Corn Feedstock Supply Agency Agreement
Exhibit 10.1
This Corn Feedstock Supply Agency Agreement (this “Agreement”) is made and entered
into as of July 15, 2008 by and between Cardinal Ethanol, LLC (“Producer”), and ▇▇▇▇▇ North
America, Inc. (“Bunge”) (each of Producer and Bunge, a “Party” and collectively,
the “Parties”).
A. Producer is constructing and intends to operate an ethanol production facility located near
Union City, Indiana (the “Facility”).
B. The Parties desire that Bunge serve as Producer’s exclusive third-party agent to procure
corn (“Corn”) to be used as feedstock for ethanol production at the Facility, in accordance
with the fees, payment, delivery, and other terms set forth in this Agreement.
Therefore, the Parties agree:
1. Exclusivity.
1.1. Exclusive Agent. In accordance with the terms of this Agreement and subject to
Section 1.2, Bunge will act as Producer’s agent to procure 100% of the Corn that Producer
requires for ethanol production at the Facility during the Term of this Agreement (as defined in
Section 4.1), including the Facility as initially constructed and any modifications or
expansions thereof. Subject to Section 1.2, Producer will not obtain Corn from any other
source during the Term of this Agreement.
1.2. Producer Direct Origination. Producer’s salaried employees may directly procure
Corn for ethanol production at the Facility, but during the Term and for two years after the Term,
Producer may not engage any third party to, or enter into an agreement whereby any third party
will, (a) serve as Producer’s agent to procure Corn for the Facility, or (b) originate or procure
Corn for the Facility (a “Third Party Agreement”). Notwithstanding anything in this Agreement to
the contrary, if Producer terminates this Agreement in accordance with Section 4.2, Producer shall
then be entitled to enter into a Third Party Agreement at any time following such termination
1.3. Alternate Feedstocks. As of the date of this Agreement, Producer intends that
the Facility will use only Corn as its feedstock. If Producer requires the use of another
feedstock other than Corn, the Parties will negotiate in good faith an amendment to this Agreement
whereby Bunge will serve as Producer’s agent to procure such alternate feedstock. If after such
negotiation the Parties are unable to mutually agree to such an amendment, Producer shall be
entitled to engage any third party to procure the alternate feedstock.
2. Corn Procurement Policy; Contracts.
2.1. Corn Procurement Policy. Producer and Bunge will agree upon a Corn procurement policy
(the “Policy”) setting forth the guidelines and parameters within which Bunge will acquire
Corn as an agent for Producer. The Policy will include, among other things, the establishment of
daily bids, shipping guidelines, credit limits, forward contracting limits, risk management
guidelines and other daily operating parameters, and Producer’s obligations to deliver to Bunge written estimates of Corn requirements at the Facility in accordance with the
following:
*** Portions omitted pursuant to a request for confidential treatment and filed separately with the SEC.
(a) At least thirty days before the first day of each calendar quarter (e.g., January 1, April
1, July 1, and October 1) and upon the Declaration Date (as defined in Section 4.1),
Producer shall provide to Bunge a written forecast estimating Producer’s anticipated Corn
requirements for the immediately following calendar quarter.
(b) At least 30 days before the beginning of each calendar month during the Term, Producer
will deliver to Bunge a written estimate of its anticipated requirements of Corn at the Facility
for such calendar month (each a “Monthly Estimate”).
(c) In addition, Producer will give Bunge reasonable advance notice of any circumstances that
would reasonably be expected to materially affect Corn requirements at the Facility.
