AMENDED AND RESTATED
MILL AGREEMENT
by and between
XXXXXX MILLING COMPANY,
WINCHESTER PASTA, L.L.C.
and
PASTA GROUP, L.L.C.
March 10, 0000
Xxxxxxxxxx, Xxxxxxxx
TABLE OF CONTENTS
Page
GENERAL BACKGROUND............................................................1
ARTICLE I - DEFINITIONS......................................................2
Section 1.01 Accounting Terms.......................................2
Section 1.02 Buhler Contracts.......................................2
Section 1.03 Contract Goods.........................................3
Section 1.04 Contract Price.........................................3
Section 1.05 Contract Year..........................................3
Section 1.06 Daily Plant Capacity...................................3
Section 1.07 Delivery Period........................................3
Section 1.08 Fancy Patent Flour.....................................3
Section 1.09 Flour Requirements.....................................3
Section 1.10 Initial Term...........................................3
Section 1.11 Lebanon Plant..........................................4
Section 1.12 Lebanon Property.......................................4
Section 1.13 Mill...................................................4
Section 1.14 Mill Assets............................................4
Section 1.15 Mill Capacity..........................................4
Section 1.16 Mill Property..........................................4
Section 1.17 Mill Reconfiguration...................................4
Section 1.18 New World Pasta Company................................5
Section 1.19 Plant..................................................5
Section 1.20 Plant Property.........................................5
Section 1.21 Producer Price Index...................................5
Section 1.22 Semolina...............................................5
ARTICLE II - OPERATIONS......................................................5
Section 2.01 Quantity...............................................5
Section 2.02 Quality Requirements of Individual Purchases...........6
Section 2.03 Purchase of Excess Contract Goods......................7
Section 2.04 Permits and Licenses...................................9
Section 2.05 Price..................................................9
Section 2.06 Payment...............................................15
Section 2.07 Notice of Flour Requirements..........................16
Section 2.08 Delivery of Contract Goods............................16
Section 2.09 Failure of Supply and Liquidated Damages..............17
Section 2.10 Purchase and Manufacturing Records....................18
Section 2.11 Inspection............................................19
Section 2.12 Quantity of Contract Goods Delivered..................19
Section 2.13 Terms of Sale.........................................19
Section 2.14 Maintenance Program...................................20
i
Section 2.15 Force Majeure.........................................20
ARTICLE III - RESPECTIVE RIGHTS, TERMINATION AND TRANSFER...................21
Section 3.01 Term..................................................21
Section 3.02 Breach of Obligations.................................26
Section 3.03 Termination by Xxxxxx.................................26
ARTICLE IV - GENERAL PROVISIONS.............................................27
Section 4.01 Governing Law.........................................27
Section 4.02 Right of First Refusal................................27
Section 4.03 Notices...............................................28
Section 4.04 Breach of Agreement...................................29
Section 4.05 Confidentiality.......................................29
Section 4.06 Arbitration...........................................30
Section 4.07 Binding Effect and Assignment.........................30
Section 4.08 Severability..........................................31
Section 4.09 Counterparts..........................................31
Section 4.10 Integration...........................................31
Section 4.11 Costs of Mill Reconfiguration.........................31
Section 4.12 Title to Equipment and Fixtures.......................32
LIST OF EXHIBITS
Exhibit A - Specifications
Exhibit B - Delivery Procedures
Exhibit C - Example of Calculations for Sections 2.05 and 3.01
Exhibit D - Legal Description of Mill Property
Exhibit E - Legal Description of Plant Property
Exhibit F - Legal Description of Lebanon Property
ii
MILL AGREEMENT
THIS MILL AGREEMENT ("Agreement") is made and entered into effective as of
the 10th day of March, 2000, by and among XXXXXX MILLING COMPANY, a Minnesota
corporation ("Xxxxxx"), WINCHESTER PASTA, L.L.C., a Delaware limited liability
company ("WPLLC") and PASTA GROUP, L.L.C., a Delaware limited liability company
("PGLLC").
In consideration of the mutual covenants and agreements herein contained,
and intending to be legally bound, it is agreed by and between the parties
hereto as follows:
GENERAL BACKGROUND
------------------
A. WPLLC has acquired and is operating a pasta manufacturing and processing
plant located in or near Winchester, Virginia (the "Plant") on land owned by
WPLLC (the "Plant Property").
B. PGLLC owns and is operating a pasta manufacturing and processing plant
located in or near Lebanon, Pennsylvania (the "Lebanon Plant") on land owned by
PGLLC (the "Lebanon Plant Property").
C. WPLLC and PGLLC need to purchase substantial quantities of semolina and
durum wheat flours for use in conjunction with the operation of the Plant and
the Lebanon Plant.
D. WPLLC desires to have a flour mill capable of supplying the Flour
Requirements of the Plant located adjacent to the Mill and operated as an
integrated part of the Plant operations (the "Mill").
X. Xxxxxx has constructed and is operating the Mill for processing durum
wheat and producing Contract Goods (as hereinafter defined).
X. Xxxxxx, before commencing construction of the Mill, desired to secure a
commitment for a large volume of business on a continuing basis, which Xxxxxx
secured from the Hershey Pasta & Grocery Group, a division of Hershey Foods
Corporation ("HPG") (some of the assets of which have now been acquired by
WPLLC, including, without limitation, the Plant), pursuant to a Mill Agreement
dated April 17, 1992, which was amended pursuant to an Amendment to Mill
Agreement dated September 2, 1992, a Second Amendment to Mill Agreement dated
June 5, 1996, an Amended and Restated Mill Agreement dated July 29, 1998, and an
Amended and Restated Mill Agreement dated January 28, 1999 (the "Existing Mill
Agreement").
G. WPLLC and PGLLC have collectively assumed the obligations and succeeded
to the rights of HPG under the Existing Mill Agreement.
H. WPLLC, PGLLC and Xxxxxx now wish to modify certain terms of the Existing
Mill Agreement and, in connection therewith, to amend and restate the Existing
Mill Agreement in its entirety on the terms and conditions hereinafter set
forth.
ARTICLE I
DEFINITIONS
-----------
For the purposes of this Agreement, the following definitions shall have
the meanings set forth below:
Section 1.01 Accounting Terms. Any accounting terms used in this Agreement
----------------
which are not specifically defined shall have the meanings customarily given
them in accordance with generally accepted accounting principles.
