AMENDMENT TO TRICANTER PURCHASE AND INSTALLATION AGREEMENT
Exhibit 10.1
AMENDMENT TO TRICANTER PURCHASE AND INSTALLATION AGREEMENT
THIS AMENDMENT TO TRICANTER PURCHASE AND INSTALLATION AGREEMENT (this “Amendment”) is made and
entered into on this 16th day of February, 2010, by and between ICM, Inc., a Kansas
corporation (“Seller”) and Cardinal Ethanol, LLC, an Indiana limited liability company (“Buyer”).
WHEREAS, Buyer and Seller are parties to that certain Tricanter Purchase and Installation
Agreement dated June 27, 2008 (the “Agreement”);
WHEREAS, GS Cleantech Corporation filed suit in the United States District Court for the
Southern District of Indiana, captioned GS Cleantech Corporation v. Cardinal Ethanol, LLC,
Case No.: 1:10-CV-0180 LIM-DML (the “Lawsuit”)
WHEREAS, Buyer and Seller desire to amend the Agreement, as amended, as specifically provided
for herein.
IN CONSIDERATION OF the mutual promises, covenants, agreements and payments set forth herein
and in the Agreement, the sufficiency of which is hereby acknowledged, Seller and Buyer agree as
follows:
| 1. | Unless otherwise defined herein, the capitalized terms used herein shall have the
meaning ascribed to them in the Agreement. |
| 2. | A new Paragraph 11 is hereby added to the Agreement which shall state as follows: |
“Indemnification. Seller agrees to indemnify and hold Buyer harmless from
and against all claims, demands, liabilities, actions, litigations, losses,
damages, costs and expenses (including reasonable attorneys’ fees) arising
out of the infringement of adversely owned patents, copyrights or any other
intellectual property rights by reason of Buyer’s purchase and use of the
Equipment. The foregoing indemnification includes providing the defense of
the Lawsuit on behalf of Cardinal by counsel of ICM’s choosing.
Notwithstanding the foregoing, Seller will not be responsible for
reimbursement of attorneys’ fees incurred by Buyer to defend any such matter
on its own; to engage counsel to monitor ICM’s defense of the Lawsuit, or to
seek advice on how to respond to any other demands or suits. If the
Equipment or its use infringes or violates an adverse intellectual property
right of any person or entity, Seller shall take all commercially reasonable
steps to (i) obtain a license to permit Buyer to continue using the
Equipment, or (ii) provide engineering or modification to the Equipment so
that it will not infringe the adverse intellectual property rights to enable
Buyer to continue to use the Equipment.”
| 3. | Except as specifically amended hereby, Buyer and Seller hereby ratify the terms and
conditions of the Agreement as if restated herein. |
| 4. | This Amendment and the Agreement, as amended, represent the entire understanding
between the parties in relation to the subject matter hereof, and supersede any and all
previous agreements, arrangements or discussions between the parties (whether written or
oral) in respect to the subject matter hereof. |
IN WITNESS OF the mutual promises, covenants and agreements set forth herein, the parties have
caused their authorized representatives to execute this Amendment as of the date first set forth
above.
| SELLER: | BUYER: | |||||||||
| ICM, Inc. | Cardinal Ethanol, LLC | |||||||||
By:
|
/s/ Xxxx XxxxxxXxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxxx
|
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