EXHIBIT 10.2
GRAIN PROCUREMENT AGREEMENT
OF
GRANITE FALLS COMMUNITY ETHANOL PLANT, LLC
AND
FARMERS COOPERATIVE ELEVATOR CO.
Dated May 14, 2004
GRAIN PROCUREMENT AGREEMENT
TABLE OF CONTENTS
TITLE I: PRIOR AGREEMENTS.............................................. 1
1.1.01: PRIOR AGREEMENTS SUPERSEDED.............................. 1
TITLE II: FACILITY..................................................... 1
ARTICLE I - PREMISES................................................. 1
2.1.01: LAND..................................................... 1
TITLE III: CORN PROCUREMENT............................................ 2
ARTICLE I - PROVISION OF CORN........................................ 2
3.1.01: FCE'S PROVISION OF CORN.................................. 2
3.1.02: CORN QUALITY............................................. 2
3.1.03: LICENSING................................................ 5
3.1.04 PAYMENTS TO CORN SUPPLIERS................................ 5
ARTICLE II - TERM OF CORN PROCUREMENT................................ 5
3.2.01: COMMENCEMENT............................................. 5
3.2.02: TERM OF AGREEMENT........................................ 6
ARTICLE III - CORN PROCUREMENT FEE................................... 6
3.3.01: PROCUREMENT FEE.......................................... 6
3.3.02: CORN FOR GFCEP........................................... 6
3.3.03: HEDGING ASSISTANCE....................................... 6
ARTICLE IV - INVOICING AND PAYMENT................................... 7
ARTICLE V - LOCATION OF FCE'S DELIVERY............................... 7
ARTICLE VI - DEFAULT, WAIVER AND REMEDIES............................ 8
3.6.01: DEFAULT, NOTICE, AND CURE................................ 8
3.6.02: WAIVER................................................... 8
3.6.03: REMEDIES................................................. 8
TITLE IV: GENERAL PROVISIONS........................................... 9
ARTICLE 1 - WARRANTIES............................................... 9
4.1.01: OWNERSHIP AND QUALITY OF CORN............................ 9
4.1.02: NO EXPRESS OR IMPLIED WARRANTIES......................... 9
ARTICLE II - DISPUTE RESOLUTION...................................... 10
4.2.01: ALTERNATIVE DISPUTE RESOLUTION........................... 10
4.2.02: ATTORNEY'S FEES AND COSTS................................ 10
ARTICLE III - FORCE MAJEURE.......................................... 10
4.3.01: RELIEF FROM TRANSFERRING CORN............................ 10
4.3.02: DEFINITION............................................... 11
ARTICLE IV - DELIVERY OF PAYMENTS AND NOTICES........................ 11
4.4.01: METHOD AND TIME.......................................... 11
4.4.02: NOTICE TO FCE............................................ 11
4.4.03: NOTICE TO GFCEP.......................................... 12
4.4.04: CHANGE OF ADDRESS........................................ 12
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ARTICLE V - INDEMNITY................................................ 12
4.5.01: DUTY TO INDEMNIFY (FCE)................................. 12
4.5.02: DUTY TO INDEMNIFY (GFCEP)................................ 12
ARTICLE VI - OTHER GENERAL PROVISION................................. 13
4.6.01: COMPUTATION OF TIME...................................... 13
4.6.02: SUCCESSORS IN INTEREST................................... 13
4.6.03: ENTIRE AGREEMENT......................................... 13
4.6.04: PARTIAL INVALIDITY....................................... 13
4.6.05: RELATIONSHIP OF PARTIES.................................. 13
4.6.06: INTEREST................................................. 14
4.6.07: MODIFICATION............................................. 14
4.6.08: CHOICE OF LAW............................................ 14
4.6.09: HEADINGS AND CAPTIONS.................................... 14
4.6.10: COUNTERPARTS............................................. 14
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GRAIN PROCUREMENT AGREEMENT
THIS GRAIN PROCUREMENT AGREEMENT, (the "Agreement") is made and entered
into this 14 day of May, 2004, by and between GRANITE FALLS COMMUNITY
ETHANOL PLANT, LLC ("GFCEP") and FARMERS COOPERATIVE ELEVATOR CO. ("FCE").
