Exhibit 10.16


 


TERMINAL AGREEMENT


AGREEMENT NUMBER 65-724


 


THIS AGREEMENT MADE AND
ENTERED INTO AS OF THE 15th day of February, 2006, by and between WESTWAY
TERMINAL COMPANY INC., having its principal administrative offices in New
Orleans, Louisiana (hereinafter known as WESTWAY), and West Central
Cooperative, an Iowa cooperative association with headquarters in Ralston, IA,
(hereinafter known as CUSTOMER).


 


WITNESSETH:


 


WHEREAS, WESTWAY TERMINAL
COMPANY INC., a Delaware Corporation, owns and operates bulk storage and
distribution terminals and,


 


WHEREAS, CUSTOMER desires
to deliver Product to WESTWAY to be stored and handled at its terminal(s).


 


NOW, THEREFORE, in
consideration of mutual covenants and agreements the parties agree to the
general terms and conditions contained in the Statement of Terms and Conditions
and to specific terms and conditions as specified in the Schedule I, all of
which constitute the Agreement between the Parties.


 


1.             TERM OF CONTRACT


 


As specified in Schedule
I, attached hereto.


 


2.             MODIFICATIONS


 


No changes or
modifications to the Statement of Terms and Conditions shall be effective
unless reduced to writing and subscribed to by the parties hereto. Changes to
the Schedule may be made by the parties at any time by any mutually acceptable
means. No failure to insist upon compliance with any term or provision of the
Agreement shall be considered a waiver, breach or cancellation of such
provision or any other provision of the Agreement.


 


3.             NOTICES


 


Any or all notices
required to be given under this Agreement shall be in writing and shall be
deemed given when deposited in the United States mail, certified or registered,
return receipt requested, addressed in the case of CUSTOMER (or such other
address or addresses as either party may instruct the other in writing) to:


 


WEST CENTRAL COOPERATIVE


Attn: Mr. Nile D.
Ramsbottom


406 First Street


P.O. Box 68


Ralston, IA 51459


 


or in the case of
WESTWAY, to:


 


WESTWAY TERMINAL COMPANY
INC.


Attn: Wayne Driggers


President


365 Canal Street, Suite
2900


New Orleans, LA
70130-1134


 

















 


4.             ACCEPTANCE


 


Acceptance by CUSTOMER
shall be acceptance of all terms and conditions recited herein or incorporated
by reference. The person accepting this Agreement for WESTWAY and CUSTOMER each
represent that he/she is duly authorized to obligate their respective firm to
the terms hereof and to pay sums due or arising hereunder.


 


IN WITNESS WHEREOF, the
parties have executed this Agreement, the “Master Agreement,” as of the day and
year first above written:


 


 


	
  ACCEPTED

  	
   

  	
  ACCEPTED

  
	
   

  	
   

  	
   

  
	
  WEST CENTRAL
  COOPERATIVE

  	
   

  	
  WESTWAY TERMINAL
  COMPANY INC.

  
	
   

  	
   

  	
   

  
	
  By 

  	
    /s/ NILE D.
  RAMSBOTTOM

  	
   

  	
  By

  	
    /s/ WAYNE
  DRIGGERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
     VP

  	
   

  	
  Title

  	
     President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
     2/17/06

  	
   

  	
  Date

  	
     2/21/06

  	
   

  
										



 


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STATEMENT OF TERMS AND CONDITIONS


 


1. FACILITIES


 


1.01 Facilities To Be
Furnished By WESTWAY


 


WESTWAY agrees to furnish
storage tank(s), pipelines, pumps and/or other equipment (hereinafter known as “Facility”)
as more particularly described and for the specific locations as set forth in
Schedule I which are now and will be attached hereto.


 


WESTWAY shall at all
times retain operational control of the Facilities within its sole care and
custody and maintain the same, at its expense, in good and safe working order
and repair, performing all services in a safe and workmanlike manner and
minimizing any hazards associated with the storage of CUSTOMER’s Products.


