construction
costs of the Plant and the purchase of equipment to be used in the
operation of the Plant.
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ARTICLE
5
OWNERSHIP
| 5.1 |
Subject
to the satisfaction of each Party’s contribution obligations as set forth
in Article
4
above, the Membership Interests of the Company shall be owned seventy-five
percent (75%) by Ethanex and twenty-five percent (25%) by Star; provided,
however, that in the event Star fails to meet its financial obligations,
then its ownership percentage shall be reduced
proportionately.
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| 5.2 |
Without
the prior written consent of the other Party, a Party shall not acquire,
by purchase or otherwise, directly or indirectly, ownership or voting
control of Membership Interests of the Company representing more than
the
other Party’s Membership Interest of the Company on a fully diluted basis.
Profits and losses of the Company shall be allocated among the Parties
in
accordance with their relative Membership Interests.
|
5
ARTICLE
6
GOVERNANCE
| 6.1 |
The
management of the Company and the responsibility for preparation and
adoption of the Company’s business plan shall be vested in the Board of
Directors (the “Board) and such executives, officers and employees as the
Board may authorize and designate from time to time. The Board initially
shall be comprised of five (5) persons, two (2) of whom shall be nominated
by Ethanex, two (2) to be nominated by Star, and one (1) to be nominated
by the Parties jointly. The Board shall have authority, on behalf and
in
the name of the Company, to perform those acts as provided in the
Operating Agreement, subject to those powers that are reserved to the
Members of the Company, also as provided in the Operating Agreement.
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| 6.2 |
The
Chairperson of the Board shall initially be appointed by Ethanex. The
Chairperson shall preside over all Board meetings and, in the event
of a
deadlock by the Board, shall cast the deciding vote of the Board. The
Chairperson of the Board also shall serve as the Manager of the Company
as
set forth in the Operating Agreement.
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| 6.3 |
The
day-to-day management and operation of the Company shall be performed
by a
President/CEO appointed by and serving under the direction of the Board.
The initial President/CEO of the Company shall be appointed by Ethanex.
The President/CEO of the Company shall have the rights and duties provided
in the Operating Agreement.
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| 6.4 |
The
Parties agree that neither the Board nor the Company shall have the
authority to do or undertake certain actions which are reserved to
the
Members as provided in the Operating Agreement. Certain actions of
the
Company shall require the approval of Members owning at least seventy-five
percent (75%) of the Membership Interests of the Company as set forth
in
the Operating Agreement.
|
6
ARTICLE
7
OBLIGATIONS
OF THE PARTIES
| 7.1 |
In
addition to the other obligations set forth in this JV Agreement, Ethanex
agrees that it shall:
|
| (a) |
Coordinate
with Star to direct the activities of engineers, contractors, vendors,
and
other consultants engaged by the Company to provide products or services
to the Company in order to build and operate the Plant as soon as
commercially practicable;
|
| (b) |
provide
management support and local logistical support integral to completion
of
the Plant;
|
| (c) |
use
its commercially best efforts to coordinate with Delta T Corporation,
TIC
Holdings, Inc., or firms of equivalent experience and resources, together
with the other necessary design and construction professionals, to
begin
construction of the Plant as soon as commercially practicable;
|
| (d) |
work
toward retaining Xxxxxx Construction to construct certain portions
of the
Plant;
|
| (e) |
in
accordance with the terms and conditions of this JV Agreement, execute
and
deliver on the Effective Date the following Related
Agreements:
|
| (i) |
the
Operating Agreement, in the form attached hereto as Exhibit
2;
|
| (ii) |
the
Assignment Agreement, in the form attached hereto as Exhibit
4,
as more fully described in Section
8.2
below; and
|
| (iii) |
take
any further actions as may be necessary to complete and implement the
transactions contemplated by this JV
Agreement.
