**Exhibit 10.33**

 

**TEMPORARY AMENDMENT**

**TO PURCHASE AGREEMENT**

 

                This **Temporary Amendment to Purchase Agreement** (“**Agreement**”) dated as of the date first setforth below (the “Effective Date”) is entered into by and between **Great Plains Ethanol, LLC**, a South Dakotalimited liability company (the “**Buyer**”),with, for purposes of this Agreement, an address of 27716 462nd Ave.,Chancellor, South Dakota 57015, and **MuellerPallets, LLC**, a South Dakota limited liability company (the “**Seller**”), with, for the purposes of thisAgreement, an address of 27059 Mueller Place, Sioux Falls, South Dakota 57108.

 

**RECITALS**

 

                **WHEREAS**, Seller is in the business of selling scrap woodenpallets, wood chips and related scrap wood products (the particular “**Product**” which Buyer shall purchase pursuant to thisAgreement is more specifically defined in Article IV, below);

 

                **WHEREAS**, Seller and Buyer entered into a Purchase Agreementdated December 27, 2006 (the “**Initial Purchase Agreement**”)(a copy of which is attached hereto as Exhibit A and incorporatedherein by this reference) whereby Buyer agreed, subject to certain terms andconditions to purchase Product from Seller;

 

                **WHEREAS**, Seller and Buyer desire to temporarily modify theterms of the Initial Purchase Agreement by and through this Agreement;

 

                **WHEREAS**, Seller and Buyer acknowledge and agree that thisAgreement shall be in substitution of all duties and obligations of the partiesarising under the Initial Purchase Agreement for that period of time from December 1,2007 through and including July 18, 2008, subject to extension by Buyer ona week-to-week basis, but only for that period from July 18, 2008 throughand including September 1, 2008, upon notice to Seller (the “**Substituted Agreement Period**”); and

 

                **WHEREAS**, Seller and Buyer acknowledge and agree that, uponexpiration of the Substituted Agreement Period, this Agreement shall expire andall duties and. obligations under the Initial Purchase Agreement shall againbecome valid and enforceable for the remainder of the term of the InitialPurchase Agreement (as set forth in Article III of the Initial PurchaseAgreement).

 

                **NOW THEREFORE**, in consideration of mutual covenants containedherein, the parties agree, for the duration of the Substituted AgreementPeriod, as follows:

 

 

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**ARTICLE I**

**Quantity and Payments**

 

                In substitution of itsobligations to make purchases from Seller under the Initial Purchase Agreementfor that period from December 1, 2007 though the expiration of the SubstitutedAgreement Period, Buyer shall purchase and prepay from Seller a total of 13,860tons of Product. Buyer commits to purchase and prepay for Fifteen ThousandDollars ($15,000.00) of Product per week for thirty-three (33) weeks for aprepay purchase total of Four Hundred Ninety-Five Thousand Dollars($495,000.00) during the Substituted Agreement Period. Such purchases by Buyerand payments to Seller shall be deemed full satisfaction of Buyer’s obligationsunder the Initial Purchase Agreement for that period from December 1,2007, through and including July 18, 2008, subject to Buyer’s right toextend the Substituted Agreement Period on a week-to-week basis upon notice toSeller. The first eleven (11) of the thirty-three (33) payments shall be madeby Buyer to Seller by personal delivery of a check to Seller’s business nolater than February 20, 2008 in the amount of $l65,000.00. If theSubstituted Agreement Period is extended by Buyer as allowed herein, Buyershall make additional $15,000.00 payments to Seller, one such payment for eachweek the Substituted Agreement Period is extended by Buyer. In addition to the$165,000 payment, Buyer shall pay to Seller the sum of $6,600.00 in sales taxas part of the initial payment. This payment of $165,000 plus applicable salestax shall be for 4,620 tons of Product which Seller shall store for Buyerpursuant to the terms of Article II of this Agreement unless otherwisedirected by Buyer.

 

                Buyer shall make the remainingpayments on a weekly basis, with payments to be made on Thursday of each week;unless such day is a holiday then payment shall be made on the next businessday that is not a legal holiday until the remaining twenty-two (22) paymentsare made.  For purposes of this Article I,a payment is deemed made when deposited with the United States Postal Service,first class postage prepaid. All payments shall be subject to applicable stateand local sales taxes and the actual amount of the weekly payment from Buyer toSeller shall be adjusted to include applicable taxes. Seller shall provideBuyer with the amount of sales tax due on a per payment basis. Seller shallissue receipts for each payment received from Buyer on a weekly basis recitingthe amount of the payment, applicable sales taxes included.

 

**ARTICLE II**

**Storage**

 

                Seller shall store, at Seller’splace of business or such other locations designated and used by Seller forstorage, all of Buyer’s Product purchased and prepaid pursuant to 

 

 

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thisAgreement.  Buyer acknowledges thatSeller will stockpile Buyer’s Product at several different locations.  Buyer shall have the right to personallyinspect such stockpiles upon 24 hours notice to Seller and during Seller’snormal business hours. In the absence of Seller’s gross negligence or willfulmisconduct, the risk of loss for the Product shall be on Buyer.

