**Exhibit 10.17**

 

Noble - ConfidentialDocument – EXECUTION COPY

 

*** Portions omitted pursuant to a request for confidential treatment andfiled separately with the Securities and Exchange Commission.**

 

**ETHANOL PURCHASE AND SALE AGREEMENT**

 

This Ethanol Purchase and Sale Agreement(this “Agreement”) dated this 12 day of December 2007.

 

**BETWEEN**:

 

**NOBLE AMERICAS CORP.,**a Delaware Corporation, having its offices in the City of Stamford, Connecticut(hereinafter referred to as “Noble” or “Purchaser”),

 

- and -

 

**UNITED WISCONSIN GRAIN PRODUCERS**a limited liability company having itsprincipal place of business at W1231 Tessmann Drive, Friesland, in the Countyof Columbia, State of Wisconsin (hereinafter referred to as “Seller” or“Producer”).

 

**RECITALS:**

 

Producer owns and operates a Ethanol production facility in Friesland,Wisconsin..

 

Purchaser wishes to enter into an agreement with Producer to purchasefrom Producer the Ethanol produced by such facility.

 

Purchaser intends to sell all the Ethanol which Purchaser purchasesfrom Producer hereunder.

 

Producer has agreed to sell to Purchaser and Purchaser has agreed tobuy from Producer all of the Ethanol to be produced from such facility on thefollowing terms and conditions.

 

**NOWTHEREFORE,**this Agreement witnesses that, in consideration of the promises and mutualcovenants and conditions contained herein, the parties agree as follows:

 

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**ARTICLE I**

**DEFINITIONS ANDINTERPRETATION**

** **

1.1           Definitions.  In this Agreement, including the recitals,the following words and terms shall havethe following meanings ascribed thereto:

 

(a)           “Affiliate”of a specified person shall mean aperson that directly or indirectly through one or more intermediaries, controlsor is controlled by, or is under common control with, the person specified. Theterm “control” (including the terms “controlling,” “controlled by” and “undercommon control with”) means the possession, direct or indirect, of the power todirect or cause the direction of the management and policies of a person,whether through the ownership of voting securities, by contract, or otherwise. Aperson will be deemed in “control” for purposes of the foregoing if *inter alia* the person is the beneficial owner, directly orindirectly, of more than ten percent of any class of voting securities of theperson specified.

 

(b)           “Agreement” means this Ethanol Purchase and Sale Agreement.

 

(c)           “Alternative Supply Arrangements” shall have the meaning set forthin   Section    13..3.

 

(d)           “CommencementDate” means the date of this Agreement.

 

(e)           “Dateof First Delivery” means that date after the date of execution of thisAgreement when    Ethanol meeting thespecifications set forth in Articles IV and VI is first made available fordelivery on  a commercial scale  to Purchaser from the Plant.

 

(f)            DeliveryPoint” means the place of loading of the Ethanol onto rail cars or trucksat  the Plant .

 

(g)           “Ethanol”means the clear liquid produced for use as a motor fuel additive made fromfermented grain being approximately 200 proof alcohol produced by Producer atthe Plant as described in Article VI.

 

(h)           “Fee”means the marketing and distribution fee payable as set forth in Section 7.4hereof and Schedule B hereto.

 

(i)            “ForceMajeure” shall have the meaning set forth in Section 13.2.

 

(j)            “Gallon”means one U.S. gallon of Ethanol at 60 degrees Fahrenheit.

 

(k)           “InitialPeriod” means a period of Two (2) years from the Date of FirstDelivery.

 

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(l)            “Plant”means the Ethanol production plant with a nameplate production capacity ofapproximately Fifty Two Million (52) million Gallons of Ethanol per annum andassociated co-products to be located at , Freisland, WI.

 

(m)          “PrimeCommercial Lending Rate” means the rate of interest most recently published fromtime to time in the Money Rate Table of the “Wall Street Journal” as the primeannual rate of interest or such other successor or alternative publication ortable as the parties may mutually agree if this publication ceases to exist.

 

(n)           “Product”means Ethanol as defined in Section 1.1 (g) above.

 

(o)           “PurchasePrice” is defined in Section 7.1(a).

 

(p)           “SalePrice” is defined in Section 7.1.

 

(q)           “Taxes”is defined in Section 7.8.

 

(r)            “TotalAnnual Plant Production” means the entire production of Ethanol from the Plant.

 

(s)           [*]

 

1.2           Headings.  The division of this Agreement into Articles,Sections, Paragraphs and Clauses or any other divisions and the inclusion ofthe various headings, is for convenience of reference only and shall not affectthe interpretation or construction hereof.

 

1.3           Interpretation.  Whenever the singular or masculine or neuteris used in this Agreement the same shall be construed as meaning plural orfeminine or body politic or corporate and vice versa where the context or the partieshereto so require.

 

1.4           Hereof, etc.  Reference to “Articles”, “Sections”,“Paragraphs” or “Clauses” are references to the Articles, Sections,Subsections, Paragraphs and Clauses of this Agreement.  Words such as “hereunder”, “hereto” and“herein” and similar expressions shall refer to the whole of this Agreement andnot to any particular Article, Section or Paragraph hereof.

 

1.5           Currency.  All references to “dollars” or “$” in thisAgreement shall be references to amounts expressed in United Statescurrency.  All calculations of monetarysums to be hereunder shall be made in United States currency.

 

1.6           Schedules.  Schedules A and  B attached to this Agreement, as they may be amended and revised from timeto time, shall constitute part of, and shall be included in, this Agreement.

 

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* Portion omittedpursuant to a request for confidential treatment and filed separately with theSecurities and Exchange Commission.

 

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**ARTICLE II**

**DATE OF FIRSTDELIVERY**

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2.1           Producer advises it iscurrently producing Ethanol on a commercial scale meeting the specificationsset forth in Articles IV and VI hereof. Producer’s obligation to supply suchEthanol to Purchaser and  Purchaser’s obligationto purchase same shall arise upon the execution of this Agreement by theParties. In order to carry out the foregoing obligations,   Purchaser shall nominate to  Producer  the quantity and potential date(s) forfirst delivery of Ethanol  hereundercovering a range of seven (7) consecutive days.  Upon acceptance of such nomination byProducer, Purchaser shall schedule with Producer the  Date of First Delivery which shall be a daywithin such date range.  Producer shallbe responsible for making delivery, and Purchaser shall be responsible fortaking delivery, of such Ethanol  on suchDate of First Delivery..

 

2.2           ProductionEstimates..  After such  Date of First Delivery, Producer shallmonthly provide to Purchaser by the 20th of each month, an estimate of dailyproduction for the following six (6) month period beginning the firstfull  month following the date of thelast estimate.  Producer shall promptlynotify Purchaser of any known adjustments to the production schedule that isthen in effect.

 

2.3.          Denaturant Supply.Upon the mutual written agreement of Producer and Purchaser, Producer andPurchaser will enter into a separate denaturant supply agreement with mutuallyagreed upon terms.

