AGREEMENT
FOR THE PRODUCTION AND
PURCHASE OF NUTRIDENSE® CORN
THIS AGREEMENT FOR THE PRODUCTION AND PURCHASE OF
NUTRIDENSE® CORN (“Agreement”), made this ________ day of
___________________, _______, by and between _________________________ of _______________ (“Buyer”), and
___________________________________ of _____________________, ________
(“Grower”),
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
November 1, 2009 and August 31, 2010 for delivery of the Grain.
Number of Acres Delivery
Period Destination
November 1, 2009 to December 31, 2009
January 1, 2010 to February 28, 2010
March 1, 2010 to April 30, 2010
July 1, 2010 to August 31, 2010
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 A. 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 August 15, 2010, Grower shall deliver the Grain to Destination
on or before August 31, 2010.
4. Grain Specifications:
(a) The
Grain shall meet the following specifications:
(i) Pro/Fat* 13.5%
Minimum (0% moisture)
*(protein and oil% combined total content), and, 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. The Grain shall not
contain any corn genetically modified with the Aventis “Starlink”
technology. 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,
Herculexâ corn/line
1507, Herculexâ RootWorm
corn/line 59122, Herculexâ Xtra
corn/line1507 x line 59122, Syngentaâ Bt
corn/line Bt11, 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.
(b) Pro/Fat content shall be measured and
expressed on a zero moisture basis.
(c) Buyer shall purchase all Grain produced by
Grower pursuant to this Agreement that meets all of the specifications set
forth in Section 4(a). Grain failing to
meet any one or more of the grain specifications set forth in Section 4(a) (“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.
(d) 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.
(e) 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.
(f) 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.
(g) 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(a) 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(a).
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(a), 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(a), 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 un-priced grain.
(a) 6. Reserved
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. Under-deliveries: 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. Over-deliveries: 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.
Grower: By Buyer: By
Name: Name:
DBA: DBA:
Address: Address:
City: , St. Zip Phone: & Fax:
Phone: ( )
& Fax: (___) E-mail:
E-mail: Contract Number:
EXHIBIT A
AGREEMENT FOR THE PRODUCTION
AND PURCHASE OF NUTRIDENSE® GRAIN
GRAIN DELIVERY DESTINATIONS
2009/2010
DESTINATION SELECTION(S)
For
Example: For
Example: For
Example:
1.