EXHIBIT 10.5
CORNERSTONE
ENERGY
BASE AGREEMENT
SELLER: CORNERSTONE ENERGY, INC.
00000 X XXXXXX
XXXXX 000X
XXXXX, XX 00000
CONTACT: XXXXX XXXXX
PHONE: 000-000-0000
FAX: 000-000-0000
BUYER: NEDAK ETHANOL LLC
00000 XXXXXXXXX XXXX
XXXXXXXX, XX 00000
CONTACT: MR. XXXX LEISWALD
PHONE: 000-000-0000
FAX:
Dated: February 7, 2006
Agreement Number: 16245
This Agreement incorporates and is subject to the Terms and Conditions
attached hereto and has been executed as of the date first written
above. THIS BASE AGREEMENT SUPERSEDES AND REPLACES ALL EXISTING OR
PREVIOUSLY EXECUTED BASE AGREEMENTS AND AMENDMENTS THERETO.
SELLER: CORNERSTONE ENERGY, INC. BUYER: NEDAK ETHANOL LLC
BY: /S/ Xxxx Xxxxxx BY: /S/ Xxxx Xxxxxxxx
------------------------- -----------------
TITLE: Vice President, Sales TITLE: Board Member
X-10.5-1
GENERAL TERMS AND CONDITIONS
ARTICLE 1. PURPOSE AND DEFINITIONS
1.1 This Base Agreement for Natural Gas Sale Transactions ("Agreement")
establishes mutually agreed and legally binding terms governing purchases, sales
and exchanges of Natural Gas, made between Buyer and Seller during the period
this Agreement is in effect. As used herein, the term "Buyer" refers to the
party purchasing and accepting delivery of Gas and the term "Seller" refers to
the party selling and making delivery of Gas.
1.2 (a) All transactions are entered into in reliance on the fact that this
Agreement and all transactions form a single agreement between the Parties. For
each transaction entered into between the Parties, Seller will prepare an
Ordering Exhibit reflecting agreed upon terms and forward that Ordering Exhibit
to Buyer.
(b) If the Ordering Exhibit is contrary to Buyer's understanding of the
transaction, then Buyer agrees to notify Seller within two (2) business days of
the date of the Ordering Exhibit. Buyer understands and agrees that its failure
to so notify Seller constitutes Buyer's agreement to the transaction set out in
the Ordering Exhibit.
(c) The Parties agree that fax signatures on any Ordering Exhibit will be
accepted by each Party as original signatures.
(d) Except for items noted in Article 9, if there is a conflict between the
Ordering Exhibit and this Agreement, the Ordering Exhibit will control.
1.3 The terms of this Agreement shall, unless specifically agreed otherwise,
apply to and are incorporated in the following transaction types:
(a) Firm: If sales under this Agreement are designated as "Firm", then
deliveries and receipts of gas under this Agreement may not be interrupted
except for reasons of Force Majeure or curtailment on Buyer's LDC. The Parties
agree to make and accept deliveries of gas on a non-interruptible basis up to
Buyer's MDQ. If Seller interrupts Buyer for reasons other than Force Majeure or
a curtailment by Buyer's LDC, Buyer's exclusive remedy shall be that Buyer may
recover damages as provided in Article 11.
(b) Secondary Firm: If sales under this Agreement are designated as
"Secondary Firm", then the Parties have agreed to make and accept deliveries of
gas on a best-efforts basis up to Buyer's MDQ. Seller may interrupt its
performance without liability to Buyer to the extent that one or more of the
following conditions are present: i) Force Majeure; ii) curtailment by Buyer's
LDC; iii) curtailment of supply by a gas supplier; iv)curtailment of storage by
a storage provider; v) curtailment of transportation by a transporter,
including, but not limited to, transportation between secondary firm points; vi)
recall of transportation capacity release by its releasor; vii) curtailment of
gas production behind a specific meter. If Seller interrupts for any other
reason, Buyer's exclusive remedy shall be that it may recover damages as
provided in Article 11.
(c) Interruptible: If sales under this Agreement are designated as
"Interruptible", then Seller may interrupt Buyer at any time for any reason. The
Parties have agreed to make and accept deliveries of gas on a daily basis
without any obligation other than Buyer's obligation to take and to pay for the
gas it nominates on a daily basis, and Seller's obligation to xxxx Buyer for the
gas Seller delivers at the price specified in the Ordering Exhibit.
