EXHIBIT 10.89
MODIFICATION NUMBER THREE
Pursuant to the Production Contract dated as of February 13, 1995,
between Xxxxxxxxxx Laboratories and Oregon Freeze Dry, paragraph two of
Article Seven (Minimum Commitments and Take or Pay Guaranty) Subsection C
(Take or Pay Guaranty: Minimum Total Commitment) shall be amended to
read as follows:
In the event Purchaser takes delivery of and pays for, during any
month of the term of this Production Contract, less than the monthly
Minimum Purchase specified in Subsection C of Article Three, other than
by a suspension of production by Purchaser pursuant to Article Eight,
Purchaser agrees to pay Seller within normal terms an amount equal to the
value of the Product and services not taken and such amount shall be
deemed as a pre-payment that may be applied to future orders of Product
and services during the term of the Production Contract. Seller will
issue an invoice each month for any portion of the $30,000 minimum not
taken in Product and services. Xxxxx memos created by Xxxxxx will
initiate these invoices. Seller will record these pre-payments on the
balance sheet, and provide its Sales Department with a monthly balance
from the general ledger. When orders are placed by Purchaser which have
been pre-paid (that is, when a pre-payment balance exists on the general
ledger), Seller will write these orders and price at zero to generate the
required packing lists for Distribution. In the event that at the end of
the term of the Production Contract there are unapplied pre-payments,
Seller shall retain the unapplied pre-payments, if the Total Minimum
Commitment has not been met, and the amount retained shall be applied to
the Total Minimum Commitment as if it were Product delivered and paid for
under the terms of the Production Contract. If the Total Minimum
Commitment has been met, then any unapplied payments shall be promptly
remitted to Purchaser.
This amendment is effective May 1, 1997.
IN WITNESS WHEREOF, the undesigned parties have duly executed this
modification to their agreement on the date last written below.
XXXXXXXXXX LABORATORIES, INC. OREGON FREEZE DRY, INC.
By: \s\ Xxxxxxx X. Xxxxxx By: \s\ Xxxxxx X. Xxxxxxxxx
Title: President & CEO Title: Sr. V.P./CFO
Date: March 30, 1998 Date: April 16, 1998
