**Exhibit 10.5****ETHANOL MARKETING AGREEMENT***     **THIS ETHANOL MARKETING AGREEMENT**the (“Agreement”) is entered into this29thday of March, 2006, with an effective date as stipulated in Section 1 (a) below, by and betweenArcher Daniels Midland Co., a Delaware corporation with its principal place of business in Decatur,Illinois (“ADM”), and Siouxland Ethanol, LLC, a Nebraska limited liability company with itsprincipal place of business in Jackson, Nebraska (“Siouxland”).**BACKGROUND**     **WHEREAS,**ADM and Siouxland are both in the business of processing corn to produce ethanol forcommercial sale; and     **WHEREAS,**ADM has knowledge of the ethanol industry in the United States, and has experiencerelated to ethanol marketing, sales, and distribution; and     **WHEREAS,**Siouxland and ADM believe that it would be in their mutual best interests for ADM topurchase ethanol produced by Siouxland at its ethanol production facility near Jackson, Nebraska(the “Siouxland Production Facility”) for purposes of jointly marketing, selling, and distributingthat ethanol, along with the ethanol produced by ADM at its Columbus, Nebraska plant and itsMarshall, Minnesota plant (the “ADM Production Facilities”); and     **WHEREAS,**Siouxland and ADM desire to enter into this Agreement, for purposes of setting outthe terms and conditions of the business arrangement;     **NOW, THEREFORE,**the parties to this Agreement hereby covenant and agree as follows:**AGREEMENT**     1. **TERMS OF THIS AGREEMENT.**          (a) **The Initial Term.**The initial term of this Agreement will be for two years with theeffective date being the first day of the month of which production of ethanol begins at theSiouxland Production Facility (the “Effective Date”).. For example, if production begins onFebruary 15, 2007, then February 1, 2007 will be the effective date of this Agreement. Thetwo-year period referred to herein will hereafter be referred to as the “Initial Term.”          (b) **The Renewal Terms.**Unless this Agreement is terminated in the manner described below inSection 2, this Agreement will automatically renew for successive additional terms of one yeareach. These additional terms will each be referred to hereafter as a “Renewal Term.”     2. **TERMINATION.**This Agreement may be terminated under the circumstances set out below. *****  Portions omitted pursuant to a request for confidential treatment and filed separately with theSecurities and Exchange Commission.
 

 
          (a) **Termination for Intentional Misconduct.**If either party engages in intentional misconductreasonably likely to result in significant adverse consequences to the other party, the partyharmed or likely to be harmed by the intentional misconduct may terminate this Agreementimmediately, upon written notice to the party engaging in the intentional misconduct.          (b) **Termination for Uncured Breach.**If one of the parties breaches the terms of thisAgreement, the other party may give the breaching party a notice in writing which specifically setsout the nature and extent of the breach, and the steps that must be taken to cure the breach.After receiving the written notice, the breaching party will then have thirty (30) days to cure thebreach, if the breach does not involve a failure to make any payments which are required by thisAgreement.          If the breach does involve a failure to make any payments which are required by thisAgreement, then the breaching party will have five (5) days after receiving the written notice tocure the breach. If the breaching party does not cure any breach within the applicable cureperiod, then the non-breaching party will have the right to terminate this Agreement immediately.          (c) **Termination at the End of the Initial Term or Any Renewal Term.**Either party mayterminate this Agreement at the end of the Initial Term, or at the end of any Renewal Term, byproviding the other party with a written notice of termination delivered to the non-terminatingparty at **least six (6) months**prior to the end of the Initial Term or the end of any Renewal Term.          (d) **Termination by Mutual Written Agreement.**This Agreement may also be terminated upon anyterms and under any conditions, which are mutually agreed upon in writing by the parties.          3. **REPRESENTATIONS AND WARRANTIES OF Siouxland.**In connection with its sale of ethanol to ADMunder this Agreement, Siouxland makes the following representations and warranties, for the benefitof ADM:          (a) **Good Title.**Siouxland will have good and marketable title to all of the ethanol sold toADM under this Agreement, free and clear of all liens and encumbrances.          (b) **Corporate Existence and Good Standing.**Siouxland is a limited liability company validlyexisting and in good standing under the laws of the State of Nebraska.          (c) **Corporate Authority and Corporate Approval.**Siouxland has the power and authority toenter into this Agreement. Further, Siouxland has taken all corporate action necessary toauthorize it to execute, become bound by, and perform its duties and obligations under thisAgreement.
