EXHIBIT
10.1


 


EXECUTION
COPY


 


Confidential
treatment has been requested for portions of this exhibit. The copy filed
herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.


 


AGREEMENT AND OMNIBUS AMENDMENT


 


This
Agreement and Omnibus Amendment (this “Omnibus Agreement”) is made as of
July 30, 2009, among Buffalo Lake Energy, LLC (“BLE”), Cargill,
Incorporated (“CI”) and Cargill Commodity Services, Inc. (“CS”
and, together with CI, “Cargill”).


 


RECITALS


 


WHEREAS,
BLE and Cargill are parties to the Master Agreement, dated September 25,
2006 (the “Master Agreement”);


 


WHEREAS,
BLE and CI are parties to (i) the Ethanol Marketing Agreement, dated as of
September 25, 2006 (the “Ethanol Marketing Agreement”), (ii) the
Corn Supply Agreement, dated September 25, 2006 (the “Corn Supply
Agreement”), (iii) the Distillers Grains Marketing Agreement, dated as
of September 25, 2006 (the “DG Agreement”), and  (v) the Grain Facility Lease, dated September 25,
2006 (the “BLE Lease”);


 


WHEREAS,
BLE and CS are parties to the Cargill Direct Futures Advisory Agreement, dated
as of September 25, 2006 (the “Futures Agreement” and, together
with the Master Agreement, the Ethanol Marketing Agreement, the Corn Supply
Agreement and the DG Agreement the “Goods and Services Agreements”; and
the Goods and Services Agreements together with the BLE Lease, the “BLE-Cargill
Agreements” and each, a “BLE-Cargill Agreement”); and


 


WHEREAS,
the Parties wish to set forth their agreement with respect to certain
concessions to be made by CI and/or CS under the BLE-Cargill Agreements and to
amend certain provisions of certain of the BLE-Cargill Agreements, in each case
as more particularly set forth herein.


 


NOW,
THEREFORE, in consideration of the mutual promises and obligations stated
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, BLE and Cargill hereby agree as follows:


 


SECTION 1

DEFINITIONS


 


1.1                                 Defined Terms.  Capitalized terms used in this Omnibus
Agreement which are defined in the preamble and Recitals will have the meanings
given them in the preamble and the Recitals. 
Other capitalized terms used in this Omnibus Agreement shall have the
meanings given such terms in the BLE-Cargill Agreements.  In addition, the following terms shall have
the meanings set forth below:


 


(a)                                  “Bankruptcy
Code”  shall mean the United States
Bankruptcy Code as codified at 11 U.S.C. § 101 et seq.


 

















 


(b)                                 “Business
Day” shall mean a day that is a “Business Day” as defined in the Master
Agreement and, if such day relates to the determination of any Eurodollar Rate,
a day on which dealings in U.S. dollar deposits are carried on in the London
interbank Eurodollar market.


 


(c)                                  “Cargill
Working Days” shall have the meaning assigned to such term in the Corn
Supply Agreement.


 


(d)                                 “Concession
Effective Date” shall have the meaning assigned to such term in Section 3.5.


 


(e)                                  “Concessionary
Period” shall mean the period from the Concession Effective Date and
continuing for a period of twelve (12) consecutive calendar months; provided,
that the Concessionary Period shall be deemed terminated on the date BLE and/or
PTE receives written notice of such termination from Cargill as contemplated by
and in accordance with Section 4.2 hereof or Section 4.2 of the PTE
Omnibus Agreement, as applicable.


 


(f)                                    “Eurodollar
Rate” shall mean, with respect to each Interest Period, a rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”) as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by Cargill from time to time) at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, for deposits in United States dollars (for
delivery on the first day of such Interest Period) for a term of one month
(rounded upwards, if necessary, to the nearest one-hundredth of one percent
(0.01%)).  If for any reason such rate is
not available, the term “Eurodollar Rate” shall mean, with respect to each
Interest Period, the rate per annum displayed in the Bloomberg Financial Market
System (or any successor thereto), at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, as the
London interbank offered rate for deposits in United States dollars (for
delivery on the first day of such Interest Period) for a term of one month
(rounded upwards, if necessary, to the nearest one-hundredth of one percent
(0.01%)); provided, however, that (x) if such rate for any
Interest Period cannot otherwise be determined in accordance with this
definition, the term “Eurodollar Rate” shall mean, for such Interest
Period, a rate per annum equal to the rate determined by Cargill as a rate at
which U.S. dollar deposits are offered to major banks in the London interbank
eurodollar market for funds to be made available on the first day of such
Interest Period for a term of one month, (y) if Cargill in its discretion
determines that deposits in United States dollars are not being offered in the
London interbank eurodollar market or that, for any other reason, adequate and
reasonable means do not exist for ascertaining the “Eurodollar Rate” in
accordance with the foregoing clause (x), the “Eurodollar Rate” shall be
the higher of (I) the federal funds effective rate, as determined by
Cargill, plus 0.50%, and (II) the prime rate, as determined by Cargill,
less 1% and (z) all interest shall be computed hereunder on the basis of
the actual number of days elapsed in a year of 360 days.


