Unassociated Document


    AMENDED
AND RESTATED MANAGEMENT AGREEMENT

     

    RED
TRAIL ENERGY, LLC / GREENWAY CONSULTING, LLC

     

    This
Amended and Restated Management Agreement (the “Agreement”) is made and entered
into this 10th day of September, 2009, by and between Red Trail Energy, LLC, a
North Dakota limited liability company (the “Owner”) and Greenway Consulting,
LLC, a Minnesota limited liability company (“Greenway”);

     

    RECITALS

     

    A. Owner
owns and operates a 50 million gallon per-year nameplate capacity dry-mill
ethanol plant in Richardton, North Dakota (the “Plant”).

     

    B.
Greenway is an ethanol consulting company providing, among other things,
management services for the operation of ethanol plants.

     

    C. Owner
has used since the execution of a Management Agreement with Greenway dated
December 17, 2003, and is desirous of continuing to use, the management services
of Greenway, and Greenway is desirous of providing such services to
Owner.

     

    NOW
THEREFORE, in consideration of the following terms and conditions, Owner and
Greenway hereby agree as follows:

     

    SECTION
I. SCOPE OF SERVICES

     

    Greenway
shall provide the following services:

     

    A. Assist
and advise owner with Plant operations as specifically requested, maintenance
and repair and installation of additional capital equipment, and make
recommendations regarding prospective upgrades to Owner’s Plant and operations
to adapt to changing industry technologies or other conditions that Greenway
believes may be necessary based on Greenway’s industry knowledge;

     

    B. Assist
and advise in the set up, monitoring and oversight policies and procedures for
programs for input acquisitions including among other things, corn supply, and
offtake;

     

    C. Assist and advise in the hiring and termination of the General
Manager and Plant Manager, which hiring and termination shall be the sole
responsibility of the Owner; and

     

    D. Assist
and advise the Owner regarding general Plant management concerns on an as needed
basis.

     

    SECTION
II. TERM

     

    This
Agreement shall begin on July 1, 2009 (the “Effective Date”) and shall terminate
on December 11, 2011.  Any extension of the term set forth in this
Section II shall be effected by a written extension agreement duly executed by
both parties.

     

    SECTION
III. COMPENSATION

     

    Owner
shall pay Greenway compensation for services rendered under the terms of this
Agreement as follows:

     

    A. One
Hundred Seventy One Thousand and Six Hundred Dollars ($171,600) per year payable
in equal monthly installments of Fourteen Thousand and Three Hundred Dollars
($14,300.00) on the first day of each month.

     

    B.
Reimbursement to Greenway for the salary and benefit package for the General
Manager/Chief Executive Officer and the Plant Manager payable each month, along
with the monthly payment in “A.” above.  The salary and benefit
package for Owner’s interim General Manager/Chief Executive Officer as of the
Effective Date shall be the same as the salary and benefit package applicable to
Owner’s prior General Manager/Chief Executive Officer for fiscal year
2008.  If Owner’s interim General Manager/Chief Executive Officer
remains employed as Owner’s General Manager/Chief Executive Officer on January
1, 2010, this Section III.B. shall be subject to renegotiation by the
parties.

     

    C.
Expenses are in addition to the above compensation and shall be billed monthly
as incurred. Expenses shall include all out-of-pocket expenditures paid or
accrued by Greenway in carrying out the terms of this Agreement. If expenses
exceeding $5,000 per month are required, Greenway shall seek pre-approval by
Owner, which approval shall not be unreasonably withheld.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    D. Four
percent (4%) of the pre-tax net income, which income shall include all revenues
including, but not limited to, governmental payments, but specifically excluding
the following:

     

    
      	
               
      

            	
              (1)

            	
              any
      unrealized gains or losses related to
hedging;

            


    

     

    
      	
               
      

            	
              (2)