Section 1.02 Buhler Contracts. The term "Buhler Contracts" means the
----------------
Contract dated January 20, 2000, between Xxxxxx and Buhler for certain
modifications to Xxxxxx'x "A Mill" in
2
Winchester which are designed to produce the Contract Goods in accordance with
WPLLC's request and the Contract dated January 20, 2000, between Xxxxxx and
Buhler for those modifications to Xxxxxx'x "B Mill" in Winchester which are
designed to produce the Contract Goods in accordance with WPLLC's request.
Section 1.03 Contract Goods. The term "Contract Goods" shall mean
--------------
collectively semolina and durum wheat flours used by WPLLC and PGLLC to
manufacture pasta and noodles.
Section 1.04 Contract Price. The price for Contract Goods determined in
--------------
accordance with Sections 2.05 or 3.01.
Section 1.05 Contract Year. The term "Contract Year" shall mean a calendar
-------------
year beginning on January 1 and ending on December 31.
Section 1.06 Daily Plant Capacity. The daily production capacity of the
--------------------
Plant requires at least [Confidential Treatment Requested by New World Pasta].
Section 1.07 Delivery Period. The term "Delivery Period" shall mean any
---------------
period during which Contract Goods purchased by WPLLC or PGLLC are to be
delivered.
Section 1.08 Fancy Patent Flour. The flour produced from durum wheat which
------------------
meets WPLLC or PGLLC specifications for "fancy patent flour".
Section 1.09 Flour Requirements. "Flour Requirements" shall mean the
------------------
semolina and durum wheat flour raw material needs of the Plant and Lebanon Plant
as ordered by WPLLC and PGLLC, respectively.
Section 1.10 Initial Term. As defined in Section 3.01.
------------
Section 1.11 Lebanon Plant. "Lebanon Plant" means the production facility
-------------
located in Lebanon, Pennsylvania which is owned by PGLLC.
3
Section 1.12 Lebanon Property. "Lebanon Property" means the real property
----------------
legally described on Exhibit F attached hereto on which the Lebanon Plant is
located.
Section 1.13 Mill. The "Mill" shall mean the flour xxxxx located on the
----
Mill Property which are capable of processing durum wheat in sufficient
quantities to supply the Plant's Flour Requirements, subject to the limitations
set forth in this Agreement.
Section 1.14 Mill Assets. As defined in Section 4.02.
-----------
Section 1.15 Mill Capacity. The term "Mill Capacity" shall mean the
-------------
quantity of Contract Goods which the Mill shall be capable of producing,
operating [Confidential Treatment Requested by New World Pasta]. The Mill will
be capable of producing fancy patent flours daily in amounts which are no more
than [Confidential Treatment Requested by New World Pasta].
Section 1.16 Mill Property. The land in or near Winchester, Virginia, owned
-------------
by Xxxxxx Milling Company Limited Partnership on which the Mill is located and
which is legally described on Exhibit D attached hereto.
Section 1.17 Mill Reconfiguration. The term "Mill Reconfiguration" shall
--------------------
mean the modifications to Xxxxxx'x A and B Xxxxx in Winchester which are
designed to produce the Contract Goods in accordance with WPLLC's and PGLLC's
request. Such modifications are more particularly described in the Buhler
Contracts.
Section 1.18 New World Pasta Company. "New World Pasta Company" or
-----------------------
"NWP" means New World Pasta Company f/k/a Hershey Pasta Manufacturing Group, a
Delaware corporation, which owns all of the issued and outstanding equity
interests in WPLLC and PGLLC.
Section 1.19 Plant. The term "Plant" shall mean WPLLC's pasta production
-----
facility located in or near Winchester, Virginia.
4
Section 1.20 Plant Property. The land in or near Winchester, Virginia owned
--------------
by WPLLC on which the Plant is located and which is legally described on Exhibit
E attached hereto.
Section 1.21 Producer Price Index. The term "Producer Price Index" or "PPI"
--------------------
means the Producer Price Index for Total Manufacturing Industries as published
by the Bureau of Labor and Statistics for the United States Department of Labor.
Section 1.22 Semolina. The flour produced from durum wheat which meets
--------
WPLLC and PGLLC specifications. It is recognized that there is a Standard of
Identity for semolina promulgated by the U.S. Food and Drug Administration. The
Mill shall be capable of producing semolina consistent with such standard as it
now exists or may exist in the future.
5
ARTICLE II
OPERATIONS
----------
Section 2.01 Quantity. During each Contract Year and subject to the further
--------
terms of this Agreement, WPLLC agrees to purchase from Xxxxxx and Xxxxxx agrees
to sell to WPLLC and supply from the Mill the Contract Goods which WPLLC shall
require during such Contract Year in conjunction with the ongoing operation of
the Plant. Except as otherwise set forth below in this Section 2.01, the parties
agree that Xxxxxx'x obligation to supply Contract Goods to WPLLC and WPLLC's
obligation to purchase Contract Goods from Xxxxxx under this Agreement shall
apply only to the Daily Plant Capacity as defined in Section 1.06. All
non-Contract Goods emanating from the Mill shall belong to Xxxxxx. If WPLLC
increases the Daily Plant Capacity to produce pasta products over the amount
stated in Section 1.06, then WPLLC shall permit Xxxxxx to offer, on terms and
conditions Xxxxxx deems appropriate, to supply WPLLC Contract Goods at the Plant
to meet such increased capacity requirements, provided, however, that at all
times Xxxxxx shall supply WPLLC its requirements for Contract Goods for the
Plant as ordered by WPLLC regardless of the Daily Plant Capacity up to a maximum
annual capacity of [Confidential Treatment Requested by New World Pasta] of
Contract Goods.
Section 2.02 Quality Requirements of Individual Purchases. Xxxxxx shall
--------------------------------------------
sell and deliver, in accordance with the instructions of WPLLC and PGLLC and the
terms of this Agreement, the specific Contract Goods which are ordered by WPLLC
and PGLLC. Such Contract Goods shall be of a quality in accordance with the
specifications set forth in Exhibit A. Further, the specifications shall be
changed if required by law or regulation or at WPLLC's or PGLLC's election. If
WPLLC or PGLLC elects to change the specifications for Contract Goods, it shall
give Xxxxxx at
6
least thirty (30) days prior notice. If any change in the specifications results
in increased costs to Xxxxxx in providing Contract Goods and such cost increase
is documented by records kept in the ordinary course of business, then the
parties shall negotiate in good faith an adjustment to the pricing formulas of
this Agreement to address such increased costs. The Contract Goods processed and
delivered by Xxxxxx to WPLLC and PGLLC under the terms of this Agreement shall
also conform to all applicable federal, state and local laws and regulations.