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          (d) **No Conflicts as to Law or Agreements.**The execution of this Agreement by Siouxland, thesale and transfer of ethanol from Siouxland to ADM, and the taking of all actions by Siouxlandunder this Agreement do not require the consent of any person, entity, or agency; do not violateany law, rule, or regulation; and do not breach or violate any contract or agreement to whichSiouxland is a party, or by which Siouxland is bound.          (e) **Compliance with Laws.**Siouxland is now in compliance, and during the entire term of thisAgreement will remain in compliance, with all applicable federal, state, local, and foreign laws,ordinances, orders, rules, and regulations (“Laws”), other than Laws where neither the costs orpotential costs of failing to comply, nor the costs or potential costs of causing compliance, wouldbe material to Siouxland or its business or assets. The definition of Laws set out above includes,but is not limited to, the Toxic Substances Control Act (“TOSCA”), the Comprehensive EnvironmentalResponse, Compensation and Liability Act, the Clean Air Act, the Federal Water Pollution ControlAct of 1986, the Emergency Planning and Community Right-to-Know Act of 1986, the OccupationalSafety and Health Act, the Resource Conservation and Recovery Act, any state equivalent thereof,and all other laws related to the protection of the environment (“Environmental Laws”).          (f) **Complete and Accurate Disclosure.**Siouxland has not withheld from ADM any documents,information, or material facts relating to Siouxland ethanol production capabilities, and/orrelating to the business operations of Siouxland. Further, no representation or warranty in thisAgreement, or in any letter, certificate, exhibit, schedule, statement, or other document furnishedpursuant to this Agreement, contains any untrue statement of a material fact.          (g) **Licenses and Permits.**As of the Effective Date of this Agreement, Siouxland has, and willhave at all times during the term of this Agreement, all of the licenses and permits necessary tooperate the Siouxland Production Facility.          (h) **Production Capacity.**The amount of ethanol that Siouxland is capable of producing eachyear, based on the nameplate design capacity of the production facility, will hereafter be referredto as “Annual Production Capacity.” The nameplate design capacity of the Production Facility is50,000,000 gallons of ethanol per year. Within 60 calendar days of commencing plant operations,Siouxland will have the plant capacity and the technical capability to produce the quality ofethanol required under this Agreement, in the quantities required under this Agreement.          (i) **Product Quality.**All of the ethanol sold to ADM by Siouxland under this Agreement will beof merchantable quality, and will be fit for its intended purpose. All such ethanol must meet allapplicable ASTM Standards, must meet the ethanol standards established by the Williams Pipelinetest, and must meet the ethanol standards established by all other standard ethanol industry tests.
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          (j) **Patent Infringement.**Siouxland is not now, and will not be at any time in the futureduring the term of this Agreement, infringing upon any patents or other intellectual propertyrights held by any other parties.     4. **REPRESENTATIONS AND WARRANTIES OF ADM.**In connection with providing the services on behalfof Siouxland which are described in this Agreement, ADM makes the following representations andwarranties, for the benefit of Siouxland:          (a) **Corporate Existence and Good Standing.**ADM is a Delaware corporation validly existing andin good standing under the laws of the State of Illinois.          (b) **Corporate Authority and Corporate Approval**. ADM has the power and the authority to enterinto this Agreement. Further, ADM has taken all corporate action necessary to authorize it toexecute, become bound by, and perform its duties and obligations under this Agreement.          (c) **No Conflicts as to Law or Agreements**. The execution of this Agreement by ADM, thepurchasing of ethanol from Siouxland by ADM, and the taking of all actions by ADM under thisAgreement do not require the consent of any person, entity, or agency; do not violate any law,rule, or regulation; and do not breach or violate any contract or agreement to which ADM is aparty, or by which ADM is bound.          (d) **Compliance with Laws.**As it relates to this Agreement, ADM is now in compliance, andduring the entire term of this Agreement will remain in compliance, with all applicable federal,state, local, and foreign laws, ordinances, orders, rules, and regulations (“Laws”), other thanLaws where neither the costs or potential costs of failing to comply, nor the costs or potentialcosts of causing compliance, would be material to ADM or its business or assets. The definition ofLaws set out above includes, but is not limited to, the Toxic Substances Control Act (“TOSCA”), andall other laws related to the protection of the environment (“Environmental Laws”).          (e) **Licenses and Permits.**ADM now has, and will have at all times during the term of thisAgreement, all of the licenses and permits necessary to operate the ADM Production Facilities.          (f) **Product Quality.**All of the ethanol produced by ADM and sold to its customers under thisAgreement will be of merchantable quality, and will be fit for its intended purpose. All suchethanol must meet all applicable ASTM Standards, must meet the ethanol standards established by theWilliams Pipeline test, and must meet the ethanol standards established by all other standardethanol industry tests.          (g) **Patent Infringement.**ADM is not now, and will not be at any time in the future during theterm of this Agreement, infringing upon any patents or other intellectual property rights held byany other parties.
