Exhibit 10.6
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT (this "Agreement"), effective January
1, 2000 is entered into by and between FARMLAND INDUSTRIES, INC., a cooperative
corporation organized under the laws of Kansas ("Farmland"), CENEX HARVEST
STATES COOPERATIVES, a cooperative corporation organized under the laws of
Minnesota ("CHS"), United Country Brands LLC, a Delaware limited liability
company ("United LLC") and LAND O'LAKES, INC., a cooperative corporation
organized under the laws of Minnesota ("LOL") (Farmland, CHS, United LLC and LOL
each individually a "Party" and collectively the "Parties". Farmland and CHS
together are "UCB Parties").
W I T N E S S E T H :
WHEREAS, the UCB Parties have formed United LLC as a Delaware
limited liability company for the purpose of holding certain of their interests
in the joint venture created by this Agreement.
WHEREAS, each of the Parties is engaged in businesses of or related
to the wholesale marketing of plant food and crop protection products in North
America; and
WHEREAS, in order to better realize the potential of the businesses,
UCB Parties and LOL desire to form a joint venture by establishing and operating
a limited liability company and by entering into agreements ancillary thereto;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the Parties agree as follows:
ARTICLE I
ESTABLISHMENT OF LIMITED LIABILITY COMPANY
1. Limited Liability Company. On or before the Operational Closing Date,
the Parties shall cause to be formed a Delaware limited liability
company with a name to be determined by the agreement of the Parties
(the "Company"). The members of the Company to be formed shall be
Farmland, CHS, United LLC and LOL (each of which is sometimes referred
to as a "Member" and all of which are herein sometimes referred to
collectively as the "Members"). United LLC and LOL shall each own a 50%
governance interest in the Company. LOL shall own a 38.75 % economic
interest in the Company. United LLC shall own a 50% economic interest
in the Company. Farmland shall own a 9.795% economic interest in the
Company. CHS shall own a 1.455% economic interest in the Company.
United LLC and LOL each shall at all times exercise all management
rights with respect to the Company in such a manner as to ensure
compliance with the provisions of this Agreement. The Members shall
execute and deliver to each other a Limited Liability Company Agreement
consistent with the provisions hereof and incorporating such other
provisions as may be agreed to by the Parties. Upon completion of the
Limited Liability Company Agreement it shall be separately initialed
by the Parties and attached hereto as Exhibit B ("LLC Agreement").
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1.1 Purpose and Scope of Joint Venture.
(a) Business Objectives: The Company's objectives and scope of business
include: (i) selling plant food and crop protection products to
cooperative members and patrons of Members (and others as may be
otherwise agreed to by the Members) for resale or use in North American
markets, and (ii) providing other goods and services to Members and
members and patrons of Members (and others as may be otherwise agreed
to by the Members). Until the time of the Working Asset Closing (as
hereinafter defined), the Company shall act as the manager of all of
such direct and indirect businesses of the Members and of WilFarm LLC
and the earnings and losses of such businesses and WilFarm shall inure
to the joint shared benefit of the Members and in accordance with the
agreement of WilFarm with the Company. Following the Working Asset
Closing, the Company shall use the LOL Contributed Assets and the
United LLC Contributed Assets for purposes of operation of the
businesses in its own name pursuant to clauses (a)(i) and (a)(ii)
above.
(b) Term. It is anticipated that the term of the Company shall be
perpetual subject to the earlier termination in accordance with the
provisions of Delaware law. To the extent it is not in material breach
of the LLC Agreement or any of the Ancillary Agreements, at the end of
the term of the venture each of United LLC and LOL will be granted a
right of last refusal to meet or exceed the highest offer for the
assets of the Company in liquidation. In the event that both members
desire to at least meet such highest offer, the Members shall
participate in an internal auction for the purchase by one Member of
the other Member's interest in the Company in accordance with the
procedures set forth in Schedule 1.1(b).
(c) Products: The Company's main products will be a variety of plant
food and crop protection products mutually agreed upon by the unanimous
decision of the Members.
1.2 Financing of the Company. LOL expects to have contributed
38.75% of the capital of the Company, consisting of cash and the beneficial use
of the LOL Contributed Assets referred to in Section 1.4. Farmland, CHS, and
United LLC expect to have together directly or indirectly contributed 61.25% of
the capital of the Company, consisting of cash and the beneficial use of United
LLC Contributed Assets referred to in Section 1.5, subject to the provisions of
the LLC Agreement. The Parties shall arrange for financing of the joint venture
pursuant to the terms of the LLC Agreement, it being the intent of the Parties
to obtain non-recourse as to the Members financing for the Company, as soon as
practical and in any event not later than April 30, 2000.
1.3 Compliance with Laws. All matters referred to herein are
subject to and conditioned upon compliance with all applicable laws.
1.4 LOL's Contribution to Company.
(a) Contribution of LOL Assets: At the Operational Closing, in addition
to any cash amount required by the LLC Agreement, except as the parties
may otherwise agree, LOL shall contribute, or cause to be contributed,
to the Company the economic benefit derived from the use of: (i) all
LOL's rights and interest to real property used
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by it in the wholesale marketing of plant food and crop protection
products in North America listed on Schedule 1.4(a) (the "LOL Real
Property"), (ii) all of LOL's rights and interest in the Assigned
Investments and Agreements listed on Schedule 1.4(a) attached hereto
(including, without limitation, its interest and title to, and goodwill
attendant thereto, its ownership, equity, and governance interests in,
and the beneficial use of the assets of, Cenex/LOL Agronomy Company,
Agro Distribution LLC, Omnium LLC, Imperial Inc., and RSA Microtech,
Inc.), (iii) all of LOL's rights and interest in Other Assets (as
defined below) and (iv) the personal property listed on Schedule 1.4(a)
attached hereto (the "LOL Personal Property") (collectively, the "LOL
Contributed Assets"). The Parties hereby acknowledge and agree that the
economic benefit derived from the use of LOL Contributed Assets shall
be deemed for all purposes to have been contributed to the Company
effective as of the first day of January, 2000, (the "Effective Date")
and the net earnings or loss arising from such assets from the
Effective Date until the actual date of Closing shall be included among
the assets to be contributed pursuant to this Agreement. The parties
further agree that the earnings and loss arising from operation of such
assets prior to the Effective Date, including without limitation
chemical rebates earned on business conducted prior to January 1, 2000,
shall inure to LOL.
