GPTG ETHANOL MARKETING AGREEMENT
Exhibit
10.15
This
Ethanol Marketing Agreement ("Agreement") is made and entered into as of
this 25th day of
September, 2009 by and between Lincolnway Energy, LLC ("Producer"), an Iowa
limited liability company, and Green Plains Trade Group LLC, a Delaware limited
liability company ("GPTG") (each a "Party", and collectively the "Parties"), but
this Agreement shall not become effective for purposes of commencing
transactions under and pursuant to this Agreement until the Effective Date (as
that term is defined in Section 14).
In
consideration of the mutual terms and conditions contained herein, the Parties
agree as follows:
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1.
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Term and
Termination: The initial term of this Agreement (the "Initial
Term") shall be for a period of *, commencing on the date hereof, unless
this Agreement is earlier terminated as provided
below. Following the Initial Term, this Agreement shall
automatically renew for successive * terms (each a "Renewal Term"), unless
terminated on the expiration date of the Initial Term or any Renewal Term,
in each case by either Party with at least ninety (90) days written notice
prior to such expiration date, or unless this Agreement is earlier
terminated as provided below.
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In the
event either Party is in breach of any term, condition or obligation under this
Agreement (the "Breaching Party"), the other Party (the "Non-Breaching Party")
shall have the right to terminate this Agreement by proceeding as
follows: The Non-Breaching Party shall provide written notice to the
Breaching Party of such breach, which notice shall include a reasonably detailed
description of such breach. The Breaching Party shall have thirty
(30) days from receipt of such notice to remedy such breach, or in the case of a
breach involving a failure to make any payments which are required by this
Agreement by the due date, then the Breaching Party will have three (3) days
after receiving the written notice to cure the breach (in either case, the "Cure
Period"). If the Breaching Party remedies such breach within the
applicable Cure Period, this Agreement shall not terminate but rather shall
continue in full force and effect. If the Breaching Party does not
remedy such breach within the applicable Cure Period, this Agreement may, at the
option of the Non-Breaching Party, be immediately terminated at any time within
the sixty (60) days following the end of the applicable Cure Period, effective
upon the giving of written notice from the Non-Breaching Party to the Breaching
Party. The failure of the Non-Breaching Party to so terminate this
Agreement within such sixty (60) day period shall be deemed a waiver of such
termination option with respect to the breach in question, but not a waiver of
the Non-Breaching Party's right to pursue all other rights and remedies as may
be available to the Non-Breaching Party under this Agreement, at law, in equity
or otherwise with respect to the breach in question.
*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-1
Notwithstanding
the preceding paragraph, this Agreement may be terminated by the Non-Breaching
Party, effective upon the giving of written notice to the Breaching Party, and
without any opportunity for cure by the Breaching Party, if the Non-Breaching
Party has provided the Breaching Party with bona fide written notices pursuant
to the preceding paragraph on at least three or more prior occasions during the
one year period immediately preceding the date of the giving of the current
notice of breach, and regardless of whether such prior breaches were cured by
the Breaching Party.
In
addition to the foregoing, this Agreement may be terminated under the following
circumstances: (a) if either Party engages in unethical, illegal or
intentional misconduct reasonably likely to result in material adverse
consequences to the other Party, the Party harmed or likely to be harmed by the
misconduct may immediately terminate this Agreement upon written notice to the
Party engaging in the misconduct; or (b) in the event of a Party's bankruptcy,
assignment for the benefit of creditors, admission in writing of its inability
to pay debts generally, or its liquidation, insolvency or dissolution, the other
Party may terminate this Agreement at any time within thirty (30) days of the
date on which such Party becomes aware of such occurrence, with such termination
to be effective immediately upon the giving of written notice
thereof.
Producer
may also terminate this Agreement as provided in Section 7.A of this
Agreement.
The
termination of this Agreement, by GPTG or Producer, and for whatever reason,
shall not affect any liability or obligation of GPTG or Producer under this
Agreement which shall have accrued prior to or as a result of such termination,
including any liability for loss or damage on account of breach, nor shall the
termination of this Agreement (by GPTG or Producer, and for whatever reason)
affect any of the terms or provisions of this Agreement which contemplate
performance or continuing obligations beyond the termination of this Agreement,
including the obligations of, as applicable, GPTG and/or Producer under Sections
7.C, 7.D and 29.
Upon the
termination of this Agreement by GPTG or Producer, and for whatever reason,
Producer agrees to accept and GPTG agrees to assign, to the extent it may
legally do so, any and all outstanding sales contracts or bids of GPTG from
third parties which correlate to any Accepted Purchase Orders (as that term is
defined in Section 5.B.) on the effective date of the termination of this
Agreement, and GPTG shall provide Producer with copies of such sales contracts,
bids and any related documentation. GPTG shall not receive any fees
or other payments with respect to any such sales contracts or bids or Accepted
Purchase Orders. If GPTG may not legally assign to Producer a sales
contract or bid of GPTG from a third party which correlates to an Accepted
Purchase Order on the effective date of the termination of this Agreement, then
GPTG and Producer shall be and remain responsible for purchasing and selling, in
accordance with the terms of this Agreement, the Ethanol which is the subject of
such Accepted Purchase Order, and this Agreement shall also continue for that
limited purpose; provided, however, that if this Agreement was terminated by
Producer by reason of a breach of this Agreement by GPTG, then Producer may, in
its sole discretion, require payment in advance for all Ethanol which will be
picked up by GPTG after the effective date of the termination of this
Agreement.
*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-2
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2.
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Quantity and
Quality:
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A.
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Except
as provided in subparagraph B. immediately below, Producer shall sell
exclusively to GPTG and GPTG shall purchase from Producer the total output
of fuel grade ethanol ("Ethanol") produced at Producer's Nevada, Iowa
facility ("Plant"). All Ethanol shall be delivered FOB the
Plant, and title and all risk of loss shall pass to GPTG at the Title
Transfer Point (as defined in Section 5.E.). Ethanol produced
for the intended use as an alternative or racing fuel shall not be
excluded from this Agreement.
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B.
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Notwithstanding
subparagraph A above or any other term or condition of this Agreement
which may appear to be to the contrary, (i) if GPTG fails to purchase or
to take delivery of any Ethanol from the Plant, for any reason whatsoever
(including by reason of any Impossibility Event, as that term is defined
in Section 10) and such failure results in, or may reasonably be
anticipated to result in, Producer's Storage Capacity (as that term is
defined in Section 4.G) being exceeded, then Producer may sell or
otherwise dispose of the amount of Ethanol which Producer determines is
necessary to cause Producer's Storage Capacity to not be exceeded during
the following five (5) day period, and (ii) Producer may sell or otherwise
dispose of any Ethanol which is the subject of any Rejected Purchase Order
(as that term is defined in Section 5.B). Any such sales of
Ethanol by Producer may be to such persons and on such terms as are
determined by Producer, in its sole discretion, and may be made by
Producer even if the Ethanol in question is otherwise the subject of an
Accepted Purchase Order. Notwithstanding the foregoing,
Producer acknowledges that it remains obligated on such Accepted Purchase
Orders. GPTG also acknowledges that Producer has a contract
with another ethanol marketer that will terminate on October 1, 2009, and
that Producer may sell Ethanol to such other marketer to the extent
necessary to comply with the terms of that other agreement and as
otherwise necessary to satisfy and fulfill any obligations upon Producer
under such agreement to sell Ethanol to such other
marketer.
