Unassociated Document



EXHIBIT
10.21


RISK
MANAGEMENT AND ETHANOL MARKETING CONTRACT




THIS
AGREEMENT is entered into by and among FCStone, LLC ("FCStone"), an Iowa limited
liability company with its main office at 2829 Westown Parkway, West Des Moines,
Iowa 50266, and Eco-Energy, Inc. ("Eco"), a Tennessee Corporation with its main
office located at 730 Cool Springs Blvd. Suite 130, Franklin, Tennessee 37067,
and Husker AG, LLC, (HA), with its main office located at P.O. Box 10,
Plainview, NE 68769.




RECITALS:





	
      A.
	
      HA
      is a Limited Liability Company, which is developing an ethanol plant
      facility located at, (the "Plant") and which desires to establish an input
      origination and marketing risk management plan and an output-marketing
      contract.

	 	 
	
      B.
	
      FCStone,
      which is experienced in commodity transactions and related risk
      management, is willing to provide such assistance on the terms hereby
      stated.

	 	 
	
      C.
	
      Eco
      is a reseller in ethanol and is experienced in the marketing and
      transportation of such product, and is willing to agree to purchase the
      ethanol output of the Plant.







NOW,
THEREFORE, IT IS AGREED AS FOLLOWS BETWEEN THE PARTIES:

 


	
      1.
	
      FCStone
      and Eco Services. FCStone shall, during the term hereof,
      provide services to HA in the implementation of a full service price risk
      management program for HA (the "FCStone Program"). HA will have a full
      time risk manager of FCStone from an FCStone office to help in day-to-day
      grain marketing decisions. The FCStone services to be provided are set
      forth in Exhibit A attached hereto. Eco shall, during the term hereof,
      purchase the entire output of ethanol specified herein and to provide
      certain transportation services to HA (the "Eco Program"). The Eco
      services to be provided are set forth in Sections 2, 3 and 4 and the
      exhibits attached hereto which are referred to therein.

	 	 
	
      2.
	
      Eco
      Ethanol Output Purchases. HA agrees to sell to Eco, and Eco
      agrees to purchase from HA the entire output of ethanol of the Plant
      during the term, in good faith and at fair market rates. The terms of such
      transactions shall be fixed by agreement of HA and Eco established in good
      faith from time to time consistent with the provision of Exhibit B
      attached hereto.

	 	 
	
      3.
	
      Eco
      Denaturant Procurement. HA at HA's option can purchase their
      entire denaturant demand from Eco during the term or purchase of the
      denaturant on their own. The terms of such transactions shall be fixed by
      agreement of HA and Eco established in good faith from time to
      time.

	
       
	 
	
      4.
	
      Eco
      Transportation Services. Eco agrees to provide the
      transportation services set forth in Exhibit C. HA agrees to pay freight
      and assume railcar leases as provided in Exhibit
C.




 





















	
      5.
	Fees.
      







	 	
      (a)
	
      HA
      shall pay a fee for services of Eco and FCStone and materials provided
      hereunder of $ [***] per net gallon of ethanol produced
      during the Term. Such fees shall be payable monthly on an estimated basis
      on the first business day of each month during the term hereof, in advance
      to FCStone. FCStone shall remit a share of such fee to Eco as Eco and
      FCStone may agree. The initial estimated monthly payment shall be $
      [***] per month. The actual fees payable based upon
      actual production and the above quoted rate shall be computed every three
      (3) months and additional payment to FCStone or credits to HA's account
      shall be made, and the monthly fee adjusted, so as to accurately reflect
      the actual fees payable.

	 	 	 
	 	
      (b)
	
      In
      addition to such fees, HA shall also pay to FCStone any transaction
      commissions, fees, services charges or mark-ups arising from options,
      futures or other risk management or cash commodity transactions executed
      or brokered through FCStone, its affiliates, or others in accordance with
      their applicable schedules of rates, except that FCStone guarantees that
      the rate for exchange-traded futures and options contracts shall be not
      more than $10.00 per round turn, plus all applicable exchange fees, during
      the initial term hereof. Any OTC (over-the-counter) transactions will be
      $8.00 per round turn, plus any applicable fees, during the initial term
      hereof.











