AMENDMENT TO SUPPLY AGREEMENT
DATED JUNE 19,1995
The parties amend their June 19, 1995 Supply Agreement (copy attached)
as follows:
A. Paragraph 4 and Exhibit A of the Supply Agreement are deleted in their
entirety and the following language and attached exhibit is substituted:
4. Price.
a. Raw Material and Packaging Price Adjustments. The price to
be paid for the Products shall be an amount equal to the sum
of (a) the total per pound price for the Product listed on
attached Exhibit A (Revised), and (b) an amount reasonably
determined by Seller immediately prior to the beginning of
each calendar year during the term that represents Seller's
current increase or decrease in the cost for raw materials and
packaging over the ensuing twelve (12) month period, except
(a) in the case of the raw materials and packaging items
listed on attached Exhibit D, costs adjustments shall be made
thirty (30) days before the start of each calendar quarter
during the term (and, in connection with "flour" and "sugar",
cost adjustments shall be based on the current market price
for "bagged sugar" and "bagged flour"), and (b) each periodic
adjustment shall be made, based on Buyer's forecasted
purchases under Paragraph 7(b) below, only if it exceeds one
thousand dollars ($1000) in the aggregate.
b. Price Rebates. Within thirty (30) days following the end of
each calendar quarter during the term Seller shall rebate to
Buyer $0.046 for each pound of Product sold by Seller during
the calendar quarter.
The price under this Paragraph 4 shall not apply to purchases by any of Buyer's
franchisees or licensees to the extent inconsistent with any separate agreement
between Seller and any such franchisee or licensees.
B. The following language is added as new Paragraph 22:
22. Representation/Indemnity. Buyer represents that it has made and
will continue to make all required disclosures to its franchisees
concerning rebates or other payments by Seller to Buyer or its
affiliates, and Buyer agrees to defend, indemnify and hold Seller
harmless from any claims, liabilities, or damages, including attorneys'
fees, arising out of any breach by Buyer of this representation.
C. This amendment will be effective when signed by both parties.
XXX. XXXXXX, INC., a VAN DEN XXXXX FOODS COMPANY,
Delaware Corporation a division of Conopco, Inc., a New York
Corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxx Xxxxxx Xxxxxx X. Xxxxx
Its: President Its: Vice President and General Manager -
Bakery Products Group
Date: 3-12-96 Date: January 30, 1996
PRICE
LIST
Exhibit A (Revised)
Raw Material Conversion Total
PROD & Packaging & Delivery Price
# DESCRIPTION ($ Perlb.) ($ Per lb.) ($ Per lb.)
7250 MFC PLAIN BAGEL 0.1520 0.3371 0.4891
7253 MFC FIBRE PLUS BAGEL 0.2296 0.3335 0.5631
7255 MFC CHOC CHIP BAGEL 0.2387 0.3371 0.5758
7256 MFC CINN RAISIN BAGEL 0.2219 0.3371 0.5590
7257 MFC BLUEBERRY BAGEL 0.3751 0.3338 0.7089
7500 MFC EGG TWIST 0.1811 0.3019 0.4830
7501 MFC NINE GRAIN 0.1972 0.2705 0.4677
7502 MFC PANETTONE (See 2102) 0.4163 0.2986 0.7149
7503 MFO RAISIN NUT 0.3870 0.2711 0.6581
7505 MFC RYE REGULAR 0.1811 0.2763 0.4574
7506 MFC HONEYWHEAT XXXXX 0.2068 0.2740 0.4808
7552 MFC NEW SWT BAG'T 0.1389 0.2746 0.4135
7553 MFC NEW SWEET REGULAR 0.1362 0.2695 0.4057
7570 MFC SOUR REGULAR O.1779 0.2795 0.4574
7571 MFC SOUR ROUND 0.1840 0.2792 0.4632
2910 MFC DOUBLE FUDGE BROWNIE 0.5705 0.2705 0.8410
2911 MFC WALNUT FUDGE BROWNIE 0.6131 0.2705 0.8836
2912 MFC PECAN FUDGE BROWNIE 0.7107 0.2705 0.9812
2913 MFC MACADAMIA FUDGE BROWNIE 0.7401 0.2705 1.0106
2915 MFC PECAN PIE BROWNIE 0.8653 0.2705 1.1412
3050 MFC CHOC CHIP COOKIE 0.5917 0.3309 0.9226
3052 MFC MILK CHOC CHIP COOKIE 0.6020 0.3313 0.9333
3054 MFC BUTTER TOFFEE COOKIE 0.9156 0.3219 1.2375
3057 MFC PUMPLIN HARVEST COOKIE 0.8635 0.3418 1.2053
