Common use of Bilateral Transactions Clause in Contracts

Bilateral Transactions. (a) Subject to the terms hereof, Project Company hereby grants PAP the exclusive right to market, purchase and sell all of Project Company’s Distillers Grains (which, as of the date hereof, is approximately 533,000 tons-per-year) commencing June 30, 2011 and continuing through the expiration or early termination of this Agreement, provided, that during the continuance of any default by PAP that would allow Project Company to terminate this Agreement pursuant to Section 4.3 or during the 30-day cure period provided in Section 4.3(c) (notwithstanding such cure period), if PAP is not performing its obligations with respect to marketing the Project Company’s Distillers Grains or during the continuance of any Force Majeure Event (including the effects thereof) that renders PAP unable to perform its obligations under this Agreement, then Project Company shall have the right to engage any other Person to market, purchase and sell the Project Company’s Distillers Grains and PAP shall not be entitled to any compensation (including Incentive Fees) with respect to any replacement services provided by such Person. PAP shall use its reasonable commercial efforts to solicit, negotiate and enter into, and PAP shall perform, Bilateral Transactions with Third Parties. PAP shall have absolute discretion in the solicitation, negotiation, administration (including the collection of payments), enforcement and execution of Bilateral Transactions and all sales of Distillers Grains produced by the Facility shall be effectuated by Bilateral Transactions. PAP shall not enter into any transaction in respect of the Project Company’s Distillers Grains that (i) is not a Bilateral Transaction or (ii) requires deliveries of WDG or DDG more than one hundred (180) days after the date of execution of such transaction, without the prior written consent of the Project Company, which consent may be withheld by Project Company in its discretion. Project Company hereby grants PAP the power and authority necessary to perform its obligations and exercise its rights hereunder. (b) As further described in Sections 2.3, 2.4 and 2.6 below and except as otherwise provided herein, Project Company shall provide Distillers Grains to PAP free and clear of all liens and encumbrances. (c) PAP shall perform its obligations hereunder and under Bilateral Transactions in accordance with this Agreement, applicable Laws and Good Industry Practice and shall use commercially reasonable efforts to maximize the proceeds generated from the sale of Distillers Grains.

Bilateral Transactions. (a) Subject to the terms hereof, Project Company hereby grants PAP Kinergy the exclusive right to market, purchase and sell all of Project Company’s Distillers Grains (which, as of the date hereof, is approximately 533,000 tons-per-year) Ethanol commencing on June 30, 2011 and continuing through the expiration or early termination of this Agreement, provided, that during the continuance of any default by PAP Kinergy that would allow Project Company to terminate this Agreement pursuant to Section 4.3 or during the 30-day cure period provided in Section 4.3(c) (notwithstanding such cure period), if PAP Kinergy is not performing its obligations with respect to marketing the Project Company’s Distillers Grains Ethanol or during the continuance of any Force Majeure Event (including the effects thereof) that renders PAP Kinergy unable to perform its obligations under this Agreement, then Project Company shall have the right to engage any other Person to market, purchase and sell the Project Company’s Distillers Grains Ethanol and PAP Kinergy shall not be entitled to any compensation (including Incentive Fees) with respect to any replacement services provided by such Person. PAP Kinergy shall use its reasonable commercial efforts to solicit, negotiate and enter into, and PAP Kinergy shall perform, Bilateral Transactions with Third Parties. PAP Kinergy shall have absolute discretion in the solicitation, negotiation, administration (including the collection of payments), enforcement and execution of Bilateral Transactions and all sales of Distillers Grains Ethanol produced by the Facility shall be effectuated by Bilateral Transactions. PAP Kinergy shall not enter into any transaction in respect of the Project Company’s Distillers Grains Ethanol that (i) is not a Bilateral Transaction or Transaction; (ii) requires deliveries of WDG or DDG ethanol more than one hundred eighty (180) days after the date of execution of such transactiontransaction or (iii) is with a counterparty that does not satisfy the Minimum Rating Criteria, in each case without the prior written consent of the Project Company, which consent may be withheld by Project Company in its discretion. Project Company hereby grants PAP Kinergy the power and authority necessary to perform its obligations and exercise its rights hereunder. (b) As further described in Sections 2.3, 2.4 and 2.6 below and except as otherwise provided herein, Project Company shall provide Distillers Grains Ethanol to PAP Kinergy free and clear of all liens and encumbrances. (c) PAP Kinergy shall perform its obligations hereunder and under Bilateral Transactions in accordance with this Agreement, applicable Laws and Good Industry Practice and shall use commercially reasonable efforts to maximize the proceeds generated from the sale of Distillers GrainsEthanol. (d) Kinergy shall at all times maintain available lines of credit of not less than $5,000,000.

