Design/Build Agreement

EXHIBIT 10.1 DESIGN/BUILD AGREEMENT
BETWEEN
SISTER SCHUBERT' S HOMEMADE ROLLS, INC.
AND
SHAMBAUGH & SON, LP THIS AGREEMENT is effective as of the 6th day of March 2007, by and between Sister Schubert' s Homemade Rolls, Inc., an Alabama corporation, (hereinafter referred to as " the Owner" ), having its principal office at 1105 Schrock Road, P.O. Box 29163, Columbus, Ohio 43229 and Shambaugh & Son, LP,(hereinafter referred to as " Design/Builder" ), having its principal office at 7614 Opportunity Drive, P.O. Box 1287, Fort Wayne, Indiana 46801-1287. WHEREAS, the Owner intends to construct a Production Facility in Horse Cave, Kentucky, for yeast rolls and other bread type products, together with ancillary spaces and equipment purchase and installation as described in the Owner' s Criteria, hereinafter referred to as the " Project" ; and WHEREAS, the Owner desires the service of a Design/Builder to design, organize, coordinate, direct and construct the Project, and to assume all risks and responsibilities of producing the Project within a Guaranteed Maximum Price, as hereinafter defined; and WHEREAS, Design/Builder represents itself as having the skill, experience, expertise and resources necessary to provide the foregoing services; and WHEREAS, Design/Builder has previously undertaken the performance of certain services required in connection with the Project and included within the scope of this Agreement; NOW THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, the Owner and Design/Builder agree as follows: ARTICLE 1
GENERAL PROVISIONS The Design/Builder accepts the relationship of trust and confidence established between it and the Owner by this Agreement. It covenants with the Owner to furnish skill and judgment consistent with industry standards for projects of similar scope and complexity, and to cooperate in furthering the interests of the Owner. It agrees to furnish efficient business administration and superintendence and to use reasonable efforts to complete the Project in conformance with the terms of this Agreement and in the most expeditious and economical manner consistent with the interest of the Owner. 1.1 The Construction Team . The Design/Builder which is also the Architect/Engineer, and the Owner, called the " Construction Team" , shall work in accordance with this Agreement to complete design services, including, but not limited to, the Part I Report through Final Completion. The Design/Builder shall provide leadership to the Construction Team on all matters relating to design and construction. 1.1.2 Owner and Design/Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under this Agreement. 1.2 Design/Builder' s Organizational Plan . 1.2.1 The Owner and the Design/Builder agree that the services to be provided by the Design/Builder under this Agreement depend on the skills of the Design/Builder' s individual staff members and specific subconsultants proposed for the Project, and that the selection of the Design/Builder would not have been made by the Owner except for its confidence in the professional abilities of the Design/Builder and the specific personnel and subconsultants it has represented will be assigned to the Project. The Owner and the Design/Builder agree further that the aforesaid matters are substantial and material to this Agreement. The Design/Builder agrees and covenants that, to the extent within the Design/Builder' s control, the business organization of the Design/Builder, and the management and technical personnel represented as those to be performing the work under this contract, including those firms, venture

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partners, associates or consultants identified as performing design and construction management service, in accordance with the Part I Report, including the organizational chart, which is set forth in Exhibit #1 and made a part hereof, shall not be changed, nor shall the proportion of work or responsibilities be appreciably changed, without the prior written consent of the Owner, which consent shall be at the Owner' s discretion but not unreasonably withheld. Further, upon the reasonable request of the Owner, the Design/Builder shall replace any staff assigned to the Project with other qualified personnel. 1.2.2 Design/Builder covenants that all the Work shall be done in a good and workmanlike manner and that all Materials furnished and used in connection therewith shall be new and approved by the Owner, except as otherwise expressly provided for in the Drawings and Specifications. Design/Builder shall cause all Materials and other parts of the Work to be readily available as and when required or needed for or in connection with the construction, furnishing and equipping of the Improvements 1.2.3 The agreements between the Design/Builder and the persons or entities identified in this Agreement, and any subsequent modifications, shall be in writing. These agreements, including financial arrangements with respect to this Project, shall be promptly and fully disclosed to the Owner upon request. 