 


(g)                                 “Interest
Periods” shall mean, collectively, the thirty (30) day period commencing on
the first date on which Deferred Payment is deferred under a BLE-Cargill
Agreement and each subsequent thirty (30) day period until the date of which (i) the
Concessionary Period shall have expired and (ii) the full amount of the
Deferred Payment shall have been paid to Cargill, and “Interest Period”
shall mean any such one-month period.


 


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(h)                                 “Margin”
shall mean 3.0%.


 


(i)                                     “Parties”
shall mean, collectively, BLE and Cargill, and “Party” shall mean any of
them.


 


(j)                                     “PTE”
shall mean Pioneer Trail Energy, LLC.


 


(k)                                  “PTE Omnibus
Agreement” shall mean the Agreement and Omnibus Amendment, dated as of even
date herewith, by and among PTE and Cargill.


 


SECTION 2


AMENDMENTS TO BLE-CARGILL AGREEMENTS


 


2.1                                 Amendment to
Master Agreement.  BLE and
Cargill hereby agree to amend the Master Agreement as follows:


 


(a)                                  Section 5(b) shall
be deleted in its entirety and replaced with the following:


 


(b) Setoff and Netting in Producer Default Situation.  Cargill is hereby irrevocably authorized at
any time and from time to time during which a Producer default or a Producer
Event of Default has occurred under any of the Goods and Services Agreements or
the Omnibus Agreements has not been cured by Producer within one (1) Business
Day after receipt of written notice from Cargill of such Producer default or
Producer Event of Default to set-off, recoup and apply any and all amounts due
from Cargill to Producer under any of the Goods and Services Agreements, the
Omnibus Agreements, or the Related
Goods and Services Agreements, whether or not payable, against the Aggregate
Exposure of Cargill.  Promptly upon any
such set-off, Cargill will provide written notice to the Producer setting forth
the amount, source and application of such set-off.  The rights of Cargill under this Section are
in addition to other rights and remedies that Cargill has under this Agreement
and applicable law.  In the event a Party
disputes in good faith whether an amount is due and owing to the other Party,
the other Party may set-off against such amount only if the amount in dispute
is placed into a mutually agreeable escrow account pending resolution of such
dispute in accordance with Section 6.


 


(b)                                 during the
Concessionary Period, Section 5(d) shall be deleted in its entirety
and replaced with the following:


 


(d) Aggregate Exposure of Cargill.  It is the Parties’ intent that at no time
during the term of this Master Agreement will the Aggregate Exposure of Cargill
exceed the amount owed by Cargill to Producer. 
However, if the Aggregate Exposure of Cargill should at any time exceed
the amount owed by Cargill to Producer, then Cargill shall be entitled, in its
sole discretion, to (i) withhold payments to Producer in an amount equal
to the difference between the Aggregate Exposure of Cargill and the amount owed
by Cargill to Producer (the “Uncovered Exposure”); (ii) unwind hedge
positions, if any, consistent with the terms of the Risk Advisory Agreement
and/or the Corn 


 


3

















 


Advisory Agreement in an amount equal to the
Uncovered Exposure; and/or (iii) require Producer to provide a letter of
credit or cash deposits acceptable to Cargill as security for the Uncovered
Exposure; provided, that a letter of credit shall be deemed acceptable to
Cargill if such letter of credit (A) is issued by a financial institution
or other Person whose long-term senior unsecured debt is rated at least “A-” by
Standard & Poor’s Corporation or “A3” by Moody’s Investors Service, Inc.,
(B) names Cargill, Incorporated as beneficiary and (C) contains such
other terms and provisions as are reasonably satisfactory to Cargill.  Cargill agrees to take such actions as may be
reasonably requested by Producer from time to time to terminate or reduce the
stated amount of any such letter of credit, and to terminate Cargill’s security
interest with respect to any such cash deposits, in each case, to the extent
that such reduction or termination does not result in any Uncovered Exposure.


