ETHANOL SALES AND MARKETING AGREEMENT
Exhibit 10.9
Portions of this Exhibit have been omitted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission. The omissions have been indicated by asterisks
(“*****”), and the omitted text has been filed separately with the Securities and Exchange
Commission.
ETHANOL SALES AND
MARKETING AGREEMENT
MARKETING AGREEMENT
THIS ETHANOL SALES AND MARKETING AGREEMENT (this “Agreement”) is made effective as of February 1,
2007 (the “Effective Date”) by and between Provista Renewable Fuels Marketing, LLC, with offices at
0000 Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx, XX 00000 (“Provista”), and Big River Resources Grinnell,
LLC, with offices at 15210 000xx Xxxxxx Xxxx Xxxxxxxxxx, XX 00000 (“Customer”). Any
reference herein to a “Party” shall refer to Provista or Customer individually, and any reference
herein to “Parties” shall refer to both Provista and Customer.
RECITALS
WHEREAS, Customer has constructed or plans to construct an ethanol production facility in Grinnell,
Iowa (the “Facility”).
WHEREAS, Customer desires to sell, and Provista desires to market on customer’s behalf, the entire
output of ethanol (which is a clear odorless liquid produced for use as a motor fuel made from
fermented grain being approximately 200 proof alcohol produced by Customer at the Facility, which
also includes any blends, including but limited to E85, made from ethanol, and is referred to
hereinafter as the “Ethanol”) produced at the Facility; and
WHEREAS, Customer and Provista each desire to agree in advance of such sale and purchase of the
Ethanol to the price formula, payment, delivery and other terms thereof in consideration of the
mutually agreed performance of the other pursuant to the terms of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and all of the representations, warranties,
undertakings, covenants, promises and agreements set forth herein, which Customer and Provista each
acknowledge are adequate and sufficient, Customer and Provista do hereby agree as follows:
| I. | DEFINITIONS AND INTERPRETATION. |
A. Applicability. The definitions in this Section I. apply to this Agreement. Any
word, phrase or expression that is not defined in this Agreement and that has a generally
accepted meaning in the custom and usage in the ethanol industry in the United States shall
have that meaning in this Agreement.
B. “ASTM” is defined as the American Society for Testing and Materials. “ASTM D-4806” is
the standard specification for denatured fuel ethanol to be blended with gasolines for use
as an automotive spark-ignition engine fuel.
Ethanol Marketing Template Version 2.0
C. “Buyer” is defined as the entity to whom Provista sells Ethanol.
D. “Commencement Date” is defined as the day that Customer notifies Provista that the
Facility is ready for operation.
E. “Execution Costs” are defined as: (i) the actual costs charged by a third party, or
otherwise incurred, for freight and/or transportation of the Ethanol from the Facility to
Buyer including, but not limited to, charges and fees for any and all rail car leases,
Ethanol losses normally incurred as a result of the loading and unloading of the product
during transportation process, interim storage and/or terminalling incurred prior to such
delivery to Buyer, (ii) insurance, and (iii) all other costs and charges charged by a third
party in connection with such transportation and delivery to Provista’s customer, without
xxxx-up by Provista, and without charge for Provista’s administrative costs.
F. “Facility” means Customer’s ethanol production location in Grinnell, Iowa.
G. “Gallon” means one U.S. gallon of Ethanol at 60 degrees Fahrenheit, in accordance with
customary industry weights and measures.
H. “Initial Term” is defined as a term of three (3) years from the Commencement Date.
I. “Renewal Terms” are defined as consecutive terms of one (1) year each after the Initial
Term unless this agreement is terminated as provided in Section II.A.
| II. | TERM OF AGREEMENT; TERMINATION. |
A. Term. This Agreement shall be effective and binding as of the Effective Date;
provided, however, that the obligations of Provista under this Agreement, and the
obligations of Customer under this Agreement, shall commence on the Commencement Date and
shall continue for the Initial Term. After the expiration of the Initial Term, this
Agreement shall automatically renew for the Renewal Terms, unless terminated by Provista or
Customer effective as of the end of the Initial Term, or the then existing one (1) year
Renewal Term, upon at least ninety (90) days’ prior written notice. Notwithstanding
anything to the contrary in this Section II.A.: (i) either party hereto may terminate this
Agreement upon thirty (30) days’ written notice if Customer has not delivered a certificate
from an authorized officer of Customer notifying Provista on or before June 1, 2007, that
all the conditions to the
closing of the construction financing for the Facility have been satisfied or waived, and
(ii) this Agreement may be terminated as provided in Sections II.B. and/or II.C. below.
B. Early Termination by Customer as a Result of Provista’s Breach. In the event
that Provista fails or refuses to comply with any material provision of this Agreement, then
Customer shall have the right to elect to terminate this Agreement by giving Provista at
least thirty (30) calendar days’ written notice prior to the effective date of termination,
setting forth the reason(s) for termination. Provista shall have the right to cure the
breach within such thirty (30) day period. If said breach is cured within such time period,
the notice of termination to Provista shall be void. However, if the breach is not cured
within
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such time period, the termination shall be effected. The exercise by Customer of any
rights reserved under this Section shall be without prejudice to any claim for damages or
for any other right under this Agreement or applicable law.
