BIO-DIESEL MARKETING AGREEMENT
THIS
BIO-DIESEL MARKETING AGREEMENT (the "Agreement") is entered into by and among
Eco-Energy Biodiesel LLC. (hereinafter “Eco”), a Tennessee Corporation with its
main
office located at 000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx
00000,
and SOUTHERN IOWA BIOENERGY, LLC (hereinafter
“SOUTHERN IOWA BIOENERGY”), an Iowa limited liability company, with its main
office located at
000 X.
Xxxxxx Xx. Xxxxxx, Xxxx 00000.
RECITALS:
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WHEREAS,
SOUTHERN IOWA BIOENERGY is developing a bio-diesel plant facility
producing approximately 30 million gallons per year of bio-diesel
located in Osceola, IA (the “Plant”) and desires to establish an
output-marketing contract;
and
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WHEREAS,
Eco is a reseller in bio-diesel and is experienced in the marketing
and
transportation of such bio-diesel, and is willing to agree to purchase
the
entire bio-diesel output of the
Plant.
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NOW,
THEREFORE, IT IS AGREED AS FOLLOWS BETWEEN THE PARTIES:
| 1. |
Eco
Services. Eco
shall, during the term hereof, purchase and take delivery of the
Plant's
entire output of bio-diesel and shall provide certain transportation
services to SOUTHERN IOWA BIOENERGY (the "Eco Program"). The Eco
services
to be provided are set forth in Sections 2, 3, 4 and 5 and the
exhibits
attached hereto which are referred to
therein.
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| 2. |
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(a)
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Eco
agrees to pay SOUTHERN IOWA BIOENERGY for all bio-diesel shipped
by Eco
from the Plant, a price equal to the F.O.B. Plant Price. For purposes
of
this provision, the “F.O.B. Plant Price” shall mean the actual purchase
price of bio-diesel purchased by Eco less the fees set forth in
Section 6
and transportation costs payable by SOUTHERN IOWA BIOENERGY pursuant
to
Section 5.
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(b)
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On
a daily basis, weekends and holidays excluded, SOUTHERN IOWA BIOENERGY
shall provide Eco with certified meter or weight certificates for
the
previous day’s shipments of bio-diesel. Eco shall pay SOUTHERN IOWA
BIOENERGY the F.O.B. Plant Price defined in paragraph 2(a) above,
for all
properly documented shipments. Eco shall deliver to SOUTHERN IOWA
BIOENERGY payment for such shipments on the following Friday of
each one
week shipment period (Sunday through Saturday); provided Eco has
received
proper documentation of such shipments by Sunday 12:00 noon. Eco
agrees to
maintain accurate records of its’ purchases (xxxx of lading documentation
and purchase confirmation only) and to provide such records to
SOUTHERN
IOWA BIOENERGY upon request.
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(c)
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Eco
agrees to use its best efforts to achieve the highest price of
bio-diesel
available under prevailing market conditions as judged in good
faith by
Eco and agrees to communicate to SOUTHERN IOWA BIOENERGY the terms
and
conditions of biodiesel sales as set forth in Section
7.
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(d)
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Notwithstanding
the foregoing, Eco shall not contract for the sale of bio-diesel
to its
customers more than one hundred eighty (180) days in advance, unless
SOUTHERN IOWA BIOENERGY explicitly approves the price and terms
of any
such contract and provides notice of such approval to Eco. Upon
notice of
termination, Eco shall not contract for the sale of bio-diesel
to its
customers more than ninety (90) days in advance, unless SOUTHERN
IOWA
BIOENERGY explicitly approves the price and terms of any such contract
and
provides notice of such approval to Eco. Eco will advise SOUTHERN
IOWA
BIOENERGY weekly and update SOUTHERN IOWA BIOENERGY monthly on
all
outstanding contractual obligations, and the terms
thereof.
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3. Delivery
and Title.
