Common use of Rail Cars Clause in Contracts

Rail Cars. (a) Seller agrees to transfer or cause its Affiliates to transfer to Buyer up to the number and types of railcars listed in Schedule 6.13(a). These railcars are leased by Seller and/or its Affiliates pursuant to various railcar leases and agreements with respect thereto (“Rail Car Agreements”). Seller has provided to Buyer copies of the applicable Rail Car Agreements, along with the lease rates and other fees that the counterparty of each Rail Car Agreement is currently charging Seller or its applicable Affiliates for the railcars that are the subject of the Rail Car Agreements (the “Lease Rates”). Seller and Buyer further agree to the terms set forth in Exhibit G and Schedule 6.13(c).‎ (b) Beginning promptly after Closing, Seller will coordinate with Buyer to schedule railcars from Seller’s or its Affiliates’ fleet into the Ethanol Plant as needed in the ordinary course of business, and as such cars come into the Ethanol Plant they will be identified by Buyer as railcars to be assigned or subleased to Buyer (“Qualifying Rail Cars”), until such time as all Qualifying Rail Cars have been identified. Only railcars that are in serviceable condition when they arrive at the Ethanol Plant will be used as Qualifying Rail Cars. Seller and Buyer shall negotiate terms of an inspection program for the Qualifying Rail Cars such that a baseline condition for each car is documented and Buyer is not liable for any damage or mechanical failure conditions that existed prior to Closing. As Qualifying Rail Cars are identified, Seller or its appropriate Affiliates and Buyer shall deliver to the counterparty of each Rail Car Agreement covering such Qualifying Rail Cars a letter: (i) requesting the assignment of the Rail Car Agreement covering such Qualifying Rail Cars from Seller or its respective Affiliate to Buyer, or (ii) requesting the release of such Qualifying Rail Cars under the applicable Rail Car Agreement, and the further lease by such counterparty to Buyer of such Qualifying Rail Cars. Once a Qualifying Rail Car becomes fully assigned to the Buyer, it will become a “Buyer Rail 30 Car”. Should the counterparty of any Rail Car Agreement refuse to consent to the assignment of Qualifying Railcars to Buyer, Seller will use reasonable efforts to provide substitute Qualifying Rail Cars. In no event shall Buyer or Seller be obligated to include Rail Cars for which the counterparty to the Rail Car Agreement seeks to modify the original terms so as to negatively impact either party. (c) To account for any difference between fair market rates and Lease Rates Seller and Buyer agree to true-up (as part of the Net Working Capital adjustment in Section 2.3) the difference between (i) sum of the present values of the product of the monthly Lease Rate multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Lease Charge”); and (ii) the sum of present values of the product of the applicable fair market rate listed on Schedule 6.13(c) for similarly situated railcars (the “Market Rates”) multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Market Charge”). If the Lease Charge is less than the Market Charge, Buyer shall pay to Seller the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. If the Lease Charge is greater than the Market Charge, Seller shall pay to Buyer the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. The annual discount rate to be used in determining the present value factor for the Market Charge and Lease Charge shall be equal to five percent (5%). The discount period for each monthly calculation will be from the middle of each month to the Closing Date. (d) Until such time as the parties complete the paperwork and secure the necessary counterparty consents to complete the assignment of the Qualifying Rail Cars to the Buyer, Seller shall, or shall cause their Affiliates to, allow Buyer to use the Qualifying Rail Cars on a temporary subleased basis (the “Loaned Cars”) such that, at any time, the total number and types of Buyer Rail Cars and Loaned Cars equals the number and types identified as Qualifying Rail Cars. Buyer shall reimburse Seller for all lease payments and other associated costs, payments or fees (including repair and maintenance costs) arising under the applicable Rail Car Agreements with respect to the use by Buyer of the related Loaned Cars. Buyer may elect to discontinue the use of any Loaned Car by written notice to Seller, in which case, upon return of such Loaned Car to Seller, Buyer shall no longer be responsible for any payments, costs or fees related thereto, and Seller shall not be responsible for providing a replacement Loaned Car. Buyer acknowledges and