Exhibit 10.9
FORM OF ACCESS AGREEMENT
THIS AGREEMENT is entered into effective the 1st day of
January, 1998 between CPC INTERNATIONAL INC., a Delaware
corporation ("CPC") and CORN PRODUCTS INTERNATIONAL, INC. a
Delaware corporation ("CPI").
WHEREAS, prior to the date hereof, the business of CPI was
a division of CPC;
WHEREAS, on December 31, 1997, CPI was spun-off from CPC
and is now an independent corporation;
WHEREAS, CPI is the owner of certain real property
including all buildings and improvements thereon located in
Xxxxxxx Xxxx, Xxxxxxxx and Summit, Illinois with an address of
0000 Xxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx (the "Property"); and
WHEREAS, CPI and CPC desire to enter into this Agreement to
allow CPC access to certain areas of the Property, more
specifically defined in Exhibit A hereof (the "Access Area") for
the purpose of conducting certain activities (the "Access
Activities").
NOW, THEREFORE, CPI and CPC agree as follows:
1.0 DEFINITIONS
As used herein, the following terms shall have the
meanings set forth below:
"Access Activities" shall mean those food packaging
activities and operations conducted by CPC
including but not limited to packaging of corn
oil, corn starch, corn syrup and related products
and all activities and operations necessary for
and associated therewith.
"Access Area" shall mean the area of the Property,
specifically delineated in Exhibit A hereof,
including but not limited to all buildings, access
roads, parking lots and railroad tracks, to which
CPC is granted access for the purposes of
conducting Access Activities.
"Access Fee" shall mean the fee payable to CPI by CPC
in accordance with Exhibit D hereof. The term
"Access Fee" shall include sums for services
provided to CPC by CPI and for goods or services
of third party vendors or contractors as indicated
in Exhibit D. Such amounts shall be invoiced by
CPI to CPC on a monthly or quarterly basis and
shall be subject to adjustment as indicated in
Exhibit D.
"Distribution Agreement" shall mean the Distribution
Agreement dated December 31, 1997 between CPC and
CPI.
"Master Supply Agreement" shall mean the Master
Supply Agreement dated January 1, 1998 between CPC
and CPI.
"Packaging Equipment" shall mean the equipment and
associated systems owned and operated by CPC in
the Access Area as listed on Exhibit C.
All other capitalized terms not defined herein shall
have the meanings set forth in the Distribution Agreement.
2.0 SCOPE
CPI grants to CPC, its officers, employees, authorized
representatives, agents, and authorized CPC vendors or
contractors the right to enter upon, move freely on and maintain
and operate Packaging Equipment in or on the Access Area at any
time and for any purpose associated with the Access Activities.
Specific entrances to the property to be used by CPC,
and CPC's visitors, vendors, and contractors are designated on
Exhibit A.
3.0 TERM
3.1 This Agreement shall have an initial term of five
(5) years beginning on January 1, 1998 through and including
December 31, 2002 (the "Initial Term") unless earlier terminated
pursuant to this Section 3.0.
3.2 This Agreement may be renewed for a term agreed
upon by the parties upon the written agreement of the parties. In
the event that negotiations with respect to a renewal are in
progress after the termination date of this Agreement, the term
of this Agreement shall continue until such time as a new
agreement is entered into or negotiations are terminated. If CPC
does not wish to renew this Agreement at the expiration of the
Initial Term, it shall give CPI notice thereof no later than
twelve (12) months prior to expiration of the Initial Term, and
CPC shall pay to CPI the Termination Fee set forth in Paragraph
3.5 below at the expiration of the Initial Term or any subsequent
renewal.
3.3 In the event that CPC or the assets or business of
the Best Foods Division of CPC are acquired by any third party,
whether by sale, transfer, merger, or otherwise, CPC shall give
CPI prompt written notice of said acquisition. CPI may terminate
this Agreement, without penalty to CPI and without payment by CPC
of the Termination Fee set forth in Paragraph 3.5 below, by
delivering written notice to CPC within six (6) months of CPI's
receipt of CPC's notice.
3.4. In the event that CPI or its North American corn
refining business is acquired by a third party competitor of CPC,
whether by sale, transfer, merger or otherwise, CPI shall give
CPC prompt written notice of said acquisition, and CPC may
terminate this Agreement without penalty, by delivering written
notice to CPI within six (6) months of CPC's receipt of CPI's
notice. In the event that CPI or its North American corn refining
business is acquired by a third party that is not a competitor of
CPC, whether by sale, transfer, merger or otherwise, CPI shall
give CPC prompt written notice of said acquisition and CPC may
terminate this Agreement by delivering written notice to CPI
within six (6)
Page 2
months of CPC's receipt of CPI's notice and payment of the
Termination Fee set forth in Paragraph 3.5 below.