 


(c) in Section 11(a), the definition of “Aggregate Exposure
of Cargill” shall be deleted in its entirety and replaced with the following:


 


“Aggregate Exposure of Cargill” means, on any day of
determination, an amount, if any, equal to (i) the sum of the amounts
which would be payable to Cargill if Cargill terminated each of the Goods and
Services Agreements, plus (ii) the Related Project Exposure of
Cargill, plus (iii) amounts payable (or, during the Concessionary
Period, amounts due) to Cargill pursuant to the Grain Facility Lease, less (iv) amounts
exclusively and irrevocably available to Cargill under letters of credit or
cash deposits acceptable to Cargill.  For
clarification purposes, in calculating its exposure, Cargill may mark to market
all open cash and futures positions.


 


(d)                                 the following shall be added
to Section 11(a):


 


“BLE Omnibus Agreement” shall mean the
Agreement and Omnibus Amendment, dated as of July 30, 2009, by and among
Producer and Cargill.


 


“Concession Effective Date” shall
have the meaning ascribed to such term in the BLE Omnibus Agreement.


 


“Concessionary Period” shall have the meaning
ascribed to such term in the BLE Omnibus Agreement.


 


“Omnibus Agreements” shall mean, collectively,
the BLE Omnibus Agreement and the PTE Omnibus Agreement.


 


“PTE Omnibus Agreement” shall mean the
Agreement and Omnibus Amendment, dated as of July 30, 2009, by and among
Pioneer Trail Energy, LLC and Cargill.


 


“Uncovered Exposure” shall have the meaning
ascribed to such term in Section 5(d).


 


4

















 


2.2                                 Amendment to
Corn Supply Agreement.  BLE
and CI hereby agree to amend the Corn Supply Agreement as follows:


 


(a)                                  Section 13(b)(i) shall
be deleted in its entirety and replaced with the following:


 


(i) Producer shall pay to Cargill the amount set forth
in each Invoice no later than by 12:00 noon on the Payment Date (or, with
respect to payment of amounts deferred by Producer as contemplated by Section 13(d),
the Concessionary Payment Date).  The
term “Payment Date” means (x) during the first Contract Year, three (3) business
days after the date on which Corn is supplied to the Grain Facility (the “Delivery
Date”), (y) during the second contract year, two (2) business days
after the Delivery Date, (z) thereafter, one (1) business day after
the Delivery Date; provided, that, during the Concessionary Period, the “Payment
Date” means [***] business days after the Delivery Date.


 


(b)                                 in Section 13(b)(ii),
in each instance the words “Payment Deadline” appear, such words shall be
deleted and replaced with the following: “Payment
Date (or, with respect to payment of amounts deferred by Producer as
contemplated by Section 13(d), the Concessionary Payment Date).”


 


(c)                                  the following shall be added
as Section 13(d):


 


(d) Concessionary Period.  Notwithstanding anything herein to the
contrary other than in Section 13(e), during the Concessionary Period,
Producer may (but shall not be obligated to) defer payment of the amounts
described in Section 13(b)(i) until the Concessionary Payment Date
(the amount of any such deferred payments, in the aggregate, the “Deferred Corn
Supply Payments”).  The term “Concessionary
Payment Date” means the date that is [***] Cargill Working Days after the
Delivery Date.


 


(d)                                 the following shall be added
as Section 13(e):


 


(e) Maximum Deferred Corn Supply Payment.  Notwithstanding anything herein to the
contrary, Producer shall immediately pay to Cargill on demand any Deferred Corn
Supply Payments which, together with any “Deferred Corn Supply Payments” (as
such term is defined in the Corn Supply Agreement, dated September 25,
2006, as amended, by and between Pioneer Trail Energy, LLC and Cargill), exceed
USD $[***].


 


2.3                                 Amendment to
BLE Lease.  BLE and CI
hereby agree to amend the BLE Lease as follows:


 


(a)                                  in Section 3.01, the
words “During the Term” shall be
deleted in their entirety and replaced with the words “Subject to Section 3.05, during the Term”.