 

**ARTICLE III**

**Term**

 

                The Term of this Agreement shallbe for the Substituted Agreement Period, as defined above.  Upon the expiration of the Term of thisAgreement, the Initial Purchase Agreement shall again become valid andenforceable obligations of the parties and for the remainder of the term of theInitial Purchase Agreement (as set forth in Article III of the InitialPurchase Agreement).

 

**ARTICLE IV**

**Product**

 

                The Product to be purchased byBuyer from Seller pursuant to this Agreement shall be “2” minus” “wet” Product.The acceptable moisture range of the Product shall be 15% to 30% upon deliveryto Buyer.

 

**ARTICLE V**

**Delivery of Product and Fuel-Related Surcharge**

 

                                                A.            **Deliveryof Product**. Unless the Substituted Agreement Period is extended byBuyer, Seller shall store the Product on behalf of Buyer until the 18th day of July 2008.  If Buyer is not prepared to begin acceptingshipments of the stored Product on July 18, 2008 or the last of theweek-to-week extensions of the Substituted Agreement Period, if any, Buyeragrees to make alternative arrangements for the Product’s storage given thelimited space available for Seller to store Buyer’s Product.

 

                The stored Product shall bedelivered as follows: Subject to Buyer’s right to  extend the Substituted Agreement Period, asof July 18, 2008, the Initial Purchase Agreement shall take effect andBuyer must begin purchasing and receiving a minimum of 150 tons per day ofProduct from Seller pursuant to the terms of the Initial Purchase Agreement.Provided Buyer has purchased the minimum of 150 tons per day, Buyer may alsorequest that Seller deliver up to an additional 84 tons per day (i.e., fourtruckloads) of the stored Product. Such delivery of the additional product willdepend upon the availability of Seller’s trucks on any particular date, butSeller agrees to make delivery of the stored Product to Buyer itspriority.  Seller shall deliver thestored Product to Buyer’s 

 

 

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placeof business (to that area designated by Buyer for receipt and storage of theProduct) located near Chancellor, South Dakota, as instructed by Buyer.  Should Buyer want the stored Product deliveredelsewhere, Seller will advise Buyer of increase in cost due to additionaltransportation charges, if any, prior to such delivery and Buyer shall pay suchincrease in cost if Buyer desires to have the Product delivered to thealternative location. Seller shall make all deliveries of Product during Buyer’snormal hours of operation.  Buyer shallprovide Seller with a proposed delivery schedule for both the new Product andthe stored Product on a week-by-week basis at least one week in advance of theweek of delivery.  Seller may alter Buyer’sdelivery schedule upon a three (3) day notice to Buyer.

 

                B.   **Fuel-RelatedSurcharge**. Upon delivery of the stored Product, Buyer shall paySeller any Fuel-Related Surcharge as defined in Article IV, subsection C ofthe Initial Purchase Agreement.  The FuelRelated Surcharge will be invoiced by Seller to Buyer at the time ofdelivery.  Any state or local sales taxespayable on the Fuel Related Surcharge shall be included in such invoices. Allsuch invoices shall be paid to Seller by Buyer no later than the last day ofthe month in the month immediately following the month in which the invoicesare received by Buyer from Seller.

 

                C.   **Contentsof Product**.  Seller shallprovide Product of such quality as set forth in Article V, subsection B ofthe Initial Purchase Agreement.

 

                D.   **Examinationof Goods**.  Buyer has the rightto examine the Product upon receipt. Buyer shall have a period often (10) days after receipt of anyparticular delivery of Product in which to reject the Product or to notifySeller of any claim for damages based on the condition, grade, quality orquantity of the Product.  Any particulardelivery of Product to Buyer shall be deemed accepted by Buyer unless Sellerreceives notice pursuant to this Article V.

 

**ARTICLE VI**

**Seller’s Warranties**

 

**                                               **A.            **Availabilityof Product**. In the event that the all of the stored Product is notavailable to Buyer as a result of Seller’s gross negligence or willfulmisconduct, Seller will procure like Product from another source to fulfill allof Seller’s obligations hereunder and Seller shall provide the same to Buyerfor the price set forth in this Agreement. In the event Seller is unable to procure like Product to fulfill itsobligations, Seller will reimburse Buyer for the costs of any replacementProduct purchased by Buyer less the price set forth in this Agreement. Sellershall further reimburse Buyer for any and all additional costs associated withBuyer’s purchase of substitute Product including, but not limited to increasedcosts of transportation.

 

 

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                                                B.            **Qualityof Product**. Seller shall, at all times, exert best efforts and alldue diligence to assure that the Product is suitable for the intended use byBuyer.  In addition, Seller shall takeall actions, within the control of Seller, to assure that the quality ofProduct remains reasonably constant such that all Product shall be suitable forBuyer’s intended use. For purposes of this Agreement, if the delivered Productconforms with the requirements of Article IV and Article V subsectionC, above, it shall be considered suitable for Buyer’s intended use. Sellershall not sell to Buyer any Product that does not comply with Article IVand Article V subsection C, above.