3.5 CPC may, at its sole option and without cause,
terminate this Agreement at any time prior to the expiration of
the Initial Term by providing CPI with twelve (12) months written
notice and subject to a termination fee equal to the lesser of
$5,000,000 dollars or the cost of demolition of the buildings in
the Access Area ("Termination Fee"), said cost of demolition to
be determined by CPI. If CPI decides, in its sole discretion, to
perform said demolition, CPI shall have responsibility for all
aspects of the demolition. CPC's only obligation with respect to
said demolition shall be payment of the Termination Fee.
3.6 If at any time either party is in material breach
of any representation, warranty or obligation set forth herein,
the other party may terminate this Agreement upon sixty (60)
calendar days written notice, provided the breaching party failed
to take all reasonable measures to cure within the sixty (60)
days. In the case of a breach caused by a failure of either party
to comply with any provision of Section 8.0 or 9.0 below, if the
law provides a time period for correction of a violation without
imposition of any fine or penalty by the applicable governmental
or regulatory authority, such time period will be considered a
reasonable time for correction. In the event of termination of
this Agreement by CPI pursuant to this Paragraph 3.6, CPC shall
pay to CPI the Termination Fee.
4.0 ACCESS FEE
CPC shall pay to CPI an Access Fee in accordance with
Exhibit D hereof. At any time during the term of this Agreement,
the parties may add specific line items for additional services
to Exhibit D upon mutual written agreement. Should changes in the
Access Activities require changes in the services or service
charges set forth in Exhibit D, appropriate revisions to Exhibit
D shall be made upon mutual written agreement. CPI shall, upon
written request, provide to CPC all bills, invoices or other
documentation supporting any charges set forth in Exhibit D. The
administrative fee of $150,000.00 set forth in Exhibit D shall be
reviewed by the parties after the second year of the Initial
Term.
5.0 UTILITIES
5.1 CPI shall provide to CPC electricity, instrument
air, water (process and potable), steam, natural gas, sewer and
fire suppression system in accordance with Exhibit B and Exhibit
D hereof. CPI makes no representations, warranties or guarantees
with respect to the quality of those utilities that are not
generated by CPI unless defects in the quality of said utilities
is caused in any way by negligent or willful acts or omissions of
CPI. With respect to the quantity of those utilities that are not
generated by CPI, CPI represents, warrants and guarantees that,
provided it receives said utilities at the quantity and rate
received in 1997, it will provide said utilities to CPC in
accordance with Exhibit B and Exhibit D, or in a prorated amount
commensurate with that amount which CPI receives. With respect to
the quality and quantity of those utilities that are generated by
CPI, CPI represents and warrants that it will use its best
reasonable efforts to meet the quality and quantity standards set
forth in Exhibit B and Exhibit D hereof. CPI shall notify CPC in
advance, or as soon as practicable, of any utility outages and
shall take reasonable steps to resolve those outages. CPI shall
use good
Page 3
faith in scheduling required outages in a manner that will not be
unduly detrimental to CPC. CPI MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING
THE UTILITIES TO BE PROVIDED TO CPC UNDER THIS ARTICLE 5.0 OTHER
THAN THOSE SET FORTH EXPRESSLY IN THIS PARAGRAPH 5.1. CPI's
liability for breach of warranties or representations provided in
this Paragraph 5.1 shall be limited to the value of the utilities
not provided or the difference in value between the utilities
provided and the utilities described in Exhibit B and Exhibit D.
5.2 For the purposes of metering and measuring the
electricity, instrument air, steam and natural gas utilities
delivered by CPI to CPC set forth in Exhibit B and Exhibit D, CPI
shall furnish, install, maintain, calibrate and read certain
metering devices ("Metering Devices" or "Devices"). The number,
type, operation and location of such Devices shall be mutually
agreed upon by the parties and shall then be set forth in Exhibit
A to this Agreement.
5.3 The Devices will be sealed. CPI will provide CPC
with access to the Devices at any time upon reasonable notice,
but readings, inspections, tests and adjustments thereof shall be
done by employees or agents of CPI. A Device seal shall be broken
only by CPI and only when a Device is to be inspected, tested, or
adjusted; provided, however, that CPC will receive reasonable
prior notice thereof and will have the right to be present at
such inspection, testing or adjustment. CPI shall periodically
inspect and test its Devices at intervals not to exceed six
months and shall provide CPC with information concerning the
results of such testing. CPC at any time may request
additional testing with respect to the Devices. Upon receiving
such written request, CPI shall promptly schedule a test of the
Device and give to CPC reasonable notice of the time of the test.