	
      6.
	
      HA
      Representative. HA shall designate one or more persons who
      shall be authorized and directed to receive services hereunder and to make
      all hedging and merchandising and purchasing and sales decisions for HA.
      All directions, transactions and authorizations given by such
      representative to FCStone or to Eco shall be binding upon HA. FCStone and
      Eco shall each be entitled to rely on the authorization of such persons
      until it receives written notification from HA that such authorization has
      been revoked.

	 	 
	
      7.
	
      Transactions
      with FCStone and FCStone Affiliates. HA understands,
      approves, authorizes, and agrees that FCStone as an advisor may recommend
      that HA enter into transactions where FCStone will act as a broker or
      futures commission merchant or where HA may enter into transactions with
      one or more companies which are under common ownership or control with
      FCStone, including, but not limited to, FCStone Trading, L.L.C. with
      respect to physical energy products and over the counter swaps and options
      and FGDI, L.L.C. with respect to cash grain. FCStone may also participate
      on HA's behalf in negotiations with one or more elevators, which are
      members of FCStone's parent company. All futures, swap or cash commodity
      transactions involving HA, FCStone and its affiliates shall be subject to,
      and shall be governed by, the applicable customer agreements, master
      agreements, confirmations, and other documentation
  thereof.











	
      8.
	
      FCStone
      Limitations. 




 



	 	
      (a)
	
      To
      the extent and if any brokerage services are provided by FCStone it will
      be to find suppliers or purchasers for HA. FCStone will not purchase or
      sell grain, nor will it be directly involved in the purchase of the grain
      involving HA. FCStone may give merchandising, purchasing and hedging
      advice to HA, but all decisions on purchasing, merchandising and hedging
      strategy will be made by HA. All hedging positions will be the
      responsibility of HA, in HA's account with FCStone or other relevant
      party. All positions shall be for the purpose of hedging against price
      risks associated with the HA's operations.




 _______________

[***] --
Material has been omitted pursuant to a request for confidential treatment and
such material has been filed separately with the Securities and Exchange
Commission.










2













	 	 	 
	 	
      (b)
	
      FCStone
      assumes no responsibility for the completion or performance of any
      contracts between HA and HA's customers and suppliers, and HA agrees that
      it shall not bring any action or make any claim against FCStone based on
      any act, omission or claim of any of HA's customers or
      suppliers.

	 	 	 
	 	
      (c)
	
      To
      the extent FCStone provides services relating to accounting systems, sole
      responsibility for the accuracy and completeness of HA's books and
      financial statements shall remain with HA. FCStone shall not be deemed to
      attest in any way to the accuracy of such books and financial
      statements.

	 	 	 
	 	
      (d)
	
      FCStone
      assumes no responsibility for tax advise, tax planning, or tax returns or
      tax reporting.





 


	
      9.
	
      Eco
      Limitations.











	 	
      (a)
	
      Eco
      assumes no responsibility for the completion or performance of any
      contracts between HA and HA's customers and suppliers, and HA agrees that
      it shall not bring any action or make any claim against Eco based on any
      act, omission or claim of any of HA's customers or
    suppliers.

	 	 	 
	 	
      (b)
	
      HA
      is responsible to cover all non-deliveries of any product that is
      contracted between ECO and HA in a timely manner in order to stay within
      the time parameters of the contract. ECO will assist in procuring product
      from other suppliers to cover the non-deliveries.

	 	 	 
	 	
      (c)
	
      If
      any party terminates this agreement for any reason, all parties will be
      responsible to complete any existing
contracts.












	
      10.
	
      Separability
      and Non-liability. The services, contracts and relationship
      between HA and FCStone and between HA and Eco are independent and
      separable. FCStone shall have no liability or responsibility to HA for the
      performance of Eco hereunder. Eco shall have no responsibility or
      liability for the performance of FCStone hereunder. Termination of this
      Agreement as between Eco and HA shall not impair the continuing
      relationship between FCStone and HA, and termination as between FCStone
      and Eco shall not impair the continuing relationship between Eco and HA.
      Termination of this Agreement as between FCStone and HA shall not impair
      the continuing relationship between ECO and HA.

