Exhibit 3.49
OPERATING AGREEMENT
OF
NORTHWEST FOOD PRODUCTS TRANSPORTATION, LLC
This Operating Agreement is made and entered into as of the 8th day of
December, 2000, by and among, Land O'Lakes, Inc., a Minnesota cooperative
corporation ("LOL") and Northwest Food Products Transportation, LLC, a
Wisconsin limited liability company ("Company").
For the consideration of the mutual covenants hereinafter set forth, the Member
and the Company hereby agree as follows:
SECTION ONE
DEFINITIONS
Section 1.01 Definitions. The terms defined in this Section One (except as may
be otherwise expressly provided in this Agreement or unless the context
otherwise requires) shall, for all purposes of this Agreement, have the
following respective meanings:
"Act" means the Wisconsin limited liability company act contained in
Wisconsin Statutes, Chapter 183.
"Agreement" means this Operating Agreement as hereafter amended from time
to time, including any schedules to the Agreement.
"Board" or "Board of Managers" means the board of Managers of the Company.
"Capital Account" means the account of a Member that is maintained in
accordance with the provisions of Section 4.07 hereof.
"Code" means the Internal Revenue Code of 1986, as amended and any
successor thereto. Any reference herein to specific sections of the Code shall
be deemed to include a reference to any corresponding provisions of future law.
"Company" means Northwest Food Products Transportation, LLC, a Wisconsin
limited liability company.
"Distribution" means the distributions to the Members of cash or other
assets of the Company made from time to time pursuant to the provisions of this
Agreement.
"Financial Rights" means a Member's rights to share in Net Income and Net
Losses and Distributions with respect to a membership interest in accordance
with the terms of this Agreement.
"Governance Rights" means all of a Member's rights as a Member in the
Company other than Financial Rights and the right to assign Financial Rights.
"Manger" means a natural person elected to serve on the Board of Managers.
"Member" means a person reflected in the required records of the Company
as the owner of some Governance Rights of a Membership Interest of the Company,
reflected on Schedule A hereto.
"Membership Interest" means a Member's interest in the Company consisting
of the Member's Financial Rights and Governance Rights with respect to the
Company.
"Net Income" and "Net Losses" mean the profits and losses of the Company,
as the case may be, as determined for federal income tax purposes as of the
close of each of the fiscal years of the Company.
"Officer" means a person elected, appointed, or otherwise designated as an
officer by the Board of Managers, and any other person considered elected as an
officer pursuant to the Act.
"Person" means any individual, partnership, limited liability company,
corporation, cooperative association, trust or other entity.
SECTION TWO
GENERAL PURPOSE
Section 2.01 Intended Treatment. The Members intend that the Company shall be
operated in a manner consistent with its treatment as a "partnership" for
federal and state income tax purposes. No Member shall take any action
inconsistent with the express intent of the parties hereto. It is expressly
provided, however, that the Members do not intend that the Company be treated
as a "partnership" for purposes of Section 303 of the Bankruptcy Code.
Section 2.02 Principal Executive Office. The Company's principal office shall
be located in Hudson, Wisconsin.
Section 2.03 General Purpose and General Powers. The purpose of the Company
shall be to carry on any lawful business, purpose or activity permitted by the
Act, any other law, or this Agreement.
Section 2.04 Term. The term of the Company shall be perpetual, unless
dissolved earlier according to law and/or the terms hereof.
Section 2.05 Liability of Members, Managers and Officers. No Member, Manager
or officer, solely by reason of such status, shall be liable, under a judgment,
decree or order of a court, or in any other manner, for any debt, obligation or
liability of the Company, whether arising in contract, tort or otherwise, or
for the acts or omissions of any other Member, Manager, or officer. The failure
of the Company to observe any formalities or requirements relating to the
exercise of its
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powers or management of its business or affairs under this Agreement or the Act
shall not be grounds for imposing liability on the Members, Managers, or
officers for liabilities of the Company.