 

                                                C.            **ProductUnencumbered**. Seller expressly warrants that the stored Product shallbe, at all time, free from any and all security interest, liens, andencumbrances, except security interests in the Product granted to Buyer bySeller.

 

                                                D.            **Authority**.Seller expressly warrants that the individual executing this Agreement onbehalf of Seller is frilly authorized to do so and that no further action orconsent on the part of Seller or any representative of Seller is necessary tobind Seller to this Agreement and to allow enforcement of the terms andconditions of this Agreement against Seller.

 

**ARTICLE VII**

**Default**

 

                                                A.            **Eventsof Default**. The failure by Buyer or Seller to comply with any term, conditionor obligation arising under this Agreement shall constitute a default (“Default”).Upon Default, the Non-defaulting Party shall give the Defaulting Party writtennotice of the specific Default and shall allow Defaulting Party five (5) daysto cure the Default.

 

                                                B.            **Remedies**.  Upon an uncured Default, Non-Defaulting Partyshall be entitled at its discretion to exercise any and all remedies availableto it at law or in equity including, but not limited to, termination of thisAgreement without further notice and recovery of general damages, consequentialdamages, any applicable injunctive relief and costs (including reasonableattorneys’ fees). The Non-Defaulting Party may also exercise its right tocontinue this Agreement upon notice to the Defaulting Party, despite thedefault and any resulting recovery.

 

**ARTICLE VIII**

**Insurance**

 

                                                A.            **Workers’Compensation**. Seller warrants to Buyer that all of Seller’s

 

 

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employees,who may make deliveries to or who may otherwise be on Buyer’s property, shallbe covered (if required) by applicable workers’ compensation laws.

 

                                                B.            **AutomobileInsurance**. Seller agrees to carry insurance on its vehicles operatingon Buyer’s property in amounts satisfactory to Buyer.

 

                                                C.            **CommercialGeneral Liability**.  During theTerm of this Agreement, Seller shall purchase and maintain Commercial GeneralLiability insurance with combined single limits of not less than $1,000,000.00and the policy shall be endorsed to require a thirty (30) day advance writtennotice to Buyer of termination, cancellation or any other material change tosaid policy.

 

                                                D.            **Insuranceon Product**.  Seller’sinsurance provides coverage for three “piles” of Product at $25,000 for eachpile. Buyer may provide additional insurance coverage, at Buyer’s option.

 

                                                E.             **Proofof Insurance**.  Seller shall,on an annual basis or upon renewal, whichever period of time is less, provideproof of the existence of the foregoing policies of insurance to Buyer.

 

**ARTICLE IX**

**Miscellaneous Provisions**

 

                                                A.            **Indemnification**.  Seller shall indemnify and hold harmlessBuyer and its respective owners, officers, managers, directors, otheremployees, agents, and assigns from any and all claims, damages, liabilities,attorneys’ fees and expenses arising out of Seller’s violation of any of theterms and conditions of this Agreement or any and all claims, damages,liabilities, attorneys’ fees and expenses arising out of any claim based uponthe Product sold by Seller to Buyer or the acts or omissions of Seller. In thesame manner, Buyer shall hold Seller harmless for any and all claims, damages,liabilities, attorneys’ fees and expenses arising out of any claim based uponBuyer’s use of the Product, Buyer’s violation of any of the terms andconditions of this Agreement, or the acts or omissions of Buyer.

 

                                                B.            **Expensesof Enforcement**.  If Buyer orSeller breaches or threatens to breach any of the covenants described in thisAgreement, then, in addition to any of the rights and remedies which theNon-Breaching Party may have against the Breaching Party, the Breaching Party willbe liable to pay the Non-Breaching Party’s court costs and reasonable attorneysfees incurred in enforcing this Agreement.

 

                                                C.            **Severability**.  If any provision of this Agreement shall beheld by a court of

 

 

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competentjurisdiction to be unenforceable or invalid, the remaining provisions willremain in full force and effect. If any provision of this Agreement is held tobe overbroad as written, the provision shall be deemed amended to narrow itsapplication to the extent necessary to make it enforceable to the fullestextent allowable.

 

                                                D.            **Successorsand Assigns**.  This Agreementshall inure to the benefit of, and be valid, enforceable and binding upon, thebeneficiaries, heirs, successors, assigns, and transferees of both Seller andBuyer. Neither party may assign this Agreement without the express writtenconsent of the other party, such consent not to be unreasonably withheld.

 

                                                E.             **Presumptions**.  In construing the terms of this Agreement, nopresumption shall operate in either party’s favor as a result of counsel’s rolein drafting this Agreement’s terms or provisions.

