Exhibit 10.20.1


 


Confidential
Treatment Requested. Confidential portions of this document have been redacted 

and have been separately filed with the Commission.


 


Oil Feedstock Supply Agreement


 


This Oil Feedstock Supply
Agreement (this “Agreement”) is made and entered into as of June 8,
2007 by and between REG Emporia, LLC, an Iowa Limited Liability Company (“Producer”),
and Bunge North America (OPD West), Inc., a New York corporation (“Bunge”)
(each of Producer and Bunge, a “Party” and collectively, the “Parties”).


 


Producer intends to
construct and own a biodiesel plant (the “Facility”), which will be
located near Bunge’s existing oil processing facility in Emporia, Kansas. Producer
desires to buy, and Bunge desires to sell, all crude soybean oil (“Oil”)
feedstock required for biodiesel production at the Facility. The Parties desire
to purchase and sell Oil in accordance with the fees, payment, delivery, and
other terms set forth in this Agreement.


 


Therefore, the Parties
agree:


 


1.                                       Exclusive Supplier. To the extent contemplated by this
Agreement, Bunge will have the exclusive right to provide all Oil that Producer
requires for biodiesel  production at
the Facility during the Term (as defined in Section 5.1 hereof),
including the Facility as initially constructed and any modifications or
expansions thereof.


 


1.1                                 Provision of Standard Monthly Amounts. Each month during the Term (as defined in Section 5.1
hereof), Bunge has the exclusive right to provide, and Producer the right to
purchase from Bunge, all Oil that Producer requires for biodiesel  production at the Facility up to the Standard Monthly
Amount (as defined in Section 1.3). It is the expectation of the
Parties that the Oil to be supplied to Producer under this Agreement will be
originally processed at Bunge’s oil processing facility in Emporia, Kansas,
except to the extent production at Bunge’s Emporia facility is insufficient to
meet Producer’s needs.


 


1.2                                 Overage Amounts. If Producer requires any Oil for biodiesel  production at the Facility in excess of the Standard
Monthly Amount for a given month, the following procedures will apply:


 


(a)                                  Producer must notify Bunge (an “Overage
Request”) on a business day of the quantity of Oil in excess of the
Standard Monthly Amount that Producer wishes to procure for the given month.


 


(b)                                 Within 24 hours after receiving an Overage
Request, Bunge will notify Producer how much Oil (the “Proposed Quantity”)
Bunge is willing to supply to Producer in response to such Overage Request.


 


(c)                                  Bunge will have the exclusive right to
provide, and Producer will have the right to purchase from Bunge, the Proposed
Quantity at a mutually agreed-upon Total Price (as defined in Section 4.1).
If the Parties cannot mutually agree upon a Total Price for purposes of this Section
1.2, then Producer may obtain the Proposed Quantity of Oil from any third
party at any price 


 


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that
it negotiates; provided that such third-party price may not be equal to or
higher than the last price offered by Bunge during the Parties’ negotiations.


 


(d)                                 To the extent that the quantity specified by
Producer in a specific Overage Request exceeds the applicable Proposed
Quantity, then Producer may obtain a quantity of Oil equal to such excess
amount from any third party at any price that it negotiates.


 


1.3                                 Modification of Standard Monthly Amounts.  Except as set out in the following
sentences of this Section 1.3, from the Effective Date (as defined at Section
5.1 of this Agreement) through September 30, 2011, the “Standard Monthly
Amount” will be *** million pounds of Oil.  Notwithstanding anything
contained in this Agreement to the contrary, Bunge will have no obligation to
supply any Oil pursuant to this Agreement prior to July 1, 2008.
 Furthermore, unless otherwise agreed by Bunge, the Standard Monthly
Amount shall not exceed *** million pounds of Oil for the months of July and
August, 2008, and shall not exceed *** million pounds of Oil for the months of
September, October and November of 2008.  After September 30, 2011, the
Parties will negotiate whether to make reasonable modifications to the Standard
Monthly Amount.


 


1.4                                 Alternate Feedstock. If Producer elects to utilize a feedstock
other than Oil, Producer will provide Bunge with a fair opportunity to participate
in procuring such alternate feedstock for Producer.


 


2.                                       Order and Delivery.


 


2.1                                 Forecasts. Twice in each 12-month period for the next six-month period during
the Term, beginning on the Effective Date (each a “Period”), Producer
will deliver to Bunge its best estimates (in the form attached hereto as Exhibit A,
each a “Forecast”) of anticipated Oil requirements at the Facility. Producer
will deliver a Forecast for a particular Period no later than three months
prior to the beginning of such Period. The Parties acknowledge that the purpose
of the Forecast is to provide notice to Bunge of anticipated Oil requirements
and Bunge’s actual obligation to deliver Oil to the Facility shall be governed
by the other sections of this Article 2.


 


2.2                                 Specific Orders. Prior to or during each Period covered by a
Forecast, Producer will deliver to Bunge specific orders in the form attached
hereto as Exhibit B (each, a “Specific Order”), which will
contain Producer’s confirmation to Bunge of its need for specific quantities of
Oil per month as the result of sales of biodiesel by Producer at the Facility. Bunge
will review all Specific Orders and the Parties will mutually agree upon a
Total Price (as defined in Section 4.1) applicable to Oil sold
under a Specific Order. Subject to the other provisions of this Agreement
(including Sections 2.7 and 3.1), Bunge will deliver to Producer
the quantity of Oil required by Specific Orders in accordance with this Article 2.