SECTION THREE
CAPITAL CONTRIBUTIONS
Section 3.01 Initial Capital Contributions. The Members shall make an initial
capital contribution to the Company as reflected on Schedule B attached hereto
and incorporated herein by reference.
Section 3.02 Additional Capital Contributions. Except as otherwise provided in
Schedule B, the Member shall not be required to make capital contributions in
addition to those mentioned in the preceding paragraph.
SECTION FOUR
MEMBERSHIP INTERESTS
Section 4.01 Membership Interests and Board Authority as to Additional
Membership Interests. Schedule A sets forth the current Members of the Company
and indicates their respective Financial Rights and Governance Rights in the
Company. No new Membership Interests shall be granted by the Board without the
consent of one hundred percent (100%) of the outstanding Governance Rights.
Section 4.02 Terms of Membership Interests. The original Membership Interests
reflected in Schedule A are ordinary membership interests of one class, without
series, and shall have the rights provided by law, subject to any statement in
this Agreement of the specific rights or terms of such Membership Interests.
Section 4.03 Allocation of Net Income and Net Losses. Net Income and Net
Losses shall be allocated annually among the Members based on their Financial
Rights as reflected on Schedule A.
Section 4.04 Operating Distributions. Any distributions authorized by the
Board other than Liquidating Distributions pursuant to Section 4.05 shall be
distributed among the Members based on their Financial Rights as reflected on
Schedule A.
Section 4.05 Liquidating Distributions. If the Company is dissolved and (i)
dissolution is not avoided, and (ii) its business is being liquidated in
accordance with the Act, the Company shall cease to carry on its business,
except to the extent necessary for the winding up of the business of the
Company. The Company shall thereafter be wound up and terminated as provided
hereunder and by the Act. All tangible or intangible property of the Company,
including money, remaining after the discharge of the debts, obligations, and
liabilities of the Company shall be distributed to the Members as follows:
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(a) to the Members in proportion to, and to the extent of, the
positive balances in their Capital Accounts; and then
(b) to the Members in accordance with their Financial Rights as set
forth on Schedule A.
Section 4.06 Voting. Members shall be entitled to vote on all matters in
proportion to their Governance Rights as set forth on Schedule A.
Section 4.07 Capital Accounts. A Capital Account shall be established for each
Member and shall be maintained in accordance with Treasury Regulations section
1.704-1(b). Any Member who shall receive any Membership Interest in the Company
or whose Membership Interest shall be increased by means of the transfer to such
Member of any financial interest in the Company from another Member shall have a
Capital Account that has been appropriately adjusted to reflect such transfer.
No interest shall be paid by the Company on capital contributions or on balances
in Members' Capital Accounts.
Section 4.08 Additional Capital Contributions. No Member shall have any
obligation to make additional capital contributions to the Company or to fund,
advance, or loan monies which may be necessary to pay deficits, if any,
incurred by the Company during the term hereof. Members may make loans to the
Company from time to time, as authorized by the Board. Unless otherwise
approved by a majority of the outstanding Governing Rights, any payment or
transfer accepted by the Company from a Member shall be deemed a loan and shall
neither be treated as a contribution to the capital of the Company for any
purpose hereunder, nor entitle such Member (as such) to any increase in such
Member's Financial Rights or Governance Rights. Any such loan shall be repaid
at such times and with such interest (at rates not to exceed the maximum
permitted by law) as the Board and the lending Member shall reasonably agree.
Section 4.09 Statement of Membership Interest. At the request of any Member,
the Company shall state in writing the particular membership interest owned by
that Member as of the moment the Company makes the statement. The statement
must describe the Member's rights to vote, to share in profits and losses, and
to share in distributions, restrictions on assignment(s) of Financial Rights
and/or Governance Rights, as well as any assignment of the Member's rights then
in effect other than a security interest.
Section 4.10 Declaration of Distributions. The Board of Managers shall have
the authority to declare distributions upon the membership interests of the
Company to the extent permitted by law.
