CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS
DOCUMENT. THE REDACTED MATERIAL HAS BEEN INDICATED WITH AN
ASTERISK IN BRACKETS ("[ * ]") AND FILED SEPARATELY WITH THE
COMMISSION.
PRODUCT SUPPLY AND PASTA PRODUCTION COOPERATION AGREEMENT
This Agreement is made and entered into this 7th day of May, 1998,
between AMERICAN ITALIAN PASTA COMPANY, a Delaware corporation ("Customer")
and HARVEST STATES WHEAT MILLING DIVISION, a division of HARVEST STATES
COOPERATIVES, a Minnesota corporation, d/b/a XXXXX XXXXXXX COMPANY
("Supplier").
RECITALS
Customer and Supplier desire to enter into this Agreement to
provide for the supply of Products by Supplier to Customer all in accordance
with the terms hereof.
NOW, THEREFORE, Customer and Supplier agree as follows:
ARTICLE 1. DEFINITIONS.
The following capitalized terms used herein shall have the meaning
given them in this Article:
1.1 ACQUISITION AGREEMENTS shall mean that certain agreement of
even date herewith executed by Supplier as "Seller" and Customer as
"Purchaser" regarding the purchase and sale of the Customer Property and the
agreements between Customer, Xxxxxx X. Van Der Xxxxx, X. Xxxxxx Green, and
Xxxxxxxxx Xxxxx, and Supplier for certain additional property, easements and
other matters relating to construction and operation of the Customer
Facility. Copies of the Acquisition Agreements are attached hereto as
Schedule 1.1.
1.2 AFFILIATE shall mean a person, firm or corporation, which
directly or indirectly, along or through one or more intermediaries,
controls, or is controlled by, or is under common control with a party to
this Agreement.
1.3 AGREEMENT means this Product Supply and Pasta Production
Cooperation Agreement between Supplier and Customer dated as of the date
first above written.
1.4 ANNUAL MINIMUM PRODUCT PURCHASE REQUIREMENT shall have the
meaning set forth in Paragraph 3.1 of this Agreement.
1.5 CPR shall mean the CPR Institute for Dispute Resolution
(formerly, the Center for Public Resources).
1.6 CPR RULES shall mean the Arbitration Rules promulgated by CPR.
1.7 COMMENCEMENT DATE shall mean the earlier of: (a) date the
Customer Facility is completed, commissioned and commercially operable, or
(b) June 30, 1999, provided however, that the Commencement Date shall be
extended due to delays in completion of the Customer Facility for reasons
beyond Customer's reasonable control, provided that Customer is diligently
proceeding to complete the Customer Facility.
1.8 COMPETING MILLING BUSINESS INTEREST means a direct or indirect
ownership interest of 50% or more of the equity or voting interests, or
control over the management, of a flour milling business which competes with
Supplier within North America.
1.9 COMPETING PASTA BUSINESS INTEREST means a direct or indirect
ownership interest of 50% or more of the equity or voting interests, or
control over the management, of a pasta production business which competes
with Customer within North America.
1.10 CONFIDENTIAL INFORMATION shall have the meaning given it in
Paragraph 14.1.
1.11 CONTRACT YEAR means October 1 of each year through September
30 of the following year with the first contract year commencing October 1,
1999.
[ * ]
[ * ]
1.14 CUSTOMER means American Italian Pasta Company, a Delaware
corporation with its principal place of business at 0000 Xxxxxxx Xxx,
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
1.15 CUSTOMER FACILITY means the approximately 150-200 million
pound pasta production plant to be constructed by Customer on the Customer
Property.
1.16 CUSTOMER LOSSES shall have the meaning given in Paragraph
11.1.
1.17 CUSTOMER PROPERTY means the property or interest therein
purchased or otherwise acquired by Customer pursuant to the Acquisition
Agreements which property shall be described on Schedule 1.17 to be attached
hereto when legal descriptions for such property has been determined.
1.18 FORMULA PRICE means the price for purchases and sales of
semolina and other Products as set forth on Schedule 3.5.
1.19 INITIAL TERM shall mean the term of this Agreement which
shall commence on the Commencement Date and continue for the period from the
Commencement Date through September 30, 2009.
1.20 KENOSHA MILL means the durum and flour mill owned by Supplier
and located upon the property legally described as follows:
PARCEL 3 OF CERTIFIED SURVEY MAP 1767, BEING A PART OF
THE NORTHEAST QUARTER, THE NORTHWEST QUARTER, THE
SOUTHWEST QUARTER AND THE SOUTHEAST QUARTER OF THE
NORTHEAST QUARTER AND THE NORTHWEST QUARTER, THE
NORTHEAST QUARTER, THE SOUTHWEST QUARTER AND THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 4,
TOWN 1 NORTH, RANGE 22 EAST, AS RECORDED IN THE OFFICE OF
THE REGISTER OF DEEDS FOR KENOSHA COUNTY, WISCONSIN ON
AUGUST 2, 1994 IN VOLUME 1697 OF RECORDS, PAGES 522-537,
AS DOCUMENT NO. 969593, LYING AND BEING IN THE CITY OF
KENOSHA, COUNTY OF KENOSHA AND STATE OF WISCONSIN.
1.21 NON-CONFORMING PRODUCT shall have the meaning given it in
Paragraph 9.1.
1.22 PROJECTED MONTHLY MAXIMUM PURCHASE means 120% of one-twelfth
(1/12) of the Annual Minimum Product Purchase Requirement.
1.23 PROJECTED MONTHLY MINIMUM PURCHASE means 80% of one-twelfth
(1/12) of the Annual Minimum Product Purchase Requirement.
1.24 QUANTITY DEFICIENCY shall have the meaning given it in
Paragraph 4.1.
1.25 SPECIFICATIONS shall mean the specifications for Product set
forth in Schedule 2.2 of this Agreement.
1.26 SUPPLIER means Harvest States Milling Division, a division of
Harvest States Cooperatives, a Minnesota cooperative corporation having its
principal place of business at 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 and which does business as Xxxxx
Xxxxxxx Company.
1.27 SUPPLIER GUARANTEED MAXIMUM ANNUAL VOLUME shall mean [ * ]
cwts of Product annually above the Annual Minimum Product Purchase
Requirement, up to a maximum of [ * ] cwts per Contract Year, subject to
Paragraph 3.2.
1.28 SUPPLIER LOSSES shall have the meaning given it in Paragraph
11.2.
1.29 TRANSFER SYSTEM means the blower equipment located in the
Kenosha Mill and the product transfer line from such equipment up to the
outside wall of the Customer Facility and which is used to transfer Product
from the Kenosha Mill to the Customer Facility.
