EXHIBIT 10.6 TO SOY ENERGY, LLC FORM 10-Q FOR THE QUARTER ENDED JULY 31, 2010



Exhibit 10.6


	
  

 	
  

 	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
 RPMG 

 
	
 RPMG, Inc.

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
 NON-POOLED

 
	
 BIODIESEL

 
	
 MARKETING
 AGREEMENT WITH 

 
	
 SOY
 ENERGY, LLC

 
	
  

 	
  



 	
  

 
	
  

 
	


 
	




 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 
	
  

 


***PORTIONS OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SEC.


Page 1 of 13






BIODIESEL MARKETING AGREEMENT


          THIS
BIODIESEL MARKETING AGREEMENT (this “Agreement”) is entered into this 12th day of August, 2010 (the
“Effective Date”), by and between RPMG, INC., a Minnesota corporation,
hereinafter referred to as “RPMG”; and Soy Energy, LLC, an Iowa limited
liability company, hereinafter referred to as “PRODUCER.” 


          WITNESSETH:



          WHEREAS, RPMG is a corporation engaged in the
business of marketing renewable fuels and co-products; and, 


          WHEREAS, PRODUCER is negotiating the purchase of a
biodiesel production facility in Mason City, Iowa (the “Facility”); and, 


          WHEREAS, the parties have agreed that, for the term
of this Agreement, the sale and marketing of all of the biodiesel produced by
PRODUCER at the Facility should be undertaken by RPMG on the terms and
conditions provided in this Agreement. 


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


          1.          Commencement. The parties acknowledge that PRODUCER
presently is negotiating the purchase of the Facility, and that if such
purchase is successfully completed, PRODUCER intends to construct certain
improvements to the Facility before beginning biodiesel production at the
Facility. If PRODUCER completes said purchase and construction improvements, it
will thereafter begin producing biodiesel at the Facility that will be subject
to the terms of this Agreement on and after the date of such production (the
“Commencement Date”). In the event that the Commencement Date has not occurred
on or before July 15, 2011, either party shall have the option to terminate
this Agreement by giving the other party twenty-one (21) days’ written notice
of such termination, and this Agreement shall be of no further force or effect
after delivery of such termination notice. 


          2.          Marketing Representative. Subject to the terms and conditions of this
Agreement, and except as provided in this Section 2, RPMG shall be the sole
marketing representative for the entire biodiesel production of PRODUCER at the
Facility. RPMG shall use commercially reasonable efforts to market and sell all
biodiesel produced at the Facility and delivered by PRODUCER to RPMG pursuant
to the terms of this Agreement. Notwithstanding the foregoing, RPMG agrees that
PRODUCER may enter into other agreements with suppliers of corn oil or other
feedstock pursuant to which PRODUCER will produce biodiesel from the feedstock
supplied by such supplier and sell the biodiesel produced from the feedstock
supplied by such supplier as directed by such supplier (each a “Tolling
Agreement”). The parties agree that any biodiesel produced pursuant to a
Tolling Agreement shall be excluded from and shall not be subject to the terms
of this Agreement. 


          3.          Biodiesel Specifications. The Facility has a full production capacity
of approximately 30 million gallons of biodiesel per year. The parties
acknowledge that PRODUCER will not be producing biodiesel at full production
capacity of the Facility at the Commencement Date, that PRODUCER anticipates
increasing biodiesel production following the Commencement Date, and that
PRODUCER is not making any representation or warranty as to when, if ever, it
will produce biodiesel at the full production capacity. All of the biodiesel
produced by PRODUCER at the Facility and marketed by RPMG hereunder will, when
delivered to a common carrier by PRODUCER in the manner provided by 


Page 2 of 13





Section
4 below, be 100% biodiesel (i.e., B100) satisfying ASTM D6571 specifications.
The parties acknowledge that the Facility is anticipated to commence biodiesel
production by July 15, 2011, and that PRODUCER will make commercially
reasonable efforts to begin production by that time; however, the parties
acknowledge and agree that PRODUCER is not making any representations or
warranties regarding the date of commencement of biodiesel production at the
Facility. PRODUCER promptly shall advise RPMG of any change in the anticipated
date of commencement of production. 


