Exhibit 10.5
CORN PRICE RISK MANAGEMENT AGREEMENT
THIS CORN PRICE RISK MANAGEMENT AGREEMENT is made and entered into as
of the 17th day of December, 1999 by and between Broin Management, LLC, a
Minnesota limited liability company ("Manager") and Dakota Ethanol, L.L.C., a
South Dakota limited liability company ("Company").
WHEREAS, Company owns an ethanol production plant near Wentworth, South
Dakota (the "Plant"); and
WHEREAS, Manager is in the business of management and operation of
ethanol production facilities, including the Plant; and
WHEREAS, Company and Manager have engaged the services of Manager to
manage the Plant pursuant to a Management Agreement dated October 7, 1999.
WHEREAS, Company desires to engage the services of Manager to provide
corn price risk management services not addressed by the Management Agreement
between Manager and Company, and Manager desires to provide such additional
services on the terms and conditions hereinafter described.
NOW, THEREFORE, in consideration of mutual covenants contained herein,
the parties agree as follows:
DEFINITIONS
TERMS DEFINE IN THE MANAGEMENT. The capitalized terms defined in the
Management Agreement dated October 7, 1999 are incorporated herein by reference.
RIGHTS AND OBLIGATIONS OF MANAGER
GENERAL RIGHTS AND OBLIGATIONS. Manager shall have the responsibility
and authority to take all action necessary or appropriate to engage in hedging
and price risk management relating to corn requirements including, without
limitation, the power and authority to:
(a) Trade corn futures, options and other contracts with the
intention of minimizing grain costs and market exposure for
any and all ethanol plants managed by Manager and the Broin
Enterprises Plant, including the Plant;
(b) Devise and implement strategies for carry protection and basis
protection;
(c) Recommend strategies for flat price protection to each
governing board and enact all flat price strategies approved
by the governing board;
(d) Hire such employees and independent contractors as Manager
shall determine to be reasonably necessary to the foregoing;
and
(e) Carry on any other activities necessary to, in connection
with, or incidental to the foregoing.
STORAGE/FORWARD CONTRACT HEDGING. Manager will recommend Storage and
Forward Contract Hedging strategies to the Commodity Manager at the Company. At
no time will these strategies result in the flat pricing of more than 20% of one
years projected corn usage without the approval of the Board of Governors of the
Company. The Company will establish a futures trading account with the
assistance of the Manager for the purpose of Flat Price/Storage/Forward Contract
Hedging.
FLAT PRICE HEDGING. Manager will recommend flat price strategies to the
Board of Governors for flat price hedging in excess of 20% of one year's
projected corn usage as it deems necessary. The Board of Governors of the
Company or a committee appointed by the Board of Governors will review these
strategies and direct Manager to implement any strategies that are approved.
Manager will promptly enact any Flat Price Hedging strategies directed by the
Company.
INDEPENDENT CONTRACTOR STATUS. Manager in the performance of its duties
under this Agreement shall occupy the position of an independent contractor with
respect to the Company. Nothing contained herein shall be construed as making
the parties hereto partners or joint venturers, nor, except as expressly
provided herein, construed as making Manager an employee of the Company.
REPORTS ISSUED BY MANAGER
The following reports will be issued to the Company by the Manager:
Daily Reports (to Commodity Manager):
- Market Update - Bid Sheet
- Market Summary and Commentary
Weekly Reports (to General Manager):
- Pool Position and Profitability
- DDGS Market Roundup
Quarterly Reports (to the Board of Directors):
- Quarterly Market & Trading Update
- Quarterly DDGS Update
DUTIES OF COMPANY
Company hereby agrees to cooperate with Manager in the performance of
Manager's duties and responsibilities under this Agreement, to act in good
faith, and to do all reasonable things
necessary to aid Manager's performance as an independent contractor under the
terms of this Agreement.
PRICE RISK MANAGEMENT FEE
PRICE RISK MANAGEMENT FEE. Company shall pay Manager a Price Risk
Management Fee of $50,000 per year, payable in quarterly installments of
$12,500.00 due on the first day of each quarter. In the event this Agreement
commences other than on the first date of a quarter, the first quarterly
installment shall be prorated. It is projected the first quarter will commence
on August 1, 2001 and end October 31, 2001. This fee is subject to modification
in the case of plant expansions or increases in com usage.