agrees that Seller may substitute other equivalent railcars for Loaned Cars, so long as the substituted railcars meet the criteria to be Qualifying Rail Cars. The parties hereto agree to (or to cause their applicable Affiliates to) work together in a commercially reasonable manner to manage the transition of the Loaned Cars hereunder. Buyer and Seller shall negotiate in good faith a sublease agreement that would further define terms of the Loaned Cars. Such sublease agreement may also account for the temporary use by Buyer of additional railcars that are not Qualifying Rail Cars. (e) Notwithstanding anything contained herein to the contrary, Seller’s sole obligations under this Agreement with respect to Required Consents necessary for the assignment to Buyer of the Qualifying Rail Cars shall be the delivery by Seller to the counterparties thereto of the letters described in Section 6.13(c) above and Seller’s joinder in the execution of any 31 documentation reasonably and customarily required by the counterparties to effectuate or otherwise document such assignments. Without limiting the foregoing, Buyer acknowledges that Seller shall not be required to provide any guarantees or other credit enhancement that may be necessary in order for Buyer to secure the necessary consent for the assignment of the Rail Car Agreements or for Buyer to secure its own railcar leases. Buyer and Seller shall cooperatively endeavor to complete the assignment of all Qualifying Rail Cars (including any substitutes therefor made in accordance with the provisions of Section 6.13(b) as promptly as reasonably possible after Closing, but in all events within three (3) months after Closing. Seller shall not be obligated to provide any Loaned Cars more than six (6) months following Closing, unless and only to the extent that Buyers’ failure to complete the assignment of all Qualifying Railcars (and substitutes therefor, as applicable) is the result of Seller’s failure to comply with its obligations under this Section 6.13. (f) Buyer shall indemnify, defend and hold harmless the Seller Indemnitees against any and all Losses arising from the use or misuse after the Closing by Buyer or its Affiliates of the Loaned Cars pursuant to this Section 6.13.

Rail Cars. (a) Seller agrees to transfer or cause its Affiliates to transfer to Buyer up 20 pressure tank railcars (used for LPG transport) to the Company. This represents the approximate number of such railcars currently used in connection with the normal operation of the Assets and types of railcars listed in Schedule 6.13(a)the Business. These railcars are leased by Seller and/or its Affiliates of the Company pursuant to various railcar rail car leases and agreements with respect thereto (“Rail Car Agreements”). Seller has provided to Buyer copies of the applicable Rail Car Agreements, along with the lease rates and other fees that the counterparty of each Rail Car Agreement is currently charging Seller or its applicable Affiliates for the railcars that are the subject of the Rail Car Agreements (the “Lease Rates”). Seller and Buyer further agree to the terms set forth in Exhibit G and Schedule 6.13(c).‎. (b) Beginning promptly after Closing, Seller Seller’s Transportation group will coordinate with a Company representative designated by Buyer to schedule railcars from Seller’s or its Affiliates’ fleet into the Ethanol Plant Refinery as needed in the ordinary course of business, and as such cars come into the Ethanol Plant Refinery they will be identified by Buyer as railcars to be assigned or subleased to Buyer the Company (“Qualifying Rail Cars”), until such time as all 20 such Qualifying Rail Cars have been identified. Only railcars that are in serviceable condition when they arrive at the Ethanol Plant Refinery will be used as Qualifying Rail Cars. Seller and Buyer shall negotiate terms of an inspection program for the Qualifying Rail Cars such that a baseline condition for each car is documented and Buyer is not liable for any damage or mechanical failure conditions that existed prior to Closing. As Qualifying Rail Cars are identified, Seller or its appropriate Affiliates Affiliate and Buyer shall deliver to the counterparty of each Rail Car Agreement covering such Qualifying Rail Cars a letter: (i) requesting the assignment of the Rail Car Agreement covering such Qualifying Rail Cars from Seller or its respective Affiliate to Buyer, or (ii) requesting the release of such Qualifying Rail Cars under the applicable Rail Car Agreement, and (ii) the further lease by such counterparty to Buyer the Company of such Qualifying Rail Cars. Once a Qualifying Rail Car becomes fully assigned to the BuyerCompany, it will become