DISTILLER’S GRAIN MARKETING AGREEMENT
Exhibit 10.2
DISTILLER’S GRAIN MARKETING AGREEMENT
THIS DISTILLER’S GRAIN MARKETING AGREEMENT (the “Agreement”), is entered into as of this 28th day of November, 2005, by Dakota Ethanol LLC, a South Dakota limited liability company (“Seller”), and Commodity Specialists Company, a Delaware Corporation (“Buyer”).
W I T N E S S E T H:
WHEREAS, Seller desires to sell and Buyer desires to purchase the Distiller’s Dried Grains with Solubles (sometimes referred to as “Product(s)” or “DDGS”) output of the ethanol production plant which Seller owns in Wentworth, South Dakota (the “Plant”); 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 as set forth herein;
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 Wentworth, South Dakota, 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 DDGS is 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.
A. The initial term of this Agreement shall be for one (1) year commencing December 1, 2005 (the “Effective Date”).
B. In the event that during the first year of this Agreement Seller materially changes the quality of the DDGS produced at the Plant through the application of new technology and equipment, either Seller or Buyer shall have the right to terminate this Agreement upon 120 days notice. Notwithstanding such termination, Seller shall remain
liable to provide DDGS to Buyer in sufficient quantities, either through the Plant or buying such product, to honor any sales contract that Buyer may have to which Seller has consented.
C. This Agreement shall automatically renew for an additional term of one (1) year unless Seller or Buyer gives notice of non-renewal in writing to the other party at least one hundred twenty (120) days prior to the end of the initial term. The aforementioned renewal provision shall apply in the same manner for all subsequent expiring renewal terms, and the Agreement shall be automatically renewed for subsequent one (1) year terms unless written notice of nonrenewal is provided in the manner provided above.
D. After the initial term, this Agreement may be terminated by either party at its unqualified option by providing the other party hereto not less than 120 days written notice of its election to terminate this Agreement.
E. In addition to its option to terminate as provided above, Seller shall have the option to terminate this Agreement at anytime on thirty (30) days’ notice in order to join a pooled marketing arrangement (the “Pooled Marketing Arrangement”)
5. DELIVERY AND TITLE.
A. The place of delivery for all the DDGS 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 schedule the loading and shipping of all outbound DDGS purchased hereunder which is shipped by truck or rail. 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 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
2
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 Xxxxx Xxxxxxx, Facsimile number 000-000-0000 or email to
xxxxxxxx@xxx-xxxxx.xxx, and
If to Seller, to the attention of Xxxxx X. Xxxxx, Facsimile number 000-000-0000 or email to xxxxxx@xxxxxxxxxxxxx.xxx
or to such other representatives of Buyer and Seller as they may designate to the other in writing.
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 of the xxxx of lading for each such shipment.
6. PRICE AND PAYMENT.
A. Buyer agrees to pay Seller for all DDGS removed by Buyer from the Plant a price equal to ninety eight (98%), with 2% to be retained by Buyer as its service fee, provided, however, that Buyer’s service fee shall not be less $1.50 per ton nor shall it exceed $2.00 per ton. The calculation on the minimum and maximum fee payable to CSC shall be made with respect to each payment and will not be carried over to any subsequent payments. By way of illustration, if the 2% to be retained by CSC for any given week is less than $1.50 per ton, the fee to be retained by CSC shall then be $1.50 per ton. If in subsequent weeks the 2% is greater than $1.50 but less than $2.00, the fee shall be the 2%. Conversely, if the 2% for any period exceeds $2.00, the fee shall then be $2.00 per ton. If in subsequent weeks the 2% is less than $2.00 but greater than $1.50, the fee shall be the 2%. 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.
B. 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
3
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 under the preceding sentence 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.
C. Within ten (10) days following receipt of certified weight certificates, which certificates shall be presented to Buyer each Thursday for all DDGS 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.
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 will comply with current industry standards in the feed trade.
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:
|
|
|
Protein |
|
Fat |
|
Fiber |
|
Moisture |
|
Ash |
|
||||||||||
|
|
|
Min |
|
Max |
|
Min |
|
Max |
|
Min |
|
Max |
|
Min |
|
Max |
|
Min |
|
Max |
|
|
DDGS |
|
25 |
|
|
|
10 |
|
|
|
|
|
15 |
|
|
|
12 |
|
|
|
6 |
|
4
The standard for DDGS will be determined on an “as is” basis rather than a dry weight basis. Minimum quality standards for Solubles shall be agreed upon by the parties at a subsequent date.