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(a)
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Delivery
and receipt of volumes of bio-diesel hereunder shall take place
at
the
loading flange between the Plant, or otherwise wherever the bio-diesel
has
been stored, and the rail cars or trucks (the “Delivery Point”). Eco and
its agents shall be given access to the Plant in a manner and at
all times
reasonably necessary and convenient for Eco to take delivery as
provided
herein. Eco shall schedule the loading and shipping of all bio-diesel
purchased hereunder, whether shipped
by truck or rail. All labor and equipment necessary to load or
unload
trucks or rail cars shall be supplied by SOUTHERN IOWA BIOENERGY
without
charge to Eco. The parties agree to handle the bio-diesel in a
good and
workmanlike manner in accordance with the other’s reasonable
requirements and in accordance with normal industry practice.
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(b)
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SOUTHERN
IOWA BIOENERGY shall provide storage space for not less than ten
(10) full
days of production of bio-diesel, based on normal operating capacity.
Eco
warrants and agrees to remove bio-diesel before the aforementioned
storage
limits are exceeded. SOUTHERN IOWA BIOENERGY shall inform Eco daily
of
inventory status by 8:30 am CDT.
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(c)
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Eco
shall give to SOUTHERN IOWA BIOENERGY a schedule of quantities
of
bio-diesel to be removed by truck and rail respectively with sufficient
advance notice reasonably to allow SOUTHERN IOWA BIOENERGY to provide
the
required services described herein. SOUTHERN IOWA BIOENERGY shall
provide
the labor, equipment and facilities necessary to meet Eco’s loading
schedule.
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(d)
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Eco
shall provide loading orders (via verbal or electronic communication)
as
necessary to permit SOUTHERN IOWA BIOENERGY to maintain its usual
production schedule, provided, however, that Eco shall not be responsible
for failure to schedule removal of bio-diesel unless SOUTHERN IOWA
BIOENERGY shall have provided to Eco production schedules as follows:
at
least five (5) days prior to the beginning of each calendar month
during
the term hereof, SOUTHERN IOWA BIOENERGY shall provide to Eco a
tentative
schedule for production in the next calendar month. On Friday of
each
week, SOUTHERN IOWA BIOENERGY shall provide to Eco a schedule for
actual
production for the following production week (Monday through Sunday).
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(e)
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Title
and risk of loss shall pass to Eco at the point in time when loading
the
bio-diesel into trucks or rail cars has been completed and delivery
of the
xxxx of lading for each such shipment to Eco or its agent, including
any
transportation provider selected in accordance with Section 5(e)
of this
Agreement. Title and risk of loss or damage shall only pass from
SOUTHERN
IOWA BIOENERGY to Eco upon such delivery. Until such time, SOUTHERN
IOWA
BIOENERGY shall be deemed to be in control of and in possession
of and
shall have title to and risk of loss in the
bio-diesel.
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4. Quantity
and Weights; Quality.
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(a)
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The
total production amount of bio-diesel shall be determined by SOUTHERN
IOWA
BIOENERGY’s production schedule. SOUTHERN IOWA BIOENERGY makes no warranty
or representation as to the exact quantities or timing of bio-diesel
to be
produced pursuant to this Agreement. However, SOUTHERN IOWA BIOENERGY
shall deliver in accordance with delivery schedules on all obligated
contracts.
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(b)
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The
quantity of bio-diesel delivered to Eco from the Plant shall be
established by meter or weight certificates, obtained from meters
or
scales at the Plant, which shall be maintained by SOUTHERN IOWA
BIOENERGY
as required by applicable laws, rules and regulations. The outbound
meter
or weight certificates shall be determinative of the quantity of
the
bio-diesel for which Eco is obligated to pay pursuant to Section
2 above,
and such quantity shall be measured using net 60 degree Fahrenheit
compensated gallons.
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(c)
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Bio-diesel
to be produced pursuant to this Agreement
by
SOUTHERN IOWA BIOENERGY shall meet or exceed all specifications
ASTM D6751
fuel bio-diesel as well as any changes in fuel bio-diesel industry
standards that might occur after the execution of this
Agreement.
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5. Eco
Transportation Services. Eco
agrees to diligently pursue, secure and maintain
all necessary agreements to transport the bio-diesel to the Delivery Point.