(b) Other Assets: As used herein, the term "Other Assets" means the
beneficial use of the following items pertaining to the LOL Real
Property (or any portion thereof): (i) any and all rights, licenses,
permits, betterments, accretions, easements, and any personal property
of every kind and character owned by LOL (and/or any Affiliate
thereof), attached to, appurtenant to, located in, or used or useful in
connection with the LOL Real Property; (ii) all construction,
engineering, consulting, architectural and other similar contracts, and
any and all amendments and modifications thereto, relating to the LOL
Real Property and all warranties with respect thereto; (iii) all
architectural, plans, specifications, soils tests, engineering reports
and similar materials relating to the LOL Real Property; (iv) all
deposits, performance bonds, guarantees or other payments given or made
with respect to the LOL Real Property and any and all modifications and
extensions thereto relating to the LOL Real Property; (v) all
governmental entitlements (including, without limitation, all
environmental reports, declarations, map approvals, conditional use
permits, and any other permits related to the LOL Real Property),
permissions, environmental clearances, rights, licenses and permits
which relate to the LOL Real Property; (vi) all leases, licenses and
occupancy agreements with respect to the LOL Real Property; (vii) all
rights and remedies of LOL against the party from which LOL purchased
the LOL Real Property; and (viii) all other general intangibles
relating to the development and/or use of the LOL Real Property and the
improvements thereon including, without limitation, all refunds and
payments of any kind relating to the ownership, operation, use and/or
disposition of the LOL Real Property, and all proceeds and claims
arising on account of any loss, damage to or taking of the LOL Real
Property (or any part thereof).
(c) Transfer on an "AS-IS" Basis. Each Party acknowledges and agrees
that, except for the express representations and warranties set forth
in this Agreement, the Company is acquiring the beneficial use of LOL
Contributed Assets "AS IS" without any representation or warranty of
LOL (or any other Party), express, implied or
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statutory, as to the nature or condition of the Contributed Assets, the
condition of title to the Contributed Assets or the fitness for use of
the Contributed Assets.
(d) Prorations and Adjustments. The following shall be prorated and
adjusted between LOL and the Company as of the Effective Date, except
as otherwise specified:
(i) General real estate, personal property and ad valorem
taxes and assessments for the current tax year for the Contributed
Assets with LOL being responsible for the payment of such items for the
period before the Effective Date and the Company being responsible for
such payment for the period on and after the Effective Date.
(ii) Utility charges, if any, costs of maintaining the
Contributed Assets, if any, and such other items that are customarily
prorated in transactions of this nature shall be ratably prorated with
LOL being responsible for the payment of such items for the period
before the Effective Date and the Company being responsible for such
payment for the period on and after the Effective Date.
(e) Commissions or Fees. LOL hereby represents and warrants to the
Company and the other Members that no person or entity is entitled to
any commission, broker's fee or other compensation based on contacts or
understandings between such claimant and LOL or its Affiliates with
respect to the contribution of the LOL Contributed Assets.
1.5 United LLC's Contribution to Company.
(a) Contribution of United LLC Assets: At the Operational Closing, in
addition to any cash amount required by the LLC Agreement, except as the
Parties may otherwise agree, the UCB Parties and United LLC shall
contribute to the Company the economic benefit derived from the use of (i)
all rights and interest of UCB Parties and United LLC to real property
used by any of them in the wholesale marketing of plant food and crop
protection products in North America listed on Schedule 1.5(a) (the
"United LLC Real Property") (ii) all of the rights and interest in the
Assigned Investments and Agreements listed on Schedule 1.5(a) attached
hereto (including, without limitation, all interest and title to, and
goodwill attendant thereto, its ownership, equity, and governance
interests in WilFarm, Cenex/LOL Agronomy Company, Agro Distribution LLC,
Omniun LLC, Imperial Inc., and RSA Microtech, Inc.), (iii) all rights and
interest in Other Assets (as defined below) and (iv) the personal property
listed on Schedule 1.5(a) attached hereto (the "United LLC Personal
Property") (collectively, the "United LLC Contributed Assets"). Farmland
will also contribute or, pursuant to the contract with Xxxxxx Xxxxx
attached hereto as Exhibit C (to be provided no later than the Operational
Closing) will cause Xxxxxx Xxxxx to contribute its ownership, equity, and
governance interests in WilFarm and goodwill attendant thereto. The
Parties hereby acknowledge and agree that the United LLC Contributed
Assets shall be deemed for all purposes to have been contributed to the
Company effective as of the Effective Date, and the net earnings or loss
arising from the assets from the Effective Date until the actual date of
Closing shall
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be included among the assets to be contributed pursuant to this
Agreement. The parties further agree that the earnings and loss arising
from operation of such assets prior to the Effective Date, including
without limitation chemical rebates earned on business conducted prior
to January 1, 2000, shall inure to the UCB Parties.
(b) Other Assets: As used herein, the term "OTHER ASSETS" means the
beneficial use of the following items pertaining to the United LLC Real
Property (or any portion thereof): (i) any and all rights, licenses,
permits, betterments, accretions, easements, and any personal property
of every kind and character owned by United LLC (and/or any Affiliate
thereof), attached to, appurtenant to, located in, or used or useful in
connection with the United LLC Real Property; (ii) all construction,
engineering, consulting, architectural and other similar contracts, and
any and all amendments and modifications thereto, relating to the
United LLC Real Property and all warranties with respect thereto; (iii)
all architectural, plans, specifications, soils tests, engineering
reports and similar materials relating to the United LLC Real Property;
(iv) all deposits, performance bonds, guarantees or other payments
given or made with respect to the United LLC Real Property and any and
all modifications and extensions thereto relating to the United LLC
Real Property; (v) all governmental entitlements (including, without
limitation, all environmental reports, declarations, map approvals,
conditional use permits, and any other permits related to the United
LLC Real Property), permissions, environmental clearances, rights,
licenses and permits which relate to the United LLC Real Property; (vi)
all leases, licenses and occupancy agreements with respect to the
United LLC Real Property; (vii) all rights and remedies of UCB parties
or United LLC against the party from which such UCB Party or United LLC
purchased the United LLC Real Property; and (viii) all other general
intangibles relating to the development and/or use of the United LLC
Real Property and the improvements thereon including, without
limitation, all refunds and payments of any kind relating to the
ownership, operation, use and/or disposition of the United LLC Real
Property, and all proceeds and claims arising on account of any loss,
damage to or taking of the United LLC Real Property (or any part
thereof).
(c) Transfer on an "AS-IS" Basis. Each Party acknowledges and agrees
that, except for the express representations and warranties set forth
in this Agreement, the Company is acquiring the beneficial use of
United LLC Contributed Assets "AS IS" without any representation or
warranty of United LLC, Farmland, CHS (or any other Party), express,
implied or statutory, as to the nature or condition of the United LLC
Contributed Assets, the condition of title to the United LLC
Contributed Assets or the fitness for use of the United LLC Contributed
Assets.
(d) Prorations and Adjustments. The following shall be prorated and
adjusted between United LLC or the UCB Parties as appropriate on the
one part and the Company on the other part as of the Effective Date,
except as otherwise specified:
(i) General real estate, personal property and ad valorem taxes and
assessments for the current tax year for the United LLC Contributed
Assets with United LLC or the UCB Parties being responsible for the
payment of such items for the period before the Effective Date and
the Company being responsible for such payment for the period on and
after the Effective Date.