Xxxxxx warrants that its processing of the Contract Goods shall be in accordance
with good manufacturing practices, all applicable laws and regulations and
WPLLC's and PGLLC's specifications and that the Mill shall be maintained in a
sanitary, food grade status. WPLLC and PGLLC may reject any Contract Goods which
fail to comply with the provisions of this Section and under such circumstances
Xxxxxx shall retrieve, as necessary, all such non-conforming Contract Goods and
bear all costs and expenses associated with such non-conforming Contract Goods,
including but not limited to, reimbursement to WPLLC and PGLLC for any costs
involved in handling or processing such Contract Goods, retrieval of such
Contract Goods, costs and expenses incurred by WPLLC or PGLLC in connection with
the handling of work-in-process or finished goods utilizing such non-conforming
Contract Goods. Costs and expenses incurred in connection with finished goods
shall be borne by Xxxxxx only to the extent WPLLC and PGLLC can reasonably
demonstrate that the problem with the finished goods arose from a problem with
Contract Goods supplied by Xxxxxx. Xxxxxx shall take samples at regular
intervals of Contract Goods prior to delivery to WPLLC and PGLLC.
Section 2.03 Purchase of Excess Contract Goods. To the extent that the
---------------------------------
quantity of Contract Goods purchased from the Mill for use at the Plant is less
than the quantity of Contract Goods that would be required to satisfy the Daily
Plant Capacity (the amount of such difference
7
being referred to herein as the "Excess Contract Goods"), PGLLC agrees to
purchase from Xxxxxx, and Xxxxxx agrees to sell to PGLLC, such Excess Contract
Goods for use by PGLLC at PGLLC's Lebanon Plant. For purposes of this provision,
PGLLC shall be obligated to purchase Excess Contract Goods from Xxxxxx for the
Lebanon Plant equal to the amount of such Excess Contract Goods, but not more
than [Confidential Treatment Requested by New World Pasta] of the Lebanon
Plant's annual requirements for Contract Goods during each Contract Year.
Notwithstanding the above, Xxxxxx'x obligation to supply Contract Goods to the
Lebanon Plant shall extend to all PGLLC orders, up to [Confidential Treatment
Requested by New World Pasta] of the Lebanon Plant's annual requirements for
Contract Goods, but Xxxxxx shall not be obligated to supply Contract Goods to
the Plant and the Lebanon Plant in an amount in excess of the maximum annual
Mill Capacity of [Confidential Treatment Requested by New World Pasta] of
Contract Goods. The price and payment terms for such Contract Goods delivered to
the Lebanon Plant shall be the same as the price and payment terms for Contract
Goods supplied to the Plant under this Agreement, except that PGLLC shall pay
Xxxxxx for actual delivery charges incurred to transport the Contract Goods from
the Mill to the Lebanon Plant. For purposes of this provision, all delivery
shall be as reasonably directed by PGLLC. In the event rail transportation is
specified by PGLLC, the actual delivery charge shall not exceed the lowest
available rate for movement in private cars and Xxxxxx shall be responsible for
supplying the private cars. If alternate delivery is made necessary due solely
to actions or omissions of PGLLC, PGLLC will be responsible for any delivery
charges in excess of [Confidential Treatment Requested by New World Pasta].
Notwithstanding the above, [Confidential Treatment Requested by New World
Pasta], it being the intent of the parties that the [Confidential Treatment
Requested by New World Pasta]. At the end of the Initial Term, if
8
WPLLC renews the Agreement pursuant to Section 3.01, the transportation cost if
rail transportation is specified by PGLLC, will be adjusted to take into account
any increase or decrease in the cost of leasing private rail cars.
Section 2.04 Permits and Licenses. Xxxxxx shall acquire and maintain all
--------------------
material licenses and permits required for the handling, processing and
production of the Contract Goods and operations of the Mill. WPLLC and PGLLC
shall exercise reasonable commercial judgment in obtaining and maintaining
necessary and material licenses and permits for the operation of the Plant and
the Lebanon Plant.
Section 2.05 Price. WPLLC shall purchase from Xxxxxx and Xxxxxx shall sell
-----
to WPLLC, FOB [Confidential Treatment Requested by New World Pasta], WPLLC's
requirements of Contract Goods, in conformance with Section 2.01, at the Plant.
For purposes of calculating the price of Contract Goods, the price of durum
wheat FOB [Confidential Treatment Requested by New World Pasta] will include
[Confidential Treatment Requested by New World Pasta]. The price that WPLLC
shall pay for the Contract Goods delivered to the Plant shall be determined in
accordance with Section 2.05(a)(A) or Section 2.05(a)(B) as applicable, if
Xxxxxx purchases the durum wheat, or in accordance with Section 2.05(b)(A) or
Section 2.05(b)(B) as applicable, if WPLLC elects to purchase the durum wheat
directly.
(a) If Xxxxxx purchases the durum wheat to produce the Contract Goods:
(A) From the date hereof until the date which is [Confidential
Treatment Requested by New World Pasta], the purchase price
per cwt for semolina and other durum wheat flour specified
by WPLLC shall be [Confidential Treatment Requested by New
World Pasta].
9
If the total [Confidential Treatment Requested by New World
Pasta] exceeds [Confidential Treatment Requested by New
World Pasta] shall be adjusted to [Confidential Treatment
Requested by New World Pasta]. If the total annual
[Confidential Treatment Requested by New World Pasta] shall
be adjusted [Confidential Treatment Requested by New World
Pasta] for all [Confidential Treatment Requested by New
World Pasta].