         4.          Loading. The Facility shall include commercially reasonable railcar and tank
truck access of a size and design recognized as appropriate in the biodiesel
industry to handle production of approximately 30 million gallons of biodiesel
per year. Such railcar and tank truck loading facilities shall be in compliance
with all applicable industry and governmental safety standards and shall be
capable of delivering a minimum of 250 gallons of biodiesel per minute to
railcars and trucks combined. In addition, the Facility shall have sufficient
biodiesel storage capacity for not less than 12 days average biodiesel
production. RPMG shall schedule the loading and shipping of all outbound
biodiesel purchased hereunder. All labor and equipment necessary to load trucks
and rail cars and other associated loading costs shall be supplied and borne by
PRODUCER without charge to RPMG. PRODUCER shall handle the biodiesel in a good
and workmanlike manner in accordance with the commercially-reasonable written
requirements of RPMG and normal industry practice. PRODUCER shall visually
inspect all trucks and rail cars to assure, to the extent commercially
practical, (i) cleanliness so as to avoid contamination of the biodiesel, and
(ii) that such trucks and railcars are in a condition suitable for transporting
the biodiesel. RPMG and RPMG’s agents shall be given commercially reasonable
access to the Facility in accordance with the terms set forth in Exhibit A,
which may be amended by mutual agreement of the parties in writing, from time
to time. RPMG’s employees and RPMG’s agents shall comply with all reasonable
safety rules and procedures promulgated by PRODUCER and provided to RPMG
reasonably in advance and in writing, and shall comply with all applicable
requirements of any governmental authority, including all applicable laws and
regulations. PRODUCER shall supply to RPMG or its agents product description
tags, certificates of analysis, bills of lading and/or material safety data
sheets that are applicable to all biodiesel shipments. In the event that
PRODUCER fails to provide the labor, equipment and facilities it is obligated
to provide hereunder that are necessary to meet the loading schedule that is
applicable hereunder, PRODUCER shall be responsible for all costs and expenses,
including without limitation, actual demurrage and wait time incurred by RPMG
resulting from or arising in connection with PRODUCER’s failure to do so.
Notwithstanding any provision to the contrary herein, PRODUCER shall be solely
responsible for any damage to any trucks, railcars, equipment, or vessels
caused by acts or omissions of PRODUCER and its consignees. 


         5.          Risk of Loss. RPMG will be responsible for and shall bear
the risk of loss of all biodiesel marketed for PRODUCER by RPMG from the time
the biodiesel crosses the loading flange at the Facility and the common carrier
or customer accepts for loading the biodiesel at the Facility in either a
railcar, tank truck or other transport vehicle. Delivery of such biodiesel by
PRODUCER to RPMG, for purposes of this Agreement, shall be made at the time the
product crosses the loading flange at the Facility. 


         6.          Specific Marketing Tasks. RPMG shall be responsible for the
marketing, sale and delivery of all the biodiesel production from the Facility
for which RPMG is responsible under Section 2 hereof during the term of this
Agreement, including, but not limited to: 


	
  

 	
  

 	
  

 
	
  

 	
 §

 	
 Scheduling sufficient railcar,
 tank trucks and other transport; 

 
	
  

 	
§

 	
 Negotiating
 the rates and tariffs to be charged for delivery of such biodiesel production
 to the customer(s); 

 
	
  

 	
 §

 	
 Promoting and advertising
 the sale of such biodiesel;

 
	
  

 	
 §

 	
 Tracking delivery; 

 



Page 3 of 13









	
  

 	
  

 	
  

 
	
  

 	
 §

 	
 Negotiating
 all biodiesel purchase agreements with customers; monitoring compliance
 therewith; and any addressing any complaints in connection therewith to the
 satisfaction of PRODUCER, RPMG and the customer as applicable;

 
	
  

 	
§

 	
 Providing
 invoicing and accounts receivable management for sales of such biodiesel; and
 

 
	
  

 	
 §

 	
 Accounting
 for all sales and related expenses and collection of accounts, including any
 legal procedures as may be necessary in connection therewith. 

 


         7.          Negotiation of Biodiesel Price. RPMG will use commercially reasonable
efforts to obtain the best price for all biodiesel sold by it under the terms
of this Agreement, but shall have complete discretion to fix the price, terms
and conditions of the sale as long as the same are in accordance with this
Agreement. RPMG shall communicate with PRODUCER the terms and conditions of
sales of PRODUCER’s biodiesel, including, without limitation, meeting
periodically with PRODUCER to discuss pricing and other terms and conditions of
sale. 