Eco
shall be solely responsible for the arrangement of transportation, except
as
otherwise provided I paragraph (e) of this Section 5, and covenants to use
its
best efforts to obtain the best commercially reasonable prices in respect
of
transportation such that SOUTHERN IOWA BIOENERGY achieves the highest net
price
possible after payment for costs in accordance with this Section 5.
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(a)
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Eco,
in consultation with SOUTHERN IOWA BIOENERGY, shall be responsible
for
estimating the number of rail car leases required to handle the
transportation of the bio-diesel. All rail cars for bio-diesel
shall be
the largest allowable tank cars as determined by Eco. With respect
to
bio-diesel, all such cars shall meet all applicable Department
of
Transportation and Federal Railroad Administration specifications
for
shipping bio-diesel. All rail freight charges shall be the responsibility
of SOUTHERN IOWA BIOENERGY and shall be billed directly to SOUTHERN IOWA
BIOENERGY. SOUTHERN IOWA BIOENERGY will invoice Eco for rail freight
along
with a copy of the actual railroad invoice. (this amount will be
paid the
following Friday upon receipt of invoice by Eco); provided, however
that
if tank cars for bio-diesel are not loaded to full visible capacity,
SOUTHERN IOWA BIOENERGY shall pay in full the portion of freight
charges
allocable to the unused capacity of the car. Such invoiced amounts
shall
be paid by Eco to SOUTHERN IOWA BIOENERGY the Friday following
receipt of
such invoice by Eco.
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(b)
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Eco
shall negotiate the terms of and execute such rail car leases and
rates on
behalf of SOUTHERN IOWA BIOENERGY; provided, however, that any
and all
rail car leases executed by Eco shall be in substantially the same
form as
a standard rail car lease for current industry standards in the
biodiesel
production industry. All rail leases shall be placed in the sole
name of
SOUTHERN IOWA BIOENERGY. SOUTHERN IOWA BIOENERGY shall reimburse
Eco for
any reasonable expenses incurred by Eco associated with such rail
car
leases, to the extent such expenses are not already accounted for
in the
price of the bio-diesel..
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(c)
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Eco
shall negotiate, in consultation with SOUTHERN IOWA BIOENERGY,
the terms
of rail freight contracts and rates on behalf of SOUTHERN IOWA
BIOENERGY.
The rail freight contracts shall be placed in the sole name of
SOUTHERN
IOWA BIOENERGY.
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(d)
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Eco
shall order and supply trucks as scheduled for truck shipments.
All truck
freight charges shall be the responsibility of Eco and shall be
billed
directly to Eco.
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(e)
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Notwithstanding
the foregoing, SIBE shall have the right, upon 10 days advance
notice to
Eco, to elect to make arrangements for the transportation of the
biodiesel
with such transportation provider(s) and for such period(s) during
the
term of the Agreement as specified in the notice to Eco; provided,
however, that the service and rates of the transportation provider(s)
selected by SIBE shall be comparable to and competitive with the
service
and rates of similar transportation providers in the bio-diesel
industry.
In such event, Eco shall utilize the transportation services arranged
by
SIBE in fulfilling its obligations under this Agreement. Except
as
mutually agreed by the parties, such election shall not otherwise
alter
the duties of Eco or SIBE under this Agreement. Eco-Energy shall
have the
ability to utilize additional carriers as needed during the term
of the
agreement
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6.
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Fees.
SOUTHERN
IOWA BIOENERGY shall pay a fee for services of Eco and materials
provided
hereunder of 1.0% of the net purchase price per net gallon of bio-diesel
purchased by Eco during the term of the Agreement (the "Marketing
Fee").