ARTICLE 2. PRODUCTS; SPECIFICATIONS.
2.1 The products to be sold by Supplier to Customer under this
Agreement shall be as follows:
a) Semolina
b) Durum Granulars
c) Fancy Patent Flours
d) Durum/Hard wheat Flours (such as 50/50 blends)
e) Other products pursuant to specifications mutually agreed upon
between Supplier and Customer.
2.2 The specifications for the Products described in a) through d)
above are attached hereto as Schedule 2.2.
ARTICLE 3. MINIMUM QUANTITY REQUIREMENT, PURCHASE PRICE.
3.1 Supplier shall be obligated to sell to Customer and Customer
shall be obligated to purchase from Supplier, pursuant to the terms and
conditions of this Agreement, for each Contract Year, the Annual Minimum
Product Purchase Requirement of Product for the Customer Facility. All
Product shall be originated at the Kenosha Mill and transported to the
Customer Facility via the Transfer System or shipped to other Customer
Facilities at Customer's expense including a reasonable loading and rail
equipment charge payable to Supplier.
It is anticipated by the parties that the Annual Minimum Product
Purchase Requirement for the first Contract Year will be approximately [ * ]
cwts; for the second Contract Year will be approximately [ * ] cwts; and for
the third Contract Year will be approximately [ * ] cwts. The actual Annual
Minimum Product Purchase Requirement for each Contract Year shall be
established by mutual agreement of the parties on or before July 1
immediately preceding such Contract Year. At the time of establishing the
Annual Minimum Product Purchase Requirements for the third Contract Year,
Customer shall provide Supplier with good faith estimates of the Annual
Minimum Product Purchase Requirements for the balance of the Initial Term.
The actual Annual Minimum Product Purchase Requirements for the period from
March 31, 1999 through September 30, 1999 will be established by mutual
agreement on or before July 1, 1998.
Subject to Paragraph 3.2, Customer agrees, in any case, to purchase
at least [ * ]% of its Semolina requirements for the Customer Facility from
Supplier's Kenosha Mill.
Supplier guarantees to supply to Customer up to the Supplier
Guaranteed Maximum Annual Volume for each Contact Year. Supplier will use
commercially reasonable efforts to supply Customer with Product in excess of
the Supplier Guaranteed Maximum Annual Volume if required by Customer.
3.2 Supplier and Customer acknowledge that Customer desires to
increase demand for its products and the capacity of the Customer Facility to
an amount in excess of [ * ] pounds of pasta product per Contract Year, and
that Supplier intends to supply Product for such increased capacity.
Customer acknowledges that Supplier may need substantial lead-time and
capital investment to satisfy an increase in demand for Product because of
such expansion.
Customer will provide Supplier at least eighteen (18) months
advance written notice of changes in volume requirements for Product
exceeding [ * ] cwts. annually. Supplier shall use commercially reasonable
efforts to satisfy such increased volume from the Kenosha Mill provided the
parties are able to agree upon the price for such increased Product volume.
If Supplier is unable to successfully produce the volume of Product (or
Products) requested by Customer, Supplier shall promptly notify Customer in
writing. Customer shall then have the right to develop an alternative source
for such excess volume provided, as a condition to such right Customer will
use commercially reasonable efforts to secure such requirements under a term
that closely matches Supplier s estimate of when, if at all, Supplier will be
able to produce these requirements. In any event, Customer agrees to purchase
such requirements from Supplier as soon as commercially reasonable (and
consistent with Customer's contractual obligations) after the date Supplier
notifies Customer that Supplier has added such capacity.
If Supplier is unable to satisfy Customer's additional volume
requirements for semolina, such additional requirements shall be excluded
from consideration in determining whether Customer has met its requirement to
purchase [ * ] percent ([ * ]%) of its semolina needs from the Kenosha Mill.
3.3 It is anticipated that out of the total Annual Minimum Product
Purchase Requirement purchased by Customer from Supplier approximately [ * ]
percent ([ * ]%) will be semolina. At the time of establishing the Annual
Minimum Product Purchase Requirements pursuant to Paragraph 3.1,the parties
shall mutually agree upon the percentage of each type of non-semolina
Product. In any case, the Annual Minimum Product Purchase Requirement for
semolina shall be no less than [ * ] cwts.
3.4 Customer will use commercially reasonable efforts to purchase
one-twelfth (1/12) of the Annual Minimum Product Purchase Requirement each
month during the Initial Term of this Agreement. Customer will purchase not
less than the Projected Monthly Minimum Purchase nor more than the Projected
Monthly Maximum Purchase each month during the Initial Term and any renewal
term; PROVIDED THAT, in the event it becomes necessary for Customer to
purchase less than its Projected Minimum Monthly Purchase or more than its
Projected Maximum Monthly Purchase in any given month due to the unique
seasonal purchase requirements of Customer's customers, Supplier agrees to
use commercially reasonable efforts to accommodate Customer's actual purchase
requirements during any such months. Options which the parties agree to
consider during such negotiations will include, without limitation, the
partial supply of Customer's purchase requirements from other Supplier's
facilities, and the temporary purchase of Product by Customer from third
party suppliers, without penalty, to cover Customer's short-term customer
demand (provided that such purchases from third parties shall not apply
towards or reduce the Annual Minimum Product Purchase Requirement).
3.5 The Purchase Price per cwt of Product purchased by Customer
from Supplier under this Agreement shall be the Formula Price determined in
accordance with Schedule 3.5; [ * ]
[ * ]
3.6 Supplier guarantees that Customer will receive Product yields
equal to or greater than the overall average performance of the Kenosha Mill
for identical products and product specifications as the Products. Supplier
will provide to Customer, at Customer s request, applicable monthly records
to substantiate this guarantee.
3.7 Customer and Supplier will discuss grain specifications by
November 1 of each year for sourcing targets and will adjust the same as
needed from time to time based upon grain availability. Supplier will
provide to Customer, at Customer's request, official grade certificates on
types of grain which would be used for the manufacture of Customer s
Products. Supplier and Customer will maintain open discussions on market
price and grain quality opportunities, and will implement specific grain
coverage as directed by Customer, based upon the availability of offers in
the market. Sourcing areas will include but will not be limited to northern
and western United States and Canada.
3.8 To the extent Supplier has records available, Supplier will
provide Customer, at Customer's request, copies of all production records at
the Kenosha Mill which relate to Product transferred or shipped to Customer.