 


2.3                                 Amounts.


 


(a)                                  Monthly Estimates. At least 30 days before the beginning of
each month during the Term, Producer will deliver to Bunge a written estimate
(each a “Monthly Estimate”) of its anticipated Oil requirements at the
Facility for such month, which


 


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estimate will include
(i) amounts under all then-existing Specific Orders and (ii) any
additional amounts requested by Producer for such month. Bunge will review all
timely delivered Monthly Estimates and the Parties will mutually agree upon a
Total Price (as defined in Section 4.1) applicable to any Oil
contemplated by a Monthly Estimate which is not covered by a Specific Order,
which Total Price may be agreed at any time subsequent to the delivery of the
Monthly Estimate and prior to the first day of the month for which delivery of
Oil is requested. In addition, Producer will give Bunge reasonable advance
notice of any circumstances that would reasonably be expected to materially
affect Oil requirements at the Facility. Subject to the other provisions of
this Agreement (including Section 3.1), to the extent that Bunge
has agreed upon a Monthly Estimate, Bunge will deliver to Producer the quantity
of Oil required by such Monthly Estimate. Notwithstanding anything to the
contrary in this Agreement, Bunge will have no obligation to supply Producer
with any Oil in a given month in excess of 5% of the quantity stated in the
applicable Monthly Estimate.


 


(b)                                 Production Schedules. If Producer has timely delivered a Monthly
Estimate to Bunge, then Bunge will provide a quantity of Oil sufficient to
permit Producer to maintain its actual production schedule for the month as
described in the Monthly Estimate, subject to Sections 2.3(a) and 3.1(a)
hereof. On Thursday of each week, Producer will provide Bunge notice of Producer’s
best estimate of its production schedule for the following production week
(Monday through Sunday).


 


2.4                                 Delivery.


 


(a)                                  Delivery and Receiving.


 


(i)                                     Bunge will deliver Oil sold under this
Agreement to the Facility primarily via a pipeline (the “Pipeline”) from
Bunge’s existing oil processing facilities in Emporia; provided that
Bunge may deliver Oil to the Facility via truck or rail if (A) the
Pipeline is not operating or (B) the production of Oil from Bunge’s oil
processing facilities in Emporia is insufficient to meet Producer’s needs and
Producer agrees to purchase Oil from Bunge from a source other than Bunge’s
Emporia oil processing facility, subject to Section 1.2. Producer will
ensure that the Facility has the capability to receive and unload Oil delivered
via the Pipeline, truck and/or rail. All labor and equipment necessary to
receive Oil will be supplied by Producer without charge to Bunge. Producer will
direct the receiving of all Oil purchased hereunder in a good and workmanlike
manner in accordance with Bunge’s reasonable requirements and normal industry
practice. Producer will maintain (at its own expense) its receiving facilities
in accordance with applicable laws and regulations and in safe operating
condition in accordance with normal industry standards.


 


(ii)                                  Bunge will direct the delivery of all Oil
purchased hereunder in a good and workmanlike manner in accordance with
Producer’s reasonable requirements and normal industry practice. All labor and
equipment necessary to deliver Oil will be supplied by Bunge without charge to
Producer.


 


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(iii)                               Producer shall be responsible for the design
and installation of the Pipeline; provided that Bunge shall have the
right to review and approve the design, specifications, and time for
installation of any portion of the Pipeline on Bunge’s property. Bunge will
reimburse Producer up to $150,000 of the costs of that portion of the Pipeline
on Bunge’s property (including installation). Bunge will maintain (at its own
expense) that portion of the Pipeline on its property, and Producer will
maintain (at its own expense) all other portions of the Pipeline, both in
accordance with applicable laws and regulations and in safe operating condition
in accordance with normal industry standards. If Bunge is required to deliver
Oil via rail or truck to the Facility because the Pipeline is not operating,
the costs to provide such alternate delivery shall be borne by the Party
responsible for the portion of the Pipeline that is not operating.


 


(b)                                 Flow Meter; Records. With regard to Oil delivered to the
Facility via the Pipeline, Bunge will determine the volume of Oil delivered to
Producer by Bunge using a flow meter attached to that portion of the Pipeline
on Bunge’s property. Bunge will install the flow meter and maintain (at its own
expense) the accuracy of the flow meter and ensure that it is inspected and
certified as required by applicable law. Producer may, at its sole expense,
test the accuracy of the flow meter. Bunge will maintain all flow meter records
of Oil deliveries for at least one year after their creation and provide copies
of such records to Producer upon request. Such flow meter records will
determine the volume of Oil delivered via the Pipeline for which Producer is
obligated to pay pursuant to Article 4. Bunge will report to
Producer the volume of any Oil delivery via the Pipeline to the Facility at
least once per day, or at such times as reasonably requested by Producer.


 


(c)                                  Origin Weights. With regard to Oil delivered to the
Facility via rail or truck, the volume of Oil delivered will be set in
accordance with weights determined at the point of origin of such Oil.


 


(d)                                 Standards. All Oil delivered to the Facility will meet the “Quality Standards”
set forth in Exhibit C. For Oil delivered via the Pipeline, Bunge
will provide a daily Certificate of Analysis at a regular time for each day’s
deliveries. For Oil delivered via rail or truck, Bunge will provide a
Certificate of Analysis for each shipment. If Bunge delivers Oil which does not
meet the Quality Standards, Producer may reject such Oil in accordance with Exhibit C
and this Agreement.


 


(e)                                  Testing. If Producer knows or reasonably suspects that any Oil delivered by
Bunge to the Facility does not meet the Quality Standards (or permissible
deviations therefrom), then Producer may obtain, at Producer’s sole cost and
expense, independent laboratory tests of the affected Oil at a mutually agreed
upon laboratory. Producer shall immediately notify Bunge of the testing of any
Oil within 24 hours of its delivery to the Facility and Producer shall promptly
complete such testing. Bunge shall have the right, upon reasonable advance
notice and at Bunge’s sole cost and expense, to test Oil for which title has
passed to Producer pursuant to Section 2.5.