 


WESTWAY agrees to have
Facility completed and ready to accept delivery for storage and redelivery (as
herein provided) of Product at the time and in the amounts specified in
Schedule I (the work to be performed by WESTWAY to complete the Facility as
described on Schedule I is referred to as the “WESTWAY Work”). Until such time
as the first of CUSTOMER’s Product is received, CUSTOMER will have the
opportunity to examine and inspect WESTWAY’s Facility to determine its
suitability for CUSTOMER’s Product as contemplated by this Agreement. Any
inspection by CUSTOMER shall be at reasonable times and after written notice
shall have first been given by CUSTOMER to WESTWAY and will be done in a manner
so as not to interfere with WESTWAY’s timely completion of the WESTWAY Work.
CUSTOMER shall indemnify and hold WESTWAY harmless from any liability or damage
suffered by WESTWAY as a result of CUSTOMER’s inspection, including, but not
limited to, reasonable attorneys’ fees and costs of defense. Before making any
such inspection, CUSTOMER will provide WESTWAY such evidence as WESTWAY may
reasonably require to show that CUSTOMER is carrying adequate comprehensive
general liability insurance naming WESTWAY as an additional insured. The
indemnity and insurance obligations of this provision will survive the
expiration or sooner termination of this Agreement. In connection with that
inspection, it is recommended that all associated pipelines be flushed and that
an independent surveyor inspect the tank, pipelines, and flush operation prior
to entry. Flush material will be handled as directed by CUSTOMER. All costs associated
with the flush are for CUSTOMER’s account.


 


Within a reasonable
period of time after WESTWAY has completed the WESTWAY Work, WESTWAY will notify
CUSTOMER of its completion. CUSTOMER will then have ten days to complete its
inspection and notify WESTWAY if WESTWAY’s Facility does not conform with the
requirements of this Agreement by giving written notice to WESTWAY (a “Deficiency
Notice”). If CUSTOMER does not give WESTWAY a Deficiency Notice within the ten
day period, then it will be deemed to have accepted WESTWAY’s Facility in its
then-current condition; to acknowledge that WESTWAY’s Facility is suitable for
the purposes contemplated by this Agreement, and to have warranted that it has
examined and inspected WESTWAY’s tanks, pipelines, dock and other equipment and
facilities, that is fully aware of the limitations and conditions thereof and
that it has independently concluded that said facilities are acceptable for the
storage and handling of the Product as provided.


 


If CUSTOMER does give
WESTWAY a Deficiency Notice within the ten day period, then the parties agree
to meet with one another and to use good faith and commercially reasonable
efforts to try to resolve any disagreement over whether WESTWAY’s Facility
conforms with the requirement of this Agreement. The parties agree to provide
appropriate levels of management and technical personnel for such meetings and
to allow reasonable time periods for performing and corrective work and for
inspecting any corrective work.


 


1.02 Tank Use and
Cleaning


 


As specified in Schedule
I attached hereto.


 


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1.03 Additional Equipment


 


As specified in Schedule
I attached hereto.


 


1.04 Dock


 


As part of the Facility,
WESTWAY shall make available to CUSTOMER at published rates existing loading
docks and wharves servicing the terminal. Because these docks and wharves are
used by WESTWAY and others, they are available on a “first come, first served”
basis.


 


1.05 Inspection


 


WESTWAY hereby consents
to an inspection by CUSTOMER’s designated representatives of its entire site or
the sites at which it may be providing storage or performing services hereunder
on a periodic basis or on special occasions on a reasonable notice. WESTWAY
shall make all reasonable efforts to make available to said representative of
CUSTOMER during the inspection that person or persons knowledgeable in Terminal’s
policies and procedures governing the aspects of WESTWAY’s operations relevant
to the services rendered hereunder, including, but not limited to, maintenance,
quality assurance, environmental, safety and loss prevention.


 


2.
PRODUCT HANDLING AND DOCUMENTATION


 


2.01 Product Handling


 


The Product shall be
received, stored and loaded by WESTWAY in accordance with WESTWAY’s standard
procedures which include receipt, storage and periodic sampling (As requested
by CUSTOMER) of stored product, loading into each tank truck or other carrier
and periodic inventory reporting.


 


Reasonable additional
services will be supplied, necessary to accommodate CUSTOMER’s requirements, at
WESTWAY’s regular rates and charges then in effect. If any services requested
by CUSTOMER involve the use of independent contractor or companies not owned
by, or personnel not employed by WESTWAY, all liability for the work performed
by said contractors, companies or personnel, and for payment thereof, rests
solely with CUSTOMER.