|
| 7.2 |
In
addition to the other obligations set forth in this JV Agreement, Star
agrees that it shall:
|
| (a) |
provide
reasonable assistance to Ethanex and the Company in connection with
Ethanex’s obligation to raise the Third Party Financing, including,
without limitation, by making key Star executives available for investor
meetings and providing financial, technical and market related information
in Star’s control to aid in the preparation of private placement
materials, subscription documentation or loan
documentation;
|
| (b) |
use
its commercially best efforts to assist Ethanex and the Company with
the
coordination and direction of engineers, contractors, vendors and
consultants engaged by the Company to provide products or services
to the
Company in order to complete the construction of the Plant by the Plant
Completion Date;
|
7
| (d) |
in
accordance with the terms and conditions of this JV Agreement, execute
and
deliver on the Effective Date the following Related
Agreements:
|
| (iv) |
the
Operating Agreement, in the form attached hereto as Exhibit
2;
and
|
| (v) |
the
Contribution Agreement, in the form attached hereto as Exhibit
3,
as more fully described in Section
8.1
below; and
|
|
(d)
|
take
any further actions as may be necessary to complete and implement
the
transactions contemplated by this JV Agreement.
|
ARTICLE
8
RELATED
AGREEMENTS
| 8.1 |
Unless
otherwise agreed in writing by the Parties, on the Effective Date,
Ethanex
shall execute and deliver to the Company the Assignment Agreement whereby
Ethanex shall assign or otherwise transfer to the company, and the
Company
shall assume or otherwise take or acquire from Ethanex, Ethanex’s
contractual right or option to have a qualified Third Party engineering,
procurement, and construction firm construct a large scale, multi-million
gallon per year ethanol plant for Ethanex.
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| 8.2 |
Unless
otherwise agreed in writing by the Parties, on the Effective Date,
Star
shall execute and deliver to the Company the Contribution Agreement
relating to the assets to be contributed to the Company as described
in
Section
4.2
above. The execution and delivery by Star of the Contribution Agreement
shall be deemed a condition precedent to the Obligation of Ethanex
to
execute and deliver the Assignment Agreement as described in Section
8.1
above.
|
| 8.3 |
In
addition to the Related Agreements, the Parties shall cause the Company
to
enter into an executive employment agreement in a form mutually agreeable
by the Company and Xxxxxx X. Xxxxxx providing for an initial base salary
of $150,000 and benefits to be determined by the
Board.
|
8
ARTICLE
9
TRANSFER
RESTRICTIONS
| 9.1 |
Any
sale, gift, transfer or other disposition, whether voluntary or by
operation of law, of a Member’s Membership Interest, other than in
accordance with the terms of this JV Agreement and the Operating Agreement
shall be void and shall transfer no right, title or interest in or
to any
such Membership Interest to the purported
transferee.
|
| 9.2 |
Any
permitted transfer of a Membership Interest of the Company shall be
performed in accordance with the terms and provisions set forth in
Article
XI
of
the Operating Agreement.
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ARTICLE
10
REPRESENTATIONS
AND WARRANTIES
| 10.1 |
Each
Party represents and warrants to the other that it has the legal right,
power and authority to enter into this JV Agreement and the Related
Agreements, and to fully perform its obligations hereunder and thereunder,
and that the performance of such obligations shall not conflict with
its
charter or organizational documents or any agreements, contracts or
other
arrangements to which it is a party.
|
| 10.2 |
EXCEPT
AS EXPRESSLY SET FORTH IN THIS JV AGREEMENT OR THE RELATED AGREEMENTS,
NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT.
|
| 10.3 |
IN
NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES,
OR AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITIES,
WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING OUT OF THIS
AGREEMENT.
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9
ARTICLE
11
NON-EXCLUSIVE
RELATIONSHIP
|
11.1
|
The
Parties acknowledge that the Company is not intended to be the exclusive
vehicle for either Party to participate in the ethanol industry.
