**Exhibit 10.28**

**UNIFORM MEMBER MARKETINGAGREEMENT**

**POOL BASIS**

**THISAGREEMENT**, madeeffective as of the 1st day of September 2001, by and between **MIDWEST AGRI–COMMODITIESCOMPANY**, a cooperative association organized under the laws of theState of North Dakota (hereinafter referred to as “**MIDWEST**”) and **AMERICANCRYSTAL SUGAR COMPANY**, a cooperative association organized under thelaws of the State of Minnesota (hereinafter referred to as “**PROCESSOR**”).

 

**W I T NE S S E T H:**

**WHEREAS**, PROCESSOR is a producer–owned andproducer-operated agricultural cooperative which is organized and operated soas to adhere to the provisions of Section 15(a) of the Agricultural MarketingAct (12 U.S.C., Sec. 1141j(a)), as amended, and the Capper–Volstead Actof 1922 (7 U.S.C., Sec. 291, 292), and which is engaged in the operation of oneor more sugar beet processing plants for the purposes of producing sugar, beetpulp, molasses, and related products from sugar beets; and

 

**WHEREAS**, MIDWEST is organized and operated so asto adhere to the provisions of Section 15(a) of the Agricultural Marketing Act(12 U.S.C., Sec. 1141j(a)), as amended, and the Capper Volstead Act of 1922 (7U.S.C., Sec. 291,292), for the mutual help and benefit of its processor–membersfor the purposes of acting as a marketing agency for its members and ofengaging in the business of marketing the beet pulp, molasses, and relatedproducts produced by its members; and

 

**WHEREAS**, PROCESSOR wishes to participate withother members (collectively the “Members”) and pooled contract patrons(“Patrons”) of MIDWEST in developing and maintaining a dependable market forcertain products produced by PROCESSOR; and

 

**WHEREAS**, MIDWEST and PROCESSOR desire to enterinto a membership marketing agreement on a pool basis.

 

**NOW,THEREFORE**, inconsideration of the above, subject to the respective terms, conditions, andobligations of the PROCESSOR and MIDWEST herein, MIDWEST and PROCESSOR agree asfollows:

 

# **1.             Appointment of MIDWEST as SalesAgent. **PROCESSOR appoints and designates MIDWESTto act as its sole worldwide agent in the sale and marketing of the followingproducts (hereinafter collectively the “Co-Products”) produced by PROCESSORduring the term of this Agreement:

 

## **(a)          **Beet pulp;

## **(b)          **Molasses;

## **(c)          **Separator Molasses Solubles;

## **(d)          **Concentrated Separator By-Product; and****

## **(e)          **Any other product for which the Members of MIDWESThave, by unanimous vote, created a separate pool.

 

MIDWEST accepts such appointment and agrees to act asthe sales agent and pool administrator in accordance with the terms of thisAgreement.  PROCESSOR agrees thatMIDWEST may employ all such persons and agencies as it determines to benecessary to carry out its obligations under this Agreement.  MIDWEST agrees, and is hereby empowered byPROCESSOR, to sell in its own name, and pass title to, all Co-Products producedby PROCESSOR during the term of this Agreement to such third party purchasers(hereinafter “Purchaser” or “Purchasers”), in such markets, at such time ortimes, at such place or places, in such manner and on such prices or terms asMIDWEST determines to be in the best interests of PROCESSOR and the Members andPatrons of Midwest.  It is understoodand agreed that this Agreement applies to all Co-Products produced by PROCESSORin any state or location.

 

**2.             Billing and Collection**. All sales made by MIDWEST shall be billed on invoices of MIDWEST and allreceipts shall be collected by MIDWEST.