 


CUSTOMER shall be
responsible for all charges incurred in engaging any carrier to effect delivery
or dispatch of any Product and its suitability to perform the functions
required, and WESTWAY shall be responsible only to receive or discharge the
Product through its terminal lines from or to those carriers on vehicles,
barges or equipment which, WESTWAY and CUSTOMER agree, WESTWAY is capable of
and is equipped to service as specified in Schedule I. WESTWAY assumes no
liability for the performance of any carrier delivering or dispatching CUSTOMER’s
product, either for damage or loss to the product or for any damages caused by
the carrier to third parties. CUSTOMER acknowledges that any carrier delivering
or dispatching CUSTOMER’s product is employed solely by CUSTOMER at CUSTOMER’s
discretion, liability and expense. Furthermore, CUSTOMER agrees to indemnify,
defend and hold WESTWAY harmless for any damages to third parties or WESTWAY
(including reasonable attorneys’ fees and cost of defense, caused by carriers
handling CUSTOMER’s product.


 


2.02 Shipping and
Receiving Papers


 


For each shipment of
Product WESTWAY will also make out the necessary shipping documents and will
send one (1) copy along with the weight ticket and original bill of lading to
CUSTOMER on a daily basis. WESTWAY will complete and forward to CUSTOMER the
required documents for receipts of Product as soon as practicable after
discharge. CUSTOMER acknowledges that WESTWAY is not bound by any bill of
lading or other contract documents except for those signed by an authorized
WESTWAY representative and/or executed by WESTWAY as a party. No other bills of
lading, contracts or shipping documents signed by CUSTOMER, CUSTOMER’s carrier
or third parties will bind WESTWAY by their terms and conditions.


 


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3.
OPERATIONS


 


3.01 Hours of Work


 


Hours of operation shall
be as specified in Schedule I, hereto attached.


 


3.02 Vessel Discharge


 


Should Product be
delivered to Facility by vessel or barge, CUSTOMER shall give the WESTWAY
terminal five days advance notice of the expected arrival time. The Master of
the vessel, his representative, or CUSTOMER shall give WESTWAY at least six (6)
hours advance notice of the vessel’s readiness to discharge cargo. If the
vessel is ready to discharge and WESTWAY is ready to receive the cargo in less
than six (6) hours after notice has been given, then discharge shall commence
without further delay. WESTWAY’s personnel will perform no work on the vessel.
Vessel will pump Product to Facility at a rate of not less than 300 short tons
per hour.


 


3.03 Schedules


 


WESTWAY agrees to
receive, store, and distribute Product at the rates and charges fixed as
provided on Schedule I. Cost and expense incurred by reason of WESTWAY’s delay
in accepting discharge shall be borne by WESTWAY. However, there will be NO
penalties or charges to WESTWAY for delays resulting from force majeure or
unforeseen mechanical breakdown of WESTWAY’s equipment. WESTWAY will make all
reasonable efforts to maintain its equipment in good repair and have such
equipment repaired as soon as possible after breakdown.


 


3.04 Maintenance of
Facility


 


WESTWAY agrees to
maintain Facility during the term of this Agreement and any extensions thereof.
CUSTOMER agrees to maintain special facilities and equipment, which remain the
property of CUSTOMER as provided in Section 1.03, or, at CUSTOMER’s option,
WESTWAY shall provide such maintenance at CUSTOMER’s expense.


 


3.05 Utilities


 


WESTWAY shall supply
utilities, such as electricity or heating, as required and as specified in the
Schedule I.


 


4.
DETERMINATION OF QUANTITY


 


Quantities of Product
received into Facility shall be determined by gauging of the shore tanks made
before and after delivery and calculated in gallons at 60° Fahrenheit in
accordance with standard gravity tables supplied by CUSTOMER.


 


WESTWAY may, at its
option, determine the quantity of Product delivered to or from Facility by
direct weighing of tank car or tank trucks, both empty and loaded, on certified
scales. Weighing of tank cars and trucks shall be at CUSTOMER’s expense.


