EXIBIT 10.4 TO SOY ENERGY, LLC FORM 10-Q FOR THE QUARTER ENDED 04-30-2010



Exhibit 10.4


SETTLEMENT AND TERMINATION AGREEMENT


          This
Settlement and Termination Agreement (this “Agreement”) is entered into as of
the 31st day of March 2010 by and between New Equity, LLC, an Iowa
limited liability company (“New Equity”); Outsource Services Management, LLC, a
Nevada limited liability company (“OSM”); OSM–REO FF, LLC, a Minnesota limited
liability company (“OSM-REO”); and Soy Energy, LLC, an Iowa limited liability
company (“Soy Energy”). New Equity, OSM, OSMREO and Soy Energy may hereinafter
be collectively referred to as the “Parties” and individually a “Party”).


RECITALS


	
  

 	
  

 	
  

 
	
  

 	
 A.

 	
 Soy Energy and New
 Equity entered into a Unit Purchase Agreement dated on or about July 29, 2009
 (the “UPA”) providing for the sale and issuance of membership interests of
 Soy Energy to New Equity in exchange for the consideration described therein;

 
	
  

 	
  

 	
  

 
	
  

 	
 B.

 	
 Soy Energy entered into
 an Asset Purchase Agreement dated on or about July 29, 2009 (the “APA”) with
 Freedom Fuels, LLC, an Iowa limited liability company as debtor-in-possession
 under Title 11 of the United States Code (“Freedom Fuels”), in a case before
 the Bankruptcy Court for the Northern District of Iowa (the “Bankruptcy
 Proceeding”).

 
	
  

 	
  

 	
  

 
	
  

 	
 C.

 	
 New Equity, on several
 occasions made advances (the “DIP Advances”) to Freedom Fuels pursuant to a
 Loan Agreement between Freedom Fuels and New Equity dated June 5, 2009 (the
 “DIP Loan”).

 
	
  

 	
  

 	
  

 
	
  

 	
 D.

 	
 OSM has brought a
 Motion seeking an Order in the Bankruptcy Proceeding compelling New Equity to
 make further advances to Freedom Fuels pursuant to the DIP Loan
 (collectively, the “Motion”).

 
	
  

 	
  

 	
  

 
	
  

 	
 E.

 	
 The Parties desire to
 release certain claims specifically described herein and to terminate the UPA
 upon the terms and conditions provided herein in the event that Soy Energy
 purchases or otherwise acquires, either directly or indirectly through its
 affiliates or subsidiaries, the biodiesel production facility and other
 property previously owned by Freedom Fuels (for purposes hereof the
 consummation of such purchase through the delivery of all consideration and
 satisfaction or waiver of all closing conditions as, the “Acquisition”).

 


          NOW,
THEREFORE, for the mutual covenants set forth in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:


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 1.

 	
 Termination.
 Upon the consummation of the Acquisition (delivery of deeds of conveyance)
 and, upon satisfaction of the conditions and delivery of the payments set
 forth herein, the UPA shall automatically and immediately terminate pursuant
 to Section 5.1 of the UPA without any further action by New Equity or Soy
 Energy. New Equity and Soy Energy acknowledge and agree that such termination
 also results in the termination of the “Exclusivity Period” as such term is
 defined in Section 3.9(c) of the UPA. Upon termination, the UPA shall be
 cancelled in its entirety, its provisions shall be of no further force and
 effect, and Soy Energy and New Equity shall be released from any and all
 future, past, or present obligations under the UPA. 