 


(b)                                 the following shall be added
as Section 3.05:


 


5

















 


SECTION 3.05.  Concessionary
Period.  Notwithstanding anything herein
to the contrary, during the Concessionary Period (as defined in the Agreement
and Omnibus Amendment, dated as of July 30, 2009, by and between Landlord
and Tenant), Tenant may (but shall not be obligated to) defer payment under Section 3.01
of up to USD $[***] per month (the amounts of such deferred payments, in the
aggregate, the “Deferred Rent Payments”) without penalty hereunder (including,
for the avoidance of doubt, payment of interest under Section 3.04).  The Deferred Rent Payments shall be paid by
Tenant in twenty-four (24) equal monthly installments, with the first such
installment to be due and payable on the first day of the calendar month
following the expiration or termination of the Concessionary Period, and
subsequent installments to be due and payable on the first business day of each
calendar month thereafter.


 


2.4                                 Amendment to
Ethanol Marketing Agreement.  BLE and CI hereby agree to amend the Ethanol
Marketing Agreement as follows:


 


(a)                                  the following shall be added
as Section 1.5:


 


1.5  Concessionary
Period.  Notwithstanding anything
herein to the contrary, during the Concessionary Period, Cargill shall not be
obligated to enter into any sales agreement for Producer’s Ethanol with a term
that is in excess of forty-five (45) days.


 


(b)                                 in Section 3.3,
immediately following the first parenthetical, the following shall be added: “(excluding any such Contract Year which includes all
or any portion of the Concessionary Period)”.


 


(c)                                  the following shall be added
as Section 3.5:


 


Section 3.5.  Concessionary
Period.  Notwithstanding anything
herein to the contrary, Cargill agrees to defer the payment of [***] percent [***%]
of the Cargill Commission (as such term is described in each of Exhibit A
and Exhibit B) that accrues during the Concessionary Period, except the
portion thereof equal to [***] (USD $[***]) per gallon of Ethanol sold (the
amount of such deferred payments, in the aggregate, the “Deferred Ethanol
Commission Payments”).  The Deferred
Ethanol Commission Payments shall be paid by Producer in twenty-four (24) equal
monthly installments, with the first such installment to be due and payable on
the one year anniversary of the Concession Effective Date, and subsequent
installments to be due and payable on the first business day of each calendar
month thereafter.


 


(d)                                 on the first page of Exhibit A,
in the seventh (7th) line, after the words “Gross Proceeds less Cargill
Commission”, the following shall be added “(except any portion of such Cargill
Commission that is deferred by Cargill pursuant to Section 3.5)”.


 


(e)                                  on the first page of Exhibit B,
in the sixth (6th) line, after the words “Gross Proceeds less Cargill
Commission”, the following shall be added “(except any portion of such Cargill
Commission that is deferred pursuant to Section 3.5)”.


 


6

















 


2.5                                 Amendment to DG
Agreement.  BLE and CI
hereby agree to amend the DG Agreement as follows:


 


(a)                                  the following
shall be added as Section 1.5:


 


1.5  Concessionary
Period.  Notwithstanding anything
herein to the contrary, during the Concessionary Period, Cargill shall not be
obligated to enter into any sales agreement for DG with a term that is in
excess of ninety (90) days.


 


(b)                                 in Section 3.2,
immediately following the second parenthetical, the following shall be added: “(excluding any such Contract Year which includes all
or any portion of the Concessionary Period)”.


 


(c)                                  the following
shall be added as Section 3.4:


 


Section 3.4.  Concessionary
Period.  Notwithstanding anything
herein to the contrary, Cargill agrees to defer the payment of [***] percent [***%]
of each of the Cargill Commissions (as such term is described on Exhibit A)
that accrues during the Concessionary Period, except the portion thereof equal
to (i) with respect to the Cargill Standard Commission, Cargill
Non-Standard Commission and Cargill Own Account DDG Commission, [***]% of the
F.O.B. Facility Price and (ii) with respect to any other Cargill
Commissions, $[***] per ton (such deferred amounts, in the aggregate, the “Deferred
DG Commission Payments”).  The Deferred
DG Commission Payments shall be paid by Producer in twenty-four (24) equal
monthly installments, with the first such installment to be due and payable on
the one year anniversary of the Concession Effective Date, and subsequent
installments to be due and payable on the first business day of each calendar
month thereafter.


 


(d)                                 Exhibit A shall be
deleted in its entirety and replaced with Exhibit A attached
hereto.