 


WESTWAY will supply
CUSTOMER with a monthly inventory of the Product. A month-end physical inventory
shall be taken each month by WESTWAY. Any variances between the book record and
the actual physical count shall be subject to an adjustment of fees as provided
in Section 13.01. CUSTOMER (or their representative) has the right to
participate in taking such physical inventory.


 


WESTWAY shall allow a
certified public inspector retained by CUSTOMER reasonable access to the
Facility for the purpose of monitoring measurements of Product, which shall be
at CUSTOMER’s expense.


 


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5. TITLE
TO PRODUCT


 


Title to Product stored
in Facility shall always remain with CUSTOMER and shall be held at CUSTOMER’s
risk. However, if CUSTOMER is in breach hereof or fails to remove all Product
from Facility at termination of this Agreement at WESTWAY’s direction to do so,
to the extent permitted by the applicable law governing this Agreement, WESTWAY
may sell the remaining Product and apply all proceeds therefrom against any
amounts due and owing to it by CUSTOMER (including the costs of such sale), and
the balance of such proceeds, if any, shall be remitted to CUSTOMER.


 


6.
INDEPENDENT CONTRACTOR


 


Nothing contained herein
shall create the relationship of joint venture, principal and agent or master
and servant between CUSTOMER and WESTWAY. Except for purposes of issuance of
bills of lading pursuant to Section 2.02 of this Agreement or for purposes of
insuring payment of invoices as provided in Section 5., WESTWAY, in the
performance of this Agreement, is not and shall not act or purport to act as
the agent or employee of CUSTOMER, but is and shall act as an independent
contractor. WESTWAY acknowledges that it is solely responsible for and solely
in control of operations at the Facility; CUSTOMER shall not exercise any
control over or direction of the manner in which WESTWAY performs the services
called for under this Agreement. This does not include work performed by
carriers employed by CUSTOMER to deliver or dispatch product at WESTWAY’s
facility, which remains the responsibility of CUSTOMER pursuant to Section 2.01
of this Agreement.


 


7.
QUALITY ASSURANCE


 


As specified in Schedule
1, attached hereto.


 


8.
RESPONSIBILITY FOR PRODUCT


 


WESTWAY will be
responsible for any loss of Product while in storage in excess of 1% of amount
received. Overages and shortages shall be averaged against each other over each
contract year of the Agreement and any shortages accounted for by WESTWAY to
CUSTOMER at the end of each contract year. WESTWAY’s liability for such loss is
as per section 13.01.


 


CUSTOMER shall be
responsible for the Product until it leaves the delivery carrier. WESTWAY’s
responsibility shall commence when Product is off-loaded into WESTWAY’s
Facility and continues only until Product passes from the last flange into the
shipping carrier. The amount of any Product lost due to leaks or destruction of
tank cars or tank trucks during the loading or off-loading shall be borne by
CUSTOMER.


 


WESTWAY shall not be
responsible for change in quality, color, or condition of the Product stored or
handled unless caused solely by WESTWAY’s negligence. CUSTOMER shall indemnify
and hold WESTWAY harmless, for any loss or damage incurred by reason of a
delivery to Facility of any Product identified as Product, but is, in fact, of
a different chemical composition, or if WESTWAY takes any action, without
negligence on WESTWAY’s part, with respect thereto at the request or direction
of CUSTOMER.


 


9.
CHARGES AND PAYMENT


 


9.01 Other Charges


 


(a)       CUSTOMER shall reimburse
WESTWAY for all permits, licenses, etc. which may be required by any public or
private agency particular to the storage and handling of CUSTOMER’s Product at
WESTWAY’s Facilities, provided such costs do not exceed $1,500.00. If such
costs exceed this amount, Section 17.01, paragraph 2, shall apply.


 


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(b)       Subject to the terms and
conditions herein, CUSTOMER will pay WESTWAY for the cost to clean such tank(s)
and dispose of residuals in the event CUSTOMER’s use of the tank is
discontinued and the tank becomes available for use by WESTWAY to store other
product or materials. Subject to the terms and conditions herein, if the
tank(s) should require cleaning during the term of the contract, due to any
cause other than WESTWAY’s negligence or mechanical breakdown of WESTWAY’s
Facility (including equipment) resulting from Westway’s failure to employ
reasonable efforts to maintain its Facility, CUSTOMER will also pay all costs
of such cleaning and disposal of residuals as specified in Schedule I.