 

**3.             Product Pools**.  MIDWEST and PROCESSOR agree that the Co-Products to be sold by MIDWESThereunder shall be pooled for each crop year with products of the Members ofMIDWEST.     Separate pools shall bemaintained for each of the Co-Products.  Additional pools may be established by unanimous agreement of theMembers of MIDWEST to market new or related products developed by the Membersand Patrons.  As sales are made, theproceeds received by MIDWEST from the sale of the Co-Products received fromPROCESSOR shall be deposited into the appropriate pool, and shall be creditedto PROCESSOR and the Members on the basis of their respective pro rata shares,as defined below in this Section 3 (the “Pro-Rata Shares”), of the net proceedsof each sale.   PROCESSOR’s share of netproceeds as defined in Section 5 hereof and after adjustments for advances paidunder Section 6 hereof shall be distributed to PROCESSOR by MIDWEST as rapidlyas collection and accounting procedures permit.

 

With respect to each pool year covered by thisAgreement, distributions of the net proceeds shall initially be based onMIDWEST’S best estimate of the amount of Co-Product anticipated to be producedby each participant in the pool, and shall be adjusted by MIDWEST periodicallyas production figures are more precisely determined.   Accordingly, the Pro-Rata Share of PROCESSOR for each productpool shall be initially equal to a fraction with PROCESSOR’s estimated annualproduction of that product to be pooled as the numerator and total estimatedannual pool production of that product for PROCESSOR and the other MIDWESTMembers and Patrons as the denominator.  As soon as the processing campaigns are concluded, and exact productionis determined, precise Pro-Rata Shares shall be established and any appropriateadjustments shall be made among the pool participants.

 

**4.             MIDWEST’s Books and Records.** MIDWEST shall keep accurate records of sales and distribution of poolproceeds in accordance with sound and generally accepted accountingpractices.  Said records shall be at allreasonable times fully available for inspection by PROCESSOR.  All records of the pools shall be auditedannually by MIDWEST’s regular Independent Certified Public Auditors and theAudit report made available to PROCESSOR.

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# **5.             Definition of Net Proceeds.** The net proceeds for each product pool shall be defined as the grosssales from such pool by MIDWEST, less:

 

## **(a)          **All costs, charges or expenses directly attributableto the sale of the Co-Product;

 

## **(b)          **All costs of transportation and handling of theCo-Product, including storage costs incurred by MIDWEST;

 

## **(c)          **Insurance premiums paid by MIDWEST;

 

## **(d)          **State feed inspection and all other fees and taxesincurred in the marketing of the Co-Product;

 

## **(e)          **All other direct and indirect charges or expenses,including administrative and overhead, attributable to the sale of theCo-Product in the operation of the product pools; and

 

**(f)           **All losses incurred by MIDWEST as a result ofuncollectible accounts receivable shall be allocated to the appropriate productpool and shall be regarded as a marketing expense in determining the netproceeds of that product pool.

 

# **6.             Budget and Advance of MarketingCosts.**  MIDWEST shall prepare a monthly budget orestimate of all direct and indirect marketing costs for each product pool.  Each Member or Patron involved in the poolshall pay in advance its estimated Pro-Rata share of such marketing costs forthe month.   In the alternative, thePROCESSOR authorizes MIDWEST to borrow funds pursuant to its bank line ofcredit to pay direct and indirect marketing costs, provided that the Membersand Patrons shall reimburse MIDWEST for the marketing expenses incurred duringthe previous month no later than the 8th business day of the following month.

 

# **7.             Product Warranties and QualityStandards; Handling of Product of Substandard Quality.** MIDWEST shall furnish to PROCESSOR from time to time with Purchaserspecifications for Co-Products prescribing standards and procedures for qualitycontrol, storing and shipping of such product. Initially such standards shall be those set forth on Schedule “A”attached hereto.  PROCESSOR shallobserve and comply with any such specifications furnished by MIDWEST.  In addition, all Co-Products delivered to orat the order of MIDWEST shall conform to quality and other standards that areprescribed by applicable state and federal rules and regulations.

