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EXHIBIT 99.4
TRANSITION SERVICES AGREEMENT
(FOOD SERVICE DISTRIBUTION)
THIS TRANSITION SERVICES AGREEMENT (FOOD SERVICE DISTRIBUTION)
("Services Agreement") is entered into as of this 1st day of September, 2000, by
and between DEL MONTE CORPORATION, a New York corporation ("Del Monte"), and
UNIMARK FOODS, INC., a Texas corporation ("UniMark"). Del Monte and UniMark are
sometimes hereinafter collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, Del Monte and UniMark have entered into an Asset
Purchase Agreement (the "Acquisition Agreement") dated as of the 25th day of
August, 2000, relating to the purchase by Del Monte of the Purchased Assets (as
defined in the Acquisition Agreement); and
WHEREAS, pursuant to the Acquisition Agreement Del Monte has
purchased UniMark's former distribution center located in McAllen, Texas (the
"McAllen Distribution Center"); and
WHEREAS, UniMark has requested, and Del Monte has agreed, to
allow UniMark to continue to use the McAllen Distribution Center for a limited
time as a distribution center for UniMark's food service products in the United
States; and
WHEREAS, UniMark is interested in retaining Del Monte during a
limited transitional period to manage the U.S. distribution of UniMark's food
service products from the McAllen Distribution Center.
NOW, THEREFORE, the Parties, intending to become legally
bound, hereby agree as follows:
SECTION 1
Definitions
For the purposes of this Services Agreement, the following capitalized
terms shall have the meanings assigned to them below. Capitalized terms not
defined below shall have the meanings ascribed to them in the Acquisition
Agreement.
1.1 "Business" shall mean the business of selling processed fruit
products to food service customers and industrial accounts in the United States
as previously conducted by UniMark.
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1.2 "Service" or "Services" shall mean those services described on
Schedule A or otherwise provided by Del Monte pursuant to Section 2.1.
1.3 "Services Agreement" shall mean this contract between the Parties
and all Schedules hereto.
SECTION 2
Agreement to Sell and Buy
2.1 Provision of Services. Del Monte shall provide to UniMark the
services listed and described on Schedule A. In addition, Del Monte shall
furnish to UniMark such other services as UniMark may reasonably request and to
which Del Monte shall reasonably agree, that are necessary to conduct and
operate the Business at substantially the same level as conducted by UniMark
immediately prior to the date of this Services Agreement, provided, however,
that Del Monte shall not be required to provide legal services. To the extent
any such service is provided by Del Monte it shall constitute a Service for the
purpose of this Services Agreement. Each Service shall be provided for the term
set forth on Schedule A and for the fee set forth for such Service on Schedule
B, or as the Parties may otherwise agree.
While the Parties have made good faith efforts to identify all
services currently provided to the Business, it is understood by the Parties
that some services may have been inadvertently omitted. Omission shall not
exclude such service from incorporation in this Services Agreement. Upon notice
by UniMark to Del Monte of such an omission, then the Parties shall amend
Schedule A and Schedule B to include such service. In such event, Del Monte
shall provide the Service to UniMark at Del Monte's actual incremental
out-of-pocket cost of providing such Service.
2.2 Access. UniMark shall make available on a timely basis to Del Monte
all information and materials reasonably requested by Del Monte to enable it to
provide the Services. UniMark shall give Del Monte reasonable access, during
regular business hours and at such other times as are reasonably required, to
the Business premises for the purposes of providing Services.
2.3 Books and Records. Del Monte shall keep books and records of the
Services provided and reasonable supporting documentation of all charges
incurred in connection with providing such Services and shall produce records
that verify the Services were performed and when such Services were performed,
and shall make such books and records available to UniMark, upon reasonable
notice, during normal business hours.
SECTION 3
Services; Payment; Independent Contractor
3.1 Services to be Provided.
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(a) Unless otherwise agreed by the Parties, the Services shall
be performed by Del Monte for UniMark in a manner that is substantially the same
as the manner in which such Services were generally performed by UniMark for the
Business immediately prior to the date of this Services Agreement and UniMark
shall use such Services for substantially the same purposes and in substantially
the same manner as it had used such Services prior to the date hereof. Del Monte
shall act under this Services Agreement solely as an independent contractor and
not as an agent of UniMark.
(b) UniMark shall not be obligated to pay any amounts to Del
Monte or any of its employees in respect of payroll, benefits or similar
obligations, except as expressly set forth on Schedule B.