a “Buyer Company Rail 30 Car”. Should the counterparty of any Rail Car Agreement refuse to consent to the assignment of Qualifying Railcars to Buyer, Seller will use reasonable efforts to provide substitute Qualifying Rail Cars. In no event shall Buyer or Seller be obligated to include Rail Cars for which the counterparty to the Rail Car Agreement seeks to modify the original terms so as to negatively impact either party. (c) To account for any difference between fair market rates and Lease Rates Seller and Buyer agree to true-up (as part of the Net Working Capital adjustment in Section 2.3) the difference between (i) sum of the present values of the product of the monthly Lease Rate multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Lease Charge”); and (ii) the sum of present values of the product of the applicable fair market rate listed on Schedule 6.13(c) for similarly situated railcars (the “Market Rates”) multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Market Charge”). If the Lease Charge is less than the Market Charge, Buyer shall pay to Seller the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. If the Lease Charge is greater than the Market Charge, Seller shall pay to Buyer the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. The annual discount rate to be used in determining the present value factor for the Market Charge and Lease Charge shall be equal to five percent (5%). The discount period for each monthly calculation will be from the middle of each month to the Closing Date. (d) Until such time as the parties complete the paperwork and secure the necessary counterparty consents to complete the assignment of the Qualifying Rail Cars to the BuyerCompany, Seller shall, or shall cause their its Affiliates to, allow Buyer the Company to use the Qualifying Rail Cars on a temporary subleased basis (the “Loaned Cars”) such that, at any time, the total number and types of Buyer Company Rail Cars and Loaned Cars equals the number and types identified as Qualifying Rail Cars. Buyer shall cause the Company to reimburse Seller for all lease payments and other associated costs, payments or fees (including repair and maintenance costs) arising under the applicable Rail Car Agreements with respect to the use by Buyer the Company of the related Loaned Cars. Buyer may elect to discontinue the use of any Loaned Car by written notice to Seller, in which case, upon return of such Loaned Car to Seller, Buyer shall no longer be responsible for any payments, costs or fees related thereto, and Seller shall not be responsible for providing a replacement Loaned Car. Buyer acknowledges and agrees that Seller may substitute other equivalent railcars rail cars for Loaned Cars, so long as the substituted railcars rail cars meet the criteria to be Qualifying Rail Cars. The parties hereto agree to (or to cause their applicable Affiliates to) work together in a commercially reasonable manner to manage the transition of the Loaned Cars hereunder. Buyer and Seller shall negotiate in good faith a sublease agreement that would further define terms of the Loaned Cars. Such sublease agreement may also account for the temporary use by Buyer of additional railcars that are not Qualifying Rail Cars. (ed) Notwithstanding anything contained herein to the contrary, Seller’s sole obligations under this Agreement with respect to Required Third Person Consents necessary for the assignment to Buyer the Company of the Qualifying Rail Cars shall be the delivery by Seller to the counterparties thereto of the letters described in Section 6.13(c7.13(b) above and Seller’s joinder in the execution of any 31 documentation reasonably and customarily required by the counterparties to effectuate or otherwise document such assignments. Without limiting Buyer shall be obligated to negotiate with the foregoing, Buyer acknowledges that Seller shall not be required to provide any guarantees or other credit enhancement that may be necessary in order for Buyer to secure the necessary consent for the assignment lessors of the such Rail Car Agreements or for Buyer Qualifying Rail Cars in a commercially reasonable manner in an effort to secure its own railcar leasesenter into leases covering the Qualifying Rail Cars as soon as possible following Closing. Buyer and Seller shall cooperatively endeavor to complete the assignment of all Qualifying Rail Cars (including any substitutes therefor made in accordance with the provisions of Section 6.13(b7.13(b)) as promptly as reasonably possible after Closing, but in all events within three (3) 12 months after Closing. Seller shall not be obligated to provide any Loaned Cars more than six (6) 12 months following Closing, unless and only to the extent that Buyers’ Buyer’s failure to complete the assignment of all Qualifying Railcars (and substitutes therefor, as applicable) is the result of Seller’s failure to comply with its obligations under this Section 6.137.13. (fe) Buyer shall indemnify, defend and hold harmless the Seller Indemnitees against any and all Losses arising from the use or misuse after the Closing by Buyer or its Affiliates (including, after the Closing, the Company) of the Loaned Cars pursuant to this Section 6.137.13.

