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EXHIBIT 10.4
Certain portions of this Exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission (the
"Commission"). The omitted portions have been separately filed with the
Commission and marked in this Exhibit by replacing the omitted portions with
asterisks.
EGG SUPPLY AGREEMENT #1
BETWEEN
GOLDEN OVAL EGGS
(A DIVISION OF MIDWEST INVESTORS OF RENVILLE, INC.)
AND
PRIMEGG, LTD.
THIS SUPPLY AGREEMENT ("Agreement") is entered into to be effective by
5/1/97, by and between Golden Oval Eggs, a division of Midwest Investors of
Renville, Inc., a Minnesota cooperative association ("Golden Oval") and
Primegg, Ltd., a Delaware corporation ("Primegg").
RECITALS
A. Golden Oval is in the business of, among other things, producing
and processing eggs from layer-hens maintained at its egg laying facilities.
Primegg is in the business of, among other things, producing and supplying
processed egg products, including dried products.
B. Golden Oval and Primegg have conducted business with each other
under an agreement entitled "Egg Supply Agreement between Midwest Investors of
Renville, Inc. and Primegg, Ltd." effective November 15, 1994 ("the Original
Agreement").
C. During 1996, Golden Oval and Primegg held numerous discussions
regarding the original agreement and this agreement reflects the results of
those discussions and provides an improved framework for building a long term
association between the two companies.
D. Since May 13, 1996, Primegg has provided Golden Oval with the
opportunity to supply Egg Products in Position Sales and Golden Oval has taken
a position in such sales.
▇. ▇▇▇▇▇▇ Oval and Primegg acknowledge that the egg industry is
cyclical and that at times, sale prices for egg products may be at levels that
are not consistent with the profit goals of either company.
F. Both parties believe that, over the term of this Agreement,
opportunities will exist under the provisions of this Agreement that will
enable Golden Oval to realize a fair price for its eggs and will enable Primegg
to maintain its position as a stable primary producer of dried Egg Products to
its customers at competitive prices.
G. Primegg desires to purchase liquid eggs from Golden Oval and
Golden Oval desires to sell liquid eggs to Primegg upon the terms and
conditions set forth in this Agreement.
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IN CONSIDERATION of the foregoing and the undertakings described in
this Agreement, Golden Oval and Primegg agree as follows:
1.00 TERM OF AGREEMENT
1.01 INITIAL TERM. Unless this Agreement is terminated by either
Golden Oval or Primegg pursuant to the provisions of Paragraphs 1.05, or 5.01
of this Agreement, the initial term of this Agreement (the "Initial Term")
shall begin on the effective date of this Agreement stated above, and shall
continue until midnight, C.S.T. November 15, 2001.
1.02 TERMINATION OF INITIAL TERM. Either Golden Oval or Primegg may
notify the other in writing on or before November 15, 1999 (which is two years
prior to the expiration date of the Initial Term) that the party desires not to
extend the term of this Agreement beyond the Initial Term. If the termination
notice is given under this paragraph this Agreement terminates at the end of
the Initial Term.
1.03 EVERGREEN EXTENSION TERMS. Unless the Initial Term is terminated
as provided in Paragraph 1.02, the Initial Term shall automatically be renewed
for successive one (1) year periods until terminated pursuant to Paragraph
1.04.
1.04 TERMINATION. This Agreement may be terminated by either party
effective as of the end of any one (1) year extension by either party giving
written notice of termination ("Termination Notice") to the other party at
least two (2) years prior to the end of the applicable extension period. To
terminate the Agreement for any one year extension period, the terminating
party shall give the Termination Notice to the other party between May 15 and
October 15 two (2) years prior to the proposed termination date. After a
properly given Termination Notice, the Agreement shall terminate as of Midnight
CST on November 15 of the second year after notice is given. For example, to
terminate this Agreement on November 15, 2002, the terminating party must give
a written Termination Notice to the other party between May 15, 2000 and
October 15, 2000.