WHEREAS, GFCEP intends to construct, own, and operate a dry mill ethanol
and byproduct manufacturing plant and related facilities (the "Facilities") on
the Premises (defined below);
WHEREAS, the acquisition of a steady and reliable supply of corn is
integral to the use and operation of the Facilities;
WHEREAS, in order to guaranty the use and operation of the Facilities, the
parties are entering into this Agreement whereby FCE will provide a steady and
reliable supply of corn to GFCEP for use in the operation of the Facilities
under the terms and conditions hereinafter described.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, it is hereby agreed as follows:
TITLE I: PRIOR AGREEMENTS
1.1.01: PRIOR AGREEMENTS SUPERSEDED
The parties hereby agree and acknowledge that they previously entered into
one or more agreements relating to the operation of GFCEP, including, but not
limited to a Declaration of Restrictions and Covenants made by the Granite Falls
Community Ethanol Plant, LLC; a Corn Storage and Delivery Agreement, and a
Pre-Closing Memorandum. All such agreements are superseded by the terms of this
Grain Procurement Agreement and such prior agreements are hereby revoked;
provided, however, that all subscription agreements to purchase units in GFCEP
shall remain in full force and effect.
TITLE II: FACILITY
ARTICLE I
PREMISES
2.1.01: LAND
The Facilities (also described herein as "plant") will be constructed on
the premises (real estate) legally described as being east of the City of
Granite Falls, County of Chippewa, State of Minnesota, legally described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
TITLE III: CORN PROCUREMENT
ARTICLE I
PROVISION OF CORN
3.1.01: FCE'S PROVISION OF CORN
(a) FCE shall have the exclusive right and responsibility to provide GFCEP
its full daily requirements of No. 2 yellow corn, 15% moisture content, meeting
the specifications of this Agreement (the "Corn") during the term hereof and
under the conditions herein set forth. This right and responsibility shall
include the plant as originally constructed and any and all alterations,
modifications or expansions thereof.
(b) Purchases. The parties acknowledge and agree that GFCEP shall purchase
all of its corn requirements from FCE and shall place all actual orders for
purchase of corn to be delivered to the facility with FCE. At all times, FCE,
either through its own management or through lawful contracts entered into with
third parties, shall maintain
or cause to be maintained such licenses and/or authorities as may be required to
lawfully engage in the purchase and sale of corn.
(c) Risk Management. Notwithstanding the foregoing, GFCEP acknowledges
that it shall separately retain appropriate risk management services for
evaluating corn pricing and purchases and/or for making trades for price
protection and future delivery such as options, future contracts and the like.
(d) Delivery Estimates. GFCEP agrees to provide to FCE an estimate on or
before the first day of each calendar quarter with respect to its required
deliveries of corn for the following calendar quarter. The parties expressly
understand that GFCEP's notice shall be a good faith estimate and that the
parties anticipate reasonable variations between delivery forecast and actual
delivery requirements. For purposes of this Agreement the phrase "reasonable
variations" shall mean a variation of no more than 10% between the delivery
forecast and actual delivery requirements. To that end, GFCEP shall also report
to FCE on or before the first business day of each month its estimated delivery
requirement of corn for the following month.
(e) FCE shall maintain a minimum of four days supply of corn in storage at
GFCEP at all times.
3.1.02: CORN QUALITY
(a) Corn Quality. Corn delivered under this Agreement shall: (i) be No. 2
shelled yellow corn, having no more than a 15% moisture content; (ii) be graded
in accordance with State and Federal laws and in accordance with any reasonable
standards set by GFCEP; (iii) be merchantable and not be adulterated; (iv) meet
such additional specifications and standards as the parties may establish from
time to time by mutual agreement, including without limitation standards and
specifications related to test weight (determined with reference to moisture
content), foreign material and mycotoxin and other toxin levels.
