Exhibit 10.1


 


Confidential
Treatment Requested.  Confidential
portions of this document have been redacted and have been separately filed
with the Commission.


 


RPMG


 


Renewable
Products Marketing Group, Inc.


 


CORN OIL


MARKETING AGREEMENT WITH

GOLDEN GRAIN ENERGY, LLC.


 

















 


*** Confidential material redacted and filed
separately with the Commission.


 


CORN OIL MARKETING AGREEMENT


 


THIS
CORN OIL MARKETING AGREEMENT  (the “Agreement”) is made and entered into as of the 27th  day of January, 2009 (the “Effective Date”)
by and between RPMG, INC., a Minnesota corporation (“RPMG”) and Golden
Grain Energy, an Iowa LLC (“Producer”), collectively referred to
hereinafter as “Parties” or individually as a “Party”.


 


RECITALS


 


A.                                   RPMG
markets CORN OIL (as hereinafter defined).


 


B.                                     Producer
produces CORN OIL at Producer’s ethanol production facility located at Mason
City, IA (the “Ethanol Facility”).


 


C.                                     The
Parties do desire that RPMG shall market CORN OIL produced at the Ethanol
Facility.


 


NOW,
THEREFORE, in consideration of the foregoing, the mutual promises herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows.


 


AGREEMENT


 


1.                                      Marketing
of Corn Oil.  Producer shall sell to
RPMG, and RPMG shall purchase and market, all of Producer’s production, excluding such production Producer sells directly to the
entities set forth on Schedule 1 attached hereto, of corn oil  produced at the Ethanol Facility, including
any expansion or increase in capacity at the Ethanol Facility.  RPMG shall be the exclusive marketer of corn
oil and Producer shall not, either itself (except as set forth in the foregoing
sentence) or through any affiliate or any third party, market any corn oil
during the term of this Agreement. 
Except as otherwise provided in this Agreement, RPMG shall provide
management resources to market and sell corn oil, including the management of
logistics and collection.


 


2.                                      Payments
to Producer; Commissions; Audit Rights


 


(a)                                  Payments
to Producer.  Subject to the other
terms of this Agreement, RPMG shall pay Producer for its corn oil in accordance
with the terms set forth in Exhibit A.  RPMG shall use commercially reasonable
efforts to make such payments to Producer on an average net ten (10) days.


 


(b)                                 RPMG
Commission.  Producer shall pay RPMG
commissions as follows: $*** for each pound of corn oil sold to third party end
purchasers (each, an “End Customer”). 
Parties shall from time to time, or upon the reasonable request of RPMG,
negotiate in good faith adjustments to the foregoing commissions to reflect
prevailing commissions being paid to marketers of corn oil produced by third
parties in the United States.


 


2

















 


(c)                                  Accessorial
Charges.  As set forth on Exhibit A,
RPMG shall be responsible for payment of Accessorial Charges (as defined in Exhibit A)
to third parties; provided, however, that Producer agrees (i) to promptly
reimburse RPMG for such Accessorial Charges upon submission to Producer of an
invoice itemizing such Accessorial Charges, and (ii) that RPMG may deduct
and setoff the Accessorial Charges from and against payments due to Producer by
RPMG.


 


(d)                                 Late
Payments.  Overdue amounts not
disputed in good faith payable to either Party shall be subject to late payment
fees equal to interest accrued on such amounts at the maximum rate permitted by
applicable law.


 


(e)                                  No
Warranty as to Prices.  RPMG shall
market Producer’s corn oil using commercially reasonable efforts and the same
standards it uses to market the corn oil production of third parties for whom
RPMG provides corn oil marketing services. 
RPMG shall endeavor to (i) maximize the corn oil price and minimize
freight and other costs relevant to corn oil sales and (ii) achieve the
best available return to Producer, subject to relevant market conditions.  PRODUCER ACKNOWLEDGES THAT RPMG MAKES NO
REPRESENTATIONS, GUARANTEES OR WARRANTIES OF ANY NATURE WHATSOEVER AS TO THE
PRICES AT WHICH IT SHALL BE ABLE TO SELL PRODUCER’S CORN OIL TO END CUSTOMERS.


