PRODUCT MARKETING AGREEMENT

Exhibit 10.1

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

PRODUCT MARKETING AGREEMENT

THIS PRODUCT MARKETING AGREEMENT (the “Agreement”) is entered into this September 21, 2010, with an effective date as stipulated in Section 1 below, by and between Archer-Daniels-Midland Company, a Delaware corporation with its principal place of business in Decatur, Illinois (“ADM”), and Western Iowa Energy, LLC, an Iowa limited liability company with its principal place of business in Wall Lake, Iowa (“WIE”).

BACKGROUND

WHEREAS, ADM has knowledge of the soybean crushing industry in the United States, and has experience related to the marketing, sales, and distribution of renewable fuels; and

WHEREAS, WIE and ADM believe that it would be in their mutual best interests for ADM to purchase biodiesel, glycerin, fatty acids and soapstock (collectively, the “Products”) produced by WIE at its production facilities owned, leased or otherwise controlled by WIE in Wall Lake, IA (the “WIE Production Facilities”) for purposes of ADM marketing, selling, and distributing the Products;

WHEREAS, WIE and ADM desire to enter into this Agreement, for purposes of setting out the terms and conditions of the business arrangement; and

WHEREAS, WIE and ADM are simultaneously entering into a Feedstock Agreement and Services Agreement.

NOW, THEREFORE, the parties to this Agreement hereby covenant and agree as follows:

AGREEMENT

1.  TERM. This Agreement shall commence on the first day of the month of which production of Products begins at the WIE Production Facilities located in Wall Lake, Iowa (the “Effective Date”) and shall continue in force for one year unless terminated by one of the following events: (i) upon thirty (30) days written notice by either party; (ii) the insolvency of the other party; (iii) the assignment by the other party for the benefit of creditors; (iv) the filing of a voluntary or involuntary bankruptcy, judicial liquidation, or reorganization petition by or against the other party or the suspension of check/note clearance privilege; (v) the appointment of a receiver, liquidator or judicial administrator, or a trustee for either party, of any part or interest of its business; (vi) the failure of either party to vacate, set aside or have dismissed any insolvency proceeding under any law governing within sixty (60) days from the date of the commencement of any such proceeding; (vii) or the dissolution of the entity of the other party for any cause whatsoever.

2.  TERMINATION. In addition to the termination events identified in Section 1, this Agreement may be terminated under the circumstances set out below:

(a)  Termination for Intentional Misconduct. If either party engages in intentional misconduct reasonably likely to result in significant adverse consequences to the other party, the party harmed or likely to be harmed by the intentional misconduct may terminate this Agreement immediately, upon written notice to the party engaging in the intentional misconduct.

(b)  Termination for Uncured Breach. If one of the parties breaches the terms of this Agreement, the other party may give the breaching party a notice in writing which specifically sets out the nature and extent of the breach, and the steps that must be taken to cure the breach. After receiving the written notice, the breaching party will then have thirty (30) days to cure the breach, if the breach does not involve a failure to make any payments which are required by this Agreement.

If the breach does involve a failure to make any payments which are required by this Agreement, then the breaching party will have five (5) days after receiving the written notice to cure the breach. If the breaching party does not cure any breach within the applicable cure period, then the non-breaching party will have the right to terminate this Agreement immediately.

(c)  Termination by Mutual Written Agreement. This Agreement may also be terminated upon any terms and under any conditions, which are mutually agreed upon in writing by the parties.

(d)  Cross Default. If a party fails to perform or observe any covenant, condition or provision to be performed or observed by it under the terms of the Feedstock Agreement, the Services Agreement or any other agreement in writing between the parties in connection therewith or herewith and such default is not remedied within thirty (30) days of its occurrence.

3.  REPRESENTATIONS AND WARRANTIES OF WIE. In connection with its sale of Products to ADM under this Agreement, WIE makes the following representations and warranties, for the benefit of ADM:

(a)  Good Title. WIE will have good and marketable title to all of the Products sold to ADM under this Agreement, free and clear of all liens and encumbrances.