Rail Cars. (a) Seller agrees to transfer or cause its Affiliates to transfer to Buyer up and Supplier agree to the following railcar sharing arrangement: 15.1. Commencing as of the Effective Date, Buyer will provide, at no cost to Supplier, a number and types of private railcars listed in Schedule 6.13(a). These railcars are leased as periodically agreed to by Seller and/or its Affiliates pursuant to various railcar leases and agreements with respect thereto the Parties for support of Buyer’s requirements for Purchase Orders issued hereunder having the terms FCA Railcar (the “Rail Car AgreementsBuyer Railcar Allocation”). Seller has provided to Buyer copies of the applicable Rail Car Agreements, along with the lease rates and other fees that the counterparty of each Rail Car Agreement is currently charging Seller or its applicable Affiliates for the railcars that are the subject of the Rail Car Agreements (the “Lease Rates”). Seller and Buyer further agree to the terms set forth in Exhibit G and Schedule 6.13(c).‎ (b) Beginning promptly after Closing, Seller will coordinate with Buyer to schedule railcars from Seller’s or its Affiliates’ fleet into the Ethanol Plant as needed in the ordinary course of business, and as such cars come into the Ethanol Plant they will be identified by Buyer as railcars to be assigned or subleased to Buyer (“Qualifying Rail Cars”), until such time as all Qualifying Rail Cars have been identified. Only railcars that are in serviceable condition when they arrive at the Ethanol Plant will be used as Qualifying Rail Cars. Seller and Buyer shall negotiate terms of an inspection program for the Qualifying Rail Cars such that a baseline condition for each car is documented and Buyer is not liable for any damage or mechanical failure conditions that existed prior to Closing. As Qualifying Rail Cars are identified, Seller or its appropriate Affiliates and Buyer shall deliver to the counterparty of each Rail Car Agreement covering such Qualifying Rail Cars a letter: (i) requesting the assignment of the Rail Car Agreement covering such Qualifying Rail Cars from Seller or its respective Affiliate to Buyer, or (ii) requesting the release of such Qualifying Rail Cars under the applicable Rail Car Agreement, and the further lease by such counterparty to Buyer of such Qualifying Rail Cars. Once a Qualifying Rail Car becomes fully assigned to the Buyer, it will become a “Buyer Rail 30 Car”. Should the counterparty of any Rail Car Agreement refuse to consent to the assignment of Qualifying Railcars to Buyer, Seller will use reasonable efforts to provide substitute Qualifying Rail Cars. In no event shall Buyer or Seller be obligated to include Rail Cars for which the counterparty to the Rail Car Agreement seeks to modify the original terms so as to negatively impact either party. (c) To account for any difference between fair market rates and Lease Rates Seller and Buyer agree to true-up (as part of the Net Working Capital adjustment in Section 2.3) the difference between (i) sum of the present values of the product of the monthly Lease Rate multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Lease Charge”); and (ii) the sum of present values of the product of the applicable fair market rate listed on Schedule 6.13(c) for similarly situated railcars (the “Market Rates”) multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Market Charge”). If the Lease Charge is less than the Market Charge, Buyer shall pay any and all fees necessary to Seller introduce such rail cars into the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. If the Lease Charge is greater than the Market Charge, Seller shall pay rail system servicing deliveries to Buyer the amount in support of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereofthis Agreement. The annual discount rate to Buyer will not require that such railcars be used in determining the present value factor exclusively for the Market Charge and Lease Charge Buyer’s purchases under this Agreement. Supplier shall be equal to five percent (5%). The discount period for each monthly calculation will be from the middle of each month to the Closing Date. (d) Until