 

**ARTICLEIII**

 

**TERM**

 

3.1           Term. Subject tothe conditions hereof, this Agreement shall be effective for the Initial Periodand with automatic renewal(s) thereafter for additional period(s) oftwo (2) years each (the “Additional Term(s)”) unless either party giveswritten notice of termination to the other party at least one hundred andeighty (180) calendar days prior to the end of the Initial Period or of anyAdditional Term in which case this Agreement shall terminate at the end of suchInitial Period or Additional Term (except that as to any sales obligationsexisting on the date of such notice, this Agreement shall terminate upon thetermination and discharge of such obligations).

 

3.2           Termination byBankruptcy. In the event that Purchaser becomes insolvent or suffers thefiling of a petition of bankruptcy, executes an assignment for the benefit ofcreditors, or becomes the subject of any insolvency proceeding of any nature,then, in such event, and in addition to any other rights and remedies Producermay have, Producer shall have the right to immediately terminate this Agreementby written notice.  In the event thatProducer becomes insolvent or suffers the filing of a petition of bankruptcy,executes an assignment for the benefit of creditors, or becomes the subject ofany insolvency proceeding of any nature, then, in such event, and in addition toany other rights and remedies it may have, Purchaser shall have the right toimmediately terminate this Agreement by written notice.

 

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3.3           Commencement ofObligations. The obligations under this Agreement  shall arise  upon the  date of execution ofthis Agreement.

 

3.4           Railroad Tank CarLeases.  Subject to the conditionshereof, in all cases of termination or non-renewal of this Agreement asprovided above, to the extent  Purchaser shall have leased railroad tankcars to transport Product from  the Plant pursuant to Section 8.1 ofthis Agreement (which Purchaser may only do with the written consent ofProducer)  such cars will continue to beprovided by the Purchaser, and utilized by the Producer, with Producer’s payingto Purchaser an amount equal to Purchaser’s actual incurred third party costsrelating thereto**,** including,without limitation, Purchaser’s railcar leasing costs and related third partycosts and expenses, plus [*], until the expiration of such  lease(s).Purchaser will also endeavor, but only with Producer’s consent, to obtain theagreement of its railcar lessor(s) to a novation or assignment of suchrailcar leases directly to Producer so as to release Purchaser from any furtherobligations thereunder.  In such latterevent, Producer shall have no further obligation to utilize railcars providedby Purchaser and Purchaser shall have no further obligation to provide railcarsto Producer as set forth above.  Anyrailcar leases entered into with the approval of Producer shall be a financialobligation of the Producer for the term of the railcar lease and saidobligation will remain in effect regardless of the status of this agreement.

 

In all cases of termination of this Agreement whetherby Purchaser or Producer, except if termination is due to any of the eventsreferred to in Clause 3.2, or in case of material default of any of Purchaser’sobligations hereunder (as determined by final and non-appealable judgment of a court of competent jurisdiction),Producer shall be obligated to honor all third-party sales commitments thatPurchaser shall have entered into if they are within the target NP ( as definedin Section 7.5) previously approved by Producer [*]. Purchaser shall bepaid its Marketing and Distribution Fee on such sales as provided in Section 7.4of this Agreement.

 

**ARTICLE IV**

**PURCHASE, DELIVERYAND MARKETING OBLIGATIONS**

** **

4.1           [*]

 

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* Portion omitted pursuant to a request forconfidential treatment and filed separately with the Securities and ExchangeCommission.

 

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4.2           Delivery.Purchaser shall be given access to the truck loading facilities at any timeduring normal business hours, upon reasonable prior notice, to perform itsduties hereunder. Purchaser will provide Producer with delivery schedules basedon Purchaser’s established Product resale agreements. Producer shall handle andsupervise the loading and dispatch of Ethanol, prepare and distribute deliverydocumentation and generally be responsible for all matters ancillary to suchmatters.  . Producer shall supply allequipment necessary to load rail cars or trucks at the Plant without charge toPurchaser. Producer shall instruct all  truck vehicle operators in the rules and regulations of Producer,which rules and regulations shall include *inter alia*requirements for such truck vehicle operators to inspect each of theirtransportation vehicles prior to loading at the Plant to ensure that suchvehicles are clean and suitable for maintaining product integrity withoutcontamination or spilling. Producer shall provide Purchaser with copies of suchrules and regulations in advance of loading so that Purchaser cancontractually require such truck vehicle operators to abide by such rules andregulations in loading and upon receipt thereof. Purchaser shall contractuallyrequire such truck vehicle operators to abide by same. Producer will overseesuch loading to ensure that such rules and regulations are complied with..

 

4.3           Exclusivity .Purchaser shall have the exclusive right to purchase the Total Annual PlantProduction from Producer; provided however that in the event thatProducer’s  Ethanol storage capacity atthe Plant shall be within three days (i.e. 500,000 gallons) of being exceeded,Producer shall immediately provide Purchaser with at least twenty-four hoursprior written notice thereof. In the event that Purchase shall not commencetaking delivery of such amount of such Total Annual Plant Production which isin excess of such aggregate storage capacity (the “Tank Top Amount”) withintwenty-four (24)  hours  of  receipt of such notice Producer shall have the right to sell such Tank Top Amount directly to its owncustomers until such Tank Top Amount has been removed from such storage. Purchasershall have no right to such Tank Top Amount or any marketing fee with respectthereto; all  subject to Purchaser’sright to obtain delivery of Ethanol with which to  supply all sales contracts previously agreed upon by Purchaser with its customer consistent with target NPpreviously approved by Producer and/or the Marketing Committee.

 

4.4.          Increase inProduction. In the event that Producer shall intend to increase theproduction level of the Plant through expansion of the Plant, Producer willgive Purchaser not less than two (2) months’ prior written notice of itsintention to increase production levels in excess of the existing Total AnnualPlant Production by reason of such expansion. Purchaser shall have an option,exercisable by written notification to Producer of Purchaser’s intention givenwithin one (1) month from the date of receipt of the notice of suchintended increase of Total Annual Plant Production, to contract for thepurchase of the incremental production on the same terms and conditions as thisAgreement.    Producer shall not beobligated to give Purchaser such notice where such increase in the productionlevel of the Plant shall not exceed twenty (20) percent in excess of nameplatecapacity

 

4.5           [intentionallydeleted.]

 

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4.6           [*]

 

4.7           [*]

 

4.8           Marketing Plan.  Upon Producer’s request, Purchaser shallsubmit to Producer for approval an annual Marketing Plan, which approval shallnot be unreasonably withheld. Such Marketing Plan shall include inter alia:

 

a.             A preliminaryschedule of quantities of the Product to be lifted by the Purchaser and itsgeographical allocation;

 

b.             Projected prices andtarget NP for per each market area,

 

c.             Projected costs fortransportation from Plant to each market area;,

 

d.             Thecalculated net Product prices FOB Plant.