            	
              any
      gains or losses related to withheld payments to Fagen, Inc. (“Fagen”)
      and/or ICM, Inc. (“ICM”) related to the resolution of any outstanding
      disputes between Owner and Fagen and/or ICM regarding Owner’s coal
      combustor, including any subordinated debt
  forgiveness;

            


    

     

    
      	
               
      

            	
              (3)

            	
              any
      unrealized gains or losses related to interest rate
  swaps;

            


    

     

    
      	
               
      

            	
              (4)

            	
              any
      non-cash patronage equity grants, including but not limited to noncash
      capital credits or patronage dividends from any third
    parties;

            


    

     

    
      	
               
      

            	
              (5)

            	
              any
      gains or losses related to any debt restructuring or debt forgiveness
      under any agreements with Owner’s senior lenders;
  and

            


    

     

    
      	
               
      

            	
              (6)

            	
              any
      gains or losses related to Owner’s purchases of discounted
      corn.

            


    

     

    This sum
shall be payable within thirty (30) days after conclusion of the audit of
Owner’s financial statements by Owner’s independent registered public accounting
firm.

     

    In no
event during the term of this Agreement shall Owner pay any amounts under
Section III.D. if such payment would cause Owner’s cash balance to fall below
the dollar amount Minimum Cash Balance threshold, as defined in Owner’s Corn
Procurement Program prospectus.  Owner’s payment under the corn
procurement program of any Cash Payment or Cash Incentive amounts, as defined in
the Owner’s Corn Procurement Program prospectus, shall have priority in payment
over the payment to Greenway under Section III.D.  In the event that
any payments remain owed to Greenway at the termination date of this Agreement
and Owner’s cash balance is below the Minimum Cash Balance on such termination
date, such payment shall accrue as a payable to Greenway until such time as
Owner’s cash balance is above the Minimum Cash Balance.  Once Owner’s
cash balance is above the Minimum Cash Balance, any accrued payments shall be
paid in full to Greenway.

     

    SECTION
IV. STANDARD OF PERFORMANCE

     

    All
services provided by Greenway shall be provided on a best efforts basis with no
warranties of performance due to limitations of the equipment.

     

    SECTION
V. TERMINATION

     

    This
Agreement may not be terminated by either party except for good cause shown.
‘Good Cause’ shall be defined as (i) insolvency or bankruptcy of either party,
(ii) dishonest or fraudulent acts of either party, or (iii) Gross Misconduct of
either party.  If either party desires to terminate this agreement for
Good Cause, that party shall provide written notice to the other party setting
forth, with particularity, the claimed basis for termination. The party
receiving such notice shall have thirty (30) days to dispute this notice or to
correct the claimed defect. In the event the party receiving notice disputes the
claim it shall submit the claim to Arbitration pursuant to Section IX
herein.

     

    Failure
to dispute this notice or to arbitrate or to correct the claimed defect within
the given time frame shall result in termination of this Agreement at the option
of the non-defaulting party. In the event of termination all sums accrued under
this Agreement shall then become immediately due in full and any unpaid balance
shall carry an interest rate of eight percent (8%) per annum.

     

    SECTION
VI. INDEMNIFICATION

     

    RED TRAIL
ENERGY, LLC will indemnify and hold Greenway harmless from and against all
claims, liabilities, losses, damages, expenses, attorney fees and disbursements
related to or arising out of Greenway's performance under this Agreement, except
in the event of Gross Misconduct on the part of Greenway, its employees or
agents.

     

    SECTION
VII. INSURANCE

     

    During
the term of this Agreement, each party shall provide Workers' Compensation
Insurance within the statutory requirements for all of its employees. Owner
shall provide comprehensive general liability insurance and automobile liability
insurance to cover claims for personal injury, death or property damage which
may arise out of the performance of this Agreement. Owner agrees that Greenway
shall be named as an additional named insured under its general liability and
automobile liability insurance policies.