C. Early Termination by Provista as a Result of Customer’s Breach. In the event
that Customer fails or refuses to comply with any material provision of this Agreement, then
Provista shall have the right to elect to terminate this Agreement by giving Customer at
least thirty (30) calendar days’ written notice prior to the effective date of termination,
setting forth the reason(s) for termination. Customer shall have the right to cure the
breach within such thirty (30) day period. If said breach is cured within such time period,
the notice of termination to Customer shall be void. However, if the breach is not cured
within such time period, the termination shall be effected. The exercise by Provista of any
rights reserved under this Section shall be without prejudice to any claim for damages or
any other right under this Agreement or applicable law.
D. Survival. All obligations, promises and agreements of both Customer and Provista
that expressly, or by their nature, survive the expiration or termination of this Agreement
including, but not limited to, each of the Party’s monetary obligations and indemnification
obligations herein, shall continue in full force and effect subsequent to, and
notwithstanding, expiration or termination of this Agreement until they are satisfied, or by
their nature expire.
| III. | SALE AND MARKETING OF THE ETHANOL. |
A. Purchase and Sale. Customer agrees to sell to Provista, and Provista agrees to
purchase from Customer, at prices determined in accordance with this Agreement, all of the
Ethanol produced at the Facility, subject to all terms and conditions set forth in this
Agreement; provided however that Provista shall be relieved of its obligation to purchase
all of the Ethanol produced at the Facility when Provista presents a sales contract to
Customer, and Customer, for whatever reason, declines to accept such sales contract. In
such cases, Provista shall incur no liability for its failure to purchase all the Ethanol
produced at the Facility. Provista agrees to purchase all the Ethanol delivered in
accordance with this Agreement notwithstanding that the Facility may be operating at less
than full capacity. Customer estimates, but it does not represent or warrant, that on an
annual basis, it shall make available for delivery to Provista approximately 100,000,000
gallons of Ethanol provided that each party hereto agrees that Customer has no obligation to
produce such amount of Ethanol and shall incur no liability by reason of its failure to make
such amount of Ethanol available for delivery except for any and all
contractual commitments Provista may have entered into on behalf of Customer as of Effective
Date or as otherwise specifically provided for herein.
B. Delivery. For purposes of this Section III., “Delivery” of Ethanol is defined as
the actual transfer of Ethanol to the possession of Buyer at the Delivery Point. For
purposes of this Section III., “Delivery Point” is either: (1) the outlet flange
transferring Ethanol into Buyer’s rail cars or trucks at the Facility, or (2) if such rail
cars or trucks are not the Buyer’s, then when the Ethanol is delivered to Buyer’s specified
destination, and the title will remain with Provista until such delivery. Provista and/or
Provista’s agents shall be given access to the Facility as reasonably necessary for Provista
and/or Provista’s agents to arrange for Delivery of the Ethanol to Buyer. With Customer’s
consent, which
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consent shall not be unreasonably withheld or delayed, Provista shall
schedule the loading and shipping of all outbound Ethanol purchased hereunder, but all labor
and equipment necessary to load trucks and rail cars shall be supplied by Customer without
charge to Provista. Execution Costs associated with the transportation of the Ethanol to
Buyers will be reviewed by the “Marketing Committee” (as that term is defined in Section
III.I.) in an effort to help Customer maximize its net price for the Ethanol delivered
hereunder.
C. Handling and Title. Customer agrees to handle the Ethanol in a good and
workmanlike manner in accordance with Provista’s reasonable written requirements conforming
to normal industry practice. Customer shall maintain the truck and rail loading facilities
at the Facility in safe operating condition in accordance with normal industry standards and
will visually inspect all trucks and rail cars to assure cleanliness so as to avoid
contamination from contaminants apparent to the naked eye. Customer shall be responsible
for any loss, claim, damage and/or expense arising from, or out of: (i) Customer’s
negligence in handling the Ethanol, and/or (ii) Customer’s failure to handle the Ethanol in
accordance with Provista’s reasonable written requirements and normal industry practice
including, but not limited to, loss, claim, damage and/or expense arising or out of trucks
and/or rail cars that are overfilled at the Facility. Provista agrees that it will be
responsible for any damage or injury to persons or property at the Facility as a result of
Provista’s own negligence or willful misconduct and that Provista will follow all safety
rules and procedures reasonably promulgated by Customer and provided to Provista in writing.