 


(f)                                    Waiver
of Certain Claims.  Producer
acknowledges (i) that RPMG shall use its reasonable judgment in making
decisions related to the quantity and price of corn oil marketed under this
Agreement, in light of varying freight and other costs, and (ii) that RPMG
may sell and market corn oil of third parties into the same markets where RPMG
sells Producer’s corn oil.  Producer
waives any claim of conflict of interest against RPMG or for failure by RPMG to
maximize the economic benefits of this Agreement for Producer in light of the
foregoing.


 


(g)                                 Audit
Rights.  Within ninety (90) days
following the end of RPMG’s fiscal year end, Producer shall give written notice
to RPMG of its desire to conduct an audit of its corn oil payments to Producer
for the preceding year and RPMG shall provide reasonable access to all
financial information necessary to complete such audit. The audit shall be
conducted by an accounting firm agreeable to both Parties and shall be
completed within forty-five (45) days after the completion of RPMG’s annual
audit, but no later than one hundred and fifty (150) days following RPMG’s
fiscal year end.  The cost of the audit
shall be the responsibility of Producer unless the auditor determines that RPMG
underpaid Producer by more than three percent (3%) for the period audited, in
which case RPMG shall pay the cost of the audit.  If the auditor determines that RPMG underpaid
Producer, RPMG shall promptly pay such underpayment to Producer and if the
auditor determines that RPMG overpaid Producer, Producer shall promptly pay the
overpayment to RPMG.  The determination
of the auditor shall be final and binding on both Parties.  If Producer fails to exercise its right to
audit as provided in this Section 2(g) for any year, it shall be
deemed to have waived any rights to dispute payments made to Producer for that
year.


 


3

















 


3.                                      Scheduled
Production


 


(a)                                  Notice
of First Delivery.  RPMG may begin to
market Producer’s corn oil upon the Effective Date.  If Producer is not producing corn oil as of
the Effective Date, Producer shall, on the Effective Date, provide RPMG with
the projected date on which Producer will first deliver corn oil produced at
the Ethanol Facility to RPMG (the “Projected Date of First Delivery”).  Producer shall notify RPMG as soon as
possible of any revisions to the Projected Date of First Delivery.


 


(b)                                 Notices
of Scheduled Production.  Beginning
on the Effective Date, and on the 1st and 15th of each month
thereafter, Producer shall provide to
RPMG a rolling best estimate of production and inventory by corn oil product
for that month and each of the following twelve (12) months.  Beginning on the Effective Date and
each Wednesday thereafter, Producer shall provide to RPMG a best estimate of
production and inventory by corn oil product for that day and the next seven
days.


 


(c)                                  Additional
Production Notices.  Producer shall
notify RPMG of anticipated production downtime or disruption in corn oil
availability at least one (1) month in advance of such outage.  Producer
shall timely inform RPMG of daily inventories, plant shutdowns, daily
production projections, and any other information (i) to facilitate RPMG’s
performance of the Agreement or (ii) that may have a material adverse
effect on RPMG’s ability to perform the Agreement.


 


(d)                                 RPMG
Entitled to Rely on Producer Estimates and Notices.  RPMG, in marketing and selling Producer’s
corn oil, is entitled to rely upon the production estimates and other notices
provided by Producer, including without limitation those described in Sections
3(a), (b), and (c).  Producer’s failure to provide
accurate information to facilitate RPMG’s performance of the Agreement may
negatively impact RPMG’s ability to market and sell corn oil at prevailing
prices.  Producer’s failure to provide
accurate information to facilitate RPMG’s performance of the Agreement may be
deemed by RPMG, in its sole but reasonable discretion, a material breach of the
Agreement by Producer.


 


(e)                                  Sale
Commitments.  From time to time
during the term of this Agreement and in order to maximize the sales price of
corn oil, RPMG may enter sales contracts or other agreements with End Customers
for future delivery of corn oil.  In the
event Producer fails to produce corn oil in accordance with the information
provided to RPMG under Sections 3(a), (b), or (c) above for reasons other
than Force Majeure (as defined in Section 10 herein), and as a result RPMG
is required to purchase corn oil from third parties to meet previous corn oil
sale commitments that are based upon such information, RPMG may charge Producer
the amount (if any) that the price of such replacement corn oil exceeded the
price that RPMG would have paid to Producer for the applicable corn oil under
this Agreement.


 


4.                                      Logistics
and Transportation


 


(a)                                  No
Liens, Title and Risk of Loss.  Producer warrants that corn oil
delivered to RPMG hereunder shall be free and clear of all liens and
encumbrances of any nature whatsoever other than liens in favor of RPMG.  Title to and risk of loss of each load of
corn oil shall pass to RPMG at the time such load passes across the scale into
rail cars or trucks at the Ethanol Facility (the “Title Transfer Point”).  


