SUPPORT SERVICES AGREEMENT
THIS SUPPORT SERVICES AGREEMENT (this "Agreement") is made and entered into
as of January 30, 2008 by Southwest Iowa Renewable Energy, LLC, a limited
liability company organized and existing under the laws of Iowa (the "Owner"),
and Xxxxx North America, Inc., a corporation organized and existing under the
laws of New York (the "Bunge"). Owner and Bunge are collectively referred to
herein as the "Parties" and individually as a "Party."
BACKGROUND
A. Owner is currently in the process of constructing certain assets,
facilities and equipment in Council Bluffs, Iowa (collectively, the
"Ethanol Facility") for the production of ethanol.
B. Owner desires to engage Bunge to provide certain construction support
services with respect to the construction of the Ethanol Facility on
the terms and conditions set forth herein, and Bunge is willing to
accept such engagement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and intending to be legally bound, the parties hereby agree as
follows:
ARTICLE I
SUPPORT SERVICES TO BE PROVIDED BY BUNGE; OBLIGATIONS OF OWNER
1.1 Appointment. Owner hereby appoints and engages Bunge to provide the
Support Services on the terms and conditions set forth in this Agreement. Bunge
hereby accepts such appointment and agrees to perform the Services in accordance
with the terms and conditions of this Agreement.
1.2 Support Services. Bunge shall perform or cause to be performed the
following construction support services for Owner (collectively, the "Support
Services"):
1.2.1 provide a team of engineering support personnel to provide
assistance to Owner with respect to construction of the Ethanol Facility;
1.2.2 provide monthly reports for Owner to submit to Owner's lender,
AgStar Financial Services, PCA ("AgStar"); and
1.2.3 assist Owner in correspondence and meetings with Xxxxxx Group
regarding requests from AgStar.
1.3 Standards for Performance of Support Services. Bunge shall perform the
Support Services in accordance with applicable federal, state and local laws,
rules and regulations using commercially reasonable diligence and care.
1.4 Independent Contractor. It is not the intent of the parties hereto to
create an agency relationship by this Agreement. Bunge shall perform its duties
hereunder as an independent contractor, and not as a general agent or joint
venturer.
1.5 Responsibility of Owner; Direction from Owner.
1.5.1 Owner acknowledges and agrees that it is solely responsible for
the construction, operation, maintenance, and security of the Ethanol
Facility. Owner further acknowledges and agrees that Bunge is providing the
Support Services to Owner in an advisory capacity, but that Owner is solely
responsible for implementing or rejecting any suggestions or advice
provided by Bunge as part of the Support Services.
1.5.2 At any time at Bunge's request to the Owner, Bunge may require
the Owner to provide specific direction or advice regarding any action to
be taken or omitted by it. Bunge shall not be liable to the Owner with
respect to any action or inaction which it takes in reliance on any
directions or advice received pursuant to this Section. However, nothing in
this Section shall be construed as imposing upon Bunge any obligation to
seek such direction or advice.
1.6 Items to be Furnished by Owner. Owner shall furnish, or cause to be
furnished, to Bunge, at the Owner's expense, such information, documentation,
services and materials which are reasonably requested by Bunge to perform the
Support Services, and to otherwise fulfill its obligations under this Agreement.
All such items shall be made available at such times and in such manner as may
be required by Bunge for the expeditious and orderly performance of the Support
Services.
ARTICLE II
COMPENSATION
2.1 Bunge Costs. Bunge shall provide all Support Services to the Owner as
required under this Agreement at a rate of $95 per hour for each hour of Support
Services performed by any Bunge personnel (whether such Support Services are
provided at the Ethanol Facility or at any other location). Owner shall also
reimburse Bunge for all out-of-pocket expenses associated with the Support
Services and travel and meal costs for Bunge personnel performing the Support
Services.
2.2 Invoicing by Bunge. Bunge shall invoice the Owner for the fees, costs
and expenses set forth in Section 2.1 on a monthly basis. Owner shall pay all
invoices within five days of receipt by the Owner.