1.4 "MDQ" means Buyer's maximum daily quantity as specified in the Ordering
Exhibit. If the MDQ has not been specified in the Ordering Exhibit and if Buyer
has contracted for Firm or Secondary Firm service, Buyer's MDQ for each month
shall be calculated by dividing the monthly contract volume specified on the
Ordering Exhibit by 25 days.
1.5 "OFO" (Operational Flow Order) or "PODB" (Period of Daily Balancing) shall
mean an event where a monthly balanced pipeline or LDC requires balancing on a
daily basis. If, in the event an OFO or PODB is issued by the interstate
pipeline or LDC, Buyer's MDQ will be restricted to Buyer's first of the month
confirmed nomination over the duration of the OFO or PODB.
1.6 "SOL" (System Overrun Limitation) shall mean an event where a daily balanced
pipeline or LDC calls a critical day due to operational problems, capacity
constraints, or any other cause.
ARTICLE 2. TERM
2.1 Unless terminated earlier pursuant to any other provision of this Agreement,
the term of this Agreement shall be for a two (2) year period commencing on the
date first written above, and shall continue month to month thereafter until
terminated by either Party upon thirty (30) days prior written notice to the
other; provided, however, that if one or more Ordering Exhibit(s) are in effect,
termination under this Article 2 shall not be effective for such Ordering
Exhibit(s) until the expiration of the term of such Ordering Exhibit(s).
ARTICLE 3. QUANTITY
3.1 Seller agrees to sell and make delivery of and Buyer agrees to purchase and
accept delivery of the contract volume specified in the Ordering Exhibit in
accordance with the terms of the specified transaction.
ARTICLE 4. CONTRACT PRICE
4.1 Unless otherwise indicated in the Ordering Exhibit, the contract price is
stated in MMBtu. In the event a transporter changes any rates (e.g., Btu factor,
fuel, demand charges, transportation charges) related to the delivery of gas
hereunder, the contract price for such gas shall likewise change effective the
date of the rate change by such transporter. Unless otherwise provided for in
the Ordering Exhibit or associated Monthly Balancing Agreement, the per MMBtu
charge for all gas supplies taken in excess of the monthly contract volume shall
equal either the highest posted daily price as published in Gas Daily's "Daily
Price Survey" or the first of the month Index as published in Inside F.E.R.C.
Gas Market Report (IFGMR) for natural gas from the same region and pipeline as
the delivery point(s), plus all applicable pipeline charges. Unless otherwise
provided for in the Ordering Exhibit or associated Monthly Balancing Agreement,
the per MMBtu credit for all gas supplies not taken shall equal either the
lowest posted daily price as published in Gas Daily's "Daily Price Survey" or
the first of the month Index as listed in IFGMR for natural gas from the same
region and pipeline as the delivery point(s).
4.2 In the event Buyer fails to take receipt of any quantity of gas for which
Seller has obtained or entered into financial risk management contracts,
regardless of the transaction type, Buyer shall reimburse Seller the difference,
if any, between a) the Contract Price multiplied by that portion of the volume
not taken by Buyer and b) the price obtained by Seller in a sale of such
quantity to a third party(ies) or the repurchase of such quantity, or part
thereof, by the Seller. Sales or repurchases conducted by Seller to mitigate
Buyer's loss will be conducted by Seller in a commercially reasonable manner. If
such sale or repurchase does not occur, Buyer will pay to Seller an amount
sufficient to keep Seller whole under its risk management contracts. In
addition, Buyer shall reimburse Seller for all of Seller's incremental costs
associated with Buyer's failure to take or accept delivery of gas.
4.3 In the event an OFO, SOL or similar critical day is in effect, Seller shall
have the right to xxxx all gas supplies nominated above the first of the month
nomination at the highest Gas Daily index price for the days in question, plus
all applicable pipeline charges. All such gas will be considered first through
the meter.
4.4 Where natural gas sales are made on a Secondary Firm basis, Seller will base
Buyer's Contract Price upon the acquisition of released firm pipeline capacity.
Seller shall use commercially reasonable efforts to acquire such released firm
pipeline capacity. To the extent such released firm pipeline capacity is
unavailable to Seller or unattainable by Seller due to prevailing market
conditions, Seller shall have the right to pass on incremental pipeline
transportation costs to Buyer that are incurred by Seller. Total pipeline
transportation charges will not exceed the maximum FERC approved tariff charges
of the applicable pipeline.