 


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2.5                                 Title. Title, risk of loss, and responsibility for the quality of Oil will
pass to Producer when (a) such Oil conveyed via the Pipeline leaves Bunge’s
property, or (b) such Oil conveyed via rail or truck is received by
Producer. If any Oil supplied under this Agreement fails to comply with the
terms of this Agreement as a result of causes or conditions proven to have
existed prior to the time when title passed to Producer, then Producer’s
exclusive remedy and recourse will be to reject such non-compliant Oil (and
provide Bunge with written notice of such rejection) within 48 hours after the
time of delivery (or have notified Bunge of the testing of such Oil under Section
2.4(d) and promptly complete such testing), in which case Bunge will
replace such non-compliant Oil with a like amount of compliant Oil. In
addition, Bunge shall only be obligated to replace such non-compliant Oil to
the extent that Producer has not processed and has kept such non-compliant Oil
segregated from other Oil at the Facility. Producer will make such
non-compliant Oil available to Bunge for Bunge to remove from the Facility at
Bunge’s cost. Bunge will not be responsible for any failure of Oil to comply
with the terms of this Agreement which results from causes or conditions
arising after the time title passes to Producer. Any failure by Producer to
provide written notice of rejection as set forth in this Section 2.4
will be deemed an absolute and unconditional waiver of its rejection right and
any claims relating to such Oil. At Bunge’s request, Producer will promptly
deliver to Bunge a representative sample of any rejected Oil.


 


2.6                                 Producer Use of Oil. Producer can use the Oil that it purchases
under this Agreement for any of its internal business purposes in connection
with biodiesel at any location that it controls, or is owned or controlled by
Producer’s parent company Renewable Energy Group, Inc. (“REG”), other than any
such location within 100 miles of the biodiesel facility operated by Biofuels
Company of America, LLC in Danville, Illinois. For the sake of clarification,
(a) Producer’s internal business purposes do not include the sale of Oil
to any person or entity other than to facilities owned or managed by Producer
or REG, and (b) Producer or REG are solely responsible for the cost of
transporting any Oil from the Facility to any other location controlled by
Producer or REG.


 


2.7                                 Limits on Bunge Obligation to Flat Price Oil. Notwithstanding anything to the contrary in
this Agreement, Bunge will have no obligation to price any Oil under a proposed
Specific Order at any time prior to six months before the anticipated Effective
Date. Further, to the extent that any Oil proposed to be priced under any
Specific Order would cause the aggregate quantity of Oil that has been priced
under all then-existing Specific Orders to exceed the Credit Limit (as defined
below), then Bunge will have no obligation to price such excess amount Oil at
any time more than five days before the first day of the month in which such
excess Oil is proposed to be delivered. The “Credit Limit” will be a
quantity of Oil to be set from time-to-time by Bunge; provided that
Producer will be entitled at any time to require Bunge to identify the
then-applicable Credit Limit. Notwithstanding any other provision in this Section 2.7,
Bunge may agree to flat price in excess of the Credit Limit if it is satisfied
(in its sole discretion) with credit enhancements or other protections proposed
by Producer.


 


3.                                       Other Delivery Provisions.


 


3.1                                 Maximum Delivery Amounts.


 


 


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(a)                                  Except as otherwise agreed in accordance with
this Agreement, Bunge will have no obligation to supply Producer with any
quantity of Oil in excess of (i) during any given month of a Crop Year,
the then-applicable Standard Monthly Amount (the “Maximum Monthly Amount”),
or (ii) during any given Crop Year, the product of (A) the
then-applicable Standard Monthly Amount, times
(B) 12 (the “Maximum Aggregate Amount”). The Maximum Aggregate
Amount for the first Crop Year shall be adjusted as applicable to reflect the
limitations on the Standard Monthly Amount as set forth in Section 1.3.


 


(b)                                 Bunge and Producer will set the trend soybean
crop yield for the State of Kansas for a Crop Year during the Term, where a “Crop
Year” is a one-year period beginning October 1 and ending September 30 the
following year. The Parties will set such trend yields for a Crop Year before
the June 1 preceding such Crop Year based on crop trend yields published by the
U.S. Department of Agriculture (“USDA”).


 


(c)                                  If the actual soybean crop yield set forth in
a USDA production report issued during August through December of a Crop Year (“Actual
Monthly Yield”) is not greater than 90% of the trend yield set by the
Parties for such Crop Year, then the Maximum Monthly Amount for the following
month shall be reduced by 15%. However, if a subsequent USDA production report
issued during August through December of such Crop Year shows that the Actual
Monthly Yield for a given month has increased to an amount which is greater
than 90% of the trend yield set by the Parties for such month, then the Maximum
Monthly Amount for the following month shall be restored to the original
Maximum Monthly Amount before the 15% reduction. If the January USDA production
report published during a Crop Year shows that the Actual Monthly Yield for
such month is not greater than 90% of the trend yield set by the Parties for
such month, then the Maximum Aggregate Amount for the Crop Year shall be
reduced by 15% and the Maximum Monthly Amount for any remaining months during
such Crop Year shall be reduced by 15%.


 


3.2                                 Unpurchased Amounts.


 


(a)                                  Notwithstanding anything to the contrary in
this Agreement, during each of the first six months of the Term beginning on
the Effective Date, Producer will accept delivery of, and pay Bunge for, at
least *** million pounds of Oil, and during all subsequent months during the
Term, Producer will accept delivery of, and pay Bunge for, at least *** million
pounds of Oil. Producer will pay Carrying Fees and Storage Interest on a
monthly basis to Bunge on any Unpurchased Amounts (as defined below) until such
Unpurchased Amounts are reduced to zero in accordance with Sections 3.2(b)
and 3.3; provided, however, Producer’s obligation to accept delivery of a
minimum quantity of Oil pursuant to this Section 3.2(a) shall be
suspended during such period that the Standard Monthly Amount is at a reduced
quantity during the months of July, August, September, October and November of
2008 pursuant to Section 1.3.


 


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(i)                                     For any month during the Term, an “Unpurchased
Amount” will be equal to the number of pounds by which the amount of Oil
which Producer is obligated to purchase pursuant to Section 3.2(a)
exceeded the amount of Oil that Purchaser actually purchased during such month.


 


(ii)                                  For a given month, the “Carrying Fee”
will be equal to the product of: (A) the CBOT storage fees per pound for
that month, multiplied by (B) the aggregate of
Producer’s Unpurchased Amounts.


 


(iii)                               For a given month, the “Storage Interest”
will be equal to one month’s interest at an annual rate equal to the prime rate
(as reported on the last business day of the previous month by the Wall Street
Journal) on the product of: (A) the closing CBOT futures price for the
nearby Oil contract on the last day of the month just prior to the given month plus the applicable Provision Fee, multiplied
by (B) the aggregate of Producer’s Unpurchased Amounts.