C. Payment of invoice does not waive Buyer’s rights if goods do not comply with terms or specifications of this Agreement. Unless otherwise agreed between the parties to this Agreement, and in addition to other remedies permitted by law, the Buyer may, without obligation to pay, reject either before or after delivery, any of the Products which when inspected or used fail in a material way to conform to this Agreement. Should any of the Products be seized or condemned by any federal or state department or agency for any reason except noncompliance by Buyer with applicable federal or state requirements, such seizure or condemnation shall operate as a rejection by Buyer of the goods seized or condemned and Buyer shall not be obligated to offer any defense in connection with the seizure or condemnation. When rejection occurs before or after delivery, at its option, Buyer may:
(1) Dispose of the rejected goods after first offering Seller a reasonable opportunity of examining and taking possession thereof, if the condition of the goods reasonably appears to Buyer to permit such delay in making disposition; or
(2) Dispose of the rejected goods in any manner directed by Seller which Buyer can accomplish without violation of applicable laws, rules, regulations or property rights; or
(3) If Buyer has no available means of disposal of rejected goods and Seller fails to direct Buyer to dispose of it as provided herein, Buyer may return the rejected goods to Seller, upon which event Buyer’s obligations with respect to said rejected goods shall be deemed fulfilled. Title and risk of loss shall pass to Seller promptly upon rejection by Buyer.
(4) Seller shall reimburse Buyer for all costs reasonably incurred by Buyer in storing, transporting, returning and disposing of the rejected goods. Buyer shall have no obligation to pay Seller for rejected goods and may deduct reasonable costs and expenses to be reimbursed by Seller from amounts otherwise owed by Buyer to Seller.
(5) If Seller produces Products which comply with the warranty in Section C above but which do not meet applicable industry standards, Buyer agrees to purchase such Products for resale but makes no representation or warranty as to the price at which such Product can be sold. If the Products deviates so severely from industry standard as to be unsalable, then it shall be disposed of in the manner provided for rejected goods in Section C above.
D. If Seller knows or reasonably suspects that any of the Products produced at
5
its Plant are adulterated or misbranded, or outside of industry quality standards, Seller shall promptly so notify Buyer so that such Product can be tested before entering interstate commerce. If Buyer knows or reasonably suspects that any of the Products produced by Seller at its Plant are adulterated, misbranded or outside of industry quality standards, then Buyer may obtain independent laboratory tests of the affected goods. If such goods are tested and found to comply with all warranties made by Seller herein, then Buyer shall pay all testing costs; and if the goods are found not to comply with such warranties, Seller will pay all testing costs.
9. RETENTION OF SAMPLES. Seller will take an origin sample of DDGS from each truck and rail car before it leaves the Plant using standard sampling methodology. Seller will label these samples to indicate the date of shipment and the truck or railcar number involved. Seller will also retain the samples and labeling information for no less than one year.
10. INSURANCE.
A. Seller warrants to Buyer that all employees engaged in the removal of the Products from Seller’s Plant shall be covered as required by law by worker’s compensation and unemployment compensation insurance.
B. Seller agrees to maintain throughout every term of this Agreement comprehensive general liability insurance, including product liability coverage, with combined single limits of not less than $2,000,000. Seller’s policies of comprehensive general liability insurance shall be endorsed to require at least thirty (30) days advance notice to Buyer prior to the effective date of any decrease in or cancellation of coverage. Seller shall cause Buyer to be named as an additional insured on Seller’s insurance policy and shall provide a certificate of insurance to Buyer to establish the coverage maintained by Seller not later than fourteen (14) days prior to completion and start-up of production of the Plant.
C. Buyer agrees to carry such insurance on its vehicles operating on Seller’s property as Seller reasonably deems appropriate. The parties acknowledge that Buyer may elect to self insure its vehicles. Upon request, Buyer shall provide certificate of insurance to Seller to establish the coverage maintained by Buyer.