 


(c)       As specified in Schedule I.


 


9.02 Invoices and Payment


 


Invoices for throughput
charges shall be rendered monthly by WESTWAY to CUSTOMER for the next contract
month; such invoices will reflect the portion of the minimum annual throughput
charge due to date. Monthly payments made in contract year must equal the
greater of either actual throughput charge for contract year to date or so much
of minimum annual throughput charge as is due to date; a charge for other
services rendered in the contract month just ended will be added to monthly
invoices. Payment shall be made within thirty (30) days from date of invoice.
Invoices not paid timely shall bear interest of 1-1/2 percent per month
(effective annual rate of 18%), or the maximum legal rate permitted by law, whichever
is less, from due date until paid and all costs of collection, including
reasonable attorneys’ fees.


 


9.03 Termination Charge


 


In the event, as
reflected on Schedule I, occupancy of the premises on which its terminal is
located is on the basis of lease from public or private authority then
cancellation or termination of the lease shall automatically terminate and
cancel this Agreement contemporaneously and WESTWAY shall have no liability to
CUSTOMER arising out of such termination, nor shall CUSTOMER have any liability
to WESTWAY arising therefrom.


 


10.
ADJUSTMENT OF FEES


 


The warehousing charges
listed in Schedule I will be adjusted annually at the beginning of each
contract year by means of a formula using any increases or decreases in CPI
values, all items, all consumers up to a limit of six (6%) percent annually. As
used herein, the term “CPI” means Consumer Price Index for All Urban Consumers.


 


The thruput rate for
shipments made from the facility in excess of the minimum thruput would be
adjusted in the same manner.


 


The steam charge shall be
adjusted every three (3) months, if necessary, to reflect any increase or
decrease in fuel rates provided that no increase shall be greater than fourteen
(14%) percent annually.


 


WESTWAY reserves the
right to revise truck weighing charges at the end of each contract year,
limited to the extent WESTWAY can justify such adjusted weighing charge by
documentary evidence up to 5% annually.


 


If requested, WESTWAY
will submit evidence of new and old rates at time of escalation.


 


11.
TAXES


 


In the event that the
services provided pursuant to this Agreement or the handling of CUSTOMER’s
Product shall be treated as, or result in, a taxable sale or use or, in the
event this Agreement or the Product stored shall be subject to any ad valorem
tax, all such taxes shall be borne by CUSTOMER invoiced as an added charge; and
provided, however, that CUSTOMER shall have the full right to contest the same
at its cost and expense, with WESTWAY’s reasonable assistance and cooperation,
which WESTWAY shall not unreasonably refuse.


 


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12.
PRODUCT DOCUMENTATION


 


CUSTOMER agrees to
provide to WESTWAY all information, documents, including current Material
Safety Data Sheets for each Product, labels, placards, retained sample
containers and other materials and data which are required by Federal or State
statutes, ordinances, rules or regulations (“Regulations”) relating to the
Products stored under this Agreement and applicable Schedules. CUSTOMER further
agrees to indemnify and hold harmless WESTWAY, and WESTWAY’s agents, employees,
officers and directors, from and against any fines, penalties, loss, damage or
expense, including without limitation, reasonable legal fees, resulting from
CUSTOMER’s failure to provide or to make available to WESTWAY any information,
documents, sample containers and materials as required by such Regulations,
provided, however, that WESTWAY acted prudently in the face of such failure by
CUSTOMER.


 


13.
LIABILITY


 


13.01 Extent of Westway’s
Liability


 


Risk of loss of Product
due to fire, storm or other casualty shall remain with CUSTOMER. WESTWAY shall
be liable only for Product loss or damage in excess of percentage set forth in
Section 8 where such excess loss is caused by WESTWAY’s failure to use
reasonable care in the safekeeping or handling of Product or mechanical
breakdown of WESTWAY’s Facility (including equipment) resulting from Westway’s
failure to employ reasonable efforts to maintain its Facility. WESTWAY’s liability
for such loss or damage is limited to CUSTOMER’s lowest FOB Facility wholesale
price during the contract year in which the loss occurred.