 


(b)                                 If the number of pounds of Oil purchased by
Purchaser during a month exceeds the amount of Oil which Producer is obligated
to purchase pursuant to Section 3.2(a) for such month, then the
oldest Unpurchased Amounts for which Producer is paying Carrying Fees and
Storage Interest will be reduced by such excess number of pounds.


 


3.3                                 Settlement Sales of Unpurchased Amounts.


 


(a)                                  Unless earlier reduced to zero pursuant to Section 3.2(b),
Bunge may conduct a Settlement Sale of each Unpurchased Amount upon the
12-month anniversary of the first day of the month for which such Unpurchased
Amount was generated (e.g., Bunge may conduct a Settlement Sale on May 1,
2010 of any Unpurchased Amount generated during the month beginning May 1,
2009). Following the completion of such Settlement Sale, and the payment by the
applicable party of any obligations generated thereby (as set forth in this
Section 3.3), the Unpurchased Amount sold in such Settlement Sale will be reduced
to zero for purposes of Section 3.2.


 


(b)                                 Producer may request by written notice to
Bunge at least 10 days in advance, that Bunge conduct a Settlement Sale of all
or any portion of its then-outstanding Unpurchased Amounts.


 


(c)                                  Notwithstanding anything to the contrary
herein, if at any time the aggregate of all Unpurchased Amounts exceeds 10
million pounds of Oil, then Bunge may conduct a Settlement Sale of all
Unpurchased Amounts of Oil in excess of such 10 million-pound limit.


 


(d)                                 Bunge may conduct a “Settlement Sale”
by attempting to sell an amount of Oil equal to the applicable Unpurchased
Amounts of Oil contemplated by this Section 3.3 on the open market.
If the price that Bunge receives for any resulting sale of Oil is:


 


7

















 


(i)                                     lower than the price that Producer had agreed
to pay for the applicable Unpurchased Amount(s), then Producer will pay to
Bunge an amount equal to: the product of: (A) the difference between the
two prices, multiplied by (B) the quantity of
Oil so sold by Bunge; or


 


(ii)                                  higher than the price that Producer had
agreed to pay for the applicable Unpurchased Amount(s), then Bunge will pay to
Producer an amount equal to: the product of (A) the difference between the two
prices, multiplied by (B) the quantity of Oil so
sold by Bunge.


 


(iii)                               If the Parties had not yet agreed on the
price for the applicable Unpurchased Amount(s), then Producer will pay to Bunge
an amount equal to the product of (A) the total number of pounds of Oil in
the applicable Unpurchased Amount(s), times
(b) $***.


 


(e)                                  Producer shall pay Carrying Fees and Storage
Interest on any Unpurchased Amounts for any time period prior to the shipment
of any amount of Oil sold pursuant to a Settlement Sale.


 


3.4                                 Scheduled Facility Shutdown. The Facility and Bunge’s Oil processing
facility are each subject to periodic shut-down periods for the purpose of
performing maintenance. The Parties agree to provide reasonable notice to the
other Party of any scheduled shut-down periods and to reasonably cooperate in
coordinating a mutually agreeable shut-down period for both facilities.


 


4.                                       Price and Payment.


 


4.1                                 Price. For all Oil delivered to the Facility, Producer will pay Bunge a
price per pound (the “Total Price”) equal to the total of: (a) the
CBOT futures price set by the Parties (including in the applicable Specific
Order or Monthly Estimate for such Oil), plus
(b) the Provision Fee agreed pursuant to Schedule 4.1 for such Oil.
Notwithstanding anything to the contrary in this Agreement, unless otherwise
agreed by Bunge, all CBOT futures pricing will be executed prior to the first
notice day of the applicable futures month.


 


4.2                                 Transaction Fees. For every 12-month period during the Term
commencing on the Effective Date, Producer will pay Bunge a “Transaction Fee”
equal to the product of (a) the total number of pounds of Oil delivered to
the Facility during the applicable 12-month period, times
(b) $***; provided that if Bunge delivers less than *** million
pounds of Oil to Producer within the applicable 12-month period due to Producer’s
(i) breach of this Agreement or (ii) failure to order or accept a
total of *** million pounds of Oil that complies with the Quality Standards,
then the Transaction Fee for such 12-month period will be $***.


 


4.3                                 Payments.


 


8

















 


(a)                                  Bunge will deliver an invoice to Producer
every Tuesday by 12:00 p.m. Central Time during the Term (or the next business
day if a Tuesday falls on a national holiday) that bills Producer for the price
determined pursuant to Section 4.1 for all Oil delivered to the
Facility during the seven-day period ending at 11:59 p.m. on the Friday four
days before the applicable Tuesday. Producer will pay each such invoice by
12:00 p.m. Central Time on the day after Bunge delivers such invoice.


 


(b)                                 Within 10 days after the end of any month
with regard to which Producer is obligated to pay Carrying Fees and/or Storage
Interest, Producer will pay to Bunge all such Carrying Fees and/or Storage
Interest.


 


(c)                                  Within 10 days after the end of each 12-month
period contemplated by Section 4.2, Producer will pay to Bunge the
Transaction Fee applicable to such period.


 


(d)                                 Interest will accrue on amounts past due at a
rate per annum equal to the lesser of
(a) the prime rate (as reported on the last business day of the previous
month by the Wall Street Journal) plus 2%, and
(b) the highest rate permitted by law. All amounts due to Bunge under this
Agreement will be paid by wire transfer without setoff, counterclaim or
deduction.


 


4.4                                 Tax. For purposes of personal property taxation and/or assessment or other
similar taxation, if any, any tax assessed on Oil received, handled, delivered,
stored or loaded by Bunge for the account and benefit of Producer will be the
responsibility of Producer, and at no time will Bunge be responsible for the
payment of any such tax.