1.05 VOLUNTARY TERMINATION. This Agreement may be voluntarily
terminated by either party pursuant to the provisions of section 5.01 (b).
2.00 PAYMENT OF PURCHASE PRICE AND ANNUAL PRICING REVIEWS. During the
term of this Agreement, Golden Oval shall produce, process, deliver, and sell
liquid eggs to Primegg and Primegg shall purchase and receive liquid eggs from
Golden Oval upon the following terms and conditions:
2.01 SALES VOLUME OF LIQUID EGGS.
(a) Required Sales and Purchases. Primegg shall purchase from
Golden Oval and Golden Oval shall deliver to Primegg an amount equal to 71,200
pounds of liquid egg per day for each month. Prior to the beginning of each
month, Golden Oval will notify Primegg as to any shortfall or surplus liquid
that it expects to deliver during the next month.
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(b) Shortfall of Product. Golden Oval shall make arrangements
to correct any shortfall for any month by replacing deliveries from another
acceptable source for the month as necessary.
2.02 SOLIDS DETERMINATION.
(a) Egg Product Types. Golden Oval will ship liquid eggs, at
its own expense, to Primegg's drying facilities at Perham, Minnesota and
Cameron, Wisconsin as Primegg shall direct. The Net Weight of Golden Oval
liquid eggs shall be determined on the basis of solids for the following three
types of liquid egg products: (1) egg whites; (2) egg yolks; and (3) whole eggs
(herein referred to collectively as "Egg Products").
(b) Documentation of Egg Product Solids ftom Liquid Eggs
Received. To document the Egg Product solids for the three different types of
liquid Egg Products received by Primegg from Golden Oval hereunder, each week
Primegg will provide Golden Oval with a listing of tankers received at
Primegg's drying facilities and the solid content of the tanker by Egg Product
type. Primegg will pay Golden Oval based on the total amount of Egg Product
solids (in pounds) received by Primegg from Golden Oval as provided in Section
3.
3.00 PURCHASE PRICE FOR EGG PRODUCTS.
3.01 PRIORITY OF SALES. Payment by Primegg to Golden Oval will be
based on the dried whole egg, egg yolk and egg whites ("dried Egg Products
solids") sold by Primegg in the following three types of sales and in the
following order of priority: (1) sales of dried Egg Product solids in which
Golden Oval has taken a position, (herein referred to as "Position Sales"); (2)
sales of liquid Egg Products (herein referred to as "Liquid Sales"); and (3)
other "spot" sales of dried Egg Product solids, which are for smaller amounts
(generally less than 40,000 pounds) and for irnmediate shipment (herein
referred to as "Non-Position Sales").
3.02 POSITION SALES.
(a) Taking A Position. Primegg shall identify and communicate all significant
sales to a particular customer ("Designated Customer Sales") for each type of
dried Egg Product solids (dried whole egg, egg yolk and egg whites) which sales
generally shall be greater than 40,000 pounds, and Primegg will offer Golden
Oval the opportunity to take a position in the Designated Customer Sales for
some or all of the dried Egg Product solids consistent with the projected
receipt of liquid Egg Products to be received from Golden Oval during the time
frame of the particular Designated Customer Sale. A "Position Sale" will occur
when Golden Oval accepts the offer to supply an agreed upon percentage of
the dried Egg Product solids of a particular Designated Customer Sale. Golden
Oval will be offered positions by Primegg through delivery of sales information
outlining the Designated Customer Sale and a Position Sale confirmation form by
facsimile. Golden Oval may accept the offer to take a position in any
Designated Customer Sales by signing or initialing the Position Sale
confirmation form and delivering it by facsimile to Primegg. If no response is
received within 3 business days, the offer to take a position in the Designated
Customer Sale will be deemed accepted by Golden Oval.
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(b) Price. The price to be paid by Primegg to Golden Oval for
a Position Sale shall be equal to (a) the price received by Primegg from the
Designated Customer Sale, minus (b)(i) Primegg's contribution charge (under
section 3.06 of this Agreement) and (ii) any out-of-pocket commission and/or
freight incurred by Primegg.