The Marketing fee shall be a minimum of $0.015 cents per net gallon
of
biodiesel. The Marketing Fee shall be payable monthly on actual
gallons shipped from the prior month as evidenced by meter or weight
certificates provided to Eco by SOUTHERN IOWA BIOENERGY. SOUTHERN
IOWA
BIOENERGY shall pay or cause to be paid all valid levies, assessments,
duties, rates and taxes (together "Taxes") on all bio-diesel accrued
or
incurred prior to delivery and Eco shall pay or cause to be paid
all Taxes
after delivery hereunder. SOUTHERN IOWA BIOENERGY shall pay all
unavoidable costs such as government tariffs or assessment fees,
import/export handling fees, assessments, inspection fees, or any
other
that has been approved by the appropriate member of the board of
directors. Payment from SOUTHERN IOWA BIOENERGY for the Marketing
Fees
shall be subtracted from Eco’s first weekly wire payment of the following
month for bio-diesel purchases.
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| 7. |
SOUTHERN
IOWA BIOENERGY Representative. SOUTHERN
IOWA BIOENERGY shall designate one or more persons who shall be
authorized
and directed to receive services hereunder and to make all merchandising,
purchasing and sales decisions for SOUTHERN IOWA BIOENERGY (the
"Representative"). Each purchase order will be presented to the
SOUTHERN
IOWA BIOENERGY Representative by Eco for verbal or written approval.
Upon
such approval and purchase, a written confirmation of the purchase
contract will be submitted to SOUTHERN IOWA BIOENERGY by Eco, encompassing
the details of such purchase. All directions, transactions and
authorizations given by such Representative to Eco shall be binding
upon
SOUTHERN IOWA BIOENERGY. Eco shall be entitled to rely on the
authorization of the Representative until it receives written notification
from SOUTHERN IOWA BIOENERGY that such authorization has been revoked.
The
terms of such purchase orders shall be consistent with the provisions
of
this Agreement and may include, but shall not necessarily be limited
to,
price, volume, delivery schedule, and shipping
instructions.
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| 8. |
Eco
Limitations.
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(a)
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Eco
assumes no responsibility for the completion or performance of
any
contracts between SOUTHERN IOWA BIOENERGY and any third party customer
or
suppliers of SOUTHERN IOWA BIOENERGY's customers and suppliers,
and
SOUTHERN IOWA BIOENERGY agrees it shall not bring any action or
make any
claim against Eco based on any act, omission or claim of any third
party
customers or suppliers. Eco shall be responsible for all its customer
billing and account servicing, including, but not limited to, the
collection of amounts owed Eco by its customers, Eco shall bear
all costs
associated with such billing and collection activities, and Eco
shall
assume all losses due to failure of its customers to pay their
account.
Eco reserves the right to refuse business to anyone due to credit
and
market risk.
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(b)
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SOUTHERN
IOWA BIOENERGY is responsible to cover all non-deliveries of any
product
that is contracted between Eco and SOUTHERN IOWA BIOENERGY in a
timely
manner in order to stay within the time parameters of the contract.
Eco
will assist in procuring product from other suppliers to cover
these
non-deliveries.
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| (c) |
If
any party terminates this Agreement for any reason, both parties
will be
responsible to complete any existing purchase
contracts.
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| 9. |
Separability
and Non-liability. The
services, contracts and relationships between SOUTHERN IOWA BIOENERGY
and
Eco are independent and separable.
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| 10. |
Confidentiality
Agreement. The
parties agree, to the extent permitted by law, to preserve and
protect the
confidentiality of the Agreement. Both parties recognize that
federal or
state law may require the filing of the Agreement with, or the
furnishing
of information to, governmental authorities or regulatory agencies.
Both
parties further recognize the need, from time to time, for the
submission
of the Agreement to affiliates, consultants, or contractors performing
work on, or related to, the subject matter of the Agreement.
SOUTHERN IOWA
BIOENERGY and Eco agree to allow the submission of the Agreement
to
affiliates, consultants, or contractors if such affiliates, consultants,
or contractors agree to protect the confidentiality of the Agreement.
In
the event either party is of the opinion that applicable law
requires it
to file the Agreement with, or to disclose information related
to the
Agreement (other than information required by laws and regulations
in
effect as of the date hereof to be furnished in periodic reports
to
governmental authorities) to, any judicial body, governmental
authority or
regulatory agency, that party shall so notify the other party
in writing
prior to the disclosure or filing of the
Agreement.