3060 MFC BUTTER COOKIE 0.4352 0.3288 0.7640
3061 MFC CHOC CHIP W/WALNUT COOKIE 0.6941 0.3264 1.0205
3062 MFC WHITE CHUNK W/MAC COOKIE 1.1279 0.3255 1.4534
3063 MFC COCO MAC COOKIE 1.0889 0.3402 1.4291
3064 MFC TRIPLE CHOC COOKIE 0.6884 0.3313 1.0197
3065 MFC OATMEAL RAISIN NUT COOKIE 0.6095 0.3416 0.9511
3069 MFC MLK CHOC W/WALNUT COOKIE 0.7015 0.3280 1.0295
3075 MFC PEANUT BUTTER COOKIE 0.5105 0.3409 0.8514
3079 MFC CHEWY CHOC COOKIE 0.7300 0.3235 1.0535
3080 MFC RED. FAT SEMI-SWT CHC CHP COOKIE 0.5258 0.3666 0.8924
3081 MFC RED. FAT MILK CHOC COOKIE 0.5290 0.3673 0.8963
3082 MFC RED. FAT WHITE CHUNK COOKIE 0.8425 0.3673 1.2098
3083 MFC OATMEAL NUT RAISIN COOKIE 0.5726 0.3673 0.9399
0000 XXX XXX XXX CHP W/MC COOKIE 1.0210 0.3279 1.1930
3092 MFC SMI-SWT CHNK PECAN COOKIE 0.8645 0.3285 1.1930
3150 MFC H/A CHOC CHIP COOKIE 0.5869 0.3304 0.9173
3312 MFC OLD FSHN SHRTBRD COOKIE 0.4052 0.3258 0.7310
3650 MFC CHOC CHP NIB COOKIE 0.5917 0.3315 0.9232
3652 MFC MLK CHOC CHP NIB COOKIE 0.5991 0.3315 0.9306
3660 MFC BUTTER NIB COOKIE 0.4483 0.3384 0.7867
3661 MFC CHOC CHP W/WLNT NIB COOKIE 0.6980 0.3280 1.0260
3662 MFC WHITE CHNK W/MAC NIB COOKIE 1.0069 0.3250 1.3319
3665 MFC OATMEAL RSN NUT NIB COOKIE 0.6087 0.3418 0.9505
3669 MFC MLK CHOC WLNT NIB COOKIE 0.7054 0.3280 1.0334
3675 MFC PENT BTTR NIB COOKIE 0.5143 0.3504 0.8647
3679 MFC CHEWY CHOC NIB COOKIE 0.7338 0.3235 1.0573
3850 MFC HI-ALT CHOC CHP COOKIE 0.5847 0.3307 0.9154
3852 MFC HI-ALT MLK CHOC CHP COOKIE 0.5920 0.3311 0.9231
3861 MFC HI-ALT CHOC CHP W/WLNT COOKIE 0.6941 0.3279 1.0220
3869 MFC HI-ALT MLK CHOC W/WLNT COOKIE 0.7015 0.3279 1.0294
3891 MFC HI-ALT MLK CHOC W/MAC COOKIE 0.9248 0.3278 1.2526
3950 MFC HI-ALT SS CH CH NIB COOKIE 0.5919 0.3317 0.9236
3952 MFC HI-ALT CH CH NIB COOKIE 0.5994 0.3317 0.9311
PRICE
LIST
Exhibit A (Revised)
Raw Material Conversion Total
PROD & Packaging & Delivery Price
# DESCRIPTION ($ Perlb.) ($ Per lb.) ($ Per lb.)
7401 MFC APPLE CROISSANT 0.5784 0.3451 0.9235
7403 MFC BUTTER CROISSANT 0.3681 0.3671 0.7352
7404 MFC CHOCOLATE CROISSANT 0.5651 0.3583 0.9234
7405 MFC CROISSANT SQUARE 0.3559 0.3805 0.7364
7410 MFC CHEESE CROISSANT 0.5705 0.3687 0.9392
1553 MFC P.B. FILLING 0.6690 0.3307 0.9997
1557 MFC LEMON CREAM CHEESE FILLING 0.9509 0.3124 1.2633
1560 MFC BRAN MUFFIN 4X5 LB CHUB 0.5541 0.2972 0.8513
1561 MFC ORNGE MFFN 4X5 LB CHUB 0.6470 0.3378 0.9848
1563 MFC CORN MUFN 4X5 LB CHUB 0.4360 0.2998 0.7358
1564 MFC PLAIN MUFN BATTR 4X5 CHUB 0.4561 0.2819 0.7380
1565 MFC PUMPKIN MFN 4X5 CHUB 0.5696 0.3160 0.8856
1566 MFC BANANA NUT MUFFIN 4X5 CHUB 0.6967 0.3034 1.0001
1589 MFC CARROT CAKE ICING 0.8099 0.2884 1.0983
2929 MFC CARROT CAKE BATTER 0.6675 0.3026 0.9701
7750 MFC ALMOND PASTE 1.2080 0.3059 1.5139
7751 MFC MAPLE TOPPING 0.4345 0.2839 0.7184
7754 MFC NEW STREUSEL 0.4019 0.2650 0.6669
7755 MFC XXXXXX TOPPING 0.4122 0.2811 0.6933
7782 MFC BUTTER CREME ICING 0.5748 0.3034 0.8782
7200 MFC DINNER ROLL 0.2557 0.3308 0.5865
7201 MFC SWEET FRENCH ROLL 0.3642 0.3159 0.6801
7203 MFC SWEET FRENCH ROLL 0.1251 0.3169 0.4410
7450 MFC CINNAMON ROLL 0.2917 0.3553 0.6470
VAN DEN XXXXX
FOODS COMPANY
0000 Xxxxx Xxxxx Xxxxxx X. Xxxxx
Lisle. Illinois60532
Vice President & General Manager
(000) 000-0000 Bakery Products
Group
June 19, 1995
Xxx. Xxxxxx, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Re: Supply Agreement.
Ladies and Gentlemen:
This letter sets forth the terms of the agreement between Xxx. Xxxxxx,
Inc., a Delaware corporation ("Buyer"), and Van den Xxxxx Foods Company, a
division of Conopco, Inc., a New York corporation ("Seller"), relating to the
purchase by Buyer, and the sale by Seller, of cookie dough and other bakery
products, having the item codes and names listed on attached Exhibit A, and "new
products" designated as such under Paragraph 5 below (collectively, "Products").