In the event of a transfer to a Delivery Point as defined in Section III.B(1), title, risk
of loss and full shipping responsibility shall pass to Provista, and then to Buyer, at the
Delivery Point, subject to the terms and conditions of this Agreement. In the event of a
transfer to a Delivery Point as defined in Section III.B(2), title, risk of loss, and full
shipping responsibility shall pass to Provista upon the transfer of the Ethanol into the
rail cars or trucks and pass to Buyer at the Delivery Point, subject to the terms and
conditions of this Agreement.
D. Storage at the Facility. Customer shall provide, at its sole cost, storage space
at the Facility for the storage of up to 10 days of normal Ethanol production so as to
provide flexibility in marketing efforts. Customer shall be responsible at all times for
the quality and condition of the Ethanol in storage at the Facility.
E. Production Estimates. Commencing on or before the fifteenth (15th)
day of the month preceding the Commencement Date and continuing on the fifteenth
(15th) day of each month during the term of this Agreement, Customer shall
provide to Provista a 12-
month rolling forecast of the volume of Ethanol to be produced and delivered by Customer for
such 12-month rolling period. Customer shall immediately notify Provista of any changes to
the Ethanol production estimate for such 12-month rolling period as soon as Customer has
knowledge of the same. At least five (5) days prior to the beginning of the week during
which it is to be removed by Provista, Customer may also provide a weekly estimate (the
“Weekly Estimate”) to Provista of the volume of the Ethanol (each such amount, a “Ethanol
Parcel”) to be produced and delivered by Customer together with a notice of the amount of
the Ethanol in inventory as of the date of the notice.
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F. Transportation. Regardless of the amounts set forth in each Weekly Estimate, at
least five (5) days prior to the beginning of the week during which Ethanol produced by
Customer will be removed, Provista shall schedule for removal by truck or rail car the
actual quantity of the Ethanol produced by Customer in the relevant week less the sum of
such amount of the Ethanol that Provista and Customer agree shall be stored at the Facility.
In the event that Customer fails to provide the labor, equipment and facilities necessary
to meet Provista’s loading schedule, Customer shall be responsible for actual demurrage and
wait time incurred by Provista resulting from Customer’s failure to do so. Provista shall
order and supply trucks or rail cars as scheduled for truck or rail shipments. All
Execution Costs shall be billed directly to Provista and deducted by Provista from the
proceeds of Provista’s sales of the Ethanol to Buyer. Provista shall diligently pursue,
secure and maintain all necessary agreements to transport the Ethanol and shall use
commercially reasonable efforts to obtain the lowest charges in respect of Execution Costs
in an effort to help Customer maximize its net price for the Ethanol delivered hereunder
after deduction of Execution Costs in accordance with Section III.J. of this
Agreement. On a daily basis, Customer shall inform Provista of the inventory and production
status for the Facility by 8:30 a.m. CST. Customer agrees that it shall utilize all
commercially reasonable efforts to purchased and install equipment for the electronic
transfer of loading and inventory data to Provista on a continuous basis.
G. Rail Car Leases. Provista shall supply Customer with assumptions and information
required for Customer to determine the size of a rail car fleet for efficient disposition of
Customer’s Ethanol production. Customer shall be responsible for entering into all
necessary rail car leases, as a lessee, for the transportation of Ethanol, and Provista
agrees to use commercially reasonable efforts to assist Customer in the same. Provista will
manage the rail cars in Customer’s best interest and based on Customer’s use as needed
hereunder.
In order to maximize the efficiencies of the rail cars leased under the Rail Car Leases,
Customer agrees that Provista may, from time to time, utilize Customer’s rail cars for other
Provista customers if such rail cars are not needed, or bring in additional rail cars from
other Provista customers for Customer when additional are required. Customer will receive
the benefit of any cost reduction when its rail cars are utilized elsewhere, and will
likewise, be responsible to pay for any increased costs associated with utilizing other
Provista customer’s rail cars.
H. Certain Contracts. From time to time during the term of this Agreement and in
order to maximize the sales price of the Ethanol, Provista may enter sales contracts or
agreements in its reasonable discretion with Buyers of the Ethanol which contracts are
dependent on the availability of the Ethanol from Customer. In such instances, Provista
shall promptly communicate to Customer the terms and conditions of such contracts
specifically detailing price, volume and the length of such commitments (“Contract Offer”).
Notices of any such Contract Offers shall be given to a specific individual employee of
Customer, designated by Customer from time to time during the term of this Agreement (the
“Customer Contact”). Upon receipt of such information, the Customer Contact shall either
direct Provista to reject or accept such Contract Offer. Any Contract Offer not accepted by
the Customer Contact within two (2) business days of his or her receipt of the same shall be
deemed rejected by Customer. If Customer instructs Provista
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to enter into any forward
contract(s) on Customer’s behalf, any market loss incurred shall be solely at Customer’s
expense.
Notwithstanding the above, if the contract pricing terms and volume are consistent with the
Customer’s short term marketing strategies as determined by the Marketing Committee pursuant
to Section III.I than Provista may enter into these contracts with Buyers without the
specific consent of Customer.