3.9 Supplier's obligation to sell and Customer's obligations to
purchase the Annual Minimum Product Purchase Requirement to Customer is
absolute and subject to no conditions or qualifications, except for Force
Majeure as provided in Article 23. If Supplier, for any reason whatsoever,
shall lack the capacity or otherwise be unable to deliver the Supplier
Guaranteed Maximum Annual Volume Product Purchase Requirement to Customer,
Supplier shall be obligated, subject to said Force Majeure provision, to
purchase on the open market in the United States for delivery to Customer the
Products necessary to satisfy Supplier's obligation to sell to Customer the
Supplier Guaranteed Maximum Annual Volume in the quantities requested by
Customer subject to Paragraph 3.4 and at the price and otherwise on the terms
and conditions provided in this Agreement. If Supplier purchases Product on
the open market, Supplier shall be required to notify Customer in advance and
the Product purchased must satisfy all specifications set forth in Paragraph
2.2, all quality control requirements set forth in Article 8 and Kosher
requirements. If Supplier fails to purchase the Product on the open market
as provided herein, Customer shall have the option to purchase Product from
other suppliers and Supplier shall reimburse Customer for any incremental
costs (compared to what Supplier would have been charged under the terms of
this Agreement) incurred by Customer if purchasing Product from other
sources, including without limitation added freight costs. Customer agrees
to use commercially reasonable efforts to mitigate such costs to be
reimbursed by Supplier.
ARTICLE 4. QUANTITY DEFICIENCIES.
4.1 If, during any Contract Year, Customer shall, for any reason
whatsoever (other than a "Supplier Deficiency", as defined below), fail to
purchase from Supplier the Annual Minimum Product Purchase Requirement for
such Contract Year, as provided in Article 3, the difference between the
Annual Minimum Product Purchase Requirement and the amount of Products
actually purchased during such Contract Year shall be deemed the " Quantity
Deficiency".
4.2 In the event of a Quantity Deficiency for any Contract Year
("Deficiency Contract Year") and absent a Supplier Deficiency during the
Deficiency Contract Year, anything herein above to the contrary
notwithstanding, Customer shall be obligated to pay Supplier on account of
such deficiency an amount equal to [ * ] Said amount shall be paid within 45
days following the end of the Contract Year.
4.3 For purposes of this Article 4, a "Supplier Deficiency" means
the inability of Supplier, for any reason whatsoever (including Force Majeure
and regardless of whether the cause thereof constitutes a breach by Supplier
of its obligations under this Agreement) to ship any Product timely ordered
by Customer on or before the transfer date stipulated in Customer's purchase
order, in accordance with the provisions of Paragraph 7.1.
ARTICLE 5. VOLUME FORECASTS.
During the Initial Term and any renewal term, Customer shall
provide Supplier with 30, 60, 90 and 180 day non-binding rolling forecasts of
its Product requirements for the applicable period.
ARTICLE 6. TERM.
6.1 The term of this Agreement shall commence on the Commencement
Date and shall continue for the Initial Term. At least eighteen (18) months
prior to the end of the Initial Term Supplier and Customer shall commence
negotiations for renewal terms upon the same general terms and conditions as
set forth in this Agreement; provided that terms shall be competitive with
the market terms at the time of renewal. Agreement on renewal terms, if any,
shall be reached by the parties at least twelve (12) months prior to the end
of the Initial Term.
ARTICLE 7. PURCHASE ORDERS; TERMS OF PAYMENT; WORKING CAPITAL.
7.1 Terms of Payment. Firm pricing commitments for Product shall
be made at least thirty (30) days in advance of the first delivery date
thereunder. Purchase orders for Products under firm pricing commitments
shall be in writing and received by Supplier at least five (5) days in
advance of the requested shipment date. All Products ordered by Customer
hereunder shall be invoiced by Supplier to Customer as of the date of
transfer through the Transfer System or shipment. Terms of payment shall be
cash due upon receipt of the Product.
7.2 Customer shall, at its option, either: (a) deposit with
Supplier an amount equal to the cost of [ * ] days supply of wheat needed for
production of Products for Customer based upon the forecasts of Products
needed by Customer over the next [ * ] day period ("Customer Product Need"),
or (b) pay Supplier monthly, in advance, an amount equal to [ * ] basis
points over the LIBOR interest rate in effect on the date of payment applied
to the cost of [ * ] days supply of wheat to meet Customer Product Need. The
cost of wheat shall be based upon the average cost of wheat F.O.B.
Minneapolis, Minnesota over the previous [ * ] days to be adjusted quarterly.
ARTICLE 8. QUALITY; QUALITY CONTROL; QUALITY RESPONSIBILITIES.
8.1 Quality. All Products shall be manufactured, processed and
packaged by Supplier under this Agreement in accordance with the
Specifications, which have been prepared by Customer; provided that wheat
purchased by Supplier at the direction of Customer shall meet raw material
specifications mutually agreed upon by Supplier and Customer. Products shall
(i) not be short in weight, adulterated, misbranded, mispackaged or
mislabeled within the meaning of any applicable federal, state or local food
and drug laws and regulations and shall not otherwise violate any applicable
federal, state or local law, regulation, rule or ordinance (unless such
violation is because of the specifications provided by or other actions of
the Customer), and (ii) be merchantable, of good quality and fit for the
purpose intended.
8.2 Quality Control. In connection with the manufacture and
refining of Products under this Agreement, Supplier shall comply with the
quality standards and procedures set forth in the Specifications. Supplier
shall conduct periodic ingredient and process tests as set forth in the
Specifications and shall reject any ingredients or process which do not
conform to the standards set forth in the Specifications. Supplier will
ensure proper sanitation, and will provide for annual AIB inspections,
maintaining a consistent minimum score of 800. If the score drops below 800,
Supplier will provide more frequent AIB inspections until the score is above
800. If the score drops below 800, Customer shall have the option to
temporarily purchase Product from other suppliers until such time as Supplier
is able to demonstrate to Customer that a minimum score of 800 has been
restored. Supplier agrees to reimburse Customer for any incremental costs
(compared to what Supplier would have charged under the terms of this
Agreement) incurred by Customer in purchasing Product from alternative
sources during such interim period of time, including without limitation,
added freight costs. Customer agrees to use commercially reasonable efforts
to mitigate such costs to be reimbursed by Supplier.
8.3 Regulatory Action. In the event of any regulatory action with
respect to Supplier's operations, Supplier will notify Customer immediately
[within no later than twenty-four (24) hours] of notice of such action, and
will provide Customer with a copy of any written notice and any related
documentation received by the Supplier from the regulatory authority.