2.2. Agency Services. To the extent that Producer meets its obligations set forth in
Section 2.3, Bunge will provide the following services (the “Services”) to Producer:
(a) Negotiate and execute contracts in accordance with Section 2.4
(“Contracts”) in the name, and on behalf, of Producer to purchase all Corn (subject to
Section 1.2) that Producer requires for ethanol production at the Facility during the Term
from corn suppliers, including local grain producers and local, regional and national grain
merchants (“Corn Suppliers”); provided that Bunge will have no obligation to
execute Contracts on Producer’s behalf to procure any quantity of Corn:
| (i) | for a given month that is materially in excess
of the quantity stated in the Monthly Estimate for such month; |
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| (ii) | for a given month that exceeds 110% of the
average monthly quantity of Corn actually used by Producer during the
three-month period preceding such month; and/or |
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| (iii) | at any time before the three-month anniversary
of the Declaration Date. |
(b) Schedule and arrange, on Producer’s behalf and at Producer’s sole expense, the shipping
and delivery of all Corn to the Facility (F.O.B. Facility);
(c) Starting approximately one month after the Declaration Date, provide two grain originators
(the “Bunge Originators”) that will work at the Facility to provide the Services set forth
in this Section 2.2; provided that the Bunge Originators will not devote 100% of
their efforts to providing the Services and may provide separate services to Bunge (including
originating soybeans for Bunge facilities) that do not materially interfere with or materially
adversely affect Producer’s operations. Subject to Section 9, the Bunge Originators will
comply with Producer’s reasonable safety and operational procedures while working at the Facility.
If the Effective Date has not occurred within four months after the Declaration Date, then Producer will reimburse Bunge monthly in advance for all of Bunge’s actual costs and expenses to
provide the Bunge Originators until the Effective Date occurs; and
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(d) Comply with the Policy in accordance with this Agreement.
2.3. Producer’s Obligations. In connection with Bunge’s provision of the Services,
Producer will:
(a) Give Bunge reasonable advance notice of any circumstances that would reasonably be
expected to materially affect Corn requirements at the Facility;
(b) Abide by any terms of the Policy applicable to Producer;
(c) Receive and unload all Corn purchased hereunder, including (i) supplying all labor and
equipment necessary to load or unload such Corn, (ii) maintaining its receiving facilities in
accordance with applicable laws and regulations and in safe operating condition in accordance with
normal industry standards, and (iii) keeping the Facility open and able to receive Corn as
appropriate to support the customer base during the applicable season (e.g., open for longer hours
and on weekends during harvest); provided that, to the extent that Producer has complied
with Section 2.3(e) hereof, Producer has no obligation to receive and unload any quantity
of Corn in excess of the then-available storage space at the Facility;
(d) Determine the weight of all Corn delivered to the Facility using scales at the Facility
that are inspected and certified as required by applicable law;
(e) Complete settlement and daily accounting of Corn purchases and deliveries (including Corn
rejected by Producer), and provide Bunge with daily reports stating the then-current Corn inventory
held at the Facility on such day and all related positions and activities;
(f) Respond promptly to any requests by Bunge regarding Contracts submitted to Producer
pursuant to Section 2.4; and
(g) Provide appropriate office space and resources (including phone lines, computer and fax
access, desk, etc.) for the Bunge Originators to provide Services and any other services
contemplated by Section 2.2(c).
2.4. Contract Commitments. All Contracts negotiated by Bunge will be consistent with
the Policy, unless Producer approves any Contract terms inconsistent with the Policy, and will
require Corn Suppliers to deliver Corn meeting minimum quality standards (“Quality
Standards”). Bunge will not be a party to, or have any liability or obligation under, any
Contract which is executed in compliance with the provisions of this Section 2. Title,
risk of loss (including, without limitation, for non-delivery of Corn), and responsibility for the
quality of Corn will be allocated between Producer and the Corn Supplier of the applicable quantity
of Corn in accordance with the terms of the applicable Contract (including if Bunge is the Corn
Supplier).
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2.5. Contract Indemnification. Producer will indemnify, defend and hold harmless
Bunge and its Affiliates (as defined below), and each of their employees and agents, from and
against any and all liabilities, costs and expenses (including, without limitation, attorneys fees)
arising out of, relating to or resulting from any Contracts and the obligations of Producer
thereunder, except to the extent such liabilities, costs and expenses arise out of the gross
negligence or intentional misconduct of Bunge. Bunge will indemnify, defend and hold harmless
Producer and its employees and agents from and against any and all liabilities, costs and expenses
(including, without limitation, attorneys fees) arising out of, relating to or resulting from the
gross negligence or intentional misconduct of Bunge in connection with any Contracts;
provided that Bunge’s aggregate obligations under this sentence in any fiscal year will not
exceed the total amount of the Agency Fees actually paid by Producer during such fiscal year.