To the
extent the parties can pursue or exploit other business opportunities
relating to the manufacture, use, distribution and sale of ethanol
and
ethanol-based products without a breach of their respective obligations
to
each other and to the Company under this JV Agreement and the Related
Agreements, they shall be free to do so.
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ARTICLE
12
TERM
AND
TERMINATION
|
12.1
|
This
JV Agreement shall commence when fully signed by the Parties hereto
and
shall continue in effect unless terminated pursuant to the provisions
of
this Article
12
or
by mutual written agreement of the Parties.
|
| 12.2 |
This
JV Agreement may be terminated and the transactions contemplated hereby
abandoned by a Party sending written notice to other Party upon the
occurrence of one or more of the following
events:
|
| (a) |
if
the other Party shall commit a material breach of any of its obligations
under this JV Agreement, which, if remediable, is not remedied within
thirty (30) business days from the giving of written notice requiring
said
breach to be remedied;
|
| (b) |
if
the other Party, its creditor(s), or any Third Party shall file for
the
other Party’s liquidation, bankruptcy, reorganization, or dissolution, or
if the other Party is unable to pay any debts as they become due, or
if
the creditor(s) of the other Party have taken over its management.
|
| 12.3 |
Termination
of this JV Agreement shall be without prejudice to the accrued rights
and
liabilities of the Parties at the date of termination, unless waived
in
writing by mutual agreement of the Parties.
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| 12.4 |
Upon
termination of this JV Agreement, each Party shall discontinue use,
cancel
and return to the other Party, all confidential and/or proprietary
information of the other Party that has been furnished or obtained
in
contemplation of the transactions contemplated hereunder or in connection
with this JV Agreement and the Related Agreements, together with all
reproductions and copies thereof and other written documents related
thereto retaining no reproductions or copies or other written documents
relating to such confidential and/or proprietary information.
|
| 12.5 |
If
this JV Agreement is terminated and the transactions contemplated hereby
are abandoned, this JV Agreement shall become null and void, except
for
the provisions of this Article
12
and the other provisions of this JV Agreement which, by their nature,
are
intended to survive.
|
10
ARTICLE
13
FORCE
MAJEURE
| 13.1 |
The
failure or delay of either Party to perform any obligation under this
JV
Agreement solely by reason of acts of God, acts of government (except
as
otherwise enumerated herein), riots, wars, embargoes, strikes, lockouts,
accidents or other causes beyond its control (each a “Force Majeure
Event”) shall not be deemed a breach of this JV Agreement; provided,
however, that the Party so prevented from complying herewith shall
not
have procured such Force Majeure Event, shall have used all reasonable
diligence to avoid such Force Majeure Event and ameliorate its effects,
and shall continue to take all actions within its power to comply as
fully
as reasonably possible with the terms of this JV Agreement.
|
| 13.2 |
Except
where the nature of the Force Majeure Event shall prevent it from doing
so, the Party suffering such Force Majeure Event shall notify the other
Party in writing within three (3) days after the occurrence of such
Force
Majeure Event and shall in every instance, to the extent possible and
lawful under the circumstances, use its commercially best efforts to
remove or remedy such Force Majeure Event with all reasonable dispatch.
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ARTICLE
14
GOVERNING
LAW AND WAIVER OF JURY TRIAL
|
14.1
|
The
validity, performance, construction and effect of this JV Agreement
shall
be governed by the laws of the State of Illinois, without regard
to
conflict of law principles.
|
|
14.2
|
Each
Party hereby waives any right to a trial by jury in any action, lawsuit
or
proceeding to enforce or defend any right under this JV Agreement,
or any
amendment thereto, and agrees that any action, lawsuit or proceeding
will
be tried before a court and not before a jury.
