EX-10.7






Exhibit 10.7


RES Renewable Environmental Solutions, LLC


Sales Contract



	 	 	 
	Seller:

	 	Renewable Environmental Solutions,
LLC Contract No. 1
	 

	 	530 North Main Street
	 

	 	Carthage, Missouri 64836                            Contract Date 3/17/08
	 
	 	 
	Customer:

	 	Schreiber Foods, Inc.
	 

	 	425 Pine Street
	 

	 	Green Bay, WI 54301
	 
	 	 
	Commodity:

	 	Renewable Diesel Fuel Oil
	 
	 	 
	Quantity:

	 	Approximately 1,000,000 gallons/year
	 
	 	 
	Term:

	 	1095 days from Contract Date
	 
	 	 
	Contract Price:

	 	Customer agrees to utilize Renewable Diesel Fuel Oil in exchange for a cost savings from
that which it would be paying for natural gas. Seller agrees to sell, and Customer agrees to
purchase, Renewable Diesel Fuel Oil according to the following schedule:
	 
	 	 
	 

	 	Commencing with first delivery: $1/MMBtu below the price that Customer would
then be able to purchase natural gas physically delivered to the Facility by the local
natural gas provider (the “Physically Delivered Price”). The delivery point for determining
the Physically Delivered Price shall be defined as Customer’s natural gas meter at the
Facility servicing the boiler(s). Customer reserves the right to use any purchasing
mechanism or combinations thereof in determining the Physically Delivered Price. For the
purpose of this provision, Renewable Diesel shall be deemed to have 124,000 Btu’s per
gallon.
	 
	 	 
	 

	 	From
3/17/2008 to 3/16/2010: $1/MMBtu below the Physically Delivered Price
	 
	 	 
	 

	 	From
3/l7/2010 to 3/l6/2011: $0.50/MMBtu below the Physically Delivered Price
	 
	 	 
	 

	 	Each delivered load of Renewable Diesel Fuel Oil shall be invoiced at the contract price
calculated as set forth above based upon Customer’s invoice price for natural gas for the
prior month. Each month, all purchases for the prior month will be adjusted to “true-up” for
the actual natural gas cost for the prior month, with any adjustment to be included on the
current month’s invoice. The adjustment for deliveries made in the final month of the term
of this Agreement, or for any month in which earlier termination occurs, shall be made in
the immediately succeeding month with payment or credit to be paid by the respective party
within ten (10) days following such final adjustment.
	 
	 	 
	Payment Terms:

	 	Net 30 days for all Delivery Invoices.
	 
	 	 
	Delivery Terms:

	 	Delivered to Customer’s
Facility located at 10 Dairy Street, Monett, MO, 65708 (the
“Facility”) in accordance with delivery schedule to be provided by Customer. Seller shall
retain title of the Renewable Diesel Fuel Oil until such time as it delivers the Renewable
Diesel Fuel Oil to the storage tanks at the Facility, at which title and responsibility for
the Renewable Diesel Fuel Oil shall transfer to Customer.






	 	 	 	 	 	 	 
	Seller’s Representative

	 	     /s/ Don Saunders	 	Date
	 	      3/17/08
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Customer’s Representative

	 	     /s/ Ron Dunford	 	Date
	 	      3/17/08
	 

	 	 	 	 	 	 





 









 





RES Renewable Environmental Solutions, LLC




Sales Contract Terms and Conditions

Contract No. 1               
          
                 




1. Representations and Warranties:





	 	A.	 	Seller further represents and warrants that Renewable Diesel Fuel Oil supplied under
this contract shall have the following specifications:






	 	 	 
	Minimum BTU/Gallon
	 	124,000
	Maximum Wt. Percent Sulfur
	 	0.3







	 	C.	 	Seller and Customer both warrant that they have obtained any and all licenses, permits,
and authority necessary or required to perform their obligations under this Sales Contract and that they
have paid all fees and charges with reference thereto, and that they will take such
steps and perform such acts as may be necessary in the future to ensure such
licenses, permits, and authority remain in full effect throughout the Term; that
they are in good standing with all governmental bodies or agencies, whether of
state, federal or local governments; that they will take such steps and perform
such acts as may be necessary to retain such good standing; that they are free and
have full right and authority to enter into this Sales Contract and to perform all
of their obligations hereunder, and that they have performed all acts and taken all
steps necessary to authorize the execution of this Sales Contract.





2. Termination.





	 	A.	 	By Customer. At any time that it is determined that Renewable Diesel Fuel Oil
causes excessive or inordinate wear and tear on Customer’s boiler(s), fuel storage system(s) or Facility, or if
local, state and/or federal rules
and regulations preclude use of Renewable Diesel Fuel Oil at any time, then
Customer shall be permitted to
terminate its usage of the Renewable Diesel Fuel Oil immediately. In addition to
the foregoing, Customer may
immediately terminate this Sales Contract if excessive emissions are emitted from
the Facility as a result of
Customer’s use of Renewable Diesel Fuel Oil, or such usage poses a challenge to the
Facility’s ability to
comply with its operating permit and/or any and all federal, state and local air
rules, regulations, ordinances,
directives and/or orders.
	 