 

4.9           [*]

 

4.10         Sales and Marketing... Working within the framework of the Marketing Committee, and subject to itsdecisions, the Purchaser retains sole responsibility for the sales and marketingof the Plant’s Ethanol output in accordance with the terms of thisAgreement.  In order to fulfill thisresponsibility, the Purchaser shall have the right, at its sole discretion, toenter into sales agreements for sales of Product which are consistent with target NP previously approved by the Producerand/or the Marketing Committee as set forth under Sections 4.1, 4.6, 4.7 and4.8   above.

 

**ARTICLE V**

**QUANTITY**

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5.1           Quantity.Delivery and receipt of Product hereunder shall take place at the Delivery Pointat uniform weekly rates, as nearly as practicable, after taking into accountinterruptions in production caused by maintenance and planned turnarounds, suchthat the Ethanol delivered in any one month shall approximately equal onetwelfth (1/12th) of the Total Annual Plant Production.  Purchaser shall be obligated to take delivery of, and to pay for inaccordance with Article VII, all quantities of Ethanol tendered byProducer.  Nothing in this Agreementshall require Producer to operate the Plant in a manner that is inconsistentwith prudent practices for a plant of this nature.

 

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* Portion omittedpursuant to a request for confidential treatment and filed separately with theSecurities and Exchange Commission.

 

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5.2           Method ofMeasurement. The quantity of Ethanol delivered to Purchaser from the Plantshall be established by outbound meter tickets or per certified scale expressedin net temperature-corrected Gallons in accordance with standards commonly usedwithin the industry in the United States of America.   The meter and/or scale tickets shall beobtained from meters/scales which are certified as of the time of loading andwhich comply with all applicable laws, rules and regulations.  The outbound meter and/or scale tickets shallbe determinative in the absence of fraud or manifest error of the quantity ofEthanol for which Purchaser is obligated to pay pursuant to Article VII.

 

**ARTICLE VI**

**QUALITY**

** **

6. 1          Quality.Producer represents and warrants to Purchaser that all Ethanol delivered byProducer to Purchaser hereunder shall be merchantable and shall meet thespecifications set forth in Schedule A hereto at the time of delivery of suchEthanol by Producer to Purchaser.  Shouldany government entity require a change in the specifications set forth inSchedule A, such specifications shall be changed accordingly. Should anycustomer require a change in the specifications set forth in Schedule A, thePurchaser and Producer shall evaluate the impact of changing or not changingthe specifications set forth in Schedule A and shall consider any capital coststhat may be necessary to implement such action in the light thereof If Producershall consent in writing in its sole discretion to such customer requests then Producershall implement such change. .

 

6.2           Insurance.Producer shall purchase and maintain a minimum of five million dollars($5,000,000) of product and commercial general liability insurance and causePurchaser to be designated as loss payee or additional insured as theirinterests may appear, with waiver of subrogation by the insurer againstPurchaser.  Producer shall furtherarrange and maintain employer’s liability insurance meeting all statutoryrequirements.  In each case Producershall provide to Purchaser a copy of the cover notes of insurance evidencingthe existence of the required insurance. Purchaser shall purchase and maintain a minimum of five million dollars($5,000,000) of product and commercial general liability insurance and causeProducer to be designated as a loss payee or additional insured as theirinterests may appear, with waiver of subrogation by the insurer againstProducer.  Purchaser shall furtherarrange and maintain employer’s liability insurance meeting all statutoryrequirements.  In each case Purchasershall provide to Producer a copy of the cover notes of insurance evidencing theexistence of the required insurance.

 

6.3           Quality Claims.Producer warrants that the quality of Ethanol delivered into the transportationvehicles conforms to the specifications attached as Schedule A.  Producer shall not be required to sell ordeliver, and Purchaser shall not be required to purchase or take delivery, ofEthanol that does not meet such specifications without the prior written mutualconsent of Producer and Purchaser.  Inthe event Ethanol does not meet the standards set forth in 

 

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Schedule A when delivered by Producer to thetransportation vehicles or upon receipt by Purchaser’s third party customer andquality claims arise as a result thereof, such quality claims will beadministered by Purchaser upon notice to Producer.  Such claims shall besolely for Producer’s account, and Purchaser shall not be responsible in anymanner whatsoever for such claims. Notwithstanding the above, Producer shallnot be responsible for the quality of any Ethanol which is transloaded (i.e.unloaded and reloaded into a transportation vehicle ) prior to its delivery tothe third party customer.

 

6.4           In the event of anyquestion or disagreement regarding the grade or quality of any Ethanol sold byProducer to Purchaser, such Ethanol shall be submitted for testing to amutually acceptable neutral, independent and unrelated inspector (who shall beselected by mutual agreement of Producer and Purchaser with the costs of samebeing shared equally between them.) The decision of such inspector and anycertificates of quantity and/or quality issued by such inspector shall be finaland binding in the absence of fraud and/or manifest error.

 

6.5           Samples. Producer agrees to maintainoriginal sealed numbered samples of all Ethanol (i) for railcars, afterloading of such Ethanol into railcars and before such railcars  leave the Delivery Point and (ii)otherwise ,while in the storage tanks and prior to loading into trucks .  Producer will label these samples to indicatedate of shipment and rail car number will be included as applicable.  Producer will retain these samples forthree  (3) months and shall sendsuch samples as may be requested to Purchaser immediately upon Purchaser’srequest.

 

6.6           On-Site Lab. Produceragrees to maintain a fully staffed and equipped laboratory on the plant sitecapable of producing correct certificate of analysis in a timely basis for alldeliveries. The certificates of analysis will meet all customer and governmentrequirements.

 

**ARTICLE VII**

**PRICE**

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7.1           [*]

 

7.2           [*]

 

7.3           [*]

 

7.4           [*]

 

7.5           [*]

 

7.6           [*]

 

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* Portion omittedpursuant to a request for confidential treatment and filed separately with theSecurities and Exchange Commission.

 

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7.7           Taxes. Producershall pay or cause to be paid all valid levies, assessments, duties, rates andtaxes (together “Taxes”) on Ethanol delivered hereunder.   Where any Taxes are included in the SalesPrice payable by Purchaser or by any third-party customer, Purchaser’s  Purchase Price hereunder shall be reduced bythe value of such Taxes; provided that the amount of any such Taxesincluded in the Sale Price shall not be included in the calculation of NP underSection 7.5 above.

 

**ARTICLE VIII**

**TRANSPORTATION**

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8.1           Transportation. Purchaser agrees todiligently pursue, secure and maintain all necessary agreements, permits andgovernmental approvals to transport the Ethanol from the Delivery Point.  Purchaser shall be solely responsible for thearrangement of transportation, which shall be by truck unless otherwisemutually agreed in writing by Producer and Purchaser.  Purchaser shall not lease any railcars forthe removal and delivery of the Plant’s Ethanol production unless mutuallyagreed in writing by Producer and Purchaser.