“Affiliate” means a Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the party specified, where
“control” or “controlled” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person, whether through
the ownership of voting securities or voting interests, by contract or otherwise. “Person”
means any individual, general partnership, limited partnership, limited liability company, joint
venture, trust, business trust, cooperative, association or other entity of whatever nature.
2.6. Financial Risk Management. Producer may elect to engage Bunge, or an Affiliate
of Bunge, for a separately negotiated fee, to provide a portfolio strategy (which may include the
purchase and use of futures, options, and other hedging tools, as well as storage at sites other
than the Facility) that will permit Producer to optimize its Corn supply pricing and security.
3. Price and Payment.
3.1. Agency Fee. Producer will pay a fee (the “Agency Fee”) to Bunge
calculated as follows:
(a) Beginning on the Declaration Date (as defined in Section 4.1) and ending on the
day before the second anniversary of the Effective Date, the Agency Fee will be equal to $*** per
month.
(b) Beginning on the second anniversary of the Effective Date and ending at the expiration or
termination of the Term, the Agency Fee will be equal to $*** for every bushel of Corn delivered to
the Facility pursuant to a Contract entered into by Bunge on Producer’s behalf; provided
that, with regard to this Section 3.1(b), if as of each anniversary of the Effective Date,
the total amount of Agency Fees (a “Total Fees Amount”) that Producer has paid or has been
obligated to pay Bunge during the immediately preceding 12-month period is less than $*** (the
“Annual Minimum Amount”), then within 15 days after such Producer receives notice from
Bunge, Producer will pay to Bunge an amount equal to the Annual Minimum Amount minus the Total
Fees Amount.
3.2. Payment. Producer will pay to Bunge, via ACH electronic payment, on or before
the 10th day of each month during the Term, the Agency Fee for the immediately preceding
month. Interest will accrue on amounts past due at a rate per annum equal to the lesser of (a) the
prime rate, as reported from time to time by the Wall Street Journal (or similar publication),
plus 2%, and (b) the highest rate permitted by law. All amounts due to Bunge under this Agreement
will be paid without setoff, counterclaim or deduction.
*** Portions omitted pursuant to a request for confidential treatment and filed separately with the SEC.
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3.3.
Adjustments. Beginning on the second anniversary of the Effective Date and on each anniversary thereafter, the Agency Fee and the Annual Minimum Payment will be increased or
decreased by an amount equal to the product of: (i) the Agency Fee and the Annual Minimum Payment,
as applicable, for the immediately preceding 12-month period, multiplied by (ii) the
percentage increase (or decrease) for such 12-month period in the Employment Cost Index; Not
Seasonally Adjusted; Total Compensation; Private Industry; twelve-month percent change; Midwest
Workers, published by the Bureau of Labor Statistics, U.S. Department of Labor.
3.4. Tax. For purposes of personal property taxation and/or assessment or other
similar taxation, if any, any tax assessed on Corn purchased or supplied to the Facility under this
Agreement will be the responsibility of Producer, and at no time will Bunge be responsible for the
payment of any such tax.
4. Term and Termination.
4.1. Term. The initial term of this Agreement begins upon its execution by both
Parties and, unless earlier terminated in accordance with the terms hereof, will expire upon the
fifth anniversary of the Effective Date (the “Term”). Unless earlier terminated in
accordance with this Agreement, the Term will automatically renew for successive three-year periods
thereafter unless either Party gives written notice to the other Party of its election not to
renew, no later than six months prior to the then-applicable expiration date of the Term. The
“Effective Date” shall be the date that the Facility first needs Corn for testing, startup,
or operations. The “Declaration Date” means the date upon which Producer notifies Bunge in
writing that Producer believes in good faith that the Effective Date will occur in three months.
4.2. Termination Rights.
(a) Either Party may terminate this Agreement immediately upon notice to the other Party if
such other Party has (i) materially breached any representation, warranty, or obligation under this
Agreement, and (ii) failed to remedy such breach within 30 days after the terminating Party has
given notice of such breach, or if such breach cannot reasonably be cured within such 30-day
period, such other Party has failed to commence and diligently pursue remedy of the breach and
failed to remedy such breach not later than 120 days after the terminating Party has given notice
of such breach. Notwithstanding the foregoing, the Parties agree that any failure by Producer to
pay any amount within 15 days after it is due under this Agreement is a material breach of this
Agreement.