The cost of such additional testing shall be borne by CPC in the
month in which such additional testing occurs, except that if the
percentage of error is found to be greater than 2.5 percent in
the case of Metering Devices for electricity, greater than 2.5
percent in the case of Metering Devices for steam, greater than
1.5 percent in the case of Metering Devices for instrument air,
and greater than 1.5 percent in the case of Metering Devices for
natural gas, the costs of such additional testing shall be borne
by CPI.
5.4 CPC shall have the right to install and operate
metering devices at the CPC interconnection points downstream of
the Devices. All readings, inspections, tests, adjustments and
maintenance of the metering devices installed by CPC under this
provision shall be the sole responsibility of CPC.
5.5 If a Device fails to register, or if the
measurement made by a Device is found upon testing to be
inaccurate, the Device will be adjusted as soon as practicable
so as to read accurately.
5.6 If the percentage of error is found pursuant to
Paragraph 5.3 to be greater than 2.5 percent in the case of
Metering Devices for steam, greater than 2.5 percent in the case
of Metering Devices for electricity, greater than 1.5 percent in
the case of Metering Devices for instrument air, or greater than
1.5 percent in the case of Metering Devices for natural gas, an
adjustment shall be made to the records for such Device at the
rate of such inaccuracy for (a) the actual period during which
inaccurate measurements were made, if that period can be
determined to the mutual satisfaction of the parties; or (b) if
the actual period or
Page 4
rate cannot be determined to the satisfaction of the parties,
the CPC devices shall be tested for accuracy, and if found
to be accurate or less inaccurate than the Devices, the CPC
devices and the previous records of the CPC devices shall then be
used to the extent practicable to establish the period and extent
of the inaccuracy of the Devices; or (c) in the event neither (a)
nor (b) is applicable, a period extending backward one-half of
the number of days since the previous test of the particular
Device, but in no event, however, greater than 90 days.
5.7 If the percentage of error is found pursuant to
Paragraph 5.3 to be less than 2.5 percent in the case of a
Metering Device for steam, less than 2.5 percent in the case of a
Metering Device for electricity, greater than 1.5 percent in the
case of Metering Devices for instrument air, or greater than 1.5
percent in the case of Metering Devices for natural gas, there
shall not be an adjustment pursuant to this paragraph with
respect to the current billing period, and all previous records
of the Device shall be considered to be accurate in measuring
deliveries hereunder.
5.8 If the percentage of error is not ascertainable by
calibration, tests, the CPC devices or mathematical calculation,
then the adjustment to be made to the records for such Device
shall be made by estimating the adjustment on the basis of
deliveries during periods under similar conditions when the
Device was registering accurately.
5.9 If, upon testing, any of the Metering Devices or
CPC metering devices should be found inaccurate, the Device or
CPC metering device, as the case may be, shall be calibrated at
once to record accurately.
6.0 MAINTENANCE AND REPAIRS
6.1 CPC shall maintain and keep in good repair and
condition all buildings in the Access Area, including the loading
docks, in compliance with law and to the same standard of repair
as applicable to Best Foods' manufacturing facilities.
6.2 CPI shall maintain and keep in good repair and
condition all outside areas of the Property including the Access
Area, and all buildings on the Property not subject to Section
6.1 above.
6.3 For those maintenance and repair obligations for
Building No. 44 that are common or applicable to the entire
building, CPI and CPC shall agree in writing as to the standard
of repair and maintenance and the allocation of costs thereof.
6.4 CPI shall maintain and keep in good repair CPI's
utility systems providing CPC with electricity, instrument air,
water (process and potable), steam, natural gas, sewer and fire
suppression in accordance with Exhibit B hereof.
6.5 CPC shall maintain and keep in good repair those
portions of CPI's utility systems to the extent set forth in
Exhibit B hereof.
6.6 CPI and CPC shall provide each other written
notification of any perceived maintenance need for any item for
which either party is responsible.
Page 5
6.7 CPC shall maintain and keep in good repair all
Packaging Equipment. CPC shall operate all Packaging Equipment
consistent with the pollution control devices or pre-treatment
equipment and/or any permits, licenses or registrations for the
Access Area which CPI is responsible for maintaining. CPC shall
shut down all or part of the Packaging Equipment if such shutdown
is required by law or if such shutdown is reasonably required to
avoid non-compliance with the law. The parties shall cooperate
with each other in scheduling shutdowns required for repair or
maintenance of pollution control devices or pre-treatment
equipment. CPI shall perform said repair or maintenance as
expediently as possible so as to minimize the interruption to
CPC's Access Activities. CPC shall be liable to CPI for any
damages caused to pollution control devices or pre-treatment
equipment due to violation of any said permits, licenses or
registrations or resulting from CPC's willful or negligent breach
of this Paragraph 6.7.