such time as the parties complete the paperwork and secure the necessary counterparty consents to complete the assignment of the Qualifying Rail Cars to the Buyer, Seller shall, or shall cause their Affiliates to, allow Buyer to use the Qualifying Rail Cars on a temporary subleased basis (the “Loaned Cars”) such that, at any time, the total number and types of Buyer Rail Cars and Loaned Cars equals the number and types identified as Qualifying Rail Cars. Buyer shall reimburse Seller for all lease payments and other associated costs, payments or fees (including repair and maintenance costs) arising under the applicable Rail Car Agreements with respect to the use by Buyer of the related Loaned Cars. Buyer may elect to discontinue the use of any Loaned Car by written notice to Seller, in which case, upon return of such Loaned Car to Seller, Buyer shall no longer be responsible for any payments, costs or fees related theretosolely liable for, and Seller shall not be responsible for providing a replacement Loaned Car. Buyer acknowledges and agrees that Seller may substitute other equivalent railcars for Loaned Cars, so long as the substituted railcars meet the criteria to be Qualifying Rail Cars. The parties hereto agree to (or to cause their applicable Affiliates to) work together in a commercially reasonable manner to manage the transition of the Loaned Cars hereunder. Buyer and Seller shall negotiate in good faith a sublease agreement that would further define terms of the Loaned Cars. Such sublease agreement may also account for the temporary use by Buyer of additional railcars that are not Qualifying Rail Cars. (e) Notwithstanding anything contained herein to the contrary, Seller’s sole obligations under this Agreement with respect to Required Consents necessary for the assignment to Buyer of the Qualifying Rail Cars shall be the delivery by Seller to the counterparties thereto of the letters described in Section 6.13(c) above and Seller’s joinder in the execution of any 31 documentation reasonably and customarily required by the counterparties to effectuate or otherwise document such assignments. Without limiting the foregoing, Buyer acknowledges that Seller shall not be required to provide any guarantees or other credit enhancement that may be necessary in order for Buyer to secure the necessary consent for the assignment of the Rail Car Agreements or for Buyer to secure its own railcar leases. Buyer and Seller shall cooperatively endeavor to complete the assignment of all Qualifying Rail Cars (including any substitutes therefor made in accordance with the provisions of Section 6.13(b) as promptly as reasonably possible after Closing, but in all events within three (3) months after Closing. Seller shall not be obligated to provide any Loaned Cars more than six (6) months following Closing, unless and only to the extent that Buyers’ failure to complete the assignment of all Qualifying Railcars (and substitutes therefor, as applicable) is the result of Seller’s failure to comply with its obligations under this Section 6.13. (f) Buyer shall indemnify, defend indemnify and hold harmless the Seller Indemnitees Buyer from and against any and all Losses arising from the use or misuse after the Closing incurred by Buyer in connection with Supplier’s negligent possession, use, maintenance or its Affiliates other operation of such Buyer Railcar Allocation, except to the extent that any such Losses arise out of any negligence or willful misconduct on the part of Buyer. 15.2. Supplier shall at all times make available private railcars, at no cost to Buyer, consisting of Supplier’s private railcars (each a “Supplier Car”) or Buyer’s private railcars made available to Supplier, in a quantity equal to Buyer’s Railcar Allocation, necessary to satisfy any outstanding Buyer Purchase Order under this Agreement having the Incoterms FCA Railcar. 15.3. In addition, Supplier agrees to provide, if available, such quantity of Supplier Cars in excess of the Loaned Cars pursuant Buyer Railcar Allocation (each an “Additional Supplier Car”) in a timely *** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. manner, and as available, if necessary to adhere to the delivery date for the applicable Purchase Order. 15.4. Supplier agrees to invoice for Additional Supplier Car usage only if the net volume of Railcar Days in Service (as defined below) exceeds the total volume of Buyer’s Railcar Service Days Available (as defined below) as follows: 15.4.1. In the event the Buyer’s Railcar Service Days Available in any calendar month exceeds the Railcar Days in Service, the number of excess railcar days of availability (the “Buyer’s Excess Railcar Availability”) shall be carried over to the Buyer’s balance for use as a credit in future months when the Buyer’s Railcar Allocation is insufficient to satisfy the Railcar Days in Service. 