Exhibit 10.7


 


AMENDED AND RESTATED


CORN SUPPLY AGREEMENT


 


THIS AMENDED AND RESTATED CORN
SUPPLY AGREEMENT, is made and entered into effective as of September 1,
2009 by and between GOLDEN GROWERS COOPERATIVE,
a Minnesota cooperative association (“the
Cooperative”), and CARGILL, INCORPORATED
(“Cargill”).


 


WHEREAS, the Cooperative
has completed a reorganization by which it has changed its domicile from North
Dakota to Minnesota, and in connection therewith has converted its operation to
be governed by Minnesota Statutes Chapter 308B (the “Conversion”);


 


WHEREAS, the Cooperative
continues to own a 49% interest in ProGold Limited Liability Company, a
Minnesota limited liability company (“ProGold”);


 


WHEREAS, ProGold has leased
its corn wet milling facility located in Wahpeton, North Dakota (the “Facility”)
to Cargill by lease agreement dated effective January 1, 2008 (the “Lease
Agreement”);


 


WHEREAS, Cargill desires to
have access to and receive an adequate supply of corn at the Facility;


 


WHEREAS, the Cooperative
desires to facilitate the lease of the Facility to Cargill by facilitating the
supply of corn to Cargill at the Facility pursuant to the terms and conditions
of this Agreement;


 


WHEREAS, there are currently
15,458,987 of the Cooperative’s units outstanding and held by the Cooperative’s
members;


 


WHEREAS, the Cooperative
intends to meet its delivery obligations hereunder through delivery of corn by
its member producers, or directly by the Cooperative to the extent of the
delivery obligations of any member producer who fails to fulfill their
obligation to the Cooperative to deliver corn; and


 


WHEREAS, in connection with
the Conversion, the parties desire to amend and restate the Corn Supply
Agreement dated January 1, 2008 (the “2008 Corn Supply Agreement”), as
provided herein.


 


NOW, THEREFORE, in consideration
of the foregoing and the mutual terms and conditions, Cargill and the
Cooperative agree as follows:


 


1.                                      COMMITMENT
TO SELL AND DELIVER CORN.  The
Cooperative hereby agrees to sell, and Cargill agrees to purchase, the
following quantities of corn during the term of this Agreement, which corn will
either be delivered on behalf of the Cooperative by its members or their
agents, or by the Cooperative or its agents, to the extent of the delivery
obligations of any member who fails to fulfill its obligation to the
Cooperative to deliver corn:


 

















 


(a)                                  5,152,996 bushels of corn for the period of September 1, 2009 through December 31,
2009 (the “Transition Period”); and


 


(b)                                  One bushel of corn annually for each outstanding unit of the Cooperative held
by the Cooperative’s members at the end of such period, for each 12-month
period beginning on January 1, 2010 and ending on December 31, 2017
(8 annual delivery periods).


 


If this Agreement is extended
beyond its initial term, then the quantity of corn that the Cooperative shall
sell and deliver to Cargill and Cargill shall purchase under this Agreement
during such extended term shall be determined pro rata based on an annual
obligation of one bushel of corn for each unit of
the Cooperative held by the Cooperative’s members at the end of such period.


 


2.                                      DELIVERY OF
CORN.  The Cooperative shall cause to be
delivered by its members, or deliver on their behalf, the corn committed to
Cargill under Section l as follows:


 


(a)                                  Transition
Period Deliveries.  The corn to be
delivered during the Transition Period shall be delivered by the Cooperative on
behalf of its members.  The Cooperative
hereby appoints Cargill as the Cooperative’s agent, and Cargill hereby accepts
such appointment, to purchase and arrange for delivery of said corn on behalf
of the Cooperative.  The cost incurred by
Cargill to purchase said corn shall be offset against the payment to be made by
Cargill to the Cooperative for the corn pursuant to Section 4 hereof, such
that no payment shall be due by either party. 
The parties have mutually agreed that no fee will be charged by Cargill
for services related to procuring corn during the Transition Period.


 


(b)                                  Direct
Deliveries by Member Producers of the Cooperative.  The amount of corn committed to Cargill under
Section l(b) shall be delivered to Cargill at the Facility by members
of the Cooperative or their agents, in fulfillment of such member’s delivery
obligation to the Cooperative, whether such obligation is fulfilled by the
member through “Method A” or through “Method B” described in the Grain Services
Agreement between Cargill and the Cooperative of even date herewith (“Grain
Services Agreement”).