6.8 CPC shall be responsible for notifying all
personnel with access to the Access Area, including the employees
of CPI or third parties, of any known hazards in the Access Area,
whether those hazards were caused, directly or indirectly, by
CPC, by CPI, or by a third party. CPC shall take all reasonable
steps to protect any such personnel from injury in the Access
Area, including but not limited to the prompt correction or
repair of any potentially hazardous or dangerous situation for
which it has maintenance responsibilities under this paragraph.
CPC shall take all necessary precautions to prevent the
occurrence of any injury to persons or damage to property due to
the Access Activities, except to the extent that any such injury
or damage is due to the negligent or willful acts of CPI.
6.9 The maintenance obligations and costs thereof set forth
in this Section 6 shall not duplicate those obligations and costs
set forth in Exhibit D hereto.
7.0 DAMAGE TO OR DESTRUCTION OF PREMISES
If during the term of this Agreement the Access Area
is damaged by fire, flood, windstorm, strikes, riots, civil
commotions, acts of public enemy, acts of God, or other casualty
so that the same are rendered wholly unfit for the Access
Activities, and if said Access Area cannot be repaired within
sixty (60) days from the time of such damage, or in some other
reasonable time period agreed to by the parties, then this
Agreement, at the option of CPC, may be terminated as of the date
of such damage. In the event CPC elects to terminate the
Agreement, CPC shall pay the Access Fee, apportioned to the time
of such damage, and shall immediately surrender the Access Area
to CPI and CPC shall be relieved from any further liability
hereunder. If CPC does not elect to terminate this Agreement or
if any damage by any of the above casualties, rendering the
Access Area wholly unfit, can be repaired within sixty (60) days
thereafter, or in some other reasonable time period agreed to by
the parties, CPI agrees to repair such damage promptly and this
Agreement shall not be affected in any manner except that the
Access Fee shall be suspended and shall not accrue from the date
of such damage until such repairs have been completed; however,
CPC shall continue to pay any portion of the Access Fee which is
based upon actual costs which continue to be incurred prior to
completion of the repairs. If said Access Area shall be so
slightly damaged by any of the above casualties as not to be
rendered wholly unfit for occupancy, CPI shall repair the Access
Area promptly and during the period from the date of such damage
until the repairs are completed, the Access Fee shall be
apportioned so that CPC shall pay an
Page 6
amount which bears the same ratio to the entire Access Fee as the
portion of the Access Area which CPC is able to utilize without
disturbance during the period bears to the entire Access Area. If the
damage by any of the above casualties is so slight that CPC is not
disturbed in its Access Activities, then same shall be promptly
repaired by CPI and in that case, the Access Fee accrued or accruing
shall not xxxxx. CPI's obligations to repair damages under this Section
shall be limited to the dollar amount of any insurance proceeds
which are actually received by CPI specifically as a result of
the damage to or destruction of the Access Area buildings or
portions of the Access Area for which CPI has maintenance
obligations under this Agreement; however, if CPI insures the
buildings in the Access Area for less than reasonable replacement
cost, CPI shall be required to repair damages and rebuild under
this paragraph to the replacement cost of the buildings, minus
any environmental remediation of or debris removal from the
Access Area specifically required for rebuilding.
8.0 COMPLIANCE WITH LAWS
8.1 CPI shall comply with all federal, state and local
laws, regulations, ordinances, codes and orders applicable to CPI
that affect the Access Area including, but not limited to, OSHA
and environmental laws, regulations and orders.
8.2 CPC shall comply with all federal, state and local
laws, regulations, ordinances, codes and orders applicable to CPC
that affect the Access Area or Access Activities, including but
not limited to OSHA and environmental laws, regulations and
orders. CPC shall comply with all safety rules established by CPI
for the exterior portions of the Access Area to the extent said
rules are reasonably applicable. CPC shall prepare an Emergency
Action Plan, as required by law, governing the Access Activities
and Access Area and shall annually submit a copy of that plan to
CPI. CPC shall establish its own safety rules for the interior
portions of the Access Area, including but not limited to its
Packaging Equipment. The parties shall mutually agree on safety
rules applicable to Building No. 44. CPC shall be responsible for
ensuring compliance with all safety rules by its employees,
contractors, vendors, and visitors. Both CPC and CPI
shall be responsible for their own vendor or contractor
qualification or selection procedures, if any, and vendors or
contractors for one party shall not be required to comply with
qualification or selection procedures of the other party.
