EXHIBIT 10.3
DELTA-T CORPORATION
CONFIDENTIAL INFORMATION
PHASE 2 COOPERATION AGREEMENT
BETWEEN
NEDAK ETHANOL, LLC
AND
DELTA-T CORPORATION
THIS AGREEMENT is entered into and becomes effective as of the 15 day of
November, 2005 (the "Contract Date"), by and between Delta-T Corporation, a
corporation organized and operating under the laws of the Commonwealth of
Virginia, USA located at 000 Xxxxxxxxx Xxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000
("DTC"), and NEDAK ETHANOL LLC, a company organized and operating under the laws
of NEBRASKA located at 000 XXXXX XXXX XXXXXX, P. O. XXX 000, XXXXXXXX, XXXXXXXX
00000 ("Client"), which parties may be referred to individually as a "Party" or
jointly as the "Parties."
WITNESSETH
WHEREAS, Client intends to develop, own and operate an ethanol plant
having the capacity to produce 30 MILLION GALLONS PER YEAR (hereinafter the
"Plant") at a site to be located in XXXX COUNTY, NEBRASKA (hereinafter the
"Site"); and
WHEREAS, DTC is in the business of developing, designing, and supplying
commercial technologies, equipment and manufacturing facilities to perform a
wide range of process industry applications, including, without limitation,
grain processing, ethanol production, evaporation, distillation, dehydration,
adsorption, solvent recovery and waste treatment; and
WHEREAS, DTC has entered into a strategic alliance with TIC - The
Industrial Company, a Delaware corporation, located at 0000 Xxx xxxxx Xxxx,
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (hereinafter "TIC"), that is in the business
of providing construction and certain additional engineering services, for the
purpose of providing complete design/build services; and
WHEREAS, Client wishes to retain DTC to provide professional advice,
business and technical information, design and engineering, and related services
in order to assist Client in assembling all of the information, permits,
agreements and resources necessary to complete project development, obtain
financing and proceed with construction of the Plant (hereinafter "Project"),
and DTC is willing to provide such services for a fixed fee, provided that
Client enters into an exclusive relationship with DTC to design and build the
Plant through an Engineering, Procurement and Construction Contract ("EPC
Contract") under which a mutually agreed upon general contractor or TIC (or DTC)
will perform construction and certain other services, and on the terms and
conditions set forth herein; and
WHEREAS, Client recognizes that DTC is foregoing other significant
business opportunities in order to provide such services and that the payments
to be made to DTC under this Agreement are inadequate to fairly compensate DTC
for the services to be provided and that DTC is agreeing to perform such
services in exchange for the right to enter into the EPC Contract, and that the
provisions of this Agreement concerning exclusivity are essential to this
Agreement and that DTC would not be willing to enter into this Agreement without
those provisions;
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NOW THEREFORE, IN CONSIDERATION of the mutual terms and conditions of
this Agreement, Client and DTC agree as follows:
ARTICLE I
SCOPE OF SERVICES
1.1 STAGE II SERVICES: Upon written notice to proceed from Client, DTC shall
provide, either directly or under a subcontract with TIC, the services described
in this Section 1 to move the Project towards execution of a final EPC Contract
between Client and DTC for the purpose of performing complete design/build
services for the Plant (the "Stage II Services"), as follows:
1.1.1 See Exhibits D and E from DTC Letter dated October 13, 2005.
1.2 CLIENT'S RESPONSIBILITIES: The entity that will own the Project, whether it
is the Client or another entity, is referred to in this Agreement as "Owner".
Client shall perform, or cause Owner to perform, the following tasks to assure
development of the Project, and such other tasks as may be required to achieve
funding for the Project:
1.2.1 Promptly provide to DTC key Project design parameters, as DTC may
reasonably request from time to time;
1.2.2 Continuously update a Project development strategy and timeline,
in cooperation with DTC, for the purposes of fully defining the Project
specifications to include all major activities and milestones necessary
for successful Project financing. Client shall exercise its best efforts
to obtain financing as rapidly as possible and shall provide weekly
updates to DTC of the current status of Client's efforts to obtain such
financing;
1.2.3 Provide DTC with monthly status reports, directed to DTC's Vice
President of Marketing, setting forth Client's assessment and opinion of
services rendered by DTC, as set froth in Sections 1 above, in the form
set forth in Exhibit B; failure by Client to provide DTC such monthly
status reports shall be deemed acceptance and complete satisfaction with
all services performed by DTC, as set forth in Sections 1 above;
1.2.4 Cooperate with DTC to define final Project goals, specifications,
and Project roles and resource requirements;
1.2.5 Develop a business plan, in cooperation with DTC, based on the
templates, financial models and information provided by DTC under
Section 1.1 above and other resources; and
1.2.6 Otherwise cooperate with DTC and other Project stakeholders in the
development of the Project as mutually agreed to between the Parties and
execute the Project development plans and in accordance wit the Project
schedule in a diligent manner.
1.2.7 Keep DTC fully advised of developments under the Project
development strategy, advise DTC of all meetings of Client's board or
other governing body or committee related to the matters covered by this
Agreement, and permit DTC to address such board or committee as DTC may
reasonably request.
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Client, or Owner, shall perform such tasks within sufficient time to allow DTC
to fulfill its obligations under Section 1 above, as applicable, in a timely
manner. Client shall designate Xxxxx Xxxxx, an individual, to serve as DTC's
primary contact for the work to be performed under this Agreement. DTC shall be
entitled to rely on, and shall proceed according to the directions of, that
individual, or such other individual as Client may from time to time appoint in
writing with respect to this Agreement.
1.4 PROJECT CONTROL RESPONSIBILITIES: Client shall notify DTC promptly of any
plan or intent on the part of any actual or potential investors in the Project
to form an Owner, or alter the equity or voting structure of Client or in Owner,
in such a way that Client would not have sufficient control over such Owner to
require it to perform the obligations of Client described in this Agreement, and
shall assist DTC in causing such Owner to become a party to this Agreement, or
another similar agreement acceptable to DTC, and that Client shall not
participate in any way with any Owner toward development of the Plant unless
Owner has done so. Client agrees that it shall not assist Owner in any way,
directly or indirectly, in working with anyone other than DTC in connection with
the Project, except as expressly permitted under this Agreement. Client
acknowledges that if it were to provide any Confidential Information (as
described in Article II below) provided by DTC or TIC to any Owner over which it
did not have control, that such Owner would benefit significantly from such
information, and Client acknowledges that it understands and will comply
strictly with the prohibitions on such disclosures as set forth in Article II
below.