 

8.2           Subject to any target NP or any other limitations or restrictions as may beestablished by the Marketing Committee and/or Producer from time to time,Purchaser shall endeavor to obtain the best prices in respect of suchtransportation on the same terms and conditions available at that time suchthat Producer may achieve the best net price reasonably available after paymentfor Transportation Costs in accordance with Article VII hereof; it beingunderstood and agreed by the Parties that such NP and/or other  limitations or restrictions as aforesaidmay  impact   the prices obtainable by  Purchaserhereunder.

 

**ARTICLE IX**

**STORAGE**

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9.1           StorageRequirements. Producer shall at all times provide storage (finished producttankage) at the Plant for Ethanol, in an amount of  1,200,000 gallons  (i.e seven days production) at any one time,at no cost to Purchaser

 

9.2           OutsideStorage. The parties may determine, as part of the Marketing Plan, or asotherwise decided and agreed by both Producer and Purchaser ,that it  is in the best interest of Producer tomaintain storage at a offsite location in addition to the storage at theProducer’s  Facility, (“Third PartyStorage”) and, in such case, Purchaser shall arrange for such Third Party Storage as well as transportation tosuch Third Party Storage with all cost deemed to be Transportation Costs under Section 7.3above and shall be deducted from the Sales Price for  Product sales out of  such storage as provided under Article VIIabove. Costs for such outside storage including transportation of product,inspections, taxes including inventory taxes (if any), port fees and any othercost associated with maintaining Producers position in such storage shall befor Producers account and will be billed to and paid by Producer as they areincurred.

 

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**ARTICLE X**

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**PAYMENTS**

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10.1         Payment Terms.  Purchaser shall pay to Producer the PurchasePrice for each Gallon of Ethanol delivered to Purchaser’s customer hereunder bydirect wire transfer or electronic transfer to Producer’s designated bankaccount.  Unless otherwise agreed betweenProducer and Purchaser, Purchaser will attempt to make all payments hereunderas soon as possible after receipt of payment by Purchaser from itscustomers  but in no event later thanwithin  three  (3) business days after such receipt ofpayment. [*] Purchaser shall conduct prior credit review of its customershereunder and shall grant prior credit approval for all such customers found byit to be creditworthy by it in its sole discretion.  All risk of and liability for nonpayment ordelayed payment by such customer(s) for which Purchaser shall haveconducted prior credit review and shall have found to be creditworthy  shall be for the account of Purchaser.Purchaser shall diligently pursue its customers for payment within the timeprovided for payment in Purchaser’s payment terms. Past due payments thatexceed the Purchaser’s payment terms with its third party customer(s) fora period in excess of fourteen (14) days shall be considered delinquent andpayable by Purchaser to Producer. Upon request, Purchaser shall provide toProducer information indicating Purchaser’s payment terms with its customers.

 

If the above time of payment shall become unfair in that either partyshall suffer and be able to demonstrate hardship thereby as a result ofunforeseen circumstances over which such party shall have no control and whichoccur after the date of this Agreement (other than those which can be imputedto the parties themselves or to companies of their respective group) then theparty so affected shall provide evidence thereof to the other party and shall askfor and receive timely review of such time of payment so as to establish newpayment terms that  are fair andequitable to both parties.

 

In the case where a dispute may arise as to the amount due in atransaction by either Producer or Purchaser the party from whom such amountshall be due or alleged to be due shall not to hold up payment of the entiretransaction but must make prompt and timely payment of the undisputed portion.The disputed portion shall be paid into escrow subject to resolution by the partiesin good faith or, if the parties cannot resolve the issue, in accordance withthe terms of this Agreement.

 

10.2         Fee.  Producer shall pay to Purchaser, as amarketing/distribution fee for its services, the Marketing Fee in the amountsset forth in Section 7.4 above and in Schedule B hereto.  Such Marketing Fee will be paid throughdeductions by Purchaser from remittances to Producer hereunder.

 

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* Portion omittedpursuant to a request for confidential treatment and filed separately with theSecurities and Exchange Commission.

 

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10.3         Interest.  If either party fails to pay all or anyportion of the amount owing by it when due, such unpaid amount will bearinterest at a rate equal to one (1) percent per annum above the PrimeCommercial Lending Rate calculated daily from the date such amount is duehereunder until the date it is actually paid. Upon failure of a party to pay the unpaid amount, including interest thereonwithin ten (10) calendar days after the due date set out in thisAgreement, the party to whom sums are due may upon giving five (5) businessdays’ notice suspend in whole or in part its delivery or acceptance of Ethanol(as the case may be) hereunder until such outstanding amount has been paid infull.

 

10.4         Audit. Any paymentmade pursuant to this Article X will not preclude a party fromsubsequently auditing the accounts of the other as permitted in this Agreement.

 

**ARTICLE XI**

**TITLE AND RISK OFLOSS**

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11.1         Title and Risk ofLoss. Delivery shall be deemed to occur when the Ethanol is delivered FOBtransportation vehicles at their inlet flange. Title and risk of loss or damage shall only pass from Producer toPurchaser upon such delivery.  Until suchtime, Producer shall be deemed to be in control of and in possession of andshall have title to and risk in the Ethanol.

 

11.2         No Liability.Purchaser will have no responsibility or liability with respect to any Ethanoldeliverable under this Agreement until it is delivered to Purchaser as describedin Section 11.1.  Subject  to Section 6.3, Producer will have noresponsibility or liability with respect to such Ethanol after its delivery toPurchaser, as described in Section11.1 or on account of anything which may bedone or happen to arise with respect to such Ethanol after such delivery,unless as a result of matters affecting the Ethanol quality prior to suchdelivery.

 

**ARTICLE XIIREPRESENTATIONS, COVENANTS AND WARRANTIES**

** **

12.1         Producer’sRepresentations, Warranties and Covenants. Producer represents and warrants to Purchaser, as of the date hereof andcovenants to Purchaser at all times during the term of this Agreement, asfollows and acknowledges that Purchaser is relying upon such representations,warranties and covenants in connection with the purchase of Ethanol hereunder:

 

(a)           Producerhas title to all Ethanol delivered hereunder, it has the right to sell the sameto Purchaser, and the Ethanol is free from any liens or encumbrances at thetime of delivery to Purchaser;

 

                **PROVIDED THATEXCEPT AS PROVIDED IN THIS SECTION 12.1(a) AND AS PROVIDED IN ARTICLEVI WITH RESPECT TO THE QUALITY OF ETHANOL TO BE DELIVERED, THERE ARE NO  OTHER WARRANTIES EITHER EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION, WARRANTIES OF**

 

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**MERCHANTABILITY OR FITNESS FOR AN EXPRESS PURPOSEEXCEPT THAT THE ETHANOL WILL CONFORM WITH THE SPECIFICATIONS SET FORTH INSCHEDULE “A”, AS MAY BE AMENDED FROM TIME TO TIME BY WRITTEN AGREEMENTBETWEEN THE PARTIES, TO THIS AGREEMENT.**

