Contract
Exhibit 10.22
***** PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMISSIONS HAVE BEEN INDICATED BY ASTERISKS
(“*****”), AND THE OMITTED TEXT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
US BioEnergy Corporation has entered into a master ethanol sales and marketing agreement, dated
March 31, 2006, with Provista Renewable Fuels Marketing, LLC (f/k/a/ United Bio Energy Fuels, LLC
(“Master Agreement”) attached hereto. Pursuant to the Master Agreement, certain of US BioEnergy
Corporation’s subsidiaries have entered into separate ethanol sales and marketing agreements that
are substantially identical in all material respects to the Master Agreement as follows:
| 1. | Ethanol Sales and Marketing Agreement, dated July 19, 2006, between United Bio Energy Fuels, LLC and US Bio Xxxxxx City, LLC. |
| 2. | Ethanol Sales and Marketing Agreement, dated July 19, 2006, between United Bio Energy Fuels, LLC and US Bio Woodbury, LLC. |
| 3. | Ethanol Sales and Marketing Agreement, dated August 3, 2006, between United Bio Energy Fuels, LLC and Platte Valley Fuel Ethanol, LLC. |
| 4. | Ethanol Sales and Marketing Agreement, dated August 3, 2006, between United Bio Energy Fuels, LLC and Val-E Ethanol, LLC. |
In accordance with Instruction 2 to Item 601(b) of Regulation S-K, only the Master Agreement is
filed herewith.
AGREEMENT REGARDING ETHANOL SALES AND
MARKETING
MARKETING
THIS AGREEMENT REGARDING ETHANOL SALES AND MARKETING (this “Agreement”) is made effective as
of March 31, 2006 (the “Effective Date”) by and between United Bio Energy Fuels, LLC, with offices
at 0000 Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx, XX 00000 (“UBE”), and US BioEnergy Corporation, with
offices at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (“Customer”). Any reference herein to a
“Party” shall refer to UBE or Customer individually, and any reference herein to “Parties” shall
refer to both UBE and Customer.
RECITALS
WHEREAS, Customer owns or plans to construct ethanol production facilities, each of which is
referred to herein as the “Facility,” as defined below; and
WHEREAS, Customer desires to sell, and UBE desires to market on Customer’s behalf, the entire
output of ethanol (which is a clear odorless liquid produced for use as a motor fuel made from
fermented grain being approximately 200 proof alcohol produced by Customer at the Facility, which
also includes any blends (e.g. E85) made from the ethanol, and is referred to hereinafter as the
“Ethanol”) produced at the Facility; and
WHEREAS, Customer and UBE each desire to agree in advance of such sale and purchase of the Ethanol
to the price formula, payment, delivery and other terms thereof in consideration of the mutually
agreed performance of the other pursuant to the terms of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and all of the representations, warranties,
undertakings, covenants, promises and agreements set forth herein, which Customer and UBE each
acknowledge are adequate and sufficient, Customer and UBE do hereby agree as follows:
I. DEFINITIONS AND INTERPRETATION.
A. Applicability. The definitions in this Section I. apply to this Agreement. Any
word, phrase or expression that is not defined in this Agreement and that has a generally
accepted meaning in the custom and usage in the ethanol industry in the United States shall
have that meaning in this Agreement.
B. “ASTM” is defined as the American Society for Testing and Materials. “ASTM D-4806” is
the standard specification for denatured fuel ethanol to be blended with gasolines for use
as an automotive spark-ignition engine fuel.
C. “Buyer” is defined as the entity to whom UBE sells Ethanol.
D. “Execution Costs” are defined as: (i) the actual costs charged by a third party, or
otherwise incurred, for freight and/or transportation of the Ethanol from the Facility to
Buyer including, but not limited to, charges and fees for rail car leases, any and all
interim storage and/or terminalling incurred prior to such delivery to Buyer, (ii)
insurance, and (iii) all other costs and charges charged by a third party in connection with
such transportation and delivery to Buyer, without xxxx-up by UBE, and without charge for
UBE’s administrative costs.
E. “Facility” means all of the ethanol production facilities of Customer prior to and
following the Effective Date, including any such ethanol production facilities in which
Customer has a 50% or greater ownership interest.
F. “Fiscal Year” shall mean the period of September 1 through August 31.
F. “Gallon” means one U.S. gallon of Ethanol at 60 degrees Fahrenheit, in accordance with
customary industry weights and measures.
G. “Initial Term” is defined as a term of commencing on the Effective Date and expiring on
November 30, 2007.
H. “Renewal Terms” are defined as the term from December 1, 2007 through August 31, 2008,
and thereafter as consecutive terms of one (1) year commencing on September 1 of each year
unless this agreement is terminated as provided in Section II.A.