SECTION FIVE
TRANSFER OF INTERESTS
Section 5.01 Transfers. A Member may assign the Member's full Membership
Interest only by assigning all of the Member's Governance Rights coupled with a
simultaneous assignment to the same assignee of all of the Member's Financial
Rights. Any assignment of any Governance Rights
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or Financial Rights is effective only if (i) all of the Members, other than the
Member seeking to make the assignment, approve the assignment by unanimous
written consent, which consent shall not be unreasonably withheld, and (ii) if
the assignee executes this Agreement as amended to reflect such assignee's
interest in the Company and any other instrument or instruments that the Board
may deem necessary or desirable to effect such assignment.
SECTION SIX
RIGHTS AND OBLIGATIONS OF MEMBERS
Section 6.01 Access to Company Records. Upon the written request of any
Member, the President shall allow any Member to inspect and copy, at the
Member's expense, all Company records.
Section 6.02 Relations between Members. Except as expressly provided herein,
nothing in this Agreement shall be deemed to restrict in any way the freedom of
any of the Members to conduct any other business or activity whatsoever. Except
as expressly provided herein, no Member shall have any authority to act for, or
to assume any obligations or responsibilities on behalf of, the Company or any
other Member. The creation of the Company shall not convey to a Member, by
operation of law or otherwise, any interest in, right to, or ownership of any
asset or property of the other Member. No Member shall become responsible for
any of the debts, obligations or liabilities of the other, and no Member shall
be constituted the agent or attorney in fact of the other. Any transaction
unrelated to the purposes of the Company engaged in by a Member shall be solely
the liability and responsibility of such Member, who shall not be authorized to
bind any other Member as agent or otherwise with respect to such transaction.
SECTION SEVEN
MEMBER MEETINGS
Section 7.01 Place of Meetings. Each meeting of the Members shall be held at
the principal office of the Company, or at such other place as may be
designated by the Board of Managers.
Section 7.02 Regular Meetings. Regular meetings of the Members shall be held
at least on an annual basis and on a more frequent basis if so determined by
the Board of Managers. At each regular meeting the Members entitled to vote may
transact any business, provided, however, that no business with respect to
which special notice is required by law shall be transacted unless such notice
shall have been given.
Section 7.03 Special Meetings. A special meeting of the Members may be called
for any purpose or purposes at any time by the President; by the Treasurer; by
the Board of Managers or any two or more Managers; or by one or more Members
owning not less than ten percent of the Governance Rights, who shall demand
such special meeting by written notice given to the President or the Treasurer
of the Company specifying the purposes of such meeting.
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Section 7.04 Meetings Held Upon Member Demand. Within 30 days after receipt of
a demand by the President or the Treasurer from any Member or Members entitled
to call a meeting of the Members, it shall be the duty of the Board of Managers
to cause a special or regular meeting of Members, as the case may be, to be
duly called and held on notice no later than 90 days after receipt of such
demand.
Section 7.05 Adjournments. Any meeting of the Members may be adjourned from
time to time to another date, time and place within 120 days after the date
fixed for the original meeting. If any meeting of the Members is so adjourned,
no notice as to such adjourned meeting need be given if the date, time and
place at which the meeting will be reconvened are announced at the time of
adjournment.
Section 7.06 Notice of Meetings. Unless otherwise required by law, written
notice of each meeting of the Members, stating the date, time and place and, in
the case of a special meeting, the purpose or purposes, shall be given at least
ten (10) days and not more than sixty (60) days prior to the meeting to every
owner of membership interests entitled to vote at such meeting except as
specified in Section 7.05 or as otherwise permitted by law. The business
transacted at a special meeting of Members is limited to the purposes stated in
the notice of the meeting.
