NO PRIOR OBLIGATION.
EXCEPT AS PREVIOUSLY DISCLOSED TO MIDWEST,
PROCESSOR IS NOT UNDER CONTRACT OR OBLIGATION TO SELL, MARKET, CONSIGN OR
DELIVER ANY OF THE CO-PRODUCTS TO ANY OTHER PERSON, FIRM, ASSOCIATION,
CORPORATION OR OTHER ENTITY; AND
(D)
BIOTECH PRODUCT.
PROCESSOR WARRANTS AND REPRESENTS THAT IT WILL
NOT KNOWINGLY DELIVER, WITHOUT THE PRIOR WRITTEN CONSENT OF MIDWEST, ANY
CO-PRODUCT TO MIDWEST THAT IS PRODUCED IN WHOLE OR IN PART FROM BIOTECH SEED OR
OTHER GENETICALLY MODIFIED ORGANISMS USED BY PROCESSOR, PROCESSOR'S GROWERS, OR
WHICH IS IN ANY MANNER ACQUIRED BY PROCESSOR FROM ANOTHER PARTY ("BIOTECH
PRODUCT").
PROCESSOR SHALL INDEMNIFY, DEFEND AND HOLD MIDWEST AND EACH OF ITS
MEMBERS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND
AGENTS (EACH AN "INDEMNITEE") HARMLESS FROM AND AGAINST ALL LIABILITIES,
OBLIGATIONS, CLAIMS, DAMAGES, PENALTIES, CAUSES OF ACTION, COSTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES, PRODUCT RECALL
AND/OR RE-ROUTING EXPENSES AND OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL AND
PUNITIVE DAMAGES) (COLLECTIVELY, THE "LIABILITIES") IMPOSED UPON, INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEE THAT RESULT DIRECTLY FROM THE SUPPLY BY
PROCESSOR OF ANY BIOTECH PRODUCT TO MIDWEST PURSUANT TO THIS AGREEMENT.
17.
INDEMNIFICATION BY PROCESSOR.
PROCESSOR HEREBY AGREES TO INDEMNIFY
AND HOLD HARMLESS, MIDWEST, ITS MEMBERS, AND THEIR RESPECTIVE EMPLOYEES, FROM
AND AGAINST ANY CLAIMS, LOSSES OR LIABILITIES, INCLUDING ATTORNEYS FEES
INCURRED, ARISING OUT OF, OR RESULTING FROM, THE PRODUCTION, ON-SITE STORAGE OR
LOADING OF ANY PRODUCT WHICH IS MARKETED BY MIDWEST PURSUANT TO THIS AGREEMENT.
IN ADDITION, PROCESSOR SHALL DEFEND AND HOLD HARMLESS MIDWEST FROM ANY COSTS,
CLAIMS, LIABILITIES, SUITS OR OTHER PROCEEDINGS OR ACTIONS OF ANY KIND
WHATSOEVER, INCLUDING ATTORNEY FEES INCURRED, ARISING FROM OR CONNECTED WITH A
BREACH OF ANY OF THE REPRESENTATIONS CONTAINED IN SECTION 16 OF THIS AGREEMENT.
18.
REPRESENTATIONS BY MIDWEST.
MIDWEST HEREBY REPRESENTS AND WARRANTS
TO PROCESSOR THAT:
(a)
Cooperative Status.
MIDWEST is a grower-owned agricultural
cooperative which is organized and operated so as to adhere to the provisions of
Section 15(a) of the Agricultural Marketing Act (12 U.S.C. Sec. 1141j(a)), as
amended, and the Capper-Volstead Act of 1922 (7. U.S.C., Sec. 291, 292).
(b)
Member Agreements.
All other Members either have or will be
required to enter into identical pool marketing agreements for the marketing of
the Co-Products.
6
19.
COMPLETE AGREEMENT.
THE PARTIES AGREE THAT THERE ARE NO ORAL OR
OTHER CONDITIONS, PROMISES, REPRESENTATIONS OR INDUCEMENTS AT VARIANCE WITH ANY
OF THE TERMS HEREOF AND THAT THIS CONTRACT REPRESENTS THE VOLUNTARY AND CLEAR
UNDERSTANDING OF BOTH PARTIES FULLY AND COMPLETELY.
20.
ASSIGNMENT.
NEITHER PROCESSOR NOR MIDWEST MAY ASSIGN THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY.
21.
WAIVER OF BREACH.
NO WAIVER OF ANY OF THE AGREEMENTS OR PROVISIONS
CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO BE A WAIVER OF ANY SUBSEQUENT
BREACH OF THE SAME OR OF ANY OTHER PROVISION OF THIS AGREEMENT.
22.
NOTICES.
WHENEVER NOTICE IS REQUIRED BY THE TERMS HEREOF, IT SHALL
BE GIVEN IN WRITING BY DELIVERY OR BY CERTIFIED OR REGISTERED MAIL TO THE OTHER