TERMINAL AGREEMENT
THIS AGREEMENT MADE AND ENTERED INTO AS OF THE 1st day of February, 2001, by and
between WESTWAY TERMINAL COMPANY INC., having its principal administrative
offices in New Orleans, Louisiana (hereinafter known as WESTWAY), and SOUTH
DAKOTA SOYBEAN PROCESSORS, INC., a Corporation with headquarters in Volga, South
Dakota (hereinafter known as SDSP).
WITNESSETH:
WHEREAS, WESTWAY TERMINAL COMPANY INC., a Delaware Corporation, owns and
operates bulk storage and distribution terminals and,
WHEREAS, SDSP desires to deliver Product to WESTWAY to be stored and handled at
its terminal(s).
NOW, THEREFORE, in consideration of mutual covenants and agreements the parties
agree to the general terms and conditions contained in the Statement of Terms
and Conditions and to specific terms and conditions as specified in the Schedule
I, all of which constitute the Agreement between the Parties.
1. TERM OF CONTRACT
From February 1, 2001 through January 31, 2002 and three month terms thereafter,
provided, however, that either party hereto may terminate this Agreement on
January 31, 2002 or on any subsequent anniversary date by notifying the other
party, in writing, at least forty-five (45) days prior to the intended
termination date.
2. MODIFICATIONS
No changes or modifications to the Statement of Terms and Conditions shall be
effective unless reduced to writing and subscribed to by the parties hereto.
Changes to the Schedule may be made by the parties at any time by any mutually
acceptable means. No failure to insist upon compliance with any term or
provision of the Agreement shall be considered a waiver, breach or cancellation
of such provision or any other provision of the Agreement.
3. NOTICE
Any or all notices required to be given under this Agreement shall be in writing
and shall be deemed given when deposited in the United States mail, certified or
registered, return receipt requested, addressed in the case of SDSP (or such
other address or addresses as either party may instruct the other in writing)
to:
SOUTH DAKOTA SOYBEAN PROCESSORS, INC.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Merchandising Manager
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or in the case of WESTWAY, to:
WESTWAY TERMINAL COMPANY INC.
Attn: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
4. ACCEPTANCE
Acceptance by SDSP shall be acceptance of all terms and conditions recited
herein or incorporated by reference. The person accepting this Agreement for
WESTWAY and SDSP each represent that he/she is duly authorized to obligate their
respective firm to the terms hereof and to pay sums due or arising hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement, the "Master
Agreement," as of the day and year first above written.
5.
SDSP PROCESSORS acceptance of the conditions and terms of this Agreement is
subject to receiving approval of the Chicago Board of Trade (CBOT) for delivery
of soybean oil in storage in the leased tank.
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS, INC. WESTWAY TERMINAL COMPANY INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------- ----------------------------
Title CEO Title President
----------------------------- ----------
Date 2/9/01 Date January 31, 2001
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STATEMENT OF TERMS AND CONDITIONS
1. FACILITIES
1.01 FACILITIES TO BE FURNISHED BY WESTWAY
WESTWAY agrees to furnish storage tank(s), pipelines, pumps and/or other
equipment (hereinafter known as "Facility") as more particularly described and
for the specific locations as set forth in Schedule I which are now and will be
attached hereto.
WESTWAY shall at all times retain operational control of the Facilities within
its sole care and custody and maintain the same, at its expense, in good and
safe working order and repair, performing all services in a safe and workmanlike
manner and minimizing any hazards associated with the storage of SDSP's
Products.
WESTWAY agrees to have Facility completed and ready to accept delivery for
storage and redelivery (as herein provided) of Product at the time and in the
amounts specified in Schedule I. SDSP shall have the right to inspect Facility
prior to initial delivery of Product; it being assumed that Facility is
satisfactory unless SDSP shall otherwise timely notify WESTWAY in writing.
1.02 TANK USE AND CLEANING
SDSP agrees to pay cost of cleaning its Product and disposing of cleaning
materials and residue waste from the Facilities following use of the Facilities
for storage of its Product, at a permitted facility, approved by SDSP. In the
event WESTWAY arranges for the cleaning and disposal services, SDSP will only be
responsible for the costs and liable if SDSP has approved the cleaning and
disposal contractor and procedures, and disposal site. All terms and provisions
of this Agreement shall continue in full force and effect until both Product and
waste are removed from WESTWAY's premises.