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     5. **QUANTITY**. During the entire term of this Agreement, Siouxland agrees to sell to ADM, andADM agrees to purchase from Siouxland, all of the ethanol produced by Siouxland at the SiouxlandProduction Facility that conforms to the warranties set forth in this Agreement; provided, however,notwithstanding anything to the contrary, the annual volume of ethanol sold by Siouxland to ADM,and purchased by ADM from Siouxland, shall be no less than 40,000,000 gallons (the “Minimum AnnualVolume Requirements”) and no more than 60,000,000 gallons (the “Maximum Annual VolumeRequirements”), produced in approximately equal quarterly amounts. The terms and conditions ofthese purchases and sales will be set out in this Agreement.     6. **PRODUCTION ESTIMATES.**As of the effective date of this Agreement, Siouxland will provideADM with Siouxland’s best estimate of Siouxland’s anticipated monthly ethanol production for thenext twelve (12) months, to assist ADM in developing appropriate marketing strategies for theethanol to be produced by Siouxland.     On or before the first day of each month, Siouxland will provide ADM with its updated bestestimate of Siouxland’s anticipated monthly ethanol production for the next twelve (12) months, sothat ADM will have ethanol production estimates from Siouxland twelve (12) months into the futureduring the entire time that this Agreement is in effect.     Once this Agreement has been terminated under Section 2(a), Section 2(b), or Section 2(c)above, Siouxland will no longer be required to provide ADM with any further monthly ethanolproduction estimates, except to the extent required in any written termination agreement betweenthe parties entered into under Section 2(d) above.     Once either party has sent a written notice of intent to terminate this Agreement underSection 2(c) above, Siouxland’s monthly ethanol production estimates must continue to cover thetime period through the proposed termination date, but need not extend to any months after theproposed termination date.     7. **SHORTFALLS IN THE ETHANOL VOLUME REQUIREMENTS.**To the extent that Siouxland fails to produce enough ethanol to meet Siouxland’s Minimum AnnualVolume Requirement, or to the extent ADM reasonably believes that Siouxland will fail to produceenough ethanol to meet Siouxland’s Minimum Annual Volume Requirements based on the productionestimates provided pursuant to Section 6, ADM will have the right, but not the obligation, topurchase ethanol elsewhere, in a commercially reasonable manner, in order to cover the actual oranticipated shortfall. All costs and expenses related to such purchases which are in excess of thecosts and expenses that ADM would have incurred in the absence of such a shortfall will be chargedto Siouxland.
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     8. **EXCESS ETHANOL PRODUCTION.**          (a) **No Obligation to Sell All Ethanol Produced.**ADM will not be obligated to sell the entirevolume of ethanol supplied by Siouxland to ADM each month, if ADM does not believe in good faiththat it is in the best interests of the parties, based on market conditions, unavailability ofcustomers, or other factors.          This means that ADM will have the discretion to both build and decrease stored inventories ofthe ethanol produced under this Agreement, during the entire term of this Agreement. ADM agrees toattempt to do so efficiently, effectively, and in a manner that is in the best interests of theparties.          (b) **ADM’s Right to Buy and Sell Siouxland’s Excess Ethanol Production.**ADM shall have noobligation to purchase more than the Maximum Annual Volume Requirement during the Initial Term orany Renewal Term, in approximately equal quarterly amounts. If Siouxland produces ethanol inexcess of the Maximum Annual Volume Requirement, ADM will have the right, but not the obligation,to purchase the excess ethanol from Siouxland, and sell it under this Agreement.          (c) **Restrictions on Siouxland’s Right to Sell Excess Ethanol Production.**Because ADM isentitled to purchase all of the ethanol produced by Siouxland under Section 5 above, Siouxland maynot sell to any other parties any of the excess ethanol that it produces, over and above theMaximum Annual Volume Requirement without ADM’s prior written consent. Siouxland understands thatany excess ethanol that it produces is at its own risk, should ADM choose not to purchase thatexcess ethanol.          (d) **Siouxland’s Right to Utilize Excess Ethanol Production in Future Months.**The partiesagree that Siouxland may store excess ethanol that it produced in any month, at Siouxland’s ownexpense, if that excess ethanol is not purchased by ADM under Section 8(b) above. Siouxland maythen use that excess ethanol in the future, to satisfy Siouxland’s obligations to make ethanolavailable for sale under this Agreement.     9. **SERVICES TO BE PROVIDED BY ADM**. ADM in its sole discretion will provide, in good faith,the marketing, sales, storage, and transportation services for the ethanol produced under thisAgreement.     10. **QUALITY ASSURANCE AND QUALITY CONTROL.**          (a) **Initial and Ongoing QA and QC Support.**ADM agrees to provide initial quality assurance(“QA”) and quality control (“QC”) support to Siouxland, to assist Siouxland in consistentlyproducing ethanol at the Siouxland Production Facility, which meets the standards for productquality which are set out in Section 3(i) of this Agreement. After this initial support, ADM willcontinue to assist Siouxland with QA and QC matters throughout the duration of this Agreement on an“as needed” basis, at the request of either party.