 


4

















 


Until such time, Producer shall be deemed to be in
control of and in possession of the corn oil.


 


(b)                                 Loading.  RPMG shall schedule the loading and shipping
of all outbound corn oil purchased hereunder, but all labor and equipment
necessary to load trucks and rail cars and other associated costs shall be
supplied and borne by Producer without charge to RPMG.  Producer shall handle the corn oil in a good
and workmanlike manner in accordance with RPMG’s written requirements and
normal industry practice.  Producer shall
maintain the truck and rail loading facilities in safe operating condition in
accordance with normal industry standards and shall visually inspect all trucks
and rail cars to assure (i) cleanliness so as to avoid contamination, and (ii) that
such trucks and railcars are in a condition suitable for transporting the corn
oil.  RPMG and RPMG’s agents shall have
adequate access to the Ethanol Facility to load Producer’s corn oil on an
industry standard basis that allows RPMG to economically market Producer’s corn
oil. RPMG’s employees shall follow all reasonable safety rules and
procedures promulgated by Producer and provided to RPMG reasonably in advance
and in writing.  Producer shall supply
product description tags, certificates of analysis, bills of lading and/or material
safety data sheets that are applicable to all shipments.  In the event that Producer fails to provide
the labor, equipment and facilities necessary to meet RPMG’s loading schedule,
Producer shall be responsible for all costs and expenses, including without
limitation actual demurrage and wait time, incurred by RPMG resulting from or
arising in connection with Producer’s failure to do so.


 


(c)                                  Transportation
and Certain Transportation Costs. 
RPMG shall perform certain logistics functions for Producer, including
the arranging of rail and truck freight, inventory management, contract
management, bills of lading, and scheduling pick-up appointments.  RPMG shall determine the method of
transporting corn oil to End Customers. 
Notwithstanding any provision to the contrary herein, Producer shall be
solely responsible for any damage to any trucks, railcars, equipment, or
vessels caused by acts or omissions of Producer and its consignees.  All truck freight charges and rail tariff
rate charges shall be billed directly to RPMG and, as set forth in Exhibit A,
be recouped by RPMG from the proceeds of RPMG’s sales of corn oil to End
Customers.  Notwithstanding the
foregoing, rail cars required to transport the corn oil will be leased directly
by Producer.  If requested in writing by
Producer, RPMG will make lease payments for such rail cars on behalf of
Producer, and in such event RPMG shall recoup lease payments from the proceeds
of RPMG’s sales of corn oil to End Customers.


 


(d)                                 Weight.  The quantity of corn oil delivered to RPMG at
the Ethanol Facility shall be established by weight certificates obtained from
Producer’s scales or from such other scales as the Parties shall mutually
agree, which are certified as of the time of weighing and which comply with all
applicable laws, rules and regulations. Producer shall provide RPMG with a
fax/emailed copy of the outbound weight certificates on a daily basis and,
except as otherwise expressly agreed upon, such outbound weight certificates
shall be determinative of the quantity of corn oil for which RPMG is obligated
to pay Producer pursuant to this Agreement.


 


5

















 


(e)                                  Corn
oil Storage at Ethanol Facility.  The
estimated storage capacity of the Ethanol Facility, is as follows:


 


Corn Oil 30,000
gallons


 


5.                                      Specifications;
Quality.


 


(a)                                  Corn
oil Specifications.  Producer
covenants that it shall produce corn oil that, upon delivery to RPMG at the
Ethanol Facility, meets the respective specifications (“Specifications”)
set forth in Exhibit B and such other specifications that may be,
from time-to-time, promulgated by the industry for corn oil.   RPMG shall have the right to test each
shipment of corn oil to ascertain that the Specifications are being met.  If the corn oil provided by Producer to RPMG
is shown, by independent testing or analysis of a representative sample or
samples taken consistent with industry standards, to not meet the
Specifications through no fault of RPMG or any third party engaged by RPMG,
then RPMG may, in its sole discretion, (i) reject such corn oil and
require Producer to promptly replace such non-conforming corn oil with corn oil
that complies with the Specifications, or (ii) accept such corn oil for
marketing and, if necessary, adjust the price to reflect the inferior quality,
as provided in Exhibit A. 
Payment and acceptance of delivery by RPMG shall not waive RPMG’s rights
if corn oil does not comply with the terms of this Agreement, including the
Specifications.