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(ii) Utility charges, if any, costs of maintaining the United LLC
Contributed Assets, if any, and such other items that are
customarily prorated in transactions of this nature shall be ratably
prorated with United LLC or the UCB Parties being responsible for
the payment of such items for the period before the Effective Date
and the Company being responsible for such payment for the period on
and after Effective Date.
(e) Commissions or Fees. Each of the UCB Parties and United LLC hereby
represent and warrant to the Company and the other Members that no person
or entity is entitled to any commission, broker's fee or other
compensation based on contacts or understandings between such claimant and
UCB Parties, United LLC, or their respective Affiliates with respect to
the contribution of the United LLC Contributed Assets.
1.6 No Adjustment of Economic Interest. Barring any purchase or sale
of any economic interest in the Company among Members, all of which such sales
and purchases may be made by agreement by any of the Members and as to which
consent of each of the other Members is hereby given, the economic interests of
the Parties shall remain as they are except as may be agreed to from time to
time by the Parties. It is anticipated that any expansion of the wholesale
fertilizer and crop protection business by the Parties hereto shall be solely
through the Company with any and all assets used in such expansion being
acquired by, and pursuant to terms negotiated by, the Company. If any of the
Members acquire any wholesale fertilizer and/or crop protection business assets
in North America by operation of law or otherwise, the Company and such Member
shall negotiate in good faith to sell such assets to the Company upon terms and
conditions acceptable to both parties. If the Company and such Member or are
unable to reach agreement on the terms of the sale to the Company such assets
shall, within a two (2) year period following the acquisition by such Member ,
be sold or transferred to a third party unrelated to such Member by ownership or
by continuing contract. Pending such sale such assets shall to the extent
legally permissible be operated and managed by the Company for the sole economic
benefit of such Member. To the extent such management and operation is not
legally permissible in the reasonable determination of the Company, such assets
shall, pending sale, be operated by the Member on a full arms length basis for
its own account.
1.7 Fertilizer and Agricultural Chemical Procurement and Marketing
Arrangements with LOL, United LLC and UCB Parties.
(a) Procurement. It is anticipated that the Company will procure
plant food product primarily from Farmland and CF Industries Inc.
("CF"). Procurement of product from Farmland will be accomplished
directly by the Company. Such purchases will not be on a patronage
basis, and production earnings therefrom will remain with Farmland
for retention or distribution in its sole determination. The
purchases of CF product, either directly or through CHS or LOL, will
not be on a patronage basis from the perspective of the Company, and
any patronage earned will go to or remain with CHS or LOL for
retention or distribution in their sole determination. Product
procured from non-CF third parties shall be procured directly by the
Company, or if through the Members, shall be by each Member ratably
in proportion to its economic interest in the Company.
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(b) Allocation of Product Sourced from CF. For purposes of CF patronage
and the CF base capital plan, CHS and LOL will allocate between
themselves nitrogen product purchased from CF on the basis described
herein. For purposes of this section, Farmland and CF shall each have
an annual "base level" of product to be supplied to the Company as
follows:
Nitrogen Products (on a total N basis)
--------------------------------------
Farmland - 2,998,000 tons annually
CF - 1,831,000 tons annually
The base percentage split between the Members ("Base Percentage
Split"), for all CF-sourced nitrogen product (on a total N basis) shall
be LOL 61.8% and CHS 38.2%. The Base Percentage Split shall apply to
all nitrogen product sourced from CF in any fiscal year up to the CF
base level. For CF-sourced product over the base level and to the
extent such increase results from an increase in produced tons
available to the Company, LOL shall receive credit for 100% of such
product, but only to the extent that Farmland-sourced product exceeds
Farmland's base level as a result of an increase in Farmland production
being sold to the Company; provided that this sentence shall apply only
in the case of a merger between Farmland and CHS or other combination
resulting in the participation by CHS in the economic results of the
Farmland fertilizer production business and, if no such merger or other
combination has occurred the Parties will renegotiate the terms of this
sentence to protect the rights of all Members to participate in such
increase in sourcing and production on an equitable basis. To the
extent that CF-sourced product exceeds the CF base level by more tons
than the Farmland-sourced product exceeds the Farmland base level, the
CF-sourced product shall be subject to the Base Percentage Split
between CHS and LOL.
(c) Phosphate Fertilizer. The allocation for phosphate
fertilizer will operate in the same manner as the nitrogen
allocation except that the following base levels shall apply:
Farmland 589,000 tons
CF 552,000 tons
All CF-sourced phosphate fertilizer shall be sourced for the account of
LOL or CHS in accordance with the Base Percentage Split.
(d) Potash. There shall not be any special allocation rule for
potash. All potash sourced from CF shall be sourced subject to the
Base Percentage Split.
(e) Supply. The Company will be the preferred supplier of fertilizer
and agricultural chemicals to the Members, and the Members agree to
purchase such product from the Company for retail resale so long as it
is commercially reasonable to do so and the prices and terms offered by
the Company are competitive.
1.8 Exhibits and Schedules. The Exhibits and Schedules attached to
this Agreement shall be construed with and be an integral part of this Agreement
to the same extent as if the same had been set forth verbatim herein. In case of
any inconsistency between the terms of this Agreement and the terms of any
Exhibit or Schedule, the terms of this Agreement shall prevail. The following
are the Exhibits and Schedules attached to or to be attached and incorporated in
this Agreement:
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Name of Exhibit or Schedule Description
--------------------------- -----------
Schedule 1.1(b) Internal Auction Process
Schedule 1.4(a) List of LOL Property Contributed to the Company
Schedule 1.5(a) List of United LLC Property Contributed to the
Company
Schedule 3.1(c) LOL Consents and Approvals
Schedule 3.1(d) LOL Violations or Conflicts
Schedule 3.1(g) Liabilities or Obligations relating to LOL
Contributed Assets
Schedule 3.2(c) Farmland Consents and Approvals
Schedule 3.2(d) Farmland Violations or Conflicts
Schedule 3.2(g) Liabilities or Obligations relating to Farmland-
originated United LLC Contributed Assets
Schedule 3.3(c) CHS Consents and Approvals
Schedule 3.3(d) CHS Violations or Conflicts
Schedule 3.3(g) Liabilities or Obligations relating to
CHS-originated United LLC Contributed Assets
Schedule 8.1 Services to Company or to WilFarm
Exhibit A Defined Terms
Exhibit B Limited Liability Company Agreement
Exhibit C Agreement between Farmland and Xxxxxx Xxxxx
Exhibit D Management Agreement
ARTICLE II
DEFINITIONS
Capitalized terms used but not defined herein shall have the
respective meanings set forth or made applicable in Exhibit A hereto.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 By LOL. LOL hereby represents and warrants to the Company
and other Members as follows:
(a) Organization. LOL is an agricultural cooperative duly organized,
validly existing and in good standing under the laws of the State of
Minnesota and has full power and authority to own and operate its
assets and properties and to carry on its business as presently being
conducted and as presently proposed to be conducted (including in the
manner contemplated by this Agreement) and is duly qualified to do
business and is in good standing in all jurisdictions in which the
ownership or occupancy of its properties or its activities presently
make such qualification necessary, except where the failure to so
qualify would not have a Material Adverse Effect upon it.
