CONFIDENTIAL PORTIONS OF MATERIAL HAVE BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. THE REDACTED MATERIAL HAS BEEN INDICATED
WITH AN ASTERISK IN BRACKETS ([*]).
FLOUR PURCHASE AGREEMENT
dated as of August 7, 2002
by and between
Bay State Milling Company
and
American Italian Pasta Company
TABLE OF CONTENTS
Page
ARTICLE I REQUIREMENTS................................................................. 1
Section 1.1. Pasta Plant..................................................1
Section 1.2. Sale of Goods................................................1
Section 1.3. Production Schedule..........................................2
Section 1.4. Restriction on Sale of Flour by Bay State....................2
ARTICLE II PRICING, PAYMENT AND DELIVERY................................................2
Section 2.1. Purchase Price; Extraction Rates and Milling Conversion......2
Section 2.2. Payment......................................................5
Section 2.3. Flour Delivery...............................................5
ARTICLE III PRODUCTION AND QUALITY......................................................5
Section 3.1. Flour Quality................................................5
Section 3.2. Flour Sampling...............................................6
Section 3.3. Quality Control..............................................6
Section 3.4. Mill Sanitation..............................................6
Section 3.5. Recall.......................................................7
Section 3.6. Meetings.....................................................7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AIPC.......................................7
Section 4.1. Corporate Existence and Power................................7
Section 4.2. Corporate Authorization......................................8
Section 4.3. Governmental Authorization...................................8
Section 4.4. SEC Filings..................................................8
Section 4.5. No Undisclosed Liabilities...................................8
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BAY STATE...................................9
Section 5.1. Corporate Existence and Power................................9
Section 5.2. Corporate Authorization......................................9
Section 5.3. Governmental Authorization...................................9
Section 5.4. No Undisclosed Liabilities...................................9
Section 5.5. Expansion Space.............................................10
ARTICLE VI PASTA PLANT AND MILL EXPANSION..............................................10
Section 6.1. Pasta Plant Production Expansion............................10
Section 6.2. Mill Improvements...........................................10
ARTICLE VII INVENTORY..................................................................11
Section 7.1. Wheat Purchasing............................................11
Section 7.2. Wheat Inventory.............................................12
Section 7.3. Off-Site Storage............................................12
i
ARTICLE VIII RIGHT OF FIRST REFUSAL AND SALE OF PASTA PLANT............................13
Section 8.1. AIPC Right of First Refusal.................................13
Section 8.2. Sale of the Mill............................................13
Section 8.3. Sale of the Pasta Plant.....................................13
ARTICLE IX COVENANTS...................................................................14
Section 9.1. Confidentiality.............................................14
Section 9.2. Inspections.................................................14
Section 9.3. Insurance and Indemnification...............................15
Section 9.4. General Cooperation.........................................15
Section 9.5. Other Opportunities.........................................16
Section 9.6. Marketing Payment...........................................16
Section 9.7. Noncompetition..............................................16
Section 9.8. Financial Statements........................................17
ARTICLE X TERM AND TERMINATION.........................................................17
Section 10.1. Term ...................................................17
Section 10.2. Material Default............................................17
Section 10.3. Termination.................................................18
Section 10.4. Effect of Termination.......................................18
Section 10.5. Interparty Communication....................................19
ARTICLE XI MISCELLANEOUS...............................................................19
Section 11.1. Notices.....................................................19
Section 11.2. Force Majeure...............................................20
Section 11.3. Amendments; No Waivers......................................20
Section 11.4. Successors and Assigns......................................21
Section 11.5. Governing Law...............................................21
Section 11.6. Arbitration; Jurisdiction...................................21
Section 11.7. Counterparts; Effectiveness.................................22
Section 11.8. Entire Agreement............................................22
Section 11.9. Relationship of Parties.....................................22
Section 11.10. Captions 22
Section 11.11. Severability................................................22
Schedules:
Schedule A Flours
Schedule B Pricing Formulas
Schedule C Wire Instructions
Schedule D Mill Purchase Price
Schedule E Wheat Specifications
Schedule F Wheat Purchasing Procedures
FLOUR SUPPLY AGREEMENT
FLOUR SUPPLY AGREEMENT dated as of August 7, 2002 by and between Bay
State Milling Company, a Minnesota corporation ("Bay State"), and American
Italian Pasta Company, a Delaware corporation, and its affiliates (together,
"AIPC").
WITNESSETH:
WHEREAS, AIPC desires to purchase from Bay State at least 80% of the
requirements of semolina and other durum flour products for AIPC's pasta
production plant to be located in Tolleson, Arizona (the "Pasta Plant"); and
WHEREAS, Bay State desires to sell to AIPC semolina and other durum
flour products produced at Bay State's flour mill located in Tolleson, Arizona
(the "Mill").
NOW, THEREFORE, in consideration of the representations, warranties and
covenants contained herein, the parties agree as follows:
ARTICLE I
REQUIREMENTS
Section 1.1. Pasta Plant. In the event that AIPC constructs its pasta
production facility in a location within the State of Arizona not adjacent to
the Mill, or discontinues its operations at the pasta production plant located
adjacent to the Mill and commences pasta production at another facility located
within the State of Arizona, such pasta production facility shall be deemed to
be the "Pasta Plant" for purposes of this Agreement and AIPC shall continue to
be subject to the terms and conditions set forth in this Agreement with respect
to its requirements for such facility.
Section 1.2. Sale of Goods: Bay State shall sell to AIPC, and AIPC shall
purchase from Bay State at least eighty percent (80%) of AIPC's entire
requirement of durum flours for the Pasta Plant during each year of the term of
this Agreement, subject to the minimum volume requirements provided for in this
Section 1.2. Schedule A hereto, as such schedule may be amended by the parties
from time to time, lists the durum flours (the "Flours") that may be ordered by
AIPC for the Pasta Plant during the term of this Agreement. Notwithstanding the
foregoing, in no event shall the aggregate amount of Flours purchased by AIPC
and sold by Bay State in any Fiscal Year (as defined below) during the term of
this Agreement be less than 50 million pounds (the "Minimum Volume
Requirement"); provided, however, that AIPC shall not be subject to the Minimum
Volume Requirement during the period commencing on the date hereof and ending on
September 30, 2003 (the "Start-Up Period"). A "Fiscal Year" means each one-year
period commencing on October 1 and ending on September 30 during the term of
this Agreement. In the event that the aggregate amount of Flours purchased by
AIPC during any Fiscal Year beginning after the Start-Up Period, is less than
the Minimum Volume Requirement, AIPC shall pay to Bay State, not more than
thirty (30) days after the last day of such Fiscal Year, an amount equal to the
product of (i) the excess, expressed in hundredweights ("cwts"), of (A)
2
the Minimum Volume Requirement over (B) the actual number of pounds of Flours
purchased by AIPC during such Fiscal Year, multiplied by (ii) the milling
conversion in effect with respect to such Fiscal Year. The parties acknowledge
and agree that if AIPC does not commence or discontinues its pasta production
operations at the Pasta Plant and does not commence such operations at another
facility deemed to be the Pasta Plant pursuant to Section 1.1 above, then AIPC
shall pay to Bay State a liquidated damage payment equal to the Minimum Volume
Requirement multiplied by the milling conversion rate, as determined pursuant to
Section 2.1(c), in effect from time to time until the earlier of (i) the end of
the term of this Agreement, (ii) the date on which AIPC commences operations at
another facility deemed to be the Pasta Plant pursuant to Section 1.1 above and
(iii) the date on which Bay State enters into a supply arrangement at the Mill
on substantially the same terms provided in this Agreement; provided, however,
that to the extent that Bay State is able to sell flour produced at the Mill to
third parties in replacement of the volume of flour that was contracted to be
sold to AIPC under this Agreement (and Bay State hereby agrees to use its
commercially reasonable efforts to maximize such replacement sales), Bay State's
net profit (which shall equal Bay State's cash receipts less the cost of raw
materials and variable operating costs) in respect of such flour sold by Bay
State to third parties shall be subtracted from the liquidated damage payment to
be made by AIPC.
Section 1.3. Production Schedule.
(a) Monthly Forecast. On or before the 20th day of each month, AIPC
will provide Bay State with a written production schedule setting forth
AIPC's estimated flour requirements for the following month (the "Monthly
Forecast"). Bay State acknowledges and agrees, however, that (i) the
Monthly Forecast is not binding on AIPC, (ii) AIPC may modify the Monthly
Forecast and (iii) AIPC will only be obligated to purchase Flours pursuant
to AIPC's written purchase requisitions (the "Purchase Requisitions")
submitted by AIPC to Bay State.
(b) Weekly Forecast. On or before the Thursday of each week during the
term of this Agreement, AIPC will provide Bay State with a written
production schedule listing AIPC's estimated requirements by specific Flour
for the following week (the "Production Schedule"). Bay State acknowledges
and agrees, however, that (i) the Production Schedule is not binding on
AIPC, (ii) AIPC may modify the weekly Production Schedule and (iii) AIPC
will only be obligated to purchase Flours pursuant to AIPC's Purchase
Requisitions submitted by AIPC to Bay State.
Section 1.4. Restriction on Sale of Flour by Bay State. Bay State hereby
agrees not to sell or otherwise transfer any of the Flours produced at the Mill
to any third party unless and until Bay State shall have first satisfied AIPC's
requirements at the Pasta Plant as specified in the Purchase Requisitions
received by Bay State.
ARTICLE II
PRICING, PAYMENT AND DELIVERY
Section 2.1. Purchase Price; Extraction Rates and Milling Conversion.
Subject to the provisions of Section 2.3(a), the purchase price of the Flours
shall be calculated in
2
accordance with the formulas set forth on Schedule B. In calculating the
purchase price of any Flours, the following terms shall apply:
(a) All purchase prices shall be calculated on the basis of the (i)
actual costs of the wheat grain, including any cost incurred by Bay State
to transport the wheat grain to the Mill, (ii) actual costs of purchased
product enrichment material and (iii) by-product sales values in effect at
the time of determination of the selling price of the semolina and (iv) the
milling conversion, which shall be comprised of (A) the operating costs,
including manufacturing costs and overhead, of the Mill and (B) the profit
to be earned on the sale of the Flours to AIPC.