8.4 HAACP. Supplier agrees to maintain an HAACP program and to
provide copies of the required HAACP documentation to Customer upon
reasonable request.
8.5 Quality Responsibilities. Supplier's responsibility to
Customer for the quality of Products sold by Supplier to Customer under this
Agreement shall be limited to its obligations set forth in this Agreement.
Anything herein to the contrary notwithstanding, Supplier shall have no
responsibility to Customer for the adequacy of the Specifications.
8.6 Inspections. Customer shall have the right to have
representatives of Customer enter the Kenosha Mill for the purpose of
observing, on behalf of Customer, all aspects of Supplier's manufacturing
techniques, quality control, sanitation procedures and testing procedures.
Supplier shall maintain and make available to such representatives all
records of chemical, physical and microbiological tests of raw materials and
ingredients used in the manufacture of Products. Such representatives shall
also be permitted to inspect Products after manufacture and prior to delivery
to Customer, provided that such inspections shall not delay or in any manner
interfere with Supplier's production or delivery schedules.
8.7 Traceability and Recall. Supplier agrees to maintain standard
traceability and recall procedures, and to promptly provide copies of related
documentation to Customer upon request.
8.8 Certificates of Analysis (COA). Supplier agrees to test
Product samples and complete standard COA forms for all Product produced for
Customer. Supplier shall retain all required COA documentation, and shall
make the documentation available for review by Customer upon reasonable
request.
ARTICLE 9. NON-CONFORMING PRODUCTS.
9.1 The term "Non-Conforming Product" shall mean any Product which
is not manufactured in accordance with the Specifications or Paragraph 8.1 of
this Agreement.
9.2 Rejection; Replacement. Customer shall have the right to
reject any Non-Conforming Products prior to their being delivered to Customer
or within seventy-two (72) hours after processing such Product, but in no
event after fifteen (15) days after delivery of such Product to Customer.
Rejection shall be made by written notice to Supplier, stating in reasonable
detail the reasons for such rejection. Non-Conforming Products so rejected
after delivery may be returned by Customer to Supplier at the Kenosha Mill
and within 10 days after written request by Customer, Supplier shall refund
the purchase price of rejected Non-Conforming Products. If Customer elects to
return the rejected Non-Conforming Products, Supplier shall reimburse
Customer for all reasonable shipping and handling costs incurred thereby.
9.3 Reworking. Supplier may use or rework for Customer's account
any Non-Conforming Products into replacement products provided that such
replacement products meet the Specifications, except for any Non-Conforming
Products which contain food safety defects (such as micro, chemical or
physical defects).
ARTICLE 10. MODIFICATIONS TO SPECIFICATIONS.
10.1 The Specifications for the Products described in Paragraph 1
and attached hereto as Schedule 2.2 have been prepared by Customer and may be
changed by Customer, in its discretion, at any time and from time to time, by
ten (10) business days prior written notice to Supplier, in which event, the
Specifications, so changed, shall thereafter be deemed to be the
"Specifications" for all purposes of this Agreement, provided that Customer
and Supplier shall first agree upon the Formula Price applicable to such
changed Specifications, and provided that the Kenosha Mill is capable of
producing Product according to such new specifications.
10.2 Unless and until Customer and Supplier agree upon the Formula
Price applicable to changed Specifications for Products subject to this
Agreement, the change in Specifications shall not become effective.
ARTICLE 11. INDEMNIFICATION.
11.1 Indemnification by Supplier. Except as otherwise limited
below, Customer and its officers, directors, employees, successors and
assigns shall be indemnified and held harmless by Supplier from any and all
liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including, without limitation, reasonable attorney's
fees and expenses) actually suffered or incurred by it or them (hereinafter
a "Customer Loss"), actually arising out of or resulting from:
a) the breach of any representation, warranty, covenant or
agreement by Supplier contained herein, including without limitation the
occurrence of a Supplier Deficiency;
b) the consumption or use by any person of any Products sold by
Customer which include Products purchased by Customer from Supplier if such
Products fail to meet the Specifications or otherwise fail to meet the
quality standards set forth in Article 8.
Notwithstanding the foregoing, Supplier shall have no obligation to
indemnify or hold harmless Customer to the extent such Customer Losses shall
result from (i) the negligence of Customer, (ii) compliance with the
Specifications, or (iii) the acts or omissions of employees or agents of
Customer.
11.2 Indemnification by Customer. Except as otherwise limited
below, Supplier and its officers, directors, employees, successors and
assigns shall be indemnified and held harmless by Customer from any and all
liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgment and penalties (including, without limitation, reasonable attorney's
fees and expenses) actually suffered or incurred by it or them (hereinafter a
"Supplier Loss") actually arising out of or resulting from:
a) the breach of any representation, warranty, covenant or
agreement by Customer contained herein;
b) the consumption or use by any person of any Products which meet
the Specifications, provided that such Supplier Loss shall not have been
caused by; a failure to meet the quality standards set forth in Article 8
c) the negligence of Customer; or
d) defects in the Specifications.
11.3 Indemnification Procedures.
11.3.1 For the purposes of this Paragraph 11.3, the term
"Indemnitee" shall refer to the person indemnified, or entitled, or claiming
to be entitled to be indemnified, pursuant to the provisions of Paragraphs
11.1 or 11.2 as the case may be, and the term "Indemnitor" shall refer to the
person having the obligation to indemnify pursuant to such provisions.
"Losses" shall refer to "Customer Losses" or "Supplier Losses", as the case
may be.
11.3.2 An Indemnitee shall give written notice (a "Notice of
Claim") to the Indemnitor within ten (10) business days after the Indemnitee
has knowledge of any claims (including a Third Party Claim, as hereinafter
defined) which could give rise to a right of indemnification under this
Agreement. No failure to give such Notice of Claim shall affect the
indemnification obligations of the Indemnitor hereunder, except to the extent
Indemnitor can demonstrate such failure materially prejudiced such
Indemnitor's ability to successfully defend the matter giving rise to the
claim. The Notice of Claim shall state the nature of the claim, the amount of
the Loss, if known, and the method of computation thereof, all with
reasonable particularity and containing a reference to the provisions of this
Agreement in respect of which such right of indemnification is claimed or
arises.