(b) Either Party may terminate this Agreement immediately upon notice to the other Party if
(i) such other Party files a petition for adjudication as a bankrupt, for reorganization or for an
arrangement under any bankruptcy or insolvency law, (ii) an involuntary petition under such law is
filed against such other Party and is not dismissed, vacated or stayed within 60 days thereafter,
and/or (iii) such other Party makes an assignment of all or substantially all of its assets for the
benefit of its creditors.
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(c) Either Party may terminate this Agreement in accordance with Section 7.3 hereof.
(d) Bunge may terminate this Agreement immediately upon notice to Producer if the Effective
Date has not occurred on or before [March 1, 2009].
(e) Either Party may terminate this Agreement upon six months notice to the other Party if
there is a Change in Control of the other Party. A “Change of Control” occurs upon any of:
(i) a sale of all or substantially all of the assets of a Party; (ii) a sale of any significant
portion of the assets that constitute the Facility (or are intended to constitute the Facility when
construction is complete); (iii) a merger or consolidation involving a Party, excluding a merger or
consolidation after which 50% or more of the outstanding equity interests of such Party continue to
be held by the same holders that held 50% of more of the outstanding equity interests of such Party
immediately before such merger or consolidation; or (iv) any issuance and/or acquisition of equity
interests of a Party that results in a person or entity holding 50% or more of the outstanding
equity interests of such Party, excluding any persons or entities that held 50% or more of the
outstanding equity interests of such Party immediately before such acquisition. Notwithstanding
anything to the contrary herein, it shall not constitute a Change of Control of Bunge if any of the
transactions contemplated by this Section 4.2(e) are consummated between Bunge and an
Affiliate of Bunge.
4.3. Survival. The provisions of this Agreement which expressly or by their nature
survive expiration or termination of this Agreement, including, but not limited to, Sections 6,
10, 11, 21, and 22, will remain in effect after the expiration or termination of this
Agreement.
5. Disclaimer; Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
BUNGE MAKES NO STATUTORY, WRITTEN, ORAL, EXPRESSED OR IMPLIED WARRANTIES, REPRESENTATIONS OR
GUARANTEES OF ANY KIND CONCERNING THE SERVICES PROVIDED BY BUNGE OR ITS AFFILIATES UNDER THIS
AGREEMENT OR ANY CORN PURCHASED BY PURCHASER UNDER THIS AGREEMENT. NEITHER BUNGE NOR ITS
AFFILIATES WILL BE LIABLE TO PRODUCER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES ARISING OUT OF,
RELATING TO OR RESULTING FROM SERVICES PROVIDED UNDER THIS AGREEMENT OR THE FAILURE TO PROVIDE
SERVICES UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH DAMAGES ARISE OUT OF OR RESULT FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BUNGE; PROVIDED THAT THE AGGREGATE AMOUNT OF ALL
SUCH DAMAGES UNDER THIS AGREEMENT IN ANY FISCAL YEAR WILL NOT EXCEED THE TOTAL AMOUNT OF THE AGENCY
FEES ACTUALLY PAID BY PRODUCER IN SUCH FISCAL YEAR. THE REMUNERATION TO BE PAID FOR THE SERVICES
TO BE PERFORMED REFLECTS THIS LIMITATION OF LIABILITY. IN NO EVENT WILL BUNGE OR ANY OF ITS
AFFILIATES BE LIABLE TO PRODUCER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES. IN NO EVENT WILL PRODUCER OR ANY OF ITS AFFILIATES
BE LIABLE TO THE OTHER PARTY, ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RESULTING FROM A BREACH OF THIS AGREEMENT; PROVIDED THAT THE
LIMITATION OF LIABILITY IN THIS SENTENCE DOES NOT APPLY TO DAMAGES ARISING UNDER ANY OTHER THEORY OF RECOVERY, INCLUDING, BUT NOT LIMITED TO, TORT
LIABILITY.
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6. Remedies.
6.1. Suspend Performance. Bunge may suspend its performance under this Agreement
until Producer has paid all amounts due under this Agreement if Producer fails to pay any amount
when due under this Agreement.