 

                                                F.             **Waiverof Breach**.  The waiver byBuyer or Seller of a breach of any covenant of this Agreement shall not operateor be construed as a waiver of any subsequent or later breach by Buyer orSeller.  No waiver by Buyer or Sellershall be effective unless in writing.

 

                                                G.            **TextControls**.  The headings ofparagraphs and sections are included solely for convenience. If a conflictexists between any heading and the text of this Agreement, the text shallcontrol.

 

                                                H.            **GoverningLaw**.  All rights andobligations arising out of or relating to this Agreement shall be governed byand construed in accordance with the laws of the State of South Dakota..

 

                                                I.              **ForceMajeure**.  Neither Seller orBuyer will be liable to the other for any failure or delay in performance ofany obligation under this Agreement due to events beyond its control,including, but not limited to, fire, storm, flood, earthquake, explosion, actof a public entity or terrorism, riots, civil disorders, sabotage, strikes,lockouts, labor disputes, labor shortages, war, stoppages or slowdownsinitiated by labor, transportation embargoes, acts of God, or acts orregulation or priorities of the federal, state or local government or branchesor agencies thereof.

 

 

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(Signature pages follow)

 

 

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                Dated this ____ day of February,2008.

 
| ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | **MUELLER PALLETS, LLC** |
|------------|------------|------------|------------|------------|------------|------------|--------------------------|
|       |       |       |       |       |       |       |                     |   |
|       |       |       |       |       |       |       | By:                      | /s/  Margaret E. Mueller |
|       |       |       |       |       |       |       |                     | Margaret  E. Mueller, Manager |

 
| STATE  OF SOUTHDAKOTA | ) |
|-----------------------|---|
|                  | : |
| COUNTY  OF MNNEHAHA   | ) |

 

                On this 20th day ofFebruary, 2008, before me, the undersigned officer, personally appeared, **Margaret E. Mueller**, who acknowledgedherself to be the Manager of Mueller Pallets, LLC, a South Dakota limitedliability company, and that she as such Manager, being authorized so to do,executed the same for purposes therein contained.

 

                IN WITNESS WHEREOF, I hereuntoset my hand and official seal.

 
|   |   |   |   | /s/  Michelle DeJong                      |   |   |
|--------|--------|--------|--------|-------------------------------------------|--------|--------|
|   |   |   |   | Notary  Public                            |   |   |
|   |   |   |   |                                      |   |   |
| (SEAL) |   |   |   | My  Commission Expires: Feb. 8, 2011 |

 

 

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                Dated this ____ day of February,2008.

 
| ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | **GREAT PLAINS ETHANOL, LLC** |
|------------|------------|------------|------------|------------|------------|------------|-------------------------------|
|       |       |       |       |       |       |       |                          |   |
|       |       |       |       |       |       |       | By:                           | /s/  Rick Serie |
|       |       |       |       |       |       |       |                          | Rick  Serie, Manager |

 
| STATE  OF SOUTH DAKOTA | ) |
|------------------------|---|
|                   | : |
| COUNTY  OF MINNEHAHA   | ) |

 

                On this 20th day ofFebruary, 2008, before me, the undersigned officer, personally appeared, **Rick Serie**, who acknowledged himself to bethe Manager of Great Plains Ethanol, LLC, a South Dakota limited liabilitycompany, and that he as such Manager, being authorized so to do, executed thesame for purposes therein contained.

 

                IN WITNESS WHEREOF, I hereuntoset my hand and official seal.

 
|   |   |   |   | /s/  Michelle DeJong                      |   |   |
|--------|--------|--------|--------|-------------------------------------------|--------|--------|
|   |   |   |   | Notary  Public                            |   |   |
|   |   |   |   |                                      |   |   |
| (SEAL) |   |   |   | My  Commission Expires: Feb. 8, 2011 |

 

 

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**Exhibit A**

 

“Initial Purchase Agreement”

 

 

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**PURCHASEAGREEMENT**

 

                This **Purchase Agreement** (“Agreement”) is between Great PlainsEthanol, LLC, a South Dakota limited liability company (the “Buyer”), with, forpurposes of this  Agreement, an addressof 27716 462nd Ave., Chancellor, South Dakota 57015 and Mueller Pallets, LLC, aSouth Dakota limited liability company (the “Seller”), with, for the purposesof this Agreement, an address of 27059 Mueller Place, Sioux Falls, South Dakota57108.

 

**RECITALS**

 

                **WHEREAS**, Seller is in the business of selling scrap woodenpallets, wood chips  and related scrapwood products (collectively “Product”);

 

                **WHEREAS**, Seller wants to enter into a contract to sell Productto Buyer;

 

                **WHEREAS**, Seller is ready, willing and able to sell the Productto the Buyer under the terms outlined in this Agreement; and

 

                **WHEREAS**, Seller acknowledges and agrees that this Agreementdoes not guarantee Buyer will purchase any Product beyond the minimum quantitydesignated herein.

