Exhibit
10.18


 


Confidential Treatment Requested. Confidential portions of this
document have been redacted 

and have been separately filed with the Commission.


 


LEASE AGREEMENT


 


PARTIES:  THIS
LEASE (“Lease”), made and entered into as of the 8th day of June, 2007 (“Effective
Date”), by and between INTERNATIONAL-MATEX TANK
TERMINALS, a Delaware general partnership, with offices located 321
St. Charles Avenue, New Orleans, Louisiana, appearing herein through Richard D.
Courtney,  its Chief Operating Officer, duly authorized (hereinafter “LESSOR”) and REG DESTREHAN, LLC, an Iowa limited liability company, with
offices located at 406 1st Street, Ralston, IA  51459, appearing herein through Nile
Ramsbottom, President of Renewable Energy Group, Inc., the sole member of REG
Destrehan, LLC,  duly authorized (hereinafter “LESSEE”).


 


WITNESSETH:


 


For
and in consideration of the mutual covenants and agreements contained herein,
the Parties hereby enter into this contract of Lease subject to the terms and
conditions as follows:


 


1.             LEASED PREMISES.


 


1.1           Upon
and subject to the terms, conditions, covenants and provisions of this Lease,
LESSOR does by these presents lease, let and demise to LESSEE and LESSEE takes,
hires and leases from LESSOR, the property described in Schedule “1.1” hereto.


 


AND EXPRESSLY SUBJECT TO:


 


(i)            All
easements, servitudes, rights, title and interests of any person, other than
the parties to this Lease or anyone claiming by, through or under them, in and
to any property


 


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located
within or upon the property described in Schedule “1.1”;


 


(ii)           All
matters shown on the survey;


 


(iii)          All
matters that are apparent by visible inspection or otherwise known or disclosed
to LESSEE as an encumbrance to this Lease;


 


(iv)          Present
and future zoning laws, ordinances, resolutions and orders of all boards,
bureaus, commissions and bodies of any municipal, parish, state or federal
sovereigns now or hereafter having or acquiring jurisdiction over the Leased
Premises and the use and improvement thereof;


 


(v)           Condition
and state of repair of the Leased Premises as the same may be on the Effective
Date; and


 


(vi)          All
drainage, surface and sub-surface conditions, whether visible or invisible,
foreseen or unforeseen.


 


(Collectively,
referred to as the “Leased Premises”).


 


1.2           In
addition to the Leased Premises and for as long as this Lease is in existence,
LESSOR shall provide to LESSEE a non exclusive right of way over LESSOR’S
adjacent property for the purpose of ingress and egress to and from the Leased
Premises all as more fully shown on Schedule 1.1. LESSOR retains the right to
relocate LESSEE’S right of way provided LESSOR bears the cost of any relocation
and the new right of way location does not have a material adverse effect upon
the accessibility or operation of the Facility. LESSEE shall have the right to
construct an entrance to the east side of the Leased Premises to connect with
the road called Viola Street, provided, however, such entrance shall be
constructed so as not to interfere with the drainage along the west side of
Viola Street.


 


1.3           LESSOR
shall also provide to LESSEE non-exclusive rights of way over LESSOR’S adjacent
property for the purpose of enabling LESSEE to access necessary third party
utility services all as more fully shown on Schedule 1.3. If there are any
existing conditions which prevent or make the construction and installation of
such utility connections at the locations shown on


 


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Schedule
1.3 impractical or not feasible LESSOR will provide an alternate route or
routes for such utility connections at LESSEE’s cost. LESSEE shall comply with
all laws, ordinances and applicable codes in constructing such utility connections.
After the construction of such utility connections has been completed, LESSEE
may arrange, at its cost, for a survey of the agreed upon location of such rights
of way to be prepared and, upon the request of LESSEE, LESSOR and LESSEE shall
execute an amendment to this Lease and any memorandum of lease for recordation
purposes. LESSOR retains the right to relocate LESSEE’S right of way for such
utility connections provided LESSOR bears the cost of any relocation and the
new right of way location does not have a material adverse effect upon the accessibility
or operation of the Facility.


 


1.4           LESSOR
shall provide to LESSEE the exclusive right to use the area of land that
adjoins the north side of the Leased Premises which is depicted on attached
Schedule 1.4 as the laydown area for a construction storage and staging site for
a period of three (3) months following the Effective Date (“Laydown Area”). After
the expiration of such 3 month period, LESSOR shall provide to LESSEE an
alternate laydown area or areas (to be located near the Leased Premises on the
west side of Slack Street) as a construction storage and staging site for a
period up to and including commencement of Commercial Operations. LESSEE agrees
that upon the expiration of its right to use the Laydown Area and any alternate
laydown area it will surrender and deliver possession thereof to LESSOR in the
same condition that it was in immediately prior to LESSEE’S use.


 


1.5           LESSOR
shall provide to LESSEE the right to drain surface water from the Leased
Premises into a drainage ditch that adjoins the east side of the Leased
Premises. LESSOR shall also provide to LESSEE the right to construct and extend
a drainage ditch to be located along the west side of


 


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the
Leased Premises onto and under the two areas retained by LESSOR where its
pipeline expansion loops are located.


 


2.             TERM.


 


2.1           Term. The term of this Lease is thirty (30) years commencing on the Effective Date and
expiring on the 30th anniversary thereof, inclusive as to both (the “Term”).


 


2.2           Renewal Option. LESSOR further grants to LESSEE the option
to renew this Lease for six (6) additional successive terms of ten (10) years
and one final renewal term of nine (9) years, (each hereafter referred to as a “Renewal
Term”) each to run consecutively following the expiration of the Term, upon the
same covenants and conditions as are contained in this Lease. LESSEE shall
inform LESSOR in writing of its intent to exercise its option to renew this
Lease or a Renewal Term at least one hundred eighty (180) days prior to the
expiration of the Term or the then current Renewal Term. The option to renew
the Term of this Lease or any Renewal Term shall not be exercisable by LESSEE
if LESSEE is in default of this Lease.


 


3.             RENTAL.


 


3.1           Rent. Beginning with the Effective Date of this Lease and
throughout the Term and any Renewal Term, LESSEE shall pay to LESSOR, without
deduction, set off, prior notice, or demand, at such place or places as LESSOR
may designate in writing from time to time, an annual rental of Two Thousand
and No/100 ($2,000.00) DOLLARS per acre of Leased Premises, subject to
adjustment provided in Section 3.2 hereof, (“Rent”) payable in advance no later
than January 1 of each year during the existence of this Lease with the first
annual payment payable on the Effective Date prorated as of the Effective Date.


 


3.2           Rent Adjustment. Commencing January 1, 2009 and annually
thereafter throughout the Term and any Renewal Term, Rent shall be adjusted
annually and is to be effective January 1 of each calendar year (the


 


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***
Confidential material redacted and filed separately with the Commission.


 


“Adjustment
Date”). The Rent shall be adjusted pursuant to the “Adjustment Factor” which
shall be defined as the percentage increase, or decrease if any, in the
Consumer Price Index, CPI-U, U.S. City Average, all items published by the
Bureau of Labor Statistics of the United States Department of Labor for the
month of November, or any successor Index (herein “CPI”) between the
commencement and end of the immediately preceding calendar year provided,
however, the Rent shall not be adjusted to an amount less than the amount of
Rent at the commencement of this Lease. The Adjustment Factor shall be applied
retroactively to the Adjustment Date in the event the CPI is not available on
the Adjustment Date. On the Adjustment Date, the adjusted rent shall be the
then current Rent multiplied by one (1) plus the Adjustment Factor.


 


3.3           Additional Rent.


 


3.3.1        In
addition to Rent, commencing eighteen (18) months after the Effective Date, or,
upon commencement of Commercial Operations (as defined in Section 4.2
hereafter) whichever occurs earliest, LESSEE shall pay to LESSOR, throughout
the remaining Term of this Lease and any Renewal Term as additional rent,
either, an amount equal to $*** per gallon on all biofuels or other commercial
bulk liquid products except for glycerin (which is addressed in Section 3.3.6
hereafter) (“Products”) produced by LESSEE within the Leased Premises in
quantities up to 60 million gallons per year and $*** per gallon on all
Products in quantities in excess of 60 million gallons per year (“Additional
Rent”), or, the amount of $*** per quarter regardless of any production of Products
(“Minimum Additional Rent’), whichever amount is greater.


 


3.3.2        The
Additional Rent or Minimum Additional Rent due by LESSEE to LESSOR shall be
calculated and paid on a quarterly basis. At the end of each quarter, LESSEE
shall within ten (10) days calculate the amount of Additional Rent or Minimum
Additional Rent due to LESSOR and remit payment thereof to LESSOR. Additional
Rent,


 


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***
Confidential material redacted and filed separately with the Commission.


 


Minimum
Additional Rent and rent for glycerin under Section 3.3.6 shall be subject to
the Rent Adjustment provisions of Section 3.2; provided, however, the Minimum
Additional Rent shall not  be adjusted to
an amount less than $*** per quarter.