(c) Documentation of Position Sales. Payment for the dried Egg
Product solids produced from Golden Oval's liquid eggs will be set forth by the
type of dried Egg Product solids sold by Primegg in the Designated Customer
Sales in which Golden Oval has taken a position. Such reports shall accompany
payments made by Primegg to Golden Oval for its liquid eggs. As new Designated
Customers Sales are made by Primegg and Position Sales are taken by Golden
Oval, the new Designated Customer Sales and Golden Oval's Position Sales
therein will be added to the report for each type of dried Egg Product solids
based on the month in which the shipment of the Golden Oval dried Egg Product
solids is expected to be made by Primegg. As liquid eggs are received by
Primegg from Golden Oval each month, the Position Sales identified for that
month will be used first in calculating the amount of the payment to Golden
Oval for the dried Egg product solids content of its liquid eggs. Primegg will
provide monthly shipping reports of dried Egg Product solids identifying
Position Sales separately from Non-Position sales.
(d) Excess Position Sales. If the dried egg product solids in
golden oval's Position Sales exceed the amount of dried Egg Product solids
delivered by golden oval TO Primegg in any one month, the unused Position Sales
will be filled first during the subsequent month.
3.03 SALES OF LIQUID EGG PRODUCTS.
(a) Liquid Sales. If the Egg Product solids delivered to
Primegg by Golden Oval are in excess of the Golden Oval Egg Products solids
used in Position Sales in a month, Liquid sales, if any, will then be used to
determine the payment owed to Golden Oval for such additional Egg Product
solids. Golden Oval will participate in Liquid Sales made by Primegg based on
the monthly average percentage of each type of liquid Egg Products delivered by
Golden Oval in relation to the total liquid Egg Products produced by Primegg
each month. Purchases of liquid Egg Products by Primegg from other sellers
shall not affect this calculation.
(b) Price. The price paid Golden Oval for the Liquid Sales
will be the gross price received by Primegg for such Liquid Sales less (i) a
* per pound sales fee for Primegg and (ii) any freight or other commission
expenses associated with the Liquid Sales.
(c) Conversion to Solids. In making the settlement for all Egg
Product solids provided through Liquid Sales for a month, the Liquid Sales will
be converted to Egg Product solids based on the following standard solid
factors: (1) Yolk - 43.6 percent, (2) Egg whites - 11.8 percent; and (3) Whole
eggs - 24.2 percent. Golden Oval and Primegg recognize that actual solids may
vary slightly from these standards, but both parties agree the difference is
not significant enough to warrant using actual results in the calculation of
payment amounts.
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* Information omitted pursuant to a request for confidential treatment filed
with the Commission. The omitted material has been filed separately with
the Commission.
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(d) Example. As an example, assuming that Golden Oval provides
45 percent of the total liquid egg yolk solids produced by Primegg during a
month, Golden Oval would receive payment based on 45 percent of the liquid yolk
solids sold in Liquid Sales for the month. If 900,000 pounds of liquid yolk
solids are sold by Primegg during the month in question, Golden Oval's share
would be 405,000 pounds (45% of 900,000 pounds). If the average sales price for
the liquid is $0.80 per pound, the rate used to compensate Golden Oval for its
portion of these Liquid Sales would be $0.79 per pound less any freight or
other commission expenses associated with the sale. The amount of dried Egg
Product solids attributable to the Liquid Sales (43.6% of 405,000 liquid pounds
or 176,580 pounds of dried egg yolk) shall be subtracted from the dried Egg
Product solids received by Primegg hereunder.
3.04 NON-POSITION SALES. If the Egg Product solids delivered by
Primegg to Golden Oval are in excess of the Golden Oval dried Egg Product
solids used in Position Sales and Liquid Sales, the purchase price for the
remaining Egg Product solids will be equal to the average sales price of
Non-Position Sales of each type of dried Egg Product solids shipped by Primegg
during the month less (i) Primegg's Contribution Charge and (ii) any freight or
other commission expenses associated with the Non-Position Sale. At the end of
each month, Primegg shall provide Golden Oval with a report separately
identifying all Position Sales and Non-Position Sales that were shipped for the
month showing how the average sale price of the Non-Position Sales was
determined.
