Exhibit 10.15
E XECUTION C OPY
FORM OF NON-COMPETE
AGREEMENT
This Non-Compete Agreement (this
“ Agreement ”) is made effective this
day of ,
2006 (the “ Effective Date ”) by and between
CARGILL, INCORPORATED, a Delaware corporation (“
Cargill ”), ASALLIANCES BIOFUELS, LLC, a Delaware
limited liability company (“ ASA ”), AMERICAN
CAPITAL STRATEGIES, LTD., a Delaware corporation (“
American Capital ”), LAMINAR DIRECT CAPITAL L.P., a
Delaware limited partnership (“ Laminar Direct
”), and USRG ASA, LLC, a Delaware limited liability company
(“ USRG ”), collectively referred to hereinafter
as “Parties” or individually as a
“Party.”
RECITALS
A. ASA, acting through its first
tier subsidiary, ASA OpCo Holdings, LLC (“ ASA
Holdings ”), and its second tier subsidiaries, ASA
Albion, LLC (“ ASA Albion ”), ASA Bloomingburg,
LLC (“ ASA Bloomingburg ”), and ASA Linden, LLC
(“ ASA Linden ”) (which second tier subsidiaries
are referred to herein, together with ASA Holdings and ASA, as the
“ ASA Affiliated Group ”), intends to construct,
own and operate commercial facilities at Albion, Nebraska,
Bloomingburg, Ohio, and Linden, Indiana that will produce denatured
fuel-grade ethanol (as such plants may be expanded or upgraded
according to the terms of the Corn Supply Agreement, individually,
an “ Ethanol Facility ” and, collectively, the
“ Ethanol Facilities ”), which Ethanol
Facilities are each anticipated to produce approximately
100 million gallons per year.
B. Certain members of the ASA
Affiliated Group and Cargill (and certain subsidiaries)
(collectively, the “ Cargill Affiliated Group ”)
have entered into a separate Master Agreement with respect to each
Ethanol Facility (each, a “ Master Agreement ”),
together with certain Goods and Services Agreements as defined
therein (collectively, the “ Goods and Services
Agreements ”) with respect to each Ethanol Facility,
under which the member of the ASA Affiliated Group which owns and
operates the related Ethanol Facility will procure certain goods
and services from Cargill in connection with its ownership and
operation of the Ethanol Facility.
NOW THEREFORE, in consideration of
the foregoing, the mutual promises herein contained and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows.
AGREEMENT
1. Definitions and
Interpretation .
(a) Definitions . As used in
this Agreement and in the Goods and Services Agreements, the
following capitalized terms have the meanings indicated:
“ Affiliate ”
means, with respect to any Person, (i) each Person that
directly or indirectly, controls or is controlled by or is under
common control with such designated Person, (ii) any Person
that beneficially owns or holds 50% or more of
the voting securities of such
designated Person or 50% or more of the equity interest in such
designated Person, and (iii) any Person of which such
designated Person beneficially owns or holds 50% or more of the
voting securities or in which such designated Person beneficially
owns or holds 50% or more of the equity interest. For the purposes
of this definition, “control” (including, with
correlative meanings, the terms “controlled by” and
“under common control with”), as used with respect to
any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
“ Corn Supply Agreement
” means, for any Ethanol Facility, the Corn Supply Agreement
as defined in the Master Agreement for that Ethanol
Facility.
“ Ethanol Facilities
” has the meaning specified in the Recitals.
“ Facility Specific
Termination ” means the earlier of (i) the date that
all (but not less than all) of the Principal Documents are
terminated with respect to an Ethanol Facility, and (ii) the
date that one of the Principal Documents is terminated with respect
to an Ethanol Facility due to its rejection in a bankruptcy of the
owner or Affiliate of the owner of such Ethanol Facility and
Cargill attempts to terminate all the remaining Principal Documents
and the Grain Facility Lease with respect to such Ethanol Facility,
but is prohibited by the court having jurisdiction over such
bankruptcy proceeding from terminating the remaining Principal
Documents and the Grain Facility Lease with respect to such Ethanol
Facility.
“ Financing Documents
” means any and all loan agreements, notes, indentures,
security agreements, subordination agreements, mortgages, deeds of
trust, participation agreements and other documents relating to the
construction, interim, working capital and long-term financing of
the Ethanol Facility and any refinancing thereof provided by the
Financing Parties, including any and all modifications, extensions,
renewals and replacements of any such financing or
refinancing.
“ Financing Parties
” means any and all lenders, and any trustee or agent acting
on their behalf, providing senior or subordinated construction,
interim, working capital or long-term debt financing or refinancing
to ASA or a member of the ASA Affiliated Group, the proceeds of
which are applied in whole or in part to the financing of any
Ethanol Facility.
“ Goods and Services
Agreements ” with respect to an Ethanol Facility, has the
meaning specified in Recitals.
“ Grain Facility Lease
” means, for any Ethanol Facility, the Grain Facility Lease
as defined in the Master Agreement for that Ethanol
Facility.