Bilateral Transactions. (a) Subject to the terms hereof, Project Company hereby grants PAP the exclusive right to market, purchase and sell all of Project Company’s Distillers Grains (which, as of the date hereof, is approximately 533,000 [__],000 tons-per-year) commencing June 30, 2011 and continuing through the expiration or early termination of this Agreement), provided, that during the continuance of any default by PAP that would allow Project Company to terminate this Agreement pursuant to Section 4.3 or during the 30-day cure period provided in Section 4.3(c) (notwithstanding such cure period), if PAP is not performing its obligations with respect to marketing the Project Company’s Distillers Grains or during the continuance of any Force Majeure Event (including the effects thereof) that renders PAP unable to perform its obligations under this Agreement, then Project Company shall have the right to engage any other Person to market, purchase and sell the Project Company’s Distillers Grains and PAP shall not be entitled to any compensation (including Incentive Fees) with respect to any replacement services provided by such Person. PAP shall use its reasonable commercial efforts to solicit, negotiate and enter into, and PAP shall perform, Bilateral Transactions with Third Parties. PAP shall have absolute discretion in the solicitation, negotiation, administration (including the collection of payments), enforcement and execution of Bilateral Transactions and all sales of Distillers Grains produced by the Facility shall be effectuated by Bilateral Transactions. PAP shall not enter into any transaction in respect of the Project Company’s Distillers Grains that (i) is not a Bilateral Transaction or (ii) requires deliveries of WDG or DDG more than one hundred (180) days after the date of execution of such transaction, without the prior written consent of the Project Company, which consent may be withheld by Project Company in its discretion. Project Company hereby grants PAP the power and authority necessary to perform its obligations and exercise its rights hereunder. (b) As further described in Sections 2.3, 2.4 and 2.6 below and except as otherwise provided herein, Project Company shall provide Distillers Grains to PAP free and clear of all liens and encumbrances. (c) PAP shall perform its obligations hereunder and under Bilateral Transactions in accordance with this Agreement, applicable Laws and Good Industry Practice and shall use commercially reasonable efforts to maximize the proceeds generated from the sale of Distillers Grains.

Bilateral Transactions. (a) Subject to the terms hereof, Project Company hereby grants PAP Kinergy the exclusive right to market, purchase and sell all of Project Company’s Distillers Grains (which, as of the date hereof, is approximately 533,000 tons-per-year) commencing June 30, 2011 and continuing through the expiration or early termination of this AgreementEthanol, provided, that during the continuance of any default by PAP Kinergy that would allow Project Company to terminate this Agreement pursuant to Section 4.3 or during the 30-day cure period provided in Section 4.3(c) (notwithstanding such cure period), if PAP Kinergy is not performing its obligations with respect to marketing the Project Company’s Distillers Grains Ethanol or during the continuance of any Force Majeure Event (including the effects thereof) that renders PAP Kinergy unable to perform its obligations under this Agreement, then Project Company shall have the right to engage any other Person to market, purchase and sell the Project Company’s Distillers Grains Ethanol and PAP Kinergy shall not be entitled to any compensation (including Incentive Fees) with respect to any replacement services provided by such Person. PAP Kinergy shall use its reasonable commercial efforts to solicit, negotiate and enter into, and PAP Kinergy shall perform, Bilateral Transactions with Third Parties. PAP Kinergy shall have absolute discretion in the solicitation, negotiation, administration (including the collection of payments), enforcement and execution of Bilateral Transactions and all sales of Distillers Grains Ethanol produced by the Facility shall be effectuated by Bilateral Transactions. PAP Kinergy shall not enter into any transaction in respect of the Project Company’s Distillers Grains Ethanol that (i) is not a Bilateral Transaction or (ii) requires deliveries of WDG or DDG more than one hundred (180) days after with a counterparty that does not satisfy the date of execution of such transactionMinimum Rating Criteria, in each case without the prior written consent of the Project Company, which consent may be withheld by Project Company in its discretion. Project Company hereby grants PAP Kinergy the power and authority necessary to perform its obligations and exercise its rights hereunder. (b) As further described in Sections 2.3, 2.4 and 2.6 below and except as otherwise provided herein, Project Company shall provide Distillers Grains Ethanol to PAP Kinergy free and clear of all liens and encumbrances. (c) PAP Kinergy shall perform its obligations hereunder and under Bilateral Transactions in accordance with this Agreement, applicable Laws and Good Industry Practice and shall use commercially reasonable efforts to maximize the proceeds generated from the sale of Distillers GrainsEthanol. (d) Kinergy shall at all times maintain available lines of credit of not less than $5,000,000.

