ETHANOL MARKETING AGREEMENTMarketing Agreement |
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EXHIBIT 10.1
ETHANOL
MARKETING AGREEMENT
This Ethanol Marketing Agreement ("Agreement") is made and entered
into as of
the 14th day of October 2002 by and between VeraSun Energy Corporation, a South
Dakota corporation ("VERASUN") and Williams Ethanol Services, Inc., a
Delaware
Corporation DBA Williams Bio-Energy ("WES").
In consideration of the mutual terms and conditions contained herein, the
Parties agree as follows:
1. Terms and Termination
A.
The term of this Agreement shall commence on the first day of ethanol
sales and continue for a
primary term of two (2) years and thereafter,
renewing for consecutive two
(2) year terms, unless terminated by
either party with at least six
(6) months prior written notice without
cause.
B.
In addition, this Agreement may be terminated under the circumstances
set out below.
(1) Termination for Intentional Misconduct. If
either party engages
in intentional misconduct
reasonably likely to result in
significant adverse
consequences to the other party, the party
harmed or likely to be
harmed by the intentional misconduct may
terminate this Agreement
immediately, upon written notice to the
party engaging in the
intentional misconduct.
(2) Termination for Uncured Breach. If one of the
parties breaches
the terms of this Agreement, the other
party may give the
breaching party a notice
in writing which specifically sets out
the nature and extent of
the breach, and the steps that must be
taken to cure the breach.
After receiving the written notice, the
breaching party will then
have thirty (30) days to cure the
breach, if the breach does
not involve a failure to make any
payments which are
required by this Agreement.
If breach involves lack of
payment beyond the established
delinquency period, as
specified in this Agreement, VERASUN may
terminate this Agreement
immediately and without prior written
notice.
(3) Change of Control. Based on a change of
majority interest in WES,
VERASUN shall have six (6)
months to terminate this agreement
following the receipt of
written notice regarding such change of
ownership. WES must notify
VERASUN of said event in writing
within two (2) weeks of
event. VERASUN may terminate agreement
with (30) days written
notice within said six (6) month period.
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(4) Termination by Mutual Written Agreement. This
Agreement may also
be terminated upon any
terms and under any condition, which are
mutually agreed upon in
writing by WES and VERASUN.
(5) Termination by Bankruptcy, Etc. This
Agreement may also be
terminated immediately and
without prior notice by a party as a
result of the other
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.
2. Quantity and Quality
A.
VERASUN shall sell to WES the total output of fuel grade ethanol
("Ethanol") produced
at the VERASUN Aurora, South Dakota, facility
("Plant"), currently
anticipated to be one hundred (100) million
gallons per year. Ethanol shall
be delivered FOB the Plant, and title
shall pass as the Ethanol is
loaded into transport vessels.
B.
Such Ethanol shall meet or exceed all industry standards, including
but not limited to ASTM D.4806
specifications and Williams Pipeline
Company specifications for
E-Grade Denatured Fuel Ethanol.
3. WES shall:
A.
Purchase all of the Ethanol produced by VERASUN, at the price outlined
in Section 5;
B.
Remit payment to VERASUN for the Ethanol as provided in Section 5; and
C.
Schedule all loads with VERASUN.
D.
Extend any alliance volume buying power of discounting to VERASUN.
E.
Extend railcar freight rates negotiated by WES to VERASUN.
F.
Participate with VERASUN in a monthly sales strategy call.
4. VERASUN shall:
A.
Provide to WES quarterly production forecasts, monthly updates, daily
plant inventory balances and
shipment information;
B.
Provide to WES specifications and certificates of analysis of the
Ethanol produced;
C.
Provide for a minimum of eight days storage on the VERASUN premises;
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E.
Have meters that provide both gross and net 60 degrees Fahrenheit
temperature compensated
gallons; and
F.
Establish and participate in monthly sales strategy meetings with WES.
5. Pricing and Commission
A.
Sale Price. The price VERASUN shall receive for its Ethanol shall be
based upon the actual market
price received by WES for the sale of the
Ethanol as set forth below.
B.
Costs. WES shall deduct all direct costs incurred by WES relating
exclusively to marketing the
Ethanol purchased from VERASUN,
including, but not limited to,
terminal lease charges, throughput
charges, terminal shrinkage
costs (not to exceed .5%), freight
charges, tariffs, costs of
leasing railcars and trucks, government
taxes and assessments,
inspection fees, and other similar costs. These
costs shall be passed directly to
VERASUN without WES markup. WES
shall not deduct any general or
administrative costs incurred in
marketing the Ethanol. WES
shall use commercially reasonable efforts
to contain costs so as to
maximize the net price payable to VERASUN
for its Ethanol. In the event
that VERASUN presents WES with
alternatives that will reduce
such costs, WES shall implement the
alternatives where commercially
reasonable.
C.
Net Price. Net price is defined as sales price referred in Section
5(A) less direct costs referred
in Section 5(B) ("Net Price"). WES
shall use commercially
reasonable efforts to maximize the Net Price,
commensurate with prevailing
market conditions.