(b) In calculating the purchase price, the actual flour extraction
rates and moisture gains achieved in the milling of the wheat, as
determined on a quarterly basis in accordance with the terms of this
subsection (b), will be used; provided, that the aggregate flour extraction
rate in any quarter shall not be less than 78%, consisting of 72% semolina
and 6% clear flours. The flour extraction rates and moisture gains for each
quarter during the term of this Agreement shall be determined by Bay State
and AIPC not more than ten (10) days after each December 31, March 31, June
30 and September 30 during the term of this Agreement based on the
extraction rates and moisture gains actually achieved during the
three-month period then ended; provided, however that for the first three
months of the Start-Up Period the extraction rates shall be 74% semolina,
2% 1st Clear flour, 2% 2nd Clear flour, 4% reddog and 18% millfeed and
moisture gains shall be calculated at 4%. Bay State and AIPC shall
cooperate to maximize yields and efficiencies of the milling process in an
effort to achieve an aggregate flour extraction rate of at least 80%,
consisting of 75% semolina, 2% 1st Clear flour and 3% 2nd Clear flour;
provided, that AIPC will not be obligated to pay any costs or make any
investments of such efforts. Bay State's obligation to meet the extraction
rates set forth in this subsection (b) shall be subject to the provisions
of Section 11.2. Notwithstanding the foregoing, if AIPC is unable to
procure wheat which complies with the quality specifications provided in
Schedule E, then the parties will equitably adjust the extraction rates
provided in this section to conform to the characteristics of the available
wheat.
(c) The milling conversion shall be fixed at the commencement of each
Fiscal Year, and subject to adjustment during each Fiscal Year, during the
term of this Agreement in accordance with the following provisions:
(i) For the Start-Up Period and the first two (2) Fiscal Years
following the Start-Up Period, the "milling conversion" shall be fixed
as follows:
(A) if the quantity of Flours to be purchased during a
Fiscal Year is equal to or greater than [*] pounds and less than
[*] pounds, the milling conversion shall be [*] for such Fiscal
Year; and
(B) if the quantity of Flours to be purchased during a
Fiscal Year is equal to or greater than [*] pounds and AIPC has
complied with the requirements of Section 6.2, the milling
conversion shall be [*] for such Fiscal Year.
3
(ii) For the third Fiscal Year of the term of this Agreement and
for each Fiscal Year of the term of this Agreement thereafter (the
"Remaining Term"), the mill operating costs component (which component
totals [*] and consists of the following costs: durum mill processing,
operating supplies, maintenance, elevator operations, power and
utility costs, durum laboratory and sampling, and specific durum
administrative costs) of the milling conversions set forth in
paragraphs (A) and (B) of paragraph (i) above shall be subject to
yearly adjustment based on changes in the Producer Price Index for the
industry in the SIC Code 2041 (Flour and other Grain Mill Flours) (the
"Producer Price Index"), which adjustment shall equal the lesser of
(i) the actual percentage increase in the Producer Price Index for the
previous Fiscal Year and (ii) [*]. For each Fiscal Year during the
Remaining Term, the amount of the adjustment on the [*] mill operating
costs component, as determined in accordance with the previous
sentence, shall be added to the milling conversions set forth in
paragraphs (A) and (B) of paragraph (i) above and the result shall be
the applicable milling conversions for such Fiscal Year.
(iii) The parties shall fix the milling conversion for each
Fiscal Year at the annual meeting for the preceding Fiscal Year held
pursuant to Section 3.6(c) and the milling conversion shall be fixed
based upon AIPC's purchase volume during the previous Fiscal Year,
AIPC's projected volume requirements for the coming Fiscal Year and
the adjustment to the milling conversion provided for in paragraph
(ii) above.
(iv) If the milling conversion for any Fiscal Year has been fixed
at the conversion price applicable for annual volume purchases equal
to or greater than [*] pounds and less than [*] pounds, the milling
conversion shall be reduced to [*] following any three consecutive
month period in which the amount of Flours purchased by AIPC reaches a
minimum of [*] pounds per month and shall remain at [*] thereafter for
so long as the purchase volume for the immediately preceding
three-month period does not fall below the minimum amount necessary to
satisfy the annual requirement of [*] pounds set forth in paragraph
(i)(B) above.
(d) The weight of the Flours delivered to AIPC and used in the pricing
calculation shall be determined at the time of delivery to AIPC at the
Pasta Plant and agreed by the parties. At or before 8:00 a.m. (Arizona
time) on each business day, AIPC shall deliver to Bay State copies of the
weight receipts from its receiving scale for all Flours delivered to the
Pasta Plant during the preceding day. AIPC shall provide Bay State access
to the Pasta Plant to inspect the scaling equipment located at the Pasta
Plant and deliver to Bay State such evidence of the accuracy of such
equipment, including, but not limited to, copies of inspection
certificates, as Bay State may reasonably request. Bay State anticipates
moisture losses to be incurred in the delivery of the Flours to AIPC by
pipeline transfer, and to the extent that variances in the weight of the
Flours, as determined by reference to Bay State's transfer scales and
moisture level readings as compared to AIPC's receiving scales and moisture
level readings, can be attributed to losses in moisture, then the amount of
such moisture loss will be included in the measurement of moisture gains
and flour extraction rates set forth in subsection (b) above and the
Schedule B pricing formula. AIPC shall provide Bay State with access to
AIPC's records for the Pasta Plant for the purpose of monitoring and
coordinating delivery of and payment for the Flours.
4
(e) In connection with the determination of the purchase price, AIPC
shall have the right to review the books, records and other data relating
solely to the operation of the Mill in order to accurately calculate
appropriate adjustments.
Section 2.2. Payment. AIPC shall make payment to Bay State in cash on
Tuesday of each week by wire transfer of immediately available funds in
accordance with the wire instructions set forth on Schedule C. Payments made
pursuant to the previous sentence will pay all unpaid invoices received by AIPC
on or prior to the Friday of the previous week. Bay State will deliver invoices
to AIPC each business day covering deliveries made to the Pasta Plant during the
previous business day and priced based upon the weight receipts from AIPC's
receiving scale at the Pasta Plant and in accordance with and applied against,
the earliest dated open Flour Sales Contract, issued pursuant to Section 7.1,
then in effect. Bay State shall, upon receipt of written request from AIPC,
provide AIPC with access to AIPC's order and account balance information in Bay
State's computer system for ease of communication of order and invoicing
information.
Section 2.3. Flour Delivery.
(a) Delivery by truck or railroad. Except as provided in subsection
(b) below, sale and delivery of any Flour purchased by AIPC shall be FOB
the Mill. If Bay State is required to deliver the Flours to the Pasta Plant
by any means other than a pipeline between the Mill and the Pasta Plant,
and the inability to use the pipeline is not primarily due to an act or
omission of Bay State, Bay State shall arrange for delivery and AIPC shall
pay all costs of such delivery. Any delivery costs payable by AIPC in
accordance with this Section 2.3 are in addition to the purchase price of
the Flours as calculated in accordance with the terms of Section 2.1 and
the formulas in Schedule B.
(b) Delivery by pipeline. If the Pasta Plant is located in close
enough proximity to the Mill to permit the Flours to be delivered to the
Pasta Plant by a pipeline, Bay State will construct such pipeline and the
costs of constructing the pipeline shall be paid by Bay State. Bay State
shall acquire all equipment, and pay for the installation of such
equipment, required to enable the delivery of the Flours through the
pipeline to the point of first receipt at the Pasta Plant. Bay State will
work with engineers chosen by AIPC to ensure the construction of an
efficient pipeline with proper connection for receiving the Flours at the
Pasta Plant. Bay State shall maintain the pipeline in good working
condition (subject to reasonable wear and tear) during the term of this
Agreement. The cost incurred by Bay State to construct and maintain the
pipeline shall be treated as a capital investment in the Mill and shall be
included in the calculation of the purchase price of the Mill in accordance
with the formula set forth on Schedule D, as the same may be amended from
time to time. If the Flours are delivered by pipeline, the delivery shall
be FOB the Pasta Plant.
ARTICLE III
PRODUCTION AND QUALITY
Section 3.1. Flour Quality: All Flour purchased by AIPC pursuant to this
Agreement shall be merchantable, fit for its intended use, meet all applicable
federal and state quality
5
standards and will comply with the specifications set forth on Schedule A
(collectively, the "Product Specifications"). In order to meet the flour
extraction rates and moisture gains set forth in Section 2.1(b) and in the
Schedule B pricing formulas, all wheat used by Bay State for purposes of
producing flour pursuant to this Arrangement must comply with the wheat
specifications set forth in Schedule E. The wheat specifications set forth in
Schedule E and extraction rates set forth in Section 2.1(b) may be modified from
time to time, upon receipt of written consent from AIPC, which consent shall not
be unreasonably withheld, based upon crop and market conditions. Bay State may
reject any incoming product used to produce the Flours, from whatever source, if
such product does not meet, or would prevent Bay State from producing flour that
meets, the Product Specifications, and any such rejection, and any delay in
delivery of any Flour resulting from such rejection, shall not result in
liability of Bay State or constitute, by itself, a failure by Bay State to
perform its obligations under this Agreement.
Section 3.2. Flour Sampling.
(a) Prior to any shipment of Flour to the Pasta Plant, Bay State will
take and analyze a retainer sample of each load of Flour to be shipped to
AIPC and issue a Certificate of Analysis ("COA") by fax, electronic
transmission, or other means of immediate delivery, to the Pasta Plant.