(B) From and after the date which is [Confidential
Treatment Requested by New World Pasta], the
purchase price for the Contract Goods manufactured
by Xxxxxx for WPLLC shall be [Confidential Treatment
Requested by New World Pasta]. Such [Confidential
Treatment Requested by New World Pasta] shall be
calculated according to the following formula:
[Confidential Treatment Requested by New World Pasta]
After completion of the above calculation, the purchase
price per cwt for semolina and other durum wheat flour
specified by WPLLC shall be determined by [Confidential
Treatment Requested by New World Pasta]
If the total [Confidential Treatment Requested by New World
Pasta] of durum flour exceeds [Confidential Treatment
Requested by New World Pasta], the tolling charge shall be
adjusted to an amount equal to [Confidential Treatment
Requested by New World Pasta] for all purchases which exceed
[Confidential Treatment Requested by New World Pasta]. If the
total [Confidential Treatment
10
Requested by New World Pasta] of durum flour exceeds [Confidential
Treatment Requested by New World Pasta], the tolling charge shall be
adjusted further to an amount equal to [Confidential Treatment
Requested by New World Pasta].
Under the pricing mechanism for Contract Goods where Xxxxxx purchases the
durum wheat, Xxxxxx shall [Confidential Treatment Requested by New World Pasta].
During the [Confidential Treatment Requested by New World Pasta] beginning
on the date on which the [Confidential Treatment Requested by New World Pasta],
the price of Contract Goods shall be computed in accordance with the formula set
forth in Section 2.05(a)(A). However, Xxxxxx agrees that it will [Confidential
Treatment Requested by New World Pasta]. Such [Confidential Treatment Requested
by New World Pasta] shall be computed as the [Confidential Treatment Requested
by New World Pasta]. Such [Confidential Treatment Requested by New World Pasta]
at the end of each month based upon [Confidential Treatment Requested by New
World Pasta].
(b) [Confidential Treatment Requested by New World Pasta]. For purposes
of exercise of this provision, Xxxxxx agrees to make available for WPLLC's use,
[Confidential Treatment Requested by New World Pasta]. Each bushel of wheat
delivered by WPLLC hereunder shall establish the price of (i) [Confidential
Treatment Requested by New World Pasta] pounds of Contract Goods to WPLLC if
computed under 2.05(b)(A), or (ii) [Confidential Treatment Requested by New
World Pasta] of Contract Goods to WPLLC if computed under 2.05(b)(B). At the
time of such purchase by WPLLC, Xxxxxx will indicate to WPLLC the quantity
necessary to produce the Contract Goods being priced by WPLLC. WPLLC's delivery
of said
11
purchases to the Mill will be evenly spread over the delivery period of the
Contract Goods. If said purchases are delivered to the Mill by rail they will be
delivered in accordance with normal rail delivery practices. The payment for
said wheat shall be made to WPLLC in accordance with normal terms from the date
of delivery and subject to receipt of freight and wheat purchase documentation.
(A) If WPLLC purchases the durum wheat directly, from the date
hereof until [Confidential Treatment Requested by New World
Pasta], the purchase price for the Contract Goods
manufactured by Xxxxxx for WPLLC shall be [Confidential
Treatment Requested by New World Pasta].
If the total [Confidential Treatment Requested by New World Pasta]
(including [Confidential Treatment Requested by New World Pasta] exceeds
[Confidential Treatment Requested by New World Pasta]. If the total annual
[Confidential Treatment Requested by New World Pasta] shall be adjusted
[Confidential Treatment Requested by New World Pasta]. Under this pricing
mechanism, Xxxxxx shall [Confidential Treatment Requested by New World Pasta].
(B) If WPLLC purchases the durum wheat directly, then from and
after the date which is [Confidential Treatment Requested by
New World Pasta], the purchase price for the Contract Goods
manufactured by Xxxxxx for WPLLC shall be [Confidential
Treatment Requested by New World Pasta]
After completion of the above calculation, the purchase price per cwt for
semolina and other durum wheat flour specified by WPLLC shall be
[Confidential Treatment Requested by New World Pasta].
12
If the total [Confidential Treatment Requested by New World Pasta]
exceeds [Confidential Treatment Requested by New World Pasta], the
tolling charge shall be adjusted [Confidential Treatment Requested by
New World Pasta]. If the total [Confidential Treatment Requested by
New World Pasta] exceeds [Confidential Treatment Requested by New
World Pasta], the tolling charge shall be adjusted [Confidential
Treatment Requested by New World Pasta].
During the [Confidential Treatment Requested by New World Pasta], the price
of Contract Goods shall be computed in accordance with the formula set forth in
Section 2.05(b)(A). However, Xxxxxx agrees that [Confidential Treatment
Requested by New World Pasta]. Such [Confidential Treatment Requested by New
World Pasta]. Such [Confidential Treatment Requested by New World Pasta].
Notwithstanding anything contained in this Section 2.05 to the
contrary, in the event that both Xxxxxx and WPLLC mutually agree, Xxxxxx may
offer to manufacture and sell to WPLLC Contract Goods at an amount less than the
formula pricing as provided for in any paragraph of this Section 2.05.
Examples of how the purchase price for Contract Goods shall be
calculated pursuant to this Section 2.05 are set forth in Exhibit C attached
hereto.
Section 2.06 Payment. Payment terms for Contract Goods sold pursuant to
-------
this Agreement shall be [Confidential Treatment Requested by New World Pasta]
from receipt at the Plant or the Lebanon Plant, as applicable, of Xxxxxx'x
shipment, or [Confidential Treatment Requested by New World Pasta] from receipt
of Xxxxxx'x invoice at WPLLC's or PGLLC's billing location, as applicable, which
invoice shall not be issued until after delivery of the subject Contract Goods,
or as otherwise agreed upon between the parties.
13
Section 2.07 Notice of Flour Requirements. On or before the [Confidential
----------------------------
Treatment Requested by New World Pasta] of each month, or other schedule that
the parties agree upon, WPLLC and PGLLC shall use reasonable efforts to give a
nonbinding delivery schedule to Xxxxxx, in writing or by telephone, forecasting
the type and quantity of Contract Goods which WPLLC and PGLLC shall require at
the Plant and, as may be applicable (and to the extent such orders in total do
not exceed [Confidential Treatment Requested by New World Pasta] of Contract
Goods per year), [Confidential Treatment Requested by New World Pasta], during
the following month. Xxxxxx shall deliver Contract Goods in accordance with
WPLLC's and PGLLC's actual orders but will not be required to deliver Contract
Goods to WPLLC or PGLLC unless and until the price for such Contract Goods has
been fixed pursuant to Section 2.05. The parties recognize that sales of pasta
products in which the Contract Goods will be utilized are seasonal in nature.
