**Exhibit 10.12**

** **

**UNITPURCHASE AND REDEMPTION AGREEMENT**

 

**THIS UNITPURCHASE AND REDEMPTION AGREEMENT**, (the “Agreement”) datedSeptember 27, 2004, is made by and between East Kansas Agri-Energy, LLC (the “Company”),ICM, Inc. (“ICM”) and Fagen, Inc. (“Fagen”) for the purpose of setting forththe terms and conditions under which the Company shall issue its membershipunits (“Units” as further described herein) to ICM and Fagen in exchange forcapital contributions from ICM and Fagen and the terms and conditions underwhich the Company shall redeem such Units from ICM and Fagen.

 

**W I T N ES S E T H:**

 

**WHEREAS**,ICM and Fagen are providing design engineering and construction services to theCompany in connection with the Company’s construction and start-up operation ofan ethanol production facility near Garnett, Kansas (the “Plant”);

 

**WHEREAS**,the Company has determined to increase the production capacity of the Plantwhich has caused additional equity to be required for construction and start-upoperation of the Plant;

 

**WHEREAS,**ICM and Fagen have agreed to provide suchadditional equity financing through the purchase of Units from the Company, butonly after the Company has used its current equity, which was raised from thesale of membership units of the Company during its initial registered offering(the “Initial Equity Funds”), to pay for the initial construction costs of thePlant;

 

**WHEREAS**, the Company intends to redeem any Unitsissued to ICM and Fagen and will finance the redemption by raising additionalequity through an additional registered offering of its Units; and

 

**WHEREAS**, once the Company has used its InitialEquity Funds to pay for the initial construction costs and expenses, ICMand Fagen shall purchase the Units on the terms and conditions set forth below.

 

**NOW,THEREFORE**, in consideration of the mutual promises andcovenants set forth herein, and for other good and valuable consideration, thereceipt and sufficiency of which is hereby acknowledged, the parties do herebyagree as follows:

 

#### **SECTION1**

#### ** **

#### **PURCHASE AND ISSUANCE OF UNITS**

#### ** **

#### **1.1           Units.  All references to Units (capitalized term) inthis Agreement shall refer only to those membership interests/units purchasedby ICM and Fagen pursuant to the terms of this Agreement and shall specificallyexclude any membership interests/units of the Company currently held by ICM andFagen or purchased by ICM and Fagen subsequent to the date of this Agreement.**

#### ** **

#### **1.2           Unitsto be Purchased by ICM.  Pursuant tothe terms of this Agreement, ICM shall purchase from the Company up to ThreeThousand One Hundred Twenty-Five (3,125) Units at a purchase price of OneThousand Dollars ($1,000) per unit (“Per Unit Purchase Price”).**

#### ** **

#### **1.3           Unitsto be Purchased by Fagen.  Pursuantto the terms of this Agreement, Fagen shall purchase from the Company up toThree Thousand One Hundred and Twenty-Five (3,125) Units at a purchase price ofOne Thousand Dollars ($1,000) per unit (“Per Unit Purchase Price”).**

 

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#### **1.4           Conditionsand Manner of Payment.  The closingof the purchase of the Units by ICM and Fagen is conditioned on the cashproceeds of the Initial Equity Funds being reduced to $1,000,000.  Once the cash proceeds of the Initial EquityFunds is reduced to $1,000,000, the Company shall provide written notificationto ICM and Fagen of this fact and request the closing of the purchase of theUnits (the “Purchase Notification”).  ThePurchase Notification shall state the number of Units to be purchased by ICMand Fagen (which number of Units shall be at the sole discretion of the Company);provided, however, such number of Units to be purchased by each of ICM andFagen shall not exceed 3,125 Units (combined total of 6,250).  Within ten (10) days after receipt of thePurchase Notification, ICM and Fagen shall each make its capital contribution(up to $3,125,000.00 each) payable in cash to the Company in exchange for theUnits.  ICM’s and Fagen’s respectivecapital contribution shall be calculated by multiplying the number of Units theCompany requests to be purchased by each party by the Per Unit PurchasePrice.  Upon payment in full of theirrespective capital contribution, the Company shall deliver to ICM and Fagen acertificate representing the number of Units purchased.  Prior to the issuance of the unitcertificates, ICM and Fagen shall each execute a member signature page to theAmended and Restated Operating Agreement of the Company (in substantially thesame form as attached hereto as Exhibit “A”) and shall execute and deliver suchadditional documents and instruments as are necessary to effect the issuance ofthe Units to ICM and Fagen.**