(b) If the results of the analysis of the retainer sample, which
results will be reflected in the COA, indicate that the tested Flour is in
conformity with the specifications for the Flour to be shipped set forth in
Schedule A, as such schedule may be amended by the parties from time to
time, then Bay State shall deliver the Flour in accordance with the
instructions set forth in the applicable Purchase Requisition. Bay State
will retain each retainer sample at the Mill for a period of six (6)
months.
(c) Notwithstanding the results of the retainer sample, AIPC shall
have the right to reject, pursuant to the rights granted in Article 2 of
the Uniform Commercial Code, any Flour that does not conform to the
specifications set forth in Schedule A.
Section 3.3. Quality Control. Bay State shall maintain at the Mill such
systems for good manufacturing practices and the assurance of product quality as
comply with Bay State's corporate quality policies and procedures. Such systems
shall be administered by Bay State's Quality Assurance Manager and Plant
Manager, and managed by Bay State's Corporate Vice Presidents of Production and
Quality Assurance. Procedures will include, but not be limited to, periodic
in-process ingredient sampling and testing, and monitoring of mill critical
control points.
Section 3.4. Mill Sanitation. Bay State will maintain the sanitation of the
Mill in accordance with industry standards, subject to the additional
requirements of this Section 3.4. At a minimum, Bay State will arrange for
annual American Institute of Baking ("AIB") inspections of the Mill and maintain
a minimum AIB score of 800. Bay State hereby agrees to maintain a Hazard
Analysis Critical Control Points ("HACCP") program and to provide copies of the
required HACCP documentation to AIPC upon reasonable request.
6
Section 3.5. Recall. If any shipment of Flour does not meet the Product
Specifications or if there is a mandatory or voluntary recall of any Flour or
any product incorporating the Flour arising directly from Bay State's
performance or nonperformance of its obligations in connection with the Flours
supplied by Bay State, Bay State shall pay all reasonable costs associated with
remedying its failure to satisfy such Product Specifications or facts,
circumstances or events giving rise to such recall in accordance with AIPC's
recall program as in effect on the date hereof.
Section 3.6. Meetings.
(a) Weekly Meetings. The facility managers of the Pasta Plant and the
Mill, and such other officers and/or employees of each party as the parties
deem appropriate, shall meet not less frequently than weekly, on such date
and at such time and place as may be mutually agreed by the facility
managers, to discuss issues related to the parties' obligations and
performance under this Agreement, including, but not limited to,
cooperation, performance, and coordination with respect to the obligations
of the parties, and to agree on operational activities such as mill and
plant scheduling, timing for deliveries, and quality and efficiency
objectives.
(b) Quarterly Meetings. The Executive Vice President of Bay State and
the Executive Vice President, Procurement and Industrial Markets of AIPC,
and such other officers and/or employees of each party as the parties deem
appropriate, shall meet quarterly during the term of this Agreement to
discuss purchase volumes, AIPC's requirements, and any other matter deemed
by the parties relevant to the performance of the parties' obligations
under this Agreement. The quarterly meetings shall be held on such date and
at such time and such place or by conference telephone as may be mutually
agreed by the parties. Notwithstanding the foregoing, either the Executive
Vice President of Bay State or the Executive Vice President, Procurement
and Industrial Markets of AIPC may call a meeting of the parties at any
time to discuss specific business matters that may arise from time to time.
(c) Year-End Meeting. The Executive Vice President of Bay State and
the Executive Vice President, Procurement and Industrial Markets of AIPC,
and such other officers and/or employees of each party as such party may
deem appropriate, shall meet prior to the end of the Start-Up Period and
each Fiscal Year to discuss annual requirements forecasts and the pricing
of the Flours for the coming Fiscal Year, including fixing the milling
conversion for the next Fiscal Year, and any other matter deemed by the
parties to be relevant to the parties' performance of their obligations
under this Agreement and appropriate for discussion at such meeting. The
annual meeting shall be held on such date and at such time and place as may
be mutually agreed by the parties; provided, however, that the annual
meeting shall be held during the month of September of each year.
7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES of AIPC
AIPC hereby represents and warrants to Bay State that:
Section 4.1. Corporate Existence and Power. AIPC is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business at the Pasta Plant as now contemplated, except for those licenses,
authorizations, permits, consents and approvals the absence of which would not
have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), business, assets or results of operations (a
"Material Adverse Effect") on AIPC.
Section 4.2. Corporate Authorization
(a) AIPC has full authority and corporate power to enter into this
Agreement and to execute and deliver this Agreement and to perform its
obligations under this Agreement, the transactions contemplated hereby and
thereby.
(b) The execution, delivery and performance by AIPC of this Agreement
have been duly authorized by all necessary action of AIPC and no other
action on the part of AIPC is required in connection therewith.
(c) This Agreement constitutes a valid and binding obligation of AIPC
enforceable in accordance with its terms.
Section 4.3. Governmental Authorization. The execution, delivery and
performance by AIPC of this Agreement and the consummation by AIPC of this
Agreement and the transactions contemplated hereby require no action by or in
respect of, or filing with, any governmental body, agency, official or authority
other than any actions or filings the absence of which would not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect on
AIPC or materially to impair the ability of AIPC to consummate this Agreement
and the transactions contemplated hereby.
Section 4.4. SEC Filings. AIPC has delivered to Bay State (i) its annual
report on Form 10-K for the year ended September 30, 2001 and (ii) its quarterly
report on Form 10-Q for the quarter ended December 28, 2001.
Section 4.5. No Undisclosed Liabilities.
(a) There are no liabilities or obligations of AIPC of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable
or otherwise, that would materially impair AIPC's ability to perform its
obligations under this Agreement, and there is no known existing condition,
situation or set of circumstances that could reasonably be expected to
result in such a liability or obligation, other than liabilities or
obligations disclosed and provided for in the balance sheet of the Company
as of December 28, 2001 and the footnotes thereto (the "AIPC Balance
Sheet") or in the notes thereto, a copy of which has been delivered to Bay
State.
8
(b) There have not been any liabilities or obligations of AIPC
incurred in the ordinary course of business consistent with past practices
since the date of the AIPC Balance Sheet that could reasonably be expected
to, individually or in the aggregate, materially impair AIPC's ability to
perform its obligations under this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BAY STATE
Bay State hereby represents and warrants to AIPC that:
Section 5.1. Corporate Existence and Power. Bay State is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Minnesota and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business at the Mill as now contemplated, except for those licenses,
authorizations, permits, consents and approvals the absence of which would not
have, individually or in the aggregate, a Material Adverse Effect on Bay State.
Section 5.2. Corporate Authorization
(a) Bay State has full authority and corporate power to enter into
this Agreement and to execute and deliver this Agreement and to perform its
obligations under this Agreement, the transactions contemplated hereby and
thereby.
(b) The execution, delivery and performance by Bay State of this
Agreement have been duly authorized by all necessary action of Bay State
and no other action on the part of Bay State is required in connection
therewith.
(c) This Agreement constitutes a valid and binding obligation of Bay
State enforceable in accordance with its terms.
Section 5.3. Governmental Authorization. The execution, delivery and
performance by Bay State of this Agreement and the consummation by Bay State of
this Agreement, and the transactions contemplated hereby require no action by or
in respect of, or filing with, any governmental body, agency, official or
authority, domestic, foreign or supranational, other than any actions or filings
the absence of which would not be reasonably expected to have, individually or
in the aggregate, a Material Adverse Effect on Bay State or materially to impair
the ability of Bay State to consummate this Agreement and the transactions
contemplated hereby.
Section 5.4. No Undisclosed Liabilities.
(a) There are no liabilities or obligations of Bay State of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable
or otherwise, that would materially impair Bay State's ability to perform
its obligations under this Agreement and there is no known existing
condition, situation or set of circumstances that could reasonably be
expected to result in such a liability or obligation, other than
liabilities or obligations disclosed and
9
provided for in the unaudited balance sheet of the Company as of March 31,
2002 (the "Bay State Balance Sheet"), a copy of which has been delivered to
AIPC.
(b) There have not been any liabilities or obligations of Bay State
incurred in the ordinary course of business consistent with past practices
since the date of the Bay State Balance Sheet that could reasonably be
expected to, individually or in the aggregate, materially impair Bay
State's ability to perform its obligations under this Agreement.
Section 5.5. Expansion Space. The Mill site includes sufficient space to
allow Bay State to make such improvements to the Mill as are necessary to (i)
expand the Mill to increase its production capacity to up to [*] pounds of Flour
annually and (ii) to build a grain elevator and truck pit with a capacity of not
less than [*] bushels.
ARTICLE VI
PASTA PLANT AND MILL EXPANSION
Section 6.1. Pasta Plant Production Expansion. The parties acknowledge and
agree that AIPC may increase its flour requirements at the Pasta Plant during
the term of this Agreement and, provided that all conditions precedent set forth
in Section 6.2 and covenants of AIPC under this Agreement are satisfied, Bay
State agrees to increase its production capacity at the Mill in order to meet
AIPC's flour requirements at the Pasta Plant in accordance with the provisions
of Section 6.2. AIPC anticipates an expansion of the production at the Pasta
Plant during the Initial Term (as defined in Section 10.1) that may result in an
increase in AIPC's flour requirements at the Pasta Plant to [*] pounds of flour
annually. The parties acknowledge and agree that the production at the Pasta
Plant may be further expanded such that AIPC's requirements during the term of
this Agreement may exceed [*] pounds of flour annually.