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          (b) **Siouxland’s Responsibility and Liability for the Ethanol that it Produces.**Notwithstanding ADM’s agreement to provide Siouxland with QA and QC support in the manner describedin this Section 10, the parties agree that Siouxland will ultimately be responsible for the qualityof the ethanol produced at the Siouxland Production Facility. Further, the parties agree thatSiouxland, and not ADM, will be responsible and liable for all claims related to the quality of theethanol produced by Siouxland at the Siouxland Production Facility.          (c) **Siouxland’s Release of ADM from Liability Related to QA and QC Support.**ADM’s agreementto provide QA and QC support to Siouxland under this Agreement is a good faith attempt by ADM tohelp Siouxland meet the ethanol quality standards set out in this Agreement, for the mutual benefitof ADM and Siouxland. However, ADM’s agreement to provide QA and QC support to Siouxland does notconstitute a warranty or a guarantee of any type with respect to the quality of the ethanolproduced by Siouxland. Thus, Siouxland and all of its related persons and organizations herebyrelease ADM and all of its related persons and organizations from all liability, in the absence ofgross negligence and/or willful misconduct, related to the QA and QC support provided to Siouxlandby ADM under this Agreement.     13. **SALES TO ADM’S ETHANOL CUSTOMERS.**When ADM sells the ethanol produced under thisAgreement to its customers, the parties understand and agree that the ethanol sales prices, and allother terms and conditions of ethanol sales to customers under this Agreement, will be establishedby ADM. These decisions may be made by ADM, without the need for obtaining consent from Siouxland.     14. **PAYMENTS TO ADM FOR SERVICES PROVIDED**. In exchange for the marketing, sales, storage, andtransportation services provided by ADM under Section 11 above during the Initial Term, Siouxlandwill pay ADM the sum of [*] of the Final Average Net Ethanol Selling Price per gallon of ethanolproduced at the Siouxland Ethanol Production Facility and sold by ADM under this Agreement. Duringeach Renewal Term, the fee paid to ADM by Siouxland for these same services will be negotiated andagreed upon by the parties.     During any time period after the Initial Term when the parties have not agreed upon the amountthat Siouxland will pay ADM for these services, the fee paid to ADM by Siouxland for these serviceswill be [*] of the Final Average Net Ethanol Selling Price per gallon, payable by the fourteenthday of each month, for the services provided and the gallons of ethanol sold by ADM during theprevious month.     15. **INDEPENDENT CONTRACTOR STATUS OF ADM, AND EMPLOYMENT STATUS OF ADM’S EMPLOYEES.**Nothingcontained in this Agreement, including the services to be provided by ADM on behalf of Siouxland,will make ADM the agent of Siouxland for any purpose. ADM and its employees shall be deemed to beindependent contractors, with full control over the manner and method of performance of theservices they will be providing on behalf of Siouxland under this Agreement. *  Portion omitted pursuant to a request for confidential treatment and filed separately with theSecurities and Exchange Commission.
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     Any of the employees of ADM which are providing services on behalf of Siouxland under thisAgreement will remain employees of ADM. These employees will continue to be paid by ADM and toenjoy the benefits to which they are entitled as employees of ADM, unless otherwise provided in anyseparate agreement covering the services of such employees.     16. **SEPARATE ENTITIES.**Siouxland and ADM are separate entities. Nothing in this Agreement orotherwise shall be construed to create any rights or liabilities of either party to this Agreementwith regard to any rights, privileges, duties, or liabilities of the other party to this Agreement,except to the extent otherwise provided in this Agreement, or in any other agreement between theparties to this Agreement.     17. **DEVELOPMENT OF ORDERING AND SHIPPING PROCEDURES.**Because Siouxland and ADM have not donebusiness in the past in the manner described in this Agreement, they have not yet attempted todevelop efficient and effective procedures related to ordering ethanol, delivering ethanol, andshipping ethanol, in connection with ADM’s ethanol purchases from Siouxland. After this Agreementbecomes effective, ADM and Siouxland agree to work together promptly and in good faith to developeffective and efficient policies and procedures to cover these matters, based on their mutualexperiences working together under this Agreement.     Once those policies and procedures have been developed and mutually agreed upon, ADM andSiouxland intend to document them, in the form of an addendum to this Agreement. All such policiesand procedures shall be consistent with the terms of this Agreement. To the extent that a policyor procedure is inconsistent with any term or provision of this Agreement, the terms and provisionsof this Agreement shall govern.     18. **PRODUCT DISTRIBUTION.**          (a) **The ADM Production Facilities.**ADM presently produces ethanol at its plant in Columbus,NE (the “Columbus Plant”), and at its plant in Marshall, MN (the “Marshall Plant”), along withother production facilities that are not within the scope of this Agreement. The Columbus Plantand the Marshall Plant are collectively referred to herein as the “ADM Production Facilities.”          (b) **Product Substitution.**The parties agree that the ethanol produced at the ADM ProductionFacilities and the ethanol produced at the Siouxland Production Facility will be consideredfungible and interchangeable for purposes of product distribution under this Agreement. ADM willnot brand, label, or otherwise identify any ethanol sold under this Agreement differently becausethat ethanol was produced at the Siouxland Production Facility, as opposed to being produced at theADM Production Facilities.          (c) **Efficient Product Distribution.**When customers purchase ethanol from ADM that has beenproduced under this Agreement, ADM may fill the orders of those customers