 


WESTWAY shall be
responsible for all Facility deterioration resulting from storage of Product,
as long as such Product is within specifications enumerated in the attached
Schedules and delivered according to the terms and conditions of this
Agreement. In the event WESTWAY’s facilities are damaged or destroyed, WESTWAY
may, at its option, rebuild such facilities so affected or substitute mutually
agreeable facilities for CUSTOMER’s Product within thirty (30) days at rates
specified in Schedule I, throughout the remaining term of this Agreement.


 


WESTWAY assumes no
responsibility or liability to third parties for damages of any kind incurred
as a result of the acts or omissions of employees, independent contractors or
other persons or entities employed by CUSTOMER. WESTWAY also assumes no
responsibility or liability to CUSTOMER’s employees, independent contractors or
other persons or entities at WESTWAY’s facility for damages incurred in the
course of their employment, except for damages incurred due to the negligence
of WESTWAY.


 


WESTWAY shall have no
liability, for special or consequential damages of customer, no matter how any
loss or damage shall have occurred, including, but not limited to, loss or
damage caused by WESTWAY’s negligence and notwithstanding that WESTWAY may have
been notified of the possibility of such damages. WESTWAY is making no
guarantees or warranties of any kind, express or implied, including, but not
limited to, any warranties of merchantability or fitness for any particular
purpose whether arising by operation of law or otherwise as a result of the
services provided by WESTWAY to customer, in particular, WESTWAY’s liability
for sampling and testing services is limited to the charge for the service
provided.


 


WESTWAY shall not be
responsible for chemical deterioration of any product resulting from the
stagnant storage of the product.


 


In any event, WESTWAY
shall have no liability to customer, whether as a result of negligence or any
alleged default of WESTWAY’s obligations under this agreement unless (x) a
written claim is delivered to WESTWAY by customer within two months after
WESTWAY reports any alleged loss or damage to the customer or the customer knew
or should have known of the alleged loss or damage, whichever is earlier, and
(y) customer shall have


 


8

















 


afforded WESTWAY an
opportunity to cure the default within the time period elsewhere provided in
this agreement and a reasonable time period within which to mitigate the loss
or damage suffered by customer. In no event may customer make any deduction or
offset from any invoice presented by WESTWAY as a result of any alleged loss, damage
or default, until such time as CUSTOMER’s claim is resolved by agreement of the
parties or a final judgment of a court of competent jurisdiction.


 


13.02 Extent of CUSTOMER’s
Liability


 


CUSTOMER shall be obligated
to notify WESTWAY of any Product characteristics which may cause excess
deterioration to Facilities beyond normal wear and tear. In addition to
CUSTOMER’s obligations pursuant to 17.01, should destruction, excess
deterioration or serious damage occur requiring repair and/or replacement of
tankage, equipment or facilities be required due to CUSTOMER’s failure to
deliver the Product specified or to accurately inform WESTWAY of the Product’s
hazards, CUSTOMER shall be liable for repair and/or replacement of such
Facilities. In such event, CUSTOMER shall continue to be responsible for
charges throughout the entire period of time required to complete such repair
and/or replacement unless such repair and/or replacement exceeds a reasonable
time frame as mutually agreed both parties prior to commencement of said repair
and/or replacement.


 


CUSTOMER further
acknowledges full responsibility and liability for the acts or omissions of any
independent contractors, employees or other persons or entities employed by CUSTOMER
which perform work at WESTWAY’s facility, including liability to any third
parties for damages caused by the acts or omissions of said independent
contractors, employees or other persons or entities. This includes liability
for carriers as set forth in Section 2.01 of this Agreement.