 

#### **SECTION2**

#### ** **

**REPRESENTATIONSAND WARRANTIES OF COMPANY**

 

The Company hereby makesthe following representations and warranties to ICM and Fagen, and agrees tocarry out the covenants and agreements hereinafter set forth:

 

2.1           Capitalization and Ownership ofUnits.  The Company currently has40,000 Units authorized, of which 14,707 Units are presently issued andoutstanding, all of which outstanding Units are fully paid and non-assessableand have been legally issued.  There areno existing options, calls or commitments of any character relating to anyUnits or to in any manner issue any Units.

 

2.2           Organization.  The Company is a limited liability companyduly organized, validly existing and in good standing under the laws of theState of Kansas.  The execution anddelivery of this Agreement does not, and the consummation of the transactioncontemplated hereby will not, violate any provision of the Company’s Articlesof Organization or Operating Agreement.

 

2.3           Marketable Title.  The Company has good and marketable title tothe Units being issued by it hereunder. The Units delivered by Company to ICM and Fagen shall be free and clearof all liens, charges and encumbrances. The execution of this Agreement shall not constitute a violation ordefault under any contract, indenture or other agreement or restriction of anykind or character to which the Company is a party.

 

2.4           Authorization and BindingObligation.  This Agreementconstitutes a legal, valid, and binding obligation of Company, enforceableagainst Company in accordance with its terms.

 

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#### **SECTION3**

 

**REPRESENTATIONSAND WARRANTIES OF ICM**

 

ICM hereby makes thefollowing representations and warranties to the Company, and agrees to carryout the covenants and agreements hereinafter set forth:

 

3.1           Organization, Standing andAuthority.  ICM is a corporation dulyincorporated, validly existing and in good standing under the laws of the Stateof Kansas.  ICM has the necessary powerto execute, deliver, and perform this Agreement and the documents contemplatedhereby according to their respective terms.

 

3.2           Authorization.  This Agreement constitutes a legal, valid,and binding obligation of ICM, enforceable against ICM in accordance with itsterms.

 

3.3           Legal and Governmental Proceedings.  ICM is not subject to any order of any courtor governmental authority or agency and there are no legal actions orgovernmental proceedings or investigations pending or, to the best of ICM’sknowledge, threatened, which would have a material adverse impact on ICM orwould adversely affect the Company or ICM’s ability to perform according to theterms of this Agreement.

 

3.4           Review of Company OperatingAgreement.  ICM has reviewed a copyof the Amended and Restated Operating Agreement of the Company (“OperatingAgreement”) and understands that the Operating Agreement contains certaindefined terms that are important to a complete understanding of it.  ICM understands that the Units it isacquiring are governed by the terms of the Operating Agreement and agrees to bebound, in all respects, by the terms of the Operating Agreement.

 

3.5           Access to Information.  ICM has been given full and complete accessto information, financial or otherwise, regarding the Company and has utilizedsuch access to its satisfaction and has obtained any other relevant informationit has requested regarding the Company. ICM has been given the opportunity toask questions of, and receive answers from, the Company concerning the termsand conditions of this offering of the Company’s Units and other matterspertaining to this investment.

 

3.6           Independent Investigation.  In making the decision to purchase the Units,ICM has relied solely upon independent investigations. ICM is not relying onthe Company or its directors or officers with respect to tax, business, risk,economic and other considerations involved in this investment.