 

(b)           Producercovenants that it shall procure and maintain in force all licenses, consentsand approvals required for its operation of the Plant and manufacture and saleto Purchaser of the Ethanol under this Agreement and shall be solelyresponsible for and indemnify Purchaser against any costs, liabilities or finesarising out of Producer’s failure to comply with any applicable requirements ofsuch licenses, consents and approvals;

 

(c)           Producercovenants that it will maintain accurate and complete production and deliveryrecords in a prudent and businesslike manner in accordance with soundcommercial practices in respect of Ethanol produced by Producer hereunder;

 

(d)           Producercovenants that it will provide Purchaser with a minimum of sixty (60) daysprior written notice of any actual or anticipated production downtime ordisruption to Ethanol availability; provided however that in the event of  any unexpected downtime or disruption inEthanol production at the  Plant,Producer shall give Purchaser prompt notice of same by telephone as soon as reasonably possible, together with anadvice as to then existing finished Product inventory at the Plant, promptlyfollowed by written confirmation of same by email or fax.

 

(e)           Producerrepresents it is a U.S. entity for purposes of state and federal income andexcise taxes.

 

12.2         Purchaser’Representations, Warranties and Covenants. Purchaser represents and warrants to Producer, as of the date hereof andcovenants to Producer at all times during the term of this Agreement, asfollows and acknowledges that Producer is relying upon such representations,warranties and covenants in connection with the sale of Ethanol hereunder.

 

(a)           ThisAgreement has been duly and validly executed and delivered by Purchaser; thisAgreement constitutes a legal, valid and binding obligation of Purchaser,enforceable in accordance with its terms, except to the extent itsenforceability may be limited by bankruptcy, insolvency, reorganization,moratorium or other similar laws affecting the rights of creditors generally orby general principles of equity.

 

(b)           Purchasercovenants that it will maintain or cause to be maintained accurate and completerecords in a prudent and businesslike manner in accordance with soundcommercial practices, of the selling prices described in Article VII 

 

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hereof and the associated transportation and othercosts in respect of Ethanol purchased by Purchaser hereunder;

 

(c)           Purchaseris a U.S. entity for purposes of state and federal income and excise taxes;

 

(d)           Purchasercovenants that it will provide to Producer as soon as available each year acopy of the audited financial statements of Noble Group Limited; and

 

(e)           Purchasercovenants that it shall procure and maintain in force all licenses, consentsand approvals required for its purchase from Producer and resale of Ethanolhereunder and all its other obligations under this Agreement except for thoselicenses for which Producer is responsible under Section12.1(b), and shall besolely responsible for and indemnify Producer against any costs, liabilities orfines arising out of Purchaser’ failure to comply with any applicablerequirements of such licenses, consents and approvals.

 

**ARTICLE XIII**

**FORCE MAJEURE**

** **

13.1         Force Majeure.  Subject to the other provisions of thisArticle, if either party is unable by reason of Force Majeure, as hereinafterdescribed, to perform in whole or in part any obligation or covenant set forthhereunder, the obligations of both parties under this Agreement will besuspended or curtailed to the extent necessary for the period such ForceMajeure condition continues.

 

13.2         Definition.  For the purposes of this Agreement, ForceMajeure will include any event or circumstance arising or occurring beyond thereasonable control of Producer or Purchaser, including without limiting thegenerality of the foregoing:

 

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

 

(b)           Anystrikes or other labor disputes of a regional or national character that arenot limited to only employees of either party;

 

(c)           Anyacts of the enemies of the state, sabotage, wars, blockades, insurrections,riots, civil disturbances, arrests or restraints;

 

(d)           Anyfreezing, explosions or craterings;

 

(e)           Anyorders of any court or government authority, which physically limits the use,production or transportation of Ethanol;

 

(f)            Anyacts or omissions (including failure to take Ethanol) of a transporter orcarrier of Ethanol, which are caused by any event or occurrence of the naturedescribed in this Section 13.2; and

 

14

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(g)           Anyother 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 have prevented or isunable to overcome.

 

13.3         [*]

 

13.4         [*]

 

13.5         [*]

 

13.6         Exclusions.  Force Majeure shall not include failurecaused by lack of funds or lack of market for Ethanol deliverable hereunder byProducer to Purchaser.

 

13.7         Claiming Relief.  A party claiming relief under this Article willnot be entitled to the benefit of the provisions of Section13.1 hereof unless,as soon as reasonably possible after the happening of the occurrence reliedupon as soon as possible after determining that the occurrence was in thenature of Force Majeure and would affect the claiming party’s ability toobserve or perform any of its covenants or obligations hereunder, the partyclaiming suspension gives to the other party notice to the effect that suchparty is unable, by reason of Force Majeure, to perform the particular covenantsor obligations.

 

13.8         Notice.  The party claiming suspension will givenotice as soon as reasonably possible when the Force Majeure condition has orwill be remedied to the effect that the same has been remedied and that suchparty has resumed, or is then in a position to resume, the performance of thesuspended covenants or obligations.

 

**ARTICLE XIV**

**LIABILITY ANDINDEMNIFICATION**

** **

14.1         Damages.  Each Party shall be entitled to all directdamages and other rights and remedies available at law or in equity, except asmay be provided otherwise in this Agreement, upon the default or other failureto perform of the other Party

 

14.2         Limitation of Liability.  In no event shall Purchaser or Producer beliable to any  other party hereunder forany indirect, consequential, punitive or special damages, loss of businessexpectations, business interruptions, lost profits, or any damage to thirdparties arising in any way out of this Agreement or any breach thereof;

 

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* Portion omitted pursuant to a request for confidential treatment andfiled separately with the Securities and Exchange Commission.

 

15

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14.3         Indemnification.

 

(a)           Subject to Section 14.2 above, Purchaser agrees to indemnify, saveand hold Producer harmless against and from any and all claims, damages,losses, liabilities for  death or bodilyinjury to any person or for the destruction or damage to any property andexpenses (including, without limitation, reasonable attorneys’ fees) arisingfrom any willful misconduct or grossly negligent acts, errors and omissions ofPurchaser, its agents, contractors, servants, employees, customers, or inviteesin or about the Plant.

 

(b)           Subject to Section 14.2 above, Producer agrees to indemnify, saveand hold Purchaser  harmless against andfrom any and all claims, damages, losses, liabilities for  death or bodily injury to any person or forthe destruction or damage to any property and expenses (including, withoutlimitation, reasonable attorneys’ fees) arising from any willful misconduct orgrossly negligent acts, errors and omissions of Producer, its agents,contractors, servants, employees, customers, or invitees in or about the Plant.

 

**ARTICLE XV**

**AUDIT RIGHTS**

** **

15.1         Records.  Each party will, establish and maintain atall times, true and accurate books, records and accounts in accordance withgenerally accepted accounting principles applied consistently from year to yearconsistent with good industry practices, distinguishable from all other booksand records, in respect of all transactions undertaken by such party pursuantto this Agreement.