ARTICLE 5. NOMINATIONS, SCHEDULING, AND BALANCING
5.1 Nominations are due from Buyer to Seller no later than 24 hours prior to the
nomination deadline of the applicable transporter for gas volumes to flow at the
beginning of the month, or for any nomination change. The Ordering Exhibit shall
set forth which of the parties is responsible for nominations, scheduling, and
daily balancing with various gas suppliers and transporters. If the Ordering
Exhibit is silent on those responsibilities, then Buyer will be responsible for
nominating, scheduling, and daily balancing.
X-10.5-2
With respect to these responsibilities that Buyer retains, Seller shall bear no
liability to Buyer or any of Buyer's gas suppliers or transporters. With respect
to these responsibilities assumed by Seller under the Ordering Exhibit, Seller
will rely on the accuracy and timeliness of information from Buyer regarding its
current nominations. Buyer's failure to timely communicate to Seller any changes
to its daily nomination will entitle Seller to recover from Buyer any resulting
imbalance or overrun charges, penalties and fees assessed by a supplier or
transporter to Seller. Timeliness shall include, but not be limited to,
communicating as soon as reasonable and sufficiently in advance of supplier and
transporter deadlines to permit Seller to act. Seller is not responsible for any
penalties caused by variances between the gas scheduled and the gas burned by
Buyer unless a Daily Balancing Agreement has been executed between the parties,
in which case the Daily Balancing Agreement will specify the extent, if any, of
Seller's obligation for this variance. Gas taken in excess of the Maximum Daily
Quantity during a period of curtailment without prior authorization shall be
unauthorized and shall be paid for by the Buyer at the higher of the sum of all
associated penalty and other charges from Seller's suppliers and transporters,
or the Contract Price in 4.1 above.
5.2 If Buyer fails to communicate a daily nomination on a timely basis to
Seller, Seller shall nominate Buyer's monthly contract volume divided by the
number of days in the month.
ARTICLE 6. TITLE AND RISK OF LOSS
6.1 Seller shall hold title to the gas up to the Delivery Point. Buyer shall
hold title to the gas at the Delivery Point and downstream thereof. Each party
shall bear the risk of loss during the time that such party holds title to the
gas.
ARTICLE 7. TAXES
7.1 Seller shall be responsible for payment of all taxes with respect to the gas
prior to the delivery of such gas at the Delivery Point(s). Buyer will be
responsible for payment of all taxes at and after delivery of the gas at the
Delivery Point(s). If a party is required to remit or pay taxes that are the
other party's responsibility hereunder, the party responsible for such taxes
shall promptly reimburse the other party for such taxes. Reimbursement to Seller
shall include, but not be limited to, taxes charged by an LDC when Seller is
acting as Buyer's LDC xxxx-paying agent. Buyer shall indemnify, defend, and hold
harmless Seller from any claims for such taxes.
7.2 If applicable, Buyer shall pay all sales and use taxes, gross receipts
taxes, franchise fees or similar taxes and fees in addition to the price stated
in the Ordering Exhibit. In the event that Buyer claims tax exemption, Buyer
shall provide Seller with exemption certificate(s) in a form acceptable to the
appropriate taxing authority. If such certificate or other proof of exemption is
not provided for a particular transaction, Seller shall add the non-exempt tax
to Seller's invoice to be paid by Buyer.
ARTICLE 8. CREDIT REQUIREMENTS
8.1 Each party shall meet or exceed the other's credit requirements during the
term of this Agreement, and shall provide any financial information available as
reasonably requested by the other party for its credit evaluation(s). The
parties' credit requirements may include, but shall not be limited to,
prepayments, a parental guaranty, a letter of credit, or a margin account.
Seller reserves the right to request such credit arrangements before and during
the term of the Agreement. Should Buyer fail to provide satisfactory security to
Seller, then Seller, in its sole discretion, may terminate this Agreement and
immediately suspend deliveries hereunder.