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-3
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3.
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GPTG
shall:
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A.
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Market
and purchase all of the Ethanol produced by Producer at the Plant, at the
price outlined in Section 5;
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B.
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Remit
payment to Producer for the Ethanol as provided in Section
5;
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C.
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Be
responsible for the scheduling of all shipments of the Ethanol, including,
without limitation, for arranging and providing for the pick-up at the
Plant of all Ethanol purchased by GPTG under this Agreement by truck
carrier or by railcar carrier (in either event, each a "GPTG Carrier") and
for the subsequent shipment and delivery of all such Ethanol by each GPTG
Carrier to whatever locations are desired by
GPTG;
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D.
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Provide
Producer with such reports and information as Producer may reasonably
request from time to time including, but not limited to, (i) detailed
accounting reports, (ii) reconciled settlement
statements, (iii) market and pricing reports, and (iv) daily
price reports and contract
balances;
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E.
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Be
responsible for complying with all laws, rules, regulations and orders,
and industry standards, regarding the transportation and shipment of all
Ethanol and otherwise with respect to GPTG's activities under or pursuant
to this Agreement, including, without limitation, maintaining in effect
all necessary or appropriate governmental licenses, permits, consents or
other approvals; and
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F.
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Have
sole responsibility and liability for the collection of all of GPTG's
accounts, and any delinquencies in any of GPTG's accounts shall not affect
GPTG's payment obligations to Producer under this
Agreement.
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4.
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Producer
shall:
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A.
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Provide
GPTG (by fax, email or other method mutually acceptable to Producer and
GPTG) with a twelve month production forecast on the date of this
Agreement and on or before each one year anniversary of the date of this
Agreement, a weekly update to the then current rolling twelve month
production forecast within four (4) days of the close of each calendar
week, daily plant inventory balances (by no later than noon on each day,
excluding weekends and Producer recognized holidays), pickup information,
and other information reasonably requested by
GPTG;
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-4
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B.
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Producer
shall use its commercially reasonable efforts to meet the monthly
production estimates reflected in the then-current twelve month production
forecast; provided, however, that nothing in this Agreement is intended
to, nor shall be interpreted as, in any way limiting or restricting
Producer's right, in its sole discretion, to manage Producer's business in
all respects, including determining Producer's level of production of
Ethanol at the Plant from time to time and based upon such factors or
considerations as are determined to be relevant by Producer from time to
time, such that Producer may revise its then current twelve month
production forecast in such manner and by such amounts as are determined
by Producer, in its sole discretion, in each weekly update provided by
Producer;
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C.
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Notify
GPTG promptly of any material unscheduled shut-down, suspension or
significant decrease in production at the Plant that was not reported in
the rolling twelve month production forecasts or weekly updates provided
under Section 4.A. above;
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D.
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Provide
to GPTG certificates of analysis of the Ethanol sold to GPTG in a form and
content mutually acceptable to Producer and GPTG, but no such certificate
of analysis shall be deemed to be a representation or warranty by Producer
with respect to any Ethanol or any other matter
whatsoever;
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E.
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Producer
shall, at its expense, provide or cause to be provided all testing and
related test equipment at or in the vicinity of the Plant which is
necessary to determine the accuracy of the certificates of analysis
contemplated by subparagraph D. above, and GPTG or its representative
shall, at GPTG'S expense, have the right to perform periodic tests to
determine the accuracy of such certificates of
analysis;
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F.
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Provide
the labor and Plant equipment necessary to load the Ethanol into the
trucks or railcars of the GPTG Carriers at the Plant; provide the
documentation reasonably requested by GPTG (such as bills of lading) in
order to meet the requirements of any federal or state law, rule or
regulation related to the shipment of the Ethanol; visually inspect, in
accordance with normal industry practice, and prior to loading at the
Plant, the railcars for compliance with any applicable U.S. Department of
Transportation requirements; and be responsible for compliance with all
federal, state and local rules, regulations and requirements regarding the
loading of Ethanol into the trucks or railcars at the
Plant;
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G.
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Provide
for a minimum of ten (10) days storage based on an annual nameplate
capacity of 50 MGPY on Producer's premises (the "Storage
Capacity");
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H.
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For
all gallons of Ethanol sold to GPTG, use certified meters or weight-scales
that provide both gross and net 60° Fahrenheit temperature compensated
gallons; and
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-5
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I.
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Provide
any of the information to be provided by Producer pursuant to this Section
4 to GPTG in electronic form, if such information is available in such
form.
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5.
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Marketing/Pricing/Risk
of loss/Payment
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A.
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Marketing: Since
GPTG shall have the exclusive right to market all of the Ethanol produced
by Producer, GPTG agrees to use commercially reasonable efforts to market
all such Ethanol and be responsible for the marketing, sale and delivery
of all of the production of Ethanol from the Plant during the term of this
Agreement, including, but not limited
to:
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Scheduling
sufficient railcar, tank trucks and other transport as may be needed to
handle said production;
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Negotiating
the rates and tariffs to be charged for delivery of such production to
GPTG's customers;
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Promoting
and advertising the sale of fuel grade ethanol as
appropriate;
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Ascertaining
that such production is delivered where contracted and intended;
and
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Handling
all purchase agreements with GPTG's customers and any complaints in
connection therewith.
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GPTG
acknowledges that Producer may produce Ethanol in excess of the amounts set out
in Producer's then current production forecast as provided by Producer pursuant
to Section 4.A, and GPTG shall have the obligation to market and purchase all
Ethanol which may from time to time be produced in excess of the amounts set
forth in Producer's then current production forecast, all upon the terms and
conditions set forth in this Agreement.
GPTG also
acknowledges that the Ethanol is intended solely for use in connection with
fuel.
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B.
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Price; Approval of
Purchase Orders. GPTG will use commercially reasonable
and diligent efforts to obtain the best price for all Ethanol. Producer
acknowledges and agrees that it is not a party to any Ethanol sales
contract with any third party purchaser from GPTG. As is also
noted below, to the extent Producer does not agree to any purchase orders
presented by GPTG, GPTG shall be relieved of any obligations hereunder to
market such Ethanol. Notwithstanding the foregoing, should GPTG directly
cause an inventory or production constraint for Producer, then GPTG shall
be relieved of any obligation to market the number of gallons of Ethanol
that Producer has notified GPTG that Producer intends to liquidate, but
GPTG shall remain responsible to market all remaining Ethanol production
in accordance with this Agreement.