1.2.4 Design services required by the Design/Builder under this Agreement shall be performed by qualified architects and other design professionals. The services of such design professionals shall be performed in a timely manner consistent with professional skill and care so as not to delay or hinder the progress of the Project. The Design/Builder represents, and the Owner acknowledges, that the design services under this Agreement shall be performed in accordance with prevailing professional standards, consistent with professional skill and care necessary for the proper and effective design of similar facilities of comparable size and in comparable areas. The contractual obligations of such professional persons or entities are the responsibility of the Design/Builder. 1.2.4.1 The Design/Builder shall provide design services in conjunction with the other services described under Article 2 of this Agreement, including but not limited to all architectural, civil, structural, mechanical and electrical engineering services for core, shell, warehousing and interior of the Project, design and engineering services necessary for lighting, security, code, directional and graphic signage, FF&E planning, layout and specification, voice/data infrastructure and distribution, landscaping, coordinating the Project with the requirements for equipment to be purchased and installed by the Owner, and any specialty consultant the Design/Builder deems necessary to complete the Project in a manner consistent with the Owner' s intended uses. 1.2.5 Construction budgets shall be prepared by qualified professionals, cost estimators or contractors. The contractual obligations of such professional persons or entities are the responsibility of the Design/Builder. 1.2.6 The Design/Builder shall be responsible to the Owner for acts and omissions of the Design/Builder' s employees, subcontractors and their agents and employees, and other persons, including the Architect and other design professionals, performing any portion of the Design/Builder' s obligations under this Agreement. 1.3 Extent of Agreement & Document Precedence . This Agreement represents the entire agreement between the Owner and the Design/Builder and supersedes all prior negotiations, representations or agreements. Nothing contained in this Agreement shall create a contractual relationship between the Owner and any person or entity other than the Design/Builder. When the Drawings and Specifications are complete, they shall be identified by amendment to this Agreement as the basis of the Guaranteed Maximum Price. Interpretation of this Agreement shall be governed by the following order of document precedence beginning with the highest: 1) this Agreement as may be amended in writing by the Owner and Design/Builder together with the Owner' s Criteria attached herein as Exhibit #2;and 2) assumptions and qualifications as may be specifically identified and mutually

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approved by the Owner and Design/Builder in establishing the Guaranteed Maximum Price and 3) the Part I Report as modified by the Contract Documents, including the Drawings and Specifications. 1.4 Miscellaneous Definitions" Agreement" or " Contract" means this Agreement as executed between the parties." Application for Payment" means the monthly billing submitted by the Design/Builder in accordance with the provisions of Article 11." Architect/Engineer" or " Architect" means those licensed professionals in the direct employ of the Design/Builder or a Design Consultant to the Design/Builder providing services in accordance with Section 1.2.4 herein." Change" or " Changes" has the meaning as applicable in Article 9." Construction Contingency" shall have the meaning as set forth in Section 6.5." Contract Documents" or " Construction Documents" consist of the bidding information and instructions, bidding forms, bid guarantees and performance bonds, General and Special Conditions, Drawings and Specifications prepared by the Design/Builder, and related documents necessary to define the scope and performance of the Work as prepared in cooperation between the Owner and Design/Builder as set forth in Section 2.2.4" Cost of Work" shall have the meaning as set forth in Section 8.1." Day" or " Days" shall mean calendar days unless otherwise specifically noted in this Agreement or in the Contract Documents." D/B Delay" means the total number of days of delay in meeting the timeline set forth in the Master Construction Schedule which were the fault of Design/Builder. The number of days of delay which are the fault of Design/Builder shall be determined by subtracting the number of days of duration for the work to be completed as set forth on the Master Construction Schedule from the number of work days (Monday through Friday) commencing at the time sufficient prerequisite work is completed to allow Design/Builder to commence its work until completion is achieved, provided that there shall be no days of D/B Delay counted if work on that portion of the project is completed by its designated finish date in the Master Construction Schedule." Design Consultant" is a qualified, licensed design professional who is not an employee of Design/Builder, but is retained by Design/Builder, or employed or retained by anyone under contract with Design/Builder or Subcontractor, to furnish design services required under the Contract Documents." Design/Builder" means Shambaugh & Son, LP." Design/Builder Compensation" has the meaning set forth in Article 7." Design Development" or " Design Development Documents" have the meaning as set forth in Section 2.2.3." Drawings and Specifications" means the documents prepared by the Architect/Engineer for the Schematic Design, Design Development and Construction Documents phases for the purpose of defining the scope and performance of the Work in combination with the balance of the Construction Documents, conforming to the standard of practice as set forth in Section 1.2.4 and as defined in Article 2 for each phase of design services, together with addenda, bulletins and other related documentation issued as necessary during the course of the Work." Estimate of Probable Cost" has the meaning as set forth in Section 2.2.7." Final Completion" is the date following Substantial Completion on which the Work is completed, including all necessary inspections, process and equipment testing, punch list work, all applicable permits are in

