EXHIBIT 10.1
ETHANOL MARKETING AGREEMENT
BY AND BETWEEN
FRONT RANGE ENERGY, LLC
AND
KINERGY MARKETING, LLC
DATED AS OF AUGUST 19TH, 2005
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS; INTERPRETATION..........................................1
1.1 Definitions..................................................1
1.2 Interpretation...............................................4
ARTICLE II MARKETING ACTIVITIES................................................5
2.1 Bilateral Transactions.......................................5
2.2 Storage......................................................6
2.3 Obligations of the Project Company...........................6
2.4 Transaction Reports..........................................7
2.5 Back-to-Back Transactions....................................7
2.6 Netting......................................................8
2.7 Title; Delivery Point; Nominations; Measurement..............8
ARTICLE III PAYMENTS...........................................................9
3.1 Fees and Payments............................................9
3.2 Overdue Payments; Indemnity Payments.........................9
3.3 Billing Dispute..............................................9
3.4 Audit.......................................................10
ARTICLE IV TERM; TERMINATION..................................................10
4.1 Term........................................................10
4.2 Termination by Kinergy......................................10
4.3 Termination by the Project Company..........................11
4.4 Change of Control...........................................11
4.5 Effect of Termination.......................................12
ARTICLE V LIMITATIONS ON LIABILITY............................................12
5.1 Maximum Liability of Kinergy................................12
5.2 No Consequential or Punitive Damages........................12
ARTICLE VI INDEMNIFICATION....................................................13
6.1 The Project Company's Indemnity.............................13
6.2 Kinergy's Indemnity.........................................13
ARTICLE VII REPRESENTATIONS AND WARRANTIES....................................13
7.1 Kinergy's Representations and Warranties....................13
7.2 The Project Company's Representations and Warranties........14
ARTICLE VIII FORCE MAJEURE....................................................15
8.1 Definition..................................................15
8.2 Effect......................................................15
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8.3 Limitations.................................................16
ARTICLE IX DISPUTE RESOLUTION.................................................16
9.1 Attempts to Settle..........................................16
9.2 Resolution by Expert........................................16
9.3 Arbitration.................................................17
9.4 Consequential and Punitive Damages..........................17
9.5 Finality and Enforcement of Decision........................17
9.6 Costs.......................................................17
9.7 Continuing Performance Obligations..........................17
ARTICLE X CONFIDENTIALITY.....................................................18
ARTICLE XI ASSIGNMENT AND TRANSFER............................................18
ARTICLE XII FURTHER ASSURANCES; REQUESTS OF FINANCING PARTIES.................18
12.1 Further Assurances..........................................18
12.2 Requests of Financing Parties...............................18
ARTICLE XIII MISCELLANEOUS....................................................19
13.1 Entire Agreement............................................19
13.2 Counterparts................................................19
13.3 Survival....................................................19
13.4 Severability................................................19
13.5 Governing Law...............................................19
13.6 Binding Effect..............................................19
13.7 Notices.....................................................20
13.8 Amendment...................................................20
13.9 No Implied Waiver...........................................20
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ETHANOL MARKETING AGREEMENT
This ETHANOL MARKETING AGREEMENT ("Agreement") is entered into by and
between FRONT RANGE ENERGY, LLC, a Colorado limited liability company (the
"Project Company"), and KINERGY MARKETING, LLC, an Oregon limited liability
company ("Kinergy"), as of this [31] day of August, 2005. The Project Company
and Kinergy are each individually referred to herein as a "Party", and
collectively are referred to herein as the "Parties".
RECITALS
A. The Project Company is developing an approximately [40] million
gallon-per-year denatured fuel ethanol production facility in Windsor, Colorado
(the "Facility") and the Project Company has requested that Kinergy provide
denatured fuel ethanol marketing services for the Facility.
B. Kinergy desires to provide such marketing services in accordance with
and subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements and covenants
hereinafter set forth, and intending to be legally bound, the Parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions. The following terms shall have the meanings set forth
below when used in this Agreement:
"Account" has the meaning given to such term in Section 2.1(e).
"Act of Insolvency" means, with respect to any Person, any of the
following: (a) commencement by such Person of a voluntary proceeding under any
jurisdiction's bankruptcy, insolvency or reorganization law; (b) the filing of
an involuntary proceeding against such Person under any jurisdiction's
bankruptcy, insolvency or reorganization law which is not vacated within 60 days
after such filing; (c) the admission by such Person of the material allegations
of any petition filed against it in any proceeding under any jurisdiction's
bankruptcy, insolvency or reorganization law; (d) the adjudication of such
Person as bankrupt or insolvent or the winding up or dissolution of such Person;
(e) the making by such Person of a general assignment for the benefit of its
creditors (assignments for a solvent financing excluded); (f) such Person fails
or admits in writing its inability to pay its debts generally as they become
due; (g) the appointment of a receiver or an administrator for all or a
substantial portion of such Person's assets, which receiver or administrator, if
appointed without the consent of such Person, is not discharged within 60 days
after its appointment; or (h) the occurrence of any event analogous to any of
the foregoing with respect to such Person occurring in any jurisdiction.
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"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For purposes of this definition, "control", when used
with respect to any Person, means the power to direct or cause the direction of
the management and policies of such Person, directly or indirectly, whether
through the ownership or voting securities, by contract or otherwise.
"Agreement" has the meaning given to such term in the preamble hereto.
"Bilateral Transaction" means, with respect to each sale of Ethanol
produced at the Facility by Project Company, a transaction entered into by
Kinergy with one or more Third Parties consisting of one or more forward sales
of Ethanol.
"Business Day" means any day other than a Saturday, Sunday or a day on
which commercial banks in Windsor, Colorado are required or authorized to be
closed.
"Commercial Operations Date" means the date of "Substantial Completion"
under and as defined in the [CONSTRUCTION AGREEMENT].
"Construction Agreement" means the Design-Build Agreement, dated March
24th, 2005, by and between Project Company and Contractor, including all
amendments thereto and all other agreements by and between Project Company and
Contractor for the engineering, procurement and construction of the Facility.
"Contractor" means ICM, a Kansas LLC.