 


3.3.3        With
reasonable notice, the LESSOR shall have the right to inspect during normal
working hours and audit the books of LESSEE to verify the data utilized in
calculating the Additional Rent or Minimum Additional Rent or any other rent
payable in connection with bulk solids or glycerin as provided in Sections
3.3.4, 3.3.5 or 3.3.6 herein below.


 


3.3.4        LESSEE
may or may not produce commercially saleable bulk solids from its refining
processes. However, should LESSEE produce any commercially saleable non-by-product
and/or non-waste product bulk solids on the Leased Premises then there shall be
additional rent applicable thereto. In such case, LESSOR and LESSEE shall
negotiate in good faith to mutually agree upon an acceptable additional rent
that will be applicable to all such bulk solids and this Lease shall be amended
to include such additional rent. In the event LESSOR and LESSEE cannot reach
agreement on an acceptable additional rent, then LESSEE shall not be permitted
to manufacture and/or produce such bulk solid(s) on the Leased Premises.


 


3.3.5        Additional
commodities other than bulk liquids and bulk solids, such as steam and power,
may be generated and/or produced by LESSEE on the Leased Premises. To the
extent such commodities are produced for commercial sale and/or distribution,
then there shall be additional rent applicable thereto. In such case, LESSOR
and LESSEE shall negotiate in good faith to mutually agree upon an acceptable
additional rent fee that will be applicable to all such additional commodities,
and this Lease shall be amended to include such additional rent.


 


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***
Confidential material redacted and filed separately with the Commission.


 


3.3.6        LESSEE
shall pay to LESSOR additional rent on all commercially saleable glycerin
produced by the Facility equal to that amount per gallon determined by
multiplying $*** times a fraction, the numerator of which shall be the then
current market price per pound of glycerin and the denominator of which shall
be the then current market price per pound of biodiesel.


 


3.4           Other Charges. LESSEE shall pay and discharge, all charges
or amounts other than Rent, Additional Rent or Minimum Additional Rent that
shall become due and payable hereunder, including, without limitation, the
reasonable expenses incurred by LESSOR in the enforcement of any of LESSEE’S
agreements, covenants, and obligations under this Lease and reasonable legal
fees and/or post-judgment collection fees that may accrue in connection
therewith, all of which shall be payable as hereinafter provided. Upon
termination, the provisions of Section 17.2 of this Lease shall be applicable.


 


3.5           Net Lease. This Lease shall be deemed and construed to be a
net lease such that all utilities, maintenance, (including maintenance of the
Infrastructure Assets as hereinafter defined in Section 4.4) insurance and
other costs, Taxes (as hereinafter defined in Section 13), expenses,
obligations and impositions of every kind and nature whatsoever related to the
Leased Premises or the Facility which may arise or become due during or out of
the Term or any Renewal Term of this Lease shall be paid by LESSEE, except as
herein expressly provided to the contrary.


 


4.             PURPOSE & USE.


 


4.1           The
Leased Premises shall be used and occupied by LESSEE solely for the purpose of
developing, constructing and operating a biofuels production facility with
supporting infrastructure, including power and steam plants, cooling towers,
pipelines, research laboratories, water and waste water treatment facilities,
and other activities normally associated with a biofuels production facility,
except grain handling or crushing


 


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facilities
(the “Facility”). Notwithstanding anything herein to the contrary, LESSEE shall
be prohibited from constructing on or within the Leased Premises bulk liquid
storage tanks except for certain storage tanks limited in capacity, the
specifications of which tanks are more fully set forth in Schedule 4.1 hereto.


 


4.2           Facility Construction / Operation. Upon the Effective Date,
LESSEE shall proceed to permit, design and construct the Facility with due
diligence. For the purposes of this Lease, Commercial Operations shall mean the
first day that commercially saleable biodiesel is transferred to LESSOR’s tanks
(“Commercial Operations”). Commercial Operations of the Facility shall commence
within eighteen (18) months of the Effective Date, provided, however, if the Infrastructure
Improvements to be constructed by LESSOR under section 4.4 are not completed
within 18 months of the Effective Date then the date when Commercial Operations
must commence under this Section 4.2 shall be postponed by the same amount of
time by which the time of completion of the infrastructure improvements exceeds
18 months and such postponement shall be LESSEE’S sole remedy.


 


4.3           Terminal
Services Agreement. Concurrent
with the Effective Date, LESSOR and LESSEE shall enter into the Terminal
Services Agreement, a copy of which is attached hereto in Schedule 4.3, wherein
LESSOR will provide certain terminalling services to LESSEE.


 


4.4           Infrastructure
Improvements. LESSEE
acknowledges that it will be necessary to modify, construct and install certain
exclusive and non-exclusive improvements and fixtures within LESSOR’S bulk
liquid storage facility adjacent to the Leased Premises to enable LESSOR to
perform its obligations in the Terminal Services Agreement. Schedule 4.4
attached hereto contains a description of anticipated modifications to existing
LESSOR assets, construction of improvements and installation of


 


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*** Confidential
material redacted and filed separately with the Commission.


 


equipment
(herein defined collectively as the “Infrastructure Improvements”). LESSEE
shall bear the cost of Infrastructure Improvements up to and including the sum of  *** ($***) Dollars and
LESSOR shall bear the cost in excess of that amount. Infrastructure
Improvements consisting of new construction  and new equipment shall be owned by LESSEE for
the duration of this Lease. Only those improvements and equipment identified in
Schedule 4.4 as exclusive to LESSEE shall be dedicated to LESEE’S sole use, all
other such improvements and equipment shall be non-exclusive and available to
LESSOR for use in LESSOR’S bulk liquid storage operations. LESSOR shall
maintain the Infrastructure Improvements. LESSEE shall be responsible to
reimburse LESSOR for all expenses incurred by LESSOR in maintaining those improvements
and equipment exclusively for the use of LESSEE. LESSOR shall have no
obligation to construct or otherwise provide infrastructure or other services
to the Leased Premises or the Facility except as expressly provided in Schedule
4.4 or the Terminal Services Agreement. At termination of this Lease, any
Infrastructure Improvements owned by LESSEE shall become the property of LESSOR.


 


4.5           Construction
of Infrastructure Improvements. LESSOR shall, as of the Effective Date, design, construct and fit out
the Infrastructure Improvements in compliance with applicable codes and reflecting
good industrial standards. LESSOR estimates it will complete such construction
within 12 months of the Effective Date, and all charges for the cost thereof
submitted to LESSEE shall be at LESSOR’s cost (without markup or surcharge). In
connection therewith, LESSOR will provide to LESSEE the following:


 


4.5.1        A schedule showing the work to be performed and an estimated completion
timeline.


 


4.5.2        A payment schedule showing estimated payments for work performed by
LESSOR.


 


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4.5.3        Copies of agreements with third party contractors for the design,
construction and installation of the Infrastructure Improvements, including any
payment schedules and invoices.


 


4.5.4        Copies of purchase orders and/or invoices for equipment and materials.


 


4.6           Payment
of Infrastructure Improvements. LESSEE shall pay to LESSOR, the costs associated with the
Infrastructure Improvements up to the amount set forth in Section 4.4 hereof as
follows:


 


4.6.1        LESSOR shall, prior to a scheduled payment date pursuant to a third
party agreement, or upon receipt of an invoice or other payment request, notify
LESSEE of such payment date or furnish LESSEE with a copy of any invoice or
payment request, by facsimile or electronic mail, to LESSEE’S designated
representative. Within five (5) days from the date of LESSOR’S facsimile or
electronic transmission, LESSEE shall pay to LESSOR, in accordance with payment
instructions furnished to LESSEE by LESSOR, the full amount due under the
payment schedule, invoice or payment request.


 


4.6.2        LESSOR, in its sole discretion, shall review, approve and make all
payments to third parties. In the event LESSEE objects to any payment due under
any payment schedule, invoice or payment request, LESSEE shall make full
payment to LESSOR as provided in Section 4.6.1 above and shall provide LESSOR
with written objections at the time such payment is made to LESSOR. LESSOR
shall review LESSEE’S objections, but shall have complete discretion and full
authority to resolve such dispute as LESSOR deems appropriate, including full
payment to any third party.


 


4.6.3        LESSOR shall invoice LESSEE for certain services performed by LESSOR in
connection with the Infrastructure Improvements,


 


10

















 


including
engineering, project supervision and similar services on a monthly basis.


 


4.6.4        In the event LESSEE fails to make a payment to LESSOR as required in
this Section 4.6, then LESSOR, in its discretion, may stop all work in
connection with the Infrastructure Improvements and in LESSOR’S discretion,
place LESSEE in default of this Lease and the provisions of Section 17 herein
shall apply.


 


5.             PERMITS. LESSEE
shall secure in connection with the Facility any and all licenses, permits and
other authorizations necessary for the use and operation of the Leased Premises
for the purposes of this Lease (“Permits”). All Permits secured by LESSEE shall
be maintained by LESSEE.


