amtx_ex101





 







Exhibit 10.1


 



CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.


 


 


 



FUEL ETHANOL PURCHASE AND SALE AGREEMENT


 



BETWEEN


 



AEMETIS ADVANCED FUELS KEYES, INC.


 



AND


 



MUREX LLC


 


 


 


 


 


 


 


 


 


 


 



Effective Date: October 1, 2021


 




 








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



FUEL ETHANOL PURCHASE AND SALE AGREEMENT



BETWEEN



AEMETIS ADVANCED FUELS KEYES, INC.



AND



MUREX LLC


 


This
Agreement is made effective as of June 9, 2021, by and between
Aemetis Advanced Fuels Keyes, Inc., a Delaware corporation, having
its offices in Cupertino, California ("Seller"), and Murex LLC, a
Texas limited liability company with its principal offices of
business in Plano, Texas ("Buyer"). Seller and Buyer are herein,
sometimes, individually referred to as a “Party” and,
collectively, as the “Parties.”


 



RECITALS:


 


WHEREAS, Seller
owns and operates an ethanol production facility (estimated at 65
million gallons per year) in Stanislaus County,
California.


 


WHEREAS, Seller has
agreed to sell to Buyer, and Buyer has agreed to buy from Seller
all (100%) of the Fuel Ethanol (as defined below) to be produced
from the Keyes Plant (as defined below) and 100% of the cellulosic
ethanol (as defined below) produced from the Keyes Plant or the
Riverbank Plant (as defined below) on the terms and conditions in
this Agreement.


 


NOW
THEREFORE this Agreement, in consideration of the promises and
mutual covenants and conditions contained herein, Seller and Buyer
agree as follows:


 



ARTICLE I


 



DEFINITIONS AND INTERPRETATION


 


"ANP Anhydrous Fuel Ethanol" means
Undenatured Fuel Grade Ethanol as defined on Schedule
B.


 


"Applicability" The definitions in this
Article apply to this Agreement. Any word, phrase or expression
that is not defined in this Agreement and that has a generally
accepted meaning in the custom and usage in the ethanol industry in
the United States shall have that meaning in this
Agreement.


 


"ASTM D-4806" shall be defined on
Schedule A.


 


"Billable Volume" means the volume of
Fuel Ethanol produced and shipped by Seller and not yet paid for by
Buyer. This includes volume loaded, shipped and transferred to
Buyer via Electronic Data Interchange
(“EDI”).


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


"Business
Days" means Days on
which the New York Mercantile Exchange is open, and any other Days
mutually agreed by Buyer and Seller.


 


"Buyer" means Murex LLC, a Texas limited
liability company, with the address of 7160 North Dallas Parkway,
Suite 300, Plano, TX 75024.


 


"CDX" means Central Data Exchange, the
EPA’s agency reporting site.


 


“Cellulosic
Ethanol” means the clear odorless liquid ethyl alcohol
produced for use as a motor fuel additive from renewable, organic,
non-starch based feedstock and complying with current year ASTM
D4806 standard as found in Appendix A and any subsequent revisions
to Appendix A Buyer may send to Seller.


 


"Certificate of
Analysis" means a
document signed by an authorized representative of Seller,
describing Specifications for, and testing methods applied to, Fuel
Ethanol, and the results of testing.


 


"Commencement
Date" means October
1, 2021.


 


"Commission"
means for each net gallon that Buyer takes under this Agreement,
Buyer shall receive the product of the Commission Rate (as defined
below) times the Net Purchase Price as defined in Section 7 .1 for
volume produced from the Plant.


 


"Commission
Rate" means for each
net gallon that Buyer takes under this Agreement, Buyer shall earn
a commission rate [***] as defined in Section 7.1 for volume
produced from the Plant.


 


"Day" means calendar day. If a Day falls on
a Saturday, it shall be deemed to be a Friday or the next Business
Day before a Saturday. If a Day falls on a Sunday, it shall be
deemed to be a Monday or the next Business Day after a
Sunday.


 


"Delivery" means the transfer of Fuel Ethanol
from Seller contracted by Buyer at the Delivery Point.


 


"Delivery
Point" means the
loading of Fuel Ethanol at the outlet flange at Seller's Stanislaus
County, California facility, transferring the Fuel Ethanol into
trucks.


 


"Dollars". All references to "dollars" in this
Agreement shall be references to amounts expressed in United States
currency. All calculations of monetary sums to be hereunder shall
be made in US currency.


 


"Effective
Date" means the date
set forth in the introductory paragraph of this
Agreement.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


"EMTS" means EPA Moderated Transaction
System, a tool that allows companies to report and track
transactions for EPA Fuel Programs.


 


"Fuel Ethanol" means the clear odorless liquid ethyl
alcohol produced for use as a motor fuel additive from biogenic
feedstock and complying with current year ASTM D4806 standard as
found in Appendix A and any subsequent revisions to Appendix A
Buyer may send to Seller. For the absence of doubt, Fuel Ethanol
does not include ethyl alcohol produced for sanitization use,
industrial use, or any other non-motor fuel use.


 


"Force
Majeure" has the
meaning given in Section 13.2.


 


"Forward Contracted
Gallons" means any
gallons of Fuel Ethanol produced from the Plant for which Buyer has
agreed to resell to third parties pursuant to binding forward
delivery contracts.


 


"Gallon" means one U.S. gallon of Fuel Ethanol
at 60 degrees F.


 


"Governmental
Authority" means any
Federal, state, local, or other governmental, regulatory or
administrative agency, court, commission, department, board, or
other governmental subdivision, legislature, rulemaking board,
tribunal, or other governmental authority.


 


"Insurance
Costs" means
insurance costs per gallon, calculated at 0.8800% per $100.00
($88.00 per $1 million), plus $0.009378 per barrel ($0.00022329)
per Gallon, or $223.29 per 1 million Gallons). Insurance Costs for
trucks picking up Fuel Ethanol at the Plant are $0.00 per Gallon.
Insurance Costs are adjusted annually in November with renewal of
Buyer's insurance policies.


 


"Initial
Term" has the
meaning given in Section 3.1.


 


"LCFS" means the California Low Carbon Fuel
Standard Program, which aims to decrease the carbon intensity of
California's transportation fuel pool and provide an increasing
range of low-carbon and renewable alternatives, which reduce
petroleum dependency and achieve air quality benefits.


 


"Plant" means the approximately 65 million
Gallon per annum Fuel Ethanol production plant located in Keyes,
California and/or the approximately 45 million Gallon per annum
cellulosic Fuel Ethanol production plant located in Riverbank,
California.


 


"Prime Commercial Lending
Rate" means the rate
of interest most recently published in the Money Rates section of
The Wall Street Journal as
the prime annual rate of interest.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


"Provisional
Price" means an
estimated price calculated as the estimated contract price based on
Shipment Date (as defined below).


 


"Provisional
Payment" means an
estimated payment made in advance of the final payment, determined
by posted index prices.


 


"Net
Purchase
Price" has the
meaning given in Section 7.1.


 


"Renewal
Term" has the
meaning given in Section 3.1.