 


14.
FORCE MAJEURE


 


Should WESTWAY’s
Facilities (including the tank set aside to service CUSTOMER’s Product) be
seriously damaged or destroyed by fire, storm or other casualty, WESTWAY shall
be relieved, without incurring any liability to CUSTOMER, of all WESTWAY’s
obligations under this Agreement rendered impossible of performance by such
destruction or damage. In such event or in the event Force Majeure is sustained
by CUSTOMER, CUSTOMER shall at the same time be relieved of all obligations to
pay all or the allocable part of any monthly rental and attributable other
charges then in effect to the extent such failure to perform or such deficiency
in making annual thruput payments is caused by, arises out of or is attributed
to any cause reasonably beyond control of CUSTOMER, such as but not limited to
war; riot; explosion; flood; storm; earthquake; act of God; perils of the sea;
labor disputes; sabotage; accident; embargo; breakage of machinery or
apparatus; injunction; compliance with governmental order; or inability to
obtain fuel; raw materials; labor; containers, or transportation difficulties
preventing the manufacture or shipment of product or restriction imposed by
CUSTOMER (any such cause being referred to as “Force Majeure”). Should any
Force Majeure occur, the party experiencing the Force Majeure will promptly
notify the other party of its existence, the reasons why and approximately how
long a delay is expected.


 


15.
DEFAULT BY EITHER PARTY


 


Should either party default
at any time in the faithful performance and observance of the terms or
conditions of this Agreement and should any such default continue for thirty
(30) or more days after written notice thereof to the defaulting party, then
the non-defaulting party shall have the right to cancel and terminate this
Agreement and to recover damages or seek any other relief which it may be
entitled at law or in equity.


 


Should either party be
adjudicated bankrupt or insolvent in an involuntary proceeding, or if such party
shall have filed a petition for an arrangement of creditors under the
bankruptcy laws or insolvency laws of any jurisdiction, or if a bankruptcy or
insolvency proceeding is instituted against such party which is not set aside
within thirty (30) days thereafter, then, in that event, such party shall be
deemed to be in default of this Agreement, thereby entitling the other party
hereto to treat this Agreement, in accordance with the foregoing, as being in
default.


 


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16.
INDEMNITY AND INSURANCE COVERAGE


 


16.01 Indemnity


 


CUSTOMER shall indemnify
and hold harmless WESTWAY and, at WESTWAY’s request, defend WESTWAY and each of
its officers, directors, employees and agents from and against any and all
liability, suits, losses, demands, causes of action, fines, penalties, expense,
including attorneys’ fees, and, costs of defense (collectively, “claims”)
WESTWAY may be caused to suffer or incur, including claims for bodily injury
and property damage arising out of or in any manner connected with CUSTOMER’s
negligent acts or omissions or breaches of this Agreement or its failure to
comply with applicable laws in the performance of its obligations, including
the negligent or unlawful acts or omissions of independent contractors,
employees, and other third party entities and persons employed by CUSTOMER
(including carriers as set forth in Section 2.01 of this Agreement), provided
such claims are not caused by the negligence of WESTWAY.


 


WESTWAY shall indemnify
and hold harmless CUSTOMER and, at CUSTOMER’s request, defend CUSTOMER and each
of its officers, directors, employees and agents from and against any and all
claims CUSTOMER may be caused to suffer or incur, including claim for bodily
injury including employees of WESTWAY and property damage arising out of or in
any manner connected with WESTWAY’s negligent acts or omissions or breaches of
this Agreement or its failure to comply with applicable laws in the performance
of its obligations, provided such claims, are not caused by the negligence of
CUSTOMER. In no event shall WESTWAY or CUSTOMER be liable to the other for
incidental or consequential damages, including, but not limited to, loss of
profits, business opportunity, downtime costs, or claims of third parties other
than claims by such third parties for property damage or personal injury.


 


16.02 WESTWAY’S Coverage


 


WESTWAY shall maintain
levels of insurance coverages during the term of this Agreement as provided:


 


	
  Workers Compensation

  	
   

  	
  Statutory

  
	
  Employer Liability

  	
   

  	
  $1,000,000

  
	
  General Liability

  	
   

  	
  $l,000,000/occurrence,
  $2,000,000 aggregate

  
	
  Excess Liability

  	
   

  	
  $4,000,000

  



 


such coverages to include
environmental liability insurance (including clean-up costs) for pollution
events of at least $1,000,000. Policies shall be issued by an insurance company
duly licensed in the state in which the Facility is located and have a Best’s
rating of not less than A.