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-6
GPTG
shall submit purchase orders for the purchase of Ethanol (each, a "Purchase
Order") to Producer on such a periodic basis as is necessary to permit Producer
to operate at and maintain a production schedule which is consistent with the
production schedules provided to GPTG by Producer pursuant to Section 4.A. and
otherwise with such sufficient advance notice so as to reasonably allow Producer
to determine that the Storage Capacity will not be exceeded and for Producer to
be able to provide the services contemplated by Section 4.F.
GPTG must
direct and submit Purchase Orders to the applicable Producer Representative (as
that term is defined in Section 16) who is designated by Producer from time to
time. GPTG shall submit Purchase Orders to Producer pursuant to such
methods as are reasonably agreed to by GPTG and Producer from time to time, but
which may include fax and/or email to the Producer Representative or Producer
Representatives who are designated by Producer from time to
time. Each Purchase Order shall be in form and content mutually
acceptable to GPTG and Producer, but each Purchase Order must include GPTG's
contract selling price for the Ethanol in question, the delivery location for
the Ethanol in question, the method of delivery (i.e. by truck or railcar) and
the pickup date or dates for the Ethanol in question at the
Plant. Each Purchase Order shall be subject to Section
17.
GPTG will
submit each Purchase Order to the applicable Producer
Representative. Producer may accept or reject each Purchase Order, in
Producer's sole discretion, but if Producer fails to advise GPTG of Producer's
acceptance of a Purchase Order, Producer shall be deemed to have rejected the
Purchase Order in question. A Purchase Order which has been accepted
by Producer is at times referred to in this Agreement as an "Accepted Purchase
Order", and a Purchase Order which has been rejected by Producer (including a
Purchase Order which is deemed to be rejected by Producer as provided in the
preceding sentence) is at times referred to in this Agreement as a "Rejected
Purchase Order". GPTG shall be relieved of the obligation hereunder
to further market the Ethanol which is the subject of a Rejected Purchase Order
and Producer shall have the right to sell or otherwise dispose of such Ethanol
to such persons and on such terms as are determined by Producer, as provided in
Section 2.B.
*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-7
Without
limiting GPTG's obligation to use commercially reasonable and diligent efforts
to obtain the best price for all Ethanol, and in addition thereto, GPTG agrees
that Schedule 1 to this Agreement sets forth the minimum purchase price that
GPTG shall pay to Producer for the number of gallons of Ethanol set forth in
Schedule 1 on a daily, monthly and quarterly basis. Producer
therefore may in all events, at any time and from time to time, upon demand by
Producer, which demand may be made by Producer in Producer's sole discretion,
require GPTG to provide Producer with Purchase Orders on a daily, monthly and/or
a quarterly basis which are consistent with the requirements set forth in
Schedule 1. As indicated, Producer may make such demand at any time
and from time to time, and upon each such demand by Producer, GPTG shall submit
Purchase Orders to Producer in accordance with Producer's demand.
If
Producer agrees, in Producer's sole discretion, to enter into transactions with
GPTG for the arbitrage of replacement gallons of ethanol, GPTG agrees that the
incremental profit on such repurchased gallons shall be paid to Producer, in
accordance with the payment provisions of Section 5.G, less the per gallon fee
set forth in Section 5.F on such replacement gallons.
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C.
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Net Selling
Price. The per gallon price Producer shall receive for
the Ethanol sold to GPTG under this Agreement shall be the Net Selling
Price (as that term is defined below). The term "Net Selling
Price" means GPTG's per gallon contract selling price for the Ethanol in
question, which shall be the price set forth in the Purchase Order
presented to Producer pursuant to Section 5.B above, less all direct costs
(on a per gallon basis) incurred by GPTG in conjunction with the handling,
movement, delivery and shipment of such Ethanol from GPTG to the original
purchaser, including but not limited to terminal lease charges, throughput
charges, terminal shrinkage costs, freight charges, tariffs, costs of
leasing railcars, trucks, river barges and ocean going vessels (all at
cost), government taxes and assessments, insurance, inspection fees,
working capital carrying costs, costs associated with RINS management, and
costs of purchasing and delivering replacement ethanol in the event of
Producer's failure to provide Ethanol in accordance with an Accepted
Purchase Order, including any such failure caused by any Impossibility
Event or for any other reason.
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D.
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Estimated Net
Price. GPTG and Producer shall jointly determine the
estimated monthly Net Selling Price (on a per gallon basis) (the
"Estimated Monthly Netback") for each calendar month. GPTG and
Producer shall determine the Estimated Monthly Netback on or before the
first business day of each calendar month. GPTG and Producer
acknowledge that the intent is to establish the Estimated Monthly Netback
to be within 5% or less of the final actual Net Selling Price (on a per
gallon basis) for the month (the "Equalized Netback"). The
Estimated Monthly Netback and the Equalized Netback shall be utilized for
making payments to Producer as provided in Section 5.G
below.
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-8
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E.
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Title and Risk of
Loss: GPTG will bear all sales, marketing, logistics
services/management costs, collection costs and all risk of loss and
damage to all Ethanol commencing immediately at the time the Ethanol
passes across the inlet flange into rail cars or tank trucks of the GPTG
Carrier at the Plant (the "Title Transfer Point"). Title and all risk of
loss and damage to the Ethanol shall automatically transfer from Producer
to GPTG at the Title Transfer Point. Until such time, Producer
shall be deemed to be in control of and in possession of, and shall have
title to and risk of loss to, the
Ethanol.
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F.
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Commission: GPTG
shall invoice Producer * for each gallon of
Ethanol marketed by GPTG in any calendar month, and to the extent GPTG
owes amounts to Producer under Section 5.G., such invoiced amount shall be
deducted from such amount owed to Producer. In all other cases,
the invoice amount will be due by the date which is later of
*.
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G.
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Payment: For
all gallons of Ethanol purchased by GPTG from Producer and picked up at
the Plant during each one-week period beginning on Monday and ending on
the following Sunday, GPTG shall pay Producer the Estimated Monthly
Netback in effect for such week by ACH or wire no later than * days
following the end of said one-week period. If at calendar
month's end, the Equalized Netback exceeds the Estimated Monthly Netback
amounts which have been paid to Producer, GPTG shall pay Producer on or
before the * day of the following calendar month an amount
equal to the product of (x) the difference between the Estimated Monthly
Netback and Equalized Netback, and (y) the aggregate number of gallons of
Ethanol purchased by GPTG from Producer during such month. If
the Equalized Netback is less than the Estimated Monthly Netback, Producer
shall pay to GPTG on or before the * day of the following calendar month,
an amount equal to the product of (x) the difference between the Equalized
Netback and the Estimated Monthly Netback, and (y) the aggregate number of
gallons of Ethanol purchased by GPTG from Producer during such
month. Within * calendar days of the end of each month, GPTG
shall provide to Producer all information necessary to calculate the
Equalized Netback and determine the payment between the Parties under this
Section 5.G. For purposes of this Agreement, payment
obligations arise upon shipping and shipping for this purpose is defined
as the actual release of the shipment to the railroad or common carrier
truck, as directed by *.