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| 11. |
Public
Disclosure. Any
public announcements concerning the transaction contemplated
by this
letter shall be approved in advance by Eco and SOUTHERN IOWA
BIOENERGY
except for disclosures required by law, in which case the disclosing
party
shall provide a copy of the disclosure to the other party prior
to its
public release.
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| 12. |
Solicitation.
SOUTHERN IOWA BIOENERGY agrees not to contact or interfere with,
solicit,
disrupt or attempt to disrupt relationships, contractual or otherwise,
between Eco and any of its customers, employees or
vendors.
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| 13. |
Force
Majeure.
Neither SOUTHERN IOWA BIOENERGY nor Eco will be liable to the
other for
any failure or delay in the performance of any obligation under
this
Agreement due to events beyond its reasonable control, including,
but not
limited to, fire, storm, flood, earthquake, explosion, act of
the public
enemy or terrorism, riots, civil disorders, public emergency,
sabotage,
strikes, lockouts, labor disputes, labor shortages, war, stoppages
or
slowdowns initiated by labor, transportation embargoes, failure
or
shortage of materials, acts of God, or acts or regulations or
priorities
of the federal, state or local government or branches or agencies
thereof.
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| 14. |
Terms
and Termination.
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| (a) |
The
initial term of this Agreement shall commence on the first day
of
bio-diesel production and shall continue for three (3) years.
This
contract will automatically renew for an additional term of three
(3)
years unless SOUTHERN IOWA BIOENERGY gives written notice at
least four
(4) months prior to the end of the initial
term.
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(b)
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This
Agreement may be terminated by SOUTHERN IOWA BIOENERGY as to
Eco in the
event of material breach of any of the material terms hereof
by Eco, by
written notice specifying the breach, which notice shall be effective
fifteen (15) days after it is given unless Eco cures the breach
within
such time. This Agreement may be terminated by Eco as to SOUTHERN
IOWA
BIOENERGY in the event of material breach of any of the material
terms
hereof by SOUTHERN
IOWA BIOENERGY by written notice specifying the breach, which
notice shall
be effective fifteen
(15)
days after it is given unless SOUTHERN IOWA BIOENERGY cures the
breach
within such
time. If any material breach by SOUTHERN IOWA BIOENERGY as to
Eco or by
Eco as to SOUTHERN IOWA BIOENERGY that cannot be resolved within
15 days,
both parties may mutually agree in writing as to the length of
time needed
to resolve the material breach.
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(c)
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This
Agreement may also be terminated at any time upon the mutual
written
consent of
both
parties on such terms as the parties may
agree.
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(d)
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In
addition to any other method of terminating this Agreement, Eco
may
unilaterally terminate this Agreement at any time if such termination
shall be required by any regulatory
authority, and such termination shall be effective on the 30th
day following the giving of notice of intent to terminate; provided,
however, that if such termination is required due to Eco's wrongful
or
illegal acts, such termination shall constitute an event of material
breach of this Agreement.
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(e)
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In
addition
to any other rights and remedies the parties may have, either
party hereto
may terminate this Agreement effective immediately upon delivery
of
written notice to the other party, if the other party (i) is
unable to pay
its debts as they mature or admits in writing its inability to
pay its
debts as they mature, (ii) makes a general assignment for the
benefit of
its creditors, (iii) files a voluntary petition for bankruptcy,
or (iv)
applies for the appointment of a receiver or trustee for all
or
substantially all of its assets or permits the appointment of
any such
receiver or trustee who is not discharged within a period of
sixty (60)
days after such appointment, with regards to bankruptcy. However
the
parties are still financially responsible to cover all contracts
previously agreed to.
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| 15. |
Licenses,
Bonds, and Insurance. Each
party represents that it now has and will maintain in full force
and
effect
during the term of this Agreement, at its sole cost, all necessary
state
and
federal licenses, bonds and insurance
in accordance with applicable state or federal laws and
regulations.