 

15.2         Audit.

 

(a)           Duringnormal business hours upon five (5) business days’ prior writtennotice  each party shall have the rightto audit such books, records and accounts of the other party, providedsuch right to audit shall be limited to two (2) calendar years followingthe completion of any sale or other transaction associated with this Agreement.

 

(b)           Subjectto paragraph (a) of this Section, through the expiration of one (1) calendaryear following the expiration or termination of this Agreement, each partyshall have the right to have a third-party auditor, who will be a member of anational U.S. chartered accounting firm, audit on such party’s behalf therelevant accounts, books and records of the other party, to the extentnecessary in order to verify the accuracy of any statement, charge, computationor demand made under or pursuant to any of the provisions of this Agreement.

 

(c)           Ifany error is discovered hereunder, such error will be adjusted within seven (7) calendardays from the date of discovery, but no adjustment will be made for any errordiscovered more than two (2) calendar years after delivery and receipt ofsuch statements.

 

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(d)           Ifa material difference (defined as the greater of: (i) one (1) percentof  the aggregate GP for all sales of Productduring the time period covered by the audit, or (ii) a net amount of U.S.Dollars five thousand (5,000) dollars on all sales of Product during the timeperiod covered by the audit)  discoveredby any audit and is documented in writing by a Certified Public Accountant,appointed by either party, the party benefiting from such difference shall pay the cost of such audit as wellas providing restitution of such difference.

 

The auditor shall conduct a full and impartial auditfor the period involved. Both parties shall receive a copy of the audit report.If no such material difference is found the party initiating the audit shallpay the cost of the audit.

 

**ARTICLE XVI**

**MISCELLANEOUS**

** **

16.1         Default.

 

(a)  Except as set forthunder  Section 16.1 (e) below,if Purchaser commits or omits an act or occurrence which upon notice and/or thepassage of time without cure may become an Event of Default under thisAgreement then Producer shall give Purchaser written notice describing suchdefault. If Producer commits or omits an act or occurrence which upon noticeand/or the passage of time without cure may become an Event of Default underthis Agreement, then Purchaser shall give Producer written notice describingsuch default.

 

(b)           Events of Default ofProducer.  Unless the following actsor occurrences s are cured within thirty (30) days after the date of writtennotice from Purchaser as provided for in Section 16.1 (a), such acts oroccurrences shall constitute Events of Default of Producer *providedthat*, if any such act or occurrence cannot be cured within thirty(30) days of such notice with exercise of due diligence, and if Producer withinsuch period submits to Purchaser a plan reasonably designed to correct thedefault within a reasonable additional period of time, then an Event of Defaultshall not exist unless and until Producer fails to pursue diligently such cureor fails to cure such default within the additional period of time specified bythe plan or ninety (90) days, whichever occurs first.

 

(1)           Seller’s material breach of its materialobligations under this Agreement, except to the extent Producer is excusedpursuant to Article XIII or any other provision of this Agreement.

 

(2)           Producer’sdissolution or liquidation.

 

(3)           Producer’s assignment of this Agreement orany of its rights under this Agreement for the benefit of creditors, providedthat the foregoing shall not be 

 

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grounds for an Event of Default if, pursuant to applicable law and withany required court approval, this Agreement is assumed by a trustee, assigneeor receiver, who promptly provides adequate assurance and evidence reasonablysatisfactory to Purchaser of the capacity to continue Producer’s  obligations under this Agreement.

 

(4)           The Producer’s filing of a petition for, orother commencement, authorization or acquiescence in the commencement of, aproceeding or cause under any bankruptcy or similar law for the protection ofcreditors.

 

(5)           The filing of a case in bankruptcy or anyproceeding under any other insolvency law against Producer as debtor, whichcase is not vacated within forty-five (45) days of filing, provided, however,that the foregoing shall not be grounds for default if, pursuant to applicablelaw and with any required court approval, this Agreement is assumed by anassignee who promptly provides adequate assurance and evidence reasonablysatisfactory to Purchaser of the capacity to perform Producer’s obligationsunder this Agreement.

 

(6)           Producer’s assignment of this Agreementwithout Purchaser’s  consent to theextent required by this Agreement.

 

(7)           An Event of Default ofProducer shall exist and be continuing under the Lease.

 

(8)           The Facility shall be unavailable for theproduction of Ethanol during all or part of ninety (90) days, whether or notconsecutive, during any consecutive three hundred sixty-five (365) day period;provided, however, upon notice thereof as set forth hereinabove, such defaultshall be deemed to be cured if the cause of such unavailability is eliminatedor otherwise cured within the periods following such notice set forthhereinabove in this Section 16.1.

 

(9)           Abandonment of the Facility by Producerafter the Commencement Date.

 

(d)           Events of Default of Purchaser.   Unless the following acts or occurrences arecured within thirty (30) days after the date of written notice from Producer asprovided for in Section 16.1 (a) such acts or occurrences shallconstitute Events of Default of Purchaser; provided that, if any suchact or occurrence cannot be cured within thirty (30) days with exercise of duediligence, and if Purchaser within such period submits to Producer a planreasonably designed to correct the default within a reasonable additionalperiod of time, then an Event of Default shall not exist unless and untilPurchaser fails to pursue diligently such cure or fails to cure such defaultwithin the additional period of time specified by the plan or ninety (90) days,whichever occurs first:

 

(1)           Purchaser’sgeneral assignment of this Agreement or any of its rights hereunder and itsinterests in the Site for the benefit of its creditors, provided that, theforegoing shall not be grounds for default if, pursuant to applicable 

 

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lawand with any required court approval, this Agreement is assumed by acreditworthy trustee, assignee or receiver.

 

(2)           Purchaser’s entry into bankruptcy orinsolvency proceedings under any bankruptcy or insolvency law as debtor;provided that the foregoing shall not be grounds for default if, pursuant toapplicable law and with any required court approval, this Agreement is assumedby a creditworthy assignee, receiver or trustee.

 

(3)           Purchaser’s assignment of this Agreement orany of its rights under the Agreement without obtaining Seller’s prior writtenconsent to the extent required under this Agreement; provided in no event,however, will any assignment by Purchaser of this Agreement to an Affiliate orto any bank or other financial institution providing Purchaser with financingbe deemed a breach or failure of this provision.

 

(4)           Except for failures provided for in the othersubparagraphs of this Section 9.3, Purchaser’s material breach of anymaterial obligation of Purchaser under this Agreement, unless such failure is excusedpursuant to Article XIII or any other provision of this Agreement.

 

(e)           In the event Purchaser shall fail to makeany payment of any undisputed portion of any invoice or any other statement ofamounts due hereunder within eleven (11) days after Purchaser’s receipt of suchinvoice or other statement, then Producer shall provide written notice thereofto Purchaser either by Certified Mail, Return Receipt Requested, or by email orby facsimile specifically acknowledged by Purchaser as having been received(which acknowledgment shall not be unreasonably withheld, conditioned ordelayed.)  Purchaser’s failure to paysuch undisputed portion within three business days after receipt of such noticefrom Producer shall be deemed to be an Event of Default not subject to anyright to cure by Purchaser hereunder.