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-9
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H.
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Supporting
Records: GPTG shall keep a set of books and records in
accordance with generally accepting accounting principles with respect to
all sales of Ethanol hereunder and all costs and commissions associated
therewith, and shall make such books and records reasonably available to
Producer or Producer's independent outside accounting representatives
(upon execution by such independent outside accounting representative of a
mutually agreeable confidentiality agreement) at GPTG's office at any time
by appointment during normal business hours upon at least five (5)
business days prior written notice; provided that Producer shall be
entitled to no more than three (3) such visits in any year and Producer 's
independent outside accounting representatives shall be permitted to
disclose to Producer only aggregate information of the results of its
review, and not any contract or customer specific
information. GPTG shall maintain all of the books and records
required by this Section for a minimum of two (2) years from the date of
the creation of the particular book, entry or record in
question. The costs of any review and inspection of the books
and records of GPTG pursuant to this subparagraph shall be borne by
Producer, except that GPTG shall reimburse Producer for all such costs,
within ten (10) days of demand therefor by Producer, if any such review or
inspection reflects any underpayment of any amounts by GPTG to Producer of
1% or more over the period which is the subject of the review or
inspection in question. GPTG shall also in all events pay to
Producer, within ten (10) days of demand therefor by Producer, the full
amount of any underpayments, along with interest thereon as provided in
Section 7C, which are discovered in connection with any review or
inspection pursuant to this subparagraph. Notwithstanding the
preceding two sentences, however, if GPTG disputes the results of any such
review or inspection, the provisions of Section 5.I below shall apply, and
GPTG shall not have any of the payment obligations specified in the
preceding two sentences until the dispute procedures specified in Section
5.I have been utilized.
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I.
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Payment
Disputes. If either Party, in good faith, disputes any
amounts to be paid pursuant to this Section 5, the disputing Party shall
immediately notify the other Party of the basis for the
dispute. Officers of the Parties will then meet and use their
best efforts to resolve any such dispute within 3 business days
thereafter. If the dispute cannot therefrom be resolved, the
Parties shall be able to pursue all other remedies available to them, in
law or in equity.
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-10
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6.
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Producer
Responsibility for Dedicated
Railcars:
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A.
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Producer
will enter into leases or other arrangements intended to secure the
availability of sufficient railcars to timely ship the Ethanol produced at
the Plant as contemplated by this Agreement ("Dedicated Railcars"). GPTG
and Producer shall agree to the number of railcars and term of such
arrangements for rail cars prior to entering into said agreements, and
shall cooperate in good faith in estimating the number of rail cars
required for the shipment of Ethanol from the Plant from time to time as
well as in the determination of any other terms necessary for said
leases. In the event of any dispute or disagreement regarding
the terms of any rail car lease, however, Producer shall be entitled to
make the final determination and decision regarding the dispute or
disagreement, in Producer's sole
discretion.
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7.
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Representations &
Warranties/Indemnity:
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A.
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Producer
represents and warrants to GPTG as
follows:
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·
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Producer
is duly formed and validly existing as a limited liability company under
the laws of the State of Iowa; has the requisite power and authority to
own its properties and carry on its business as now being conducted and
currently proposed to be conducted and to execute, deliver and perform its
obligations under this Agreement; is qualified to do business in Iowa and
in every other jurisdiction in which failure to qualify could reasonably
be expected to have a material adverse effect on Producer's ability to
perform its obligations hereunder.
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·
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Producer
has taken all action necessary to authorize it to execute, deliver and
perform its obligations under this Agreement, and this Agreement
constitutes a legal, valid and binding obligation of Producer enforceable
against Producer in accordance with its terms, subject to bankruptcy,
reorganization, moratorium or other similar laws affecting the enforcement
of the rights of creditors generally and subject to general principles of
equity.
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·
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The
execution, delivery and performance by Producer of this Agreement does not
and will not (i) violate any law applicable to Producer, (ii) result in
any breach of Producer's constituent documents or (iii) conflict with,
violate or result in a breach of or constitute a default under any
agreement or instrument to which Producer or any of its properties or
assets are bound.
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·
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No
authorization or approval or other action by, and no notice to or filing
with, any governmental authority (other than those which have been
obtained) is required for the due execution, delivery and performance by
Producer of this Agreement.
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*
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Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
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E-11
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·
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Producer
is not a party to any pending legal, administrative, arbitration or other
proceeding, and, to Producer's knowledge, no such proceeding is
threatened, which could reasonably be expected to have a material adverse
effect on Producer's ability to perform its obligations
hereunder.
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·
|
Producer
represents that it will have or has good and marketable title to all of
the Ethanol sold to GPTG pursuant to this Agreement and that said Ethanol
will be free and clear of all liens and encumbrances arising from any
action of Producer.
|
|
·
|
Producer
represents that each respective truck or railcar load
of Ethanol sold to GPTG pursuant to this Agreement will, in the
form as loaded onto the truck or railcar of the GPTG Carrier, meet or
exceed (but need not exceed) the specifications set forth in Exhibit "A"
to this Agreement (the "Specifications"), as Exhibit "A" may be amended or
restated from time to time by GPTG as provided below, for a period of
sixty (60) days from the date of loading of the Ethanol in question onto
the truck or railcar of the GPTG Carrier at the Plant (the "Warranty
Period"). GPTG may amend or restate Exhibit "A" at any time and
from time to time upon not less than ninety (90) days prior written notice
to Producer, but only to the extent such amendment or restatement is
necessary to comply with any changes in industry standards or applicable
federal or state laws, rules or regulations; provided, however, that in
such event Producer shall have the right to terminate this Agreement by
giving written notice thereof to GPTG at any time within said ninety (90)
day period.
|
|
B.
|
GPTG
represents and warrants to Producer as
follows:
|
|
·
|
GPTG
is duly formed and validly existing as a limited liability company under
the laws of the State of Delaware; has the requisite power and authority
to own its properties and carry on its business as now being conducted and
currently proposed to be conducted and to execute, deliver and perform its
obligations under this Agreement; is qualified to do business in Delaware
and in every other jurisdiction in which failure to qualify could
reasonably be expected to have a material adverse effect on GPTG's ability
to perform its obligations
hereunder.
