HomeMy WebLinkAbout2012-091 dJ • � •
SECOND AMENDMENT TO FEEDSTOCK SUPPLY AGREEMENT
CONCERNING CASH DEPOSIT AND ESCROW AGREEMENT OF
SECTION 7 .4
THIS AMENDMENT TO FEEDSTOCK SUPPLY AGREEMENT CONCERNING
CASH DEPOSIT AND ESCROW AGREEMENT OF SECTION 7.4 (" Escrow
Amendment ") is entered into as of thisc)�may of April , 2012 , by and between the Indian River
County Solid Waste Disposal District, a special district of Indian River County, Florida
(" District") and INEOS New Planet BioEnergy , LLC , a Delaware limited liability company
(" Company") . (Capitalized terms that are used but not defined in this Second Amendment shall
have the meaning set forth in the Parties ' Feedstock Agreement or Landfill Gas Interconnect
Agreement, which are described below ) .
WITNESSETH
WHEREAS , on July 15 , 2011 , District and Company entered into that certain Feedstock
Supply Agreement ( " Feedstock Agreement") ;
WHEREAS , section 7 . 4 of the Feedstock Agreement requires Company to provide an
irrevocable "direct pay" letter of credit in the amount of two hundred thousand dollars
( $ 200 , 000 . 00) to ensure the performance of Company under the Feedstock Agreement ;
WHEREAS , Company prefers to provide a cash deposit of two hundred thousand dollars
($ 200 , 000 . 00) , in lieu of providing a letter of credit as required in section 7 . 4 of the Feedstock
Agreement, which cash deposit would serve the same purpose as the letter of credit — namely, to
ensure the performance of Company under- the Feedstock Agreement ;
WHEREAS , District is willing to accept a cash deposit in lieu of a letter of credit., under
the terms and conditions of this Escrow Amendment ; and
NOW, THEREFORE , in consideration of the mutual undertakings herein and other
good and valuable consideration , the receipt and adequacy of which is hereby acknowledged , the
Parties agree, as follows :
1 . Recitals . The above recitals are true and correct and are incorporated herein .
2 . Cash Deposit/ Escrow . Company shall deposit with District the cash amount of
two hundred thousand dollars ($ 200 , 000 . 00) which District shall hold in escrow as security to
ensure the performance of Company under the Feedstock Agreement . In the event of a default
by Company in its performance under the Feedstock Agreement , District may draw upon the
escrowed funds to satisfy any losses , damages or other amounts due District by reason of
Company ' s default . To the extent possible , the cash deposit shall exist for the same purposes ,
and shall be available to District to the same extent, as the letter of credit described in section 7 . 4
of the Feedstock Agreement .
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3 . Amendment of Section 7. 4 of the Feedstock Agreement. Upon receipt of the
cash deposit by District , section 7 . 4 of the Feedstock Agreement shall be deemed to be amended
to permit Company to post the cash deposit in lieu of the letter of credit. At any time during the
term of the Feedstock Agreement, Company shall be permitted to substitute the letter of credit
described in section 7 . 4 for the cash deposit, and District shall return the cash deposit ,
with
interest earned thereon , calculated at the effective Federal Funds Rate as listed on the Federal
Reserve website, to Company. District shall be entitled to deduct from the returned amount ,
10% of the interest earnings calculated above to cover administrative expenses incurred by
District with respect to the escrowed funds .
4 . No Third Party Beneficiaries . The funds deposited hereunder shall exist for the
sole benefit , protection and use of District . The funds shall not exist for the benefit , protection or
use of any third party.
5 . Term. This Escrow Amendment shall terminate upon the earlier of: (a) the
withdrawal or return of all escrowed funds , or ( b ) the expiration of the Feedstock Agreement,
without default by Company .
6 . Full Force . Parties agree that , except as amended by this Escrow Amendment ,
related to the subject matter herein, the terms and provisions of the Feedstock Agreement shall
remain in full force and effect .
[ Signatures follow ]
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IN WITNESS WHEREOF, this Escrow Amendment is executed by the authorized
representatives of the Parties, as of the day and year first above written .
INDIAN RIVER COUNTY SOLID WASWF6 ,,.4
ATTEST : Jeffrey K . Barton , DISPOSAL DISTRICT (" District" ) ��s • . • • . . . b0/6'
Clerk ol,'Courts - �•, • ' of
BybLi By:
Deputy lerk Gary C . eeler, Chairman
•s '
Approved by BCC : - ' .2Q12, • • `N�`�
g
Approved : Approved as to form and legal sufficiency :
i
Jaseph . Baird, County Administrator Alan S . ich , r. , Deputy County Attorney
l Signed, sealed and delivered in the presence of: INEOS NEW PLANET BIOENERGY, LLC
(" Company")
Print name : n � ; raj ! . C ' . ;� �: ; s
By:
?r r� Print name :
Print name : I r' n ,,'VzrwK Print title :
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