         8.          Marketing Fee. PRODUCER shall pay to RPMG a monthly
marketing fee (the “Marketing Fee”) equal to ***. 


         9.          Product Payment. RPMG monthly will calculate the estimated
gross price for biodiesel produced at the Facility for which RPMG is
responsible under this Agreement to be shipped for the succeeding month less
the estimated distribution expense applicable to said biodiesel divided by the
estimated gallons of biodiesel to be shipped for the succeeding month (the “Net
Sales Price Per Gallon”). RPMG on a weekly basis will pay 90% of the Net Sales
Price Per Gallon multiplied by the number of gallons of biodiesel delivered by
PRODUCER to RPMG for the period, on an average net 10-day basis (e.g. payment
on Wednesday shall be for biodiesel delivered during the seven-day period
ending on the previous Wednesday). The remaining balance owed, if any, based on
actual gross sales less actual distribution expense and less the Marketing Fee
shall be paid within 15 days after the end of each month. Distribution expense
means the actual out-of pocket costs for expenditure obligations to third
parties incurred by RPMG in marketing PRODUCER’s biodiesel production,
including but not limited to transportation costs, rail car costs, rail car
utilization, rail tariff rate charges, truck freight charges, demurrage,
terminal lease, terminal throughput, terminal shrinkage, insurance, accounting,
legal, taxes, bonding, letters of credit, brokerage, testing, licenses and
fees, ETS expense, miscellaneous netback expenses and other expenses and
working capital costs directly related to sale of PRODUCER’s product, hedging
costs and other distribution costs directly incurred in connection with
marketing PRODUCER’s product. Payment shall be accompanied by a detailed
reconciliation of the sales price, distribution expense and Marketing Fee. 


         10.        Audit. PRODUCER shall have the right to inspect the books and records of
RPMG for the purpose of auditing calculations of the payment to PRODUCER for
the preceding year. Within ninety (90) days following the end of RPMG’s fiscal
year end, PRODUCER shall give written notice to RPMG of its desire to conduct
an audit and RPMG shall provide reasonable access to all financial information
necessary to complete such audit. The audit shall be conducted by an accounting
firm agreeable to both parties and shall be completed within 60 days after the
completion of RPMG’s annual audit by its independent auditors, but no later
than 150 days following RPMG’s fiscal year end, except that if RPMG has not
completed its independent audit within 90 days after the end of its fiscal
year, RPMG and PRODUCER shall agree on a reasonable extension of time for
PRODUCER to complete its audit. PRODUCER is hereby authorized to provide to its
lenders the audit report completed for Producer pursuant to this Section. The
cost of the audit shall be the responsibility of PRODUCER unless the auditor
determines that RPMG underpaid PRODUCER by more than three percent (3%) for the
period audited, in which case RPMG shall pay the cost of the audit. If the
auditor determines that RPMG underpaid PRODUCER by any amount for the period
audited, RPMG shall promptly pay the amount of 


***Portions omitted pursuant
to a request for confidential treatment and filed separately with the SEC.


Page 4 of 13





such
underpayment to PRODUCER, and if the auditor determines that RPMG overpaid
PRODUCER by any amount, PRODUCER shall promptly pay the amount of such
overpayment to RPMG. The determination of the auditor shall be final and
binding on both parties. If PRODUCER fails to exercise its right to audit as
provided in this Section 10 for any year, it shall be deemed to have waived any
claim to dispute the payments, provided that in the event PRODUCER’s lender is
in possession of the Facility within 180 days after the completion of RPMG’s
annual audit by its independent auditors, then such lender shall have the right
to conduct an audit pursuant to this Section 10 even if PRODUCER has not
previously elected to exercise its right to audit as provided in this Section
10 for such year. 


          11.          Estimated 12-Month Volume. At least 120 days prior to the then most
current estimated date for commencement of biodiesel production at the
Facility, PRODUCER will provide RPMG with PRODUCER’s best estimate of its
anticipated monthly biodiesel production for the twelve (12) months beginning
on the estimated date of commencement of biodiesel production. RPMG
acknowledges that PRODUCER intends to ramp up production after the Commencement
Date, and that monthly production may vary significantly during such ramp-up
period, and may vary at other times. On or before the first day of each month
thereafter, PRODUCER will provide RPMG an updated estimate of PRODUCER’s
anticipated monthly biodiesel production for the rolling next twelve (12)
months, so that RPMG will at all times during this Agreement have current
biodiesel production estimates from PRODUCER for the next rolling twelve (12)
months. RPMG shall be entitled to rely upon such estimates in marketing and
selling the PRODUCER’s biodiesel production, provided that RPMG shall be
obligated to perform its obligations hereunder regardless of the variances in
actual production from estimated production. 


