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AGREEMENT THIS
AGREEMENT FOR THE PRODUCTION AND PURCHASE OF NUTRIDENSE® CORN
("Agreement"), made this ____ day of __________, 200_, by and between ______________ of
_____________________________________ ("Buyer"), and
______________________ of __________________________ ("Grower"). RECITALS NutriDense® Corn is a brand of
hybrid seed corn exhibiting elevated levels of oil, protein and amino acids
developed by BASF Plant Science L.L.C., ("BASF") and marketed by
BASF's NutriDense® licensees. Grower has agreed to produce NutriDense Corn
for Buyer on the terms and conditions set forth in this Agreement. Only
NutriDense grain corn produced from NutriDense hybrid seed sold by a
NutriDense licensee will be accepted as delivery against this agreement. This
will include all NutriDense seed sold to licensees which is introgressed with
Roundup Ready® corn/NK603, YieldGard® Corn Borer corn/Mon810, and/or
YieldGard® Rootworm corn/MON863, Herculex, individually or in stacked
combinations, provided that Grower has contractual rights necessary to grow
seed containing such events. Seller verifies that no other genetically
modified corn hybrids carrying any other trait/event has been co-mingled with
this corn. NOW, THEREFORE, in consideration of the mutual promises
and covenants set forth in this Agreement, the parties hereby agree as
follows: 1.
Type of Grain; Quantity: Grower agrees to produce and sell to Buyer, and Buyer agrees
to purchase from Grower, ____ acres of NutriDense® corn ("Grain"),
all in accordance with the terms and conditions contained herein. 2.
Location of Acreage: Grower shall produce the Grain at the location described
as follows: farm ______________________ located in 3.
Delivery Destination; Delivery Period: (a)
Upon execution of this Agreement, Grower shall select one or more of
the following delivery periods ("Delivery Period") between Number of
Acres Delivery Period Destination The estimated number of bushels to
be delivered during each Delivery Period selected by Grower shall not be less
than 5,000 bushels. Buyer may, in its sole discretion, select a date in the
Delivery Period for delivery of the portion of the Grain allocated by Grower
to that Delivery Period ("Delivery Date"). Buyer shall give Grower
at least 15 days prior written notice of the Delivery Date ("Buyer's
Call). Grower shall deliver the Grain on the Delivery Date. (b)
Upon execution of this Agreement, Grower shall select one or more of
the delivery destinations ("Destination") listed on Exhibit 1. The
estimated number of bushels to be delivered to each Destination selected by
Grower shall not be less than 5,000 bushels. Grower shall deliver the Grain to
Destination or any other facility specified in Buyer's Call. If Buyer
specifies a location other than Destination, Buyer shall pay Grower for
additional transportation costs incurred by Grower, if any. (c)
If Grower does not receive Buyer's Call by 4.
Grain Specifications: 1. The Grain shall
meet the following specifications: (i)
Pro/Fat* 13.5%
Minimum (0% moisture) *(protein and oil% combined total
content), or if not, at least 4.8% oil content. (ii)
Foreign Matter 3%
Maximum (with no discount) (iii)
Damage 5%
Maximum (with no discount) (iv)
Aflatoxin <20
PPB (v)
Odor Cool
and sweet (vi)
Test Weight 54
lb. Minimum (with no discount) (vii)
Moisture 15%
Maximum (with no discount) (viii)
All Grain delivered under this Agreement shall be unrestricted from
movement in interstate commerce within the meaning of the Federal Food, Drug
and Cosmetics Act, EPA tolerances, the US Grain Standards Act and applicable
state law. This will include all NutriDense seed sold to licensees which is
introgressed with Roundup Ready® corn/NK603, YieldGard® Corn Borer
corn/Mon810, and/or YieldGard® Rootworm corn/MON863, Herculex® corn/line
1507, Herculex® RootWorm corn/line 59122, Herculex® Xtra corn/line1507 x line
59122, Syngenta® Bt corn/line Btl 1, individually or in stacked combinations,
provided that Grower has contractual rights necessary to grow seed containing
such events. Grower verifies that no other genetically modified corn hybrids
carrying any other trait/event has been co-mingled with this corn. The Grain
shall not contain any corn genetically modified with the Aventis
"Starlink" technology. 2.
Pro/Fat content shall be measured and expressed on a zero moisture
basis. 3.
Buyer shall purchase all Grain produced by Grower pursuant to this
Agreement that meets all of the specifications set forth in Section 4(1).
Grain failing to meet any one or more of the grain specifications set forth
in Section 4(1) ("Nonconforming Grain") may be accepted or rejected
by Buyer in its sole discretion. All Nonconforming Grain accepted by Buyer
that contains less than 13.5% Pro/Fat and less than 4.8 oil content shall be
purchased as #2 yellow corn. Buyer shall have no obligation to purchase
Nonconforming Grain. 4.