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place and all start-up activities have been completed, thereby allowing the Project in its entirety to be used for its intended purpose without condition or temporary period of time, and all compliance requirements of Factory Mutual have been satisfied." Final Application for Payment" is the Application for Payment following Final Completion of the Project for which the Design/Builder requests payment for the balance of all incurred costs in accordance with the Guaranteed Maximum Price and the provisions of Article 11." Fixed Limit of Cost" is the maximum cost amount most recently approved by the Owner as the budget limit for all elements of the Project designed, specified or constructed by the Design/Builder and included under this Agreement." Full Commercial Completion" means that the Project has been completed to the extent that Owner is able to produce saleable products on Line 1 and Line 2 at a full commercial production rate." General Conditions" and " Special Conditions" shall have the meanings as generally understood to represent those documents used in combination with the balance of the Construction Documents to set forth the terms and conditions for undertaking construction on the Site, subject to approval by the Owner." Guaranteed Maximum Price" is the amount set forth in Article 6." Hazardous Conditions" are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements. Hazardous Conditions shall not include (i) any substances brought onto the Site by Design/Builder and/or Subcontractor or Sub-subcontractor and (ii) any such substances which are handled and stored in accordance with applicable Legal Requirements." Interim Completion Dates" means the date(s) of Substantial Completion for a portion(s) of the Project as have been agreed upon in the Master Construction Schedule." Legal Requirements" are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project, the Site or the Work." Liquidated Damages Rate" has the meaning set forth in Section 5.4 of this Agreement." Master Project Construction Schedule" shall have the meaning as set forth in Section 2.2.6." Owner" is Sister Schubert' s Homemade Rolls, Inc." Owner' s Criteria" refers to the document prepared by the Owner dated July 20, 2004 and attached hereto in Exhibit #2." Partial Commercial Completion" means that the Project has been completed to the extent that Owner is able to produce saleable products in Line 1 at a full commercial production rate." Project" shall have the meaning as set forth in the recitals to this Agreement." Part I Report" mean the report dated October 6, 2006 prepared by the Design/Builder entitled Sister Schubert Bakery, Conceptual Engineer Design GMP together with the Project Cost tracking Summary dated December 11, 2006 (commonly referred to as " VE-7" by the parties) and the electronic files of drawings all of which are attached hereto as Exhibit I." Scheduled Completion Date" means September 15, 2007 which is the date which the Design/Builder is required to achieve Substantial Completion." Schematic Design" or " Schematic Design Documents" have the meaning as set forth in Section 2.2" Site" is the location of the Project in Horse Cave, Kentucky." Subcontractor" is any person or entity retained by Design/Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers.

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" Sub-Subcontractor" is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor' s Work and shall include materialmen and suppliers." Substantial Completion" shall have the meaning as set forth in Section 5.3 of this Agreement." Work" is all or part of the design, construction, furnishing and equipping for the Project to be completed by the Design/Builder under this Agreement, which shall include all aspects of the Project to be designed or specified as described herein." Work Product" shall mean the Construction Documents and all other documents as set forth in Section 15.3.1. ARTICLE 2