          12.          Option of RPMG to Limit Total Sales Position. RPMG reserves the right, upon delivery of
written notice to PRODUCER, to limit RPMG’s biodiesel marketing efforts with
respect to the biodiesel production of PRODUCER at the Facility to the rolling
next six (6) months of production from the date of PRODUCER’s receipt of such
notice, or, in the case of biodiesel to be marketed on a flat-price basis, the
rolling next three (3) months of production from the date of PRODUCER’s receipt
of such notice. 


          13.          Biodiesel Shortage/Open Market Purchase. If PRODUCER is unable to deliver its
estimated monthly biodiesel production and if as a consequence of the
non-delivery and in order to meet its sale obligation to third parties, RPMG is
required to purchase biodiesel, RPMG may purchase biodiesel in the marketplace
to meet its delivery obligations on such terms and conditions as it deems
appropriate in its sole discretion, provided that RPMG shall utilize
commercially reasonable efforts to make any such open market purchases at the
lowest available price. If RPMG as a result thereof incurs a financial loss,
PRODUCER will reimburse RPMG for any such loss net of any gains. For purposes
of this Section 13, the terms “loss” and “gain” shall be calculated as the
difference between the aggregate price to be received by RPMG under its sale
obligations to third parties and the aggregate cost of RPMG’s open market
purchases. 


          14.          Rail Car Leases. PRODUCER will lease approximately 12 railcars
to be used by PRODUCER based on the anticipated production of the Facility, and
all lease costs and demurrage will be the responsibility of PRODUCER. Upon
PRODUCER’s request, RPMG shall assist PRODUCER with obtaining contacts at rail
car leasing companies. 


          15.          No “Take or Pay”. The parties agree that this is not a “take
or pay contract” and that RPMG’s obligations are limited to biodiesel passing
custody to a common carrier or customer at PRODUCER’s Facility or delivered to
RPMG in the manner provided in Section 5 above. 


          16.          Term; Termination. The initial term of this Agreement shall
commence on the Effective Date and subject to Section 1 hereof, continue for a
period of *** from the first day of the month in which 


***Portions omitted pursuant
to a request for confidential treatment and filed separately with the SEC.


Page 5 of 13





PRODUCER
initially delivers biodiesel produced at the Facility to RPMG for shipment as
provided in Section 4 above (the “Initial Term”). This Agreement shall
thereafter automatically renew for successive *** year terms (each a “Renewable
Term”) following the end of the Initial Term unless either party gives written
notice of non-renewal to the other party not less than one hundred eighty (180)
days before the end of the then current Initial Term or any Renewal Term.
Notwithstanding the foregoing, either party may terminate this Agreement upon
written notice to the other party if the other party breaches this Agreement
and fails to cure the breach within thirty (30) days after receipt of written
notice of such breach or if the other party becomes insolvent, files or has
filed against it a petition in bankruptcy that is not dismissed within thirty
(30) days, or has a receiver appointed over its assets. This Agreement may also
be terminated by mutual written agreement of the parties or as provided in
Section 1 hereof. Upon termination of this Agreement, the parties shall be
obligated to pay any and all payments due to the other party through the date
of termination and to satisfy any continuing obligations provided by Section 19
below, but shall otherwise have no further obligation to each other under this
Agreement. 


          17.          Force Majeure. In the event either party is unable by
Force Majeure to carry out its obligations under this Agreement, it is agreed
that on such party’s giving notice in writing, or by telephone and confirmed in
writing, to the other party as soon as possible after the commencement of such
Force Majeure event, the obligations of the party giving such notice, so far as
and to the extent they are affected by such Force Majeure, shall be suspended
from the date of commencement of such Force Majeure and through the remaining
period of such Force Majeure, but for no longer period, and such Force Majeure
shall so far as possible be remedied with all reasonable dispatch; provided,
however, a party’s obligation to make payments of any amounts due and payable
to the other party under this Agreement then accrued hereunder prior to the
occurrence of such Force Majeure shall not be suspended and PRODUCER shall
remain obligated for any loss or expense to the extent provided in Sections 11
and 13. The term “Force Majeure” as used in this Agreement shall mean: riots or
civil disturbances; interference by civil or military authorities; wars, or
acts of other public enemy or acts of terrorism; earthquakes, storms, floods,
or other acts of God; compliance with federal, state or local laws, rules or
regulations, acts, orders, or directives, of any official or agency of federal,
state or local governments; disruptions, breakdowns or accidents to
transportation equipment or facilities; prorationing by transporters;
embargoes, expropriation or condemnation by government or governmental
authorities; and any other cause which is not reasonably within the control of
the party claiming suspension. 