 


5.1.1


 


6.             COMPLIANCE WITH LAWS
AND REGULATIONS.


 


6.1           LESSEE
shall, at its cost, comply, in all material respects, with all Laws applicable
to LESSEE, the Leased Premises, the Facility and LESSEE’s use and occupancy and
operation of the Leased Premises and the Facility, including without
limitation, zoning, building and land use Laws and the Americans with
Disabilities Act.


 


6.2           LESSEE, its agents, representatives,
employees, subcontractors, invitees, licensees, permitees or Affiliates shall,
at all times, while on the Leased Premises and on any rights of way and on
LESSOR’s other land, comply with LESSOR’s written facility access and security guidelines
applicable to LESSOR’s adjacent bulk liquid storage terminal as may be
reasonably amended from time to time (“Facility Access and Security Guidelines”)  The current Facility Access and Security
Guidelines are attached hereto on Schedule 6.2.


 


6.3           LESSOR
shall comply, in all material respects, with all Laws applicable to LESSOR’s
adjacent land and facilities (the “LESSOR Premises”), the


 


11

















 


violation of
which would have a material adverse effect on the accessibility or operation of
the Facility.


 


7.             ACCEPTANCE OF PREMISES CONDITION
& SUITABILITY. LESSEE
HAS INSPECTED THE LEASED PREMISES AND, SUBJECT TO THE PERFORMANCE OF LESSOR’S
COVENANTS AND OBLIGATIONS UNDER THIS LEASE, ACCEPTS THE LEASED PREMISES IN ITS
“AS-IS, WHERE-IS,” CONDITION WITH ALL FAULTS, AS EXISITING AT THE BEGINNING OF
THE TERM OF THIS LEASE, ACKNOWLEDGES THAT THE LEASED PREMISES ARE IN A GOOD AND
SATISFACTORY CONDITION, AND HEREBY EXPRESSLY WAIVES ALL REPRESENTATIONS AND
WARRANTIES (EXCEPT AS OTHERWISE PROVIDED IN ARTICLES 14 AND 18 INSOFAR AS THE
SAME ARE NOT INCONSISTENT WITH THIS PROVISION) ON THE PART OF LESSOR, WHETHER EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES THAT THE LEASED
PREMISES ARE FREE FROM DEFECTS OR DEFICIENCIES, WHETHER HIDDEN OR APPARENT, AND
ALL WARRANTIES UNDER LA. CIV. CODE ARTS. 2696 AND 2697 OR ANY OTHER PROVISION
OF LOUISIANA LAW. LESSOR WILL HAVE NO OBLIGATION TO MAKE ANY REPAIRS,
ALTERATIONS, IMPROVEMENTS OR CHANGES TO THE LEASED PREMISES EXCEPT AS EXPRESSLY
SET FORTH IN THIS LEASE. WITHOUT LIMITATION OF THE FOREGOING, IN ACCORDANCE
WITH LA. R.S. 9:3221, LESSEE HEREBY ASSUMES RESPONSIBILITY FOR THE CONDITION OF
THE LEASED PREMISES AND AGREES THAT LESSOR SHALL NOT BE LIABLE FOR INJURY
CAUSED BY ANY DEFECT THEREIN TO THE LESSEE OR ANYONE ON THE LEASED PREMISES WHO
DERIVES HIS RIGHT TO BE THEREON FROM THE LESSEE UNLESS THE REPAIR OF THE DEFECT
WAS LESSOR’S RESPONSIBILITY UNDER THE TERMS OF THIS LEASE AND LESSOR KNEW OR
SHOULD HAVE KNOWN OF THE DEFECT OR HAD RECEIVED


 


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NOTICE THEREOF AND FAILED TO REMEDY IT WITHIN A REASONABLE TIME.


 


8.             UTILITIES AND
SERVICES.


 


8.1           Utilities. Except as otherwise expressly provided in this
Lease to the contrary, all utility charges on the Leased Premises shall be
procured and paid by LESSEE including cost of electricity, water, gas,
nitrogen, steam, etc., as well as any deposits in connection therewith.


 


8.2           No Services. Except for certain access to LESSOR’S firewater
system and wastewater discharge line which are covered under separate
agreements containing separate terms and conditions, LESSEE assumes the sole
responsibility for the condition, operation, maintenance, repair, replacement
and management of the Leased Premises and all improvements, facilities or
appurtenances now or hereafter erected, installed or constructed in, on, or
under the Leased Premises and except as may be set forth in this Lease or the
Terminal Services Agreement LESSOR shall not be required to furnish any
facilities or services, or make any repairs, replacements or alterations, of
any kind or character, whatsoever.


 


9.             IMPROVEMENTS,
MAINTENANCE AND REPAIR.


 


9.1           LESSEE’S Facility.  In accordance with the purpose set forth in Section
4 hereto, the improvements constructed by LESSEE on and within the Leased
Premises shall consist of the Facility. Construction of the Facility shall be
done at LESSEE’s sole expense. LESSEE undertakes that no lien, privilege, or
claim of any kind shall rest against the Leased Premises, to the extent that
such would have an adverse impact on LESSOR. LESSEE
shall, at all times during the Term of this Lease, keep and maintain, or cause
to be kept and maintained, the Facility, and all other betterments made by
LESSEE, including any required structural repairs or replacements, in a
condition consistent with prudent industry practices.


 


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LESSEE shall
use all reasonable precautions to prevent waste, damage or injury to the Leased
Premises, including the Facility.


 


9.2           Title.  Title to LESSEE’s improvements consisting
of the Facility and any alterations, changes, or additions thereto, shall
remain solely the property of LESSEE during the term of the Lease. Both parties
agree to execute and record a “Declaration of Separate Ownership” to preserve
LESSEE’s separate ownership.


 


9.3           Condition.  LESSEE assumes full responsibility for the
condition of the Leased Premises and shall at all times keep and maintain the
Leased Premises, including, without limitation, the Facility, all equipment,
fixtures, facilities and systems appurtenant thereto, in good operating
condition and repair.


 


9.4           Liens.  LESSEE shall pay when due all lawful claims
for labor or materials furnished to or for LESSEE at or for use on the Leased Premises,
including the Facility. If, because of any act or omission of LESSEE, any
mechanic’s lien or other lien for the payment of money shall be filed against
LESSOR or LESSOR’S ownership in the Leased Premises, LESSEE shall, at its own
cost and expense, cause the same to be discharged of record or bonded (in
accordance with any Applicable Laws) within thirty (30) days after LESSOR shall
have given LESSEE notice of the filing thereof, or if LESSEE shall fail to do
so within such time, LESSOR may do so at LESSEE’ cost and expense. To the
extent permitted by law, LESSEE shall defend, indemnify and save harmless LESSOR
from and against all costs, liabilities, suits, penalties, claims and demands,
including reasonable attorneys’ fees, resulting therefrom.


 


10.          INDEMNITY.


 


10.1         To
the fullest extent permitted by Law and except as specified elsewhere in this
Lease:


 


10.1.1      Except
with respect to claims for the negligence or willful misconduct of LESSOR or of
LESSOR’s agents, representatives or


 


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employees,
LESSEE shall, and it does hereby agree to be responsible for, and LESSEE shall
at its sole cost and expense, release, indemnify, defend and hold harmless
LESSOR, LESSOR’S past, present and future officers, directors, shareholders,
principals, parents, subsidiaries, Affiliates (their respective officers,
directors, shareholders, partners, members, principals, parents, and
subsidiaries), representatives, predecessors, successors, employees, agents,
attorneys or assigns, and any and all persons acting under LESSOR’S direction
or control or on its behalf (collectively all of the foregoing shall be LESSOR’S
Indemnified Parties), from and against any and all loss, damage, exemplary
damage, penalty, claim, suit, liability, judgment, cost, expense (including
court fees, attorney’s fees and other professional fees), administrative
proceedings or orders, of any nature whatsoever arising from (i) any use,
occupancy, construction, repairs or other work or activity done in, on, under
or about the Leased Premises during the Term or any Renewal Term by LESSEE, its
employees, invitees or any person within the Leased Premises by virtue of
LESSEE’S use or occupancy of the Leased Premises; (ii) any condition of the
Leased Premises (except any condition existing prior to the Effective Date), or
anything thereon or therein during the Term, or any Renewal Term or from any
occurrence whatever in, on or about the Leased Premises during the Term or any
Renewal Term caused by LESSEE, its employees, invitees or any person within the
Leased Premises by virtue of LESSEE’S use or occupancy of the Leased Premises; (iii)
breach of any provision of this Lease by LESSEE; (iv) any act, omission,
carelessness, negligence or misconduct of LESSEE or any Person within LESSEE’s
control; such indemnity to include all of LESSOR’S (and other LESSOR’s
Indemnified Parties’) reasonable costs, expenses and counsel fees and
disbursements


 


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in connection
with any such claim. The provisions of this Section 10.1.1 shall survive the
expiration or earlier termination of this Lease. This Section 10.1.1 shall not
apply to actions, claims or damages (i) directly arising from or related to
Hazardous Substances which shall be exclusively addressed within Article 18.