(b) Authority. LOL has all requisite corporate power and authority to
execute and deliver this Agreement and each Ancillary Agreement to
which it is a party, to perform its obligations hereunder and
thereunder, to contribute both the beneficial use of, and ultimately,
the fee title to the Contributed Assets to the Company and to
consummate the other transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and each such
Ancillary Agreement by LOL and the consummation by LOL of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all requisite corporate proceedings of LOL. This
Agreement and each Ancillary Agreement that has been executed by LOL on
or prior to the date hereof have been duly and validly executed and
delivered by LOL and each constitutes a legal, valid and binding
obligation of LOL, enforceable against LOL in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally and
to general principles of equity.
(c) Consents and Approvals. Except as set forth in Schedule 3.1(c)
attached hereto and made a part hereof, no Consents are required to be
obtained from, and no registrations, declarations and filings are
required to be made with, any Governmental Authority to permit LOL to
execute, deliver and perform this Agreement and any Ancillary Agreement
to which it is a party. All terms and conditions contained in, or
existing in respect of, such Consents have been duly satisfied and
performed to the extent necessary prior to the date of the execution
and delivery of this Agreement.
(d) No Violations or Conflicts. The execution, delivery and performance
of this Agreement and each Ancillary Agreement to which it is a party
by LOL do not and will not, subject to those items set forth on
Schedule 3.1(d), (i) violate or conflict with any provision of, or
result in the breach of, any applicable statute, law, rule or
regulation of any Governmental Authority, the Articles of Incorporation
or By-laws of LOL, or any contract, agreement, indenture or other
instrument or obligation to which LOL is a party or by which LOL or any
of its assets (including the Contributed Assets) is bound or of any
order, judgment, writ, injunction, award, ruling or decree applicable
to LOL, or (ii)
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constitute an event which, after notice or lapse of time or both, would
result in any such violation, conflict, breach or termination, or
result in a violation or revocation of any permit from any Governmental
Authority, regulatory body or other third party, except to the extent
that the occurrence of any of the foregoing would not individually or
in the aggregate have a Material Adverse Effect on the ability of LOL
to consummate the transactions contemplated hereby or by any Ancillary
Agreement.
(e) Litigation. There is no action, suit or proceeding pending, or to
the knowledge of LOL threatened, against LOL which questions the
validity of this Agreement, the Contributed Assets or any Ancillary
Agreement or any action taken or to be taken pursuant to or in
connection with this Agreement, the Contributed Assets or any Ancillary
Agreement or which would, if adversely determined, affect the ability
of LOL to perform its obligations hereunder or thereunder or have a
Material Adverse Effect on LOL.
(f) Compliance with Law. LOL and its Affiliates have conducted their
respective businesses in material compliance with applicable statutes
and other laws, rules, regulations, or interpretation of any
Governmental Authority and any Governmental Licenses.
(g) Contributed Assets. LOL has, and for the term of the Company will
maintain, except as may be agreed between the Company and LOL, good and
marketable title to the LOL Contributed Assets, free and clear of any
mortgages, liens, claims, encumbrances, pledges, conditional sale
agreements, security agreements and charges in favor of any third party
of any nature. Except as disclosed on Schedule 3.1(g), there are no
liabilities, including environmental liabilities, or obligations of any
nature, whether absolute, accrued, contingent or otherwise, relating to
the Contributed Assets, other than obligations which are in amounts
which, in the aggregate, shall not have a material impact on the value
of the LOL Contributed Assets. Any contracts included in the
Contributed Assets are assignable and are in full force and effect, no
dispute or disagreement exists under any such contract. LOL has made,
or will make, available to the other Members true and correct copies of
each such contract. Neither LOL nor, to its knowledge, any other party
is in default in connection with any such contract.
3.2 By Farmland. Farmland hereby represents and warrants to the
Company and the other Members as follows:
(a) Organization. Farmland is a corporation duly organized, validly
existing and in good standing under the laws of Kansas; has full
corporate power and authority to own and operate its assets and
properties and carry on its business as presently being conducted and
as presently proposed to be conducted (including in the manner
contemplated by this Agreement) and is duly qualified to do business
and is in good standing in all jurisdictions in which the ownership or
occupancy of its properties or its activities presently make such
qualification necessary, except where the failure to so qualify would
not have a Material Adverse Effect upon it.
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(b) Authority. Farmland has all requisite corporate power and authority to
execute and deliver this Agreement and each Ancillary Agreement to which
it is a party, to perform its obligations hereunder and thereunder, to
contribute both the beneficial use of, and ultimately, the fee title to
the Farmland-sourced United LLC Contributed Assets to the Company and to
consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and each Ancillary
Agreement to which it is a party by Farmland and the consummation by
Farmland of the transactions contemplated hereby and thereby have been
duly and validly authorized by all requisite corporate proceedings. This
Agreement and each Ancillary Agreement that has been executed by Farmland
on or prior to the date hereof have been duly and validly executed and
delivered by such corporation and each such agreement constitutes a legal,
valid and binding obligation of Farmland, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally and to general principles of equity.
(c) Consents and Approvals. Except as set forth in Schedule 3.2(c)
attached hereto, and made a part hereof, no Consents are required to be
obtained from, and no registrations, declarations and filings, are
required to be made with, any Governmental Authorities to permit Farmland
to execute, deliver and perform this Agreement and any Ancillary Agreement
to which it is a party. All terms and conditions contained in, or existing
in respect of, such Consents have been duly satisfied and performed, to
the extent necessary prior to the date of the execution and delivery of
this Agreement.
(d) No Violations or Conflicts. The execution, delivery and performance of
this Agreement and each Ancillary Agreement to which it is a party by
Farmland do not and will not, subject to those items set forth on Schedule
3.2(d) attached hereto, (i) violate or conflict with any provision of, or
result in the breach of, any applicable statute, law, rule or regulation
of any Governmental Authority, the Articles of Incorporation or By-laws of
Farmland or any contract, agreement, indenture or other instrument or
obligation to which Farmland is a party or by which Farmland or any of the
assets of Farmland is bound, or of any order, judgment, writ, injunction,
award, ruling or decree applicable to Farmland, or (ii) constitute an
event which, after notice or lapse of time or both, would result in any
such violation, conflict, breach or termination, or result in a violation
or revocation of any permit from any Governmental Authority, regulatory
body or other third party, except to the extent that the occurrence of any
of the foregoing would not individually or in the aggregate have a
Material Adverse Effect on the ability of Farmland to consummate the
transactions contemplated hereby or by an Ancillary Agreement.