II. TERM OF AGREEMENT; TERMINATION.
A. Term.
This Agreement shall be effective and binding as of the Effective Date and continue through
the Initial Term. After the expiration of the Initial Term, this Agreement shall
automatically renew for the Renewal Terms, unless terminated by UBE or Customer effective as
of the end of the Initial Term, or the then existing one (1) year Renewal Term, upon at
least ninety (90) days’ prior written notice. Notwithstanding anything to the contrary in
this Section II.A, this Agreement may be terminated as provided in Sections II.B. and/or
II.C. below.
B. Early Termination by Customer as a Result of UBE’s Breach. In the event that UBE
fails or refuses to comply with any material provision of this Agreement, then Customer
shall have the right to elect to terminate this Agreement by giving UBE at least thirty (30)
calendar days’ written notice prior to the effective date of termination, setting forth the
reason(s) for termination. UBE shall have the right to cure the breach within such thirty
(30) day period. If said breach is cured within such time period, the notice of termination
to UBE shall be void. However, if the breach is not cured within such time period, the
termination shall be effected. The exercise by Customer of any rights reserved under this
Section shall be without prejudice to any claim for damages or for any other right under
this Agreement or applicable law.
C. Early Termination by UBE as a Result of Customer’s Breach. In the event that
Customer fails or refuses to comply with any material provision of this Agreement, then UBE
shall have the right to elect to terminate this Agreement by giving Customer at least
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thirty (30) calendar days’ written notice prior to the effective date of termination,
setting forth the reason(s) for termination. Customer shall have the right to cure the
breach within such thirty (30) day period. If said breach is cured within such time period,
the notice of termination to Customer shall be void. However, if the breach is not cured
within such time period, the termination shall be effected. The exercise by UBE of any
rights reserved under this Section shall be without prejudice to any claim for damages or
any other right under this Agreement or applicable law.
D. Survival. All obligations, promises and agreements of both Customer and UBE that
expressly, or by their nature, survive the expiration or termination of this Agreement
including, but not limited to, each of the Party’s monetary obligations and indemnification
obligations herein, shall continue in full force and effect subsequent to, and
notwithstanding, expiration or termination of this Agreement until they are satisfied, or by
their nature expire.
III. SALE AND MARKETING OF THE ETHANOL.
A. Purchase and Sale. Customer agrees to sell to UBE, and UBE agrees to purchase
from Customer, at prices determined in accordance with this Agreement, all of the Ethanol
produced at the Facility, subject to all terms and conditions set forth in this Agreement.
UBE agrees to purchase all the Ethanol delivered in accordance with this Agreement
notwithstanding that the Facility may be operating at less than full capacity. From time to
time, Customer shall deliver to UBE an estimate, which is not a representation or warranty,
of the approximate number of gallons of Ethanol it will make available for delivery to UBE
on an annual basis, provided that each party hereto agrees that Customer has no obligation
to produce such amount of Ethanol and shall incur no liability by reason of its failure to
make such amount of Ethanol available for delivery except for any and all contractual
commitments UBE has entered into on behalf of Customer or as otherwise specifically provided
for herein.
B. Delivery. For purposes of this Section III., “Delivery” of Ethanol is defined as
the actual transfer of Ethanol to the possession of Buyer at the Delivery Point. For
purposes of this Section III., “Delivery Point” for Ethanol is defined as the outlet flange
transferring Ethanol into Buyer’s rail cars, trucks or storage tanks. UBE and/or UBE’s
agents shall be given access to the Facility as reasonably necessary for UBE and/or UBE’s
agents to arrange for Delivery of the Ethanol to Buyer. With Customer’s consent, which
consent shall not be unreasonably withheld or delayed, UBE shall schedule the loading and
shipping of all outbound Ethanol purchased hereunder, but all labor and equipment necessary
to load trucks and rail cars shall be supplied by Customer without charge to UBE.
C. Handling and Title. Customer agrees to handle the Ethanol in a good and
workmanlike manner in accordance with UBE’s reasonable written requirements conforming to
normal industry practice. Customer shall maintain the truck and rail loading facilities at
the Facility in safe operating condition in accordance with normal industry standards and
will visually inspect all trucks and rail cars to assure cleanliness so as to avoid
contamination from contaminants apparent to the naked eye. Customer shall be responsible
for any loss, claim, damage and/or expense arising from, or out of: (i)
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Customer’s negligence in handling the Ethanol, and/or (ii) Customer’s failure to handle the
Ethanol in accordance with UBE’s reasonable written requirements and normal industry
practice including, but not limited to, loss, claim, damage and/or expense arising or out of
trucks and/or rail cars that are overfilled at the Facility. UBE agrees that it will be
responsible for any damage or injury to persons or property at the Facility as a result of
UBE’s own negligence or willful misconduct and that UBE will follow all safety rules and
procedures reasonably promulgated by Customer and provided to UBE in writing. Subject to
the terms and conditions of this Agreement, title, risk of loss, and full shipping
responsibility, shall pass to UBE, and simultaneously from UBE to Buyer, upon Delivery at
the Delivery Point.