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ARTICLE
15
NON-WAIVER
AND OTHER REMEDIES
|
15.1
|
Failure
of any Party to insist upon the strict and punctual performance of
any
provision hereof shall not constitute waiver of nor estoppel against
asserting the right to require such performance, nor shall a waiver
or
estoppel in one instance constitute a waiver or estoppel with respect
to a
later breach whether of similar nature or
otherwise.
|
|
15.2
|
Subject
to Section
14.2
above, nothing in this JV Agreement shall prevent a Party from enforcing
its rights by such remedies as may be available in lieu of or in
addition
to termination.
|
11
ARTICLE
16
NOTICE
|
16.1
|
All
notices, requests, demands and other communications under this Agreement
or in connection herewith shall be given by letter (delivered by
hand or
by air courier) or by facsimile transmission confirmed by such letter,
and
shall be addressed to the Parties as
follows:
|
If
to
Star:
Star
Ethanol, LLC
c/o
Xxxxxx X. Xxxxxx
00000
Xxx
Xxxx Xxxxxx Xxxx
Xxxxxx,
Xxxxxxxx 00000
Fax: 000.000.0000
With
a
copy
to:
Xxxx
X.
Dimbeck, Esq.
000
Xxxx
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
Fax: 618.438-5015
If
to
Ethanex:
Ethanex
Energy, Inc.
00000
Xxxxxxxx Xxxx, Xxxxx X
Xxxxxxx,
Xxxxxx 00000
Attn:
Xxxxxx Xxxxx, President & CEO
Fax:
000.000.0000
With
a
copy
to:
Xxxxx
X.
Xxxxx, Esq.
McGuireWoods
LLP
1345
Avenue of the Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000.000.0000
| 16.2 |
Any
notice, request, demand or other communication shall be effective
(i) if
given by facsimile, at the time such facsimile is transmitted and
the
appropriate confirmation is received (or, if such time is not during
a
normal business day, at the beginning of the following business day),
or
(ii) if given by air courier, when delivered at the applicable address
specified above. Either Party may change its address at any time
by
written notice to the other Party given pursuant to this Article
16.
|
12
ARTICLE
17
MISCELLANEOUS
| 17.1 |
In
the event that any provision of this JV Agreement becomes or is declared
by a court or other tribunal of competent jurisdiction to be illegal,
invalid, unenforceable or void, such provision(s) shall be limited
or
eliminated to the extent necessary so that this JV Agreement shall
otherwise remain in full force and effect without said provision.
|
| 17.2 |
Each
Party shall pay all costs and expenses that it incurs with respect
to the
negotiation, execution, delivery and performance of this JV Agreement.
|
| 17.3 |
Neither
this JV Agreement nor any rights hereunder shall be assignable, directly
or indirectly, by any Party hereto without the prior written consent
of
the other Party, which consent shall not be unreasonably withheld or
delayed.
|
| 17.4 |
This
JV Agreement supersedes all previous and contemporaneous representations,
understandings or agreements, oral or written, between the Parties
with
respect to the subject matter hereof, and the agreements and documents
contemplated hereby contain the entire understanding of the Parties
as to
the terms and conditions of their relationship. No changes, alterations
or
modifications hereto shall be effective unless they are in writing
and are
signed by an authorized representative of each
Party.
|
| 17.5 |
The
headings in this JV Agreement are included for convenience of reference
only and do not substantively affect the terms or interpretation of
this
JV Agreement.
|
| 17.6 |
This
JV Agreement may be executed in one or more counterparts, each of which,
when executed, shall be deemed to be an original and all of which together
will be deemed to be one and the same instrument. Delivery of an executed
counterpart of a signature page to this JV Agreement by facsimile
transmission shall be effective as delivery of a manually executed
counterpart of this JV Agreement.
|
[Signature
Page to Follow]
13
IN
WITNESS WHEREOF, the Parties have executed this JV Agreement as of the date
first set forth above.
|
STAR
ETHANOL, LLC, an Illinois limited liability company
|
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxx | |
|
Name: Xxxxxx X. Xxxxxx Title:
President and CEO
|
||
|
ETHANEX
ENERGY, INC., a
Nevada corporation
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
Name:
Xxxxxx
Xxxxx
Title:
President and CEO
|
||
14