	 	B.	 	By Either Customer or Seller. Either party may immediately terminate this
Sales Contract at any time, without
further obligation to the other, if it determines that its continuation with the
terms of this Sales Contract is not
feasible, or upon an act of Default by the other. Except as otherwise specifically
provided herein, termination
of this Sales Contract shall not relieve either Customer or Seller of any
obligation accruing hereunder prior to
such termination. In the event of termination by Customer only, the provisions of
Paragraph A set forth above
with respect to the RES Expenses shall apply. In the event of termination by RES,
no reimbursement of the
RES Expenses shall be owed by Customer. The term “Default” shall mean any of the
following:






	 	i.	 	Failure to comply with or to perform any provision or condition of this Sales
Contract for five (5) business days after written notice to cure thereof; or
	 
	 	ii.	 	Insolvency, inability to pay debts as they mature, or being the subject of a
petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under
bankruptcy, insolvency or similar laws; or making an assignment for the
benefit of creditors; or being named in, or having property subject to,
a suit for appointment of a receiver, or dissolution or liquidation; or
	 
	 	iii.	 	Any warranty made in this Sales Contract is breached, false, or misleading in
any material respect.






	 	 	 	In the event of an act of Default, the non-defaulting party shall be entitled to
pursue any remedy provided in law or equity, including injunctive relief and the
right to recover any damages it may have suffered by reason of such Default.





3. Green Premiums or Credits.





It is believed that there are Green Premiums or Credits (“Premiums or Credits”) available
for renewable diesel fuel oil. Customer agrees to and shall work with Seller to monetize,
if in fact Customer decides to trade and or sell such credits for monetary value, any
Premiums or credits and agrees to and shall remit to Seller within thirty (30) days of
receipt the sum equal to fifty (50) percent of all Premiums or Credits received. The
foregoing carbon credit sharing only applies to the Renewable Diesel Fuel Oil consumed
during the Term and not from other carbon-reducing activities Customer may initiate at the
Facility.



4. Marketing Materials.





Seller hereby agrees to and shall obtain the consent and necessary approval from Customer
before it utilizes Customer’s name and/or logo on any marketing or advertising materials,
including any materials or documentation that refers to



 









 





RES Renewable Environmental Solutions, LLC





Customer’s utilization of the Renewable Diesel Fuel Oil. Customer shall also approve the
final design and use of its name and/or logo on any marketing or advertising materials.



5. Confidentiality





	 	A.	 	During the performance of this Sales Contract, Seller and Customer may disclose to one
another certain confidential, proprietary and trade secret information consisting of, without
limitation (i) specifications, costs and pricing, processes, formulae, operating
procedures, procurement policies, manuals and guides, marketing, strategic and
budget plans, and financial statements and reports, (ii) such other materials, data
and information considered and identified to be proprietary and confidential, and
(iii) all of the information set forth in, or communicated in connection with, this
Sales Contract (collectively, “Confidential Information”). Both parties acknowledge
that the party providing such information (the “Disclosing Party”) is the exclusive
owner of the Confidential Information. The party receiving Confidential Information
from the Disclosing Party (the “Receiving Party”) shall not without prior written
consent of the Disclosing Party, (a) use Disclosing Party’s Confidential
Information for any purpose other than in connection with the performance of its
obligations under this Sales Contract, or (b) disclose any portion of the
Disclosing Party’s Confidential Information to third parties. Upon expiration or
termination of this Sales Contract for any reason, the Receiving Party shall
promptly return to the Disclosing Party, or destroy, all Confidential Information
of Disclosing Party that is its possession or under its control, whether in written
or tangible form, or stored in electronic media or digital format, regardless of
the party causing the same to be in such form. If such Confidential Information is
destroyed by the Receiving Party, then the Receiving Party shall certify the
destruction of the same to the Disclosing Party. The Receiving Party shall
disseminate the Disclosing Party’s Confidential Information to its employees only
on a “need-to-know” basis and shall cause its employees to comply with this
Section, with the Receiving Party remaining responsible for the actions and
disclosures of its employees. Both parties agree that any breach of this Section by
it or its employees shall cause irreparable injury to the other Party, that the
other Party shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach. The offending party agrees to
waive any requirement for the securing or posting of any bond in connection with
such remedy.
	 
	 	B.	 	Notwithstanding the foregoing, the parties’ obligations pursuant to this Section shall
not apply to (i) information that, at the time of disclosure is, or after disclosure becomes part of, the public
domain other than as a consequence of a party’s breach, (ii) information that was
known to the Receiving Party prior to the disclosure by the Disclosing Party, (iii)
information disclosed by a third party to Receiving Party after the disclosure by
Disclosing Party, if such third party’s disclosure neither violates any obligation
of the third party to the Disclosing Party nor is a consequence of Receiving
Party’s breach, (iv) information that Disclosing Party authorizes in writing for
release, or (v) information that is independently developed by Receiving Party
without reference to or reliance on Disclosing Party’s Confidential Information.





