Exhibit 10.2
ETHANOL MARKETING CONTRACT
This Ethanol Marketing Contract is made and entered into this 7TH day
of October, 1999, by and between DAKOTA ETHANOL, L.L.C., having an address of
Xxxx Xxxxxx Xxx 000, Xxxxxxxxx, Xxxxx Xxxxxx 00000 (hereinafter referred to as
"Owner"), and ETHANOL PRODUCTS (a division of Broin Enterprises, Inc.), having
an address of 00000 Xxxxxxxxxx Xxx, Xxxxx Xxxxx, Xxxxx Xxxxxx, 00000
(hereinafter referred to as "Marketer").
W I T N E S S E T H:
WHEREAS, the Owner would like to utilize the services of an ethanol
marketer to market fuel grade ethanol from its plant near Wentworth, South
Dakota; and,
WHEREAS, the Marketer is in the business of marketing fuel grade
ethanol in the United States; and,
WHEREAS, the parties desire to enter into and execute this Contract for
the purpose of setting forth terms and conditions.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties agree as follows:
AGREEMENT
The Owner gives the Marketer exclusive rights to market all Fuel Grade
Ethanol from its ethanol plant near Wentworth, South Dakota. Marketer will sell
the Owner's ethanol at the best market prices available. Marketer shall perform
its services in a manner that will maximize the long-term success and
profitability of the Owner. To this end, Marketer agrees to perform in a
professional and competent manner.
The Marketer will market all ethanol produced for an initial period of
five years from the date the plant first produces ethanol.
The Owner will inform the Marketer of daily inventories, plant
shutdowns, daily production projections, and any other information requested by
the Marketer.
FEES
The Marketing Fee will be $.004/gallon of ethanol invoiced or sold by
Owner F.O.B. the plant site near Wentworth, South Dakota. Marketer will be
responsible for billing and receipt of payment for all ethanol marketed. Each
Thursday a payment will be made to the Owner for all ethanol invoiced 13 - 19
days prior that have been paid by the customer. The Marketing Fee shall not be
earned until the customer has paid for the ethanol purchased. The Marketing Fee
will be deducted from each payment to Owner.
LEASED MARKETING FACILITIES/LONG-TERM STORAGE
If it is deemed necessary by Marketer to market ethanol through Leased
Marketing Facilities such as Xxxxxxxx or Xxxxx pipeline terminals where ethanol
is blended and sold to fuel distributors, Owner will pay all lease costs and
throughput costs associated with such leases.
If it is determined by Marketer that Long-Term Storage is necessary,
Marketer will not begin any long-term storing of ethanol without approval of a
long-term storage plan by the Owner.
COLLECTIONS
The Marketer will make reasonable efforts to review the
creditworthiness of the Owner's ethanol customers. As deemed necessary, at
Marketer's discretion, Marketer will obtain, at its expense, Credit Bureau
reports or Dun and Bradstreet reports for customers of the Owner. Marketer will
then recommend to Owner which, if any, accounts Marketer feels should be
rejected. The Owner will have the right to request and review the rejection
recommendations and/or reports and notify the Marketer in writing of any
customers that should not be rejected and additional customers that are rejected
by the Owner. The Marketer will not sell product to any customers rejected by
the Marketer or Owner.
The Marketer will make reasonable efforts to collect any past due
accounts. Any collection agency fees resulting from the collections process will
be borne by the Owner. All accounts receivable losses arising from the marketing
of ethanol are the sole responsibility of the Owner.
Marketer will be responsible for invoicing all loads, receiving
payments from customers, and paying freight when necessary. The Owner will be
responsible for furnishing Marketer a report by 10:00 AM each workday of the
previous day's shipments, and Marketer will then send to the customers invoices
the same day.
REPORTING
Marketer will provide Owner with the following reports on a monthly basis during
the term of this Contract:
LIST OF REPORTS
Report Frequency
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Shipping Orders Daily
Sales Report Weekly
Market Information Weekly
TERM
The term of this Contract is for a period of five (5) years from the
start of production of ethanol. This Contract renews automatically for an
additional five (5) years, at the end of each five (5) year period, unless
discontinued by either party. Notice of discontinuation must be made in writing
at least three (3) months prior to the expiration date of the contract.
INDEMNIFICATION
INDEMNITY THE OWNER. The Owner shall indemnify, hold harmless and
defend the Marketer, and its officers, directors, employees and agents from and
against any and all claims, actions, damages, liabilities and expenses,
including but not limited to, attorneys' and other professional fees, in
connection with loss of life, personal injury and/or damage to property of third
parties, arising from or out of the Marketer's services provided under the terms
and conditions of this Agreement, except that the Owner shall not indemnify,
hold harmless and defend the Marketer from (i) the negligent or intentional acts
of the Marketer and its officers, directors, employees and agents, (ii) any act
beyond the scope of the Marketer's services to be rendered under the terms and
conditions of this Agreement, and (iii) any violation of laws, regulations,
ordinances and/or court orders. Any and all liability related to the product
shall remain the sole liability of the Owner.