 


(b)                                 Trade
Rules.  This Agreement shall be
governed by the then-current Feed Trade Rules of the National Grain and
Feed Association (the “Trade Rules”), unless otherwise specified.  In the event the Trade Rules and the
terms and conditions of this Agreement conflict, this Agreement shall control.


 


(c)                                  Compliance
With FDA and Other Standards. 
Producer warrants that, unless caused by the negligence or intentional
misconduct of RPMG or a third party engaged by RPMG, corn oil provided by
Producer to RPMG (i) shall not be “adulterated” or “misbranded” within the
meaning of the Federal Food, Drug and Cosmetic Act (the “Act”), (ii) may
lawfully be introduced into interstate commerce under the Act, and (iii) shall
comply with all state and federal laws, rules and regulations (including
without limitation the Trade Rules) including those governing quality, naming
and labeling of bulk product.  If
Producer knows or reasonably suspects that any corn oil produced at the Ethanol
Facility is adulterated or misbranded, or otherwise not in compliance with the
terms of the Agreement, Producer shall immediately so notify RPMG in writing.


 


(d)                                 Regulatory
Seizure.  Should any corn oil
provided by Producer to RPMG hereunder be seized or condemned by any federal or
state department or agency as a result of its failure to conform to any
applicable law, rule or regulation prior to delivery to an End Customer,
such seizure or condemnation shall operate as a rejection by RPMG of the goods
seized or condemned and RPMG shall not be obligated to offer any defense in
connection with such seizure or condemnation. 
When such rejection occurs, RPMG shall deliver written notice to
Producer within a reasonable time of the rejection and identify the deficiency
that resulted in such rejection.  In
addition to other obligations under this Agreement or at law, Producer shall
reimburse RPMG for all out-of-pocket costs reasonably incurred 


 


6

















 


by RPMG in storing, transporting, returning and
disposing of the rejected goods in accordance with this Agreement.


 


(e)                                  Sampling.  Producer shall take one representative origin
sample (pint size) from each lot of the corn oil before it leaves the Ethanol
Facility (each, a “Sample”).  RPMG
shall be entitled to witness the taking of Sample.   Producer shall label Sample to indicate the
applicable corn oil lot numbers, date of shipment, and the truck or railcar
number.    Producer shall send half of
Sample to RPMG promptly upon RPMG’s request. 
Producer may request that RPMG test results be provided to it at any
time after the tests are completed. 
Producer shall retain corn oil Sample for no less than three (3) months
or any longer period required by law RPMG knows or reasonably suspects that any
corn oil produced by Producer at the Ethanol Facility is not in compliance with
the terms of this Agreement, then RPMG may obtain independent laboratory tests
of such corn oil, and, if such corn oil is found not to be in compliance with
the terms of this Agreement, Producer shall, in addition to its other
obligations hereunder, pay all such testing costs.


 


6.                                      Term
and Termination


 


(a)                                  Term.  This Agreement shall have an initial term of
one (1) years, commencing on the Effective Date.  This Agreement shall be automatically
extended for an additional one (1) year term following the end of the
initial term and any renewal term unless either Party gives written notice to
the other of non-extension not less than one hundred and eighty (180) days
before the termination of the initial term or the then-current renewal term.  Golden Grain Energy , at
its sole discretion, has a one time option to cancel this marketing agreement
within 90 days of the original effective date. If Golden Grain Energy does
chose to exercise this option, Golden Grain Energy will remain responsible for
all corn oil sales made for its account prior to Golden Grain issuing its
cancellation notice.


 


(b)                                 Producer
Termination Right.  Producer may
immediately terminate this Agreement upon written notice to RPMG if RPMG fails
on three (3) separate occasions within any 12-month period to purchase
corn oil or to market corn oil under circumstances where such breach or failure
is not excused by this Agreement.


 


(c)                                  RPMG
Termination Right.  RPMG may
immediately terminate this Agreement upon written notice to Producer, if, for
reasons other than a Force Majeure (as defined in Section 10 herein)
event, during any consecutive three (3) months, Producer’s actual
production or inventory of any corn oil product at the Ethanol Facility varies
by twenty percent (20%) or more from the monthly production and inventory
estimates provided by Producer to RPMG pursuant to Section 3(b) hereunder.