D. Storage at the Facility. Customer shall provide, at its sole cost, storage space
at the Facility for the storage of at least ten (10) days production of Ethanol. Customer
shall be responsible at all times for the quality and condition of the Ethanol in storage at
the Facility.
E. Production Estimates. As of the Effective Date and commencing on or before the
fifteenth (15th) day of the month following the Effective Date and continuing on
the fifteenth (15th) day of each month during the term of this Agreement,
Customer shall provide to UBE a 12-month rolling forecast of the volume of the Ethanol to be
produced and delivered by Customer for such 12-month rolling period. Customer shall
immediately notify UBE of any changes to the Ethanol production estimate for such 12-month
rolling period as soon as Customer has knowledge of the same. At least five (5) days prior
to the beginning of the week during which it is to be removed by UBE, Customer shall also
provide a weekly estimate (the “Weekly Estimate”) to UBE of the volume of the Ethanol (each
such amount, a “Ethanol Parcel”) to be produced and delivered by Customer together with a
notice of the amount of the Ethanol in inventory as of the date of the notice.
F. Transportation. Regardless of the amounts set forth in each Weekly Estimate, at
least five (5) days prior to the beginning of the week during which Ethanol produced by
Customer will be removed, UBE shall schedule for removal by truck or rail car the actual
quantity of the Ethanol produced by Customer in the relevant week less the sum of such
amount of the Ethanol that UBE and Customer agree shall be stored at the Facility. In the
event that Customer fails to provide the labor, equipment and facilities necessary to meet
UBE’s loading schedule, Customer shall be responsible for actual demurrage and wait time
incurred by UBE resulting from Customer’s failure to do so. UBE shall order and supply
trucks or rail cars as scheduled for truck or rail shipments. All Execution Costs shall be
billed directly to UBE and deducted by UBE from the proceeds of UBE’s sales of the Ethanol
to Buyers. UBE shall diligently pursue, secure and maintain all necessary agreements to
transport the Ethanol and shall use commercially reasonable efforts to obtain the lowest
charges in respect of Execution Costs in an effort to help Customer maximize its net price
for the Ethanol delivered hereunder after deduction of Execution Costs in accordance with
Section III.I. of this Agreement. On a daily basis, Customer shall inform UBE of the
inventory and production status for each Facility by 8:30 a.m. CST. Customer agrees that it
shall utilize all commercially reasonable efforts to purchase and install equipment for the
electronic transfer of loading and inventory data to UBE on a continuous basis.
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G. Rail Car Leases. UBE shall supply Customer with assumptions and information
required for Customer to determine the size of a rail car fleet for efficient disposition of
Customer’s Ethanol production. From time to time during the term of this Agreement, and in
order to help reduce Execution Costs and help Customer maximize its net price and
disposition options for the Ethanol delivered hereunder, UBE may enter into rail car leases
for the transportation of the Ethanol. In such instances, UBE shall promptly communicate to
Customer the terms and conditions of such rail car leases (“Rail Car Lease Offer”). Upon
receipt of such information, Customer, in its reasonable discretion, shall either direct UBE
to reject or accept such Rail Car Lease Offer. Any Rail Car Lease Offer not rejected by
Customer within ten (10) days of Customer’s receipt of the same shall be deemed accepted by
Customer (“Accepted Rail Car Lease”). Thereafter, Customer shall be obligated to reimburse
UBE for all amounts due and owing under such Accepted Rail Car Leases. UBE shall provide
Customer with notice of the schedule for all truck and railcar shipments no less than
forty-eight (48) hours prior to their scheduled arrival at the Facility, as well as an
estimate of the associated Execution Costs.