Destination weights and grades shall govern; provided, however, Grower
has the right to appeal any grading by submitting a sample to the Federal
Grain Inspection Service, at Grower's expense, for an official grade. 5.
If requested by Buyer, grower shall provide a representative sample of
the Grain to Buyer before delivery. Buyer shall provide sample bags and
sample shipping instructions to the Grower. Buyer or its representative shall
have the right to sample bins of Grain prior to delivery. 6.
Pro/Fat content of the Grain shall be determined on the Delivery Date
by Buyer or its representative utilizing a grain analyzer calibrated to
specifications approved by BASF for testing NutriDense® grain. A
representative sample shall be drawn and tested from each load of Grain. At
Grower's request, Buyer shall provide Grower with the test results and/or
details of the sampling and measurement procedure. 7.
In the event Grower disagrees with the test results related to oil or
protein content, the Grower may request that a second sample be drawn and
immediately analyzed by the grain analyzer. If a second test is performed,
the oil and protein content for determining the specifications in Section 4(1) have been met shall be the
average value of the two sample measurements. Grower may, at its sole
expense, request a third party analysis of the Grain. Within 3 days of
Buyer's receipt of Grower's request for third-party analysis, Buyer shall
send a sample of the Grain to Eurofin/Woodsen Tenant Laboratories. The
parties agree that the oil and protein content determined by Eurofin/Woodsen
Tenant Laboratories shall be binding on the parties and used to determine
whether the Grain met the oil content and protein content specifications set
forth in Section 4(1). 5.
Grower Compensation; Price Selection; Time of Payment: The price to be paid to Grower by
Buyer for all Grain purchased pursuant to this Agreement shall be determined
as follows: (a)
The "Pricing Period" shall be the period between the date of
this Agreement and the Delivery Date. On any business day of Buyer during the
Pricing Period, Grower may provide to Buyer a written good faith estimate of
the quantity in bushels of Grain to be delivered on the Delivery Date at the end of such Pricing Period and select the
posted price at Destination quoted that day by Buyer for #2 yellow corn
("Base Price"). The Base Price shall apply to all Grain to be
delivered on the Delivery Date at the end of such Pricing Period. (b)
If Grower fails to select a price for #2 yellow corn by the close of
business on the last business day of the Pricing Period, then the Base Price
shall be the last quoted price of Buyer for #2 yellow corn on the last
business day of the Pricing Period. (c)
If the Grain meets or exceeds both the Pro/Fat content requirements
set forth in Section 4(1), the Base Price shall be increased by (1) an
"Economic Value Premium" of 10 cents per bushel and (2) a
"Market Development Premium" of 15 cents per bushel. (d)
If Buyer elects to accept Nonconforming Grain, the Base Price shall be
reduced by the cumulative amount of the following discounts: All Discounts will be "Market Scale of
Discounts" at the time of shipment for each respective delivery point.
Those discounts are subject to change without notice. (e)
If Buyer elects to accept Nonconforming Grain and the Nonconforming
Grain meets or exceeds the Pro/Fat content requirements set forth in Section
4(1), the Base Price shall be (1) increased by the premiums described in
Section 5(c), and (2) decreased by the discounts described in Section 5(d). (f)
Within seven (7) days after the Delivery Date(s), Buyer shall make the
amount(s) due under this Agreement available to Grower. The total amount due
from Buyer to Grower shall be calculated by multiplying (1) the number of
bushels of Grain delivered by (2) the Base Price as adjusted for any
applicable premiums and/or discounts determined in accordance with Sections
5(c), 5(d) and/or 5(e) of this Agreement. (g)
If Buyer fails to accept delivery of Grain after the Grain has been
priced by Grower, Buyer shall pay Grower a storage charge of $.000986/bu./day
(3 cents/month) from the Delivery Date until Buyer accepts delivery. Buyer
shall have no obligation to pay Grower any storage fees on unpriced grain. 6.
Signing Bonus. Any grower meeting the eligibility requirements for the 2007
NutriDense® Grain Contract Signing Bonus Program shall be paid by Buyer
according to the Program's terms. A copy of the Program is attached as
Exhibit 2. 7.
Governing Law: This Agreement shall be governed by and construed in accordance with
the laws of the respective state in which the production is located. 8.
Title; Liens: Grower warrants that at the time it delivers the Grain to the Buyer,
all Grain shall be free of all liens, encumbrances, and claims of any type
whatsoever, and Grower will have good an merchantable title thereto, with the
right to dispose of same; PROVIDED, HOWEVER, that if written notification of
a lien or other encumbrance is received by Buyer prior to Grower's delivery
or such time as Grain is available to Buyer for transport, whichever is
applicable, Buyer may accept the Grain but will make payment in accordance
with said notification. 9.