          18.          Licenses and Permits; Records. PRODUCER and RPMG at all times shall have
and maintain all of the licenses and permits necessary to operate the Facility
and perform their obligations hereunder. PRODUCER and RPMG shall comply with
all applicable laws, regulations, rules and requirements of governmental
authorities, including but not limited to, the Renewable Fuels Standard RINS
reporting requirements. In addition, PRODUCER shall establish record-keeping
and reporting systems compatible with RPMG’s load out reporting systems,
currently ETS and AccuLoad III. RPMG shall maintain all necessary
record-keeping and reporting systems to meet its obligations hereunder,
including, without limitation, such systems as are necessary for RPMG to
satisfy its marketing duties under Section 6; to properly calculate payments
and fees due under Sections 8 and 9; and to complete the audit activities
referenced in Section 10. 


          19.          Obligation to Deliver After Termination. If this Agreement is terminated in
accordance with Section 16 hereof, PRODUCER shall be obligated to deliver to
RPMG for marketing in accordance with this Agreement sufficient biodiesel to
cover all gallons of PRODUCER’s biodiesel which RPMG has committed for sale to
customers at the time of termination, and the parties, in the course of such
marketing with respect to committed sales made prior to delivery of the
termination notice, shall be obligated to perform their obligations under this
Agreement with respect to such biodiesel. 


***Portions omitted pursuant
to a request for confidential treatment and filed separately with the SEC.


Page 6 of 13





          20.          Good and Marketable Title. PRODUCER represents that it will have good
and marketable title to all of the biodiesel marketed for it by RPMG at the
time of delivery to RPMG and that said biodiesel will be free and clear of all
liens and encumbrances, provided that this Section shall not be applicable to
any open market purchases of biodiesel made by RPMG under Section 13 hereof. 


          21.          Independent Contractor. Nothing contained in this Agreement will be
interpreted to make either party the agent of the other for any purpose
whatsoever. Without limiting the foregoing, RPMG and its employees shall be
deemed to be independent contractors, with full control over the manner and
method of performance of the services they will be providing on behalf of
PRODUCER under this Agreement. 


          22.          Samples. PRODUCER will take and retain for a minimum of 90 days at least one
sample of biodiesel per Batch. A “Batch” is defined as any time new biodiesel
product is introduced into PRODUCER’s finished product tank. At the reasonable
request of RPMG, PRODUCER agrees to provide RPMG with samples of its biodiesel
produced at the Facility so that RPMG may test such biodiesel for product
quality on a regular basis. RPMG shall provide PRODUCER with copies of any
testing results received by RPMG. 


          23.          Insurance. During the entire term of this Agreement, PRODUCER will maintain
insurance coverage that is standard, in the reasonable opinion of RPMG, for a
company of its type and size that is engaged in the production and selling of
biodiesel. At a minimum, PRODUCER’s insurance coverage must include: 


	
  

 	
  

 	
  

 
	
  

 	
  (i)

 	
 Comprehensive general
 product and public liability insurance, with liability limits of at least $5
 million in the aggregate. 

 
	
  

 	
  

 	
  

 
	
  

 	
  (ii)

 	
 Property
 and casualty insurance adequately insuring its production facilities and its
 other assets against theft, damage and destruction on a replacement cost
 basis. 

 
	
  

 	
  

 	
  

 
	
  

 	
  (iii)

 	
 RPMG
 shall be added as an additional insured under the comprehensive general
 product and public liability insurance policy and the property and casualty
 insurance policy. 

 
	
  

 	
  

 	
  

 
	
  

 	
  (iv)

 	
 Workers’ compensation
 insurance to the extent required by law. 

 


                         PRODUCER
will not change its insurance coverage during the term of this Agreement,
except to increase it or enhance it, without the prior written consent of RPMG,
which consent will not be unreasonably withheld. 