3.2 Payment. Statements will be rendered each month by Del Monte to
UniMark for Services delivered during the preceding month, and each such
statement shall set forth in reasonable detail a description of such Services
and the amounts charged therefor. Invoices shall be payable net thirty (30) days
after the date thereof.
3.3 Priorities and Compliance With Law. In providing Services, Del
Monte shall accord UniMark the same priority it accords its own operations. Del
Monte shall perform all Services hereunder in accordance with all applicable
laws and in accordance with all industry standards and good manufacturing
practices.
3.4 Cooperation. The Parties agree to cooperate in good faith so that
the level and quality of the Services is comparable to that previously provided
by UniMark in the conduct of the Business. Each Party shall act in good faith to
achieve the benefits intended and to resolve in a commercially reasonable way
any problems that may occur. As part of that cooperation, each agrees to appoint
and maintain a coordinator with responsibility for ensuring that the Services
are performed in accordance with the terms and intentions of this Services
Agreement.
SECTION 4
Term of Particular Services
4.1 Term. The provision of Services shall commence on the date hereof
and, with respect to each Service, shall terminate at the end of the term set
forth on Schedule A with respect to such Service, provided, however, that
UniMark may cancel any Service upon thirty (30) days' written notice subject to
the requirement that UniMark pays to Del Monte the out-of-pocket costs
reasonably incurred by Del Monte, as a result of such cancellation, which
out-of-pocket costs shall be set forth in reasonable detail in a written
statement provided to UniMark.
4.2 Return of Records. Upon the termination of a Service or Services
with respect to which Del Monte holds books, records or files, including, but
not limited to, current and archived copies of computer files, owned by UniMark
and used by Del Monte in connection with the provision of a Service to UniMark,
Del Monte will return all of
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such books, records or files as soon as reasonably practicable. At its expense,
Del Monte may make a copy of such books, records or files for its legal files.
4.3 Extension. At the election of UniMark, the term of the Services to
be provided pursuant to this Services Agreement shall be extended for up to six
months; provided, that (i) UniMark and Del Monte shall negotiate the rates to be
charged therefor by Del Monte during such extension, which rates shall be
comparable to market rates determined on an arms--length basis between
unaffiliated parties, (ii) such Services shall be of similar scope as currently
provided, and (iii) UniMark shall give Del Monte written notice of its election
to extend the term of any Service provided hereunder at least 30 days prior to
the scheduled termination of such Service.
SECTION 5
Force Majeure
Del Monte shall not be liable for any interruption of Service, delay or
failure to perform under this Services Agreement when such interruption, delay
or failure results from causes beyond its reasonable control, including but not
limited to any strikes, lock--outs or other labor difficulties, acts of any
government, riot, insurrection or other hostilities, embargo, fuel or energy
shortage, fire, flood, acts of God, wrecks or transportation delays, or
inability to obtain necessary labor, materials or utilities. In any such event,
Del Monte's obligations hereunder shall be postponed for such time as its
performance is suspended or delayed on account thereof. Del Monte will promptly
notify UniMark, either orally or in writing, upon learning of the occurrence of
such event of force majeure. Upon the cessation of the force majeure event, Del
Monte will use reasonable efforts to resume its performance with the least
possible delay.
SECTION 6
Indemnification; Limitation on Liabilities
6.1 Indemnification. The obligation for damages, losses, and
liabilities that arise in connection with the negligence or willful misconduct
of any employee of Del Monte, in connection with the provision of any Service
hereunder, shall be assumed by Del Monte and fully indemnified by Del Monte. The
obligation for damages, losses, and liabilities that arise in connection with
the negligence or willful misconduct of any employee of UniMark, in connection
with the provision of any Service hereunder, shall be assumed by UniMark and
fully indemnified by UniMark.
6.2 Limitation on Liability. Del Monte shall not be liable, whether in
contract, in tort (including negligence and strict liability), or otherwise, for
any special, indirect, incidental or consequential damages whatsoever, which in
any way arise out of, relate to, or are a consequence of, its performance or
nonperformance hereunder, or the provision of or failure to provide any Service
hereunder, including but not limited to, loss of profits, business interruptions
and claims of customers.
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6.3 Effect of Negligence. THE INDEMNIFICATION PROVIDED IN THIS SERVICES
AGREEMENT SHALL BE APPLICABLE WHETHER OR NOT NEGLIGENCE OR STRICT LIABILITY OF
THE PERSON ENTITLED TO INDEMNIFICATION HEREUNDER IS ALLEGED OR PROVEN.
