Distillers Grains Marketing Agreement

Exhibit 10.1 DISTILLER' S GRAINS MARKETING AGREEMENT THIS DISTILLER' S GRAINS AGREEMENT (this " Agreement" ), made and entered into this 9 th day of August, 2004, by and among Amaizing Energy, LLC, an Iowa limited liability company (" AE" ), and United Bio Energy Ingredients, LLC, a Kansas limited liability company (" UBE" ). WITNESSETH: WHEREAS, AE desires to sell and UBE desires to buy all the dried distiller' s grains (" DDG" ) and wet distiller' s grains (" WDG" ) (collectively the " Distiller' s Grains" ) produced at AE' s ethanol plant located at Denison, Iowa (the " Plant" ); WHEREAS, the parties desire to purchase and sell such assets, and receive and provide such services, in accordance with the fees, price formula, payment, delivery and other terms set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and conditions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, it is hereby agreed: 1. COMMITMENT AND TERM . Subject to the terms of this Agreement, AE hereby agrees to sell, and UBE hereby agrees to purchase, all Distiller' s Grains produced at the Plant. The initial term of this Agreement shall be for two (2) years, commencing on the date that the Plant begins operations to produce ethanol. The parties shall execute a memorandum setting forth the actual date of commencement of the term. This Agreement shall be automatically renewed for successive one (1) year terms thereafter unless either party gives written notice to the other party of its election not to renew, not later than ninety (90) days prior to the expiration of the initial term of the then current renewal term, as the case may be. 2. PRICE AND PAYMENT . A. PRICE . 1. DDG . UBE agrees to pay AE for all Dry Distiller' s Grains removed by UBE from the Plant a price equal to *** of the F.O.B. Plant price charged by UBE to its customers. 2. WDG . UBE agrees to pay AE for all Wet Distiller' s Grains removed by UBE from the Plant a price equal to *** of the F.O.B. Plant Price charged by UBE to its customers.For purposes of this provision, the F.O.B. Plant price shall be the actual sales price, less all costs incurred by UBE in delivering the Distiller' s Grains to its customers, whether incurred prior to or during the term of this Agreement. * Portions omitted pursuant to a request for confidential treatment and filed separately with the SEC.


B. PAYMENT . On a daily basis, Weekends and Holidays excluded, AE shall provide UBE with certified weight certificates for the previous day' s shipments of Distiller' s Grains. UBE shall pay AE the F.O.B. Plant Price defined in paragraph 2.A. above, for all shipments in each one week shipment period (Sunday through Saturday) is received on or before the second following Friday of such one week shipment period. UBE agrees to maintain accurate sales records and to provide such records to AE upon request. AE shall have the right to audit UBE' s sales invoices at any time during normal business hours at the corporate office of UBE. C. BEST EFFORTS . UBE agrees to use its best efforts to achieve the highest resale price of Distiller' s rains available under prevailing market conditions as judged by UBE. AE' s sole and exclusive remedy for breach of UBE' s obligations hereunder shall be to terminate this Agreement. D. COLLECTION . UBE shall be responsible for all customer billing and account servicing, including, but not limited to, the collection of amounts owed UBE by its customers, shall bear all costs associated with such billing and collection activities, and shall assume all losses due to failure of its customers to pay their account. E. FUTURE SALES BY UBE . UBE shall not contract for the sale of Distiller' s Grains, to its customers, more than one hundred eighty (180) day sin advance, unless AE explicitly approves the price and terms of any such contract and provides notice of such approval of UBE. UBE will advise AE weekly and update AE monthly on all outstanding contractual obligations, and the terms thereof. F. ON-SITE MERCHANDISER . In order to assist in the development of the Plant' s capabilities or the sale of Distiller' s Grains, UBE will place an employee of UBE at the Plant during the term of this Agreement. 3. FEES AND EXPENSES . Unless otherwise specifically provided for herein, and to the extent not already included in the price of the Distiller' s Grains, AE shall be responsible for any and all fees and expenses, including but not limited to fees assessed by any State or other regulatory agency, incurred or assessed on any Distiller' s Grains, whether for licensing, dues, branding, packaging, inspecting, or otherwise. AE shall, as a result of its responsibility for such expenses, retain all rights to any name, branding, and packing of the Distiller' s Grains upon termination of this Agreement. 4. DELIVERY AND TITLE A. PLACE . The place of delivery for all Distiller' s Grains purchased by UBE pursuant to this Agreement shall be F.O.B. Plant. UBE and its agents shall be given access to the Plant in a manner and at all times reasonably necessary and convenient for UBE to take delivery as provided herein. UBE shall schedule the loading and shipping of all Distiller' s Grains purchased hereunder, whether shipped by truck or rail. All labor and equipment necessary to load or unload trucks or rail cars shall be supplied by AE without charge to UBE. The parties agree to handle the Distiller' s Grains in a good and workmanlike manner in