          24.          Indemnifications and Hold Harmless – PRODUCER. If a third party makes a claim against RPMG
or any of its directors, officers, employees, agents or affiliates (“RPMG
Related Persons”) directly as the result of the actions or omissions of
PRODUCER or any of its directors, managers, officers, employees, agents or
affiliates (“PRODUCER Related Persons”), including, but not limited to, claims
relating to the quality of biodiesel produced by PRODUCER, then PRODUCER agrees
to indemnify RPMG and the RPMG Related Persons and to hold them harmless from
any liabilities, damages, costs and/or expenses, including costs of litigation
and reasonable attorneys fees, which RPMG or RPMG Related Persons incur as a
result of any such actions or omissions of PRODUCER or PRODUCER Related
Persons. 


          25.          Indemnifications and Hold Harmless – RPMG. If a third party makes a claim against
PRODUCER or any of its directors, managers, officers, employees agents or
affiliates (“PRODUCER Related Persons”) directly as the result of the actions
or omissions of RPMG or any of its directors, 


Page 7 of 13





managers,
officers, employees, agents or affiliates (“RPMG Related Persons”), then RPMG
agrees to indemnify and hold harmless PRODUCER and the PRODUCER Related Persons
from and against any liabilities, damages, costs and/or expenses, including
costs of litigation and reasonable attorneys fees, which PRODUCER OR PRODUCER
Related Persons incur as a result of any such actions or omissions of RPMG or
RPMG Related Person 


          26.          Setoff Rights. If PRODUCER defaults on any of its
obligations hereunder or with respect to any order made pursuant to this
Agreement or breaches this Agreement, then (i) PRODUCER shall be liable to the
extent specified in this Agreement for damages incurred by RPMG in connection
with such default or breach, and (ii) RPMG may, upon delivery of prior written
notice to PRODUCER, offset the amount of such damages against any amounts
otherwise payable by RPMG to PRODUCER. If RPMG defaults on any of its
obligations hereunder or with respect to any order made pursuant to this
Agreement or breaches this Agreement, then (i) RPMG shall be liable to the
extent specified in this Agreement for damages incurred by PRODUCER in
connection with such default or breach, and (ii) PRODUCER may, upon delivery of
prior written notice to RPMG, offset the amount of such damages against any
amounts otherwise payable by PRODUCER to RPMG. 


          27.          Recoupment of Overpayments. RPMG shall have the right to recoup the
amount of any overpayments made by RPMG to PRODUCER hereunder or with respect
to any order made pursuant to this Agreement during the preceding year. 


          28.          Survival of Terms/Dispute Resolution. All representations, warranties and
agreements made in connection with this Agreement will survive the termination
of this Agreement. The parties will, therefore, be able to pursue claims
related to those representations, warranties and agreements after the
termination of this Agreement, unless those claims are barred by the applicable
statute of limitations. Similarly, any claims that the parties have against
each other that arise out of actions or omissions that take place while this
Agreement is in effect will survive the termination of this Agreement. This
means that the parties may pursue those claims even after the termination of
this Agreement, unless applicable statutes of limitation bar those claims. The
parties agree that, should a dispute between them arise in connection with this
Agreement, the parties will, in good faith, attempt to mediate such dispute prior
to the filing of any action in any court. Such mediation shall occur at a place
that is mutually agreeable, and shall be conducted by a mediator to be selected
by mutual agreement of the parties. 


          29.          Choice of Law. The parties agree that this Agreement will
be governed by, interpreted under and enforced in accordance with Minnesota
law. 


          30.          Assignment. Neither party may assign its rights or obligations under this
Agreement without the written consent of the other party, which consent will
not be unreasonably withheld. Notwithstanding the foregoing, RPMG consents to
the assignment of this Agreement by PRODUCER to its lender in connection with
the PRODUCER’s securing of debt financing for the Facility. 


          31.          Entire Agreement Amendment. This Agreement constitutes the entire
agreement between the parties regarding the subject matter hereof. There are no
oral promises, conditions, representations, understandings, interpretations, or
terms of any kind (including as conditions or inducements to the execution
hereof in effect between the parties), except as expressed in this Agreement.
No amendment, change or addition shall be made to this Agreement except by a
written document signed by all parties hereto. 