 


5.                                       Term and Termination.


 


5.1                                 Term. The “Term” of this Agreement will begin upon execution of this
Agreement by both Parties and, unless earlier terminated in accordance with the
terms hereof, will expire upon the sixth  anniversary of
the Effective Date; provided that this Agreement shall thereafter
automatically renew for successive terms of two years each unless either Party
provides written notice to the other Party of its intention not to allow
renewal of the Agreement delivered no later than 12 months prior to expiration
of the initial or subsequent terms. The “Effective Date” will be the
date that the Facility first needs Oil for operations; provided that
Producer will notify Bunge at least ten days in advance of when Oil is first so
needed; and further provided that Bunge will provide reasonable
quantities of Oil under this Agreement in advance of the Effective Date as
reasonably requested by Producer to facilitate its start-up testing.


 


5.2                                 Termination Rights.


 


(a)                                  Either Party may terminate this Agreement
immediately upon notice to the other Party if such other Party has
(i) materially breached any representation, warranty, or obligation under
this Agreement, and (ii) failed to remedy such breach within 30 days after
the terminating Party has given notice of such breach, or if such breach cannot
reasonably be cured within such 30-day period, such other Party has failed to
commence


 


9

















 


and diligently pursue remedy
of the breach and failed to remedy such breach not later than 120 days after
the terminating Party has given notice of such breach.


 


(b)                                 Bunge may terminate this Agreement
(i) immediately upon notice to Producer if Producer fails to pay any
amount due under this Agreement within ten (10) days after Bunge gives Producer
written notice of such nonpayment; and/or (ii) immediately upon notice to
Producer if the Effective Date has not occurred on or before ***.


 


(c)                                  Either Party may terminate this Agreement
immediately upon notice to the other Party if (i) such other Party files a
petition for adjudication as a bankrupt, for reorganization or for an
arrangement under any bankruptcy or insolvency law, (ii) an involuntary
petition under such law is filed against such other Party and is not dismissed,
vacated or stayed within 60 days thereafter, (iii) such other Party makes
an assignment of all or substantially all of its assets for the benefit of creditors.


 


(d)                                 Bunge may terminate this Agreement
immediately upon notice to Producer if there is a Change in Control of Producer.
A “Change of Control” occurs upon any of: (i) a sale of all or
substantially all of the assets of Producer; (ii) a merger or
consolidation involving Producer, excluding a merger or consolidation after
which 50% or more of the outstanding voting equity interests of Producer
continue to be held by the same holders that held 50% of more of the
outstanding voting equity interests of Producer immediately before such merger
or consolidation; or (iii) any issuance and/or acquisition of voting
equity interests of Producer that results in a person or entity holding 50% or
more of the outstanding voting equity interests of Producer, excluding any
underwriter in any firmly underwritten offering and excluding any persons or
entities that collectively held 50% of more of the outstanding voting equity
interests of Producer immediately before such issuance or acquisition.


 


(e)                                  Either Party may terminate this Agreement in
accordance with Section 9.3 hereof.


 


(f)                                    Bunge may terminate this Agreement
immediately upon the dissolution of Producer.


 


(g)                                 Bunge may terminate this Agreement
immediately upon written notice to Producer if Producer has not (a) entered
into an agreement to purchase or lease land to hold the Facility on or before ***,
and (b) closed on such purchase or lease on or before ***.


 


5.3                                 Survival. The provisions of this Agreement which expressly or by their nature
survive expiration or termination of this Agreement, including, but not limited
to, Sections 4.3, 5.3, 7, 8, 9, 13 and 14, will remain in effect after
the expiration or termination of this Agreement..


 


6.                                       Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION AND THE AGREEMENT, BUNGE MAKES NO STATUTORY, WRITTEN, ORAL,


 


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EXPRESSED OR IMPLIED WARRANTIES,
REPRESENTATIONS OR GUARANTEES OF ANY KIND CONCERNING THE OIL SOLD UNDER THIS
AGREEMENT, OR ITS QUALITY, SOURCE, OR CHARACTERISTICS, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. NOTWITHSTANDING, BUNGE WARRANTS THAT AT THE TIME TITLE TO OIL PASSES
TO PRODUCER:


 


(a)                                  BUNGE WILL HAVE DEFENSIBLE TITLE TO SUCH OIL;
AND


 


(b)                                 BUNGE WILL HAVE THE RIGHT TO SELL SUCH OIL
FREE OF LIENS, ENCUMBERANCES AND ADVERSE CLAIMS OF ANY KIND.


 


7.                                       Limitation of Liability. In no event will either Party (or any of
its officers, directors, employees, agents or Affiliates) be liable to the other
Party for any special, incidental or consequential damages arising out of or
related to this Agreement (including, but not limited to, damages for lost
profits or income). For purposes of this Agreement: (a) the term “Affiliate”
means a Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the party
specified, with “control” or “controlled” meaning the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities or voting interests, by contract or otherwise; and (b)
the term “Person” shall mean any individual, general
partnership, limited partnership, limited liability company, joint venture,
trust, business trust, cooperative, association or other entity of whatever
nature.


 


8.                                       Remedies.


 


8.1                                 Bunge’s Remedies.


 


(a)                                  Bunge may suspend its performance under this
Agreement until Producer has paid all amounts due under this Agreement if
Producer fails to pay any amount within 10 days after the date when such amount
is due under this Agreement.


 


(b)                                 Bunge may specifically enforce Producer’s
obligation to purchase from Bunge all of the Oil needed to operate the Facility
as provided in this Agreement.


 


(c)                                  No right, power or remedy conferred by this
Agreement will be exclusive of any other right, power or remedy now or
hereafter available to Bunge at law, in equity, by statute or otherwise.