ARTICLE III
TERM AND TERMINATION
3.1 Agreement Term. The term of this Agreement (the "Term") shall commence
on the Effective Date and, unless earlier terminated in accordance with this
Article 3, shall expire upon the earlier of (a) completion of construction of
the Facility, or December 31, 2008.
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3.2 Termination by Bunge. Bunge may terminate this Agreement at any time
for any or no reason.
3.3 Termination by Owner. Owner may terminate this Agreement: (a) upon 30
days' prior written notice to Bunge in the event of the bankruptcy of Bunge; or
(b) in the event of a material breach by Bunge of the terms of this Agreement if
Bunge does not cure such failure within 30 days after the date of written notice
from the Owner.
3.4 Effect of Termination. Expiration or termination of this Agreement
shall not relieve any Party hereto of liability that has accrued or arisen prior
to the date of such expiration or termination.
ARTICLE IV
INDEMNIFICATION
4.1 By Owner. Owner shall indemnify, defend and hold harmless Bunge and its
Affiliates, and all of their respective officers, directors, employees, agents,
partners, members, shareholders and representatives, from and against any and
all losses, costs, damages, expenses, obligations, injuries, liabilities,
insurance deductibles and excesses, claims, proceedings, actions, causes of
action, demands, deficiencies, lawsuits, judgments or awards, penalties and
interest, including reasonable attorney's fees, arising out of any act (or
failure to act) of the Owner and, if within the scope of Bunge's authority under
this Agreement, of Bunge, and Bunge shall not be liable to the Owner or any
other party for any obligation, liability, or commitment incurred by or on
behalf of the Owner, its officers or employees as a result of any such act (or
failure to act), except to the extent resulting from its gross negligence or
willful misconduct.
4.2 Consequential Damages. In no event shall Bunge be liable for any
consequential, incidental or specific damages or any other liabilities not
expressly set forth herein, regardless of legal theory or negligence.
ARTICLE V
FORCE MAJEURE
5.1 Definition of Force Majeure Event. Each Party is excused from
performing its obligations under this Agreement to the extent that such
performance is prevented by an act or event (a "Force Majeure Event") whether or
not foreseen, that: (i) is beyond the reasonable control of, and is not due to
the fault or negligence of, such Party, and (ii) could not have been avoided by
such Party's exercise of due diligence, including, but not limited to, a labor
controversy, strike, lockout, boycott, transportation stoppage, action of a
government, court or public authority, fire, flood, earthquake, storm, war,
civil strife, terrorist action, epidemic, or act of God; provided that a Force
Majeure Event will not include economic hardship, changes in market conditions,
or insufficiency of funds. Notwithstanding the foregoing sentence, a Force
Majeure Event does not excuse any obligation to make any payment required by
this Agreement.
5.2 Conditions Regarding Force Majeure Event. A Party claiming a Force
Majeure Event must: (i) use commercially reasonable efforts to cure, mitigate,
or remedy the effects of its
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nonperformance; provided that neither Party will have any obligation hereunder
to settle a strike or labor dispute; (ii) bear the burden of demonstrating its
existence; and (iii) notify the other Party of the occurrence of the Force
Majeure Event as quickly as reasonably possible, but no later than five Business
Days after learning of the occurrence of the Force Majeure Event. Any Party that
fails to notify the other Party of the occurrence of a Force Majeure Event as
required by this Section 5.4 will forfeit its right to excuse performance of its
obligations due to such Force Majeure Event. When a Party claiming a Force
Majeure Event is able to resume performance of its obligations under this
Agreement, it will immediately give the other Party notice to that effect and
resume performance.
ARTICLE VI
INSURANCE
6.1 Automobile. Owner will maintain automobile liability insurance against
claims for bodily injury, death and property damage, with limits of not less
than $1,000,000 per person and not less than $1,000,000 per accident or
occurrence; alternatively, combined single limits of not less than $1,000,000.
Such insurance will name Bunge, its parents, subsidiaries and Affiliates as
additional insureds thereunder.