 


"Resale
Costs" means all
costs and charges incurred by Buyer in handling Gallons received
from the Plant (including the cost of any Gallons properly obtained
by Buyer pursuant to Section 7.3 herein), without mark-up by Buyer,
and without charge for Buyer's administrative costs.


 


"Schedule
A" means Schedule A
attached to this Agreement, as it may be amended and revised from
time to time, which shall constitute part of, and shall be included
in this Agreement.


 


"Schedule
B" means Schedule B
attached to this Agreement, as it may be amended and revised from
time to time, which shall constitute part of, and shall be included
in this Agreement.


 


"Seller" means Aemetis Advanced Fuels Keyes,
Inc., a Delaware corporation, with the address of 20400 Stevens
Creek Boulevard, Suite 700, Cupertino, California
95014.


 


"Shipment
Date" means the date
trucks are loaded at the Plant and exit through the Plant’s
gates.


 


"Taxes" has the meaning given in Section 7
..2.


 


"Total Annual Plant
Production" means
the entire production of Fuel Ethanol from the Plant, within a
12-month period, which production is estimated but not warranted to
be approximately 65 million gallons per year and any additional
capacity expansion of Fuel Ethanol in each 12-month
period.


 


"Transportation
Costs" means costs
charged by a third party for transportation from Plant to a buyer's
point of delivery together with insurance and all other costs and
charges incurred to third parties other than Resale Costs in
connection with such transportation, without mark-up by Buyer, and
without charge for Buyer's administrative costs.


 



ARTICLE II


 



COMMENCEMENT DATE NOTICE


 


Section 2.1 Notice
Dates. When either Fuel Ethanol or Cellulosic Ethanol is
first Delivered from Seller to Buyer, Buyer and Seller will
formalize the Commencement Date with a commencement letter. This
date is currently understood by Buyer and Seller to mean October 1,
2021.


 


Section 2.2
Production Estimates. Seller shall provide to Buyer no less
than 60 days prior to the Commencement Date a best estimate of the
amount of Fuel Ethanol or Cellulosic Ethanol production on a daily
basis for the ninety (90) day period following the estimated
Commencement Date. After the Commencement Date, Seller shall
provide monthly notices to Buyer, by the 20th of each month,
estimating the daily production for the next six (6) month period
beginning the first month following the date of the last estimate.
Seller shall promptly notify Buyer of any adjustments to the Fuel
Ethanol or Cellulosic Ethanol production schedule that has been
most recently given to Seller.


 


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE III


 



TERM; TERMINATION


 


Section 3.1 Initial
Term; Renewal. The initial term of the Agreement shall be
for a twelve (12) month period (the "Initial Term"), beginning on
the Commencement Date. The Initial Term shall be followed by
renewal terms (the "Renewal Terms") of one (1) year each that renew
automatically unless notice is given by either party at least
ninety (90) days prior to the end of the current term.


 


Section 3.2
Effective during Initial Term. Subject to the conditions of
this Agreement, this Agreement shall be effective for the Initial
Term and shall continue after the Initial Term, if renewed as
provided in Section 3.1.


 


Section 3.3
Termination during Initial Term. This Agreement may not be
terminated during the Initial Term unless pursuant to the
provisions of Sections 3.4, 3.5, 7.1, 9.1 or 14.8 and shall
otherwise continue after the Initial Term unless (i) terminated
pursuant to Sections 3.4, 3.5, 7.1, 9.1 or 14.8, or (ii) not
renewed pursuant to Section 3.1.


 


Section 3.4
Termination by Seller Due to Buyer Insolvency. If Buyer becomes insolvent or
suffers the filing of a petition of bankruptcy, executes an
assignment for the benefit of creditors, or becomes the subject of
any insolvency proceeding of any nature, then, in addition to any
other rights and remedies Seller may have, Seller shall have the
right to immediately terminate this Agreement by written
notice.


 


Section 3.5
Termination by Buyer Due to Seller Insolvency. If Seller (i)
becomes insolvent or suffers the filing of a petition of
bankruptcy, executes an assignment for the benefit of creditors, or
becomes the subject of any insolvency proceeding of any nature; and
(ii) fails to deliver Fuel Ethanol as prescribed in this Agreement,
then, in addition to any other rights and remedies it may have,
Buyer shall have the right to immediately terminate this Agreement
by written notice.


 


Section 3.6 Effect
of Termination. If a Buyer contract with a third party
customer involving Seller's Fuel Ethanol extends beyond the
Termination date described in Section 3.3, and if Seller has
approved such Buyer contract with a third party customer in writing
by email or fax, then the terms of this Agreement shall extend to
such Buyer contract beyond the termination date under the terms of
this Agreement.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE IV


 



PURCHASE AND DELIVERY OBLIGATIONS


 


Section 4.1
Purchase of Fuel Ethanol Production. Subject to the provisions of this
Agreement, Seller shall sell and make available for Delivery and
Buyer shall purchase and take Delivery in accordance with Section
5.1 of one hundred percent (100%) of the Fuel Ethanol and
Cellulosic Ethanol produced by the Plant(s) on a daily basis.
Seller has the exclusive right to separately market and sell all
non-Fuel Ethanol gallons produced at the Plant. Seller shall notify
Buyer of any material differential in volumes available for Fuel
Ethanol sales resulting from non-Fuel Ethanol
production.


 


Section 4.2 Access
to Delivery Point.
Buyer shall be given reasonable access to the Delivery Point(s) at
the Plant during normal business hours upon reasonable prior
notice; provided that Buyer's access shall be without disruption to
Seller's business operations at the Plant. Buyer will provide
Seller with delivery schedules and make arrangements for
transportation of the Fuel Ethanol. Seller shall handle and
supervise the loading and Delivery of Fuel Ethanol, prepare
Delivery documentation and generally be responsible for all matters
ancillary to such activities. All equipment necessary to load
trucks at the Delivery Point shall be supplied by Seller without
charge to Buyer.


 


Section 4.3
Purchase Exclusivity. Buyer is obligated, and shall have
the exclusive right, to purchase from Seller all Fuel Ethanol and
Cellulosic Ethanol produced at the Plant. If Buyer does not
purchase and take Delivery of said Fuel Ethanol and Buyer does not
resell the Fuel Ethanol, Buyer shall purchase the Fuel Ethanol for
its own account. When Buyer's purchase is for its own account based
on the conditions above, such sales shall be agreed upon based on
current spot market prices and applicable Carbon Intensity Price
(“CIP”) and Renewable Identification Number price
(“RIN”). For purchases of Fuel Ethanol by Buyer for its
own account, Buyer will be responsible for all storage and other
charges (including transportation) after the purchase and Buyer
will be entitled to all proceeds obtained from the resale of the
Fuel Ethanol, except that Seller will be responsible for
maintaining the storage tanks at the Plants in Stanislaus County,
California where Fuel Ethanol owned by Buyer is stored before
loading to trucks.


 


Section 4.4
Shipments to Terminals. Buyer leases terminal storage at the
Buyer's proprietary Ethanol Unit Train Terminal in Texas City,
Texas. For shipments of Fuel Ethanol to Buyer's terminal at
Oiltanking, Texas City, Texas, Seller shall incur no throughput
charges. Throughput charges will continue to apply for shipments to
other terminals.


