Common use of COMMITMENT AND TERM Clause in Contracts

COMMITMENT AND TERM. UBE shall from time to time submit purchase orders (each, a “Purchase Order”) to HR for purchases of the Distiller’s Grains, all upon and subject to the terms and conditions of this Restated Agreement, with each such Purchase Order to be placed by UBE properly completing and executing a Purchase Order form in either the form of Exhibit “A” or Exhibit “B” to this Restated Agreement or other form acceptable to HR. 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. A Purchase Order submitted in the form of Exhibit “B” to this Restated Agreement may take the form of UBE submitting to HR a proposed minimum F.O.B. Plant Price (as that term is defined in Section 2) UBE Customers (as the term is defined in Section 2 of this Restated Agreement) for DDG and/or WDG (the “Posted Price”) which will be effective for the day, week, month or other period of time set forth in the Purchase Order (in any such case, the “Posted Price Sales Period”), along with a proposed maximum number of tons of DDG and/or WDG (the “Maximum Posted Price Tons”) which may be sold at the Posted Price at any time during, and for pick-up by UBE during, the Posted Price Sales Period. Any such Purchase Order is referred to in this Restated Agreement as a “Posted Price Purchase Order”. All references to “Purchase Order” in this Restated Agreement shall include Posted Price Purchase Orders. Each Purchase Order shall be irrevocable by UBE, unless and until the time at which the particular Purchase Order becomes a Rejected Purchase Order (as that term is defined below). UBE and HR shall reasonably cooperate in attempting to schedule weekly or other periodic meetings at the Plant or by phone or other communications methods for purposes of discussing any Purchase Order UBE desires to submit to HR, but no such Purchase Order shall become effective unless and until such Purchase Order has both been submitted in writing by UBE in the form of either Exhibit “A” or Exhibit “B” to this Restated Agreement or other form acceptable to HR and such Purchase Order has been accepted by HR. Notwithstanding any term or condition of this Restated Agreement or otherwise which may appear to be to the contrary, HR may accept or reject each Purchase Order, in whole, but not in part, in HR’s commercially reasonable discretion. HR shall notify UBE of whether HR accepts or rejects each particular Purchase Order within one (1) day of HR’s receipt of the Purchase Order. If HR fails to notify UBE within said one (1) day period, however, HR shall be deemed to have rejected the Purchase Order in question. If HR accepts a Posted Price Purchase Order, UBE may sell all (if the Posted Price Purchase Order is an “All or Nothing” sale), or (if the Posted Price Purchase Order is a “Best Efforts” sale) anywhere up to, the Maximum Posted Price Tons of DDG and/or WDG, as the case may be, to UBE Customers at or above the Posted Price at any time during the Posted Price Sale Period without further approval of each such sale from HR, but otherwise upon and subject to the terms and conditions of this Restated Agreement, and each such sale shall also be an Accepted Purchase Order (as that term is defined below). Any Purchase Order which is accepted by HR is referred to in this Restated Agreement as an “Accepted Purchase Order”, and any Purchase Order which is rejected by HR is referred to in this Restated Agreement as a “Rejected Purchase Order”. UBE shall sell all Distiller’s Grains which are the subject of an Accepted Purchase Order to the UBE Customers in accordance with the terms as were set forth in UBE’s Purchase Order.

COMMITMENT AND TERM. UBE shall from time to time submit purchase orders (each, a “Purchase Order”) to HR for purchases of the Distiller’s Grains, all upon and subject to the terms and conditions of this Restated Agreement, with each such Purchase Order to be placed by UBE properly completing and executing a Purchase Order form in either the form of Exhibit “A” or Exhibit “B” to this Restated Agreement or other form acceptable to HR. 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. A Purchase Order submitted in the form of Exhibit “B” to this Restated Agreement may take the form of UBE submitting to HR a proposed minimum F.O.B. Plant Price (as that term is defined in Section 2) to UBE Customers (as the term is defined in Section 2 of this Restated Agreement) for DDG and/or WDG (the “Posted Price”) which will be effective for the day, week, month or other period of time set forth in the Purchase Order (in any such case, the “Posted Price Sales Period”), along with a proposed maximum number of tons of DDG and/or WDG (the “Maximum Posted Price Tons”) which may be sold at the Posted Price at any time during, and for pick-up by UBE during, the Posted Price Sales Period. Any such Purchase Order is referred to in this Restated Agreement as a “Posted Price Purchase Order”. All references to “Purchase Order” in this Restated Agreement shall include Posted Price Purchase Orders. Each Purchase Order shall be irrevocable by UBE, unless and until the time at which the particular Purchase Order becomes a Rejected Purchase Order (as that term is defined below). UBE and HR shall reasonably cooperate in attempting to schedule weekly or other periodic meetings at the Plant or by phone or other communications methods for purposes of discussing any Purchase Order UBE desires to submit to HR, but no such Purchase Order shall become effective unless and until such Purchase Order has both been submitted in writing by UBE in the form of either Exhibit “A” or Exhibit “B” to this Restated Agreement or other form acceptable to HR and such Purchase Order has been accepted by HR. Notwithstanding any term or condition of this Restated Agreement or otherwise which may appear to be to the contrary, HR may accept or reject each Purchase Order, in whole, but not in part, in HR’s commercially reasonable discretion. HR shall notify UBE of whether HR accepts or rejects each particular Purchase Order within one (1) day of HR’s receipt of the Purchase Order. If HR fails to notify UBE within said one (1) day period, however, HR shall be deemed to have rejected the Purchase Order in question. If HR accepts a Posted Price Purchase Order, UBE may sell all (if the Posted Price Purchase Order is an “All or Nothing” sale), or (if the Posted Price Purchase Order is a “Best Efforts” sale) anywhere up to, the Maximum Posted Price Tons of DDG and/or WDG, as the case may be, to UBE Customers at or above the Posted Price at any time during the Posted Price Sale Period without further approval of each such sale from HR, but otherwise upon and subject to the terms and conditions of this Restated Agreement, and each such sale shall also be an Accepted Purchase Order (as that term is defined below). Any Purchase Order which is accepted by HR is referred to in this Restated Agreement as an “Accepted Purchase Order”, and any Purchase Order which is rejected by HR is referred to in this Restated Agreement as a “Rejected Purchase Order”. UBE shall sell all Distiller’s Grains which are the subject of an Accepted Purchase Order to the UBE Customers in accordance with the terms as were set forth in UBE’s Purchase Order. Subject to Section 11 of this Restated Agreement, the initial term of this Restated Agreement shall be for two (2) years, commencing on the date of the Agreement, but HR and UBE acknowledge that the Plant will not commence production operations until at least some time in November, 2004, and that the Plant will not reach full production capacity until approximately thirty (30) days after the commencement date of production operations at the Plant. Subject again to Section 11 of this Restated Agreement, this Restated Agreement shall be automatically renewed after the end of the initial two (2) year term for successive one (1) year terms unless either party gives written notice to the other party of its election not to renew, for whatever reason or for no reason, not later than ninety (90) days prior to the expiration of the initial two (2) year term or the then current one (1) year renewal term, as the case may be.