	 	 
	
      11.
	
      Confidentiality
      Agreement. The parties have previously executed a
      Confidentiality and Nondisclosure Agreement. Such agreement shall remain
      in full force and effect and shall apply and govern all disclosure and use
      of confidential information hereunder.




 







3













	
      12.
	
      Public
      Disclosure. Any public announcements concerning the
      transaction contemplated by this Agreement shall be approved in advance by
      FCStone, ECO and HA, except for disclosures required by law, in which case
      the disclosing party shall provide a copy of the disclosure to the other
      party prior to its public release. As HA is subject to SEC filing
      requirements, and SEC required filings will not be subject to advance
      disclosure, except as allowed by the SEC.

	 	 
	
      13.
	
      Terms
      and Termination. 

	 	 








	 	
      (a)
	
      The
      initial term of this Agreement shall commence on the date hereof and shall
      continue for an initial term of one year from the date that the HA ethanol
      plant begins production. This contract will automatically renew for an
      additional term of one (1) year unless HA gives notice of non-renewal in
      writing to FCStone and to Eco at least four (4) months prior to the end of
      the initial term. At the renewal date FCStone, Eco and HA will discuss the
      fee rate and may at the agreement of all parties change the fee
      structure.

	 	 	 
	 	
      (b)
	
      This
      Agreement may be terminated by HA as to either FCStone or Eco in the event
      of material breach of any of the material terms hereof by such other
      party, by written notice specifying the breach, which notice shall be
      effective fifteen (15) days after it is given unless the receiving party
      cures the breach within such time. This Agreement may be terminated by
      either FCStone or Eco as to HA in the event of material breach of any of
      the material terms hereof by HA, by written notice specifying the breach,
      which notice shall be effective fifteen (15) days after it is given unless
      the receiving party cures the breach within such time. This Agreement may
      be terminated immediately without notice at the election of any party in
      the event of bankruptcy, or any other receivership or insolvency
      proceeding is filed by or against another party.

	 	 	 
	 	
      (c)
	
      This
      Agreement may also be terminated between any two parties by the mutual
      consent of any two of the parties on such terms as the parties may
      agree.

	 	 	 
	 	
      (d)
	
      In
      addition to any other method of terminating this Agreement, either FCStone
      or Eco may unilaterally terminate this Agreement at any time if such
      termination shall be required by any regulatory authority, and such
      termination shall be effective on the 30th day following the giving of
      notice of intent to terminate.












	
      14.
	
      Licenses,
      Bonds, and Insurance. Each party represents that it now has and will
      maintain in full force and effect during the term of this Agreement at its
      sole cost, all necessary state and federal licenses, bonds and insurance
      in accordance with applicable state or federal laws and
      regulations.

	 	 
	
      15.
	
      Limitation
      of Liability. EACH PARTY UNDERSTANDS THAT NO OTHER PARTY MAKES ANY
      GUARANTEE, EXPRESS OR IMPLIED, TO ANY OTHER OF PROFIT, OR OF ANY
      PARTICULAR ECONOMIC RESULTS FROM TRANSACTIONS HEREUNDER. IN NO EVENT SHALL
      ANY PARTY BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL
      DAMAGES FOR ANY ACT OR OMISSION COMING WITHIN THE SCOPE OF THIS AGREEMENT,
      OR FOR BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT, EVEN IF IT HAS
      BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH EXCLUDED DAMAGES
      INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF GOOD WILL, LOSS OF PROFITS, LOSS
      OF USE AND INTERRUPTION OF
BUSINESS.




 







4













	
      16.
	
      Disclaimer.
      HA understands and agrees that FCStone and Eco make no warranty respecting
      legal or regulatory requirements and risks. HA shall obtain such legal and
      regulatory advice from third parties as it may deem necessary respecting
      the applicability of legal and regulatory requirements applicable to HA's
      business.

	 	 
	
      17.
	