1. Minimum Annual Purchase and Sale of the Products. Buyer agrees to
buy, and Seller agrees to sell, an amount not less than 16,730,000 pounds of the
Products during each of calendar years 1996, 1997, and 1998 ("the term").
2. Volume Incentives and Penalties.
(a) Rebate to Buyer. Within sixty (60) days after the end of each calendar
year during the term, Seller shall pay to Buyer a rebate for purchases of the
Products that exceed the minimum annual purchase obligation in Paragraph 1
above. The amount of the rebate shall be determined by multiplying the actual
total pounds of the products purchased by Buyer during the year by the
corresponding incentive payment rate listed in attached Exhibit B.
Xxx. Xxxxxx Inc.
June 19, 1995
Page 2
(b) Penalty Payment by Buyer. If Buyer fails to meet its minimum annual
purchase obligation under Paragraph 1, then, within sixty (60) days after the
end of the applicable calendar year during the term, Buyer shall pay to Seller a
penalty in an amount determined by multiplying 16,730,000 by the per pound
penalty rate listed in attached Exhibit C corresponding to the volume of
Products actually purchased by Buyer. The penalty is intended to compensate
Seller for its incremental unit cost of producing the lesser volume actually
purchased by the Buyer.
(c) Remedies For Failure to Meet Minimum. If Buyer's failure to purchase
the minimum annual quantities of the Products required under Paragraph 1 (i) is
attributable to a decrease in requirements for the Products due to declines in
Buyer's business, then the penalty payment by Buyer under Paragraph 2(b) is the
Seller's exclusive remedy, or (ii) is attributable to Buyer's purchase of like
products from an alternative supplier, then, in addition to the penalty payment
by Buyer under Paragraph 2(b), Buyer shall pay Seller a sum determined by
multiplying the volume shortfall by an amount equal to the Seller's average
conversion charge for the Products, as set forth on Exhibit A, less Seller's
variable manufacturing costs not incurred.
3. Distributor Purchases. Distributors designated by Buyer, who are
approved by Seller and who meet Seller's normal standards of creditworthiness,
may order and purchase the Products and otherwise act on Buyer's behalf pursuant
to this Agreement. Any such distributor purchases, or any purchases by or on
behalf of Buyer's franchisees or licensees shall be governed by the terms of
this Supply Agreement (except to the extent inconsistent with any separate
agreement between Seller and any such franchisee or licensee) and shall be
counted towards Buyer's minimum annual purchase obligation under Paragraph 1.
4. Price. The price to be paid for the Products shall be an amount
equal to the sum of (a) the total per pound price for the Product listed on
attached Exhibit A, and (b) an amount reasonably determined by Seller
immediately prior to the beginning of each calendar year during the term that
represents Seller's current increase or decrease in the cost for raw materials
and packaging over the ensuing
Xxx. Xxxxxx Inc.
June 19, 1995
Page 3
twelve (12) month period, except (a) in the case of the raw materials and
packaging items listed on attached Exhibit D, costs adjustments shall be made
thirty (30) days before the start of each calendar quarter during the term (and,
in connection with "flour" and "sugar", cost adjustments shall be based on the
current market price for "bagged sugar" and "bagged flour"), and (b) each
periodic adjustment shall be made, based on Buyer's forecasted purchases under
Paragraph 7(b) below, only if it exceeds one thousand dollars ($1000) in the
aggregate. The price under this Paragraph 4 shall not apply to purchases by any
of Buyer's franchisees or licensees to the extent inconsistent with any separate
agreement between Seller and any such franchisee or licensee.
5. New Bakery Products. If compatible with the normal operation of
Seller's business, Seller agrees to manufacture any new bakery products
designated as such by Buyer (whereupon they will be deemed "Products" for all
purposes under this agreement) pursuant to the directions, formulations and
recipes communicated by Buyer to Seller. Seller's obligation to supply new
bakery products to Buyer under this Paragraph 5 is subject to agreement between
Buyer and Seller on the initial price to be charged Buyer for the same. For
purposes of computing the price to be paid by Buyer under Paragraph 4, such
initial price shall be deemed to be the price as if listed on attached Exhibit
A. Seller agrees to cooperate and offer reasonable assistance to Buyer in the
development of new bakery products, provided in each case that Buyer agrees to
compensate Seller for costs incurred.
6. Signing Bonus and Refunds.
(a) Signing Bonus. In consideration for Buyer's agreements hereunder,
Seller shall, within five (5) business days after mutual execution of this
agreement, pay to Buyer the sum of Five Hundred Sixty Thousand Dollars
($560,000), which amount is intended to provide Buyer with the benefit of the
pricing mechanism established under this agreement in respect of purchases by or
on behalf of Buyer, between April 1, 1995 and December 31, 1995 ("the bonus
period"), under the existing Amended and Restated Supply Agreement between Buyer
and Seller.
Xxx. Xxxxxx Inc.
June 19, 1995
Page 4
(b) Pro Rata Refund of Signing Bonus. If Buyer fails during the bonus
period to purchase at least 12,173,913 pounds of Products from the Seller, then
Buyer shall be obligated, on or before February 29, 1996 to refund to Seller an
amount determined by multiplying the poundage shortfall by $0.046 per pound.
7. Quantities and Orders
(a) Buyer shall, prior to September 30 of each Calendar year during the
term, furnish Seller with a schedule forecasting monthly estimated quantities of
the specific Products to be purchased by Buyer during the following calendar
year.
