Exhibit 10.1
CONTRACT FOR FUTURE SERVICES
GREAT PLAINS ETHANOL, LLC
THIS CONTRACT FOR FUTURE SERVICES is made and entered into effective
this 18th day of December, 2000, by and between Great Plains Ethanol, LLC
(the "Owner") and Broin and Associates, Inc. ( the "Design/Builder"), Broin
Management, LLC, ("Broin Management") Ethanol Products, LLC ("Ethanol
Products"), Broin Enterprises, Inc. d/b/a Dakota Commodities ("Dakota
Commodities"), and Broin Investments, LLC ("Broin Investments").
WHEREAS, the Owner is pursuing financing, design, construction, and
operation of a fuel ethanol plant to be located in Southeastern South Dakota
(the "Plant"); and
WHEREAS, the Owner is interested in contracting with a company to
construct, manage and market products from the Plant; and
WHEREAS, the Owner requires the services of the Design/Builder,
Broin Management, Ethanol Products, Dakota Commodities and Broin Investments
to assist in these areas.
NOW THEREFORE, in consideration of mutual covenants contained
herein, the parties agree as follows:
AGREEMENT FOR DESIGN/BUILD SERVICES. The Owner and the
Design/Builder agree that they will negotiate in good faith and sign a
design/build contract. If the Owner does not obtain financing for
construction of the Plant, or terms for the design/build contract cannot be
reached, Design/Builder shall only be compensated for actual time spent and
expenses incurred on the project. Design/Builder agrees to not construct an
additional ethanol plant within a 35 mile radius of the Plant without the
Owner's approval.
AGREEMENT FOR MANAGING PARTNER SERVICES. The Owner and Broin
Management agree that Broin Management will be the Managing Partner of the
Ethanol Plant, and that language acceptable to both parties will be inserted
in the Operating Agreement or other documents to the extent necessary to
assign to Broin Management responsibilities for management of the Plant
operations. Broin Management agrees that language will also be inserted in
said documents assuring the owner quality management services.
The cost of the Managing Partner Services will be $250,000 per year
base fee adjusted annually for inflation, plus an annual bonus totaling 4% of
Net Profits.
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AGREEMENT FOR ETHANOL MARKETING SERVICES. The Owner and Ethanol
Product agree that Ethanol Products will market all ethanol produced at the
Plant in accordance with the terms of an Ethanol Marketing and Services
Agreement. Ethanol Products agrees that language also will be inserted in the
Agreement to assure the Owner satisfactory prices for the sale of Owner's
ethanol. Ethanol Products' marketing services will be provided for a fee of
$.004 per gallon, and its administrative services will be provided for a fee
of $.0025 per gallon, with the plant having responsibility for accounts
receivable cost and risk.
SALE OF DDGS. The Owner and Dakota Commodities agree that Dakota
Commodities will market all DDGS produced at the Plant in accordance with the
terms of an DDGS Marketing Agreement. Dakota Commodities agrees that language
also will be inserted in the Agreement to assure the Owner satisfactory
prices for the sale of Owner's DDGS. The fee for the DDGS marketing will be
2% of gross revenues (minimum $200,000/yr.) with the plant having
responsibility for accounts receivable cost and risk.
EQUITY CONTRIBUTION. Broin Management agrees to contribute $200,000
for 40 of Owner's Class C Capital Units. Broin Investments agrees to
contribute $1,000,000 for 200 of Owner's Class B Capital Units. Owner grants
Broin Investments an option to make an additional equity investment of up to
$3,000,000 for Class C Capital Units during the first 75 days of the Owner's
equity drive and an option to make additional capital contributions after the
first 75 days of the equity drive until the maximum equity limit is reached
at $22,500,000.
BUSINESS PLAN. Broin Management has prepared a Business Plan for the
construction and operation of an ethanol plant. Upon completion of the
Owner's equity drive, Owner shall pay Broin Management $200,000 for
preparation of the Business Plan.
CONFIDENTIALITY. Owner recognizes that Design/Builder has and will
have information regarding trade secrets, construction costs, designs,
process technology and other vital information (collectively, "Information")
which are valuable, special and unique assets of Design/Builder. Owner agrees
that the Owner will not at any time or in any manner, either directly or
indirectly, divulge, disclose, or communicate in any manner any Information
to any third party without the prior written consent of the Design/Builder.
Owner will protect the Information and treat it as strictly confidential.
Notwithstanding anything to the contrary herein, Owner shall have no
obligation to preserve the confidentiality of any information which: a) was
previously known to Owner free of any obligation to keep it confidential, or
b) is or becomes publicly available by other than unauthorized disclosure by
Owner, or c) is required to be disclosed in connection with a request
pursuant to legal process. A violation by Owner of
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this paragraph shall be a material violation of the Agreement and will
justify legal and/or equitable relief.
ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties and there are no other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any prior
written or oral agreements between the parties.
AMENDMENT. This Agreement may be modified or amended, if the
amendment is made in writing and is signed by both parties.
SEVERABILITY. If any provisions of this Agreement shall be held to
be invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid or enforceable, then such provision shall be
deemed to be written, construed, and enforced as so limited.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce
any provision of this Agreement shall not be construed as a waiver of
limitation or that party's right to subsequently enforce and compel strict
compliance with every provision of this Agreement.
APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of South Dakota.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date set forth above.
GREAT PLAINS ETHANOL, LLC BROIN AND ASSOCIATES, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxx Xxxxx
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Its: PRES Its: C.E.O.
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BROIN MANAGEMENT, LLC
By: /s/ Xxxx Xxxxx
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Its: C.M.O.
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BROIN ENTERPRISES, d/b/a
DAKOTA COMMODITIES
By: /s/ Xxxx Xxxxx
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Its: C.E.O.
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ETHANOL PRODUCTS, LLC
By: /s/ Xxxx Xxxxx
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Its: CHAIRMAN
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