 

3.7           Understanding of Risks.  ICM understands that the Company is adevelopmental-stage company and has no operating history.  ICM understands the difficulties that areencountered by new businesses and that the Company faces all the risks inherentin any new business. ICM understands the likelihood of the success of theCompany must be considered in light of the problems, expenses, and delaysfrequently encountered in connection with a new business and that since theCompany does not intend to enter into other types of business, there will be nodiversification of risk.  ICM understandsthe high risk of this investment and the financial hazard involved, includingtax risks, the risk of loss of its entire investment, and the lack of liquidityof its investment.

 

3.8           Understanding of StockRestrictions.  ICM understands thatthe Company has no obligation or intention to register any Units for resale ortransfer under the Securities Act of 1933 (the

 

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“Act”) or any statesecurities laws or to take any action (including the filing of reports or thepublication of information as required by Rule 144 under the Act) which wouldmake available any exemption from the registration requirements of any suchlaws.  ICM further understands that, inaddition to federal and state law, the transfer of Units is restricted by theOperating Agreement and that there will be no public market for the Units andthat if the Company has insufficient cash flow, the Company may not be able toredeem the Units in accordance with this agreement.  ICM may therefore be excluded from selling orotherwise transferring or disposing of any Units or any portion thereof for anindefinite period of time or at any particular time.

 

3.9           Sufficient Knowledge andExperience.  ICM has sufficientknowledge and experience in financial and business matters to be capable ofevaluating the merits and risks of the prospective investment in the Units.

 

3.10         Ability to Bear Economic Risk.  ICM is able to bear the economic risk of thisinvestment, including a total loss of the investment.  ICM has adequate means of providing for itscurrent needs and personal contingencies, has no need for liquidity in itsinvestment in the Company and has no reason to anticipate any circumstances,financial or otherwise, which might cause or require any sale or distributionof the Units.

 

3.11         Investment Intention.  It is ICM’s intention to acquire the Unitsfor its own account, for investment purposes, and not with a view to, or for,resale in connection with any distribution thereof. ICM understands that no federalor state agency has passed upon the Units or made any findings or determinationas to the fairness of this investment. ICM understands and acknowledges thatthe Units have not been registered under the Securities Act of 1933 or understate securities laws and that the offering of the Units is being made pursuantto exemptions from registration that may depend upon ICM’s investment intention.ICM acknowledges that the Company will rely on our representations and that theCompany is not required to recognize any transfer of the Units if, in theopinion of counsel, such transfer would result in a violation of any federal orstate law, rule or regulation regarding the offering or sale of securities.

 

###### **SECTION 4**

 

##### **REPRESENTATIONS AND WARRANTIES OF FAGEN**

 

Fagen hereby makes thefollowing representations and warranties to the Company, and agrees to carryout the covenants and agreements hereinafter set forth:

 

4.1           Organization, Standing andAuthority.  Fagen is a corporationduly incorporated, validly existing and in good standing under the laws of theState of Minnesota.  Fagen has thenecessary power to execute, deliver, and perform this Agreement and thedocuments contemplated hereby according to their respective terms.

 

4.2           Authorization.  This Agreement constitutes a legal, valid,and binding obligation of Fagen, enforceable against Fagen in accordance withits terms.

 

4.3           Legal and Governmental Proceedings.  Fagen is not subject to any order of anycourt or governmental authority or agency and there are no legal actions orgovernmental proceedings or investigations pending or, to the best of Fagen’sknowledge, threatened, which would have a material

 

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adverse impact on Fagenor would adversely affect the Company or Fagen’s ability to perform accordingto the terms of this Agreement.

 

4.4           Review of Company OperatingAgreement.  Fagen has reviewed a copyof the Amended and Restated Operating Agreement of the Company (“OperatingAgreement”) and understands that the Operating Agreement contains certaindefined terms that are important to a complete understanding of it.  Fagen understands that the Units it isacquiring are governed by the terms of the Operating Agreement and agrees to bebound, in all respects, by the terms of the Operating Agreement.