(b) Buyer and Seller shall meet on or about December 15, 1995, and on
or about the 15th day of the last month of each quarter of each calendar year
during the term, to establish a schedule for production of the Products during
the following quarter. Such schedule shall include the types and quantities of
Products expected to be ordered during the upcoming quarter.
(c) Buyer shall submit an order to Seller on or prior to Wednesday of
each week for Products to be produced by Seller during the following week.
Seller may decline to accept and actual orders for Products during any quarter
to the extent that such order exceeds by more than twenty (20) percent the
amount of Products scheduled for production pursuant to the quarterly updates in
Paragraph 7(b) hereof. Each order submitted by Buyer for Products shall state
that it is submitted pursuant to this Agreement, shall be transmitted to Seller
in writing, and shall include the quantity, description, and item number of
Products ordered, delivery points, delivery schedules, shipping instructions,
and such other information as Seller may reasonably require. Each order shall be
for a minimum of one batch of the Products ordered, and shipping instructions
shall correspond with the regional delivery schedule provided from time to time
by Seller. Seller shall confirm in writing receipt of each order.
8. Delivery. Seller shall ship products ordered by Buyer pursuant to
Paragraph 7(c) hereof such that the Products are delivered to the destination
designated by Buyer by the dates specified for delivery, except that the date
Xxx. Xxxxxx Inc.
June 19, 1995
Page 5
specified for delivery shall be an approximate date for unloading Products and
shall allow for normal transportation delays. Seller shall notify Buyer in
writing of the date on which Products ordered have been shipped and all related
shipping information. Delivery of products shall be C.I.F. the destination
(within the 48 contiguous states) designated by Buyer in the notice given
pursuant to Paragraph 7(c). Seller shall ship Products in refrigerated
containers.
9. Payment. The price for the products shall be payable net cash within
30 days from the date of invoice or shipment, whichever is earlier. Buyer may
dispute any invoice in good faith as long as Buyer shall pay all undisputed
amounts in a timely manner. Buyer shall pay interest on all overdue accounts at
the lessor of (i) the "Prime Rate" (or any successor rate) as then published in
the Wall Street Journal plus 1% or (ii) the highest applicable legal rate (the
"Penalty Rate").
10. Sale of Products to Others. Seller will not sell or offer to sell
the Products or any bakery items produced from the Licensed Trade Secrets (as
hereinafter defined) or derived therefrom to any persons, entities, or parties
other than Buyer or any Licensee of Buyer. Nothing in this Agreement shall be
construed to limit Seller's right to sell to other customers items which are of
a similar type to the Products but which do not use the Licensed Trade Secrets
in their manufacture, production, formulation, or otherwise.
11. Purchase of Supplies. If Seller acquires raw materials or supplies
pursuant to the schedule agreed to in Paragraph 7(b) which are unique to the
production of Products and which are not customarily used in the production of
other bakery items by Seller (the "Supplies"), and the Supplies are not used in
the production of Products ordered by Buyer during the shelf life of the
Supplies, and the Supplies cannot be used by Seller in the manufacture of other
bakery items in the normal course of Seller's business, Buyer shall pay to
Seller the actual costs of the Supplies not used by Seller and all expenses
incurred by Seller in the storage
and any disposal thereof. In addition, if Seller has produced Products to fill
an order received from Buyer pursuant to Paragraph 7(c) hereof, and Buyer does
not call for delivery of the same before the expiration of the shelf life
thereof, Seller shall destroy the same and invoice Buyer for the price with
respect thereto.
Xxx. Xxxxxx Inc.
June 19, 1995
Page 6
12. Duty To Examine. Upon receipt of the Products at their destination,
Buyer shall examine the Products for impurities, damage, spoilage, and any and
all other defects to such Products. Promptly upon discovery thereof by Buyer,
but in any event no later than thirty (30) days after receipt, Buyer shall
notify Seller of any products which are damaged, defective, opened or improperly
packaged. If Buyer has previously paid for defective Products, Buyer shall be
entitled to a refund of the portion of the Price attributable to such defective
Products within ten (10) days after the notice of the defect, unless the same is
disputed by Seller in good faith, except that if the amount to be refunded does
not exceed $ 1,000, such amount shall be a credit against the next invoice.
Seller shall pay Buyer interest on all overdue accounts calculated at the
Penalty Rate. If requested by Seller, Buyer shall promptly return defective
Products to Seller at Seller's expense. Buyer further agrees to take reasonable
steps at Seller's expense, for a period not exceed ten (10) days after notice to
Seller of the defect, to preserve the rejected Products pending Seller's
instructions.
13. Replacement of Damaged Goods. If Seller discovers, upon examination
pursuant to Paragraph 12 hereof, that any of the Products delivered to Buyer are
spoiled, damaged or otherwise defective, Buyer shall have the right to require
Seller to replace such defective Products, provided that at least five (5)
percent (by price) of the total shipment of Products is spoiled, damaged or
otherwise defective. If Buyer so elects to have such Products replaced, the
shipment of any replacement products will have priority over shipments by Seller
to other customers of Seller, and will be affected within seventy-two (72) hours
(or three working days, if later). Seller shall, if requested by Buyer, cause
such replacement Products to be delivered to Buyer, at Seller's expense, by the
most rapid means of commercially feasible ground transportation available.
14. Rotation of Finished Products. Seller agrees to rotate all finished
Products stored by Seller after production on a "first in-first out" basis.
15. License. For purposes of this Agreement, "Licensed Trade Secrets" means
all transferable techniques, processes, methods of production and know-how
uniquely pertaining to and necessary for use in relation to the formulation,
Xxx. Xxxxxx Inc.