Therefore, WPLLC and PGLLC cannot plan or predict with certainty their need for
Contract Goods. Such forecast by WPLLC and PGLLC, therefore, shall not be
binding on WPLLC or PGLLC with respect to the amount of Contract Goods which are
actually ordered.
Section 2.08 Delivery of Contract Goods. Delivery of Contract Goods to
--------------------------
WPLLC shall be made to the Plant at such times as shall be ordered by WPLLC by
[Confidential Treatment Requested by New World Pasta], provided, however, that
Xxxxxx shall not be required to ship Contract Goods on Saturdays, Sundays, or
any other day the Mill is closed by reason of a legal or recognized holiday
unless Xxxxxx has been notified of the need for such shipment [Confidential
Treatment Requested by New World Pasta] in advance. In the event of interruption
of such method of delivery of Contract Goods to the Plant from the Mill, Xxxxxx
will, unless prevented by events described in Section 2.15 supply WPLLC all of
its requirements for the Plant in some other
14
fashion bearing all the cost and expense of doing so. Title to the Contract
Goods shall transfer to WPLLC at the point where the pneumatic pipe enters the
Plant, or if another delivery method is used, then when WPLLC takes possession
of the Contract Goods. If the Mill is closed or not operating, WPLLC may still
take delivery of Contract Goods, to the extent of inventory available, by
utilizing the control panel in WPLLC's Plant which controls the flow of Contract
Goods through the pneumatic pipes in accordance with agreed upon procedures
between Xxxxxx and WPLLC. Delivery of Contract Goods to PGLLC at the Lebanon
Plant shall be in accordance with the procedure set forth in Exhibit B which is
attached hereto, covering Contract Goods which are shipped either by rail or by
truck. Title to the Contract Goods shall transfer to PGLLC at the time of
acceptance by PGLLC at the Lebanon Plant.
Section 2.09 Failure of Supply and Liquidated Damages. In the event that
----------------------------------------
Xxxxxx shall become unable to supply WPLLC or PGLLC with its requirements in
accordance with Section 2.01 or Section 2.03, or to perform any particular
contract between Xxxxxx and WPLLC or PGLLC, for the sale of any particular
quantity or type of Contract Goods for any reason, unless covered by Section
2.15, Xxxxxx shall either purchase sufficient quantities and quality of
comparable Contract Goods on the open market to fulfill the orders of WPLLC or
PGLLC or immediately notify WPLLC or PGLLC upon receipt of WPLLC's or PGLLC's
order that Xxxxxx is unable to make the necessary purchases or to make WPLLC's
or PGLLC's required deliveries, to enable WPLLC or PGLLC to effect its own cover
for such orders from other suppliers and Xxxxxx shall pay to WPLLC or PGLLC, as
liquidated damages and not as a penalty, the difference between WPLLC's or
PGLLC's cost of cover for any Contract Goods (which cost includes all freight
and transaction costs for such cover) which Xxxxxx failed to so deliver and the
contract price thereof. Such payment shall be made within
15
[Confidential Treatment Requested by New World Pasta] after WPLLC or PGLLC shall
have paid for such cover and apprised Xxxxxx of the cost of such cover. Xxxxxx,
WPLLC and PGLLC acknowledge that the terms of this Section 2.09 which provide
for liquidated damages are not intended to apply to those force majeure
circumstances described in Section 2.15.
Section 2.10 Purchase and Manufacturing Records.
----------------------------------
(a) Xxxxxx shall keep complete, true and accurate records and accounts
with respect to all matters and inputs affecting the price of Contract Goods,
including but not limited to, records with respect to purchasing and
transporting of flour, such records to be kept in accordance with generally
accepted accounting principles applied on a consistent basis from year to year.
WPLLC and PGLLC and each of their representatives shall have the right to audit
such records and accounts after reasonable prior notice to Xxxxxx, and Xxxxxx
shall provide WPLLC and PGLLC with monthly statements of such matters in such
form as shall be reasonably requested by WPLLC or PGLLC.
(b) Xxxxxx shall also keep complete, true and accurate records with
respect to manufacturing practices, quality assurance measures, analytical
procedures and data and inspection reports. Xxxxxx shall allow WPLLC and PGLLC
access to such records upon WPLLC's or PGLLC's request insofar as they deal with
the Contract Goods.
Section 2.11 Inspection. During the term of this Agreement, Xxxxxx shall
----------
provide WPLLC and PGLLC with access to the Mill at any time during operating
hours after reasonable notification by WPLLC to Xxxxxx. WPLLC and PGLLC shall
not be required to give Xxxxxx notice in emergency situations. Xxxxxx shall
promptly notify WPLLC and PGLLC of the results of any and all inspections of the
Mill by any regulatory or industry authority. Further, Xxxxxx shall immediately
notify WPLLC
16
and PGLLC of any deficiencies, sanitation or quality problems in incoming flour,
operations or Contract Goods identified by Xxxxxx, regulatory authorities or any
third party.
Section 2.12 Quantity of Contract Goods Delivered. In order to determine
------------------------------------
and track the quantity of Contract Goods delivered by Xxxxxx to WPLLC through
the pneumatic pipes, all Contract Goods shall be weighed by a scale at the point
of discharge from the Mill storage silos into the pneumatic pipes. For purposes
of confirming the quantity there shall also be weighing done by volumetric scale
based on totaling air lock turns. Adjustments to quantity and/or equipment shall
be made if these weighing mechanisms do not conform. At any time, WPLLC may
enter the Mill to check, recalibrate or otherwise investigate the weighing
equipment for accuracy and proper operation. Determination of the quantity of
Contract Goods delivered to the Lebanon Plant shall be based upon certified
railroad weight certificates if the Contract Goods are delivered by rail or upon
certified bills of lading if the Contract Goods are not delivered by rail.
Section 2.13 Terms of Sale. Except as otherwise provided in this Agreement
-------------
or in any particular contract for the purchase and delivery of any particular
quantity of Contract Goods, all sales of Contract Goods shall be governed by the
Uniform Commercial Code.