1.03 ADDITIONAL EQUIPMENT
The special facilities or equipment provided by SDSP, as mutually agreed upon
between WESTWAY and SDSP, described on Schedule I, are provided without
charge for WESTWAY's use in servicing SDSP's needs and shall remain the
property of SDSP; SDSP shall pay all taxes and insurance on such special
facilities or equipment. Except as otherwise provided in Schedule I, SDSP
shall at least bi-annually, and more often if circumstances and conditions so
warrant, inspect said facilities or equipment and shall be responsible for
maintenance and repair of said facilities or equipment to ensure their
continued safe performance during the term of this Agreement unless the
repair is necessitated by the negligence of WESTWAY. WESTWAY agrees to notify
SDSP of any obvious condition in need of repair maintenance. Should any
release or threatened release of any hazardous substance, as defined under
any federal state, or local law, ordinance or regulation, occur due to
failure of or defect in said facilities or equipment, SDSP shall be liable to
WESTWAY for any fines, penalties, loss, damage, or expense, including any
necessary cleanup of hazardous materials released or threatened to be
released into the environment and reasonable legal fees.
SDSP shall be responsible for all costs associated with the removal of said
facilities or equipment and any cost to restore WESTWAY's premises to their
original condition.
1.04 DOCK
As part of the Facility, WESTWAY shall make available to PROSPECT at
published rates existing loading docks and wharves servicing the terminal
having a present draft of 9' MLW. The dock, being used by WESTWAY and others,
is available on a "first come, first served" basis.
1.05 INSPECTION
WESTWAY hereby consents to an inspection by SDSP's designated representatives
of its entire site or the sites at which it may be providing storage or
performing services hereunder on a periodic basis or on special occasions on
a reasonable notice. WESTWAY shall make all reasonable efforts to make
available to said representative of SDSP during the inspection that person or
persons knowledgeable in Terminal's policies and procedures governing the
aspects of WESTWAY's operations relevant to the services rendered hereunder,
including, but not limited to, maintenance, quality assurance, environmental,
safety and loss prevention.
2. PRODUCT HANDLING AND DOCUMENTATION
2.01 PRODUCT HANDLING
The Product shall be received, stored and loaded by WESTWAY in accordance
with WESTWAY's standard procedures which include receipt, storage and
periodic sampling of stored Product, ordering of tank trucks or other
carriers for deliveries and dispatch of Product, loading into each tank truck
or other carrier and periodic inventory reporting.
Reasonable additional services will be supplied, necessary to accommodate
SDSP's requirements, at WESTWAY's regular rates and charges then in effect.
WESTWAY, upon prior written approval from SDSP specifying SDSP's customers
(and until such approval is withdrawn), will accept orders for the Product
from such customers and will arrange to dispatch tank trucks or other carrier
indicated by customer or SDSP, for the delivery of such orders.
SDSP shall be responsible for all charges incurred in engaging any carrier to
effect delivery or dispatch of any Product and its suitability to perform the
functions required, and WESTWAY shall be responsible only to receive or
discharge the Product through its terminal lines from or to those carriers on
vehicles, barges or equipment which, WESTWAY and SDSP agree, WESTWAY is
capable of and is equipped to service as specified in Schedule I.
2.02 SHIPPING AND RECEIVING PAPERS
For each shipment of Product WESTWAY will also make out the necessary
shipping documents and will send one (1) copy along with the weight ticket
and original ▇▇▇▇ of lading to SDSP on a daily basis. WESTWAY will complete
and forward to SDSP the required documents for receipts of Product as soon as
practicable after discharge.