June 19, 1995
Page 7
composition and production of Products. Information which was already in the
possession of Seller, but which was not obtained in connection with this
transaction or past transactions with Buyer, or information which is or becomes
publicly available without breach of (i) this Agreement, (ii) any agreement or
instrument with Buyer to which Seller is a party or beneficiary, or (iii) any
duty owed Buyer by Seller or any other subsidiary of Seller, shall be excluded
from the definition of Licensed Trade Secrets. Buyer hereby grants to Seller,
and Seller accepts from Buyer, a non-exclusive license to employ the Licensed
Trade Secrets solely for the purpose of producing the Products for sale to Buyer
and Licensees of Buyer.
16. Confidentiality. Seller understands that the Licensed Trade Secrets
disclosed to Seller under this agreement are secret, proprietary and of value to
Buyer, which value may be impaired if the secrecy of such information is not
maintained. Seller will take reasonable security measures to preserve and
protect the secrecy of the Licensed Trade Secrets. Seller agrees to hold the
Licensed Trade Secrets in confidence and not to disclose any of the Licensed
Trade Secrets, either directly or indirectly, to any person or entity, including
any subsidiary or affiliate of Seller (or any director, officer, or employee
thereof) during the term of this agreement or at any time within five (5) years
following the expiration or termination hereof, except that Seller may disclose
the Licensed Trade Secrets to its key officers and employees to whom disclosure
is necessary for the manufacture of the Products pursuant to this agreement.
Seller shall exercise such other reasonable precautions to protect and safeguard
the secrecy of the Licensed Trade Secrets except that Seller shall not be
required to employ any more stringent measures that it employs in connection
with protection of its own confidential information.
17. Representations and Warranties of Seller. Seller represents,
warrants and agrees as follows:
(a) Conformity with Specifications. The Products will be
manufactured strictly in accordance with the standards, procedures,
specifications, formulations and recipes from time to time reasonably
established by Buyer. If at any time Buyer deems the quality of the Products to
be below such standards, Buyer may so notify Seller in writing, and Seller will
immediately bring such substandard
Xxx. Xxxxxx Inc.
June 19, 1995
Page 8
Products up to the quality standards required by this agreement. Buyer's right
to oversee the quality of the Products shall not in any way replace, supersede,
or substitute for the quality control required to be exercised by Seller
hereunder. The exercise of any action of quality control by Buyer shall be for
its sole and exclusive benefit. If at any xxxx Xxxxxx adapts or modifies the
Products in accordance with a request from Buyer, Seller will produce and
manufacture such alternate or modified Products using the same quality control
standards and procedures with respect to such Products as Seller is required to
observe in the manufacture of the Products.
(b) Compliance with Law. Seller will manufacture the Products in compliance
with all applicable federal, state and local laws or regulations to which Seller
is subject, except that Seller shall not be liable to Buyer for any violation of
any such laws or regulations if arising from the adherence by Seller to the
instructions of Buyer.
18. Indemnification. Seller agrees to indemnify and hold Buyer harmless
from and against any and all demands, liabilities, damages, expenses, causes of
action, suits, claims or judgments (including reasonable attorneys' fees)
arising out of or in connection with (i) any damage to property, injuries,
illness or loss of life which occur on account of, or in connection with the use
or consumption of Products which were defective in condition, quality or purity
as of delivery to Buyer, whether such condition was discovered at the time of
delivery or at a later date, and (ii) any default by Seller in the observation
or performance of its covenants and agreements contained herein. Buyer agrees to
indemnify and hold Seller harmless from and against any and all demands,
liabilities, damages, expenses, causes of actions, suits or judgments (including
reasonable attorneys' fees) arising out of or in connection with (i) the sale,
distribution, handling or misuse of the Products after delivery to Buyer except
to the extent to which Buyer is indemnified by Seller under this Paragraph 18,
and (ii) any default by Buyer in the observance, payment or performance of its
covenants and agreements contained herein. Any amounts payable by one party to
the other pursuant to this Paragraph 18 shall be limited to actual damages, and
shall not include any amounts attributable to incidental or consequential
damages.
Xxx. Xxxxxx Inc.
June 19, 1995
Page 9
19. Termination.
(a) Seller's Right. Seller, at its option, shall have the
right by notice to Buyer, in addition to any other remedy available at law, in
equity or pursuant to this agreement (including but not limited to an
injunction, specific performance and damages) to suspend or terminate Buyer's
right to purchase, and Seller's obligation to supply Buyer with Products and any
other future right of Buyer pursuant to this agreement upon the happening and
during the continuance of any one or more of the following events:
(i) Buyer fails to pay any amount owing to Seller hereunder
within thirty (30) days from the date Buyer receives notice of a default
hereunder; and
(ii) Buyer defaults in the performance of any other term,
covenant, agreement or condition of this agreement, and if within sixty (60)
days after notice from Seller describing the specific activities constituting
such default, Buyer shall fail to cure default, or if such default cannot be
cured with the exercise of due diligence within said sixty (60) day period,
shall fail thereafter to proceed to cure the same diligently and in good faith,
and in any case, to cure such default within one hundred-twenty (120) days.
