Exhibit 10.1
BION NMS' INSTALLATION AGREEMENT
ADDENDUM #4
PHASE II OPTION AGREEMENT
It is AGREED this 16th day of January, 1998, between the undersigned that
the agreements (collectively the "AGREEMENT") attached hereto at EXHIBIT A are
amended as set forth herein (EXHIBIT A is incorporated herein by reference):
1) Section 4 (Option for Phase II) B. of the Addendum of EXHIBIT A shall be
amended as follows:
"B. Under the terms of this OPTION, BION and BFF agree that all of the terms
and conditions of the AGREEMENT shall apply to the agreement covering PHASE II
of the PROJECT (the "PHASE II AGREEMENT") when the PHASE II AGREEMENT is
executed with the following changes and/or exceptions:
i. SECTION 5, BION COMPENSATION shall be amended in the PHASE II AGREEMENT to
read:
"A. Each site where a Bion NMS' is being installed has its unique character.
This requires BION to individually design the application of the Bion NMS for
each site at which it is to be installed. BION's goal is to design each Bion
NMS application to complement the existing site as much as practicable. BION
agrees to perform the services described in Attachment A and such other
activities as required by this PHASE II AGREEMENT. BFF agrees to pay BION in
consideration of this PHASE II AGREEMENT the aggregate sum of $800,000 payable
as follows:
i. $100,000 on July 15, 1998,
ii. $100,000 on August 15, 1998,
iii. $100,000 on September 15, 1998,
iv. $31,250 on the 15th day of October 1998 through January 2000,
provided, however, if BION and BFF agree on a schedule of development whereby
PHASE II of the PROJECT is anticipated to be completed in less than the 18
months of this payment schedule, then this payment schedule shall be
compressed on a ratable basis. Not withstanding any of the above, upon
completion of the construction of all of the systems contemplated by this
PHASE II AGREEMENT, all amounts are due and payable.
B. Late payment charges of 1.5% per month or part thereof, payable to BION,
will be due if payments are not received within 15 days of due date. BFF will
be responsible for any and all reasonable legal and/or court expenses incurred
by BION in BION's attempt to recover any unpaid amounts in case of failure of
BFF to pay BION for services performed and/or expenses incurred for BFF's
account.
C. For WORK provided by BION beyond the scope of services described in
ATTACHMENT A, or for unforeseen circumstances or changes in the scope of
services required by BFF, BION shall be compensated for such services as
negotiated by BION and BFF.
D. To the extent that the actual capital cost to design and construct the Bion
NMS systems contemplated in PHASE II is less than the aggregate standard cost
in the "Xxxxxx Model" for waste handling installation, BFF shall make
available to BION a revolving credit line on commercial terms (prime plus 1/2
point) an amount equal to one half of such capital savings on a cumulative
basis.
E. If greater than 12 BION NMS Systems are required for the performance of
PHASE II, the total fees due BION pursuant to Section A above shall increase
by $20,000 for each such system above 12. For each system above 12, the
increased fees due will be spread equally over the payments scheduled to be
made commencing October 15, 1998 through January 15, 2000."
ii. The terms and conditions of SECTION 6, BION NMS SYSTEM OPERATION
COMPENSATION AND PAYMENT, paragraph A shall be amended as follows:
"A. BFF agrees to pay BION for start-up and operational services for PHASE II
as described in ATTACHMENT A the amount of $1,115 per month for each system in
PHASE II as each system enters start-up."
iii. The terms and conditions of SECTION 6, BION NMS SYSTEM OPERATION
COMPENSATION AND PAYMENT, paragraph C shall be amended as follows:
"C. On a date one year after the start-up of the first Bion NMS for PHASE I,
and similarly, on a date one year after the start-up of the first Bion NMS for
PHASE II, BION and BFF shall evaluate the monthly payments for start-up and
operational services and negotiate any revisions that may be necessary.
During the pendency of such negotiations payments will continue at the
previously authorized level.""
2) Upon signing of this ADDENDUM #4 the parties agree that BFF has exercised
the Option for PHASE II contained in the AGREEMENT attached hereto as EXHIBIT
X.
XXXXXX FAMILY FARMS, INC. BION TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X Xxxxxx By: /s/ Xxx Xxxxxxxx
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Authorized Officer Authorized Officer
CRYSTAL SPRINGS FARMS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Authorized Officer