3.05 LEVEL OF FUTURE POSITION SALES. The parties acknowledge that the
amount of Position Sales accepted by Golden Oval may vary from time to time,
but overall the parties will endeavor to maintain Position Sales at least at
the * level annually for the Egg Product solids supplied by Golden Oval.
3.06 CONTRIBUTION CHARGE ADJUSTMENT. Primegg's Contribution Charge
will be determined based on the factors set forth in Exhibit A and may be
adjusted once a year during the term of this Agreement based on changes that
occur in the variable cost components of the Contribution Charge that are
beyond Primegg's control and reflected generally in the industry. Any
adjustment shall be effective when reasonably documented in writing by Primegg
to Golden Oval.
The base Contribution Charge is based on the costs in effect in * (the
"Base Year") as follows:
Base Year
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*
The Contribution Charge was changed as follows *
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* Information omitted pursuant to a request for confidential treatment filed
with the Commission. The omitted material has been filed separately with
the Commission.
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*
The base year for determining future adjustments shall continue to be
the year beginning *
Under no circumstances shall an increase in Primegg's fixed production
costs cause a proportional increase in the Contribution Charge.
3.07 PAYMENT. Primegg will pay weekly for eggs received from Golden
Oval no later than 30 days after the date of delivery. To ease the process of
making payments, advances will be made by Primegg to Golden Oval throughout the
month and a final settlement check will be provided once information is fully
available on all sales made for a particular month. In the event both parties
want to build inventories because of favorable market conditions, Golden Oval
may extend payment terms beyond 30 days provided Primegg documents the higher
inventory levels and the need for extended terms.
4.00 FULL DISCLOSURE OF FINANCIAL INFORMATION. Primegg and Golden Oval
shall provide full confidential disclosure of their financial conditions to
each other on a periodic basis as they may agree, but not less than on an
annual basis. Full disclosure will include balance sheet and income statements,
weekly shipping and sales reports showing amounts necessary to make all
calculations under this agreement, production reports, inventory levels,
accounts receivable information, market information, and any other information
which both parties agree is appropriate for a full understanding of the
financial aspects relating to this Agreement. In addition, Primegg shall
provide Golden Oval with copies of its list of brokers and commission
schedules. In the event additional brokers are added, Golden Oval will be made
aware of such addition and will be provided a complete explanation of the
appropriateness of such addition. This information may be shared, as necessary
on a confidential basis, with the lending institutions for each party. This
information will be maintained as confidential as provided in Paragraph 10.00.
5.00 TERMINATION.
5.01 CONDITION FOR TERMINATION. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned as follows:
(a) Mutual Consent. By mutual consent of the parties; or
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* Information omitted pursuant to a request for confidential treatment filed
with the Commission. The omitted material has been filed separately with the
Commission.
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(b) Material Changes in the Marketplace. By voluntary
termination by either of the parties, where material changes in the marketplace
affecting production costs and/or prices of goods related to this Agreement
causes either party to incur significant and recurring losses under the terms
and conditions of this Agreement as measured by generally accepted industry
standards; either party may terminate this Agreement by giving the other party
180 days advance notice accompanied by an early termination payment equal to
$500,000 (referred to herein as the "Early Termination Payment". Such voluntary
termination shall not be effective unless accompanied by the Early Termination
Payment. Both parties shall continue to perform under this Agreement until the
effective date of the termination, or
(c) Upon Default. By either of the parties upon material
breach of any material term of this Agreement by the other party (exclusive of
any material breach caused by the events described in Paragraph 6.00) which is
not cured within a commercially reasonable time after receiving written notice
from the non-breaching party to cure such breach. The party giving notice shall
state the commercially reasonable time period for cure in the notice. If the
breaching party disagrees with the duration of the cure period, the breaching
party shall give a response notice in writing to the non-breaching party
stating why the duration of the cure period is not commercially reasonable. If
the breaching party and non-breaching party cannot reasonably agree upon the
duration of the cure period, the parties shall resolve the dispute as provided
in Paragraph 9.00. If the breach is not cured by the breaching party prior to
the expiration of the agreed upon cure period, the breaching party shall be
deemed to be in default of this Agreement and the nondefaulting party shall
have the option to terminate this Agreement upon giving the breaching party 180
days notice of termination. The parties shall continue to perform and be
entitled to recover damages as provided in Paragraph 7.00; or
(d) Force Majeure. By either party if it is unable to
perform its obligations under this Agreement as a result of an occurrence or
event described in Paragraph 6.00.