          32.          Execution of Counterparts. This Agreement may be executed by the
parties in any number of separate counterparts, each of such counterparts being
deemed by the parties to be an original 


Page 8 of 13





instrument; and all of such counterparts,
taken together, shall be deemed to constitute one and the same instrument. 


          33.          Counterpart Includes Facsimile. The parties specifically agree and
acknowledge that a counterpart produced by virtue of a facsimile (“fax”) machine
or .pdf file shall be binding upon the parties. 


          34.          Binding Effect. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective heirs,
personal representatives, successors and assigns. 


          35.          Confidential Information. The parties acknowledge that they will be
exchanging information about their businesses under this Agreement which is
confidential and proprietary, and the parties agree to handle that confidential
and proprietary information in the manner described in this Section 34. 


          a.
          Definition of Confidential Information.
For purposes of this Agreement, the term “Confidential Information” means
information related to the business operations of PRODUCER or RPMG and
disclosed by one party (sometimes referred to herein as the “disclosing party”)
to the other party (sometimes referred to herein as the “receiving party”) that
meets all of the following criteria: 


	
  

 	
  

 
	
  

 	
 (i)          The
 information must not be generally known to the public, and must not be a part
 of the public domain. 

 
	
  

 	
  

 
	
  

 	
 (ii)         The
 information must belong to the party claiming it is confidential, and must be
 in that party’s possession. 

 
	
  

 	
  

 
	
  

 	
 (iii)        The
 information must have been protected and safeguarded by the party claiming it
 is confidential by measures that were reasonable under the circumstances
 before the information was disclosed to the other party.

 
	
  

 	
  

 
	
  

 	
 (iv)        Written
 information must be clearly designated in writing as “Confidential
 Information” by the party claiming it is confidential before it is disclosed
 to the other party, except that all information about costs and prices will
 always be considered Confidential Information under this Agreement, without
 the need for specifically designating it as such.

 
	
  

 	
  

 
	
  

 	
 (v)         Verbal
 Confidential Information which is disclosed to the other party must be
 summarized in writing, designated in writing as “Confidential Information,”
 and transmitted to the other party within ten (10) days of the verbal
 disclosure. 

 


          Notwithstanding
the foregoing, the term “Confidential Information” shall exclude, and the
obligations of this Section 34 shall not apply to, information which: 


	
  

 	
  

 
	
  

 	
               (i)          a
 receiving party can demonstrate was known to the receiving party at or prior
 to the time of disclosure by the disclosing party; 

 
	
  

 	
  

 
	
  

 	
               (ii)         is or becomes generally available to the
 public at or after the time of disclosure by the disclosing party other than
 through any act or omission of the receiving party;

 
	
  

 	
  

 
	
  

 	
               (iii)        is
 or was developed by the receiving party completely independent of any
 Confidential Information it received from the disclosing party; or 

 


Page 9 of 13









	
  

 	
  

 
	
  

 	
              (iv)          is
 or was received by the receiving party from a third party, that, to the
 knowledge of the receiving party, was free to make such disclosure without
 breach of any legal obligation to the disclosing party. 

 


          b.          Limitations on the Use of Confidential Information.
Each party agrees that it will not use any Confidential Information that it
obtains about the other party for any purpose, other than to perform its
obligations under this Agreement.  


          c.          The Duty not to Disclose Confidential Information.
Each party agrees that it will not disclose any Confidential Information about
the other party to any third person or organization, other than their
respective legal counsel and accountants who have a reasonable need to know
such Confidential Information, without first getting written consent to do so
from the other party. Notwithstanding the foregoing, if a receiving party or
anyone to whom such receiving party transmits Confidential Information in accordance
with this Section 34 is requested or required (by deposition, interrogatories,
requests for information or documents in legal proceedings, subpoenas, civil
investigative demand or similar process, SEC filings or administrative
proceedings) to disclose any Confidential Information, such receiving party
will give the disclosing party prompt written notice of such request or
requirement so that the disclosing party may seek an appropriate protective
order or other remedy and/or waive compliance with the provisions of this
Section 34, and the receiving party will cooperate with the disclosing party to
obtain such protective order. The fees and costs of obtaining such protective
order, including payment of reasonable attorney’s fees, shall be paid for by
the disclosing party. If such protective order or other remedy is not obtained
or the disclosing party waives compliance with this Section 34 of this
Agreement, the receiving party (or such other persons to whom such request is
directed) will furnish only that portion of the Confidential Information which,
in the opinion of legal counsel for the receiving party, is legally required to
be disclosed, and upon the disclosing party’s request, use commercially
reasonable efforts to obtain assurances that confidential treatment will be
accorded to such Confidential Information.  