(b) Buyer's Right. Buyer, at its option, shall have the right by notice to
Seller, in addition to any other remedy available by law, in equity or pursuant
to this agreement (including but not limited to the right to an injunction,
specific performance and damages) to terminate Buyer's obligation to purchase
Products from Seller, and any other future right of Seller pursuant to this
agreement, if Seller defaults in the performance of any term, covenant,
agreement or condition of this agreement, and if within sixty (60) days after
notice from Buyer describing the specific activities constituting such default,
Seller shall fail to cure the default, or if such default cannot be cured with
the exercise of due diligence within a sixty (60) days period, shall fail
thereafter to proceed to cure the same diligently and in good faith, and in any
case, to cure such default within one hundred-twenty (120) days;
Xxx. Xxxxxx Inc.
June 19, 1995
Page 10
(c) Remaining Obligations. The termination of this agreement by either
party pursuant to this Paragraph 19 shall not relieve (1) either party of its
obligation to pay all such sums owed to the other hereunder, (ii) Seller of its
obligation of confidentiality under Paragraph 16, and (iii) either party of its
respective obligations of indemnity contained herein.
20. Assignment. Buyer and Seller may, without the consent of the other
party, with notice to the other party, assign its rights and obligations
hereunder to a related entity, but shall remain liable therefor. For purposes of
this Paragraph 20, the term "related entity" shall mean any corporation,
partnership or joint venture which is fifty percent (50%) or more owned by Buyer
or Seller, as the case may be. Except as provided in this Paragraph 20, Buyer
and Seller may not assign their rights or obligations hereunder without the
prior written consent of the other party. Subject to the foregoing limitation,
all the terms and provisions of this agreement shall be binding upon, and shall
inure to the benefit of, the successors in interest or the assigns of the
parties hereto with the same effect as is mentioned in each instance, or the
party hereto is named or referred to, except that no assignment, transfer,
pledge or mortgage and violation of the provisions of this agreement shall vest
any rights and any assignee, transferee, pledgee, or mortgagee.
21. Miscellaneous.
(a) Force Majeure. Neither party shall be deemed to be in default under
this agreement because of delays or inability to perform occasion by war, civil
disturbance, strikes, boycotts, lock-outs, shortages, transportation and
communication problems, natural calamities such as fire, flood, earthquake,
storm, acts of God, governmental regulations or actions, inability to obtain
labor or materials from usual sources of supply, or other means beyond the
parties' control (a "Force Majeure Event"). In case of a Force Majeure Event
affecting production of Products by Seller, (i) deliveries of Products by Seller
hereunder shall be allocated among Buyer and Seller's other customers on a fair
and reasonable basis and (ii) (a) Buyer's minimum annual purchase obligation
under paragraph 1 shall be reduced, for each month (or fraction thereof) that
such Force Majeure Event continues, by an amount that represents Buyer's monthly
average purchases of Products during the
Xxx. Xxxxxx Inc.
June 19, 1995
Page 11
preceding twelve (12) months under this (or a predecessor) agreement; and (b)
the amount by which Buyer's minimum annual purchase obligation is decreased
under clause (a) of this subparagraph (ii) shall be added to the amount of
Products actually purchased by Buyer for purposes of determining any rebates due
Buyer or penalties payable by Buyer under paragraphs 2(a) or 2(b), respectively.
(b) Headings. Headings in this agreement are included for
convenience of reference only, and shall not constitute a part of this agreement
for any other purpose.
(c) Notices. All notices provided by this agreement shall be
in writing and shall be given by facsimile transmission with the copy thereof
mailed by first class mail, postage prepaid, or by personal delivery, by one
party to the other, addressed to such other party at the applicable address set
forth, or to such other address as may be given for such purpose by such other
party by notice duly given hereunder. Notice shall be deemed properly given on
the date of facsimile transmission or on the date of delivery whichever applies.
To order Products:
Van den Xxxxx Foods Co.
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
For all other purposes:
Van den Xxxxx Foods Co.
Attn: General Counsel
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Xxx. Xxxxxx, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Xxx. Xxxxxx Inc.
June 19, 1995
Page 12
(d) Applicable Law. This agreement shall be construed and
enforced in accordance with, and governed by the laws of the State of
California.
(e) Integration. This agreement represents the only agreement
and understanding between the parties and their affiliates with respect to the
subject matter hereof, and supersedes all prior negotiations, representations
and agreements made by the parties and their affiliates with respect to the
subject matter hereof. This agreement may be amended, supplemented or changed,
and any provision hereof waived, only by a written instrument making specific
reference to this agreement signed by the party against whom enforcement of any
such amendment, supplement or change or waiver is sought. Waiver by either party
of any breach or default hereunder by the other party shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived.
(f) Counterparts. This agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one of the same agreement,
binding upon all parties thereto, notwithstanding that all parties are not
signatories to the original or the same counterpart.
(g) Severability. In the event any provision of this agreement
is found to be unenforceable or invalid, such provision shall be severable from
this agreement if it is capable of being identified with and apportioned to
reciprocal consideration or to the extent it is a provision which is not
essential and the absence of which would not have prevented the parties from
entering into this agreement. The unenforceability or invalidity of a provision
which has been performed shall not be grounds for invalidation of this agreement
under circumstances in which the true controversy between the parties does not
involve any such provision.
(h) Extension. This agreement may be extended beyond the term
upon such terms and conditions as the parties shall agree upon in writing.
Mrs. Field's Inc.
June 19, 1995
Page 13
If the foregoing accurately reflects our agreement, please so indicate
by having the original of this letter signed in the spaces provided below and
returning it to me; a copy is enclosed for your files.
Very truly yours,
VAN DEN XXXXX FOODS, CO., a
division of Conopco, Inc., a New York corporation
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its: Vice President & General Manager-Bakery
Products Division
AGREED TO AND ACCEPTED.