5.02 NOTICE AND ENFORCEMENT BY INJUNCTION. Prior to the effective
date of termination under paragraphs 5.00 (b) or (c), the parties agree to
perform their respective obligations hereunder, and this Agreement may be
enforced by either party obtaining a mandatory injunction against the party
refusing to perform during the 180 day period whether or not the Early
Termination Payment is paid under paragraph 5.00 (b) or payment of damages is
offered or paid under paragraph 5.00 (c). In the event either party is required
to seek an injunction to enforce performance under this Agreement, the other
party shall be responsible for all costs in obtaining the injunction, including
all attorney's fees.
5.03 TERMINATION DOES NOT ACT AS WAIVER. Termination of this
Agreement by Primegg or Golden Oval shall not act as a waiver of any other
rights either Primegg or Golden Oval may have against each other under the
terms of this Agreement or applicable law.
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6.00 FORCE MAJEURE. Golden Oval will exercise reasonable diligence to
assure the prompt shipment of eggs to Primegg, and Primegg will exercise
reasonable diligence in taking delivery of eggs from Golden Oval, but neither
Golden Oval nor Primegg shall be liable to the other for any delay of
performance due to causes beyond its control, including without limitation,
fire, epidemics, floods, accidents, delays in transportation, shortage of
transportation vehicles, shortages of fuel or other materials, war, riot, civil
commotion, radiological contamination, blockades, embargoes, acts or demands or
requirements of the United States or any other country, state, municipality or
governmental body, restraining order of any court, acts of God or other force
majeure. This provision is a limitation on the right to collect damages only
and is not intended to restrict in any way the rights of termination contained
elsewhere in this Agreement.
7.00 DAMAGES IN THE EVENT OF TERMINATION RESULTING FROM BREACH. In the
event this Agreement is terminated under section 5.00 (b) or is terminated by
the nondefaulting party under section 5.00 (c), the party voluntarily
terminating or the breaching party will compensate the other party by paying:
(1) $500,000 ($.50 per layer hen for 1,000,000 layers) or (2) the actual
damages incurred by the nonbreaching or nonterminating party, if actual
damages are greater. Such amount shall be due and payable upon demand by the
party entitled to the payment.
8.00 RIGHT OF FIRST REFUSAL. If Golden Oval increases its production
capacity at the Renville facility beyond two million layer-hens during the term
of this Agreement, Golden Oval shall offer Primegg the first option to enter
into an agreement to purchase all or a portion of the additional eggs produced
at the Renville facility upon substantially the same terms and conditions which
Golden Oval proposes to sell such additional egg output to any other person.
This option shall exist for thirty (30) days after notification is sent by
Golden Oval containing the offer unless otherwise agreed to in writing by the
parties. Thereafter, Golden Oval shall not offer to sell any portion of the
additional egg production to any other purchaser upon terms and conditions
substantially differing from the terms and conditions first offered to Primegg.