ARTICLE II
CONFIDENTIAL INFORMATION
2.1 DEFINED: "Confidential Information" shall mean (i) all inventions, whether
patentable or not, all processes, designs, know-how, copyrights and any and all
other intellectual property of any kind (hereinafter "Intellectual Property")
and financial and other business information provided at any time (including
before the execution of this Agreement) by DTC, either directly or indirectly or
through DTC, to Client in connection with the Project, which shall be deemed
Confidential Information of DTC or TIC, as the case may be, and (ii) all
business plans, drawings and other sensitive information about the Project
disclosed by Client to DTC, which shall be deemed Confidential Information of
Client (except to the extent that it consists of Confidential Information of
DTC).
2.2 NO USE OR DISCLOSURE: Neither Party shall (i) use any Confidential
Information of the other except for development of the Project as provided under
this Agreement, or (ii) disclose any part of the Confidential Information of the
other to any person or entity other than to its employees who need to have
access to such data and who are bound to comply with the confidentiality terms
of this Agreement, and as otherwise authorized by the Party providing the
Confidential Information. In particular, but without limitation, under no
circumstances may Client use any of the Confidential Information to assist it in
negotiating or entering an agreement of any kind with any third party to provide
any services, materials or technology related to the Project in violation of
this Agreement. Notwithstanding the foregoing, Client may disclose information
of the type provided by DTC under Section 1.1 above to any third party to whom
it needs to disclose such information to develop the Project only after such
party executes a confidentiality agreement directly with DTC, as may be
appropriate, generally in the form attached as Exhibit C or such other form as
DTC may accept. Client shall provide a copy of each such agreement to DTC and
TIC promptly upon execution of the same and prior to the disclosure of any
Confidential Information to such third party. Furthermore, Client may disclose
Confidential Information, if any, that it needs to disclose in order to comply
with any applicable law, rule or regulation, PROVIDED THAT it takes whatever
steps are necessary to protect the confidentiality of such Confidential
Information to the full extent allowed by such law, rule or regulation.
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2.3 DISCLOSURES REQUIRED BY COURT ORDER: Neither Party shall disclose any
Confidential Information of the other pursuant to court order or other legal
process unless: (i) it is advised by its legal counsel that it is legally
required to do so, (ii) it has promptly given the other Party notice of such
order or process so that the other Party can obtain a secrecy order or other
applicable remedy, and (iii) it has used all other reasonable means to ensure
the confidential treatment of such information, other than seeking a judicial
order or other judicial relief.
2.4 EXCLUSIONS: Notwithstanding anything set forth in this Article II, however,
neither Party shall have any obligation hereunder with respect to Confidential
Information that fall xxxxxx one or more of the following exclusions: (a) that
such information was in its possession prior to receipt from the disclosing
Party; (b) such information was in the public domain at the time of disclosure
or thereafter enters into the public domain through no breach of this Agreement
by the receiving Party or is in general use in the trade without violation by
the receiving Party of this Agreement, or violation by any other party of an
obligation not to disclose it; or (c) the information is disclosed to the
receiving Party by a third party who is under no obligation not to disclose it.
2.5 OBLIGATIONS: The provisions of this Article II shall survive termination of
this Agreement until such time, if ever, that such information falls under one
or more of the exclusions set forth in Section 2.4 above. Each Party providing
Confidential Information pursuant to the terms of this Agreement shall have the
right to enforce the terms of this Agreement directly against any party.
ARTICLE III
LIMITED LICENSE OF DTC CONFIDENTIAL INFORMATION
DTC is, and shall remain, the sole owner of the Confidential Information
provided by DTC under the terms of this Agreement. DTC hereby grants Client a
limited, non-exclusive, non-transferable license, without right to sublicense,
to use the provided Confidential Information solely for Client's use in
connection with the development and financing of the Project during the term of
this Agreement. DTC reserves to itself all rights not expressly granted under
this Article III. In particular, but without limitation, the license granted by
the terms of this Article DOES NOT INCLUDE the right to use any of the
Confidential Information to procure bids for the development, design or
construction of the Plant or any aspect of the Plant, or to design or operate
any other plant or facility based, in whole or in part, on any of such
Confidential Information, or to assist Owner in developing the Plant unless
Owner has become a party to this Agreement, or a similar agreement with DTC.
ARTICLE IV
COMPENSATION
4.1 STAGE II SERVICES: For the Stage II Services, as described in Section 1
above, Client shall pay DTC a fixed fee of Six Hundred Thousand Dollars
($600,000). Client shall pay to DTC the first Three Hundred Thousand Dollars
($300,000) of such fee upon issuance of its notice to proceed to DTC, as set
forth in Section 1 above. Client shall thereafter pay to DTC One Hundred
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Thousand Dollars ($100,000) thirty (30) days after issuance of its notice to
proceed to DTC, One Hundred Thousand Dollars ($100,000) thirty (30) days after
that, and the remaining One Hundred Thousand Dollars ($100,000) ten (10) days
after delivery by DTC of a complete EPC Contract draft, as provided in Section 1
above. Failure to reach final agreement by the Parties with respect to terms and
conditions contained in the EPC Contract shall not be deemed a failure to
provide such a draft EPC Contract or relieve Client from payment of such final
payment. In addition to the foregoing, Client shall bear the cost of all travel,
room and board and related expenses incurred by DTC in connection with providing
such Stage II Services, with reimbursements based on actual costs.
4.2 LATE PAYMENT PENALTY: Client shall pay DTC a late charge at the lesser of
one percent (1%) per month or the highest amount permitted by applicable law on
all payments past due.
ARTICLE V
EPC CONTRACT, EXCLUSIVITY AND BREAKAWAY DAMAGES
5.1 EPC CONTRACT: As soon as reasonably possible after a firm financing
commitment is received by Client, or at such earlier time as Client and DTC may
agree, Client and DTC shall enter into an EPC Contract pursuant to which DTC
shall provide the entire Plant under mutually agreeable terms. For purposes of
clarity and understanding between the Parties, which is hereby acknowledged, the
terms of the EPC Contract shall be based upon the Plant specifications, scope of
work definitions and commercial terms set forth in Exhibit A.
5.2 EXCLUSIVITY: During the term of this Agreement, Client shall not, and shall
not permit Owner or any other party associated with the Project, to enter into,
negotiate toward, or take any other action in furtherance of entering into any
agreement by which any other party would provide the technology, engineering,
construction, or equipment procurement services to be provided by DTC under this
Agreement or under the EPC Contract.