3. OPERATIONS
3.01 HOURS OF WORK
WESTWAY shall perform the services set forth in this Agreement during normal
working hours, except that WESTWAY shall have its facilities and personnel
available for receiving and unloading of vessels or barges twenty-four (24)
hours per day, seven (7) days per week, including holidays. Costs incurred by
WESTWAY in having workmen stand by outside normal working hours caused by
arrival of vessel or barge after estimated arrival time supplied to WESTWAY,
and not caused by WESTWAY, shall be reimbursed to WESTWAY by SDSP. SDSP shall
endeavor to have vessels or barges available for unloading/loading during
normal working hours. Any work performed unloading/loading vessels or barges
outside of normal working hours shall be subject to overtime. Additionally,
on Sundays and legal holidays SDSP will be invoiced for premium pay paid to
WESTWAY's employees, plus 50% of such premium pay. If SDSP requests WESTWAY
to perform services, except for receiving and unloading of such vessels or
barges, outside stated normal working, hours, SDSP will reimburse WESTWAY the
actual costs incurred therefore, including payment of minimum "call-in" time
equal to four hours per man, minimum two men, when applicable.
Normal working hours for Facility for the purpose of this Agreement are
defined as follows:
Monday through Friday: 8:00 a.m. to 4:00 p.m.
CLOSED: Saturdays, Sundays and Holidays (or days on which they are
celebrated)
The above normal working hours are subject to change upon thirty (30) days
notice by WESTWAY to SDSP, except that in no case shall normal working hours
be changed to less than forty (40) hours per week, unless otherwise agreed.
3.02 VESSEL DISCHARGE
Should Product be delivered to Facility by vessel or barge, shall give the
WESTWAY terminal five days advance notice of the expected arrival time. The
Master of the vessel, his representative, or SDSP shall give WESTWAY at least
six (6) hours advance notice of the vessel's readiness to discharge cargo. If
the vessel is ready to discharge and WESTWAY is ready to receive the cargo in
less than six (6) hours after notice has been given, then discharge shall
commence without further delay. WESTWAY's personnel will perform no work on
the vessel. Vessel will pump Product to Facility at a rate of not less than
300 short tons per hour.
3.03 SCHEDULES
WESTWAY agrees to receive, store, and distribute Product at the rates and
charges fixed as provided on Schedule I. Cost and expense incurred by reason
of WESTWAY's delay in accepting discharge shall be borne by WESTWAY. However,
there will be NO penalties for delays resulting from force majeure or
mechanical breakdown of WESTWAY's equipment. WESTWAY will make all reasonable
efforts to have such equipment repaired as soon as possible.
3.04 MAINTENANCE OF FACILITY
WESTWAY agrees to maintain Facility during the term of this Agreement and any
extensions thereof. SDSP agrees to maintain special facilities and equipment,
which remain the property of SDSP as provided in Section 1.03, or, at SDSP's
option, WESTWAY shall provide such maintenance at SDSP's expense.
3.05 UTILITIES
WESTWAY shall supply utilities, such as electricity or heating, as required
and as specified in the Schedule I.
4. DETERMINATION OF QUANTITY
Quantities of Product received into Facility shall be determined by gauging
of the shore tanks made before and after delivery and calculated in gallons
at 60(degree) Fahrenheit in accordance with standard gravity tables supplied
by SDSP.
WESTWAY may, at its option, determine the quantity of Product delivered to or
from Facility by direct weighing of tank car or tank trucks, both empty and
loaded, on certified scales. Weighing of tank cars and trucks shall be at
SDSP's expense.
WESTWAY will supply SDSP with a monthly inventory of the Product. A month-end
physical inventory shall be taken each month by WESTWAY. Any variances
between the book record and the actual physical count shall be subject to an
adjustment of fees as provided in Section 14. SDSP has the right to
participate in taking such physical inventory.
5. SEE AMENDMENT 1
6. INDEPENDENT CONTRACTOR
Nothing contained herein shall create the relationship of joint venture,
principle and agent or master and servant between SDSP and WESTWAY and except
for purposes of issuance of bills of lading pursuant to this Section 2.02 or
for purposes of insuring payment of invoices as provided in Section 5,
WESTWAY, in the performance of this Agreement, is not and shall not act or
purport to act as the agent or employee of SDSP, but is and shall act as an
independent contractor. WESTWAY acknowledges that it is solely responsible
for and solely in control of operations at the Facility; SDSP shall not
exercise any control over or direction of the manner in which WESTWAY
performs the services called for under this Agreement.