"Dispute" means a dispute, controversy or claim.
"Ethanol" means denatured fuel ethanol produced by the Facility satisfying
the American Society for Testing and Materials (ASTM) D4806 specifications for
denatured fuel ethanol.
"Expert" means an expert having sufficient technical expertise to address
the matter subject to a Dispute.
"Facility" has the meaning given to such term in the recitals hereto.
"Financing Documents" means any and all loan agreements, credit agreements,
reimbursement agreements, notes, indentures, bonds, security agreements, pledge
agreements, mortgages, guarantee documents, intercreditor agreements,
subscription agreements, equity contribution agreements and other agreements and
instruments relating to the financing (or refinancing) of the development,
engineering, design, construction, operation, ownership and maintenance of the
Facility.
"Financing Parties" means the banks, lenders, noteholders and/or other
financial institutions (or an agent or trustee thereof) party to the Financing
Documents.
"Force Majeure Event" has the meaning set forth in Section 8.1.
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"Good Industry Practice" means any of the practices, methods and acts
engaged in or approved by a significant portion of the ethanol production or
marketing (as the case may be) industry during the relevant time period, or any
of the practices, methods and acts which, in the exercise of reasonable judgment
in light of the facts known at the time the decision was made, could have been
expected to accomplish the desired result at a reasonable cost consistent with
good business practices, reliability, safety and expedition. Good Industry
Practice is not limited to a single, optimum practice, method or act to the
exclusion of others, but rather is intended to include acceptable practices,
methods or acts generally accepted in the region.
"Governmental Authority" means any United States federal, state, municipal,
local, territorial, or other governmental department, commission, board, bureau,
agency, regulatory authority, instrumentality, judicial or administrative body.
"Incentive Fee" means, for each Payment Period and with respect to Kinergy,
the product of (a) 1.0% MULTIPLIED BY (b) the difference between (i) the
aggregate amount of the Purchase Price for such Payment Period MINUS (ii) the
aggregate amount of Transaction Costs for such Payment Period.
"Kinergy" has the meaning given to such term in the preamble hereto.
"Kinergy Indemnified Person" has the meaning given to such term in Section
6.2.
"Law" means any law, statute, act, legislation, ▇▇▇▇, enactment, policy,
treaty, international agreement, ordinance, judgment, injunction, award, decree,
rule, regulation, interpretation, determination, requirement, writ or order of
any Governmental Authority.
"Liabilities" has the meaning given to such term in Section 6.1.
"Material Bilateral Transaction" means any Bilateral Transaction having a
term in excess of one-year or pursuant to which the aggregate gross payments
reasonably anticipated to be made by the applicable Third Party to Kinergy
thereunder exceed $10,000,000 per calendar year.
"Monthly Date" means the last Business Day of each calendar month.
"Party" or "Parties" has the meaning given to such term in the preamble
hereto.
"Payment Period" has the meaning given to such term in Section 3.1(a).
"PEI" has the meaning given to such term in the recitals hereto.
"Permits" means all permits, authorizations, registrations, consents,
approvals, waivers, exceptions, variances, orders, judgments, written
interpretations, decrees, licenses, exemptions, publications, filings, notices
to and declarations of or with, or required by, any Governmental Authority, or
required by any Law, and shall include all environmental and operating permits
and licenses that are required for the full use, occupancy, zoning and operation
of the Facility.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
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companies and other organizations, whether or not legal entities, Governmental
Authorities and any other entity.
"Prime Rate" means the rate per annum listed as the "Prime Rate" in the
"Money Rates" section of The Wall Street Journal from time to time.
"Project Company" has the meaning given to such term in the preamble
hereto.
"Project Company Indemnified Person" has the meaning given to such term in
Section 6.1.
"Purchase Price" means, subject to Section 3.1(a), the aggregate amount of
gross payments received (or deemed received) by Kinergy during such Payment
Period from the applicable Third Parties in respect of such Bilateral
Transactions.
"Third Party" means any Person (other than PEI or a subsidiary thereof)
that enters into a Bilateral Transaction with Kinergy.
"Transaction Costs" means, for each Payment Period and with respect to
Kinergy, all reasonable, out-of-pocket and documented costs and expenses (other
than taxes on net income, business taxes paid by Kinergy, or tax on the sale of
Ethanol (such sales taxes to be paid directly by the Project Company), but
including all other taxes and governmental charges and assessments) incurred by
or on behalf of Kinergy in connection with the marketing of Ethanol pursuant to
this Agreement during such Payment Period, including truck, rail and terminal
costs for the transportation and storage of the applicable Ethanol to the
applicable Third Party and reasonable, documented out-of-pocket expenses
incurred in connection with the negotiation and documentation of the applicable
sales agreement between Kinergy and the applicable Third Party.
1.2 Interpretation. The following interpretations and rules of construction
shall apply to this Agreement:
(a) titles and headings are for convenience only and will not be
deemed part of this Agreement for purposes of interpretation;
(b) unless otherwise stated, references in this Agreement to
"Sections" or "Articles" refer, respectively, to Sections or Articles of this
Agreement;
(c) "including" means "including, but not limited to", and "include"
or "includes" means "include, without limitation" or "includes, without
limitation";
(d) "hereunder", "herein", "hereto" and "hereof", when used in this
Agreement, refer to this Agreement as a whole and not to a particular Section or
clause of this Agreement;
(e) in the case of defined terms, the singular includes the plural and
vice versa;
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(f) unless otherwise indicated, all accounting terms not specifically
defined shall be construed in accordance with generally accepted accounting
practices in the United States;
(g) unless otherwise indicated, each reference to a particular Law is
a reference to such Law as it may be amended, modified, extended, restated or
supplemented from time to time, as well as to any successor Law thereto;
(h) unless otherwise indicated, references to agreements shall be
deemed to include all subsequent amendments, supplements and other modifications
thereto; and
(i) unless otherwise indicated, each reference to any Person shall
include such Person's successors and permitted assigns.