 

                **NOW THEREFORE**, in consideration of mutual covenants contained herein,the parties agree as follows:

 

**ARTICLE I**

**Quantity**

 

**                                               **A.            **Minimumand Maximum Product Purchase**. Commencing on December1, 2007, Buyer commits topurchase a minimum of one hundred fifty (150) tons of Product per day fromSeller for each business day except legal holidays (“Minimum Purchase Amount”).Seller will deliver Product to Buyer only on regular business days. Buyer mayalso close its facilities or cease operations at its facilities for up totwenty (20) business days in any calendar year. During these times, Buyer is not required to purchase the MinimumPurchase Amount. If Buyer’s facility is closed for more than twenty (20) daysin any calendar year, however, Buyer will not be excused from its obligation topurchase the Minimum Purchase Amount. The actual amount of Product purchasedwill be based on an average per month. For instance, Buyer may purchase onehundred twenty (120) tons of Product on one day, and one hundred eighty (180)tons of Product on a 

 

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succeedingday, but Buyer’s purchases of Product for any given month shall average aminimum of one hundred fifty (150) tons of Product per day.

 

                Buyer shall also have a firstright of refusal for all amounts of Product produced by Seller in excess of theMinimum Purchase Amount. For all such amounts in excess of the Minimum PurchaseAmount, Seller shall notify Buyer of the existence of those excess amounts andshall provide to Buyer an estimate of such excess amounts and the date uponwhich those excess amounts will be available for purchase by Buyer.  Buyer shall have three (3) business daysfrom the receipt of such notice to exercise its first right of refusal and toprovide notice to Seller of such exercise. The pricing for all amounts purchased in excess of the Minimum PurchaseAmount shall be in accordance with, and shall not deviate from, those pricesset forth in Article IV, below.

 

                                                B.            **WeeklyEstimates to Seller**.  Buyerwill provide weekly requests to Sellerestimating the amount of Product that Buyerwill purchase in the following week. Buyer shall provide this information toSeller no later than the Tuesday immediately preceding the week in which theProduct is to be delivered by Seller. Should the designated request day fall ona legal holiday or other day in which Buyer’s office is not open for generalbusiness, the request shall be submitted the next day which is not a legalholiday or on which the Buyer’s office is open for general business. Thedesignated request day may be changed by agreement of the parties and lack ofsuch request from Buyer to Seller shall not, in any way, excuse Seller frommaking available to Buyer the Minimum Purchase Amount.

 

**ARTICLE II**

**Condition Precedent**

 

                Seller agrees and acknowledgesthat this Agreement shall be unenforceable against Buyer or Seller until suchtime as Buyer’s Board of Managers approves and ratifies this Agreement.  The signing of this Agreement by anauthorized representative of Buyer is not to be construed as approval andratification by the Buyer’s Board of Managers. Seller agrees that upon Seller’sexecution of this Agreement, Seller’s commitment to supply Product to Buyerwill remain in effect for ninety (90) business days to enable Buyer to obtainall financing it deems necessary, in its sole and absolute discretion, and toobtain approval from Buyer’s Board of Managers. Should Buyer not obtainapproval from its Board of Managers within ninety (90) days after Seller’sexecution of this Agreement, Seller may — at its sole option — terminate thisAgreement upon written notice to Buyer.

 

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**ARTICLE III**

**Term**

 

                The Term of this Agreement shallbe for a period of ten (10) years, commencing on December 1, 2007 (“Term”).

 

**ARTICLE IV**

**Price and Payment**

 

                                                A.            **InitialPurchase Price — “Dry” Product**. Buyer shall pay to Seller $38.00per ton (“Purchase Price”)of “dry” “2” minus” Product delivered to Buyer. The Purchase Price shallinclude handling, shipping and all similar charges, unless the Fuel-RelatedSurcharge, below, is applicable at any given time.  In such instance the Purchase Price shall bealtered accordingly.  This material shallbe less than fifteen percent (15%) moisture to be considered “dry” material.

 

                                                i.                                          Buyer andSeller agree that the first twenty (20) loads of “dry” Product delivered toSeller by Buyer will be weighed and the average of those loads used as thetonnage for all subsequent loads delivered by Buyer to Seller.  Buyer shall have the right to weighadditional loads in the same manner as set forth above at such times andintervals as deemed necessary by Buyer. In the event subsequent weights deviate from the initial weighing andaveraging, Buyer and Seller shall adjust subsequent deliveries accordingly.

 

                                                B.            **InitialPurchase Price “Wet” Product**. The Purchase Price for “2”minus” “wet” Product shallbe $35.00 per ton delivered. The tonnage for a wet load will be the averagetonnage for a “dry” load as set forth above, with Seller paying $3.00 per tonless for a “wet” load.  This materialshall be between 15% to 50% moisture to be considered “wet” material. Absentwritten direction from Buyer to the contrary, no more than twenty-five (25%) ofthe total Product delivered to Buyer in any given month shall be “wet” Product,unless approved by Buyer.