SECTION 7
Termination
7.1 Termination. This Services Agreement shall terminate on the
earliest to occur of (a) the date on which the provision of all Services have
terminated or been canceled pursuant to Section 4 or such later date to which
the Services may be extended pursuant to Section 4.3, and (b) the date on which
this Services Agreement is terminated pursuant to Section 7.2.
7.2 Breach of Services Agreement. If either Party shall cause or suffer
to exist any breach of any of its obligations under this Services Agreement,
including but not limited to any failure to make payments when due, and said
Party does not cure such default within thirty (30) days after receiving written
notice thereof from the non--breaching Party, the non-breaching Party may
terminate this Services Agreement, including the provision of Services pursuant
hereto, immediately by providing written notice of termination.
7.3 Sums Due. In the event of a termination of this Services Agreement,
Del Monte shall be entitled to all outstanding amounts due from UniMark up to
the date of termination.
7.4 Effect of Termination. Sections 3.2, 3.4, 4.2, 6, 7.3 and 8 and
this Section 7.4 shall survive any termination of this Services Agreement.
SECTION 8
Miscellaneous
8.1 Notices. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand or sent
prepaid telex, cable or telecopy, or sent, postage prepaid, by registered,
certified or express mail, or reputable overnight courier service and shall be
deemed given when so delivered by hand, telexed, cabled or telecopied, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows:
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(i) if to Del Monte, to:
Del Monte Corporation
One Market
San Francisco, CA 94105
Attention: William R. Sawyers
Telephone: (415) 247-3262
Telecopier: (415) 247-3263
(ii) if to UniMark, to:
The UniMark Group, Inc.
P.O. Box 229
Bartonville, Texas 76226-0229
Attention: President
Telephone: _____________
Telecopier: (817) 491-1272
8.2 Headings. The headings contained in this Services Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Services Agreement.
8.3 Entire Agreement. This Services Agreement contains the entire
agreement and understanding between the Parties hereto with respect to the
subject matter hereof and supersedes all prior oral and written agreements and
understandings relating to such subject matter.
8.4 Governing Law. This Services Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Texas, without
reference to the conflict of laws principles thereof. Each of the parties
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the United States District Court for the Northern
District of Texas, Dallas Division, or any State court sitting in the County of
Dallas, State of Texas, and any appellate court therefrom, in any action or
proceeding arising out of or relating to this Services Agreement, or for
recognition or enforcement of any judgment, and each of the parties irrevocably
and unconditionally agrees, to the fullest extent permitted by law, that all
claims in respect of any such action or proceeding may be heard and determined
in any such court. Each of the parties hereto agrees that a final judgment in
any such proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
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8.5 Binding Effect. This Services Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective heirs,
successors and permitted assigns.
8.6 Assignment. This Services Agreement shall not be assignable by any
Party without the prior written consent of the other Party.
8.7 No Third Party Beneficiaries. This Services Agreement is for the
sole benefit of the Parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person or
entity, other than the Parties hereto and such assigns, any legal or equitable
rights hereunder.
8.8 Waivers. No waiver hereunder shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
waiver is sought. Any such waiver shall constitute a waiver only with respect to
the specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any other
time.
8.9 Confidentiality; Security; Title to Data. Each of the Parties
agrees that any confidential information of the other Party received in the
course of performance under this Services Agreement shall be kept strictly
confidential by the Parties, except that Del Monte may disclose such information
for the purpose of providing Services pursuant to this Services Agreement to any
subsidiary of Del Monte or to third parties that provide such Services,
provided, that any such third party shall have agreed in writing to be bound by
this Section 8.9. Upon the termination of this Services Agreement, each party
shall return to the other party all of such other party's confidential
information to the extent that such information has not been previously returned
pursuant to Section 4.2 of this Services Agreement.
8.10 Order of Precedence. The Parties agree that if any terms of this
Services Agreement conflict with terms in the Acquisition Agreement, the terms
of this Services Agreement shall govern with respect to the resolution of such
conflict.
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8.11 Severability. If any provision of this Services Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
8.12 Counterparts. This Services Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other party.
8.13 Expenses. Except as otherwise provided elsewhere in this Services
Agreement, all fees, costs and expenses incurred in connection with this
Services Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs or expenses.
8.14 Amendments. No amendment to this Services Agreement shall be
effective unless it shall be in writing and signed by the Parties hereto.
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IN WITNESS WHEREOF, Del Monte and UniMark have each caused
this Services Agreement to be duly signed and delivered.