7. QUALITY ASSURANCE
The independent surveyor engaged by SDSP, or, in his absence by WESTWAY, will
perform sampling of contents of such tanks and of the receiving pipeline
before, during and after loading or off-loading of vessel or bare. Duplicate
one (1) quart composite thief samples shall be taken from
top, middle and bottom of each tank being sampled prior to loading or
off-loading, and from tank upon completion of off-loading or loading. A
duplicate one (1) quart sample shall be taken from WESTWAY's receiving
pipeline prior to, and at least hourly, during loading or off-loading. One
(1) full set thereof shall be placed aside for WESTWAY.
From the other set, the surveyor shall prepare a one (1) quart composite
sample from each vessel tank and from Facility tank by combining one third of
each thief sample from the particular tank; similarly, the surveyor shall
make a one (1) quart composite sample from the receiving pipeline by
combining equal quantities of the samples from said pipeline. The composite
samples shall be sent, at SDSP's expense, to a laboratory or others to be
designated by SDSP. The remainder of the sample set from which the composite
samples were combined shall be retained by WESTWAY along with the full
duplicate set for a period of at least ninety (90) days, after which the
samples shall be disposed of by WESTWAY at a permitted facility at SDSP's
cost.
WESTWAY, if requested by SDSP, will take a one (1) quart sample from each
shipment out of Facility and retain such properly identified sample for a
period of thirty (30) days and disposed of by WESTWAY at a permitted Facility
at SDSP's costs unless SDSP shall otherwise request in writing.
8. RESPONSIBILITY FOR PRODUCT
WESTWAY will be responsible for any loss of Product while in storage in
excess of 1% of amount received. Overages and shortages shall be averaged
against each other over each contract year of the Agreement and any shortages
accounted for by WESTWAY to SDSP at the end of each contract year. WESTWAY
shall not, without instruction from SDSP, add anything to Product in storage.
SDSP shall be responsible for the Product until it leaves the delivery
carrier. WESTWAY's responsibility shall commence when Product is off-loaded
into WESTWAY's Facility and continues until Product passes from the last
flange into the shipping carrier. The amount of any Product lost due to leaks
or destruction of tank cars or tank trucks during the loading or off-loading
shall be borne by SDSP.
WESTWAY shall not be responsible for change in quality, color, or condition
of the Product stored or handled unless caused solely by WESTWAY's
negligence. SDSP shall indemnify and hold WESTWAY harmless, for any loss or
damage incurred by reason of a delivery to Facility of any Product identified
as Product, but is, in fact, of a different chemical composition, or if
WESTWAY takes any action, without negligence on WESTWAY'S part, with respect
thereto at the request or direction of SDSP.
9. CHARGES AND PAYMENT
9.01 TERMINATION CHARGE
In the event, as reflected on Schedule I, occupancy of the premises on which
its terminal is located is on the basis of lease from public or private
authority then cancellation or termination of the lease
shall automatically terminate and cancel this Agreement contemporaneously and
WESTWAY shall have no liability to SDSP arising out of such termination, nor
shall SDSP have any liability to WESTWAY arising therefrom.
9.02 STEAM CHARGE
If steam is required for raising or maintaining the temperature of Product
either in the tank or in tank cars or other carrier a charge will be assessed
for such steam per 1,000 pounds of steam used at WESTWAY's rates specified in
Schedule I. Payment for steam shall be made at the close of each month on the
basis of actual steam usage that month.
9.03 NITROGEN CHARGE
If Nitrogen is required for unloading Products or blanketing of tank, a
charge will be assessed per 100 cubic feet of Nitrogen used at 115% of
WESTWAY's cost. Additionally, where appropriate, SDSP may be assessed a
portion of the monthly Nitrogen tank rental fee.
9.04 OTHER CHARGES
(a) SDSP shall reimburse WESTWAY for all permits, licenses, etc. which may be
required by any public or private agency particular to the storage and
handling of SDSP's Product at WESTWAY's Facilities, provided such costs not
exceed $1,500, if such costs exceed this amount, paragraph 2 (Section 17.01)
shall apply.
