DISTILLER'S GRAIN MARKETING AGREEMENTAdvertising or Marketing Agreement |
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EXHIBIT
10.15
DISTILLER’S
GRAIN MARKETING AGREEMENT
THIS
DISTILLER’S GRAIN MARKETING AGREEMENT (the “Agreement”), is
entered into effective as of December 1, 2004, by Granite Falls Ethanol
LLC, a Minnesota Limited Liability Company (“Seller”), and
Commodity Specialist Company, a Delaware corporation (“Buyer”).
WITNESSETH:
WHEREAS, Seller
desires to sell and Buyer desires to purchase the Distiller’s Dried
Grains with Solubles (“DDGS”), hereinafter DDGS, output of the
ethanol production plant which Seller owns in Granite Falls, Minnesota; and
WHEREAS, Seller
and Buyer wish to agree in advance of such sale and purchase to the price
formula, payment, delivery and other terms thereof in consideration of the
mutually promised performance of the other;
NOW, THEREFORE,
in consideration of the promises and the mutual covenants and conditions herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by both parties, it is hereby
agreed:
1. BUYER
PERFORMANCE. Buyer agrees to perform the services that it provides for
Seller in a professional and competent manner.
2. PURCHASE
AND SALE. Seller agrees to sell to Buyer and Buyer agrees to purchase from
Seller the entire bulk feed grade DDGS, output from Seller’s plant at
Granite Falls, Minnesota. (hereinafter the “Plant”) that is shipped
from Plant by rail, and so much output that is shipped by truck that Seller in
its discretion elects to sell to Buyer, subject to all terms and conditions set
forth in this Agreement. Buyer shall label all Product that is sold by Buyer
and shall register all labels with the states where the Products are sold.
3. TRADE
RULES. All purchases and sales made hereunder shall be governed by the Feed
Trade Rules of the National Grain and Feed Association unless otherwise
specified. Said Trade Rules, a copy of which is appended hereto as
Exhibit A, shall, to the extent applicable, be a part of this Agreement as
if fully set forth herein.
4. TERM.
The term of this Agreement shall be for one year commencing as of completion
and start-up of production of the Plant. Start-up is anticipated to be
October 1, 2005. Thereafter this agreement shall remain in effect until
terminated by either party at its unqualified option by providing the other
party hereto not less than 90 days written notice of its election to
terminate this Agreement.
1
5. DELIVERY
AND TITLE.
A. The
place of delivery for all the Products sold pursuant to this Agreement shall be
FOB Plant. Buyer and Buyer’s agents shall be given access to
Seller’s Plant in a manner and at all times reasonably necessary and
convenient for Buyer to take delivery as provided herein. Buyer shall
coordinate the loading and shipping of all outbound Products purchased
hereunder which is shipped by truck or rail with Seller. All labor and
equipment necessary to load trucks or rail cars shall be supplied by Seller
without charge to Buyer. Seller agrees to handle the Products in a good and
workmanlike manner in accordance with Buyer’s reasonable requirements and
in accordance with normal industry practice. Seller shall maintain the truck
and rail loading facilities in safe operating condition in accordance with
normal industry standards.
B. Seller
further warrants that storage space for not less than seven days production of
DDGS shall be reserved for Buyer’s use at the Plant and shall be
continuously available for storage of DDGS purchased by Buyer hereunder at no
charge to Buyer. Seller shall be responsible at all times for the quantity,
quality and condition of any the Products in storage at the Plant. Seller shall
not be responsible for the quantity, quality and condition of any of the
Products stored by Buyer at locations other than the Plant.
C. Buyer
shall give to Seller a schedule of quantities of the Products to be removed by
truck and rail with sufficient advance notice reasonably to allow Seller to
provide the required services. Seller shall provide the labor, equipment and
facilities necessary to meet Buyer’s loading schedule and, except for any
consequential or indirect damages, shall be responsible for Buyer’s
actual costs or damages resulting from Seller’s failure to do so. Buyer
shall order and supply trucks and rail cars as scheduled for truck and rail
shipments. All freight charges shall be the responsibility of Buyer and shall
be billed directly to Buyer.
D. Buyer
shall provide loading orders as necessary to permit Seller to maintain Seller’s
usual production schedule, provided, however, that Buyer shall not be
responsible for failure to schedule removal of the Products unless Seller shall
have provided to Buyer production schedules as follows: Five (5) days
prior to the beginning of each calendar month during the term hereof, Seller
shall provide to Buyer a tentative schedule for production in the next calendar
month. Seller shall inform Buyer daily of inventory and production status. For
purposes of this paragraph, notification will be sufficient if made by e-mail
or facsimile as follows:
If to Buyer, to the attention of Steve
Markham, Facsimile number 612-330-9894 or e-mail to smarkham@csc-world.com, and
If to Seller, to the attention of .
Or to such other representatives of Buyer and Seller as they may designate to
the other in writing.
E. Title,
risk of loss and full shipping responsibility shall pass to Buyer upon loading
the Products into trucks or rail cars and delivering to Buyer a the bill of
lading for each such shipment.
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6. PRICE
AND PAYMENT
A. Buyer
agrees to pay Seller as follows: for all DDGS removed by Buyer from the Plant a
price equal to ninety eight (98%) of the FOB Plant price actually received by
Buyer from its customers. For purposes of this provision, the FOB Plant price
shall be the actual sale price, less all freight costs incurred by Buyer in
delivering the Product to its customer. Buyer agrees that it shall not sell
Product for delivery more than 90 days from the date of entering into a
sale without the consent of Seller. Buyer agrees to use commercially reasonable
efforts to achieve the highest resale price available under prevailing market
conditions. Seller’s sole and exclusive remedy for breach of
Buyer’s obligations hereunder shall be to terminate this Agreement. Buyer
shall collect all applicable state tonnage taxes on Products sold by Buyer and
shall remit to the appropriate governmental agency.
B. Within
three (3) business days following receipt of certified weight
certificates, which certificates shall be presented to Buyer each Thursday for
all shipments during the preceding week, Buyer shall pay Seller the full price,
determined pursuant to paragraph 6A above, for all properly documented
shipments. Buyer agrees to maintain accurate sales records and to provide such
records to Seller upon request. Seller shall have the option to audit
Buyer’s sales invoices at any time during normal business hours and
during the term of this Agreement. If any such audit shall reveal a deficiency
together with interest from the date that such payment should have been made at
the prime rate then in effect as reported in the Wall Street Journal.
7. QUANTITY
AND WEIGHTS.
A. It
is understood that the output of the Products shall be determined by
Seller’s production schedule and that no warranty or representation has
been made by Seller as to the exact quantities of Products to be sold pursuant
to this Agreement.
B. The
quantity of Products delivered to Buyer from Seller’s Plant shall be
established by weight certificates obtained from scale at the Plant which is
certified as of the time of weighing and which complies with all applicable
laws, rules and regulations or in the event that the scale at the Plant is inoperable
then at other scales which are certified as of the time of weighing and which
comply with all applicable laws, rules and regulations. The outbound weight
certificates shall be determinative of the quantity of the Products for which
Buyer is obligated to pay pursuant to Section 5.
8. QUALITY.
A. Seller
understands that Buyer intends to sell the Products purchased from Seller as a
primary animal feed ingredient and that said Products are subject to minimum
quality standards for such use. Seller agrees and warrants that the Products
produced at its plant and delivered to Buyer shall be accepted in the feed
trade under current industry standards.
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B. Seller
warrants that all Products, unless the parties agree otherwise, sold to Buyer
hereunder shall, at the time of delivery to Buyer, conform to the following
minimum quality standard:
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