POOLING ARRANGEMENT
Company acknowledges that Manager will be offering these price risk
management services to all of the ethanol facilities Manager manages. A pooling
arrangement shall be implemented whereby Company and other ethanol facilities
managed by Manager will contribute funds for allocation to trading activities
based on the price risk management services. All trade expenses incurred by
Manager in pursuing the foregoing shall be paid out of the pool. Any profits or
losses resulting from the trading activity will be allocated proportionally to
participants based on their proportionate contribution to the pool.
MARGIN MONEY
Initial margin contribution to the pool account will be $63,636. Income
will be distributed as sufficient cash becomes available in the account. In the
case-of pool losses, additional margin money will be requested pro-rata from the
plants trading in the pool account.
EFFECTIVE DATE; TERM; TERMINATION
EFFECTIVE DATE. This Agreement shall be effective as of the date first
set forth above.
TERM. The term of this Agreement shall be for a period of one (1) year.
Thirty (30) days prior to the expiration of the one (1) year term, this
Agreement shall be automatically extended for an additional one (1) year term
following the end of the one (1) year term unless either party gives notice of
termination as provided below.
The aforementioned renewal provision shall apply in the same manner for
all subsequent expiring terms. Therefore, every one (1) year this Agreement
shall be either automatically extended or proper notice of termination given by
either party as provided below.
TERMINATION. Either party has the right to terminate this Agreement
without cause by giving written notice to the other party of such termination.
Such written notice of termination shall be given not more than ninety (90) days
or less than thirty (30) days before the last day of each expiration period
(i.e. every year). Upon any such termination, Manager shall have the right to
continue to provide price risk management services until the end of the
then-current year. Likewise, upon any such termination, Company shall have the
right to Manager's price risk management services until the end of the
then-current year.
LIMITATION OF LIABILITY
Company acknowledges that the corn market is volatile and subject to
events over which Manager and Manager's Price Risk Consultant have no control.
Accordingly, Manager and Manager's Price Risk Consultant will not be held liable
by Company for any losses related to the trading activities of Manager and
Manager's Price Risk Consultant relating to this Agreement so long as Manager
and Manager's Price Risk Consultant have acted in good faith and in a manner
they reasonably believed to be in the best interests of the business of the
Plant. The parties acknowledge that the price risk management services to be
rendered pursuant to this Agreement may affect the profitability of the Plant,
and may accordingly affect the bonuses to be paid to Manager under the terms of
the Management Agreement.
DISPUTE RESOLUTION
In the event of a dispute between Company and Manager relating to the
terms of or performance under this Agreement, the dispute resolution provisions
set forth in the Management Agreement shall govern, and same are incorporated
herein by reference.
ASSIGNMENT
This Agreement shall be assignable by either party upon mutual written
consent of the parties hereto.
MISCELLANEOUS
HEADINGS. The headings contained herein are for convenience only and
are not intended to define or limit the scope of intent of any provisions of
this Agreement.
GOVERNING LAW. The validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties hereto
shall be governed by the laws of the State of South Dakota.
NOTICES. Any notice required or permitted herein to be given shall be
given in writing and shall be delivered by United States registered or certified
mail, return receipt requested, to the President of Manager or President of
Company, as the case may be, at the addresses set forth below or such address as
Company or Manager shall provide notice of from time to time during the term of
this Agreement:
Company: Dakota Ethanol, L.L.C.
Attention Xx. Xxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx, XX 00000
Manager: Broin Management, LLC
Attention Xx. Xxxxxxx X. Xxxxx
00000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the respective parties and their permitted assigns and successors in
interest.
WAIVERS. No waiver of any breach of any of the terms or conditions of
this Agreement shall be held to, be a waiver of any other subsequent breach; nor
shall any waiver be valid or binding unless the same shall be in writing and
signed by the party alleged to have granted the waiver.
COUNTERPARTS. This Agreement may be executed in multiple counterparts
all of which shall constitute but one Agreement.
AMENDMENT. This Agreement may be amended with the written consent of
Company and Manager.
ENTIRE AGREEMENT. Except as otherwise described herein, this Agreement
is the entire Agreement between the parties relating to corn price risk
management. Any amendment hereto must be in writing and signed by both parties
hereto to come into full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day of 17TH day of December, 1999.
COMPANY: MANAGER:
Dakota Ethanol, L.L.C. Broin Management, LLC
By: /s/ Xxxxxxx Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Its Chairman - Xxxxxxx Xxx Xxxxxx Its Chief Manager -
Xxxxxxx X. Xxxxx
and
/s/ Xxxxx X. Xxxxx
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Its Secretary - Xxxxx X. Xxxxx
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx
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