Section 7.07 Waiver of Notice. A Member may waive notice of the date, time,
place and purpose or purposes of a meeting of Members. A waiver of notice by a
Member entitled to notice is effective whether given before, at or after the
meeting, and whether given in writing, orally or by attendance. Attendance by a
Member at a meeting is a waiver of notice of that meeting, unless the Member
objects at the beginning of the meeting to the transaction of business because
the meeting is not lawfully called or convened, or objects before a vote on an
item of business because the item may not lawfully be considered at that
meeting and does not participate in the consideration of the item at that
meeting.
Section 7.08 Action Without a Meeting. Any action required or permitted to be
taken at a meeting of the Members of the Company may be taken without a meeting
by written action signed by all of the Members entitled to vote on that action.
Section 7.09 Quorum. For purposes of Member meetings, a quorum shall consist of
those Member Representatives (defined in Section 7.10) eligible to cast one
hundred percent (100%) of the outstanding Governance Rights. A quorum shall be
required to conduct business at any Member meeting.
Section 7.10 Member Representatives. Each Member may designate
representative(s) who shall vote on such Member's behalf at member meetings
("Member Representative(s)"). Until all Members are notified to the contrary,
the following individuals shall act as Member Representative(s) of the
respective Members as follows:
LAND O'LAKES, INC. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Any Member Representative shall have the authority to vote the entire
Governance Rights of the Member he or she represents; provided, however, that
only one Member Representative shall vote on a Member's behalf at any meeting
of the members.
SECTION EIGHT
MANAGERS
Section 8.01 Number; Qualifications. Except as set forth herein, or as
otherwise required by statute, the business and affairs of the Company shall be
managed by or under the direction of a Board of Managers with potential
referral to Members as set forth in Section 7.12. Managers shall be natural
persons. There shall be three Managers serving on the Board of Managers.
Section 8.02 Managers. The Managers of the Company shall be the following, who
are hereby elected to hold office until their successors are appointed pursuant
to this Agreement:
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▇▇▇ ▇▇▇▇
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Section 8.03 Term. Each Manager shall serve for an indefinite term and shall
hold office until the earlier death, resignation, removal or disqualification of
the Manager.
Section 8.04 Notice and Place of Meetings. Each meeting of the Board of
Managers shall be held upon at least five (5) days advance written notice and
at the principal executive office of the Company or at such other place as may
be designated from time to time by a majority of the Managers. A meeting may be
held by conference among the Managers using any means of communication through
which the Managers may simultaneously hear each other during the conference.
Section 8.05 Regular Meetings. Regular meetings of the Board of Managers for
the election of officers and the transaction of any other business shall be
held quarterly.
Section 8.06 Special Meetings. A special meeting of the Board of Managers may
be called for any purpose or purposes at any time by the Manager by giving not
less than five (5) days' notice to all Managers of the date, time and place
of the meeting.
Section 8.07 Waiver of Notice; Previously Scheduled Meetings. A Manager of the
Company may waive notice of the date, time and place of a meeting of the Board.
A waiver of notice by a Manager entitled to notice if effective whether given
before, at or after the meeting, and whether given in writing, orally or by
attendance. Attendance by a Manager at a meeting is a waiver of notice of that
meeting, unless the Manager objects at the beginning of the meeting to the
transaction of business because the meeting is not lawfully called or convened
and thereafter does not participate in the meeting.
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If the day or date, time and place of a Board meeting have been provided herein
or announced at a previous meeting of the Board, no notice is required. Notice
of an adjourned meeting need not be given other than by announcement at the
meeting at which adjournment is taken of the date, time and place at which the
meeting will be reconvened.
Section 8.08 Acts of Board. Except as otherwise required by law, the Board
shall take action by the affirmative majority vote of the entire Board of
Managers.
Section 8.09 Participation by Electronic Communications. A Manager may
participate in a Board meeting by any means of communication through which the
Manager, other Managers so participating and all Managers physically present
at the meeting may simultaneously hear each other during the meeting. A Manager
so participating shall be deemed present in person at the meeting.