Section 6.2. Mill Improvements
(a) In the event that AIPC increases its flour requirements at the
Pasta Plant as provided in Section 6.1, Bay State shall make, upon the
consent of AIPC as to placement and land use, which consent shall not be
unreasonably withheld or delayed, all improvements to the Mill that Bay
State deems necessary to continue to meet AIPC's flour requirements at the
Pasta Plant pursuant to the terms of this Agreement; provided, however,
that:
(i) at such time as AIPC has increased the production
capabilities of the Pasta Plant such that its product requirements are
equal to or in excess of [*] pounds annually, and Bay State has
completed all necessary improvements to the Mill to accommodate AIPC's
increased demand for Flours, AIPC shall purchase at least [*] pounds
of Flours annually from Bay State pursuant to this Agreement;
(ii) if AIPC anticipates that its annual requirements for Flours
will increase above [*] pounds annually, then AIPC shall provide Bay
State with written notice of its additional flour requirements at
least twelve (12) months prior to such increased need in order to
allow Bay State sufficient time to complete any necessary milling
expansion; and
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(iii) if AIPC anticipates that its annual requirements for Flours
will increase above [*] pounds annually, then Bay State shall not be
obligated to make additional improvements to the Mill pursuant to the
terms of this Section 6.2; rather, the parties shall discuss and agree
the terms of such expansion of production capacity at the Pasta Plant
and any improvements to be made to the Mill in connection with such
expansion.
(b) If AIPC has not responded to a Bay State proposal relating to
improvements to the Mill delivered to AIPC in accordance with subsection
(a) above on or prior to the day which is ten (10) business days following
receipt by AIPC of such proposal, AIPC shall be deemed to have consented to
such proposal.
(c) In connection with any improvements made to the Mill in accordance
with this Section 6.2, the Initial Term shall be adjusted as provided in
the proviso of the first sentence of Section 10.1.
(d) If Bay State is not able to complete improvements being made to
the Mill in accordance with the provisions of subsection (a) above in time
to satisfy AIPC's additional flour requirements, Bay State shall, provided
that AIPC has complied with the requirements of this Section 6.2, arrange
for the supply of additional Flours sufficient to meet AIPC's flour
requirements at the Pasta Plant, at Bay State's expense, until such time as
Bay State is capable of satisfying AIPC's flour requirements at the Pasta
Plant directly from the Mill.
(e) In the event that (i) Bay State completes any milling expansion
that includes building and equipping one or more additional durum milling
units and requiring the investment of an amount in excess of [*], and (ii)
AIPC's annual flour requirement at the Pasta Plant subsequently falls below
[*] of the then combined durum milling units' aggregate capacity, the
milling conversion set forth in Section 2.1(c) shall be increased by [*].
This adjustment of the milling conversion will remain in full force and
effect until such time as AIPC's annual flour requirement exceeds [*] of
the combined milling units' capacity for a period of three consecutive
months after which the milling conversion shall return to the price fixed
in accordance with the provisions of Section 2.1(c); provided, however,
that if AIPC's annual flour requirement remains below [*] of the combined
durum milling units' capacity during any consecutive two years following
completion of the milling expansions described in this subsection (e), then
the milling conversion will be increased by an additional [*], for a total
increase of [*] (the "Conversion Increase"), and the Conversion Increase
shall remain in effect until such time as AIPC's annual flour requirement
at the Pasta Plant increases to at least the minimum monthly purchase
volume necessary to satisfy the annual requirement of [*] of the combined
durum milling units' capacity level for a period of three consecutive
months.
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ARTICLE VII
INVENTORY
Section 7.1. Wheat Purchasing.
(a) AIPC will purchase, in accordance with the procedures set forth in
Schedule F, all durum wheat for use in the production of Flour at the Mill
for sale to AIPC. AIPC will execute, subject to Bay State's consent, which
consent shall not be unreasonably withheld, wheat purchase contracts (each
a "Wheat Purchase Contract") with individual wheat vendors. Each Wheat
Purchase Contract will contain all the usual and customary terms and
conditions for wheat purchases of this type, as set forth in Schedule F,
including quantities, delivery methods and dates, pricing and discount or
premium factors, and payment terms. AIPC will also notify the contracting
vendor that AIPC's performance obligations under the Wheat Purchase
Contract are to be assigned to Bay State. AIPC shall execute an assignment
notice, in substantially the form set forth as Exhibit A, and AIPC shall
provide a copy of the assignment notice to the vendor. Each assigned Wheat
Purchase Contract will be forwarded to Bay State and Bay State will confirm
the order directly with the vendor and such confirmation shall be deemed to
be Bay State's acceptance of the assignment of AIPC's performance
obligations under such Wheat Purchase Contract. Bay State shall deliver to
AIPC a statement setting forth the actual grades of , and net prices (after
discounts and premiums, if any) paid for, the wheat received by Bay State
under each assigned Wheat Purchase Contract.
(b) Upon its acceptance of the assignment of any Wheat Purchase
Contract, Bay State will (i) take all actions to administer and secure
performance of each purchase, by arranging delivery, verifying receipts and
product specifications, inventorying and arranging for production, and
effecting payment directly to the vendor based upon the terms and
conditions in the Wheat Purchase Contract and (ii) issue a Flour sales
contract to AIPC for the respective quantities and delivery periods of the
Flours to be sold to AIPC at the selling prices calculated in accordance
with the terms of this Agreement. All Purchase Requisitions shall be issued
against, and reference, the relevant Flour sales contract.
(c) The parties hereby acknowledge that the more detailed purchasing
procedures set forth in Schedule F are intended to facilitate efficient
communication and cooperation in the purchase of wheat pursuant to this
Section 7.1, as well as the efficient production of the Flour pursuant to
this Agreement.
Section 7.2. Wheat Inventory. Bay State shall maintain, at no additional
cost to AIPC, an inventory of [*] of durum wheat at the Mill for the exclusive
use by AIPC. All durum wheat maintained for the exclusive use of AIPC shall be
segregated from the remainder of Bay State's wheat inventory and shall not be
stored in the grain elevators currently used to store Bay State's wheat
inventory. Bay State shall charge AIPC, and AIPC shall pay, the storage and
interest costs, at prevailing market rates, for any wheat inventory stored at
the Mill for the use of AIPC in excess of such [*]. The parties acknowledge
that, as of the date hereof, the market rate in the State of Arizona for storage
of wheat is [*] and this rate shall be the rate in effect through September 30,
2004 for all wheat inventory stored at the Mill for use by AIPC. Bay State shall
construct a separate grain elevator (the "New Elevator") and truck pit with a
capacity of at least [*] for AIPC's use. Construction of the New Elevator shall
be completed on or prior to
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November 1, 2002; provided, that all conditions precedent and covenants of AIPC
set forth in this Agreement have been satisfied at the time construction
commences. The New Elevator shall be connected to the Mill. The cost incurred by
Bay State to construct the New Elevator shall be treated as a capital investment
in the Mill and shall be included in the calculation of the purchase price of
the Mill in accordance with the formula set forth on Schedule D.
Section 7.3. Off-Site Storage. In the event that parties deem it necessary
to store wheat committed to or owned by AIPC, in excess of the storage capacity
of the New Elevator, in a third party storage facility, all costs of such third
party storage, including financing costs, storage fees, loading in and loading
out fees and additional freight costs, shall be paid by AIPC, unless such costs
are included in the respective Wheat Purchase Contract.
ARTICLE VIII
RIGHT OF FIRST REFUSAL AND SALE OF PASTA PLANT
Section 8.1. AIPC Right of First Refusal. AIPC shall have the
option (the "AIPC Option") to purchase the Mill, at a purchase price determined
in accordance with the formula set forth on Schedule D. The land and capital
improvements comprising the Mill are described in Schedule D. The AIPC option
shall be exercised pursuant to and in accordance with the following provisions:
(a) AIPC shall have the right upon the occurrence of a Material
Default (as defined in Section 10.2(a)) by Bay State and subject to Bay
State's right to cure such Material Default or to make provision to comply
with the requirements of the applicable covenant pursuant to the provisions
of Section 10.3 (each, an "Option Event"), to either (i) terminate this
Agreement pursuant to the provisions of Section 10.3 or (ii) exercise the
AIPC Option.
(b) Bay State shall promptly notify AIPC of the occurrence of an
Option Event and otherwise comply with the provisions of this Section 8.1
(such notice, the "Option Notice"). In addition, AIPC may notify Bay State
of the occurrence of an Option Event, and such notice will likewise be
deemed an Option Notice. Subject to Section 8.1(c) below, the Option Notice
shall constitute an irrevocable offer to sell the Mill to AIPC.
(c) On or prior to the date which is thirty (30) days after AIPC's or
Bay State's receipt of the Option Notice (the "Option Period"), AIPC may
elect to accept the offer to purchase the Mill and shall give written
notice of such election (the "AIPC Acceptance Notice") to Bay State. The
Acceptance Notice shall constitute a valid, legally binding and enforceable
agreement for the sale and purchase of the Mill.
Section 8.2. Sale of the Mill. In the event that Bay State enters into an
agreement to sell the Mill to a third party, as a condition to the sale of the
Mill to a third party, the purchaser shall be assigned and shall assume,
expressly by written instrument, the obligations of Bay State under this
Agreement or, alternatively, shall execute a written flour supply agreement with
AIPC on terms and conditions substantially similar to those set forth in this
Agreement and having a minimum term equivalent to the then remaining term of
this Agreement.
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Section 8.3. Sale of the Pasta Plant. In the event that AIPC enters into an
agreement to sell the Pasta Plant to a third party, the purchaser of the Pasta
Plant shall, as a condition to the sale of the Pasta Plant, be assigned and
shall assume, expressly by written instrument, the obligations of AIPC under
this Agreement or, alternatively, execute a written flour supply agreement with
Bay State on terms and conditions substantially similar to those set forth in
this Agreement and having a minimum term equivalent to the then remaining term
of this Agreement.