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| (a) |
During
the entire term of this Agreement, SOUTHERN
IOWA BIOENERGY
will purchase and maintain insurance coverage which is standard
for a
company of its type and size which is engaged in the business
of producing
and selling bio-diesel. Eco shall be named as an additional insured
on all
such policies, as its interest appears. 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.
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| (b) |
Also
during the term of this Agreement, Eco shall purchase and maintain
commercial general liability insurance, with liability limits
of not less
than $2,000,000 with an umbrella
policy of $5,000,000 which shall be endorsed to require at least
thirty
(30) days notice to SOUTHERN
IOWA BIOENERGY
prior to the effective date of any termination or cancellation
of
coverage. SOUTHERN
IOWA BIOENERGY
shall be named as an additional insured on all such policies
and Eco shall
provide a certificate of insurance to SOUTHERN
IOWA BIOENERGY
to
establish the coverage maintained by the commencement date of
this
Agreement.
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| 16. |
Limitation
of Liability. EACH
PARTY UNDERSTANDS THAT NO OTHER PARTY MAKES ANY
GUARANTEE, EXPRESS OR IMPLIED, TO ANY OTHER OF PROFIT, OR OF
ANY
PARTICULAR
ECONOMIC RESULTS FROM TRANSACTIONS HEREUNDER. IN
NO EVENT SHALL
ANY PARTY BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL, OR
CONSEQUENTIAL
DAMAGES FOR ANY ACT OR OMISSION COMING WITHIN THE SCOPE
OF
THIS AGREEMENT, OR FOR BREACH OF ANY OF THE PROVISIONS OF THIS
AGREEMENT,
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUCH
EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF
GOOD
WILL, LOSS OF PROFITS, LOSS OF USE AND INTERRUPTION OF BUSINESS.
EXCEPT
AS SPECIFICALLY STATED IN THIS AGREEMENT, THE PARTIES MAKE NO
WARRANTIES
OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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| 17. |
Disclaimer. SOUTHERN
IOWA BIOENERGY understands and agrees that Eco makes no warranty
respecting legal or regulatory requirements
and risks. SOUTHERN IOWA BIOENERGY shall obtain such legal and
regulatory
advice from
third parties as it may deem
necessary respecting the applicability of legal and regulatory
requirements applicable
to SOUTHERN IOWA BIOENERGY's
business.
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| 18. |
Indemnity. The
Parties agree that they shall absolve, release and refrain from
seeking
remedies against each other and their officers, agents, employees,
subcontractors and insurers for any and all losses, claims, damages,
costs, suits and liabilities for damage, deterioration of quality,
shrinkage
in quantity, loss of grade or loss of bio-diesel resulting from
the
inherent nature of transfer operations and the inherent nature
of
bio-diesel
provided that this in no way shall relieve the parties for their
own
negligence, willful misconduct or theft. Each party to this contract
shall
indemnify, defend and hold the other harmless from claims, demands
and
causes of action asserted against the other by any person (including
without limitation employees of either party) for personal injury
or
death, or for loss of or damage to property resulting from the
willful or negligent acts or omissions of the indemnifying party.
Where
personal injury, death or loss of or damage to property is the
result of
the joint negligence or misconduct or the parties hereto, the
parties
expressly agree to indemnify each other in proportion to their
respective
share of such joint negligence or
misconduct.
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| 19. |
Nature
of Relationship. Eco
is an independent contractor providing services to SOUTHERN IOWA
BIOENERGY. No employment relationship, partnership or joint venture
is
intended, nor shall any such relationship be deemed created hereby.
Each
party shall be solely and exclusively responsible for its own
expenses and
costs of performance.
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| 20. |
Notices.
Any
notices permitted or required hereunder shall be in writing,
signed by an
officer duly authorized
of the party giving such notice, and shall either be hand delivered
or
mailed. If mailed, notice
shall be sent by certified, first class, return receipt requested,
mail to
the address shown above, or any other address subsequently specified
by
notice from one party to the other.