accordance with the other' s reasonable requirements and in accordance with normal industry practice. AE shall maintain the truck/rail loading facilities in safe operating condition in accordance with normal industry standards. B. STORAGE . AE shall provide storage space for not les than 10 (10) full days combined production of WDG and DDG, based on normal operating capacity. C. REMOVAL . UBE warrants and agrees to use its best efforts to remove Distiller' s Grains before the aforementioned storage limits are exceeded or, if later, three (3) days after notice from AE that the Plant' s operations are adversely affected by such storage. AE shall be responsible at all times for the quantity, quality and condition of any Distiller' s Grains in storage at the Plant. D. LOADING AND UNLOADING SCHEDULE . UBE shall give to AE a schedule of quantities of Distiller' s Grains to be removed by truck and rail respectively with sufficient advance notice reasonably to allow AE to provide the required services. AE shall provide the labor, equipment and facilities necessary to meet UBE' s loading schedule and AE shall be responsible for UBE' s actual costs or damages resulting from AE' s failure to do so. UBE shall order and supply trucks as scheduled for truck shipments. All freight charges shall be the responsibility of UBE and shall be billed directly to UBE. Demurrage charges will be for the account of UBE if UBE fails to provide railcars in accordance with the production schedule provided to AE. Demurrage charges will be for the account of AE if AE fails to load railcars in accordance with said schedule. E. PRODUCTION SCHEDULE . 1. UBE shall provide loading orders as necessary to permit AE to maintain its usual production schedule, provided, however, that UBE shall not be responsible for failure to schedule removal of Distiller' s Grains unless AE shall have provided to UBE production schedules as follows: At least five (5) days prior to the beginning of each calendar month during the term hereof, AE shall provide to UBE a tentative schedule for production in the next calendar month. On Wednesday of each week during the term of this Agreement, AE shall provide to UBE a schedule for actual production for the following production week (Monday though Sunday). AE shall inform UBE daily of inventory and production status by 8:30 a.m. CDT. 2. NOTICE . For purpose of this paragraph, notification will be sufficient if made by facsimile as follows: If to UBE for Distiller' s Grains, to the attention of Randy Ives, Facsimile number 316-796-0944, Email address: randy.ives@unitedbioenergy.com andIf to AE, the attention of , Facsimile number .


Or to such other representatives of UBE and AE as they may designate to the other in writing. F. TITLE . Title and risk of loss shall pass to UBE at the point in time when loading the Distiller' s Grains into trucks or rail cars has been completed and delivery to UBE of the bill of lading for each such shipment. G. RAIL CAR LEASES . UBE shall be responsible for estimating the number of rail car leases required to handle the transportation of the Distiller' s Grains and for negotiating the terms of and executing such rail car leases, which shall be place in UBE' s name. AE shall reimburse UBE for any reasonable expenses incurred by UBE associated with such rail car leases, whether incurred prior to or during the term of this Agreement, to the extent such expenses are not already accounted for in the price of the Ethanol. H. RAIL CONTRACTS . UBE shall negotiate, in consultation with AE, the terms of rail contracts and rates on behalf of AE and AE shall approve and execute each such contract, which shall be placed in the sole name of AE. 5. QUANTITY AND WEIGHTS . A. PRODUCTION AMOUNT . It is understood that total production amount of Distiller' s Grains shall be determined by AE' s production schedule and that no warranty or representation has been made by AE as to the exact quantities or timing of Distiller' s Grains to be produced pursuant to this Agreement. B. ESTIMATE . The estimated production of Distiller' s Grains at the Plant by AE, to be sold to UBE, is approximately eleven thousand (11,000) tons of Distiller' s Grains per month on a dry matter basis, and AE shall use its best efforts to produce such amount of Distiller' s Grains. C. SCALES . The quantity of Distiller' s Grains delivered to UBE from the Plant shall be established by weight certificates, obtained from scales which are certified as of the time of loading and which comply with all applicable laws, rules and regulations. In the case of rail shipments, the first official railroad weights will govern establishment of said quantities. These outbound weight certificates shall be determinative of the quantity of the Distiller' s Grains for which UBE is obligated to pay pursuant to paragraph 2 above. D. RAIL CARS . All rail cars for Distiller' s Grains shall be grain hopper cars. AE agrees that such cars for Distiller' s Grains shall be loaded to full visible capacity at the Plant. If not loaded to full visible capacity, AE shall pay in full the portion of freight charges allocable to the unused capacity of the car. It is agreed and understood that all railcars, when not loaded to full visible capacity, shall be defined as having a light weight. 6. QUALITY .


A. STANDARDS . AE understands that UBE intends to sell the Distiller' s Grains purchased from AE as a primary animal feed ingredient and that the same are subject to minimum quality standards for such use and each shall be of merchantable quality. AE warrants that the Distiller' s Grains produced by the Plant and delivered to UBE shall be acceptable under current industry standards in the feed trade industry and that at the time of ...