ARTICLE II
MARKETING ACTIVITIES
2.1 Bilateral Transactions. (a) Subject to the terms hereof, the Project
Company hereby grants Kinergy the exclusive right to market and sell all of the
Project Company's Ethanol (which, as of the date hereof, is estimated to be
approximately 40 million gallons-per-year). Kinergy shall use its reasonable
commercial efforts to solicit, negotiate and enter into, and Kinergy shall
perform, Bilateral Transactions with Third Parties, and such Bilateral
Transactions shall be served by the Facility. Other than as set forth in
Sections 2.1(e) and 2.7 below, Kinergy shall have absolute discretion in the
solicitation, negotiation, administration (including the collection of payments)
and execution of Bilateral Transactions and all sales of Ethanol produced by the
Facility shall be effectuated by Bilateral Transactions. The Project Company
hereby grants Kinergy the power and authority necessary to perform its
obligations and exercise its rights hereunder.
(b) As further described in Sections 2.3, 2.5 and 2.7 below and except
as otherwise provided herein, the Project Company shall provide Ethanol to
Kinergy free and clear of all liens and encumbrances and otherwise operate the
Facility as required to allow Kinergy to perform such Bilateral Transactions.
(c) In the event of a breach or default by a Third Party under any
Bilateral Transaction, Kinergy shall (i) promptly notify the Project Company of
any such breach and default and provide the Project Company from time to time
with reasonably detailed information in respect of the same (including copies of
all written communications in respect thereof) and (ii) at the Project Company's
sole cost and expense and at the direction of the Project Company, use
reasonable commercial efforts to exercise all rights and remedies available to
it (including the commencement of litigation) with respect to such breach or
default.
(d) Kinergy shall perform its obligations hereunder and under
Bilateral Transactions in accordance with this Agreement, applicable Laws,
applicable Permits and Good Industry Practice and with the intent to maximize
the proceeds generated from the sale of Ethanol. Each of the Parties
acknowledges that the Commercial Operations Date has not occurred as of the date
of this Agreement and, accordingly, Kinergy may not be able to solicit,
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negotiate and/or enter into Bilateral Transactions until the Commercial
Operations Date has occurred or is anticipated to occur in the then reasonable
near future.
(e) Notwithstanding anything to the contrary herein, Kinergy shall (i)
not enter into any Bilateral Transaction with any Third Party that is the
subject of an Act of Insolvency, (ii) not enter into any Bilateral Transaction
that permits the applicable Third Party to pay for the Ethanol purchased under
such Bilateral Transaction on a date which is more than 30 days after the
Monthly Date in which such Ethanol is delivered to such Third Party, (iii) not
enter into any Material Bilateral Transaction without the prior consent of the
Project Company, (iv) not enter into any Bilateral Transactions which provide
for the provision of Ethanol in excess of the amount of Ethanol available from
the Facility (after giving effect to the Project Company's or Kinergy's existing
contractual obligations and the scheduling provisions set forth in Section
2.7(b) below), (v) not enter into any Bilateral Transaction which does not
excuse Kinergy from performing its obligations thereunder as a result of a Force
Majeure Event (vi) not enter into any Bilateral Transaction during such time as
the Facility cannot provide Ethanol due to a mechanical breakdown (including
forced outage of the Facility), (vii) enter into Bilateral Transactions in its
name (and not the name of the Project Company) and (viii) require that each
Third Party make all payments under the applicable Bilateral Transaction to a
segregated bank-account in the name of Kinergy (the "Account") and Kinergy shall
cause the proceeds of all such Bilateral Transactions received by it to be
deposited into the Account.
(f) Each of the Parties agrees that Kinergy shall not request that the
Project Company deliver Ethanol to Kinergy (or any Third Party designated by
Kinergy) unless, as of the scheduled date of delivery, Kinergy has entered into
a Bilateral Transaction with respect to such Ethanol.
2.2 Storage. Kinergy acknowledges that the Project Company has only limited
storage capacity and Kinergy agrees that it shall take any Ethanol requested by
Kinergy pursuant to the operating protocol established pursuant to Section
2.7(b) within [SEVEN] days of the time that the Project Company has made such
Ethanol available to Kinergy. In the event that stored Ethanol exceeds storage
capacity more than two times in any 60-day period or for longer than 24 hours at
any given time, the Project Company shall have the right, in addition to any
other claims available to the Project Company under applicable Laws, to
terminate for cause this Agreement. A default under this Section shall be
communicated to Kinergy's designated representative by facsimile or email.
2.3 Obligations of the Project Company. (a) The Project Company shall
provide Kinergy with all information reasonably requested by Kinergy, and the
Project Company shall assist Kinergy as reasonably requested in the
solicitation, negotiation and performance of Bilateral Transactions.
(b) Notwithstanding anything to the contrary herein, the Project
Company shall not be responsible for the delivery of any Ethanol to Kinergy
during any periods of scheduled Facility maintenance (unless and to the extent
the applicable Ethanol is available to be delivered to Kinergy from the Project
Company's storage facilities); provided, that (i) Kinergy shall have received at
least ten Business Days prior notice of such scheduled maintenance, (ii) such
maintenance shall have been scheduled in accordance with the operating protocol
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referred to in Section 2.7(b) below and (iii) Kinergy has not, prior to the
receipt of any such notice, entered into binding Bilateral Transactions which
require Kinergy to supply Ethanol to Third Parties during such scheduled
maintenance periods.
(c) If on any day, the Project Company is unable to perform its
obligations to deliver Ethanol under this Agreement due to a mechanical
breakdown (including a forced outage of the Facility) that is not a Force
Majeure Event and such mechanical breakdown has continued for more than five
consecutive days, the Project Company shall, at its option and provided that the
Project Company provides Kinergy with prompt notice of its intent to exercise
such option, procure replacement denatured fuel ethanol to be delivered to the
Third Party under the applicable Bilateral Transaction. In such event, if and
only if the Parties reach agreement as to an alternative delivery point, the
Project Company shall deliver to Kinergy replacement denatured fuel ethanol in a
quantity sufficient to meet the contract quantity of such Bilateral Transaction
at such alternate point (and the Project Company shall be responsible for all
transportation costs associated therewith). In all other instances, the Project
Company shall be responsible for any damages incurred by Kinergy in connection
with Kinergy's failure to perform under the applicable Bilateral Transaction as
a result of such mechanical breakdown (it being acknowledged and agreed that
Kinergy shall use commercially reasonable efforts to mitigate the effects of any
such mechanical breakdown and the Project Company's resulting in ability to
deliver Ethanol including the identification and procurement (at the Project
Company's cost) of potential replacement denatured fuel ethanol).