 

Co-Product of substandard quality, as determined byMIDWEST, shall, on the joint agreement of PROCESSOR and MIDWEST, or if noagreement has been reached, at the option of Midwest:  (a) be withheld from the pool and marketed by Midwest with input fromPROCESSOR on an individual agency basis with proceeds from the sale of suchCo-Product, less all direct and indirect selling expenses, distributed toPROCESSOR, or (b) remain in the pool and be charged with the additional costsrelating to the substandard quality of the Co-Product.

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# **8.             Storage of Product.**  PROCESSOR shall store its Co-Products in tanks, bins, and warehousesthat are approved in advance by MIDWEST. At the earliest reasonable time after processing commences each year andas soon as Co-Products are placed in storage, PROCESSOR shall deliver regularinventory reports to MIDWEST.  Allproduction included in the regular inventory report shall be included in thepool for the appropriate crop year even though the Co-Products remain on the propertyof the PROCESSOR.  All on-site storageexpenses and on-site labor, materials, and other expenses incurred at thePROCESSOR facilities for the preparation, loading and shipment of Co-Productsproduced by PROCESSOR shall be paid directly by PROCESSOR and shall not be apool expense.

 

# **9.             Risk of Loss, Insurance,and  Indemnification.**  PROCESSOR covenants and agrees that it shall bear the risk of loss ofthe Co-Products until the Co-Products are transferred from the variousPROCESSOR facilities to a common carrier for delivery to MIDWEST or to thePurchaser.  Until such time as theCo-Products are turned over to a common carrier for delivery to MIDWEST or tothe Purchaser, PROCESSOR covenants and agrees, at its sole cost and at alltimes during the term of this Agreement, to maintain in force an insurancepolicy or policies covering loss, theft or damage to the Co-Products from anycause whatsoever, in amounts not less than the full insurable value thereof,and product liability insurance in amounts required by MIDWEST from time totime, which product liability insurance shall name MIDWEST as an additional ornamed insured.  Said policies shall betaken out with responsible insurance companies, and shall not be canceled oraltered without ten days’ written notice to MIDWEST.  PROCESSOR shall furnish MIDWEST with certificates of insurance,together with a summary of the terms and conditions of the policy or policies,and the date on which they expire.

 

From the time of the delivery of the Co-Products to acommon carrier at the various PROCESSOR facilities, MIDWEST shall, to theextent not already covered by existing PROCESSOR insurance policies, maintainin force an insurance policy or policies covering product liability and loss,theft or damage to the Co-Products in amounts not less than the full insurablevalue of the Co-Products.  Premiums paidfor any such insurance shall be a pool expense under Section 5 of theAgreement.

 

# **10.          Logistics Function.** MIDWEST shall be responsible for performing all normal logisticsfunctions relating to the shipment of Co-Products from PROCESSOR’s plants.   MIDWEST shall use its business judgment indetermining the factory, warehouse, Member, or Patron from which to drawproduct, considering such factors as, but not limited to, car loadings, pointsof destination, capacity of tanks or warehouses, and size of inventories storedtherein.  Direct or indirect costs ofMIDWEST associated with the performance of the logistics function shall beallocated to PROCESSOR in accordance with Section 5 of this Agreement.

 

# **11.          Information from PROCESSOR.** PROCESSOR shall, whenever requested by MIDWEST, furnish MIDWEST productproduction and related statistical data related to the Co-Products, and shallmake its books and records related to the Co-Products and statistics availableat all reasonable times for inspection by MIDWEST.  PROCESSOR further agrees, upon request of MIDWEST, to furnishMIDWEST with samples of the Co-Products for grading or selling purposes.  MIDWEST shall furnish monthly performancereports of sales and operating costs against budget no later than 15 workingdays from the end of the month.

 

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# **12.          Sales Promotion.** MIDWEST agrees to do any and all things reasonably necessary and properto stimulate demand for the Co-Products in efforts to improve the markets andproceeds related thereto.

 

# **13.          Term of Agreement:  Termination.**

 

## **(a)           Term**. The term of this Agreement shall be for 2 (two) consecutive crop yearscommencing on September 1, 2001 and continuing through August 31, 2003 (the“Initial Term”) and from year to year thereafter until terminated as providedherein.