5.3 BREAKAWAY DAMAGES: If, during the term of this Agreement, or within Seven
Hundred Twenty (720) days after the termination of this Agreement, Client or
Owner begins the design and/or construction of the Plant without entering into
an EPC Contract with DTC or enters into any agreement with any other party to
provide the technology, engineering, construction or equipment procurement
services of all or any portion of the Project, Client shall pay a liquidated
damage amount to DTC in the amount of five percent (5%) of the Price set forth
in Section 5.2 above (hereinafter the "Breakaway Damages"). Such fee shall be
due and payable within thirty (30) days of the earliest of when Client shall
enter into an agreement with a third party for the provision of technology,
engineering, construction or equipment procurement services for the Project or
any form of such services related to the Project shall commence. The Parties
acknowledge and agree that because of the unique nature of the services to be
provided pursuant to this Agreement, it is difficult or impossible to determine
with precision the amount of damages that would or might be incurred by DTC as a
result of Client's election not to enter into an EPC Contract with DTC to
provide complete design/build services for the Plant and that an election by
Client to proceed with the Project without entering into such an agreement with
DTC will cause damage to DTC which may be difficult or impossible to determine
with precision; and that any sums which would be payable under this Section 5.4
are in the nature of liquidated damages, and not a penalty, and are fair and
reasonable and such payment represents a reasonable estimate by the Parties of
fair compensation for the losses that may reasonably be anticipated from such
termination.
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ARTICLE VI
INDEPENDENT CONTRACTOR
Nothing in this Agreement shall be deemed to make either Party an agent or
partner of the other, or to give either Party the right to bind the other in any
way.
ARTICLE VII
TERM AND TERMINATION
This Agreement shall commence on the Contract Date and shall continue for a
period of five (5) years unless earlier terminated as provided in this Article
VII. This Agreement may be terminated:
(a) at the election of the non-breaching Party, after giving thirty (30)
days written notice of a material breach of this Agreement, if such
breach is not cured within such 30-day period, or such longer time as
is reasonably necessary to cure such breach;
(b) at the election of DTC, at any time after one (1) year from the
Contract Date, if Project financing has not been obtained by that
date, and provided that notice of termination is given prior to the
date on which Financing for the Project is obtained;
(c) upon the mutual agreement of the Parties;
(d) upon the execution of an EPC Contract; or
(e) upon payment to DTC of the Breakaway Damages pursuant to the terms of
Section 5.4 above.
Upon termination of this Agreement for any reason, the license granted under
Article III above shall immediately cease, and each Party shall (i) immediately
cease use of all Confidential Information provided by the other, (ii)
immediately deliver to the disclosing Party all Confidential Information
provided to it, including all copies of the same, and destroy all materials
developed by it or any third parties to whom it disclosed such information which
was based upon such information, and (iii) certify to the disclosing Party that
it has done so. In particular, but without limitation, Client shall promptly
advise all actual and potential investors and lenders for the Project and all
regulatory authorities to which Confidential Information provided to Client
under the terms of this Agreement was previously provided, of the termination of
this Agreement, and shall withdraw any applications for financing or permits
that were based on the use of such Confidential Information.
ARTICLE VIII
DISPUTE RESOLUTION
In the event of any dispute arising under or in connection with this Agreement
or with the existence, validity, interpretation, breach or enforcement thereof,
either before or after the termination or expiration of this Agreement, the
Parties shall, upon the written request of either of them, enter into mediation
of such dispute pursuant to the applicable rules of the American Arbitration
Association, or such other rules or procedures as they may agree. Neither Party
shall file suit unless it has first complied with this provision and attempted
to resolve such dispute for a period of at least thirty (30) days. Nothing
contained herein, however, shall be deemed to prevent either Party from seeking
injunctive relief from any court of competent jurisdiction, without necessity of
posting bond, in case of a breach of Articles II or III above. If any action at
law or in equity, including an action for declaratory relief, is brought to
enforce or interpret the provisions of this Agreement, the prevailing Party
shall be entitled to recover reasonable attorney's fees and costs from the other
Party, which fees and costs may be set by the court in the trial of such action,
or may be enforced in a separate action and brought for that purpose, and which
fees and costs shall be in addition to any other relief which may be afforded.
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ARTICLE IX
LIMITATION OF DAMAGES AND REMEDY
Client's sole remedy with respect to any uncured breach by DTC of any provision
of this Agreement (other than a breach of Article II), including, without
limitation, any breach with respect to services performed by DTC under Section
1, shall be the termination of this Agreement and, for purposes of services
provided under Section 1 above, the refund to Client of the portion of the
compensation payable to DTC pursuant to the terms of Section 4.2 above, if any,
allocable to services not properly performed. In no case shall DTC be liable for
any other damages of any kind, whether direct, indirect, incidental,
consequential, reliance, exemplary or otherwise, with respect to any services
performed by it, or to its failure to perform services, under this Agreement.
ARTICLE X
GENERAL TERMS
10.1 WAIVER: The failure of either Party to insist on strict performance of any
of the provisions of this Agreement or to exercise any right pursuant to it,
will not be construed as a relinquishment of any right or a waiver of any
provision of this Agreement. No waiver of any provision or right shall be valid
unless it is in writing and signed by a duly authorized representative of the
Party granting the waiver.
10.2 NO ASSIGNMENT: Neither Party may assign or convey this Agreement or its
obligations under it without the other's prior written consent, except that
either Party may assign this Agreement to a purchaser of a controlling interest
in its capital stock or of substantially all of its assets as long as the
purchaser agrees to comply with all the selling Party's obligations set forth
herein.
10.3 GOVERNING LAW: This Agreement shall be governed and construed in accordance
with the laws of the state in which the Plant is to be constructed, without
regard to its choice of law rules.
10.4 NOTICES: Notices and other communications required or allowed by this
Agreement shall be in writing and sent by U.S. mail, express carrier, by hand,
or by facsimile transmission (with confirmation of transmission) as follows:
If to DTC, to: Delta-T Corporation
000 Xxxxxxxxx Xxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxx, Vice President
If to Client, to: NEDAK Ethanol, LLC
P. O. Xxx 000
000 Xxxxx Xxxx Xxxxxx
Fax: __________________
Attn: Xxxxx Xxxxx
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or such other addresses as a Party may specify by proper notice. Each notice so
given shall be deemed delivered, if by mail, upon the third (3rd) business day
after mailing, if by courier, upon delivery by the courier, and otherwise upon
receipt by the Party to whom notice is sent.
10.5 SURVIVAL: The provisions of Articles II, VIII, IX and Section 5.4 above
shall survive termination or expiration of this Agreement.
10.6 SEVERABILITY: If a court of competent jurisdiction determines that any
portion of this Agreement is illegal, unenforceable or invalid, then that
portion shall be considered to be removed from this Agreement, the remainder
shall remain in full force and effect, and the Parties shall cooperate to modify
this Agreement to cause it to conform to the original language of this Agreement
to the extent consistent with the finding of the court.
10.7 COUNTERPARTS: This Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed an original.
10.8 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the Parties relating to its subject matter, and supercedes all prior
representations, understandings and agreements, written or oral, express or
implied. This Agreement may be modified only by written agreement executed by
authorized representatives of each Party.
IN WITNESS WHEREOF the Parties have executed this Agreement on the dates set
forth below.