     

    Comprehensive
general liability limits shall be at least Two Million Dollars ($2,000,000) for
bodily injury or death for any one occurrence and Five Million dollars
($5,000,000) for property damage. Automobile liability limits shall be at least
One Million Dollars ($1,000,000) for any one person with an aggregate of Two
Million Dollars ($2,000,000) for any occurrence of bodily injury or property
damage.

     

    Upon
request, Owner agrees to furnish Greenway with a certificate of insurance naming
Greenway as an additional insured as described above.

     

    SECTION
VIII. GOVERNING LAW

     

    This
Agreement shall be governed by the laws of the State of North Dakota with
respect to interpretation and performance.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    SECTION
IX. ARBITRATION

     

    If any
dispute arises out of the interpretation or performance of this Agreement, the
matter shall be referred to Arbitration pursuant to the commercial rules of the
American Arbitration Association. The Arbitration shall be conducted in Fargo,
North Dakota. Each party to the Arbitration shall bear one half, each, of the
expenses of the Arbitrator(s), including their fees and costs, but each party
shall bear their own expenses, including attorney fees.

     

    SECTION
X. NOTICES

     

    Any
written notice or communication required or permitted by this Agreement, or by
law, to be served upon, given to, or delivered to either party, by the other
party, shall be in writing, and shall be deemed duly served, given, or delivered
when personally delivered to the party to whom it is addressed, or in lieu of
such personal services, when deposited in the United States mail, first class
postage prepaid, addressed to Owner at:

     

    RED TRAIL
ENERGY, LLC

    P.O. BOX
11, 3682 HIGHWAY 8 SOUTH

    RICHARDTON,
NORTH DAKOTA 58652

    ATTN:
MIKE APPERT

     

    Or to
Greenway at:

     

    GREENWAY
CONSULTING, LLC

    74 SOUTH
COUNTY ROAD 22

    MORRIS,
MINNESOTA 56267

    ATTN:
GERALD BACHMEIER

     

    SECTION
XI. INDEPENDENT CONTRACTOR

     

    Greenway
is an independent Consultant and nothing in this Agreement shall constitute or
designate Greenway or any of its employees or agents as employees of
Owner.

     

    SECTION
XII. CONFIDENTIALITY

     

    Neither
party shall disclose confidential information of the other party to a third
party. (See previously executed Non-Disclosure Agreement which shall remain in
effect; Exhibit A.) Each party shall designate to the other party information it
considers to be confidential and not part of the public domain. A violation of
this provision shall be resolved through Section IX. Arbitration,
herein.

     

    SECTION
XIII. MODIFICATION

     

    This Agreement constitutes the entire
agreement between the parties. Any prior agreements, promises, negotiations or
representations not expressly set forth in this Agreement are of no force
or effect. This Agreement may
only be modified upon the written agreement of the parties executed as an
amendment to this Agreement.

     

    SECTION
XIV. ASSIGNMENT

     

    This
Agreement shall be binding upon the parties and their respective assigns,
representatives and agents including upon any third party buyer of all or a part
of Owner's interest herein.

     

    IN
WITNESS WHEREOF, the Parties have executed this Agreement in the day and year
first above written. By signature of its representative(s) below, each Party
affirms that it has taken all necessary action to authorize said
representative(s) to execute this Agreement.

     

    EACH PARTY AGREES IT HAS READ AND
UNDERSTANDS ALL THE TERMS OF THIS AGREEMENT.

     

    
      
        	
                OWNER:
      RED TRAIL ENERGY, LLC

              	
                GREENWAY:
      GREENWAY CONSULTING, LLC

              
	 	 
	
                /s/
      Mike Appert

              	
                /s/
      Gerald Bachmeier

              
	
                By:
      Mike Appert

              	
                By:
      Gerald Bachmeier

              
	
                Its:
      Chairman

              	
                Its:
      Chief Manager

              
	 	 
	 	 
	
                /s/
      Mark E Klimpel

              	 
      
	
                By:
      Mark Klimpel

              	 
      
	
                Its:
      Chief Financial Officer