DEL MONTE:
DEL MONTE CORPORATION
By:
-------------------------------------
Title:
----------------------------------
UNIMARK:
UNIMARK FOODS, INC.
By:
-------------------------------------
Title:
----------------------------------
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TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT ("Services Agreement") is entered
into as of this 1st day of September, 2000, by and between UNIMARK FOODS, INC.,
a Texas corporation ("UniMark"), and DEL MONTE CORPORATION, a New York
corporation ("Del Monte"). UniMark and Del Monte are sometimes hereinafter
collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, UniMark and Del Monte have entered into an Asset
Purchase Agreement (the "Acquisition Agreement") dated as of the 25th day of
August, 2000, relating to the purchase by Del Monte of the Purchased Assets (as
defined in the Acquisition Agreement); and
WHEREAS, the Acquisition Agreement contemplates the execution
and delivery of this Services Agreement; and
WHEREAS, Del Monte is interested in purchasing certain
services from UniMark during a transitional period from the date hereof.
NOW, THEREFORE, the Parties, intending to become legally
bound, hereby agree as follows:
SECTION 1
Definitions
For the purposes of this Services Agreement, the following capitalized
terms shall have the meanings assigned to them below. Capitalized terms not
defined below shall have the meanings ascribed to them in the Acquisition
Agreement.
1.4 "Business" shall mean the business of selling processed fruit
products previously conducted by UniMark.
1.5 "Service" or "Services" shall mean those services described on
Schedule A or otherwise provided by UniMark pursuant to Section 2.1.
1.6 "Services Agreement" shall mean this contract between the Parties
and all Schedules hereto.
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SECTION 2
Agreement to Sell and Buy
2.4 Provision of Services. UniMark shall provide to Del Monte the
services listed and described on Schedule A. In addition, UniMark shall furnish
to Del Monte such other services as Del Monte may reasonably request and to
which UniMark shall reasonably agree, that are currently provided to the
Business and are necessary to conduct and operate the Business as currently
conducted and operated by UniMark, provided, however, that UniMark shall not be
required to provide legal services. To the extent any such service is provided
by UniMark it shall constitute a Service for the purpose of this Services
Agreement. Each Service shall be provided for the term set forth on Schedule A
and for the fee set forth for such Service on Schedule B, or as the Parties may
otherwise agree.
While the Parties have made good faith efforts to identify all
services currently provided to the Business, it is understood by the Parties
that some services may have been inadvertently omitted. Omission shall not
exclude such service from incorporation in this Services Agreement. Upon notice
by Del Monte to UniMark of such an omission, then the Parties shall amend
Schedule A and Schedule B to include such service. In such event, UniMark shall
provide the Service to Del Monte at UniMark's actual incremental out-of-pocket
cost of providing such Service.
2.5 Access. Del Monte shall make available on a timely basis to UniMark
all information and materials reasonably requested by UniMark to enable it to
provide the Services. Del Monte shall give UniMark reasonable access, during
regular business hours and at such other times as are reasonably required, to
the Business premises for the purposes of providing Services.
2.6 Books and Records. UniMark shall keep books and records of the
Services provided and reasonable supporting documentation of all charges
incurred in connection with providing such Services and shall produce records
that verify the Services were performed and when such Services were performed,
and shall make such books and records available to Del Monte, upon reasonable
notice, during normal business hours.
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SECTION 3
Services; Payment; Independent Contractor
3.4 Services to be Provided.
(a) Unless otherwise agreed by the Parties, the Services shall
be performed by UniMark for Del Monte in a manner that is substantially the same
as the manner in which such Services were generally performed by UniMark for the
Business prior to the date of this Services Agreement and Del Monte shall use
such Services for substantially the same purposes and in substantially the same
manner as the Business had used such Services prior to the date hereof. UniMark
shall act under this Services Agreement solely as an independent contractor and
not as an agent of Del Monte.
(b) Del Monte shall not be obligated to pay any amounts to
UniMark or any of its employees in respect of payroll, benefits or similar
obligations, except as expressly set forth on Schedule B.
3.5 Payment. Statements will be rendered each month by UniMark to Del
Monte for Services delivered during the preceding month, and each such statement
shall set forth in reasonable detail a description of such Services and the
amounts charged therefor. Invoices shall be payable net thirty (30) days after
the date thereof; provided, however, that Del Monte shall be entitled to offset
from amounts owed pursuant to such invoices any amounts owed by UniMark to Del
Monte under that certain Transition Services Agreement (Food Service
Distribution) of even date herewith.