DELTA-T CORPORATION NEDAK ETHANOL LLC
By: By:
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Printed Printed
Name: Name:
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Title: Title:
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Date: Date:
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EXHIBIT A
PLANT SPECIFICATIONS, SCOPE OF SERVICES AND COMMERCIAL TERMS
BASELINE TERM SHEET
This Term Sheet contains the basic terms upon which DTC and Client (each of
which may be referred to as a "Party" or jointly as "Parties") agree to
negotiate a complete design/build Engineering, Procurement and Construction
Contract ("EPC Contract") pursuant to Section 5.1 of the Agreement. Neither DTC
nor Client shall have any legally binding obligations or liabilities to the
other under this Term Sheet, including but not limited to a legal duty to
continue negotiations or to reach a definitive agreement. No other binding
obligations or rights will be created, implied or inferred, until a definitive
EPC Contract that is mutually acceptable to the Parties is fully executed by
both Parties.
A.1 BASE CONTRACT PROJECT DESCRIPTION, BATTERY LIMITS AND APPROACH:
A.1.1 PROJECT DESCRIPTION: The Plant will be a dry mill ethanol plant
with a design capacity of 30 million gallons per year of undenatured
anhydrous ethanol, with a design basis for operating twenty-four (24)
hours per day for three hundred fifty (350) days per year.
A.1.2 SCOPE BATTERY LIMITS: The baseline scope battery limits of the
Plant will be comprised of:
A.1.2.1INSIDE BATTERY LIMITS: The Inside Battery Limits ("IBL")
scope for the Project includes the scope items that DTC typically
provides from project to project. Such items are indicated in the
Project Scope Overview, Section A.3 of this Exhibit A, as being
provided by "DELTA-T". Such items are the basis upon which the
Price for the EPC Contract, as set forth in Section 5.1, is
determined.
A.1.2.2OUTSIDE BATTERY LIMITS: The Outside Battery Limits ("OBL")
scope for the Project are the scope items that Client or Owner
often prefers to provide, at its discretion. Such items are
indicated in the Project Scope Overview, Section A.3 of this
Exhibit A, as being provided by "CLIENT". Exclusion of such items
is the basis upon which the Price for the EPC Contract, as set
forth in Section 5.1, is determined.
The Parties may agree to shift items from IBL to OBL or vice versa
during discussions, finalization efforts regarding Plant specifications
and design, and during final EPC Contract negotiations.
A.1.3 PROJECT APPROACH: DTC shall act as the Prime Contractor on the
Project with subcontractor(s) performing all construction services
necessary to construct the Plant for a fixed fee.
A.1.3.1Unless specifically noted otherwise, DTC's basis of design
assumes conformance to the applicable sections and parts of the
codes and standards set forth below, including the most recent
revisions and supplements at the time of the execution of the EPC
Contract.
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Applicable Standards Federal, State, Local, OSHA, Air
quality (or appropriate government
codes)
Building Codes UBC
Cable Marking ICEA (Insulated Cable Engineers
Association)
Concrete ACI (American Concrete Institute)
Corrosion XXXX (National Association of
Corrosion Engineers)
Electrical/Instrumentation NEMA (National Electrical
Manufacturers Association)
NEC (National Electrical Code)
ISA (Instrument Society of America)
Electrical Components UL (Underwriters Laboratories)
CSA (Canadian Standards Association)
Flanges ANSI standard
Fire Protection NFPA
Heat Exchanger TEMA (Tubular Exchanger Manufacturers
Association)
Nuts, Bolts, Fittings & Line Components ASTM (American Society of Testing
Materials)
SAE (Society of Automotive Engineers)
Painting SSPC (Steel Structure Painting
Council)
Personnel Safety OSHA (Occupational Safety and Health
Association)
Piping, pumps ANSI (American National Standards
Institute)
Structural Steel AISC (American Institute of Steel
Construction)
Tanks API (American Petroleum Institute)
Valves and Fittings MSS (Manufacturers Standardization
Society)
Vessels (Where required) ASME (American Society of Mechanical
Engineers)
Welding AWS (American Welding Society)
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A.2 EPC AGREEMENT STANDARD TERMS:
------------------------------------- ------------------------------------------
DELTA-T'S SCOPE OF WORK DTC will provide those IBL
services set forth in Section A.3 below,
which may be adjusted or revised based
upon mutual agreement of the Parties.
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INFORMATION, GOODS AND SERVICES TO Client shall provide all OBL services set
BE PROVIDED BY CLIENT forth in Section A.3 below and otherwise
set forth in the EPC Contract, which may
be adjusted or revised based upon mutual
agreement of the Parties.
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SCHEDULE Upon receipt by DTC of Client's notice
toproceed with Plant construction, a
targeted maximum schedule for completion
of 13 months will be developed, with
guaranteed Mechanical Completion to
occur within 15 months after which delay
damages in the amount of $5,000 per day
shall apply, up to DTC's limitation of
liability. In the event of delays caused
by Client, DTC shall be entitled to
reimbursement of unavoidable costs.
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FINAL ACCEPTANCE Upon Mechanical Completion, DTC and
Client shall startup the Plant and begin
one or more 72-hour Performance Test(s),
in accordance with agreed upon
procedures, of the Plant to ensure the
Plant meets specified performance
guarantees. Failure to meet such
performance guarantees 6 months from
performance of the initial Performance
Test will result in payment of
liquidated damages to Client by DTC up
to DTC's limitations of liability.
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PAYMENT Client shall pay DTC a fixed fee based
upon mutually agreed upon
specifications, design and scopes of
work between Client and DTC. Such fee
shall include a license fee for use of
DTC Technology. Payments shall be made
pursuant to a monthly payment
application. Such application will
reflect the completed progress of an
agreed upon schedule of values for
identifiable Plant areas. DTC shall
provide Client with waivers of
mechanic's liens.
------------------------------------- ------------------------------------------
RIGHTS OF CLIENT AND DELTA-T TO Both Client and DTC shall have the right
SUSPEND OR TERMINATE WORK to terminate the EPC Contract as a result
of bankruptcy or material breach by the
other. In addition, DTC shall have a right
to suspend work due to Client's failure to
make payments when due.
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PROJECT EXECUTION DTC shall keep a project manager
assigned to the Project all times and a
site manager on site during construction.
DTC will provide Client with project
progress reports upon request.
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WARRANTY EQUIPMENT: DTC will warrant that all
equipment is free from mechanical defect
and defect in material and workmanship
until the earlier of 12 months from
completion of the Performance Test, 18
months from mechanical completion or 24
months from delivery of that component
to the site. Client's sole remedy shall
be repair or replacement of the
defective material or equipment.