H. Certain Contracts. From time to time during the term of this Agreement and in
order to maximize the sales price of the Ethanol, UBE may enter sales contracts or
agreements in its reasonable discretion with Buyers of the Ethanol which contracts are
dependent on the availability of the Ethanol from Customer. In such instances, UBE shall
promptly communicate to Customer the terms and conditions of such contracts specifically
detailing price, volume and the length of such commitments (“Contract Offer”). Notices of
any such Contract Offers shall be given to a specific individual employee of Customer,
designated by Customer from time to time during the term of this Agreement (the “Customer
Contact”). Upon receipt of such information, the Customer Contact shall either direct UBE
to reject or accept such Contract Offer. Any Contract Offer not rejected by the Customer
Contact within two (2) business days of his or her receipt of the same shall be deemed
accepted by Customer (“Accepted Contract”). Thereafter, Customer shall be obligated to UBE
to provide the Ethanol as necessary to fulfill such Accepted Contract(s) and Customer shall
be responsible for any loss, claim, damage and/or expense arising from, or out of,
Customer’s failure to do so. Consistent with the preceding sentence, if Customer instructs
UBE to enter into any forward contract(s) on Customer’s behalf, any market loss incurred
shall be solely at Customer’s expense. Notwithstanding the above, Customer acknowledges
that certain market conditions may require that Customer’s decision whether to reject or
accept a Contract Offer be made in less than two (2) business days. In such cases, and
notwithstanding the above regarding response to a Contract Offer, UBE’s notice to Customer
may be sent via facsimile or e-mail to the Customer Contact and shall: (i) specifically
state a deadline for the Customer Contact’s decision (the “Deadline”), (ii) specifically
state the manner in which the Customer Contact is to respond to UBE (via facsimile,
telephone and/or e-mail), and (iii) identify the terms and conditions of such contract
specifically detailing price, volume and the length of such commitments (“Accelerated
Contract Offer”). Any Accelerated Contract Offer not rejected by the Customer Contact prior
to the Deadline shall be deemed accepted by Customer (“Accepted Accelerated Contract”).
Thereafter, Customer shall be obligated to UBE to provide the Ethanol as necessary to
fulfill such Accepted Accelerated Contract(s) and Customer shall be responsible for any
loss, claim, damage and/or expense arising from, or out of, Customer’s failure to do so.
UBE will
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cooperate with Customer’s risk management personnel and management to establish criteria for
Ethanol contracts and spot market sales, both prior to operation of a Facility and during
the term of this Agreement.
I. Price and Payment. For all the Ethanol sold by Customer to UBE hereunder, UBE
shall pay to Customer the *****. For purposes of pricing under this Agreement, if any UBE contracts have a marketing
fee expressed as a flat fee, it shall be converted to a marketing fee expressed as a
percentage by using the base price of Ethanol at $***** per gallon.
(i) Marketing Fee for Initial Term. The Marketing Fee for the Initial Term
shall be ***** with the exception of the ethanol plants Customer is intending to
acquire located in Central City, Nebraska and Ord, Nebraska (hereinafter referred to as the
“Platte Valley Facilities”). UBE and Customer agree that in the event Customer acquires the
Platte Valley Facilities, Customer shall utilize its best efforts to obtain a ***** Marketing
Fee by no later than November 30, 2006. The Marketing Fee for Renewal Terms shall
thereafter be determined in accordance with either Section I(ii) or Section I(iii).
(ii). Marketing Fee for Renewal Terms – Acquisition of Platte Valley
Facilities. In the event the Platte Valley Facilities are acquired by Customer, the
Marketing Fee for any Renewal Terms shall be determined based upon whether the Platte Valley
Facilities (a) agree to a ***** Marketing Fee prior to November 30, 2006; and (b) operate under
that Marketing Fee for at least 12 full months.
(A) Marketing Fee Determined by *****. If the Platte Valley
Facilities (1) agree to a ***** Marketing Fee; and (2) operate under such Marketing Fee for
a period of at least 12 full months, then the Marketing Fee for all subsequent Renewal
Terms shall be determined as follows: ***** shall then become the Marketing Fee for the subsequent Renewal Term under this
Agreement.
(B) Marketing Fee Set by *****. If the Platte Valley
Facilities either (1) do not agree to a ***** Marketing Fee; or (2) do agree to a ***** Marketing Fee, but operate under such fee for a period less than 12 full months, the
Marketing Fee for the first Renewal Term shall be determined as follows: *****
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Thereafter, the Marketing Fee for any additional Renewal Terms shall be determined
in accordance with the ***** method described in Section I(ii)(A).
(iii) Marketing Fee for Renewal Terms – No Platte Valley Acquisition. In the
event, Customer does not acquire the Platte Valley Facilities, the Marketing Fee for Renewal
Terms shall be determined in accordance with I(ii)(B) for the first Renewal Term, and
thereafter in accordance with Section I(ii)(A).
(iv) UBE agrees to use commercially reasonable efforts to achieve the highest UBE Buyer
Actual Price available under prevailing market conditions and to obtain the lowest charges
in respect of Execution Costs in an effort to help Customer maximize its net price for the
Ethanol delivered hereunder.