8.2 In the event Buyer shall (i) make an assignment or any general arrangement
for the benefit of creditors; (ii) default in the payment or performance of any
obligation to Seller under any transaction(s); (iii) file a petition or
otherwise commence, authorize, or acquiesce in the commencement of a proceeding
or cause under any bankruptcy or similar law for the protection of creditors or
have such petition filed or proceeding commenced against it; (iv) otherwise
become bankrupt or insolvent (however evidenced); (v) be unable to pay its debts
as they fall due; or (vi) fail to give adequate security for or assurance of its
ability to perform its further obligations under any transaction within
twenty-four (24) hours of a reasonable request by Seller; (vii) is downgraded
below a rating of "BBB-" by Standard & Poor's Rating Group or its successor or
below a "Baa3" by Xxxxx'x Investors Service or its successor, then Seller shall
have the right to withhold or suspend deliveries under any or all currently
effective transaction(s) between the Parties or terminate this Agreement and all
transactions, or both, without prior notice, in addition to any and all other
remedies available hereunder or pursuant to law.
ARTICLE 9. BILLING
9.1 Buyer shall be billed based on the monthly contract volume stated in the
Ordering Exhibit, trued up to actual consumption or scheduled quantities at the
delivery point.
9.2 Seller shall have the right to xxxx based on estimated volumes and true up
to actuals when those become available.
9.3 If not otherwise indicated in the Ordering Exhibit, the following shall be
deemed to apply: i) billing units shall be in MMBtu, ii) the billing volume
shall be equal to the actual MMBtu consumption, iii) the transaction type for
any contract period shall be Secondary Firm, and (iv) the delivery point shall
be Buyer's city gate.
9.4 Buyer shall be billed at the Contract Price and other charges as provided in
this Agreement, including, but not limited to, imbalance or overrun charges,
penalties, and fees assessed by a supplier or transporter and which are the
responsibility of the Buyer.
ARTICLE 10. PAYMENT
10.1 Payment from Buyer to Seller of the full amount of Seller's invoice shall
be due within ten (10) days of the invoice date ("Due Date") at the herein-noted
address. Payments shall be made by wire transfer or by check. Commencing on the
day following the Due Date, interest shall accrue at the rate in Article 10.3
until the invoice is paid. Seller shall impose a $25.00 charge on all returned
checks.
10.2 If Buyer disputes, in good faith, any portion of Seller's invoice, Buyer
shall pay the amount invoiced and then notify Seller in writing of the disputed
amount. If it is determined that any disputed amount is owed to Buyer, then
Seller shall reimburse such amount, plus interest, at the rate specified in
Article 10.3 from the original payment date.
10.3 Commencing on the day following the Due Date, interest shall accrue at 1
1/2% per month until the same is paid, provided, however, such rate shall not
exceed the maximum rate established by law. Seller shall have the right to
terminate this Agreement or any transactions hereunder if any xxxx remains
unpaid for ten (10) days after the Due Date thereof or if Buyer breaches any
other term or condition of this Agreement and fails to remedy or correct the
same, within forty-eight (48) hours after receipt of written notice of such
default from Seller. Suspension of gas under this Section shall be in addition
to any and all other remedies available in this Agreement. Buyer shall pay all
costs and expenses (including attorney's fees) incurred by Seller in collecting
any unpaid amounts owed by Buyer.
ARTICLE 11. LIABILITY AND INDEMNIFICATION
11.1 EXCEPT AS SET FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE
DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF
DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR
BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS
PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH
PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF
NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN OR IN A
TRANSACTION, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES
ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL
OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY
HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY
PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS
HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE
CAUSE
X-10.5-3
OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY
DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE
THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE
OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED
HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.
11.2 In the event Seller fails to comply with its obligations as specified in
Article 1.1, Seller shall reimburse Buyer within ten (10) days of receipt of an
invoice and supporting detail from Buyer for the difference between the Contract
Price for the gas not delivered and the purchase price paid by Buyer for
replacement gas, adjusted for reasonable incremental transportation costs,
multiplied by that portion of the quantity not delivered. Buyer shall use
commercially reasonable efforts to obtain gas at the lowest price possible for
the delivery area.
11.3 If Buyer fails to take its monthly contract volume, Buyer will be liable
for any and all firm transportation charges related to Buyer's supply, which
shall be billed in addition to the price of natural gas supply if such charges
have not previously been included in the Contract Price.
11.4 Neither Party shall be liable to the other Party for losses or damages
which result from (i) an event of Force Majeure preventing performance under
this Agreement; or (ii) Claims made against such other Party by third parties
due to the performance or non-performance of this Agreement, whether such Claims
arise in contract, tort or otherwise; or (iii) the death of or bodily injury to
such other Party's employees, contractors or agents or damage to such other
Party's property due to the performance or non-performance of this Agreement.