(b) Subject to the terms and conditions herein, SDSP will pay WESTWAY for the
cost to clean such tank(s) and dispose of residuals in the event SDSP's use
of the tank is discontinued and the tank becomes available for use by WESTWAY
to store other product or materials. Subject to the terms and conditions
herein, if the tank(s) should require cleaning during the term of the
contract, due to any cause other than WESTWAY's negligence, SDSP will also
pay all costs of such cleaning and disposal of residuals.
(c) For services not specified herein, which SDSP may request from time to
time during the life of this Agreement from WESTWAY, SDSP will be billed at
WESTWAY's standard rates.
(d) Truck weighing shall be provided at the rate specified in Schedule 1.
(e) A 15% service charge shall be added to any other charge incurred for SDSP
accounts for services and handling.
9.05 INVOICES AND PAYMENT
Invoices for thruput charges shall be rendered monthly by WESTWAY to SDSP for
the next contract month; such invoices will reflect the portion of the
minimum annual thruput charge due to date. Monthly payments made in contract
year must equal the greater of either actual thruput charge for contract year
to date or so much of minimum annual thruput charge as is due to date; a
charge for other services rendered in the contract month just ended will be
added to monthly invoices.
Payment shall be made within thirty (30) days from date of invoice. Invoices
not paid timely shall bear interest of 1-1/2 percent per month (effective
annual rate of 18%) (or the maximum legal rate permitted by law), whichever
is less, from due date until paid and all costs of collection, including
reasonable attorney's fees.
10. ADJUSTMENT OF FEES
The thruput charges listed in Section 9.01 will be adjusted annually at the
beginning of each contract year by means of a formula using any increases or
decreases in CPI values, all items, all consumers up to a limit of six (6%)
percent annually.
The thruput rate for shipments made from the facility in excess of the
minimum thruput would be adjusted in the same manner.
The steam charge shall be adjusted every three (3) months, if necessary, to
reflect any increase or decrease in fuel rates provided that no increase
shall be greater than fourteen (14%) percent annually.
WESTWAY reserves the right to revise truck weighing charges at the end of
each contract year, limited to the extent WESTWAY can justify such adjusted
weighing charge by documentary evidence up to 5% annually.
If requested, WESTWAY will submit evidence of new and old rates at time of
escalation.
11. TAXES
In the event that the services provided pursuant to this Agreement or the
handling of SDSP's Product shall be treated as, or result in, a taxable sale
or use or, in the event this Agreement or the Product stored shall be subject
to any ad valorem tax, all such taxes shall be borne by SDSP invoiced as an
added charge; and provided, however, that SDSP shall have the full right to
contest the same at its cost and expense, with WESTWAY's reasonable
assistance and cooperation, which WESTWAY shall not unreasonably refuse.
12. PRODUCT DOCUMENTATION
SDSP agrees to provide to WESTWAY all information, documents, including
current Material Safety Data Sheets for each Product, labels, placards,
retained sample containers and other materials and data which are required by
Federal or State statutes, ordinances, rules or regulations ("Regulations")
relating to the Products stored under this Agreement and applicable
Schedules. SDSP further agrees to indemnify and hold harmless WESTWAY. and
WESTWAY's agents, employees, officers and directors, from and against any
fines, penalties, loss. damage or expense, including without limitation,
reasonable legal fees, resulting from SDSP's failure to provide or to make
available to WESTWAY any information, documents, sample containers and
materials as required by such Regulations, provided, however, that WESTWAY
acted prudently in the face of such failure by SDSP.
13. LIABILITY
13.01 EXTENT OF WESTWAY'S LIABILITY
Risk of loss of Product due to fire, storm or other casualty shall remain
with SDSP to the extent the Product is covered by SDSP's all risk insurance
coverage. WESTWAY shall be liable only for Product loss or damage in excess
of percentage set forth in Section 8 where such excess loss is caused by
WESTWAY's failure to use reasonable care in the safekeeping or handling of
Product. WESTWAY's liability for such loss or damage is limited to SDSP's
lowest FOB Volga wholesale price during the contract year in which the loss
occurred.