 

4.5           Access to Information.  Fagen has been given full and complete accessto information, financial or otherwise, regarding the Company and has utilizedsuch access to its satisfaction and has obtained any other relevant informationit has requested regarding the Company. Fagen has been given the opportunity toask questions of, and receive answers from, the Company concerning the termsand conditions of this offering of the Company’s Units and other matterspertaining to this investment.

 

4.6           Independent Investigation.  In making the decision to purchase the Units,Fagen has relied solely upon independent investigations. Fagen is not relyingon the Company or its directors or officers with respect to tax, business, risk,economic and other considerations involved in this investment.

 

4.7           Understanding of Risks.  Fagen understands that the Company is adevelopmental-stage company and has no operating history.  Fagen understands the difficulties that areencountered by new businesses and that the Company faces all the risks inherentin any new business. Fagen understands the likelihood of the success of theCompany must be considered in light of the problems, expenses, and delaysfrequently encountered in connection with a new business and that since theCompany does not intend to enter into other types of business, there will be nodiversification of risk.  Fagenunderstands the high risk of this investment and the financial hazard involved,including tax risks, the risk of loss of its entire investment, and the lack ofliquidity of its investment.

 

4.8           Understanding of StockRestrictions.  Fagen understands thatthe Company has no obligation or intention to register any Units for resale ortransfer under the Securities Act of 1933 (the “Act”) or any state securitieslaws or to take any action (including the filing of reports or the publicationof information as required by Rule 144 under the Act) which would makeavailable any exemption from the registration requirements of any suchlaws.  Fagen further understands that, inaddition to federal and state law, the transfer of Units is restricted by theOperating Agreement and that there will be no public market for the Units andthat if the Company has insufficient cash flow, the Company may not be able toredeem the Units in accordance with this agreement.  Fagen may therefore be excluded from sellingor otherwise transferring or disposing of any Units or any portion thereof foran indefinite period of time or at any particular time.

 

4.9           Sufficient Knowledge andExperience.  Fagen has sufficientknowledge and experience in financial and business matters to be capable ofevaluating the merits and risks of the prospective investment in the Units.

 

4.10         Ability to Bear Economic Risk.  Fagen is able to bear the economic risk ofthis investment, including a total loss of the investment.  Fagen has adequate means of providing for itscurrent needs and personal contingencies, has no need for liquidity in itsinvestment in the Company and has no reason to anticipate any circumstances,financial or otherwise, which might cause or require any sale or distributionof the Units.

 

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4.11         Investment Intention.  It is Fagen’s intention to acquire the Unitsfor its own account, for investment purposes, and not with a view to, or for,resale in connection with any distribution thereof. Fagen understands that nofederal or state agency has passed upon the Units or made any findings ordetermination as to the fairness of this investment. Fagen understands andacknowledges that the Units have not been registered under the Securities Actof 1933 or under state securities laws and that the offering of the Units isbeing made pursuant to exemptions from registration that may depend upon Fagen’sinvestment intention. Fagen acknowledges that the Company will rely on ourrepresentations and that the Company is not required to recognize any Transferof the Units if, in the opinion of counsel, such Transfer would result in aviolation of any federal or state law, rule or regulation regarding theoffering or sale of securities.

 

##### **SECTION 5**

 

#### **COVENANTSOF COMPANY**

 

The Company herebycovenants and agrees to the following:

 

5.1           Rights of Unit Holders.  ICM and Fagen shall have the right to jointlyappoint one (1) director to the Company’s Board of Directors for every$2,000,000 of capital contributions made to the Company by ICM and Fagen underthis Agreement.  For purposes of thisSection, capital contribution shall be the combined capital contributions ofICM and Fagen.  The directors appointedjointly by ICM and Fagen shall serve at the pleasure ICM and Fagen so long asICM and Fagen continue to own Units; provided, however, that the number ofdirectors so appointed shall be progressively decreased on a one director per$2,000,000 basis as Units are redeemed. Any and all Units purchased by ICM and Fagen hereunder shall not bevoted in the election of directors to the Company’s Board of Directors.  ICM and Fagen will have all the rights ofUnit Holders as provided for in the Company’s Operating Agreement in all otherrespects.