D. Notwithstanding the foregoing, nothing herein shall be construed to constitute a waiver by either party of claims, causes of action or other rights which either party may have or hereafter acquire against the other for damage or injury to its agents, employees, invitees, property, equipment or inventory, or third party claims against the other for damage or injury to other persons or the property of others.
11. REPRESENTATIONS AND WARRANTIES.
A. Seller represents and warrants that all of the Products delivered to Buyer
6
shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and may lawfully be introduced into interstate commerce pursuant to the provisions of the Act. Seller further warrants that the Products shall fully comply with any applicable state laws governing quality, naming and labeling of product. Payment of invoice shall not constitute a waiver by Buyer of Buyer’s rights as to goods which do not comply with this Agreement or with applicable laws and regulations.
B. Seller represents and warrants that the Products delivered to Buyer shall be free and clear of liens and encumbrances.
12. EVENTS OF DEFAULT. The occurrence of any of the following shall be an event of default under this Agreement: (1) failure of either party to make payment to the other when due; (2) default by either party in the performance of the covenants and agreements set forth in this Agreement; (3) if either party shall become insolvent, or make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its assets, or be adjudicated bankrupt, or file a petition in bankruptcy, or apply to a court for the appointment of a receiver for any of its assets or properties with or without consent, and such receiver shall not be discharged within sixty (60) days following appointment.
13. REMEDIES. Upon the happening of an Event of Default, the parties hereto shall have all remedies available under applicable law with respect to a Event of Default by the other party. Without limiting the foregoing, the parties shall have the following remedies whether in addition to or as one of the remedies otherwise available to them; (1) to declare all amounts owed immediately due and payable; and (2) immediately to terminate this Agreement effective upon receipt by the party in default of the notice of termination, provided, however, the parties shall be allowed 10 days from the date of receipt of notice of default for to cure any default. Notwithstanding any other provision of this Agreement, Buyer may offset against amounts otherwise owed to Seller the price of any product which fails to conform to any requirements of this Agreement.
14. FORCE MAJEURE. Neither Seller nor Buyer will be liable to the other for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, act of the public enemy, riots, civil disorders, sabotage, strikes, lockouts, labor disputes, labor shortages, war stoppages or slowdowns initiated by labor, transportation embargoes, failure or shortage of materials, acts of God, or acts or regulations or priorities of the federal, state or local government or branches or agencies thereof.
15. INDEMNIFICATION.
A. Seller shall indemnify, defend and hold Buyer and its officers, directors, employees and agents harmless, from any and all losses, liabilities, damages, expenses (including reasonable attorneys’ fees), costs, claims, demands, that Buyer or its officers, directors, employees or agents may suffer, sustain or become subject to, or as a result of
7
(i) any misrepresentation or breach of warranty, covenant or agreement of Seller contained herein or (ii) the Seller’s negligence or willful misconduct.
B. Buyer shall indemnify, defend and hold Seller and its officer, directors, employees and agents harmless, from any and all losses, liabilities, damages, expenses (including reasonable attorneys’ fees), costs, claims, demands, that Seller or its officers, directors, employees or agents may suffer, sustain or become subject to, or as a result of (i) any misrepresentation or breach of warranty, covenant or agreement of Buyer contained herein or (ii) the Buyer’s negligence or willful misconduct.
C. Where such personal injury, death or loss of or damage to property is the result of negligence on the part of both Seller and Buyer, each party’s duty of indemnification shall be in proportion to the percentage of that party’s negligence or faults.
D. Seller acknowledges that in order to maximize the total revenue to be generated through the sale of the Products, Buyer may take positions by selling Product in anticipation of Seller providing the Products. Notwithstanding the fact that Seller’s obligation is to provide Buyer with the output of the Plant the parties acknowledge that Buyer may suffer losses as a result of positions taken by Buyer if Seller discontinues operations for any reason whatsoever including Force Majeure. Therefore, Seller shall indemnify, defend and hold Buyer and its officers, directors, employees and agents harmless from any and all losses, liabilities, damages, expenses (including reasonable attorney’s fees), costs, claims, demands that Buyer or its officers, directors, employees, or agents may suffer, sustain or become subject to as a result of any sale or purchase of product taken by Buyer in anticipation of Seller delivering the Products hereunder, provided Buyer has taken commercially reasonable steps to avoid the loss. Seller shall not be liable for any loss resulting from Seller discontinuing operations related to a position taken by Buyer for delivery more than 90 days from the date of entering into a sale without the consent of Seller .