INDEMNITY BY THE MARKETER. The Marketer shall indemnify, hold harmless
and defend the Owner, and its governors, employees and agents from and against
any and all claims, actions, damages, liabilities and expenses, including, but
not limited to, attorneys' and other professional fees, in connection with loss
of life, personal injury and/or damage to property of third parties arising from
or out of (i) the negligent or intentional acts of the Marketer and its
officers, directors, employees and agents, (ii) any act beyond the scope of the
Marketer's services to be rendered under the terms and conditions of this
Agreement, and (iii) any violation of laws, regulations, ordinances and/or court
orders.
ENTIRE AGREEMENT AND AMENDMENT
This Contract contains the entire Ethanol Marketing agreement between
the parties. No oral statements, representations or prior written matter not
contained in this contract shall have any effect regarding Ethanol Marketing.
This Contract shall not be amended or modified in any manner except by a writing
executed by both parties.
NO ASSIGNMENT
Marketer shall not, without the prior written consent of the Owner,
assign, transfer or subcontract any rights or obligations of the Marketer under
this Contract. If the shareholders of the Marketer sell, assign or transfer a
controlling interest in the Marketer, or if the Marketer sells substantially all
of its assets, the Owner shall have the right to terminate this Contract without
liability to the Marketer.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on
the date and year first above written.
DAKOTA ETHANOL, L.L.C. (Owner)
By: /s/ Xxxxxxx Xxx Xxxxxx
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Its Chairman - Xxxxxxx Xxx Xxxxxx
and
By: /s/ Xxxxx X. Xxxxx
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Its Secretary - Xxxxx X. Xxxxx
ETHANOL PRODUCTS (Marketer)
(A division of Broin Enterprises, Inc.)
By: /s/ Xxxx Xxxxx
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C.E.O.
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Title
FIRST AMENDMENT TO
ETHANOL MARKETING CONTRACT
This First Amendment to Ethanol Marketing Contract is made and entered
into this 7th day of June, 2001, by and between Dakota Ethanol LLC, having an
address of XX Xxx 000, Xxxxxxxxx, Xxxxx Xxxxxx 00000 (the "Owner"), and Ethanol
Products, LLC, having an address of 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000 (the
"Marketer").
R E C I T A L S
A. Owner and Broin Enterprises, Inc. made and entered into an
Ethanol Marketing Contract dated October 7, 1999 (the
"Contract").
X. Xxxxx Enterprises, Inc. assigned to Ethanol Products, LLC the
Contract.
C. Owner and Marketer desire to amend the Contract in accordance
with the terms and conditions contained in this Amendment.
NOW, THEREFORE, the parties amend the Contract by adding the following
provisions:
ADMINISTRATIVE SERVICES
Marketer will provide to Owner the following Administrative Services:
a. DISTRIBUTION SERVICES. Marketer will be responsible for an
on-going program to conduct carrier audits and will be
responsible for carrier selection and dispatching, freight
rate bundling and distribution optimization.
b. TRANSACTION PROCESSING. Marketer will be responsible for
ethanol licensing, monitoring and state compliance reporting,
state surety bonding, tax collection, remittance and
reporting, purchase and sales acknowledgments, late payment
collections, and electronic funds transfer services.
c. INVENTORY MANAGEMENT. Marketer will be responsible for
monitoring future ethanol stock levels projected for Owner's
plant to facilitate the marketing program established by
Marketer.
d. PROPRIETARY SOFTWARE. Marketer will install and maintain a
proprietary software system to handle linked transaction
processing and necessary date access to ethanol marketing and
sale information.
For the Administrative Services, Owner shall pay Marketer an Administrative Fee
of $0.0025/gallon of Ethanol as produced by Owner.
VALUE-ADDED SERVICES
Marketer and Owner mutually recognize that on occasion Marketer will be
able to develop a sale opportunity for Owner's ethanol that is above the market
value for sales typically completed on a spot market or contract rollover basis
(a "value-added transaction"). Examples of value-added transactions include the
building of new markets, time exchanges, location exchanges, rack pricing, and
negotiation of spread differentials. The parties acknowledge that new
value-added opportunities not yet known to the parties are expected to be
developed by Marketer in the future.
Owner and Marketer acknowledge that for value-added opportunities, the
Marketing Fee is insufficient to compensate Marketer for additional income and
profits generated for Owner. In order to facilitate the completion of
value-added opportunities which occur and disappear quickly within the market,
Owner agrees to identify representatives of Owner with authority to approve
value-added transactions. Marketer will upon identification of a value-added
opportunity present to any one of Owner's representatives the value-added
opportunity for consideration. Marketer will explain to Owners' representative
the value-added opportunity and a proposed compensation arrangement for
Marketer. Owner has complete and sole discretion to accept or reject the
value-added opportunity and fee proposal. If agreed upon by Owner's
representative, Marketer will confirm in writing to Owner's representative the
agreement of the parties regarding the value-added opportunity. In this case,
Marketer shall complete the value-added transaction in accordance with the
agreement of the parties. If Owner's representative declines to participate in
the value-added opportunity, then Marketer will not complete the value-added
opportunity for Owner's account.
BINDING EFFECT
The Contract shall remain in full force and effect, except to the
extent modified in the Amendment.
Dated this 7th day of June, 2001.
Dakota Ethanol, LLC
By /s/ Xxxx Xxx Xxxx
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Its Chairman
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ETHANOL PRODUCTS, LLC
By /s/ Xxxxxx X. Xxxxxx
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Its President
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