(b)  Corporate Existence and Good Standing. WIE is a limited liability company validly existing and in good standing under the laws of the State of Iowa. Further, WIE is qualified to do business and is in good standing in each jurisdiction where the conduct of its business or the ownership of its property requires such qualification.

(c)  Corporate Authority and Corporate Approval. WIE has the power and authority to enter into this Agreement. Further, WIE has taken all corporate action necessary to authorize it to execute, become bound by, and perform its duties and obligations under this Agreement.

(d)  No Conflicts as to Law or Agreements. The execution of this Agreement by WIE, the sale and transfer of Products from WIE to ADM, and the taking of all actions by WIE under this Agreement do not require the consent of any person, entity, or agency; do not violate any law, rule, or regulation; and do not breach or violate any contract or agreement to which WIE is a party, or by which WIE is bound.

(e)  Compliance with Laws. WIE is now in compliance, and during the entire term of this Agreement will remain in compliance, with all applicable federal, state, local, and foreign laws, ordinances, orders, rules, and regulations (“Laws”), other than Laws where neither the costs or potential costs of failing to comply, nor the costs or potential costs of causing compliance, would be material to WIE or its business or assets. The definition of Laws set out above includes, but is not limited to, the Toxic Substances Control Act (“TOSCA”), the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Air Act, the Federal Water Pollution Control Act of 1986, the Emergency Planning and Community Right-to-Know Act of 1986, the Occupational Safety and Health Act, the Resource Conservation and Recovery Act, any state equivalent thereof, and all other laws related to the protection of the environment.

(f)  Complete and Accurate Disclosure. WIE has not withheld from ADM any material documents, material information, or material facts relating to WIE Products production capabilities, and/or relating to the business operations of WIE. Further, no representation or warranty in this Agreement, or in any letter, certificate, exhibit, schedule, statement, or other document furnished or to be furnished pursuant to this Agreement, contains any untrue statement of a material fact.

(g)  Licenses and Permits. WIE now has or will have prior to the commencement of operations at the WIE Production Facilities, and will have at all times thereafter during the term of this Agreement, all of the licenses and permits necessary to operate the WIE Production Facilities.

(h)  Production Capacity. At the commencement of the Agreement, WIE and ADM shall in writing agree upon the WIE’s expected annual production capacity by feedstock, based on the nameplate design capacity of the WIE production facilities. The parties hereby acknowledge that WIE’s production capacity will vary based on the type of feedstock used and that the use of various animal fats as feedstock generally slows production rates relative to the use of vegetable oils as feedstock.

(i)  Product Quality. All of the Products sold to ADM by WIE under this Agreement will be of merchantable quality, and will be fit for its intended purpose. All biodiesel must meet all applicable ASTM Standards, must meet any other applicable industry standards or guidelines, must meet the biodiesel standards established by all other standard biodiesel industry tests and must include oxidative stability enhancers reasonably necessary for the commercialization of the biodiesel.

(j)  Patent Infringement. WIE is not now, and will not be at any time in the future during the term of this Agreement, infringing upon any patents or other intellectual property rights held by any other parties. WIE shall use commercially reasonable efforts to cause ADM to be a third party beneficiary of any and all representations, warranties and indemnities that WIE may receive from any third party providing WIE with intellectual property rights concerning the manufacture or sale of Products.

4.  REPRESENTATIONS AND WARRANTIES OF ADM. In connection with providing the services on behalf of WIE which are described in this Agreement, ADM makes the following representations and warranties, for the benefit of WIE.

(a)  Corporate Existence and Good Standing. ADM is a corporation validly existing and in good standing under the laws of the State of Delaware. Further, ADM is qualified to do business and is in good standing in each jurisdiction where the conduct of its business or the ownership of its property requires such qualification.

(b)  Corporate Authority and Corporate Approval . ADM has the power and the authority to enter into this Agreement. Further, ADM has taken all corporate action necessary to authorize it to execute, become bound by, and perform its duties and obligations under this Agreement.

(c)  No Conflicts as to Law or Agreements . The execution of this Agreement by ADM, the purchasing of Products from WIE by ADM, and the taking of all actions by ADM under this Agreement do not require the consent of any person, entity, or agency; do not violate any law, rule, or regulation; and do not breach or violate any contract or agreement to which ADM is a party, or by which ADM is bound.