8.3 CPC shall provide CPI with notice of any
governmental or third party inquiry or notice involving CPC's
Access Activities and the Access Area and provide CPI with all
written communications regarding same. CPC shall not (a) share
any information concerning CPI with any governmental authority or
agency, or (b) apply to or attempt to obtain from any
governmental authority or agency, any variation from or revision
to any safety, health, or air, water, land or noise pollution law
or regulation relating to the performance of this Agreement,
without CPI's prior written approval. In the event CPC is under a
duty, pursuant to any applicable law, statute, regulation or
order, to report information concerning CPI's activities under
this Agreement to any governmental authority or agency, CPC shall
not make such report without first advising CPI thereof, unless
CPC is under duty to immediately report such information, in
which case it will notify CPI as soon as possible.
Page 7
8.4 CPI shall provide CPC with notice of any
governmental or third party inquiry or notice involving the
Access Area and provide CPC with all written communications
regarding same.
8.5 Both CPI and CPC shall maintain all documents or
records required by law to show compliance with this Section 8.0
and Section 9.0 below. Each party shall make those documents or
records available to the other upon request, but no later than
two (2) business days after receipt of a written request for
review of the documents or records.
9.0 PERMITS, LICENSES & REGISTRATIONS
9.1 CPI shall be responsible for maintaining all
existing air, water, and sanitary discharge permits and
authorizations for the Access Activities and the Access Area and
CPI shall own, operate and maintain all existing pretreatment or
pollution control equipment for the Access Area and the Access
Activities. CPI shall make a good faith effort to modify existing
air, water or sanitary discharge permits or obtain any new air,
water, or sanitary discharge permits agreed by the parties to be
necessary or beneficial, subject to the environmental consulting
fee outlined in Exhibit D. CPI shall notify CPC of any
applications, amendments, modifications or renewals of any air,
water and sanitary discharge permits and authorizations affecting
the Access Activities or Access Area and provide CPC the
opportunity to participate and comment on said application,
amendment, modification or renewal.
9.2 CPC shall conduct all Access Activities consistent
with all permits, licenses or approvals held by CPI, where
applicable.
9.3 CPC shall be responsible, as required by law, for
all waste or hazardous materials, including waste or materials
brought into the Access Area or generated by CPC or its vendors
or contractors, except for those materials permitted by CPI for
discharge to air or sewer. CPI shall be responsible, as required
by law, for all waste or hazardous materials brought into the
Access Area or generated by CPI or its vendors or contractors.
9.4 CPI shall indemnify and hold CPC harmless from any
and all damages, penalties, fines, costs, expenses or claims
incurred by CPC should CPC be required to cease or limit any
Access Activity due in any way to CPI's negligent or willful
failure to fulfill its obligations under Section 9.1.
10.0 EQUIPMENT
10.1 CPI shall allow CPC to maintain and operate the
Packaging Equipment in the Access Area. In the event that CPC
wishes to install additional packaging equipment or fixtures or
building modifications relating to the Access Activities,
including but not limited to installation of a new fire
suppression system or fire suppression devices, which will impact
upon any existing CPI permit or license, will require a new
permit or license, or will change CPC's utility usage, CPC shall
obtain CPI's prior written authorization, which will not be
unreasonably withheld, prior to installation. For all other
packaging equipment to be added by CPC, CPC shall provide prior
written notice to CPI. The parties shall amend Exhibit C no less
than annually, if necessary, to reflect any packaging equipment
added pursuant to this
Page 8
Section. CPC shall indemnify and protect CPI from any liens,
claims, or encumbrances imposed upon the Property as a result
of the Access Activities or CPC's installation of fixtures,
modifications, or equipment. CPC shall be liable to CPI for an
increase in property or other taxes imposed upon CPI due to the
addition by CPC of fixtures, building modifications, or Packaging
Equipment in the Access Area, unless the parties agree otherwise in
writing prior to installation of the fixture, modification or
equipment. CPC shall have no obligation to notify or obtain approval
from CPI for equipment installation which commenced prior to
January 1, 1998.
10.2 CPC shall own and maintain the Packaging
Equipment in the Access Area, as set forth in Exhibit C, and
packaging equipment installed after the date of this Agreement
and shall retain ownership of and remove said equipment at CPC's
cost upon termination of this Agreement, unless otherwise agreed
to by CPC and CPI in writing. For fixtures and modifications
installed after the date of this Agreement, the parties will
agree in writing prior to installation as to who will retain
ownership of said fixtures and modifications, whether said
fixtures or modifications will be removed upon termination of
this Agreement, and the standard for restoration of the area of
the plant where the fixtures and modifications were located. Any
Packaging Equipment in the Access Area, as set forth in Exhibit
C, removed by CPC pursuant to this Agreement shall be at CPC's
own expense and CPC shall restore the area of the plant where the
Packaging Equipment was located to reasonable working condition.