 


Charges
for third-party terminal and transloading facilities may change
from time to time. Buyer will disclose changes to additional
terminals and transloading facilities and related fees with Seller
as soon as Buyer is aware of these changes. If Seller has not been
notified of changes prior to signing of a customer contract, the
fees in effect before the change will apply to Seller. No minimum
usage provisions apply.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


Section 4.5 Ethanol
RINs. On all Fuel Ethanol produced, Buyer will handle all
RIN activity for Seller through the Environmental Protection Agency
("EPA") Moderated Transaction System ("EMTS"). In addition, Buyer
will submit all regulatory reports required by the EPA following
Seller's review and approval. Buyer represents and warrants that
all RIN activity reports and regulatory reports will be conducted
and completed in accordance with and as required by all applicable
laws and regulations. Buyer will provide Seller copies of all
regulatory/RIN reports filed with the EPA. For the absence of
doubt, Buyer’s services do not include the procurement or
payment of any 3rd party engineering reports, external consulting
services, or any quarterly or annual attestation fees.


 


Section 4.6 Low
Carbon Fuel Standard Credits. On all Fuel Ethanol produced,
Buyer will handle all LCFS activity for Seller. In addition, Buyer
will submit all regulatory reports required, following Seller's
review and approval. Buyer represents and warrants that all LCFS
activity reports and regulatory reports will be conducted and
completed in accordance with and as required by all applicable laws
and regulations. Buyer will provide Seller copies of all
regulatory/LCFS reports filed. For the absence of doubt,
Buyer’s services do not include the procurement or payment of
any 3rd party engineering reports, external consulting service
fees, 3rd
party audit services or fees, or any California Air Resources Board
quarterly or annual reporting requirements tied to Seller’s
production operations.


 



ARTICLE V


 



QUANTITY


 


Section 5.1 Uniform
Weekly Deliveries. Subject to operational fluctuations in
the ordinary course of business due to maintenance, equipment
uptime, corn availability and other factors, Seller shall deliver
the Fuel Ethanol and Buyer shall take Delivery of Fuel Ethanol at
the Delivery Point(s) at uniform weekly rates, as nearly as
practicable such that the Fuel Ethanol delivered in any one month
shall approximately equal one twelfth (I/12th) of Seller's
estimated annual Fuel Ethanol production, less production
designated for non-Fuel Ethanol sales, pursuant to Section 4.1.
Buyer shall be obligated to take Delivery of, and to pay for in
accordance with Article 4, all quantities of Fuel Ethanol tendered
for Delivery by Seller.


 


Section 5.2
Quantity Measurement. The quantity of Fuel Ethanol
delivered to Buyer by Seller from the Plant shall be established by
outbound meter tickets expressed in net temperature corrected
Gallons in accordance with standards commonly used within the
industry in the United States of America. The meter tickets shall
be obtained from meters which are certified as of the time of
loading and which comply with all applicable laws, rules and
regulations. The outbound meter tickets shall be determinative in
the absence of manifest error (greater than 0.5% variation) of the
quantity of Fuel Ethanol for which Buyer is obligated to pay
pursuant to Section 11.1.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE VI


 



QUALITY


 


Section 6.1
Specification Requirement. Seller shall deliver under this
Agreement Fuel Ethanol to Buyer that meets the specifications set
forth in Schedule A. If any Governmental Authority requires a
change in the specifications set forth in Schedule A, Buyer shall
notify Seller of the revised specifications. Seller and Buyer agree
to change the specifications of Fuel Ethanol in this Agreement
within a reasonable time as agreed to by Buyer and Seller,
accordingly, subject to Article 13. Buyer may require Seller to
switch production among the Products to take advantage of market
conditions. Seller will make best efforts to switch production as
quickly as feasible. If any Governmental Authority requires a
change in the specifications set forth in Schedule B, Buyer shall
notify Seller of the change in specifications. Seller and Buyer
agree to change the specifications of Fuel Ethanol in this
Agreement within a reasonable time as agreed to by Buyer and
Seller, accordingly, subject to Article 17.1. For shipments to
terminals that require quality tests, and for shipments on
contracts with unique specifications, Seller may be obligated to
deliver Fuel Ethanol with specifications that differ from, and are
often more stringent than, the specifications in accordance with
Section 6.1. These unique specifications will be presented with the
contract/shipping opportunity, and Seller's acceptance of such
contract will also be Seller's commitment to deliver Fuel Ethanol
within these specifications.


 


Regardless of any
Specification Requirements, under no circumstances will Seller be
required to produce Fuel Ethanol with less than 0.5% water content
by volume.


 


Section 6.2
Insurance. Each party shall arrange and maintain a minimum
of US $5,000,000 product and commercial general liability insurance
and cause the other party to be designated as additional insured as
their interests may appear, with waiver of subrogation by the
insurer against the other party. Each party shall further arrange
and maintain employer's liability insurance meeting all statutory
requirements. In each case, each party shall provide to the other
party a copy of the certificate(s) of insurance evidencing
existence of the required insurance.


 


Section 6.3
Responsibility for Off-Specification Fuel Ethanol. If
the Fuel Ethanol delivered by Seller does not meet the
specifications set forth in Schedule A when Delivered by Seller to
the transportation vehicles, and quality claims arise as a result
thereof, such quality claims will be administered by Buyer with
consent of Seller. Such claims shall be solely for Seller's account
and Buyer shall not be responsible in any manner whatsoever for
such claims.


 


Section 6.4
Maintenance of Samples. Seller agrees to sample and test the
storage tank on a daily basis and provide a Certificate of Analysis
for each truck that loads at the Plant. Seller agrees to maintain
original sealed and dated samples in accordance with Fuel Ethanol
industry practice or with specific requirements of end customers,
as applicable, and shall send one such sample to Buyer immediately
upon Buyer's request.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE VII


 



PRICE


 


Section 7.1
Determination of Price For all sales of Fuel Ethanol by
Buyer, where Buyer has agreed to sell Fuel Ethanol to third party
customers, Buyer agrees to pay the Net Purchase Price (as defined
below) to Seller for each Gallon of Fuel Ethanol delivered to
Buyer. For the avoidance of doubt, Buyer shall bear any risk of
non-payment by any third-party customer, and Buyer shall comply
with any obligations under this Section 7.1 (a), notwithstanding
any such non-payment. Determined in accordance with Section 5.2 for
Fuel Ethanol, the final purchase price shall be equal to the actual
sale price invoiced by Buyer for such Fuel Ethanol re-sold by Buyer
to such third party customers for the most recent Netback Statement
period, less: (i) all Resale Costs, including shipping costs and
terminal charges, and (ii) the Commission to Buyer calculated as
[***] (the “Net Purchase Price”).