 


SECTION 3


CONCESSION TERMS


 


3.1                                 Deferral
Payments.


 


(a)                                  The Parties agree that,
after giving effect to the amendments set forth herein, Deferred Corn Supply
Payments (as defined in the Corn Supply Agreement), Deferred Rent Payments (as
defined in the BLE Lease), Deferred Ethanol Commission Payments (as defined in
the Ethanol Marketing Agreement) and Deferred DG Commission Payments (as
defined in the DG Agreement) (such deferred amounts, in the aggregate, the “Deferred
Payment”) shall each bear interest at the applicable Eurodollar Rate plus
the Margin, during each interest period, from the date such amounts are
deferred under the respective BLE-Cargill Agreement until (but excluding) the
date such amounts are paid to Cargill.


 


(b)                                 Within five (5) Cargill
Working Days after the end of each calendar month, Cargill will send an invoice
electronically to BLE setting forth the amount of any interest 


 


7

















 


that has accrued in respect of the Deferred
Payment for such month (“Deferral Interest Invoice”).  Any failure by Cargill to send a Deferral
Interest Invoice does not in any way affect the amount of any interest that has
accrued in respect of the Deferred Payment for such month.  Within five (5) Cargill Working Days
after Cargill’s transmission of the Deferral Interest Invoice, BLE shall pay to
Cargill the amount set forth in any such Deferral Interest Invoice for such
prior month.


 


(c)                                  For the avoidance of doubt,
notwithstanding anything to the contrary herein or in any of the BLE-Cargill
Agreements, BLE shall have the right at any time, and from time to time, to
prepay, without premium or penalty hereunder, all or any portion of the
Deferred Payment.


 


3.2                                 Clarification
of Setoff Rights.


 


(a)                                  BLE and Cargill
hereby acknowledge and agree that (i) the Goods and Services Agreements,
together with this Omnibus Agreement, the PTE Omnibus Agreement and the Goods
and Services Agreements (as defined in the PTE Omnibus Agreement)
(collectively, the “Cargill Goods and Services Agreements”) constitute
and shall be deemed to be a “master netting agreement” and that the Parties,
together with PTE shall be deemed to be “master netting participants” within
the meaning of, and as such terms are used in, any law applicable to the
Parties’ rights herein, including the Bankruptcy Code, and (ii) all
nettings, liquidations, and setoffs of the Aggregate Exposure of Cargill (as
defined in the Master Agreement and amended hereby) by Cargill against amounts
owed to BLE and PTE, as well as all other netting, liquidation, and setoffs
effectuated pursuant to the Cargill Goods and Services Agreements will be
governed by the following provisions of the Bankruptcy Code in the event of the
bankruptcy of either BLE or PTE: (A) Sections 556, 560, 561 and 562; (B) Sections
362(b)(6), (17) and (27); (C) Sections 546(e), (g) and (j); and (D) Section 548(d)(2).


 


(b)                                 The Parties
agree that the setoffs and netting contemplated hereunder arise under swap
agreements, forward contracts, master netting agreements or commodity contracts
(as applicable) and constitute “settlement payments” as set forth in Sections
101 and 741 of the Bankruptcy Code.  The
Parties further intend that the Cargill Goods and Services Agreements and the
transactions occurring thereunder constitute “forward contracts,” “commodity
contracts,” “master netting agreements,” or “swap agreements” (as applicable),
as such terms are defined in the Bankruptcy Code.


 


(c)                                  With respect to
the Cargill Goods and Services Agreements and any transactions thereunder or
related thereto that constitute: (i) a “forward contract,” each party
thereto constitutes a “forward contract merchant”; (ii) a “commodity
contract,” each party thereto constitutes a “commodity broker,” (iii) a “swap
agreement,” each party thereto constitutes a “swap participant,” and (iv) a
“master netting agreement,” each party thereto constitutes a “master netting
agreement participant,” within the meaning of, and as such terms are used in,
the Bankruptcy Code or any law applicable to the Parties’ rights herein,
whether now or hereafter enacted or made applicable.  The Parties agree that the Cargill Goods and
Services Agreements and all of the transactions hereunder and thereunder form a
single integrated agreement among the Parties and PTE.  The Parties hereby acknowledge and agree that
the BLE-Cargill Agreements and the PTE-Cargill Agreements were 


 


8

















 


negotiated and entered into
simultaneously as integrated parts of one unified transaction with a common
purpose.  Without limiting the generality
of the forgoing, (i) the Parties would not have entered into one of the
BLE-Cargill Agreements or one of the PTE-Cargill Agreements without entering
into all of the BLE-Cargill Agreements and the PTE-Cargill Agreements (ii) the
consideration for such agreements is not separate and distinct, but
interrelated and incorporated by reference between all of the BLE-Cargill
Agreements and the PTE-Cargill Agreements and (iii) in the event that any
of the Parties files a petition under the Bankruptcy Code, the Parties intend
that all of the BLE-Cargill Agreements and the PTE-Cargill Agreements will
either be assumed or rejected together as one executory contract and unexpired
lease under section 365 of the Bankruptcy Code.