Section 2.14 Maintenance Program. Xxxxxx shall adhere to, at its cost, a
-------------------
program for the maintenance of the Mill and any and all equipment installed
therein, which program shall be in keeping with the generally accepted industry
standards for such programs and which shall also be as reasonable and prudent as
Xxxxxx'x program for the maintenance at other Xxxxxx facilities. Such
maintenance program shall also be consistent with all requirements and
recommendations of the equipment manufacturers.
17
Section 2.15 Force Majeure. Xxxxxx, WPLLC and PGLLC shall be excused from
-------------
performance of the purchase and supply provisions of this Article II by reason
of circumstances beyond their control, including, but not limited to, acts of
God, disaster, fire, floods, the elements, lockouts, strikes, embargoes,
governmental acts, wars (declared or undeclared) and riots. The party
experiencing such force majeure shall provide prompt notice to the other party
and its performance shall be excused during the existence of such force majeure.
The party experiencing such force majeure shall use its best efforts to remove,
rectify or correct such force majeure and if the force majeure extends for
longer than eighteen (18) months, the other party shall have the option of
terminating this Agreement upon written notice. If the force majeure prevents
Xxxxxx from supplying Contract Goods to the Plant or the Lebanon Plant as
required by this Agreement, then after nine (9) months of such force majeure,
and during the continuance of such force majeure, Xxxxxx agrees to reimburse
WPLLC or PGLLC for the difference in cost to WPLLC or PGLLC of Contract Goods
required to be purchased by WPLLC or PGLLC for operation of the Plant or the
Lebanon Plant, as applicable, and the cost of such Contract Goods as calculated
under Section 2.05.
ARTICLE III
RESPECTIVE RIGHTS, TERMINATION AND TRANSFER
-------------------------------------------
Section 3.01 Term. The Initial Term of this Agreement shall expire on
----
[Confidential Treatment Requested by New World Pasta]; provided, however, that
the tolling charge used in calculating the purchase price for Contract Goods
shall be adjusted on [Confidential Treatment Requested by New World Pasta] and
on the first day of each [Confidential Treatment Requested by New World Pasta]
thereafter throughout the Initial Term through and including [Confidential
Treatment Requested by New World Pasta] to preserve [Confidential
18
Treatment Requested by New World Pasta] as defined below, [Confidential
Treatment Requested by New World Pasta] as measured by [Confidential Treatment
Requested by New World Pasta] in accordance with the following formulas:
[Confidential Treatment Requested by New World Pasta].
The initial adjustment shall be calculated using the month of [Confidential
Treatment Requested by New World Pasta] for the adjustment which takes effect on
[Confidential Treatment Requested by New World Pasta], and the adjustment for
each [Confidential Treatment Requested by New World Pasta] adjustment date
thereafter shall be calculated by using a [Confidential Treatment Requested by
New World Pasta]. The Base Year Processing Margin for the adjustment which takes
effect on [Confidential Treatment Requested by New World Pasta]. The calculation
of these adjustments shall be made in accordance with the following:
[Confidential Treatment Requested by New World Pasta] are:
[Confidential Treatment Requested by New World Pasta] and other [Confidential
Treatment Requested by New World Pasta] (which shall only mean the [Confidential
Treatment Requested by New World Pasta] and [Confidential Treatment Requested by
New World Pasta]. It is the intent of the parties that [Confidential Treatment
Requested by New World Pasta] derived by dividing the sum total of each such
[Confidential Treatment Requested by New World Pasta] incurred during the
[Confidential Treatment Requested by New World Pasta] by the total [Confidential
Treatment Requested by New World Pasta] during the same twelve (12) month
period, whether [Confidential Treatment Requested by New World Pasta] or not,
however [Confidential Treatment Requested by New World Pasta] shall not include
19
[Confidential Treatment Requested by New World Pasta]. Xxxxxx shall
[Confidential Treatment Requested by New World Pasta] to [Confidential Treatment
Requested by New World Pasta].
[Confidential Treatment Requested by New World Pasta] shall be
determined by dividing the total [Confidential Treatment Requested by New World
Pasta] by an estimated [Confidential Treatment Requested by New World Pasta], no
adjustment is applied to the [Confidential Treatment Requested by New World
Pasta] is reduced by [Confidential Treatment Requested by New World Pasta] to
arrive at [Confidential Treatment Requested by New World Pasta] for that year,
e.g. [Confidential Treatment Requested by New World Pasta] is [Confidential
Treatment Requested by New World Pasta]. For [Confidential Treatment Requested
by New World Pasta] and subsequent periods the depreciation and amortization
expenses are zero. The depreciation and amortization expenses will be computed
as a [Confidential Treatment Requested by New World Pasta] using the method
described for [Confidential Treatment Requested by New World Pasta].
The [Confidential Treatment Requested by New World Pasta] is the
remainder determined by taking the average [Confidential Treatment Requested by
New World Pasta], minus the [Confidential Treatment Requested by New World
Pasta], minus the [Confidential Treatment Requested by New World Pasta] used to
[Confidential Treatment Requested by New World Pasta], including [Confidential
Treatment Requested by New World Pasta] needed to [Confidential Treatment
Requested by New World Pasta] from the sale of [Confidential Treatment Requested
by New World Pasta], minus the [Confidential Treatment Requested by
20
New World Pasta]. [Confidential Treatment Requested by New World Pasta] is
determined by taking [Confidential Treatment Requested by New World Pasta].
An example of how the tolling charge used in determining the purchase
price for Contract Goods would be adjusted (based on certain assumptions about
hundred weight production volume, Specific Costs, depreciation and amortization,
mill extraction rates, freight costs, wheat costs and by-product values) is set
forth on Exhibit C attached hereto.
Notwithstanding the above, [Confidential Treatment Requested by New
World Pasta] shall not be adjusted to [Confidential Treatment Requested by New
World Pasta], or that would otherwise [Confidential Treatment Requested by New
World Pasta]. For purposes of this Agreement, [Confidential Treatment Requested
by New World Pasta] shall be defined to mean a [Confidential Treatment Requested
by New World Pasta]. For purposes of interpretation, [Confidential Treatment
Requested by New World Pasta] shall not be construed to require an [Confidential
Treatment Requested by New World Pasta], but shall require [Confidential
Treatment Requested by New World Pasta]. In the event that the adjustment of the
price for [Confidential Treatment Requested by New World Pasta], Xxxxxx shall
have the [Confidential Treatment Requested by New World Pasta] may decline such
[Confidential Treatment Requested by New World Pasta], in which case WPLLC
[Confidential Treatment Requested by New World Pasta].