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| 21. |
Compliance
With Governmental Controls. To
the extent applicable, the parties agree to comply with all
laws, ordinances, rules, codes, regulations and lawful orders
of any
federal, state or local government
authority applicable to the performance of the Agreement, including,
without limitation, those pertaining to the environment, safety,
health,
social security, old age pension, wage hour laws, unemployment
compensation, non-discrimination on the basis of race, religion,
color,
sex or national origin
and affirmative action.
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| 22. |
New
Or Changed Regulations. The
parties enter the Agreement in reliance upon the laws, rules,
regulations,
interpretations, decrees, agreements, and concessions of, and
arrangements
(hereafter called
“Regulations”) with governments or governmental instrumentalities in
effect on the effective date of the Agreement with respect to
or directly
or indirectly affecting the bio-diesel to be delivered, including
without
limitation, production, gathering, manufacturing, transportation,
sale and
delivery thereof insofar
as said Regulations affect SOUTHERN IOWA BIOENERGY and Eco and
its
customers. In the event that at any time subsequent to the
date of the Agreement, any of said Regulations are changed or
new
Regulations are promulgated whether
by law, decree, interpretation or regulation, or by response
to the
insistence or request of any governmental authority or person
purporting
to act therefore, and the effect of such changed or new Regulation
(a) is
or will not be covered by any other provisions of the Agreement,
or (b)
has or will have an adverse economic effect upon the parties
to this
Agreement or the suppliers or customers of said
parties, the parties shall have the option to request renegotiation
of the
prices and other pertinent terms
provided for in the Agreement and their respective effective
dates. Said
option may be exercised by either party at any time after such
changed or
new Regulation is promulgated by giving notice of the exercise
of its
option to renegotiate to the other party prior to the time of
delivery of
bio-diesel or any part thereof. Such notice shall contain the
new prices
and terms desired by agreement of Eco and SOUTHERN IOWA BIOENERGY.
If the
parties do not agree upon new prices and terms satisfactory to
both
parties within ten (10) days after such notice is given, Eco
and SOUTHERN
IOWA BIOENERGY shall have the right to terminate the Agreement
at the end
of said ten (10) day period.
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| 23. |
General.
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| (a) |
This
Agreement is the entire understanding of the parties concerning
the
subject matter hereof,
and it may be modified only in writing signed by the
parties.
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| (b) |
If
any provision or provisions of this Agreement shall be held to
be invalid,
illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired
thereby.
|
| (c) |
No
party shall be liable for any failure to perform any or all of
the
provisions of this Agreement if and to the extent that performance
has
been delayed or prevented by reason of any cause beyond the reasonable
control of such party. The expression "cause
beyond the reasonable control" shall be deemed to include, but
not be
limited to: acts, regulations, laws, or restraints imposed by
any
governmental body; wars, hostilities,
sabotage, riots, or commotions; acts of God; or fires, frost,
storms, or
lightning.
|
| (d) |
This
Agreement is not intended to, and does not, create or give rise
to any
fiduciary duty
on the part of any party to any
other.
|
| (e) |
No
action, regardless of its nature or form, arising from or in
relation to
this Agreement
may be brought by either party more than two (2) years after
the cause of
action has arisen, or, in the case of an action for nonpayment,
more than
two (2) years from the date the last payment was due. Venue for
any action
arising from or in relation to this Agreement shall be in Osceola,
IA.
|
| (f) |
This
Agreement is governed by and shall be construed under the laws
of the
State of Iowa.
|
| (g) |
This
Agreement shall be binding upon and inure to the benefit of the
parties
and their respective successors
and permitted assigns. This Agreement shall not be assignable
by either
party, without the express written consent of the other party,
except that
ECO may assign its rights and duties under this Agreement in
connection
with the sale, merger, exchange or acquisition of all or substantially
all
of the assets or stock of ECO and ECO may assign its rights and
duties
under this Agreement to another company controlling, or controlled
by, or
under common control with ECO, all without having to obtain the
express
written consent of the other party.
|
| (h) |
This
Agreement shall be binding upon SOUTHERN IOWA BIOENERGY and this
above
referenced Plant in the event that the name, SOUTHERN IOWA BIOENERGY
is
later changed to any name in the alternative. A change in name
does not
void, nor make this contract
voidable.
|
DATED
AND
EXECUTED AS OF THIS DAY
6 OF JUNE ,
2007
SOUTHERN
IOWA BIOENERGY, LLC
BY:
/s/Xxxxxxx
X. Xxxxxx, President
ECO-ENERGY
BIODIESEL, LLC.