2.4 Transaction Reports. (a) Within thirty days after each Monthly Date
occurring after the Commercial Operations Date, Kinergy shall deliver to the
Project Company a written summary of the Bilateral Transactions which were
entered into or performed, in whole or in part, during the month ending on such
Monthly Date. Such summary shall specify, among other things, (i) the amount of
Ethanol sold by Kinergy under Bilateral Transactions during such month, (ii) the
Third Parties which entered into such Bilateral Transactions and the amount of
Ethanol purchased thereby, and (iii) whether and to the extent any such Third
Parties or Kinergy breached its obligations under any such Bilateral
Transactions.
(b) In addition, Kinergy shall provide to the Project Company on a
monthly basis a customary bank account statement with respect to the Account
(which statement shall reflect, among other things, (i) deposits into and
withdrawals from the Account during the applicable monthly period and (ii) the
balance of funds in the Account).
2.5 Back-to-Back Transactions. (a) Each Bilateral Transaction undertaken by
Kinergy shall immediately and automatically, without necessity of further
documentation or any action whatsoever by any of the Parties, create and cause
to be undertaken according to the terms of this Agreement an equivalent
transaction in terms of the obligation to deliver Ethanol, the quantity of
Ethanol sold and the timing for the delivery of such Ethanol by the Project
Company with Kinergy (as if Kinergy were the Third Party).
2.6 Netting. Netting of amounts due in respect of Bilateral Transactions
between Kinergy and a Third Party may arise in circumstances in which Kinergy
owes amounts to such Third Party and, at the same time, such Third Party owes
amounts to Kinergy. In such circumstances, the party owing the greater amount
may pay such amount to the other party as reduced by the amount owed to it and
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both parties will be deemed to have satisfied their obligations thereby. When
such netting occurs, for purposes of this Agreement, for all Bilateral
Transactions that have been subject to such netting arrangements, Kinergy shall
be deemed to have paid amounts owed by it and to have received amounts owed to
it.
2.7 Title; Delivery Point; Nominations; Measurement. (a) The Project
Company shall deliver Ethanol to Kinergy in respect of Bilateral Transactions
(or corresponding back-to-back transactions under Section 2.5) at the inlet
flange of the applicable receiving truck that will remove such Ethanol from the
Facility. Title to, risk of loss with respect to and the obligation to transport
such Ethanol shall pass from the Project Company to Kinergy at such delivery
point. The Parties acknowledge that the quality and quantity of Ethanol may
degrade or shrink after such Ethanol is delivered by the Project Company to
Kinergy at such delivery point, and the Parties acknowledge that the risk of
such degradation or shrinkage and all other risk of loss shall be borne by
Kinergy.
(b) Prior to the Commercial Operations Date, Kinergy and the Project
Company shall agree on an operating protocol with respect to the mechanics,
timing and process for (i) determining how much Ethanol is available to be sold
on any particular day to Third Parties, (ii) Kinergy to communicate to the
Project Company its Ethanol requirements on a monthly, weekly and daily basis,
(iii) determining the quantity of Ethanol to be stored by the Project Company in
its storage facilities, (iv) identifying Persons to transport the Ethanol to
Third Parties and (v) implementing the Ethanol sales contemplated by this
Agreement. By mutual agreement, such operating protocol shall be updated from
time to time thereafter.
(c) On or before the date that is fifteen days prior to the end of a
calendar month, the Project Company shall provide Kinergy with a forecast of its
projected monthly Ethanol production for the following month.
(d) The Project Company agrees to collect samples of each shipment of
Ethanol it delivers to Kinergy hereunder. The Project Company shall label each
sample to include the customer order number and any other information reasonably
necessary to identify such Ethanol and the applicable shipment. Kinergy shall
have the right, upon reasonable notice and at reasonable times and at its
expense, to test such samples to confirm that the Ethanol delivered to it
hereunder meets the requirements of this Agreement. The Parties agree that the
amount of Ethanol delivered hereunder (whether measured as net gallons, net
liters or otherwise) shall be corrected to and correspondingly adjusted by a
reference temperature of 60 degrees Fahrenheit or 15.56 degrees Celsius.
ARTICLE III
PAYMENTS
3.1 Fees and Payments. (a) On the fifth Business Day and the twentieth
Business Day of each calendar month (the period of time between such dates being
referred to herein as a "Payment Period"), Kinergy shall pay to the Project
Company an amount equal to (a) the Purchase Price for such Payment Period MINUS
(b) the aggregate amount of Transaction Costs for such Payment Period MINUS (c)
the aggregate amount of the Incentive Fee for such Payment Period (it being
acknowledged that Kinergy shall retain for its own account the amount of such
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Transaction Costs and Incentive Fee). In connection with each such payment,
Kinergy shall deliver to the Project Company a statement detailing its
calculations of the applicable Purchase Price, the applicable Transaction Costs
and the applicable Incentive Fee. Kinergy will split the profit off of any
logistical arbitrage associated with ethanol from Front Range Energy, they will
provide a spreadsheet each month of all arbitrage transactions.
During the first 90 days of production of FRE, Kinergy will pay FRE
each Friday for the previous weeks shipment of ethanol.
(b) If the Project Company defaults in its obligation to provide
Ethanol to Kinergy in accordance with the terms of this Agreement, then Kinergy
shall be entitled to set-off and deduct from current and/or future payments owed
to Kinergy by the Project Company an amount equal to (i) the amount of damage
payments owed by Kinergy to the applicable Third Party and (ii) the cost of any
replacement Ethanol procured by Kinergy to satisfy the requirements of any
Bilateral Transaction, each as a result of the Project Company's failure to
perform hereunder.
3.2 Overdue Payments; Indemnity Payments. (a) If any Party shall fail to
make any payment when due hereunder, such overdue payment shall accrue interest
at the Prime Rate PLUS 5% from the date originally due until the date paid.