(d)  Compliance with Laws. As it relates to this Agreement, ADM is now in compliance, and during the entire term of this Agreement will use its best efforts to remain in compliance, with all Laws related to this Agreement.

(e)  Licenses and Permits. ADM now has, and will have at all times during the term of this Agreement, all of the licenses and permits necessary to perform its obligations pursuant to this Agreement.

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

(f)  Complete and Accurate Disclosure. No representation or warranty in this Agreement, or in any letter, certificate, exhibit, schedule, statement, or other document furnished or to be furnished pursuant to this Agreement, contains any untrue statement of a material fact.

5.  QUANTITY . During the entire term of this Agreement, WIE agrees to sell to ADM, and ADM agrees to purchase from WIE all of the Products produced by WIE at the WIE Production Facilities that conforms to the warranties set forth in this Agreement in quantities as set forth in purchase order contracts issued by ADM to WIE. ADM and WIE will endeavor to work mutually together to run the WIE facility at an optimum rate and profit margin given the current market conditions at that time subject to Section 7. ***. It is understood that glycerin, fatty acids, and soapstock are a by-product of biodiesel production and that biodiesel sales —and therefore production from those sales —will determine the quantity of glycerin, fatty acids, and soapstock available for purchase/marketing by ADM. The terms and conditions of these purchases and sales will be set out in this Agreement. ADM shall not enter into derivative contracts, including without limitation futures contracts, for sales of glycerin, fatty acids, or soapstock to be produced by WIE at the WIE Production Facilities, without WIE’s prior written consent. Upon the sale of Products from WIE to ADM pursuant to this Agreement, ***.

6.  PRODUCTION ESTIMATES; PRODUCTION COSTS. As of the effective date of this Agreement, WIE will provide ADM with WIE’s estimate of WIE’s anticipated monthly Products production for the next twelve (12) months, to assist ADM in developing appropriate marketing strategies for the Products to be produced by WIE.

On or before the first day of each month, WIE will provide ADM with its updated estimate of WIE’s anticipated monthly Products production for the next twelve (12) months, so that ADM will have Products production estimates from WIE twelve (12) months into the future during the entire time that this Agreement is in effect.

Once this Agreement has been terminated under Sections 1 or 2 above, WIE’s monthly Products production estimates must continue to cover the time period through the proposed termination date, but need not extend to any months after the proposed termination date.

In addition, WIE will provide ADM (i) monthly with its fixed and variable costs to produce Products for the previous month and (ii) weekly with projected margin information on a spot and forward basis as reasonably requested by ADM.

7.  MONTHLY VOLUME REQUIREMENTS . Both parties acknowledge and agree that if market conditions and other conditions are favorable, it is their intent for WIE to operate the WIE Production Facilities at or near full capacity, based on the feedstock(s) used by WIE, during the entire term of this Agreement.

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

8.  SHORTFALLS IN THE MONTHLY VOLUME REQUIREMENTS. To the extent that WIE fails to produce enough Products to meet actual contracted volumes in any month, ADM will have the right, but not the obligation, to purchase Products elsewhere, in a commercially reasonable manner, in order to cover the shortfall. All costs and expenses related to such purchases which are in excess of the costs and expenses that ADM would have incurred in the absence of such a shortfall will be charged to WIE.

9.  SALES LIMITATIONS. ADM will not be required to purchase Products from WIE, if ADM does not believe in good faith that it is in the best interests of the parties, based on market conditions, unavailability of customers, or other factors. This means that ADM will have the discretion to both build and decrease stored inventories of the Products produced under this Agreement, during the entire term of this Agreement. ADM agrees to attempt to do so efficiently, effectively, and in a manner that is in the best interests of the parties.

10. SERVICES TO BE PROVIDED BY ADM . ADM in its sole discretion will provide, in good faith, the marketing, sales, off-site storage, and transportation services for the Products produced under this Agreement.