WESTWAY shall be responsible for all Facility deterioration resulting from
storage of Product, as long as such Product is within specifications
enumerated in the attached Schedules and delivered according to the terms and
conditions of this Agreement. In the event WESTWAY's facilities are damaged
or destroyed, WESTWAY may, at its option, rebuild such facilities so affected
or substitute mutually agreeable facilities for SDSP's Product within thirty
(30) days at rates specified in Schedule 1, throughout the remaining term of
this Agreement.
13.02 EXTENT OF SDSP'S LIABILITY
SDSP shall be obligated to notify WESTWAY of any Product characteristics
which may cause excess deterioration to Facilities beyond normal wear and
tear. In addition to SDSP's obligations pursuant to 17.01, should
destruction, excess deterioration or serious damage occur requiring repair
and/or replacement of tankage, equipment or facilities be required due to
SDSP's failure to deliver the Product specified or to accurately inform
WESTWAY of the Products hazards, SDSP shall be liable for repair and/or
replacement of such Facilities. In such event, SDSP shall continue to be
responsible for charges throughout the entire period of time required to
complete such repair and/or replacement unless such repair and/or replacement
exceeds a reasonable time frame as mutually agreed both parties prior to
commencement of said repair and/or replacement.
14. FORCE MAJEURE
Should WESTWAY's Facilities be seriously damaged or destroyed or should the
tank set aside to service SDSP's Product be damaged or destroyed, WESTWAY
shall be relieved, without incurring any liability to SDSP, of all WESTWAY's
obligations under this Agreement rendered impossible of performance by such
destruction or damage. In such event or in the event Force Majeure is
sustained by SDSP, SDSP shall at the same time be relieved of all obligations
to pay all or the allocable part of any monthly rental and attributable other
charges then in effect to the extent such failure to perform or such
deficiency in making annual thruput payments is caused by, arises out of or
is attributed to any cause reasonably beyond control of SDSP, such as but not
limited to war; riot; explosion; flood; storm; earthquake; act of God; perils
of the sea; labor disputes; sabotage; accident; embargo; breakage of
machinery or apparatus; injunction; compliance with governmental order; or
inability to obtain fuel; raw materials; labor; containers, or transportation
difficulties preventing the manufacture or shipment of product or restriction
imposed by SDSP (any such cause being referred to as "Force Majeure"). Should
any Force Majeure occur, the party experiencing the
Force Majeure will promptly notify the other party of its existence, the
reasons why and approximately how long a delay is expected.
15. DEFAULT BY EITHER PARTY
Should either party default at any time in the faithful performance and
observance of the terms or conditions of this Agreement and should any such
default continue for thirty (30) or more days after written notice thereof to
the defaulting party, then the non-defaulting party shall have the right to
cancel and terminate this Agreement and to recover damages or seek any other
relief which it may be entitled at law or in equity.
Should either party be adjudicated bankrupt or insolvent in an involuntary
proceeding, or if such party shall have filed a petition for an arrangement
of creditors under the bankruptcy laws or insolvency laws of any
jurisdiction, or if a bankruptcy or insolvency proceeding is instituted
against such party which is not set aside within thirty (30) days thereafter,
then, in that event, such party shall be deemed to be in default of this
Agreement, thereby entitling the other party hereto to treat this Agreement,
in accordance with the foregoing, as being in default.
16. INDEMNITY AND INSURANCE COVERAGE
16.01 INDEMNITY
SDSP shall indemnify and hold harmless WESTWAY and, at WESTWAY's request,
defend WESTWAY and each of its officers, directors, employees and agents from
and against any and all liability, suits, losses, demands, causes of action,
fines, penalties, expense, including attorney's fees, and claims, WESTWAY may
be caused to suffer or incur, including claim for bodily injury and property
damage arising out of or in any manner connected with SDSP's negligent acts
or omissions or breaches of this Agreement or its failure to comply with
applicable laws in the performance of its obligations, provided such claims,
etc. are not caused by the negligence of WESTWAY.