|
|
·
|
GPTG
has taken all action necessary to authorize it to execute, deliver and
perform its obligations under this Agreement, and this Agreement
constitutes a legal, valid and binding obligation of GPTG enforceable
against GPTG in accordance with its terms, subject to bankruptcy,
reorganization, moratorium or other similar laws affecting the enforcement
of the rights of creditors generally and subject to general principles of
equity.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-12
|
·
|
The
execution, delivery and performance by GPTG of this Agreement does not and
will not (i) violate any law applicable to GPTG, (ii) result in any breach
of GPTG's constituent documents or (iii) conflict with, violate or result
in a breach of or constitute a default under any agreement or
instrument to which GPTG or any of its properties or assets are
bound.
|
|
·
|
No
authorization or approval or other action by, and no notice to or filing
with, any governmental authority (other than those which have been
obtained) is required for the due execution, delivery and performance by
GPTG of this Agreement.
|
|
·
|
GPTG
is not a party to any pending legal, administrative, arbitration or other
proceeding, and, to GPTG's knowledge, no such proceeding is threatened,
which could reasonably be expected to have a material adverse effect on
GPTG's ability to perform its obligations
hereunder.
|
|
·
|
All
reports and all invoices provided by GPTG to Producer pursuant to this
Agreement shall be true, accurate and complete in all
respects.
|
|
C.
|
Subject
to Section 9, GPTG shall indemnify, defend, and hold Producer and its
affiliates, subsidiaries, parents, and its and their respective directors,
officers, stockholders, members, employees, and agents (collectively,
including Producer, the "Producer Indemnified Persons") harmless from and
against any and all suits, proceedings, actions, claims, counterclaims,
losses, awards, judgments, settlements, fines, penalties, liabilities,
damages, costs or expenses (including reasonable out-of-pocket attorney's
fees and expenses) (collectively, "Losses") in any way arising from,
related to or connected with (i) any breach of any provision of this
Agreement by GPTG, and/or (ii) any claims resulting from GPTG's marketing
or other activities or use or sale of any Ethanol. Any payment
owed by GPTG to Producer under this Agreement which is not made when due
shall bear interest from the date such payment was due until it is paid at
the rate of 12% per annum, and in order for GPTG to cure any default in
payment by GPTG under this Agreement, GPTG must pay both such delinquent
payment and interest thereon as provided in this
sentence.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-13
|
D.
|
Subject
to Section 9, Producer shall indemnify, defend, and hold GPTG and its
affiliates, subsidiaries, parents, and its and their respective directors,
officers, stockholders, members, employees, and agents (collectively,
including GPTG, the "GPTG Indemnified Persons") harmless from and against
any and all Losses in any way arising from, related to or connected with
any breach of any provision of this Agreement by Producer. Any
payment owed by Producer to GPTG under this Agreement which is not made
when due shall bear interest from the date such payment was due until it
is paid at the rate of 12% per annum, and in order for Producer to cure
any default in payment by Producer under this Agreement, Producer must pay
both such delinquent payment and interest thereon as provided in this
sentence.
|
|
8.
|
No Other
Warranties: Except only
for the limited express warranties set forth in, respectively, Section 7.A
and Section 7.B above, neither Producer nor GPTG makes any express
warranties whatsoever regarding any Ethanol or any other thing or matter
whatsoever, and Producer and GPTG each hereby exclude and disclaim in
entirety all implied warranties whatsoever, including the implied
warranties of merchantability, noninfringement and fitness for a
particular purpose, with respect to all Ethanol and all other things and
matters whatsoever.
|
|
9.
|
Limitation of Damages;
Statute of Limitations: Under no
circumstances or theories (including, but not limited to, tort or breach
of this Agreement) shall GPTG or Producer be liable to the other for any
lost profits, business or goodwill, or for any exemplary, special,
incidental, consequential, punitive or indirect damages whatsoever, which
are in any way related to or connected with or arise out of this Agreement
(and even if GPTG or Producer, as the case may be, knew or should have
known of the possibility of any of those damages), including, without
limitation, to, with or out of any performance or nonperformance of any
Ethanol or GPTG's or any other person's use of or inability to use any
Ethanol (whether alone or in connection with or as part of other goods or
products). GPTG and Producer agree that amounts paid by GPTG or
Producer, as the case may be, to a non-affiliated third party because of
any breach of this Agreement by the other shall be considered actual
damages incurred by GPTG or Producer, as the case may be, and therefore
not subject to the preceding
sentence.
|
Any
claim, suit, action or other proceeding for any breach or nonfulfillment of, or
default under, any term or condition of this Agreement must be commenced within
one year of the date on which the cause of action accrued, or such claim, suit,
action or proceeding shall be lost and forever barred.
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-14
|
10.
|
Impossibility
Event: Subject to the last sentence in this Section, if
any term or condition of this Agreement to be performed or observed by
GPTG or Producer is rendered impossible of performance or observance due
to any force majeure or any other material act, omission, matter,
circumstance, event or occurrence beyond the commercially reasonable
control of GPTG or Producer, as the case may be (each, an "Impossibility
Event"), the affected party shall, for so long as such Impossibility Event
exists, be excused from such performance or observance, provided the
affected party (i) promptly notifies the other party of the occurrence of
the Impossibility Event; (ii) takes all commercially reasonable steps to
terminate, remedy or otherwise discontinue the effects of the
Impossibility Event; and (iii) recommences performance after the
termination or discontinuance of the Impossibility Event. The
term "Impossibility Event" includes an actual or threatened act or acts of
war or terrorism, fire, storm, flood, earthquake, acts of God, civil
disturbances or disorders, riots, sabotage, strikes, lockouts and labor
disputes. Nothing in this Section is intended to or shall be
interpreted so as to require the resolution of labor disputes by acceding
to the demands of labor when such course is inadvisable in the discretion
of the Party subject to such dispute. Notwithstanding the
foregoing, this Section is not applicable to, and shall not excuse any
performance or observance of, a payment or indemnification duty or
obligation, an Accepted Purchase Order, or any obligations under Section
29.
|
|
11.
|
Independent
Contractor: It is expressly understood that the relationship of
GPTG to Producer is that of an independent contractor and nothing
contained herein shall be construed to create any partnership, agency, or
employer/employee relationship, and GPTG has no authority whatsoever to
bind or obligate Producer in any way. GPTG may freely choose
the customers from whom business shall be solicited and the time and place
for solicitation.
|
12.