(v) ***** UBE
agrees to maintain accurate records including, but not limited to, sales, Execution Costs,
insurance and inspection records and to provide such records to Customer upon request for
the period set forth in Section III.O.
(vi) In addition to all other rights and remedies provided in this Agreement or by
applicable law or equity, if UBE fails to pay all or any portion of any undisputed amount
owing by it when due, such unpaid amount shall bear interest at a rate equal to one percent
(1%) per annum above the Prime Rate (as defined below) calculated daily from and including
the date such amount is due hereunder to but excluding the date it is actually paid. For
purposes of this Agreement, “Prime Rate” shall be the prime commercial lending rate being
from time to time published in the Money Rate Table of “The Wall Street Journal” as the
prime rate of annual interest for the date of determination (or if the Money Rate Table is
not published by “The Wall Street Journal” on such date because such day is not a business
day, the last preceding day on which such table was published by “The Wall Street Journal”).
If the Money Rate Table is no longer published by “The Wall Street Journal,” the Prime Rate
shall be the prime commercial lending rate being offered by Citibank, N.A.
J. Quantity. The quantity of Ethanol delivered to UBE from the Facility into tank
trucks and/or tank cars shall be measured, at no cost to UBE, by calibrated meters or
calibration tables which comply with all applicable laws, rules and regulations or in such
other manner as mutually acceptable to UBE and Customer.
K. Quality. Customer understands that UBE intends to sell the Ethanol purchased
from Customer as motor fuel quality ethanol and that said Ethanol is subject to minimum
quality standards for such use including, but not limited to, ASTM D-4806. Customer
represents and warrants that the Ethanol produced at the Facility and delivered to UBE
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shall be acceptable under industry standards in effect from time to time during the term of
this Agreement.
L. Compliance. Customer warrants that at the time of loading at the Facility the
Ethanol shall comply with all state and federal laws including those governing quality,
naming and labeling of product. The Ethanol requirements set forth in this Agreement shall
be collectively referred to as the (“Ethanol Specifications”). Customer further warrants
that at the time of loading at the Facility the Ethanol shall conform to the Ethanol
Specifications.
M. Rejection of Ethanol. Payment of invoice and acceptance of delivery do not waive
UBE’s rights if the Ethanol does not comply with the Ethanol Specifications at the time of
loading at the Facility. Unless otherwise agreed between the parties to this Agreement, and
in addition to other remedies permitted by law, UBE may, without obligation to pay, reject,
any of the Ethanol which is demonstrated by UBE to Customer to have failed to conform in any
material respect to the Ethanol Specifications at the time of loading at the Facility;
provided, however, that UBE shall report in writing any non-conforming Ethanol promptly upon
and in any event with twenty (20) days of discovery of such non-conformity. Such written
notice to Customer shall identify the deficiency that resulted in the rejection. All such
rejected, non-conforming Ethanol shall be returned to the Facility and Customer shall be
liable for all costs and expenses incurred in connection with returning such non-conforming
Ethanol to the Facility in accordance with any and all applicable laws, rules and
regulations.
N. Retention of Samples. Customer will take a minimum of one (1) original
representative sample from such lot of the Ethanol before it leaves the Facility. Customer
will label these samples to indicate the Ethanol’s lot numbers and whether the Ethanol was
shipped by rail car or truck. Customer will retain the samples and labeling information for
no less than three (3) months from the date such sample was taken and make such samples
available to UBE at UBE’s request.
O. Books and Records. UBE will establish and maintain at all times, true and
accurate books, records and accounts (the “Books”) in accordance with commercially
reasonable accounting principles and consistent with good industry practices,
distinguishable from all other books and records, in respect of all payments, statements,
charges and computations made under this Agreement and will preserve these books, records
and accounts for a period of at least one (1) year after the expiration of the term of this
Agreement. During normal business hours and upon reasonable prior notification and through
to the expiration of one (1) year following the expiration or termination of this Agreement,
Customer, at its sole cost and expense, has the right to inspect, examine and audit, or
cause its representatives (including without limitation a third-party auditor) to inspect,
examine and audit the Books of UBE to the extent necessary in order to verify the accuracy
of any statement, charge, computation or demand made under or pursuant to any of the
provisions of this Agreement. If any error is discovered in any statement rendered
hereunder and such error is on the part of UBE and results in an underpayment by UBE, the
amount of such underpayment shall be paid to Customer with interest at a rate of one percent
(1%) over the Prime Rate from the date such underpayment was due through (but not including)
the date such underpayment and interest thereon is paid and
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the amount of such underpayment and interest thereon will be paid within seven (7) days from
the date of discovery. For the sake of clarity, if any error is discovered to have been
made on the part of Customer and such error results in an underpayment by UBE, UBE shall pay
only the principal amount outstanding and interest on this principal shall not be paid by
UBE to Customer if UBE pays within seven (7) days from the date of discovery.
