EXHIBIT 10.1
PROJECT DEVELOPMENT AGREEMENT
BETWEEN
NEDAK ETHANOL, LLC
AND
DELTA-T CORPORATION
THIS AGREEMENT is entered into and becomes effective as of the 8th day
of March, 2005, 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
Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Client" or "Owner"), which parties
may be referred to individually as a "Party" or jointly as the "Parties."
WHEREAS, Client is exploring a business concept for the development,
construction and operation of a fuel ethanol production facility having the
capacity to produce 30 million gallons per year, more or less, at a site to be
located in or near Xxxx County, Nebraska (the "Plant"), and
WHEREAS, DTC is in the business of developing, designing, and supplying
commercial technologies, equipment and plants to perform a wide range of process
industry applications including, without limitation, grain processing, alcohol
production and refining, evaporation, distillation, dehydration, adsorption,
solvent recovery, membrane systems, 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 (references in this
Agreement to DTC shall hereinafter also include TIC and such other affiliates
and/ or consultants of DTC or TIC as may participate in carrying out DTC's
obligations hereunder); and
WHEREAS, Client wishes to retain D'FC to provide professional advice,
business and technical information, design and engineering, project development
assistance and related services in order to assist Client in assembling all of
the information, permits, agreements and resources necessary for construction of
Plant (the "Project"), and DTC is willing to provide such services on the terms
and conditions set forth herein, with the provision that DTC is granted the
"First Right of Refusal" to design and build the Plant as defined in Section 5.
WHEREAS, Client recognizes that DTC is foregoing other significant
business opportunities in order to perform such services, and that DTC is only
willing to enter into this Agreement with the expectations set forth in the
preceding paragraph;
NOW THEREFORE, IN CONSIDERATION of the mutual terms and conditions of
this Agreement, Client and DTC agree as follows:
1A. SCOPE OF SERVICES: Client hereby retains DTC, and DTC hereby agrees
to provide, per the terms of this Agreement, the services described hereunder:
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o Assist with Plant site evaluations and site selection.
o Provide preliminary definition of Plant design basis customized
for Plant site, including Plant size and major specifications.
o Perform preliminary analysis of identified Project alternatives
and options.
o Provide preliminary profitability forecasts and sensitivity
analyses for key variables for selected Project alternatives.
o Provide support for organizational and Project development
meetings.
o Provide technical support for environmental permitting engineer
(engaged by Owner) to help obtain required permits and approvals.
o Provide other general information including a DTC opinion of
Project feasibility to support the decision-making process for
proceeding to the next stage of project development.
o Assist in the development of strategy and timeline to execute the
business concept.
o Provide a Business Plan for the project in coordination with the
Client documenting the economic and technical factors impacting
the project, the expected economic outcome based on reasonable
assumptions, and the business strategies that will be used to run
the business.
o Provide assistance with obtaining equity and debt financing for
the Project.
o Perform other Project definition activities, as mutually agreed
by the Parties in writing.
1B. CLIENT'S RESPONSIBILITIES: Client shall perform the following tasks
to assure development of the Project, and such other tasks as may be required to
achieve Project execution:
o Create a development strategy and timeline as a basis for the
Project business concept, to include such typical project
activities as securing necessary equity, financing, permits, and
government approvals;
o Cooperate with DTC to define Project specifications, and define
Project development roles for all participating parties;
o Develop a preliminary financing memorandum, in cooperation with
DTC, based on the information provided by DTC under Section I A
above;
o Include DTC in all significant communications concerning Project
development;
o If the decision is made to go forward with full Project
development, retain an environmental engineering firm to apply
for all required environmental permits and approvals.
o Make all local arrangements to secure an approved project site.
o Otherwise cooperate with DTC in development of the Project as
mutually agreed between the Parties.
o Notify DTC promptly of any plan or intent on the part of Client
to form, or participate in, or promote a different entity
(hereinafter referred to as "Owner"), or alter the Project
ownership structure in such a way that Client would not have
sufficient control over such Owner to require it to perform the
obligations described in this Agreement, and to assist DTC in
causing such Owner to become a party to this Agreement, or
another similar agreement acceptable to DTC.
o Perform any other typical "Owner" duties and tasks required to
establish and maintain a viable and legal business structure and
project development effort.
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2. CONFIDENTIAL INFORMATION: "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
("Intellectual Property") and other proprietary technical, financial and
business information provided by DTC: or TIC, either directly or indirectly or
through DTC, which shall be deemed Confidential Information of DTC or TIC, as
the case may be, and (ii) all business plans, and other sensitive information
about the Project disclosed by Client to DTC during the term of this Agreement,
which shall be deemed Confidential Information of Client (except to the extent
that it consists of Confidential Information of DTC). All Confidential
Information shall be protected by the Parties as provided under this Section.
Neither Party shall use any Confidential Information of the oilier except for
the purposes contemplated in this Agreement.
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 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. All Intellectual
Property included in any reports or drawings or other materials disclosed by DTC
and/or TIC to Client under this Agreement, whether developed independently or
jointly with Client, shall be solely the property of DTC and/or TIC, as the case
may be, DTC and TIC, including such of its affiliates as shall provide
Confidential Information to Client under the terms of this Agreement, hereby
grant Client a limited license to use all such Intellectual Property solely for
Client's internal use in evaluating the Project. In particular but without
limitation, under no circumstances may Client disclose any such information to
any third party without DTC and: or TIC's express written consent, respectively,
nor may Client use the same to assist it in negotiating or entering into an
agreement with any third party to perform engineering services or provide a
license of technology to Client.
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 notice of such order or process so the other 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.