 


(c)                                  Delivery
Timing and Procedures.            The Cooperative will deliver the corn committed to
Cargill under Section 1 of this Agreement during the delivery period
indicated without further notice. 
Delivery of all corn committed to Cargill under this Agreement shall be
made annually.  Deliveries of the
quantities of corn may occur at any time during the year. Except as otherwise
provided for herein, the Cooperative shall be deemed to have delivered the corn
committed to Cargill under this Agreement upon the delivery of corn by members
of the Cooperative or their agents, at the Facility (or at another location
mutually agreed upon by Cargill and the member or agent) in fulfillment of such
member’s delivery obligation to the Cooperative, whether such obligation is
fulfilled by Method A or Method B, or delivery made by the Cooperative or its
agents, to the extent of the delivery obligations of any member who fails to
fulfill its delivery obligation.  Cargill
shall provide the Cooperative weekly reports of all corn credited against the Cooperative’s
delivery obligations under this Agreement. 
All costs and risk of loss prior to delivery of the corn to Cargill
shall not be the responsibility of Cargill, unless otherwise agreed to by
Cargill and the Cooperative’s member.


 


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3.                                      ACCEPTANCE
OF CORN; PRODUCT QUALITY STANDARDS. 
The quality of corn delivered shall be determined at the time and place
of delivery.  Cargill’s weights and
grades shall govern all deliveries under this Agreement.  All corn delivered by the Cooperative, or its
members, to Cargill shall be (a) certified to be of U.S. origin, of
merchantable quality, unadulterated, and unrestricted from movement in
interstate commerce within the meaning of the federal Food, Drug and Cosmetics
Act, Environmental Protection Agency tolerances, the U.S. Grain Standards Act
and applicable state law, and (b) shall be of such grade, shall meet such
specifications, and shall be subject to such allowances, deductions and
premiums, as may from time to time be reasonably determined by Cargill. Corn of
substandard quality, as reasonably determined by Cargill, shall be either (a) rejected
and returned to the Cooperative, with all costs relating to the rejection and
return charged to the Cooperative; or (b) accepted with Cargill’s scale
discounts and allowances made and charged against the Cooperative because of
the inferior grade, quality or condition at the time of delivery.  Cargill may credit the Cooperative for
certain premiums to be paid on the basis of quality standards which may from time
to time be reasonably established by Cargill. 
The rejection of corn tendered for delivery under this Agreement shall
not release the Cooperative from the obligation to deliver the quantity of corn
required under this Agreement.  Cargill
agrees to use customary and accepted grading standards consistent with its
requirements for corn used in its wet milling process on corn delivered by the
Cooperative.  The Cooperative agrees to
observe any rules and regulations and to accept the grading reasonably
established by Cargill.  The Cooperative
agrees that the risk of loss for the corn shall remain with the Cooperative
until the corn is delivered to and accepted by Cargill pursuant to this
Agreement.  Cargill shall be deemed to
have accepted the corn delivered hereunder upon its unload at Cargill’s
receiving site.


 


4.                                      PURCHASE
TERMS AND PAYMENT.


 


(a)                                  Cargill
Payment.


 


(1)                                  The price per bushel
of all corn delivered to Cargill under this
Agreement through Method A shall be the contract price agreed to between
a member and Cargill, or in the absence of such a contract, the market price
per bushel at the delivery location on the day on which the corn is delivered
to and accepted by Cargill, less applicable discounts and inspection fees.


 


(2)                                  The price per bushel
of all corn delivered to Cargill by the Cooperative under Method B shall be
equal to the price per bushel paid by Cargill to acquire said corn as the
Cooperative’s agent as set forth in the Grain Services Agreement.


 


(3)                                  On or within one (1) business day following Cooperative issuing checks
to Growers for a Method A delivery, but in no event later than seven (7) days
following delivery, or as soon thereafter if prevented from doing so by
equipment failure or an event of Force Majeure, Cargill shall wire transfer
100% of the purchase price for all corn delivered to Cargill under Method A to
a bank account designated from time to time by the Cooperative.  The purchase price for Method B corn shall be
offset against the payment to be 


 


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made by the Cooperative to Cargill for the cost of
Cargill purchasing said corn as the agent for the Cooperative under the Grain
Services Agreement, such that no payment shall be due by either party with
respect to the Method B corn.


 


(b)                                  Other Terms.  The terms and conditions of Cargill’s
standard corn purchase contract then in effect and which are consistent with
industry standards and practices shall govern all purchases of corn by Cargill
hereunder, except those that are inconsistent with the express provisions of
this Agreement.