DESIGN/BUILDER' S SERVICES The Design/Builder will perform the following services under this Agreement as described in this Article. The Design/Builder shall designate a representative authorized to act on the Design/Builder' s behalf with respect to the Project. 2.1 Duties In General . The Design/Builder will provide management and coordination of the Work on the Project so that each component is completed on time and within the Guaranteed Maximum Price. 2.1.1 Establish and implement a comprehensive program including all appropriate direction, procedures, coordination, administration, review and expediting required to complete the Project in a timely, economical and acceptable manner. 2.1.2 Provide all services in compliance with all applicable federal, state and local laws, regulations and orders. 2.1.3 Provide all services promptly so as to permit the timely completion of each component of the Project. 2.1.4 Review all materials and equipment specified for the Project to ensure they are consistent with the Contract Documents, and notify the Owner if, in the opinion of the Design/Builder, such materials and equipment may not be adequate for the purpose for which they are specified. 2.1.5 Respond to all inquiries from the Owner or the Owner' s Representative in not more than two (2) business days from the date of the inquiry. Each response will adequately address the questions raised and, if requested, will be in writing; provided, however, that if two (2) business days is not a reasonable period of time for the Design/Builder to prepare the response, the time period will be extended to an adequate period. 2.1.6 The Design/Builder' s duties and obligations as set forth herein, and any liabilities arising hereunder, will at no time be diminished or released by reason of any approval by the Owner of any documents prepared by the Design/Builder, it being expressly understood that the Owner is at all times relying upon the Design/Builder' s skill and knowledge in preparing such documents. 2.1.7 Develop and enforce policies and procedures to prevent the presence, use or possession of unlawful drugs, controlled substances, weapons and explosives on the Site. 2.2 Preconstruction Services 2.2.1 Programming and Conceptual Design . 2.2.1.1 The Design/Builder shall visit the Site, become familiar with the local conditions, and correlate observable conditions with the requirements of the Owner' s program, schedule and budget. 2.2.1.2 The Design/Builder shall consult with the Owner, and other parties as the Owner may designate, to ascertain the applicable requirements of the Project and shall review the understanding of such

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requirements with the Owner, providing a preliminary evaluation of the Owner' s program and project budget requirements, each in terms of the other. 2.2.1.3 The Design/Builder shall review laws applicable to design and construction of the Project; correlate such laws with the Owner' s program requirements; and advise the Owner if any program requirements may cause a violation of such laws. 2.2.1.4 The Design/Builder shall document the applicable requirements necessary for the various Project functions or operations, including projected functional areas and relationships, architectural, mechanical, electrical and related special systems, and interior systems, furniture, furnishings and equipment. 2.2.1.5 The Design/Builder shall review with the Owner alternative approaches to design and construction of the Project. 2.2.1.6 The Design/Builder shall submit to the Owner the completed Project Program together with Conceptual Design Documents, a statement of the proposed Fixed Limit of Cost, and a proposed schedule for completion of the Project. Conceptual Design Documents shall consist of preliminary design drawings, outline specifications or other documents sufficient to establish the size, quality and character of the entire Project, its architectural, structural, mechanical and electrical systems, and the materials and such other elements of the Project as may be appropriate. Deviations from the Owner' s program shall be disclosed in the Proposal. This submission, together with any modifications required by the Owner shall, with the Owner' s approval, become the basis for Schematic Design. 2.2.2 Schematic Design Phase 2.2.2.1 The Design/Builder shall provide a further evaluation of the Program and the Project budget and schedule requirements, each in terms of the other. 2.2.2.2 The Design/Builder shall prepare for approval by the Owner Schematic Design Documents consisting of scaled drawings, outline specifications and other supporting information illustrating the scope and relationship of the principal site, architectural, structural, mechanical and electrical elements of the Project. 2.2.2.3 The Schematic Documents, at a minimum, shall consist of the following drawings and supporting information: a) Perspective sketch studies and study models to the extent required to convey the three-dimensional character of the architectural design; b) Architectural plans and sections illustrating the configuration and scale of all building levels and program spaces; c) Site Plans illustrating the relationship and scale of the building, the site, site elements and features including topography, landscaping, commercial access, pedestrian and vehicular circulation, parking and building services; d) Building Elevations; e) Structural sketches illustrating the framing methods and systems; f) Mechanical and electrical sketches illustrating the basic organization and distribution of building systems; g) Outline Specifications describing the size and components of the entire Project with respect to architectural, structural, mechanical, electrical, fire protection, building management, life safety, vertical transportation systems, materials and such other elements as may be appropriate; and h) Review of zoning codes, building codes, and any other statute, regulation, ordinance, rule or law of any governmental or regulatory authority applicable to the Project, to the extent ascertainable by due inquiry, including identification of all required governmental reviews, permits and approvals, to the extent ascertainable by due inquiry.