 


3.3                                 Restrictions on
Payments.  BLE, PTE
and any parent or affiliated company shall not declare or pay any dividend,
distribution, or return of capital prior to the expiration of the term of the
Concessionary Period.  For the avoidance
of doubt, the previous sentence shall not be construed to affect the ability of
BLE to make payments of principal and interest in the ordinary course of
business to its secured creditors.


 


3.4                                 Accounting and
Audit Rights.  Without
limiting the obligations of BLE in the Master Agreement (including, without
limitation, Section 10(q) thereof), during the Concessionary Period, (a) BLE
shall provide to Cargill copies of all financial statements, financial
forecasts, financial models, business plans, material correspondence, and
operations reports (“Information”) furnished by BLE or its
representatives to its other lenders and trade creditors, (b) BLE shall
furnish the Information to Cargill at the same time such Information is
furnished to BLE’s other lenders and trade creditors, (c) BLE shall from
time to time provide Cargill with such financial information and copies of
relevant forbearance and stand-still agreements as Cargill may request and (d) Cargill
and its accounting firm shall have the right, from time to time and at Cargill’s
expense, to audit BLE’s books, records, and financial statements.


 


3.5                                 Effectiveness.  This Omnibus Agreement shall become effective
on the date on which BLE provides evidence to Cargill that the execution and
delivery of this Omnibus Agreement by BLE and Cargill has been consented to in
writing by the Financing Parties under the construction, term and working
capital credit facility led by BNP Paribas, as administrative agent and by
Deutsche Bank Trust Company Americas or any applicable assignee or successor,
as collateral agent (such date, the “Concession Effective Date”).


 


SECTION 4

DEFAULT & REMEDIES


 


4.1                                 BLE Default.  Each of the following shall constitute an
event of default on the part of BLE (a “BLE Event of Default”) under
this Omnibus Agreement:


 


(a)                                  BLE defaults in
the due performance of its payment obligations under Section 3.1(b);


 


(b)                                 A Producer
Event of Default occurs under any of the BLE-Cargill Agreements;


 


(c)                                  BLE defaults in
the due performance and observance of any of its obligations hereunder (except
its payment obligations under Section 3.1(b);


 


9

















 


(d)                                 BLE files a
voluntary petition in bankruptcy, has filed against it an involuntary petition
in bankruptcy, makes an assignment for the benefit of creditors or has a
trustee or receiver appointed for any or all of its assets; and


 


(e)                                  any “PTE Event
of Default” as defined in the PTE Omnibus Agreement.


 


4.2                                 Remedies.  If a BLE Event of Default occurs for any
reason and is continuing, in addition to such other rights and remedies Cargill
may have under the BLE-Cargill Agreements, the Omnibus Agreements or applicable
law, Cargill may, upon written notice to BLE, terminate the Concessionary
Period and exercise all rights and remedies available to it under the
BLE-Cargill Agreements and this Omnibus Agreement; provided, that, upon
the occurrence of a BLE Event of Default as described in Section 4.1(d),
no such notice shall be required to be delivered.  Upon any termination of the Concessionary
Period pursuant to this Section 4.2, the full amount of the
Deferred Payment, together with any interest that has accrued in respect of the
Deferred Payment, shall become immediately due and payable.


 


SECTION 5

MISCELLANEOUS


 


5.1                                 Representations
and Warranties.  Each of the
Parties hereto represents and warrants as to itself that (a) the
execution, delivery and performance by such Party of this Omnibus Agreement has
been duly and validly authorized by all necessary action and (b) this
Omnibus Agreement has been duly and validly executed and delivered by such
Party and constitutes the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms.


 


5.2                                 Costs and
Expenses.  Without
duplication of the obligations of PTE under Section 5.2 of the PTE Omnibus
Agreement, BLE agrees to pay or reimburse Cargill for all of its documented
out-of-pocket costs and expenses incurred in connection with the preparation
and execution of this Omnibus Agreement and any other documents prepared in
connection therewith, and the consummation and administration of the
transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to Cargill.