I. Marketing Committee. A marketing committee (the “Marketing Committee”) shall be
established by the parties as soon as practicable following execution of this Agreement which
shall include four (4) representatives of Big River Resources, LLC (the “BRR Representatives”)
and two (2) representatives of Provista (the “Provista Representatives” and, together with the
BRR Representatives, the “Members”). Additionally, the General Manager shall be an ex
officio, nonvoting member of the Marketing Committee. For purposes of the preceding sentence,
“General Manager” refers to the individual responsible for the day-to-day profitability and
operations of the Customer’s ethanol production facility. The chairman of the Marketing
Committee (the “Chairman”) shall be appointed by Big River Resources, LLC. All decisions of
the Marketing Committee shall be by resolution of the Members, provided that in the case of a
deadlock that cannot be resolved by mutual agreement between the Members in a timely manner,
the matter shall be referred by the Members for resolution to the Chairman.
The quorum for any meeting of the Marketing Committee shall be at least one (1) BRR
representative and at least one (1) representative of Provista. The Marketing Committee
shall meet as regularly as the Chairman shall determine, but not less than: (i) once
quarterly, upon not less than seven (7) days’ written notice to the Members (or such shorter
time period as the Members may agree), to review long term marketing strategies; and (ii)
once monthly on the first business day of each month or on such other date as the Chairman
may select on not less than two (2) days’ written notice to the Members (or such shorter
time period as the Members may agree), to review short term marketing strategies. Meetings
of the Marketing Committee may be held by video conference or telephone (followed by the
mutual confirmation by either facsimile or electronic mail); or
facsimile or electronic mail (with written confirmation of receipt by the recipient) if so
agreed by the Members.
The functions of the Marketing Committee shall be:
(i) In the case of meetings regarding long term marketing strategies: (a) to define
the marketing policy and agree to a marketing plan (each, a “Marketing Plan”) for
the next calendar quarter and (b) to review market conditions, prices and other
comparable sales of the Ethanol made by Provista;
(ii) In the case of meetings regarding short term marketing strategies, to review
market conditions, prices and comparable sales of the Ethanol made by Provista.
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(iii) To review actual performance against the previous Marketing Plan and any
modifications thereof.
On the first business day of each calendar month, Provista shall provide to the Members a
statement of all the Ethanol sales and purchases contracted for by Provista with Buyers
during the prior month. Each such statement shall specify with respect to all such sales
and purchases the relevant parties, the quantity contracted, the price, all Execution Costs
and any fees, offsets, rebates or other arrangements relating to any purchase or sale or
affecting the price.
J. Price and Payment. For all the Ethanol sold by Customer to Provista hereunder,
Provista shall pay to Customer the *****. Provista’s Marketing Fee shall be ***** but in
no event shall be less than *****.
Both parties agree that market conditions from time to time allow Provista to achieve
additional value from a sales contract through location arbitrage or other commercial means.
In such instances, Provista shall notify Customer of the opportunity describing the
transaction and financial benefit. Customer shall respond in writing whether it desires
Provista to proceed with such a transaction. Any financial benefit realized hereunder shall
be shared equally between Provista and Customer.
Provista will not instruct Customer to load any truck or rail car, and Customer shall not be
obligated to load any truck or rail car, with any Ethanol Parcel at the Facility unless such
Ethanol Parcel has been sold by Provista to Buyers, or to Provista for its own account, and
a copy of a valid written invoice stating the sale price and destination has been executed.
Provista agrees to use commercially reasonable efforts to achieve the highest resale price
available under prevailing market conditions and to obtain the lowest charges in respect of
Execution Costs in an effort to help Customer maximize its net price for the Ethanol
delivered hereunder.
Within the earlier of (A) ten (10) business days following receipt of evidence by the Buyer
of the volume of the Ethanol shipped in each Ethanol Parcel from Customer to Buyer, which
shall be presented to Provista the first business day of each week for all sales during the
preceding week, or (B) three (3) business days of the date Provista receives payment from
Buyer for each Ethanol Parcel, but in the case of either clause (A)
or (B), in no event more than twenty (20) days from the date of shipment by Customer of each
Ethanol Parcel to Buyer, Provista shall pay Customer the F.O.B. Facility Price determined
pursuant to this Agreement, by direct wire transfer or electronic transfer to the bank
account designated by Customer from time to time. Provista agrees to maintain accurate
records including, but not limited to, sales, Execution Costs, insurance and inspection
records and to provide such records to Customer upon request for the period set forth in
Section III.Q.
In addition to all other rights and remedies provided in this Agreement or by applicable law
or equity, if Provista fails to pay all or any portion of any undisputed amount owing by it
when due, such unpaid amount shall bear interest at a rate equal to one percent (1%) per
annum above the Prime Rate (as defined below) calculated daily from and including the date
such amount is due hereunder to but excluding the date it is actually paid. For purposes of
this Agreement, “Prime Rate” shall be the prime commercial lending rate
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being from time to
time published in the Money Rate Table of “The Wall Street Journal” as the prime rate of
annual interest for the date of determination (or if the Money Rate Table is not published
by “The Wall Street Journal” on such date because such day is not a business day, the last
preceding day on which such table was published by “The Wall Street Journal”). If the Money
Rate Table is no longer published by “The Wall Street Journal,” the Prime Rate shall be the
prime commercial lending rate being offered by Citibank, N.A.