3.6 Priorities and Compliance with Law. In providing Services, UniMark
shall accord Del Monte the same priority it accords its own operations. UniMark
shall perform all Services hereunder in accordance with all applicable laws and
in accordance with all industry standards and good manufacturing practices.
3.7 Cooperation. The Parties agree to cooperate in good faith so that
the level and quality of the Services is no less than previously provided by
UniMark in the conduct of the Business. Each Party shall act in good faith to
achieve the benefits intended and to resolve in a commercially reasonable way
any problems that may occur. As part of that cooperation, each agrees:
(a) To appoint and maintain a coordinator with
responsibility for ensuring that the Services are
performed in accordance with the terms and intentions
of this Services Agreement; and
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(b) UniMark shall, consistent with past practice,
supervise the activities of its officers, employees
and representatives in the performance of Services
hereunder.
SECTION 4
Term of Particular Services
4.1 Term. The provision of Services shall commence on the date hereof
and, with respect to each Service, shall terminate at the end of the term set
forth on Schedule A with respect to such Service, provided, however, that Del
Monte may cancel any Service upon thirty (30) days' written notice subject to
the requirement that Del Monte pays to UniMark the out-of-pocket costs
reasonably incurred by UniMark, as a result of such cancellation, which
out-of-pocket costs shall be set forth in reasonable detail in a written
statement provided to Del Monte.
4.2 Return of Records. Upon the termination of a Service or Services
with respect to which UniMark holds books, records or files, including, but not
limited to, current and archived copies of computer files, owned by Del Monte
and used by UniMark in connection with the provision of a Service to Del Monte,
UniMark will return all of such books, records or files as soon as reasonably
practicable. At its expense, UniMark may make a copy of such books, records or
files for its legal files.
4.3 Extension. At the election of Del Monte, the term of the Services
to be provided pursuant to this Services Agreement shall be extended for up to
six months; provided, that (i) Del Monte and UniMark shall negotiate the rates
to be charged therefor by UniMark during such extension, which rates shall be
comparable to market rates determined on an arms--length basis between
unaffiliated parties, (ii) such Services shall be of similar scope as currently
provided, and (iii) Del Monte shall give UniMark written notice of its election
to extend the term of any Service provided hereunder at least 30 days prior to
the scheduled termination of such Service.
SECTION 5
Force Majeure
UniMark shall not be liable for any interruption of Service, delay or
failure to perform under this Services Agreement when such interruption, delay
or failure results from causes beyond its reasonable control, including but not
limited to any strikes, lock--outs or other labor difficulties, acts of any
government, riot, insurrection or other hostilities, embargo, fuel or energy
shortage, fire, flood, acts of God, wrecks or transportation delays, or
inability to obtain necessary labor, materials or utilities. In any such event,
UniMark's obligations hereunder shall be postponed for such time as its
performance is suspended or delayed on account thereof. UniMark will promptly
notify Del Monte, either orally or in writing, upon learning of the occurrence
of such event of
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force majeure. Upon the cessation of the force majeure event, UniMark will use
reasonable efforts to resume its performance with the least possible delay.
SECTION 6
Indemnification; Limitation on Liabilities
6.1 Indemnification. The obligation for damages, losses, and
liabilities that arise in connection with the negligence or willful misconduct
of any employee of UniMark, in connection with the provision of any Service
hereunder, shall be assumed by UniMark and fully indemnified by UniMark. The
obligation for damages, losses, and liabilities that arise in connection with
the negligence or willful misconduct of any employee of Del Monte, in connection
with the provision of any Service hereunder, shall be assumed by Del Monte and
fully indemnified by Del Monte.
6.2 Limitation on Liability. UniMark shall not be liable, whether in
contract, in tort (including negligence and strict liability), or otherwise, for
any special, indirect, incidental or consequential damages whatsoever, which in
any way arise out of, relate to, or are a consequence of, its performance or
nonperformance hereunder, or the provision of or failure to provide any Service
hereunder, including but not limited to, loss of profits, business interruptions
and claims of customers.
6.3 Effect of Negligence. THE INDEMNIFICATION PROVIDED IN THIS SERVICES
AGREEMENT SHALL BE APPLICABLE WHETHER OR NOT NEGLIGENCE OR STRICT LIABILITY OF
THE PERSON ENTITLED TO INDEMNIFICATION HEREUNDER IS ALLEGED OR PROVEN.
SECTION 7
Termination
7.5 Termination. This Services Agreement shall terminate on the
earliest to occur of (a) the date on which the provision of all Services have
terminated or been canceled pursuant to Section 4 or such later date to which
the Services may be extended pursuant to Section 4.3, and (b) the date on which
this Services Agreement is terminated pursuant to Section 7.2.
