ASSIGNMENT OF MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
Exhibit 10.4
ASSIGNMENT OF
MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
This ASSIGNMENT OF MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT (the “Assignment”) is made
this 26th day of September, 2006, by and between CENTRAL IOWA ENERGY, LLC, an Iowa
limited liability company (the “Company”) and F & M BANK — IOWA, a bank chartered under the laws of
the State of Iowa (the “Lender”).
RECITALS
A. Company and Lender have entered into a Master Loan Agreement and Supplements, dated on or
about September 26, 2006 (together the “Loan Agreement”), pursuant to which Lender will extend to
Company various credit facilities for the purposes of acquiring, constructing, equipping, and
furnishing of a biodiesel production facility to be located near the city of Xxxxxx, Xxxxxx County,
Iowa.
B. As a condition to extending the various credit facilities to Company the Lender has
required the execution of this Assignment of Management and Operational Services Agreement by the
Company.
AGREEMENT
Accordingly, in consideration of the foregoing, the parties agree as follows:
1. Company does hereby grant, assign, transfer and set over unto the Lender all of its right,
title and interest in and to that certain Management and Operational Services Agreement dated
August 22, 2006 as amended by that certain First Amendment to Management and Operational Services
Agreement dated on or before September 26, 2006 (the “Contract”), by and between Company and
Renewable Energy Group, Inc., a Delaware corporation, with its principal offices of business in 000
0xx Xxxxxx, XX Xxx 00, Xxxxxxx, Xxxx 00000 (“REG”), providing for the management of the
Company, and acting in the name of the Company regarding the holding, acquiring, leasing,
constructing, maintaining and operating the Company’s Assets and providing for the sale of
biodiesel to REG by the Company as described in the Management Agreement, a true and correct copy
of which is attached to this Assignment as Exhibit A.
2. Company agrees that Lender does not assume any of the obligations or duties of Company
under and with respect to the Contract unless and until Lender gives REG written notice that it has
affirmatively exercised its rights to performance under the Contract following the occurrence of an
Event of Default under the Loan Agreement. In the event that Lender does not personally undertake
to perform under the Contract, Lender has no liability whatsoever for the performance of any of
such obligations or duties. For the purpose of performing under the Contract, Lender may, in its
absolute discretion, reassign its right, title and interest in the Contract, upon notice to REG,
but without any requirement of Company’s consent.
3. Company represents and warrants there have been no prior assignments of the Contract, that
the Contract is a valid and enforceable agreement, and that neither Company nor REG is in default
thereunder and that all covenants, conditions and agreements have been performed as required
therein, except those not due to be performed until after the date hereof.
Company agrees that no material change in the terms thereof shall be valid without the prior
written approval of Lender, which approval shall not be unreasonably withheld. Company agrees not
to assign, sell, pledge, mortgage or otherwise transfer or encumber its interest in the Contract so
long as this Assignment is in effect, except as otherwise permitted under the Loan Agreement.
4. Company hereby irrevocably constitutes and appoints Lender as attorney-in-fact to demand,
receive and enforce Company’s rights with respect to the Contract, to make payments under the
Contract and to give appropriate receipt, releases and satisfactions for and on behalf of and in
the name of Company, at the option of Lender in the name of Lender, with the same force and effect
as Company could do if this Assignment had not been made.
5. This Assignment shall constitute a perfected, absolute and present assignment, provided
that Lender shall have no right under this Assignment to take any actions under Paragraph 4 of this
Assignment or enforce the provisions of the Contract until an Event of Default occurs under the
Loan Agreement. Upon the occurrence of any such Event of Default, Lender may, without affecting
any of its rights or remedies against Company under any other instrument, document or agreement,
exercise its rights under this Assignment as Company’s attorney-in-fact in any manner permitted by
law.
6. Company hereby agrees to indemnify and hold Lender harmless from and against any and all
claims, demands, liabilities, losses, lawsuits, judgments, and reasonable costs and expenses,
including without limitation reasonable attorneys’ fees, to which Lender may become exposed, or
which Lender may incur, in exercising any of its rights under this Assignment.
7. Subject to the aforesaid limitation of further assignment by Company, this Assignment shall
be binding upon Company, its successors and assigns, and shall inure to the benefit of Lender, its
successors and assigns.
