THIS AGREEMENT FOR THE PRODUCTION AND PURCHASE OF NUTRIDENSE® CORN
(“Agreement”), made this ________ day of ___________________,
_______, by and between _________________________ of _______________
(“Buyer”), and ___________________________________ of _____________________,
________ (“Grower”),
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®VT
(Mon88017), YieldGard® Plus
(Mon88017/Mon810), YieldGard®VT Triple Pro (Mon88017/Mon89034), Agrisure™
Rootworm MIR604 and/or YieldGard® Rootworm corn/MON863, Herculexâ corn/line 1507, Herculexâ RootWorm corn/line 59122, Herculexâ Xtra corn/line1507 x line 59122, Agrisureâ Bt corn/line Bt11, 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.
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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 October 1, 2009 and August 31,
2010 for delivery of the Grain.
Number of Acres Delivery
Period Destination
October 1, 2009
to December 31, 2009
January 1, 2010
to February 28, 2010
March 1, 2010 to
April 30, 2010
May 1, 2010 to
June 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 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 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. This will include all NutriDense seed sold to
licensees which is introgressed with Roundup Ready® corn/NK603, YieldGard®VT
(Mon88017), YieldGard® Plus
(Mon88017/Mon810), YieldGard®VT Triple Pro (Mon88017/Mon89034), Agrisure™
Rootworm MIR604 and/or YieldGard® Rootworm corn/MON863, Herculexâ corn/line 1507, Herculexâ RootWorm corn/line 59122, Herculexâ Xtra corn/line1507 x line 59122, Agrisureâ 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. The Grain shall not contain any corn genetically
modified with the Aventis “Starlink” technology.
(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 utilize pricing
and risk management tools made available by Buyer at that time to establish the
price for #2 yellow corn (“Base Price”).
(b) If
Grower fails to establish 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) For
Grower Contracts signed on or before February 20, 2009
for NutriDense bushels to be delivered between October 1, 2009 and August 31,
2010 and 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 30
cents per bushel and (2) a “Market Development Premium” of 20
cents per bushel.
(d)
RESERVED
(e) The
Base Price shall be reduced by the cumulative amount of the following
discounts:
Buyers
“Market Scale of Discounts” in affect at the time of delivery for each
respective delivery point. Those
discounts are subject to change without notice.
(f)
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 Sections 5(c) and 5(d) and (2) decreased by the discounts
described in Section 5(e).
(g) 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.
(h) 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. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. Overdeliveries: Any Grain delivered by Grower which is in
excess of the quantity estimated and priced by Grower, shall be purchased by
Buyer at the afternoon closing market price at the close of the day at
Destination for that type and grade of Grain, subject to adjustment for the
premiums and/or credits described in Section 5(c), 5(d) and 5(e) of this
Agreement, if applicable.
13. 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:
______________________________ ________________________________
Address: _____________________________ ________________________________
City: _______________,
St._______Zip____ Phone: _________& Fax:___________
Phone: (___) _____ & Fax: (___) _____- ____ E-mail:
__________________________
E-mail: __________ @ ____________. ______ Contract Number: _____________________
EXHIBIT 1
TO AGREEMENT FOR THE
PRODUCTION AND PURCHASE OF NUTRIDENSE® GRAIN
GRAIN DELIVERY DESTINATIONS
2009/2010
DESTINATION SELECTION(S)
For
Example: For
Example: For Example:
Matthews, IN Matthews Feed &
Grain, Inc Truck