 


Buyer
covenants to use its best efforts to obtain for Seller the best Net
Purchase Price then available for Fuel Ethanol sales taking into
consideration the deduction of all Resale Costs incurred by Buyer
for such Fuel Ethanol. It will be the responsibility of Buyer to
perform all billing in regard to the sale of Fuel Ethanol to third
parties, to collect all receivables, to undertake legal collection
procedures as necessary, and to bear the risk and be responsible
for any bad accounts. Buyer shall in no circumstances be obligated
to sell Fuel Ethanol to any buyer whose creditworthiness is
unacceptable to Buyer, provided that if Buyer determines that there
are no buyers willing to purchase Fuel Ethanol of creditworthiness
acceptable to Buyer, then Buyer shall purchase such Fuel Ethanol
for its own account. Seller agrees that its remedies for Buyer's
breach of its obligation in this paragraph (b) shall include
without limitation, the right to specific performance and the right
to terminate this Agreement.


 


[***]


 


Section 7.3
Inability to Produce. In the event Seller's Plant is unable
to produce sufficient Fuel Ethanol quantities to meet Buyer's sales
commitments, which sales commitments shall have been previously
disclosed to Seller, and such inability to produce is not the
result of Force Majeure, then in such case Buyer may purchase or
arrange for the purchase of such shortfall from other sources;
provided that Buyer shall use its best commercial efforts to obtain
such replacement Fuel Ethanol at the lowest costs available to it.
The revenue from and the cost of such Fuel Ethanol shortfall
supplied by Buyer or purchased from such third parties shall be
deducted from or added to the weekly payment described in Section
7.1. Buyer will provide to Seller as soon as practicable written
substantiation of such costs reasonably satisfactory to
Seller.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE VIII


 



RINS AND CARBON REDUCTION BENEFITS


 


Section 8.1
RINs. Buyer shall use its commercially reasonable efforts to
sell any of Seller’s RINs if they are separated from Fuel
Ethanol. Sales of RINs shall be for the exclusive account of Seller
provided that Buyer may purchase RINs from Seller for Buyer’s
account.


 


All
RINs sales shall be subject to the prior written approval,
including Electronic Communications, of Seller. Buyer shall furnish
to Seller copies of all RINs contracts between Seller and Buyer.
[***]


 


Section 8.2
Responsibility for Invalid RINs. If the RINs delivered by Seller
via EMTS do not meet the requirements set forth by the EPA, and
validity claims arise as a result thereof, such validity claims may
be administered by Buyer with prior written consent of Seller which
will not be unreasonably withheld. In the absence of such prior
written consent from Seller, such claims shall be administered and
defended by Seller. Such claims shall be solely for Seller’s
account and Buyer shall not be responsible in any manner whatsoever
for such claims. Seller shall indemnify, hold harmless and defend
Buyer against such claims.


 


Section 8.3 Agency
Agreement. Seller will designate Buyer as an agent via CDX
and EMTS so that Buyer can transact the purchase of RINs from
Seller to Buyer and then from Buyer to the customer. Electronic
summary notification will be provided by Seller describing all
transfers that will be executed in EMTS by Buyer, along with
documents verifying the required Product Transfer Document
(“PTD”) fields.
All necessary documents must be received by Buyer prior to RINs
transfer in EMTS. All right, title, and interest in and to the RINs
identified in the documents will transfer from Seller to Buyer on
the Title Transfer Date. Buyer will use the documents to produce
wholly-compliant PTDs, according to the EPA’s Renewable Fuels
Standard 2 (“RFS2”)
program, in respect to the quantity, type, and vintage year of RINs
specified in this Agreement, for both sides of the
transaction.


 


At
Seller’s discretion and timing, Buyer will handle all RIN
activity after generation and separation for Seller through EMTS.
In addition, Buyer will submit all regulatory RIN activity reports
required by the EPA following Seller’s review and written
approval which includes Electronic Communications. Buyer represents
and warrants that all RIN activity reports and regulatory reports
will be conducted and completed in accordance with and as required
by all applicable laws and regulations. Seller is responsible for
generation and separation of RINs through EMTS and for the accuracy
of information contained within the regulatory
reports.


 


Section 8.4 Due
Diligence. As part of final execution of this Agreement,
Seller shall promptly provide to Buyer all requested documentation,
in an effort to validate the legal generation and subsequent
separation of all RINs (herein, “Due Diligence
Documentation”). Such Due Diligence Documentation that
is updated or amended shall be provided on an on-going basis and
within 5 Days of submission to a Governmental Authority. Further,
Seller will promptly provide any additional documents as reasonably
requested over the entire term of the Agreement.


 


Section 8.5 Due
Diligence Recordkeeping. Seller and Buyer shall maintain
appropriate records that demonstrate compliance with applicable
law, rules and regulations and industry standards. Each Party also
shall immediately notify the other Party in writing of any
violation or alleged violation with respect to the RINs and, upon
reasonable request, shall provide the other with evidence of
environmental inspections or audits by any Governmental Authority
with respect to such physical fuel or related RINs.


 




 

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CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


 


Section 8.6 Carbon
Reduction Benefits. Carbon Reduction Benefits associated
with the Fuel Ethanol sold by Seller hereunder shall be for the
sole account of the Seller provided that Buyer may purchase Carbon
Reduction Benefits from Seller for Buyer’s account. Buyer
shall use its commercially reasonable efforts to sell
Seller’s Carbon Reduction Benefits (other than RINs which
shall be governed by Sections 8.1 through Section 8.5 hereof) that
are separated from Fuel Ethanol (referred to at times as the
“Other
Carbon Reduction Benefits”). Seller acknowledges that
under the California LCFS program, Carbon Reduction Benefits may
only be sold into California if the Fuel Ethanol is also physically
delivered and sold into California. All sales of the other Carbon
Benefits shall be subject to the prior written approval including
Electronic Communications of Seller. Buyer shall furnish to Seller
copies of all other Carbon Reduction Benefits contracts. Seller may
elect to delay sales of other Carbon Reduction Benefits based on
market conditions or for any other reason. Buyer will pay Seller
for such other Carbon Reduction Benefits on the next Payment date,
pursuant to Section 11.1, after Buyer has sold such other Carbon
Reduction Benefits to an approved third-party customer or to Buyer.
Seller will work with Buyer to provide due diligence and other
Carbon Reduction Benefits verification information required by
third-party customers to enable sales of other Carbon Reduction
Benefits. Only those items agreed upon by the Seller and the Buyer
in advance will be shared with third-party buyers of other Carbon
Reduction Benefits. Prior to the sale of any other Carbon Reduction
Benefits, Seller and Buyer shall enter into such other agreements
applicable to the LCFS program or programs applicable to such other
Carbon Reduction Benefits in furtherance of the implementation of
the sale of the other Carbon Reduction Benefits.


 


A
Carbon Trade Commission of [***] is due for Other Carbon Reduction
Benefits separated from the physical gallons that Buyer purchases
or sells under this Agreement. No Carbon Trade Commission is due
from Seller to Buyer for sale of Carbon Reduction Benefits to the
extent the value of such benefits are included in the Net Purchase
Price which is subject to the Commission in accordance with section
7.1(a).