      Indemnity.
      HA agrees to indemnify FCStone, Eco and their brokers, officers, agents
      and employees and hold them harmless from and against any claims, demands,
      liability or expense, including attorney fees and other litigation
      expenses, arising out of claims by HA's customers or
      suppliers.

	 	 
	
      18.
	
      Nature
      of Relationship. FCStone and Eco are independent contractors
      providing services to HA. No employment relationship, partnership or joint
      venture is intended, nor shall any such relationship be deemed created
      hereby. Each party shall be solely and exclusively responsible for its own
      expenses and costs of performance.

	 	 
	
      19.
	
      Notices.
      Any notices permitted or required hereunder shall be in writing, signed by
      an officer duly authorized of the party giving such notice, and shall
      either be hand delivered or mailed. If mailed, notice shall be sent by
      certified, first-class, return receipt requested, mail to the address
      shown above, or any other address subsequently specified by notice from
      one party to the other.

	 	 
	
      20.
	
      General.
      





 



	 	
      (a)
	
      This
      Agreement is the entire understanding of the parties concerning the
      subject matter hereof, and it may be modified only in writing signed by
      the parties. All commodities futures, options, and swap transactions shall
      be subject to the customer or master agreements between HA and FCStone,
      its affiliates, or others. The parties may enter into other agreements in
      writing, including, but not limited to service agreements, customer
      agreements and master agreements with respect to commodity futures options
      and swaps.

	 	 	 
	 	
      (b)
	
      If
      any provision or provisions of this Agreement shall be held to be invalid,
      illegal or unenforceable, the validity, legality and enforceability of the
      remaining provisions shall not in any way be affected or impaired
      thereby.

	 	 	 
	 	
      (c)
	
      No
      party shall be liable for any failure to perform any or all of the
      provisions of this Agreement if and to the extent that performance has
      been delayed or prevented by reason of any cause beyond the reasonable
      control of such party. The expression "cause beyond the reasonable
      control" shall be deemed to include, but not limited to: acts,
      regulations, laws, or restraints imposed by any governmental body; wars,
      hostilities, sabotage, riots, or commotions; acts of God; or fires, frost,
      storms, or lightning.

	 	 	 
	 	
      (d)
	
      This
      Agreement is not intended to, and does not, create or give rise to any
      fiduciary duty on the part of any party to any
other.




 







5













	 	
      (e)
	
      No
      action, regardless of its nature or form, arising from or in relation to
      this Agreement may be brought by either party more than two (2) years
      after the cause of action has arisen, or, in the case of an action for
      nonpayment, more than two (2) years from the date the last payment was
      due. Venue for any action arising from or in relation to this Agreement
      shall be in Pierce County, Nebraska.

	 	 	 
	 	
      (f)
	
      This
      Agreement is governed by and shall be construed under the laws of the
      State of Iowa.

	 	 	 
	 	
      (g)
	
      This
      Agreement shall be binding upon and inure to the benefit of the parties
      and the successors and assigns of the entire business and goodwill of
      FCStone, Eco or HA, but shall not be otherwise assignable without the
      express consent of the other parties.








DATED AND
EXECUTED AS OF THIS 27 DAY OF NOVEMBER, 2002.

 



	HUSKER AG, LLC	 	 	 
	 	 	 	 
	BY: /s/
      O. Kelly
      Hodson                 	 	 	 
	
      

    	 	 	 
	FC STONE, L.L.C.	 	 	 
	 	 	 	 
	BY:
      /s/
      [Illegible]                          
       	 	 	 
	
      

    	 	 	 
	ECO-ENERGY	 	 	 
	 	 	 	 
	BY:
      /s/ Larry Beckwith, President	 	 	 
	
      

    	 	 	 



 







6














EXHIBIT
A




FCStone
Services




FCStone
will provide the following services based on sound risk management principles,
using FCStone's Basis Trading experience together with the futures and options
markets to reduce HA's exposure to commodity price changes.





	 	
      I.
	
      General
      Scope.
      FCStone will provide advice, assistance and risk management with respect
      to HA's grain origination, energy and transportation, procurement and
      output sales.








	 	
      II.
	