In the event the current owners of Primegg, which is Cham Foods
(Israel) Ltd., decide to sell all of the assets or stock of Primegg to any
third person not currently associated directly or indirectly with the current
ownership of Cham Foods (Israel) Ltd. or the families of the current owners,
Golden Oval will be given the right of first refusal to purchase all of such
assets or stock upon the same terms and conditions which Primegg proposes to
sell such assets or stock to any third person. This right of first refusal
shall exist for thirty days after written notification by Primegg to Golden
Oval unless otherwise agreed in writing by the parties. Thereafter, Primegg
shall not offer to sell such assets or stock to any third person upon terms or
conditions materially different from the terms and conditions first offered to
Golden Oval.
In the event the parties desire to clarify the terms of these rights
of first refusal, they shall enter into a separate agreement outlining such
terms.
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9.00 ALTERNATIVE DISPUTE RESOLUTION. Except for a claimed breach of
delivery of eggs by Golden Oval or payment for eggs or liquid eggs by Primegg
to which Golden Oval and Primegg respectively retain their rights to access to
the courts for appropriate injunctive relief, any and all claims, disputes,
controversies, and other matters arising out of or relating to this Agreement,
including but not limited to the formation (including any claim as to fraud in
the inducement), breach, performance, interpretation, or termination of this
Agreement shall be settled by mediation or, if mediation is unsuccessful, by
binding arbitration in accordance with the following procedure; provided
however that except where clearly prevented by the area in dispute, both
parties agree to continue to performing their respective obligations and
undertakings under this Agreement while the dispute is being resolved:
(a) Negotiation Through Mediation. If any dispute between the
parties to this Agreement is not resolved by negotiation, the parties hereby
agree to endeavor to settle the dispute by mediation. The neutral party
mediator will be selected from the Minnesota State Court Administrator's roster
of qualified neutrals, unless the parties agree otherwise.
(b) Termination of Mediation. Mediation shall continue until
all disputes have been resolved, an impasse has been declared by the mediator,
or until such time as Golden Oval or Primegg exercises their right to terminate
the mediation in accordance with the provisions of Minnesota Civil Mediation
Act, Minn. Stat. 572.31-572.40.
(c) Binding Arbitration. Thereafter, any disputes which
have not been resolved by mediation as provided herein shall be settled by
binding arbitration as follows:
(1) Notice. Notice of demand for binding arbitration shall be
filed in accordance with the Commercial Arbitration Rules of the American
Arbitration Association and served on the other party to this Agreement. In no
event may notice of dispute of any kind be filed more than one (1) year after
the date the claim, dispute, controversy or other matter in question arose. If
such demand is not timely filed and served, the claim, dispute, controversy or
other matter in question referenced in the demand shall be deemed released,
waived, barred and unenforceable for all time, and barred as if by statute of
limitation.
(2) Arbitration Rules. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and shall be conducted in Minneapolis/St. ▇▇▇▇, Minnesota, by a
sole arbitrator.
(3) Arbitrator Selection. The sole arbitrator shall be selected
pursuant to the procedures of the American Arbitration Association and shall,
if possible, be a retired or former Justice of the Minnesota Supreme Court, or
a retired or former Judge of the Minnesota Court of Appeals or a Minnesota
District Court, or a retired or former Judge or Magistrate of a United States
District Court. If an arbitrator having the above qualifications is not
available, any otherwise qualified arbitrator may be selected under the Rules
of the American Arbitration Association.
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(4) Enforcement of Award. Any award rendered by the arbitrator
may be entered in any court having jurisdiction thereof in accordance
with the provisions of the Minnesota Uniform Arbitration Act, Minn.
Stat. 572.08-572.30.
(5) Costs of Arbitration. The costs of arbitration proceedings,
including without limitation the arbitrator's compensation and
expenses, hearing room charges, administrative fees, etc. shall be
borne by the parties equally or otherwise as the arbitrator may
determine. The arbitrator may award the party that prevails
substantially in its prehearing position part or all of its reasonable
attorney's fees and costs incurred in connection with the arbitration.