 



ARTICLE IX


 



TRANSPORTATION AND INSURANCE CHARGES


 


Section 9.1
Transportation of Fuel Ethanol;
Termination for Breach. Buyer agrees to diligently pursue,
secure and maintain all necessary agreements to receive and
transport the Fuel Ethanol from the Delivery Point. Buyer shall be
solely responsible for the arrangement of transportation, and will
confer with Seller regarding the carrier’s eligibility to
load at the Plant prior to arrangement of transportation. Buyer
covenants to use its best efforts to obtain the best commercially
reasonable prices after considering the price of transportation
such that Seller achieves the highest net price possible after
payment for Transportation Costs. Seller agrees that its only
remedy for Buyer's breach of its obligation in the preceding
sentence shall be to terminate this Agreement.


 



ARTICLE X


 



STORAGE


 


Section 10.1
Storage Capacity. Seller shall at all times provide storage
at the Plant for Fuel Ethanol, including a finished product tank of
1 million gallons which equates to approximately 5.9 days of
operational storage.


 


 




 

11








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE XI


 



PAYMENTS


 


Section 11.1
Purchase-Price. Buyer shall pay to Seller the Net Purchase
Price for the Billable Volume under this Agreement as provided in
Section 7.1(a), RIN sales as provided in Section 8.1(a), other
Carbon Reduction Benefit sales as provided in Section 8.6 less any
Conversion and Transaction Fees (as provided in Section 21.4), if
any, Insurance Costs incurred by Buyer, RIN and Carbon Reduction
Benefit Commissions, and tank car lease costs, if any, by direct
wire transfer or electronic transfer to Seller’s designated
bank account (“Payment”).



 


[***]


 


[***]


 


Payments
will be made provisionally based on actual volumes sold and the day
of ship index prices for Fuel Ethanol and Carbon Reduction
Benefits. True ups will occur at the end of each calendar
month.  Buyer reserves the right to increase or reduce the
Fuel Ethanol price if the projected monthly true-up for a given
month is higher than $50,000.


 


Section 11.2
Interest. Subject to Article 14, if any party to this
Agreement fails to pay all or any portion of the amount owing by
that party when due, such unpaid amount will bear interest at a
rate equal to one per cent (1%) per annum above the Prime
Commercial Lending Rate as reported in the Money Rates section of
The Wall Street Journal,
calculated daily from the date such amount is due hereunder until
the date it is actually paid. Upon failure of a party to pay the
unpaid amount including interest thereon within ten (10) days after
the due date set out in this Agreement, the party to whom sums are
due may, upon giving seven (7) days' notice, suspend in whole or in
part its delivery or acceptance of Fuel Ethanol (as the case may
be) hereunder until such outstanding amount has been paid in
full.


 


Section 11.3
Audits. Any payment made pursuant to this Article will not
preclude a party from subsequently auditing the accounts of the
other on a once per year basis at the end of a calendar year or at
any time upon the occurrence of a default by such other party
hereunder, as permitted in this Agreement.


 



ARTICLE XII


 



TITLE AND RISK OF LOSS


 


Section 12.1
Transfer of Title. Delivery
occurs when the Fuel Ethanol is transferred to the outlet flange of
Tank Cars or trucks to take Delivery. Title and risk of loss or
damage shall only pass from Seller to Buyer upon Delivery. Until
Delivery occurs, Seller shall be deemed to be in control of and in
possession of and shall have title to and risk of loss of the Fuel
Ethanol.


 


Section 12.2
Liability Allocation. Buyer
will have no responsibility, or liability with respect to any Fuel
Ethanol deliverable under this Agreement until Delivery to Buyer as
described in Section 11.1.


 


 




 

12








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE XIII


 



REPRESENTATIONS, COVENANTS AND WARRANTIES

 


Section 13.1
Seller’s Representations, Warranties and Covenants.
Seller represents and warrants to Buyer, as of the Effective Date
hereof and covenants to Buyer at all times during the term of this
Agreement, as follows and acknowledges that Buyer is relying upon
such representations, warranties and covenants in connection with
the purchase of Fuel Ethanol under this Agreement:

 


(a)           Seller
is a Delaware corporation duly organized, validly existing and in
good standing under the laws of California, is qualified to do
business in the State of California and has the legal power and
authority to own its properties, to carry on its business as now
being conducted and to enter into this Agreement and, carry out the
transactions contemplated hereby and thereby and perform and carry
out all covenants and obligations on its part to be performed under
and pursuant to this Agreement.

 


(b)           The
execution, delivery and performance by the Seller of this Agreement
have been duly authorized by all necessary action, and do not and
will not require any consent or approval other than those which
have already been obtained.

 


(c)           The
execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and thereby and the fulfillment of
and compliance with the provisions of this Agreement, do not and
will not conflict with or constitute a breach of or a default
under, any of the terms, conditions or provisions of any
requirements of law, or any of Seller’s organizational
documents.

 


(d)           This
Agreement constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the
enforcement of creditors’ rights generally or by general
equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law.

 


(e)           There
is no pending, or to the knowledge of the Seller, threatened action
or proceeding affecting Seller before any Governmental Authority,
which purports to affect the legality, validity or enforceability
of this Agreement.

 


(f)          Seller
has title to all Fuel Ethanol delivered hereunder, it has the right
to sell the same to Buyer, and the Fuel Ethanol is free from any
liens or encumbrances;


 


EXCEPT
AS PROVIDED IN SECTION 12.l(a), AND AS PROVIDED INARTICLE 6 WITH
RESPECT TO THE QUALITY OF FUEL ETHANOL TO BE DELIVERED, THERE ARE
NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF


MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND


SELLER
HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.


 

 


(a)          Seller
covenants that it shall procure and maintain in force all licenses,
consents and approvals required for its operation of the Plant and
manufacture and sale to Buyer of the Fuel Ethanol under this
Agreement and shall be solely responsible for and indemnify Buyer
against any costs, liabilities or fines arising out of
Seller’s failure to comply with any applicable requirements
of such licenses, consents and approvals.


 




 

13








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


(b)          Seller
covenants that it will maintain accurate and complete production
and delivery records in a prudent and businesslike manner in
accordance with sound commercial practices in respect of Fuel
Ethanol produced by Seller at the Plant.

 


(c)          Seller
covenants that it will promptly notify Buyer of any actual or
anticipated production downtime or disruption to Fuel Ethanol
availability.

 


(d)          Seller
is a U.S. entity for purposes of state and federal income and
excise taxes.

 


Section 13.2
Buyer’s Representations, Warranties and Covenants.
Buyer represents and warrants to Seller, as of the Effective Date
hereof and covenants to Seller at all times during the term of this
Agreement, as follows and acknowledges that Seller is relying upon
such representations, warranties and covenants in connection with
the sale of Fuel Ethanol under this Agreement.

 


(a)           Buyer
is a Texas limited liability company duly organized, validly
existing and in good standing under the laws of Texas, is qualified
to do business in the State of California and has the legal power
and authority to own its properties, to carry on its business as
now being conducted and to enter into this Agreement and, carry out
the transactions contemplated hereby and thereby and perform and
carry out all covenants and obligations on its part to be performed
under and pursuant to this Agreement.

 


(b)           The
execution, delivery and performance by the Buyer of this Agreement
have been duly authorized by all necessary action, and do not and
will not require any consent or approval other than those which
have already been obtained.