 

                                                C.            **FuelRelated Surcharge**.  In theevent that the price of diesel fuel, as usedby the Seller, exceeds $3.25 per gallon,then, and only as to loads delivered during the time of diesel fuel prices inexcess of $3.25 per gallon, a surcharge shall be added to the Purchase Pricefor each such load (“Fuel-Related Surcharge”). The Fuel-Related Surcharge shallbe added at a rate of $17.50 per load for each whole increment of $0.25 pergallon of diesel fuel in excess of $3.25 per gallon. For example, theFuel-Related Surcharge will be calculated as follows: $3.26 - $3.50 per gallon=$17.50 per load; $3.51 - $3.76 per gallon = $35.00 per load; $3.77 - $4.02 pergallon = $52.50 per load; $4.03 - $4.28 per gallon = $70.00 per load; $4.29 -$4.54 per gallon = $87.50 per load etc.

 

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                                                D.            **Adjustmentto Purchase Price**. No adjustment (other than theFuel-Related Surcharge) tothe Purchase Price for any Product shall be made during the first three (3) yearsof the Term of this Agreement. On January 1, 2011 and on January 1 ofeach succeeding year of the remainder of the Term of this Agreement (“Price  Adjustment Date”), the Purchase Price forProduct may, by mutual agreement of the parties, be increased by a maximum offour percent (4%) per year, but only upon sufficient proof from Seller to Buyerthat Seller’s costs of raw materials has increased over the twelve (12) monthperiod prior to the Price Adjustment Date. Such proof shall be submitted to Buyer on the 15th day of December priorto the next Price Adjustment Date.  It isthe intent of the parties that the Purchase Price only be adjusted inaccordance with the actual increase in raw materials cost to the Seller.  However, in no instance shall the adjustmentto the Purchase Price exceed four percent (4%) on any one Price AdjustmentDate.

 

                For instance, if Sellerdemonstrates (by providing invoices, statements, bills, orotherwise) that Seller’scost of raw materials increased by two percent (2%) over a twelve (12) monthperiod prior to a Price Adjustment Date, then the Purchase Price shall beincreased by a like two percent (2%).  IfSeller similarly demonstrates that Seller’s cost of raw materials increased bysix percent (6%) over a twelve (12) month period prior to a Price AdjustmentDate, the Purchase Price shall be increased, but only by the maximum fourpercent (4%) agreed to hereunder.

 

                                                E.             **Payment**.  Seller shall invoice Buyer for the Productdelivered on amonthly basis.Buyer shall pay the invoices, in full, within thirty (30) days of receipt.

 

**ARTICLE V**

**Delivery of Product and Examination of Goods**

 

**                                               **A.            **Deliveryof Product**. Seller shall deliver the Product to Buyer’s facilitylocated near Chancellor,South Dakota. Should Buyer want the Product delivered elsewhere, Seller willadvise Buyer of increase in cost due to additional transportation charges, ifany, prior to such delivery and Buyer shall pay such increase in cost if Buyerdesires to have the Product delivered to the alternative location. Seller shallmake all deliveries of Product during Buyer’s normal hours of operation.  Seller shall provide Buyer a deliveryschedule on a week-by-week basis at least one week in advance of the week ofdelivery.  Buyer may alter Seller’sdelivery schedule upon a three (3) day notice to Seller.

 

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                                                B.            **Contentsof Product**.  Seller shallprovide Product of such quality asrequired by Buyer and any rules, ordinances,regulations, or laws that govern the operation of the business of Buyer and itsfuel grade ethanol production facility. Without limiting the generality of the foregoing, Seller shall notdeliver any Product that includes non-approved materials such as plastics, treatedwoods (i.e. green treated wood), railroad ties, treated pilings, painted wood,stained wood, or any other wood which contains petroleum products or otherchemicals which do not occur naturally in wood. Buyer acknowledges, however, that Seller has previously provided asample of Product for a test burn by Buyer. The sample provided by Seller was sufficient to meet or exceed Buyer’srequirements.  As long as Sellercontinues to provide Product at least equivalent to that provided in thesample, Seller shall be in compliance with the terms of this paragraph.  However, Buyer shall have the right, in itssole and absolute discretion, to conduct similar test burns to confirm that thequality of the Product continues to meet or exceed Buyer’s requirements for itscompliance with state and federal statutes, regulations, and rules, as the casemay be.  Buyer agrees to provide Sellerwith the results from the first test bum as well as the results of anysubsequent test burns conducted by Buyer.

 

                                                C.            **Examinationof Goods**. Buyer has the right to examine the Product uponreceipt.  Buyer shall have a period of 10 days afterreceipt of any particular delivery of Product in which to reject the Product orto notify Seller of any claim for damages based on the condition, grade,quality or quantity of the Product. Any particular delivery of Product to Buyershall be deemed accepted by Buyer unless Seller receives notice pursuant tothis Article V.