DESSICANT: DTC shall warrant that the
molecular sieve desiccant will not
deteriorate due to mechanical abrasion to
such an extent as to reduce the
dehydration capacity of the molecular
sieve below the specified performance
guarantee levels for a period of 5 years
from the earlier of 12 months from
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Performance Test completion or 18 months
from Mechanical Completion. Client's sole
remedy will be replacement of the
dessicant material, at no cost to Client,
within 1 year after Final Acceptance or a
pro rata share, on the basis of the number
of days remaining in the last 4 years of
the warranty period.
SERVICES: DTC shall warrant that services
provided will be of the reasonable skill
and care of the type normally provided by
design professionals for a period of 1
year after final acceptance or the last
date on which DTC performed work. Client's
sole remedy shall be to have DTC reperform
the services.
PROCESS: DTC will warrant that the Plant
will perform as designed during the
Performance Test. Client's sole remedy is
payment of liquidated damages by DTC up to
DTC's limitations of liability.
NO OTHER WARRANTIES SHALL BE PROVIDED
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INSURANCE Each Party shall provide Worker's
Compensation, as required by law,
Comprehensive Automobile Liability and
Comprehensive General or Commercial
Liability Insurance at limits that shall
be mutually agreed upon by the Parties.
DTC shall provide Professional Liability
Insurance at the limits of $2,000,000
per occurrence and in the aggregate.
Client shall provide Property Insurance
and All Risk Builder's Risk Insurance in
an amount not less than the value of the
work.
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INDEMNITIES Each Party shall indemnify the other for
personal injuries and property damage
resulting from the negligent acts or
omissions of each respective Party. In
addition, DTC shall warrant and indemnify
Client from infringement of United States
patents or trade secret actions based upon
DTC Technology.
------------------------------------- ------------------------------------------
LIMITATIONS OF LIABILITY Neither Party shall have any
liability to the other for indirect or
consequential type damages, except in case
of breach by Client of the Confidentiality
provisions contained in the EPC Contract.
DTC's cumulative liability, including
liquidated damages shall not exceed 10% of
the contract price.
------------------------------------- ------------------------------------------
CONFIDENTIALITY Client shall not use any confidential
information provided to it by DTC for
any other purpose other than those
permitted under the EPC Contract. DTC
shall remain the sole owner of the DTC
Technology and of all copyrights in
drawings and other documents provided by
DTC under the EPC Contract. DTC shall
grant Client a non-exclusive, paid-up,
non-transferable right to use in
perpetuity the DTC Technology, without
right to grant to others, solely for the
purpose of use at the Plant and for
maintenance, optimization or enhancement
of the Plant. Client shall not disclose
any DTC Technology for the purpose of
maintenance or repair of the Plant to
anyone other than its employees, unless
Client first gives DTC written notice of
the need for maintenance or repair and
sufficient time for DTC to respond.
------------------------------------- ------------------------------------------
PERFORMANCE GUARANTEES ANHYDROUS FUEL ETHANOL PRODUCTION RATE:
DTC shall guarantee a minimum production
rate, based on a formula of final Plant
nominal yearly production rate / 350
days / 24 hours per day, of undenatured
gallons per hour based on a minimum
feedstock specification of 56 lb/bushel
test weight corn containing a maximum of
15% moisture (by weight), a minimum of
70% dry starch (by weight) and a max of
1% foreign material (by weight). Such
undenatured ethanol shall meet
specifications for fuel ethanol per ASTM
D4806-01 approved 10AUG01.
12
ANHYDROUS FUEL ETHANOL YIELD: DTC shall
guarantee a minimum yield, based on
final Plant specifications, of 0.51
pounds of anhydrous undenatured ethanol
(average) to be produced from each 1.0
pounds of convertible starch content in
the corn feed to the Plant based on a
corn specification of #2 Yellow Dent
corn, minimum 56 lb/bushel, maximum 15%
(wgt) moisture, minimum 70% (wgt dry,
trash-free) starch, maximum 1% (wgt)
trash.
NATURAL GAS(1): DTC shall guarantee a
maximum natural gas consumption rate,
based on final Plant specifications, of
39,000 BTU's per gallon to operate the
boiler and DDGS dryer to produce
undenatured fuel ethanol at a minimum gas
quality of 939 BTU per standard cubic foot
(1 atm, 70(degree)F), 12% maximum (weight)
moisture content, and minimum boiler
thermal efficiency of 82%.
PROCESS ELECTRICAL CONSUMPTION(2): DTC
shall guarantee a maximum process
electrical consumption, based on final
Plant specifications, of 1.0 kWh per
gallon (average) of undenatured fuel
ethanol produced.
------------------------------------- ------------------------------------------
(1) The natural gas consumption rate indicated does not take into account
inclusion of an RTO. In the event that Client requires an RTO, such rate shall
be 41,000 BTU's per gallon. An adjustment will be made in the event a DDGS dryer
is not included in the Project.
(2) The process electrical consumption rate includes consumption for the entire
facility and ISBL items, but does not take into account inclusion of an RTO. In
the event that Client requires an RTO, such rate shall be 1.1 kWh per gallon
(average) of undenatured fuel ethanol produced. An adjustment will be made in
the event a DDGS dryer is not included in the Project.