(e) Litigation. There is no action, suit or proceeding pending, or to the
knowledge of Farmland threatened, against Farmland which questions the
validity of this Agreement or any Ancillary Agreement or any action taken
or to be taken pursuant to or in connection with this Agreement or any
Ancillary Agreement or which would, if adversely determined, affect the
ability of Farmland to perform its obligations hereunder or thereunder or
have a Material Adverse Effect on Farmland.
(f) Compliance with Law. Farmland and its Affiliates have conducted their
respective businesses in material compliance with applicable statutes and
other laws, rules,
xi
regulations, or interpretation of any Governmental Authority and any
Governmental Licenses.
(g) Contributed Assets. Farmland has, and for the term of the Company
will maintain, except as may be agreed between the Company and
Farmland, good and marketable title to the Farmland-sourced United LLC
Contributed Assets, free and clear of any mortgages, liens, claims,
encumbrances, pledges, conditional sale agreements, security agreements
and charges in favor of any third party of any nature. Except as
disclosed on Schedule 3.2(g), to the knowledge of Farmland there are no
liabilities, including environmental liabilities, or obligations of any
nature, whether absolute, accrued, contingent or otherwise, relating to
the Farmland-sourced United LLC Contributed Assets, other than
obligations which are in amounts which, in the aggregate, shall not
have a material impact on the value of the Farmland-sourced United LLC
Contributed Assets. Any contracts included in the Farmland-sourced
United LLC Contributed Assets are assignable and are in full force and
effect, no dispute or disagreement exists under any such contract.
Farmland has made, or will make, available to the other Members true
and correct copies of each such contract. Neither Farmland nor, to its
knowledge, any other party is in default in connection with any such
contract.
3.3 By CHS. CHS hereby represents and warrants to the Company and
the other Members as follows:
(a) Organization. CHS is a corporation duly organized, validly existing
and in good standing under the laws of Minnesota; has full corporate
power and authority to own and operate its assets and properties and
carry on its business as presently being conducted and as presently
proposed to be conducted (including in the manner contemplated by this
Agreement) and is duly qualified to do business and is in good standing
in all jurisdictions in which the ownership or occupancy of its
properties or its activities presently make such qualification
necessary, except where the failure to so qualify would not have a
Material Adverse Effect upon it.
(b) Authority. CHS has all requisite corporate power and authority to
execute and deliver this Agreement and each Ancillary Agreement to
which it is a party, to perform its obligations hereunder and
thereunder, to contribute both the beneficial use of, and ultimately,
the fee title to the CHS-sourced United LLC Contributed Assets to the
Company and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance of this Agreement and
each Ancillary Agreement to which it is a party by CHS and the
consummation by CHS of the transactions contemplated hereby and thereby
have been duly and validly authorized by all requisite corporate
proceedings. This Agreement and each Ancillary Agreement that has been
executed by CHS on or prior to the date hereof have been duly and
validly executed and delivered by such corporation and each such
agreement constitutes a legal, valid and binding obligation of CHS,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights generally and to general
principles of equity.
xii
(c) Consents and Approvals. Except as set forth in Schedule 3.3(c)
attached hereto, and made a part hereof, no Consents are required to be
obtained from, and no registrations, declarations and filings, are
required to be made with, any Governmental Authorities to permit CHS to
execute, deliver and perform this Agreement and any Ancillary Agreement
to which it is a party. All terms and conditions contained in, or
existing in respect of, such Consents have been duly satisfied and
performed, to the extent necessary prior to the date of the execution
and delivery of this Agreement.
(d) No Violations or Conflicts. The execution, delivery and performance
of this Agreement and each Ancillary Agreement to which it is a party
by CHS do not and will not, subject to those items set forth on
Schedule 3.3(d) attached hereto, (i) violate or conflict with any
provision of, or result in the breach of, any applicable statute, law,
rule or regulation of any Governmental Authority, the Articles of
Incorporation or By-laws of CHS or any contract, agreement, indenture
or other instrument or obligation to which CHS is a party or by which
CHS or any of the assets of CHS is bound, or of any order, judgment,
writ, injunction, award, ruling or decree applicable to CHS, or (ii)
constitute an event which, after notice or lapse of time or both, would
result in any such violation, conflict, breach or termination, or
result in a violation or revocation of any permit from any Governmental
Authority, regulatory body or other third party, except to the extent
that the occurrence of any of the foregoing would not individually or
in the aggregate have a Material Adverse Effect on the ability of CHS
to consummate the transactions contemplated hereby or by an Ancillary
Agreement.
(e) Litigation. There is no action, suit or proceeding pending, or to
the knowledge of CHS threatened, against CHS which questions the
validity of this Agreement or any Ancillary Agreement or any action
taken or to be taken pursuant to or in connection with this Agreement
or any Ancillary Agreement or which would, if adversely determined,
affect the ability of CHS to perform its obligations hereunder or
thereunder or have a Material Adverse Effect on CHS.
(f) Compliance with Law. CHS and its Affiliates have conducted their
respective businesses in material compliance with applicable statutes
and other laws, rules, regulations, or interpretation of any
Governmental Authority and any Governmental Licenses.
(g) Contributed Assets. CHS has, and for the term of the Company will
maintain, except as may be agreed between the Company and CHS, good and
marketable title to the CHS-sourced United LLC Contributed Assets, free
and clear of any mortgages, liens, claims, encumbrances, pledges,
conditional sale agreements, security agreements and charges in favor
of any third party of any nature. Except as disclosed on Schedule
3.3(g), to the knowledge of CHS there are no liabilities, including
environmental liabilities, or obligations of any nature, whether
absolute, accrued, contingent or otherwise, relating to the CHS-sourced
United LLC Contributed Assets, other than obligations which are in
amounts which, in the aggregate, shall not have a material impact on
the value of the Contributed Assets. Any contracts included in the
CHS-sourced United LLC Contributed Assets are assignable and are in
full force and effect, no dispute or disagreement exists under any such
contract. CHS has made, or will make, available to the other Members
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true and correct copies of each such contract. Neither CHS nor, to its
knowledge, any other party is in default in connection with any such
contract.
3.4 Survival. All representations and warranties made herein shall survive
the execution and delivery of this Agreement and for a period of time equal to
the statutes of limitations applicable or related thereto.
3.5 Finder's Fees. Each Party represents that it has not engaged or
authorized any broker, finder or similar agent who would be entitled to a
commission or other fee in respect of the transactions contemplated herein.