Within thirty (30) days prior to [Confidential Treatment Requested by
New World Pasta], and within thirty (30) days prior to [Confidential Treatment
Requested by New World Pasta] of each year thereafter until this Agreement
expires or is terminated, WPLLC shall, on behalf
21
of WPLLC and PGLLC, exercise one of the following options by delivering written
notice thereof to Xxxxxx (failure to provide such written notice shall result in
the exercise of option (a) below):
(a) Allow the [Confidential Treatment Requested by New World Pasta],
except that [Confidential Treatment Requested by New World Pasta] as set forth
above. Such [Confidential Treatment Requested by New World Pasta] shall become
effective [Confidential Treatment Requested by New World Pasta].
(b) Notify [Confidential Treatment Requested by New World Pasta] this
Agreement. Upon such notice from [Confidential Treatment Requested by New World
Pasta] to both parties. In the event the parties [Confidential Treatment
Requested by New World Pasta], then [Confidential Treatment Requested by New
World Pasta], prior to [Confidential Treatment Requested by New World Pasta] the
Agreement [Confidential Treatment Requested by New World Pasta] shall be
adjusted effective [Confidential Treatment Requested by New World Pasta] from
the date on [Confidential Treatment Requested by New World Pasta]. During any
such [Confidential Treatment Requested by New World Pasta] or any such
[Confidential Treatment Requested by New World Pasta], the terms which were
[Confidential Treatment Requested by New World Pasta] shall control.
In the event that [Confidential Treatment Requested by New World Pasta]
pursuant to this Section due to [Confidential Treatment Requested by New World
Pasta], and Xxxxxx [Confidential Treatment Requested by New World Pasta], it is
understood and acknowledged that [Confidential Treatment Requested by New World
Pasta]. However, if [Confidential Treatment Requested by New World Pasta]
establishes a [Confidential Treatment
22
Requested by New World Pasta] from other [Confidential Treatment Requested by
New World Pasta] to the extent of [Confidential Treatment Requested by New World
Pasta]. For purposes of this Agreement, [Confidential Treatment Requested
by New World Pasta] shall be deemed to mean [Confidential Treatment Requested by
New World Pasta] exceeding [Confidential Treatment Requested by New World
Pasta]. For example, [Confidential Treatment Requested by New World Pasta], then
[Confidential Treatment Requested by New World Pasta] to supply [Confidential
Treatment Requested by New World Pasta].
PGLLC agrees to be legally bound by WPLLC's exercise of any option under
this Section 3.01 and hereby irrevocably authorizes WPLLC to exercise any such
option on behalf of PGLLC.
Section 3.02 Breach of Obligations. Failure of Xxxxxx to comply with any of
---------------------
the obligations or conditions herein contained, including, but not limited to
late delivery or failure to meet product specifications, shall be a default and
shall entitle WPLLC or PGLLC to give Xxxxxx written notice to cure such default.
[Confidential Treatment Requested by New World Pasta].
Section 3.03 Termination by Xxxxxx. Failure of WPLLC or PGLLC to comply
---------------------
with any of the obligations or conditions herein contained, including, but not
limited to failure to purchase or pay for Contract Goods, shall be a default and
shall entitle Xxxxxx to give WPLLC and PGLLC written notice to cure such
default. If any such default is not cured within thirty (30) days after receipt
of such written notice, Xxxxxx shall be entitled to terminate this Agreement in
its entirety by giving written notice to take effect six (6) months after such
notice. Upon a termination of the Agreement under this provision, WPLLC and
Xxxxxx shall work together to disconnect and disassemble any physical
connections between the Plant and the Mill.
23
ARTICLE IV
GENERAL PROVISIONS
------------------
Section 4.01 Governing Law. The parties hereto acknowledge that this
-------------
Agreement was made under, and shall be governed by the laws of the State of
Virginia.
Section 4.02 [Confidential Treatment Requested by New World Pasta]. For
-----------------------------------------------------
purposes of this Section 4.02, [Confidential Treatment Requested by New World
Pasta] mean [Confidential Treatment Requested by New World Pasta].
Section 4.03 Notices. Notices under this Agreement shall be in writing and
-------
may be delivered by hand or sent by mail, courier or facsimile. Notices by mail
shall be sent by United States registered or certified mail, postage prepaid,
return receipt requested, and shall be deemed delivered five (5) days after date
of mailing. Notices sent by facsimile shall be deemed given on the date
transmitted; provided that (i) the sender receives a written confirmation to
verify the transmission, and (ii) the sender also delivers a copy of the notice
to the other party by overnight courier. Notices sent by a courier shall be
deemed delivered on the date of receipt or the date delivery is refused by the
intended recipient as evidenced by the courier's records. Notices shall be sent
to the parties at the addresses set forth below, or at such other addresses or
persons as the party may from time to time designate by written notice to the
other party:
If to Xxxxxx Xxxxxx Milling Company
or MMCLP: 000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: President
With a copy to: Xxxxxxx X. Xxxx, Esquire
Xxxxxx Xxxxxxx Xxxxxx & Brand
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
24
If to WPLLC: Winchester Pasta, L.L.C.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to: Winchester Pasta, L.L.C.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Vice President of Finance/
Chief Financial Officer
If to PGLLC: Pasta Group, L.L.C.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to: Pasta Group, L.L.C.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Vice President of Finance/
Chief Financial Officer
If to NWP: New World Pasta Company
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to: New World Pasta Company
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Vice President of Finance/
Chief Financial Officer
Section 4.04 Breach of Agreement. In the event of any breach of this
-------------------
Agreement, the non-breaching party may avail itself of any remedies afforded it
by law, except as otherwise provided in Section 2.09 or Section 4.06 of this
Agreement which shall govern in the event of any conflict with other provisions
of this Agreement.