 

**ARTICLE VI**

**Seller’s Warranties**

 

                                                A.            **Availabilityof Product**. Seller expressly warrants that it will maintain andhave readily available, uponan order by Buyer, up to 150 ton of Product per day on average. Seller furtherwarrants that if it fails to maintain a sufficient quantity of Product tosatisfy Buyer’s requirement of 150 ton per day on average, it will procure likeProduct from another source to satisfy Buyer’s requirements and Seller shallprovide the same to Buyer for the price set forth in this Agreement.  Seller will reimburse Buyer for the costs ofany replacement Product purchased by Buyer less the price set forth in thisAgreement. Seller shall further reimburse Buyer for any all additional costsassociated with Buyer’s purchase of substitute Product including, but notlimited to increased costs of transportation.

 

                                                B.            **Qualityof Product**.  Seller shall, atall times, exert best efforts and all due

 

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diligenceto assure that the Product is suitable for the intended use by Buyer.  In addition, Seller shall take all actions,within control of Seller, to assure that the quality of Product remainsreasonably constant such that all deliveries of Product shall be suitable forBuyer’s intended use.  For purposes ofthis Agreement, if the delivered Product conforms with the type required bythis Agreement — i.e., “2 inch minus” with no more than twenty-five percent(25%) “wet” without Buyer’s approval — it shall be considered suitable forBuyer’s intended use. Seller shall not deliver any Product that does not complywith Article V, Section B, above.

 

                                                C.            **ProductUnencumbered**.  Sellerexpressly warrants that the Product shallbe, at all time, free from any and allsecurity interest, liens, and encumbrances.

 

                                                D.            **Riskof Loss**.  Seller expresslywarrants that it shall bear any and all risksof loss until such time as the Product isdelivered to or received by Buyer and is accepted by Buyer in accordance with Article Vabove.

 

                                                E.             **Authority**.  Seller expressly warrants that the individualexecuting thisAgreement onbehalf of Seller is fully authorized to do so and that no further action orconsent on the part of Seller or any representative of Seller is necessary tobind Seller to this Agreement and to allow enforcement of the terms andconditions of this Agreement  againstSeller.

 

**ARTICLE VII**

**Default**

 

                                                A.            **Eventsof Default**.  The failure byBuyer or Seller to comply with anyterm, condition or obligation arising underthis Agreement shall constitute a default (“Default”).  Upon Default, the Non-defaulting Party shallgive the Defaulting Party written notice of the specific Default and shallallow Defaulting Party five (5) days to cure the Default.

 

                                                B.            **Remedies**.  Upon an uncured Default, Non-Defaulting Partyshall beentitled at itsdiscretion to exercise any and all remedies available to it at law or in equityincluding, but not limited to, termination of this Agreement without furthernotice and recovery of general damages, consequential damages, any applicableinjunctive relief and costs (including reasonable attorneys’ fees). TheNon-Defaulting Party may also exercise its right to continue this Agreementupon notice to the Defaulting Party, despite the default and any resultingrecovery.

 

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**ARTICLE VIII**

**Insurance**

 

                                                A.            **Workers’Compensation**.  Seller warrantsto Buyer that all of Seller’semployees, who may make deliveries to or who may otherwise be on Buyer’sproperty, shall be covered (if required) by applicable workers’ compensationlaws.

 

                                                B.            **AutomobileInsurance**.  Seller agrees tocarry insurance on its vehiclesoperating on Buyer’s property in amountssatisfactory to Buyer.

 

                                                C.            **CommercialGeneral Liability**.  During theTerm of this Agreement,Seller shall purchase and maintain Commercial General Liabilityinsurance with combined single limits of not less than $1,000,000.00 and thepolicy shall be endorsed to require a thirty (30) day advance written notice toBuyer of termination, cancellation or any other material change to said policy.

 

                                                D.            **Proofof Insurance**. Seller shall, on an annual basis or upon renewal,whichever period of time isless, provide proof of the existence of the foregoing policies of insurance toBuyer.

 

**ARTICLE IX**

**Miscellaneous Provisions**

 

                                                A.            **Indemnification**.  Seller shall indemnify and hold harmlessBuyer and itsrespectiveowners, officers, managers, directors, other employees, agents, and assignsfrom any and all claims, damages, liabilities, attorneys’ fees and expensesarising out of Seller’s violation of any of the terms and conditions of thisAgreement or any and all claims, damages, liabilities, attorneys’ fees andexpenses arising out of any claim based upon the Product sold by Seller toBuyer or the acts or omissions of Seller. In the same manner, Buyer shall hold Seller harmless for any and allclaims, damages, liabilities, attorneys’ fees and expenses arising out of anyclaim based upon Buyer’s use of the Product, Buyer’s violation of any of theterms and conditions of this Agreement, or the acts or omissions of Buyer.

 

                                                B.            **Expensesof Enforcement**.  If Buyer orSeller breaches or threatens tobreach any of the covenants described in thisAgreement, then, in addition to any of the rights and remedies which theNon-Breaching Party may have against the Breaching Party, the Breaching Partywill be liable to pay the Non-Breaching Party’s court costs and reasonableattorneys fees incurred in enforcing this Agreement.