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with ethanol produced at the Siouxland Production Facilities, ethanol produced at the ADMProduction Facilities, or ethanol produced at both the Siouxland Production Facilities and the ADMProduction Facilities. ADM will use its good faith efforts to manage factors such as customer anddelivery locations, order sizes, freight availability, and cost-effective product deliverylogistics in a manner that will result in efficient product distribution, for the mutual benefit ofboth Siouxland and ADM.     19. **PRODUCT TESTING.**At least twice each week during the term of this Agreement, and moreoften at the request of ADM, Siouxland agrees to provide ADM with samples of the ethanol producedat the Siouxland Production Facility, so that ADM can test Siouxland’s product quality on a regularbasis. ADM agrees to provide Siouxland with the information Siouxland will need in order tocollect, pack, and ship these ethanol samples to ADM in a manner satisfactory to ADM.     20. **COLLECTION AND RETENTION OF PRODUCT SAMPLES.**          (a) **Collection of Product Samples.**During the entire term of this Agreement, Siouxland agreesto collect samples of not less than 250 milliliters each from each shipment of ethanol that leavesthe Siouxland Production Facility under this Agreement. Each such product sample will be labeledto include the production date, the plant at which the product sample was produced, and any otherapplicable information.          (b) **Retention of Product Samples**. Siouxland agrees to retain these product samples for atleast three months after the date of the shipment from which each product sample was taken, in amanner which preserves the integrity of each individual product sample. Further, Siouxland agreesto promptly provide any of these samples to ADM, at the request of ADM.     21. **THE ACTUAL PRICE FOR ETHANOL SOLD TO ADM BY SIOUXLAND.**ADM agrees to pay Siouxland aprice for all ethanol sold to ADM by Siouxland under this Agreement that is equal to the “FinalAverage Net Ethanol Selling Price,” as defined in this Section 21. For purposes of this Agreement,the Final Average Net Ethanol Selling Price will be calculated as follows:          (a) **The Average Gross Ethanol Selling Price.**Each month, ADM will calculate the average grossselling price per gallon of all of the ethanol that ADM sells to its customers under thisAgreement, including all of the ethanol produced by both Siouxland and ADM, FOB the SiouxlandProduction Facility and the ADM Production Facilities. This amount will hereinafter be referred toas the “Average Gross Ethanol Selling Price.”          (b) **The Deduction for Direct Ethanol Distribution Expenses.**Each month, ADM will subtractfrom that Average Gross Ethanol Selling Price, on a per gallon basis, all of its distributionexpenses directly incurred in connection with distributing the ethanol sold under this Agreement(the “Direct Ethanol Distribution Expenses”). ADM’s Direct Ethanol Distribution Expenses willinclude, but not necessarily be limited to, all of its transportation costs, rail car
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costs, throughput costs, storage costs, inventory costs, and other distribution costs. ADM’sDirect Ethanol Distribution Expenses shall not include any costs or expenses incurred by ADM as aresult of engaging in price protection (hedging) strategies with respect to sales of Siouxland’sethanol. Those expenses shall be included in calculating the total costs of distributing ethanolfrom ADM’s Production Facilities, as further set forth in subsection (d) below.          (c) **The Average Net Ethanol Selling Price.**The difference between the Average Gross EthanolSelling Price, and the per gallon Direct Ethanol Distribution Expenses described above in Section21(b), will be the Average Net Ethanol Selling Price.          (d) **Determination of Final Average Net Ethanol Selling Price to Be Paid to Siouxland by ADM.**Each month, ADM shall determine the hedge rate applicable to the ethanol sales from the ADMProduction Facilities by dividing the total gain or loss realized by ADM on gasoline-index hedgecontracts related to the ADM Production Facilities by the total gallons of ethanol sold by ADMunder gasoline-index contracts related to the ADM Production Facilities. This amount shallconstitute the Hedge Rate. The Hedge Rate shall be netted with the Average Net Ethanol SellingPrice for ethanol sales from the ADM Production Facilities but shall not be applied to the AverageNet Ethanol Selling Price for ethanol sales from the Siouxland Production Facility. Afterapplication of the Hedge Rate to the average net selling price for ethanol sales from the ADMProduction Facilities, the Final Average Net Selling Price shall be the weighted average of theAverage Net Ethanol Selling Price for the ADM Production Facilities (netted with the Hedge Rate)and the Average Net Ethanol Selling Price for the Siouxland Production Facility. The Final AverageNet Ethanol Selling Price shall be paid to Siouxland by ADM for the applicable month.     22. **THE ESTIMATED PRICE FOR ETHANOL SOLD TO ADM BY SE.**          (a) **The Estimated Average Net Ethanol Selling Price.