 


10.1.2      Subject
to the limitations of LESSOR’s liability set forth in Section 10.1.1, LESSOR
shall, and does hereby agree to be responsible for, and LESSOR shall at its
sole cost and expense, release, indemnify, defend and hold harmless LESSEE,
LESSEE’S past, present and future officers, directors, shareholders, principals,
parents, subsidiaries, Affiliates (their respective officers, directors,
shareholders, partners, members, principals, parents, and subsidiaries),
representatives, predecessors, successors, employees, agents, attorneys or
assigns, and any and all persons acting under LESSEE’S direction or control or
on its behalf (collectively, all of the foregoing shall be LESSEE’S Indemnified
Parties), from and against any and all loss, damage, exemplary damage, penalty,
claim, suit, liability, judgment, and expense (including court costs, attorney’s
fees and other professional fees), administrative orders or proceeding arising
out of, relating to or resulting from (i) LESSOR’s use, occupancy,
construction, repairs or other work or activity done in, on, under or about the
LESSOR Premises; (ii) a breach of any provisions of this Lease by LESSOR, and (ii)
the negligence or willful misconduct of LESSOR or any person within LESSOR’s
control. The provisions of this Section 10.1.2 shall survive the expiration or
earlier termination of this Lease. LESSOR’S liability to LESSEE under this
Section 10.1.2 shall not exceed the sum of $500,000.00. This Section 10.1.2
shall not apply to actions, claims or damages (i) directly arising from or
related to Hazardous Substances which shall be exclusively addressed within
Article 18.


 


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10.2         Promptly
after receipt by any Person entitled to indemnification under this Section 10  of notice of the commencement or threatened commencement of
any civil, criminal, administrative, or investigative action or proceeding
involving a claim in respect of which the indemnitee will seek indemnification
pursuant to any such Section, the indemnitee shall notify the indemnitor of
such claim in writing. No failure to so notify an indemnitor shall relieve the
indemnitor of its obligations under this Lease except to the extent that it can
demonstrate damages attributable to such failure. Within fifteen (15) days
following receipt of notice from the indemnitee relating to any claim, but no
later than ten (10) days before the date on which any response to a complaint
or summons is due, the indemnitor shall notify the indemnitee in writing if the
indemnitor elects to assume control of the defense and settlement of that claim
(a “Notice of Election”).


 


10.3         If
the indemnitor delivers a Notice of Election relating to any claim within the
required notice period, the indemnitor shall be entitled to have sole control
over the defense and settlement of such claim; provided, that: (a) the
indemnitee shall be entitled to participate in the defense of such claim and to
employ counsel at its own expense to assist in the handling of such claim; and
(b) the indemnitor shall obtain the prior approval of the indemnitee before
entering into any settlement of such claim or ceasing to defend against such
claim to the extent such settlement could reasonably be expected to have an
adverse impact on the indemnitee.


 


10.4         Limitation of Liability. IN NO EVENT WHETHER IN CONTRACT OR
IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN
TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, LOST REVENUES, OR
LOST OPPORTUNITY COSTS EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF
SUCH DAMAGES IN ADVANCE.


 


17

















 


11.          FORCE MAJEURE.


 


11.1         If
the performance of this Lease, or any obligation under this Lease,  is prevented, restricted or interfered with by
a Force Majeure Event, the Party so affected, upon notice to the other Party,
shall be excused from such performance to the extent and for the period of such
prevention, restriction or interference. The Party so affected shall use
commercially reasonable efforts to remove such causes of nonperformance. Notwithstanding
the foregoing, nothing in this Section 11.1 shall excuse, interrupt or delay
the obligation of LESSEE to pay Rent, or Minimum Additional Rent to LESSOR,
except, in the event a Force Majeure event renders LESSOR unable to perform its
obligations under the Lease or Terminal Services Agreement (as force majeure is
defined in the Terminal Services Agreement) and the inability of LESSOR to
perform, causes a material adverse effect upon the accessibility or operation
of the Facility, LESSEE may suspend the payment of Rent and Minimum Additional
Rent until LESSEE is able to restore performance under the Terminal Services
Agreement.


 


11.2         Force
Majeure means any event beyond the control and without fault or negligence of
the party claiming inability to perform its obligations and which party is
unable to prevent or provide against by the exercise of reasonable diligence,
including but not limited to:  acts of
God or public enemy; expropriation or condemnation of facilities; changes in
applicable Law; war, civil disturbance, floods, unusually severe weather that
could not reasonably have been anticipated; fires, explosions or other
catastrophes; terrorist attacks, and strikes.


 


12.          INSURANCE. During
the Term of this Lease, LESSEE shall insure the Leased Premises and the
Facility and LESSOR shall insure its adjacent bulk liquid storage operations
and LESSEE and LESSOR shall comply with the following insurance requirements:


 


12.1         LESSEE
shall be responsible for taking out adequate insurance in


 


18

















 


connection
with the design, construction, fitting-out and commissioning, construction,
management and operation of the Facility for the duration of this Lease and/or
any equipment located on the Leased Premises to cover all usual risks in
accordance with good management practices, including third party liability,
workers compensation and employers liability, loss, theft, fire, arson, flood,
accident and damage and environmental liability insurance.


 


12.2         LESSOR
shall be responsible for taking out adequate insurance in connection with the
management and operation of its business and/or any equipment located on the
LESSOR Premises to cover all usual risks in accordance with good management
practices, including third party liability, workers compensation and employers
liability, loss, theft, fire, arson, flood, accident and damage and
environmental liability insurance.


 


12.3         LESSEE
and LESSOR shall have in full force and effect and maintain at their own
respective cost and expense the following insurance coverages during the Term
and any Renewal Term:


 


12.3.1      Where
applicable, Statutory Worker’s Compensation Insurance and Longshore and
Harborworker’s Compensation Insurance, including occupational illness or
disease coverage, or other similar social insurance in accordance with the laws
of the country, state, or territory exercising jurisdiction over the employee,
and Employer’s Liability Insurance with a minimum limit of not less than One
Million Dollars ($1,000,000) per occurrence (or the policy limit required by
applicable law, if such required limit is above One Million Dollars
($1,000,000));


 


12.3.2      Commercial
General Liability Insurance provided on ISO occurrence form CG 00 01 10 01 (or
a substitute form providing equivalent coverage) and shall cover liability
arising from premises, operations, independent contractors, products-completed
operations, and personal injury and advertising injury. Such coverage shall
provide limits of liability of at least $5,000,000 each


 


19

















 


occurrence and
$5,000,000 aggregate;


 


12.3.3      Environmental
liability insurance (including clean-up costs and underground property damage
hazards) for pollution events with limits of liability of at least $1,000,000
per occurrence;


 


12.3.4      Commercial
Business Automotive Liability Insurance covering use of all owned, non-owned,
leased and hired automobiles with a minimum combined single limit of not less
than Five Million Dollars ($5,000,000) per occurrence for bodily injury and
property damage liability (or, if higher, the policy limit required by law). Such
coverage shall include an “MCS-90” endorsement; and


 


12.4         LESSEE
shall have in full force and effect and maintain at its own cost and expense
all-risk property insurance covering loss or damage to the Facility, other
assets on the Leased Premises for the duration of this Lease, in an amount not
less than the full replacement cost of assets on the Leased Premises.


 


12.5         LESSEE
will provide to LESSOR a copy of each certificate of insurance evidencing each
of its insurance coverages required under this Section 12. Upon the request of
LESSEE, LESSOR will provide to LESSEE a copy of each certificate of insurance evidencing
each of its insurance coverages required under this Section 12.


 


13.          TAXES.
LESSEE shall bear and pay all taxes based upon or measured by its net
income and all franchise taxes based upon its corporate existence or its
corporate right to transact business. If any other taxes, charges, impositions
or fees, howsoever denominated and howsoever measured, presently in existence
or imposed at any time during the Term (including, but not limited to, any
property, sales/use tax, ad valorem tax, value added tax, federal excise tax,
pollutants tax, business tax, and/or license tax) are imposed on the Leased
Premises and any improvements, equipment or structures on the Leased Premises,
including the Facility, said taxes, charges, impositions and/or fees shall be
paid directly by LESSEE (herein “Taxes”). If it is not


 


20

















 


possible to separately break out the property and other Taxes assessed
against the Leased Premises, LESSOR shall pay them, as due, and LESSEE shall
pay to LESSOR its allocable share of all such Taxes within twenty (20) days
after notice from LESSOR of the amount due to LESSOR accompanied by a copy of
the tax bill as well as an explanation of how LESSOR calculated LESSEE’s
allocable share.


 


14.          COVENANTS AND WARRANTIES.


 


A.            BY LESSOR:


 


14.1         So
long as LESSEE shall perform all of its obligations under this Lease, LESSOR
covenants that LESSEE shall enjoy peaceful and quiet possession of the Leased
Premises during the Term against any party claiming through LESSOR other than
the State of Louisiana. LESSOR warrants that it has no actual knowledge of any
pending or threatened expropriation proceedings.