 


16.03 CUSTOMER’s Coverage


 


CUSTOMER will insure all
Product while in storage in terminal against damage by fire or other casualty
and shall insure all of its personnel and equipment while on WESTWAY’s
premises. Further, CUSTOMER shall carry commercial general liability insurance
against loss or damage caused to any third party, including WESTWAY, its
officers, employees and agents by its product or by its agents and/or employees
in amounts not less than $3,000,000.00, naming WESTWAY as an additional insured
and issued by an insurance company duly licensed in the state in which the
Facility is located and having a Best’s rating of not less than A.


 


16.04 Certificates


 


Prior to the commencement
of this Agreement, CUSTOMER and WESTWAY shall each furnish to the other a
certificate(s) properly executed by the insurance carriers, showing all
insurance required hereunder to be in force. Each certificate shall provide for
thirty (30) days written notice to such other party, prior to the cancellation
of or any changes effecting same.


 


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17.
REGULATORY COMPLIANCE


 


17.01 Compliance with Law


 


WESTWAY warrants that, in
rendering services to CUSTOMER, it will comply at all times with all applicable
Federal, State and local laws, rules and regulations and shall obtain
certificates, permits, documents, and authorizations required for the lawful
operations of the terminal and the handling and storage of CUSTOMER’s Product.
WESTWAY agrees to indemnify and hold harmless CUSTOMER and CUSTOMER’s agents,
employees, officers and directors, for and against any fines, losses, damages
or expenses, including without limitation, reasonable legal fees, resulting
from WESTWAY’s violation of such laws and/or regulations. CUSTOMER shall comply
with all federal, state and other governmental laws, rules and regulations
applicable to the ownership of Product, shall obtain all certificates, permits,
documents and authorizations required for the lawful ownership of the Product
and shall be liable to WESTWAY for any fines, losses, damages or expenses,
including without limitation, reasonable legal fees, incurred by WESTWAY if
CUSTOMER fails to do so.


 


If any Federal, State or
local laws, rules or regulations are hereafter amended, modified or
supplemented so as to require alterations or additions to the Facility for the
storage and handling of Product, WESTWAY shall inform CUSTOMER accordingly and
shall submit to CUSTOMER an estimate of the costs of the required alterations
or additions. CUSTOMER shall inform WESTWAY within fifteen (15) days of its
receipt of said notice and estimate, whether or not it will pay said costs. If
CUSTOMER declines, and if the parties are unable to resolve the matter by
mutual agreement, CUSTOMER shall remove all Product stored in the Facility
within thirty (30) days after notifying WESTWAY that CUSTOMER will not assume
the costs of such alterations or additions, and if terminated within the first
four years of the contract, CUSTOMER will pay WESTWAY the termination charge
set forth in Section 9.03 applicable at the time Product is removed from the
tank.


 


WESTWAY shall promptly
advise CUSTOMER by oral notice, followed by written communication, of any
material environmental condition. By material environmental condition is meant
receipt of notification of non compliance with federal, state, or local
environmental law, regulation, or statute which does or may present a
significant or substantial hazard or threat to human health or the environment,
or any occurrence which may significantly impair the operation of the Facility.
The existence of a material environmental condition not promptly remedied shall
be grounds for termination.


 


18.
NONASSIGNABILITY


 


Neither party shall
assign or transfer this Agreement or any of such party’s right or obligations
hereunder without the prior written consent of the other party, which shall not
be unreasonably withheld.


 


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19.
CHOICE OF LAW; CONFLICT


 


This Agreement shall be
governed by and construed according to the laws of the states in which the
facilities employed to store CUSTOMER’s Products have their physical situs.


 


In the event of conflict
between the provisions of the Statement of Terms and Conditions and either the
Master Agreement dated February 15, 2006, to which this Statement is appended
or any associated Schedule(s) I, the latter shall govern.


 


 


	
  ACCEPTED

  	
   

  	
  ACCEPTED

  
	
   

  	
   

  	
   

  
	
  WEST CENTRAL
  COOPERATIVE

  	
   

  	
  WESTWAY TERMINAL
  COMPANY INC.

  
	
   

  	
   

  	
   

  
	
  By 

  	
    /s/ NILE D.
  RAMSBOTTOM

  	
   

  	
  By

  	
    /s/ WAYNE
  DRIGGERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
     VP

  	
   

  	
  Title

  	
     President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
     2/17/06

  	
   

  	
  Date

  	
     2/21/06

  	
   

  
										



 


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