 


(c)           The
execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and thereby and the fulfillment of
and compliance with the provisions of this Agreement, do not and
will not conflict with or constitute a breach of or a default under
any of the terms, conditions or provisions of any requirements of
law, or any of Buyer’s organizational documents.

 


(d)           This
Agreement constitutes the legal, valid and binding obligation of
Buyer enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the
enforcement of creditors’ rights generally or by general
equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law.

 


(e)           There
is no pending, or to the knowledge of the Buyer, threatened action
or proceeding affecting Seller before any Governmental Authority,
which purports to affect the legality, validity or enforceability
of this Agreement.

 


(f)           Buyer
covenants that it will maintain or cause to be maintained accurate
and complete records in a prudent and businesslike manner in
accordance with sound commercial practices, of the selling prices
described in Article 7 and the associated transportation, Resale
and other costs in respect of Fuel Ethanol purchased by Buyer from
Seller.

 


(g)           Buyer
has not incurred and is not responsible to pay any commission or
any finder’s fee in respect of any of the transactions
contemplated herein which commissions or finder’s fees could
in any manner be or become the responsibility of
Seller.


 




 

14








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


(h)           Buyer
is a US entity for purposes of state and federal income and excise
taxes.


 


Buyer
covenants that it shall procure and maintain in force all licenses,
consents and approvals required for its purchase from Seller and
resale of Fuel Ethanol hereunder and all its other obligations
under this Agreement except for those licenses for which Seller is
responsible under Section 12.1 (b), and shall be solely responsible
for and indemnify Seller against any costs, liabilities or fines
arising out of Buyer’s failure to comply with the applicable
requirements of such licenses, comments and approvals.


 



ARTICLE XIV


 



FORCE MAJEURE


 


Section 14.1 Force
Majeure. Subject to the other provisions of this Section
XIV, if either party is unable by reason of Force Majeure, as
hereinafter described, to perform in whole or in part any
obligation or covenant set forth hereunder, the obligations of both
Parties under this Agreement will be suspended or curtailed to the
extent necessary for the period such Force Majeure condition
continues. Where the Agreement is suspended or curtailed to the
extent necessary the amount of time the Force Majeure is in effect
will be added on to the Initial Term.


 


Section 14.2
Definition. For
the purposes of this Agreement, Force Majeure will include any
event or circumstance arising or occurring beyond the reasonable
control of Seller or Buyer, including without limiting the
generality of the foregoing:


 


(a)           Any
acts of God, including, but without restricting the generality
thereof, lightning, earthquakes, storms, epidemics, landslides,
floods, fires, explosions or washouts.


 


(b)           Any
strikes, lockouts, rail embargo, or other industrial disturbances
of a regional or national character.


 


(c)           Any
acts of the enemies of the state, terrorist attacks, sabotage,
wars, blockades, insurrections, riots, civil disturbances, arrests
or restraints.


 


(d)           Any
freezing, explosions, craterings, breakage of equipment, forced
maintenance shutdown, inability to obtain materials or
equipment.


 


 


(e)           Any
orders of any court or government authority, which physically limit
the production, transportation or sale of Fuel Ethanol or alter the
specifications of Fuel Ethanol from that described in Schedule
A.


 


(f)           Any
acts or omissions (including failure to take Fuel Ethanol) of a
transporter or carrier of Fuel Ethanol, which are caused by any
event or occurrence of the nature described in this Section
14.2.


 




 

15








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


(g)           Any
other reasonable causes, whether of the kind herein enumerated or
otherwise not within the reasonable control of the party claiming
suspension and which, by the exercise of due diligence, such party
could not reasonably have prevented or is unable to
overcome.


 


Section 14.3 Labor
Disputes. Notwithstanding anything to the contrary in this
Article expressed or implied, the settlement of strikes, lockouts
and other industrial disturbances will be entirely within the
discretion of the party involved therein and such party may make
settlement thereof at such time and on such terms and conditions as
it may deem advisable and no delay in making such settlement will
deprive such party of the benefit of Section 14.1.


 


Section 14.4 Sales
during Force Majeure. During the period when Buyer declares
Force Majeure, Seller shall have the right to sell and Deliver Fuel
Ethanol to third parties on any terms and conditions Seller
determines in its sole discretion.


 


Section 14.5
Exclusions. Force Majeure shall not include failure caused
by lack of funds or lack of market for Fuel Ethanol deliverable
hereunder by Seller to Buyer.


 


Section 14.6
Claiming Relief. A party claiming relief under this Article
will not be entitled to the benefit of the provisions of this
Article XIV hereof unless, as soon as reasonably possible after the
happening of the occurrence relied upon, or as soon as possible
after determining that the occurrence was in the nature of Force
Majeure and would affect the claiming party’s ability to
observe or perform any of its covenants or obligations hereunder,
the party claiming suspension gives to the other party notice to
the effect that such party is unable, by reason of Force Majeure,
to perform the particular covenants or obligations.


 


Section 14.7
Notice. The
party claiming suspension will give notice as soon as reasonably
possible when the Force Majeure condition has been or will be
remedied to the effect that the same has been remedied and that
such party has resumed, or is then in a position to resume, the
performance of the suspended covenants or obligations.


 


Section 14.8
Termination for Force Majeure. In the event that Force Majeure
shall continue for a period of twelve (12) months from the date the
party claiming relief under this Article has given the other party
notice, either party hereto shall have the right to terminate this
Agreement by furnishing written notice to the other, with
termination effective upon the expiration date of such twelve (12)
month period. Upon such termination, each party shall be relieved
from its respective obligations, except for obligations for payment
of monetary sums which arose prior to the event of Force
Majeure.


 



ARTICLE XV


 



LIMITATION OF LIABILITY


 


Section 15.1
Limitation of Liability. In no event shall Buyer or Seller
be liable to any party for any indirect, consequential, punitive or
special damages, loss of business expectations, business
interruptions or any damage to third parties arising in any way out
of this Agreement or any breach thereof.


 




 

16








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE XVI


 



BOOKS AND RECORDS


 


Section 16.1
Records. Seller and Buyer will establish and maintain at all
times, true and accurate books, records and accounts in accordance
with generally accepted accounting principles applied consistently
from year to year consistent with good industry practices,
distinguishable from all other books and records, in respect of all
transactions undertaken by such Party pursuant to this
Agreement.


 


Section 16.2
Semi-Annual Business Review. Seller and Buyer will meet
twice yearly at mutually agreed times and locations to review
various aspects of the relationship between Buyer and Seller,
including results, progress towards objectives, strategy, markets,
netback statements, accounting and payment issues, areas that are
working well, areas that need improvement, regulatory and
compliance issues, logistics, terminal issues, and other
issues.


 



Section 16.3 Audit.


 


(a)
If issues arise in the Business Review that cannot be resolved to
the satisfaction of the parties, then, during normal business
hours, each party shall have the right to audit such books, records
and accounts of the other party once per year at the end of the
calendar year or at any time upon the occurrence of a default by
such other party.


 


(b) Subject to paragraph (a) of this Section,
through to the expiration of one (1) year following the expiration
or termination of this Agreement, each party shall have the right
to have a third party auditor,
who will, be a member of a national U.S. certified public
accounting firm, audit on
such party's behalf the relevant accounts, books and records of the
other party to the extent
necessary in order to verify the accuracy of any statement, charge,
computation or demand made
under or pursuant to any of the provisions of this
Agreement.