(b) Any indemnification payments received by Kinergy from a Third
Party in respect of a Bilateral Transaction (net of Kinergy's expenses related
to the matter for which such indemnification payments were received) shall be
paid to the Project Company on or before the next payment date as determined in
accordance with Section 3.1(a).
3.3 Billing Dispute. If the Project Company or Kinergy, in good faith,
disputes the amount of any payment received by it or to be paid by it or set-off
pursuant to Section 3.1 above, the disputing Party shall immediately notify the
other Party of the basis for the dispute. The Parties will then meet and use
their best efforts to resolve any such dispute. If any amount is ultimately
determined to be due to or permitted to be set-off by the Project Company or
Kinergy (as the case may be), to the extent not previously paid or set-off, (a)
Kinergy shall pay such amount to the Project Company within five Business Days
of such determination or (b) Kinergy may then set-off such amount (as the case
may be).
3.4 Audit. Notwithstanding the payment of any amount pursuant to this
Article III, the Project Company shall remain entitled (upon reasonable prior
notice, at reasonable times and at Kinergy's corporate offices) to conduct a
subsequent audit and review of (a) all Bilateral Transactions and related
records to verify the amount of gross payments, Incentive Fees, Transaction
Costs and damage payments and (b) the determination and calculation of the
Purchase Price, in each case for a period of two years from and after the end of
the applicable Payment Period. If, pursuant to such audit and review, it is
determined that any amount previously paid by Kinergy to the Project Company did
not constitute all of the amounts which should have been paid to the Project
Company, the Project Company shall advise Kinergy indicating such amount and
reason the amount should have been paid to the Project Company and, subject to
the next two sentences, Kinergy shall pay such amount to the Project Company
within five Business Days of such request along with interest accrued at the
Prime Rate PLUS 5% from the date originally due until the date paid. If there is
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not agreement of any item so noted, the Parties will then meet and use their
best efforts to resolve the dispute. If Parties are not able to resolve issues
raised by such an audit and review, any disputed items will be resolved in
accordance with the provisions of Article IX.
ARTICLE IV
TERM; TERMINATION
4.1 Term. This Agreement shall be effective on the date hereof and, unless
earlier terminated in accordance with its terms, shall continue in effect until
and including the third anniversary of the date of this Agreement; provided,
that the term of this Agreement shall automatically renew and be extended for
additional one-year periods thereafter unless a Party elects to terminate this
Agreement in a writing delivered to the other Party at least 60-days prior to
the end of the original or renewal term.
4.2 Termination by Kinergy. Kinergy may terminate this Agreement by written
notice to the Project Company, upon the occurrence of any of the following
events, provided, that no such notice shall be required for a termination
pursuant to clause (c) of this Section 4.2:
(a) the failure by the Project Company to make any payment, deposit or
transfer required hereunder within 30 Business Days after the date such payment,
deposit or transfer is required to be made;
(b) the failure of any statement, representation or warranty made by
the Project Company in this Agreement to have been correct in any material
respect when made if such failure could reasonably be expected to have a
material adverse effect on the Project Company's ability to perform its
obligations under this Agreement;
(c) the occurrence of an Act of Insolvency with respect to the Project
Company; or
(d) the failure of the Project Company to perform any of its material
obligations under this Agreement and such failure continues for 30 days after
receipt of written notice from Kinergy of such failure; provided, that such
30-day period shall be extended for up to an aggregate of 90 days so long as the
Project Company is diligently attempting to cure such failure.
4.3 Termination by the Project Company. The Project Company may terminate
this Agreement by written notice to Kinergy, upon the occurrence of any of the
following events, provided, that no such notice shall be required for a
termination pursuant to clause (c) of this Section 4.3:
(a) the failure by Kinergy to make any payment, deposit or transfer
required hereunder within fifteen Business Days after the date such payment,
deposit or transfer is required to be made;
(b) the failure of any statement, representation or warranty made by
Kinergy in this Agreement to have been correct in any material respect when made
if such failure could reasonably be expected to have a material adverse effect
on Kinergy's ability to perform its obligations under this Agreement;
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(c) the occurrence of an Act of Insolvency with respect to Kinergy;
(d) the failure of Kinergy to perform any of its material obligations
under this Agreement and such failure continues for 30 days after receipt of
written notice from the Project Company of such failure; provided, that such
30-day period shall be extended for up to an aggregate of 90 days so long as
Kinergy is diligently attempting to cure such failure; or
(e) the occurrence of any termination event under Section 2.2.
4.4 Change of Control. (a) Either Party shall have the option to terminate
this Agreement for convenience upon thirty days written notice to the other
Party from and after the occurrence of any transfer, assignment, sale or other
disposition (exclusive of any transfers, assignments, sales or other
dispositions in connection with a foreclosure or exercise of remedies by the
Financing Parties, which shall be governed exclusively by clause (b) below) of
(i) all or substantially all of the assets comprising the Facility or (ii) more
than a majority of the membership interests of the Project Company or Kinergy to
any Person which is not an Affiliate of PEI. Any termination pursuant to this
Section 4.4(a) shall be effective 30 days after written notice is provided by
the terminating Party to the other Party.
(b) If as a result of a foreclosure on or similar exercise of remedies
in respect of the Project Company or the Facility the collateral agent under the
Financing Documents (or its designee or transferee) becomes a party to this
Agreement or directly or indirectly controls all or substantially all of the
assets of, or a majority of the membership interests in, the Project Company,
the Project Company shall have the right to terminate this Agreement for
convenience upon thirty days written notice to Kinergy.
4.5 Effect of Termination. No termination under this Article IV shall
release any of the Parties from any obligations arising hereunder prior to such
termination, including obligations under any Bilateral Transaction (or such
Bilateral Transaction's corresponding back-to-back transaction arising under
Section 2.5) that is not fully performed as of the date of such termination. The
exercise of the right of a Party to terminate this Agreement, as provided
herein, does not preclude such Party from exercising other remedies that are
provided herein or are available at law or in equity; provided, however, that no
Party shall have a right to terminate, revoke or treat this Agreement as
repudiated other than in accordance with the other provisions of this Agreement;
and provided, further, that the Parties' respective rights upon termination
shall be subject to the liability limitations of Article V. Except as otherwise
set forth in this Agreement, remedies are cumulative, and the exercise of, or
the failure to exercise, one or more remedies by a Party shall not, to the
extent provided by Law, limit or preclude the exercise of, or constitute a
waiver of, other remedies by such Party.