WESTWAY shall indemnify and hold harmless SDSP and, at SDSP's request, defend
SDSP and each of its officers, directors, employees and agents from and
against any and all liability, suits, losses, demands, causes of action,
fines, penalties, expense, including attorney's fees, and claims, SDSP may be
caused to suffer or incur, including claim for bodily injury including
Employees of WESTWAY and property damage arising out of or in any manner
connected with WESTWAY's negligent acts or omissions or breaches of this
Agreement or its failure to comply with applicable laws in the performance of
its obligations, provided such claims, etc. are not caused by the negligence
of SDSP. In no event shall WESTWAY or SDSP be liable to the other for
incidental or consequential damages, including, but not limited to, loss of
profits, business opportunity, downtime costs, or claims of third parties
other than claims by such parties for property damage or personal injury.
16.02 WESTWAY'S COVERAGE
WESTWAY shall maintain levels of insurance coverages during the term of this
Agreement as provided:
Workers Compensation Statutory
General Liability $1,000,000
Excess Liability $4,000,000
16.03 SDSP'S COVERAGE
SDSP will insure or self-insure all Product while in storage in terminal
against damage by fire or other casualty and shall insure or self-insure all
of its personnel and equipment while on WESTWAY's premises. Further, SDSP
shall carry liability insurance against loss or damage caused to any third
party, including WESTWAY, its officers, employees and agents by its product
or by its agents and/or employees in amounts not less than $3,000,000.00.
16.04 CERTIFICATES
Prior to the commencement of this Agreement, SDSP and WESTWAY shall each
furnish to the other a certificate(s) properly executed by the insurance
carriers, showing all insurance required hereunder to be in force. Each
certificate shall provide for ten (10) days written notice to such other
party, prior to the cancellation of or any changes effecting same.
17. REGULATORY COMPLIANCE
17.01 COMPLIANCE WITH LAW
WESTWAY warrants that, in rendering services to SDSP, it will comply at all
times with all applicable Federal, State and local laws, rules and
regulations and shall obtain certificates, permits, documents, and
authorizations required for the lawful operations of the terminal and the
handling and storage of SDSP's Product. WESTWAY agrees to indemnify and hold
harmless SDSP and SDSP's agents, employees, officers and directors, for and
against any fines, losses, damages or expenses, including without limitation,
reasonable legal fees, resulting from WESTWAY's violation of such laws and/or
regulations. SDSP shall comply with all federal, state and other governmental
laws, rules and regulations applicable to the ownership of Product and shall
obtain all certificates, permits, documents and authorizations required for
the lawful ownership of the Product.
If any Federal, State or local laws, rules or regulations are hereafter
amended, modified or supplemented so as to require alterations or additions
to the Facility for the storage and handling of Product, WESTWAY shall inform
SDSP accordingly and shall submit to SDSP an estimate of the costs of the
required alterations or additions. SDSP shall inform WESTWAY within fifteen
(15) days of its receipt of said notice and estimate, whether or not it will
pay said costs. If SDSP declines, and if the parties are unable to resolve
the matter by mutual agreement, SDSP shall remove all Product stored in the
Facility within thirty (30) days after notifying WESTWAY that
SDSP will not assume the costs of such alterations or additions, and if
terminated within the first four years of the contract, SDSP will pay WESTWAY
the termination charge set forth in Section 9.02 applicable at the time
Product is removed from the tank.
WESTWAY shall promptly advise SDSP by oral notice, followed by written
communication, of any material environmental condition. By material
environmental condition is meant receipt of notification of non compliance
with federal, state, or local environmental law, regulation, or statute which
does or may present a significant or substantial hazard or threat to human
health or the environment, or any occurrence which may significantly impair
the operation of the Facility. The existence of a material environmental
condition not promptly remedied shall be grounds for termination.
18. NONASSIGNABILTTY
Neither party shall assign or transfer this Agreement or any of such party's
right or obligations hereunder without the prior written consent of the other
party, which shall not be unreasonably withheld.
19. CHOICE OF LAW; CONFLICT
This Agreement shall be governed by and construed according to the laws of
the states in which the facilities employed to store SDSP's Products have
their physical situs.
In the event of conflict between the provisions of the Statement of Terms and
Conditions and either the Master Agreement dated February 1, 2001, to which
this Statement is appended or any associated Schedule(s) I, the latter shall
govern.