 

(f)            Termination.  If, in the absence of a timely cure inaccordance with Section 16.1(b) or Section 16.1(c), or any other provision of this Agreement, an Eventof Default shall arise hereunder, the non-defaulting Party may, upon writtennotice to the other Party, terminate this Agreement.  Neither Party shall have the right toterminate this Agreement except as provided for upon the occurrence of an Eventof Default as described above or as otherwise may be explicitly provided inthis Agreement.

 

16.2         Non-Waiver of Future Default.  No waiver by either party of any default bythe other party in the performance of any of the provisions of this Agreementwill operate or be construed as a waiver of any other or future default ordefaults, whether of a like or of a different character.

 

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16.3         Assignment.  Neither party may assign this Agreement orany of its rights hereunder without the prior consent in writing of the other,which consent may not be unreasonably withheld or delayed; provided in noevent, however, will any assignment by Purchaser of this Agreement to anAffiliate or to any bank or other financial institution providing Purchaserwith financing be deemed a breach or failure of this provision. A change incomposition of Purchaser or Producer will not be construed to be an assignmentfor the purposes of this Section 16.3. Notwithstanding the foregoing, as security for its obligation to itsbank lender or other institutional lender providing financing to either party(“Financing Entities”),  eitherparty  may (with prior written notice tothe other party ) assign this Agreement, with the right to cure defaults of theassigning party,  to its financing sourcesas they may require from time to time, and it is understood by the partieshereto that Producer, will, concurrently with or subsequent to the executionhereof, assign its rights hereunder to its Financing Entities, as agent for certain of Producer’s financing sources(the “Agent”), and that the Agent or its assigns shall have the right to curedefaults of Producer hereunder.

 

16.4         Interpretation andFair Construction of Contract.  ThisAgreement has been reviewed and approved by each of the parties. Producer andPurchaser have each participated in the negotiation of this Agreement, haveproposed language incorporated within this Agreement, and have otherwise beeninstrumental in the drafting of this Agreement. Each party has been represented by legal counsel in the negotiation anddrafting of this Agreement, and has had ample opportunity to confer with thatcounsel.  Therefore, in the event that itshould be determined that any provision of this Agreement is uncertain orambiguous, the language in all parts of this Agreement shall in all cases beconstrued as a whole according to its fair meaning and not strictly construedfor nor against any party.  The partiesagree that the contract, and any of its provisions, shall not be construedagainst any party as its drafter.

 

16.5         Document.  Each party to this Agreement shall performany and all acts and execute and deliver any and all documents as may benecessary and proper under the circumstances in order to accomplish the intentsand purposes of this Agreement and to carry out its provisions.

 

16.6         Time.  Time is of the essence with respect to theperformance of each of the covenants and agreements herein set forth.

 

16.7         [intentionally omitted]

 

16.8         Inurement.  This Agreement will inure to the benefit ofand be binding upon the respective successors and permitted assigns of theparties.

 

16.9         Entire Agreement.  This Agreement constitutes the entireAgreement between the parties with respect to the subject matter containedherein and any and all previous agreements, written or oral, express orimplied, between the parties or on their behalf relating to the matterscontained herein are hereby terminated and canceled.

 

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16.10       Notices.  Except as herein otherwise provided, eachnotice, request, demand, statement, report and bill which must or may be givenpursuant hereto will be in writing and may be mailed by prepaid first classmail (or equivalent), delivered by hand or sent by telecopier to the address ornumber indicated below:

 

(a)   if to Producer:

 

UNITED WISCONSINGRAIN PRODUCERS, LLC

 

P.O. Box 247,W 1231 Tessmann Drive

 

Friesland, WI  53935

 

Attention: Dan Wegner

 

Fax number: (920)348-5009

 

(b)   if to Purchaser:

 

NOBLE AMERICASCORP.

333 Ludlow Street,Suite 1230

 

Stamford HarborPark Stamford, CT 06902

 

Attention:  Ethanol Contract Administration

 

Fax number: (203)326-6505

 

The date ofreceipt of each such notice, demand or other communication will be the date ofdelivery thereof if hand delivered, or, if given by mail as provided herein,will be deemed conclusively to be the fifth (5th) business day afterthe same is so mailed, except in the event of disruption of the postal servicein which event the notice, demand or other communication will be deemed to bereceived only when actually received and, if sent by facsimile, be deemed tohave been given or received on the first business day after it was sosent.  Either party hereto may at anytime and from time to time notify the other party in writing as to the changeof address and the new address to which notice shall be given to it thereafteruntil further changed.

 

16.11       Modification and Waiver.  This document may be amended through themutual agreement of the parties for the purpose of satisfying requirements ofthe Financing Entities. All such modification of the terms and provisionshereof are to be only by the mutual agreement in writing signed by the parties.

 

16.12       Governing Law.  This Agreement shall be construed inaccordance with and governed by the law of the State of New York determinedwithout reference to the principles of conflicts of laws (other thanSections 5-1401 and 5-1402 of the General Obligations Law of the State ofNew York).

 

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16.13       Compliance with Laws.  This Agreement and the respective obligationsof the parties hereunder are subject to present and future valid laws and validorders, rules and regulations of duly constituted authorities havingjurisdiction.

 

16.14       Severability.  If any provisions of this Agreement shall beheld to be invalid or unenforceable, such invalidity or unenforceability shallattach only to such provision and shall not in any manner affect or renderinvalid or enforceable any other provision of this Agreement.

 

16.15       Furnishing ofInformation.  The parties will, uponrequest and mutually agreement, provide such additional information as may bereasonably required to allow the parties to efficiently and effectively carryout their respective obligations hereunder and to determine and enforceindividual or collective rights under this Agreement.

 

16.16       Cumulative Remedies.  Unless otherwise specifically providedherein, the rights, powers, and remedies of each of the parties provided hereinare cumulative and the exercise of any right, power or remedy hereunder doesnot affect any other right, power or remedy that may be available to eitherparty hereunder or otherwise at law or in equity.

 

16.17       Faithful Performance.  The parties shall faithfully perform anddischarge their respective obligations under this Agreement and endeavor ingood faith to negotiate and settle all matters arising during the performanceof this Agreement not specifically provided for.

 

16.18       No Partnership.  This Agreement shall not create or beconstrued to create in any respect a partnership between the parties.

 

16.19       Costs.  Each of the parties hereto shall pay its owncosts and expenses incurred in the negotiation, preparation and execution ofthis Agreement and of all documents referred to in it and in carrying out thetransactions contemplated hereby and thereby.

 

16.20       Counterparts.  This Agreement may be executed in any numberof counterparts with the same effect as if all parties to this Agreement hadsigned the same document and all counterparts will be  construed together and constituted one andthe same instrument.