3.6 Bring Down of Representations and Warranties. The parties agree that
each shall deliver a certificate, at each Closing described in Article V,
verifying the continued accuracy of the representations and warranties contained
herein, as applicable, together with such other and further representations and
warranties as the Parties may deep appropriate or advisable.
ARTICLE IV
COVENANTS PRIOR TO OPERATIONAL CLOSING
4.1 Covenants. Each Party shall, prior to the Operational Closing
effected pursuant to this Agreement:
(a) Due Diligence. Upon written request, make available to other
Parties any documents and materials reasonably necessary to permit them
to conduct legal, business and economic due diligence, provided
however, that nothing herein shall be deemed to permit a Party hereto
to conduct a Phase II environmental audit on or with respect to the
real property of another Party without the written permission of the
other Party given or withheld in its sole discretion.
(b) Assistance to Company. Use reasonable efforts to assist the Company
in obtaining all necessary permits and licenses necessary for it to
conduct the business contemplated hereby.
(c) Covenant to Close. Have duly performed and complied with all
agreements and conditions required by this Agreement and the LLC
Agreement to be performed or complied with by it on or prior to the
Operational Closing Date.
(d) Conduct of Business. Will not cause or permit the use of the
Contributed Assets in any material transaction outside the ordinary
course of business. Consistent with and subject to the foregoing, each
Party shall cause its respective Contributed Assets to be kept and
maintained in good operating condition and repair and shall use its
good faith best efforts consistent with good business practice to cause
the value of the business on an on-going basis to be preserved.
xiv
4.2 Publicity. Any and all publicity concerning any matters contemplated
under this Agreement or an Ancillary Agreement shall be agreed upon in writing
by all Parties, unless otherwise required by law.
ARTICLE V
CLOSINGS
5.1 Execution of this Agreement. The execution of this Agreement by
each of the Parties shall take place no later than February 4, 2000. The
effective date hereof shall nonetheless be January 1, 2000.
5.2 Operational Closing. The Operational Closing shall be held as
soon as practicable and in any event within 10 business days after each of the
conditions referred to in Sections 5.2 have been satisfied or waived (the
"OPERATIONAL CLOSING DATE") at the offices of CHS, or at such other date, time
and place as the Parties shall mutually agree; provided that this Agreement has
not been terminated pursuant to Article VI prior to such date. At the
Operational Closing, the actions and deliveries referred to in Sections 5.4 and
5.5 shall take place and the documents referred to therein shall be exchanged.
The Parties agree and acknowledge that it is their mutual intention to be bound
in good faith by this Agreement in accordance with its terms, it being agreed
and understood that the Operational Closing contemplated by this Agreement shall
be subject only to the satisfaction or waiver by the appropriate Party of the
conditions set forth in this Article V.
5.3 Conditions to the Obligations of All Parties to Effect the
Operational Closing. The obligations of the Parties set forth in this
Agreement are subject to the following conditions:
(a) The results of legal, business and economic due diligence
investigations, if any, conducted by LOL and UCB Parties shall be
completed to the satisfaction of the investigating Party;
(b) Each of the representations and warranties made by the Parties
shall be true and correct when made and as of the Closing Date;
(c) Each Party shall have performed and complied with all agreements
and covenants required by this Agreement to be performed or complied
with by it on or prior to the Operational Closing Date;
(d) Restructuring of WilFarm, LLC ownership and other contractual
arrangements between Farmland and Xxxxxx Xxxxx Company to the
satisfaction of Farmland, LOL and CHS; and
xv
(e) All necessary Consents from Governmental Authorities and
Governmental Licenses shall have been obtained by the Parties.
5.4 LOL, Farmland, CHS and United LLC Actions and Deliveries at the
Operational Closing. At or prior to the Operational Closing, each of the Parties
shall:
(a) Execute and deliver a signed copy of the Ancillary Agreements to
which it is a party;
(b) Deliver a certificate signed by its duly authorized representative
stating that all its representations and warranties contained in this
Agreement and the LLC Agreement are true and correct as of the
Operational Closing Date and all its covenants required to be performed
as of the Operational Closing Date have been performed;
(c) Respectively deliver documents reasonably required by the Company
to permit its use and occupancy of the LOL Real Property, the LOL
Personal Property, the United LLC Personal Property, and the United LLC
Real Property for such time as any of LOL, or the UCB Parties remains a
Member of the Company; and
(d) Execute and deliver an Management Agreement in the form of EXHIBIT
D attached hereto.
5.5 Company Actions and Deliveries at the Operational Closing. At or
prior to the Operational Closing, following execution and delivery of the LLC
Agreement by the parties thereto, the Certificate shall be executed and filed
with the Secretary of State of the State of Delaware.
5.6 Working Asset Closing. The Working Asset Closing shall be held
as soon as practicable and in any event within 10 business days after the
financing referred to in Section 1.2 has been obtained (the "WORKING ASSET
CLOSING") at the offices of CHS, or at such other date, time and place as the
Parties shall mutually agree. At the Working Asset Closing, each of the parties
shall sell to the Company their respective inventories of plant food and crop
protection products which can reasonably be marketed by the Company.
ARTICLE VI
TERMINATION
6.1 Termination. Prior to the Operational Closing, this Agreement
shall be terminated upon the occurrence of either of the following events:
(a) The written election of a Party that is not in material default or
material breach under any of the provisions of this Agreement, (i) if
there is a material default by another Party in its obligations
hereunder, or there is a material breach by another Party of its
xvi
representations and warranties hereunder, and such default or breach,
as the case may be, shall not have been cured by the defaulting or
breaching Party within twenty (20) business days after notice of such
default or breach has been given by the non-defaulting, non-breaching
Party to the defaulting Party or (ii) if the First Operational Closing
has not occurred by October 1, 2000;
(b) The written election of the Party not subject to the same, upon (i)
the admission in writing by a Party of its inability to pay its debts
as they become due; (ii) the institution by a Party of proceedings for
relief as a debtor under United States law, as now constituted or
hereafter in effect, including, without limitation, Title 11 of the
United States Code, or under any state or other law for the relief of
debtors; (iii) the institution against a Party or its direct or
indirect parent of any proceeding seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation or reorganization under any
bankruptcy, insolvency or similar laws for the relief of debtors, or
seeking the appointment of a receiver or equivalent official for any
substantial part of its assets, and such proceeding shall not have been
dismissed or withdrawn within sixty (60) days from the date of the
institution thereof; (iv) the making by a Party or its direct or
indirect parent of an assignment for the benefit of creditors; or (v)
the appointment of a receiver or trustee for the business or properties
of a Party or its direct or indirect parent.