 


5.                                      TERM AND
TERMINATION.


 


(a)                                  Term.  The initial term of this Agreement shall
commence on the date hereof and shall continue through December 31, 2017
(the “Initial Term”), subject to the termination provision below.  At the end of the Initial Term, this
Agreement shall terminate without further notice, unless the term of the Lease
Agreement is renewed or extended, in which case the term of this Agreement shall be renewed or extended for the same period of time.


 


(b)                                  Termination.  If the term of the Lease Agreement is
terminated for any reason during the Initial Term of this Agreement or any
renewal term thereof, this Agreement shall automatically terminate, without
notice.  The Cooperative may terminate
this Agreement, for any reasons, upon 90 days written notice to Cargill.


 


(c)                                  Effect of
Termination.  Upon termination
of this Agreement, all obligations of the Cooperative to sell and deliver corn
to Cargill shall cease, regardless of whether the Cooperative has delivered a
pro rata quantity of the corn committed for the period, up to the termination
date.  Provided, however, that the rights
and obligations of the parties with respect to corn delivered to Cargill by the
Cooperative prior to such termination date shall continue and be unaffected by
the termination.


 


6.                                      FORCE MAJEURE.


 


In case of fire, explosions,
interruption of power, strikes or other labor disturbances, lack of
transportation facilities, shortage of labor or supplies, floods, action of the
elements, riot, interference of civil or military authorities, enactment of
legislation or any unavoidable casualty or cause beyond the control of Cargill
affecting the conduct of Cargill’s business at the Facility to the extent of
preventing or unreasonably restricting the receiving, handling, production,
marketing, or other operations at the Facility, Cargill shall be excused from
performance during the period that Cargill’s business or operations are so
affected. Cargill in its judgment may, during such period, accept such portion
of corn as Cargill has informed the Cooperative it can economically
handle.  Cargill shall give written
notice to the Cooperative of its inability to perform in the specific cause or causes for the nonperformance.  In
any event, Cargill shall pay for all corn it accepts pursuant to this
Agreement.


 


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7.                                      MISCELLANEOUS
PROVISIONS.


 


(a)                                  Assignment.  Neither The Cooperative nor Cargill may
assign this Agreement without the prior written consent of the other party.


 


(b)                                  Waiver of
Breach.  No waiver of a breach of any of the
agreements or provisions contained in this Agreement shall be construed to be a
waiver of any subsequent breach of the same or of any other provision of this
Agreement.


 


(c)                                  Notices.  Whenever notice is required by the terms
hereof, it shall be given in writing by facsimile,
delivery or by certified or registered mail addressed to the other party at
address noted in the caption of this Agreement or such other address as a party
shall designate by appropriate notice. 
If notice is given by mail, it shall be effective five (5) days
after mailing.


 


(d)                                  Construction
of Terms of Agreement; Modification. 
The language in all parts of this Agreement shall be constructed as a
whole according to its fair meaning and not strictly for or against any party
hereto.  Headings in this Agreement are
for convenience only and are not construed as a part of this Agreement or in
any defining, limiting or amplifying the provisions hereof. This Agreement
contains the entire agreement, and supersedes and replaces any prior agreements
(either written or oral), between the parties with respect to the subject
matter hereof including, but not limited to, the 2008 Corn Supply Agreement.  This Agreement shall not be modified in any
manner except by an instrument in writing executed by the parties hereto.  In the event any term, covenant or condition
herein contained is held to be invalid or void by any court of competent
jurisdiction, the invalidity of any such term, covenant or condition shall in
no way affect any other term, covenant or condition herein contained.


 


(e)                                  Successors
and Assigns.  Subject to the
other provision of this Agreement, all of the terms, covenants and conditions
of this Agreement shall inure to the benefit of and shall bind the parties
hereto and their permitted successors and assigns.


 


(f)                                    Dispute
Resolution.  The parties agree
that the sole remedy for resolution of all disagreements or disputes between
the parties arising under this Agreement shall be arbitration proceedings under
NGFA Arbitration Rules.  The decision and
award determined by such arbitration shall be final and binding upon both
parties.


 


IN WITNESS
WHEREOF, Cargill and the Cooperative have executed this Agreement effective
the day and year first above written.


 


	
  GOLDEN GROWERS COOPERATIVE

  	
   

  	
  CARGILL, INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Mark Dillon

  	
   

  	
   

  	
  /s/ Richard A. Geurts

  
	
  By

  	
  Mark Dillon

  	
   

  	
  By

  	
  Richard A. Geurts

  
	
  Its

  	
  Executive Vice President

  	
   

  	
  Its

  	
  Assistant Vice President

  



 


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