16. GOVERNMENTAL ACTION. The parties recognize that the value of the Products could change as a result of various governmental programs, be they foreign or domestic. In the event that a significant value change of the Products as a result of any such governmental program, Buyer may request re-negotiation of the contract price for the Products by providing written notice to Seller. Buyer shall be required to demonstrate that the value of the Products has significantly changed in the market. Should such a change take place, the parties agree to negotiate, in good faith, a revised sale price for the Products. If, after a good faith effort, the parties are unable to agree on a new price within the 90 day period immediately following notice to the other party, then in such event and notwithstanding the other provisions hereof, Buyer may terminate this Agreement upon 90 days prior written notice.
17 CAR LEASES. Seller acknowledges that Buyer has entered into railcars leases for the purpose of shipping DDGS produced at the Plant, namely (i) the lease for 50
8
railcars between Trinity Industries Leasing Company and Buyer dated October 13, 2005 and (ii) the lease for 50 railcars between Chicago Freight Car Leasing Co. and Buyer dated October 19, 2005 (the “Leases”). Seller agrees that it shall fully reimburse Buyer for all payments made by Buyer under the terms of the leases and shall indemnify Buyer from any and all liability under such leases including the payment of rent or for damage to any of the cars. Buyer does hereby assign the Leases to Seller (and Seller does hereby assume liability therefor) which assignment shall take effect upon the termination of this Agreement unless such termination is as a result of it being terminated to permit Seller to participate in the Pooled Marketing Arrangement in which case the responsibility with respect to the cars shall be governed by the Pooled Marketing Agreement.
18. RELATIONSHIP OF PARTIES. This Agreement creates no relationship other than that of buyer and seller between the parties hereto. Specifically, there is no agency, partnership, joint venture or other joint or mutual enterprise or undertaking created hereby. Nothing contained in this Agreement authorizes one party to act for or on behalf of the other and neither party is entitled to commissions from the other.
19. MISCELLANEOUS.
A. This writing is intended by the parties as a final expression of their agreement and a complete and exclusive statement of the terms thereof.
B. No course of prior dealings between the parties and no usage of trade, except where expressly incorporated by reference, shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement.
C. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature or the performance and an opportunity to make objection.
D. No representations, understandings or agreements have been made or relied upon in the making of this Agreement other than as specifically set forth herein.
E. This Agreement can only be modified by a writing signed by all of the parties or their duly authorized agents.
F. The paragraph headings herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
G. This Agreement shall be construed and performed in accordance with the laws of the State of South Dakota.
H. The respective rights, obligations and liabilities of the parties under this Agreement are not assignable or delegable without the prior written consent of the other
9
party.
I. Notice shall be deemed to have been given to the party to whom it is addressed ninety-six (96) hours after it is deposited in certified U.S. mail, postage prepaid, return receipt requested, addressed as follows:
|
Buyer: |
Commodity Specialists Company |
|
|
000 Xxxxx Xxxxxxxx Xxxx. |
|
|
000 Xxxxx Xxxxxx Xxxxxx |
|
|
Xxxxxxxxxxx, Xxxxxxxxx 00000 |
|
|
ATTN: Xxxxx X. Xxxxxxx |
|
|
|
|
Seller: |
Dakota Ethanol LLC |
|
|
X.X. Xxx 000 |
|
|
Xxxxxxxxx, XX 00000 |
|
|
ATTN: Xxxxx X. Xxxxx |
IN WITNESS THEREOF, the parties have caused this Agreement to be executed the day and year first above written.
|
|
COMMODITY SPECIALISTS COMPANY |
|||
|
|
|
|||
|
|
By: |
Xxxx Xxxxxx, Xx. |
|
|
|
|
Title: Co-President |
|||
|
|
|
|||
|
|
|
|||
|
|
DAKOTA ETHANOL LLC |
|||
|
|
|
|||
|
|
|
|||
|
|
By: |
Xxxxx Xxxxx |
|
|
|
|
Title: Chairman, Board of Managers |
|||
10