6.2. Specific Enforcement. Bunge shall have the right and remedy to have a court
specifically enforce Producer’s obligation to purchase 100% of the Corn (subject to Section
1.2) that Producer requires for ethanol production at the Facility during the Term through
Bunge as Producer’s agent, it being acknowledged and agreed by the Parties that such specific
performance is reasonable under the circumstances.
6.3. Rights Not Exclusive. No right, power or remedy conferred by this Agreement
shall be exclusive of any other right, power or remedy now or hereafter available to Bunge at law,
in equity, by statute or otherwise.
7. Force Majeure.
7.1. Definition of Force Majeure Event. Each Party is excused from performing its
obligations under this Agreement to the extent that such performance is prevented by an act or
event (a “Force Majeure Event”) whether or not foreseen, that: (i) is beyond the reasonable
control of, and is not due to the fault or negligence of, such Party, and (ii) could not have been
avoided by such Party’s exercise of due diligence, including, but not limited to, a labor
controversy, strike, lockout, boycott, transportation stoppage, action of a court or public
authority, fire, flood, earthquake, storm, war, civil strife, terrorist action, epidemic, or act of
God; provided that a Force Majeure Event will not include economic hardship, changes in
market conditions, or insufficiency of funds. Notwithstanding the foregoing sentence, a Force
Majeure Event does not excuse any obligation to make a payment required by this Agreement relating
to activities which occurred prior to commencement of the Force Majeure Event or any payment
required by Section 4.2.
7.2. Conditions Regarding Force Majeure Event. A Party claiming a Force Majeure Event
must: (i) use commercially reasonable efforts to cure, mitigate, or remedy the effects of its
nonperformance; provided that neither Party will have any obligation hereunder to settle a
strike or labor dispute; (ii) bear the burden of demonstrating its existence; and (iii) notify the
other Party of the occurrence of the Force Majeure Event as quickly as reasonably possible, but no
later than five business days after learning of the occurrence of the Force Majeure Event. Any
Party that fails to notify the other Party of the occurrence of a Force Majeure Event as required
by this Section 7 will forfeit its right to excuse performance of its obligations due to
such Force Majeure Event. When a Party claiming a Force Majeure Event is able to resume
performance of its obligations under this Agreement, it will immediately give the other Party
notice to that effect and resume performance.
7.3. Third Parties; Termination. During any period that a Party claiming a Force
Majeure Event is excused from performance under this Agreement, the other Party may accept
performance from other parties as it may reasonably determine under the circumstances. If a Party has not performed under this Agreement due to a Force Majeure Event for four consecutive
months or more, the other Party may terminate this Agreement immediately upon notice to the
non-performing Party.
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8. Insurance.
8.1. Workers’ Compensation. Each Party warrants to the other that all of its
employees that provide services under this Agreement will be covered as required by law by workers’
compensation and unemployment compensation insurance.
8.2. Other Required Coverage.
(a) Each Party will maintain automobile liability insurance against claims for bodily injury,
death and property damage, with limits of not less than $1,000,000 per person and not less than
$1,000,000 per accident or occurrence; alternatively, combined single limits of not less than
$1,000,000. Such insurance will name the other Party, its parents, subsidiaries and affiliates as
additional insureds thereunder, and will be primary and non-contributory to any other insurance
available to such other Party, its parents, subsidiaries and affiliates as insureds or otherwise.
(b) Each Party will maintain commercial general liability insurance (including, without
limitation, coverage for Contractual Liability and Products/Completed Operations) against claims
for bodily injury, death and property damage, with limits of not less than $3,000,000 in one
accident or occurrence; alternatively, combined single limits of not less than $3,000,000 each
accident or occurrence, $3,000,000 Products/Completed Operations aggregate and $3,000,000 general
aggregate. Such insurance will name the other Party, its parents, subsidiaries and affiliates as
additional insureds thereunder, and will be primary and non-contributory to any other insurance
available to such other Party, its parents, subsidiaries and affiliates as insureds or otherwise.
(c) The minimum limits of coverage required by this Agreement may be satisfied by a
combination of primary and excess or umbrella insurance policies; provided that any such excess or
umbrella insurance policies follow the form of or provide broader coverages than the primary
insurances and contain a drop down provision in case of exhaustion or unavailability of underlying
limits and/or aggregates.