11.3.3 The obligations and liabilities of an Indemnitor under this
Paragraph 11.3 with respect to Losses arising from claims of any third party
that are subject to the indemnification provisions provided for in this
Paragraph 11.3 ("Third Party Claims") shall be governed by and be contingent
upon the following additional terms and conditions:
The Indemnitee at the time it gives a Notice of Claim to the
Indemnitor of the Third Party Claim shall advise the Indemnitor that it shall
be permitted, at its option, to assume and control the defense of such Third
Party Claim at its expense and through counsel of its choice if it gives
prompt notice of its intention to do so to the Indemnitee and confirms that
the Third Party Claim is one with respect to which the Indemnitor is
obligated to indemnify. In the event that Indemnitor exercises its right to
undertake the defense against any such Third Party Claim as provided above,
the Indemnitee shall cooperate with the Indemnitor in such defense and make
available to the Indemnitor all witnesses, pertinent records, materials and
information in its possession or under its control relating thereto as is
reasonably required by the Indemnitor and the Indemnitee may participate
through its own counsel and, subject to the proviso below, at its own expense
in the defense of such Third Party Claim; provided, however, that in the
event both the Indemnitee and the Indemnitor are named as parties and the
Indemnitee shall in good faith determine that representation by the same
counsel is inappropriate, the fees and expenses of the Indemnitee's separate
counsel shall be at the expense of the Indemnitor. Similarly, in the event
the Indemnitee is, directly or indirectly, conducting the defense against any
such Third Party Claim, the Indemnitor shall cooperate with the Indemnitee in
such defense and make available to it all such witnesses, records, materials
and information in its possession or under its control relating thereto as
shall be reasonably required by the Indemnitee and the Indemnitor may
participate by its own counsel and at its own expense in the defense of such
Third Party Action. Except for the settlement of a Third Party Claim which
involves the payment of money only, no Third Party Claim may be settled by
the Indemnitor without the written consent of the Indemnitee, which consent
shall not be unreasonably withheld or delayed. No Third Party Claim may be
settled by the Indemnitee without the written consent of the Indemnitor,
which consent shall not be unreasonably withheld or delayed.
Payment of Losses by the Indemnitor to the Indemnitee shall be made
within five (5) business days after the Losses become known and final which
shall mean, in the case of litigated or arbitrated claims which have been
reduced to judgment, when all appeals have been exhausted or the time for
appeal has expired, or if the Loss is uncontested, within five (5) business
days after notice of the Loss is given to the Indemnitor.
ARTICLE 12. INSURANCE.
During the term of this Agreement, Supplier shall maintain
comprehensive general liability insurance of at least $10,000,000, with a
deductible not to exceed $500,000, endorsed to cover the indemnifications
contained in this Agreement. Customer shall maintain comprehensive general
liability insurance of at least $10,000,000 with a deductible not to exceed
$500,000 endorsed to cover the indemnifications contained in this Agreement.
Supplier and Customer shall also carry contingent BI coverage. Upon the
execution of this Agreement, Supplier and Customer shall furnish each other
with certificates of insurance evidencing such coverages. Such certificates
shall contain clauses for notification of both Supplier and Customer
thirty days in advance of any cancellation, reduction or change in coverage.
ARTICLE 13. TRADEMARKS AND TRADE NAMES.
Neither party shall have any right, title or interest in and to the
trademarks or trade names of the other party. Neither party shall use any of
such trademarks or trade names except as authorized in advance and in writing
by the other party
ARTICLE 14. CONFIDENTIAL INFORMATION.
14.1 The term "Confidential Information" as used herein shall mean
(i) all proprietary information and material relating to the Specifications,
(ii) all information contained in the Volume Forecasts, and (iii) all other
sales volume information, Product distribution information, and other
information of a scientific, technical, engineering, operational or financial
nature disclosed by the disclosing party to the receiving party and
designated in writing by either party as "Confidential Information" or if
orally communicated, confirmed in writing within thirty (30) days by the
disclosing party The receiving party shall hold the Confidential Information
in confidence and shall use the same only for the purpose of manufacturing
Products under this Agreement, provided that the receiving party may disclose
the Confidential Information to such of its employees who shall have a need
to know same in order to carry out, on behalf of the receiving party, the
disclosing party's obligations under this Agreement; and provided further
that the receiving party informs each such employee of the proprietary and
confidential nature of the Confidential Information disclosed and of the
obligation imposed under this Agreement. Upon the expiration or termination
of this Agreement, the receiving party shall promptly return to the
disclosing party all such Confidential Information which shall be in written
form, together with all copies thereof, and retain none for its files.
14.2 The restriction in this Article 14, relating to Confidential
Information, shall not apply to such Confidential Information that (i) is or
becomes available to the public or part of the public domain other than as a
result of wrongful disclosure by the receiving party, its employees, agents
or representatives, (ii) was known by the receiving party (without a
non-disclosure obligation on the part of the receiving party) before
disclosure by the disclosing party, its employees, agents or representatives,
(iii) becomes known to the receiving party from any source (except from
parties obligated not to disclose same) other than the disclosing party, its
employees, agents or representatives, (iv) is approved for release by written
authorization of the disclosing party, or (v) shall be required by law to be
disclosed. In the case of clause (v), the receiving party shall promptly
notify the disclosing party before such Confidential Information is disclosed
so that Customer may seek a protective order or other appropriate remedy or
waive compliance with this Paragraph. In the event that such protective order
or other remedy is not obtained, the receiving party shall disclose only that
portion of the Confidential Information that it is legally required to
disclose, as confirmed by a legal opinion of a nationally recognized law
firm, and will exercise all reasonable efforts to assist the disclosing party
to obtain reliable assurance that confidential treatment will be accorded the
Confidential Information, provided, however, that any such assistance
rendered by receiving party, its agents and representatives, shall be at the
sole cost and expense of the disclosing party.
ARTICLE 15. NON-COMPETE.
15.1 Supplier shall not during the Term of this Agreement or any
renewal term agreed upon by the parties: (a) solicit any third party to
build, nor will Supplier or any of its Affiliates build on property now or
hereafter owned or leased by Supplier or its Affiliates, a pasta production
facility within a radius of five (5) miles of the Kenosha Mill, or (b) build
or acquire a competing Pasta Business Interest.
15.2 Customer shall not, during the Term of this Agreement or any
renewal term agreed upon by the parties: (a) solicit any third party to
build, or will Customer or any of its Affiliates build on any property now or
hereafter owned or leased by Customer, a semolina or flour mill within a
radius of five (5) miles of the Kenosha Mill, or (b) build or acquire a
Competing Milling Interest; provided that, if Customer acquires an existing
integrated pasta, milling operation, such an acquisition is specifically
excluded from the foregoing non-compete restrictions if 85% of the mill
product is used to supply the attached pasta facility.