11
ARTICLE V
LIMITATIONS ON LIABILITY
5.1 Maximum Liability of Kinergy. The total aggregate liability of Kinergy
to the Project Company under this Agreement during the term of this Agreement
shall not exceed the aggregate amount of Incentive Fees received by Kinergy. The
liability of Kinergy to the Project Company under this Agreement during any
calendar year shall not exceed the aggregate amount of Incentive Fees received
by Kinergy during such year. Notwithstanding the foregoing, such limitations on
liability shall not apply with respect to any net loss, damage or liability
resulting from or arising out of the gross negligence or willful misconduct of
Kinergy.
5.2 No Consequential or Punitive Damages. In no event shall either Party be
liable to any other Party by way of indemnity or by reason of any breach of
contract or of statutory duty or by reason of tort (including negligence or
strict liability) or otherwise for any loss of profits, loss of revenue, loss of
use, loss of production, loss of contracts or for any incidental, indirect,
special or consequential or punitive damages of any other kind or nature
whatsoever that may be suffered by such other Party, including any losses for
which such other Party has insurance to the extent proceeds of insurance have
been recovered for such losses.
ARTICLE VI
INDEMNIFICATION
6.1 The Project Company's Indemnity. The Project Company shall defend,
indemnify and hold harmless Kinergy and its Affiliates (and each officer,
director, employee, shareholder, partner, member or agent of Kinergy and its
Affiliates) (each, a "Project Company Indemnified Person") from and against any
and all third party claims, actions, damages, expenses (including reasonable and
documented attorneys' fees and expenses), losses, settlements or liabilities
(collectively, "Liabilities") incurred or asserted against any Project Company
Indemnified Person (a) as a result of any failure on the part of the Project
Company to perform the Project Company's obligations under this Agreement
(including with respect to any back-to-back transaction under Section 2.5), or
(b) arising out of or in any way connected with the grossly negligent acts or
omissions of the Project Company or its Affiliates (other than Kinergy).
6.2 Kinergy's Indemnity. Kinergy shall defend, indemnify and hold harmless
the Project Company and its Affiliates (and each officer, director, employee,
shareholder, partner, member or agent of the Project Company and their
Affiliates) (each, a "Kinergy Indemnified Person") from and against any and all
third party Liabilities incurred or asserted against any Kinergy Indemnified
Person (a) as a result of any failure on the part of Kinergy to perform its
obligations under this Agreement (including with respect to any Bilateral
Transaction), or (b) arising out of or in any way connected with the grossly
negligent acts or omissions of Kinergy or its Affiliates (other than the Project
Company).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Kinergy's Representations and Warranties. Kinergy represents and
warrants to the Project Company, as of the date hereof, as follows:
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(a) Due Formation. Kinergy (i) is a limited liability company duly
formed and validly existing under the laws of the State of Oregon, (ii) has the
requisite power and authority to own its properties and carry on its business as
now being conducted and currently proposed to be conducted and to execute,
deliver and perform its obligations under this Agreement, and (iii) is qualified
to do business in the State of California and in every other jurisdiction in
which failure so to qualify could be reasonably be expected to have a material
adverse effect on Kinergy's ability to perform its obligations hereunder.
(b) Authorization; Enforceability. Kinergy has taken all action
necessary to authorize it to execute, deliver and perform its obligations under
this Agreement. This Agreement constitutes a legal, valid and binding obligation
of Kinergy enforceable in accordance with its terms, subject to bankruptcy,
reorganization, moratorium or other similar laws affecting the enforcement of
the rights of creditors generally and subject to general principles of equity.
(c) No Conflict. The execution, delivery and performance by Kinergy of
this Agreement does not and will not (i) violate any Law applicable to Kinergy,
(ii) result in any breach of Kinergy's constituent documents or (iii) conflict
with, violate or result in a breach of or constitute a default under any
agreement or instrument to which Kinergy or any of its properties or assets is
bound or result in the imposition or creation of any lien or security interest
in or with respect to any of Kinergy's property or assets, other than in each
case any such violations, conflicts, breaches or impositions which could not be
reasonably be expected to have a material adverse effect on Kinergy's ability to
perform its obligations hereunder.
(d) No Authorization. No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority (other than those
which have been obtained) is required for the due execution, delivery and
performance by Kinergy of this Agreement, other than any such authorizations,
approvals or actions the failure of which to obtain could not be reasonably be
expected to have a material adverse effect on Kinergy's ability to perform its
obligations hereunder.
(e) Litigation. Kinergy is not a party to any legal, administrative,
arbitration or other proceeding, and, to Kinergy's knowledge, no such proceeding
is threatened, which could be reasonably be expected to have a material adverse
effect on Kinergy's ability to perform its obligations hereunder.
7.2 The Project Company's Representations and Warranties. The Project
Company represents and warrants to Kinergy, as of the date hereof, as follows:
(a) Due Formation. The Project Company (i) is a limited liability
company duly formed and validly existing under the laws of the State of
Delaware, (ii) has the requisite power and authority to own its properties and
carry on its business as now being conducted and currently proposed to be
conducted and to execute, deliver and perform its obligations under this
Agreement, and (iii) is qualified to do business in the State of California and
in every other jurisdiction in which failure so to qualify could be reasonably
be expected to have a material adverse effect on the Project Company's ability
to perform its obligations hereunder.
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(b) Authorization; Enforceability. The Project Company has taken all
action necessary to authorize it to execute, deliver and perform its obligations
under this Agreement. This Agreement constitutes a legal, valid and binding
obligation of the Project Company enforceable in accordance with its terms,
subject to bankruptcy, reorganization, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally and subject to
general principles of equity.