11.5 Each Party shall indemnify and hold the other Party and its directors,
officers, agents, employees and contractors harmless from and against any and
all claims, damages, costs (including attorneys' fees), fines, penalties,
liabilities, actions or proceedings in tort, contract or otherwise which the
indemnified Party may be required to pay to, or which are asserted or brought
by, the indemnifying Party's employees, contractors or agents or third parties
providing services to or receiving services from the indemnifying Party, arising
from or claimed to have arisen from the performance or non-performance of this
Agreement by the indemnifying Party.
11.6 Notwithstanding any other provision in this Agreement, in no event shall a
party be liable for any penalties or charges assessed by any transporter for the
unauthorized receipt of gas by the other party.
ARTICLE 12. FORCE MAJEURE
12.1 It is agreed that if a party gives written notice of an event of Force
Majeure to the other party as soon as reasonably possible the obligations of the
party giving such notice, to the extent such party is affected by such event,
shall be suspended from the inception and during the continuance of the Force
Majeure. The cause of the Force Majeure shall be remedied with reasonable
diligence and dispatch.
12.2 "Force Majeure" means an event not within the control of the party claiming
it and claiming suspension of this Agreement. It shall include, but not be
limited to, acts of God, landslides, lightning, earthquakes, fires, storms,
hurricanes, floods, washouts, explosions, terrorism, low temperatures causing
freezing or failure of xxxxx or lines of pipe, curtailment of firm
transportation or gas storage, strikes, lockouts, riots, sabotage,
insurrections, wars, or other actions of governmental authorities.
12.3 If the price for the gas, or any portion of it, purchased under this
Agreement has been fixed or hedged by Seller pursuant to one or more risk
management contracts, then Buyer's obligations shall not be excused by any event
of Force Majeure; however, Seller shall have the obligation to attempt resale of
such hedged position as provided in Article 4 of this Agreement. In no event
will an event of Force Majeure excuse Buyer's obligation to pay directly or
reimburse Seller for imbalance or overrun charges, penalties, and fees assessed
by a supplier or transporter. Nothing contained herein shall require a party to
settle any labor dispute. Force Majeure shall not excuse Buyer from taking or
paying for volumes of natural gas at fixed charges or subject to related
financial instruments.
ARTICLE 13. REGULATION
13.1 This Agreement is subject to all valid present and future laws, orders,
rules, and regulations of duly constituted authorities with jurisdiction. In the
event any jurisdictional body asserts jurisdiction over this Agreement or
imposes or changes regulations, regardless of whether Seller is the entity being
regulated, which materially impact the Seller's economic benefit under this
Agreement, Seller may terminate this Agreement on thirty (30) days' written
notice to Buyer. If either party's activities hereunder become subject to law or
regulation of any kind which renders this Agreement illegal, unenforceable, or
uneconomical to perform, then either party shall at such time have the right to
terminate this Agreement upon written notice to the other party.
ARTICLE 14. SHIPPER SERVICES
14.1 To the extent necessary according to the delegation of responsibility for
nominating, scheduling, and daily balancing as designated in the Ordering
Exhibit, Seller will provide shipper services for Buyer, for the purpose of
procuring Buyer's gas supplies, including taking title to such gas for Buyer,
scheduling Buyer's daily and monthly requirements of natural gas with
transporters, negotiating, arranging, and managing Buyer's contracts with
transporters and receiving and paying billing statements for all gas commodity
and transportation charges. Buyer agrees to execute such documents as may be
required by transporters to allow Seller to provide such shipper services. Buyer
shall ultimately be responsible for payment of all costs and charges incurred by
Seller in providing shipper services for Buyer.
ARTICLE 15. SUCCESSION AND ASSIGNMENT
15.1 The provisions of this Agreement will be binding upon and inure to the
benefit of the successors and assigns of each of the Parties hereto. Buyer may
not assign this Agreement to any other person or entity without the prior
written consent of Seller. Seller may assign this Agreement at any time without
having to obtain Buyer's consent. Any consent required by this Article 15.1
shall not be unreasonably withheld. No future assignment will in any way operate
to enlarge, alter or change any obligation of the non-assigning party under this
Agreement.