BY:
/s/ Xxxxx Xxxxxxxx
EXHIBIT
A
Bio-diesel
Eco
shall
purchase 100% of the production of bio-diesel of SOUTHERN IOWA BIOENERGY's
Plant
on the following terms:
|
1.
|
Eco
will pay on the Friday of each week for the shipments made by Sunday
of
the previous week upon receipt of Invoice, Xxxx of Lading, Return
Xxxx of
Lading, and Certificate of Analysis. All paperwork for the previous
week’s
shipments must be received by 12:00 noon
Sunday.
|
|
2.
|
SOUTHERN
IOWA BIOENERGY is responsible for any and all of its local, state
and
federal tax liabilities.
|
| 3. |
Eco
will provide scheduling and marketing for bio-diesel
produced.
|
| 4. |
Eco
will be responsible for receivables risk on
bio-diesel.
|
| 5. |
Eco
reserves the right to refuse business to anyone due to credit and
market
risk.
|
|
6.
|
SOUTHERN
IOWA BIOENERGY shall meet or exceed all specifications ASTM D6751
fuel
bio-diesel as well as any changes in fuel bio-diesel industry standards
that might occur after the execution of this
Agreement.
|
|
7.
|
SOUTHERN
IOWA BIOENERGY will keep Eco informed on production forecasts,
as well as
daily plant inventory balances.
|
|
8.
|
On
all truck and rail shipments title and risk of loss of the bio-diesel
will
pass at the loading flange between the Plant and the truck or railcar.
Unless otherwise specified Eco is purchasing all bio-diesel on
a FOB plant
basis.
|
|
9.
|
SOUTHERN
IOWA BIOENERGY will provide a minimum of 10 days storage on the
SOUTHERN
IOWA BIOENERGY site.
|
|
10.
|
Eco
shall deduct all unavoidable costs such as government tariffs or
assessment fees, sales taxes, import/export handling fees, assessments,
inspection fees, or any other that has been approved by the appropriate
member of the board of directors.
|
|
11.
|
Eco
shall be notified in writing, by certified mail, prior to any feedstock
changes. It is mutually understood that a change in feedstock could
affect
market prices.
|
EXHIBIT
B
Eco
Transportation Services
Unless
otherwise provided by this Agreement, Eco will provide the following
transportation services:
|
1.
|
Eco
and SOUTHERN IOWA BIOENERGY shall mutually agree as to the
number of railcars needed and their respective lease
rates. Eco shall negotiate the terms of the rail car leases on
behalf of
SOUTHERN IOWA BIOENERGY. The leases of such railcars shall be in
the name
of SOUTHERN IOWA BIOENERGY and SOUTHERN IOWA BIOENERGY will be
responsible
for securing the railcars and lease
payments.
|
|
2.
|
Eco
will negotiate rail rates on behalf of SOUTHERN IOWA BIOENERGY;
provided
that the rail rates and the terms of all rail leases shall be subject
to
approval by SOUTHERN IOWA
BIOENERGY.
|
|
3.
|
All
rail contracts will be in the name of SOUTHERN IOWA BIOENERGY,
or
any name later chosen in the
alternative.
|
|
4.
|
SOUTHERN
IOWA BIOENERGY will invoice Eco for rail freight along
with a copy of the actual railroad invoice. (This
amount will be paid the following Friday upon receipt of
invoice.)
|
| 5. |
Eco
will purchase all truck gallons on an FOB plant basis.
|
| 6. |
Eco
will supply all trucks in such quantity and at such times as are
necessary
to fulfill its obligations under this
Agreement.
|