A.3 PROJECT SCOPE OVERVIEW:
------------------------------------------------------------ ------------- ---------- ---------------
ENGINEERING & SUPPORT SERVICES UNIT QTY/SIZE PROVIDED BY
------------------------------------------------------------ ------------- ---------- ---------------
Process design, know how and technology license Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ---------------
Technical data for environmental permits Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ---------------
Detailed engineering design necessary for all IBL items Lump Sum - DELTA-T
to be provided by DELTA-T
------------------------------------------------------------ ------------- ---------- ---------------
Provide Plant operations and maintenance manuals for Lump Sum - DELTA-T
all IBL items to be provided by DELTA-T
------------------------------------------------------------ ------------- ---------- ---------------
Provide Plant personnel training and startup support Lump Sum 100 man DELTA-T
days
------------------------------------------------------------ ------------- ---------- ---------------
Prepare and file for environmental permits Lump Sum - CLIENT
------------------------------------------------------------ ------------- ---------- ---------------
Prepare/file all required federal/state/local permits Lump Sum - CLIENT
------------------------------------------------------------ ------------- ---------- ---------------
Detailed engineering for OBL items - - CLIENT
------------------------------------------------------------ ------------- ---------- ---------------
Performance Bonds for Construction/Equipment Supply - - -
------------------------------------------------------------ ------------- ---------- ---------------
------------------------------------------------------------ ------------- ---------- ---------------
SITE SERVICES
------------------------------------------------------------ ------------- ---------- ---------------
Provide soils testing and geotechnical evaluation - - CLIENT
------------------------------------------------------------ ------------- ---------- ---------------
Provide topographic and legal surveys - - CLIENT
------------------------------------------------------------ ------------- ---------- ---------------
Provide cleared, leveled, ready to build site(1) - - CLIENT
------------------------------------------------------------ ------------- ---------- ---------------
Provide all temporary power and other services - - CLIENT
necessary for construction
------------------------------------------------------------ ------------- ---------- ---------------
Provide all metered utility services to within 5 ft. of - - CLIENT
Plant battery limits (gas, power, water, sewers)
------------------------------------------------------------ ------------- ---------- ---------------
Provide for all necessary work related to pre-existing - - CLIENT
or unknown site conditions
------------------------------------------------------------ ------------- ---------- ---------------
13
Site grading and earthwork for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Concrete Work including foundations/slabs for IBL Lump Sum - DELTA-T
items(2)
------------------------------------------------------------ ------------- ---------- ------------
Septic tank and/or sanitary sewer system - - CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Gravel roadways at plant site:
------------------------------------------------------------ ------------- ---------- ------------
Total Length Max linear ft 2000 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Roadbed Preparation Max linear ft 2000 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Roadbed Maintenance during construction Max linear ft 2000 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Asphalt Overlay (if installed) Max linear ft 0 CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Rail spur:
------------------------------------------------------------ ------------- ---------- ------------
Rail Spur Est linear ft CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Rail Weigh Scale EACH CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Main rail switch(es) EACH CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Spur Switch(es) EACH CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Rail Cars stacked at each loading point Lump Sum CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Other Services:
------------------------------------------------------------ ------------- ---------- ------------
Truck Weigh Scale EACH 1 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
CO2 Plant (Client's option) PKG None -
------------------------------------------------------------ ------------- ---------- ------------
LPG Storage & Equipment PKG 1 CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Permanent fencing and security - - CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Solid waste disposal - - CLIENT
------------------------------------------------------------ ------------- ---------- ------------
------------------------------------------------------------ ------------- ---------- ------------
EQUIPMENT
------------------------------------------------------------ ------------- ---------- ------------
All required process equipment for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Process equipment installation and consumables for IBL Lump Sum - DELTA-T
items
------------------------------------------------------------ ------------- ---------- ------------
Utility equipment & systems
------------------------------------------------------------ ------------- ---------- ------------
Boiler Pkg. % of Design 150 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Cooling Tower and Water Treatment Pkg. % of Design 120 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Air Compressors Pkg. % of Design 200 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Cogen Pkg. (supply and install [S&I]) % of Design None CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Main electrical switchgear/transformers (S&I) % of Design 150 CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Feeders from switchgear to MCCs (S&I) % of Design 150 CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Utility equipment installation for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Piping materials (incl fittings, flanges, etc.) for IBL Lump Sum - DELTA-T
items
------------------------------------------------------------ ------------- ---------- ------------
Piping installation labor and supplies for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Electrical & instrumentation materials and supplies for Lump Sum - DELTA-T
IBL items
------------------------------------------------------------ ------------- ---------- ------------
Electrical & instrumentation installation for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Control System hardware and panels for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Control system software and programming for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Main fire loop w/ water storage, pump house, pump for Lump Sum - DELTA-T
IBL items
------------------------------------------------------------ ------------- ---------- ------------
Fire sprinkler systems per applicable codes for IBL items Lump Sum - DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Backup Power Supply (Client's Option) % of Design 120 CLIENT
------------------------------------------------------------ ------------- ---------- ------------
Backup Fuel (Client's Option) Days 2 CLIENT
------------------------------------------------------------ ------------- ---------- ------------
14
------------------------------------------------------------ ------------- ---------- ------------
BUILDINGS
------------------------------------------------------------ ------------- ---------- ------------
Administration Sq. ft 2000 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Maintenance Sq. ft 3000 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
All other buildings as needed per IBL process design Sq. ft Varies DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
------------------------------------------------------------ ------------- ---------- ------------
STORAGE CAPACITY (AT NOMINAL DESIGN OPERATING RATE)
------------------------------------------------------------ ------------- ---------- ------------
Grain storage Days 10 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Ethanol Storage:
------------------------------------------------------------ ------------- ---------- ------------
Main product tankage Days 10 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Day tank Hrs 24 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Rerun tank Hrs 24 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Denaturant tank Days 14 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
DDGS storage Days 10 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Wet Cake Pad Sq. Ft 5,000 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Condensed solubles (syrup) Tanks Days 2 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Process surge tanks Hrs 6 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Backup diesel generator/fire pump fuel storage tank Days 3 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Chemicals:
------------------------------------------------------------ ------------- ---------- ------------
Enzymes Days 14 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Sodium hydroxide Days 14 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Sulfuric Acid Days 14 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
Aqueous Ammonia Days 14 DELTA-T
------------------------------------------------------------ ------------- ---------- ------------
------------------------------------------------------------ ------------- ---------- ------------
GENERAL CAPABILITIES
------------------------------------------------------------ ------------- ---------- ------------
Feedstock handling data:
------------------------------------------------------------ ------------- ---------- ------------
Design basis feedstock Corn -
------------------------------------------------------------ ------------- ---------- ------------
Ability to separately store multiple feedstocks No -
------------------------------------------------------------ ------------- ---------- ------------
Separately store DDGS from multiple feedstocks No -
------------------------------------------------------------ ------------- ---------- ------------
Ability to feed wet grain from wet pad to dryer Yes -
------------------------------------------------------------ ------------- ---------- ------------
(1) Site shall be graded to a slope of +/- one inch in the IBL building system
areas.
(2) Soil to meet or exceed 3500 psf bearing capacity. Client shall be
responsible for additional costs incurred in the event soil fails to meet such
minimum standards.
Quantities and size information is subjective. They will be finalized, along
with plant options and cost, during negotiations.