          d.          The Duty to Notify the Other Party in Cases of
Improper Use or Disclosure. Each party agrees to immediately
notify the other party if it becomes aware of any improper use or any improper
disclosure of the Confidential Information of the other party at any time
during the term of this Agreement.  


          e.          Protection of the
Confidential Information.
Each party agrees to develop effective procedures for protecting the
Confidential Information that it obtains from the other party, and to implement
those procedures with the same degree of care that it uses in protecting its
own Confidential Information.  


          f.          Return of the Confidential
Information. Immediately
upon the termination of this Agreement, each party agrees to return to the
other party all of the other party’s Confidential Information (including copies
thereof) that is in its possession or under its control.  


          g.          Disclosure in SEC Filings. Notwithstanding any other provision
contained in this Agreement, RPMG acknowledges and agrees that the disclosure
of this Agreement and the transactions contemplated hereby by PRODUCER (i) on a
Form 8-K or other report filed with the Securities and Exchange Commission at
any time after the date hereof (including the filing of the text of this
Agreement with such report), or (ii) in a customary press release or on a
customary analyst call, will not be violation of this Section 34. Upon RPMG’s
request, PRODUCER will cooperate with any reasonable requests of RPMG to
request confidential treatment concerning sensitive/confidential items in
connection with the events described in (i) and (ii) above.  


Page 10 of 13





          h.           Survival. Notwithstanding any other provision of this
Agreement, the provisions of this Section 34 shall survive termination of this
Agreement and remain in effect for a period of five (5) years thereafter.  


          36.          Remedies Non-Exclusive. Except as otherwise expressly provided in
this Agreement, any remedy provided for in this Agreement shall be cumulative
and in addition to, and not in lieu of, any other remedy set forth herein or
any other remedy otherwise available at law or in equity. 


          37.          Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be considered delivered in all respects when it
has been delivered by hand, mailed by U.S. mail postage prepaid, sent by
facsimile with delivery confirmed, or one day after transmission via electronic
mail, addressed as follows: 


	
  

 	
  

 	
  

 
	
  

 	
 TO:

 	
 RPMG, Inc.

 
	
  

 	
  

 	
 1157 Valley Park Drive,
 Suite 100 

 
	
  

 	
  

 	
 Shakopee, MN 55379 

 
	
  

 	
  

 	
 Facsimile No. 952-465-3222
 

 
	
  

 	
  

 	
 Email: 

 
	
  

 	
  

 	
  

 
	
  

 	
 TO:

 	
 Soy Energy, LLC

 
	
  

 	
  

 	
 P.O. Box 663 

 
	
  

 	
  

 	
 Marcus, IA 51305 

 
	
  

 	
  

 	
 Facsimile No. 

 
	
  

 	
  

 	
 Email: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 With a copy to: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Thomas
 D. Johnson 

 
	
  

 	
  

 	
 666 Grand Avenue, Suite
 2000 

 
	
  

 	
  

 	
 Des Moines, Iowa 50309

 
	
  

 	
  

 	
 Facsimile No.:
 515-323-8514

 
	
  

 	
  

 	
 Email: johnson@brownwinick.com

 


          37.          Severability.
If any provision or provisions of this Agreement are held invalid, illegal or
unenforceable by a court of competent jurisdiction, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.  


 [Signature Page Follows] 


Page 11 of 13





IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first
written above. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 RPMG,
 INC.

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By

 	
  /s/ Steven L. Dietz



 	
  

 
	
  

 	
 Its

 	
  Chief Operating Officer



 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SOY
 ENERGY, LLC

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By

 	
  /s/ Charles Sand



 	
  

 
	
  

 	
 Its

 	
  Chairman



 	
  

 



Page 12 of 13





EXHIBIT A

Terms and Procedures Relating to Loading and Shipment 


Except
by special arrangement(s) in advance, biodiesel shall be available for loading
and shipment twenty-four (24) hours per day, Monday through Sunday, except on
scheduled holidays. Trailers and rail cars shall be visually inspected by
PRODUCER prior to loading. If unsanitary conditions exist and cannot be
corrected on site, the trailer or rail car shall be rejected by PRODUCER and
RPMG shall be notified. 


Page 13 of 13