Distiller’s Grains Marketing Agreement
Category: Energy, Marketing Agreements
DISTILLER’S GRAINS MARKETING AGREEMENT
THIS DISTILLER’S GRAINS MARKETING AGREEMENT (“Agreement”) is made and entered into as of the date set forth above the signatures to this Agreement by and between Hawkeye Gold, LLC, a Delaware limited liability company (“Gold”), and the entity whose name appears on the signature page to this Agreement (“Producer”).
RECITALS:
A. Producer operates an ethanol plant located in or around the location set forth below Producer’s signature to this Agreement (as it may be expanded from time to time, the “Plant”).
B. Producer desires to sell to Gold, and Gold desires to purchase from Producer, all the dried distiller’s grains (“DDG”) and wet distiller’s grains (including modified wet distiller’s grains, “WDG”) produced at the Plant (collectively, the “Distiller’s Grains”), all upon and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Gold and Producer agree as follows:
1. PURCHASE AND SALE OF DISTILLER’S GRAINS. Gold shall use commercially reasonable efforts to from time to time submit purchase orders or purchase contracts (each, a “Purchase Order”) to Producer for purchases of the Distiller’s Grains, all upon and subject to the terms and conditions of this Agreement. Gold may place a Purchase Order with Producer by email or by a written purchase order or contract in a form mutually acceptable to Producer and Gold. The terms of any Purchase Order may include a request for the sale and delivery of Distiller’s Grains on a one-time basis or on a daily, weekly, monthly or other periodic basis. Each Purchase Order shall be irrevocable by Gold, unless and until the time at which the particular Purchase Order becomes a Rejected Purchase Order (as that term is defined below).
Producer may accept or reject each Purchase Order, in whole, but not in part, but Producer may only reject a Purchase Order for and on a commercially reasonable basis. Producer shall notify Gold of whether Producer accepts or rejects each particular Purchase Order within the time period specified in the Purchase Order in question, or if no time period is specified in the Purchase Order, within 24 hours of Producer’s receipt of the Purchase Order (in either case, the “Acceptance Period”), and if Producer fails to notify Gold within the Acceptance Period, Producer shall be deemed to have rejected the Purchase Order in question. Gold reserves the right to require Producer to accept or reject any particular Purchase Order or Purchase Orders only in writing.
Any Purchase Order which is accepted by Producer is referred to in this Agreement as an “Accepted Purchase Order”, and any Purchase Order which is rejected by Producer is referred to in this Agreement as a “Rejected Purchase Order”.
Producer shall not sell or otherwise dispose of any Distiller’s Grains to any person other than Gold during the term of this Agreement, except only that if Gold fails to take delivery of Distiller’s Grains from the Plant and such failure will result in the Storage Limit (as that term is defined in Section 5(c)) being exceeded, then Producer may sell or otherwise dispose of only the amount of Distiller’s Grains as are necessary to cause the Storage Limit to not be exceeded provided Producer gives Gold at least 24 hours prior written notice of Producer’s intent to sell or dispose of any Distiller’s Grains pursuant to this paragraph.
Gold may purchase and otherwise deal in dried distiller’s grains, wet distiller’s grains and other products for Gold’s own use or account, and Gold may also market and sell dried distiller’s grains, wet distiller’s grains and other products of other persons (including affiliates or related parties of Gold), and provide services to other persons, on such terms and conditions as are determined by Gold from time to time, but subject to Gold’s compliance with Sections 14(c) and 14(e).
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