Bilateral Transactions. (a) Subject to the terms hereof, the Project Company hereby grants PAP Kinergy the exclusive right to market, purchase market and sell all of the Project Company’s Distillers Grains 's Ethanol (which, as of the date hereof, is estimated to be approximately 533,000 tons40 million gallons-per-year) commencing June 30, 2011 and continuing through the expiration or early termination of this Agreement, provided, that during the continuance of any default by PAP that would allow Project Company to terminate this Agreement pursuant to Section 4.3 or during the 30-day cure period provided in Section 4.3(c) (notwithstanding such cure period), if PAP is not performing its obligations with respect to marketing the Project Company’s Distillers Grains or during the continuance of any Force Majeure Event (including the effects thereof) that renders PAP unable to perform its obligations under this Agreement, then Project Company shall have the right to engage any other Person to market, purchase and sell the Project Company’s Distillers Grains and PAP shall not be entitled to any compensation (including Incentive Fees) with respect to any replacement services provided by such Person. PAP Kinergy shall use its reasonable commercial efforts to solicit, negotiate and enter into, and PAP Kinergy shall perform, Bilateral Transactions with Third Parties, and such Bilateral Transactions shall be served by the Facility. PAP Other than as set forth in Sections 2.1(e) and 2.7 below, Kinergy shall have absolute discretion in the solicitation, negotiation, administration (including the collection of payments), enforcement ) and execution of Bilateral Transactions and all sales of Distillers Grains Ethanol produced by the Facility shall be effectuated by Bilateral Transactions. PAP shall not enter into any transaction in respect of the Project Company’s Distillers Grains that (i) is not a Bilateral Transaction or (ii) requires deliveries of WDG or DDG more than one hundred (180) days after the date of execution of such transaction, without the prior written consent of the Project Company, which consent may be withheld by Project Company in its discretion. The Project Company hereby grants PAP Kinergy the power and authority necessary to perform its obligations and exercise its rights hereunder. (b) As further described in Sections 2.3, 2.4 2.5 and 2.6 2.7 below and except as otherwise provided herein, the Project Company shall provide Distillers Grains Ethanol to PAP Kinergy free and clear of all liens and encumbrancesencumbrances and otherwise operate the Facility as required to allow Kinergy to perform such Bilateral Transactions. (c) PAP In the event of a breach or default by a Third Party under any Bilateral Transaction, Kinergy shall (i) promptly notify the Project Company of any such breach and default and provide the Project Company from time to time with reasonably detailed information in respect of the same (including copies of all written communications in respect thereof) and (ii) at the Project Company's sole cost and expense and at the direction of the Project Company, use reasonable commercial efforts to exercise all rights and remedies available to it (including the commencement of litigation) with respect to such breach or default. (d) Kinergy shall perform its obligations hereunder and under Bilateral Transactions in accordance with this Agreement, applicable Laws Laws, applicable Permits and Good Industry Practice and shall use commercially reasonable efforts with the intent to maximize the proceeds generated from the sale of Distillers GrainsEthanol. Each of the Parties acknowledges that the Commercial Operations Date has not occurred as of the date of this Agreement and, accordingly, Kinergy may not be able to solicit, negotiate and/or enter into Bilateral Transactions until the Commercial Operations Date has occurred or is anticipated to occur in the then reasonable near future. (e) Notwithstanding anything to the contrary herein, Kinergy shall (i) not enter into any Bilateral Transaction with any Third Party that is the subject of an Act of Insolvency, (ii) not enter into any Bilateral Transaction that permits the applicable Third Party to pay for the Ethanol purchased under such Bilateral Transaction on a date which is more than 30 days after the Monthly Date in which such Ethanol is delivered to such Third Party, (iii) not enter into any Material Bilateral Transaction without the prior consent of the Project Company, (iv) not enter into any Bilateral Transactions which provide for the provision of Ethanol in excess of the amount of Ethanol available from the Facility (after giving effect to the Project Company's or Kinergy's existing contractual obligations and the scheduling provisions set forth in Section 2.7(b) below), (v) not enter into any Bilateral Transaction which does not excuse Kinergy from performing its obligations thereunder as a result of a Force Majeure Event (vi) not enter into any Bilateral Transaction during such time as the Facility cannot provide Ethanol due to a mechanical breakdown (including forced outage of the Facility), (vii) enter into Bilateral Transactions in its name (and not the name of the Project Company) and (viii) require that each Third Party make all payments under the applicable Bilateral Transaction to a segregated bank-account in the name of Kinergy (the "Account") and Kinergy shall cause the proceeds of all such Bilateral Transactions received by it to be deposited into the Account. (f) Each of the Parties agrees that Kinergy shall not request that the Project Company deliver Ethanol to Kinergy (or any Third Party designated by Kinergy) unless, as of the scheduled date of delivery, Kinergy has entered into a Bilateral Transaction with respect to such Ethanol.