D.
Establishing Minimum Net Price. VERASUN and WES agree to participate
in monthly sales strategy
meetings at which time VERASUN will
establish a monthly minimum net
price target. WES agrees to make best
effort to meet or exceed
minimum net price targets. If net price
targets are not attainable:
(1) WES must obtain written authorization from
VERASUN prior to
selling below net price
target;
(2) At VERASUN's request and expense, WES agrees
to place VERASUN's
ethanol in storage until
pricing condition can be met
E.
Commission. WES shall be paid a commission equal to (**) percent (**)
of the Net Price, as defined in
Section 5(C). The total commission
shall not exceed (**) for the first (**) gallons produced on an annual
basis. If annual production
exceeds (**) gallons, VeraSun agrees to
pay (**) percent (**) for all
ethanol sold over (**) gallons per year.
G.
Contract Authorization. WES must obtain written authorization from
VERASUN for all contract sales:
1) This confidential information has been omitted pursuant to a request for
confidential treatment.
2) The material has been filed separately with the SEC.
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(1) Equal to or greater than one (1) million
gallons;
(2) Where contract length is equal to or greater
than six (6) months.
H.
Payment. For all quantities of ethanol purchased by WES from VERASUN
during a one-week period
beginning on Monday and ending on the
following Sunday, WES shall pay
the Net Price referred to in Section
5(C) less commissions referred
to in Section 5(D), to VERASUN by ACH
or wire no later than ten (10)
business days following the end of said
one-week period. WES shall pay
interest on any delinquent payments at
the rate of nine percent (9%)
per annum, for the duration of the
delinquency. In addition, WES
shall reimburse VERASUN for any attorney
fees or other costs incurred by
VERASUN in collecting delinquent
amounts owed by WES hereunder.
WES is considered in breach of this
Agreement if the delinquency
period extends beyond thirty (30) days.
I.
Supporting Records. WES shall keep a permanent, accurate set of books
and records in accordance with
generally accepting accounting
principals with respect to all
sales of Ethanol hereunder and all
costs and commissions
associated therewith, and shall make such books
and records available to
VERASUN at WES's office at any time by
appointment during normal
business hours upon at least three (3)
business days prior written
notice. In addition, WES shall provide
VERASUN by e-mail or fax with
supporting documentation regarding the
calculation of the net sale
price with each weekly payment for
Ethanol.
6. Indemnity: WES shall indemnify,
defend, and hold VERASUN and its
affiliates, subsidiaries, parents,
directors, officers, employees,
customers, contractors,
subcontractors and agents harmless from and against
any and all claims, losses, awards,
judgments, settlements, fines,
penalties, liabilities, damages,
costs or expenses (including reasonable
Attorney's fees) alleged or incurred
on account of any injury to or death
of persons or damages to property or
any other claim to the extent caused
by or arising out of the negligence
or willful misconduct of WES, its
officers, employees, customers,
contractors, subcontractors or agents.
VERASUN shall indemnify, defend, and
hold WES and its affiliates,
subsidiaries, parents, directors,
officers, employees, and agents harmless
from and against any and all claims,
losses, awards, judgments,
settlements, fines, penalties,
liabilities, damages, costs or expenses
(including reasonable Attorney's
fees) alleged or incurred on account of
any injury to or death of persons or
damages to property or any other claim
to the extent caused by or arising
out of the negligence or willful
misconduct of VERASUN, its officers,
employees, customers, agents, or
contractors. VERASUN shall indemnify
and hold WES and its affiliates,
subsidiaries, parents, directors,
officers, employees, customers and agents
harmless from and against any and
all claims, losses, awards, judgments,
settlements, fines, penalties,
liabilities, damages, costs or expenses
(including reasonable Attorney's
fees) from any defects in the Ethanol
caused by VERASUN.
7. Independent Contractor: It is
expressly understood that the relationship of
WES to VERASUN is that of an
independent contractor and nothing contained
herein shall be construed to create
any partnership, agency, or
employer/employee relationship. WES
may freely choose the customers from
whom business shall be solicited and
the time and place for solicitation,
except as otherwise provided in this
Agreement.
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8. Notices: Any notices required to be
given under this Agreement shall be in
writing and shall be deemed given
upon personal delivery to the party to be
notified; on the third day after
deposit with the United States Postal
Service, by registered or certified
mail, postage prepaid; or upon
confirmation if sent by telex,
facsimile machine or other means of
telecommunication that transmits or
produces a written record of the
message so sent. Notices shall be
sent addressed as follows:
VERASUN: VERASUN Energy Corporation
100 22nd Avenue
Suite # 103
Brookings, SD 57006
Attn: Donald Endres, CEO
Telephone: 605-696-7200
Fax: 605-696-7250
WES: Williams Bio-Energy
P. O. Box 10
Pekin, IL 61555
Attn: Ronald Miller
Telephone: 309-347-9388
Fax: 309-347-8541
9. Insurance: The Parties shall
maintain, at all times while this Agreement is