 

16.23       Survival.  All provisions of this Agreement which areexpressly or by implication to come into or continue in force and effect afterthe expiration or termination of this Agreement shall remain in effect and beenforceable following such expiration.

 

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**INWITNESS WHEREOF** the parties hereto have executed thisAgreement as of the day and year first above written.

 
|       | **UNITED WISCONSIN GRAIN  PRODUCERS, LLC** |
|------------|--------------------------------------------|
|       |                                       |   |
|       |                                       |   |
| ** ** | ** **                                 | **By:** | **   /s/  Jeff Robertson** |
| ** ** | ** **                                 | **Name:**Jeff  Robertson |
| ** ** | ** **                                 | **Title:**CEO |
| ** ** | ** **                                 | ** ** |
| ** ** | ** **                                 | ** ** |
| ** ** | **NOBLE AMERICAS CORP.**                   |
|       |                                       |   |
|       |                                       |   |
| ** ** | ** **                                 | **By:** |    /s/ Ted  Robinson |
| ** ** |                                       | **Name:**Ted Robinson |
| ** ** |                                       | **Title:** EVP Clean  Fuels |

#  

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#  

# **SCHEDULEA**

#  

To Ethanol Terms and Conditions

 

#### **FUEL-GRADEETHANOL**

##### **SPECIFICATIONS**

**(DENATURED)**

 

Ethanol must meetorexceed all industrystandards, including ASTM D.4806 specifications and Williams’ Pipelinespecifications for E-Grade Denatured Fuel Ethanol.

 
| **TEST**                                 | ** ** | **NON-DETERGENT  GRADE**                                                  | ** ** | **METHOD OF TEST**                           |
|------------------------------------------|------------|---------------------------------------------------------------------------|------------|--------------------------------------------------------|
|                                     |       |                                                                      |       |                                                   |
| Apparent Proof - 60°F               |       | 200 min.  203 max.                                                        |       | Hydrometer                                             |
|                                     |       |                                                                      |       |                                                   |
| Specific Gravity, 60/60°F           |       | 0.7870 – 0.7950                                                      |       | ASTM D-1298                                            |
|                                     |       |                                                                      |       |                                                   |
| Water, Mass Percent                      |       | 0.50 nom.  0.80 max.                                                      |       | ASTM E-203                                             |
|                                     |       |                                                                      |       |                                                   |
| Ethanol  Content, Volume Percent         |       | 92.5 min.                                                                 |       | Gas Chromatography  ASTM D-2/E-44  P170 Method, A or B |
|                                     |       |                                                                      |       |                                                   |
| Methanol, (vol.%)                        |       | 0.5 max.                                                                  |       |                                                   |
|                                     |       |                                                                      |       |                                                   |
| Non-Volatile  Matter, mg/100 mL          |       | 5 max.                                                                    |       | ASTM D-1353                                            |
|                                     |       |                                                                      |       |                                                   |
| Chloride Ion Content, mg/L               |       | 32 max.                                                                   |       | ASTM D-512, Meth. C  Modified Note (1)                 |
|                                     |       |                                                                      |       |                                                   |
| Copper Content, mg/kg                    |       | 0.1 max.                                                                  |       | ASTM D-1688, Meth. D  Modified Note (2)                |
|                                     |       |                                                                      |       |                                                   |
| Acidity (as acetic acid CH3COOH),  mass% |       | 0.007 max.                                                                |       | ASTM D-1613                                            |
|                                     |       |                                                                      |       |                                                   |
| Appearance                               |       | Clear and Bright, visibly free of suspended  and/or settled contaminants. |       | Visual                                                 |

 

----

 
| **TEST**                            | ** ** | **NON-DETERGENT  GRADE** | ** ** | **METHOD OF TEST**                                    |
|-------------------------------------|------------|--------------------------|------------|-----------------------------------------------------------------|
|                                |       |                     |       |                                                            |
| Color, Platinum – Cobalt       |       | 50.0 max.                |       | ASTM D-1209                                                     |
|                                |       |                     |       |                                                            |
| Hydrocarbon Denaturant gal/100 gal. |       | 5.0 max.  2.0 min.       |       | Gas Chromatography  ASTM D-2/E-44  P170 Method, A or B Note (3) |
|                                |       |                     |       |                                                            |
| PHe                                 |       | 6.5 min.  9.0 max        |       | Williams test procedure (Pending ASTM approval)                 |
|                                |       |                     |       |                                                            |
| Sulfur                              |       | 10 ppm, max.             |       |                                                            |
|                                |       |                     |       |                                                            |
| Sulfates                            |       | 4.0 ppm, max.            |       | ASTM 5827 & D 6174                                     |

 

**(NOTES)**

 

Note 1:       The modification of TestMethod D-512, Procedure C, consists of using 5 mL of sample diluted with 20 mLof distilled water instead of the 25 mL sample specified in the standardprocedure.  The volume of the sampleprepared by this modification will be slightly more than 25 mL.  To allow for the dilution factor, report thechloride ion present in the Ethanol sample as 5 times that determined in thesample.

 

Note 2:       The modification of Test Method D-1688,Procedure D, consists of mixing reagent grade ethanol (which may be denaturedaccording to BATF Formula 3A or 3O) in place of water as the solvent ordilutent for the preparation of reagents and standard solutions.  However, this must not be done to prepare thestock copper solution described in 39.1 of D-1688.  Because a violent reaction may occur betweenthe acid and the ethanol, use water as specified in the acid solution part ofthe procedure to prepare the stock copper solution.  Use ethanol for the rinse and final dilutiononly.

 

Note 3:       The only denaturants used for Ethanol shall beunleaded gasoline or rubber hydrocarbon solvent at a minimum concentration of 2parts by volume per 100

 

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parts by volume.  Hydrocarbons, with an end boiling pointhigher than 437°F as determined byASTM Method D-86, shall not be used.

 

Note 4:       All Ethanol will contain a minimum of oneof the following corrosion inhibitors:

 

a)     20 pounds per 1,000 barrels of Octel AmericaDCI-11,

b)    13 pounds per 1,000 barrels of Petrolite Tolad3222, or

c)     20 pounds per 1,000 barrelsof Nalco 5403.

d)    20 pounds per 1,000 barrels ofBetz ACN 13

e)     20 pounds per 1,000 barrels of MidContinentalMCC5011E

 

Note 5:      If at any time duringthe term of this Agreement the Petroleum Industry Fuel Standards or ASTMSpecifications introduce any required tests for the detection of sulfates orotherwise modify specifications or standards for acceptable levels of sulfatesor any other properties in ethanol, then compliance with such required testingand compliance with any such modified specifications or standards shall beincorporated into this Agreement and shall be binding upon the Producer and anyProduct sold hereunder

 

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**SCHEDULEB**

 

 

[*]

 

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* Portionomitted pursuant to a request for confidential treatment and filed separatelywith the Securities and Exchange Commission.

 

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