 


14.2         LESSOR
warrants that it has the full right to make this Lease and that it is the sole owner of the Leased Premises.


 


14.3         LESSOR
covenants that in case it shall at any time hereafter alienate or encumber the
Leased Premises or any part or portion thereof, such sale or encumbrance shall
be made expressly subject and subordinate to the provisions of this Lease and
to the rights of LESSEE hereunder, and in case of a transfer, the transferee
shall take subject to and shall be bound by the obligations of LESSOR hereunder.


 


14.4         LESSOR
covenants that utility corridors will at all times be available to LESSEE subject
to the provisions of this Lease.


 


14.5         LESSOR
covenants that the access road provided under this Lease will at all times be
available to LESSEE subject to the provisions of this Lease.


 


14.6         LESSOR
covenants that it will not take any action or fail to take any action which
would impede or restrict the drainage of surface water from the Leased Premises
into and through the drainage ditch that adjoins the east side of the Leased
Premises.


 


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14.7         LESSOR
covenants that it shall comply with the provisions of this Lease and the
Terminal Services Agreement.


 


B.            BY LESSEE:


 


14.8         LESSEE
agrees to keep the Premises and the Facility in good condition and repair and
shall clean and shall dispose of all waste material which may be generated by
the Facility or otherwise accumulated.


 


14.9         LESSEE
shall at its own cost and expense provide water, gas, electricity, wastewater
treatment and telephone services and all other utilities to the Leased Premises
and the Facility and shall pay the respective utility companies directly for
the use thereof.


 


14.10       The
Premises will not, as the result of any acts or omissions of LESSEE, be in
violation of any Laws or of any Permits that would adversely impact the use and
operation of LESSOR’s adjacent bulk liquid storage facility or the adjacent
refinery and related facilities currently operated by Shell Chemical Company.


 


14.11       LESSEE
covenants that it shall comply with the provisions of this Lease and the
Terminal Services Agreement.


 


15.          GOVERNMENTAL TAKING.


 


15.1         The
term “Governmental Taking” as used in this Article or elsewhere in this Lease
shall mean the exercise of the powers of eminent domain, expropriation, or
appropriation, expressed in writing, as well as the filing of any action or
proceeding for such purposes, by any person, entity, body, agency or authority
having jurisdiction over the Leased Premises, and the Governmental Taking shall
be deemed to occur in point of time upon the actual physical taking of
possession by such person, entity, body, agency or authority.


 


22

















 


15.2         In the event the entirety of the Leased Premises is taken by a
Governmental Taking as aforesaid, this Lease shall terminate and LESSEE shall
be entitled to that portion of the takings proceeds attributable to the
Facility and its leasehold interest.


 


15.3         In the event the Governmental Taking results in the reduction of the
area of the Leased Premises, LESSEE, at its election, shall (i) terminate this
Lease or (ii) shall elect to continue the Lease in force and effect as to the
portion of the Leased Premises not so taken with the Rent, Additional Rent or
Minimum Additional Rent to be equitably abated.


 


16.          ASSIGNMENT /
SUBLEASE.


 


16.1         LESSEE shall not assign or sub-lease all or any of its rights under
this Lease, by operation of law or otherwise (“Assignment”), without the prior
written consent of LESSOR which such consent shall not be unreasonably withheld.
Nothing in this Section 16.1 shall be construed to prohibit LESSEE from (i) placing
a mortgage or other encumbrance upon LESSEE’S leasehold rights under this Lease
in favor of any lender in order to secure project financing in connection with
the construction and operation of the Facility or assigning this Lease or
subletting part or all of the Leased Premises to another wholly-owned
subsidiary of Renewable Energy Group, Inc., provided that LESSEE shall remain
liable for the obligations of LESSEE under this Lease.


 


16.1.1      As to any
Assignment requiring LESSOR’s consent it shall be reasonable for LESSOR to
withhold its consent to a proposed assignment by LESSEE if LESSEE is unable to
establish to LESSOR’S reasonable satisfaction that:  (i) the entity assuming this Lease would be
able to fulfill LESSEE’S obligations under this Lease without degradation; and
(ii) such entity has the financial resources and capitalization and is
reasonable likely to have the financial resources and capitalization required
to satisfy LESSEE’S


 


23

















 


financial, legal and operational obligations under
this Lease throughout the Term or any Renewal Term.


 


16.2         LESSEE shall not undergo a change of “Control”, as hereinbelow defined,
during the Term or Renewal Term of this Lease, without the prior written
consent of LESSOR, which consent shall not be withheld provided that the
financial condition of the entity or entities assuming Control of LESSEE is, to
the reasonable satisfaction of LESSOR, equal to or better than the financial
condition of the entity or entities then in Control of LESSEE. For purposes of
this Section 16.2 “Control” shall mean the direct beneficial ownership of a
voting interest of at least fifty percent (50%) or the right or power, directly
or indirectly, to elect a majority of the board of directors, or the right or
power to control  management.


 


17.          DEFAULTS AND
REMEDIES.


 


17.1         Default by LESSEE. If
any one or more of the following LESSEE events of default occurs, LESSOR may
give written notice to LESSEE of the occurrence of such event of default and,
in any case, after receipt of such notice, LESSEE shall cure the following defaults
within the time periods set forth hereinbelow:


 


17.1.1      thirty
(30) days to cure any failure to pay Rent, Additional Rent or Minimum Additional
Rent when due;


 


17.1.2      thirty
(30) days to cure any failure to pay other charges and expenses as provided in this
Lease, including utilities, taxes and premiums;


 


17.1.3      thirty
(30) days to cure any monetary default by LESSEE under the Terminal Services
Agreement or any other agreements in place between LESSOR and LESSEE in
connection with LESSEE’S ownership and operation of the Facility;


 


17.1.4      sixty
(60) days to cure any non-monetary default by LESSEE under this Lease or the
Terminal Services Agreement or any other


 


24

















 


agreements in place between LESSOR and LESSEE in
connection with LESSEE’S ownership and operation of the Facility;


 


17.1.5      sixty
(60) days to cure the insolvency or dissolution of LESSEE or the placing of
LESSEE in voluntary bankruptcy or the institution of such involuntary
proceedings against it, which are not or can no longer be timely contested;


 


17.1.6      sixty
(60) days to cure a general assignment for the benefit of creditors by LESSEE;
or


 


17.1.7      sixty
(60) days to cure any order being made for the winding up of LESSEE or LESSEE
taking any steps or proceedings to dissolve or liquidate its assets;


 


17.1.8      sixty
(60) days to cure the failure to maintain insurance required herein;


 


17.1.9      sixty
(60) days to cure the failure to maintain the Leased Premises in accordance
with Article 9 hereof; or


 


17.1.10    sixty (60)
days to cure LESSEE’S failure to perform any other obligation under this Lease.


 


17.1.11    LESSOR’S
right to terminate this lease and demand payment of the Infrastructure Improvements
pursuant to Section 4.6 hereof shall not be subject to any cure period.


 


17.2         LESSOR’s Remedies, Termination. Upon the failure of LESSEE to cure any
default as provided in Section 17.1 above and in addition to any other remedies
available to LESSOR under law, LESSOR may seek a judicial termination of this
Lease. Upon termination of this Lease, the Infrastructure Improvements,
as defined in Section 4.4 hereof, shall become the property of LESSOR without further
consideration or payment by LESSOR. At LESSOR’s option, upon termination of
this Lease the Facility and any other of LESSEE’S improvements in connection
with this Lease located on the Leased Premises shall:  (1) become the property of LESSOR upon payment
by LESSOR to LESSEE of an agreed upon sum for the assets comprising the
Facility, or (2) be dismantled and removed


 


25

















 


by LESSEE at LESSEE’s cost,
including all personal property and fixtures within 180 days following
termination of this Lease. LESSEE shall be obligated to pay Rent, Additional
Rent and/or Minimum Additional Rent following the termination of this Lease until
such Facility, including all personal property of LESSEE, has been dismantled
and removed and the Leased Premises shall have been restored to its condition
prior to this Lease. Upon such termination, LESSOR may enter the Lease Premises and the
Facility and remove all persons, personal property, fixtures and chattels therefrom
and LESSOR shall not be liable for any damages thereon. At LESSOR’s election,
LESSOR may sue one or more times for unpaid past due Rent, Additional Rent or
Minimum Additional Rent.


 


17.3         LESSEE’S Remedies. LESSEE
shall be entitled to suspend the payment of Rent and Minimum Additional Rent
due under this Lease in the event of LESSOR’S breach of LESSOR’S covenants and
warranties set forth in Section 14(A) herein but only in the event LESSOR’S
breach has a material adverse effect on the accessibility or operation of the
Facility. LESSEE may suspend the payment of Rent and Minimum Additional Rent
until LESSOR has cured such breach or otherwise remedied such material adverse
effect. In the event such breach cannot be cured or otherwise remedied after
the period of 180 days have elapsed, LESSEE may terminate this Lease. Damages
recoverable by LESSEE against LESSOR under any remedies of law available to
LESSEE shall be limited to the amount of $500,000.00. LESSEE’S remedies in this
Section 17.3 shall be LESSEE’S sole remedies in the event of a breach or
default of this Lease by LESSOR.