25
Section 4.05 Confidentiality. Xxxxxx, WPLLC and PGLLC each hereby agree not
---------------
to disclose, without the other parties' consent, to any third party (except
financial institutions or professional personnel such as lawyers, accountants,
and the like who are employed by the party hereto or as may be required or
advisable to comply with laws including, without limitation, state and federal
securities laws) the specific provisions of this Agreement; provided, however,
that any party shall, at the request of the other party, execute and deliver a
Memorandum of this Agreement in recordable form for recordation against the
Plant Property, the Lebanon Plant and the Mill Property to memorialize the
purchase and supply obligations of the parties hereto, Xxxxxx'x obligations
under Section 4.02 and each of the parties obligations under Section 4.07.
Section 4.06 Arbitration. In the event the parties are unable to agree upon
-----------
the pricing of any products hereunder, the amount due for any delivery, or the
quality of any delivery they shall identify a third party who shall determine
such amount, and whose determination shall be binding upon the parties hereto,
and further provided that if Xxxxxx, WPLLC and PGLLC shall be unable to agree
upon the identity of such third party, said determination shall be made by a
board of arbitration in accordance with the rules and regulations of the
American Arbitration Association, and held in Minneapolis, Minnesota. The cost
of said arbitration shall be divided between the parties so that the losing
party shall pay to the prevailing party a portion of the cost of the prevailing
party's attorneys' fees and costs which shall be equal to a percentage
determined by dividing (i) the value of the award to the prevailing party by
(ii) the amount of the prevailing party's claim in the arbitration. The decision
of the arbitrators shall be final and binding and entitled to recognition and
enforcement by the courts of the United States and by the courts of all states
of the United States.
26
Section 4.07 Binding Effect and Assignment. This Agreement shall be binding
-----------------------------
upon and inure to the benefit of the parties hereto, their successors and
assigns, including without limitation any party that purchases or leases
substantially all of the Plant assets or the Lebanon Plant assets or any
transferee which acquires effective control or ownership of the Plant or the
Lebanon Plant.
Section 4.08 Severability. The determination that any portion or
------------
provision of this Agreement is invalid or enforceable shall not affect the
remaining portions or provisions hereof, unless such determination of invalidity
relates to the essence or essential terms of this Agreement, in which event the
entire Agreement shall become null and void.
Section 4.09 Counterparts. This Agreement may be executed in two or more
------------
counterparts and all counterparts so executed shall for all purposes constitute
one agreement, binding on all the parties hereto, notwithstanding that all
parties shall not have executed the same counterpart.
Section 4.10 Integration. This Agreement is an amendment and
-----------
restatement of the Existing Mill Agreement in its entirety and represents the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings of
the parties with respect to the subject matter hereof.
Section 4.11 Costs of Mill Reconfiguration. WPLLC shall pay, as and when
-----------------------------
due, all amounts which are required to be paid to Buhler under the Buhler
Contracts which have not been paid as of the date hereof and will not later than
the date that is ten (10) days after the date this Agreement is signed by both
parties, pay to Xxxxxx any amounts Xxxxxx has paid to Buhler under the Buhler
Contracts. In addition, WPLLC shall reimburse Xxxxxx or pay directly to any
vendor or contractor: [Confidential Treatment Requested by New World Pasta],
provided that the maximum amount payable by WPLLC under this clause (a) shall
not exceed [Confidential
27
Treatment Requested by New World Pasta]; (b) all costs incurred by Xxxxxx in
connection with the acquisition and installation by a third party of a
[Confidential Treatment Requested by New World Pasta], provided that the maximum
amount payable by WPLLC under this clause (b) shall not exceed [Confidential
Treatment Requested by New World Pasta]; and (c) all costs incurred by Xxxxxx
which are not covered by the Buhler contracts which are necessary to secure
permits, pay permit fees, acquire equipment (other than the "weighing system"
under clause (b) above), supplies and services from third parties in connection
with the Mill Reconfiguration, including costs associated with construction
schedule delays, provided that the maximum amount payable by WPLLC under this
clause (c) shall not exceed [Confidential Treatment Requested by New World
Pasta]. Xxxxxx will, at its expense, pay for the cost of Xxxxxx'x personnel
(including travel and lodging expenses) arising from Xxxxxx'x management of the
construction and installation of the Mill Reconfiguration. Xxxxxx shall use
reasonable commercial efforts to minimize the costs covered by this Section
4.11.
Section 4.12 Title to Equipment and Fixtures. Title to any equipment or
-------------------------------
other trade fixtures which are installed in the Mill in connection with the Mill
Reconfiguration shall belong solely to WPLLC. WPLLC shall have no right to use
such equipment or other trade fixtures as collateral or to grant any security
interest in, lien on or otherwise encumber such equipment or other trade
fixtures. Title to the equipment and other trade fixtures installed in the Mill
in connection with the Mill Reconfiguration shall pass to Xxxxxx [Confidential
Treatment Requested by New World Pasta]. However, prior to the earlier of
[Confidential Treatment Requested by New World Pasta].
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
WINCHESTER PASTA, L.L.C.
WITNESS
By:
------------------------------- --------------------------------
Name:
------------------------------
Title:
-----------------------------
PASTA GROUP, L.L.C.
WITNESS
By:
------------------------------- --------------------------------
Name:
------------------------------
Title:
-----------------------------
ACKNOWLEDGMENT
New World Pasta Group, a Delaware corporation, is executing this Agreement,
in order to memorialize its agreement, as the owner of all of the issued and
outstanding equity interests in Winchester Pasta, L.L.C. and Pasta Group,
L.L.C., to be legally bound by the provisions of this Agreement, including
specifically and without limitation the provisions of Section 4.07, and to not
take any action that would be inconsistent with or in derogation of the
obligations of Winchester Pasta, L.L.C. or Pasta Group, L.L.C. under this
Agreement.
NEW WORLD PASTA COMPANY
WITNESS
By:
------------------------------- --------------------------------
Name:
------------------------------
Title:
-----------------------------
29
XXXXXX MILLING COMPANY
WITNESS
By:
------------------------------- --------------------------------
Name:
------------------------------
Title:
-----------------------------
ACKNOWLEDGMENT
Xxxxxx Milling Company Limited Partnership, a Minnesota limited
partnership, is executing this Mill Agreement solely to indicate its agreement
to be bound by the Right of First Refusal provisions contained in Section 4.02.
XXXXXX MILLING COMPANY LIMITED
PARTNERSHIP
By Xxxxxx Milling Company,
Its General Partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
30