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“ Master Agreement
” with respect to an Ethanol Facility, has the meaning
specified in the Recitals.
“ Person ” means
an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture,
governmental authority, limited liability company or any other
entity of whatever nature.
“ Principal Documents
” means for an Ethanol Facility, collectively, the Master
Agreement, the Corn Supply Agreement, the Ethanol Agreement and the
DG Agreement for the Ethanol Facility, each as defined in the
Master Agreement for the Ethanol Facility.
(b) Rules of Interpretation .
Unless otherwise required by the context in which any term appears,
in this Agreement: (i) capitalized terms used shall have the
meanings specified in this Section 1; (ii) the singular
shall include the plural and vice versa; (iii) references to
“Sections,” “Schedules,”
“Annexes,” “Appendices” or
“Exhibits” (if any) shall be to sections, schedules,
annexes, appendices or exhibits hereof, unless otherwise specified;
(iv) all references to a particular Person in any capacity
shall be deemed to refer also to such Person’s authorized
agents, successors and permitted assigns in such capacity;
(v) the words “herein,” “hereof” and
“hereunder” shall refer to this Agreement as a whole
and not to any particular section or subsection hereof;
(f) the words “include,” “includes”
and “including” shall be deemed to be followed by the
phrase “without limitation” and shall not be construed
to mean that the examples given are an exclusive list of the topics
covered; (vi) all accounting terms not specifically defined
herein shall be construed in accordance with generally accepted
accounting principles in the United States of America consistently
applied; (vii) references to this Agreement shall include a
reference to all appendices, annexes, schedules and exhibits
hereto, as the same may be amended, modified, supplemented or
replaced from time to time; (viii) references to any
agreement, document or instrument shall be construed at a
particular time to refer to such agreement, document or instrument
as the same may be amended, modified, supplemented or replaced as
of such time; (ix) the masculine shall include the feminine
and neuter and vice versa; and (x) references to an applicable
law or to legal requirements in general shall mean a reference to
such applicable law or legal requirement as the same may be
amended, modified, supplemented or restated and be in effect from
time to time.
2. Cargill Non-Compete .
During the period beginning on the Effective Date and ending on the
Facility Specific Termination (except as otherwise limited below),
Cargill covenants that neither Cargill, nor any Affiliate of
Cargill, shall (i) own, directly or indirectly, any part of
any other ethanol facility or ethanol producer (other than another
subsidiary of ASA Holdings) located within a 50-mile radius of that
Ethanol Facility, or (ii) enter into any agreement with any
other ethanol producer (other than the ASA Affiliated Group or
another subsidiary of ASA Holdings) under which a Cargill
controlled, owned and operated stand alone commercial grain
elevator would be physically co-located with such other ethanol
producer within a 50-mile radius of that Ethanol Facility, in each
case, except as limited by the following:
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(a) ORD, NEBRASKA –
Upon the earlier to occur of (i) the fifth anniversary of
the date when Cargill and ASA Albion execute the first Sales
Confirmation pursuant to the Corn Supply Agreement relating to the
Albion, Nebraska Ethanol Facility, or (ii) the seventh
anniversary of the Effective Date (such date, the “ Ord
Non-Compete Termination Date ”), Cargill’s
non-competition obligations under clauses (i) and (ii) of
Section 2 with respect to development of an ethanol facility
co-located with Cargill’s grain elevator in Ord, Nebraska
shall expire, provided, that (unless a Facility Specific
Termination with respect to the Albion, Nebraska Ethanol Facility
has occurred):
i. following the Ord Non-Compete
Termination Date, if Cargill elects to develop an ethanol facility
co-located with Cargill’s grain elevator in Ord, Nebraska,
Cargill shall offer ASA Albion a right of first refusal with
respect to the development of such ethanol project (the “
Ord Right of First Refusal ”) and ASA Albion shall
have thirty (30) days after receipt of such offer to
exercise the Ord Right of First Refusal; and
ii. if a member of ASA Albion elects
not to exercise the Ord Right of First Refusal, Cargill may proceed
with the development of such Ethanol Facility on substantially the
same basis as offered to ASA Albion;
(b) DANA, INDIANA –Upon
the earlier to occur of (i) the fifth anniversary of the
date when Cargill and ASA Linden execute the first Sales
Confirmation pursuant to the Corn Supply Agreement relating to the
Linden, Indiana Ethanol Facility, or (ii) the end of the
seventh anniversary of the Effective Date (such date, the “
Dana Non-Compete Termination Date ”), Cargill’s
non-competition obligations under clauses (i) and (ii) of
Section 2 with respect to development of an ethanol facility
co-located with Cargill’s grain elevator in Dana, Indiana
shall expire, provided, that (unless a Facility Specific
Termination with respect to the Linden, Indiana Ethanol Facility
has occurred):
i. following the Dana Non-Compete
Termination Date, if Cargill elects to develop an ethanol facility
co-located with Cargill’s grain elevator in Dana, Indiana,
Cargill shall offer ASA Linden a right of first refusal with
resp