11.0 SERVICES OF THIRD PARTY VENDORS
Exhibit D outlines certain shared services, including
but not limited to snow removal, security, street sweeping and
dust control, and road repair, which will be provided to CPC and
CPI by third party vendors or contractors. The scope of any such
services, including the frequency and means of providing services
and the quality standards for such services, are governed by the
contract or agreement with the third party vendor. CPI makes no
warranties, representations, or guarantees regarding the services
of third party vendors or contractors who will be performing
services outlined in Exhibit D. Any additional third party
services or any additional services required from the third party
vendors performing services outlined in Exhibit D required by CPC
or CPI shall be at the cost of the party requiring such
additional services.
Nothing contained herein shall create third party
beneficiary rights in any third party.
12.0 INDEMNITY
12.1 CPC shall hold harmless and indemnify and defend
Corn Products Indemnitees from and against any and all
Indemnifiable Losses based upon or arising out of any bodily
injury or death of any person (including any CPC employee),
damage to or destruction of any property, including adverse
effects on the environment, or any violation of law, regulation
or order to the extent that such damage was caused by CPC's
negligence or CPC's breach of any warranty, representation or
obligation under this Agreement. Nothing herein shall require CPC
to indemnify CPI for CPI's own negligence.
Page 9
12.2 CPI shall hold harmless and indemnify and defend
CPC Indemnitees from and against any and all Indemnifiable Losses
based upon or arising out of any bodily injury or death of any
person (including any CPI employee), damage to or destruction of
any property, including adverse effects on the environment, or
any violation of law, regulation or order to the extent that such
damage was caused by CPI's negligence or CPI's breach of any
warranty, representation or obligation under this Agreement.
Nothing herein shall require CPI to indemnify CPC for CPC's own
negligence.
12.3 This indemnity shall only apply to actions of, or
conditions caused by, either party on or after January 1, 1998
arising out of the activities under this Agreement.
13.0 ASSIGNMENT
CPC may assign its rights under this Agreement to a
third party with the written consent of CPI, and CPI's consent
shall not be unreasonably withheld, delayed or conditioned.
14.0 COOPERATION OF PARTIES
The parties hereto acknowledge that they are entering
into an agreement in which the cooperation of both parties will
be required. If, during the term, changes in the operations,
facilities or methods of either party will materially benefit a
party without detriment to the other party, or where the
benefiting party agrees to hold the other harmless from such
detriment, the parties commit to each other to make reasonable
efforts to cooperate and assist each other. The parties hereto
further acknowledge and understand that they operate businesses
that are significantly different and that any and all obligations
under this Agreement shall be conducted and enforced considering
said acknowledgment and understanding.
CPC shall provide CPI notice of any labor disturbances
or strikes involving CPC employees, vendors, or contractors
working in the Access Area. CPC shall comply with CPI's
reasonable instructions with regard to entrances to be used
during a strike or labor disturbance or other impacts upon CPI or
the Property during the strike or labor disturbance.
15.0 CONFIDENTIALITY
All information concerning CPC or CPI in either
party's possession shall be subject to the confidentiality
provisions of Section 4.4 of the Distribution Agreement.
16.0 INSURANCE
During the term of this Agreement, CPC shall maintain
in full force and effect at its own expense the following
insurance in at least the amounts indicated:
16.1 CPC shall comply with all requirements of the
Workers' Compensation laws of the state(s) in which work is
performed hereunder. CPC will obtain at its own cost insurance
sufficient to discharge its obligations under all applicable
workers compensation
Page 10
laws and covering all CPC employees engaged in the Access Activities.
CPC will obtain at its own cost Employer's Liability Insurance with a
limit of $100,000 per person.
16.2 CPC shall procure and maintain, at its sole cost
and expense, at all times while performing hereunder,
comprehensive general liability insurance, on an occurrence
basis, with a reputable and financially responsible insurance
carrier(s) satisfactory and acceptable to CPI with minimum policy
limits of $2,000,000 per occurrence for property damage and
$2,000,000 per occurrence for bodily injury (including injury
resulting in death) and shall name CPI as an additional insured
under that policy. This insurance shall include blanket
contractual liability coverage and shall specifically cover the
liability assumed by CPC in this Agreement. This insurance shall
include products and completed operations coverage and personal
injury liability coverage.