K. Quantity. The quantity of Ethanol delivered to Provista from the Facility into
tank trucks and/or tank cars shall be measured, at no cost to Provista, by calibrated meters
or calibration tables which comply with all applicable laws, rules and regulations or in
such other manner as mutually acceptable to Provista and Customer.
L. Quality. Customer understands that Provista intends to sell the Ethanol
purchased from Customer as motor fuel quality ethanol and that said Ethanol is subject to
minimum quality standards for such use including, but not limited to, ASTM D-4806. Customer
agrees and warrants that the Ethanol produced at the Facility and delivered to Provista
shall be acceptable under industry standards in effect from time to time during the term of
this Agreement.
M. Compliance. Customer warrants that at the time of loading at the Facility the
Ethanol shall comply with all state and federal laws including those governing quality,
naming and labeling of product. The Ethanol requirements set forth in this Agreement shall
be collectively referred to as the (“Ethanol Specifications”). Customer further warrants
that at the time of loading at the Facility the Ethanol shall conform to the Ethanol
Specifications.
N. Rejection of Ethanol. Payment of invoice and acceptance of delivery do not waive
Provista’s rights if the Ethanol does not comply with the Ethanol Specifications at the time
of loading at the Facility. Unless otherwise agreed between the parties to this Agreement,
and in addition to other remedies permitted by law, Provista may, without obligation to pay,
reject, any of the Ethanol which is demonstrated by Provista to Customer to have failed to
conform in any material respect to the Ethanol Specifications at the time of loading at the
Facility; provided, however, that Provista shall report in writing any non-conforming
Ethanol promptly upon and in any event with twenty (20)
days of discovery of such non-conformity. Such written notice to Customer shall identify
the deficiency that resulted in the rejection. Provista shall dispose of all such rejected,
non-conforming Ethanol in the most cost effective means. Customer shall be liable for all
costs and expenses incurred in connection with such disposal in accordance with any and all
applicable laws, rules and regulations.
O. Retention of Samples. Customer will take a minimum of one (1) original
representative sample from such lot of the Ethanol before it leaves the Facility. Customer
will label these samples to indicate the Ethanol’s lot numbers and whether the Ethanol was
shipped by rail car or truck. Customer will retain the samples and labeling information for
no less than three (3) months from the date such sample was taken and make such samples
available to Provista at Provista’s request.
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P. No Liens. Customer represents and warrants that the Ethanol sold to Provista
shall be free and clear of third-party liens and encumbrances of any nature whatsoever.
Q. Books and Records. Provista will establish and maintain at all times, true and
accurate books, records and accounts (the “Books”) in accordance with commercially
reasonable accounting principles and consistent with good industry practices,
distinguishable from all other books and records, in respect of all payments, statements,
charges and computations made under this Agreement and will preserve these books, records
and accounts for a period of at least one (1) year after the expiration of the term of this
Agreement. During normal business hours and upon reasonable prior notification and through
to the expiration of one (1) year following the expiration or termination of this Agreement,
Customer, at its sole cost and expense, has the right to inspect, examine and audit, or
cause its representatives (including without limitation a third-party auditor) to inspect,
examine and audit the Books of Provista to the extent necessary in order to verify the
accuracy of any statement, charge, computation or demand made under or pursuant to any of
the provisions of this Agreement. If any error is discovered in any statement rendered
hereunder and such error is on the part of Provista and results in an underpayment by
Provista, the amount of such underpayment shall be paid to Customer with interest at a rate
of one percent (1%) over the Prime Rate from the date such underpayment was due through (but
not including) the date such underpayment and interest thereon is paid and the amount of
such underpayment and interest thereon will be paid within seven (7) days from the date of
discovery. For the sake of clarity, if any error is discovered to have been made on the
part of Customer and such error results in an underpayment by Provista, Provista shall pay
only the principal amount outstanding and interest on this principal shall not be paid by
Provista to Customer if Provista pays within seven (7) days from the date of discovery. The
party responsible for the error shall pay the direct expenses of the audit.
Provista and its authorized representatives will be permitted during normal business hours
(at Provista’s expense) to inspect and audit the Facility and records from time to time to
determine Customer’s compliance with the terms of this Agreement.
R. Transparency. Provista shall supply Customer with a comparison, at least
quarterly, of Customer’s F.O.B. Facility price (as defined by paragraph III.J) by
transaction type (some examples of transaction types would be: fixed price; index price;
basis pricing over a gasoline index; and prompt pricing) compared to the average, high,
and low F.O.B. Facility Price by transaction type of all sales made by Provista for all of
its Customers.