It is understood and agreed that corn over 15% moisture content will be
delivered and/or corn with certain of the discount elements described in
paragraph 3.1.02(b) may be delivered and such is acceptable to GFCEP, subject to
the pricing discount(s) and other terms described in said paragraph 3.1.02(b).
It is understood and agreed that the parties intend that the corn quality
provisions of this Agreement that pertain to daily averages shall be construed
so that FCE is able to compete with other corn merchants in the surrounding area
and correspondingly so that GFCEP is treated fairly. The daily average on
quality factors shall not be abused by reasons such as bringing specific quality
loads at certain times of the day to maximize the ranges allowed in the average
window allowance(s). This will be monitored on a daily basis and if there is any
material violation, GFCEP will not be required to and shall not allow any loads
for that day to be applied to the daily averages as described in this Agreement.
(b) Corn Not Meeting Quality Requirements. GFCEP may, at its option: (i)
reject any corn delivered by FCE that does not meet these specifications
described herein or (ii) accept corn delivered by FCE that does not meet these
specifications on the following discounted pricing terms:
DISCOUNT SCHEDULE
Corn Discounts that will be charged to FCE from GFCEP:
Moisture
15.0% and under-no discount
15.1-15.5% 2 cents per bu.
15.6 - 16.0% - 4 cents per bu.
16.1 - 16.5% - 6 cents per bu.
16.6 to 17.0% - 8 cents per bu.
Corn over 17.0% - subject to rejection
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Test Weight
54.0 lbs and over - no discount
53.0 - 53.9 lbs. - 2 cents per bu.
52.0 - 52.9 lbs. - 4 cents per bu.
Below 52.0 lbs. - additional 2 cents per lb. per bu.
Regular Damage
5.0% and under - no discount
5.1% and up - 2 cents per bu. Per each 1%
Over 10.0% - subject to rejection
Foreign Material
4.0% and under - no discount
4.1% and up - 3 cents per bu. Per each 1%
MUSTY/SOUR - 5 cents per bu. If not rejected.
The parties agree that the quality requirements (and corresponding right to
reject corn) and discount schedule shall be applied as follows:
1. Moisture: There will be no discount on a load of corn until it is
above 15.0%, and then a discount and right to reject as described in
the discount schedule. The discount schedule and right to reject
regarding moisture shall be determined on a load by load basis.
2. Test Weight: All loads with a test weight of 50 lbs. and above shall
be averaged on a daily average basis, with the discount schedule
applied on that daily average. All loads of test weights below 50
lbs. shall be handled on a load by load basis, subject to the right
of rejection and with the discount schedule (if such corn is
accepted) being applied on a load by load basis.
3. Damage (Regular and/or Heat): All loads between 0% and 10% damage
shall be averaged on a daily average basis, with the discount
schedule applied on that daily average. Any loads of corn with more
than 10% damage shall be handled on a load by load basis, with right
to reject and in applying the discount schedule.
4. Foreign Material: Loads with 0% to 6% foreign material shall be
averaged on a daily average basis, with the discount schedule
applied on that daily average. Loads with more than 6% foreign
material shall be handled on a load by load basis, with right to
reject and in applying the discount schedule. Toxins. Any load of
corn that tests positive for microtoxins or other toxins will be
rejected. However, it is agreed that FCE is responsible only to use
"black light" testing to determine the existence of such toxins. If
GFCEP desires additional testing, it shall give written notice to
FCE and
GFCEP shall pay all costs of such additional testing.
This discount schedule is subject to change as market conditions dictate
providing both FCE and GFCEP mutually agree to any change in writing.