 

5.2           Restrictions on Transferability ofUnits. The Units shall not be transferable absent registration orapplicable exemption.  In addition, theUnits shall not be transferable except for transfers to related parties oraffiliates of the Unit Holders as provided in the Company’s OperatingAgreement.  All transfers must be made inaccordance with the terms and conditions of transfer set forth in the Company’sOperating Agreement.  The Unitcertificates shall contain a legend describing these transfer restrictions.

 

5.3           Registered Offering of Units.  Within one hundred fifty (150) days of thedate of this Agreement, the Company shall register with the Securities andExchange Commission and one or more state securities commissions (including,without limitation, the state of Kansas), a minimum of 2,000 units and amaximum of 10,000 units of the Company at an offering price of $1,100 per Unit.  The Company intends to sell the unitsdirectly to investors without the use of an underwriter.  The Company shall use its best efforts tosell such registered units and shall hold a minimum of 25 investor meetings inthe state of Kansas to promote the sale of the units.

 

5.4           Proceeds from the Sale of Units.  Proceeds from the sale of Units in theregistered offering shall be deposited in escrow until the minimum offeringamount of $2,000,000 has been attained. Once subscription proceeds deposited in escrow exceed the minimumoffering amount of $2,000,000, the funds in escrow may be released at thediscretion of the Company.  The timing ofthe release of funds from escrow shall be at the sole discretion of theCompany.  The offering shall be

 

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terminated upon the earlier of (i) the Company’selection, at its sole discretion, to terminate the offering at the time all theUnits are redeemed in accordance with Section 6.1 below, (ii) the sale of themaximum offering amount of $10,000,000, or (iii) the offering termination date.Proceeds from the sale of Units received after release of funds from escrowshall be payable directly to the Company.

 

**SECTION6**

 

**REDEMPTIONOF UNITS**

 

6.1           Redemption of Units from OfferingProceeds.  Proceeds from the sale ofunits in the offering contemplated in Section 5.3 shall be used first to redeemthe Units owned by ICM and Fagen.  Theredemption price for the Units shall be equal to $1,100 per Unit.  Within twenty (20) days of the release of theoffering proceeds from escrow, the Company shall use such proceeds to redeemUnits from ICM and Fagen on a prorata basis. After the initial receipt of proceeds from escrow, the Company, at itselection, may either (i) continue redeeming Units on a piece meal basis asproceeds from the sale of Units are received, or (ii) redeem the Units fromproceeds one time upon the termination of the offering.  Any proceeds in excess of the amountnecessary to redeem the Units shall be retained by the Company.  

 

6.2           Redemption of Units from CompanyCash Flow.  In the event theregistered offering contemplated in Section 6.3 of this Agreement does notresult in the necessary proceeds to redeem all of the Units held by ICM andFagen, the Company shall redeem the remaining Units from its net cash flow fromoperations prior to any distributions to the Members of the Company.  The redemption of Units from the net cashflow of the Company shall be made annually in April or May of each year afteraudited financial statements have been prepared and provided to the Company’slender.  The redemption price of theUnits made pursuant to this Section 6.2 shall be equal to the fair market valueof the Unit as of the date of redemption (“Fair Market Value Per Unit”).  For purposes of this Section 6.2, Fair MarketValue Per Unit shall be calculated as follows: (a)  If the parties mutually agree that asufficient number of trades of units has occurred during the calendar quarterimmediately preceding the redemption (“Valuation Period”), the Fair MarketValue Per Unit shall be determined by taking the weighted average price perunit of all units sold during the Valuation Period; (b)  If the parties do not agree that a sufficientnumber of trades has occurred during the Valuation Period, then the Fair MarketValue Per Unit may be determined at a price mutually agreed upon by theparties; or (c) If the parties are unable to mutually agree on a Fair MarketValue Per Unit, the Fair Market Value Per Unit shall be determined by anindependent qualified appraiser chosen by mutual agreement of the parties.  If the parties are unable to agree on anappraiser, then ICM and Fagen shall select an appraiser and the Company shallselect an appraiser which appraisers shall then jointly select an independentqualified third appraiser who shall determine the Fair Market Value Per Unit,and such determination shall be final, conclusive and binding on theparties.  The expense of any appraisalmade hereunder shall be divided equally among the parties.  Within twenty (20) days of the determinationof the Fair Market Value Per Unit, the Company shall redeem the Units on a prorata basis from ICM and Fagen at the Fair Market Value Per Unit.  The redemption payments shall be made incash.  The Company shall continue toredeem the Units from its net cash flow from operations each year pursuant tothe terms of this Section 6.2 until the complete redemption of the Units.