 


8.2                                 Producer’s Remedies. If Bunge does not deliver to Producer the
quantities of Oil required of Bunge under this Agreement, Producer may obtain
substitute quantities of Oil from other sources. PRODUCER’S EXCLUSIVE REMEDY,
WHETHER IN TORT, CONTRACT, OR OTHERWISE WITH RESPECT TO THE FAILURE BY BUNGE TO
DELIVER OIL IN THE QUANTITIES REQUIRED BY THIS AGREEMENT WILL BE FOR BUNGE TO
REIMBURSE PRODUCER FOR ITS REASONABLE COSTS TO COVER BY OBTAINING SUBSTITUTE
QUANTITIES OF OIL. EXCEPT AS EXPRESSLY PROVIDED IN THIS


 


11

















 


SECTION 8.2, BUNGE WILL NOT BE LIABLE FOR ANY
DAMAGES OR COSTS ASSOCIATED WITH THE FAILURE OF PRODUCER TO OBTAIN SUCH
REPLACEMENT OIL.


 


9.                                       Force Majeure.


 


9.1                                 Definition of Force Majeure Event. Each Party is excused from performing its
obligations under this Agreement to the extent that such performance is
prevented by an act or event (a “Force Majeure Event”) whether or not
foreseen, that: (i) is beyond the reasonable control of, and is not due to
the fault or negligence of, such Party, and (ii) could not have been
avoided by such Party’s exercise of due diligence, including, but not limited
to, a labor controversy, strike, lockout, boycott, transportation stoppage,
action of a court or public authority, fire, flood, earthquake, storm, war,
civil strife, terrorist action, epidemic, or act of God; provided that a
Force Majeure Event will not include economic hardship, changes in market
conditions, or insufficiency of funds. Notwithstanding the foregoing sentence,
a Force Majeure Event does not excuse any obligation to make any payment
required by this Agreement (including but not limited to Section 3.2) and will
not affect Bunge’s right to terminate this Agreement pursuant to Section
5.2(b)(ii). For the purpose of clarification and not for purposes of
limitation, an act or event which occurs at Bunge’s existing oil processing
facility in Emporia, Kansas that prevents Bunge’s performance under this
Agreement through use of such processing facility shall be considered a Force
Majeure Event under this Agreement.


 


9.2                                 Conditions Regarding Force Majeure Event. A Party claiming a Force Majeure Event
must: (i) use commercially reasonable efforts to cure, mitigate, or remedy
the effects of its nonperformance; provided that neither Party will have
any obligation hereunder to settle a strike or labor dispute; (ii) bear
the burden of demonstrating its existence; and (iii) notify the other
Party of the occurrence of the Force Majeure Event as quickly as reasonably
possible, but no later than five business days after learning of the occurrence
of the Force Majeure Event. Any Party that fails to notify the other Party of
the occurrence of a Force Majeure Event as required by this Section 9.2
will forfeit its right to excuse performance of its obligations due to such
Force Majeure Event. When a Party claiming a Force Majeure Event is able to
resume performance of its obligations under this Agreement, it will immediately
give the other Party notice to that effect and resume performance. For the
purpose of clarification and not for purposes of limitation, if a Force Majeure
Event occurs which impedes Bunge’s ability to provide quantities of Oil in
accordance with this Agreement (which, for purposes of clarification and not
for purposes of limitation, shall include a Force Majeure Event occurring at
Bunge’s existing oil processing facility in Emporia, Kansas that prevents Bunge’s
performance under this Agreement through use of such processing facility),
Bunge shall reasonably cooperate with Producer to obtain substitute quantities
of Oil from other sources during the period Bunge is excused from performance
as a result of such event, but Bunge’s obligation pursuant to this Section 9.2
to cure, mitigate or remedy the effects of its nonperformance shall not include
an obligation for Bunge to identify, contract for or otherwise act on Producer’s
behalf in obtaining substitute quantities of Oil from other sources and Bunge
shall not be obligated to pay any additional costs for procuring substitute Oil
pursuant to Section 8.2 or otherwise; provided, however, that Bunge may offer
to Producer and Producer may purchase from Bunge, in each Party’s discretion,
substitute Oil from other sources at a price which will include any additional
delivery or other costs. During the time that Bunge’s


 


12

















 


performance is suspended under this Agreement
as a result of a Force Majeure Event, Producer’s obligations to purchase
minimum quantities of Oil as set forth in this Agreement shall be suspended.


 


9.3                                 Third Parties; Termination. During any period that a Party claiming a
Force Majeure Event is excused from performance under this Agreement, the other
Party may accept performance from other parties as it may reasonably determine
under the circumstances. If a Party has not performed under this Agreement due
to a Force Majeure Event for four consecutive months or more, the other Party
may terminate this Agreement immediately upon notice to the non-performing
Party.


 


10.                                 Insurance.


 


10.1                           Workers’ Compensation. Each Party warrants to the other that all
of its employees that provide services under this Agreement will be covered as
required by law for workers’ compensation and employer’s liability insurance.


 


10.2                           Other Required Coverage.


 


(a)                                  Each Party will maintain automobile liability
insurance against claims for bodily injury, death and property damage, with
limits of not less than $1,000,000 per person and not less than $1,000,000 per
accident or occurrence; alternatively, combined single limits of not less than
$1,000,000. Such insurance will name the other Party, its parents, subsidiaries
and Affiliates as additional insureds thereunder, and will be primary and
non-contributory to any other insurance available to such other Party, its parents,
subsidiaries and Affiliates as insureds or otherwise.


 


(b)                                 Each Party will maintain commercial general
liability insurance (including, without limitation, coverage for Contractual
Liability and Products/Completed Operations) against claims for bodily injury,
death and property damage, with limits of not less than $3,000,000 in one
accident or occurrence; alternatively, combined single limits of not less than
$3,000,000 each accident or occurrence, $3,000,000 Products/Completed
Operations aggregate and $3,000,000 general aggregate. Such insurance will name
the other Party, its parents, subsidiaries and Affiliates as additional
insureds thereunder, and will be primary and non-contributory to any other
insurance available to such other Party, its parents, subsidiaries and
Affiliates as insureds or otherwise.


 


(c)                                  The minimum limits of coverage required by
this Agreement may be satisfied by a combination of primary and excess or
umbrella insurance policies; provided that any such excess or umbrella insurance
policies follow the form of the primary insurances and contain a drop down
provision in case of exhaustion of underlying limits and/or aggregates. Policies
provided hereunder shall provide for thirty (30) days prior written notice of
any cancellation or material change.


