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.
*Portions of this Exhibit are omitted pursuant to a request for confidential
treatment and filed separately with the Securities and Exchange Commission.
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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.
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2. ENGAGEMENT OF MANAGER. OWNER hereby engages and designates 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
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affecting the Plant, subject to OWNER's duties in paragraph 6(a);
(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
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things to be done in or about the Plant as shall be necessary to comply with any
and all orders or 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 [*] 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 $[*]. 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
[*]
Table 2
[*]
The calculation for the quarterly payment of the Incentive Bonus under Table 1
above shall be based on [*] for the applicable quarter. The calculation for the
final payment or refund of the Incentive Bonus under Table 2 above shall be [*]
for the applicable year. In the event the term of this Agreement is terminated
prior to the end of any year, the [*] for such year shall be determined through
the date of termination and the Incentive Bonus for the quarter which includes
such date of 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).
*Portion omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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As an example, if [*] for the first quarter of the year is $[*], the Incentive
Bonus payable to MANAGER for that quarter under Table 1 above would be $[*]
(i.e., [*] of $[*] [$[*] less $[*]]). If [*] for the second quarter of the year
is $[*], the Incentive Bonus payable to MANAGER for that quarter under Table 1
above would be $[*] (i.e., [*] of $[*] [$[*] less $[*]]). If [*]for the third
quarter of the year is $[*], the Incentive Bonus payable to MANAGER for that
quarter under Table 1 above would be $[*] (i.e., [*] of $[*] [$[*] less $[*]]).
If the [*] for the year is $[*] 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 $[*] (i.e., [*] of $[*] less aggregate payments of $[*] for the
prior fiscal quarters in such year). In contrast, if the [*] for the year is
$[*] for purposes of calculating the final payment or refund under Table 2
above, the Incentive Bonus to be refunded by MANAGER would be $[*] (i.e., [*] of
$[*] [$[*] less $[*]]) less aggregate payments of $[*] 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, OWNER shall pay all fees associated
with such additional services;
(e) all travel expenses incurred by MANAGER unless previously approved by
OWNER;
*Portion omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(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.
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
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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 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
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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 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
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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) 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
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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 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
12
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
0000/0Xxxx 0xx Xxxxxx, 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 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.
13
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. [*]. 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. [*]
28. WAIVER OF CONSEQUENTIAL DAMAGES. Notwithstanding any other provison 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, 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
*Portion omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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
14
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 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.
15
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
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.
16
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