(c) No Conflict. The execution, delivery and performance by the
Project Company of this Agreement does not and will not (i) violate any Law
applicable to the Project Company, (ii) result in any breach of the Project
Company's constituent documents or (iii) conflict with, violate or result in a
breach of or constitute a default under any agreement or instrument to which the
Project Company or any of its properties or assets is bound or result in the
imposition or creation of any lien or security interest in or with respect to
any of the Project Company's property or assets, other than in each case any
such violations, conflicts, breaches or impositions which could not be
reasonably be expected to have a material adverse effect on the Project
Company's ability to perform its obligations hereunder.
(d) No Authorization. No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority (other than those
which have been obtained) is required for the due execution, delivery and
performance by the Project Company of this Agreement, other than any such
authorizations, approvals or actions the failure of which to obtain could not be
reasonably be expected to have a material adverse effect on the Project
Company's ability to perform its obligations hereunder.
(e) Litigation. The Project Company is not a party to any legal,
administrative, arbitration or other proceeding, and, to the Project Company's
knowledge, no such proceeding is threatened, which could be reasonably be
expected to have a material adverse effect on the Project Company's ability to
perform its obligations hereunder.
ARTICLE VIII
FORCE MAJEURE
8.1 Definition. As used herein, "Force Majeure Event" means any cause(s)
which render(s) a Party wholly or partly unable to perform its obligations under
this Agreement (other than obligations to make payments when due), and which are
neither reasonably within the control of such Party nor the result of the fault
or negligence of such Party, and which occur despite all reasonable attempts to
avoid, mitigate or remedy, and shall include acts of God, war, riots, civil
insurrections, cyclones, hurricanes, floods, fires, explosions, earthquakes,
lightning, storms, chemical contamination, epidemics or plagues, acts or
campaigns of terrorism or sabotage, blockades, embargoes, accidents or
interruptions to transportation, trade restrictions, acts of any Governmental
Authority after the date of this Agreement, strikes and other labor
difficulties, and other events or circumstances beyond the reasonable control of
such Party. Mechanical breakdown (including a forced outage of the Facility)
that continues for more than five consecutive days shall be deemed not to be
"Force Majeure Event" unless such mechanical breakdown resulted from or was
caused by a separate "Force Majeure Event."
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8.2 Effect. A Party claiming relief as a result of a Force Majeure Event
shall give the other Parties written notice within five Business Days of
becoming aware of the occurrence of the Force Majeure Event, or as soon
thereafter as practicable, describing the particulars of the Force Majeure
Event, and will use reasonable efforts to remedy its inability to perform as
soon as possible. If the Force Majeure Event (including the effects thereof)
continues for fifteen consecutive days, the affected Party shall report to the
other Parties the status of its efforts to resume performance and the estimated
date thereof. If the Force Majeure Event (including the effects thereof)
continues for 180 consecutive days, the affected Party may terminate this
Agreement for convenience. If the affected Party was not able to resume
performance prior to or at the time of the report to the other Parties of the
onset of the Force Majeure Event, then it will report in writing to the other
Parties when it is again able to perform. If a Party fails to give timely
notice, the excuse for its non-performance shall not begin until notice is
given.
8.3 Limitations. Any obligation(s) of a Party (other than an obligation to
make payments when due) may be temporarily suspended during any period such
Party is unable to perform such obligation(s) by reason of the occurrence of a
Force Majeure Event, but only to the extent of such inability to perform,
provided, that:
(a) the suspension of performance is of no greater scope and of no
longer duration than is reasonably required by the Force Majeure Event; and
(b) the Party claiming the occurrence of the Force Majeure Event bears
the burden of proof.
ARTICLE IX
DISPUTE RESOLUTION
9.1 Attempts to Settle. In the event that a Dispute among the Parties
arises under, out of or in relation to, this Agreement, the Parties shall
attempt in good faith to settle such Dispute by mutual discussions within
fifteen Business Days after the date that an aggrieved Party gives written
notice of the Dispute to the other Parties. In the event that a Dispute is not
resolved by discussion in accordance with the preceding sentence within the time
period set forth therein, the Parties shall refer the Dispute to their
respective senior officers for further consideration and attempted resolution
within fifteen Business Days after the Dispute has been referred to such
individuals (or such longer period as the Parties may agree).
9.2 Resolution by Expert. If the Parties shall have failed to resolve the
Dispute within fifteen Business Days after the date that the Parties referred
the Dispute to their senior officers, then, provided the Parties shall so agree,
the Dispute may be submitted for resolution by an Expert, such Expert to be
appointed by the mutual agreement of the Parties. Proceedings before an Expert
shall be held in Fresno, California (or any other location agreed to by the
Parties). The Expert shall apply to such proceedings the substantive law of the
State of California in effect at the time of such proceedings. The decision of
the Expert shall be final and binding upon the Parties. In the event that (a)
the Parties cannot agree on the appointment of an Expert within ten Business
Days after the date that the Parties agreed to submit the Dispute for resolution
by the Expert or (b) the Expert fails to resolve such Dispute within 60 days
after the Parties have submitted such Dispute to the Expert, then any Party may
file a demand for arbitration in writing in accordance with Section 9.3.
15
9.3 Arbitration. Any Dispute that has not been resolved following the
procedures set forth in Section 9.1 or 9.2 shall be settled by binding
arbitration in Fresno, California (or any other location agreed to by the
Parties) before a panel of three arbitrators. Such arbitration shall be
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association as in effect on the date of execution of this Agreement.
Such arbitration shall be governed by the laws of the State of California. If
arbitration proceedings have been initiated pursuant to this Section 9.3 and
raise issues of fact or law which, in whole or in part, are substantially the
same as issues of fact or law already pending in arbitration proceedings
involving the applicable Parties, such issues shall be consolidated with the
issues in the ongoing proceedings. THE PARTIES HEREBY AGREE THAT THE PROCEDURES
SET FORTH IN THIS ARTICLE IX SHALL BE THE EXCLUSIVE DISPUTE RESOLUTION
PROCEDURES APPLICABLE TO ANY DISPUTE, CONTROVERSY OR CLAIM UNDER THIS AGREEMENT
AND, EXCEPT AS SET FORTH IN SECTION 9.5, THE PARTIES HEREBY WAIVE ALL RIGHTS TO
A COURT TRIAL OR TRIAL BY JURY WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR CLAIM
UNDER THIS AGREEMENT.