ARTICLE IX
COVENANTS
Section 9.1. Confidentiality. Each party hereby agrees to hold, and use its
best efforts to cause its respective officers, directors, employees,
consultants, agents and representatives (collectively, "Representatives") to
hold, in confidence, unless compelled to disclose by judicial or administrative
process or by other requirements of law, all confidential documents and
information, whether written or oral, including, without limitation, financial
statements, concerning the business and business process of the other party
furnished, whether before or after the date of this Agreement, to such receiving
party in connection with this Agreement and the consummation of the transactions
contemplated hereby, except to the extent that such information can be shown by
such receiving party to have been (i) at the time of disclosure or thereafter,
generally available to or known by the public other than as a result of a
disclosure by the such receiving party or any of its Representatives; (ii)
available to such receiving party on a nonconfidential basis from a source other
than the disclosing party or any of its Representatives, provided that such
source is not bound by a confidentiality agreement with, or other contractual,
legal or fiduciary obligation to, the disclosing party; or (iii) later lawfully
acquired by such receiving party from sources other than the disclosing party;
provided, that the receiving party may disclose such information to its
Representatives in connection with this Agreement and the consummation of the
transactions contemplated hereby so long as such Representatives are informed by
the receiving party of the confidential nature of such information and are
directed by the receiving party to treat such information confidentially.
Notwithstanding the foregoing, the receiving party may disclose such
confidential information of the disclosing party to (i) a lender in connection
with a financing transaction undertaken by the receiving party; or (ii) a
prospective buyer of either Bay State's or AIPC's interests in connection with
the Mill, the Pasta Plant or this Agreement; provided, that such lender or
prospective buyer agrees in writing, prior to the disclosure of such
confidential information, to keep such information confidential. The obligation
of the receiving party to hold any such information in confidence shall be
satisfied if such party exercises the same care with respect to such information
as it would take to preserve the confidentiality of its own similar information.
If this Agreement is terminated, the receiving party will, and will use its best
efforts to cause its Representatives to, deliver to the disclosing party, upon
request, all documents and other materials, and all copies thereof, obtained by
the receiving party or on its behalf from the disclosing party in connection
with this Agreement and the consummation of the transactions contemplated hereby
that are subject to such confidence.
Section 9.2. Inspections. Each party and its representatives or invitees
shall be permitted reasonable access, upon written notice to the other party, to
the Mill or the Pasta Plant,
14
as applicable, for marketing purposes and for the purpose of observing all
aspects of the other party's operations, including manufacturing techniques,
quality control, sanitation procedures and testing procedures. Each party shall
maintain and make available to the other party's representatives all relevant
testing and equipment records. AIPC's representatives shall also be permitted
upon request to Bay State to inspect the Flours after manufacture and prior to
delivery to AIPC; provided, that such inspections shall in no way delay or in
any manner interfere with Bay State's production or delivery schedules.
Section 9.3. Insurance and Indemnification.
(a) During the term of this Agreement, Bay State shall maintain
liability insurance of at least $10,000,000, with a deductible not to
exceed $500,000. AIPC shall maintain liability insurance of at least
$10,000,000 with a deductible not to exceed $500,000. The insurance
policies obtained by each party pursuant to the previous two sentences
shall provide for coverages reasonably required, prudent and/or customary
in the industry for each party's respective business. Bay State and AIPC
shall also carry contingent business interruption coverage providing for a
minimum of 12 months of coverage. On the date hereof, Bay State and AIPC
shall furnish each other with certificates of insurance evidencing such
coverages. The insurance policies obtained by each party pursuant to the
terms of this Section 9.4 shall provide that such policy shall not be
cancelled, reduced in amount or otherwise materially altered or amended
without at least thirty (30) day prior written notice to Bay State and
AIPC.
(b) Each party hereto (the "Indemnitor") shall indemnify and hold
harmless the other party (the "Indemnitee") from and against any and all
actions, suits, claims, proceedings and any judgments, losses, damages,
fines, costs and expenses, including reasonable attorneys' fees, resulting
therefrom that may be brought or commenced by any person or entity against
the Indemnitee for the recovery of damages for the injury, illness or death
of any person or damage to any property to the extent that such damages
arise out of (i) the delivery, sale, resale, labeling, use or consumption
of any food incorporating the Flour delivered to AIPC or (ii) any actual
breach of the Agreement by the Indemnitor.
Section 9.4. General Cooperation
(a) At the year-end meetings held pursuant to Section 3.6(c) Bay State
and AIPC shall discuss and implement procedures or agreements to the extent
commercially and financially reasonable for both parties, with respect to
the following: (i) opportunities for business referrals from Bay State to
AIPC for the purchase of AIPC products; (ii) short term and long term goals
of AIPC and Bay State with respect to the Mill and the Pasta Plant and how
the goals impact both parties' businesses; (iii) coordinating durum grain
procurement processes, transportation and shipment of raw materials and
finished products, cost improvement and optimization of resources for both
parties; and (iv) sharing resources including without limitation, grain
market analyses. In addition, Bay State and AIPC agree to evaluate new
processes and technologies, as they become available, that may lead to
improvements in Mill operations and reductions in operating costs and
overhead. In the event AIPC desires Bay State to implement new procedures
or technology ("Improvements") to improve the quality or reduce the cost of
Flour to AIPC, the parties agree to negotiate in good faith to amend this
Agreement to share equitably the costs and resulting benefits of the
Improvements. If Bay State refuses to
15
permit AIPC to implement the Improvements at AIPC's cost, AIPC may
terminate this Agreement upon ninety (90) days prior written notice to Bay
State.
(b) During an expansion, if any, the parties shall meet at least
quarterly to discuss the status and progress for completion of the
expansion, estimated completion dates and AIPC's Flour needs upon the
completion of the expansion.
(c) AIPC and Bay State also agree to coordinate and cooperate with
respect to maintenance and fumigation of the Mill and the Pasta Plant so as
to protect the health and safety of persons at both facilities and minimize
interference with each other's operations.
Section 9.5. Other Opportunities. Bay State will not enter into an
agreement with, solicit, initiate or encourage any other pasta company or other
third party (an "AIPC Competitor") to construct a pasta production facility
adjacent to or in the vicinity of another Bay State facility until Bay State has
first given AIPC the opportunity to match the competitor's offer to Bay State.
AIPC shall have a period of thirty (30) days from receipt of written notice of
the competitor's offer to sign a letter of intent with Bay State to match such
offer. The parties shall negotiate the terms of the letter of intent in good
faith. If the parties are unable to reach agreement on the terms of the letter
of intent within such thirty (30) day period, Bay State shall have the right to
enter into an agreement with the AIPC Competitor on terms substantially similar
to such offer.
Section 9.6. Marketing Payment. In recognition of the benefit to Bay State
of the immediate Flour demand associated with access to pasta customers
available due to AIPC's strong market position and the start-up costs and
efforts of AIPC expended in purchasing and reopening the Xxxxxx facility, Bay
State hereby agrees to make a one-time payment to AIPC of [*] on the date hereof
(the "Marketing Fee"). The Marketing Fee shall be paid to AIPC in cash by wire
transfer of immediately available funds in accordance with the wire instructions
set forth in Schedule C hereto.
Section 9.7. Noncompetition
(a) AIPC agrees that during the term of this Agreement, neither it nor
its affiliates shall engage, either directly or indirectly, as a principal
or for its own account or solely or jointly with others, or as stockholders
in any corporation or joint stock association, in any business that
competes with Bay State's baking flour milling business or its durum wheat
milling business, in either case, within the State of Arizona; provided,
that nothing herein shall prohibit the purchase by AIPC of baking flours,
if necessary, from a supplier other than Bay State.
(b) Bay State agrees that during the term of this Agreement, neither
it nor its affiliates shall engage, either directly or indirectly, as a
principal or for its own account or solely or jointly with others, or as
stockholders in any corporation or joint stock association, in any business
that competes with AIPC's pasta production business (the "AIPC Competitive
Business") within the State of Arizona; provided, that nothing herein shall
prohibit Bay State from selling flour produced at the Mill to a third party
engaged in the AIPC Competitive Business in accordance with the terms of
Section 1.4.
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(c) It is the intention of the parties that if any of the restrictions
or covenants contained herein is held to cover a geographic area or to be
for a length of time which is not permitted by applicable law, or in any
way construed to be too broad or to any extent invalid, such provision
shall not be construed to be null, void and of no effect, but to the extent
such provision would be valid or enforceable under applicable law, a court
of competent jurisdiction shall construe and interpret or reform this
Section 9.8 to provide for a covenant having the maximum enforceable
geographic area, time period and other provisions (not greater than those
contained herein) as shall be valid and enforceable under such applicable
law.
Section 9.8. Financial Statements. All financial statements delivered by
any party pursuant to this Agreement shall be prepared in conformity with
generally accepted accounting principles.
ARTICLE X
TERM AND TERMINATION
Section 10.1. Term. The initial term of this Agreement shall commence on the
date hereof and shall continue until and including September 30, 2012 (the
"Initial Term") and, thereafter, this Agreement shall automatically renew for
additional five-year terms unless either of the parties shall have delivered
written notice of termination to the other party not less than two (2) years
prior to the expiration of any term; provided, however, that in the event the
production capacity of the Mill is expanded in accordance with the provisions of
Section 6.2, a new Initial Term of 10 years shall commence on the date on which
Bay State commences capital improvements at the Mill that would require Bay
State to invest, in the aggregate, at least $2.5 million in (a) new capital
equipment to increase the Mill's production capacity in accordance with the
provisions of Section 6.2 or (b) Improvements in accordance with Section 9.4.
Section 10.2. Material Default.
(a) The following shall be deemed a "Material Default" on Bay State's
part:
(i) The entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of Bay State in an involuntary
case under any bankruptcy laws and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive days, or
the commencement by Bay State of a voluntary proceeding under any
bankruptcy laws;
(ii) An assignment of this Agreement by Bay State in violation of
Section 11.5;
(iii) Bay State's failure to make improvements to the Mill in
accordance with the provisions of Section 6.2;
(iv) Bay State's failure to observe and perform the covenants set
forth in Sections 3.1, 3.2 and 3.3 such that the obligations of these
Sections have not been satisfied for a period of not less than thirty
(30) days; or
17
(v) Bay State's failure to observe and perform the covenant set
forth in Section 3.4 such that the obligation of this Section has not
been satisfied for a period of not less than sixty (60) days.