Section 8.10 Action Without a Meeting. An action required or permitted to be
taken at a Board meeting may be taken without a meeting by written action
signed by all of the Managers. The written action is effective when signed by
all of the Managers, unless a different effective time is provided in the
written action.
Section 8.11 Committees. A resolution approved by the unanimous vote of the
entire Board may establish committees having the authority of the Board in the
management of the business of the Company only to the extent provided in the
resolution. Committees shall be subject at all times to the direction and
control of the Board.
Section 8.12 Referral to Members. Any Manager at any time may demand that an
action approved by the vote of the Managers, or any action rejected by the vote
of the Managers, be referred to the Members for determination. Pending the vote
by the Members, the proposed action would be suspended. The affirmative vote of
a majority of the Governance Rights by the Members shall be binding upon the
Company.
Section 8.13 Manager Conflicts of Interest. Conflicts of interests with respect
to Managers shall be subject to the provisions of the Act, as it may be amended
from time to time.
SECTION NINE
OFFICERS
Section 9.01 Number and Designation. The Board of Managers may elect or
appoint such officers or agents as it deems necessary for the operation and
management of the Company, with such powers, rights, duties and
responsibilities as may be determined by the Board. Any of the positions or
functions of those positions may be held by the same person.
Section 9.02 Authority and Duties. All officers of the Company shall
respectively have such authority and perform such duties in the management of
the business of the Company as may be designated from time to time by the Board
of Managers. Unless prohibited by a resolution
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approved by the Board, a officer elected or appointed by the Board may, without
the approval of the Board, delegate some or all of the duties and powers of a
position to other persons.
Section 9.03 Term. (a) All officers of the Company shall hold office until
their respective successors are chosen and have qualified or until their
earlier death, resignation or removal.
(b) An officer may resign at any time by giving written notice to the
Company. The resignation is effective without acceptance when the notice is
given to the Company, unless a later effective date if specified in the notice.
(c) An officer may be removed at any time, with or without cause, by a
resolution approved by the Board of Managers.
(d) A vacancy in a position because of death, resignation, removal,
disqualification or other cause may, or in the case of a vacancy in the position
of President or Treasurer, shall be filled for the unexpired portion of the term
by the consent of the Board of Managers.
SECTION TEN
LIABILITY AND INDEMNIFICATION
Section 10.01 Limitation of Liability. No Person shall be liable to the
Company or the Members for any loss, damage, liability or expense suffered by
the Company or its Members on account of any action taken or omitted to be
taken by such Person as a Member, Manager or officer, if such Person discharges
such Person's duties in good faith and in a manner such Person reasonably
believes to be in or not opposed to the best interests of the Company. The
liability of a Member, Manager or officer hereunder shall be limited only for
those actions taken or omitted to be taken by such Person in connection with
the management of the business and affairs of the Company. The provisions of
this Section Nine are not intended to limit the liability of any Member in any
other respect, including but not limited to any obligations of such Member
undertaken in this Agreement.
Section 10.02 Indemnification. The Company shall indemnify its members,
officers and Managers for such expenses and liabilities, in such manner, under
such circumstances, and to such extent, as required or permitted by Wisconsin
Statutes, Section 183.0403, as amended from time to time, or as required or
permitted by other provisions of law.
Section 10.03 Insurance. The Company may purchase and maintain insurance on
behalf of any person in such person's official capacity against any liability
asserted against and incurred by such person in or arising from that capacity,
whether or not the company would otherwise be required to indemnify the person
against the liability.
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SECTION ELEVEN
TAX MATTERS
Section 11.01 Tax Characterization and Returns. The Members acknowledge that
the Company will be treated as a "partnership" for tax purposes. Within 90 days
after the end of each fiscal year, the President will cause to be delivered to
each person who was a Member at any time during such fiscal year a Form K-1 and
such other information, if any, with respect to the Company as may be necessary
for the preparation of such Member's federal or state income tax (or
information) returns, including a statement showing each Member's share of
income, gain, or loss and credits for such fiscal year for federal or state
income tax purposes.