6. Indemnification.





Seller and Customer both hereby agree to defend, indemnify and hold harmless each other
from and against any claim, damage, loss, liability, cost, lawsuit and expense (including
reasonable attorneys’ fees) (collectively referred to as “Claims”), to the extent such
Claims are caused by the (1) fault or negligence of the indemnifying party, in connection
with this Sales Contract (2) breach of this Sales Contract by the indemnifying party. The
Claims covered by this indemnification provision shall include, without limitation, claims
alleging negligence, product liability, and patent, copyright, trademark, trade dress,
trade secret or other intellectual property infringement and/or misappropriation. The
indemnified party shall, as soon as reasonably practicable after receipt of notice of a
Claim against the indemnified party, notify the indemnifying party thereof. The
indemnifying party shall not, at any time, settle a claim or admit or agree to the
liability of either Party without the indemnified party’s prior written consent, which
consent shall not be unreasonably withheld.



7. Insurance.





Seller shall maintain, throughout the term of this Sales Contract, at its expense, (1)
commercial/comprehensive general liability insurance (including product liability
insurance) from a carrier satisfactory to Customer, in a minimum amount of two million
dollars ($2,000,000) combined single limit, for bodily injury and property damage, and (2)
excess liability/umbrella insurance in a minimum amount of ten million dollars
($10,000,000) each occurrence and in the aggregate. The foregoing policies shall designate
Customer and its affiliates as additional insureds therein, and shall be endorsed to
provide contractual liability insurance in the amounts specified above, specifically
covering Seller’s obligations to defend and indemnify Customer pursuant to this Sales
Contract. A certificate of insurance for such coverage shall be delivered to Customer within
twenty (20) days of the execution of this Sales Contract. The certificate shall specify that
Customer shall be given at least thirty (30) days prior written notice by the insurer in
the event of any material modification, cancellation or termination of coverage. Approval
of any of Seller’s insurance policies by Customer shall not relieve Seller of any
obligations contained herein, even for claims in excess of Seller’s policy limits.
Notwithstanding the foregoing, in no event shall Seller be liable for punitive damages or
consequential damages exceeding Seller’s policy limits. If at any time Seller does not
provide Customer with evidence of the insurance coverage described above within fifteen
(15) days after Customer so requests, Customer shall have the right to (i) immediately
terminate this Sales Contract and cancel all outstanding orders for Renewable Diesel Fuel
Oil (in which case any payment obligations owing by Customer for the RES Expenses shall be
rescinded), and/or (ii) withhold any payments to Seller that may be outstanding until
evidence of acceptable coverage is provided.



8. Force Majeure.




 









 








RES Renewable Environmental Solutions, LLC





Neither party shall be liable to the other party for any loss, delay or failure to perform
resulting directly or indirectly from acts of God, war or terrorism, governmental acts or
omissions, disease, illness, outbreak or plague,  supply shortage, fires, floods, riots,
strikes or other circumstances beyond either party’s reasonable control. In the event of a
force majeure occurrence, the disabled party shall make all reasonable efforts to remove
such disability within 30 days of giving notice of such disability. During such period, the
non-disabled party may seek to have its needs, which would otherwise be met hereunder, met
by others without liability to the disabled party hereunder. If the disability continues
for more than 10 days after the cessation of the reason for such disability, the
non-disabled party shall have the right to terminate this Sales Contract.



9. Choice of Law; Venue.




This Sales Contract, including any dispute or claim hereunder, shall be governed and
construed in accordance with the laws of the state of Missouri without reference to the
choice of law provisions of any state. Further, the parties agree that any and all actions
or proceedings arising from or relating to the Sales Contract shall be brought in the
Circuit Court for the County of Lawrence, Missouri, or the United States District Court for
the Western District of Missouri, and hereby consent to personal jurisdiction of such
courts for any such action or proceeding.



10. Entire Agreement.



This Sales Contract constitutes the entire agreement and understanding between the
Seller and Customer regarding the subject matter hereof, and supersedes and merges all
prior discussions and agreements between them relating thereto.



11. Survival.


The parties’ obligations under this Sales Contract which, by their nature, would continue
beyond the termination, cancellation or expiration of this Sales Contract including,
without limitation, the obligations set forth in Sections 5 and 6, shall survive the
termination, cancellation or expiration of this Agreement.



12. Access to the Facility.


Various representatives of Seller will need access to the Facility for the purposes of
inspecting, monitoring and sampling the usage and burning of Renewable Diesel Fuel Oil at
the Facility. Customer agrees to provide access to representatives of Seller for the
foregoing activities so long as those individuals have been approved by Customer, have gone
through Customer’s Contractor Briefing Program, and have signed the confidentiality
agreement required of all contractors who perform work and services at any Customer
location.



15. Notices.


Any written notices required in this Sales Contract may be made by facsimile, personal
delivery, overnight or other delivery service, or first class mail. Notices by fax will be
effective when transmission is complete and confirmed; notices by personal delivery will be
effective upon delivery; notices by overnight or other delivery services will be effective
when delivery is confirmed; and notices by mail will be effective four business days after
mailing. The notice addresses for Seller and Customer are set forth on the first page of
this Sales Contract and shall be subject to change upon written notice thereof.