 


18.          ENVIRONMENTAL
MATTERS.


 


18.1         LESSOR
and LESSEE intend that this paragraph 18 and its subparts shall allocate
certain environmental liabilities between and among themselves arising out of the
Leased Premises. Except where expressly provided to the contrary herein, the
respective obligations of the Parties under this


 


26

















 


paragraph 18
shall survive the Effective Date and the expiration or any termination of this
Lease (whether by operation of law or otherwise) for all matters described in
this paragraph 18.


 


(a)           For purposes of this paragraph 18 only, the
following specially defined terms shall have the following meanings:


 


1.             “Environmental Claim” means any claim,
action, cause of action, investigation, demand, consent order or agreement,
order, directive or written notice by or on behalf of any governmental
authority or person, alleging liability or potential liability for fines or
penalties, damages, expenses, losses, costs, investigatory costs, cleanup
costs, abatement costs, remediation costs, removal costs, monitoring costs,
response costs, and any related costs and expenses, reasonably incurred,
natural resource damages, property damage, personal injury (including death)
and/or seeking to compel any assessment, investigation, response, clean up,
abatement, remediation, removal (as part of a remediation or abatement action),
or monitoring, (whether any claims or causes of action relating thereto be
asserted in common law, civil law or under statute and regardless of form
including strict liability and negligence) arising out of, based on or
resulting from: (i) the Release or threatened Release of a Hazardous Substance
at, on, under or from the Leased Premises, including but not limited to claims
arising out of the shipment or disposal of such Hazardous Substance off-site or
(ii) circumstances forming the basis of any violation or alleged violation of
any Environmental Law.


 


2.             “Environmental Laws” means all federal,
state, local and foreign laws and regulations relating to pollution or
protection of human health or the environment (including without limitation
ambient air, surface water, ground water, land surface or subsurface strata)
Including without limitation, laws and regulations relating to emissions,
discharges, Releases of Hazardous Substances or otherwise relating to the
manufacture, processing distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances. Environmental Laws include, but
are not limited to: the Clean Water


 


27

















 


Act also known as the Federal Water Pollution
Control Act (“FWPCA”), 33 U.S.C. Section 1851 et seq.; the Clean Air Act (“CAA”),
42 U.S.C. Section 7401 et seq; the Federal Insecticide, Fungicide, and
Rodenticide Act (“FIFRA”), 7 U.S.C. Section 136 et seq.; the Surface Mining
Control and Reclamation Act (“SMCRA”), 30 U.S.C. Section 1801, et seq.; the
Comprehensive Environmental Response, Compensation And Liability Act (“CERCLA”),
42 U.S.C. Section 9601 et seq.; the Superfund Amendment and
Reauthorization Act of 1986 (“SARA”), Public Law 00-499, 100 Stat. 1613; the
Emergency Planning and Community Right to Know Act (“EPCRKA”), 42 U.S.C. Section
11001 et seq.; the Resource Conservation And Recovery Act (“RCRA”), 42 U.S.C.
Section 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; and the Occupational Safety and
Health Act as amended (“OSHA”), 29 U.S.C. Section 655 and Section 657;
Louisiana’s Risk Evaluation/Corrective Action Program (“RECAP”), LAC Title 33,
Part I, Chapter 13, as administered by the Louisiana Department of
Environmental Quality or a program replacing RECAP together, in each case, with
any amendment thereto, and the regulations adopted and publications promulgated
thereunder and all substitutions thereof and any permits issued thereunder.


 


3.             “Hazardous
Substance” means (i) any chemical, compound, material, mixture or substance
that is now or hereafter defined or listed in, or otherwise classified pursuant
to any Environmental Law as a “hazardous substance”, “hazardous material”, “hazardous
waste”, “extremely hazardous waste”, “acutely hazardous waste”, “radioactive
waste”, “infectious waste”, “biohazardous waste”, “toxic substance”, “pollutant”,
“toxic pollutant”, or “contaminant”; (ii) petroleum, gasoline, natural gas,
natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas), and all compounds and mixtures
thereof and products related thereto; (iii) asbestos and any asbestos
containing material; (iv) urea formaldehyde foam insulation; and (v)
transformers or other equipment which contain dielectric fluid containing
polychlorinated biphenyls (PCBs).


 


28

















 


4.             “Release”
means any actual or threatened spill, presence, emission, discharge, dispersal,
release, leak, seepage, escape, spread, infiltration, deposit, disposal,
injection, leaching, or migration into the environment.


 


18.2         LESSEE’s Covenants. LESSEE
covenants and agrees as follows:


 


(a)           LESSEE shall be solely responsible for
reporting to the appropriate governmental authorities any Release of a
Hazardous Substance on, at, under or from the Leased Premises that occurs on or
after the Effective Date and during the existence of this Lease.


 


(b)           Except for air emissions pursuant to a duly
issued and validly held permit for such purpose and waste and storm water
discharges pursuant to a duly issued and validly held permit for such purpose,
LESSEE shall report to LESSOR any Release of a Hazardous Substance on, at,
under or from the Leased Premises, regardless of quantity, that occurs after
the Effective Date and during the existence of this Lease, LESSEE shall give
notification to LESSOR immediately after such Release, but in no event later
than twenty-four (24) hours after the discovery of a Release.


 


(c)           LESSEE shall be responsible, at its sole cost
and expense, for taking action using the standard of care exercised by diligent
and prudent environmental professionals using sound environmental judgment and
practices, except if otherwise controlled by Louisiana’s Risk
Evaluation/Corrective Action Program (“RECAP”), LAC Title 33, Part I, Chapter
13, as administered by the Louisiana Department of Environmental Quality (“LDEQ”)
or a program replacing, superceding or preempting RECAP to assess, contain,
remove and remediate any Release of a Hazardous Substance on, at, under or from
the Leased Premises, regardless of quantity, that occurs after the Effective
Date, and during the existence of this Lease. It is provided, however, that if
a governmental authority other than LDEQ assumes responsibility as the lead
agency for the assessment, containment, removal and remediation of


 


29

















 


any such Release described in this subparagraph18(c), then instead of
taking action in accordance with RECAP, LESSEE shall take action in accordance
with requirements imposed by such lead agency.


 


(d)           LESSEE hereby acknowledges that LESSOR shall
have the right in its sole and absolute discretion, but not the duty, to enter
and conduct an inspection or such inspections of the Leased Premises, at any
time, to determine whether LESSEE is complying with its obligations under this Lease
and this Section 18.


 


(e)           If LESSEE fails to provide notification to
LESSOR of a Release of a Hazardous Substance as required hereunder, or if
LESSEE fails to promptly take action as required hereunder to remediate a
Release, then LESSOR shall have the right in its sole and absolute discretion,
but not the obligation to: (i) enter the Leased Premises and undertake any such
action as LESSOR shall deem necessary and desirable to remediate such Release;
or (ii) give LESSEE written notice of such violation or failure and demand that
LESSEE cure or correct such violation or failure, within forty (40) days after
LESSOR gives such written notice. LESSOR shall then have, at any time after
such forty (40) day period that such violation or failure remains uncured, the
right (but not the obligation) to enter the Leased Premises to take such action
as LESSOR may deem necessary and desirable to remediate such Release. Upon
LESSOR’s demand, LESSEE shall, within forty (40) days, reimburse LESSOR for the
full amount of any costs and expenses incurred by LESSOR in undertaking such
action. In no event shall LESSEE raise or plead as a defense to a claim for
reimbursement of costs and expenses incurred by LESSOR hereunder in undertaking
such actions, that LESSOR acted as a volunteer, and any such defense of “volunteer”
is hereby waived by LESSEE.


 


18.3         LESSOR’s Indemnification. Except as
otherwise expressly provided to the contrary LESSOR shall defend, indemnify and
hold harmless


 


30

















 


LESSEE, LESSEE’s
past, present and future officers, directors, shareholders, principals,
parents, subsidiaries, Affiliates (their respective employees, officers,
directors, shareholders, partners, members, principals, parents and
subsidiaries), representatives, predecessors, successors, employees, agents,
attorneys or assigns, from and against: (i) any and all Environmental Claims
regardless of whether such claims are seeking injunctive, monetary or any other
relief arising from Release(s) of Hazardous Substance(s) that occurred prior to
the Effective Date of the Lease regardless of when manifested, and (ii) any and
all Environmental Claims regardless of whether such claims are seeking
injunctive, monetary or any other relief arising from Release(s) of Hazardous
Substance(s) at, on or under the LESSOR Premises that occurs at any time,
regardless of when manifested. Environmental Claims shall not include, and
LESSOR shall not be required to defend, indemnify and hold harmless LESSEE for
consequential, special, exemplary or punitive damages including, but not
limited to, loss of profit, business interruption, and diminution in value. Notwithstanding
any provision of this Lease to the contrary, no provision contained in this
Lease which limits LESSEE’s remedies shall apply to this Section 18.3.