ARTICLE 16. CONFIDENTIALITY
16.1 The terms of this Agreement and of any transactions shall be kept
confidential by the Parties hereto, except, and only to the extent any such
information must be disclosed for the purpose of effectuating gathering,
transportation, or processing of the gas or as may be required to be disclosed
by regulatory bodies (including the NYMEX), or to vested interest owners. Any
and all information received by a Party pursuant to financial responsibility
requirements will be held as confidential and used only for the purpose for
which such information was requested.
ARTICLE 17. NOTICES
17.1 Any notice, demand, request, or statement provided for in this Agreement
shall be in writing and shall be considered duly delivered when received by
mail, facsimile, or nationally recognized overnight courier, at the addresses
for NOTICES shown below:
NOTICES
Cornerstone Energy, Inc.
Attn: Contract Administration
00000 "X" Xxxxxx, Xxxxx 000X
Xxxxx, XX 00000
17.2 Check payment made to Seller shall be considered duly delivered when
received by mail, or overnight courier, at the address listed below:
CHECK PAYMENT:
-------------
Cornerstone Energy, Inc.
X.X. Xxx 0000 Xxxx. 0000
Xxxxx, XX 00000
17.3 Wire payment made to Seller shall be considered duly delivered when
received by electronic fund transfer at the address listed below:
X-10.5-4
WIRE PAYMENT:
------------
Vendor: Cornerstone Energy, Inc.
Vendor Address: 11011 "Q" Street, Xxxxx 000 X
Xxxxx, XX 00000
Vendor Acct #: 000000000
ABA #: 000000000
Financial Institute: Bank of the West
Address: 00000 Xxxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Customer Acct #: Your account # with Cornerstone
ARTICLE 18. MISCELLANEOUS
18.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of Nebraska, without regard to principles of conflicts of
laws.
18.2 The language used in this Agreement is the product of both parties' efforts
and each party hereby irrevocably waives the benefit of any rule of contract
construction which disfavors the drafter of a contract or the drafter of
specific language in a contract.
18.3 Any waiver of any default under this Agreement shall not be construed as a
waiver of any future defaults, whether of like or different character.
18.4 No action or claim, regardless of form, arising out of any transaction may
be brought by either Party more than two (2) years after the cause of action has
arisen.
18.5 This Agreement constitutes the entire agreement of the parties regarding
the subject matter hereto and may not be altered, modified, or amended except in
writing signed by both parties. Alterations, modifications or amendments by
Buyer to this Agreement that have not been agreed to and initialed by Seller
void Seller's signature and terminate the Agreement.
18.6 This Agreement and any Ordering Exhibit may be executed by Seller with an
electronic signature and the parties agree such signature is legally effective
and binding.
X-10.5-5
CORNERSTONE ENERGY MPF ORDERING EXHIBIT W/ ADDENDUM
00000 X XXXXXX, XXXXX 000X, XXXXX, XX 00000
SALES REP: XXXXX XXXXX
Phone: 000-000-0000 Cell Phone: 000-000-0000 Fax: 000-000-0000
Page 1
This Managed Procurement Fund Ordering Exhibit confirms the agreement between
CORNERSTONE ENERGY, INC. (Seller) and NEDAK ETHANOL LLC (Buyer) regarding the
purchase and sale of natural gas as of FEBRUARY 7, 2006. The Ordering Exhibit is
subject to the Terms and Conditions set forth herein and in the Base Agreement
between the parties.