8. This Assignment can be waived, modified, amended, terminated or discharged only explicitly
in writing signed by Lender and Company. A waiver signed by Lender shall be effective only in a
specific instance and for the specific purpose given. Mere delay or failure to act shall not
preclude the exercise or enforcement of any of Lender’s rights or remedies hereunder. All rights
and remedies of Lender shall be cumulative and shall be exercised singularly or concurrently, at
Lender’s option, and the exercise or enforcement of any one such right or remedy shall neither be a
condition to nor bar the exercise of enforcement of any other.
9. All capitalized terms used in this Assignment, but not otherwise defined herein, shall have
the meanings as set forth in the Loan Agreement.
IN WITNESS WHEREOF, the Company has executed this Assignment of Management and Operational
Services Agreement on the date first stated above.
| CENTRAL IOWA ENERGY, LLC, | ||||
| an Iowa limited liability company | ||||
| /s/ Xxxxx Xxxxxxxx | ||||
| Its Chairman |
EXHIBIT A
Management Agreement
by and between Company and REG
Management Agreement
by and between Company and REG
ACKNOWLEDGMENT AND CONSENT OF
ASSIGNMENT OF
MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
ASSIGNMENT OF
MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
In consideration of the Lender making the loan to the Company as described in the foregoing
Assignment, the undersigned (“REG”) hereby consents to the above Assignment and acknowledges and
agrees with the Lender as follows:
1. REG has read the Assignment and this Acknowledgment and Consent and understands all of the
provisions therein and herein.
2. REG has entered into an Management and Operational Services Agreement dated August 22, 2006
as amended by that certain First Amendment to Management and Operational Services Agreement dated
on or before September 26, 2006 with the Company, a true and correct copy of which is attached as
Exhibit A (the “Contract”), pursuant to which REG has agreed to provide for the management of the
Company and act in the name of the Company regarding the holding, acquiring, leasing, constructing,
maintaining and operating the Company’s Assets as described in the Management and Operational
Services Agreement for the Company.
3. The Contract is in full force and effect and has not been amended or assigned and REG is
not aware of any event that has occurred or failed to occur as of the date hereof which, but for
the passage of time or the giving of notice or both, would be a default thereunder.
4. The Assignment is a perfected, absolute and present assignment, provided that Lender has no
right under the Assignment to take any actions under Paragraph 4 of the Assignment or enforce the
provisions of the Contract until an Event of Default occurs under the Loan Agreement.
5. Upon the occurrence of an Event of Default under the Loan Agreement, and upon receipt by
REG of a written notice from Lender that it has affirmatively exercised its right to assume the
Contract, REG shall, at the Lender’s request, continue performance for the Lender’s benefit under
the Contract in accordance with the terms thereof.
6. Upon the occurrence of an Event of Default under the Loan Agreement and upon receipt by REG
of a written notice from Lender that it has affirmatively exercised its right to assume the
Contract, Lender may enforce the obligations of the Contract with the same force and effect as if
enforced by the Company and may perform the obligations of the Company. REG will accept such
performance in lieu of performance by the Company and in full satisfaction of the Company’s
obligations under the Contract with respect to which such performance is made by Lender.
7. REG will give Lender prompt written notice of any default by Company under the Contract.
REG will not terminate the Contract on account of any default of Company thereunder without written
notice of such default to Lender and providing Lender thirty (30) days to cure the default.
However, nothing herein shall require Lender to cure any default of Company under the Contract.
8. All capitalized terms used in this Acknowledgement and Consent, but not otherwise defined
herein, shall have the meanings as set forth in the Loan Agreement.
{SIGNATURE PAGE TO FOLLOW}
SIGNATURE PAGE TO
ACKNOWLEDGMENT AND CONSENT
OF
ASSIGNMENT OF MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
BY AND BETWEEN
CENTRAL IOWA ENERGY, LLC
AND
F & M BANK – IOWA
DATED: September 26, 2006
ACKNOWLEDGMENT AND CONSENT
OF
ASSIGNMENT OF MANAGEMENT AND OPERATIONAL SERVICES AGREEMENT
BY AND BETWEEN
CENTRAL IOWA ENERGY, LLC
AND
F & M BANK – IOWA
DATED: September 26, 2006
Dated: October 9th, 2006
| RENEWABLE ENERGY GROUP, INC. a | ||||
| Delaware corporation | ||||
| /s/ Nile X. Xxxxxxxxxx | ||||
| Its: President |
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