S. Provista’s Damages. In the event (i) Customer fails to provide the Ethanol in
accordance with the terms and conditions of this Agreement and (ii) Provista has previously
committed to deliver such Ethanol to a Buyer pursuant to a sales contract or agreement that
has been otherwise agreed to by Customer, Provista may purchase the quantities of the
Ethanol not made available hereunder from other sources to the extent necessary to perform
Provista’s obligations under the approved sales contract after providing Customer with not
less than three (3) days’ advance notice of its intention to do so. In such event, Provista
shall be entitled to recover from Customer any reasonable out-of-pocket costs Provista
incurs above the agreed upon F.O.B. Facility Price, as applicable, for the Ethanol resulting
from its purchase.
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T.
Obligations on Termination. Notwithstanding any
termination of this Agreement,
Customer shall continue to be
obligated to deliver all
Ethanol to Provista that is
identified to an existing
contract with a Buyer,
provided such Ethanol is to be
delivered by Provista from the
Facility and provided that
Provista may not renew,
extend, increase or otherwise
modify such contract with any
Buyer after notice of
termination of this Agreement
pursuant to Article II unless
Customer consents in writing.
Prior to the termination of
the Agreement, Provista shall
provide Customer with a list
of all such contracts and the
quantities of Ethanol to be
delivered pursuant to the
same. Termination of this
Agreement will not relieve or
release either party from its
obligations to make any
payment which may be owing to
the other party under the
terms of this Agreement,
including any payment relating
to Ethanol delivered after
termination pursuant to this
Section, or from any other
liability which either may
have to the other arising out
of this Agreement or the
breach of this Agreement.
| IV. | REPRESENTATIONS. |
With the knowledge that each party is relying thereon in entering into this Agreement, each
party hereto respectively hereby represents and warrants as to itself as follows:
| (1) | It is a Limited Liability Company duly organized, validly existing, and in good standing under the laws of the States of Iowa and South Dakota respectively. | ||
| (2) | This Agreement constitutes its legal, valid, and binding obligation enforceable against it in accordance with its terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and except as enforcement may be limited by general principles of equity. It has the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and to perform its obligations under this Agreement. | ||
| (3) | Neither the execution and delivery of this Agreement nor the consummation or performance of any obligations hereunder shall, directly or indirectly, with or without notice or lapse of time), in any material respect, contravene, conflict with, or result in a violation or breach of any provision of or give any person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify any relevant contract to which it is a party. | ||
| (4) | It is not and shall not be required to give any notice to or obtain any consent from any person in connection with the execution and delivery of this Agreement or the consummation or performance of any of its obligations. | ||
| (5) | It is, and will at all times during the term of this Agreement, remain in material compliance with all laws, rules and regulations. |
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| (6) | It is not currently in default under any contract that is material to this Agreement. |
| V. | GENERAL PROVISIONS. |
A. Events of Default. The occurrence of any of the following shall be an event of
default (each an “Event of Default”) under this Agreement: (1) failure of either party to
make payment to the other when due; (2) default by either party in the performance of any
material covenant, obligation or agreement set forth in this Agreement; or (3) if either
party shall become insolvent, or make a general assignment for the benefit of creditors or
to an agent authorized to liquidate any substantial amount of its assets or properties with
or without consent, or should a voluntary or involuntary petition into bankruptcy or other
similar proceeding be filed by or against such party, or should an involuntary petition into
bankruptcy or other similar proceeding be filed by or against such party and the receiver,
bankruptcy or other similar proceeding shall not in the case of any involuntary petition or
other involuntary proceeding be discharged within sixty (60) days following appointment or
commencement thereof, as the case may be.
B. Remedies. Upon the occurrence of an Event of Default, the party not in default
shall have all remedies available under this Agreement and under applicable law and equity.
Without limiting the foregoing, the party not in default shall have the following remedies
whether in addition to, or as one of, the remedies otherwise available to it: (1) to
declare all amounts owed to it hereunder immediately due and payable and (2) to terminate
this Agreement; provided, however, the defaulting party shall be allowed thirty (30) days’
from the date of receipt of notice of default to cure any Event of Default.
C. Force Majeure. Neither party to this Agreement shall be liable to the other
party hereto for any loss or damage resulting from any delay or failure to make or accept
deliveries caused by or arising out of acts of God or the elements, storms, wars, acts of
terrorism, sabotage, strikes, labor difficulties, governmental proration or regulation, when
raw materials or supplies are interrupted, unavailable, or in short supply. In the event
that a party to this Agreement gives notice and an explanation of such force majeure event
to the other party hereto within a reasonable time after the occurrence of such force
majeure event, the obligations of the parties shall be suspended from the date of such force
majeure event for the length of time during which a party is unable to perform as a result
of such force majeure event. Nothing contained in this Section V.C. shall ever be
construed to relieve either party of its obligations to promptly pay the other party amounts
due and owing hereunder. No curtailment or suspension of deliveries or acceptance of
deliveries pursuant to this Section V.C. shall operate to extend the term of this
Agreement.