 

## **(b)           Termination**.  Either party has the right to terminate this Agreement at the end of theInitial Term and thereafter by giving written notice by registered mail to theother party of such termination as follows:

 

## **(i)           **Notice of termination to be effective at theconclusion of the Initial Term shall be given prior to May 1, 2002;

## **(ii)          **Notice of termination to be effective at theconclusion of a renewal term shall be given prior to May 1 of a given year tobe effective on August 31 of the subsequent year (e.g., notice given on April30, 2004 is effective August 31, 2005).

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**(c)          Breach by PROCESSOR.  **PROCESSOR agrees that MIDWEST shall have all rightsand remedies provided by law and in the Bylaws of MIDWEST in the event of abreach or threatened breach by PROCESSOR of this Agreement

 

**(d)           Continuing Obligations**. Following the termination of this Agreement or any reason, MIDWEST shallremain obligated to distribute the net proceeds of each pool to PROCESSOR asprovided herein.

 

# **14.          Patronage Relationship**. MIDWEST and PROCESSOR agree that the business to be transacted underthis Agreement will be done on a cooperative basis.  PROCESSOR agrees to treat the full amount of any patronagedistribution, in excess of the net proceeds to be returned to PROCESSOR asprovided herein, which is made in a written notice of allocation (as defined in26 U.S.C. §1388) which it receives, as income received in the year in whichsuch written notice of allocation is received at its stated dollar amount inthe manner provided in 26 U.S.C. §1385(a).

 

# **15.          Compliance with MIDWEST’s GoverningInstruments.**  PROCESSOR accepts and agrees to conform toand abide by the provisions of the Articles of Association and Bylaws ofMIDWEST and all amendments thereto during the term of this Agreement.

 

# **16.          Representations by PROCESSOR**.  PROCESSOR hereby represents and warrants to MIDWEST that:

 

**(a)           CooperativeStatus**. **  **PROCESSOR is a grower-ownedagricultural cooperative which is organized and operated so as to adhere to theprovisions of Section 15(a) of the Agricultural Marketing Act (12 U.S.C., Sec.1141j(a)), as amended, and the Capper-Volstead Act of 1922 (7 U. S. C., Sec.291, 292);

## **(b)           Marketable Title**.   PROCESSOR has good and marketable title to the Co-Products, and allCo-Products which are delivered to MIDWEST or to Purchasers are free and clearof any liens, attachments, security interests, claims or encumbrances of anykind whatsoever; and

 

## **(c)           No Prior Obligation**.   PROCESSOR is not under contract or obligation to sell, market, consignor deliver any of the Co-Products to any other person, firm, association,corporation or other entity.

 

## **(d)           Transgenic Variety.** PROCESSOR warrants and represents that it will not, without the priorwritten consent of MIDWEST, knowingly deliver any Co-Product to MIDWEST or to acustomer of MIDWEST that is grown using a Transgenic Variety.   For the purpose of this Agreement,“Transgenic Variety”** **means a variety of seed whichwill produce a plantthat contains a gene or genes that have been artificially inserted instead ofthe plant acquiring the gene or genes through pollination. MIDWEST andPROCESSOR further agree that any consent provided by MIDWEST under this Section16(d) shall not be effective until MIDWEST also delivers to PROCESSOR theunanimous written consent of all Members of MIDWEST to the delivery by thePROCESSOR of Co-Product that is grown using a Transgenic Variety.  PROCESSOR shall indemnify, defend and holdMIDWEST and each of its Members and their respective directors, officers,employees, representatives and agents (each an “Indemnitee”) harmless from andagainst all liabilities, obligations, claims, damages, penalties, causes ofaction, costs and expenses (including, without limitation, attorneys’ fees andexpenses, product recall and/or re-routing expenses and other incidental,consequential, special and punitive damages) (collectively, the “Liabilities”)imposed upon, incurred by or asserted against the Indemnitee that resultdirectly from the knowing delivery by PROCESSOR of any Co-Product that is grownusing a Transgenic Variety pursuant to this Agreement.  MIDWEST and PROCESSOR agree that the otherMembers of MIDWEST are third party beneficiaries to the representations andwarranties contained in this Section 16(d).