UBE and its authorized representatives will be permitted during normal business hours (at
UBE’s expense) to inspect and audit the Facility and records from time to time to determine
Customer’s compliance with the terms of this Agreement.
P. UBE’s Damages. In the event (i) Customer fails to provide the Ethanol in
accordance with the terms and conditions of this Agreement and (ii) UBE has previously
committed to deliver such Ethanol to a Buyer pursuant to an Accepted Contract or a sales
contract or agreement that has been otherwise agreed to by Customer, UBE may purchase the
quantities of the Ethanol not made available hereunder from other sources to the extent
necessary to perform UBE’s obligations under the approved sales contract after providing
Customer with not less than three (3) days’ advance notice of its intention to do so. In
such event, UBE shall be entitled to recover from Customer any reasonable out-of-pocket
costs UBE incurs above the agreed upon F.O.B. Facility Price, as applicable, for the Ethanol
resulting from its purchase.
Q. Obligations on Termination. Notwithstanding any termination of this Agreement,
Customer shall continue to be obligated to deliver all Ethanol to UBE that is identified to
an existing contract with the Buyer, provided such Ethanol is to be delivered by UBE from
the Facility and provided that UBE may not renew, extend, increase or otherwise modify such
contract with any Buyer after notice of termination of this Agreement pursuant to Article
II. Prior to the termination of the Agreement, UBE shall provide Customer with a list of
all such contracts and the quantities of Ethanol to be delivered pursuant to the same.
Termination of this Agreement will not relieve or release either party from its obligations
to make any payment which may be owing to the other party under the terms of this Agreement,
including payment relating to Ethanol delivered after termination pursuant to this Section,
or from any other liability which either may have to the other arising out of this Agreement
or the breach of this Agreement.
IV. GENERAL PROVISIONS.
A. Events of Default. The occurrence of any of the following shall be an event of
default (each an “Event of Default”) under this Agreement: (1) failure of either party to
make payment to the other when due; (2) default by either party in the performance of any
material covenant, obligation or agreement set forth in this Agreement; or (3) if either
party shall become insolvent, or make a general assignment for the benefit of creditors or
to an agent authorized to liquidate any substantial amount of its assets or properties with
or without consent, or should a voluntary or involuntary petition into bankruptcy or other
similar proceeding be filed by or against such party, or should an involuntary petition into
bankruptcy or other similar proceeding be filed by or against such party and the receiver,
bankruptcy or other similar proceeding shall not in the case of any involuntary petition or
other involuntary proceeding be discharged within sixty (60) days following appointment or
commencement thereof, as the case may be.
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B. Remedies. Upon the occurrence of an Event of Default, the party not in default
shall have all remedies available under this Agreement and under applicable law and equity.
Without limiting the foregoing, the party not in default shall have the following remedies
whether in addition to, or as one of, the remedies otherwise available to it: (1) to
declare all amounts owed to it hereunder immediately due and payable and (2) to terminate
this Agreement; provided, however, the defaulting party shall be allowed thirty (30) days’
from the date of receipt of notice of default to cure any Event of Default.
C. Force Majeure. Neither party to this Agreement shall be liable to the other
party hereto for any loss or damage resulting from any delay or failure to make or accept
deliveries caused by or arising out of acts of God or the elements, storms, wars, acts of
terrorism, sabotage, strikes, labor difficulties, governmental proration or regulation, when
raw materials or supplies are interrupted, unavailable, or in short supply, and/or any other
cause beyond such party’s commercially reasonable control. In the event that a party to
this Agreement gives notice and an explanation of such force majeure event to the other
party hereto within a reasonable time after the occurrence of such force majeure event, the
obligations of the parties shall be suspended from the date of such force majeure event for
the length of time during which a party is unable to perform as a result of such force
majeure event. Nothing contained in this Section IV.C. shall ever be construed to relieve
either party of its obligations to promptly pay the other party amounts due and owing
hereunder. No curtailment or suspension of deliveries or acceptance of deliveries pursuant
to this Section IV.C. shall operate to extend the term of this Agreement.