10.00 CONFIDENTIALITY. Under the terms of this Agreement, each
party shall submit to the other certain confidential information,
including without limitation, balance sheets, income statements,
production reports, inventory levels, accounts receivable information,
and market information. Except as otherwise provided in this agreement,
Primegg and Golden Oval agree that they will not disclose or use any such
confidential information other than in connection with the execution and
performance of the rights and obligations under this Agreement unless
such information (1) was or is in the public domain, or (2) was, in-fact,
known by Golden Oval or Primegg, as applicable, or their respective
agents or representatives prior to disclosure to Primegg or Golden Oval,
as applicable, or (3) becomes information generally available to the
public through no act or failure to act on the part of Golden Oval or
Primegg, as applicable; or (4) is required to be disclosed by order of an
agency or court of competent jurisdiction with reasonable time to get a
protective order.
11.00 MISCELLANEOUS PROVISIONS.
11.01 NOTICE. The contact persons with respect to the
undertakings and agreements of Golden Oval and Primegg set forth in this
Agreement shall be:
FOR GOLDEN OVAL:
Golden Oval
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
FOR PRIMEGG:
Primegg, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
P.O. Box 373
Cameron, W1 54822
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇
or such other person or persons as either Golden Oval or Primegg
shall designate in writing to the other.
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11.02 ENTIRE AGREEMENT. This Agreement contains the entire and
only agreement between Golden Oval and Primegg relating to the subject
matter hereunder; and this Agreement wholly cancels, terminates and
supersedes any other agreement written or verbally made or purported to
have been made between Primegg and Golden Oval with respect to the supply
of eggs.
11.03 SEVERABILITY. If any of the provisions of this Agreement
are in violation of or prohibited by any applicable law or regulation,
such provisions shall be deemed to be amended or deleted to conform to
such law or regulation without invalidating or amending or deleting any
of the other provisions of this Agreement.
11.04 AMENDMENT. No amendment or addition to or deletion from
this Agreement or any of its provisions shall be binding upon Golden Oval
or Primegg unless made in writing and signed by duly authorized officers
of both Primegg and Golden Oval.
11.05 THIS AGREEMENT SUPERSEDES PRIOR AGREEMENTS. This
Agreement supersedes and replaces prior agreements between Golden Oval
and Primegg on the effective date of this agreement. In particular this
agreement supersedes and replaces the Egg Supply Agreement between
Primegg and Golden Oval which became effective November 15, 1994.
11.06 WAIVER. No departure from or waiver of or omissions to
require compliance with any of the provisions of this Agreement by either
Primegg or Golden Oval shall be deemed to authorize any prior or
subsequent departure or waiver or permit or agree to any subsequent
departure or waiver, nor shall the acceptance of eggs by Primegg
constitute a waiver of any right of action which Primegg may have for
breach of warranty or any other cause.
11.07 ASSIGNMENT. Neither Primegg nor Golden Oval may assign
this Agreement without the prior written consent of the other, except
that no such consent is necessary with respect to Primegg's or Golden
Oval's assignment to any wholly-owned subsidiary or controlled affiliate.
An assignment by Primegg or Golden Oval to any wholly-owned subsidiary or
controlled affiliate shall not relieve Primegg or Golden Oval from any
obligation or responsibility provided for under the terms of this
Agreement. Any assignment attempted without such approval shall be null
and void.
11.08 GOVERNING LAW. The parties hereby agree that this
Agreement shall be construed, enforced and governed by the laws of the
State of Minnesota. Specifically, Golden Oval's egg products transferred
pursuant to this Agreement shall be subject to a wholesale produce
dealer's trust under Minnesota Statutes 27.138.
11.09 HEADINGS AND CAPTIONS. The headings and captions of
Paragraphs, subparagraphs and clauses of this Agreement are for
convenience of reference only and do not constitute a part of the
Agreement.
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11.10 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, Primegg and Golden Oval have signed this
Agreement effective as of the date and year set for at the beginning of
this Agreement.
MIDWEST INVESTORS OF RENVILLE, INC.
GOLDEN OVAL EGGS DIVISION PRIMEGG, LTD.
By: ▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: President Its: President
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Date Signed: 5/1/97 Date Signed: 5/12/97
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