|
Notices: Unless
otherwise provided in this Agreement (such as in Sections 4.A and 5.B),
any notices required to be given under this Agreement shall be in writing
and be sufficiently given when delivered in person, if delivered by a
nationally recognized overnight courier, on the next business day
following deposit, or if by certified mail, return receipt requested,
postage prepaid, on the third business day following such mailing,
addressed as follows:
|
Producer:
|
|
00000
X. Xxxxxxx Xxxxxxx
|
|
Xxxxxx,
Xxxx 00000
|
|
Attn: President
|
|
Fax:
_______________________
|
|
GPTG:
|
Green
Plains Trade Group LLC
|
0000
Xxxxxxxxx Xxx., Xxxxx 000
|
|
Xxxxx,
XX 00000
|
|
Attn: Xxxx
Xxxxxx, CEO
|
|
Fax:
(000) 000-0000
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-15
|
13.
|
Insurance: During
the entire term of this Agreement, Producer will maintain insurance
coverage that is customary for a company of its type and size that is
engaged in the production and selling of ethanol and provide evidence of
such coverage as reasonably requested by GPTG from time to
time. At a minimum, Producer's insurance coverage must
include:
|
|
a.
|
Comprehensive
general product and public liability insurance, with liability limits of
at least $2 million in the
aggregate.
|
|
b.
|
Property
and casualty insurance adequately insuring its production facilities and
its other assets against theft, damage and destruction on a replacement
cost basis.
|
|
c.
|
GPTG
shall be added as an additional insured under the comprehensive general
product and public liability insurance
policy.
|
|
d.
|
Workers'
compensation insurance to the extent required by
law.
|
During
the entire term of this Agreement, GPTG will maintain insurance coverage that is
customary for a company marketing, selling and handling the transportation of
ethanol, and provide evidence of such coverage as reasonably requested by
Producer from time to time. At a minimum, GPTG's insurance coverage
must include:
|
a.
|
Comprehensive
general product and public liability insurance, with liability limits of
at least $2 million in the
aggregate.
|
|
b.
|
Producer
shall be added as an additional insured under the comprehensive general
product and public liability insurance
policy.
|
|
c.
|
Workers'
compensation insurance to the extent required by
law.
|
|
14.
|
Effective Date of
Agreement. This Agreement is made and entered into, and
shall become binding and enforceable on, the date of this Agreement, but
GPTG and Producer agree that this Agreement shall not become effective for
purposes of commencing transactions under and pursuant to this Agreement
until September 25, 2009 (the "Effective
Date").
|
|
15.
|
GPTG
Representatives. GPTG shall designate to Producer in
writing one or more representatives of GPTG (each, a "GPTG
Representative") through whom all contacts from Producer pursuant to this
Agreement may be made, and unless otherwise expressly specified in this
Agreement, each GPTG Representative shall be deemed to have full authority
to make all decisions and to resolve all matters, disputes and issues
under this Agreement on GPTG's behalf. GPTG may
change the GPTG Representatives from time to time for any
reason or for no reason, effective upon the giving of written notice to
Producer.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-16
|
16.
|
Producer
Representatives. Producer shall designate to GPTG in
writing one or more representatives of Producer (each, a "Producer
Representative") through whom all contacts from GPTG pursuant to this
Agreement may be made, and unless otherwise expressly specified in this
Agreement, each Producer Representative shall be deemed to have full
authority to make all decisions and to resolve all matters, disputes and
issues under this Agreement on Producer's behalf. Producer may
change the Producer Representatives from time to time for any
reason or for no reason, effective upon the giving of written notice to
GPTG.
|
|
17.
|
Entire
Agreement: This Agreement contains the entire agreement between the
Parties and supersedes all previous agreements, either oral or written,
between the Parties. No course of dealing or usage of trade
shall be relevant or admissible to supplement, explain or vary any of the
terms of this Agreement, except only where this Agreement expressly refers
to industry standards or industry practices, if any, in which event
industry standards or industry practices shall only be considered or
applied with respect to the particular action, item, matter or issue in
question, but the terms of this Agreement shall govern and control in the
event of any conflict or inconsistency between any term or condition of
this Agreement and any such industry standard or industry
practice. Any reference to industry standards or industry
practices in this Agreement is to the then current generally recognized
industry standards or industry practices for the ethanol industry in the
United States. All sales of Ethanol to GPTG by Producer
pursuant to this Agreement are made upon and subject to, and are expressly
limited solely to, the terms and conditions of this Agreement and the
corresponding Accepted Purchase Order, and GPTG and Producer each hereby
object to any additional, different or inconsistent terms which may be set
forth in any other document that Producer or GPTG, as the case may be, may
at any time and from time to time submit to the other, and no such
additional, different or inconsistent terms shall be part of this
Agreement or any sale of any Ethanol to GPTG by Producer pursuant to this
Agreement or shall otherwise have any force or effect
whatsoever. In the event of any conflict or inconsistency
between any terms of this Agreement and of any Accepted Purchase Order or
other Purchase Order or information that may be provided by GPTG to
Producer pursuant to Section 5.B. or otherwise, the terms and conditions
of this Agreement shall govern and control to the full extent of such
conflict or inconsistency. Any exhibits and schedules to this
Agreement are incorporated into this Agreement by this reference as if set
forth in full. The language of this Agreement shall not be
construed in favor of or against either Party, but shall be construed as
if the language was drafted mutually by both Parties. No
modifications hereof shall be valid unless made in writing and signed by
both Parties.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-17
|
18.
|
Further
Assurances. Each Party will execute or cause to be
delivered to the other Party such instruments and other documents and will
take such other actions as the other Party may reasonably request for the
purpose of carrying out or evidencing any of the transactions contemplated
by the Agreement.
|
|
19.
|
Waiver: The
failure of either Party to enforce any of its rights hereunder on any
particular occasion shall not constitute a waiver of such rights on any
subsequent occasion.
|
|
20.
|
Assignment: This
Agreement may not be assigned by either Party without the prior written
consent of the other Party, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Producer may, without
the consent of GPTG, assign this Agreement as collateral or security or
otherwise to any lender of Producer, and any lender may in turn assign
this Agreement without GPTG's consent upon any foreclosure or other
exercise of any rights or remedies against Producer or any of Producer's
assets.
|
|
21.
|
Headings: Any
paragraph headings are used for convenience only and are not intended and
shall not be used in interpreting any provisions of this
Agreement.
|
|
22.
|
No Third Party
Beneficiary: Nothing contained in this Agreement shall be
considered or construed as conferring any right or benefit on a person not
a Party to this Agreement, except only that the Producer Indemnified
Persons and the GPTG Indemnified Persons shall have the rights and
protections provided in, respectively, Section 7.C. and Section
7.D. Neither this Agreement nor the performance hereunder shall
be deemed to have created a joint venture or partnership between the
Parties.
|
|
23.
|
Governing Law:
This Agreement shall be governed by the laws of the State of Nebraska, but
without regard to the choice of law or conflict of laws provisions
thereof.
|
|
24.