15
EXHIBIT B
MONTHLY SERVICE PERFORMANCE REPORT
Delta-T Corporation
TO: Vice President - Marketing PERIOD: TO
---------------------------- -------------------------
FROM: PROJECT:
---------------------------- -------------------------
--------------------------------------------------------- -------------- ------------ -------------
Does Not
SERVICES PROVIDED Meet Meets Exceeds
Expectations Expectations Expectations
--------------------------------------------------------- -------------- ------------ -------------
STAGE II SERVICES
--------------------------------------------------------- -------------- ------------ -------------
Detailed Cost Budget
--------------------------------------------------------- -------------- ------------ -------------
Engineering SCHEDULE
--------------------------------------------------------- -------------- ------------ -------------
Master Project SCHEDULE
--------------------------------------------------------- -------------- ------------ -------------
Engineering Document List
--------------------------------------------------------- -------------- ------------ -------------
Identify and assign responsibility for required permits
--------------------------------------------------------- -------------- ------------ -------------
System Design Specifications
--------------------------------------------------------- -------------- ------------ -------------
Process Description
--------------------------------------------------------- -------------- ------------ -------------
Plot Plan
--------------------------------------------------------- -------------- ------------ -------------
Site Arrangement
--------------------------------------------------------- -------------- ------------ -------------
Facility Process Block Flow Diagram
--------------------------------------------------------- -------------- ------------ -------------
Facility Mass and Energy Balances
--------------------------------------------------------- -------------- ------------ -------------
Process Areas Flow Diagrams
--------------------------------------------------------- -------------- ------------ -------------
Process Areas Mass and Energy Balances
--------------------------------------------------------- -------------- ------------ -------------
Production & Utility Consumption
--------------------------------------------------------- -------------- ------------ -------------
Piping & Instrument Diagrams
--------------------------------------------------------- -------------- ------------ -------------
Major Equipment List
--------------------------------------------------------- -------------- ------------ -------------
Major Equipment Data Sheets
--------------------------------------------------------- -------------- ------------ -------------
Motor List
--------------------------------------------------------- -------------- ------------ -------------
Instrument and Input/Output List
--------------------------------------------------------- -------------- ------------ -------------
Valve List
--------------------------------------------------------- -------------- ------------ -------------
Pipeline List
--------------------------------------------------------- -------------- ------------ -------------
Instrument Data Sheets
--------------------------------------------------------- -------------- ------------ -------------
Major Process Equipment Procurement Technical
Specifications & Outline Drawings
--------------------------------------------------------- -------------- ------------ -------------
Plant Process Equipment and Skid Procurement Technical
Specifications
--------------------------------------------------------- -------------- ------------ -------------
Plant Process Equipment Bid Evaluation, Vendor
Recommendation, Vendor Drawing Review
--------------------------------------------------------- -------------- ------------ -------------
Plant Process Equipment Bid Packages
--------------------------------------------------------- -------------- ------------ -------------
16
--------------------------------------------------------- -------------- ------------ -------------
Structural Steel Arrangements
--------------------------------------------------------- -------------- ------------ -------------
Structural Steel Design
--------------------------------------------------------- -------------- ------------ -------------
Structural Steel Fabrication & Installation Technical
Specifications
--------------------------------------------------------- -------------- ------------ -------------
Foundation Design
--------------------------------------------------------- -------------- ------------ -------------
Site Geotechnical Data
--------------------------------------------------------- -------------- ------------ -------------
Site Preparation
--------------------------------------------------------- -------------- ------------ -------------
Construction packages for civil, concrete work
--------------------------------------------------------- -------------- ------------ -------------
Finalized contract for complete engineering,
procurement, construction and startup
--------------------------------------------------------- -------------- ------------ -------------
Support to NEDAK in financing and permitting
--------------------------------------------------------- -------------- ------------ -------------
ADDITIONAL COMMENTS:
-----------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BY:
------------------------------------
PRINTED NAME:
------------------------------------
TITLE:
------------------------------------
DATE:
------------------------------------
17
EXHIBIT C
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into this 15 day of November, 2005 by and between
DELTA-T CORPORATION, A VIRGINIA CORPORATION] ("Company"), and NEDAK Ethanol LLC,
a Nebraska corporation ("Recipient"). Delta-T and the Recipient may be referred
to herein individually as a "Party" and collectively as "Parties".
WHEREAS, Company is in the business of designing, developing and constructing
equipment and facilities which perform a wide range of chemical process
applications including, without limitation, ethanol production and refining,
fermentation, evaporation, distillation, dehydration, adsorption, chemical
separations, membrane filtration and waste treatment, and
WHEREAS, Recipient is in the business of __________________________________, and
has, or plans to, enter into a contract with _______________________
("Customer") to invest in, or provide certain goods or services in connection
with an ethanol plant being built by Customer, and
WHEREAS, the plant being built by Customer is based on certain propriety
information provided by Company and Recipient needs to have access to such
information in connection with its contract with Customer, and Customer is not
permitted to disclose any of such information to Recipient without benefit of
this Agreement,
IN CONSIDERATION of the mutual terms and conditions of this Agreement, and other
good and valuable consideration receipt of which is hereby acknowledged, Company
and Recipient agree as follows:
1. CONFIDENTIAL INFORMATION:
1.1 DEFINITION OF CONFIDENTIAL INFORMATION: "Confidential Information"
shall mean (a) all information about or related to the business of
Company, including without limitation, plans, proposals, customers or
customer lists, operating costs, prices it has offered or obtained for
its products or technology, and (b) all technical information, including
without limitation, processes, inventions, designs, drawings, methods,
systems, test data, and specifications, which is disclosed by Company to
Recipient, whether disclosed orally, visually or in written or other
tangible form.
1.2 EXCLUSIONS: "Confidential Information" shall not, however, include
information which a Recipient, claiming the exclusion, can demonstrate
by documentary evidence: (a) was in its possession prior to receipt from
Company; (b) was in the public domain at the time of disclosure or
thereafter enters into the public domain through no breach of this
Agreement by Recipient or is in general use in the trade without
violation by Recipient of this Agreement, or violation by any other
party of an obligation not to disclose it; or (c) is disclosed to
Recipient by a party other than Company who is under no obligation not
to disclose it.
18
2. NO USE OR DISCLOSURE:
2.1 RESTRICTIONS ON COPYING, USE AND DISCLOSURE: Recipient shall not,
without Company's prior consent: (a) divulge, disclose or communicate
any Confidential Information to anyone other than employees of the
Recipient who have a need to have access to such information in order to
fulfill the purpose set forth above; (b) make any copy of any such
information; or (c) use any Confidential Information for any purpose
other than the purposes set forth above. Recipient shall take all
reasonable steps to protect Confidential Information from improper use
or disclosure, and shall in no case use less care to protect
Confidential Information than it uses to protect its own proprietary or
confidential information.
2.2 DISCLOSURES REQUIRED BY COURT ORDER: If any Recipient is required to
disclose any Confidential Information by applicable law, regulation or
legal process, Recipient shall notify Company of such request or
requirement and copies of all documents relevant to the request or
requirement. Recipient shall give such notice promptly, and in
sufficient time to allow Company to seek a protective order or other
applicable remedy. Recipient shall not disclose any Confidential
Information due to a requirement of law, regulation or legal process
unless: (a) it has first given the notice required by this Section 2.2
and Company has either given Recipient written permission to disclose
it, or Company has failed to respond to Recipient's notice at least 24
hours prior to the time that Recipient is required to make such
disclosure; (b) it is advised by written opinion of its counsel that it
is legally required to disclose such information; and (c) it has used
its best efforts to obtain all reasonable assurances from the party or
parties to whom the information is to be disclosed that the information
will not be used or disclosed for any purpose other than the purpose for
which the applicable law, regulation or legal process requires its
disclosure.