15.3 Customer and Supplier believe that the restrictive covenant
contained in this Article is reasonable. However, if any court having
jurisdiction shall at any time hereafter hold the restrictive covenants to
be unenforceable or unreasonable, whether as to scope, territory or period of
time specified herein, and if such court shall declare or determine the
scope, territory or period of time which it deems to be reasonable, such
scope, territory or period of time shall be deemed to be reduced to that
declared or determined by said court to be reasonable.
15.4 Customer and Supplier recognize that in the event of
violation of the terms of the above covenants, Customer or Supplier will
suffer irreparable damages and that it will be difficult if not impossible to
compute actual damages sustained by the Customer or Supplier as the result of
such unauthorized competition. Therefore, the parties agree that either
party shall be entitled to apply to a court of competent jurisdiction for
equitable relief and to enjoin any breach, threatened or actual, of the
covenants contained herein.
ARTICLE 16. STORAGE.
Customer agrees that the Customer Facility shall be constructed to
provide a minimum of five (5) days storage of Product and shall be increased
with increases in capacity of the Customer Facility, based upon the then
current rate of production. Supplier agrees to provide Customer with storage
for wheat at the Kenosha Mill on a non-identity preserved basis equal to the
lesser of: (a) amount of storage necessary for seventeen (17) days production
for the Customer Facility, or (b) 250,000 bushels.
ARTICLE 17. TRANSFER SYSTEM; RAIL.
The cost of purchase and construction of the Transfer System up to
the outside wall of the Customer Facility shall be shared equally by the
parties. Each party shall be responsible for maintenance of the Transfer
System within the boundaries of its property line. The scale for weighing
Product shall be located in the Customer Facility.
Customer shall be entitled to connect a rail line to the rail line
entering Supplier's warehouse and to use Supplier s rail line so long as such
use does not unreasonably interfere with Supplier s operations. Ordinary and
usual maintenance of Supplier's rail line shall be shared on an equitable
basis by Customer and Supplier based upon the use each party makes of such
line. Extraordinary repairs or maintenance shall be borne by the party
causing the same to be incurred. Supplier and Customer shall, as soon as
practical after completion of Customer's plans for the Customer Facility,
enter into an agreement with respect to use of Supplier's rail line upon
terms mutually agreeable to Supplier and Customer.
ARTICLE 18. TERMINATION.
18.1 Either party shall have the right to terminate this Agreement
"for cause" in the event of any of the following events:
(a) A material breach of the terms and conditions of the Agreement
by the other party which breach is not cured within sixty (60)
days after written notice is sent to the breaching party.
(b) The bankruptcy or insolvency of the other party which
proceeding is not terminated within sixty (60) days after
written notice is sent to the other party.
(c) A material misrepresentation of financial or other information
by the other party which has a material adverse affect on the
terminating party.
(d) An occurrence involving the criminal activity of any of the
officers or directors of the other party, the occurrence of
which materially xxxxx the terminating party's business or
reputation.
(e) Persistent disregard of applicable laws, rules or regulations
by the other party which materially xxxxx the business or
reputation of the terminating party.
(f) An event of Force Majeure specified in Article 23 occurs will
respect to the other party and continues uninterrupted for a
continuous period of twelve (12) months.
(g) A sale, or change of control, involving one party to the
Agreement, which has a materially adverse effect on the other
party. Customer acknowledges that a merger or consolidation
between Harvest States Cooperatives and Cenex, Inc. will not
materially adversely effect Customer.
18.2 In the event that the Customer does not, for any reason,
purchase the Customer Property and close on the other transactions provided
for in the Acquisition Agreements, and the Acquisition Agreements are
terminated, this Agreement shall automatically terminate and neither party
shall have any further obligation hereunder, except to the extent that the
express provisions hereof provide that the terms of this Agreement shall
survive termination of this Agreement.
18.3 This Agreement may be terminated be either party upon written
notice to the other party if Customer has not obtained final board approval
for this Agreement on or before July 1, 1998.
ARTICLE 19. GENERAL COOPERATION.
Supplier and Customer agree to meet at least annually to discuss
and implement procedures or agreements to the extent commercially and
financially reasonable for both parties, with respect to the following:
19.1 Opportunities for business referrals from Supplier to Customer
for the purchase of Customer Products.
19.2 Short term and long term goals of Customer and Supplier with
respect to the Kenosha Mill and Customer Facility and how the goals impact
both parties business.
19.3 Coordinating durum grain procurement processes,
transportation and shipment of raw materials and finished products, cost
improvement and optimization of resources for both parties.
19.4 Sharing resources including without limitation, Suppliers
grain market analysis.
During construction of the Customer Facility, the parties shall
meet at least quarterly to discuss the status and progress for completion of
the Facility, estimated completion dates and Customer s Product Needs prior
to the beginning of the first Contract Year.
Customer and Supplier also agree to coordinate and cooperate with
respect to maintenance and fumigation of the Kenosha Mill and Customer
Facility so as to protect the health and safety of persons at both facilities
and minimize interference with each other's operations.
In addition to the restrictions contained in Article 15, Supplier
agrees, during the term of this Agreement, that Supplier will not enter into
an agreement with, solicit, initiate or encourage any other pasta company or
other third party ("Customer Competitor") to construct a pasta production
facility adjacent to or in the vicinity of another Supplier facility for the
purpose of entering into a long-term supply agreement similar to the type and
nature provided for in this Agreement ("Similar Relationship") until Supplier
has first given Customer the opportunity to enter into the Similar
Relationship with Supplier. Customer shall have a period of thirty (30) days
from the date Supplier first offers in writing to Customer to enter into the
Similar Relationship, to sign a letter of intent with Supplier to enter into
such relationship. 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, Supplier
shall have the right to enter into a Similar Relationship with the Customer
Competitor.
ARTICLE 20. MATERIAL ADVERSE EFFECT.