**The actual Final Average Net EthanolSelling Price cannot be determined before Siouxland sells to ADM under this Agreement, because theFinal Average Net Ethanol Selling Price is based on Direct Ethanol Distribution Expenses that willbe incurred by ADM after ADM has purchased ethanol from Siouxland and application of the HedgeRate. Because of that, the parties will work together before each month during the term of thisAgreement, in order to establish an estimated price for the ethanol to be sold to ADM by Siouxlandduring the upcoming month. That estimated price will hereafter be referred to as the “EstimatedAverage Net Ethanol Selling Price.”          (b) **Establishing the Estimated Average Net Ethanol Selling Price.**Siouxland may provideinformation, input, and opinions in connection with the establishment of the Estimated Average NetEthanol Selling Price, and the parties will attempt to arrive at the Estimated Average Net EthanolSelling Price for each month by consensus. However, if the parties are unable to reach aconsensus, then ADM will have the right, in good faith, to establish the Estimated Average NetEthanol Selling Price for the upcoming month, based on ADM’s experience in the ethanol industry.
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          (c) **Invoices and Payments Between Siouxland and ADM.**Siouxland will invoice ADM, uponshipment, at the applicable Estimated Average Net Ethanol Selling Price for all ethanol sold to ADMby Siouxland under this Agreement. Within seven (7) days of the date of the invoice, ADM will paySiouxland for all such ethanol sold to ADM by Siouxland.          (d) **Calculation of Actual Selling Prices After Each Month.**At the end of each month, promptlyafter the information necessary to calculate the Final Average Net Ethanol Selling Price becomesavailable, ADM will calculate the actual Final Average Net Ethanol Selling Price for the precedingmonth. ADM will provide that Final Average Net Ethanol Selling Price to Siouxland, along with asummary of the calculations used by ADM to arrive at the Final Average Net Ethanol Selling Priceincluding the Hedge Rate applied in the manner provided in Section 21 herein.          (e) **Reconciliation of Estimated Selling Prices and Actual Selling Prices After Each Month.**Within fourteen (14) days after ADM provides Siouxland with the actual Final Average Net EthanolSelling Price for the preceding month, the parties will reconcile the difference between theEstimated Average Net Ethanol Selling Price and the actual Final Average Net Ethanol Selling Pricefor the preceding month. If the Estimated Average Net Ethanol Selling Price exceeded the FinalAverage Net Ethanol Selling Price, then Siouxland will inform ADM in writing of its decision tooffset future payment(s) from ADM by the amount of the overpayment or refund to ADM theoverpayments that it previously received from ADM, within fourteen (14) days after the completionof this actual and estimated selling price reconciliation.          On the other hand, if the Estimated Average Net Ethanol Selling Price was less than the actualFinal Average Net Ethanol Selling Price, then ADM will pay Siouxland the additional amounts owed toSiouxland, within fourteen (14) days after the completion of this actual and estimated sellingprice reconciliation.     23. **MONTHLY MEETINGS.**Representatives of Siouxland and ADM will meet telephonically on amonthly basis to discuss issues related to this Agreement. It is the intent of both Siouxland andADM that these monthly meetings be conducted in a manner that complies with all applicable stateand federal laws.     24. **MONTHLY RECONCILIATION OF SHIPMENT VOLUMES.**On a monthly basis, Siouxland and ADM willcompare and reconcile their information related to the volumes of ethanol shipped from theSiouxland Production Facility and the ADM Production Facilities, in order to minimize disputes anddisagreements between them under this Agreement, and in order to provide more accurate informationfor calculating the Final Average Net Ethanol Selling Price under Section 21 of this Agreement.     In the event that the parties are unable to agree on which party’s numbers are correct for anymonth, the numbers proposed by ADM will be used, subject to the right of Siouxland to
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challenge ADM’s books and records through an independent public accounting firm, as described belowin Section 25.     25. **AUDITING OF ADM’S BOOKS AND RECORDS.**          (a) **Purposes of the Audits.**Each month during this Agreement, Siouxland will have the right,at its own expense, to have qualified representatives from an independent public accounting firmaudit those portions of ADM’s books and records which are directly related to the ethanol boughtand sold under this Agreement. The purposes of such audits will include confirming the informationprovided to Siouxland by ADM regarding the Final Average Net Ethanol Selling Price, confirmingADM’s production and shipment volumes for ethanol bought and sold under this Agreement andverifying any other information which is directly related to this Agreement.          (b) **Confidentiality Obligations**. Any such independent public accountants hired by Siouxlandwill be subject to the same confidentiality obligations that Siouxland is subject to under Section27 of this Agreement. Siouxland agrees to inform its accountants of those confidentialityobligations.          (c) **Challenges**. Siouxland may challenge ADM’s books and records for any month during thisAgreement, based on an audit by an independent public accounting firm. Siouxland must providewritten notice of such a challenge to ADM within two (2) years of the end of the month that is thesubject of the challenge.     26. **FINANCIAL INFORMATION.**On a monthly basis, Siouxland will provide ADM with copies ofcurrent balance sheets, income statements, and other financial statements (audited if available)related to Siouxland and its affiliated entities.     