 


(c)
If any error is discovered in any statement rendered hereunder,
such error will be adjusted within seven (7) days from the date of
discovery, but no adjustment will be made for any error discovered
more than one year after delivery and receipt of such
statements.


 


(d)
If a material difference from a statement rendered under this
Agreement by any party is discovered by any audit, the party which
rendered such statement will pay the costs of such audit. If no
such material difference appears, the party requesting the audit of
such statement will pay such costs.


 




 

17








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE XVII


 



NOTICES


 


Section 17.1
Notices. Except as herein otherwise provided, each notice,
request, demand, statement, report and bill which must or may be
given pursuant hereto will be in writing and may be mailed by
prepaid first class mail (or equivalent), delivered by hand, or
sent by fax or email to the address, number, or email address
indicated below:


 


(1)           if
to Seller:

 


Aemetis
Advanced Fuels Keyes, Inc.


20400
Stevens Creek Blvd., Suite 700


Cupertino, CA
95014


Attention: Mr. Todd
Waltz, CFO


Email:
todd.waltz@aemetis.com


 


(2)           if
to Buyer:

 


Murex
LLC


7160
North Dallas Parkway, Suite 300


Plano,
TX 75024


Attention:
President; Chief Financial Officer


[***]
and [***]


 


(a)           Copies
shall be provided to such other person or address as shall be
indicated by written notice in the case of a notice of default of
termination.


 


(b)           The
date of receipt of each such notice, demand or other communication
will be the date of delivery thereof if hand delivered, or, if
given by mail as provided herein, will be deemed conclusively to be
the fifth (5th) business day after
the same is so mailed, except in the event of disruption of the
postal service in which event the notice, demand or other
communication will be deemed to be received only when actually
received and, if sent by telecopier, be deemed to have been given
or received on the first (1st) business Day after
it was so sent. Either party hereto may at any time and from time
to time notify the other party in writing as to the change of
address and the new address to which notice will be given to it
thereafter until further changed.


 




 

18








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE XVIII


 



CONFIDENTIAL INFORMATION


 


Section 18.1 Confidential
Information. The parties hereto acknowledge and agree
that the parties may, in connection with the transactions
contemplated by this Agreement, be provided with and/or have access
to certain confidential and proprietary sensitive business
information, and/or trade secrets of or relating to the other
party, including, without limitation the following types of
information (whether or not in writing or designated as
confidential): current and proposed business arrangements and
dealings with third parties, its business operations, financial
information, markets, research, development, customer lists,
process technology, formulas or compilations, equipment,
procedures, purchasing, accounting, marketing, merchandising,
selling, leasing, servicing, finances and business systems and
techniques (hereafter collectively referred to as
“Confidential
Information”). Notwithstanding the foregoing, the
following types of information shall not be included within the
definition of Confidential Information hereunder: (a) information
which, at the time of disclosure, is or was in the public domain or
otherwise generally available to the public; (b) information which,
at the time of disclosure, is or was already in the other
party’s possession on a non-confidential basis as
substantiated in writing or by other competent evidence; and (c)
information which, subsequent to the time of disclosure, enters the
public domain or otherwise becomes generally available to the
public without breach of this Agreement.


 


Section 18.2
Confidential Treatment. Each party hereby acknowledges and
agrees that all such Confidential Information shall be and remain
at all times throughout the term of this Agreement and thereafter,
the other party’s sole and exclusive property. Each party
further covenants and agrees to, at all times during the term
hereof and thereafter: (i) utilize such Confidential Information
solely in connection with this Agreement, and not for the purpose
of, directly or indirectly, soliciting customers, suppliers or
employees, or in any way competing; (ii) treat, and cause such
other party’s officers, directors, agents, employees and
representatives to treat, all such Confidential Information as
confidential and proprietary sensitive business information, and as
trade secrets; (iii) maintain policies and procedures designed to
ensure the confidentiality and safekeeping of such Confidential
Information; (iv) not, unless compelled by legal process, except
with the other party’s prior written consent, divulge,
disclose or otherwise make any Confidential Information available
to third parties.


 


Section 18.3 Return
of Confidential Information. In the event this Agreement is
terminated each party shall promptly return to the other party all
Confidential Information, including all copies
thereof.


 


Section 18.4.
Reasonableness; Injunctive Relief. The parties acknowledge and agree
that the terms and provisions of this Article XVIII relating to the
treatment of Confidential Information, are reasonable in all
respects, including, without limitation, geographic scope and
duration and, if breached by either party, may cause irreparable
harm to the other party hereto, for which damages would be
difficult or impossible to calculate and, therefore, shall be
enforceable by injunction or other equitable relief without the
necessity of posting bond or proving irreparable harm.


 


Section 18.5
Disclosure in SEC Filings. Notwithstanding any other
provision contained in this agreement, Buyer and Seller acknowledge
and agree that the disclosure of this Agreement and the
transactions contemplated hereby by Seller on a Form 8-K or other
report filed with the Securities and Exchange Commission at any
time after the date hereof will not be violation of this Section
18.


 


THIS
SECTION 18 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT FOR A PERIOD OF TWO (2) YEARS.


 




 

19








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 



ARTICLE XIX


 



INDEMNIFICATION


 


Section 19.1
Indemnification. Buyer shall indemnify, hold harmless and
defend Seller and its affiliates, subsidiaries, parents and their
respective directors, officers, shareholders, members, employees
and agents against expenses actually and reasonably incurred in
connection with the defense of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative (a “Proceeding”),
in which Seller and/or its employees, members, managers, officers
or agents are made a party by reason of Buyer’s services for
Seller or acting in any manner pursuant to this Agreement, except
that Buyer shall have no obligation to indemnify and defend Seller
and/or its employees, members or agents for its and/or their act or
omission that involve negligence, intentional misconduct or a
violation of the law. Seller shall indemnify and defend Buyer and
its employees, members, directors, officers and agents against
expenses actually and reasonably incurred in connection with the
defense of any Proceeding in which Buyer and/or its employees,
managers, members, directors, officers or agents are made a party
by reason of Seller and/or its employees’, members’,
managers’, officers’ or agents’ commission of an
act or omission that involves negligence, intentional misconduct or
a violation of the law. This section shall survive the termination
of this Agreement.


 



ARTICLE XX


 



ADDITIONAL PROVISIONS


 


Section 20.1
Default. Subject to Article XIV, if either Party defaults in
the performance of any term, covenant or condition under this
Agreement, the other Party may provide written notice to the
defaulting Party stating the nature of the default. If such default
is not remedied within thirty (30) days after receipt of such
notice, except in the case of payment defaults (which must be
remedied within ten (10) Days) the non-defaulting party shall have
and may exercise all remedies available under applicable law, and
may terminate this Agreement by written notice to the defaulting
Party. Notwithstanding any other provision of this Agreement,
Seller and Buyer may offset payments owing to them under this
Agreement against payments owing by them. This Section shall not
limit the ability of the Parties to terminate this Agreement
pursuant to other provisions of this Agreement to the extent
permitted by such provisions. Further, if a Party defaults in any
material provision of this Agreement, unless and until such party
cures such default in accordance with this Agreement, such
defaulting party shall not be entitled to the benefits accorded it
under this Agreement, and the non-defaulting party’s
obligations shall be suspended, during the pendency of such
material default. Upon a default by Buyer and pending any cure by
Buyer within the cure periods set forth herein, Seller shall have
the right to sell and Deliver Fuel Ethanol to third parties on any
terms and conditions Seller determines in its sole
discretion.