If, at any time during the term of this Agreement, either Customer
or Supplier shall claim, in written notice to the other, that economic,
business or other conditions have changed since the Commencement Date, with
the result that the continuation of this Agreement would have a material
adverse effect upon its financial condition, business operations, business
prospects or business opportunities ("Material Adverse Effect"), then the
parties shall be obligated to negotiate in an attempt to agree upon an
amendment to this Agreement which will eliminate or substantially reduce such
claimed Material Adverse Effect to the extent commercially reasonable. If,
within ninety (90) days after the date of such notice, the issue shall not
have been resolved to the satisfaction of both parties, then the party
claiming a Material Adverse Effect may apply to CPR for arbitration of the
dispute in accordance with the CPR Rules and otherwise in accordance with the
arbitration rules and procedures provided for in the case of other disputes
under this Agreement. The arbitration proceedings shall commence upon
referral of the dispute to arbitration by either party after the expiration
of the ninety (90) day period referred to above. In any such case, the sole
issue to be determined by the arbitrator shall be whether or not a Material
Adverse Effect exists and to determine with reasonable specificity the nature
and extent thereof. The arbitrator shall not have the authority to require
any amendment to this Agreement. If, the arbitrator shall determine that a
Material Adverse Effect exists, then the parties shall again negotiate in an
attempt to agree upon an amendment to this Agreement which will eliminate or
substantially reduce the Material Adverse Effect to the extent commercially
reasonable, as the same shall have been determined by the arbitrator. Neither
party shall be under any obligation to agree upon such amendment but only to
negotiate in good faith towards a commercially reasonable solution. If the
parties cannot agree on an amendment to the terms of this Agreement, the
party experiencing the Material Adverse Effect may, at its option, terminate
this Agreement.
ARTICLE 21. NON-SOLICITATION OF EMPLOYEES.
During the Initial Term of this Agreement, and any renewal terms
agreed upon by the parties, neither party shall directly or indirectly
solicit for hire the employees of the other party.
ARTICLE 22. RELATIONSHIP OF PARTIES.
The parties hereto are independent contractors and engage in the
operation of their own respective businesses and neither Supplier nor
Customer shall be considered the agent of the other for any purpose
whatsoever, and neither Supplier nor Customer has any authority to enter into
any contracts or assume any obligations for the other or to make any
warranties or representations on behalf of the other. Nothing in this
Agreement shall be considered to establish a relationship of co-partners or
joint venturers between Supplier and Customer.
ARTICLE 23. FORCE MAJEURE.
23.1 If the performance of this Agreement (including without
limitation any deliveries hereunder) is interfered with by any circumstance
or event of force Majeure, the party affected will be excused from such
performance on a day-to-day basis to the extent of such interference (and the
other party will likewise be excused from performance on a day-to-day basis
to the extent such party's obligations relate to the performance so
interfered with), and such event shall not give rise to any claim for damages
or other relief; PROVIDED, that the affected party gives (i) prompt notice to
the other party, no later than five (5) business days after the commencement
of the Force Majeure, stating the specific circumstances constituting the
Force Majeure and describing the obligation or performance which is thereby
delayed or prevented and (ii) prompt notice to the other party, within five
(5) business days after cessation of the Force Majeure, of such cessation and
of the specific facts and circumstances supporting the Party's claim
concerning the occurrence and duration of the Force Majeure event.
23.2 "Force Majeure" means an act, event or occurrence that
materially and adversely affects a party's ability to perform hereunder, and
is demonstrably beyond the control of the affected party, such as (i) acts of
war, whether declared or not; (ii) insurrection, rebellion, sabotage, acts of
terrorists, public or local disorders, riots, or violent demonstrations;
(iii) explosions, fires, floods, earthquakes, crop failures, or other such
natural calamities which it is not reasonably possible for the affected party
to overcome; (iv) embargoes, judicial action, lack of or inability to obtain
export/import permits or approvals or other governmental action or inaction
not occasioned by the fault or negligence of the Party affected thereby; (v)
abnormal or unusually severe weather conditions which it is not reasonably
possible for the affected party to overcome; or (vi) strikes, boycotts or
lockouts or such other labor disputes (but excluding those that are initiated
within or limited to the labor force of the affected party).
23.3 A claim of Force Majeure not adequately supported within
thirty (30) days of the date of such claim by specific facts and evidence
shall be void and treated, for purposes of this Agreement, as if never made.
23.4 A party subject to Force Majeure shall exercise all possible
diligence in order to, as soon as possible, remove the effects of, or to
mitigate said effects if their removal is not immediately possible, such
Force Majeure, including the expenditure of a reasonable amount of money. A
party shall be excused from performing hereunder only to the extent affected
by the Force Majeure and shall be required to perform to the extent not so
affected.
23.5 Unless this Agreement has been terminated as provided herein,
each party shall reassume, with full rights, the duty of complying with its
obligations hereunder as soon as the Force Majeure ceases, without the right
to claim any compensation from the other party for the period of suspension.
ARTICLE 24. GOVERNING LAW.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Minnesota without regard to its
provisions concerning conflicts or choice of law.
ARTICLE 25. GENERAL DISPUTE RESOLUTION PROVISIONS.
25.1 The parties hereto desire to avoid all forms of traditional
litigation, subject to the provision for preliminary injunctive relief
described in Paragraph 25.5 below. Any dispute, controversy or claim of any
nature whatsoever between the parties hereto arising out of or relating to
this Agreement or the breach, termination or invalidity of this Agreement or
any related agreements, whether in contract, tort or equity, or under any
statute or regulation arising out of or relating to such agreements (a
"Dispute"), shall be resolved in accordance with this Article 25. All other
remedies to which the parties (including their respective Affiliates) may
otherwise have been entitled, whether at law or in equity, are hereby waived
to the fullest extent allowed by law. The obligations under this Article 25
shall survive termination of this Agreement.
The preceding provision notwithstanding, if a Dispute arises out of
a third-party claim against any party hereto, these procedures shall not be
mandatory, and such party shall have the right to engage in such litigation
with the third-party claimant and with each other concerning such Dispute.
For purposes of this exception pertaining to Disputes arising out of
third-party litigation, a third-party means a party (i) which is not an
Affiliate of a party hereto, (ii) has no record or beneficial, financial,
ownership or other significant interest in or with a party hereto and (iii)
in which a party hereto has no record or beneficial, financial, ownership or
other significant interest.
25.2 Informal Dispute Resolution. The parties shall attempt in
good faith to promptly resolve any Dispute promptly by confidential
negotiations between representatives of the parties with authority to settle
the matter. All such negotiations shall be treated as compromise and
settlement negotiations for purposes of the relevant rules of evidence. Any
party making claim shall give the other party written notice that the party
is invoking the dispute resolution procedures of this Article 25 with respect
to a specific Dispute. Within ten (10) days after delivery of the written
notice, the receiving party shall submit to the other a written response. The
notice and the response shall include (a) a statement of each party's
position and a summary of arguments supporting that position, and (b) the
name of the person (s) who will represent that party and the name of any
other person (and an indication, if applicable, that such other person is an
attorney) who will accompany the representatives (s) to the meeting. Within
thirty (30) days after delivery of the written notice, the representatives of
both parties shall meet at a mutually acceptable time and place (or failing
such agreement at Supplier's headquarters), or confer by telephone and
thereafter as often as they reasonably deem necessary, to attempt to resolve
the Dispute.