 

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                                                C.            **Severability**.  If any provision of this Agreement shall beheld by a court ofcompetentjurisdiction to be unenforceable or invalid, the remaining provisions willremain in full force and effect. If any provision of this Agreement is held tobe overbroad as written, the provision shall be deemed amended to narrow itsapplication to the extent necessary to make it enforceable to the fullestextent allowable.

 

                                                D.            **Successorsand Assigns**. This Agreement shall inure to the benefit of, andbe valid, enforceable andbinding upon, the beneficiaries, heirs, successors, assigns, and transferees ofboth Seller and Buyer. Neither party may assign this Agreement without theexpress written consent of the other party, such consent not to be unreasonablywithheld.

 

                                                E.             **Presumptions**.  In construing the terms of this Agreement, nopresumptionshall operatein either party’s favor as a result of counsel’s role in drafting thisAgreement’s terms or provisions.

 

                                                F.             **Waiverof Breach**.  The waiver byBuyer or Seller of a breach of anycovenant of this Agreement shall not operateor be construed as a waiver of any subsequent or later breach by Buyer or Seller.No waiver by Buyer or Seller shall be effective unless in writing.

 

                                                G.            **TextControls**.  The headings ofparagraphs and sections are includedsolely for convenience.  If a conflict exists between any heading andthe text of this Agreement, the text shall control.

 

                                                H.            **GoverningLaw**.  All rights andobligations arising out of or relating tothis Agreement shall be governed by andconstrued in accordance with the laws of the State of South Dakota.

 

                                                I.              **ForceMajeure**. Neither Seller or Buyer will be liable to the other for anyfailure or delay inperformance of any obligation under this Agreement due to events beyond itscontrol, including, but not limited to, fire, storm, flood, earthquake,explosion, act of a public entity or terrorism, riots, civil disorders,sabotage, strikes, lockouts, labor disputes, labor shortages, war, stoppages orslowdowns initiated by labor, transportation embargoes, acts of God, or acts orregulation or priorities of the federal, state or local government or branchesor agencies thereof.

 

 

 

 

(signature pages follow)

 

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         Dated this 27th day ofDecember, 2006.

 
| ** ** | ** ** | **MUELLER PALLETS, LLC** |
|------------|------------|--------------------------|
|       |       |                     |
|       |       |                     |
|       |       | By:                      | /s/  Margaret E. Mueller |
|       |       |                     | Margaret  E. Mueller, Manager |

 

 
| STATE  OF SOUTH DAKOTA | ) |   |
|------------------------|---|--------|
|                   | : |   |
| COUNTY  OF MINNEHAHA   | ) |   |

 

 

                On this 27th day ofDecember, 2006, before me, the undersigned officer, personally appeared, **Margaret E. Mueller**, who acknowledgedherself to be the Manager of Mueller Pallets, LLC, a South Dakota limitedliability company, and that she as such Manager, being authorized so to do,executed the same for purposes therein contained.

 

                IN WITNESS WHEREOF, I hereuntoset my hand and official seal.

 

 
|   |   | /s/  Crystal Hoek                         |
|--------|--------|-------------------------------------------|
|   |   | Notary  Public                            |
|   |   |                                      |
|   |   |                                      |
| (SEAL) |   | My  Commission Expires: May 19, 2012 |

 

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                Dated this 27 day of December,2006.

 
|   | **GREAT PLAINS ETHANOL, LLC** |
|--------|-------------------------------|
|   |                          |   |
|   | By:                           |  /s/ Rick Serie |
|   |                          | Rick  Serie, Manager |

 

 
| STATE  OF SOUTH DAKOTA | ) |   |
|------------------------|---|--------|
|                   | : |   |
| COUNTY  OF MINNEHAHA   | ) |   |

 

 

              On this 27th day of December,2006, before me, the undersigned officer, personally appeared, **Rick Serie**, who acknowledged himself to bethe Manager of Great Plains Ethanol, LLC, a South Dakota limited liabilitycompany, and that he as such Manager, being authorized so to do, executed thesame for purposes therein contained.

 

                IN WITNESS WHEREOF, I hereuntoset my hand and official seal.

 

 
|   |   | /s/ Crystal Hoek                          |
|--------|--------|-------------------------------------------|
|   |   | Notary  Public                            |
|   |   |                                      |
|   |   |                                      |
| (SEAL) |   | My  Commission Expires: May 19, 2012 |

 

 

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**APPROVAL BY GREAT PLAINS ETHANOL, LLC BOARD OF MANGERS**

 

                Pursuant to Article IIabove, this Agreement is approved and ratified by the Board of Managers of GreatPlains Ethanol, LLC this        day of                              ,200  .

 

 

 
| ** ** | By:    |   |
|------------|--------|--------|
|       |   |   |
|       | Its:   |   |

 

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