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 Payment.
 In consideration for the termination of the UPA and the release of any and
 all claims arising out of the UPA and the Acquisition, and only in the event
 that Soy Energy consummates the Acquisition (the consummation of the
 Acquisition through the delivery of deeds of conveyance being referred to as
 the “Effective Date”), Soy Energy shall, on the Effective Date, pay to New
 Equity an amount equal to the actual costs and expenses incurred by New Equity
 related to the Freedom Fuels biodiesel production facility including, without
 limitation, amounts advanced or loaned pursuant to the DIP Loan plus all of
 New Equity’s expenses incurred since its formation including, without
 limitation, legal accounting and other expenses related to its formation and
 organization, related to negotiation and execution of the UPA, related to the
 Bankruptcy Proceeding, and related to negotiations with Soy Energy and OSM,
 up to an aggregate amount of $375,000 (the “Termination Payment”). In no
 event shall the Termination Payment exceed $375,000. Prior to the payment of
 the Termination Payment, New Equity shall provide to Soy Energy written
 documentation and evidence of the actual costs and expenses incurred by New
 Equity. Soy Energy shall pay the Termination Payment on the Effective Date of
 the Acquisition; provided, however, that the Termination Payment shall be
 made only if, and to the extent that, New Equity has delivered to Soy Energy
 the written documentation an evidence required by this section. Satisfactory
 written documentation shall include, without limitation, copies of cancelled
 checks issued or invoices received. The Termination Payment is expressly
 subject to and contingent on (i) the closing of the Acquisition and (ii) the
 delivery to Soy Energy of written evidence of expenses as provided in this
 section.

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 Agreement to Release
 Certain Direct Claims. Upon the occurrence of the
 Acquisition, OSM will pursuant to Section 4 of this Agreement release New
 Equity and its affiliates and representatives, in full, from certain direct
 claims it alleges against New Equity in the amount of $77,595 related to the
 following (the “Direct Claims”):

 





	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Taxes:

 	
  

 	
 $

 	
 48,897

 
	
  

 	
 Deposit for payment of claims:

 	
  

 	
 $

 	
 25,000

 
	
  

 	
 Administrative matters:

 	
  

 	
 $

 	
   3,698

 


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 Upon the effectiveness
 of the releases set forth in Section 4 below, OSM agrees that it will not
 seek reimbursement or payment of specifically the Direct Claims pursuant to
 the Motion (as defined above); it being the understanding and agreement,
 however, that OSM may at any time pursue recovery of all other claims, direct
 or indirect, against or pertaining to matters involving New Equity under or
 pursuant to the Motion or pursuant to any other motion or remedy.

 
	
  

 	
  

 
	
  

 	
 4.

 	
 Mutual Release.
 Upon the occurrence of the Acquisition and, upon satisfaction of each of the
 following conditions and delivery of each payment as set forth herein by each
 Party:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 a.

 	
 Soy Energy irrevocably
 releases New Equity and its affiliates and representatives, including,
 without limitation, their officers, directors and managers, in full, from any
 and all present, past and future claims, actions losses, expenses, and
 damages, of any kind or nature, now known, unknown or hereafter arising in contract,
 tort or otherwise, in connection with, related to or arising out of the UPA.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 b.

 	
 New Equity irrevocably
 releases Soy Energy and its affiliates and representatives, including,
 without limitation, their officers, directors and managers, in full, from any
 and all present, past and future claims, actions losses, expenses, and
 damages, of any kind or nature, now known, unknown or hereafter arising in
 contract, tort or otherwise, in connection with, related to or arising out of
 the UPA or the Acquisition.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 c.

 	
 New Equity irrevocably
 releases OSM and OSM-REO FF, LLC and their respective affiliates and
 representatives, including, without limitation, their officers, directors,
 managers, and loan participants, in full, from any and all present, past and
 future claims, actions losses, expenses, and damages, of any kind or nature,
 now known, unknown or hereafter arising in contract, tort or otherwise, in
 connection with, related to or arising out of the UPA, the Acquisition and
 the Direct Claims.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 d.

 	
 OSM irrevocably
 releases New Equity and its affiliates and representatives, including,
 without limitation, their officers, directors and managers, in full, from the
 Direct Claims and any and all actions, losses, expenses and damages, of any
 kind or nature, now known, unknown, or hereafter arising in contract, tort,
 or otherwise in connection solely with or related solely to the Direct
 Claims; it being the understanding, however, that OSM does not release its
 other direct or indirect claims against New Equity as noted above in Section
 3 of this Agreement.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 5.