Acct #: New Base Agreement #: 16245 Ordering Exhibit #:
CONTRACT TERM TRANSACTION TYPE MDQ
------------- ---------------- ----
Anticipated Start: 04/01/07 End: 03/31/10 [x] Firm [ ]Secondary Firm [ ]Interruptible 2450
DELIVERY POINT DELIVERY INFORMATION
[ ] Into-the-Pipe Pipeline Name: KM Interstate Gas Transmission Co. LDC: KN Retail
[X] LDC City Gate Zone/Line Segment: LDC Acct#:
[ ] Direct Connect POI #: City/State: Atkinson, NE
PROJECTED TOTAL MONTHLY SUPPLY NEEDS (MMBTU): (Specify Year)
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Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
--- --- --- --- --- --- --- --- --- --- --- --- -----
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2007 73,500 75,950 73,500 75,950 75,950 73,500 75,950 73,500 75,950 673750
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2008 75,950 68,600 75,950 73,500 75,950 73,500 75,950 75,950 73,500 75,950 73,500 75,950 894250
-----------------------------------------------------------------------------------------------------------------
2009 75,950 68,600 75,950 73,500 75,950 73,500 75,950 75,950 73,500 75,950 73,500 75,950 894250
-----------------------------------------------------------------------------------------------------------------
2010 75,950 68,600 75,950 220500
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Total 227,850 205,800 227,850 220,500 227,850 220,500 227,850 227,850 220,500 227,850 220,500 227,850 2,682,750
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Billable Volume: [x] Actual Consumption [ ] Nominations
CONTRACT PRICE AT THE DELIVERY POINT - Managed Procurement Fund Supply Price
plus applicable transportation, fuel and any other costs associated with
bringing gas to the delivery point
LEVEL OF PARTICIPATION: The Buyer Must Choose one of the following levels of
participation which are more fully described in the Managed Procurement Fund
Addendum attached hereto and by this reference made a part hereof:
[X] Full Requirements
MANAGEMENT FEE. Buyer will pay Seller a monthly management fee to cover the cost
of administering fixed price and option hedging, market analysis, billing,
reporting and general management of the Program. The monthly management fee will
be:
$0.0700 per MMBtu delivered to the Buyer
Natural gas will be billed as it flows through the meter in the following order:
(1) Fixed, Basis, NYMEX or Index price; (2) Managed Procurement Fund volumes (3)
Spot. Cost components not included in the Contract Price, but incurred by Seller
will be billed to Buyer at the applicable market rate.
FUEL ON INTERSTATE PIPELINE - Will be billed by Seller to Buyer at the monthly
index price for gas delivered to the Delivery point specified herein.
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TERMINATION PROVISIONS
The initial term of this agreement is as stated under CONTRACT TERM. Unless
terminated by either party giving 60 days written notice to the other party,
this contract will automatically renew for additional two-year terms, beginning
April 1 of each year and continuing through March 31 of the end of the term
year.
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NOMINATIONS, SCHEDULING, AND DAILY BALANCING STORAGE
Responsibility: Buyer Seller Not Applicable
Nominations [ ] [x] [ ] [ ] Buyer assigns its pipeline storage account to Seller
Scheduling [ ] [x] [ ] [ ] Buyer assigns its Utility storage account to Seller
Daily Balancing [ ] [x] [ ] [X] Not applicable
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SPECIAL PROVISIONS
1. Buyer may, at its sole discretion, elect another pricing alternative offered
by Seller other than the Managed Procurement Fund, (such as Fixed Price, Index
Price, etc.), provided that Buyer give written notice of its intentions to
Seller no later than March 1, 2007.
2. Extreme variances in Buyer's usage compared to historical usage, or the usage
projected by Buyer, may result in an adjustment to Buyer's monthly Managed
Procurement Fund Price.
3. Pursuant to Article 8 and Article 9 of the "Base Agreement", Seller will
require pre-payment prior to each month's gas flow for estimated volumes of gas
to be used in the ensuing month until such time that Seller, in its sole
judgment, deems Buyer to be credit worthy. Seller agrees to act in good faith to
evaluate Buyers credit and to work toward more favorable payment terms as
conditions warrant.
4. The "Projected Total Monthly Supply Needs (MMBtu)" listed above, represent an
estimation of the Buyer's natural gas requirement.
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X-10.5-6
Page 2
SITE(S) COVERED BY ORDERING EXHIBIT (Invoices will include tax unless customer
has provided Cornerstone an exemption certificate for each site.)