 


(d)                                 Termination
for Insolvency.  Either Party may
immediately terminate the Agreement upon written notice to the other Party if
the other Party files a voluntary petition in bankruptcy, has filed against it
an involuntary petition in bankruptcy, makes an assignment for the benefit of
creditors, has a trustee or receiver appointed for any or all of its assets, is
insolvent or fails or is generally


 


7






 


 












 


unable to pay its debts
when due, in each case where such petition, appointment or insolvency is not
dismissed, discharged or remedied, as applicable, within sixty (60) days.


 


7.                                      Indemnification;
Limitation on Liability


 


(a)                                  Producer’s
Indemnification Obligation.  Producer
shall indemnify, defend and hold harmless RPMG and its shareholders, directors,
officers, employees, agents and representatives, from and against any and all
Damage (as defined in Section 7(c) herein) to the extent arising out
of (i) any fraud, negligence or willful misconduct of Producer or any of
its directors/governors, officers, employees, agents, representatives or
contractors or (ii) any breach of this Agreement by Producer.  RPMG shall promptly notify Producer of any
suit, proceeding, action or claim for which Producer may have liability
pursuant to this Section 7(a).


 


(b)                                 RPMG’s
Indemnification Obligation.  RPMG
shall indemnify, defend and hold harmless Producer and its
shareholders/members, directors/governors, officers, employees, agents and
representatives from and against any and all Damages to the extent arising out
of (i) any fraud, negligence or willful misconduct of RPMG or any of its
directors, officers, employees, agents, representatives or contractors or (ii) any
breach of this Agreement by RPMG. 
Producer shall promptly notify RPMG of any suit, proceeding, action or
claim for which Producer may have liability pursuant to this Section 7(b).


 


(c)                                  Definition
of Damages.  As used in this
Agreement, the capitalized term “Damages” means any and all losses, costs,
damages, expenses, obligations, injuries, liabilities, insurance deductibles
and excesses, claims, proceedings, actions, causes of action, demands,
deficiencies, lawsuits, judgments or awards, fines, penalties and interest,
including reasonable attorneys’ fees, but excluding any indirect, incidental,
special, exemplary, consequential or punitive damages.


 


(d)                                 Limitation
on Liability.  NEITHER PARTY MAKES
ANY GUARANTEE, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO
ANY PROFIT, OR OF ANY PARTICULAR ECONOMIC RESULTS FROM TRANSACTIONS
HEREUNDER.  IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR PUNITIVE OR EXEMPLARY DAMAGES OR FOR
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.  EXCEPTING FOR A BREACH OF ITS NONDISCLOSURE
OBLIGATIONS OR PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, RPMG’S
AGGREGATE LIABILITY TO PRODUCER SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY
PRODUCER TO RPMG UNDER THIS AGREEMENT.


 


8.                                      Insurance.  During the term of this Agreement, each
party shall maintain insurance coverage that is standard for a company of its
type and size that is engaged in the production and/or selling of corn
oil.  At a minimum, each party’s
insurance coverage shall include:  (i) comprehensive
general product and public liability insurance, with liability limits of at
least $5 million in the aggregate; (ii) property and casualty insurance
adequately insuring its facilities and its other assets against theft, damage
and destruction 


 


8

















 


on a replacement
cost basis; and (iii) workers’ compensation insurance to the extent
required by law.  RPMG, or Producer, as
the case may be, shall be added as a loss payee under the comprehensive general
product and public liability insurance policy and the property and casualty
insurance policy.  In relation to
insurance requirements on the corn oil leased railcars, (a) the Producer
will be responsible for the liability insurance on the corn oil leased railcars
in the form and amount as required by the railcar lessor’s contract, or at a
minimum in the amounts required by this Article 8 and (b) RPMG will
carry property/physical damage insurance for the corn oil railcars for loss or
destruction, but will not be responsible for the insurance deductible,
maintenances (scheduled or otherwise), including normal wear and tear related
to such corn oil railcars.  The Producer
will be listed as a Loss Payee on RPMG’s Rolling Stock Policy in relation to
the corn oil leased railcars.  A party
shall not change its insurance coverage during the term of this Agreement,
except to increase it or enhance it, without the prior written consent of the
other Party which consent shall not be unreasonably withheld.