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## **17.          Indemnification by PROCESSOR**.  PROCESSOR hereby agrees to indemnify and hold harmless, MIDWEST, itsmembers, and their respective employees, from and against any claims, losses orliabilities, including attorneys fees incurred, arising out of, or resultingfrom, the production, on-site storage or loading of any product which ismarketed by MIDWEST pursuant to this Agreement.  In addition, PROCESSOR shall defend and hold harmless MIDWESTfrom any costs, claims, liabilities, suits or other proceedings or actions ofany kind whatsoever, including attorney fees incurred, arising from orconnected with a breach of any of the representations contained in Section 16of this Agreement

 

## **18.          Representations by MIDWEST**.

 

**(a)           CooperativeStatus**.  ** **MIDWESTis a grower-owned agricultural cooperative which is organized and operated soas to adhere to the provisions of Section 15(a) of the Agricultural MarketingAct (12 U.S.C. Sec. 1141j(a)), as amended, and the Capper-Volstead Act of 1922(7. U.S.C., Sec. 291, 292).

 

**(b)           MemberAgreements**.  **  **MIDWESTrepresents that all other Members either have or will be required to enter intoidentical pool marketing agreements for the marketing of the Co-Products.

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# **19.          Complete Agreement.** The parties agree that there are no oral or other conditions, promises,representations or inducements at variance with any of the terms hereof andthat this contract represents the voluntary and clear understanding of bothparties fully and completely.

 

# **20.          Assignment.** Neither PROCESSOR nor MIDWEST may assign this Agreement without theprior written consent of the other party.

 

# **21.          Waiver of Breach.** No waiver of any of the agreements or provisions contained in this Agreementshall be construed to be a waiver of any subsequent breach of the same or ofany other provision of this Agreement .

 

# **22.          Notices.** Whenever notice is required by the terms hereof, it shall be given inwriting by delivery or by certified or registered mail to the other party atthe address found at the end of this Agreement or such other address as a partyshall designate by appropriate notice. If notice is given by mail, it shall be effective two (2) days aftermailing.

 

# **23.          Construction of Terms of Agreement;Modification.**  The language in all parts of this Agreementshall be constructed as a whole according to its fair meaning and not strictlyfor or against any party hereto. Headings in this Agreement are for convenience only and are not to be construedas a part of this Agreement or as defining, limiting or amplifying theprovisions hereof.  This Agreementcontains the entire agreement between the parties and shall not be modified inany manner except by an instrument in writing executed by the partieshereto.  In the event any terms,covenant or condition herein contained is held to be invalid or void by anycourt of competent jurisdiction, the invalidity of any such term, covenant orcondition shall in no way affect any other term, covenant or condition hereincontained.

 

# **24.          Successors and Assigns.**  Subject to the other provisions of this Agreement, all of the terms,covenants and conditions of this Agreement shall inure to the benefit of andshall bind the parties hereto and their successors and permitted assigns.

 

**                                INWITNESS WHEREOF,**MIDWEST and PROCESSOR have executed this Agreement effective the day and yearfirst above written.

 

FOR MIDWEST:

MIDWEST AGRI–COMMODITIES COMPANY

100 Tamal Plaza, Suite 180

Corte Madera, CA 94925

 

 

 
| By     | /s/ V.C. Hufford |
|--------|------------------|
|   | Its              | President |

 

FOR PROCESSOR:

AMERICAN CRYSTAL SUGAR COMPANY

101 North Third Street

Moorhead, MN 56560

 
| By     | /s/ James J. Horvath |
|--------|----------------------|
|   | Its                  | President and CEO |