 


5.3                                 Limited
Amendment.  The
amendments set forth herein shall be effective only in the specific instances
described herein and nothing herein shall be construed to limit or bar any
rights or remedies of the Parties to the BLE-Cargill Agreements.  For the avoidance of doubt and without
limiting the generality of the foregoing, the Parties agree that no other
change, amendment or consent with respect to the terms and provisions of any of
the BLE-Cargill Agreements is intended or contemplated hereby (which terms and
provisions remain unchanged and in full force and effect other than as
expressly set forth herein).


 


5.4                                 No Amendments.  No amendment of modification of all or any
part of this Omnibus Agreement shall be effective unless in writing and signed
by each of the Parties.


 


5.5                                 Counterparts.  This Omnibus Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument and any Party to this Omnibus Agreement may execute this
Omnibus Agreement by signing any such counterpart; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signatures are physically attached to the same
counterpart.


 


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5.6                                 Severability.  Any provision of this Omnibus Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions of this Omnibus Agreement; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.


 


5.7                                 Headings.  Headings herein are for convenience only and
shall not be relied upon in interpreting or enforcing this Omnibus Agreement.


 


5.8                                 Choice of Law.  This Omnibus Agreement shall for all purposes
be governed by, and construed in accordance with, the laws of the State of New
York excluding choice of law principles or such laws which would require the
application of the laws of a jurisdiction other than the State of New York.


 


[The
remainder of this page has been intentionally left blank.  The signatures of the parties hereto appear
on the next succeeding pages.]


 


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IN
WITNESS WHEREOF, the Parties have caused this Omnibus Agreement to be executed by their duly
authorized representatives as set forth below.


 


 


	
   

  	
  BUFFALO LAKE ENERGY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CARGILL, INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CARGILL COMMODITY SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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EXHIBIT A


 


Terms relating to payment and commission calculation


 


Cargill agrees to pay Producer for all
Standard-Grade DDG and DDGS loaded into railcars and trucks and weighed at the
Facility for shipment to customers an amount equal to (i) the F.O.B.
Facility Price (with settlement weights as described in Section 8.4 of the
Agreement) less (ii) the Cargill Standard Commission (except any
portion of such Cargill Standard Commission that is deferred pursuant to Section 3.4)
(such payment amount, the “Initial Price”).  “Cargill Standard Commission” shall
mean the greater of (i) three percent (3%) of the F.O.B. Facility Price
and (ii) $2.00 per ton.


 


Cargill agrees to pay Producer for all
Non-Standard-Grade DDG and DDGS loaded into railcars and trucks at the Facility
and weighed for shipment to customers, an amount equal to (i) the F.O.B.
Facility Price for such Non-Standard-Grade DDG [or DDGS] less (ii) the
Cargill Non-Standard Commission (except any portion of such Cargill
Non-Standard Commission that is deferred pursuant to Section 3.4) (such
payment amount, the “Non-Standard Initial Price”).  “Cargill Non-Standard Commission”
shall mean the greater of (i) three percent (3%) of the weighted average
F.O.B. Facility Price of all Standard-Grade DDG or DDGS sold by Cargill to
third parties in a rolling thirty (30) day period preceding the date of
Producer’s invoice and (ii) $2.00 per ton.


 


Cargill agrees to pay Producer for all
Standard-Grade and Non-Standard-Grade DWG, MDWG, MDDG, and CDS loaded into
railcars and trucks at the Facility and weighed for shipment to customers an
amount equal to (i) the F.O.B. Facility Price less (ii) the
Cargill DWG Commission (except any portion of such Cargill DWG Commission that
is deferred pursuant to Section 3.4). 
“Cargill DWG Commission” shall mean $3.00 per ton.


 


“Accessorial Charges” shall mean charges
imposed by third parties for the off-loading, movement and storage of Producer’s
DG, including without limitation taxes, tonnage taxes, hard-to-unload truck or
railcar charges/transloading charges, bad order railcar repair charges, fuel
surcharges, storage charges, demurrage charges, product shrinkage, detention
charges, switching, and weighing charges. 
Neither Party shall be responsible for demurrage charges caused solely
by the negligence or willful misconduct of the other Party.