(d) Producer waives all rights against Bunge and its employees and agents for all losses and
damages caused by, arising out of or resulting from any of the perils or causes of loss covered by
the policies contemplated by Section 8.1 and 8.2 and any other property insurance
applicable to the Facility.
8.3. Policy Requirements. All insurance policies required by this Agreement will (a)
provide coverage on an “occurrence” basis; (b) provide that no cancellation, non-renewal or change
will be effected without giving the other Party at least thirty days’ prior written notice; and (c)
be valid and enforceable policies issued by insurers of recognized responsibility, properly
licensed in the State where the Facility is located, with an A.M. Best’s Rating of A- or better and
Class VII or better. Such insurance policies will not contain a cross-liability exclusion or an
exclusion for punitive or exemplary damages where insurable under law. Prior to the Effective Date and, thereafter, within 30 business days of renewal, certificates and endorsements of
such insurance will be delivered to the other Party, as appropriate, as evidence of the specified
insurance coverage. From time to time, upon a Party’s request, the other Party will provide the
requesting Party, within five business days, a certificate of insurance evidencing the required
coverage to be maintained hereunder.
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9. Relationship of Parties. This Agreement creates no relationship other than an agency
relationship between the Parties hereto. Except for the terms of the agency arrangement expressly
provided herein, there is no partnership, joint venture or other joint or mutual enterprise or
undertaking created hereby and neither Party, nor any of such Party’s representatives, agents or
employees, will be deemed to be the representative or employee of the other Party. Except as
expressly provided herein or as otherwise specifically agreed in writing, neither Party will have
authority to act on behalf of or bind the other Party.
10. Confidentiality; Publicity; Use of Names.
10.1. Confidentiality of Agreement. The Parties will maintain the confidentiality of
the terms of this Agreement. Neither Party will, without the prior written approval of the other
Party, (a) advertise or otherwise publicize the existence or terms of this Agreement or any aspect
of the relationship between the Parties, or (b) use the other Party’s name or any trade name,
trademark, or service ▇▇▇▇ belonging to the other Party in press releases or in any form,
including, but not limited to, advertising or marketing. Notwithstanding the foregoing, Bunge
acknowledges and agrees that Producer’s disclosure of this Agreement and the transactions
contemplated hereby to the extent required by the Securities and Exchange Commission (the
“SEC”) will not violate this Section 10.1; provided that Producer shall
seek redaction and/or other confidential treatment of any information in such reports filed with
the SEC, as reasonably requested by Bunge.
10.2. Confidential Information. The term “Confidential Information” means all
material or information relating to a Party’s business operations and affairs (including trade
secrets) that such Party treats as confidential. During the Term and for three years thereafter,
neither Party will (a) use any Confidential Information of the other Party for any purpose other
than in accordance with this Agreement or for its and its Affiliates’ internal business purposes,
or (b) disclose Confidential Information to any Person, except to its personnel who are subject to
nondisclosure obligations comparable in scope to this Section 10 and who have a need to
know such Confidential Information in order to perform under this Agreement. Notwithstanding the
foregoing, the Parties acknowledge that Bunge and/or its Affiliates may perform services for other
third parties similar to the services provided to Producer hereunder and that the use by Bunge
and/or its Affiliates of any Confidential Information regarding the services provided under this
Agreement in the course of the provision of such services to other third parties and for Bunge’s
and its Affiliates’ internal business purposes shall not be considered a violation of this
Section 10; provided, that such use of Producer’s Confidential Information may not be to
the competitive disadvantage of Producer.
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10.3. Disclosure of Confidential Information. Notwithstanding Section 10.2,
either Party may use for any purpose or disclose any material or information that it can
demonstrate (i) is or becomes publicly known through no act or fault of such Party; (ii) is
developed independently by such Party without reference to the other Party’s Confidential
Information; (iii) is known by such Party when disclosed by the other Party, and such Party does not then have a
duty to maintain its confidentiality; or (iv) is rightfully obtained by such Party from a third
party not obligated to preserve its confidentiality who did not receive the material or information
directly or indirectly from the other Party. A Party also may disclose the other Party’s
Confidential Information to the extent required by a court or other governmental authority,
provided that the disclosing Party (a) gives the other Party advance written notice of the
disclosure, (b) uses reasonable efforts to resist disclosing the Confidential Information, (c)
cooperates with the other Party on request to obtain a protective order or otherwise limit the
disclosure, and (d) as soon as reasonably possible, provides a letter from its counsel confirming
that such Confidential Information is, in fact, required to be disclosed.