15.4.2. In the event the Railcar Days in Service in any calendar month exceeds the Buyer’s Railcar Service Days Available inclusive of the Buyer’s Excess Railcar Availability balance, if any, (collectively the “Shortfall in Buyer’s Railcar Availability”) Supplier shall invoice the Buyer on a monthly basis for the amount of the Shortfall in Buyer’s Railcar Availability at the rate of $*** per railcar day. 15.5. Buyer shall be liable for and shall defend, indemnify, and hold harmless Supplier from any demurrage charges and any freight or similar transportation charges at Buyer’s destinations, except to the extent that such charges are due to Supplier’s gross negligence or willful misconduct or other actions by Supplier that cause such charges to be incurred. 15.6. Supplier shall be liable for and shall defend, indemnify, and hold harmless Buyer from any demurrage charges and any freight or similar transportation charges at Supplier’s origin(s) and destinations other than Buyer’s destinations, except to the extent such charges are due to Buyer’s gross negligence or willful misconduct or other actions by Buyer that cause such charges to be incurred. 15.7. For purposes of this Section 6.1315, (y) “Buyer’s Railcar Service Days Available” means the then current Buyer’s Railcar Allocation multiplied by the total number of days in a calendar month (e.g., Buyer has a Railcar Allocation of 100 cars and the calendar month has 30 days, the Buyer’s Railcar Service Days Available would be 100 cars x 30 days or 3,000 railcar days in that calendar month) and (z) “Railcar Days in Service” shall mean the total number of days in a calendar month of all private railcars released from Supplier’s originating sand plant(s) in support of FCA railcar shipments to Buyer, regardless of if the railcar is an Additional Supplier Railcar or Buyer supplied railcar, until such time the railcars are returned to the originating sand plant. Supplier shall present a rail tracking report supporting the calculation of the total Railcar Days in Service at the end of each calendar month. *** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Rail Cars. (a) Seller agrees to transfer or cause its Affiliates to transfer to Buyer up Company and Supplier agree to the following railcar sharing arrangement: i. Commencing as of the Option Commencement Date, Company will provide, at no cost to Supplier, a number and types private railcars as periodically agreed to by the Parties for support of railcars listed in Schedule 6.13(a). These railcars are leased by Seller and/or its Affiliates pursuant to various railcar leases and agreements with respect thereto Company’s requirements for Purchase Orders issued hereunder having the terms FCA Railcar (the “Rail Car AgreementsCompany Railcar Allocation”). Seller Company shall pay any and all fees necessary to introduce such rail cars into the rail system servicing deliveries to Company in support of this Agreement. Company will not require that such railcars be used exclusively for Company’s purchases under this Agreement. Supplier shall be solely liable for, and shall indemnify and hold *** Certain information in this document has provided to Buyer copies of the applicable Rail Car Agreements, along been omitted and filed separately with the lease rates Securities and other fees that the counterparty of each Rail Car Agreement is currently charging Seller or its applicable Affiliates for the railcars that are the subject of the Rail Car Agreements (the “Lease Rates”)Exchange Commission. Seller and Buyer further agree to the terms set forth in Exhibit G and Schedule 6.13(c).‎ (b) Beginning promptly after Closing, Seller will coordinate with Buyer to schedule railcars from Seller’s or its Affiliates’ fleet into the Ethanol Plant as needed in the ordinary course of business, and as such cars come into the Ethanol Plant they will be identified by Buyer as railcars to be assigned or subleased to Buyer (“Qualifying Rail Cars”), until such time as all Qualifying Rail Cars have Confidential treatment has been identified. Only railcars that are in serviceable condition when they arrive at the Ethanol Plant will be used as Qualifying Rail Cars. Seller and Buyer shall negotiate terms of an inspection program for the Qualifying Rail Cars such that a baseline condition for each car is documented and Buyer is not liable for any damage or mechanical failure conditions that existed prior to Closing. As Qualifying Rail Cars are identified, Seller or its appropriate Affiliates and Buyer shall