7.6 Breach of Services Agreement. If either Party shall cause or suffer
to exist any breach of any of its obligations under this Services Agreement,
including but not limited to any failure to make payments when due, and said
Party does not cure such default within thirty (30) days after receiving written
notice thereof from the non-breaching Party, the non-breaching Party may
terminate this Services Agreement, including the provision of Services pursuant
hereto, immediately by providing written notice of termination.
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7.7 Sums Due. In the event of a termination of this Services Agreement,
UniMark shall be entitled to all outstanding amounts due from Del Monte up to
the date of termination.
7.8 Effect of Termination. Sections 3.2, 3.4, 4.2, 6, 7.3 and 8 and
this Section 7.4 shall survive any termination of this Services Agreement.
SECTION 8
Miscellaneous
8.1 Notices. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand or sent
prepaid telex, cable or telecopy, or sent, postage prepaid, by registered,
certified or express mail, or reputable overnight courier service and shall be
deemed given when so delivered by hand, telexed, cabled or telecopied, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows:
(i) if to Del Monte, to:
Del Monte Corporation
One Market
San Francisco, CA 94105
Attention: William R. Sawyers
Telephone: (415) 247-3262
Telecopier: (415) 247-3263
(ii) if to UniMark, to:
The UniMark Group, Inc.
P.O. Box 229
Bartonville, Texas 76226-0229
Attention: President
Telephone: _____________
Telecopier: (817) 491-1272
8.2 Headings. The headings contained in this Services Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Services Agreement.
8.3 Entire Agreement. This Services Agreement contains the entire
agreement and understanding between the Parties hereto with respect to the
subject matter hereof
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and supersedes all prior oral and written agreements and understandings relating
to such subject matter.
8.4 Governing Law. This Services Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Texas, without
reference to the conflict of laws principles thereof. Each of the parties
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the United States District Court for the Northern
District of Texas, Dallas Division, or any State court sitting in the County of
Dallas, State of Texas, and any appellate court therefrom, in any action or
proceeding arising out of or relating to this Services Agreement, or for
recognition or enforcement of any judgment, and each of the parties irrevocably
and unconditionally agrees, to the fullest extent permitted by law, that all
claims in respect of any such action or proceeding may be heard and determined
in any such court. Each of the parties hereto agrees that a final judgment in
any such proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
8.5 Binding Effect. This Services Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective heirs,
successors and permitted assigns.
8.6 Assignment. This Services Agreement shall not be assignable by any
Party without the prior written consent of the other Party.
8.7 No Third Party Beneficiaries. This Services Agreement is for the
sole benefit of the Parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person or
entity, other than the parties hereto and such assigns, any legal or equitable
rights hereunder.
8.8 Waivers. No waiver hereunder shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
waiver is sought. Any such waiver shall constitute a waiver only with respect to
the specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any other
time.
8.9 Confidentiality; Security; Title to Data. Each of the Parties
agrees that any confidential information of the other Party received in the
course of performance under this
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Services Agreement shall be kept strictly confidential by the Parties, except
that UniMark may disclose such information for the purpose of providing Services
pursuant to this Services Agreement to any subsidiary of UniMark or to third
parties that provide such Services, provided, that any such third party shall
have agreed in writing to be bound by this Section 8.9. Upon the termination of
this Services Agreement, each Party shall return to the other Party all of such
other Party's confidential information to the extent that such information has
not been previously returned pursuant to Section 4.2 of this Services Agreement.
8.10 Order of Precedence. The Parties agree that if any terms of this
Services Agreement conflict with terms in the Acquisition Agreement, the terms
of this Services Agreement shall govern with respect to the resolution of such
conflict.
8.11 Severability. If any provision of this Services Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
8.12 Counterparts. This Services Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the Parties and delivered to the other Party.
8.13 Expenses. Except as otherwise provided elsewhere in this Services
Agreement, all fees, costs and expenses incurred in connection with this
Services Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs or expenses.
8.14 Amendments. No amendment to this Services Agreement shall be
effective unless it shall be in writing and signed by the Parties hereto.
IN WITNESS WHEREOF, UniMark and Del Monte have each caused
this Services Agreement to be duly signed and delivered.
BUYER
DEL MONTE CORPORATION
By:
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Title:
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119
<PAGE> 18
SELLER
UNIMARK FOODS, INC.
By:
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Title:
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120