27. **HANDLING OF CONFIDENTIAL INFORMATION**. The parties acknowledge that they will beexchanging information about their businesses under this Agreement which is confidential andproprietary, and the parties agree to handle that confidential and proprietary information in themanner described in this Section 27.          (a) **Definition of Confidential Information.**For purposes of this Agreement, the term“Confidential Information” will mean information related to the business operations of Siouxland orADM that meets all of the following criteria: (i) The information must not be generally known tothe public, and must not be a part of the public domain, must not beinformation that the receiving party was already in possession of, mustnot be information that the receiving party receives from a third partywithout violating any confidentiality obligation owed to the disclosingparty, and must not be information that is independently
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   developed by the receiving party without relying upon theConfidential Information supplied by the disclosing party.  (ii) The information must belong to the partyclaiming it is confidential, and must be in that party’s possession.  (iii) The information must have been protected andsafeguarded by the party claiming it is confidential by measures thatwere reasonable under the circumstances before the information wasdisclosed to the other party.  (iv) The disclosure of the information to thirdparties must be likely to result in adverse consequences to the partyclaiming it is confidential.  (v) Written information must be clearly designatedin writing as “CONFIDENTIAL INFORMATION” by the party claiming it isconfidential before it is disclosed to the other party, except that allinformation about costs and prices will always be consideredConfidential Information under this Agreement, without the need forspecifically designating it as such.  (vi) Verbal Confidential Information which isdisclosed to the other party must be summarized in writing, designatedin writing as “CONFIDENTIAL INFORMATION,” and transmitted to the otherparty within ten (10) days of the verbal disclosure.          (b) **Limitations on the Use of Confidential Information.**Each party agrees that it will notuse any Confidential Information that it obtains about the other party for any purpose, other thanto perform its obligations under this Agreement or make required disclosures to the Securities andExchange Commission (“SEC”). The parties recognize that Siouxland will file this Agreement anddisclosures regarding this Agreement with the SEC by Siouxland and this Agreement will therefore bepublicly available to the extent that the provisions are not eligible for protection via aconfidential treatment request. Siouxland will request confidential treatment to the extent thatits legal counsel advises that the information contained herein is eligible for confidentialtreatment by the SEC. Siouxland shall have no duty or responsibility to request confidentialtreatment if, in the opinion of its legal counsel, confidential treatment is not available.          (c) **The Duty Not to Disclose Confidential Information.**The parties agree that they will notdisclose any Confidential Information about each other to any person or organization without firstgetting written consent to do so from the other party. This will be the case both while thisAgreement is in effect, and for a period of five (5) years after it has been terminated.
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          (d) **The Duty to Notify the Other Party in Cases of Improper Use or Disclosure.**Each partyagrees to immediately notify the other party if either party becomes aware of any improper use ofor any improper disclosure of the Confidential Information of the other party at any time whilethis Agreement is in effect, and for a period of five (5) years after it has been terminated.          (e) **Protection of the Confidential Information.**Each party agrees to develop effectiveprocedures for protecting the Confidential Information that it obtains from the other party, and toimplement those procedures with the same degree of care that it uses in protecting its ownConfidential Information.          (f) **Return of the Confidential Information.**Immediately upon the termination of thisAgreement, each party agrees to return to the other party all of the other party’s ConfidentialInformation that is in its possession or under its control.     28. **RIGHT OF OFFSET**. ADM will have the right to withhold payments for the ethanol that itpurchases from Siouxland, as an offset against any payments that Siouxland fails to make to ADMunder Sections 14 and 22 above.          If ADM exercises its right of offset at any time, Siouxland may request a written explanationfrom ADM that includes the amount of the offset claimed by ADM, and the basis for ADM’s exercise ofits right of offset. Upon receiving a written request from Siouxland for such an explanation, ADMwill promptly provide a reasonably detailed written explanation.          Siouxland shall have the right of offset described in Section 22 hereof.     29. **INSURANCE.**          (a) **Siouxland’s Insurance.**During the entire term of this Agreement, Siouxland will maintaininsurance coverage which is standard, in the reasonable opinion of ADM, for a company of its typeand size which is engaged in the business of producing and selling ethanol. At a minimum,Siouxland’s insurance coverage must include: (i) **Comprehensive General Product and PublicLiability Insurance,**naming ADM as an additional named insured, withliability limits of at least five million dollars ($5,000,000) in theaggregate.  (ii) **Property and Casualty Insurance**adequatelyinsuring the Siouxland Production Facility and Siouxland’s other assetsagainst theft, damage, and destruction, on a replacement cost basis.