deliver to the counterparty of each Rail Car Agreement covering such Qualifying Rail Cars a letter: (i) requesting the assignment of the Rail Car Agreement covering such Qualifying Rail Cars from Seller or its respective Affiliate to Buyer, or (ii) requesting the release of such Qualifying Rail Cars under the applicable Rail Car Agreement, and the further lease by such counterparty to Buyer of such Qualifying Rail Cars. Once a Qualifying Rail Car becomes fully assigned to the Buyer, it will become a “Buyer Rail 30 Car”. Should the counterparty of any Rail Car Agreement refuse to consent to the assignment of Qualifying Railcars to Buyer, Seller will use reasonable efforts to provide substitute Qualifying Rail Cars. In no event shall Buyer or Seller be obligated to include Rail Cars for which the counterparty to the Rail Car Agreement seeks to modify the original terms so as to negatively impact either party. (c) To account for any difference between fair market rates and Lease Rates Seller and Buyer agree to true-up (as part of the Net Working Capital adjustment in Section 2.3) the difference between (i) sum of the present values of the product of the monthly Lease Rate multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Lease Charge”); and (ii) the sum of present values of the product of the applicable fair market rate listed on Schedule 6.13(c) for similarly situated railcars (the “Market Rates”) multiplied by the number of railcars that are Qualifying Rail Cars for each month remaining on the term of the Rail Car Agreement covering such Qualifying Rail Cars (the “Market Charge”). If the Lease Charge is less than the Market Charge, Buyer shall pay to Seller the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. If the Lease Charge is greater than the Market Charge, Seller shall pay to Buyer the amount of the difference between the Lease Charge and the Market Charge as part of the Working Capital adjustment in Section 2.3(d) hereof. The annual discount rate to be used in determining the present value factor for the Market Charge and Lease Charge shall be equal to five percent (5%). The discount period for each monthly calculation will be from the middle of each month to the Closing Date. (d) Until such time as the parties complete the paperwork and secure the necessary counterparty consents to complete the assignment of the Qualifying Rail Cars to the Buyer, Seller shall, or shall cause their Affiliates to, allow Buyer to use the Qualifying Rail Cars on a temporary subleased basis (the “Loaned Cars”) such that, at any time, the total number and types of Buyer Rail Cars and Loaned Cars equals the number and types identified as Qualifying Rail Cars. Buyer shall reimburse Seller for all lease payments and other associated costs, payments or fees (including repair and maintenance costs) arising under the applicable Rail Car Agreements requested with respect to the use by Buyer of the related Loaned Carsomitted portions. Buyer may elect to discontinue the use of any Loaned Car by written notice to Seller, in which case, upon return of such Loaned Car to Seller, Buyer shall no longer be responsible for any payments, costs or fees related thereto, harmless Company from and Seller shall not be responsible for providing a replacement Loaned Car. Buyer acknowledges and agrees that Seller may substitute other equivalent railcars for Loaned Cars, so long as the substituted railcars meet the criteria to be Qualifying Rail Cars. The parties hereto agree to (or to cause their applicable Affiliates to) work together in a commercially reasonable manner to manage the transition of the Loaned Cars hereunder. Buyer and Seller shall negotiate in good faith a sublease agreement that would further define terms of the Loaned Cars. Such sublease agreement may also account for the temporary use by Buyer of additional railcars that are not Qualifying Rail Cars. (e) Notwithstanding anything contained herein to the contrary, Seller’s sole obligations under this Agreement with respect to Required Consents necessary for the assignment to Buyer of the Qualifying Rail Cars shall be the delivery by Seller to the counterparties thereto of the letters described in Section 6.13(c) above and Seller’s joinder in the execution of any 31 documentation reasonably and customarily required by the counterparties to effectuate or otherwise document such assignments. Without limiting the foregoing, Buyer acknowledges that Seller shall not be required to provide any guarantees or other credit enhancement that may be necessary in order for Buyer to secure the necessary consent for the assignment of the Rail Car Agreements or for Buyer to secure its own railcar leases. Buyer