6.2 General Liability. Owner will maintain commercial general liability
insurance (including, without limitation, coverage for Contractual Liability and
Products/Completed Operations) against claims for bodily injury, death and
property damage, with limits of not less than $5,000,000 in one accident or
occurrence; alternatively, combined single limits of not less than $5,000,000
each accident or occurrence, $5,000,000 Products/Completed Operations aggregate
and $5,000,000 general aggregate. Such insurance will name Bunge, its parents,
subsidiaries and Affiliates as additional insureds thereunder.
6.3 Waiver. Owner waives all rights against Bunge 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 the policies for property
insurance applicable to the Ethanol Facility.
6.4 Policy Requirements. All insurance policies required by this Agreement
will (a) provide coverage on an "occurrence" basis; (b) provide that no
cancellation, will be effected without endeavoring to give the other Party at
least thirty days' prior written notice; and (c) be valid and enforceable
policies issued by insurers of recognized responsibility, properly licensed in
the State of Iowa, with an A.M. Best's Rating of A- or better and Class VII or
better. Such insurance policies will not contain a cross-liability exclusion or
an exclusion for punitive or exemplary damages where insurable under law. Prior
to the Effective Date and, thereafter, within five business days of renewal,
certificates of such insurance will be delivered to the other Party, as
appropriate, as evidence of the specified insurance coverage. The minimum limits
of coverage required by this Agreement may be satisfied by a combination of
primary and excess or umbrella insurance policies; provided that any such excess
or umbrella insurance policies follow the form of the primary insurances and
contain a drop down provision in case of exhaustion of underlying limits and/or
aggregates.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Assignment. This Agreement shall not be assignable by either Party
without the prior written consent of the other Party hereto, except that Bunge
may subcontract the performance of the Support Services to one or more of its
Affiliates without the consent of Owner. Subject to the foregoing sentence, this
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns.
7.2 Amendments. No amendments or modifications of this Agreement shall be
valid unless evidenced in writing and signed by duly authorized representatives
of both the Parties.
7.3 Certain Defined Terms. The term "Affiliate" means a Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the party specified. The terms
"control" or "controlled" mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or voting interests,
by contract or otherwise. The term "Person" means any individual, general
partnership, limited partnership, limited liability company, joint venture,
trust, business trust, cooperative, association or other entity of whatever
nature.
7.4 Survival. The provisions of this Agreement which expressly or by their
nature survive expiration or termination of this Agreement, including, but not
limited to, Section 2.2 and Article IV, will remain in effect after the
expiration or termination of this Agreement.
7.5 Notices. All notices required or permitted under this Agreement will be
in writing. Such notices will be deemed given and made: (i) if by personal
delivery, on the date of such delivery, (ii) if by facsimile, on the date sent
(as evidenced by confirmation of transmission by the transmitting equipment),
(iii) if by nationally recognized overnight courier, on the next business day
following deposit, and (iv) if by certified mail, return receipt requested,
postage prepaid, on the third business day following such mailing; in each case
addressed to the address or facsimile number shown below for such Party, or such
other address or facsimile number as such Party may give to the other Party by
notice:
If to Bunge:
Xxxxx North America, Inc.
00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Senior Vice President - Bunge Grain
Facsimile: 000-000-0000
with copy to:
0
Xxxxx Xxxxx Xxxxxxx, Inc.
00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
If to Owner:
Southwest Iowa Renewable Energy, LLC
000 X. Xxx 0, XX Xxx 000
Xxxxxxx, XX 00000-0000
Attn: General Manager
with copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
7.6 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and the Parties hereto may execute this Agreement by signing any
such counterpart.
7.7 Governing Law. This Agreement shall be governed by the laws of the
State of Iowa, except any provision thereof that would require or permit the
application of the laws of any other jurisdiction.
7.8 Partial Invalidity. If any term, provision, covenant, or condition of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the rest of this Agreement shall remain in full force and
effect and in no way be affected, impaired, or invalidated.
7.9 Not for Benefit of Third Parties. This Agreement and each and every
provision hereof is for the exclusive benefit of the Owner and Bunge and is not
for the benefit of any third party.
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IN WITNESS WHEREOF, the parties have executed this Support Services
Agreement as of the date first set forth above.
Southwest Iowa Renewable Energy, LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President & CEO
Bunge North America, Inc.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