(c) Limitation on Quality Requirements. Notwithstanding the foregoing
provisions of this Section 3.1.02, FCE shall not be required to provide Corn
under this Agreement with qualities and characteristics exceeding the average
qualities of Corn produced during the preceding corn production year ending on
August 31 of such year in the specific area surrounding the Plant defined as
within a twenty (20) mile radius of the plant. If such average qualities of corn
produced within a 20 mile radius of the plant are unacceptable to GFCEP, as
reasonably determined by GFCEP, then FCE shall have the right to procure corn
from other geographic areas until such time as the average qualities of corn
within the 20 mile radius of the plant are reasonably acceptable to GFCEP. If
corn is procured
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from other geographic areas pursuant to the terms of this paragraph, the Market
Price shall be the purchase price, plus shipping costs. In addition, GFCEP shall
pay FCE the per bushel procurement fee.
(d) Determination of a Bushel of Corn. For purposes of FCE's delivery
obligations hereunder, a "bushel of Corn" or "bushel" is to be equivalent to a
bushel of No. 2 shelled yellow corn at 15% moisture and a weight of 56 pounds
per bushel. The moisture content and test weights of the Corn delivered to GFCEP
under this Agreement shall be determined and discounts on price, if any,
applied, as described in Paragraph 3.1.02 (b).
3.1.03: LICENSING
FCE shall obtain Corn to be provided to GFCEP under this Agreement under
FCE's own grain dealer's license. GFCEP shall obtain and maintain a grain
dealer's license. FCE shall also obtain any and all licenses or permits
necessary for FCE to meet its obligations under this Agreement.
3.1.04: PAYMENTS TO CORN SUPPLIERS
FCE will account for the Corn provided by, and settle with, all third
parties providing Corn to the Plant.
ARTICLE II
TERM OF CORN PROCUREMENT
3.2.01: COMMENCEMENT
The terms of this Agreement shall become effective on the first date that
the facility needs corn for testing, startup or operations. GFCEP shall notify
FCE ten (10) days in advance of when corn is first needed.
3.2.02: TERM OF AGREEMENT
The term of this Agreement shall begin on the first day corn is requested
by GFCEP as stated in paragraph 3.2.01 and shall continue for a term of twelve
(12) years thereafter. Suspensions of operations for any reason, such as
repairs, modifications, expansions or damage to the facility shall not terminate
this Agreement - provided the plant thereafter resumes operations.
ARTICLE III
CORN PROCUREMENT FEE
3.3.01: PROCUREMENT FEE
For the first four (4) years of the Corn Procurement Term, GFCEP will pay
FCE a Corn procurement and delivery fee of $0.05 per bushel of Corn delivered
pursuant to Title 3 of this Agreement (the "Procurement Fee"). Beginning on the
fourth (4th) year anniversary of the Corn Procurement Term, the Procurement Fee
shall be increased to 5.5 cents per bushel of Corn delivered. Beginning on the
eighth (8th) year anniversary of the Corn Procurement Term, the Procurement Fee
shall be increased to 6 cents per bushel of Corn delivered.
3.3.02: CORN FOR GFCEP
For any Corn required by GFCEP and provided by FCE pursuant to this
Agreement, GFCEP shall pay FCE the Market Price as determined in Title III,
Article IV (or, if applicable, Title III, Article I, paragraph 3.1.02(c)), plus
the Procurement Fee and storage fees provided for under this Agreement.
3.3.03: HEDGING ASSISTANCE
FCE shall assist GFCEP, or GFCEP's designated agent, in GFCEP's forward
purchases of Corn to "lock in" the costs thereof whenever GFCEP determines such
risk positions are prudent. The determination of GFCEP need not be separately
evidenced in writing so long as GFCEP communicates to FCE its decision to make
forward
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purchases. GFCEP shall pay the purchase price for such forward purchases plus
the Procurement fee and, if applicable, storage fees.
GFCEP shall pay the purchase price when the corn is purchased or when
invoiced, whichever occurs first. The Procurement fee shall be due when the corn
is delivered to the plant and the Procurement fee invoiced as provided by Title
III, Article IV, paragraph 3.4.01. Any storage fees shall be paid as agreed on a
case by case basis by the parties, or if no such agreement occurs, as is
customary and standard or as otherwise provided by this Agreement.