 


13

















 


(d)                                 Each Party waives all rights against the
other Party and its employees and agents for all losses and damages caused by,
arising out of or resulting from any of the perils or causes of loss covered by
the policies contemplated by Section 10.1 and 10.2 and any other
property insurance applicable to the Facility.


 


10.3                           Policy Requirements. All insurance policies required by this
Agreement will (a) provide coverage on an “occurrence” basis;
(b) provide that no cancellation, non-renewal or change will be effected
without giving the other Party at least thirty days’ prior written notice; and
(c) be valid and enforceable policies issued by insurers of recognized
responsibility, properly licensed in the State where the Facility is located,
with an A.M. Best’s Rating of A- or better and Class VII or better. Such
insurance policies will not contain a cross-liability exclusion or an exclusion
for punitive or exemplary damages where insurable under law. Prior to the
Effective Date and, thereafter, within five business days of renewal,
certificates and endorsements of such insurance will be delivered to the other
Party, as appropriate, as evidence of the specified insurance coverage. From
time to time, upon a Party’s request, the other Party will provide the
requesting Party, within five business days, a certificate of insurance
evidencing the required coverage to be maintained hereunder.


 


11.                                 Relationship of Parties. This Agreement creates no relationship
other than those of seller and buyer between the Parties hereto. Specifically,
there is no agency, partnership, joint venture or other joint or mutual
enterprise or undertaking created hereby and neither Party, or any of such
Party’s representatives, agents or employees, will be deemed to be the
representative, agent or employee of the other Party. Neither Party will have
authority to act on behalf of or bind the other Party, except as otherwise
specifically agreed.


 


12.                                 Confidentiality.


 


12.1                           Definition of Confidential Information. The term “Confidential Information”
means all material or information relating to a Party’s business operations and
affairs (including trade secrets) that such Party treats as confidential. Without
limiting the generality of the foregoing, all information regarding quantities
of Oil requested, supplied, or capable of being supplied and any pricing matter
under this Agreement will be deemed to be Confidential Information of the
appropriate Party.


 


12.2                           Use of Confidential Information. During the Term and for three years
thereafter, neither Party will (a) use any Confidential Information of the
other Party for any purpose other than in accordance with this Agreement or for
its and its Affiliates’ internal business purposes, or (b) disclose
Confidential Information to any person, except to its personnel who are subject
to nondisclosure obligations comparable in scope to this Section 13
and who have a need to know such Confidential Information in order to perform
under this Agreement. Notwithstanding the foregoing, the Parties acknowledge
that Bunge and its Affiliates may perform services for other third parties
similar to the services provided to Producer hereunder and that the disclosure
or use by Bunge or its Affiliates of Confidential Information in the course of
the provision of such services or for Bunge’s and its Affiliates’ own internal
business purposes shall not be considered a violation of this Section 12.


 


14

















 


12.3                           Disclosure of Confidential Information. Notwithstanding Section 12.2,
either Party may use for any purpose or disclose any material or information
that it can demonstrate (i) is or becomes publicly known through no act or
fault of such Party; (ii) is developed independently by such Party without
reference to the other Party’s Confidential Information; (iii) is known by
such Party when disclosed by the other Party, and such Party does not then have
a duty to maintain its confidentiality; or (iv) is rightfully obtained by
such Party from a third party not obligated to preserve its confidentiality who
did not receive the material or information directly or indirectly from the
other Party. A Party also may disclose the other Party’s Confidential
Information to the extent required by a court or other governmental authority,
provided that the disclosing Party (a) gives the other Party advance
written notice of the disclosure, (b) uses reasonable efforts to resist
disclosing the Confidential Information, (c)  cooperates with the other
Party on request to obtain a protective order or otherwise limit the
disclosure, and (d) as soon as reasonably possible, provides a letter from its
counsel confirming that such Confidential Information is, in fact, required to
be disclosed.


 


12.4                           Injunctive Relief. Each Party acknowledges and agrees that its
breach or threatened breach of any provision of this Section 12
would cause the other Party irreparable injury for which it would not have an
adequate remedy at law. In the event of a breach or threatened breach, the
nonbreaching Party will be entitled to injunctive relief in addition to all
other remedies it may have at law or in equity.


 


13.                                 Governing Law; Disputes.


 


13.1                           Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Missouri, excluding any applicable conflicts-of-law rule or principle
that might refer the construction or interpretation of this Agreement to the
laws of another state.


 


13.2                           Notice of Dispute. If any dispute shall arise under or in
connection with this Agreement, the Parties hereto agree to follow the
procedures set forth in this Section 13 in an effort to resolve the
dispute prior to the commencement of any formal proceedings; provided, however, that either Party may institute judicial
proceedings seeking equitable relief or remedies without following the
procedures set forth herein. The Parties shall attempt in good faith to resolve
any dispute arising out of or relating to this Agreement, the breach,
termination, or validity hereof, or the transactions contemplated herein
promptly by negotiation between representatives who have authority to settle
the controversy. Any Party may give the other Party written notice that a
dispute exists (a “Notice of Dispute”) setting forth a statement of such
Party’s position. Within twenty (20) business days of the delivery of the
Notice of Dispute, representatives of the Parties shall meet at a mutually
acceptable time and place, and thereafter as long as they both reasonably deem necessary,
to exchange relevant information and attempt to resolve the dispute. If the
matter has not been resolved within thirty (30) days of the disputing party’s
delivering its Notice of Dispute, the dispute shall be referred to the
respective presidents, general managers or comparable senior executives of
Producer and Bunge who shall within twenty (20) additional days meet to attempt
in good faith to resolve the dispute.


 


15

















 


13.3                           Mediation. If the matter still has not been resolved within sixty (60) days of
the delivery of the Notice of Dispute, then any Party may seek to resolve the
dispute through mediation administered by the Commercial Mediation Rules of the
American Arbitration Association. If the Parties fail to resolve the dispute
within twenty-one (21) days after starting mediation, then either Party may
initiate appropriate proceedings to obtain a judicial resolution of the
dispute.