6.2 Right to terminate after June 30,2000. Any party shall have the
right to terminate this Agreement after June 30, 2000, upon at least ninety (90)
days prior written notice to the other parties, if at the time of such notice
the Working Asset Closing has not occurred and such terminating party has
reasonably determined in good faith that, as a result of such Closing not having
occurred, continued operation of the Company will have a material adverse effect
on the terminating party.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by a Party. Subject to Section 7.2, each Party
(the "INDEMNIFYING PARTY") shall indemnify, defend and hold harmless the
Company, the other Parties, the other Parties Affiliates, and the other Parties
and each such Affiliate's employees, officers, directors and agents, and the
Company's officers and representatives (collectively the "INDEMNIFIED PERSONS")
from and against any and all claims, demands, actions, suits, damages,
liabilities, losses, costs and expenses (including reasonable attorneys' fees),
to the extent caused by, resulting from or arising out of or in connection with
any of the following:
(a) The breach of, or misrepresentation contained in, any written
representation or warranty made by the Indemnifying Party or its
Affiliates in this Agreement, in any Ancillary Agreement, in any
officer's certificate delivered hereunder, or in any written agreement
between a Party and the Company;
(b) All liabilities or obligations of the Indemnifying Party, or
conditions, existing at the time of contribution or transfer of any
property or assets to the Company with respect
vxii
to property or assets so contributed or transferred by the Indemnifying
Party except to the extent specifically assumed by the Company;
(c) The breach or default in performance of any covenant or agreement
required to be performed by the Indemnifying Party contained in the
Agreement or any Ancillary Agreement; or
(d) Any claim, action, suit or proceeding or threat thereof, made or
instituted as a result of acts or omissions of the Indemnifying Party
or its Affiliates unrelated to the business and operations of the
Company or outside the scope of the Indemnifying Party's rights or
authority conferred by this Agreement.
7.2 Survival; Limitations; Procedures.
(a) The indemnification obligations contained in Section 7.1 shall
survive the Fee Closing and shall remain in effect [for a period of
time thereafter equal to the statutes of limitations applicable or
related to the matters indemnified against].
(b) The rights and remedies provided to the Parties and the Company in
this Agreement are cumulative and non-exclusive and shall not preclude
any other right or remedy available to any Party or the Company at law
or in equity.
(c) Notwithstanding any other provision hereof, neither the Company nor
any Party shall be liable to any other Party or its Affiliates, the
Company, or any other Indemnified Person for special, indirect,
punitive or consequential damages, including but not limited to loss of
profit.
(d) If the Indemnifying Party makes any payment in respect of indemnity
obligations under Section 7.1, it shall be subrogated, to the extent of
such payment, to all rights and remedies of the Indemnified Person to
any insurance benefits or other claims of the Indemnified Person with
respect to such claim.
(e) Notwithstanding any other provision hereof, neither the Company nor
any Party shall be liable to any other Party or its Affiliates for
debts, liabilities or any other obligations except as specifically
assumed in a writing in or pursuant to this Agreement.
ARTICLE VIII
POST OPERATIONAL CLOSING
8.1 Services to Company. Existing agreements relating to services
currently being provided to the Cenex/LOL Agronomy Co. by LOL or CHS or to
WilFarm by Farmland including but not limited to those listed on Schedule 8.1
attached hereto will be reviewed and, to the extent appropriate, revised as
necessary or terminated in a manner agreeable to the parties, the intent of all
parties being that the Company should procure at the cost/benefit ratio most
xviii
favorable to the Company. It is anticipated that the definitive agreements will
be negotiated prior to the Operational Closing reflecting the services to be
provided by any of the Members which agreements may but shall not necessarily
include reimbursement for costs of terminating services formerly provided by the
Members with respect to their respective contributed assets.
8.2 Extension of Membership or Patronage Rights. LOL, CHS and
Farmland will each as soon as practical following the Operational Closing extend
the offer of membership and the ability to procure plant food and crop
protection products through the Company on a cooperative basis as facilitated by
each of them, the intention being that all qualified patrons of LOL, CHS and
Farmland will be entitled to participate on a patronage basis in the earnings of
the Members derived from the Company. Except as may be otherwise agreed by the
Members, all marketing of fertilizer and agricultural chemical by the Company is
anticipated to be for the benefit of members and patrons of the Members with the
intention being that LOL, CHS and Farmland will be able to treat their
respective earnings therefrom as patronage business done for their respective
members and patrons as permitted under the Internal Revenue Code. Earnings of
the Company will be split on the basis of the economic interests of the parties
as determined from time to time. An accounting system shall be maintained by the
Company permitting its earnings to be calculated and distributed separately for
fertilizer and crop protection products.
8.3 Non-Competition.
(a) Effective upon the Operational Closing, LOL, CHS and Farmland each
agree not to directly or indirectly engage in the wholesale marketing of
fertilizer and agricultural chemicals except through the Company in the
territory of North America during the time it, or an entity of which it is
a material owner, remains a member of the Company and for a period of four
years thereafter.
(b) The Parties believe that the restrictive covenant contained in this
Section 8.3 is reasonable. However, if any court having jurisdiction shall
at any time hereafter hold this restriction to be unenforceable or
unreasonable, whether as to scope, territory or period of time specified
herein, and if such court shall declare or determine the scope, territory
or period of time which it deems to be reasonable, such scope, territory
or period of time shall be deemed to be reduced to that declared or
determined by said court to be reasonable.
(c) Each Party recognizes that in the event of violation of the terms of
the above covenant, the other Parties will suffer irreparable damages and
that it will be difficult if not impossible to compute actual damages
sustained by such Parties as the result of such unauthorized competition.
Therefore, the Parties agree that each Party shall be entitled to apply to
a court of competent jurisdiction to enjoin any breach, threatened or
actual, of the covenants contained herein.
xix
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. The Parties shall bear their own costs and expenses
incurred in connection with the performance of their obligations under this
Agreement.
9.2 Exchange of Information. Neither any Party nor any of its
Affiliates shall prior to the Operational Closing Date produce to, or exchange
with, another Party any competitively sensitive information unless counsel to
each Party has reached the independent determination, made in good faith, that
the production or exchange of such information will not violate Sections 1 and 2
of the Xxxxxxx Act, 15 U.S.C. Sections 1, 2, Section 7 and 7A of the Xxxxxxx
Act, 15 U.S.C. Sections 18, 18A, and Section 5 of the Federal Trade Commission
Act, 15 U.S.C. Section 45. For these purposes, the term "competitively sensitive
information" shall mean: (i) information concerning allowable and unallowable
costs, including rates for services and price quotes or bids provided to any
government agency or other customer, (ii) trade secrets or confidential
practices, methods or processes, or (iii) any business plans, strategic plans or
competitive strategies.