25.3 Mediation. If the Dispute has not been resolved by
negotiation within forty-five (45) days of the initial written notice (or
such longer time as the parties may agree), either party may notify the other
that it intends to submit such Dispute to non-binding mediation under the
then current model procedure for mediation of business disputes promulgated
by CPR. In such event the parties shall mediate the Dispute. The parties
shall promptly attempt to agree upon a reputable and experienced mediator.
Failing agreement within five (5) days after the notice of intent to mediate
has been given by a party hereto (or such longer time as the parties may
agree), the mediator will be selected in accordance with the previously
mentioned CPR procedure. Any such mediation process shall be concluded in
Milwaukee, Wisconsin and must be completed within seventy-five (75) days of
delivery of the initial written notice unless otherwise agreed by the
parties.
25.4 Formal Dispute Resolution.
25.4.1 Any Dispute which remains unresolved seventy-five (75) days
after delivery of the initial written notice shall be promptly resolved by
final and binding arbitration. Such arbitration shall be conducted pursuant
to the CPR Rules except to the extent herein otherwise provided. The place of
arbitration shall be Milwaukee, Wisconsin unless both parties agree to a
different locale. There shall be a single neutral and impartial arbitrator
appointed by CPR experienced in the subject matter of the Dispute and who has
not had a material personal or financial relationship with either participant
to the Dispute or any Affiliate of either participant, to be selected in
accordance with the CPR Rules. The arbitrator shall follow the laws of the
State of Minnesota (without regard to conflict of law provisions) in
resolving any Dispute, provided that any question concerning arbitrability
shall be governed exclusively by the United States Arbitration Act as then in
force. Each party hereby waives any right to and the arbitrator shall not
have the power to award punitive, exemplary, double or treble damages.
The award of the arbitrator shall be final and binding, and
judgment on it may be entered in any court having jurisdiction. The parties
agree that any decision or award resulting from proceedings in accordance
with this dispute resolution provision shall have not preclusive or other
effect in any other matter between the parties or involving a third-party.
25.4.2 The arbitrator may consolidate an arbitration under this
Agreement with any other arbitration between the parties to this Agreement if
the subject of the Dispute arises out of or relates essentially to the same
facts or transaction(s). No other person may be included in the arbitration
of a Dispute, whether by consolidation, joinder or in any other manner,
except by written consent of both parties to the Dispute.
25.4.3 Each party shall bear its own costs and attorneys' fees,
and the parties shall equally bear the fees, costs and expenses of the
arbitrator and the arbitration proceedings; provided, however, that the
arbitrator may exercise discretion to award costs and/or attorneys' fees to
the prevailing party.
25.5 Injunctive Relief. The parties agree that notwithstanding
anything to the contrary contained herein, any party may seek a temporary
restraining order, a preliminary injunction or other form of appropriate
equitable relief from any court of competent jurisdiction in order to prevent
immediate and irreparable injury, loss or damage. The arbitrator once
appointed shall have the power to modify or vacate such temporary restraining
order or preliminary injunction or to issue a restraining order or
injunction.
25.6 Confidentiality. The dispute resolution proceedings
contemplated by this Article 25 shall be as confidential and private as
permitted by law. To that end, the parties shall not disclose the existence,
content or results of any proceedings conducted in accordance with this
Article 25, and materials submitted in connection with such proceedings shall
be treated as Confidential Information, provided, however, that this
confidentiality provision shall not prevent a petition to vacate or enforce
an arbitral award, and shall not bar disclosures required by law or prevent
use of such information in a proceeding involving a third party, provided,
that Customer and Supplier shall use reasonable efforts to obtain a
protective order to protect the confidentiality of such information. Any
decision or award resulting from proceedings in accordance with this Article
25 shall have no preclusive effect in any matter involving third parties.
25.7 Limitations Period. The statutes of limitation of the State
of Minnesota shall be applicable to the arbitration of any Dispute hereunder
just as if such arbitration were a lawsuit between the parties, except that
all applicable statutes of limitation and defenses based upon the passage of
time shall be tolled during the pendency of any informal dispute resolution
or mediation under Paragraphs 25.2 and 25.3 hereof. The parties shall take
such action, if any, as may be required to effectuate the tolling provided
for in this Paragraph 25.7.
25.8 Continued Performance. Each party is required to continue to
perform its obligations under the Agreement pending final resolution of any
dispute arising out of or relating to this Agreement.
ARTICLE 26. SEVERABILITY.
If any portion of this Agreement shall be in violation of any
applicable law, such paragraph or portion shall be inoperative, but the
remainder of this Agreement shall remain valid and shall continue to bind the
parties.
ARTICLE 27. ASSIGNMENTS.
This Agreement shall be binding and inure to the benefit of each of
the parties, their successors and assigns, provided that this Agreement may
not be transferred or assigned by either party without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
ARTICLE 28. NOTICES.
All notices permitted or required to be given by Customer and
Supplier hereunder shall be delivered via fax or mailed certified mail,
return receipt requested as follows:
To Supplier: Harvest States Cooperatives
Wheat Milling Division
0000 Xxxxx Xxxxxxxx Xxxxxx
X.X. Xxx 00000
Xx. Xxxx, Xxxxxxxxx 00000
Attn: President
Copy To: Harvest States Cooperatives
Attn: Legal Department
0000 Xxxxx Xxxxxxxx Xxxxxx
X.X. Xxx 00000
Xx. Xxxx, Xxxxxxxxx 00000
To Customer: American Italian Pasta Company
000 Xxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: President and Chief Executive Officer
Copy To: Sonnenschein, Nath & Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
ARTICLE 29. ENTIRE AGREEMENT.
This Agreement, together with the Schedules attached hereto, and
the Acquisition Agreements contain all of the terms, warranties,
representations, agreements, covenants, conditions, and provisions agreed
upon by the parties with respect to the matters described herein. This
agreement shall not be altered or changed unless the change shall be in
writing and signed by authorized officials of both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
HARVEST STATES COOPERATIVES
By:/s/ Xxxx X. Xxxxxxxx
Its: Group Vice President
AMERICAN ITALIAN PASTA COMPANY
By:/s/ Xxxxxxx X. Xxxxxxx
Its: President and Chief Executive
Officer
SCHEDULE 2.2
SPECIFICATIONS
[ * ]
Schedule 3.5
Product Costing Formulas
[ * ]