 


18.4         LESSEE’s Indemnification. Except as
otherwise provided to the contrary, LESSEE shall defend, indemnify and hold
harmless LESSOR, LESSOR’s past, present and future officers, directors,
shareholders, principals, parents, subsidiaries, Affiliates (their respective
employees, officers, directors, shareholders, partners, members, principals,
parents and subsidiaries), representatives, predecessors, successors, employees,
agents, attorneys or assigns from and against any and all Environmental Claims
regardless of whether such claims are seeking injunctive, monetary or any other
relief arising from Release(s) of a Hazardous Substance(s) at, on or under the
Leased Premises that occurs on and after the Effective Date and during the
existence of this Lease, regardless of when manifested. Environmental Claims
shall not include, and


 


31

















 


LESSEE shall
not be required to defend, indemnify and hold harmless LESSOR for
consequential, special, exemplary or punitive damages including, but not
limited to, loss of profit, business interruption, and diminution in value.


 


18.5         Limitation of Liability. IN NO
EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE
AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITIES,
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUES, OR LOST OPPORTUNITY
COSTS, AND FURTHER INCLUDING, WITHOUT LIMITATION, FOR LOSS OF TENANTS, LENDERS,
INVESTORS OR BUYERS OR DIMINISHMENT IN VALUE.


 


18.6         Neither
Party shall be deemed to have permitted, caused, contributed to or acquiesced
in any such Release or any other matter covered by the provisions of this
paragraph 18 solely because a Party had notice, disclosure or knowledge
thereof, whether at Closing or at any other time.


 


18.7         Neither
Party shall be responsible to or indemnify the other Party, in respect of such
Party’s having damaged or harmed or injured natural resources, including
without limitation any remediation and cost recovery in regards thereto.


 


18.8         The
parties covenant and agree that the provisions of Section 10.2 and 10.3 shall
control the process for any claim for indemnification by either Party.


 


18.9         Suitability of Leased Premises. LESSOR makes no warranty
that the Leased Premises are suitable for LESSEE’s purposes.


 


18.10       Mutual Cooperation. LESSEE and LESSOR shall cooperate with
each other to assist in the defense of any claim made against one or both of
the Parties to this Lease which relates to Environmental Contamination not
caused by the Parties, including pursuing any third parties.


 


32

















 


19.          LESSEE FINANCING. LESSEE
shall have the right, at any time and from time to time, in addition to any
other rights herein granted and without any requirement to obtain LESSOR’s
consent, to encumber any or all of the improvements and LESSEE’s leasehold
interest hereunder. LESSOR acknowledges that so long as any leasehold mortgage
shall remain unsatisfied of record or until written notice of satisfaction is
given by the leasehold lender to LESSOR, the following provisions shall apply
in respect of such leasehold lender notwithstanding any other provisions of
this Lease to the contrary:


 


19.1         There
shall be no voluntary cancellation, termination, surrender, acceptance of
surrender, material amendment or modification of this Lease by joint action of
LESSOR and LESSEE, nor shall LESSOR recognize any such action by LESSEE alone,
without in each case the prior consent in writing of any leasehold lender. Nor
shall any merger result from the acquisition by, or devolution upon, any person
or entity of both the fee estate in the Leased Premises and the leasehold
estate created by this Lease. Any attempted voluntary cancellation,
termination, surrender, amendment, modification or merger of this Lease without
the prior written consent of all leasehold lenders shall be of no force or
effect. Notwithstanding the foregoing, nothing in this Section 19.1 shall
prohibit, stay or delay LESSOR’S rights under this Lease in the event of
default by LESSEE.


 


19.2         Each
leasehold lender shall be given notice of any arbitration or action, suit or
other proceeding or dispute between the parties and shall have the right to
intervene therein and be made a party thereto if LESSEE fails to do so. In any
event, each leasehold lender shall receive notice, and a copy, of any award,
decision or judgment rendered in such arbitration, action, suit or other
proceeding.


 


19.3         If
there is a condemnation or taking by eminent domain in respect of the Premises,
any award or payment which are to be paid to LESSEE shall be paid instead to
the leasehold lenders in accordance with the priority of their liens. If a
condemnation or taking by eminent domain results in a termination of this
Lease, LESSEE’s portion of the award or payment shall be paid to the leasehold
lenders in accordance with the priority of


 


33

















 


their liens and the provisions of their respective
leasehold mortgages.


 


19.4         No
payment made to LESSOR by any leasehold lender shall constitute agreement that
such payment was, in fact, due under the terms of this Lease; and the leasehold
lender having made any payment or portion thereof to LESSOR pursuant to LESSOR’s
wrongful, improper or mistaken notice or demand shall be entitled to the return
of any such payment or portion thereof provided it shall have made demand
therefor not later than one (1) year after the date of its payment.


 


19.5         In
connection with the rights of a leasehold lender to cure LESSEE’s defaults
under this Lease and to protect its security, LESSOR and LESSEE hereby expressly
grant to each leasehold lender, and agree that each leasehold lender shall
have, the absolute and immediate right to enter in and upon the Leased Premises
or any part thereof to such extent and as often as the leasehold lender, in its
sole discretion, deems necessary or desirable in order to prevent or to cure
any such default by LESSEE, without any obligation to do so. Nothing in this
Section 19 shall give such lender any greater rights than that of LESSEE under
this Lease.


 


19.6         In
the event any right granted to a leasehold lender under this Section shall by
its nature only be exercisable by one leasehold lender and more than one
leasehold lender desires to exercise such right, then in that event only the
leasehold lender holding the most senior leasehold mortgage among the leasehold
lenders desiring to exercise such right, shall be entitled to do so.


 


19.7         In
the event a leasehold lender or its designee (by foreclosure, conveyance in
lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or
the assignee or designee of such purchaser, acquires LESSEE’s interest in this
Lease, the leasehold lender or its designee shall not be bound by any
modification or amendment to this Lease occurring


 


34

















 


after the granting of such leasehold mortgage unless
approved by the leasehold lender in writing.


 


19.8         In
the event a leasehold lender or its designee (by foreclosure, conveyance in
lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or
the assignee or designee of such purchaser, acquires LESSEE’s interest herein,
such party shall thereupon become LESSEE under this Lease and hereby agrees to
perform each and all of LESSEE’s obligations and covenants hereunder; provided,
however, that any defaults by LESSEE under this Lease which do not involve the
payment of money and which cannot be satisfied or cured by such party shall be
deemed waived, except that such purchaser may not use the Leased Premises for
any purpose other than as set forth in Section 4 herein.


 


19.9         Nothing
in this Section 19 shall be deemed or construed to create or impose any
obligation, covenant or liability, whatsoever, upon a leasehold lender: (a) for
the payment of any Rent, Additional Rent, Minimum Additional Rent or any
additional monetary sums due under this Lease; (b) for the performance of any
of LESSEE’s covenants and agreements hereunder; or (c) to cure any default by
the LESSEE under this Lease, and neither LESSEE nor LESSOR shall have any
claims against a leasehold lender for its failure to make any payment or take
any action which it is entitled to take under this Section 19 until such time
as such leasehold lender assumes possession of the Leased Premises or acquires
the LESSEE’s interest in the Lease, and then only for as long as it remains in
possession or the owner of the leasehold estate created thereby. Nothing in
this Section 19 shall be construed to stay, hinder or delay LESSOR’S rights and
remedies in the event of LESSEE’S default under this Lease.


 


19.10       The
liability of any leasehold lender, its successors and assigns, shall be limited
in all respects to its interest in this Lease and the leasehold estate created
hereby and such leasehold lender shall have no personal liability hereunder and
no judgment or decree shall be enforceable beyond the


 


35

















 


interest of such leasehold lender in the leasehold estate
created under this Lease or shall be sought or entered in any action or
proceeding brought in connection with this Lease.


 


19.11       Notwithstanding
anything to the contrary contained in this Lease, if a leasehold lender or its
designee shall acquire title to LESSEE’s interest in this Lease, by foreclosure
of its leasehold mortgage thereon or by assignment in lieu of foreclosure, such
leasehold lender or designee may freely assign this Lease and shall thereupon
be released from all liability for the performance or observance of the
covenants and conditions in this Lease contained on LESSEE’s part to be
performed and observed from and after the date of such assignment, provided
that the assignee shall have satisfied any monetary claims of LESSOR against
LESSEE accruing prior to such assignment and shall have assumed the obligations
of LESSEE under this Lease that accrue from and after the date of such
assumption.


 


19.12       LESSEE
and LESSOR agree that the provisions of this Section 19 are for the benefit of
and shall be enforceable by each leasehold lender and its respective successors
and assigns who comply with the provisions of this Section 19, provided,
however, any leasehold lender will be entitled to the benefit of this Section
19 only if it provides LESSOR with written notice of the execution and
recording of its mortgage (including recording data) and its name and address
where notices may be provided to it in accordance with the Notices Section of
this Lease. Notice by LESSOR under this Section 19 shall be deemed as properly
given notwithstanding any assignment or other transfer of such mortgage by any
leasehold lender.