      Consulting
      Services and Program:
      FCStone services to HA shall fall into two (2)
  categories.








	 	
      1)
	
      FCStone
      shall provide HA with price risk management evaluation, review and advice
      in relation to use of Corn and/or any other grain products as they relate
      to the day-to-day operations of the plant.








	 	
      2)
	
      FCStone
      shall provide HA with price risk management evaluation, review and advice
      in relation to use of Natural Gas and/or any other energy products as they
      relate to the day-to-day operation of the
plant.







Such
services to be summarized monthly/annually in a detailed report prepared by
FCStone for the HA staff/board, and accordingly to their satisfaction in terms
of content and accountability.





	 	
      III.
	
      Internal
      Risk Management Procedures:








	 	
      A.
	
      Risk
      management guidelines and controls.
      Risk management recommendations regarding position limits, strategies,
      credit exposure and volumes will be presented for management and board
      approval








	 	
      B.
	
      Assist
      in Establishing Corporate Risk Policy - Assess Risk Profile - Define Hedge
      Objective.




 







7












EXHIBIT
B




ECO
Services - Ethanol




Eco shall
purchase the entire ethanol output of HA's Plant on the following
terms:





	 	
      1.
	
      HA
      can terminate contract if Eco does not pay within net 5 business days of
      Invoice, Bill of Lading (BOL), Return Bill of Lading (RBOL) and
      certificate of Analysis (COA).








	 	
      2.
	
      Eco
      will pay net 3 business days upon receipt of Invoice, BOL, RBOL, and
      COA.








	 	
      3.
	
      HA
      is responsible for any and all local, state and federal tax
      liabilities.








	 	
      4.
	
      Eco
      will provide scheduling and marketing for ethanol
  produced.








	 	
      5.
	
      Eco
      will be responsible for receivables risk on
ethanol.








	 	
      6.
	
      Eco
      reserves the right to refuse business to anyone due to credit or market
      risk








	 	
      7.
	
      HA
      shall meet or exceed all specifications for E-grade denatured fuel ethanol
      as well as any changes in fuel ethanol industry standards that might occur
      after the execution of this agreement.








	 	
      8.
	
      HA
      will keep Eco informed on production forecasts, as well as daily plant
      inventory balances.








	 	
      9.
	
      On
      rail car shipments title of ethanol will transfer as the product passes
      over the destination delivery flange unless otherwise specified. In these
      cases Eco is purchasing the ethanol on a CIF delivered basis. On truck
      shipments title of the ethanol will pass at the loading flange between the
      plant and the truck unless otherwise specified. In these cases Eco is
      purchasing the ethanol on a FOB HA plant
basis.








	 	
      10.
	
      HA
      will provide a minimum of 10 days storage on the HA
  site.








	 	
      11.
	
      HA
      must have meters that measure both gross and net 60 degrees Fahrenheit
      temperature corrected gallons.








	 	
      12.
	
      Eco
      shall deduct all unavoidable costs such as government tariffs or
      assessment fees, sales taxes, import/export handling fees, assessments,
      inspection fees, or any other that has been approved by the appropriate
      member of the board of directors.








	 	
      13.
	
      Eco
      will procure all Natural Gasoline (denaturant) for HA if HA so wishes
      otherwise HA could purchase the denaturant for the plant
      themselves.




 

EXHIBIT
C























Eco
Services - Transportation




1. Eco will
lease all railcars for HA. All leases will be in the name of Eco.





	
      2.
	
      Eco
      will estimate the number of railcars needed for HA. If HA chooses to end
      the contract, they will be responsible to take over all railcar
      leases.








	
      3.
	
      Eco
      will negotiate rail rates on behalf of HA.








	
      4.
	
      All
      rail contracts will be in the name of HA.








	
      5.
	
      HA
      will invoice Eco for rail freight along with a copy of the actual railroad
      invoice. (This amount will be paid on a net 3 business days upon receipt
      of invoice.)








	
      6.
	
      Eco
      will purchase all truck gallons on an FOB plant
basis.








	
      7.
	
      Eco
      will supply all trucks.