XXX. XXXXXX, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxxx
Its: /s/ President CEO
EXHIBIT A
PRICE
LIST
Exhibit A
Raw Material Conversion Total
PROD & Packaging & Delivery Price
# DESCRIPTION ($ Perlb.) ($ Per lb.) ($ Per lb.)
7250 MFC PLAIN BAGEL 0.1520 0.2911 0.4431
7253 MFC FIBRE PLUS BAGEL 0.2296 0.2875 0.5172
7255 MFC CHOC CHIP BAGEL 0.2387 0.2911 0.5298
7256 MFC CINN RAISIN BAGEL 0.2219 0.2911 0.5131
7257 MFC BLUEBERRY BAGEL 0.3751 0.2878 0.6629
7500 MFC EGG TWIST 0.1811 0.2559 0.4370
7501 MFC NINE GRAIN 0.1972 0.2245 0.4217
7502 MFC PANETTONE (See 2102) 0.4163 0.2526 0.6689
7503 MFO RAISIN NUT 0.3870 0.2251 0.6121
7505 MFC RYE REGULAR 0.1811 0.2303 0.4114
7506 MFC HONEYWHEAT XXXXX 0.2068 0.2280 0.4348
7552 MFC NEW SWT BAG'T 0.1389 0.2286 0.3675
7553 MFC NEW SWEET REGULAR 0.1362 0.2235 0.3597
7570 MFC SOUR REGULAR O.1779 0.2335 0.4114
7571 MFC SOUR ROUND 0.1840 0.2332 0.4173
2910 MFC DOUBLE FUDGE BROWNIE 0.5705 0.2245 0.7950
2911 MFC WALNUT FUDGE BROWNIE 0.6131 0.2245 0.8376
2912 MFC PECAN FUDGE BROWNIE 0.7107 0.2245 0.9352
2913 MFC MACADAMIA FUDGE BROWNIE 0.7401 0.2245 0.9646
2915 MFC PECAN PIE BROWNIE 0.8653 0.2299 1.0953
3050 MFC CHOC CHIP COOKIE 0.5917 0.2849 0.8766
3052 MFC MILK CHOC CHIP COOKIE 0.6020 0.2853 0.8873
3054 MFC BUTTER TOFFEE COOKIE 0.9156 0.2759 1.1915
3057 MFC PUMPLIN HARVEST COOKIE 0.8635 0.2958 1.1593
3060 MFC BUTTER COOKIE 0.4352 0.2828 0.7179
3061 MFC CHOC CHIP W/WALNUT COOKIE 0.6941 0.2804 0.9746
3062 MFC WHITE CHUNK W/MAC COOKIE 1.1279 0.2795 1.4073
3063 MFC COCO MAC COOKIE 1.0889 0.2942 1.3831
3064 MFC TRIPLE CHOC COOKIE 0.6884 0.2853 0.9736
3065 MFC OATMEAL RAISIN NUT COOKIE 0.6095 0.2956 0.9051
3069 MFC MLK CHOC W/WALNUT COOKIE 0.7015 0.2820 0.9835
3075 MFC PEANUT BUTTER COOKIE 0.5105 0.2949 0.8054
3079 MFC CHEWY CHOC COOKIE 0.7300 0.2775 1.0075
3080 MFC RED. FAT SEMI-SWT CHC CHP COOKIE 0.5258 0.3206 0.8464
3081 MFC RED. FAT MILK CHOC COOKIE 0.5290 0.3213 0.8503
3082 MFC RED. FAT WHITE CHUNK COOKIE 0.8425 0.3213 1.1639
3083 MFC OATMEAL NUT RAISIN COOKIE 0.5726 0.3213 0.8939
0000 XXX XXX XXX CHP W/MC COOKIE 1.0210 0.2819 1.3028
3092 MFC SMI-SWT CHNK PECAN COOKIE 0.8645 0.2825 1.1470
3150 MFC H/A CHOC CHIP COOKIE 0.5869 0.2844 0.8713
3312 MFC OLD FSHN SHRTBRD COOKIE 0.4052 0.2798 0.6850
3650 MFC CHOC CHP NIB COOKIE 0.5917 0.2855 0.8772
3652 MFC MLK CHOC CHP NIB COOKIE 0.5991 0.2855 0.8847
3660 MFC BUTTER NIB COOKIE 0.4483 0.2924 0.7407
3661 MFC CHOC CHP W/WLNT NIB COOKIE 0.6980 0.2820 0.9800
3662 MFC WHITE CHNK W/MAC NIB COOKIE 1.0069 0.2790 1.2859
3665 MFC OATMEAL RSN NUT NIB COOKIE 0.6087 0.2958 0.9045
3669 MFC MLK CHOC WLNT NIB COOKIE 0.7054 0.2820 0.9874
3675 MFC PENT BTTR NIB COOKIE 0.5143 0.3044 0.8188
3679 MFC CHEWY CHOC NIB COOKIE 0.7338 0.2775 1.0113
3850 MFC HI-ALT CHOC CHP COOKIE 0.5847 0.2847 0.8694
3852 MFC HI-ALT MLK CHOC CHP COOKIE 0.5920 0.2851 0.8771
3861 MFC HI-ALT CHOC CHP W/WLNT COOKIE 0.6941 0.2819 0.9761
3869 MFC HI-ALT MLK CHOC W/WLNT COOKIE 0.7015 0.2819 0.9834
3891 MFC HI-ALT MLK CHOC W/MAC COOKIE 0.9248 0.2818 1.2066
3950 MFC HI-ALT SS CH CH NIB COOKIE 0.5919 0.2857 0.8776
3952 MFC HI-ALT CH CH NIB COOKIE 0.5994 0.2857 0.8851
PRICE
LIST