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2.2.2.4 At intervals appropriate to the progress of the Schematic Design Phase, the Design/Builder shall provide intermediate Schematic Design Documents to the Owner for review, which will be made in a timely manner so as to cause no delay to the Project. 2.2.2.5 Upon completion of the Schematic Design Phase, the Design/Builder shall prepare a corresponding cost estimate and schedule in accordance with Sections 2.2.2 and 2.2.3 for review by the Owner. Should the estimate differ from the Fixed Limit of Cost previously proposed by the Design/Builder, the Design/Builder shall identify the cause(s) for such difference and recommend in writing for the Owner' s approval any modification in the Schematic Documents necessary to conform the Estimate of Probable Cost to the Fixed Limit of Cost. 2.2.3 Design Development Phase 2.2.3.1 Based on the then current Owner approved Schematic Design Documents, Fixed Limit of Cost and Project schedule and any further adjustments in the scope or quality of the Project authorized by the Owner, the Design/Builder shall prepare for approval by the Owner, the Design Development Documents. The Design Development Documents shall conform to the organization, format and scale to be used for the completed Construction Documents, and shall at a minimum include: 1) revised and refined versions of all drawings, outline specifications and other documents listed under the previous Schematic Design Phase; 2) additional plan and section details, descriptions, drawings, specifications and documents sufficient to evaluate the functionality of all programmed, ancillary and incidental building spaces and site features; and 3) additional details, descriptions, drawings, specifications and documents sufficient to evaluate the quality, constructability, operation and cost of all major building systems, including architectural, structural, mechanical and electrical systems, materials, and all such other essential elements as may be necessary to define the scale, configuration and scope of the Project. 2.2.3.2 At intervals appropriate to the progress of the Design Development Phase, the Design/Builder shall provide intermediate Design Development Documents to the Owner for review, which will be made in a timely manner so as to cause no delay to the Project. 2.2.3.3 Upon completion of the Design Development Phase, prepare a corresponding cost estimate and schedule in accordance with Sections 2.2.2 and 2.2.3 for review by the Owner. Should the estimate differ from the Fixed Limit of Cost approved at the completion of Schematic Design, the Design/Builder shall identify the cause(s) for such difference and recommend in writing for the Owner' s approval any modification in the Design Development Documents necessary to conform the Estimate of Probable Cost to the Fixed Limit of Cost. 2.2.4 Construction Documents Phase 2.2.4.1 Based on the then current Owner approved Design Development Documents, Fixed Limit of Cost, Project Schedule and any further adjustments in the scope or quality of the Project authorized by the Owner, the Design/Builder shall prepare, for approval by the Owner, Drawings and Specifications setting forth in usual and customary detail the requirements for the construction of the Project. Specifications shall be prepared in conformance with the divisional format of the Construction Specifications Institute. The Drawings and Specifications shall be sufficiently complete, clear, and fully coordinated, and in compliance with all applicable codes, ordinances, statutes, laws and regulations, for the Design/Builder to fulfill its obligations pursuant to this Agreement. Specifications shall require Subcontractors to provide all necessary assistance in the utilization of equipment, systems, operation and maintenance manuals, and in training of the Owner personnel for operation and maintenance. 2.2.4.2 At intervals appropriate to the progress of the Construction Documents Phase, the Design/Builder shall provide intermediate Construction Documents to the Owner for review and approval, which will be made in a timely manner so as to cause no delay to the Project. 2.2.4.3 The Design/Builder shall inform the Owner of any changes in requirements or in construction materials, systems or equipment as the Drawings and Specifications are developed and make adjustments within the estimate of Project Cost and Project schedule appropriately.

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2.2.5 Consultation During Project Development . Schedule and attend regular meetings with its Architect and the Owner during conceptual and schematic design, design development and preparation of bid documents with respect to site use and improvements, selection of materials, building systems and equipment. Provide recommendations on construction feasibility, availability of materials and labor, time requirements for installation and construction, and factors related to cost including costs of alternative designs or materials, preliminary budgets and possible economies. 2.2.6 Scheduling . Develop a Master Project Construction Schedule, after consultation with the Owner. The Master Project Construction Schedule and each update thereto will establish and conform to the Owner' s occupancy requirements for the Project and be subject to the Owner' s approval. The Master Project Construction Schedule will coordinate and integrate the Design/Builder' s design efforts with the construction, material and equipment delivery and installation schedules for each part of the Project. The Master Project Construction Schedule will be updated at the end of the schematic design, design development and contract documents phases and will incorporate a detailed schedule for the construction operations of the Project, including realistic activity sequences and durations, time for the Owner reviews and approvals, allocation of labor and materials, processing of shop drawings and samples, delivery of products requiring long lead time procurement, and the Owner occupancy requirements showing portions of the Project having occupancy priority. The Master Project Construction Schedule shall be sufficiently detailed to allow for a full evaluation and understanding by the Owner. 2.2.7 Estimate of Probable Cost . Prepare a cost estimate as soon as major Project requirements have been identified, and update periodically for the Owner' s approval. Prepare an estimate based on a quantity survey of Drawings and Specifications at the end of the schematic design, design development and contract document phases for approval by the Owner as the Estimate of Probable Cost. Update and refine this estimate for the Owner approval as the development of the Drawings and Specifications proceeds. Advise the Owner if it appears the Estimate of Probable Cost will exceed the then current, approved Fixed Limit of Cost, and make recommendations for corrective action. Such construction cost estimates shall include reasonable and appropriate contingency amounts for potential increases in the cost which might result from design, bidding or price escalation, and shall be sufficiently detailed to allow for a full evaluation and understanding by the Owner. The Design/Builder shall recommend provisions in the Contract Documents for alternate bids to reduce, if necessary the construction cost to the approved Fixed Limit of Cost. 2.2.8 Coordination of Contract Documents . Review the Drawings a ...