 


9.                                      Confidentiality


 


(a)                                  Confidential
Information.  As used in this
Agreement, the capitalized term “Confidential Information” means (i) the
terms and conditions of this Agreement and (ii) any information disclosed
by one Party to the other, including, without limitation, trade secrets,
strategies, marketing and/or development plans, End Customer lists and other
End Customer information, prospective End Customer lists and other prospective
End Customer information, vendor lists and other vendor information, pricing information,
financial information, production or inventory information, and/or other
information with respect to the operation of its business and assets, in
whatever form or medium provided.


 


(b)                                 Nondisclosure.  Each Party shall maintain all Confidential
Information of the other in trust and confidence and shall not without the
prior written consent of the other Party:


 


(i)            disclose,
disseminate or publish Confidential Information to any person or entity without
the prior written consent of the disclosing Party, except to employees of the
receiving Party who have a need to know, who have been informed of the
receiving Party’s obligations hereunder, and who have agreed not to disclose
Confidential Information or to use Confidential Information except as permitted
herein, or


 


(ii)           use
Confidential Information for any purpose other than the performance of its
obligations under the Agreement.


 


(c)                                  Standard
of Care.  The receiving Party shall
protect the Confidential Information of the disclosing Party from inadvertent
disclosure with the same level of care (but in no event less than reasonable
care) with which the receiving Party protects its own Confidential Information
from inadvertent disclosure.


 


(d)                                 Exceptions.  The receiving Party shall have no obligation
under this Agreement to maintain in confidence any information which it can
prove:


 


(i)            is in the
public domain at the time of disclosure or subsequently becomes part of the
public domain through no act or failure to act on the part of the 


 


9

















 


receiving Party or persons or entities to whom the
receiving Party has disclosed such information;


 


(ii)           is in the
possession of the receiving Party prior to the time of disclosure by the
disclosing Party and is not subject to any duty of confidentiality;


 


(iii)          the
receiving Party obtains from any third party not under any obligation to keep
such information confidential; or


 


(iv)          the
receiving Party is compelled to disclose or deliver in response to a law,
regulation, or governmental or court order (to the least extent necessary to
comply with such order), provided that the receiving Party notifies the
disclosing Party promptly after receiving such order to give the disclosing
Party sufficient time to contest such order and/or to seek a protective order.


 


(e)                                  Ownership
of Confidential Information.  All
Confidential Information shall remain the exclusive property of the disclosing
Party.


 


(f)                                    Injunctive
Relief for Breach.  The receiving
Party acknowledges that monetary damages may not be a sufficient remedy for
unauthorized disclosure or use of Confidential Information, and that the
disclosing Party may be entitled, in addition to all other rights or remedies
in law and equity, to obtain injunctive or other equitable relief, without the
necessity of posting bond in connection therewith.


 


10.                               Force
Majeure.  In the event either Party
is unable by Force Majeure (as defined below) to carry out its obligations
under this Agreement, it is agreed that on such Party’s giving notice in
writing, or by telephone and confirmed in writing, to the other Party as soon
as possible after the commencement of such Force Majeure event, the obligations
of the Party giving such notice, so far as and to the extent they are affected
by such Force Majeure, shall be suspended from the commencement of such Force
Majeure and during the remaining period of such Force Majeure, but for no
longer period, and such Force Majeure shall so far as possible be remedied with
all reasonable dispatch; provided, however, the obligation to make payments
then accrued hereunder prior to the occurrence of such Force Majeure shall not
be suspended and Producer shall remain obligated for any loss or expense to the
extent otherwise provided in this Agreement. 
The capitalized term “Force Majeure” as used in this Agreement shall
mean events beyond the reasonable control and without the fault of the Party
claiming Force Majeure, including acts of God, war, riots, insurrections, laws,
proclamations, regulations, strikes of a regional or national nature, acts of
terrorism, sabotage, and acts of any government body.


 


11.                               Dispute
Resolution.  In the event a dispute
arises under this Agreement that cannot be resolved by those with direct
responsibility for the matter in dispute, such dispute shall be resolved by way
of the following process:


 


(a)                                  Senior
management from Producer and from RPMG shall meet to discuss the basis for the
dispute and shall use their best efforts to reach a reasonable resolution to
the dispute.