D. Indemnification. Customer agrees that it shall defend, indemnify, and hold
harmless UBE, and UBE’s directors, officers, agents, employees, insurers, successors and
assigns, from and against any and all claims, demands, damages, losses, liabilities, causes
of action, judgments, fines, assessments (including penalties and/or interest), costs and
expenses of any kind or nature, including all attorneys’ fees and all costs and expenses of
litigation and court costs (including attorneys’ fees and costs and expenses of litigation
and court costs incurred in enforcing this provision), without regard to amount, for damages
to, or loss of, property, or injury to, or death of, any person or persons, including
without limitation persons employed or engaged by Customer, caused by or arising or
resulting from, whether directly or indirectly: (i) the negligence and/or willful misconduct
of Customer, and/or (ii) Customer’s breach of any of its representations, warranties,
undertakings, covenants, promises and agreements as set forth in this Agreement; and/or
(iii) Customer’s failure to comply with any and all applicable federal, state or local laws,
ordinances, orders, permits, rules and regulations with regard to Customer’s activities
relating to the operation of its business and/or the Facility. UBE shall have the right,
but not the obligation, to participate in the defense of any such claim with attorneys
selected by UBE; provided, however, that once Customer assumes the defense of UBE pursuant
to provisions of this Section IV.D., UBE’s participation in the defense of any such claim
shall be at its own expense.
UBE agrees that it shall defend, indemnify, and hold harmless Customer, and Customer’s
directors, officers, agents, employees, insurers, successors and assigns, from and against
any and all claims, demands, damages, losses, liabilities, causes of action, judgments,
fines, assessments (including penalties and/or interest), costs and expenses of any kind or
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nature, including all attorneys’ fees and all costs and expenses of litigation and court
costs (including attorneys’ fees and costs and expenses of litigation and court costs
incurred in enforcing this provision), without regard to amount, for damages to, or loss of,
property, or injury to, or death of, any person or persons, including without limitation
persons employed or engaged by Customer, caused by or arising or resulting from, whether
directly or indirectly: (i) the negligence and/or willful misconduct of UBE; and/or (ii)
UBE’s breach of any of its representations, warranties, undertakings, covenants, promises
and agreements as set forth in this Agreement; and/or (iii) UBE’s failure to comply with any
and all applicable federal, state or local laws, ordinances, orders, permits, rules and
regulations with regard to Customer’s activities relating to the operation of its business.
Customer shall have the right, but not the obligation, to participate in the defense of any
such claim with attorneys selected by Customer; provided, however, that once UBE assumes the
defense of Customer pursuant to provisions of this Section IV.D., Customer’s participation
in the defense of any such claim shall be at its own expense.
E. Limitation of Liability. NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
F. Insurance. Customer agrees to maintain at all times during the term of this
Agreement: (i) Workers’ Compensation Insurance as prescribed by applicable laws of the
state(s) with jurisdiction over each of Customer’s employees; and (ii) Commercial General
Liability Insurance with a per-occurrence limit of not less than One Million Dollars
($1,000,000) (or higher limits as may be required by applicable law) (which coverage can be
provided through a combination of primary and umbrella policies), which policy(ies) shall
identify UBE as an additional insured party with respect to the operation of the Facility.
As to all policies described in this Section IV.F., Customer agrees that: (i) it will
provide UBE with at least thirty (30) days’ written notice prior to the effective date of
cancellation or any material change of any such policy(ies); and (ii) upon any request from
UBE, Customer will immediately instruct its insurer(s) to provide UBE with certificates of
insurance evidencing coverage that is required by this Section IV.F. Customer agrees that
the policy limits set forth herein are minimum limits and shall not be construed to limit
Customer’s liability.
G. Independent Contractors. Customer and UBE are separate legal entities, and
independent contractors in respect of the other party hereto. Nothing in this Agreement
shall constitute, or ever be construed to constitute, either party hereto as an agent, legal
representative, joint venturer, partner, employee, or servant of the other party hereto, for
any purpose whatsoever.
H. Notices. Any notice required pursuant to this Agreement shall be in writing,
and shall be deemed to be properly served on the date deposited in the U.S. Post Office if
sent by certified or registered mail, or three (3) days after the date deposited in the U.S.
Post Office if sent by regular mail. Such notice shall be properly addressed to the other
Party at its respective address set forth in the first paragraph of this Agreement, provided
that
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such addresses may be changed by proper notice delivered in accordance with the provisions
of this Section. For any notice sent by mail, the Party sending the notice shall also send
a facsimile of such notice on the same day that the notice is deposited in the U.S. Post
Office. Any notice made by a party under this Agreement by a method other than through the
U.S. Postal Service shall be in writing and shall be effective only upon actual receipt of
such notice.