(b) The following shall be deemed a "Material Default" on AIPC's part:
(i) AIPC's failure to pay Bay State's invoices in accordance with
the provisions of Section 2.2;
(ii) AIPC's failure to purchase eighty percent (80%) of its flour
requirements at the Pasta Plant from Bay State as set forth in Section
1.2;
(iii) The entry by a court having jurisdiction in the premises of
a decree or order for relief in respect of AIPC in an involuntary case
under any bankruptcy laws and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive days, or
the commencement by AIPC of a voluntary proceeding under any
bankruptcy laws; or
(iv) An assignment of this Agreement by AIPC in violation of
Section 11.4.
Upon the occurrence of any Material Default, the nondefaulting
party shall provide a notice (a "Material Default Notice") to the
defaulting party describing in reasonable detail the Material Default.
Section 10.3. Termination. This Agreement may be terminated at any time:
(a) by mutual written agreement of Bay State and AIPC;
(b) in the event of a Material Default by either party, the other
party may terminate this Agreement upon written notice, and such
termination shall be effective, upon delivery of notice in the case of a
Material Default specified in Sections 10.2(a)(i) and (ii) and Sections
10(b)(iii) and (iv). The defaulting party shall have (i) in the case of a
Material Default specified in Section 10.2(a)(iii) or Section 10.2(b)(ii),
ninety (90) days from receipt of such notice to cure such Material Default
or to make provision to comply with such requirements; (ii) in the case of
a Material Default specified in Section 10.2(a)(iv) and (v), forty-five
(45) business days from receipt of such notice to cure such default or make
provision to comply with such covenant; and (iii) in the case of a Material
Default specified in Section 10.2(b)(i), ten (10) days to cure such
Material Default;
(c) in the event of Indemnitor's failure to perform the covenant set
forth in Section 9.3(b) within ninety (90) days following the date on which
the Indemnitor's liability and obligation pursuant to Section 9.3(b) has
been determined by final adjudication, the Indemnitee may terminate this
Agreement upon written notice; or
(d) by AIPC in accordance with the provisions of Section 9.4.
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The party desiring to terminate this Agreement pursuant to this
Section 10.3 (other than pursuant to Section 10.3(a)) shall give written
notice of such termination to the other party.
Section 10.4. Effect of Termination. If this Agreement is terminated
pursuant to Section 9.4 or 10.3 , this Agreement shall become void and of no
effect without liability of any party (or any stockholder, director, officer,
employee, agent, consultant or representative of such party) to the other party
hereto, provided that, if such termination shall result from the willful (i)
failure of either party to fulfill a condition to the performance of the
obligations of the other party or (ii) failure of either party to perform a
covenant hereof, such party shall be fully liable for any and all liabilities
and damages incurred or suffered by the other party as a result of such failure.
The provisions of Sections 9.1, 11.5 and 11.6 shall survive any termination
hereof pursuant to Section 9.4 or 10.3.
Section 10.5. Interparty Communication. If either party experiences or
anticipates any difficulty or difference of opinion in respect of any aspect of
this Agreement, it shall inform the other party of that fact with information
relevant to the same, and the parties shall communicate with each other with a
view to resolving the matter amicably and fairly. If any difficulty or
difference of opinion is not resolved in this fashion, either party may, by
written notice to the other, convene a meeting of the most senior operational
executives of the parties, and said executives shall meet as soon as practicable
following such notice and, in any event not later than ten (10) business days
following said notice. At least five (5) business days prior to such meeting,
the parties shall exchange with each other, in writing, their view of the matter
and considerations and facts relevant thereto to facilitate a meaningful
discussion by the senior executives. All communications addressed by the parties
to the other party and related to the purposes of this Agreement shall be
directed to that parties' addresses as set forth in Section 11.1.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to AIPC, to:
American Italian Pasta Company
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Executive Vice President, Procurement and Industrial Markets
Fax: (000) 000-0000
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with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx
Two Pershing Square
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxx, Esq.
Fax: (000) 000-0000
if to Bay State, to:
Bay State Milling Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Executive Vice President
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109
Attention: Xxxxxx X. Cable, P.C.
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. local time, and
such day is a business day, in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received until the
next succeeding business day in the place of receipt.
Section 11.2. Force Majeure. If either party is unable to perform any
obligation under this Agreement by reason of any of the following events (each,
a "Force Majeure Event"): (i) fire, explosion, natural disaster or act of God;
(ii) epidemic; any nuclear, biological, chemical or similar attack; any other
public or safety emergency; any act of terrorism; and any action reasonably
taken in response to the foregoing; (iii) strike or other labor dispute or
action; (iv) any act of war or of a public enemy, or riot or civil insurrection;
any sabotage, whether industrial or governmental; (v) any disruption in
transportation, communications, electric power or other utilities, or other
vital infrastructure; or any means of disrupting or damaging internet or other
computer networks or facilities; (vi) any action taken in response to any of the
foregoing events by any civil or military authority; or (vii) any other cause
beyond the control of the party affected, then the party so affected shall, upon
giving written notice to the other party, be excused from such performance to
the limited extent of such inability to perform, provided that the party so
affected shall use reasonable commercial efforts to avoid or remove such causes
of such inability, and shall resume performance under this Agreement with all
reasonable dispatch
20
whenever such causes are removed. Until such time as the affected party resumes
performance in accordance with the provisions of this Section 11.2, the party
entitled to the benefit of performance by such affected party may secure
performance of such affected party's obligations from third parties. Each party
shall use commercially reasonable efforts to obtain insurance for the benefit of
the other party related to these Force Majeure Events.
Section 11.3. Amendments; No Waivers
(a) Any provision of this Agreement may be amended or waived, but only
if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by
each party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 11.4. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement,
whether by operation of law, or by merger, consolidation, sale of assets, change
of control or otherwise, without the prior written consent of each other party
hereto.
Section 11.5. Governing Law. This Agreement and all disputes, actions or
proceedings arising out of or relating to the breach, termination negotiation,
or validity hereof and/or the rights or obligations of the parties arising out
of or relating to this Agreement, the transactions contemplated hereby, any
agreement, instrument or document executed and delivered in connection with such
transactions or the breach, termination, negotiation, or validity hereof shall
be governed by and construed in accordance with the internal laws of the State
of Missouri, without regard to its conflict of laws provisions. Each of the
parties hereto hereby irrevocably and unconditionally consents to (i) the
jurisdiction of the Center for Public Resources to resolve any such dispute,
action or proceeding (except with respect to any equitable remedy to which a
party is entitled), (ii) the State of Arizona as the site of the arbitration
proceedings, and (iii) the jurisdiction of the courts of the State of Arizona
and the United States District Court for the District of Arizona in Phoenix,
Arizona for the purpose of enforcing the arbitration provisions of Section 11.6
and pursuing any injunctive relief. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any such dispute, action or proceeding before the Center for Public Resources
based on a lack of personal jurisdiction or the laying of venue. Each of the
parties hereto further agrees that service of process, summons, notice or
document by U.S. registered mail to such party's address set forth in Section
11.1 hereof shall be effective service of process for any such dispute, action
or proceeding brought against such party in any such court.
21
Section 11.6. Arbitration; Jurisdiction. Any dispute arising out of or
relating to this Agreement or the breach, termination negotiation, or validity
hereof and/or the rights or obligations of the parties arising out of or
relating to this Agreement, the transactions contemplated hereby, any agreement,
instrument or document executed and delivered in connection with such
transactions or the breach, termination, negotiation, or validity hereof (a
"Claim") shall be finally settled by binding arbitration conducted expeditiously
in accordance with the Center for Public Resources Rules for Nonadministered
Arbitration of Business Disputes (the "CPR Rules") and such decision shall not
be subject to judicial review. The Center for Public Resources shall appoint a
neutral advisor from its National CPR Panel, which advisor shall be a retired
judge or justice with substantial experience in resolving complex business
disputes. The arbitration shall be governed by the United States Arbitration
Act, 9 U.S.C. ss.ss.1-16, and judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction thereof.
Such proceedings shall be administered by one neutral advisor in accordance
with the CPR Rules as he/she deems appropriate; provided, however, such neutral
advisor shall render his or her opinion not more than ten (10) days following
any hearing.
The decision of the neutral adviser shall be in written form. The neutral
adviser shall not have power or authority to award damages in excess of actual
compensatory damages and shall not multiply actual damages or award punitive or
consequential damages or other similar damages, and each party hereby
irrevocably waives any claim to damages other than actual damages.
Notwithstanding anything to the contrary contained herein, the provisions
of this Section 11.6 shall not apply with respect to any matter or dispute as to
which a party seeks injunctive relief.
Section 11.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any person other than the parties hereto and their
respective successors and assigns.
Section 11.8. Entire Agreement. This Agreement supersedes all prior
communications, representations, agreements and understandings, whether oral and
written, between the parties with respect to the subject matter of this
Agreement, including, without limitation, that certain letter agreement dated
March 28, 2002 (the "Letter Agreement") and any printed terms and conditions
which may appear on AIPC's purchase orders to the extent such terms are
different from or inconsistent herewith, and constitutes the entire agreement
between the parties with respect to the subject matter covered herein.
Notwithstanding the foregoing, the terms of the agreement between the parties as
set forth in Section 9 of the Letter Agreement with respect to access to, and
egress from, the Pasta Plant property by means of Bay State's entrance road from
00xx Xxxxxx shall be set forth in and governed by the Roadway Access Easement,
Maintenance and Cost Sharing Agreement dated of even date herewith by and
between the parties.
22
Section 11.9. Relationship of Parties. Neither party shall act or represent
or hold itself out as having authority to act as an agent or partner of the
other party, or in any way bind or commit the other party to any obligations.
Nothing contained in this Agreement shall be construed as creating a
partnership, joint venture, agency, trust or other association of any kind, each
party being individually responsible only for its obligations as set forth in
this Agreement.