 


Section 20.2
Non-Waiver of Future Default. No waiver by either Party of
any default by the other Party, in the performance of any of the
provisions of this Agreement will operate or be construed as a
waiver of any other or future default or defaults, whether of a
like or of a different character.


 


Section 20.3
Assignment. Neither party may assign this Agreement or any
of its rights hereunder without the prior written consent of the
other, which consent may not be unreasonably withheld or delayed;
provided that Buyer hereby consents to the collateral assignment of
this Agreement to the Financing Parties and agrees to enter into a
consent and agreement in respect of such collateral assignment with
Financing Parties, which consent will contain such provisions as
are typically provided to the Financing Parties, including giving
the Financing Parties financial information in respect of Buyer
reasonably satisfactory to the Financing Parties, copies of certain
notices delivered to Seller hereunder, and affording the Financing
Parties an independent right to cure any defaults by Seller
hereunder. Buyer shall also provide customary certificates,
estoppels and/or legal opinions as required by the Financing
Parties.


 




 

20








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


Section 20.4
Documents. Each Party to this Agreement shall perform any
and all acts and execute and deliver any and all documents as may
be necessary and proper under the circumstances in order to
accomplish the intents and purposes of this Agreement and to carry
out its provisions.


 


Section 20.5
Time. Time is of the essence with respect to the performance
of each of the covenants and agreements herein set
forth.


 


Section 20.6
Arbitration. Any dispute arising out of or in connection
with this Agreement shall be submitted to arbitration. The
arbitration shall be conducted according to the Commercial
Arbitration Rules of the American Arbitration Association. The
place of arbitration shall be Dallas, Texas or such other place as
may be agreed upon by the Parties. Both Parties shall attempt to
agree upon one arbitrator, but if they are unable to agree, each
shall appoint an arbitrator and these two shall appoint a third
arbitrator. Expenses of the arbitrator(s) shall be divided equally
between the Parties. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof, and shall be enforceable against the Parties in accordance
with the 1958 Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, as amended.


 


Section 20.7
Inurement. This Agreement will inure to the benefit of and
be binding upon the respective successors and permitted assigns of
the parties.


 


Section 20.8 Entire
Agreement. This Agreement together with the Assignment of
Contract and together with Buyer's acknowledgment and consent to
such assignment to the financing sources constitutes the entire
Agreement between the parties with respect to the subject matter
contained herein and any and all previous agreements, written or
oral, express or implied, between the parties or on their behalf
relating to the matters contained herein are hereby terminated and
canceled.


 


Section 20.9
Modification. There will be no modification of the term and
provisions hereof except by the mutual agreement in writing signed
by the parties.


 


Section 20.10
Governing Law. The Agreement will be interpreted, construed
and enforced in accordance with the procedural, substantive and
other laws of the State of Texas without giving effect to
principles and provisions thereof relating to conflict or choice of
law even though one or more of the parties is now or may do
business in or become a resident of a different state.


 


Section 20.11
Compliance with Laws. This Agreement and the respective
obligations of the parties hereunder are subject to present and
future valid laws and valid orders, rules and regulations of duly
constituted authorities having jurisdiction.


 




 

21








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


Section 20.12
Severability. If any provisions of this Agreement shall be
held to be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or enforceable any other
provision of this Agreement or render the provision unenforceable
in any other jurisdiction.


 


Section 20.13
Headings. The division of this Agreement into Articles,
Sections, Subsections and Paragraphs or any other divisions and the
inclusion of the various headings, are for convenience of reference
only and shall not affect the interpretation or construction of
this Agreement.


 


Section 20.14
Furnishing of Information. The Parties will, upon written
request, provide such additional information as may be reasonably
required to allow the parties to efficiently and effectively carry
out their respective obligations hereunder and to determine and
enforce individual or collective rights under this
Agreement.


 


Section 20.15
Cumulative Remedies. Unless otherwise specifically provided
herein, the rights, powers, and remedies of each of the parties
provided herein are cumulative and the exercise of any right, power
or remedy hereunder do not affect any other right, power or remedy
that may be available to either party hereunder or otherwise at law
or in equity.


 


Section 20.16
Faithful Performance. The parties shall faithfully perform
and discharge their respective obligations in this Agreement and
endeavor in good faith to negotiate and settle all matters arising
during the performance of this Agreement not specifically provided
for.


 


Section 20.17 No
Partnership. This Agreement shall not create or be construed
to create in any respect a partnership between the
parties.


 


Section 20.17 Costs
Borne By Each Party. Each of the Parties to this Agreement
shall pay its own costs and expenses incurred in the negotiation
preparation and execution of this Agreement and of all documents
referred to in it and in carrying out the transactions contemplated
by this Agreement.


 


Section 20.18
Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if all Parties to this
Agreement had signed the same document and all counterparts will be
construed together and constituted one and the same instrument.
Signatures delivered by facsimile and other electronic transmission
shall bind Parties delivering the same.


 


Section 20.21
Transparency. Seller will receive copies of all direct ship
contracts and Advanced Biofuel RIN contracts. If Buyer buys Fuel
Ethanol from Seller on a netback basis going through Buyer's Texas
City, Texas Terminal, Seller will receive a copy of the monthly
Texas City, Texas Terminal Sales Summary. If Buyer buys Fuel
Ethanol in a non-netback arrangement, Seller will have no rights
regarding Transparency.


 




 

22








 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED.






 


Section 20.22 Fixed
Price Opportunities. In an effort to assist Seller in
protecting margins when acceptable, Buyer will access public swap
markets that allow Seller to fix sales prices in forward months. If
Seller agrees to such a fixed price, Buyer will utilize Buyer's
balance sheet. Buyer will receive a fee for this service, which
will be disclosed on the purchase contract.


 


 


IN
WITNESS WHEREOF, the parties have executed this Agreement by their
respective proper signing officers as of the date first above
written.


 


 


 


	
 

	


AEMETIS ADVANCED FUELS KEYES, INC.


 


 


By:
____/s/ Eric McAfee_______________


 


 


Name:
__Eric McAfee__________________


 


 


Title:
____CEO________________________


	
 

	

 


 


 



MUREX LLC


 


 


 


By:
____/s/ Robert C. Wright _________________


 


 


Name:
__Robert C Wright _________________


 


 


Title:
__President__________________ ____







 




 

23








 






 


Schedule
A


 


[Omitted pursuant
to Section (a)(5) of Item 601 of Regulation S-K]


 


 


 


 




 








 






 


Schedule
B


 


[Omitted pursuant
to Section (a)(5) of Item 601 of Regulation S-K]