 

6.3           Exception for Tax Distributions.  Notwithstanding any provision in Section 6.3to the contrary, the parties to this Agreement each agree that prior to anyredemption of Units, the Company may make distributions to the Members of theCompany (including ICM and Fagen) in an aggregate amount equal to forty percent(40%) of the net income of the Company for the purpose of paying income

 

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taxes related to the ownership of the units of theCompany.  The amount of net cash flowavailable for redemption of Units shall be reduced by the amount of the tax distribution.

 

6.4           Compliance with Debt FinancingAgreements and Consent of Company’s Lender. The Company’s duties and obligations hereunder shall, at all times, besubject to the terms and conditions of any and all debt financing agreementsexecuted between the Company and its lenders. The Company shall not be required to redeem any Units from ICM and Fagenif such redemption would cause the Company to breach or violate the provisionsof any debt financing agreement including, without limitation, any promissorynotes, loan agreements, indentures, mortgages and other agreements or documentspertaining to monies borrowed by the Company, including all amendments andmodifications thereto.  The partiesfurther acknowledge that the net cash flow from operations available forredemption of Units will be reduced each year by an amount equal to the greaterof seventy-five percent (75%) of any CCC Bio-Energy Income payments receivedduring such year or twenty-five percent (25%) of the Company’s free cashflow.  Pursuant to the terms of theCompany’s financing agreement with its lender, this amount shall be paid to thelender as an accelerated amortization of the Company’s loan.    

 

#### **SECTION7**

 

**DEFAULT**

 

In the event ICM andFagen, or any one of them, default or are in breach of their obligations underthis Agreement by failing to close and consummate each and every purchase andsale as noted herein, or ICM and Fagen, or any one of them, shall fail toperform or observe any other term or condition of this Agreement, then thisAgreement shall be in default and the Company shall be entitled to pursue allremedies available at law or in equity.

 

#### **SECTION8**

 

**ADDITIONALUNDERTAKINGS**

 

8.1           Additional Instruments.  Each party to this Agreement shall executeand deliver or use its best efforts to cause to be executed and delivered suchadditional instruments and documents as any other party may reasonably requestfor the purpose of carrying out this Agreement.

 

#### **SECTION9**

 

**SURVIVAL OF COVENANTS,REPRESENTATIONS AND WARRANTIES**

 

9.1           Covenants.  All covenants contained in this Agreementshall survive the effective date of this Agreement.

 

9.2           Representations and Warranties.  All representations and warranties containedin this Agreement shall be deemed continuing representations and warranties andshall survive the effective date of this Agreement.

 

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#### **SECTION10**

 

#### **INDEMNIFICATIONS**

 

10.1         Indemnification by the Company.  The Company shall indemnify and hold ICM andFagen harmless against and with respect to, and shall reimburse ICM and Fagenany and all losses, liabilities or damages resulting from any untruerepresentation, breach of warranty or nonfulfillment of any covenant by theCompany contained herein or in any certificate, document or instrumentdelivered to ICM and Fagen hereunder.

 

10.2         Indemnifications by ICM and Fagen.  ICM and Fagen shall indemnify and hold theCompany harmless against and with respect to, and shall reimburse the Companyfor any and all losses, liabilities or damages resulting from any untruerepresentation, breach of warranty or nonfulfillment of any covenant by ICM andFagen contained herein or in any certificate, document or instrument deliveredto the Company hereunder.