|
Arbitration:
Any dispute arising out of or in connection with this Agreement shall be
submitted to binding arbitration, except that any Party may pursue
preliminary, temporary or permanent injunctive relief for any breach of
Section 29 and either Party may terminate this Agreement as otherwise
provided herein without first being required to submit to arbitration the
underlying issue or dispute upon which such termination is alleged to be
based. The arbitration shall be conducted according to the
Commercial Arbitration Rules of the American Arbitration
Association. The place of arbitration shall be Omaha, Nebraska
or Des Moines, Iowa or such other place as may be agreed upon by the
Parties. Both Parties shall attempt to agree upon one
arbitrator, but if they are unable to agree, each shall appoint an
arbitrator and those two arbitrators shall appoint a third
arbitrator. The expenses of the arbitrator(s) shall be divided
equally between the Parties, unless otherwise determined by the
arbitrators as part of the decision of the
arbitrators. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof, and
shall be enforceable against the
Parties.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-18
|
25.
|
Severability:
In the event any provision of this Agreement is held to be invalid,
illegal or unenforceable, in whole or in part, the remaining provisions of
this Agreement shall not be affected thereby and shall continue to be
valid and enforceable. In the event any provision of this
Agreement is held to be invalid, illegal or unenforceable as written, but
valid, legal and enforceable if modified, then such provision shall be
deemed to be amended to such extent as shall be necessary for such
provision to be valid, legal and enforceable and it shall be enforced to
that extent. Any finding of invalidity, illegality or
unenforceability in any jurisdiction shall not invalidate or render
illegal or unenforceable such provision in any other
jurisdiction. Without limiting the generality of the foregoing,
each term of this Agreement which provides for a limitation of remedies or
liability, disclaimer or exclusion of warranties, or exclusion or
limitation of damages is subject to this Section. Further, if
any remedy is determined to have failed of its essential purpose or
otherwise, all limitations of liability and exclusions and limitations of
damages provided for in this Agreement shall remain in full force and
effect.
|
|
26.
|
No "Take or
Pay." The Parties agree that this is not a "take or pay
contract"; provided, however, GPTG is obligated under this Agreement to
purchase all of the Ethanol output at the Plant pursuant to Purchase
Orders it presents to and which are accepted by Producer pursuant to
Section 5.B of this Agreement.
|
|
27.
|
Counterparts. This
Agreement may be executed by the Parties by facsimile and in separate
counterparts, each of which when so executed will be deemed to be an
original and all of which together will constitute one and the same
agreement.
|
|
28.
|
Working
Relationship. Because the Parties have not done business
together in the past in the manner described in this Agreement, they have
not yet attempted to develop efficient and effective day-to-day procedures
related to ordering, delivering ethanol and shipping ethanol and,
therefore, agree to work together promptly and in good faith to develop
effective and efficient day-to-day procedures to cover these matters;
provided, however, that no such procedures shall be in conflict or
inconsistent with any of the terms or conditions of this Agreement, shall
in any way amend or modify this Agreement, or shall be a part of this
Agreement.
|
|
29.
|
Confidentiality: The
Parties acknowledge that they will be exchanging information about their
businesses under this Agreement which is confidential and proprietary, and
the Parties agree to handle that confidential and proprietary information
in the manner described in this Section
29.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-19
|
a.
|
Definition
of Confidential Information. For purposes of this
Agreement, the term "Confidential Information" means information related
to the business operations of Producer or GPTG, as the case may be, that
meets all of the following
criteria:
|
|
(i)
|
The
information must not be generally known to the public, and must not be a
part of the public domain.
|
|
(ii)
|
The
information must belong to the Party claiming it is confidential, and must
be in that Party's possession.
|
|
(iii)
|
The
information must have been protected and safeguarded by the Party claiming
it is confidential by measures that were reasonable under the
circumstances before the information was disclosed to the other
Party.
|
|
(iv)
|
Written
information must be clearly designated in writing as "Confidential
Information" by the Party claiming it is confidential before it is
disclosed to the other Party, except that all information about a Party's
production, costs and prices will always be considered Confidential
Information under this Agreement, without the need for specifically
designating it as such.
|
|
(v)
|
Verbal
Confidential Information which is disclosed to the other Party must be
summarized in writing, designated in writing as "Confidential
Information," and transmitted to the other Party within ten (10) days of
the verbal disclosure, except that all information about a Party's
production, costs and prices will always be considered Confidential
Information under this Agreement, without the need for specifically
designating it as such or providing a writing pursuant to this
subparagraph.
|
|
b.
|
Limitations
on the Use of Confidential Information. Each Party
agrees that it will not use any Confidential Information that it obtains
about the other Party for any purpose, other than to perform its
obligations under this
Agreement.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-20
|
c.
|
The
Duty not to Disclose Confidential Information. The
Parties agree that they will not disclose any Confidential Information
about each other to any person or organization, other than their
respective legal counsel and accountants, without first getting written
consent to do so from the other Party. Notwithstanding the
foregoing, if a Party or anyone to whom such Party transmits Confidential
Information in accordance with this Agreement is requested or required (by
deposition, interrogatories, requests for information or documents in
legal proceedings, subpoenas, civil investigative demand or similar
process) in connection with any proceeding, to disclose any Confidential
Information, such Party will (if permitted under the law or other process
in question) give the disclosing Party prompt written notice of such
request or requirement so that the disclosing Party may seek an
appropriate protective order or other remedy, and the receiving Party will
cooperate with the disclosing Party, at the disclosing Party's cost and
expense, to obtain such protective order. The fees and costs of
obtaining such protective order, including payment of reasonable
attorney's fees, shall be paid for by the disclosing Party. If
such protective order or other remedy is not obtained or the disclosing
Party waives compliance with this Section, the receiving Party (or such
other persons to whom such request is directed) will furnish only that
portion of the Confidential Information which, in the opinion of legal
counsel, is legally required to be disclosed, and upon the disclosing
Party's request, and at the disclosing Party's cost and expense, shall use
commercially reasonable efforts to obtain assurances that confidential
treatment will be accorded to such
information.
|
|
d.
|
The Duty to Notify the
Other Party in Cases of Improper Use or Disclosure. Each
Party agrees to immediately notify the other Party if the Party becomes
aware of any improper use of or any improper disclosure of the
Confidential Information of the other
Party.
|
|
e.
|
Protection of the
Confidential Information. Each Party agrees to develop
effective procedures for protecting the Confidential Information that it
obtains from the other Party, and to implement those procedures with the
same degree of care that it uses in protecting its own Confidential
Information.
|
|
f.
|
Return of the
Confidential Information. Immediately upon the
termination of this Agreement, each Party agrees to return to the other
Party all of the other party's Confidential Information that is in its
possession or under its control.
|
|
g.
|
Disclosure in SEC
Filings. Notwithstanding any other provision contained in this
Agreement, GPTG acknowledges and agrees that the disclosure of this
Agreement and the transactions contemplated hereby by Producer (i) in a
Form 8-K or other report filed with the Securities and Exchange Commission
at any time on or after the date hereof, or (ii) in a press release or on
an analyst call, will not be violation of this Section. Producer will,
however, cooperate with any reasonable request of GPTG to request
confidential treatment for certain terms and provisions of this Agreement
in connection with any such filing with the
SEC.