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 (iii) **Workers’ Compensation Insurance**, to the extentrequired by law.          On or before the effective date of this Agreement, Siouxland will provide ADM with aCertificate of Insurance Coverage verifying that insurance coverage complying with the requirementsof this Section 29 is in place.          Siouxland will not change its insurance coverage during the term of this Agreement, except toincrease it or enhance it, without the prior written consent of ADM.          (b) **ADM’S Insurance.**ADM now has, and will maintain during the entire term of this Agreement,comprehensive general liability insurance with liability limits of at least five million dollars($5,000,000) in the aggregate. During the entire term of this Agreement, Siouxland will be anadditional named insured under ADM’s comprehensive general liability insurance policy.     30. **MUTUAL INDEMNIFICATION**. If any third party makes a claim against ADM or any person ororganization related to ADM as a result of the actions or omissions of Siouxland or any person ororganization related to Siouxland, including but not limited to claims related to the quality ofthe ethanol produced by Siouxland, then Siouxland agrees to indemnify ADM and its related personsand organizations, and to hold all of them harmless from any liabilities, damages, costs, and/orexpenses, including costs of litigation and reasonable attorneys’ fees, which they incur as aresult of any such claims made against them by third parties.     The indemnification obligations of the parties under this Agreement will be mutual, and ADMtherefore makes the same commitment to indemnify Siouxland and its related persons or organizationsthat Siouxland has made to ADM in the proceeding paragraph.     31. **SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENTS, AND CLAIMS.**All representations,warranties, and agreements made in connection with this Agreement will survive the termination ofthis Agreement. The parties will therefore be able to pursue claims related to thoserepresentations, warranties, and agreements after the termination of this Agreement, unless thoseclaims are barred by the applicable statutes of limitation.     Similarly, any claims that the parties have against each other that arise out of actions oromissions that take place while this Agreement is in effect will survive the termination of thisAgreement. This means that those claims may be pursued by the parties even after the terminationof this Agreement, unless those claims are barred by the applicable statutes of limitation.     32. **COSTS AND ATTORNEYS’ FEES IN DISPUTE RESOLUTION PROCEEDINGS, AND FOLLOWING UNCUREDBREACHES.**The parties agree that the
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prevailing party in any dispute resolution proceedings related to this Agreement shall be entitledto collect all of its costs, expenses, and reasonable attorneys’ fees from the other party.     The same shall be true if one of the parties incurs costs, expenses, or attorneys’ fees inconnection with the enforcement or the protection of its rights under this Agreement, as a resultof an uncured breach by the other party. The breaching party shall reimburse the other party forcosts, expenses, and reasonable attorneys’ fees incurred after the expiration of the applicablecure period, regardless of whether or not the enforcement or the protection of the rights of theother party involved judicial proceedings, arbitration proceedings, or other formal disputeresolution proceedings.     33. **TITLE AND RISK OF LOSS.**With regard to the ethanol sold to ADM by Siouxland under thisAgreement, title to and risk of loss for such ethanol will pass from Siouxland to ADM when theethanol is loaded onto the railcar or truck for transport by ADM.     34. **GOVERNING LAW.**Because this Agreement involves the sale and transfer of ethanol producedby Siouxland, a Nebraska company qualified to do business in Nebraska, to ADM, a Delawarecorporation, the parties agree that the Agreement will be governed by, interpreted under, andenforced in accordance with the substantive laws of the State of Nebraska, without regard toconflict of law principles.     35. **NOTICES.**All notices related to this Agreement which relate to breaches of thisAgreement, indemnification claims or other claims being made under this Agreement, challenges tothe books and records of the parties, or the termination of this Agreement (the “SignificantNotices”) must be in writing, and must be delivered personally or sent by certified or registeredmail, return receipt requested. All Significant Notices will be effective, and will be deemed tohave been received, upon the actual receipt of the Significant Notice by its intended recipient,meaning either Siouxland or ADM.     Subject to change upon ten (10) days written notice to the other party, all written notices toSiouxland provided for in this Agreement will be addressed as follows:Tom Lynch