and Seller shall cooperatively endeavor to complete the assignment of all Qualifying Rail Cars (including any substitutes therefor made in accordance with the provisions of Section 6.13(b) as promptly as reasonably possible after Closing, but in all events within three (3) months after Closing. Seller shall not be obligated to provide any Loaned Cars more than six (6) months following Closing, unless and only to the extent that Buyers’ failure to complete the assignment of all Qualifying Railcars (and substitutes therefor, as applicable) is the result of Seller’s failure to comply with its obligations under this Section 6.13. (f) Buyer shall indemnify, defend and hold harmless the Seller Indemnitees against any and all Losses arising from incurred by Company in connection with Supplier’s negligent possession, use, maintenance or other operation of such Company Railcar Allocation, except to the use extent that any such Losses arise out of any negligence or misuse after willful misconduct on the Closing by Buyer part of Company. ii. Supplier shall at all times make available private railcars, at no cost to Company, consisting of Supplier’s private railcars (each a “Supplier Car”) or its Affiliates Company’s private railcars made available to Supplier, in a quantity equal to Company’s Railcar Allocation, necessary to satisfy any outstanding Company Purchase Order under this Agreement having the Incoterms FCA Railcar. iii. In addition, Supplier agrees to provide, if available, such quantity of Supplier Cars in excess of the Loaned Cars pursuant Company Railcar Allocation (each an “Additional Supplier Car”) in a timely manner, and as available, if necessary to adhere to the delivery date for the applicable Purchase Order. iv. Supplier agrees to invoice for Additional Supplier Car usage only if the net volume of Railcar Days in Service (as defined below) exceeds the total volume of Company’s Railcar Service Days Available (as defined below) as follows: (1) In the event the Company’s Railcar Service Days Available in any calendar month exceeds the Railcar Days in Service, the number of excess railcar days of availability (the “Company’s Excess Railcar Availability”) shall be carried over to the Company’s balance for use as a credit in future months when the Company’s Railcar Allocation is insufficient to satisfy the Railcar Days in Service. (2) In the event the Railcar Days in Service in any calendar month exceeds the Company’s Railcar Service Days Available inclusive of the Company’s Excess Railcar Availability balance, if any, (collectively the “Shortfall in Company’s Railcar Availability”) Supplier shall invoice the Company on a monthly basis for the amount of the Shortfall in Company’s Railcar Availability at the rate of Supplier’s actual cost to own and operate such rail cars, including , without limitation, the cost to operate and any insurance thereon, but excluding the cost to introduce such cars into the system. v. Company shall be liable for and shall defend, indemnify, and hold harmless Supplier from any demurrage charges and any freight or similar transportation charges at Company’s destinations, except to the extent that such *** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. charges are due to Supplier’s gross negligence or willful misconduct or other actions by Supplier that cause such charges to be incurred. vi. Supplier shall be liable for and shall defend, indemnify, and hold harmless Company from any demurrage charges and any freight or similar transportation charges at Supplier’s origin(s) and destinations other than Company’s destinations, except to the extent that such charges are due to Company’s gross negligence or willful misconduct or other actions by Company that cause such charges to be incurred. vii. For purposes of this Section 6.131.e, (y) “Company’s Railcar Service Days Available” means the then current Company’s Railcar Allocation multiplied by the total number of days in a calendar month (e.g., Company has a Railcar Allocation of 100 cars and the calendar month has 30 days, the Company’s Railcar Service Days Available would be 100 cars x 30 days or 3,000 railcar days in that calendar month) and (z) “Railcar Days in Service” shall mean the total number of days in a calendar month of all private railcars released from Supplier’s originating sand plant(s) in support of FCA railcar shipments to Company, regardless of if the railcar is an Additional Supplier Railcar or Company supplied railcar, until such time the railcars are returned to the originating sand plant. Supplier shall present a rail tracking report supporting the calculation of the total Railcar Days in Service at the end of each calendar month.