9.3 Notice. All notices, reports, requests, demands and other
communications under or in connection with this Agreement or any other
agreements entered into between the Parties in connection with this Agreement
shall be written in the English language and shall be sent by registered
airmail, postage prepaid, return receipt requested, and addressed as follows,
and all notices, reports, requests, demands and other communications shall be
deemed to have been given on the date of receipt indicated on the return
receipt.
If to Farmland: Farmland Industries, Inc.
0000 X. Xxx Xxxxxxxxxx
P. O. Xxx 0000
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
If to LOL: Land O'Lakes, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Law Department
If to CHS: Cenex Harvest States Cooperatives
XX Xxx 00000
0000 Xxxxx Xxxxx
Xx. Xxxx, XX 00000-0000
Attention: Law Department
Any Party may change its postal address for the purpose of this Section 9.3 by
notice given to the other Parties in the manner set forth above.
xx
9.4 Assignability; Transferability of Interests in the Company.
Except as otherwise expressly provided in this Agreement, no Party shall assign
or transfer or otherwise dispose of to any third party all or any part of this
Agreement or any of the rights or obligations to accrue hereunder, without the
prior written consent of the other Parties; provided that restrictions, if any,
on the transfer of any interest in the Company shall be as set forth in the LLC
Agreement.
9.5 Entire Agreement and Non-Waiver.
(a) This Agreement and the Ancillary Agreements constitute the entire and
only agreement among the Parties hereto relating to the subject matter of
the joint venture arrangement, and supersede and cancel all previous
negotiations, agreements, commitments or representations (if any), oral or
written, in respect thereto, and shall not be discharged, changed or
modified in any manner except by instruments signed by duly authorized
representatives of the Parties.
(b) Any failure by any Party to enforce any provision of this Agreement
shall not be considered as constituting a waiver of that Party's right to
enforce thereafter the same provision or other provisions hereof whether
or not of similar character.
9.6 Further Assurances. Each Party hereto agrees to perform any
further acts, and to execute and deliver (with acknowledgment, verification,
and/or affidavit, if required) any further documents and instruments, as may be
reasonably necessary or desirable to implement and/or accomplish the provisions
of this Agreement and the transactions contemplated herein.
9.7 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the Parties hereto and no other person or entity is entitled to rely
upon or benefit from this Agreement or any term hereof, except by a writing
signed by all of the Parties hereto.
9.8 Modification. The terms of this Agreement may not be modified,
amended, or otherwise changed in any manner, except by an instrument in writing
executed by each of the parties hereto.
9.9 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and assigns of the
parties hereto.
xxi
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
FARMLAND INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice-President and COO
Date: February 3, 0000
XXXXX XXXXXXX XXXXXX COOPERATIVES
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
Date: 2/03/00
LAND O'LAKES, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: President and CEO
Date: February 3, 2000
UNITED COUNTRY BRANDS LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------ By: /s/ Xxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxx -----------------------------
Title: Executive Vice-President Name: Xxxx X. Xxxxxxx
and COO Title: Manager
EXHIBIT A
DEFINED TERMS
The definitions shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed to be references to Articles and Sections
of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. The headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. Unless the context shall
otherwise require, any reference to any contract or law are to it as amended and
supplemented from time to time (and, in the case of a statute or regulation, to
any successor provision). Any reference in this Agreement to a "day" or a number
of "days" (without the explicit qualification of "business") shall be
interpreted as a reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day, and
such calendar day is not a business day, then such action or notice shall be
deferred until, or may be taken or given on, the next business day. Unless
otherwise specifically indicated, the word "or" shall be deemed to be inclusive
and not exclusive.
"AFFILIATE", when used with reference to a specified Person, shall
mean a Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the specified
Person. For purposes of this definition, "CONTROL" shall mean the direct or
indirect actual or beneficial ownership of securities or other interests having
by their terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to such Person.
"AGREEMENT" means this Joint Venture Agreement among CHS, Farmland,
and LOL.
"ANCILLARY AGREEMENTS" means the documents listed as Exhibits B
through L in Article I, in each case as such document may be amended, restated
or otherwise modified from time to time in accordance with the terms of such
document and this Agreement.
"CHS" means Cenex Harvest States Cooperatives.
"COMPANY" shall have the meaning set forth in Section 1.1.
"CONSENT" means any consent, approval, permit, or other
authorization of, or declaration or notice to or filing with, any Governmental
Authority or any other Person.
"UCB" means the company surviving as the result of the merger
between Farmland and CHS.
"UNITED LLC CONTRIBUTED ASSETS" shall have the meaning set forth in
Section 1.5(a).
"UCB PARTIES" means Farmland and CHS collectively.
xxiii
"UNITED LLC PERSONAL PROPERTY" shall have the meaning set forth in
Section 1.5(a).
"DISPUTE" means any dispute, controversy or claim arising out of or
relating to this Agreement regarding any alleged or actual breach, termination
or invalidity thereof.
"EXHIBIT" means any of Exhibits A through D attached to this
Agreement.
"FARMLAND" means Farmland Industries, Inc.
"GOVERNMENTAL AUTHORITY" means any nation or government, any region,
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any Person owned or controlled through stock or
capital ownership or otherwise by any of the foregoing.
"GOVERNMENTAL LICENSES" means all licenses, permits, and other
authorizations issued by any Governmental Authority.
"INDEMNIFIED PERSONS" shall have the meaning set forth in Section
7.1.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
7.1.
"LLC AGREEMENT" shall have the meaning set forth in Section 1.
"LOL" means LOL, Inc.
"LOL CONTRIBUTED ASSETS" shall have the meaning set forth in Section
1.4(a).
"LOL PERSONAL PROPERTY" shall have the meaning set forth in Section
1.4(a).
"KNOWLEDGE" means the actual knowledge of the officers of the Party
and its Affiliates as of the date of this Agreement.
"MATERIAL ADVERSE EFFECT" means, with respect to a specific asset,
business or Person, any fact, circumstance or condition that would reasonably be
expected to have a material adverse effect on the business, operations, assets,
financial condition or prospects thereof, taken as a whole.
"MEMBERS" means UNITED LLC and LOL, collectively.
"OTHER ASSETS" shall have the meaning set forth in Section 1.5(b).
"OPERATIONAL CLOSING" means the meeting at which the actions and
deliveries referenced in section 5.4 are made, and "OPERATIONAL CLOSING DATE"
means the date of such closing as also set forth in Section 5.4.
"PARTY" and "PARTIES" shall have the meaning set forth in the
Preamble.
"RECIPIENT" shall have the meaning set forth in Section 8.2(c).
"SCHEDULE" means any of Schedules attached to this Agreement.
"THIRD PARTY CLAIM" shall have the meaning set forth in Section
7.2(d).
"WORKING ASSET CLOSING" means the meeting at which the actions and
deliveries referenced in section 5.5 are made, and "WORKING ASSET CLOSING DATE"
means the date of such closing as also set forth in Section 5.5.
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