Section 11.02 Tax Matters Partner. LOL shall act on behalf of the Company as
the "tax matters partner" within the meaning of Section 6231(a)(7) of the Code.
Section 11.03 Fiscal Year. The fiscal year on the Company shall commence on
the first day of January of each calendar year and end on the last day of
December of each calendar year unless the Members unanimously agree to elect
another fiscal year.
SECTION TWELVE
DISSOLUTION AND TERMINATION
Section 12.01 Dissolution Events. The Company shall be dissolved upon the
first of occur of the following events:
(a) The unanimous vote of the Members to dissolve; or
(b) Upon the entry of a decree of dissolution by a court of competent
jurisdiction.
Section 12.02 Event of Dissociation. The Company shall not be dissolved upon
the occurrence of an event of dissociation as described in Section 183.0802 of
the Act, and upon such event, the Members shall not be required to consent to
the continuation of the Company.
SECTION THIRTEEN
AMENDMENTS
Section 13.01 Amendment of Agreement. No change, modification or amendment of
this Agreement shall be valid or binding unless such change, modification or
amendment shall be in writing signed by the holders of one hundred percent
(100%) of the then outstanding Governance Rights.
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SECTION FOURTEEN
MISCELLANEOUS
Section 14.01 Governing Law. This Agreement and the rights of the parties
hereunder will be governed by, interpreted, and enforced in accordance with the
laws of the State of Wisconsin.
Section 14.02 Binding Effect. This Agreement will be binding upon and inure to
the benefit of the Members, and their permitted successors and assigns.
Section 14.03 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under the present or future laws effective
during the term of this Agreement, such provision will be fully severable; this
Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there will be added automatically as a
part of this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.
Section 14.04 Multiple Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which will
constitute one and the same instrument. However, in making proof hereof it will
be necessary to produce only one copy hereof signed by the party to be charged.
Section 14.05 Additional Documents and Acts. Each Member agrees to execute and
deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions, and conditions of this Agreement and the
transactions contemplated hereby.
Section 14.06 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other person will have any rights,
interest, or claims hereunder or be entitled to any benefits under or on
account of this Agreement as a third party beneficiary or otherwise.
Section 14.07 Notices. Any notice to be given or to be served upon the Company
or any party hereto in connection with this Agreement must be in writing and
will be deemed to have been given and received when delivered to the address
specified by the party to receive the notice. Such notices will be given to a
Member at the address specified in the Company's Required Records. Any Member
or the Company may, at any time by giving 5 days' prior written notice to the
other Members and the Company, designate any other address in substitution of
the foregoing address to which such notice will be given.
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Section 14.08. Remedies. Any remedies provided herein shall be in addition to,
and not in lieu of, any remedies available at law or in equity. In the event of
a breach hereunder, the prevailing party shall be entitled to receive from the
other party(ies) its attorneys fees reasonably incurred as a result of such
breach.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement the day
and year first set forth above.
LAND O'LAKES, INC. NORTHWEST FOOD PRODUCTS
TRANSPORTATION, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Vice President -- Operations Its: Treasurer
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NORTHWEST FOOD PRODUCTS TRANSPORTATION, LLC
SCHEDULE A
TO
OPERATING AGREEMENT
MEMBERSHIP RIGHTS
Name of Financial Governance
Member Rights Rights
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LOL 100% 100%
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NORTHWEST FOOD PRODUCTS TRANSPORTATION, LLC
SCHEDULE B
TO
OPERATING AGREEMENT
CONTRIBUTIONS
LAND O'LAKES, INC.
Lease dated January 1, 2001 by and between Land O'Lakes, Inc. and Northwest
Food Products Transportation, LLC for the lease of certain equipment.
Sublease dated January 1, 2001 by and between Land O'Lakes, Inc. and Northwest
Food Products Transportation, LLC for the sublease of certain equipment.
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