 


10

















 


(b)                                 If
negotiations pursuant to Section 11(a) are unsuccessful, the matter
shall promptly be submitted by either Party to arbitration in accordance with
NGFA® ARBITRATION OF DISPUTES: The parties to this contract agree that the sole
remedy for resolution of any and all disagreements or disputes arising under or
related to this contract shall be through arbitration proceedings before the
National Grain and Feed Association (NGFA) pursuant to the NGFA® Arbitration
Rules. The decision and award determined through such arbitration shall be
final and binding upon the Buyer and Seller. 
Judgment upon the arbitration award may be entered and enforced in any
court having jurisdiction thereof. (Copies of the NGFA® Arbitration Rules are
available from the National Grain and Feed Association, 1250 Eye Street, N.W., Suite 1003,
Washington, D.C. 20005; Telephone: 202-289-0873; Website: http://www.ngfa.org).
If the Parties reach agreement pertaining to any dispute pursuant to the
procedures set forth in this Section 11, such agreement shall be reduced
to writing, signed by authorized representatives of each Party, and shall be
final and binding upon the Parties.


 


12.          Miscellaneous.


 


(a)                                  Successors
and Assigns; Assignment.  All of the terms, covenants, and
conditions of this Agreement shall be binding upon, and inure to the benefit of
and be enforceable by the Parties and their respective successors, heirs,
executors and permitted assigns.  No
Party may assign its rights, duties or obligations under this Agreement to any
other person or entity without the prior written consent of the other Party,
such consent not to be unreasonably withheld or delayed; notwithstanding the
foregoing, a Party may, without the consent of the other Party, assign its
rights and obligations under this Agreement to (i) its parent, a
subsidiary, or affiliate under common control with the Party or (ii) a
third party acquiring all or substantially all of the assets or business of
such Party.


 


(b)                                 Notices.  Any
notice or other communication required or permitted hereunder shall be in
writing and shall be considered delivered in all respects when delivered by
hand, mailed by first class mail postage prepaid, or sent by facsimile with
delivery confirmed, addressed as follows:


 


To RPMG:             RPMG, Inc.


1157 Valley Park
Drive, Suite 100


Shakopee, MN 55379


Fax: 952-465-3222


 


To Producer:         Walter
Wendland


Golden Grain Energy


1822 43rd St. SW Mason City, Ia.
50401


Fax:
641-421-8457


 


Either Party may, from
time to time, furnish, in writing, to the other Party, notice of a change in
the address and/or fax number(s) to which notices are to be given
hereunder.


 


11

















 


(c)                                  Applicable Law.  This Agreement shall be governed
in all respects by the laws of the State of Minnesota, except with respect to
its choice of law provisions.


 


(d)                                 Severability.  In the event that any provision of
this Agreement becomes or is declared by a court of competent jurisdiction to
be illegal, unenforceable or void, either in whole or in part, this Agreement
shall continue in full force and effect without said provision.


 


(e)                                  No Third Party Beneficiaries.  No provision
of this Agreement is intended, or shall be construed, to be for the benefit of
any third party.


 


(f)                                    Entire Agreement; Amendment.  This Agreement constitutes the
entire understanding and agreement between the Parties with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
understandings and/or agreements, written or oral, regarding the subject matter
of this Agreement.  No amendment or
modification to this Agreement shall be binding unless in writing and signed by
a duly authorized officer of both Parties.


 


(g)                                 Counterparts.  This Agreement may be executed in
counterparts, including facsimile counterparts, each of which shall be deemed
an original but together shall constitute but one and the same instrument.


 


(h)                                 Waiver.  The failure of either Party at any
time to require performance of any provision of the Agreement or to exercise
any right provided for in the Agreement shall not be deemed a waiver of such
provision or right unless made in writing and executed by the Party waiving
such performance or right. No waiver by either Party of any breach of any
provision of the Agreement or of any right provided for in the Agreement shall
be construed as a waiver of any continuing or succeeding breach of such
provision or right or a waiver of the provision or right itself.


 


(i)                                     Independent Contractors. 
The Parties to this Agreement are independent contractors. There is no
relationship of partnership, joint venture, employment, franchise, or agency
between the Parties, and no Party shall make any representation to the
contrary.


 


(j)                                     Additional
Rules of Interpretation.


 


(i)            The words
“include,” “includes” and “including” as used in this Agreement shall be deemed
to be followed by the phrase “without limitation” and shall not be construed to
mean that the examples given are an exclusive list of the topics covered.


 


(ii)           The headings as to contents of particular sections of
this Agreement are inserted for convenience and shall not be construed as part
of the Agreement or as a limitation on the scope of any terms or provisions of
this Agreement.