Notwithstanding anything set forth above, however, neither Party shall have any
obligations under this Section with respect to Confidential Information which
fall under one or more of the following exclusions and can be shown to exist
through documentary evidence: (a) was in the receiving Party's possession prior
to receipt from the other; (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 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; (c) is disclosed to the receiving
Party by someone other than the other Party to this Agreement by a party who is
under no obligation not to disclose it. The provisions of this Section shall
survive termination of this Agreement until such time, if ever, that such
information falls under one or more of the exclusions described in this
paragraph.
3. COMPENSATION: During the tern of this Agreement. DTC shall xxxx Client One
Hundred thousand dollars ($100,000.00), to be paid in three (3) equal payments,
for the services provided pursuant to Section I.A above. The first payment will
be made within 5 days of the signing of this agreement. The second payment will
be made 30 days thereafter, and the final payment will be made when the Business
Plan is delivered to Owner. Notwithstanding the foregoing, Client shall bear the
cost of all travel, room and board and related expenses ("Travel Expenses")
incurred by DEC in connection with providing on-site services or related to any
and all meetings between Client and DTC representatives to the extent necessary
to support Client's Project development activities during the first One Hundred
Twenty (120) days of the term of this Agreement. Such Travel Expenses will be
reimbursed by Client to DEC within fifteen (15) days of receipt of invoice
documenting such expense. Client agrees to give DTC a minimum of one (I) week
notice of such requested travel, and to coordinate its requested travel schedule
with DTC's other travel commitments to the greatest degree possible. Any DTC
services provided to Client after the first one hundred twenty (120) days of the
term of this Agreement will be provided at commercial rates in force by DTC at
that time or per Exhibit A to this Agreement, and Client shall pay for such
services within fifteen (15) days of the receipt of DTC's invoices. If the
Project development is proceeding with a reasonable expectation of ultimate
success, CJTC: may elect to perform all or a portion of its work after the
120-day initial period at no cost to the Client except for the Travel Expenses
referred to above.
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4. INDEPENDENT CONTRACTOR: DTC and Client are independent contractors, and
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. Client will designate an individual to serve as DTC's primary contact for
the work performed under this Agreement. DTC shall be entitled to rely on, and
shall proceed according to the direction of that individual, or such other
individual as Client may appoint in writing with respect to this Agreement.
5. EXCLUSIVE RELATIONSHIP AND RIGHT OF FIRST REFUSAL: During the term of this
Agreement and for a period of two (2) years after termination, Client shall not
enter into, negotiate, or take any other action in furtherance of entering into
an agreement with any party other than DTC related to the supply of engineering
and construction services and/or the license of ethanol process technology for
the purpose of ethanol production. Client agrees to grant, and hereby grants to,
DTC the irrevocable and exclusive right to construct the Plant for Client at the
same construction cost and based on the same or equivalent technical
specifications as any qualified third-party bona fide fixed-price offer received
by Client for the design and: or construction of the Plant. Notwithstanding the
foregoing, Client and DTC agree to continue their good faith development work
and negotiations regarding the Plant.
6. TERM AND TERMINATION: This Agreement shall commence on the date first above
written and shall continue until: (a) the Parties enter into a contract to
design; build the project (EPC Contract); or (b) this Agreement is terminated in
writing by either Party. Either Party may terminate this Agreement for any
reason or, in case of material breach by the other, if such breach is not cured
within thirty (30) days after receipt of the breaching Party of notice of such
breach. Such termination shall become effective thirty (30) days after receipt
of such written termination notice as provided for in this Section 6.
8. 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. Nothing herein contained, 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 Section
2 above.
9. LIMITATION OF DAMAGES AND REMEDY: Client's sole remedy with respect to
services performed by DTC under this Agreement is termination as provided at
Section 6 above. In no case shall DTC be liable for any damages of any kind,
direct, indirect, incidental, consequential, or otherwise, with respect to any
services performed by it under this Agreement, except in case of breach of
Section 2 above,
10. 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 it
grants 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 he valid unless it is in writing and signed by a duly authorized
representative making the waiver.
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10.2 NO ASSIGNMENT: Neither Party may assign or convey this Agreement or
its obligations hereunder without the other's prior written consent.
10.3 GOVERNING LAW: This Agreement shall be governed and construed in
accordance with the laws of the Slate of Nebraska, 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 as follows:
If to DTC, to: Delta-T Corporation.
000 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx. XXX 00000
FAX: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxx, Vice President
If to Client to: NEDAK Ethanol, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx, XXX 00000
FAX:
Attn: Xxxxxx Xxxxxxxxx, President
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
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 Sections 2, 5, 8. and 9 above shall
survive termination or expiration of this Agreement.
10.6 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
between the Parties relating to its subject matter, and supersedes all
prior representations, understandings and agreements. written or oral.
express or implied. The Agreement can 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: /s/ X. X. Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------ ---------------------------------
Printed Printed
Name: X. X. Xxxx Xxxxx Name: Xxxxxx Xxxxxxxxx
------------------------ ---------------------------------
Title: President Title: President
------------------------ ---------------------------------
Date: 3/14/05 Date: 3-8-05
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EXHIBIT A
COMMERCIAL SERVICE RATES
DTC CORPORATION
Category of Service Provider Hourly Rate
Principal $235
Senior Technical Consultant $150
Project Manager $130
Engineering Manager $130
Senior Process Engineer $110
Senior Mechanical Engineer $110
Senior I & C Engineer $110
Process Engineer $ 80
Mechanical Engineer $ 80
I & C Engineer $ 80
Designer/Draftsman $ 60
Project Engineer $ 80
Cost & Scheduling Engineer $ 80
Project Documentation Control $ 60
February 2005
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