 

10.3         Attorneys’ Fees.  The indemnity set forth in Sections 10.1 and10.2 above shall include providing reasonable attorneys’ fees and costs to theother party as required to enforce the terms of said indemnity.

 

10.4         Notices.  The Company and ICM and Fagen shall providethe other with as much notice as possible of a potential claim pursuant to thisSection.

 

**SECTION11**

 

**MISCELLANEOUS**

 

11.1         Notices.  Any notice or communication required orperformed hereunder shall be sufficiently given if sent by registered orcertified mail, postage prepaid to the following individuals:

 
| To Company: | East Kansas  Agri-Energy, LLC |
|-------------|-------------------------------|
|        | 2011⁄2 East 4th  Avenue    |
|        | P.O.  Box 225                 |
|        | Garnett, KS 66032             |
|        |                          |
| To ICM:     | Dave Vander Griend            |
|        | 310 N. First Street           |
|        | P.O. Box 397                  |
|        | Colwich, KS 67030             |
|        |                          |
| To Fagen:   | O. Wayne Mitchell             |
|        | 501 West Highway 212          |
|        | P.O. Box 159                  |
|        | Granite Falls, MN 56241       |

 

Any such noticeshall become effective on the third day after the day of mailing thereof,postage prepaid, registered or certified mail.

 

11.2         Contents of Agreement.  This Agreement sets forth the entireunderstanding of the parties and supersedes any prior agreement orunderstanding relating to the subject matter of this

 

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Agreement.  It shall be changed or terminated only by aninstrument executed by all parties hereto in writing.

 

11.3         No Assignments.  No party may assign nor delegate any of itsrights or obligations hereunder without first obtaining the written consents ofthe other parties to this Agreement.

 

11.4         Binding on Successors.  All the terms and provisions of thisAgreement shall be binding upon and inure to the benefit of and be enforceableby the respective successors, personal representatives, heirs and permittedassigns of the parties hereto.

 

11.5         Governing Law.  This Agreement is being delivered and isintended to be performed in the State of Kansas and shall be construed andenforced in accordance with the laws of the State of Kansas.

 

11.6         Interpretation.  Wherever used herein the masculine gendershall include the feminine and neuter genders, and vice versa, as the contextshall require.  The paragraph headingsare included solely for convenience and shall in no event affect, or be used inconnection with, the interpretation of this Agreement.

 

11.7         Counterparts.  This Agreement may be executed in any numberof counterparts, each of which shall be an original but all of which togethershall constitute one and the same instrument. This Agreement shall become effective at such time as counterpartsthereof have been executed by each of the parties and it shall not be acondition to its effectiveness that each of the parties has executed the samecounterpart.

 

11.8         Construction.  Each party hereto has had the opportunity tofully negotiate the terms hereof and modify the draftsmanship of thisAgreement.  Therefore, the terms of thisAgreement shall not be construed and interpreted with any presumption,inference or rule requiring construction or interpretation of any provision ofthis Agreement against the interest of the party causing this Agreement to bedrafted.

 

 

[*Signature Page Follows*]

 

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IN WITNESS WHEREOF, theparties have executed this Agreement as of the day and year first abovewritten.

 
| **COMPANY:**                  |                         |
|-------------------------------|------------------------------|
| East  Kansas Agri-Energy, LLC |                         |
|                          |                         |
|                          |                         |
| By:                           | /s/ William Pracht           |   |
| Its:                          | Chairman                     |   |
|                          |                         |
|                          |                         |
| **ICM:**                      |                         |
| ICM,  Inc.                    |                         |
|                          |                         |
|                          |                         |
| By:                           |  /s/ Dave Vander Griend |   |
| Its:                          | CFO                          |   |
|                          |                         |
|                          |                         |
| **FAGEN:**                    |                         |
| Fagen, Inc.                   |                         |
|                          |                         |
|                          |                         |
| By:                           | /s/ Jennifer A. Jackson      |   |   |
| Its:                          | CFO                          |   |
|                               |                              |  |  |  |

 

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