I. Assignment. This Agreement may not be assigned or transferred by either party,
directly or indirectly, in full or in part, without the advance written consent of the other
party hereto, which consent shall not be unreasonably withheld, and no attempted assignment
or transfer of this Agreement by either party hereto shall be binding on the other party
hereto until it has consented in writing to such assignment. Assignments or transfers that
have not been consented to by the non-assigning party shall be void. Any change of control
of either party, whether by operation of law or otherwise, shall be deemed an assignment or
transfer for purposes of this Section IV.I. The terms and conditions of this Agreement
shall inure to the benefit of, and shall be binding upon, all respective permitted
successors and assigns of the parties hereto.
J. Choice of Law. This Agreement, and all rights, obligations, and duties arising
hereunder, and all disputes which may arise hereunder, shall be construed in accordance
with, and governed by, laws of the state of Minnesota, without giving effect to the conflict
of laws provisions thereof.
K. Modification and Waiver. Any of the terms and conditions of this Agreement may
be waived in writing at any time by the party which is entitled to the benefit thereof;
provided, however, that the failure of any party to exercise any right, power or option
given it hereunder, or to insist on strict compliance with all of the terms and conditions
hereof, shall not constitute a waiver of any term, condition, or right under this Agreement,
unless and until that party shall have confirmed any such action or inaction to be a waiver
in writing. Any such waiver shall not act as a waiver of any other term, condition, or
right under this Agreement, or the same term, condition, or right on any other occasion not
specifically waived in writing by such party. This Agreement may be modified, altered, or
amended only by a writing signed by the party against whom the amendment is to be enforced.
L. Enforceability. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but in the
event that a provision shall be determined by a court of competent jurisdiction to be
invalid and/or unenforceable, such provision shall be ineffective only to the extent that it
is explicitly deemed invalid, void or unenforceable, and the remaining provisions of this
Agreement shall be valid and enforced to the fullest extent permitted by law. Upon such a
determination that a provision is invalid, illegal, void, or unenforceable, the parties
agree to negotiate in good faith to modify this Agreement so as to effect their original
intent as closely as possible.
M. Entire Agreement. This Agreement contains the entire understanding between the
parties hereto and, as of the Effective Date, it shall supersede all prior negotiations,
representations, agreements and understandings, whether oral or written, between UBE
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and Customer with respect to the sale and marketing of the Ethanol produced by Customer at
the Facility.
N. Headings. The headings of Sections in this Agreement are inserted for
convenience only, and shall not be deemed to constitute a part of this Agreement, or to
affect interpretation of provisions hereof.
O. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all purposes, be deemed to be an original, but all of which shall
constitute one and the same Agreement.
P. Confidentiality. UBE and Customer, recognizing the work in which they will be
engaged under this Agreement is of a proprietary nature, recognize that each may disclose to
the other certain proprietary business plans, strategies, financial data, specifications,
production information, equipment details, process information, intellectual property and
other information relating to this Agreement. This information is secret and confidential
and will be disclosed by one party to the other party only on the following terms and
conditions:
1. “Confidential Information” shall mean all proprietary or confidential information
received or generated during the course of the performance of this Agreement
including, without limitation, the information described above and in the books and
records of either party. Confidential Information shall not include that which (i)
is in the public domain prior to disclosure to another party, (ii) is lawfully in
the other party’s possession, as evidenced by written records, prior to the
disclosure by a party, or (iii) becomes part of the public domain by publication or
otherwise through no unauthorized act or omission on the part of the other party.
2. Neither party shall disclose any of the Confidential Information to any
unauthorized party, unless required by law or court order and then only after
providing advance notice and an opportunity to intervene to the other party. Proper
and appropriate steps shall be taken and maintained by each party to protect the
Confidential Information of the other party.
3. Confidential Information shall be used by the parties only in connection with
their performance under this Agreement; no other use will be made of it by either
party.
[Remainder of this page intentionally left blank.]
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4. All documents containing Confidential Information of a party shall remain the
property of that party. They shall be returned to that party or destroyed upon
request.
5. No license or right is granted hereby to either party by implication or otherwise
with respect to or under any patent application, patent, claims of patent or
proprietary rights of either party with respect to the Confidential Information.
THIS AGREEMENT REGARDING ETHANOL SALES AND MARKETING SHALL NOT CONSTITUTE A BINDING CONTRACT
BETWEEN THE PARTIES UNTIL IT HAS BEEN EXECUTED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
IN WITNESS WHEREOF, Customer and UBE have caused this Agreement to be executed to be effective as
of the Effective Date.
United Bio Energy Fuels, LLC
By:
|
/s/ XXXX X XXXXXXXX
|
|||
| Its: INTERIM DIRECTOR OF FUELS | ||||
| US BioEnergy Corporation | ||||
By:
|
/s/ XXXXX X. XXXXX
|
|||
| Its: PRESIDENT | ||||
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