9.4 Consequential and Punitive Damages. Awards of Experts and arbitral
panels shall be subject to the provisions of Article V.
9.5 Finality and Enforcement of Decision. Any decision or award of an
Expert or a majority of an arbitral panel, as applicable, shall be final and
binding upon the Parties. Each of the Parties agrees that the arbitral award may
be enforced against it or its assets wherever they may be found and that a
judgment upon the arbitral award may be entered in any court having jurisdiction
thereof. The Parties hereby waive any right to appeal or to review the decision
or award of an Expert or an arbitral panel by any court or tribunal and also
waive any objections to the enforcement of such decision or award.
9.6 Costs. The costs of submitting a Dispute to an Expert shall be shared
equally among the Parties involved in the Dispute, unless the arbitral panel or
the Expert determines otherwise. The costs of arbitration shall be paid in
accordance with the decision of the arbitral panel pursuant to the Commercial
Arbitration Rules of the American Arbitration Association as in effect on the
date of execution of this Agreement.
9.7 Continuing Performance Obligations. While a Dispute is pending, each
Party shall continue to perform its obligations under this Agreement, unless
such Party is otherwise entitled to suspend its performance hereunder or
terminate this Agreement in accordance with the terms hereof.
ARTICLE X
CONFIDENTIALITY
Each Party and its Affiliates shall treat as confidential the data and
information in their possession regarding the Facility, the other Parties or any
Affiliate of any other Party, unless: (a) the applicable other Party agrees in
writing to the release of such data or information; (b) such data or information
16
becomes publicly available other than through the wrongful actions of the
disclosing Party or the disclosing Party's Affiliate; (c) such data or
information was in the possession of the receiving Party or the receiving
Party's Affiliate prior to receipt thereof from the disclosing Party with no
corresponding confidentiality obligation; or (d) such data or information is
required by Law to be disclosed. Notwithstanding the generality of the
foregoing, any Party may disclose data and information to (i) the officers,
directors, managers, partners, members, employees and Affiliates of such Party,
(ii) any successors in interest and permitted assigns of such Party, (iii) any
actual or potential Financing Parties or actual or potential lenders to PEI or
any subsidiary thereof, and (iv) any potential equity investors in PEI or any
subsidiary thereof; provided, that any Person who receives confidential data and
information pursuant to an exception contained in clauses (ii) - (iv) of this
Article agrees to similar confidentiality provisions.
ARTICLE XI
ASSIGNMENT AND TRANSFER
No Party shall assign this Agreement or any of its rights or obligations
hereunder without first obtaining the prior written consent of (a) in the case
of the Project Company, Kinergy, or (b) in the case of Kinergy, the Project
Company, provided, that any Party shall be entitled to assign its rights
hereunder (as collateral security or otherwise) for financing purposes
(including a collateral assignment to any Financing Parties) without the consent
of any other Party.
ARTICLE XII
FURTHER ASSURANCES; REQUESTS OF FINANCING PARTIES
12.1 Further Assurances. Each Party shall from time to time execute and
deliver all such further documents and instruments as any other Party may
reasonably require to effectively carry out or better evidence or perfect the
full intent and meaning of this Agreement.
12.2 Requests of Financing Parties. (a) Kinergy shall use its reasonable
efforts to execute, acknowledge and deliver any and all further documents and
instruments, and to take any other actions, which may be necessary to satisfy
the reasonable requests of any Financing Party or prospective Financing Party in
connection with the financing of the Facility, including delivering to an agent
or trustee for the Financing Parties a customary consent to the assignment by
the Project Company of its rights under this Agreement to the Financing Parties.
ARTICLE XIII
MISCELLANEOUS
13.1 Entire Agreement. This Agreement contains the entire agreement between
the Parties with respect to the subject matter hereof and supersedes all prior
agreements, negotiations and understandings among the Parties with respect to
such subject matter. Nothing in this Agreement shall be construed as creating a
partnership or joint venture between the Parties.
13.2 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute one and the same
agreement.
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13.3 Survival. Cancellation, expiration or earlier termination of this
Agreement shall not relieve the Parties of obligations that by their nature
should survive such cancellation, expiration or termination, including remedies,
limitations on liability, promises of indemnity and payment, and
confidentiality. Without limiting the generality of the foregoing, the following
provisions of this Agreement shall survive: Articles III, V, VI, IX and X.
13.4 Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
Parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions, the economic and
practical effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
13.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California, as applied to
contracts made and performed within the State of California, without regard to
its conflicts of law principles.
13.6 Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the Parties hereto and their respective successors and
permitted assigns. This Agreement is not made for the benefit of any Person or
entity not a party hereto, and nothing in this Agreement shall be construed as
giving any Person or entity, other than the Parties and their respective
successors and permitted assigns, any right, remedy or claim under or in respect
of this Agreement or any provision hereof.
13.7 Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and shall be deemed sufficiently given
(a) upon delivery, if delivered personally, (b) the day the notice is received,
if it is delivered by overnight courier or certified or registered mail, postage
prepaid, or (c) upon the effective receipt of electronic transmission,
facsimile, telex or telegram (with effective receipt being deemed to occur upon
the sender's receipt of confirmation of successful transmission of such notice
or communication), to the addresses set forth below or such other address as the
addressee may have specified in a notice duly given to sender as provided
herein:
If to Kinergy:
Kinergy Marketing, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Project Company:
Front Range Energy, LLC
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Sr.
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13.8 Amendment. No Party hereto shall be bound by any termination,
amendment, supplement, waiver or modification of any term hereof unless such
Party shall have consented thereto in writing.
13.9 No Implied Waiver. No delay or failure on the part of any Party in
exercising any rights hereunder, and no partial or single exercise thereof,
shall constitute a waiver of such rights or of any other rights hereunder.
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IN WITNESS WHEREOF, this Ethanol Marketing Agreement has been duly executed
by the Parties hereto as of the date first written above.
FRONT RANGE ENERGY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
KINERGY MARKETING, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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