ARTICLE IV
INVOICING AND PAYMENT
3.4.01 GFCEP shall pay FCE for the corn as delivered to the GFCEP facilities and
the corresponding Procurement Fee for said corn every Wednesday at 10:00 a.m.
central time for deliveries accrued through the close of business on Monday. If
any Wednesday falls on a national holiday, payment shall occur 10:00 a.m. the
next day.
3.4.02 The Market Price per bushel is the daily posted board price at the
Minnesota Falls branch of the FCE as of 10:00 a.m. the next trading day after
the corn is delivered to the GFCEP facility. The discounts, if any, shall be
determined pursuant to paragraph 3.1.02(b).
ARTICLE V
LOCATION OF FCE'S DELIVERY
3.5.01 FCE shall deliver all Corn to GFCEP, and risk of loss shall pass to
GFCEP, at the Facilities.
3.5.02 All responsibility for and all unloading will be performed by GFCEP at
the sole and exclusive cost of GFCEP.
3.5.03 The GFCEP shall provide space rent free at its facility for no more than
two (2) employees of the FCE, so that said employees may coordinate the purchase
and delivery of corn to the GFCEP facilities. Said employee shall not be
responsible for and shall not be involved in the unloading or handling of said
corn when it arrives at the facility site. It is intended that said FCE
employees shall remain in "office" because of GFCEP's liability concerns.
Said FCE employees at GFCEP shall be responsible to weigh and grade corn
as delivered to the GFCEP facility. FCE employees will take and provide the
required corn samples so that said weighing and grading can properly occur.
GFCEP employees shall, from time to time, spot check the weighing and grading
conducted by FCE employees.
3.5.04 Any disputes over grade discrepancies will be settled by the Minnesota
Grain Inspection Department.
3.5.05 The grain purchased or owned by GFCEP which is held pursuant to warehouse
receipt or priced later shall be physically stored in FCE's facilities.
3.5.06 The facility as constructed by GFCEP shall have a minimum of 470,000
bushels of corn storage and if the plant is expanded, then storage on the plant
site shall proportionately increase so the on site storage at the plant has at
least enough capacity to hold ten (10) days of corn for operation of the plant.
3.5.07 The design of the GFCEP grain receiving, handling and storage facilities
shall be subject to the review of FCE before such are constructed. Any expansion
or material modification of such grain receiving, handling and storage
facilities of GFCEP shall likewise be subject to review by FCE before any such
expansion or material modification occurs. GFCEP shall give due consideration to
comments or recommendations made by FCE following its review. However, GFCEP
shall not be bound to accept such comments or recommendations.
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ARTICLE VI
DEFAULT, WAIVER, AND REMEDIES
3.6.01: DEFAULT, NOTICE, AND CURE
(a) Except as provided in Section 3.6.01(b), if either party shall fail to
perform any of the covenants or obligations imposed upon it by this Agreement
(except such failure as shall be excused under Title IV, Article III), the other
party shall notify the party in default in writing of the alleged default and if
the party in default shall not cure said default within fifteen (15) days from
and after receiving such notice (the "Cure Period"), then notwithstanding any
other provision of this Agreement, the complaining party shall have the remedies
set forth in Section 3.6.03.
(b) If GFCEP fails to make payment for Corn delivered by FCE and accepted
by GFCEP under the terms of this Agreement, the provisions of Section 3.6.01(a)
shall apply; however, the Cure Period shall be three (3) days from and after
GFCEP's receipt of notice of GFCEP's default from FCE.
3.6.02: WAIVER
Waiver by either party of any breach of the terms and conditions herein
contained shall not be construed as a waiver of any subsequent breach of the
same or any other provision of this Agreement.