Exhibit A
Raw Material Conversion Total
PROD & Packaging & Delivery Price
# DESCRIPTION ($ Perlb.) ($ Per lb.) ($ Per lb.)
7401 MFC APPLE CROISSANT 0.5784 0.2991 0.8775
7403 MFC BUTTER CROISSANT 0.3681 0.3211 0.6891
7404 MFC CHOCOLATE CROISSANT 0.5651 0.3123 0.8774
7405 MFC CROISSANT SQUARE 0.3559 0.3345 0.6903
7410 MFC CHEESE CROISSANT 0.5705 0.3227 0.8932
1553 MFC P.B. FILLING 0.6690 0.2847 0.9537
1557 MFC LEMON CREAM CHEESE FILLING 0.9509 0.2664 1.2173
1560 MFC BRAN MUFFIN 4X5 LB CHUB 0.5541 0.2512 0.8053
1561 MFC ORNGE MFFN 4X5 LB CHUB 0.6470 0.2918 0.9388
1563 MFC CORN MUFN 4X5 LB CHUB 0.4360 0.2538 0.6898
1564 MFC PLAIN MUFN BATTR 4X5 CHUB 0.4561 0.2359 0.6920
1565 MFC PUMPKIN MFN 4X5 CHUB 0.5696 0.2700 0.8395
1566 MFC BANANA NUT MUFFIN 4X5 CHUB 0.6967 0.2574 0.9541
1589 MFC CARROT CAKE ICING 0.8099 0.2424 1.0523
2929 MFC CARROT CAKE BATTER 0.6675 0.2566 0.9241
7750 MFC ALMOND PASTE 1.2080 0.2599 1.4678
7751 MFC MAPLE TOPPING 0.4345 0.2379 0.6724
7754 MFC NEW STREUSEL 0.4019 0.2190 0.6209
7755 MFC XXXXXX TOPPING 0.4122 0.2351 0.6472
7782 MFC BUTTER CREME ICING 0.5748 0.2574 0.8322
7200 MFC DINNER ROLL 0.2557 0.2848 0.5405
7201 MFC SWEET FRENCH ROLL 0.3642 0.2699 0.6341
7203 MFC SWEET FRENCH ROLL 0.1251 0.2699 0.3950
7450 MFC CINNAMON ROLL 0.2917 0.3093 0.6010
EXHIBIT B
EXHIBIT B
REBATE TO BUYER
Annual Volume Rebate
(000'S lbs.) ($ per lb.)
16,999 or less 0.0000
17,000 - 17,999 0.0025
18,000 - 19,999 0.0050
20,000 - 21,999 0.0075
22,000 - 23,999 0.0100
24,000 - 25,999 0.0125
26,000 - 27,999 0.0150
28,000 - 29,999 0.0175
30,000 - 31,999 0.0200
32,000 - 33,999 0.0225
34,000 - 35,999 0.0250
36,000 - 37,999 0.0275
38,000 - 39,999 0.0300
40,000 - 41,999 0.0325
42,000 - 43,999 0.0350
44,000 - 45,999 0.0375
46,000 - 47,999 0.0400
48,000 - 49,999 0.0425
50,000 or more 0.0450
EXHIBIT C
EXHIBIT C
PENALTY PAYMENT BY BUYER
Annual Volume Penalty
(000's lbs.) ($ per lb.)
0 - 1,999 0.0200
2,000 - 3,999 0.0175
4,000 - 5,999 0.0150
6,000 - 7,999 0.0125
8,000 - 9,999 0.0100
10,000 - 11,999 0.0075
12,000 - 13,999 0.0050
14,000 - 15,999 0.0025
16,000 or more 0.0000
EXHIBIT D
EXHIBIT D
Butter
Eggs
Vanilla
Chocolate
Walnuts
Pecans
Macadamia Nuts
Raisins
Shortening/Oils
Milk/Milk Products
Corrugated
Roll Stock Film
Flour (bag)
Sugar(bag)
Volume Rebate to Buyer
OCC Bid
Per Exhibit B of MFC Contract
Annual Volume Rebate Rebate
(000's lbs) ($ per lb) (Total $$)
16,999 or less 0.0000 ---
17,000 - 17,999 0.0025 42,500 - 45,000
18,000 - 19,999 0.0050 90,000 - 100,000
20,000 - 21,999 0.0075 150,000 - 165,000
22,000 - 23,999 0.0100 220,000 - 240,000
24,000 - 25,999 0.0125 300,000 - 325,000
26,000 - 27,999 0.0150 390,000 - 420,000
28,000 - 29,999 0.0175 490,000 - 525,000
30,000 - 31,999 0.0200 600,000 - 640,000
32,000 - 33,999 0.0225 720,000 - 765,000
34,000 - 35,999 0.0250 850,000 - 900,000
36,000 - 39,999 0.0275 990,000 - 1,045,000
38,000 - 39,999 0.0300 1,140,000 - 1,200,000
40,000 - 41,999 0.0325 1,300,000 - 1,365,000
42,000 - 43,999 0.0350 1,470,000 - 1,540,000
44,000 - 45,999 0.0375 1,650,000 - 1,725,000
46,000 - 47,999 0.0400 1,840,000 - 1,920,000
48,000 - 49,999 0.0425 2,040,000 - 2,125,000
50,000 or more 0.0450 2,250,000