 


13.4                           Negotiations; Jurisdictional Matters. If a representative of any Party intends to
be accompanied at a meeting by an attorney, the other negotiator shall be given
at least three (3) business days’ notice of such intention and may also be
accompanied by an attorney. All negotiations pursuant to this clause are confidential
and shall be treated as compromise and settlement negotiations for purposes of
the Federal Rules of Evidence and similar state rules of evidence. Any
proceeding initiated by either Party hereto shall be commenced and prosecuted
in the United States District Courts for the Eastern District of Missouri or
the state courts in St. Louis County, Missouri, and any courts to which an
appeal may be taken, and each Party hereby consents to and submits to the
personal jurisdiction of each of such courts.


 


13.5                           Waiver of Jury Trial. EACH PARTY
IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


14.                                 Notices. All notices required or permitted under this Agreement will be in
writing and will be deemed given and made: (i) if by personal delivery, on
the date of such delivery, (ii) if by facsimile, on the date sent (as evidenced
by confirmation of transmission by the transmitting equipment), (iii) if
by nationally recognized overnight courier, on the next business day following
deposit, and (iv) if by certified mail, return receipt requested, postage
prepaid, on the third business day following such mailing; in each case
addressed to the address or facsimile number shown below for such Party, or
such other address or facsimile number as such Party may give to the other
Party by notice:


 


	
  In
  the case of Bunge:

  	
   

  	
  Bunge North America (OPD
  West), Inc.

  
	
   

  	
   

  	
  11720 Borman Drive

  
	
   

  	
   

  	
  St. Louis, Missouri 63146

  
	
   

  	
   

  	
  Attn: Senior Vice
  President - Oils

  
	
   

  	
   

  	
  Facsimile: (314) 292-2146

  



 


 


	
  With
  a copy to:

  	
   

  	
  Bunge North America, Inc.

  
	
   

  	
   

  	
  11720 Borman Drive

  
	
   

  	
   

  	
  St. Louis, Missouri 63146

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
  Facsimile: (314) 292-2521

  



 


	
  In
  the case of Producer:

  	
   

  	
  REG Emporia, LLC

  
	
   

  	
   

  	
  406 1st Street, PO Box 128

  
	
   

  	
   

  	
  Ralston, IA 51459

  



 


16

















 


	
   

  	
   

  	
  Attn: Nile Ramsbottom

  
	
   

  	
   

  	
  Facsimile: 712-667-3479

  



 


	
  With
  a copy to:

  	
   

  	
  Wilcox, Polking, Gerken,
  Schwarzkopf & Copeland, P.C.

  
	
   

  	
   

  	
  115 E. Lincolnway, Suite
  200

  
	
   

  	
   

  	
  Jefferson, IA 50129

  
	
   

  	
   

  	
  Attn: John Gerken

  
	
   

  	
   

  	
  Facsimile: 515-386-8531

  



 


15.                                 Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, between the Parties with respect to
the subject matter hereof. This Agreement does not, and is not intended to,
confer any rights or remedies upon any person other than the Parties.


 


16.                                 Amendments; Waiver. The Parties may amend
this Agreement only by a written agreement of the Parties. In the event of a
conflict between the terms of this Agreement and the terms contained in a
Specific Order, Monthly Estimate or any other purchase order or sales invoice,
the terms of this Agreement shall control. No provision of this Agreement may
be waived, except as expressly provided herein or pursuant to a writing signed
by the Party against whom the waiver is sought to be enforced. No failure or
delay in exercising any right or remedy or requiring the satisfaction of any
condition under this Agreement, and no “course of dealing” between the Parties, operates as a waiver or
estoppel of any right, remedy or condition. A waiver made in writing on one
occasion is effective only in that instance and only for the purpose that it is
given and is not to be construed as a waiver on any future occasion or against
any other person.


 


17.                                 Assignment. No Party may assign this Agreement, or assign or delegate any of its
rights, interests, or obligations under this Agreement, voluntarily or
involuntarily, whether by merger, consolidation, dissolution, operation of law,
or any other manner, without the prior written consent of the other Party, and
any purported assignment or delegation without such consent will be void. Despite
the prior sentence, Bunge may assign this Agreement, or assign or delegate any
of its rights, interests, or obligations under this Agreement, to any of its
Affiliates without Producer’s prior written consent. Subject to the preceding
sentences in this Section 17, this Agreement binds and benefits the
Parties and their respective permitted successors and assigns.


 


18.                                 Severability. If a court or arbitrator with proper
jurisdiction determines that any provision of this Agreement is illegal,
invalid, or unenforceable, the remaining provisions of this Agreement remain in
full force. The Parties will negotiate in good faith to replace such illegal,
invalid, or unenforceable provision with a legal, valid, and enforceable
provision that carries out the Parties’ intentions to the greatest lawful
extent under this Agreement.


 


19.                                 Interpretation. Each Party has been represented by counsel
during the negotiation of this Agreement and agrees that any ambiguity in this
Agreement will not be construed against one of the Parties.


 


17

















 


20.                                 Further Assurances. Each Party will execute
and cause to be delivered to the other Party such instruments and other
documents, and will take such other actions, as the other Party may reasonably
request for the purpose of carrying out or evidencing any of the transactions
contemplated by this Agreement.


 


21.                                 Counterparts. This Agreement may be executed by the
Parties by facsimile and in separate counterparts, each of which when so
executed will be deemed to be an original and all of which together will
constitute one and the same agreement.


 


18

















 


 


IN WITNESS WHEREOF, the Parties have caused
this Agreement to be executed the day and year first above written.


 


 


	
  BUNGE NORTH AMERICA

  	
   

  	
   

  	
   

  
	
  (OPD WEST), INC.

  	
   

  	
  REG EMPORIA, LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ GREG BECHTEL

  	
   

  	
  By Renewable Energy Group,
  Inc.

  	
   

  
	
   

  	
   

  	
  Its Sole Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
  Vice-President

  	
   

  	
  By:

  	
  /s/ NILE RAMSBOTTOM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Nile Ramsbottom, President

  
								



 


19