3.6.03: REMEDIES
(a) GFCEP's Remedies. If FCE fails to deliver Corn as required by this
Agreement, or if GFCEP reasonably in good faith believes that FCE will fail to
deliver corn as required by this agreement, GFCEP may: (i) in good faith and
without unreasonable delay, make any reasonable purchase of Corn in substitution
of the quantity due from FCE, (ii) recover from FCE as damages the difference
between the cost of cover under (i) and the Market Price (or the average Board
price at the comparable location(s) established by the Amendment to this
Agreement, if Market Price cannot be determined), plus the Procurement Fee,
together with any incidental or consequential damages, but less expenses saved
in consequence of FCE's breach, (iii) seek and receive injunctive relief or a
decree of specific performance, (iv) credit the amount of damages FCE has become
obligated to pay GFCEP, as determined by arbitration or if arbitration fails to
occur as required hereby, a court of competent jurisdiction, to GFCEP and set
off such amount against any amounts owed by GFCEP to FCE.
(b) FCE's Remedies. If GFCEP fails to make any payment for Corn delivered
by FCE and accepted by GFCEP under the terms of this Agreement, FCE may recover
the payments from GFCEP. FCE may withhold future scheduled deliveries only if
GFCEP fails to pay FCE the payments owed FCE as provided by this Agreement
within three (3) business days after GFCEP's receipt of FCE's written demand for
payment. FCE shall also have the right to specifically enforce the terms of this
Agreement, including, but not limited to, the obligation of GFCEP to purchase
all of the corn needed to operate the plant from FCE.
(c) No right, power or remedy conferred by this Agreement shall be
exclusive of any other right, power or remedy now or hereafter available at law,
in equity, by statute or otherwise. In case of material reoccurring defaults,
the non-defaulting party shall be entitled to an immediate remedy available at
law, in equity, by statute or otherwise, not withstanding the notice and cure
provisions of this Article 6.
TITLE IV: GENERAL PROVISIONS
ARTICLE I
WARRANTIES
4.1.01: OWNERSHIP AND QUALITY OF CORN
FCE warrants to GFCEP that FCE owns all of the Corn delivered to GFCEP
under this Agreement and that such Corn shall be free and clear of any security
interest, lien, penalty, charge, or encumbrance, governmental or
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otherwise. If FCE has granted a security interest in any of the Corn delivered,
FCE shall inform GFCEP in writing, at or before delivery of the Corn, of any
such secured party's name and address. GFCEP shall have the right, but not the
obligation, to name the secured party as co-payee with FCE on any payment for
the Corn and to deliver such payment to the secured party.
4.1.02: NO EXPRESS OR IMPLIED WARRANTIES
Neither party shall be liable for any representation or warranty of any
kind, express or implied, not expressly set forth in this Agreement.
ARTICLE II
DISPUTE RESOLUTION
4.2.01: ALTERNATIVE DISPUTE RESOLUTION
If a dispute, controversy, or claim arises out of or relates to this
Agreement, or the alleged breach thereof, including any claim or allegation of
fraud or misrepresentation, and if said dispute cannot be settled through direct
discussions, the parties agree to first endeavor to settle the dispute in an
amicable manner by mediation with an independent mediator selected by mutual
agreement of the parties. If the parties are unable to agree on a mediator,
mediation shall be administered by the American Arbitration Association under
its Commercial Mediation Rules. If the matter has not been resolved pursuant to
mediation within thirty (30) days of the commencement of such mediation (which
period may be extended by mutual agreement in writing), then any unresolved
dispute, controversy, or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules (the
"Commercial Arbitration Rules"), and judgment upon the award rendered by the
arbitrators may be entered in the Minnesota District Court in Yellow Medicine or
Chippewa County, Minnesota, or the highest state court having jurisdiction. The
arbitration shall be conducted in Yellow Medicine County, Minnesota by a panel
of three neutral arbitrators appointed pursuant to the Commercial Arbitration
Rules.. The arbitrators shall permit each party to conduct limited relevant
discovery. The arbitrators shall award damages measured by the prevailing
party's actual damages, and may not, in any event, make any ruling, finding or
award that does not conform to the terms and conditions of this Agreement. The
provisions of this Agreement shall be a complete bar and defense to any suit,
action or proceeding instituted in any court or administrative tribunal with
respect to any controversy or dispute under this Agreement which is arbitrable.