Final and Complete Agreement: This Agreement represents the final, complete and
exclusive statement of the agreement between the parties and may not be
amended, modified or supplemented, except in writing, signed by both parties. 10.
Successors and Assigns: This Agreement shall be binding upon the heirs,
administrators and executors of Grower, and the successors or assigns of
Buyer. This Agreement may not be assigned, transferred, sold, pledged, encumbered,
or used as collateral in any way by Grower, without the prior written consent
of Buyer in its sole discretion. 11.
No Waiver: Acceptance of any Grain by Buyer
after breach of the terms and conditions of this Agreement by Grower shall
not waive any rights or remedies accruing to Buyer as a result of such
breach. 12.
Underdeliveries: If Grower fails to complete delivery of the quantity of Grain as
estimated and priced per paragraph 5(a) of this Agreement by Grower, Buyer
may purchase replacement Grain in the quantity necessary to fulfill this
Agreement. Grower shall be responsible to Buyer for the cost of such
replacement Grain to the extent the per-bushel cost of such replacement Grain
exceeds the per-bushel sales price of Grain to be paid Grower, as provided
above. 13.
Overdeliveries: Any Grain delivered by Grower which is in excess of the quantity
estimated and priced by Grower, shall be
purchased by Buyer at Buyer's posted bid price at Destination for that type
and grade of Grain on the date such excess is delivered, subject to
adjustment for the premiums and/or credits described in Section 5(c), 5(d)
and 5(e) of this Agreement, if applicable. 14.
Seed: All
Grain produced by Grower pursuant to this Agreement shall be grown only from
seed corn identified as NutriDense® brand hybrid corn seed and purchased from
a seed company holding a valid NutriDense license from BASF. |
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Grower: By_______________________________ Buyer: By Name:___________________________________ Name: DBA:__________________________________________________________________________ Address:_______________________________________________________________________ City:________________ , Phone: (_)__________ & Fax: (_)_________ -_______ E-mail:______________________________ E-mail:___________ @_____________________ Contract
Number: |
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EXHIBIT 1 |
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DESTINATION SELECTION(S) For Example: For Example: _____________ For
Example: Roachdale, IN Peavey Grain _________ Rail Shelburn, IN Peavey Grain _________ Rail Browns, IL Peavey Grain _________ Rail Casey, IL Effingham-Clay _________ Rail Jeffersonville, IN CGB _________ River Madison, IN CGB _________ River Aurora, IN CGB _________ River Mt. Vernon, IN CGB _________ River Havana, IL L.B.
Osterbur _________ River Hennepin, IL L.B.
Osterbur _________ River Cincinnati, OH L.B.
Osterbur _________ River Evansville, IN L.B.
Osterbur _________ River Owensboro, KY L.B.
Osterbur _________ River East Hannibal, IL L.B.
Osterbur _________ River Louisianna, MO L.B.
Osterbur _________ River |
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EXHIBIT 1 (continued) |
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DESTINATION SELECTION(S) For Example: For Example: _____________ For
Example: Pekin, IL L.B.
Osterbur _________ River E. St. Louis, IL L.B.
Osterbur _________ River Florence, IL L.B.
Osterbur _________ River Alhambra, IL Madison
Coop _________ River Greenville, IL South Central Coop _________ River Sauget, IL South Central Coop _________ River |
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EXHIBIT 2 BASF Plant Science L.L.C. 2007 NutriDense® Grain
Contract Signing Bonus Program Effective: Measurement: Grain Producer(s) contracts, as tracked
by grain contracts entered into the grain contracting application as close to
the seed sale date as possible but no later than Sales to a Grain Producer(s), as reported by the
NutriDense Licensee in the Early Order Sales report in
January 2008. Program
Period: Eligibility: Producer: q
Provided that at least 100 acres of
qualifying hybrids (shown above) are contracted by a Grain Producer with a
NutriDense Elevator Partner, such Grain Producer will qualify for a $1,000
Contract Signing Bonus. q
Regardless of the acres contracted above
the minimum of 100, only one $1,000 signing bonus will be available per Grain
Producer. Payment Protocol: q
The Elevator Partner will invoice BPS,
on or about q
BPS will cross-reference this invoice
information with Early Order seed sales information to verify that qualifying
hybrids were purchased to fulfill the contract obligation. q
BPS will also verify this invoice
information in the contracting system to confirm the existence of a
qualifying grain contract. q
BPS will then issue a check to the
Elevator Partner payable on or about BASF
reserves the right to audit all claims as well as reported sales and reserves
the right to make the final decision on the application of any and all
discounts and the payment of any and all Incentives. |