 


(k)                                  Survival.  The following provisions of this Agreement
shall survive its termination: (i) to the extent of outstanding payment
obligations, Sections 2(a), 2(b), 2(c), and 2(d) and (ii) Sections
2(e), 2(f), 7, 9, 11, and 12.


 


12

















 


IN
WITNESS THEREOF, each of the Parties hereto has caused this Agreement to
be executed by its respective duly authorized representative as of the day and
year first above written.


 


	
   

  	
  RPMG

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Randy Hahn

  
	
   

  	
  Name:

  	
  Randy
  Hahn

  
	
   

  	
  Its
  (title):

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRODUCER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Walter Wendland

  
	
   

  	
  Name:

  	
  Walter
  Wendland

  
	
   

  	
  Its
  (title): 

  	
  President/CEO

  
					



 


13

















 


SCHEDULE
1


 


FEC Solutions, LLC


515-778-3451 
866-302-3309 (fax)


3121
Dean Avenue  Des Moines, Ia  50317


 


FC Stone, LLC


Risk Management Consultant


2829 Westown Parkway, Suite 100


West Des Moines, IA  50266


 


Soy Energy LLC or majority owned subsidiary


PO Box 663


Marcus, IA 51035


 


Renewable
Energy Group®


416
S. Bell Ave


PO
Box 888


Ames,
IA 50010


 

















 


***
Confidential material redacted and filed separately with the Commission.


 


EXHIBIT  A


 


Terms
Relating to Payment and Commission Calculation


 


RPMG shall pay Producer for all Standard-Grade
and Non-Standard Grade  corn oil loaded into railcars and trucks and weighed at the Ethanol Facility for
shipment to End Customers an amount equal to *** percent (***%) of the
estimated F.O.B. Ethanol Facility Price per pound, with RPMG being entitled to
retain its commission, with settlement weights as described in Section 4(d) of
the Agreement. After month-end is completed and any differences will be
reconciled, RPMG will make the final payment to the Producer for corn oil
shipped during the month.


 


“Accessorial Charges”
shall mean charges imposed by third parties for the off-loading, movement and
storage of Producer’s corn oil, including without limitation taxes, tonnage
taxes, hard-to-unload truck or railcar charges/transloading charges, railcar
repair charges, fuel surcharges, storage charges, demurrage charges, product
shrinkage, detention charges, switching, and weighing charges (but excluding
Tariff Freight Costs).  Neither Party
shall be responsible for demurrage charges caused solely by the negligence or
willful misconduct of the other Party.


 


“Delivered Sale Price” shall mean sales dollars
received by RPMG for Producer’s corn oil, inclusive of tariff freight, as
evidenced by RPMG’s invoices to End Customers.


 


“F.O.B. Ethanol Facility Price” shall mean the
F.O.B. sale price equivalent net of applicable deductions and costs as
described in this Agreement, including without limitation Accessorial Charges
and Tariff Freight Costs (or, if applicable, the Delivered Sales Price net of
applicable deductions and costs as described in this Agreement, including
without limitation Accessorial Charges and Tariff Freight Costs) that RPMG
invoices End Customers.


 


“Tariff Freight Costs” shall mean freight and
related costs incurred by RPMG to transport Producer’s corn oil.


 


“Standard-Grade” shall mean corn oil that meet
the Specifications set forth in this Agreement.


 


“Non-Standard-Grade” shall mean corn oil that
fail to meet the Specifications set forth in this Agreement, but which RPMG
nonetheless accepts for marketing under this Agreement.


 

















 


***
Confidential material redacted and filed separately with the Commission.


 


EXHIBIT
B


 


Corn
Oil Specifications


 


Producer covenants that all corn oil shall, upon
delivery to RPMG at the Ethanol Facility, conform to the following
Specification:


 




	
  Component

  	
   

  	
  Maximum %

  	
   

  	
  Minimum %

  	
   

  
	
  Moisture; wt%

  	
   

  	
  ***

  	
  %

  	
   

  	
   

  
	
  Impurities; wt%

  	
   

  	
  ***

  	
  %

  	
   

  	
   

  
	
  Unsaponafiables; wt% 

  	
   

  	
  *** 

  	
  % 

  	
   

  	
   

  
	
  FFA; wt%

  	
   

  	
  ***

  	
  %

  	
   

  	
   

  
	
  Iodine Value

  	
   

  	
   

  	
   

  	
  ***