ETHANOL MARKETING AGREEMENTOil Gas Marketing Agreement |
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AVENTINE RENEWABLE ENERGY HOLDINGS INC | VeraSun Fort Dodge, LLC | Aventine Renewable Energy, Inc. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. CONFIDENTIAL EXHIBIT 10. 11 This Ethanol Marketing Agreement ("Agreement") is made and entered into as the 22 nd 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 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
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 1 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. 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° Fahrenheit temperature compensated gallons; and E. Establish and participate in monthly sales strategy meetings with AREI. 5. Pricing and Commission A. 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. 2 "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. B. Commission . AREI shall deduct from the Pooled Net Price a commission equal to [*] percent of the Pooled Net Price. [*] 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 referred to in Section 5.A. less commissions referred to in Section 5.B., to VeraSun Fort Dodge by ACH or wire [*]. D. Quarterly Meetings . VERASUN and AREI agree to hold quarterly meetings (by telephone or in person) to formulate a market outlook and perspective for the purpose of establishing pricing parameters and sales strategy for a given period (the "Guidelines"). For any period to which such Guidelines are agreed upon and apply, AREI agrees to use its commercially reasonable efforts to execute deals consistent with these guidelines and when possible AREI will solicit feedback from VERASUN before executing deals outside such Guidelines. AREI will, to the extent it deems it necessary or appropriate, utilize VERASUN to participate on customers calls. E. Supporting Records . AREI shall keep a set of accurate and complete books and records in accordance with generally accepting accounting principles with respect to all ethanol purchased and sold by AREI, including ethanol sold under AREI's Purchase and Resale business, and all costs and commissions associated therewith, and shall make such books and records reasonably available to mutually agreeable independent outside accounting representatives at AREI's office at anytime by appointment during normal business hours upon at least five (5) business days prior written notice; provided, however, there shall be no more than two such review of AREI's books and records in any twelve (12) month period and prior to such review the independent outside accounting representatives shall executive a mutually agreeable confidentiality agreement with AREI. AREI agrees to pay fifty percent (50%) of the expenses of such independent outside accounting representatives in conducting such review, provided that AREI's share of such expenses shall not exceed $15,000. All other costs and expenses of such review are the sole responsibility of VeraSun Fort Dodge. In addition, AREI shall provide VeraSun Fort Dod |
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