ETHANOL MARKETING AGREEMENTMarketing Agreement |
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EXHIBIT 10.2
ETHANOL
MARKETING AGREEMENT
This Ethanol Marketing Agreement ("Agreement") is made and entered
into as the
22nd day of February 2005 by and between Aventine Renewable Energy, Inc., a
Delaware corporation ("AREI) and VeraSun Fort Dodge, LLC, a Delaware
corporation
("VeraSun Fort Dodge").
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 ending March 31, 2007 and
thereafter, renewing for
consecutive two (2) year terms, unless
terminated by either party at the end of
the primary term or any or
any subsequent two (2) year
anniversary thereof with at least six (6)
months prior written notice.
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
party will than have
thirty (30) days to cure the breach, if the
breaching 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 Fort
Dodge may terminate this
Agreement immediately and without prior
written notice.
(3). Change of Control. Based
on a change of majority interest in
AREI, VeraSun Fort Dodge
shall have six (6) months to terminate
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this Agreement following
the receipt of written notice regarding
such change of ownership.
AREI must notify VeraSun Fort Dodge of
said event in writing
within two (2) weeks of event. VeraSun Fort
Dodge may terminate
Agreement with (30) days written notice
within said six (6) month
period.
(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 AREI and VeraSun Fort Dodge.
(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 Fort Dodge shall sell to AREI the total output of fuel grade
ethanol ("Ethanol")
produced at the VeraSun Fort Dodge, Iowa, facility
("Plant"), currently
anticipated to be one hundred (110) 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 Magellan Pipeline
Company specifications for
E-Grade Denatured Fuel Ethanol
C.
Ethanol produced at the Plant and marketed by VeraSun Fort Dodge,
directly or indirectly, to the
E-85 fuel market is excluded from this
Agreement.
3. AREI shall:
A.
Purchase all of the Ethanol produced by VeraSun Fort Dodge, at the
price outlined in Section 5;
B.
Remit payment to VeraSun Fort Dodge for the Ethanol as provided in
Section 5: and
C.
Schedule all loads with VeraSun Fort Dodge.
D.
Extend any alliance volume buying power of discounting to VeraSun Fort
Dodge.
E.
Extend railcar freight rates negotiated by AREI to VeraSun Fort Dodge.
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F.
Participate with VeraSun Fort Dodge in a monthly sales strategy call.
4. VeraSun Fort Dodge shall:
A.
Provide to AREI quarterly production forecasts, monthly updates, daily
plant inventory balances and
shipment information;
B.
Provide to AREI specifications and certificates of analysis of the
Ethanol produced;
C.
Provide for a minimum of eight days storage on the VeraSun Fort Dodge
premises;
D.
Have meters that provide both gross and net 60 degrees Fahrenheit
temperature compensated
gallons; and
E.
Establish and participate in monthly sales strategy meetings with
AREI.
5. Pricing and Commission
B.
Sales Price. The sale price VeraSun Fort Dodge shall receive for its
Ethanol shall be the Pooled Net
Price, as defined below.
"Pooled Net
Price" shall mean the net sales per gallon calculated
by subtracting the Pooled Costs on a per
gallon basis from the
Alliance Ethanol Average
Market Price.
"Alliance Ethanol
Average Market Price" shall mean the monthly
average price received by
AREI for Pooled Market Alliance Volumes
sold during such month on
a per gallon basis.
"Pooled Market
Alliance Volumes" shall mean, with respect to any
given period, aggregate
fuel grade ethanol volumes purchased by
AREI from all sellers who have agreed to
receive the Pooled Net
Price and aggregate fuel
grade ethanol volumes produced by AREI
during such period.
"Pooled Costs"
shall mean, with respect to any given period, all
direct costs incurred by
AREI in handling Pooled Market Alliance
Volumes during such
period, including by not limited to terminal
lease charges, throughput
charges, terminal shrinkage costs,
freight charges, tariffs, costs of leasing
railcar and trucks,
government taxes and
assessments, insurance, inspection fees,
inventory carrying costs,
purchased ethanol cost incurred due to
lost production and other
such costs, but excluding direct costs
incurred in marketing such
ethanol. AREI shall use commercially
reasonable efforts to
contain Pooled Costs so as to maximize the
ultimate net price payable
to VeraSun Fort Dodge for its Ethanol.
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D.
Commission. AREI shall deduct from the Pooled Net Price a commission
equal to (**) percent (**) of
the Pooled Net Price. The total
commission shall not exceed
(**) for the first (**) gallons of ethanol
produced and sold to AREI
during each twelve (12) calendar month
period commencing on December
1st of each calendar year (the "12 Month
Period") under this
Agreement and under that certain Ethanol Marketing
Agreement between AREI and
VeraSun Energy Corporation, dated February
21, 2005 (the "Other
Agreement"). If the total gallons of ethanol
produced and sold to AREI
during any 12 Month Period under this
Agreement and the Other
Agreement exceeds (**) gallons, the commission
of (**) percent (**) shall be
reduced to (**) percent (**) for all
gallons of ethanol in excess of
(**) gallons produced and sold to AREI
during such 12 Month Period under this
Agreement and the Other
Agreement."
C.
Payment. For all quantities of ethanol purchased by AREI from VeraSun
Fort Dodge during a one-week
period beginning on Monday and ending on
the following Sunday, AREI shall pay the
estimated Pooled Net Price