D. Indemnification. Customer agrees that it shall defend, indemnify, and hold
harmless Provista, and Provista’s directors, officers, agents, employees, insurers,
successors and assigns, from and against any and all claims, demands, damages, losses,
liabilities, causes of action, judgments, fines, assessments (including penalties and/or
interest), costs and expenses of any kind or nature, including all attorneys’ fees and all
costs and expenses of litigation and court costs (including attorneys’ fees and costs and
expenses of litigation and court costs incurred in enforcing this provision), without regard
to amount, for damages to, or loss of, property, or injury to, or death of, any person or
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persons, including without limitation persons employed or engaged by Customer, caused by or
arising or resulting from, whether directly or indirectly: (i) the negligence and/or willful
misconduct of Customer, and/or (ii) Customer’s breach of any of its representations,
warranties, undertakings, covenants, promises and agreements as set forth in this Agreement;
and/or (iii) Customer’s failure to comply with any and all applicable federal, state or
local laws, ordinances, orders, permits, rules and regulations with regard to Customer’s
activities relating to the operation of its business and/or the Facility. Provista shall
have the right, but not the obligation, to participate in the defense of any such claim with
attorneys selected by Provista; provided, however, that once Customer assumes the defense of
Provista pursuant to provisions of this Section V.D., Provista’s participation in
the defense of any such claim shall be at its own expense.
Provista agrees that it shall defend, indemnify, and hold harmless Customer, and Customer’s
directors, officers, agents, employees, insurers, successors and assigns, from and against
any and all claims, demands, damages, losses, liabilities, causes of action, judgments,
fines, assessments (including penalties and/or interest), costs and expenses of any kind or
nature, including all attorneys’ fees and all costs and expenses of litigation and court
costs (including attorneys’ fees and costs and expenses of litigation and court costs
incurred in enforcing this provision), without regard to amount, for damages to, or loss of,
property, or injury to, or death of, any person or persons, including without limitation
persons employed or engaged by Customer, caused by or arising or resulting from, whether
directly or indirectly: (i) the negligence and/or willful misconduct of Provista; and/or
(ii) Provista’s breach of any of its representations, warranties, undertakings, covenants,
promises and agreements as set forth in this Agreement; and/or (iii) Provista’s failure to
comply with any and all applicable federal, state or local laws, ordinances, orders,
permits, rules and regulations with regard to Customer’s activities relating to the
operation of its business. Customer shall have the right, but not the obligation, to
participate in the defense of any such claim with attorneys selected by Customer; provided,
however, that once Provista assumes the defense of Customer pursuant to provisions of this
Section V.D., Customer’s participation in the defense of any such claim shall be at
its own expense.
E. Limitation of Liability. NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT
INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
F. Insurance. Each party agrees to maintain at all times during the term of this
Agreement: (i) Workers’ Compensation Insurance as prescribed by applicable laws of the
state(s) with jurisdiction over each of its employees; and (ii) Commercial General Liability
Insurance with a per-occurrence limit of not less than One Million Dollars ($1,000,000) (or
higher limits as may be required by applicable law) (which coverage can be provided through
a combination of primary and umbrella policies), which policy(ies) shall identify Provista
as an additional insured party with respect to the operation of the Facility. As to all
policies described in this Section V.F., Each party agrees that: (i) it will provide
the other with at least thirty (30) days’ written notice prior to the effective date of
cancellation or any material change of any such policy(ies); and (ii) upon any request from
the other party, each will immediately instruct its insurer(s) to provide the
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other party
with certificates of insurance evidencing coverage that is required by this Section V.F.
Each party agrees that the policy limits set forth herein are minimum limits and shall not
be construed to limit its liability.
G. Independent Contractors. Customer and Provista are separate legal entities, and
independent contractors in respect of the other party hereto. Nothing in this Agreement
shall constitute, or ever be construed to constitute, either party hereto as an agent, legal
representative, joint venturer, partner, employee, or servant of the other party hereto, for
any purpose whatsoever.
H. Notices. Any notice required pursuant to this Agreement shall be in writing,
and shall be deemed to be properly served on the date deposited in the U.S. Post Office if
sent by certified or registered mail, or three (3) days after the date deposited in the U.S.
Post Office if sent by regular mail. Such notice shall be properly addressed to the other
Party at its respective address set forth in the first paragraph of this Agreement, provided
that such addresses may be changed by proper notice delivered in accordance with the
provisions of this Section. For any notice sent by mail, the Party sending the notice shall
also send a facsimile of such notice on the same day that the notice is deposited in the
U.S. Post Office. Any notice made by a party under this Agreement by a method other than
through the U.S. Postal Service shall be in writing and shall be effective only upon actual
receipt of such notice.