Section 11.10. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof
Section 11.11. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Upon such a determination, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
[END OF TEXT]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
AMERICAN ITALIAN PASTA COMPANY
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
Procurement and Industrial Markets
BAY STATE MILLING COMPANY
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President
EXHIBIT A
Form of Assignment
American Italian Pasta Company
0000 X. Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
To: ____________________________
____________________________
____________________________
Kindly note that American Italian Pasta Company Purchase Order No.
________________ dated ______________________ for _________________________
_______________________________________ durum grain has been assigned to Bay
State Milling Company, 000 Xxxxx Xxxxxxxx Xxxxxxxx, X.X. Xxx 00000, Xxxxxxxxxxx,
XX 00000.
Bay State Milling Company has, effective with the date of this Assignment,
assumed the responsibilities of the Purchaser with respect to performance of its
obligations under the Purchase Order, and will confirm this assignment directly
with you.
If you have any questions, relative to the Purchase Order or this Assignment,
please contact Bay State at (000) 000-0000.
American Italian Pasta Company
Signed by: ___________________________
Name: ___________________________
Title: ___________________________
Date: ___________________________
SCHEDULE A
(This Schedule A may be amended from time to time)
Flours
1. Semolina (fine grind) [specifications attached].
2. A blend of 60% semolina and 40% durum 1st Clear flour.
3. Durum flour 1st Clear [specifications attached].
4. Other Durum flours and flour blends, the specifications for which are
to be agreed from time to time.
5. AIPC agrees to use its commercially reasonable efforts to "balance the
mill" by purchasing the naturally occurring yields of semolina and
durum flour 1st Clear products, whether separately or as blended
products.
SCHEDULE A - RAW MATERIAL SPECIFICATION
---------------------------------------------------------------------------------------
Specification Number: RM.101 Revision No.: C
AIPC Product Name: Semolina Revision Date: 03/09/1999
(Blue Blend, Fine Grind) Nature of Revision: Description
Supersedes: B, 3/4/99
Approval: Xxxxx Xxxxxxxx
(AIPC QA Director) Revision Author: Xxxxxx Xxxx
---------------------------------------------------------------------------------------
Description: Made by grinding AIPC Coarse Grind Semolina (Raw Material No. 100
made of ground 100% US Hard Amber Durum Wheat and/or Canadian Western Amber
Durum Wheat, enriched according to Title 21 CFR Part 139 (for macaroni and
noodle products).
Ingredient Statement: Enriched Durum Wheat Semolina [Durum Wheat, Niacin, Ferrous Sulfate (Iron), Thiamine
Mononitrate, Riboflavin, Folic Acid].
[*]
KOSHER STATUS
Manufactured in accordance with and certified by the Orthodox Union, New York,
NY.
REGULATORY REQUIREMENTS
This product shall be prepared, processed, packaged and held under prudent
sanitary conditions, being free of extraneous and deleterious material in
accordance with good commercial food manufacturing practices and the Defect
Action Levels (DAL) established by the FDA for macaroni products, Title 21 CFR
Part 110.
Pesticide residues in this product shall meet the current requirements of the
Code of Federal Regulations found in Title 21, Articles 139.110 and 139.115.
All articles of food comprising each package, shipment, delivery, or consignment
made to the customer will be in compliance with the Federal Food, Drug and
Cosmetic Act of 1938 as amended and all applicable regulations thereunder.
HANDLING AND STORAGE RECOMMENDATIONS
Recommended shelf life - 60 days maximum.
Product should be shipped and stored at temperatures between 32 to 90 degrees F
to ensure shelf life.
REMARKS/SPECIAL INSTRUCTIONS
Products and ingredients shall be obtained from approved food plant suppliers
only. No shipments are to be furnished from co-packers or other non-approved
locations without first informing the customer in writing. COA required on all
shipments/transfers.
RAW MATERIAL SPECIFICATION
---------------------------------------------------------------------------------------------
Specification Number: RM.107 Revision No.: C
AIPC Product Name: Durum Flour Revision Date: 08/20/2001
1st Clear Nature of Revision: Mill processing modification
Supersedes: B, 3/4/99
Approval: Xxxxx Xxxxxxxx
(AIPC QA Director) Revision Author: Xxxxxx Xxxx
---------------------------------------------------------------------------------------------
Description: Made by grinding 100% US Hard Amber Durum Wheat and/or Canadian
Western Amber Durum Wheat, enriched according to Title 21 CFR Part 139 (for
macaroni and noodle products).
Ingredient Statement: Enriched Durum Wheat Flour [Durum Wheat Flour, Niacin, Ferrous Sulfate (Iron),
Thiamine Mononitrate, Riboflavin, Folic Acid].
[*]
KOSHER STATUS
Manufactured in accordance with and certified by the Orthodox Union, New York,
NY.
REGULATORY REQUIREMENTS
This product shall be prepared, processed, packaged and held under prudent
sanitary conditions, being free of extraneous and deleterious material in
accordance with good commercial food manufacturing practices and the Defect
Action Levels (DAL) established by the FDA for macaroni products, Title 21 CFR
Part 110.
Pesticide residues in this product shall meet the current requirements of the
Code of Federal Regulations found in Title 21, Articles 139.110 and 139.115.
All articles of food comprising each package, shipment, delivery, or consignment
made to the customer will be in compliance with the Federal Food, Drug and
Cosmetic Act of 1938 as amended and all applicable regulations thereunder.
HANDLING AND STORAGE RECOMMENDATIONS
Recommended shelf life - 30 days maximum.
Product should be shipped and stored at temperatures between 32 to 90 degrees F
to ensure shelf life.
SCHEDULE B
Pricing Formulas
A. The price for semolina is equal to the computation of the following
components:
1. 100 lbs. of 100% U.S. hard amber durum wheat on the basis of the
specifications set forth in Schedule E priced delivered to the Mill
(as-is basis).
2. Deduct the grain value of the moisture gains percentage.
3. Deduct the sales value of Durum flour 1st Clear.
4. Deduct the sales value of Durum flour 2nd Clear.
5. Deduct the sales value of Durum reddog by-product.
6. Deduct the sales value of middlings by-product.
The result is the net wheat grain cost for semolina.
Invoiced pricing will be in 1-cwt (100 lb.) units and will have the
following components added to the wheat grain costs for semolina:
1. Applicable enrichments and/or treatments required by the
specifications for the Flours as set forth on Schedule A.
2. Mill operating costs, overhead, and profit (the "milling conversion"
cost).
Pricing Example
[*]
If the milling extractions are: 75% semolina, 2% 1st Clear, 3% 2nd Clear, 4%
reddog, and 16% middlings and the semolina is delivered to AIPC via pipeline,
then based upon these extractions, together with the above prices and costs, the
selling price of semolina would be computed as follows:
[*]
B. Durum Flour 1st Clear. If sold separately, durum 1st Clear flour will be
sold FOB the Mill at the same price per cwt. as it is credited in the
formula pricing structure for semolina. i.e. in this example, for [*]. AIPC
will determine the pricing of the 1st Clear flour products based upon
market values in effect at the time of sale and such pricing will be used
to determine the credit for the 1st Clear by-product in the pricing of the
semolina.
C. Other durum flour, or durum blends not specifically identified here, will
be mutually agreed to at the time of sale, and based upon actual costs in
effect at the time of sale.
The actual milling extractions and grain moisture gains will be measured and
analyzed on a quarterly basis, the results of which will determine the pricing
formula to be utilized during the next quarter as provided in Section 2.1(b) and
(d).
SCHEDULE C
Wire Instructions
For wire transfers to Bay State:
[*]
For wire transfers to AIPC:
[*]
SCHEDULE D
(This Schedule D may be amended from time to time)
Mill Purchase Price
Computation of the purchase price of the Mill shall be as follows:
Current durum mill asset value $ [*]
Add Applicable Capital Investments
-- Flour conveying pipeline.
-- Durum grain storage and unloading/receiving pit.
-- Mutually agreed milling expansions.
-- Other improvement/modification capital investment expenses
Deduct Accumulated depreciation expense on Applicable Capital Investments
Net Book Value of Total Assets
------------------
Future purchase price of the Mill Assets
(Net Book Value x.85) $
==================
NOTE:
1. The land area to be included in the purchase price of the Mill is as
depicted in the attached plot plan. However, if AIPC chooses to exercise
its option to purchase the Mill in accordance with Section 8.1, the parties
will discuss the siting of the elevator and its land area at that time to
determine if an alternate siting or arrangement might be more beneficial to
both AIPC and Bay State.
2. The current durum mill asset value will not be subject to depreciation,
such that the Net Book Value will not fall below [*].
3. Depreciation on Applicable Capital Investments will be calculated under the
federal rules for grain and grain mill products, which is Section 20.1 of
the Class Life Asset Depreciation Range System (CLADR).
4. Bay State agrees to use its best efforts to maintain the Mill and any
improvements in a proficient manner for efficient operations and in
accordance with good manufacturing practices, replacing equipment as
necessary.
5. Bay State will make all appropriate and customary representations and
warranties with respect to the Mill and the real property pursuant to a
customary purchase agreement and such purchase agreement shall contain a
legal description of the Mill, including all
expansions and additions made thereto, and shall require Bay State to
obtain a title survey and provide all appropriate warranties of title with
respect to the Mill.
6. In connection with the determination of the Mill purchase price, AIPC shall
be entitled to review Bay State's books and records with respect to any
capital assets added to the Mill and included in the purchase price
calculation set forth in this Schedule D.