16.3 CPC agrees to carry an excess liability policy
with a limit no less than $25,000,000, and on which CPI is
endorsed as additional insured.
16.4 CPC shall bear all costs of the insurance
coverage set forth herein, including but not limited to the costs
of any amounts deductible, retained or self-insured under the
required policies. Failure to keep the required insurance
policies in full force and effect or to self-insure during the
term of this Agreement shall constitute a material breach of this
Agreement.
16.5 CPC shall provide to CPI insurance certificates
and endorsements acceptable to CPI evidencing the above
insurance; however, the failure of CPC to provide such evidence
shall not operate as a waiver or amendment of these insurance
requirements. The furnishing of evidence of the above insurance
requirements by any certificate or endorsement that is not in
conformance with the requirements of this Article or the failure
to furnish such evidence shall not constitute a waiver or an
amendment of such requirements. In the event that any of CPC's
insurance policies expire during the term of this Agreement, CPC
shall deliver certificates and endorsements for renewed insurance
to CPI. Nothing contained in this section shall operate as a
satisfaction or limitation of either party's liability in tort or
contract or in any way modify or limit the obligations in Section
12.0.
16.6 In the event that any insurance provision in a
contract of insurance between CPC and its insurance company is to
any extent determined to be void or unenforceable, such
circumstance shall not otherwise affect the validity or
enforceability of such contract of insurance, which shall be
enforced to the fullest extent permitted by law.
16.7 CPI shall procure and maintain, at its sole cost
and expense, workers compensation and employers liability
insurance, in all states governed by this agreement, sufficient
to comply with the laws in those states. CPI shall obtain, at its
sole cost and expense, employers liability insurance with a limit
of at least $1,000,000 per person.
16.8 CPI shall procure and maintain, at its sole cost
and expense, as long as this Agreement is in effect,
comprehensive general liability insurance on an occurrence basis,
with a reputable and financially sound insurance carrier(s)
satisfactory and acceptable to CPC with a minimum policy limit of
$2,000,000 per occurrence for property damage and
Page 11
$2,000,000 per occurrence for bodily injury, including injuries
resulting in death, and shall name CPC as an additional insured
under that policy. This insurance shall include blanket
contractual liability coverage, and shall specifically cover the
liability assumed by CPI through this Agreement. This insurance
shall include products and completed operations coverage and
personal injury liability coverage.
16.9 CPI shall carry excess liability insurance with a
limit of no less than $25,000,000 on which CPC is endorsed as an
additional insured.
16.10 CPI shall bear all costs of its insurance
coverage set forth herein, including but not limited to the costs
of any deductible amounts, and retained or self-insured amounts,
under the required policies. Failure to keep the required
insurance policies in full force and effect or to self-insure
during the term of this Agreement shall constitute a material
breach of this Agreement.
16.11 CPI shall provide to CPC insurance certificates
acceptable to CPC evidencing the above insurance. In the event
that any of CPI's insurance policies expire during the term of
this Agreement, CPI shall deliver certificates for renewed
insurance to CPC. Nothing contained in this section shall operate
as a satisfaction or limitation of either party's liability in
tort or contract, or in any way modify or limit the obligations
in Section 12.
16.12 CPC and CPI shall each individually maintain
property insurance covering its respective assets governed by
this Agreement, including but not limited to its own process or
packaging equipment or other personal property. CPC and CPI agree
that their respective insurance carriers shall not be subrogated
to their respective rights against each other in connection with
this Agreement and neither party shall execute any document
granting such right of subrogation.
16.13 In the event that CPC wishes to perform
significant construction activities in the Access Area, CPC shall
obtain an Owners and Contractors Protective Liability policy, on
an occurrence basis, with a reputable and financially responsible
insurance carrier(s) satisfactory and acceptable to CPI with
minimum policy limits sufficient to cover the risk of property
damage and bodily injury (including injury resulting in death)
and contractual liability hereunder for that construction project
and shall name CPI as an additional insured under that policy,
provided said policy is commercially available and the cost of
said policy is reasonable.
16.14 Any insurance policy of a party which is
endorsed to name the other party as an additional insured shall
provide that the insurance of the party indemnifying the other,
under Section 12.0, shall be primary to any other insurance of
the additional insured.
16.15 The certificates of insurance and endorsements
required to be provided by a party under this Section 16.0 shall
state that the policies are in effect and will not be cancelled
or non-renewed without 30 days' prior written notice to the other
party. In the event of a claim, copies of the policies shall be
supplied to the party claiming indemnification upon request.