11.  PAYMENTS TO ADM FOR SERVICES PROVIDED . In exchange for the services provided by ADM under this Agreement and the services provided by ADM under the Feedstock Agreement and Services Agreement being simultaneously entered into by ADM and WIE, WIE will pay ADM the sum of *** of the Net Products Selling Price, plus *** of WIE’s Net Profits. The “Net Products Selling Price” shall be defined as ***. The Net Products Selling Price portion of ADM’s fee shall be due and payable ***. WIE’s “Net Profits” shall be defined as ***. For any partial year for WIE occurring during the term of this Agreement, “Net Profits” shall be computed based on the portion of the fiscal year during which ADM provides services hereunder.

12.  INDEPENDENT CONTRACTOR STATUS OF ADM, AND EMPLOYMENT STATUS OF ADM’S EMPLOYEES. Nothing contained in this Agreement, including the services to be provided by ADM on behalf of WIE, will make ADM the agent of WIE for any purpose. ADM and its employees shall be deemed to be independent contractors, with full control over the manner and method of performance of the services they will be providing on behalf of WIE under this Agreement. This Agreement is not intended to create and shall not be construed as creating between the parties hereto a relationship of principal and agent, joint venturers, co-partners, or any other similar relationship, the existence of which is hereby expressly denied by the parties.

Any of the employees of ADM which are providing services on behalf of WIE under this Agreement will remain employees of ADM. These employees will continue to be paid by ADM and to enjoy the benefits to which they are entitled as employees of ADM, unless otherwise provided in any separate agreement covering the services of such employees.

13.  SEPARATE ENTITIES. WIE and ADM are separate entities. Nothing in this Agreement or otherwise shall be construed to create any rights or liabilities of either party to this Agreement with regard to any rights, privileges, duties, or liabilities of the other party to this Agreement, except to the extent otherwise provided in this Agreement, or in any other agreement between the parties to this Agreement.

14.  DEVELOPMENT OF ORDERING AND SHIPPING PROCEDURES. Because WIE and ADM have not done business in the past in the manner described in this Agreement, they have not yet attempted to develop efficient and effective procedures related to ordering Products, delivering Products, and shipping Products, in connection with ADM’s Products purchases from WIE. After this Agreement becomes effective, ADM and WIE agree to work together promptly and in good faith to develop effective and efficient policies and procedures to cover these matters, based on their mutual experiences working together under this Agreement.

Once those policies and procedures have been developed and mutually agreed upon, ADM and WIE intend to document them, in the form of an addendum to this Agreement.

15. QUALITY ASSURANCE AND QUALITY CONTROL.

(a)  WIE’s Responsibility and Liability for the Products that it Produces. WIE will ultimately be responsible for the quality of the Products produced at the WIE Production Facilities. Further, the parties agree that WIE, and not ADM, will be responsible and liable for all claims related to the quality of the Products produced by WIE at the WIE Production Facilities.

(b)  WIE’s Release of ADM from Liability Related to QA and QC Support. In the event that ADM provides quality assurance (QA) and quality control (QC) assistance to WIE under this Agreement, such assistance is a good faith attempt by ADM to help WIE meet the Product quality standards set out in this Agreement, for the mutual benefit of ADM and WIE. However, ADM’s provision of QA and QC support to WIE does not constitute a warranty or a guarantee of any type with respect to the quality of the Products produced by WIE. Thus, WIE and all of its related persons and organizations hereby release ADM and all of its related persons and organizations from all liability, in the absence of gross negligence and/or willful misconduct, related to any QA and QC support provided to WIE by ADM under this Agreement.

16.  PRODUCT DISTRIBUTION.

(a)  Biodiesel Product Substitution. Except as provided below, the parties agree that the biodiesel produced at the WIE Production Facilities will be considered fungible and interchangeable with biodiesel meeting all applicable ASTM standards for purposes of product distribution under this Agreement. ADM will not brand, label, or otherwise identify any biodiesel sold under this Agreement differently because that biodiesel was produced at the WIE Production Facilities, as opposed to being produced at ADM’s own production facilities or the production facilities of third parties. WIE must obtain certification and maintain BQ-9000 accredited producer status.

(b)  Efficient Product Distribution. When customers purchase Products from ADM that has been produced under this Agreement, ADM may fill the orders of those customers with Products produced at