SCHEDULE E
Wheat Specifications
-----------------------------------------------------------------------------------------
DOC. NUMBER: 1.0122BSM BAY STATE MILLING COMPANY MATERIAL: HARD DURUM
WHEAT GRAIN
REVISION DATE: 03/07/02 PRODUCT SPECIFICATIONS "DESERT"
REPLACES: 03/06/02
PREPARED BY: RLM XXXXXX, XX 00000
-----------------------------------------------------------------------------------------
[*]
SCHEDULE F
(This Schedule F may be amended from time to time)
Wheat Purchasing Procedures
o American Italian Pasta Company (AIPC) will purchase the durum wheat to be
used-by Bay State Milling Company (Bay State) for the manufacture of
semolina and durum products for use at AIPC's Tolleson, AZ plant. The durum
wheat will be purchased in conformance with the commodity specifications
for "DESERT DURUM" and contract terms detailed in Figures 1 and 3. ("DESERT
DURUM" has been trademarked with the U.S. patent office under the ownership
of the Arizona Grain Research and Promotion Council and California wheat
Commission. Only durum wheat produced in the states of Arizona and
California can use the DESERT DURUM trademark.) If durum wheat purchases do
not meet the prescribed commodity specifications and contract terms in
Figure 1 but the durum is of acceptable quality for milling, AIPC agrees to
adjust the pricing formula to account for any difference between actual
mill yield and the yield guaranteed in the pricing formula.
o For purposes of this contract, "acceptable quality for milling" is defined
as wheat that meets the commodity specifications for non-DESERT DURUM
detailed in Figure 2. Exception(s) to the definition "acceptable quality
for milling" will be discussed and any acceptable exception will be
confirmed in writing between the two parties. Wheat will be rejected if it
does not meet the commodity specifications in Figures 1-3, or is a
confirmed exception. BAY STATE will bear no liability for such rejection
regardless of the outcome of any official grade or third party testament.
All BAY STATE decisions concerning grain quality and acceptability are
final.
o BAY STATE will accept assignment of each purchase contract issued by AIPC,
however BAY STATE will not accept the assignment of purchase contracts
inconsistent with the terms of Figures 1-3 nor will BAY STATE be liable for
performance of such contracts without prior agreement. Both AIPC and BAY
STATE will be responsible for advising seller of the assignment. BAY STATE
will not unload grain for the account of AIPC without a contract.
o AIPC and BAY STATE will work together to insure that wheat purchases are as
homogenous as possible and that BAY STATE's elevator does not have to
segregate inventories in a manner that limits the overall capacity and
operation of the elevator. Furthermore, BAY STATE will endeavor to meet
AIPC's grain storage requirements, however if BAY STATE elevator capacity
is constrained due to segregation requirements or aggregate inventory
levels any handling/storage/transportation charges thereby incurred will be
borne by AIPC. BAY STATE will not be liable for any grain, and attendant
charges, that cannot be unloaded due to storage constraints if AIPC and/or
the seller have been notified by BAY STATE.
o BAY STATE will market all mill by-products. The selling prices for such
by-products and the quantities sold will be the basis for calculating
millfeed credits in the pricing formula.
BAY STATE will confer with AIPC on a regular schedule regarding
offering/selling prices and marketing strategies.
o All grading and weighing fees will be the responsibility of the seller
unless AIPC agrees to bear such charges. Each conveyance is to be
individually graded for settlement purposes unless otherwise agreed.
o Grain payments are to be made by check and postmarked within seven business
days of grain delivery to BAY STATE, Tolleson, AZ, and receipt of all
necessary documents. Any exceptions to be mutually agreed upon by AIPC and
BAY STATE.
FIGURE I
DESERT DURUM
COMMODITY SPECIFICATIONS
AND
CONTRACT TERMS
GUARANTEED SOUND MILLING QUALITY WHEAT, FREE OF OBJECTIONABLE ODORS, FREE
OF -INSECTS AND/OR INSECT PARTICLES, FREE OF FOREIGN OBJECTS, DRY, AND
VITREOUS. THE COMMODITY COMPLIES WITH ALL USDA GRADING REGULATIONS,
CONTAINS NO DELETERIOUS OR BANNED SUBSTANCES, AND COMPLIES WITH THE FEDERAL
FOOD, DRUG AND COSMETIC ACT AND APPLICABLE STATE STATUTES AND REGULATIONS.
[*]
FIGURE 2
NON-DESERT DURUM
COMMODITY SPECIFICATIONS
AND
CONTRACT TERMS
GUARANTEED-SOUND MILLING QUALITY WHEAT, FREE OF OBJECTIONABLE ODORS, FREE
OF INSECTS AND/OR INSECT PARTICLES, FREE OF FOREIGN OBJECTS, DRY, AND
VITREOUS. THE COMMODITY COMPLIES WITH ALL USDA GRADING REGULATIONS,
CONTAINS NO DELETERIOUS OR BANNED SUBSTANCES, AND COMPLIES WITH THE FEDERAL
FOOD, DRUG AND COSMETIC ACT AND APPLICABLE STATE STATUTES AND REGULATIONS.
[*]
FIGURE 3
GENERAL TERMS AND CONDITIONS
1. Commodity purchased must be a sound milling quality grain, free from any
objectionable odors, free from insects, free from foreign objects, dry,
vitreous and capable of producing acceptable milling yields and product
characteristics. Commodity must not pose any food safety or quarantine risk
to the buyer. Further, this grain shall comply with all United States
Department of Agriculture regulations, contain no banned or deleterious
substances and comply in all respects with the Federal Food, Drug and
Cosmetic Act and any regulations promulgated thereunder and all applicable
state and local statutes and regulations. If commodities are adulterated
under any applicable laws, or the commodity or its shipment is in violation
of any provision of this Contract, Seller shall be in breach and Buyer may
take advantage of any and all remedies given under the terms and conditions
of this Contract or under federal, state, and local law.
2. Grain cars, trucks or other conveyance applied against this Contract must
be thoroughly emptied and cleaned prior to loading and not previously used
to haul any unsafe or toxic materials (garbage, chemicals, fertilizers,
etc.). All hatches and gates should be sealed and seals recorded at origin.
Seller shall make seal records available upon request.
3. The grade or protein of grain delivered hereunder shall be uniformly
(evenly) loaded by quality and protein. Unless otherwise specified in this
Contract, official inspection shall include only official grading factors
included in the regulations promulgated under the United States Grain
Standards Act.
4. Seller warrants that all grain to be delivered hereunder will have been
grown in the continental United States unless a clause providing for grain
not grown in the continental United States has been made a part of the
terms of this Contract and a statement thereof shown on the face of this
Contract.
5. Seller guarantees that no commodity covered by this Contract shall be
adulterated or misbranded or is an article or commodity which may not be
introduced into interstate commerce under the provisions of the Federal
Food, Drug and Cosmetic Act and the regulations promulgated thereunder.
6. Seller warrants that the grain to be delivered hereunder will be delivered
free and clear of any and all liens and encumbrances and the claims of any
third parties, including but not limited to any lien in favor of the United
States for a farm marketing excess penalty.
7. Each car or other shipping unit must be loaded with at least the minimum
weight required by the railroad tariff governing its movement for the rail
carload rate or other applicable tariff or rules applicable to the shipping
of the grain subject to this Contract. Seller shall promptly pay any excess
freight due to under-loading. Cars or other shipping units are not to be
overloaded. Any damages, claims, or expenses incidental to an overloaded
car or other shipping unit is the sole responsibility of the Seller,
regardless of whom is in control of the car or other shipping unit.
8. Buyer is an equal-opportunity-employer, and is a government contractor.
Therefore, this Contract is subject to the rules and regulations imposed
upon contractors and subcontractors pursuant to 41 C.F.R. Chapter 60 and
any similar successor legislation and any regulations promulgated
thereunder. Unless this Contract is exempt by any regulations issued by the
Secretary of Labor, there is incorporated herein by reference: the equal
opportunity clause contained in 41 C.F.R. Section 60-1.4; the affirmative
action clause contained in 41 C.F.R. Section 60-250.4 relating to the
employment of disabled veterans and veterans of the Vietnam Era; and the
affirmative action clause contained in 41 C.F.R. Section 60-741.4 relating
to the employment of handicapped persons.
9. Buyer expressly reserves its right to cause the liquidation of this
Contract because of (a) the insolvency of the other party, (b) the
commencement of a case under the Federal Bankruptcy Code 11 U.S.C. 101 et
seq. and any similar successor legislation thereto (the "Code"), (c) the
voluntary or involuntary appointment of a receiver, custodian, trustee,
conservator, liquidator or similar official for it or any substantial part
of its property under the Code, state law, or otherwise or (d) any and all
other defaults of the terms and conditions specified herein either directly
or by reference thereof.
10. Without limiting Buyer's pursuit of any and all other rights and remedies
available to it and without regards to the provisions in Section 11 hereof,
it is expressly agreed that this Contract is subject to the Buyer's right
to set off any mutual debts and claims against Seller under or in
connection with this Contract, as well as any and all other commodity
contracts and forward contracts between the parties, as provided in Section
362(b)(6) of the Code and any similar successor legislation thereto.
11. If grain is fumigated, use only federally or Buyer-approved fumigants
according to label directions. A fumigated grain car, truck or other
conveyance is to be properly placarded and handled in accordance with label
instructions and applicable federal, state, and local statutes and
regulations.
12. Whether or not Buyer is an active member of any of the following
associations, and to the extent not inconsistent with the terms and
conditions stated herein, this Contract shall be governed by and construed
in accordance with the rules and regulations of the exchange, board, or
association(s) designated on the face of this Contract, or, if none is
designated, then the applicable Trade Rules of the National Grain and Feed
Association in effect on the date hereof and the Uniform Commercial Code
(to the extent not in conflict with the applicable Rules). Whether or not
an active member of any of the previously referenced associations, Buyer
acknowledges that it understands the provisions of such rules and
regulations, as applicable, which shall be the basis of any arbitration of
any controversies hereunder.
13. This Contract is subject to reciprocal margin calls. The party giving
margins may require that such amount be held in escrow.
14. Alteration of terms: none of the above terms and conditions of this
Contract may be added to, modified, superseded, or otherwise altered except
with the written consent of an authorized representative of Buyer. Receipt
of this Contract by the Seller, without immediate
notice to Buyer of error, is an acknowledgment of acceptance of all
conditions hereof.
Form 292, Amended November 1999