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS, INC. WESTWAY TERMINAL COMPANY INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇.▇.▇▇▇▇▇▇▇
------------------------------- ---------------------------
Title CEO Title President
---------------------------- ---------
Date 2/9/01 Date January 31, 2001
---------------------------- ----------------
SCHEDULE I
TO SERVICE AGREEMENT BETWEEN SDSP AND WESTWAY
DATED: FEBRUARY 1, 2001
DATE: FEBRUARY 1, 2001 EFFECTIVE: FEBRUARY 1, 2001
The operations, services and/or facilities contemplated in this Schedule
shall be performed and/or provided in accordance with and shall be subject to
the terms and conditions of the original Agreement dated February 1, 2001
except as specifically provided herein.
FACILITIES
The facilities as proposed in this Agreement, are located at Westway Terminal
Company Inc.'s St. ▇▇▇▇, MN facility - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇,
(▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ FAX.
WESTWAY shall supply SDSP with 1,500,000 gallons (Tank 2901) of maximum
storage capacity for crude soybean oil. Subject tank last contained GMO
(crude canola oil), and tank has been cleaned and available for inspection
prior to entry of crude soybean oil.
PRODUCT INFORMATION AND DOCUMENTATION
(a) PRODUCT INFORMATION
Product to be handled by WESTWAY is listed in this Schedule(s) and is
attached to and by reference made part of the Agreement of DATE, between
WESTWAY and SDSP. SDSP agrees the tanks shall be used ONLY for the storage of
the Product specified in the Schedule(s). SDSP provides the following
information as to this Product's properties. The obligations assumed by
WESTWAY hereunder will be and shall remain contingent upon the accuracy of
these representations:
TECHNICAL NAME - Crude Soybean Oil
TOXICITY - No known toxic effect
DENSITY lbs./gal - 7.6 lbs./(U.S.) gal
VAPOR PRESSURE - LESS THAN 0.1 mn hg @ 300(degree)C
FLASH POINT - GREATER THAN 175DEG. C
ODOR - Mild characteristic
CORROSITIVITY - None
COLOR - Golden
(b) PRODUCT RECEIPT AND SHIPMENT
The Product will be received into terminal by tank cars and tank trucks.
Product will be shipped by tank cars and tank truck.
CHARGES
Monthly storage and handling - $16,800.00 per month, which shall include
storage and thruput fees for the first 6,000,000 gallons per contract year.
Thruput in excess of 6,000,000 gallons per contract year will be charged at
$5.00 per short ton.
SCHEDULE I - PAGE 2
Weighing Charge - $5.00 per each truck weighing (load-empty). $50.00 per each
rail weighing (load-empty).
Steam Charge - $66.00 per hour to maintain or heat products.
Overtime, if required, shall be charged according to the following:
Monday-Saturday $60.00 per hour
Sundays & Holidays $75.00 per hour
If SDSP requests WESTWAY to perform services outside normal working hours,
SDSP will reimburse WESTWAY the costs therefore, including payment of a
minimum 4 hour "call in" time when applicable.
ACCEPTED ACCEPTED
SOUTH DAKOTA SOYBEAN PROCESSORS, INC. WESTWAY TERMINAL COMPANY INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
----------------------------------- ---------------------------
Title CEO Title President
------------------------------- ---------
Date 2/9/01 Date January 31, 2001
-------------------------------- ----------------
Amendment 1
Title to Product stored in Facility shall always remain with SDSP and shall
be held at SDSP's risk. SDSP must obtain bonding in the amount of $201,600
for the entire Lease period, and renew said bond until SDSP product is
completely removed from the tank. In event that SDSP is in breach hereof or
fails to remove all Product from Facility at termination of this Agreement
WESTWAY may execute and receive proceeds for said bond.
SDSP agrees to continue to pay WESTWAY monthly lease payments until SDSP has
completely removed all product from the tank.
Accepted
South Dakota Soybean Processors, Inc.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title CFO
--------------------------------
Date 3/20/01
---------------------------------
Accepted
WESTWAY TERMINAL COMPANY INC.
By /s/ ▇▇▇▇
-----------------------------------
Title V.P. Facility Dev. & Engr.
--------------------------------
Date 3/20/01
---------------------------------