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-21
|
h.
|
Termination of
Obligations. The Parties' respective obligations under
this Section shall apply during the term of this Agreement and for a
period of two (2) years following the effective date of the termination of
this Agreement, whether by Producer or GPTG and for whatever reason or for
no reason, and neither Party shall have any further ongoing obligations
under this Section, other than for liability with respect to any prior
breach of this Section by them, at any time on or after the date which is
two (2) years after the effective date of the termination of this
Agreement.
|
30. Consent to Jurisdiction;
Waiver of Jury Trial. Subject to
Section 24, GPTG and Producer each consent to the nonexclusive jurisdiction of
any federal or state court sitting in Polk County, Iowa or in Xxxxxxx County,
Nebraska in any action or proceeding arising out of or relating to this
Agreement. GPTG and Producer each waive any right to a jury trial
with respect to and in any action, proceeding, suit, claim, counterclaim,
demand, dispute or other matter whatsoever or arising out of this
Agreement.
In
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the date first written above.
Green
Plains Trade Group LLC
|
||||
By:
|
/s/ C. Xxxxxxx Xxxxx
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
Name: C.
Xxxxxxx Xxxxx
|
Name:
Xxxxxxx Xxxxx
|
|||
Title: EVP
Ethanol
|
Title:
President/CEO
|
|||
Date: October
1, 2009
|
Date: September
28, 2009
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-22
SCHEDULE
1
GPTG will
present to Producer to make the following flat price or basis bid * everyday FOB
the plant in Nevada for their consideration. The limits (volume) GPTG
would be willing to extend on these bids are also listed.
Nearby
Month
|
Maximum
offer will be for *
|
Nearby
Month +1
|
Maximum
offer will be for *
|
Nearby
Quarter
|
Maximum
offer will be for *
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-23
EXHIBIT
A
Green
Plains Trade Group LLC
FUEL-GRADE
ETHANOL
SPECIFICATIONS
(DENATURED)
NON-DETERGENT
|
||||
TEST
|
GRADE
|
METHOD OF TEST
|
||
Apparent
Proof - 60°F
|
200
minimum
|
ASTM
D-4052 /
|
||
203
maximum
|
Conversion
Table
|
|||
Specific
Gravity, 60/60°F
|
0.7870
- 0.7950
|
ASTM
D-4052
|
||
Water,
Mass Percent
|
0.50
nominal
|
ASTM
E-203
|
||
0.82
maximum
|
||||
Ethanol
Content,
|
92.1
minimum
|
Gas
Chromatography
|
||
Volume
Percent
|
ASTM
D-5501
|
|||
Methanol,
(vol. %)
|
0.50
maximum
|
ASTM
D-5501
|
||
Non-Volatile
Matter,
|
5
maximum
|
ASTM
D-1353
|
||
mg/100
mL
|
||||
|
||||
Sulfur,
Mass Percent
|
0.0010
maximum
|
ASTM
D-5453
|
||
Benzene,
(vol. %)
|
0.06
maximum
|
ASTM
D-3606
|
||
Olefins,
(vol. %)
|
0.50
maximum
|
ASTM
D-1319
|
||
Aromatics,
(vol. %)
|
1.70
maximum
|
ASTM
X-0000
|
||
Xxxxxxxx
Ion Content,
|
32
maximum
|
ASTM
D-512, Meth. C
|
||
mg/L
|
Modified
Note (1)
|
|||
Copper
Content, mg/kg
|
0.08
maximum
|
ASTM
X-0000, Xxxx.X
|
||
Modified
Note (2)
|
||||
Acidity
(as acetic acid
|
0.0070
maximum
|
ASTM
D-1613
|
||
CH3C00H),
mass %
|
0.0042
maximum
|
(Shipments
to Canada)
|
||
Appearance
|
Clear
and Bright, visibly
|
Visual
|
||
free
of suspended and/or
|
||||
settled
contaminants.
|
||||
Color,
Platinum - Cobalt
|
50.0
maximum
|
ASTM D-1209
|
||
Hydrocarbon
Denaturant
|
5.00
maximum
|
Gas
Chromatography
|
||
gal/100
gal.
|
2.0
minimum
|
ASTM
D-4806
|
||
|
||||
pHe
|
6.5
minimum
|
ASTM
D-6423 (3)
|
||
9.0
maximum
|
||||
Sulfate-mg/kg
|
4.0
maximum
|
-No
official
|
||
ASTM
Method
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-24
(NOTES)
Note
1:
|
The
modification of Test Method D-512, Procedure C, consists of using 5 mL of
sample diluted with 20 mL of distilled water instead of the 25 mL sample
specified in the standard procedure. The volume of the sample
prepared by this modification will be slightly more than 25
mL. To allow for the dilution factor, report the chloride ion
present in the fuel ethanol sample as 5 times that determined in the
sample.
|
Note
2:
|
The
modification of Test Method D-1688, Procedure D, consists of mixing
reagent grade ethanol (which may be denatured according to BATF Formula 3A
or 3O) in place of water as the solvent or diluent for the preparation of
reagents and standard solutions. However, this must not
be done to prepare the stock copper solution described in 39.1 of
D-1688. Because a violent reaction may occur between the
acid and the ethanol, use water as specified in the acid solution part of
the procedure to prepare the stock copper solution. Use ethanol
for the rinse and final dilution
only.
|
Note
3:
|
The only denaturants
shall be natural gasoline, gasoline components, or unleaded
gasoline at a minimum concentration of 2 parts by volume per 100
parts by volume. Hydrocarbons, with an end boiling point higher
than 437°F as determined by ASTM Method D-86, shall not be
used.
|
Note
4:
|
All
fuel ethanol will contain a minimum of one of the
following corrosion inhibitors:
|
a)
|
20
pounds per 1,000 barrels of Octel Starreon
DCI-11
|
b)
|
20
pounds per 1,000 barrels of Petrolite Tolad
3222
|
c)
|
13
pounds per 1,000 barrels of Petrolite Tolad
3224
|
d)
|
20
pounds per 1,000 barrels of Nalco
5403
|
e)
|
20 pounds per 1,000
barrels of Endcor FE-9730 (1)
|
f)
|
20
pounds per 1,000 barrels of MidContinental
MCC5011E
|
g)
|
27
pounds per 1,000 barrels of MidContinental
MCC5011EW
|
h)
|
13
pounds per 1,000 barrels of US Water Services Corrpro
654
|
*
|
Portion
omitted pursuant to request for confidential treatment filed separately
with the Securities and Exchange Commission.
|
E-25