 


“Cargill Commissions” shall mean,
collectively, the Cargill Standard Commission, the Cargill Non-Standard
Commission, the Cargill DWG Commission, the Cargill Own Account DDG Commission
and the Cargill Own Account Other Commission.


 


“Delivered Sale Price” shall mean sales
dollars received by Cargill for Producer’s DG, inclusive of tariff freight, as
evidenced by Cargill’s invoices to its own customers.


 


“F.O.B. Facility Price” shall mean the F.O.B.
sale price equivalent net of applicable deductions and costs as described in
this Agreement, including without limitation Accessorial Charges and Tariff
Freight Costs (or, if applicable, the Delivered Sales Price net of applicable
deductions and costs as described in this Agreement, including without
limitation Accessorial Charges and Tariff Freight Costs) that Cargill invoices
its third party customers.


 


“Tariff Freight Costs” shall mean freight and
related costs incurred by Cargill to transport Producer’s DG.


 


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“Standard-Grade” shall mean DG that meet the
Specifications set forth in this Agreement.


 


“Non-Standard-Grade” shall mean DG that fail
to meet the Specifications set forth in this Agreement, but which Cargill
nonetheless accepts for marketing under this Agreement.   For purposes of illustration only, assume
that Cargill purchases ten (10) tons of Standard DG from Producer, and
resells said Standard DG to a third-party purchaser at $100/ton (the F.O.B.
Facility Price) plus a $50/ton tariff rate charge, resulting in a $1,500 sale
invoice to said third party.  Assume also
that Cargill incurs and pays $3 per ton in Accessorial Charges.  In such instance, Cargill would pay, or cause
to be paid, the freight of $500, and the remaining $1,000 would be split as
follows: $970 to the Producer and $30 to Cargill.  Since 3% of $100 equals $3.00 and is greater
than the $2.00 per ton minimum flat fee, $3.00 per ton.  Producer shall also promptly reimburse
Cargill for $30 in Accessorial Charges.


 


The Parties acknowledge that Cargill will pay
Producer for its DG within thirty (30) days from the date that Cargill invoices
each customer for such DG, despite the fact that actual Accessorial Charges and
Tariff Freight Costs may not be determined during such timeframe.  Accordingly, Cargill will pay Producer based
on the actual Delivered Sales Price less estimated Accessorial Charges and
Tariff Freight Costs.  Once the actual
Accessorial Charges and Tariff Freight Costs for each shipment are known, Cargill
will true-up the difference with Producer based on the actual, as opposed to
the estimated, amounts and will provide Producer with reasonable information
supporting such amounts.  If the actual
Accessorial Charges and Tariff Freight Costs are less than the estimated
Accessorial Charges and Tariff Freight Costs, Cargill will remit the difference
to Producer.  If the actual Accessorial
Charges and Tariff Freight Costs are greater than the estimated Accessorial Charges
and Tariff Freight Costs, Producer will remit the difference to Cargill, or
Cargill will offset the total amount against other monies due to Producer from
Cargill.


 


Whenever in Cargill’s reasonable judgment it is in
the best interests of both Cargill and Producer, Cargill shall be permitted to
purchase DG for its own account.  In
every such instance, Cargill shall pay for all DDG and DDGS loaded into
railcars and trucks and weighed for shipment to customers, an amount equal to (i) the
weighted average F.O.B. Facility Price of all DDG and DDGS sold by Cargill to
its customers in the week in which Cargill takes delivery for its own account less
(ii) the Cargill Own Account DDG Commission (except any portion of such
Cargill Own Account DDG Commission that is deferred pursuant to Section 3.4).  Unless the parties may otherwise agree, the “Cargill
Own Account DDG Commission” shall mean the greater of (i) three
percent (3%) of the weighted average F.O.B. Facility Price and (ii) $2.00
per ton.


 


With respect to DWG, MDWG, MDDG, and CDS that
Cargill purchases for its own account, Cargill shall pay Producer for such
material that is loaded into railcars and trucks at the Facility and weighed
for shipment to customers an amount equal to (i) the weighted average
F.O.B. Facility Price of such DWG, MDWG, MDDG, and CDS sold by Cargill to its
customers in the week in which Cargill takes delivery for its own account less
(ii) the Cargill Own Account Other Commission (except any portion of such
Cargill Own Account Other Commission that is deferred pursuant to Section 3.4).  Unless the parties may otherwise agree, the “Cargill
Own Account Other Commission” shall mean $3.00 per ton.


 


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