 


20.          NON-WAIVER.
Failure of LESSOR to declare immediately upon occurrence of a default or
delay in taking any action in connection therewith shall not waive such
default, but LESSOR shall have the right to declare a default at any time; no
waiver of any default shall alter LESSEE’s obligations under the Lease with
respect to any other existing or subsequent default. No delay or


 


36

















 


omission by
either Party to exercise any right or power it has under this Lease will impair
or be construed as a waiver of such right or power. A waiver by any Party of
any breach or covenant will not be construed to be a waiver of any succeeding
breach or any other covenant.


 


21.          ATTORNEY’S FEES AND
EXPENSES. In the event it becomes necessary for
either Party to employ an attorney to enforce compliance with any of the
covenants and agreements herein contained, the non-prevailing Party will be
liable for reasonable attorney’s fees, costs and expenses incurred by the
prevailing Party.


 


22.          SURRENDER.


 


22.1         LESSEE
shall on the last day of the Term, a Renewal Term or upon any sooner expiration
or earlier termination of this Lease, well and truly surrender and deliver up
the Leased Premises to the possession and use of LESSOR without fraud or delay
and in good order and condition, free and clear of all lettings and
occupancies, and free and clear of all liens and encumbrances other than those,
if any, presently existing or created or suffered by LESSOR and restored to the
condition on the Effective Date of this Lease. LESSEE shall in any event have
the right to dismantle and remove the Facility and its other improvements (except
for Infrastructure Improvements which shall become the property of LESSOR) unless
LESSEE agrees to sell the same to LESSOR for an agreed upon sum, in which event
LESSEE shall  take such action as is
necessary or required to transfer to LESSOR title and ownership to the Facility
and LESSEE’S assets and improvements upon payment by LESSOR to LESSEE of the
agreed upon sum.


 


37

















 


22.2         LESSOR
shall not be responsible for any loss or damage occurring to any property owned
by LESSEE in connection with any abandonment or failure to remove such property
as provided herein.


 


22.3         As
requested by LESSOR, LESSEE shall sign and deliver to LESSOR all reasonable
documents and bill of sales to confirm and vest all right, title and interest
in and to all such abandoned property.


 


22.4         The
provisions of this Section 22 shall survive any termination of this Lease.


 


23.          MISCELLANEOUS.


 


23.1         Entirety of Understanding in Written Lease. Except as
expressly provided for herein, this Lease, and each of its Schedules, and the
Terminal Services Agreement constitute the entire agreement between the Parties
with respect to its subject matter and there are no other representations,
understandings, or agreements between the Parties relative to such subject
matter. No amendment to, or change, waiver, or discharge of, any provision of
this Lease will be valid unless in writing and signed by an authorized
representative of the Party against which such amendment, change, waiver, or
discharge is sought to be enforced.


 


23.2         Benefits of Parties. All of the provisions hereof shall be
binding upon and shall inure to the benefit of LESSOR and LESSEE, their heirs,
executors, administrators, successors, and assigns (as the case may be),
subject to the limitations on assignment and change of control as set forth in
Articles 16.1 and 16.2 of this Lease.


 


23.3         Governing Law. This Lease shall be governed by and construed
in accordance with the laws of the State of Louisiana.


 


23.4         Notices. All notices, requests, demands, and determinations
under this Lease (other than routine operational communications), shall be in
writing and shall be deemed duly given (a) when delivered by hand; (b) one (1)
business day after being given to an express courier with a reliable system for
tracking delivery; (c) when sent by confirmed facsimile with a copy sent


 


38

















 


by another
means specified in this Section 23.4; or (d) four (4) days after the day
of mailing, when mailed by United States mail, registered or certified mail,
return receipt requested, postage prepaid, and addressed as follows:


 


	
  LESSOR:

  	
  International-Matex Tank Terminals

  
	
   

  	
  321 St. Charles Avenue

  
	
   

  	
  New Orleans, Louisiana 70130

  
	
   

  	
  Attention: Chief Operating Officer

  
	
   

  	
  Telecopier: 504-525-9537

  
	
   

  	
   

  
	
  Copy:

  	
  Coleman, Johnson, Artigues
  & Jurisich, L.L.C.

  
	
   

  	
  321 St. Charles Avenue

  
	
   

  	
  New Orleans, Louisiana

  
	
   

  	
  Attention: Senior Partner

  
	
   

  	
  Telecopier: 504-525-9464

  
	
   

  	
   

  
	
  LESSEE:

  	
  REG
  DESTREHAN, LLC

  
	
   

  	
  406 1st Street

  
	
   

  	
  Ralston, IA 51459

  
	
   

  	
  ATTN: Chief Operating Officer

  
	
   

  	
  Telecopier: 712

  
	
   

  	
   

  
	
  Copy:

  	
  John A. Gerken

  
	
   

  	
  Wilcox, Polking, Gerken, Schwarzkopf & Copeland, P.C

  
	
   

  	
  115 E. Lincolnway, Ste 200

  
	
   

  	
  Jefferson, IA 50129

  
	
   

  	
  Telecopier: 515-386-8531

  



 


A
Party may from time to time change its address or designee for notification
purposes by giving the other Party prior notice of the new address or designee
and the date upon which it will become effective.


 


23.5         Severability. In the event that any article, subsection,
paragraph, sentence or clause of this Lease is held invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Lease.


 


23.6         No Partnership. Nothing contained herein shall be deemed by
any Party or third person or entity to create any principal and agent,
partners, joint


 


39

















 


ventures, or associates relationships between the LESSOR and the
LESSEE.


 


23.7         Short Form Lease/Recordation. The Parties will at any time,
at the request of either Party, promptly execute duplicate originals of an
instrument, in recordable form, which will constitute a short form of this
Lease, setting a description of the Leased Premises, the Term and any other
provisions thereof, excepting the rental, as either Party may request.


 


23.8         Access to Premises. In addition to any rights under any agreements
from time to time between the LESSOR and the LESSEE, the LESSOR shall have the
right, at all reasonable times during the Term and any Renewal Term, to enter
upon the Leased Premises to conduct such appropriate inspections or tests for
the purpose of determining the Lessee’s compliance with the terms, conditions,
and provisions of this Lease, provided, however, LESSOR shall at all times
comply with LESSEE’s safety and security procedures and policies while on the
Leased Premises.


 


23.9         Captions. All indices, titles, subject headings, section
titles and similar items are provided for the purpose of reference and
convenience and are not intended to be inclusive, definitive or to affect the
meaning, content or scope of this Lease.


 


23.10       Counterparts. This Lease may be signed in one or more
counterparts, each of which shall be an original and all of which, taken
together, shall constitute one instrument.


 


23.11       This
Lease was prepared with each of the Parties having access to their own legal
counsel. Accordingly, the Parties stipulate and agree that this Lease shall be
deemed and considered for all purposes as prepared through the joint efforts of
the Parties and shall not be construed against one Party of or the other as a
result of the preparation, submittal or other event of negotiation or drafting.


 


[SIGNATURES
APPEAR ON THE FOLLOWING PAGES]


 


40

















 


IN  WITNESS WHEREOF, International-Matex Tank
Terminals has executed this instrument on the 8th day of June, 2007, but
effective as of the Effective Date.


 


 


	
  WITNESSES:

  	
   

  	
   

  	
  INTERNATIONAL-MATEX TANK

  
	
   

  	
   

  	
   

  	
  TERMINALS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    /s/ JAMES E. MILES,
  III

  	
   

  	
   

  	
  By:

  	
  /s/ RICHARD D. COURTNEY

  	
   

  
	
  James
  E. Miles

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  RICHARD D. COURTNEY

  	
   

  
	
   

  	
   

  	
   

  	
  Title: CHIEF OPERATING OFFICER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    /s/ KATHLEEN L.
  MAGRUM

  	
   

  	
   

  	
   

  	
   

  
	
  Kathleen
  L. Magrum

  	
   

  	
   

  	
   

  	
   

  
						



 


41

















 


IN  WITNESS WHEREOF, REG DESTREHAN, LLC  has executed this instrument on the 8th day of June, 2007,
but effective as of the Effective Date.


 


 


	
  WITNESSES:

  	
   

  	
   

  	
  REG
  DESTREHAN, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
    /s/
  ROBERT A. SCHWARZKOPF

  	
   

  	
   

  	
  By:
  RENEWABLE ENERGY GROUP,
  INC.

  
	
   

  	
   

  	
   

  	
  Its Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  NILE RAMSBOTTOM

  	
   

  
	
   

  	
   

  	
   

  	
  NILE RAMSBOTTOM

  	
   

  
	
   

  	
   

  	
   

  	
  PRESIDENT

  	
   

  
	
    /s/
  JOHN A. GERKEN

  	
   

  	
   

  	
   

  	
   

  
							



 


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