Page 12
17.0 INSPECTION
CPI shall have the right to enter upon the Access Area
for any activity associated with this Agreement, except that CPI
shall only enter a building where Access Activities are being
conducted at reasonable times and upon reasonable notice to CPC.
Notwithstanding the foregoing, if CPI determines an emergency
situation exists and that entry into a building where Access
Activities are being conducted is necessary, CPI may enter that
building and provide CPC notice as soon as is practicable. Except
as required in an emergency situation or to prevent any violation
of Sections 8.0 or 9.0 above, any CPI activity in the Access Area
shall not unreasonably interfere with the Access Activities. An
emergency situation shall be one in which there is an
unreasonable risk of harm to persons or damage to property or a
violation of law.
Upon request from CPC, CPI shall allow CPC to enter
upon areas of the Property outside of the Access Area at times
and locations mutually agreed to by the parties for the purpose
of inspecting CPI activities, other than those involving Metering
Devices, associated with Article 5.0 above.
18.0 DISPUTE RESOLUTION
Any dispute, controversy or claim in connection with
this Agreement shall be resolved in accordance with Article VII
of the Distribution Agreement.
19.0 FORCE MAJEURE
If performance by either party of any of its duties or
obligations under this Agreement is prevented, hindered, delayed
or otherwise made impracticable by reason of any strike, flood,
riot, fire, explosion, equipment failure that is beyond the
party's control, war or any other casualty which cannot be
overcome by reasonable diligence and without unusual expense,
such party shall be excused from such performance to the extent
that it is so prevented, hindered or delayed thereby during the
continuance of any such happening or event and for so long as
such event shall continue to prevent, hinder or delay such
performance; provided, however, that such party diligently works
to cure such non-performance in the shortest reasonable time
period. The party asserting force majeure shall, in each
instance, give the other party written notice within a reasonable
time after knowledge thereof. Such notice shall include a brief
description of the events or circumstances of force majeure and
an estimate of the anticipated duration. Within a reasonable time
after knowledge of the cessation of any such continuing events or
circumstances constituting force majeure, the party that asserted
the same shall give the other party written notice of the date of
such cessation.
20.0 NOTICES
Any notice to be given hereunder by either party shall
be in writing and shall be deemed given when: (i) sent by
registered mail, return receipt requested upon receipt by the
sender of confirmation of receipt; (ii) sent by telecopy upon
receipt by the sender of confirmation of transmittal; or (iii)
delivered to the addressee as follows:
Page 13
In the case of CPC to: CPC International Inc.
X.X. Xxx 0000, Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In the case of CPI to: Corn Products International, Inc.
Corporate Xxxxxx
X.X. Xxx 000, 0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may from time to time designate by written
notice to the other revised address or telecopy information.
21. SEVERABILITY
The invalidity or unenforceability of any particular
provision of this Agreement shall not affect any other provisions
hereof, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted.
22. HEADINGS
The headings of this Agreement are for the convenience
of the parties, and shall not be construed as having any legal or
binding meaning or effect.
23. NO WAIVER
The failure by either party to insist upon strict
performance of any covenant or condition of this Agreement, in
any one or more instances, shall not be construed as a waiver or
relinquishment of any such covenant or condition in the future,
but the same shall be and remain in full force and effect.
24. SURVIVAL
Notwithstanding any termination of this Agreement the
provisions of Sections 12, 15 and 18 shall survive such
termination.
25. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and
agreement between the parties hereto with respect to the subject
matter hereof, and cancels and supersedes any prior negotiations,
and merges all understandings, and agreements, whether verbal or
written, with
Page 14
respect thereto. This Agreement can be amended only
by a written instrument executed by the parties hereto.
26. EXHIBITS
All exhibits referred to in, and attached to this
Agreement are hereby made a part of this Agreement.
27. CHOICE OF LAW
THIS AGREEMENT SHALL, IN ALL RESPECTS, BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY, EFFECT
AND PERFORMANCE, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICT OF LAWS THEREOF.
28. RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be construed
to create any relationship of partnership, employer or employee,
or create a joint venture between or among the parties hereto.
With respect to this Access Agreement and the Access Activities,
neither CPC nor CPI shall be responsible for the debts,
operations, liabilities or any other obligations of the other and
neither CPC nor CPI has authority to bind or act on behalf of the
other, except as otherwise provided in this Agreement. Neither
CPC nor CPI nor their respective agents, employees or
subcontractors shall be deemed agents or employees of the other.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
CPC INTERNATIONAL INC.
By: ___________________________________
Title: _________________________________
CORN PRODUCTS INTERNATIONAL, INC.
By: ____________________________________
Title: __________________________________
Page 15