3. DESIGNATION OF PERSON WITH ADMINISTRATIVE RESPONSIBILITY: Recipient shall
designate one of its employees or representatives to be responsible for
fulfilling its obligations under this Agreement and shall advise Company in
writing of such employee's name and title within four (4) business days of any
change of such designation. Until further notice, the individual so designated
is as follows:
NAME ________________________
TITLE ________________________
4. TERM AND TERMINATION: The term of this Agreement shall commence on the date
first written above and continue until terminated by written notice of either
Party to the other, but Recipient's obligations under Section 2 of this
Agreement shall survive until such time, if ever, that the Confidential
Information falls within one or more of the exclusions set forth at Section 1.2
above. Within thirty (30) calendar days of termination of this Agreement,
Recipient shall, without request by Company, deliver to Company all of the
Confidential Information that it received from Company in tangible form, and all
copies thereof, and shall destroy all documents and other tangible items
containing any of such Confidential Information and shall certify to Company in
writing that it has done so.
5. NO LICENSE OR OTHER RIGHTS: Nothing in this Agreement shall constitute or
otherwise be construed as granting to Recipient any interest or license in any
Confidential Information, or creating any obligation on the part of any Party
hereto to enter into any further agreement or business arrangement.
6. REMEDIES FOR BREACH: Recipient agrees that any breach of this Agreement shall
cause Company irreparable harm. Accordingly, and in addition to any other
remedies that Company may have at law or in equity, Company shall be entitled to
obtain injunctive relief against Recipient to prevent any continuing breach, and
without posting or filing any bond or other security. All costs, expenses and
attorney's fees resulting from the litigation or arbitration of any claim under
this Agreement shall be paid by the losing party to the prevailing party.
19
7. EXPORT CONTROL: Recipient agrees that, except as allowed under applicable
U.S. Export license provisions, no technical information furnished to it
hereunder shall be disclosed by it to any non-U.S. national, firm, or country,
including foreign nationals employed by or associated with such party, nor shall
such party allow any re-export of any technical information without first
complying with all applicable U.S. Government export control laws and
regulations.
8. GENERAL PROVISIONS:
8.1 ASSIGNMENT: This Agreement may not be assigned by Recipient to any
other party.
8.2 CHOICE OF LAW: This Agreement shall be governed by and construed
under the laws of the Commonwealth of Virginia, without regard to the
choice of law provisions thereof.
8.3 NOTICES: Any notice required or permitted to be given under this
Agreement shall be given in writing and shall be addressed:
If to Company, to: Delta-T Corporation
000 Xxxxxxxxx Xxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxx
If to Recipient, to: ___________________
___________________
Attn.: ______________
8.4 SEVERABILITY: If for any reason a court of competent jurisdiction or
an award in arbitration finds any provision of this Agreement to be
unenforceable, the Parties hereto agree that they shall amend this
Agreement to allow for enforcement to the maximum extent enforceable and
the remainder of this Agreement shall continue in full force and effect.
8.5 HEADINGS AND CAPTIONS: The headings and captions in this Agreement
are for convenience only and are not to be considered in construing this
Agreement. All references to any article, section or paragraph numbers
shall be deemed to be references to an article, section or paragraph of
this Agreement unless otherwise expressly stated.
8.6 SURVIVAL OF TERMS: The obligations of Recipient under Section 2 of
this Agreement shall survive as provided in Section 4 above, and the
Parties' obligations under Section 6 of this Agreement shall survive
termination of this Agreement.
8.7 ENTIRE AGREEMENT: This Agreement sets forth the entire agreement
among the Parties with respect to the subject matter hereof and
supersedes any prior agreement related to thereto. No addition or
amendment may be made to this Agreement except by a writing signed by
all Parties.
20
8.8 NO WAIVER: Failure by any party to this Agreement to enforce any
provision of this Agreement with respect to any breach thereof, shall
not be deemed a waiver of any right to enforce any other breach of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their authorized
representatives.
COMPANY CUSTOMER / CLEINT NAME
By: By:
--------------------------- -------------------------------
Printed Printed
Name: Name:
--------------------------- -------------------------------
Title: Title:
--------------------------- -------------------------------
Date: Date:
--------------------------- -------------------------------
21
EXHIBIT D - SCOPE OF SERVICES FOR PHASE II ENGINEERING
PREPARATION
TASK/DELIVERABLE DESCRIPTION ESPONSIBILITY
Detailed Cost Budget DELTA-T
Engineering SCHEDULE DELTA-T
Master Project SCHEDULE DELTA-T
Engineering Document List DELTA-T
Identify and assign responsibility for required permits DELTA-T
System Design Specifications DELTA-T
Process Description DELTA-T
Plot Plan OWNER
Site Arrangement DELTA-T
Facility Process Block Flow Diagram DELTA-T
Facility Mass and Energy Balances DELTA-T
Process Areas Flow Diagrams DELTA-T
Process Areas Mass and Energy Balances DELTA-T
Production & Utility Consumption DELTA-T
Piping & Instrument Diagrams DELTA-T
Major Equipment List DELTA-T
Major Equipment Data Sheets DELTA-T
Motor List DELTA-T
Instrument and Input/Output List DELTA-T
Valve List DELTA-T
Pipeline List DELTA-T
Instrument Data Sheets DELTA-T
Major Process Equipment Procurement Technical Specifications & DELTA-T
Outline Drawings
Plant Process Equipment and Skid Procurement Technical DELTA-T
Specifications
Plant Process Equipment Bid Evaluation, Vendor Recommendation, DELTA-T
Vendor Drawing Review
Plant Process Equipment Bid Packages DELTA-T
Structural Steel Arrangements DELTA-T
Structural Steel Design DELTA-T
Structural Steel Fabrication & Installation Technical
Specifications DELTA-T
Foundation Design DELTA-T
Site Geotechnical Data OWNER
Site Preparation OWNER
Construction packages for civil, concrete work DELTA-T
Finalized contract for complete engineering, procurement, DELTA-T
construction and startup
Support to NEDAK in financing and permitting DELTA-T
22
EXHIBIT E: PHASE II PRELIMINARY SCHEDULE
ID Task Name Start
1
2
3 Phase II Notice to Proceed Mon. 10/31/05 - October 31, 2005
4 Process Engineering Tue. 11/1/05 - March 2006
5 Civil Engineering Tue. 11/1/05 - March 2007
6 Concrete Design Tue. 11/29/05 - April 2006
7 Concrete Foundations Tue. 4/4/06 - September 2006
8 Building Erection Mon. 6/5/06 - October 2006
9 Mechanical Mon. 5/1/06 - December 2006
10 Piping Mon. 5/1/06 - Feb 2007
11 Electrical & Istrumentation Mon. 5/1/06 - March 2007
12 Startup & Commissioning Mon. 1/1/07 - April 2007
13 Owner Production Ethanol Mon. 4/23/07 - April 23, 2007