11. Disputes.
11.1. Governing Law. This Agreement shall be governed by the laws of the state of
Indiana, without regard to principles of conflicts of laws.
11.2. Notice of Dispute. If any dispute shall arise under or in connection with this
Agreement, the Parties hereto agree to follow the procedures set forth in this Section 11
in an effort to resolve the dispute prior to the commencement of any formal proceedings;
provided that either Party may institute judicial proceedings seeking equitable relief or
remedies without following the procedures set forth herein. The Parties shall attempt in good
faith to resolve any dispute arising out of or relating to this Agreement, the breach, termination,
or validity hereof, or the transactions contemplated herein promptly by negotiation between
representatives who have authority to settle the controversy. Any Party may give the other Party
written notice that a dispute exists (a “Notice of Dispute”) setting forth a statement of
such Party’s position. Within 20 business days after the delivery of the Notice of Dispute,
representatives of the Parties shall meet at a mutually acceptable time and place, and thereafter
as long as they both reasonably deem necessary, to exchange relevant information and attempt to
resolve the dispute.
11.3. Mediation. If the matter has not been resolved within 30 days after the
delivery of the Notice of Dispute, then either Party may seek to resolve the dispute through
mediation administered by the Commercial Mediation Rules of the American Arbitration Association.
If (a) neither Party has initiated mediation within such 21 days after the end of such 30-day
period or (b) the Parties fail to resolve the dispute within 21 days after starting mediation, then
either Party may initiate appropriate proceedings to obtain a judicial resolution of the dispute.
11.4. Negotiations; Jurisdictional Matters. If a representative of any Party intends
to be accompanied at a meeting by an attorney, the other negotiator shall be given at least three
business days’ notice of such intention and may also be accompanied by an attorney. All
negotiations pursuant to this clause are confidential and shall be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence and similar state rules of
evidence. Any proceeding initiated by either Party hereto shall be commenced and prosecuted in the
United States District Court or states court situated where the Facility is located, and any courts
to which an appeal may be taken, and each Party hereby consents to and submits to the personal
jurisdiction of each of such courts.
11.5. Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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12. Notices. All notices required or permitted under this Agreement will be in writing and
will be deemed given and made: (i) if by personal delivery, on the date of such delivery, (ii) if
by facsimile, on the date sent (as evidenced by confirmation of transmission by the transmitting
equipment), (iii) if by nationally recognized overnight courier, on the next business day following
deposit, and (iv) if by certified mail, return receipt requested, postage prepaid, on the third
business day following such mailing; in each case addressed to the address or facsimile number
shown below for such Party, or such other address or facsimile number as such Party may give to the
other Party by notice:
If to Bunge:
Bunge North America, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President, Grains
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President, Grains
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Bunge North America, Inc.
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Attn: General Counsel
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Attn: General Counsel
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If to Producer:
Cardinal Ethanol, LLC
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with copies to:
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BrownWinick
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BrownWinick
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13. Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the Parties with respect to the
subject matter hereof. This Agreement does not, and is not intended to, confer any rights or
remedies upon any person other than the Parties.
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14. Amendments; Waiver. The Parties may amend this Agreement only by a written agreement
of the Parties. No provision of this Agreement may be waived, except as expressly provided herein
or pursuant to a writing signed by the Party against whom the waiver is sought to be enforced. No
failure or delay in exercising any right or remedy or requiring the satisfaction of any condition
under this Agreement, and no “course of dealing” between the Parties, operates as a waiver or
estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective
only in that instance and only for the purpose that it is given and is not to be construed as a
waiver on any future occasion or against any other person.