I. Assignment. This Agreement may not be assigned or transferred by either party,
directly or indirectly, in full or in part, without the advance written consent of the other
party hereto, which consent shall not be unreasonably withheld, and no attempted assignment
or transfer of this Agreement by either party hereto shall be binding on the other party
hereto until it has consented in writing to such assignment. Assignments or transfers that
have not been consented to by the non-assigning party shall be void. Any change of control
of either party, whether by operation of law or otherwise, shall be deemed an assignment or
transfer for purposes of this Section V.I. The terms and conditions of this
Agreement shall inure to the benefit of, and shall be binding upon, all respective permitted
successors and assigns of the parties hereto.
J. Choice of Law. This Agreement, and all rights, obligations, and duties arising
hereunder, and all disputes which may arise hereunder, shall be construed in accordance
with, and governed by, laws of the state of Iowa, without giving effect to the conflict of
laws provisions thereof.
K. Modification and Waiver. Any of the terms and conditions of this Agreement may
be waived in writing at any time by the party which is entitled to the benefit thereof;
provided, however, that the failure of any party to exercise any right, power or option
given it hereunder, or to insist on strict compliance with all of the terms and conditions
hereof, shall not constitute a waiver of any term, condition, or right under this Agreement,
unless and until that party shall have confirmed any such action or inaction to be a waiver
in writing. Any such waiver shall not act as a waiver of any other term, condition, or
right under this Agreement, or the same term, condition, or right on any other occasion not
specifically waived in writing by such party. This Agreement may be modified, altered, or
amended only by a writing signed by the party against whom the amendment is to be enforced.
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L. Enforceability. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but in the
event that a provision shall be determined by a court of competent jurisdiction to be
invalid and/or unenforceable, such provision shall be ineffective only to the extent that it
is explicitly deemed invalid, void or unenforceable, and the remaining provisions of this
Agreement shall be valid and enforced to the fullest extent permitted by law. Upon such a
determination that a provision is invalid, illegal, void, or unenforceable, the parties
agree to negotiate in good faith to modify this Agreement so as to effect their original
intent as closely as possible.
M. Entire Agreement. This Agreement contains the entire understanding between the
parties hereto and, as of the Effective Date, it shall supersede all prior negotiations,
representations, agreements and understandings, whether oral or written, between Provista
and Customer with respect to the sale and marketing of the Ethanol produced by Customer at
the Facility.
N. Headings. The headings of Sections in this Agreement are inserted for
convenience only, and shall not be deemed to constitute a part of this Agreement, or to
affect interpretation of provisions hereof.
O. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all purposes, be deemed to be an original, but all of which shall
constitute one and the same Agreement.
P. Confidentiality. Provista and Customer, recognizing the work in which they will
be engaged under this Agreement is of a proprietary nature, recognize that each may disclose
to the other certain proprietary business plans, strategies, financial data, specifications,
production information, equipment details, process information, intellectual property and
other information relating to this Agreement. This information is secret and confidential
and will be disclosed by one party to the other party only on the following terms and
conditions:
1. “Confidential Information” shall mean all proprietary or confidential information
received or generated during the course of the performance of this
Agreement including, without limitation, the information described above and in the
books and records of either party. Confidential Information shall not include that
which (i) is in the public domain prior to disclosure to another party, (ii) is
lawfully in the other party’s possession, as evidenced by written records, prior to
the disclosure by a party, or (iii) becomes part of the public domain by publication
or otherwise through no unauthorized act or omission on the part of the other party.
2. Except for disclosure to their respective employees, consultants, attorneys and
advisors (each of which shall agree to hold such Confidential Information in strict
confidence and otherwise in accordance with this Agreement and which shall have no
right of further distribution), neither party shall disclose any of the Confidential
Information to any unauthorized party, unless required by law or court order and
then only after providing advance notice and an opportunity to
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intervene to the
other party. Proper and appropriate steps shall be taken and maintained by each
party to protect the Confidential Information of the other party.
3. Confidential Information shall be used by the parties only in connection with
their performance under this Agreement; no other use will be made of it by either
party.
4. All documents containing Confidential Information of a party shall remain the
property of that party. They shall be returned to that party or destroyed upon
request.
5. No license or right is granted hereby to either party by implication or otherwise
with respect to or under any patent application, patent, claims of patent or
proprietary rights of either party with respect to the Confidential Information.
THIS AGREEMENT REGARDING ETHANOL SALES AND MARKETING SHALL NOT CONSTITUTE A BINDING CONTRACT
BETWEEN THE PARTIES UNTIL IT HAS BEEN EXECUTED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
IN WITNESS WHEREOF, Customer and Provista have caused this Agreement to be executed to be effective
as of the Effective Date.
Provista Renewable Fuels Marketing, LLC
By: |
/s/ Xxxx X. Xxxxxxxx | |||
Its:
|
Director
|
|||
Customer:
By: |
/s/ Xxxxxxx X. Xxxxxxxxxx | |||
Its:
|
President, CEO and Chairman
|
|||
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