4.2.02: ATTORNEY'S FEES AND COSTS
The parties agree that the arbitration panel shall award to the prevailing
party in any dispute resolution proceedings related to this Agreement, from the
other party, the amount of the prevailing party's costs, expenses, and
attorneys' fees as the arbitrators deem fair and equitable.
ARTICLE III
FORCE MAJEURE
4.3.01: RELIEF FROM TRANSFERING CORN
In the event of either party being rendered reasonably unable by Force
Majeure to perform any of its obligations in receiving or delivering Corn
hereunder, the obligations of such party shall be suspended, to the extent it is
unable, in whole or in part, to receive or deliver Corn by reason of Force
Majeure, during the continuance of any inability so caused and the cause of such
inability shall, so far as possible, be remedied with reasonable diligence.
Inability may include a storm event that does not allow management of GFCEP to
execute documents and otherwise perform wire transfers or payment as required by
this Agreement or which does not permit FCE to perform as required by this
Agreement. However, the party not subject to the force majeure event may, during
such period, accept performance from the other party or a third party as it may
reasonably determine under the circumstances.
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4.3.02: DEFINITION
The term "Force Majeure" as used in this Agreement shall mean natural
catastrophe, strikes, lockouts, or other industrial disturbances, acts of the
public enemy, wars, declared or undeclared, blockades, insurrections, riots,
fires, civil disturbances, explosions, curtailment of power or natural gas,
compliance with laws, governmental regulations, orders and requests, whether
valid or not, curtailment or other inability to obtain equipment, supplies,
materials, including corn, or transportation facilities, breakdown of
facilities, machinery or equipment and any other cause whether of the kinds
herein enumerated or otherwise, not within the reasonable control of the party
claiming suspension, all of which by the exercise of due diligence such party
could not have reasonably foreseen and provided against; provided, however, that
the settlement of strikes or lockouts shall be entirely within the discretion of
the party having the difficulty.
ARTICLE IV
DELIVERY OF PAYMENTS AND NOTICES
4.4.01: METHOD AND TIME
All payments for corn and related fees shall be made by wire transfer. All
payments of other sums, notices, demands, or requests from one party to another
may be personally delivered or sent by mail, certified or registered, postage
prepaid, to the addresses stated in this section, and shall be deemed to have
been given at the time of personal delivery or forty-eight (48) hours after the
time of mailing.
4.4.02: NOTICE TO FCE
All notices, demands or requests from GFCEP to FCE shall be given to FCE
at:
Farmers Cooperative Elevator Co.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇. ▇. ▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇.
4.4.03: NOTICE TO GFCEP
All notices, demands or requests from FCE to GFCEP shall be given to GFCEP
at:
Granite Falls Community Ethanol Plant
C/o General Manager
with a required copy to:
To be determined.
4.4.04: CHANGE OF ADDRESS
Each party shall have the right, from time to time, to designate a
different address by notice given in conformity with this section.
ARTICLE V
INDEMNITY
4.5.01: DUTY TO INDEMNIFY. FCE agrees to indemnify and hold GFCEP harmless
against any and all claims, losses, damages or expenses by or on behalf of any
person or entity arising out of the performance of any covenant or agreement to
be performed by FCE, or arising from any act or negligence or willful misconduct
on the part of FCE, any person or entity claiming by, through or under FCE or
its agents, contractors, employees or invitees, including reasonable attorney
fees, expenses, and liabilities, incurred in connection with any such claim or
action or proceeding brought against GFCEP.