Facility Name: NEDAK ETHANOL LLC Tax Exempt*: [ ] Yes [ ] No
Street Address: 00000 Xxxxxxxxx Xxxx Inside City Limits:[ ] Yes [ ] No
City, State, Zip: Xxxxxxxx, XX 00000 County: Xxxx
Utility Account #: Utility: KN Retail
BUYER'S ADDRESS
Company Name: NEDAK Ethanol LLC Contact: Mr. Xxxx Leiswald
Street Address: 00000 Xxxxxxxxx Xxxx Phone: 000-000-0000
City, State Zip: Xxxxxxxx, XX 00000 Fax:
BILLING ADDRESS (IF DIFFERENT)
Company Name: Attn:
Street Address: Phone:
City, State Zip: Fax:
------------------------ ------------------------------------- -----------------
Buyer: Signature: /S/ Xxxx Xxxxxxxx
Title: Board Member Date:
NEDAK ETHANOL LLC
------------------------ ------------------------------------- -----------------
Seller: Signature: /S/ Xxxx Xxxxxx
CORNERSTONE ENERGY, INC. Title: Vice President, Sales Date: 02/09/06
------------------------ ------------------------------------- -----------------
IF ANY OF THE ABOVE TERMS ARE CONTRARY TO YOUR UNDERSTANDING OF OUR AGREEMENT,
PLEASE NOTIFY US IN WRITING SPECIFYING YOUR OBJECTIONS. FAILURE TO SO NOTIFY US
WITHIN TWO (2) BUSINESS DAYS OF THE DATE OF THIS ORDERING EXHIBIT CONSTITUTES
YOUR ACCEPTANCE OF THE TERMS SPECIFIED HEREIN.
X-10.5-7
Page 3
MANAGED PROCUREMENT FUND ADDENDUM
CORNERSTONE ENERGY, INC. (Seller) and NEDAK ETHANOL LLC (Buyer) have entered
into a Base Agreement and Ordering Exhibit for the procurement, purchase and
management of natural gas transportation and supply. This Managed Procurement
Fund Addendum is made a part of the Ordering Exhibit and Base Agreement between
Buyer and Seller.
Seller has established a diversified portfolio fund program ("Program") for the
purpose of assisting Buyers in managing price volatility which enables Buyer to
purchase natural gas from Seller with a commodity price based upon a combination
of fixed pricing, call options, monthly index pricing, daily index pricing and a
discretionary pricing component. Seller will manage natural gas price volatility
through the diversification of natural gas commodity purchases.
GENERAL TERMS AND CONDITIONS of the effective Base Agreement between the parties
shall apply.
PROGRAM ELECTION will apply to the Buyer's natural gas supply purchases at the
election of the Buyer. The Buyer must choose one of the following options:
FULL REQUIREMENTS: The Program pricing will apply to all volumes delivered to
the Buyer. This election can only be offered if no components of gas delivery to
customer have been fixed for the term of the Managed Procurement Fund Ordering
Exhibit.
SET VOLUME: Buyer identifies a specific volume for which the Program pricing
will apply. Volumes delivered in excess of this specified volume will be priced
as stated in the Managed Procurement Fund Ordering Exhibit.
PERCENT OF VOLUMES: Buyer identifies a specific percent of all volumes to be
included in the Program pricing. Volumes in excess of this specified quantity
will be priced as stated in the Managed Procurement Fund Ordering Exhibit.
VOLUMES IN EXCESS OF EXISTING HEDGE: The Program pricing will apply for all
volumes in excess of the respective monthly volumes specified in Ordering
Exhibit(s) covering any hedged volumes during the term of this MPF Ordering
Exhibit. This option precludes Buyer from hedging additional volumes during the
term of the Managed Procurement Fund Ordering Exhibit.
EXTREME VARIANCES IN BUYER'S USAGE COMPARED TO HISTORICAL USAGE, OR THE USAGE
PROJECTED BY BUYER, MAY RESULT IN AN ADJUSTMENT TO BUYER'S MONTHLY MANAGED
PROCUREMENT FUND PRICE.
PROGRAM PRICING is based on a combination of fixed pricing call options, monthly
index pricing, daily index pricing and a discretionary pricing component. . The
target weighting of each component is specified below:
a. 30% - 70% - fixed price
b. 20% - 60% - call options
c. 5% - 20% - monthly index pricing based on monthly spot
market price of gas
d. 5% - 20% - daily index pricing based on daily spot market
price of gas
e. 0% - 20% - discretionary pricing based on current market
conditions and Seller's expertise in the procurement of
natural gas.
MANAGEMENT FEE: Buyer will pay Seller a monthly management fee to cover the cost
of administering fixed price and option hedging, market analysis, billing,
reporting and general management of the Program.
WARRANTIES AND REPRESENTATIONS: Seller does not make any warranties or
representations to Buyer regarding the performance of the Program. Seller has
established the Program for the purpose of assisting Buyer in managing price
volatility. Buyer acknowledges that the price of natural gas is market sensitive
and may increase despite Seller's attempt to manage prices through the
diversification of natural gas commodity purchases.
X-10.5-8