 	
 No Admission.
 The Parties make and enter into this Agreement to settle all potential
 disputes arising from the UPA and the Direct Claims and to avoid the costs of
 litigation. Nothing in this Agreement shall constitute an admission of
 liability on the part of the Parties or the admission or acknowledgement of
 any issue, term or matter related to the UPA, the Acquisition, and the Direct
 Claims.

 


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 6.

 	
 Representations and
 Warranties. Each Party represents and warrants as follows:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 a.

 	
 Such Party has all
 requisite power and authority to enter into this Agreement and to consummate
 the transactions contemplated in this Agreement.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 b.

 	
 This Agreement has been
 duly executed and delivered by such Party and constitutes the valid and
 binding obligation of such Party, enforceable in accordance with its terms.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 7.

 	
 Counterparts.
 This Agreement may be executed in one or more counterparts, all of which
 shall be considered one and the same agreement, effective when one or more
 counterparts have been signed by each of the Parties and delivered to the
 other Parties.

 
	
  

 	
  

 	
  

 
	
  

 	
 8.

 	
 Scope of Agreement.
 This Agreement constitutes the entire agreement between the Parties with
 regard to the subject matter hereof.

 
	
  

 	
  

 	
  

 
	
  

 	
 9.

 	
 Modifications.
 This Agreement shall only be modified by written agreement executed by all
 Parties.

 
	
  

 	
  

 	
  

 
	
  

 	
 10.

 	
 Successors and Assigns.
 This Agreement shall be binding upon, and inure to the benefit of, the
 Parties and their respective successors, heirs, administrators and assigns.

 
	
  

 	
  

 	
  

 
	
  

 	
 11.

 	
 Severability.
 In the event that any provision of this Agreement or the application thereof
 becomes or is declared by a court of competent jurisdiction to be illegal,
 void, or unenforceable, the remainder of this Agreement will continue in full
 force and effect and the application of such provision to other persons or
 circumstances will be interpreted so as to reasonably effect the intent of
 the Parties. The Parties further agree to replace such void or unenforceable
 provisions of this Agreement with a valid and enforceable provision that will
 achieve, to the extent possible, the economic, business and other purposes of
 such void or unenforceable provision.

 
	
  

 	
  

 	
  

 
	
  

 	
 12.

 	
 Governing Law.
 This Agreement shall be governed by and construed in accordance with the laws
 of the State of Iowa, regardless of the laws that might otherwise govern
 under applicable principles of conflicts of law.

 


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          IN WITNESS WHEREOF, the Parties have executed this agreement as first
written above.


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 NEW EQUITY LLC

 	
 SOY ENERGY, LLC

 
	
 An Iowa Limited Liability Company

 	
 An Iowa Limited Liability Company

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 By: 

 	
 /s/ David C. Quinlan

 	
  

 	
 By:

 	
 /s/ Charles Sand

 
	
  

 	
   


 	
  

 	
  

 	
   


 
	
 Its: 

 	
 Chairman

 	
  

 	
 Its:

 	
 Chairman

 
	
  

 	
   


 	
  

 	
  

 	
   


 
	
  

 	
  

 
	
 OUTSOURCE SERVICES

 	
 OSM-REO FF, LLC

 
	
 MANAGEMENT, LLC

 	
 a Minnesota Limited Liability Co.

 
	
 A Nevada Limited Liability Co.

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 By: 

 	
 /s/ Stephanie Lunde

 	
  

 	
 By:

 	
 /s/ Stephanie Lunde

 
	
  

 	
   


 	
  

 	
  

 	
   


 
	
 Its: 

 	
 SVP

 	
  

 	
 Its:

 	
      VP

 
	
  

 	
   


 	
  

 	
  

 	
   


 


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