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4.5.02: DUTY TO INDEMNIFY. GFCEP agrees to indemnify and hold FCE harmless
against any and all claims, losses, damages or expenses by or on behalf of any
person or entity arising out of the performance of any covenant or agreement to
be performed by GFCEP, or arising from any act or negligence or willful
misconduct on the part of GFCEP, any person or entity claiming by, through or
under GFCEP or its agents, contractors, employees or invitees, including
reasonable attorney fees, expenses, and liabilities, incurred in connection with
any such claim or action or proceeding brought against FCE.
ARTICLE VI
OTHER GENERAL PROVISIONS
4.6.01: COMPUTATION OF TIME
The time in which any act provided by this Agreement is to be done shall
be computed by excluding the first day and including the last, unless the last
day is a Saturday, Sunday or holiday, and then it is also excluded, except that
storage and interest shall begin to accrue on the first day.
4.6.02: SUCCESSORS IN INTEREST
Each and all of the covenants, conditions and restrictions in this
Agreement shall inure to the benefit of and shall be binding upon the
successors, assigns, transferees, sublessees, licensees of the parties hereto;
provided, however, that if FCE sells to or is acquired by any other cooperative,
corporation or entity, and does not retain majority ownership or control, this
Agreement shall terminate, at the option of GFCEP.
4.6.03: ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with respect
to the matters covered herein, and no other agreement, statement or promise made
by any party, to any employee, officer, or agent of any party, which is not
contained in this Agreement shall be binding or valid.
4.6.04: PARTIAL INVALIDITY
If any term, covenant, condition or provision of this Agreement is held by
a court of competent jurisdiction or the arbitrators to be invalid, void, or
unenforceable, the invalid, void or unenforceable term(s) shall be void, and the
parties shall renegotiate said term(s) of this Agreement in good faith and if
the parties cannot reach agreement, said term(s) shall be established by the
Dispute Resolution provisions of this Agreement.
4.6.05: RELATIONSHIP OF PARTIES
Nothing contained in this Agreement shall be deemed or construed by the
parties or by any third person, arbitrator, or court to create the relationship
of principal and agent or of partnership or of joint venture or of any
association between FCE and GFCEP, and neither the method of computation of rent
or fees nor any other provisions contained in this Agreement nor any acts of the
parties shall be deemed to create any relationship between FCE and GFCEP, other
than the relationship of seller and buyer.
4.6.06: INTEREST
Any sum accruing to FCE or GFCEP under the provisions of this Agreement
which shall not be paid when due shall bear interest at the rate of ten percent
(10%) per annum from the date of written notice specifying such nonpayment is
served on the defaulting party, until paid.
4.6.07: MODIFICATION
This Agreement may not be modified or amended except by written instrument
signed by both of the parties, provided that the Board of Directors of both
parties approve the modification, and shall not be modified or
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altered by any subsequent course of performance by either of the parties, except
as expressly otherwise herein provided.
4.6.08: CHOICE OF LAW
This Agreement shall be deemed to have been made and executed in the State
of Minnesota and the validity, construction, interpretation, effect and
enforcement thereof shall be governed by the laws of the State of Minnesota.
4.6.09: HEADINGS AND CAPTIONS
The headings and captions of the titles, articles, sections, and
subsections of this Agreement are inserted for convenience of reference only,
and do not constitute part of the Agreement.
4.6.10: COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall in such event be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, FCE and GFCEP have caused this Agreement to be
executed by their duly authorized representatives as of the date first set forth
above.
FARMERS COOPERATIVE GRANITE FALLS COMMUNITY
ELEVATOR CO. (FCE) ETHANOL PLANT, LLC (GFCEP)
By /s/ ▇▇▇▇▇ Lonwagie By /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------- ---------------------------------
Its President Its CEO/General Manager
--------------------------- --------------------------------
8-5-04 August 4, 2004
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Exhibit "A"
Legal Description of the Premises on which the facilities ("plant") of
Granite Falls Community Ethanol Plant, LLC (GFCEP) will be constructed:
County of Chippewa, State of Minnesota:
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