15. Assignment. No Party may assign this Agreement, or assign or delegate any of its
rights, interests, or obligations under this Agreement, voluntarily or involuntarily, whether by
merger, consolidation, dissolution, operation of law, or any other manner, without the prior
written consent of the other Party, and any purported assignment or delegation without such consent
will be void. Despite the prior sentence Bunge may assign this Agreement, or assign or delegate
any of its rights, interests, or obligations under this Agreement, to any of its Affiliates without
Producer’s prior written consent. Subject to the preceding sentences in this Section 15,
this Agreement binds and benefits the Parties and their respective permitted successors and
assigns.
16. Severability. If a court or arbitrator with proper jurisdiction determines that any
provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions of this
Agreement remain in full force. The Parties will negotiate in good faith to replace such illegal,
invalid, or unenforceable provision with a legal, valid, and enforceable provision that carries out
the Parties’ intentions to the greatest lawful extent under this Agreement.
17. Interpretation. Each Party has been represented by counsel during the negotiation of
this Agreement and agrees that any ambiguity in this Agreement will not be construed against one of
the Parties.
18. Further Assurances. Each Party will execute and cause to be delivered to the other
Party such instruments and other documents, and will take such other actions, as the other Party
may reasonably request for the purpose of carrying out or evidencing any of the transactions
contemplated by this Agreement.
19. Counterparts. This Agreement may be executed by the Parties by facsimile and in
separate counterparts, each of which when so executed will be deemed to be an original and all of
which together will constitute one and the same agreement.
20. Market Opportunities.
20.1. Soybean Storage. At any time during the Term, Bunge may notify Producer that
Bunge desires to store soybeans at the Facility. The Parties shall attempt to negotiate in good
faith an agreement setting out the terms under which Producer would provide storage space to Bunge.
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20.2. Right of First Offer. Producer may not (i) sell or otherwise convey any
significant portion of the assets that constitute the Facility; (ii) merge or consolidate Producer
with any other entity, or (iii) issue any equity interests of Producer that results in a person or
entity holding 50% or more of the outstanding equity interests of Producer, excluding any persons
or entities that held 50% or more of the outstanding equity interests of Producer immediately
before such acquisition (each, a “Producer Transaction”), without first complying with the
following procedures. Producer must notify Bunge (a “Producer Transaction Intent Notice”) of its
desire to enter into a specific type of Producer Transaction at least 30 days (but no more than 90
days) before it enters into such a Producer Transaction. At any time within 20 days after receiving
a Producer Transaction Intent Notice, Bunge may notify Producer (a “Producer Transaction Offer
Notice”) of the terms upon which Bunge offers to enter into a Producer Transaction similar to the
one described in the Producer Transaction Intent Notice. Unless earlier accepted in writing by
Producer, the offer set forth in a Producer Transaction Offer Notice will expire 10 days after it
is given.
21. Non-Solicitation. During the Term of this Agreement and for a period of two years
thereafter, neither Party will solicit any of the other Party’s employees, managers or officers to
leave that Party’s employ, excluding general solicitations not targeted to such employees, managers
or officers, and advertisements in publications of general circulation.
22. Enforcement. The necessity of protection against competition and the nature and scope
of such protection has been carefully considered by the Parties. The Parties agree and acknowledge
that there is a protectable interest in confidential, proprietary and trade secret information and
that the duration and scope applicable to the covenants regarding confidentiality and
non-solicitation described in this Agreement are fair, reasonable and necessary to protect such
interest, and that adequate consideration has been received by both Parties therefore. If,
however, a court determines that any of the restrictions imposed on under this Agreement are not
completely enforceable because they are not reasonable, the Parties hereby give the court the right
and power to interpret, alter, amend or modify any or all of the terms contained herein to include
as much of the scope, time period and geographic area as will render such restrictions reasonable
and enforceable. The Parties agree that in the event of a breach or violation or attempted breach
or violation of any or all of the Sections 10 and 21 above, said provisions will cause irreparable
harm and for that reason the Parties shall be entitled as a matter of right, to seek both temporary
and permanent injunctive relief from any court of competent jurisdiction, restraining further
violation of such covenants.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed the day and year first
above written.
BUNGE NORTH AMERICA, INC.
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CARDINAL ETHANOL, LLC | |
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
Title: Vice President
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Title: President |
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